THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW CITATIONS TO THE CODE OF VIRGINIA BY ABRAM C. EBY, if* OF THE RICHMOND BAR. RICHMOND, VIRGINIA, J. W. RANDOLPH & COMPANY. r8 95 . COPYRIGHTED BY ABBAM C. EBY. 1895. PKINTBD BY ITTKT * SHBPPBRSON. RICHMOND, VA. PREFACE. THE preparation of these "Citations" for publication was un- dertaken because of the obvious need of a work of this charac- ter, as a ready means of determining the construction of Virginia Statute Law. Chronological order has been observed through- out the entire work, save where interfered with by the arrange- ment of references in the margin of the Code, which are strictly followed, and always noted, though not given -in full, even when they are erroneous, as is sometimes the case. Mere cumulative authorities have been avoided as far as practicable, as the value of a work of this kind will depend upon its concise statement of an authoritative decision on each point which has been questioned, and not upon a mere inchoate mass of precedents ; for its purpose is to define the meaning and.jlkrS^ trate the principles of our statute law, as determined by the Supreme Court of the United States, the Supreme Court of Appeals, and the now abolished General Court of Virginia. The references having all been verified, the "Citations" are now given to the tender mercies of a critical profession, with the hope that they Avill prove a reliable method of saving much valu- able time. RICHMOND, VA., February, 1895. 686177 CITATIONS TO THE CODE OF VIRGINIA CONSTITUTION. ARTICLE 1, SECTION 21. In Ruffin vs. Commonwealth, 21 Grat., 790, decided Novem- ber 11, 1871, it was held : The bill of rights, though made a part of the Constitution, has the same force and authority as before, and no more than it always had. And the principles which it declares have reference to freemen and not to a con- victed felon ; that a convicted felon has only such rights as the statutes may give him. (In this case the prisoner, a convict, had killed a guard not employed by the State, but by a contractor to whom the said convict was hired by the State; in Bath county, the question was, Could he be legally tried in the Richmond Circuit Court in accordance with the statute and contrary to the bill of rights?) ARTICLE 4, SECTION 5. In the case of Lee (Sergeant) vs. Murphey, 22 Grat., 789, de- cided December 4, 1872, it was held: The Governor of Virginia has authority under the Constitution to grant a conditional pardon to a prisoner convicted of a felony. The condition annexed to a pardon must not be impossible, immoral, or illegal, but it may, with the consent of the prisoner, be any punishment recognized by statute or by the common law as enforced in this State. Though the warrant of the governor speaks as commuting the punishment, yet, as it substitutes a less for a greater punishment, and is intended to be done and is done with the consent of the prisoner, it will be considered a pardon, and not a commutation of the punishment. (This case distinguishes the case of Commonwealth vs. Fowler, 4 Call, 35, in which the punishment substituted in the pardon was illegal. And Ball vs. Commonwealth, 8 Leigh, 726, was dis- regarded on the ground that it was a mere obiter dictum.} In ir/7/-/'//,w;i (Sheriff] vs. Allen, 23 Grat., 10, decided Jan- 2 CITATIONS TO THE CODE OF VIRGINIA. uary 22, 1873, it was held : The governor has no authority to remit a fine. In Blair vs. Commonwealth, 25 Grat., 850, decided March 12, 1874, it was held : Under the Constitution of Virginia, the gov- ernor has authority to pardon a person convicted of a felony by the verdict of the jury before the sentence is passed upon him by the court. In the case of Edwards vs. Commonwealth, 78 Va., 39, decided November 15, 1883, it was held : The governor's pardon relieves the offender not only of the punishment annexed to the offence whereof he was convicted, but of all penalties and consequences, including the additional punishment, imposible not by reason of the sentence for the second offence alone, but in consequence of that sentence, and the sentence in the former case, except, however, political disabilities growing out of his conviction and sentence. ARTICLE 4, SECTION 8. In the case of Wolf et als. vs. McCall, Clerk, etc., 76 Va., 8'76, decided July, 1882, it was held: Where the legislature has passed a bill and presented it to the governor, the legislature cannot recall it. The governor has no power to return a bill except with his veto and objections. In this case it was returned, and not having been vetoed it became a law. ARTICLE 5, SECTION 14. In the case of Perry vs. Commonwealth, 3 Grat., 632, decided December, 1846, it was held : The constitutional provision for- bidding ex post facto laws relates to crimes and punishments, and not to criminal proceedings. No person is incapacitated from being a witness on account of his religious belief. In Flecker vs. Rhodes, 30 Grat., 795, decided October 3, 1878, it was held : The General Assembly has the power to authorize an individual to build a toll-bridge over a river. ARTICLE 5, SECTION 15. In the case of Anderson vs. Commonwealth, 18 Grat., 295 decided February 20, 1868, it was held: A charter reserving to the General Assembly the power to modify or repeal the charter the modification was effectually done by the act for the assess- ment of taxes, and is not a violation of this section of the Con- stitution. In the case of Crawford vs. Hoisted & Putnam, 20 Grat., 211 decided January 9, 1871, the act of February 7, 1867 (Acts, p 515), was held to conform with this section, though the judges did not agree in defining exactly what was the meaning 3 section, some holding it to be merely directory, but care- CITATIONS TO THE CODE OF VIRGINIA. 3 fully avoiding a decision which would affect more than the case at bar. In the case of Prices executor et als. vs. Harrison's executor et als. 31 Grat., 121, decided November 28, 1878, it was held: No inference of an intended retroactive operation is to be drawn from the mode of amendment, that is, by re-enacting the exist- ing statutes as amended so as to read, etc.: This mode of amend- ment was adopted pursuant to requirements of the Constitution of the State. In the case of Board of Supervisors vs. McGruder, 84 Va., 828, decided May 3, 1888, it was held : This section ordains that no law shall embrace more than one subject, which shall be expressed in its title. Act of November 27, 1884, entitled, " An act to allow further time for the treasurer of Henrico county to make returns of delinquent taxes," provides that the " late treasurer of Henrico county be allowed until the first day of February, 1885, to make his supplementary returns for the years 1879, 1881, 1882, and 1883," and is repugnant to said section of the Constitution, in that the title thereof is not only misleading, but embraces an object wholly variant from the object expressed in the body of the act. In the case of Fidelity Insurance, Trust and Safe Deposit Company et als. vs. Slienandoah Valley JR. It. Co. et als., 86 Va., 1, decided April 11, 1889, it was held : The act of March 21, amended April 21, 1879, entitled, "An act to secure the payment of wages and salaries of certain employees of railroad ajid other transportation companies," providing that employees and persons furnishing to such companies supplies, cars and engines, is, as to the cars and engines, void, being repugnant to Section 15, Article 5, Virginia Constitution. In the case of Powells vs. Supervisors of Brunswick County, 88 Va., 707, decided January 28, 1892, it was held : The intent of Article 5, Section 15, Constitution of Virginia, was to prevent in one act the union of objects having no connection, and is effectual where an act has but one general aim fairly indicated in its title, as "to incorporate a railroad company," and such act may embrace the necessary details, such as authorizing counties to aid by their subscriptions and the like. An act approved April 21, 1882, entitled, " An act to incorporate the A. & D. Railroad Company," is not repugnant to said section. In the case of Lascallett vs. Commonwealth, 89 Va., 878, de- cided April 20, 1893, this section provides that no law shall em- brace more than one object, which shall be expressed in its title ; but where the act has but one general object, and that is the suppression of certain kinds of betting or gambling, and makes it an offence (1), to bet in any of the prohibited modes, and (2), to keep any house for the purpose of betting therein. 4 CITATIONS TO THE CODE OF VIRGINIA. Held : The act does not violate said section, as the latter provi- sion is merely one of the measures adopted for the accomplish- ment of the general object expressed in the title. ARTICLE 5, SECTION 17. In the case of Trustees vs. Guthrie et als., 86 Va., 125, de- cided June 13, 1889, it was held: The creation of a corporation for the purpose of carrying on Foreign Missions is not the in- corporation of a church or religious denomination, which is for- bidden, but which provides that the legislature may secure the title to church property. ARTICLE 5, SECTION 22. In the case of Meredith, ex parte, 33 Grat., 119, decided April 1, 1880, it was held : A judge of a county court, who has been elected to fill a vacancy occasioned by the death of a for- mer judge, is elected for the full term of six years, and not for the unexpired term of the former judge ; and this is equally trua of judges of the Court of Appeals and circuit courts. In the case of Burks vs. Hinton, 77 Va., 1, decided January 15, 1883, it was held: The joint resolution of December 28, 1872 (Act 1872-'73, p. 1), providing that all elections by the General Assembly to fill vacancies in the office of judge shall be for the unexpired term of his predecessor is constitutional. The decision of this, court in re Meredith, 33 Grat., 119, declaring the joint resolution unconstitutional, is sustained neither by con- temporaneous or legislative construction, nor by the reason of the judge who delivered the opinion, and is erroneous. In the case of Vaughan vs. Johnson (Sergeant], 77 Va., 300, decided March 22, 1883, it was held : The General Assembly is authorized by the Constitution to declare the cases in which any office shall be deemed vacant and the mode of filling vacan- cies in cases not therein especially provided for. The Constitu- tion does not declare the causes for which the office of mayor shall be declared vacant, nor the mode of filling the vacancy, nor his term of office. ARTICLE 6, SECTION 2. See Post, Section 3455. In the case of Harman vs. City of Lynchburg, 33 Grat., 37, decided March 11, 1880, it was held: The term "matter in con- troversy," as used in reference to the jurisdiction of the court of appeals, in Article 6, Section 2, of the Virginia Constitution, means the subject of litigation, the matter for which suit is brought and upon which issue is joined. The Appellate Court must show the right of the court to entertain jurisdiction. In the case of Fink Brothers & Co. vs. Denney et als., 75 Va.,. CITATIONS TO THE CODE OF VIRGINIA. 5 663, decided September term 1881, it was held : A suit to set aside several deeds on the ground of alleged fraud, and to subject the lands thereby conveyed to the debt of the complainants, is not in the category of controversies concerning the title or bound- aries of land within the meaning of the Constitution of the State. In such a case it is the debt which is the matter in controversy, and as a general rule it is the amount claimed by the complain- ant in the court below which determines the jurisdiction of the court where he is appellant. In the case of Batchellder & Collins vs. Richardson <& Co., 75 Va., 835, decided November term 1881, it was held : Where on a money demand the difference between the amount decreed to the appellant in the court below and the amount of the claim asserted by him in that court is not sufficient to give this court jurisdiction, his appeal will be dismissed, and if the actual amount in dispute does not otherwise appear, the court will look to the whole record for the purpose of determining the juris- diction. In the case of the Southern Fertilizing Co. vs. Nelson, 6 Va. 1/aw Journal, 162, decided January, 1882, it was held : The onus of showing that the appellate court has jurisdiction of a case is always on the appellant or plaintiff in error. The pro- perty levied on does not constitute the matter in controversy so as to give the court jurisdiction of the case. In the case of Buckner vs. Metz et als., 77 Va., 107, decided February 1, 1883, it was held: Where A secures a judgment against 13 for an amount greater than five hundred dollars, and B conveys his only property, worth less than five hundred dol- lars, to a third person, upon which A brings suit to subject the said property to the payment of his judgment against B, that the suit brings for the value of the property, that value deter- mines the jurisdiction. In the case of Updikes's administrator et als. vs. Lane, 78 Va., 132, decided December 6, 1883, it was held : Where for debt of decedent there is no decree in solido against his personal repre- sentative, but severally against each distributee for his propor- tion of the debt, which exceeds five hundred dollars, substanti- ally it is a decree against the decedent's estate, and as it exceeds in the aggregate the minimum jurisdictional sum, an appeal lies from the decree in behalf of the distributees. This point has, however, been ruled upon by the United States Supreme Court. In Hendersons executor vs. Wadsworth, 115 U. S., 264, de- cided November 2, 1885, it was held: Where suit is brought against heirs to enforce their liability for the payment of a note on which their ancestor was bound, and they plead neither coun- ter claim nor set off, and ask no affirmative relief, and separate 6 CITATIONS TO THE CODE OF VIRGINIA. judgments are rendered against each for his proportionate share, the court has jurisdiction in error only over those judgments which exceed five thousand dollars. In the case of Peters & Reed vs. Me Williams et als., 78 Va., 567, decided February 7, 1884, it was held : Where the amount in controversy exceeds the minimum jurisdictional sum this court hath jurisdiction, though the judgment complained of be not in form in solido for that amount, but be divided into lesser sums, payable to the persons respectively entitled thereto ; in form, the judgment is several in substance ; it is in solido. In the case of Cox vs. Carr et als., 79 Va., 28, decided April 3, 1884, it was held: Where jurisdiction depends upon the amount in controversy, if plaintiff, in his declaration or bill, claims money or property of greater value than five hundred dollars, he is entitled to his appeal or writ of error, though the judgment be for less ; but not so the defendant if the judgment be for less. In the case of McCrowell vs. Burson, 79 Va., 290, decided August 7, 1884, it was held : To give this court jurisdiction, save in certain cases, the judgment must amount to five hun- dred dollars, principal and interest, at its date, except when plaintiff's demand exceed the sum and he applies for the ap- peal. This is in affirmation of Gage vs. Crocket, 27 Grat., 734, and Tells vs. Lee, 76 Va., 744. In the case of Smith et ux vs. Rosenheim, 79 Va., 540, decided October 7, 1884, it was held : The test of jurisdiction in this court to entertain an appeal from a decree of the court below, enforcing on land the lien of a judgment is the amount or value of the judgment. If such amount or value fall below five hun- dred dollars, this court has no jurisdiction to review such decree. In the case of Mclntosh (Treasurer) vs. Braden ct als., 80 Va., 217, decided February 5, 1885, it was held : The act of March 12, 1884, is Constitutional so far as it confers upon this court jurisdiction in all cases of coupons arising under act of January L4, 1 $82, without regard to the amount in controversy being in conflict with Article 6 of the State Constitution, fixing minimum jurisdictional amount in cases purely pecuniary at five hundred dollars. i o 1 1 oo ase f Kahn vs> Kwwood, 80 Va., 342, decided March 36, it was held: Where a deed conveys property alleged therein to be worth over five hundred dollars, and is assailed as fraudulent by a creditor whose debt is less than five hundred JJars as between the grantee and the assailing creditor, the matter in controversy is the value of the property and not the amount of the debt, and in the absence of proof to the contrary, the alleged must be deemed the actual value of the property. In the case of Duffy & Bolton vs. Figgatt, 80 Va., 664, de- CITATIONS TO THE CODE OF VIRGINIA. 7 cided September 17, 1885, this ruling in the case of Cox vs. Cair et als., 79 Va., 28, quoted supra, was reiterated. In the case of Whitmer's heirs vs. Spitzer et als., 81 Va., 64, decided October 8, 1885, where a decree was rendered in the court below requiring Spitzer to pay nine hundred and seventy- five dollars to equalize four other heirs with his wife, he paid the money. Later, an inquiry resulted in a decree that the wife of Spitzer was entitled to an equal share of that sum, and that the four other heirs refund to Spitzer one-fifth thereof. The court of appeals held : This is a decree for payment of a less sum of money than constitutes the minimum jurisdictional amount, and the appeal must be dismissed. In the case of Cralle vs. Cralle, 81 Va., 773, decided April 25, 1886, pending a divorce suit, the trial court decreed alimony. From the decree, appeal was taken and supersedeas awarded. Pending the appeal, trial court decreed to the woman an allow- ance of one hundred and fifty dollars to enable her to defend the suit in this court, and twenty-five dollars a month for her maintenance during the pending of the suit. The Supreme Court of Appeals held : The court below was authorized to make the decree last appealed from. 2nd. The amount decreed, however, being less than the minimum jurisdictional sum, the appeal must be dismissed. 3rd. The appellants remedy is by writ of prohibition from this court to the execution of the decree. In the case of Wifz vs. Osburn, 11 Va., Law Journal, 585, de- cided April 21, 1887, it was held : Where the amount in contro- versy in an appeal is above the jurisdictional limit as to one of the appellants only, but the questions presented are identical as to all the appellants, and their interests cannot be severed. The appeal will not be dismissed as to those whose claims are below the jurisdictional amount. In the case of Thompson vs. Adams, 11 Va. Law Journal, 217, decided December 9, 1886. Timberlake and J. A. Thomp- son have each a judgment against S. G. Thompson, neither of which amounts to five hundred dollars. The judgment debtor having conveyed his land to one Adams, these judg- ment creditors bring their bill to set aside the deed as fraudu- lent, and subject the land to the payment of their judgment, the bill being dismissed they appealed. The court held : 1st. The decree is to be considered severally as to each creditor, and neither judgment amounting to five hundred dollars, the limit fixed by the Constitution, the court has no jurisdiction to allow or hear an appeal from the decree. (This affirms the ruling in Umlerger vs. Watts, 25 Grat., 167.) 2nd. The fact that one object of the bill was to set aside the alleged fraudulent convey- ance does not alter the case that was merely an incident to the 8 CITATIONS TO THE CODE OF VIRGINIA. main object, which was to subject the land to the payment of the judgments. In the case of Pannill vs. Coles, 81 Va., 380, decided January 21, 1886, it was held: State Constitution, Article 6, Section 2, gives this court appellate jurisdiction in controversies concern- ing the title or boundaries of land, whatever the amount and whatever the element of title involved in the controversy, and consequently such jurisdiction extends to cases of unlawful en- try and detainer. In the case of Board of Supervisors vs. Catlett's executor, 86 Va., 159, decided June 13, 1889, it was held: A suit as to the right of the board of supervisors to levy a tax to pay a claim concerns a franchise, and this court hath jurisdiction. ARTICLE 6, SECTION 3. In the case of Boiling vs. Lersner, 26 Grat., 36, decided March 25, 1875, it was held : The act of February 28, 1872, to provide a special court of appeals to consist of three judges of the circuit courts, is constitutional, and the decisions of the court are valid and binding on the parties to the causes decided. The case referred to as 26 Grat., 45, is the case above cited. ARTICLE 6, SECTION 8. In the case of Blair (Attorney- General) vs. Marye (Auditor], 80 Va., 485, decided May 7, 1885, it was held : By Section 8, Article 6, State Constitution, the election and commissioning of an attorney-general is provided for, and is directed that he shall perform such duties as the law may prescribe, it is not within the power of the legislature itself to withhold from him the salary which is prescribed by law, nor to delegate such power to the auditor. The salary of the attorney-general is of constitutional grant and of public official right, and the doctrine of off-set cannot be applied to it. It is not liable to attachment, to garnishment, nor to assignment in bankruptcy, and upon principles of public policy it has absolute immunity from detention for debt or counter claims. The act of General Assembly passed November 24, 1884, Acts (extra session) 1884, p. 90, requiring the auditor to with- hold the salary of any officer who is indebted to the State for money collected by him, or improperly drawn by him, during his term of office, until the default is made good, is unconstitu- tional and void so far as it affects constitutional offices. ARTICLE 6, SECTION 14. In the case of Chahoon vs. Commonwealth, 21 Grat., 822, de- cided December 13, 1871, it was held : This was not intended to restrict, but to enlarge the jurisdiction of these courts, and to CITATIONS TO THE CODE OF VIRGINIA. 9 elevate them to the dignity of circuit courts, and it was compo- nent for the legislature to give to the corporation courts juris- diction to try cases of felony, though the jurisdiction in such cases is taken away from the circuit courts. In the case of Craft vs. Commonwealth, 24 Grat., 606, de- cided December 11, 1873, it was held : The jurisdiction of cor- poration courts (save that of the city of Eichmond) is the same as that of the circuit courts, and also such jurisdiction as the former hustings courts of the respective cities had under the laws as they existed on the 26th day of January, 1870. ARTICLE 6, SECTION 20. In the case oiBurche vs. Ilardwicke, 30 Grat., 30, decided March 14, 1873, it was held : Though under the Constitution of the State, Article 6, Section 20, the mayor has the authority to remove the officers of the municipality, the Constitution does not invest him with the power to remove State officers, though they are elected by the people of the municipality, or appointed by the municipal authorities, and are paid by them. The chief of police of a city is an officer of the State, and not of the muni- cipality in which he exercises his office. In the case of Roche vs. Jones (Sergeant), 87 Va., 484, decided March 5, 1891, it was held: The legislature incorporating a town may appoint the officers to exercise their functions until a regular election, notwithstanding Article 6, Section 20, provides that town officers shall be electors of such town. ARTICLE 6, SECTION 22. In re Broaddus, 32 Grat., 779, decided February 19, 1880, it was held : Where the term of a judge ended December 31, 1879, and his successor was elected January 12, 1880, his term com- menced in January, 1880, and he is judge of the county from the time of his qualification, and authorized at once to exercise authority and discharge the duties of the office. In re Fisher, 33 Grat., 232, decided April 29, 1880, it was held : Manchester was incorporated as a city in 1874, and hav- ing more than five thousand inhabitants, it was entitled to a judge of said court. This being the first judge of this court, under the Constitution, C.'s term of office commenced on the first of January, 1875, and would continue until the 31st of De- cember, 1880, and he was, under the Constitution, authorized to act as judge from the time of his qualification to the com- mencement of his term. In the case of Foster vs. Jones, 79 Va., 642, decided Decem- ber 4, 1884, it was held : The General Assembly cannot, di- rectly or indirectly, abolish any constitutional office, that is, one whose term is defined by the Constitution, but may, directly or indirectly, abolish any legislative office, that is, one created by 10 CITATIONS TO THE CODE OF VIRGINIA. the General Assembly itself. Where a county judge has been- elected for a judicial district composed of two counties, the legis- lature may curtail his jurisdiction, his territorial district having still at least eight thousand inhabitants. Such curtailment and consequent loss of additional compensation of twenty dollars for every thousand inhabitants over ten thousand provided for county judges by act approved March 12, 1878 (Acts 1877-'78, p. 172, sec. 10), did not violate Section 22, Article 6, of the Constitution. ARTICLE 6, SECTION 25. In the case of Lawhorne, 18 Grat., 85, decided January 15, 1868, it was held : This section applies to State offices, and the governor, whose term has expired, holds over until his suc- cessor is qualified. In the case of Broaddus, 32 Grat., 779, decided February 19,. 1880, it was held : When there is an election after the expira- tion of the predecessor's term, his authority dates from the time of his qualification. In the case of Johnson vs. Mann (Judge), and Couch ( Treasurer), 77 Va., 265, decided March 15, 1883, it was held: Under the Constitution and laws of this State, county, municipal, and dis- trict officers must qualify before the day whereon their terms respectively begin, else their offices are vacated, and the incum- bents continue to discharge the duties of the offices after their terms of office have expired until their successors have qualified, ARTICLE 7, SECTION 5. In the case of Bunting vs. Willis (Judge), 27 Grat., 144, de- cided February 10, 1876, it was held : The office of sheriff com- mences on the first of July. If a person holding an office of profit under the United States Government is elected to office of sheriff, which is an office of profit under the State government,, and holds his office under the former government until any time during the first of July, he thereby vacates his election as sheriff,, and is not entitled to qualify as such. In the case of Shell (Judge] vs. Cousins et als., 77 Va., 328, decided March 29, 1883, it was held : Any office is incompati- ble with that of sheriff. Sheriff's acceptance of any office ac- tually vacates the sheriffalty, and no judgment of amotion is necessary where an office has been forfeited by a removal or the acceptance of an incompatible office. When the office of sheriff is thus made vacant, it becomes the duty of the county court judge to fill the vacancy in the mode prescribed by the law. The sheriff's resignation of the second office, after, by acceptance,, he has vacated the first cannot restore him, or otherwise affect the first. As the law makes it the duty of the county court CITATIONS TO THE CODE OF VIEGINIA. 11 judge to fill the vacancy in the sheriffalty, the circuit court has no authority to issue a writ of prohibition to restrain this exer- cise of his jurisdiction. If he exercises it erroneously, the remedy is by appeal. Prohibition lies only in case of trans- cending jurisdiction. This court has ever discouraged the employment of a writ of prohibition as a process to correct the error of inferior tribunals, and thus usurp the functions of the writ of error. (Article 8, Section 8.) In the case of Greenhow (Treasurer), vs. Yashon, 81 Va., 336, decided January 14, 1886, it was held : An act making school taxes payable only in lawful money of the United States is in accordance with the Constitution. No coupons can be received. ARTICLE 10, SECTION 1. In the case of Commonwealth vs. Moore & Goodsons, 25 Grat., 951, decided January 7, 1875, it was held: The act chapter 240, Section Acts of 1874, which imposes a license tax on merchants, is constitutional. In the case of Town of Danville vs. Shelton et als., 76 Va., 325, decided May 30, 1882, an ordinance imposing on every one engaged in purchasing leaf tobacco in Danville a tax of ten dol- lars and one per cent, on capital employed, and in addition fifteen cents per thousand pounds purchased monthly, was in question. Held: This feature is illegal. As a tax of fifteen cents on the thousand pounds, without regard to value, is un- equal as a license, it is not warrantable, because the business could have been reached on the ad valorem principle. In the case of Peters vs. City of Lynchburg, 76 Va., 927, de- cided April 13, 1882, has been quoted as an authority on this point, but it is mere affirmation of a decision of the lower court by a divided court, and the whole case is reaUy obiter dictum, save as to a question as to whether the council of Lynchburg had authority to impose a tax on successions under its charter and Code 1873, Chapter 54, Section 33. In the case of the Norfolk and Western Railroad Company vs. Supervisors of Smythe County, 87 Va., 521, decided March 19, 1891, it was held : County supervisors are authorized to levy a tax on railroad property in their county at any time after the passage of the act of February 27, 1880, based on the State assessment made previous to that act. And where the levy recites that fact the levy will be presumed legal. ARTICLE 10, SECTION 4. Case of Town of Danville vs. Shelton et als., 76 Va., 325, quoted supra Article 10, Section 1. ARTICLE 10, SECTION 10. In the case of Dinwiddie County vs. Stuart, Buchanan & Co., 12 CITATIONS TO THE CODE OF VIRGINIA. 28 Grat., 526, decided April 26, 1877, it was held : The act of May 9, 1862, entitled an act to authorize the county courts to purchase and distribute salt amongst the people and provide payment for the same, is constitutional on the ground that the then government has been repeatedly recognized as a de facto government, and its contracts must be enforced. In the case of Pulaski County vs. Stuart, Buchanan & Co., 28 Grat., 872, the above case was affirmed and its principles re- iterated. ARTICLE 11, SECTION 1. In the homestead cases, 22 Grat., 266, decided June 13, 1872, it was held : The Article 11, Section 1, of the Constitiition of Virginia, and the act of June 27, 1870, ch. 157, passed in pur- suance thereof in relation to homestead exemptions, are in con- flict with Article 8, Section 10, of the Constitution of the United States, which provides that no State shall pass any law impair- ing the obligation of contracts so far as the Virginia Constitution went into operation. In the case of ITatorfvs. Wellford (Judge), 27 Grat., 356, de- cided March 30, 1876, it was held : A householder dying leaving a widow, without having had a homestead assigned him in his life-time, his widow remaining unmarried is entitled to claim the same and have it assigned to her. In the case of Commonwealth vs. Ford et als., 29 Grat., 683, decided January 17, 1878, it was held: The third exception in the proviso to the first section of Article 11, of the Constitution of the State, embraces the liability of a collector of taxes and also of his sureties in his official bond. And, therefore, said sureties are not entitled to their homestead exemption as against the Commonwealth in a proceeding against them and their principal to recover the amount of taxes for which the collec- tor had failed to account. In the case of Reed vs. Union Bank of Winchester, 29 Grat., 719, decided January 31, 1878, it was held: The act which authorizes the waiver of the homestead exemption is not in con- flict with this article. And if a party executing his bond or note, waiving the homestead, neither he nor his wife can set up homestead exemption as against the said bond or note. In the case of Calhoun vs. Williams, 32 Grat., 18, decided July 24, 1879, it was held : 1st. An unmarried man who has no children or other persons dependent on him living with him, though he keeps house and has persons hired by him living with him, is not a householder or head of a family within the meaning of these terms used in the Constitution and laws of Virginia, and, therefore, is not entitled to the homestead exemp- on as provided by the same. 2d. The terms householder and head of a family have the same meaning in the provision of the Constitution and statute relating to homesteads CITATIONS TO THE CODE OF VIRGINIA. 1& In the case of Lindsay vs. Murphey, 76 Va., 428, decided April 27, 1882, it was held : The privilege of homestead is ac- corded only to citizens of this State while they remain such. 2. Change of domicile from this State puts an end to the homestead privileges. In the case of Scott vs. Cheatham et als., 78 Va., 82, decided November 28, 1883, the ruling in Hatorff vs. Wellford (Judge}, 27 Grat., 356, quoted supra, was confirmed and reiterated, also held : This exemption is a privilege, and may be waived or claimed as the householder may elect. In the case of Burton, c&c., vs. Mills et als., 78 Va., 468, de- cided March 13, 1884, it was held: The homestead exemption does not protect against a demand for damages for breach of promise to marry, which is not a debt contracted, but a quasi tort. In the case of Wray vs. Davenport, 79 Va., 19, decided April 3, 1884, it was held : The Constitution (Art. 11) secures home- stead, yet the legislature may prescribe the mode of setting it apart, only it cannot defeat or impair the benefit thereof. Chap- ter 183, Code of 1873, is within legislative authority, and to the availmeut thereof the householder must actually set it apart as prescribed. In the case of Wilkerson vs. Murville et als., 87 Va., 513, de- cided March 19, 1891, it was held : Where homestead exemp- tion has been regularly set apart, it is for the benefit of the- householder and his family, and is not ended by the latter's de- cease. ARTICLE 11, SECTION 1, PROVISO 2. In the case of Far'mkolt vs. Buchard, 10 Virginia Law Jour- nal, 213, decided February 11, 1866, it was held : One engaged* in carrying the United States mail over a county post route is a laboring person within the meaning of those words as used in the Virginia Constitution, and the fact that he owns the horse and vehicle used by him for that purpose does not alter the case. ARTICLE 11, SECTION 9. In the case of Scott v. Raul), 88 Va., 721, decided January 28, 1892, the plaintiff was born in 1862 of parents living together as husband and wife from 1861 to 1864, he being a colored man, and she a slave, and dying then, and plaintiff was recognized as his child, and as such was reared to womanhood. The court held : Under the Constitution, Article 11, Section 9, and act of February 27, 1866, Section 2, she was his legitimate child, and entitled to share by inheritance in his real estate. THE CODE OF VIRGINIA TITLE I. CHAPTEE I. TITLE II. CHAPTEE II. SECTION 3. In the case of Dykes & Co. vs. Woodhouse, Adm'r, 3 Baud., 287 it was held: The process of scire facias is saved under this statute, whether it originated from the common law or by statute. 2 Westm., 45. SECTION 5, PAR. 3. In the case of Booker vs. Young et ah., 12 Grat., 303, de- cided April, 1855, it was held : A majority of the directors of a bank constitute a board to do business ; and if in the election of 'a president a majority vote, the person receiving a majority of the votes cast is duly elected. SECTION 5, PAK. 4. In the case of Pierce' s executors et als. vs. Harrisons executors et als., 31 Grat., 114, decided November_28, 1878, on (page 118.) .The court refers to this section as a definite and final definition of the words " personal representative." The reference to 33 Grat., 267, is to the case of Brown et als. vs. Lambert's administrators, this case does not construe the statute, but the statute is cited as ruling the case. SECTION 5, PAR. 8. In the case of Turnbull vs. Thompson et als., 27 Grat., 306, decided March 16, 1876, it was held : A summons in debt is served on a defendant on the third of February, and the judg- ment by default becomes final on the third of March. Under the statute the day of the service of the process maybe counted, and therefore thirty days had elapsed between the service of process and the judgment, and it is a valid judgment. The reference to 27 Grat., 318, is an error. SECTION 5, PAR. 9. In the case of Michie vs. Michie's administrator, 17 Grat., CITATIONS TO THE CODE OF VIRGINIA. 15 109, decided October 17, 1866, it was held: Sunday, being dies non juridicus, is not one of the days of the term of a court. In the case of Read vs. Commonwealth^ 22 Grat., 924, de- cided December 11, 1872, it was held: Sunday is not to be counted as one of the days of the term of a court. In the case of Bowles vs. Brauer et als., 89 Va., 466, decided December 8, 1892, it was held : In court-practice, Sunday is not to be reckoned. When a statute prescribes a certain num- ber of days within which an act is to be done, and says nothing about Sunday, it is to be included, unless the last day falls on Sunday, in which case the act may generally be done on the succeeding day, but if the act may be lawfully done on Sunday, and the last day falls on Sunday, then Sunday is not to be ex- cluded. SECTION 5, PAR. 12. In the case of Clegg vs. Lemessurier, 15 Grat., 108, decided April, 1859, it was held: A writing for the payment of money or other purpose, which is not required to be by deed, having a scroll at the foot thereof with the word seal written therein, but which is not recognized in the body of the instrument as a seal, is not a sealed instrument. Evidence aliunde is not admissible to prove that a scroll at a foot of a writing was intended as a seal. SECTION 5, PAR. 13. In the case of B. and 0. R. R. Co. vs. Gallahuds administra- tor, 12 Grat., 655, decided July, 1855, it was held: When the word person is used in a statute, corporations as well as natural persons are included for civil purposes. In the case of The Western Union Telegraph Company vs. The City of Richmond, 26 Grat., 1, decided March 18, 1875, it was held : Though the ordinance of the city imposing taxes speaks only of persons or firms doing business in the city, yet it im- poses a tax in terms on telegraph companies, and obviously intends to include incorporated companies as well as individ- uals. Corporations are to be deemed and taken as persons when the circumstances in which they are placed are iden- tical with those of natural persons expressly included in a statute. In the case of Miller's Ex'ors vs. Commonwealth, 27 Grat., 110, decided February 3, 1876, it was held: Corporations are included under the term " persons" in a statute, unless they are exempted by its terms, or by the nature of the subject to which the statute relates. The reference to 27 Grat., 115, is to the case cited above from page 110. 16 CITATIONS TO THE CODE or VIRGINIA. In the case of City of Lyncliburg vs. Norfolk and Western fiailroad Company, 80 Va., 237, decided February 19, 1885, it was held : Section 5, of Charter of City of Lyncliburg, grants authority to impose a license tax upon persons engaged in cer- tain enumerative callings, and upon any other person or employ- ment which it may deem proper; whether such person or employment be herein specially enumerated or not does not empower the city to impose such a tax upon a railroad corpora- tion, which is neither a person nor an employment, within the ordinary acceptation of those words. SECTION 6. In the case of Parramore vs. Taylor, 11 Grat., 220, decided April 1854, it was held : In construing the Code the rule of con- struction is that the old law was not intended to be altered, un- less such intention plainly appears. In the case of Crawford vs. Hoisted dk Putnam, 20 Grat., 211, decided January 9, 1871, it was held : A deposition of a party to be read in a pending cause at law was commenced be- fore the passage of the act of March 2, 1866 (Session Acts 1865-'66, p. 86), which required that parties should testify ore tenus, but it was not completed until that law went into effect. The deposition is inadmissible as evidence if objected to. In- choate rights derived under a statute are lost by a repeal of the statute before they are perfected, unless they are saved by ex- press words in the repealing statute. The act, ch. 16, sec. 18, of the Code, edition 1860, does not save the right to a party to a suit to give evidence by his depo- sition where the taking of it was commenced before the passage of act of March 2, 1866, but it was not completed until that act was passed. The reference to 20 Grat., 223, is to the case above cited from page 211. In the case of Powers & Kellogg vs. Tazewells, 25 Grat., 786, decided February 4, 1875, it was held : Though the act of April 18, 1874, repealed the act of April 1 1873, the repeal could not defeat the interest in oyster-beds which had already vested, and on which the tax was paid before the repealing act was passed, though the beds were not staked off till after its passage. The reference to 25 Grat., 793, is to the case above cited from pase 786. In the case of Pierce 's Etfors et als vs. Harrison's Ex'ors et als., 31 Grat., 114, decided November 28, 1878, it was held (p. 120) : By the terms, " right accrued or claim arising," could hardly have been intended rights and interests so vested as to be beyond legislative interference, for as to these no saving was necessary; but such rights and claims must have been intended as might be affected by ordinary legislation. If, therefore, as CITATIONS TO THE CODE OF VIKGINIA. 17 contended, the rights of creditors of a decedent to payment of their debts in the order prescribed by the statute are not vested rights, they are, we think, within the rule of construction pro- vided by the statute. In the case of Whites Adrn'r. vs. Freeman, 79 Va., 597, de- cided December 4, 1884, it was held : If, by a new law repeal- ing a former law, any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, with the consent of the parties affected, be applied to any judg- ment pronounced after the new law takes effect, this applies to forfeitures in civil as well as criminal cases. In the case of Ryan vs. The Commonwealth, 80 Va., 385, de- cided April 2, 1885, it was held : Unless a statute, by its lan- guage, expressly or by necessary implication, demands such construction, it will not be construed as repealing a previous statute, or as being retrospective. SECTION 7. In the case of Booth vs. Commonwealth, 16 Grat., 519, de- cided April 10, 1861, it was held: An act repealing a provision of the common law is itself repealed, the common law provision is revived, this section applies to statutes not to the common law. The reference to 16 Grat., 529, is to the same case above cited from page 519. In the case of Insurance Company of the Valley of Virginia vs. Barley s Adm'r., 16 Grat., 363, decided February 18, 1863, it was held : When a statute changing the common law is repealed, the common law is restored to its former state. In the case of Crawford vs. Hoisted & Putnam, 20 Grat., 211, decided January, 1871, it was held: A deposition of a party, to be read in a pending cause at law, was commenced before the passage of the act of March 2, 1866, Session Acts, 1865-'66, p. 86, which required that parties should testify ore tenus, but it was not completed until that law went into effect. The deposi- tion is inadmissible as evidence, if objected to. Inchoate rights derived under a statute are lost by repeal of the statute before they are perfected, unless they are saved by express words in the repealing of the statute. TITLE III. CHAPTEK III. SECTION 13, PAR. 8. In the case of Jlendricks vs. Commonwealth, 75 Va., 934, de- cided March, 1882, it was held, page 941 : The effect of this 2 18 CITATIONS TO THE CODE OF VIRGINIA. article is to give the State of Virginia concurrent jurisdiction with the State of Maryland, over the Potomac River from shore to shore, and over that part of the Potomac Eiver which is with- in the limits of Virginia, to enact such laws with the consent and approval of Maryland as may be deemed necessary and proper for the preservation of fish in said waters. The power of the State to enact such laws carries with it the judicial power to enforce them. CHAPTEB IV. CHAPTEE V. TITLE IV. CHAPTEK VI. SECTION 43. The cases cited from 2 Hand., 206-276, and 28 Grat., 69, are in construction of the acts previously in force, and have no re- lation to this act. SECTION 49. In the case of Me Pher 'son vs. Commonwealth, 28 Grat., 939, decided May 1, 1877, it was held: A woman whose father was white, and whose mother's father was white, and whose great- grandmother was of brown complexion, is not a negro in the sense of the statute. In the case of Greenkow et als. vs. James's executor, 80 Va., 636, decided April 16, 1885, it was held : Code 1873 ch. 119, sections six and seven, providing, "that if a man had offspring by a woman, shall afterwards intermarry with her, such offspring if Becognized by him before or after the marriage, shall be deemed legitimate," and that the issue of marriage, deemed null in law, or dissolved by a court, shall nevertheless be legitimate, does not apply to and legitimate the offspring of a co-habitation in this State between a white person and a negro, when the parents have subsequently between them celebrated a ceremony of mar- riage, outside of this State, in some place where marriage between such persons is lawful. In the case of Scott vs. Paul, 88 Va., 721, decided January 28, 1892, it was held : This section applies to free negroes, not to slaves. TITLE V. CHAPTEK VII. CITATIONS TO THE CODE OF VIRGINIA. 19 CHAPTER VIII. SECTION 83. In the case of Coleman vs. Sands, 87 Va., 689, decided April 30, 1891, it was held : "Where under this section, a voter appeals from refusal of registrar to register him, the answer of registrar that voter did not offer to qualify as to his right to vote, and that he is not entitled to vote, held : No defence to application ior mandamus to compel registrar to transmit to the court the ground relied on by appellant, and the reasons of the refusal. SECTION 84. In the case of Clay vs. Bollard, 87 Va., 787, decided May 5, 1891, it was held : This section provides that those books be open at all times to public inspection, was intended as a safe- guard against fraud, and must be liberally construed. CHAPTER IX. CHAPTER X. SECTION 117. In the case of McDougal vs. Guigon (Judge), 27 Grat., 133, decided February 3, 1876, it was held : The county and corpo- ration courts have authority to remove a judge of elections for malfeasance in office or gross neglect of duty, though he has not been convicted by the verdict of the jury of any offence. CHAPTER XL SECTION 160. In the case of West vs. Fergueson et als., 16 Grat., 270, de- cided April 23, 1861, it was held : In cases of contested elec- tions before the county court, the court has no authority to give a judgment for costs to either party. If in such case the Bounty court does give a judgment for costs to either party, a writ of prohibition from a circuit court is a proper proceeding to arrest the judgment. In the case of Ellyson et als., ex parte, 20 Grat., 10, decided November, 1870, it was held: Under section 69 of the act to provide for general elections, Session Acts 1870, page 97, the county and corporation courts have authority to vacate an elec- tion. Though a person voted for has received the return and has qualified and entered upon the discharge of the duties of the office, the court may vacate the election and direct another election to be held. In the case of Nelms vs. Vaughan, 84 Va., 696, decided April 20 CITATIONS TO THE CODE OF VIEGINIA. 5, 1888, it was held : "Writ of prohibition will be issued to re- strain inferior court from exceeding its jurisdiction, but will never be allowed to usurp place of writ of error, especially where the law provides that no writ of error shall lie. The provisions of the statute providing that county elections shall be subject to inquiry by county courts on petition of fifteen qualified voters, to which two shall take and subscribe an oath, are as to form merely directory, as it is not intimated that they must be complied with ; else all will be vitiated, or no farther proceedings can be had. In the case of Richardson vs. Farrar, 88 Va., 760, decided February 11, 1892: This statute commands that returns of county elections be, upon complaint of fifteen or more voters of undue election and false return, and counter-complaint if any be filed, subject to the inquiry, determination and judgment of the county court, which shall proceed, without a jury, and on the testimony, to decide the same upon the merits according to the Constitution and the laws. In such a contest the quashing and dismissal of a joint-complaint of undue election and false return against three at the same election on the^ground of mis- joinder of defendants, is error, because the statute does not limit the contest to one, and mandamus lies to compel the court to proceed to hear and determine the contest. TITLE VI. CHAPTER XII. SECTION 162. In the case of Royal vs. Thomas, 28 Grat., 130, decidedTeb- ruary 1, 1877, it was held: Under the Constitution and Statute ^"P 1 ??' a party who has aided and assisted in a duel fought with deadly weapons may be removed from office by a proceed- ing by quo warranto, or, if that writ be not in use, by informa- on in the nature of a quo warranto, though he has not been coir ted of the offence in any criminal prosecution against SECTION 163. ./V^V aSe f , ^^ vs " Willis (Judge), 27 Grat. 144 de- cided February 10, 1876, it was held The office of sheriff com- e " an office CITATIONS TO THE CODE OF VIEGINIA. 21 vacates his election as sheriff, and is not entitled to qualify as such. The reference to 27 Grat., 152, is, to the case above cited, from page 144. SECTION 165. In the case of The Commonwealth vs. Fugate, 2 Leigh, 786, decided June, 1830, a justice of the peace is convicted of the felony of malicious stabbing, sentenced to the penitentiary, con- fined there and then pardoned, held : The conviction and judg- ment for this felony was a forfeiture of his ofiice of justice, and incapacitated him from afterwards acting under his commission ; and the pardon neither avoided the forfeiture, nor restored his capacity. SECTION 167. The reference to 22 Grat., 130, is an error. TITLE VII. CHAPTEE XIII. SECTION 168. In the case of Owens vs. O'Brien et als, 78 Va., 116, decided December 6, 1883, it was held : School trustees are required to take and subscribe the oath of office as a condition precedent to entering on the discharge of their official duties, and their failure to take it within the prescribed time vacates their trustee- ship. If the city council fails to act within the time prescribed, it becomes the duty of the board of education' to appoint, and such appointees constitute the lawful trustees of the city. In the case of Branham vs. Long, 78 Va., 352, decided Janu- ary 24, 1884, it was held : Under the Constitution and laws of this State, county, municipal, and district officers must qualify by taking the several oaths required by law before the day whereon their terms respectively begin, else their offices are va- cant, and the incumbents continue to discharge the duties of the offices after their terms of office have expired until their suc- cessors have qualified. SECTION 177. In the case of Calwell vs. Commonwealth, 17 Grat., 391, de- cided April 17, 1867, it was held : Upon the qualification of a sheriff, the record of the county court after reciting his election states : " That he appeared in court and took the several oaths prescribed by law, and entered into and acknowledged a bond in the penalty of sixty thousand dollars with (naming ten persons) his sureties, conditioned, etc. In the absence of fraud, the re- 22 CITATIONS TO THE CODE OF VIRGINIA. cord is conclusive that the bond was properly executed by the parties whose names are to it." Upon issue on the plea of non est factum by C., one of the parties to such bond, proof that his name is not in his hand- writing, but in that of H., another party; that C. was not at the court-house the day the bond was taken, but was at his home ten miles off; that on the day before the bond was taken he asked H. who would sign it, and being told that D. with others would sign it, he told H. if D. signed it, H. might sign it for him, but D. did not sign it, is not sufficient to outweigh the record and sustain the defence. In the case of Barnum vs. Frost, 17 Grat., 398, decided April 30, 1867, it was held (p. 422) : The condition of the guar- dian's bond is to pay and deliver to the ward her estate, when thereto required by the justices. A creditor for necessaries furnished to the ward may be substituted to the rights of the ward, upon the bond, against the guardian and his sureties, for the payment of her debt. In the case of Davis Adrn'r. vs. Snead et als., 33 Grat., 705, decided October 14, 1880, it was held (p. 710) : Under this sec- tion a receiver's bond may, and ought to be made payable to the Commonwealth. In the case of Acker vs. A. & F. Railroad Co., 84 Va., 648, decided March 22, 1888, it was held : Supersedeas bond made payable to the Commonwealth is sufficient. Bond reciting the judgment as that of " the Circuit Court of Alexandria," omitting the words, " the city of," is not vitiated by such omission. ^ A bond not containing a waiver of homestead may be insuffi- cient, and may be made sufficient at any time on the motion of the defendant in error, but is not in itself a void bond. SECTION 179. In the case of Sayers vs. Cassell, 23 Grat., 525, decided June, L873, it was held , A guardian of an infant having, when ap- pointed, given a bond with sureties afterwards without a rule upon him or order of court requiring it, comes into the court and gives another bond with other sureties. The last bond is valid and relates back to his appointment as guardian; and the sureties in the first bond are discharged ; and are not necessary >r proper parties to a bill by the ward against the guardian and his sureties for the settlement of his accounts. rhe reference to 32 Grat., 274-'75, is to the case of Campbell vs. bmitfi, in which this section is not construed, but rules the decision. SECTION 180. In the case of Sangster et als. vs. Commonwealth, 17 Grat., 124, CITATIONS TO THE CODE OF VIRGINIA. 23 decided October 29, 1866, it was held: A sheriff who takes the property of A. under an attachment against the property of B., thereby not only commits a trespass, but plainly violates the duty of his office, and breaks the condition of his official bond, and his sureties are liable for his act. Other actions may be maintained on an official bond, though in a previous action judgment has been rendered for the penalty, to be discharged by the payment of the sum assessed in that action, and of such further sums as might be afterwards assessed or be found due, upon scire facias assigning a further breach. In an action on an official bond, the judgment is not entered for the penalty to be discharged, &c., but for the sum assessed or agreed as the damages in the case. "When this is by agree- ment it is no error ; and in any case it is a mere informality in the entry of the judgment by the clerk, and is not ground for stay- ing or reversing the judgment. The reference to 17 Grat., 136, is to the same case above cited from page 124. SECTION 181. In the case of Acker vs. A. & F. Railroad Co., 84 Va., 648, decided March 22, 1888, it was held: Supersedeas bond made payable to the Commonwealth is sufficient. Bond reciting the judgment as that of the " Circuit Court of Alexandria," omitting the words " the city of," is not vitiated by such omission. A bond not containing " a waiver of homestead " may be in- sufficient, and may be made sufficient at any time on motion of the defendant in error, but it is not a void bond. TITLE VIII. In the case of Loving et als. vs. Auditor of Public Accounts, 76 Va., 942, decided December 19, 1882. 1. Public Officers Compensation. For reasons of public polity, the powers of the legislature to change the compensation of public officers is absolute, except so far as it may be limited by the fundamental law. Such limitation is found in the Con- stitution of this State as respects the salaries of certain enume- rated officers. 2. Idem. Idem. Sureties. This applies also to sureties on official bonds of public officers. There being no contract be- tween the State and its officer that during his term his compen- sation shall not be changed, and the power to change it being absolute, the sureties must be held to have signed the bonds of 24 CITATIONS TO THE CODE OF VIRGINIA. the principal with reference to the existence of this power, and their liability thereon is not affected by such change. 3 Construction of Statute Countersigning drafts the provisions of Code 1873, ch. 206, 58, the legislature in- tended all drafts drawn by the general agent of the penitentiary to be certified by the superintendent and countersigned by the governor, the failure to certify and to countersign these drafts does not affect the liability of his sureties for money so drawn and received by him. These provisions are merely directory t such officers, and form no part of the contract with the sure- ties. 4. General Agent. Material furnished. Where the general agent of the penitentiary bought raw material for the State, and gave therefor his notes signed by himself with the letters G- A. (meaning general agent) appearing, but the State assumed the liability and paid the notes, the general agent and his sureties are entitled to no credit therefor, as for material purchased on his individual responsibility. 5. Idem. Sureties. Credits for compensation. The legisla- ture having reduced the general agent's compensation, he and his sureties are entitled to credit for the reduced compensation, and not for the compensation at the rates allowed by the law in force at the dates of the official bonds. But as by act, which became law first July, 1878, the legislature restored the com- pensation as allowed' by Code 1873, ch. 13, 23, credit must be allowed after that day at the original rates. 6. Idem. Idem. Liability. Code 1873, ch. 206, 57, pro- vides that the general agent and his sureties shall be responsible for the amount of all debts for goods or work contracted with him or under his authority, and for all money received by him as such agent, except as therein provided. There is no law making it a part of his duty to collect debts contracted with his predecessors, and moneys so collected are not covered by his bond, and not chargeable to his sureties. 7. Idem. Idem. Outside receipts. Where money went into the agent's hands outside of his lawful duties, the sureties are not chargeable with the same, e. g., contributions to build a chapel for convicts. 8. Idem. Idem. Eeceipts in excess of appropriations. The Constitution (Art. X., 10) declares that no money shall be paid out of the treasury except in pursuance of appropriations by law. Where the general agent received twelve thousand five hundred dollars pursuant to appropriations made before or after receipts, and five thousand dollars in excess of appropriations, the sureties are liable for the first, but not for the last sum. In the case of Holladay (Judge] vs. The Auditor, 77 Va., 425, decided April 26, 1883, it was held : It has been decided by this CITATIONS TO THE CODE OF VIKGINIA. 25 court (Loving et als. vs. The Auditor, 76 Va. Rep., 942) that the services rendered by public officers do not partake of the nature of contracts, and have no affinity thereto. In the case of Frazier vs. Virginia Military Institute, 81 Va., 59, decided October 8, 1885, it was held, p. 62 : Appointment to office is not a contract, and vests no rights in the appointee to the salary or emoluments thereto attached. CHAPTER 14. SECTION 183, PART 2. In the case of Tfion vs. The Commonwealth, 77 Va., 289, de- cided March 15, 1883, it was held : Act approved March 12, 1878, Acts 1877-78, ch. 183, sec. 2, p. 174, providing that the attorney-general shall receive a salary of $2,500 annually for his services, and shall not be entitled to any further compensation therefor, refers to salaries payable out of the State treasury, and not to fees taxed in the costs as fees of attorneys on the win- ning side in any case. The laws requiring such fees to be taxed for the Commonwealth have never been repealed or amended, and the losing suitor has them to pay, whether they go into the State treasury or to the attorney-general. But the laws requiring such fees to be taxed in the costs and paid to said attorney are also unrepealed. In the case of Blair (Attorney -General) vs. Marye (Auditor), 80 Va., 485, decided May 7, 1885, it was held : By Section 8, Article 6, State Constitution, the election and commissioning of an attorney-general is provided for, and it is directed that he shall perform such duties and receive such compensation as the law may prescribe. It is not within the power of the legislature itself to withhold from him the salary which is prescribed by law, nor to delegate such power to the auditor. The salary of the attorney-general is of constitutional grant and of public offi- cial right, and the doctrine of offset cannot be applied to it. It is not liable to attachment, to garnishment, nor to assignment in bankruptcy, and upon principles of public policy it has absolute immunity from detention for debt or counter claims. The act of Assembly passed November 24, 1884, Acts 1884, p. 90, requiring the auditor to withhold the salary of any officer who is indebted to the State for money collected by him, or im- properly drawn by him, during his term of office, until the de- fault is made good, is unconstitutional and void so far as it affects constitutional officers. The officer's remedy for the withholding of the salary attached to his office is by mandamus. In the case of Commonwealth vs. Field, 84 Va., 26, decided November 17, 1887, it was held : The attorney-general is enti- tled to be paid out of the public treasury, his salary and no- 26 CITATIONS TO THE CODE OF VIRGINIA. thing more. The Commonwealth may recover by an action from the attorney-general fees paid him by the auditor under mistake that he was entitled thereto as part of his compensa- tion. SECTION 185, PART 3. In the case of Holladay (Judge) vs. The Auditor, 77 Va., 425,. decided April 26, 1883, it was held : In the sense of the acts approved April 7, 1870, May 18, 1870, and April 1, 1873, that court is a "city court." The last, providing that the judges of the city and corporation courts of this Commonwealth shall be paid out of the treasury of their respective corporations, is con- stitutional, has not been repealed, and applies to the judge of the Chancery Court of the city of Richmond, no part of whose salary is payable out of the State treasury. SECTION 192. In the case of Blair (Attorney -General) vs. Marye (Auditor), 80' Va., 485, decided May 7, 1885, it was held : By Section 8, Article 6, State Constitution, the election and commissioning of an at- torney-general is provided for, and it is directed that he shall perform such duties and receive such compensation as the law may prescribe. It is not within the power of the legislature itself to withhold from him the salary which is prescribed by law, nor to delegate such power to the auditor. The salary of the attorney -general is of constitutional grant, and of public official right, and the doctrine of offset cannot be applied to it. It is not liable to attachment, to garnishment, nor to assignment in bankruptcy, and upon principles of public policy, it has absolute immunity from detention for debt or counter claims. The act of assembly passed November 24, 1884, Acts 1884,. page 90, requiring the auditor to withhold the salary of any officer who is indebted to the State for money collected by him, or improperly drawn by him during his term of office, until the default is made good, is unconstitutional and void, so far as it affects constitutional officers. The officer's remedy for the with- holding of the salary attached to his office is by mandamus. TITLE IX. CHAPTER XV. SECTION 207. In the case of Wolfe et als. vs. McCautt (clerk), &c., 76 Va.,. 876 and 891, the legislature passed a bill, and presented it to- the governor under the Constitution, Art. 4, Sec. 8 ; but before CITATIONS TO THE CODE OF VIRGINIA. 27 he acted it was recalled by a joint resolution. He returned it without approval or disapproval. Held : The legislature had no power to recall the bill. The governor cannot return a bill except with his veto and objections. In this case his return of the bill was illegal, and it not having been vetoed, became a law. Under Code, 1873, Chapter 14, Section 14, it was the duty of the keeper of the rolls to have this bill thus become a law r printed and published with the other acts of the General As- sembly; and also, upon request, to furnish the incorporators with a copy thereof, properly certified. The keeper of the rolls failing to perform this duty, man- damus is the only appropriate remedy, and this court hath jurisdiction to award that writ in such case. TITLE X. CHAPTEB XVI. CHAPTEE XVII. CHAPTEK XVIII. CHAPTER XIX. CHAPTER XX. TITLE XL CHAPTER XXI. TITLE XII. CHAPTER XXII. SECTION 399. In the case of Greenhow (Treasurer) vs. Vashon, 81 Va., 336, decided January 14, 1886, it was held: Section 2 of act of Assembly, approved March 15, 1884, providing for a separate assessment of taxes for the support of the public free schools, and Section 113, of the same act, providing that such taxes shall be paid and collected only in lawful money of the United States, are not repugnant to Section 8 of Article 8 of the State's Consti- tution, but were enacted in obedience to its positive mandate ; and such taxes cannot be paid in the State's tax-receivable coupons. See Section 406. 28 CITATIONS TO THE CODE OF VIBGINIA. SECTION 402. In the case of Commonwealth vs. Maury, 82 Va., 883, decided February 10, 1887, it was held: This section is not repugnant to the United States and the State Constitutions wherein they forbid the passage of laws impairing the obligation of contracts. This case is cited as from 11 Va. Law Journal. SECTION 406. The reference to Antonio. Wright (Sheriff], 22 Grat., 833, is not available here. In the case of Wise, Bro., <&c. (Agents] vs. Rogers (Second Auditor]; Maury <& Co. vs. Rogers (Second Auditor], 24 Grat., 169, decided November, 1873, it was held: The act of March 7, 1872, which repeals the act of March 30, 1871, so far as it au- thorizes the issue of coupon bonds with coupons attached, re- ceivable for taxes and other dues of the State, is constitutional so far as it applies to bonds not presented to the Second Auditor before the passage of the repealing act. The reference to 24 Grat., 171, is to the case above cited from page 169. In the case of Clarke vs. Tyler (Sergeant], 30 Grat., 134, de- cided April 4, 1878, it was held : Fines imposed for a violation of law are embraced in the act of 1871, known as the Funding Act, and a person upon whom such a fine is imposed may dis- charge it by the over-due coupons taken from the bonds men- tioned in said act. In the case of Williamson vs. Massey (Auditor], 33 Grat., 237, decided April 29. 1880, it was held : The over-due coupons upon bonds issued under the act of March 28, 1879, are receivable for all taxes levied by the State, including the capitation tax, and the auditor is bound to receive them when offered in pay- ment of taxes returned delinquent to his office. In the case of Lee vs. Harlow, Va. Eeports, 75, 22, decided November 14, 1881, Lee, holding coupon bond issued under the act of March, 1871, after the passage of the acts of March 7 and March 19, 1872, received from the auditor of the State two- thirds of the interest due thereon, which payment was stamped upon the coupons. In 1880 he offered to the collector of the State taxes the said coupons for one-third unpaid thereon, in payment of taxes due from him to the State, held: Lee is enti- tled to pay his taxes due tlie State in the unpaid one-third of said coupons. In the case of The Board of Public Works et als. vs. Gannt et^ als., 76 Va., 455. 1. Sovereignty. It is an established prin- ciple that a sovereign can not be sued in its own courts, or in any other without its permission. This principle applies to States of the Union (except as to controversies between two or more CITATIONS TO THE CODE OF YIEGINIA. 29 States. United States Constitution, Art. 3. Sec. 2, Clause 1), as well as to the United States Government. And it may at any time revoke such permission, even as to antecede contracts, without impairing the obligation thereof. See 11 Otto, 338. Even when judgment is rendered she may determine for her- self whether she will pay it or not. Though in form the suit be against officers or agents of the State, yet if in effect, it be. against the State itself, this principle applies. Idem. Case at bar. In February, 1881, the Board of Pub- lic Works of Virginia sold State's interest in Atlanta, Missis- sippi and Ohio Railroad for five hundred thousand dollars. In February, 1892, legislature ratified the sale by act of March 5, 1882. One hundred thousand dollars thereof was appropriated to Normal and Collegiate Institute by act of April 21, 1882 ; the Board of Public Works was directed to pay this five hundred thousand dollars when received into the public treasury. One hundred thousand dollars thereof to the State Board of Education for the benefit of said institute, and the remainder, four hundred thousand dollars, to the credit of the public school fund, subject to the draft of the State Board of Education. In June, 1882, G. and E. tiled their bills in the Circuit Court of Richmond, representing themselves to be creditors of the State, and as such, to be entitled to have the said funds paid into the public treasury to the credit of the sinking fund. In conformity with the act of March 30, 1871, known as the Funding Bill, they claim that the acts of 1882, appropriating said funds to educa- tional purposes, are unconstitutional and void, as being in vio- lation of the contract made with the public creditors by said Funding Bill ; and prayed that the Board of Education be re- strained from taking possession of said funds, and that the com- missioners of the sinking fund be decreed to take charge there- of, and to purchase therewith bonds issued under said Funding Bill. The persons composing the Board of Education, the Board of Public Works, the Board of Commissioners of the sinking fund, and the Board of Visitors of Virginia Normal Institute, as such and individually, and others were made defendants, but no reply was asked against them individually, and they had no personal interest in the question. In the case of Commonwealth vs. II. M. Smith, Jr., 76 Va., 477. Idem. A tax-payer tendered coupon detached from bond issued under Funding Bill of 1879, in payment of his taxes to the collector, who refused to receive it. Held : The refusal was not justifiable under the act of January 14, 1882, and the tax- payer was entitled to a mandamus to compel the collector to re- ceive the coupon. In the case of Commonwealth vs. Guggenheimer, 78 Va., 71, 30 CITATIONS TO THE CODE OF VIRGINIA. decided November 29, 1883, it was held : This applies not to coupons detached from bonds issued under Funding Bill of 1879, but only to coupons detached from bonds issued under Funding Bill of 1871. In the case of Taylor (Acting Treasurer] vs. Williams, 1 7 8 Va., 422, decided February 21, 1884, W. petitioned the Hustings Court of Richmond to verify certain coupons, amounting to $249, tendered by him in payment of his license tax under the statute. The jury found the coupons genuine, and judgment was entered that the facts be certified to the treasurer, and that he refund to W. the money paid by him for his taxes. The treasurer discovered that the coupons presented to him did not correspond with those for which the judgment had been ren- dered, and refused payment. W. then obtained from said court a mandamus to compel the treasurer to pay. The latter moved to quash the writ for irregularities on its face, demurred, and answered, objecting to the proceedings ; but the court awarded a peremptory mandamus, to which respondent excepted, and obtained a writ of error. Held : The Circuit Court of Rich- mond city alone hath jurisdiction in suits against State officers, including the treasurer. The proceedings should have been quashed on the treasurer's motion. In the case of Brown, Davis cfe Co. vs. Greenhow (Treasurer), 80 Va., 118, decided January 29, 1885, it was held: Assumpsit against collecting officer is the proper remedy of a tax-payer to recover money paid by him for taxes, after collector's refusal to accept coupons tendered in payment thereof, under act ap- proved January 26, 1882. In the declaration to special claims alleging the tender of tax receivable coupons to pay the tax, and the defendants refusal to accept the coupons,, and the latter's proceeding to collect the tax in money when payment thereof was made under pro- test, the common counts for money had and received, etc., may be added. The action under this statute is in form against the collector, but being to recover a demand growing out of his acts done colore ojfidi is substantially against the Commonwealth, and the judgment is likewise. In the case of Dnnnington vs. ford, 80 Va., 177, decided February 5, 1885, it was held: The State can only be sued by its consent. When a remedy by suit against the State, or any of its officials is provided, those seeking to avail of its benefits must follow its provisions with exact strictness. Under act of January 26, 1882, amended March 13, 1884, page )27 the suit is required to be commenced by a petition to be d at rules, upon which a summons shall be issued to the col- !tmg officer and regularly matured like any other action at CITATIONS TO THE CODE OF VIRGINIA. 31 law, and the coupons tendered shall be filed with the petition. A suit brought in any other way is unlawfully instituted, and must be dismissed. In the case of Greenhow (Treasurer] vs. Vashon, 81 Va., 336, decided January 14, 1886, it was held :. Section 2 of act of As- sembly, approved March 15, 1884, providing for a separate as- sessment of taxes for the support of the public free schools, and. Section 113 of the same act, providing that such taxes shall be paid and collected in lawful money of the United States only, are not repugnant to Section 8 of Article 8 of the State Constitution, but were enacted in obedience to its positive mandate ; and such taxes cannot be paid in the State's tax-receivable coupons. SECTION 408. In the case of Brown, Davis & Co. vs. Greenhow (Treasurer), 80 Va., 118, decided January 29, 1885, it was held: Assumpsit against collecting officer is the proper remedy of a tax-payer to recover money paid by him for taxes, after collector's refusal to collect coupons tendered in payment thereof, under act approved January 26, 1882. In the declaration to special claims alleging the tender of tax-receivable coupons to pay the tax, and the defendants re- fusal to accept the coupons, and the latter's proceeding to col- lect the tax in money when payment thereof was made under protest, the common counts for money had and received, etc., may be added. The action under this statute is in form against the collector, but being to recover a demand growing out of his acts done colore ojficii is substantially against the Commonwealth, and the judgment is likewise. In the case of Dunnington vs. Ford, 80 Va., 177, decided February 5, 1885, it was held : The State can only be sued by its consent. When a remedy by suit against the State, or any of its officials is provided, those seeking to avail of its benefits must follow its provisions with exact strictness. Under act of January 26, 1882, amended March 13, 1884, page 527, the suit is required to be commenced by a petition to be filed at rules, upon which a summons shall be issued to the collecting officer and regularly matured like any other action at law, and the coupons tendered shall be filed with the petition. A suit brought in any other way is unlawfully instituted, and must be dismissed. In the case of Vashon vs. Greenhow, 135 U. S. S. C. Keports, 664, decided October, 1889, it was held : The statute of Vir- ginia requiring the school tax to be paid in lawful money of the United States was valid, notwithstanding the provision of the act of 1871, and was not repugnant to the Constitution of the United States. 32 CITATIONS TO THE CODE OF VIRGINIA. SECTION 409. For reference to 78 Va. 71, see ante section 406. SECTION 410. In the case of Mattan Bros. vs. Bransford (Treasurer), 86 Va., 675, decided March 20, 1890, it was held : Where tax-payers, tinder protest, pay taxes to tax collector, who, under this sec- tion, pays the money over into the treasury, an action of assumpsit for money had and received will not lie to recover the money. SECTION 411. See Mallan Bros. vs. Bransford (Treasurer), 86 Va., 675, cited supra, Section 410.. SECTION 412. In the case of Commonwealth vs. Wetter, 82 Va., 721, decided January 11, 1887, it was held : This section is not repugnant to Art. 1, Sec. 10, United States Constitution. This is the case re- ferred to in 11 Va. Law Journal, 166. The case of Cornwall vs. Commonwealth, 82 Va., 644, and 11 Va. Law Journal, 90, decided December 9, 1886, affirms aud follows the case of Commonwealth vs. Wetter, above cited. In the case of Newton vs. Commonwealth, 82 Va., 647, de- cided December 9, 1886, it was held : It is the province of the law-making power of the State to prescribe rules of evidence to govern the procedure in her own courts. The United States Constitution has no application to the subject. This is the same case referred to in 11 Va. Law Journal, 93. In the case of Commonwealth vs. Hurt, 85 Va., 918, decided March 21, 1889, it was held : When a paper, purporting to be a coupon cut from a State bond, is offered in evidence, the burden of proof is on the party offering it. The contestant of its gen- uineness may demand the production of the bond as a condition precedent to his right to recover, and the question may be raised without plea of non est factum. In the case of The Commonwealth vs. Ford (Trustee), 89 Va., 427, decided December 1, 1892, it was held : The Code, Section 412, so far as it requires the production into court of the State bonds, does not apply where bonds have been surrendered to the Commonwealth under the refunding act of February 20 y 1892. In the case of Commonvwalth vs. Dunlop, 89 Va., 431, de- cided December 1, 1892, it was held : Under the Code, Section 412, the burden of disproving the genuineness of the bonds of the State is upon the Commonwealth. When the sovereign consents to be sued, the terms and conditions upon which con- sent is given must be observed, and the tax-payer whose tender of coupons is refused, and who brings his suit, must, as required CITATIONS TO THE CODE OF VIRGINIA. 33 by those conditions, produce at the trial the bonds from which the coupons were cut. SECTION 414. In the case of Taylor (Acting Treasurer} vs. Williams, 78 Va., 422, decided February 21, 1884, it was held (p. 427) : The statute expressly confers the right of appeal to this court from all judgments in all proceedings of mandamus rendered in the inferior courts. In the case of Macintosh (Treasurer) vs. Braden et als., Dun- ington (Treasurer) vs. Hurt et als., The Commonwealth vs. Con- sani et als., 80 Va., 217, decided February 5, 1885, it was held : Act of March 12, 1884, is unconstitutional so far as it confers upon this court jurisdiction in all cases of coupons arising un- der act of January 14, 1882, without regard to the amount in controversy, being in conflict with Article 6 of the State Con- stitution, fixing minimum jurisdictional amount in cases purely pecuniary at $500. SECTION 418. In the case of Kendall Banknote Co. vs. Commissioners of the Sinking Fund, 79 Va., 563, decided November 20, 1884, it was held : When a State board is authorized to cause the execu- tion of a work, and makes a contract therefor, such contract is binding on the State. The rights of contracting parties under it are the same as in other cases of the like kind, and the measure of damages for the breach of such contract is regulated by the settled rule on the subject, viz., that the plaintiff should have a fair compensation for all labor done, materials fiirnished, and expenses incurred, together with such profits as he was likely to have realized as the direct and immediate fruit of the contract had it been fulfilled. SECTION 434. In the case of Arents vs. The Commonwealth, 18 Grat., 750, decided April, 1868, it was held : Coupons stolen after the day when they had become due and payable, though afterwards come into the hands of a bona fide holder for value, cannot be held by him against the rightful owner. In the case of Branch vs. Commissioners of Sinking Fund, 80 Va., 427, decided April 9, 1885, note, payable to bearer, has been delivered, stolen from the owner, and come to bona fide holder for value. Latter may recover on it against the maker, Secus, where the note has not been delivered, or, if delivered, has been returned to maker, and stolen from him. Two coupon bonds issued by the State of Virginia, payable to bearer, are redeemed by the State, and other bonds issued in their stead. Later the bonds were stolen from the State trea- sury, came into the hands of B., a bona fide holder for value 3 34 CITATIONS TO THE CODE OF VIRGINIA. without notice of the theft, and by B. were presented to the Commissioners of the Sinking Fund, to be funded into other bonds of the State. The commissioners refused, on the ground that the bonds had been stolen from the State treasury. B. ap- plied for a mandamus. Held : Mandamus denied. TITLE XIII. CHAPTEE XXIII. CHAPTEE XXIV. SECTION 457. In the case of City of Petersburg vs. Petersburg Benevolent Mechanics Association, 78 Va., 431, decided February 28, 1884, it was held : This section, exempting from taxation property owned by benevolent associations, is valid under Article 10, Sec- tion 3, of the State Constitution. The power of the legislature to exempt from taxation is absolute, but taxation is the rule, ex- emption the exception, and the intent of the legislature must be clear. The grant of power to exempt from taxation all property used for benevolent purposes, carries with it the power to exempt property, the proceeds whereof are used for benevolent purposes. Where the revenues of an association are applied wholly to paying its current expenses, the assistance of its indigent mem- bers, and the families of such as have died in need ; these are charitable purposes, and it is not essential that they shall be uni- versal. This section is intended to include for taxation pro- perty of such associations used for any private purpose, or for profit, "and to exempt such property to the extent its proceeds are used for charitable purposes." In the case of Black vs. Sherwood, 84 Va., 906, decided May 10, 1888, it was held : A lot in the city of Norfolk, owned and used by the county of Elizabeth City and city of Portsmouth as a landing for a ferry maintained by them, is exempt from taxation. SECTION 472 The reference to 28 Grat., 129, is an error. This section is referred to in them, but it has no influence on the decision, nor is it construed by the decision. SECTION 485. The reference to 29 Grat., 129, is an error. This section is there referred to in a mere obiter dictum, it has no effect on the decision, nor does the decision construe the statute. CITATIONS TO THE COD.E or VIRGINIA. 35 SECTION 489. In the case of State Bank of Virginia vs. City of Richmond, 79 Va., 113, decided May 7, 1884, it was held : The capital stock and shares of the capital stock are distinct things. Both may be taxed, and it is not double taxation. When ordinance directs assessment of tax " on all personal property, money and credits, including all capital stock," etc., the valuation of the personal property of a bank is rightly ascer- tained by adding to the paid-up capital the demand notes of the stockholders given for unpaid-up capital stock, drawing interest, and held by the bank. Domicil of holder of evidence of debt is the situs of the debt for taxation purposes. Notes held by a bank located in a city are taxable by said city, wherever the makers may reside, whether in or out of the city, or in or out of the State. Where tax has been lawfully assessed, and is not paid when due, of course the penalty imposed by the ordinance for non- payment of the tax may rightly be enforced. SECTION 534. In the case of ^Yhitlock vs. The Commonwealth, 89 Va., 337, decided September 22, 1892, it was held : It is immaterial that indictment charging a person with practicing as a physician without license failed to charge that he did so for compensation, under Code, Section 534. Where in such prosecution the court instructs the jury that the case is governed by Code, Section 574, and the jury assesses the fine at thirty dollars only, held: The instruction though erroneous does not prejudice the defendant. SECTION 535. In the case of Commonwealth vs. Jones, 82 Va., 789, decided January 20, 1887, it was held: This section is not repugnant to Article 1, Section 10, United States' Constitution. This is the case cited from 11 Va. Law Journal, 152. SECTION 555. In the case of Roche vs. Jones (Sergeant}, 87 Va., 484, decided March 5, 1891, it was held: This section held to apply only to State, and not to municipal licenses, which may be prescribed to expire June 30th instead of April 30th of each year. SECTION 574. In the case of /A//r/'* vs. The Commonwealth, 81 Va., 240, decided December 17, 1885. Skating rinks are not enumerated in the act of requiring license to be taken out for public per- formances or exhibitions, and unless they be conducted so as to 36 CITATIONS TO THE CODE OF VIRGINIA. be clearly shown that they are properly public performances or exhibitions, they cannot be brought within that act. Where accused kept a skating rink ordinarily visited by per- sons for the purpose of skating, and took out no license, except when he gave perfomance by professional skaters, and ordina- rily charged ten cents for admission, and ten cents more for iise of skates, and some visitors skated, whilst others did not. Held : The case does not clearly come within the statute requiring license. SECTION 579. In the case of Leighton vs. Maury, 76 Va., 865. The object of the statute, acts 1879-'80, p. 148, was to depart from the former laws on the subject of licenses to sell ardent spirits as construed by this court in Yeager's case, 11 Grat., 655, where it was held that the county courts had unlimited discretion on the subject, and that their decisions were not liable to review by any appellate tribunal. The present statute is mandatory, and the right of appeal to the circuit court absolute. The appeal is a transfer of the case to the circuit court, where it is heard de novo. 1. The statute says the county court " shall grant the license " if the applicant brings himself within the requirements, and that the circuit court "may grant the license." The words "may grant the license," mean the circuit shall have the juris- diction to do so, and must do so, if the applicant brings himself within the requirement, and they confer no arbitrary discretion, but a sound, judicial discretion, subject to review as in other cases provided by Code 1873, page 1136, Sections 2 and 3. 2. The word "may" is sometimes construed as mandatory and sometimes as permissive, as will best carry into effect the true intent and object of the legislature. 3. Idem. Idem. Case at bar. Circuit court certifies it is not " fully satisfied that the place is suitable for a bar-room and for retail of ardent spirits." The county court certified the same. The testimony is conflicting. It is contended, on the one hand, that the sale of ardent spirits at the proposed place will injure the large and precarious business of making charcoal iron in the vicinity, and so detriment the community. On the other hand, it is answered that "the legislature has adopted the system of licensed sales of liquor throughout the State," and that this policy ought not to be defeated by the personal objec- tions and private views of individuals, however extensive and important their interests and business may be. Held : 1. In deciding this question, all the circumstances, whether of a general or limited nature, may be taken into consideration. Lewis vs. Washington, 5 Grat., 275. 2. Though the primary object may have been to raise revenue, CITATIONS TO THE CODE or VIRGINIA. 37 this cannot be accomplished to the detriment of important in- dustrial enterprises. 3. Where the testimony conflicts, and in a doubtful case, the appellate tribunals will always lean in favor of the concurring judgments of the tribunals below. 4. A citizen is entitled to make himself a party to the pro- ceedings in the county and circuit courts, and oppose the grant- ing of the license ; and he can appear and defend in this court, and should be served with process upon appeal, writ of error, and supersedeas. 5. In such case such citizen renders himself liable to costs, and may recover costs as in other cases. 6. In the county court no costs were given; in the circuit court costs were refused to either party ; and, under all the cir- cumstances, the judgment of the county court ought to be affirmed without costs to either party. In the case of Ailstock vs. Page et als., 77 Va., 386, decided April 19, 1883. The purpose of the legislature in framing the act of March 3, 1880, was to require the county courts to grant a license to sell liquor to every applicant who brought his case within the requirements of the law. The purpose and effect of the change by the legislature, by its act of March 6, 1882, of the word "shall" to the word "may," was to conform the act of March 3, 1880, so amended, to the law in this respect, when the case of French vs. Noel, 22 Grat., 454, was decided, and to so leave it discretionary with, county courts to grant or refuse such licenses. This, however, is a sound legal discretion, subject to the appeal specifically allowed by the statute to the applicant. Before these acts of 1880 and 1882 there was from the deci- sions of county courts granting or refusing licenses to sell liquor under Yeager's Case, 11 Grat., 655, and French vs. Noel, supra, no appeal allowed either applicant or contestant. Those acts give to the applicant an appeal to the circuit court only. The failure to give the appeal to others must be construed as con- clusive evidence of a purpose to withhold the right of appeal from all but the applicant, and the contestant has no appeal whatever. So far as this court, in LeigJitons Case, reached a different conclusion on the question of the right of appeal from judgments of county courts on applications for licenses to sell liquor, its decision is overruled. A. applied to a county court of E. for license to sell by retail liquor at G. P. opposed. By the evidence the court was fully satisfied that A. brought this case within the requirements of the law, and granted the license. P. excepted. The court cer- tified the evidence. P. obtained from the circuit judge a writ of error and supersedeas. On petition of A. to this court for a 38 CITATIONS TO THE CODE OF VIRGINIA. writ of prohibition to the circuit court Held : The circuit court has no jurisdiction to award a writ of error and supersedeas in this case. The writ of prohibition must be awarded, so that the judgment of the county court will remain as if no writ of error and supersedeas had been awarded. In the case of Ex parte Lester, Ex parte Stone, Ex parte Wil- son, 77 Va., 663, decided September 20, 1883, act of March 6 r 1882, amending act of March 3, 1880, and substituting " may " for "shall" was not designed to remit applications to sell liquor to the court's arbitrary discretion. The words "may grant the license " mean the court must grant it in a proper case. Where statute declares a court may do a judicial act, the word "may" must be construed as mandatory when a proper occasion for doing the act arises. To applicant denied liquor license, by the act of March 6, 1882, there is given an appeal of right to the circuit court. Under Code 1873, ch. 178, section 2, he may, upon the bill of exceptions taken at the trial, apply to the circuit court for a writ of error and supersedeas. Of his two remedies he may resort to either, and if the circuit court also erroneously refuse the license; its decision is reviewable by the court upon appeal, or writ of error and supersedeas as in other cases. The applicant is a party directly in interest in the decision refusing the license, and comes within the letter, Code 1873, ch. 178, section 2. Not so with contestant. Ex parte Yeager, 11 Grat., 655, was founded on the law of 1849, which gave county courts arbitrary discretion as to liquor licenses; French vs. Noel, 22 Grat., 454, on law of 1870, was based on the same ground; Leighton vs. Maury, 76 Va., 865, on the law of 1880, construing the law as giving those courts a legal discretion reviewable upon appeal or error upon petition of either applicant or contestant ; Ailstock vs. Page, ante page 386, on law of 1880, amended by act of March 6, 1882, overrules Leighton vs. Maury so far as the latter allows right of appeal or error to the contestant, but decides nothing concerning the applicant. Ailstock vs. Page et als., explained and approved. L. applied to County Court of M. for license to sell liquor. .t was refused, and applicant excepted. The court certified that the applicant proved that he was a fit person, and that his place business was suitable. L. applied to the circuit court for a it of error. He denied the writ of error, and endorsed the afaon as follows : " The words of the statute (1882) only appeal to an applicant, and only allow him right of appeal during the erm at which the refusal to allow his application is entered. I lerefore decline to grant as asked for in the petition." Held r (by a majority of the court). 1. The applicant brought himself within the requirements of law, and was entitled to the license applied for. CITATIONS TO THE CODE OF VIRGINIA. 39 2. The right of appeal upon errors to the circuit court was not taken away by the statute, and the applicant was entitled, upon the facts manifested by the record, to have the judgment refusing him the license reviewed and reversed by the circuit court. Held : (by Lewis P. and Hinton J.) From the judgment of the county court refusing license under the act of March 3, 1880, amended by the act of March 6, 1882, the applicant is en- titled, during the term at which the refusal is entered, to take an appeal of right to the circuit court, and no further, and such ap- peal is his only remedy. The reference to page 677 is to this case. In the case of Commonwealth vs. Sheckeh, 78 Ya., 36, decided November 15, 1883, it was held: Liquor cannot without license obtained in accordance with the laws of this State be lawfully sold therein, either on land or on board of a vessel, although the seller may have obtained from the United States Government a special tax stamp therefor, it being expressly provided by Sec- tion 3243 of the United States Revised Statutes, that persons holding such stamps shall not be exempted from any penal- ties imposed by the law of any State for carrying on the trade within its limits. In the case of Cherry vs. Commonwealth, 78 Ya.,. 375, de- cided January 31, 1884, it was held: It was not the intention of the legislature to require, in proceedings under Section 106, Chapter 206, Acts of Assembly, 1874-'5, page 244, the applica- tion of the strict and technical rules applicable to indictments. In proceedings to revoke liquor licenses under said section, the defendants are competent to testify in their own behalf, those proceedings being not criminal in their nature. Those proceedings may be on the motion of any other person as well as the commonwealth's attorney. In such proceedings the de- fendant is not entitled to a trial by jury. The object is not punishment, but revocation of privilege. It is no bar to the proceedings that it is founded on some act or offence wherefor the defendant has been formerly convicted. In the case of Haddox vs. County of Clarke, 79 Ya., 677, de- cided October 2, 1884, it was held : Where application for liquor license is refused by county court, and during same time appli- cant appeals to circuit judge or court (not upon bills of excep- tions to rulings of county court), the appeal is but a transfer of the application to another tribunal, when it is heard de novo. In the case of /A//r/'.v vs. The Commonwealth, 81 Ya., 240, de- cided December 17, 1885, it was held : Though prosecution be on a revenue law, yet so far as that law imposes penalty, it is a penal statute, and must be construed strictly like other criminal laws. Skating-rinks are not enumerated in the act requiring license to be taken out for public performances or exhibitions, and 40 CITATIONS TO THE CODE OF VIRGINIA. unless they be properly conducted, so as to clearly show that they are properly public performances or exhibitions, they can- not be brought within that act. In the case of Arrington vs. Commonwealth, 87 Va., 96, de- cided November 20, 1890, it was held : Indictment under this section, for selling liquor without license, must definitely state the place where sold, but the exact time of the sale need not be stated, nor need it be stated that the sale was "by sample, representation, or otherwise." CHAPTEE XXV. In the case of Savage vs. Commonwealth, 84 Va., 619, decided March 15, 1888, it was held : This chapter does not delegate a portion of the legislative power vested by the Constitution in the General Assembly, but merely leaves it to the popular vote to determine whether license shall be granted or not, and is not unconstitutional. SECTION 581. In the case of Haddox vs. The County of Clarke, 79 Ya., 677, decided October 2, 1884, it was held : Where a question is sub- mitted to the qualified voters of a county and of each magiste- rial district, and it is made the duty of the sheriff of the county to post notices of the election at every voting-place in the county within a prescribed period preceding the election ; the failure to post such notices invalidates the election. An application for liquor license in a county, when such an election has taken place, either in the first case before the county court, or in the second place before the circuit court or judge in vacation, parol evidence is admissible to prove that notices of the election had not been posted, or that any other plain and express provision of the statute providing for the election had not been complied with. SECTION 587. In the case of Savage vs. Commonwealth, 84 Ya., 582, de- cided March 8, 1888, it was held: Under this section it is not necessary that indictment allege that the magisterial district wherein the sale occurred voted against license, the court tak- ing judicial notice of such vote, nor that the liquor sold was the subject of license before the vote was taken, nor the time when the sale was made the time of sale not being of the essence of the offence. In the case of Webster vs. Commonwealth, 89 Ya., 154, decided June 23, 1892, it was held : In a county where the local option law has been adopted, the sale of liquor without license is none the less liable to prosecution as a violation of the general revenue law. CITATIONS TO THE CODE OF VIRGINIA. 41 CHAPTER XXVI. SECTION 590. In the case of Lucas (Sergeant], etc. vs. Clafflin <& Co., 76 Va., 269. Tax on deeds. Code of 1873, Chap. 36, Sec. 11, provides that "no deed shall be admitted to record until the tax is paid thereon." This is directory. Clerk may refuse to admit the deed to record until the tax is paid. But if he chooses to admit it without pre-payment, he assumes the tax, and the admission to record is valid. Hill vs. jRixey, 26 Grat., page 80, distinguished from this case. The reference to 76 Va., 281, is to the same case above cited from page 269. CHAPTER XXVII. SECTION 619. In the case of Allen vs. Commonwealth, 11 Va. Law Journal, 559, decided April 7, 1887, it was held : The auditor and his sureties are liable to the State for the amount paid by him to the county treasurer for collecting taxes due the State over and above the commission of two and a half per cent, allowed by law. CHAPTER XXVIII. SECTION 635. In the case of Staats vs. Board, 10 Grat., 400, decided July, 1853, it was held : Lands having been forfeited under the act of the 27th of February, 1835 (Session Acts, p. 11), for the failure to enter them on the commissioner's books, that forfeiture was complete on the 1st of November, 1836, the period limited in which the forfeiture might be saved by complying with the pro- visions on the act of March 23, 1836 (Session Acts, 1835-'36, p. 7). The act of March 30, 1837 (Session Acts, p. 9), giving time for redemption until the 15th of January, 1838, did not re- lease the forfeiture which had accrued, except in cases where the owner or proprietor availed himself of the privilege of re- demption. The forfeiture in such case became absolute and complete by the failure to enter and pay the taxes due on the land and the damages in the manner prescribed by the act on the 27th of February, 1835 ; and no inquisition or judicial pro- ceeding, or inquest, or finding of any kind was required to con- summate such forfeiture. After the forfeiture of the land to the Commonwealth no possession thereof adverse to the proprietor, in whose name it was forfeited, can run against the Common- wealth. Where, after the lien of the Commonwealth for taxes attaches to lands, any possession adverse to the proprietor can 42 CITATIONS TO THE CODE OF VIRGINIA. operate so as to impede the right of the Commonwealth to sub- ject said lands to sale or forfeiture for such taxes, and, as a con- sequence, to transfer to a purchaser, or vest in actual occupant,. or subject to re-entry and grant, such forfeited lands. In the case of Wild's Lessee vs. Serpett, 10 Grat., 405, decided July, 1853, it was held : The statutes of Virginia forfeiting lands to the Commonwealth for the failure of the owners to enter them upon the commissioners' books and pay the taxes due thereon are constitutional. The forfeiture, under these statutes, is perfected without a judgment, decree, or other matter of record, or an inquest of office ; but by the operation of the statutes the title is divested out of the owner, and is vested in the Commonwealth. In such cases where the title is vested in the Commonwealth and the forfeiture enures to the benefit of a third person claim- ing under the Commonwealth by virtue of another and distinct right, the transfer of the title to such person is, in like matter, perfect and complete, without any new grant from the Common- wealth or any proceeding to manifest the transfer by matter of record or otherwise. Land omitted to be entered by the owner on the commission- ers' books were forfeited, under Section 2 of the act of February 27, 1835 (Session Acts 1834-35, p. 12), and the forfeiture be- came perfect and consummate on the 1st of November, 1836, the period limited in which the forfeiture may be saved by com-' plying with the provisions of the act of March 23, 1836. (Ses- sion Acts, 1835-'36, p. 7.) A party claiming under a grant from the Commonwealth issued in August, 1836, cannot claim the benefit of an older title forfeited to the Commonwealth under the act of the 27th of February, 1835, because by that act a forfeiture only enured to the benefit of those who claimed title under a grant 'from the Commonwealth bearing date before April 1, 1831. Nor can such a party sustain such a claim under the provisions of the act of March 30, 1837, unless he is a lona fide occupant of the land. To sustain such a claim under Section 16 of the act of March 16, 1838 (Session Acts 1837-'38, p. 21), the party must have been at the date of the act in the actual possession and occupancy of the land forfeited or parcel thereof, with the title bona fide claimed or derived under grants from the Common- wealth which issued subsequent to the 31st of March, 1831, and prior to the loth of January, 1838. By the act of March 18, 1841 (Session Acts 1840-'41, p. 31),. forfeiture of title to the Commonwealth only enures to the snent of those then in actual possession of the forfeited land under claim of title through a grant from the Commonwealth.. 3ugh at that time the party held a patent for the land, yet if CITATIONS TO THE CODE OF VIRGINIA. 43 he was in actual possession under a lease from another person claiming the elder title, that is not the actual possession con- templated by the statute. By the act of March 22, 1842 (Session Acts 1841-42, p. 13, sec. 3), the title to forfeited lands is transferred to and vested in such persons other than those for whose default the same may have been forfeited, or has title or claim, legal or equitable, derived under a grant from the Commonwealth, bear- ing date prior to the 1st of January, 1843, without making either actual occupancy or possession of the land, or a bona jide claim of title, any part of the condition on which the transfer of the title takes effect. Though the land had been reported to the court as forfeited land, and an order had been made for a sale thereof, yet if not actually sold after the passage of the act,. the title is transferred under the statute. The act of March 22, 1842, is retrospective in its operation. A tenant who renders possession at the end of his term, or from whom possession is recovered, is not concluded by the exist- ence of such tenancy at such time, or by the deed of lease which he executed, from contesting the title of his former landlord. SECTION 642. In the case of Boon vs. Simmons, 88 Va., 259, decided July 9, 1891, it was held : All acts prescribed by the statute must be performed in the place, manner, and time therein named. Every provision in which the owner can possibly have an interest must be strictly obeyed, else the tax title will be void. The maxim, caveat ernptor, applies with great force to the purchaser. Judi- cial confirmation of the sale, when required by law, is essential to a valid tax title, but no confirmation can aid a void title. This section provides, that within thirty da}^s after a tax sale, treasurer shall report same to county court at its next term, which shall enter of record the fact of return of report, and shall continue the matter until the next term for exceptions to be filed by any person affected thereby ; and if no cause be shown to the contrary, the court shall confirm the sale, and make it binding upon the parties in interest, and a writ of pos- session may be granted to the purchaser at any time thereafter on demand. A sale made December 19, 1887, under said act to appellant, was reported as therein directed, but the county court failed to continue the matter to the next term for excep- tions, and never at that or any other term confirmed the sale or granted the purchaser a writ of possession, and he never had possession. Six mouths later the same land was sold under a decree of the circuit court, and the sale was duly confirmed, and the purchaser, the appellee, paid the entire purchase-money and received his deed of conveyance and the possession, which he 44 CITATIONS TO THE CODE OF VIRG^IA. held for nearly two years without notice, actual or constructive, of the tax sale. At its January term, 1890, the county court made an order requiring a plat and certificate of survey of said property made by the county surveyor, and returned to the court by the appellant, and reciting the purchase by the appel- lant of said land at a sale of lands delinquent for taxes by said treasurer as aforesaid, to be recorded, and that the clerk make the necessary deed conveying said land to the appellant, which deed was accordingly made. In a suit in chancery brought by appellee to remove from his title the cloud thereon occasioned by said tax deed, the court adjudged the latter deed null and void, which judgment was affirmed in the appellate court. SECTION 651. The case of Hale vs. Penris heirs, 25 Grat., 261, decided July 1, 1874, does not construe the statute, but is ruled by the statute. SECTION 653. In the case of Justices of Randolph Co. vs. Stalnaker, 13 Grat., 523, decided September 6, 1856, it "was held : It is the duty of the county court, acting in relation to lands sold for taxes, to admit the report of the surveyor to record, if it conforms to the act; and the court has no authority to inquire into the regu- larity or validity of the sale made by the sheriff. The circuit court may proceed by mandamus to compel the county court to admit the report of the surveyor to record. In the case of Nowlin vs. Burwell, 28 Grat., 883, decided July, 1877. At the August term, 1874, of the county court of P., N. presented a plat and certificate of land assessed in the name of L. and sold in her name in 1860, by the sheriff of the county for the non-payment of taxes due thereon, and purchased by N.'s assignor. B., claimant of the legal title to the land, op- posed the recording the plat and certificate, and proved he had paid to the clerk the taxes, etc., but he offered no evidence of his title. The court admitted the plat and certificate, and B. appealed to the circuit court, and that court reversed the order of the county court, on the ground that the county court should have admitted evidence of B.'s title. On the second trial in the county court, B. traced back his title to a deed from T., as attorney in fact of L. to S., but the power of attorney was not produced or proven. The county court sustained the claim of B., and re- scinded its order, admitting the plat and certificate to record ; and upon appeal by N. to the circuit court, the last order of the county court was affirmed. Held : The first order of the county court admitting the plat and certificate to record was proper. It not appearing that B. offered any evidence of -his title to CITATIONS TO THE CODE OF VIRGINIA. 45 the land, it was error in the circuit court to reverse the order of the county court and send the cause back to let B. introduce such evidence. B. not producing or proving the power of attorney under which T. professed to act, he failed to establish his title to the land ; and the second order of the county court, and order of the circuit court affirming it, were erroneous. The act Code of 1873, ch. 38, sees. 18 and 19, in relation to the sale of land for taxes, is only intended to furnish evidence of the identity of the land sold, not only for the information of the former owner and all others interested, but for the guidance of the clerk in making the deed. When the purchaser offers the plat and certificate for recordation, the sole duty of the court is to consider whether the plat and certificate, or the report of the surveyor, as the case may be, is in conformity to the requirements of the law in respect to the description and identity of the land. It is no concern of the court whether the purchaser has acquired the title or whether the owner has pro- perly exercised his right of redemption. The proceeding is ex parte in its character, and does not in the least effect the rights of the third person. SECTION 654. The cases of Randolph Justices vs. Stalnacker, 13 Grat., 523 r and Nowlin vs. Bnrwell, 28 Grat., 883, are quoted supra, Sec- tion 653. SECTION 655. In the case of Flanagan vs. Grrimmet et als., 10 Grat., 421, decided July, 1853, the act of February 9, 1814, 2 Eev. Code, 542, concerning taxes on lands, Sections 24 and 25, directs the sheriff to advertise the sale of delinquent lands at the May, June and July terms of the court of his county, and to publish the advertisement at least every week for two months preceding the time of sale in some newspaper published in the city of Rich- mond. Section 28 directs him to execute a deed to the pur- chaser at such sale, reciting the circumstances thereof, and setting forth particularly and truly the amount of the purchase money. Section 38 provides that after the time of redemption allowed has elapsed, the regularity of the proceedings under which the purchaser at the sale claims title shall not be ques- tioned unless such irregularity appear on the face of the pro- ceedings. Held : That by the circumstances of the sale which are to be recited in the deed, is not meant all the steps to be taken by the various officers, which preceded the sale, but the circumstances attending the sale itself, viz. : That the sale was made at the time and piace prescribed for the sale of lands re- turned delinquent ; if less than the whole tract of land was sold, 46 CITATIONS TO THE CODE OF VIRGINIA. how much was sold, who was the purchaser, and the amount of the purchase money. It is not necessary that the deed shall recite that the land had been advertised. If the deed recites that the land was ad- vertised at the court-house door for two months, but does not state that it was at the May, June and July terms of the court for the county, or in a Kichmond paper, yet as it was not neces- sary to recite" in the deed that the land had been advertised, the recital in the deed of an insufficient advertisement is not an irregularity on the face of the proceedings, which will avoid the deed. The deed cannot be questioned by parol proof of a failure to advertise the sale as the law prescribes. If the deed is defec- tive, it is competent evidence to show with other evidence an actual entry under a claim of title, and continued holding there- under, so as to make out a title or right of entry by actual possession. Possession so taken and continued for the time prescribed might ripen into a right of possession, and so bar the right of entry of the opposing party. SECTION 661. In the case of Flanagan vs. Grimmet et als., 10 Grat., 421, de- cided July, 1853, the act of February 9, 1814, 2 Rev. Code, 542, concerning taxes on lands, Sections 24 and 25, directs the sheriff to advertise the sale of delinquent lands at the May, June and July terms of the court of his county, and to publish the adver- tisement at least every week for two months preceding the time of sale, in some newspaper published in the city of Richmond. Section 28 directs him to execute a deed to the purchaser at such sale, reciting the circumstances thereof, and setting forth particularly and truly the amount of the purchase money. Sec- tion 38 provides that after the time of redemption allowed has elapsed, the regularity of the proceedings under which the pur- chaser at the sale claims title shall not be questioned, unless such irregularity appear on the face of the procedings, held: That by the circumstances of the sale which are to be recited in the deed, is not meant all the steps to be taken by the various officers which preceded the sale, but the circumstances attend- ing the sale itself, viz. : That the sale was made at the time and place prescribed for the sale of lands returned delinquent; if less than the whole tract of land was sold, how much was sold, who was the purchaser and the amount of the purchase money. It is not necessary that the deed shall recite that the land had been advertised. If the deed recites that the land was adver- tised at the court-house door for two months, but does not state that it was at the May, June and July terms of the court for the county, or in a Richmond paper, yet as it was not necessary to CITATIONS TO THE CODE OF VIRGINIA. 47 recite in the deed that the land had been advertised, the recital in the deed of an insufficient advertisement is not an irregularity on the face of the proceedings, which will avoid the deed. The deed cannot be questioned by parol proof of a failure to advertise the sale as the law prescribes. If the deed is defec- tive, it is competent evidence to show, with other evidence, an actual entry under a claim of title, and continued holding there- under, so as to make out a title or right of entry by actual possession. Possession so taken and continued for the time prescribed might ripen into a right of possession, and so bar the right of entry of the opposing party. In the case of Gates & Clarke vs. Lawson et als., 32 Grat., 12, decided July, 1879. By deed dated the 16th of February, 1864, T. sold and conveyed to R. a tract of land in Patrick county, but the deed was not recorded in that county until 1874, though R. paid the taxes on the land from 1866 inclusive. This land, staauding on the land books of the county in the name of T., was returned as delinquent for the tax of 1865, and in 1873 sold as delinquent land, and purchased by G., to whom the clerk after- wards conveyed it. In ejectment by G. against R. to recover land, held : Under the statute, Code of 1873, ch. 38, sec. 26, a purchaser at a sale of laud delinquent for taxes only acquires such estate as was vested in the person assessed with the taxes at the commencement of the year for which said taxes were assessed, and as T. had in 1864 sold and conveyed the land to R., T. had no estate in the land in January, 1865, and G. took no title to the land under his purchase and the deed to him. CHAPTER XXIX. CHAPTER XXX. SECTION 682. In the case of Commonwealth vs. Ford et als., 29 Grat., 683, decided January 17, 1878, it was held : A judgment in the name of the Commonwealth for W., treasurer of C. county, founded on a notice in the name of the Commonwealth, proceeding by W., late treasurer of C. against F., the collector of township M., and his sureties, upon his official bond, is a judgment in favor of the Commonwealth. On such a judgment, the Commonwealth, at the relation of T., auditor of accounts, may maintain a suit against F. and his sureties. SECTION 685. In the case of Monteith (Sheriff] et als. vs. The Commonwealth, 15 Grat., 172, decided April, 1859, it was held: On motion against a sheriff and his sureties for his failure to pay his taxes due to the Commonwealth, it is not necessary that the notice should state on what bond of the sheriff the motion will be made. 48 CITATIONS TO THE CODE OF VIRGINIA. SECTION 684. In the case of Monteith (Sheri/} et als. vs. The Commonwealth, 15 Grat., 172, decided April, 1859, it was held: The notice to sheriff and his sureties being of a motion for a balance of the land property, and free negro taxes of 1857 and a judgment being for a balance due upon these, and also for a license tax, this is error for which the judgment will be reversed in the ap- pellate court. Q0 In the case of Commonwealth vs. Latham (Judge), 85 V a., bc^ r decided January 10, 1889, it was held: The Circuit Court of Eichmond city alone hath jurisdiction to enjoin or affect any judgment in behalf of the Commonwealth. SECTION 701. In the case of Commonwealth vs. Ford, 29 Grat., 683, decided January 17, 1878, it was held: The property of the sureties be- ing covered by their homestead exemption deeds, the Common- wealth may go into equity to enforce her judgment against them. SECTION 702. The reference to 18 Grat., 13-28, applies to the former statute, now useless in this connection. CHAPTEE XXXI. SECTION 712. In the case of Commonwealth vs. Collins, 9 Leigh, 666, de- cided December, 1839, by the General Court, it was held : For- feiture for selling goods without a license may be recovered upon presentment and indictment. SECTION 714. In the case of Honaker vs. Howe, 19 Grat., 50, decided Feb- ruary 2, 1869, it was held : Page 55 Cases of special fines, pre- scribed by statute, are governed by this section. It is not necessary, therefore, in order to afford a foundation for the judgment, as it is in the case of "submission," to regard the prosecution as implying a confession of guilt for the purposes of the case. The judgment in such a case stands on no other foundation than the consent of the defendant, given in pursu- ance of the compromise with the Commonwealth, that judg- ment may be entered up against him for the fine agreed upon. Nor is there anything in the fact of proposing or assenting to such a compromise arrangement, which necessarily implies an admission of guilt. SECTION 717. In Ex Parte Marx, 86 Va. 5 40, decided April 18, 1889, it was CITATIONS TO THE CODE OF VIRGINIA. 49 held : The fine prescribed for violating the Sabbath is recovera- ble before a justice and by a civil warrant. The constitutional rights to trial by jury does not extend to such an offence. SECTION 724. In the case of Wells vs. The Commonwealth, 21 Grat., 500, decided November 13, 1871, it was held: An appeal may be taken to the court of appeals from the judgment of a circuit court imposing a fine upon a person for a contempt of the court, in aiding to obstruct the execution of a decree of the court. SECTION 726. In the case of Shifflett et als. vs. Commonvjealth, 18 South- eastern Reporter, 838, decided January 11, 1894, it was held: When the accused was not in custody it is not error to direct his arrest and confinement in jail for the non-payment of a fine before a fieri facias has been issued; this section giving the court this power. SECTION 735. In the case of Tyler (Sergeant] vs. Taylor (Auditor), 29 Grat., 765, decided February 7, 1878, it was held : Fines collected by a sheriff of a county, or by the sergeant of a city or town, are to be paid by him to the treasurer of county, city, or town, and not to the auditor of accounts of the State, and' therefore a mandamus will not lie at the suit of a sheriff or sergeant to compel the auditor to receive coupons which have been paid to him in discharge of a fine. TITLE XIV. CHAPTER XXXII. SECTION 746. The reference to 18 Grat., 764, is not a construction of this section, it was a case which followed the statute. In the case of Commonwealth vs. Chalkley, 20 Grat., 404, de- cided March, 1871, N. was elected store-keeper of the peniten- tiary prior to 1861, for a term commencing on the first of Jan- uary, 1861, and to continue for two years. In the last of the year 1861, and the first of the year 1862, he, as such store- keeper, purchased of C. leather and findings to be manufactured by the convicts in the penitentiary. Both N. and C. recognized the authority of the Richmond government, C. not having been able to obtain payment of his debt from the Richmond authori- ties, he, in December, 1866, instituted proceedings to recover the amount due him from the present government of Virginia. 50 * CITATIONS TO THE CODE OF VIRGINIA. Held : He has no claim, either in law or equity, upon the pre- sent government for its payment. In the case of Higqinbotliam executors vs. Commonwealth, 25 Grat., 627, decided December 18, 1874, it was held: The present state of Virginia is bound to the creditors of the State for debts due before the division for the whole of their debts, and West Virginia is equally bound. Under the statute the State of Virginia may be sued for any debt or claim due, whether liquidated or unliquidated. In the case of Parsons vs. The Commonwealth, 80 Va., 163, decided January 29, 1885, P., a creditor of the Commonwealth, filed in the Circuit Court of the city of Richmond his petition against the Commonwealth and the auditor of public accounts, praying judgment against her for the amount of the debt, and a rule was awarded summoning them to answer the petition. Later, before the appearance of either of them, the court, ex mero motu, dismissed the petition against the Commonwealth. On error to this court, held : Under statute the Commonwealth of Virginia may be sued for any debt or claim due. But though the order dismissing the petition against the Com- monwealth may have been necessary, yet, as it did not effect the petitioner's right or remedy, it was not an error for which this court will reverse the order. In the case of Dunnington vs. Ford, 80 Va., 177, decided February 5, 1885, it was held: The State can only be sued by its consent. When a remedy by suit against the State, or any of its officials provided, those seeking to avail of its benefits must allow its provisions with exact strictness. Under act of January 26, 1882, amended March 13, 1884, Acts 1883-'84, page, 527, the suit is required to be commenced by a petition to be filed at rules, upon which a summons shall be issued to the collecting officer, and regularly matured like any other action at law, and the coupons shall be filed with the peti- tion. A suit brought in any other way is unlawfully instituted, and must be dismissed. SECTION 751. In the case of Commonwealth vs. Lilly's Adm'r., 1 Leigh, 525, decided April, 1830, it was held : An officer of the State Navy of Virginia during the war of the Revolution, who became supernumerary before and so continued until the end of the war, entitled to half-pay for life under the act of May, 1779. The act of limitations does not apply to such a claim; nor does the lapse of time, from 1783, when the claim accrued, till 1826, when it was asserted, under the circumstances of the case, afford any presumption of payment or of abandonment of the claim. CITATIONS TO THE CODE or VIRGINIA. 51 TITLE XV. CHAPTEE XXXIII. SECTION 755. In the case of Walker et als. vs. Commonwealth, 18 Grat., 13, decided November 2, 1867, it was held, p. 28 : A sheriff cannot pay money to the auditor or attorney-general collected upon execution, and though an agent to sell delinquent lands may re- ceive the money from a purchaser, he must pay it into the trea- sury in the mode prescribed by the statute in all cases. SECTION 765. The reference to 18 Grat., 764, is to a case which does not construe the statute, but merely follows it. In the case of Dunnington vs. Ford, 80 Va., 177, decided February 5, 1885, it was held : The State can only be sued by its consent. When a remedy by suit against the State or any of its officials is provided, those seeking to avail of its benefits must follow its provisions with exact strictness. Under act of the 26th of January, 1882, amended March 13, 1884 (Acts 1883-'84, p. 527), the suit is required to be com- menced by a petition to be filed at rules, upon which a summons shall be issued to the collecting officer, and regularly matured, like any other action at law, and the coupons shall be filed with the petition. A suit brought in any other way is unlawfully in- stituted, and must be dismissed. SECTION 780. In the case of Clarke vs. Tyler (Sergeant], 30 Grat., 134, de- cided April 4, 1878, it was held, p. 152 : This section is not un- constitutional. TITLE XVI. CHAPTEE XXXIV. SECTION 802. In the case of Dinwiddie County vs. Stuart, Buchanan & Co., 28 Grat., 526, decided April 26, 1877, it was held : An appeal from the decision of a board of supervisors of a county rejecting a claim arising under an order of a county court, made in 1862, is properly taken to the county court of the county. 52 CITATIONS TO THE CODE OF VIRGINIA. CHAPTEE XXXV. SECTION 812. In the case of Virginius Johnson vs. Mann (Judge) and Couch (Treasurer), 77 Va., 265, decided March 15, 1883: Under the Constitution and laws of this State, county, municipal and dis- trict officers must qualify before the day whereon their terms respectively begin, else their offices are vacant, and the in- cumbents continue to discharge the duties of the offices after their terms of office have expired, until their successors have qualified. In May, 1882, Couch was elected Treasurer of Petersburg for term beginning July 1, 1882, and continuing three years ; when elected, Couch was a member of the city council, his term not expiring until July 1, 1884. On July 1, 1882, he acted as coun- cilman, but qualified and -entered upon the duties as treasurer ; Johnson, the incumbent treasurer, claiming that he was entitled to hold the office until the next regular election, and petitioning to be restored thereto by mandamus / Held : 1. Couch's failure to qualify before the commencement of his term vacated his office, and the judge of the Hustings Court of Petersburg is entitled to fill the vacancy. 2. Johnson, the incumbent, is not entitled to hold the treasu- rership until the next general election, but only until his suc- cessor so appointed shall have qualified. In the case of Branham vs. Long, 78 Va., 352, decided January 24, 1884, it was held : Under the Constitution and laws of this State, county, municipal and district officers must qualify by taking the several oaths required by law before the day whereon their terms respectively begin, else their offices are vacant, and the incumbents continue to discharge the duties of the offices after their terms of office have expired, until their successors have qualified. SECTION 813. In the case of Johnson vs. Mann (Judge] and Couch (Treasu- rer), 77 Va., 265, decided March 15, 1883, it was held : Failure to qualify before commencement of term vacates office, and the office may then be filled by the proper authority. CHAPTEE XXXVI. SECTION 833, PAR. 2. In the case of Stockholders of the Bank of AUngdon vs. Su- pervisors of Washington County, 88 Va., 293, decided July 16, 1891 it was held: Under Acts 1883-'84, p. 568, Section 17, the state, without regard to the residence of stockholders, levies for State purposes a tax on the assessed value of their shares of stock as it does upon other monied capital ; and this section of CITATIONS TO THE CODE OF VIRGINIA. 53 the Code requires the supervisors of each county to levy for county purposes annually, and to order the levy on all property assessed with State taxes. SECTION 834. In the case of the Board of Supervisors of Culpeper vs. Gor- rell and others, 20 Grat., 484, decided March, 1871, it was held: The board of supervisors of a county have authority to provide land for building a court-house, clerk's office, and a jail, either by purchase or proceeding to have it condemned in the mode prescribed in the statute. The board of supervisors of a county have authority to sell the lands belonging to the county on which the court-house and other public buildings stood. It is for the board of supervisors to determine what land they will procure for the public build- ing of their county ; and whether their discretion is wisely or unwisely exercised in the selection cannot be inquired into the proceeding instituted to condemn the land. In the case of Supervisors of Bedford vs. Wing-field (Judge), 27 Grat., 329, decided March, 1876, it was held : A judge of a circuit court has authority to control the court-house in which he administers justice to the extent at least of preventing any interference with the discharge of the public business, and of having necessary jury rooms and other conveniences for that purpose* Where there is any such interference by the board of supervisors of a county, or any one else, the judge certainly has the right to inquire into it. If, in doing so, he violates the law or infringes upon the rights of others, his action may be cor- rected by a writ of error, but it is npt a case in which prohibi- tion will lie. The board of supervisors of a county order that one of the jury rooms attached to the court-house shall be prepared to be used as a part of the clerk's office of the county court, and this order is approved by the county court. The judge of the cir- cuit court thereupon makes a rule upon the board of supervisors to show cause why they shall not be restrained from making the changes in the room. This court will not restrain him by pro- hibition by proceeding under the rule, but the board should make their defence in the circuit court, and any error of the judge in that proceeding may be corrected by a writ of error to this court. SECTION 838. In the case of Dinwiddie County vs. Stuart, Buchanan & Co., 28 Grat., 526, decided April 26, 1877, it was held : An appeal from a decision of a board of supervisors of a county rejecting a claim arising under an order of a county court, made in 1862, is properly taken to the county court of the county. The refer- ence to 28 Grat., 872, is an error. 54 CITATIONS TO THE CODE OF VIRGINIA. SECTION 843. In the case of Dinwiddie County vs. Stuart, Buchanan & Co., 28 Grat., 526, decided April 26, 1877, it was held : An appeal from a decision of a board of supervisors of a county rejecting a claim arising under an order of a county court, made in 1862, is properly taken to the county court of the county. In the case of Prince George County vs. A.M.&O.R. R. Co., 87 Va., 283, decided January 8, 1891, it was held : Where board of supervisors " refused " to act upon a claim presented under this section, claimant may sue the county under Section 843. SECTION 844. See the case of Prince George County vs. A. M. & A. JR. R. Co., 87 Va., 283, cited supra, Section 843. CHAPTER XXXVII. SECTION 859. In the case of Andble vs. Commonwealth, 24 Grat., 563 and 576, decided November, 1873, A. was the secretary of the Board of Supervisors of the county of H., and there was to his credit on the books of the treasurer for claims held by him against the county one thousand six hundred and forty-nine dol- lars. Blank warrants, signed by the chairman of the board, were left with him, and he filled up and sold warrants to a con- siderably larger amount than the sum due to him. Warrants to near the amount due are registered, and among these one for three hundred and fifty dollars sold to W. ; but there were other warrants sold before the one was sold to W., and if they had been registered before W.'s, the fund would have been exhausted, and would have left nothing to be applied to W.'s warrant. Upon an indictment of A. for larceny of the check given by W. for payment of the warrants, held: The warrants are to be paid in the order in which they are registered, and there being sufficient to pay W.'s warrant, as well as all the warrants regis- tered before it, A. cannot be convicted of the larceny charged. W. having bought his warrant of N., an agent of A., and hav- ing given a check payable to the order of N., and the indictment charging the larceny of the check of W., endorsed by N., and the proof being that N. endorsed his name after receiving the check. Qucere : If this is a variance. SECTION 864. The reference to 2 H. & M., 580, is an error. In the case of Munford et als. vs. The Overseers of the Poor of Nottoway, 2 Band., 313, decided February 18, 1824, it was held : CITATIONS TO THE CODE OF VIRGINIA. 55 A judgment against a principal in a bond is not conclusive evi- dence against his sureties. "When the principal and sureties are sued jointly, and the judgment is erroneous as to the sureties, it must be reversed as to all, although the judgment would have been good against the principal if he had been sued alone. The reference to 2 Leigh, 393, is continued in the present Code by error. It does not apply to this section. SECTION 865. In the case of Overseers of the Poor of Brunswick vs. Tucker, 2 Leigh, 580, decided March, 1831, T. sheriff of B., for the years 1803-'4, collects the poor rates ; and in November, 1823, the overseers of the poor commence proceedings against him by motion for balances unaccounted for. Held: After such a lapse of time the motion ought not to be entertained. In the case of Board of Supervisors of Washington County vs. Dunn et als., 27 Grat., 608, decided June, 1876, it was held, p. 622 : A notice by the supervisors of a county to D., late sheriff, and his sureties, that they will move the county court at its November term to render judgment against them for the sum of 84,840.03, the same being the amount of said D.'s defi- ciency and default for county levies for the year 1869, that went into D.'s hands as sheriff as aforesaid, and which he had failed to account for, etc., is sufficiently specific and definite to warrant a judgment thereon. The rule governing notices is that they are presumed to be the acts of parties, and not of lawyers. They are viewed with great indulgence by the courts, and if the terms of the notice be general, the court will construe it favorably, and will apply it according to the truth of the case, so far as the notice will admit of such application. If it be such that the defendant cannot mistake the object of the motion, it will be sufficient. Upon notice to a sheriff and his sureties of a motion against them for his failure to account for taxes, they appear and ask for a rule upon the attorney for the Commonwealth to show cause why the record of the bond of the sheriff should be amended, corrected or vacated ; and several of the sureties file affidavits, in which each states the grounds on which he relies, to show he is not bound by the bond. One says he signed on condition that other persons should sign. Another says he signed the bond, but never acknowledged or delivered it, and after signing it he determined not to acknowledge it. Another savs he acknowledged it in court, on condition that all the par- ties who signed would acknowledge it. In fact, the defendants had either acknowledged the bond before the court or before a justice, and none of these conditions appeared on the record or 56 - CITATIONS TO THE CODE OF VIKGINIA. bond, or were made known to the court. These affidavits pre- sent no grounds for the release of the parties or for the rule. It is not necessary that the sureties of a sheriff in his official bond should acknowledge the same in court. The bond may be acknowledged by them in court, or its execution out of court may be proved by witnesses. And there is no statute or rule of law requiring such proof to be adduced at the time the bond is received by the court. With or without such proof, the parties who had actually signed would be bound by the deed. A person who signs, seals and delivers an instrument as his deed will never be heard to question its validity upon the ground that it was not acknowledged by him nor proved at the time of the delivery. It is the sealing and delivery that gives efficacy to .the deed, not proof of its execution ; and this prin- ciple applies to all bonds, whether executed by public officers or private persons, unless there is a statute making the acknow- ledgment or proof in court essential to the validity of the instrument. In an action on an official bond, if there is no record evidence, the execution of it may be established by the testimony of at- testing witnesses, or if there be none, by proof of handwriting, or by discovery from the adverse party. On notice of a motion against a sheriff and his sureties on his official bond, the pleas of " non damnificatus " and " nil debet " are not proper pleas. The fact that the names of two of the parties who executed and acknowledged the bond were not in the body of it does not invalidate as to them. On a motion against a sheriff and his sureties for the county levies he had failed to account for, the report of the clerk who had been directed by an order of the county court to settle the sheriff's account, though made with the sheriff without notice to the sureties, is competent evidence against them to show the amount for which the sheriff is indebted. If they had notice as the statute provides, the report would be conclusive upon them ; without notice, it is prima facie evidence of the amount of the sheriff's indebtedness. CHAPTEE XXXVIII. SECTION 869. 7^ In Q^ 6 T S * f Sonsack & K er vs. Roanoke Co., Va. Eeports, 35 decided September, 1881, it was held: The supplies be procured by purchase, and, if need be, by impress- nt, through agents appointed for the purpose, and the debts ntracted were to be paid in the manner and by the means The express designation of a particular mode of img the means excludes every other, though the borrowing CITATIONS TO THE CODE OF VIRGINIA. 57 of money might be deemed by some a more appropriate mode than a levy in the ordinary way. SECTION 881. In the case of City of LyncJiburg vs. Slaughter, Va. Reports, 75, p. 57, decided November 25, 1880 : A municipal corpora- tion, having a general authority under its charter to contract loans or cause to be issued certificates of debts or bonds, may issue coupon bonds and sell them at public auction for less than their par value, and for bonds sold during the war might receive payment for them in Confederate money. A municipal corporation, having authority to provide for the poor and needy of the city in 1864, pass an ordinance for the issue of fifty thousand dollars of the coupon bonds of the city, and the ordinance provides that the proceeds shall be paid into the treasury of the city, subject to the order of the council, for the use and benefit of indigent families and citizens. Held: A bona fide holder of these bonds is not required to look farther than the ordinance to see whether the bonds were issued for a legitimate purpose ; and his right to recovery upon the bonds will not be affected by the fact that the council may have ap- plied the proceeds of the bonds to other purposes. Though coupon bonds may have been issued by a municipal corporation for the purpose of aiding the rebellion, this not ap- pearing on the face of the bonds, or the ordinance authorizing their issue, the bonds in the hands of a bona fide holder for value, without notice or knowledge of the purpose, are valid and binding upon the corporation. And though the holder of the bonds had such notice, the bonds are valid and binding in the hands of the present holder. CHAPTER XXXIX. SECTION 893. In the case of Bollard et als. vs. Thomas & Armuon, 19 Orat., 14, decided November 14, 1868, it was held, p. 23 : The statute is permissive only in regard to causes other than the death of the sheriff, and not mandatory. When no such appointment is made, the duty of the sheriff remains, and the sureties remain liable for its due performance. SECTION 895. In the case of Andrews vs. Fitzpatrick, 89 Va., 438, decided December 1, 1892, it was held : Unless the office of coroner is vacant, or the incumbent under disability, a constable cannot lawfully serve a process directed to the sheriff. Such is no legal service and should be quashed. 58 CITATIONS TO THE CODE OF VIKGINIA. SECTION 897. In the case of Ferguson et als. vs. -Moore, 2 Washington, 54, decided April term, 1795, it was held : A bond taken upon re- plevying property distrained for rent must be returned to the court to which the officer levying the distress belongs, or to the court of that county in which the land lies. The reference to Barksdale et als. vs. Neale, 16 Grat., 314, 315, is an error. That case defines what is a good return on a process. See the cases cited to Section 3591. SECTION 898. In the case of Commonwealth vs. Roland, 4 Call, 97, decided November, 1786, it was held : Judges, attornies, witnesses and suitors are exempt from arrest in civil suits during their attend- ance at court, and for a reasonable time thereafter to return home by the common law. This statute was afterwards passed to establish the exact extent of the privilege. SECTION 900. In the case of Turnbull vs. Thompson et als., 27 Grat., 306, decided March 16, 1876, it was held : A summons in debt is served on a defendant on the 3d of February, and the judgment by default becomes final on the 3d of March. Under the statute the day of the service of the process may be counted, and there- fore thirty days had elapsed between the service of process and the judgment, and it is a valid judgment. In the case of Jesse JfitcMl vs. The Commonwealth, 89 Va., 826, decided March 30, 1893. When the return to process is signed only with the name of the deputy by whom it has been served, and not with that of the principal also, held : Such pro- cess and return should be quashed by the trial court. SECTION 901. In the case of Bullock vs. Goodall et als., 3 Call, 44 (2d edition, 39), decided October 14, 1801, it was held : If the sheriff neglects to return an execution at the request of the plaintiff, he is not liable to a fine. In the case of Tomkies" Executors vs. Downman, 6 Munf., 557, decided March 28, 1820, it was held : Not more than one fine can legally be imposed on the sheriff, or other officer, for failing o return one execution. The plaintiff at law having recovered, by successive judgments, many fines against the sheriff for fail- ing to return one execution, to a greater amount in all than the execution itself, with his extra costs added thereto; it appear- Iso that the execution was lost, and therefore could not be rned ; that the sheriff's failure to make defence at law against the judgments after the first, proceeded from ignorance CITATIONS TO THE CODE OP VIRGINIA. 59 of the true construction of the act of assembly; and that, in relation thereto, there was a general delusion among the citizens of the Commonwealth, the court of equity gave the sheriff re- lief by injunction, prohibiting any farther recovery against him on account of his failure to return the said execution ; and this, although it appeared he had received and applied to his own use a part, and probably the whole, of the money upon the execution. In the case of Fletcher vs. Chapman, 2 Leigh, 560, decided March, 1831 : A fi. fa. sued out by C. against P. is delivered to the sheriff, and P., the debtor, pays the amount of the ex- ecution to C., the creditor; the sheriff fails to make due return of the execution. Held: P., the debtor, cannot maintain a mo- tion in the name of C., the creditor, against the sheriff for a fine for failing to return the execution, even though the debtor were a party injured thereby. The reference to 30 Grat., p. 16, is an error. SECTION 907. In the case of Ballard vs. Whitlock, 18 Grat., 235, decided February 18, 1867, it was held, p. 239 : The sheriff may re- ceive chattels under this section, for the production of which a forthcoming bond has been given, and sell the same after the return day of the execution. SECTION 909. In the case of Drew vs. Anderson, 1 Call, 51 (2d edition, 44), decided November 16, 1797, it was held: If there be a judgment for too much money against the sheriff on account of money received by his deputy on an execution, he cannot re- cover the amount of that judgment against his deputy ; for he shall not, by submitting to an erroneous judgment, saddle the deputy with it. In the case of Taylor vs. Dundass, 1 Washington, 92, decided at spring term, 1792, it was held : The execution book directed to be kept by the clerk shall be prima facie evidence of the time of a return on execution, liable, however, to be set aside by clear proof of error. In the case of Paxton vs. Rich, 85 Va., 378, decided Septem- ber 13, 1888, it was held : This section, providing that in mo- tions against officers for money the fact that a fi. fa. has not been returned shall be prima facie evidence that the whole amount has been collected, has no application but to such pro- ceedings ; and the facts that, about a year before the^. fa. went into the sheriff's hands another execution against same debtor was returned (no effects), and that an account of liens was de- creed, which creditor could and did take advantage of to repel 60 CITATIONS TO THE CODE OF VIRGINIA. any presumption of payment arising from non return of fi, fa. for fourteen years. SECTION 910. See the case of Drew vs. Anderson, 1 Call, 51 (2d edition, 44), quoted ante, Section 909. In the case of Royster et als. vs. Leake, 2 Munf., 280, decided May 8, 1811, it was held : A bond from the deputy to the high sheriff, conditioned for the faithful performance of his duty dur- ing his continuance in the office of deputy sheriff, is binding upon him and his sureties for the second year as well as the first, and until the winding up of the business lawfully com- mitted to him as deputy. In the case of Davis vs. Johnson & Co., 3 Munf., 81, decided December 20, 1811, it was held: In an action on the case against a sheriff for failing to levy an execution, if the return was "that there were no effects with which the debt could be sat- isfied, the burden is thrown on the plaintiff of proving the false- hood of such return, and the court, if requested in a proper manner, ought to instruct the jury." But if the defendant re- quest the court to instruct the jury "that it is incumbent on the plaintiff to prove the falsehood of the return mentioned in the declaration," and no return be distinctly stated therein, the court ought to decline giving any instruction in pursuance of such request. In the case of Norris vs. Crummy et als., 2 Baud., 323, de- cided February 19, 1824, it was held : If a sheriff, before a judg- ment is obtained, makes an arrangement with the defendant by which he (the sheriff) undertakes, for a valuable consideration, to pay the debt to the plaintiff when the judgment is rendered, and execution sued out and return "ready to render," he will be considered as having " levied the debt " within the meaning of the statute ; and if he fails to pay the plaintiff, the sureties in his official bond will be liable for his default, unless the plaintiff was privy to such arrangement. In the case of Jacobs vs. Hill, 2 Leigh, 393, decided Novem- ber, 1830, a bond is executed to a sheriff during the first year of his shriffalty by a deputy sheriff and his sureties, the condition whereof recites that the sheriff has been commissioned sheriff of N., and that the deputy has undertaken the duties of the said office for and during the time the sheriff may continue in the office, etc. Held : That the contract here recited is the deputa- tion of the office, not only for the first, but for the second year also of the shriffalty, and the sureties are bound for the con- duct of the deputy during both years. The statute giving a summary remedy by motion for a sheriff against his deputy and his sureties does not authorize the court to allow interest. A motion is made against a sheriff for default of his deputy, CITATIONS TO THE CODE or VIRGINIA. 61 upon which the sheriff, with the assent of the deputy, but with- out the knowledge of his sureties, confesses judgment. Held : The record of his judgment is admissible evidence against the deputy's sureties, upon a motion by the sheriff against the deputy and his sureties. A deputy sheriff gives bond with eight sureties to the sheriff ; one of the sureties dies. Held : A motion lies on the bond against the deputy and the surviving sureties. In the case of Fletcher vs. Chapman, 2 Leigh, 560, decided March, 1831, neither the statute which gives the motion against a sheriff for a fine for failing to return an execution, nor the statute which gives a motion to a sheriff against his deputy to recover the amount of fines imposed upon the sheriff for the alleged faults of the deputy, is imperative on the court to give such judgments ; but the court, in its sound discretion, may give or deny judgment in such cases. Judgment is rendered against a sheriff for a fine for the alleged default of his deputy, the sheriff making no defence nor giving any notice to the deputy of the proceeding. This judg- ment is erroneous in point of law, and unjust upon the merits. Held : In such case the sheriff is not entitled to recover the amount of the fine from the deputy. In the case of McDaniel et als. vs. Brown's Ex'or, 8 Leigh, 218. decided March, 1837, judgment having been rendered against a sheriff, on account of the deputy's default, for a sum of money, with damages, at the rate of 15 per centum per an- num from a specified day till payment, a motion is made, under the statute, by the sheriff against the deputy and his sureties for the amount of that judgment. Held : On such motion the judg- ment against the deputy and sureties, like that against the sheriff, may be for damages continuing until payment. In the case of Scott's Administrator vs. Tankerley's Executor, 10 Leigh, 581 (2d edition, 608), decided February, 1840, a decree is rendered against the administrator of a sheriff for the default of the sheriff's deputy in not returning an execution; and thereupon a motion is made by the administrator of the sheriff against the executor of the deputy. At the hearing of the motion, evidence is offered to show that the motion against the sheriff's administrator was not within ten years from the return day of the execution. But it appearing that the executor of the deputy had notice from the administrator of the sheriff to defend the motion against the said administrator, and pro- mised to attend to it. Held : The sheriff's administrator is entitled to judgment against the deputy's executor. In the case of Skinker vs. Weaver, 4 Grat., 160, decided October, 1847, it was held : A judgment having been recovered against a high sheriff for the default of his deputy in failing to 62 CITATIONS TO THE CODE OF VIRGINIA. pay over money received on an execution, the high sheriff may, though he has discharged the judgment, maintain a motion against the deputy and his sureties for the amount of the judg- ment recovered against him. Upon this motion the high sheriff can only recover the amount of the judgment recovered against him ; and not the aggregate amount of debts, interest, and costs paid by him, with interest thereon. In the case of Lee County Justices vs. Fulkerson, 21 Grat., 182, decided June, 1871, it was held: Upon a motion against a high sheriff for the failure of his deputy to collect and account for the county levies which went into his hands, of which motion the deputy has notice, it is the duty of the deputy to defend the suit, and show, if he can, that he has accounted for them. In such a case, judgment having been rendered against the high sheriff, he is entitled to recover a judgment for the same amount against his deputy; and the deputy cannot show upon motion against him that he has paid the levies to the parties entitled. Judgment having been recovered against the deputy, he applies for and obtains an injunction, on the grounds that he had been induced to confess the judgment, upon the agree- ment of the high sheriff that the account should be settled by persons named, and the execution should only issue for the amount, if any found due from the deputy, and that in fact nothing was due, and in breach of this agreement, execution had been sued out on the judgment. At the hearing the injunction is dissolved and the bill dismissed, and this decree is affirmed on appeal. The deputy is estopped from proceeding by bill in equity against the justices of the county, to recover the amount he has paid to the county creditors above what he has collected from the county levies. The judgment recovered against the high sheriff is by a credi- tor of the county for money lent ; the deputy sustains no such relation to the creditor as will entitle him to be substituted to the rights of the creditor against the justices of the county, to enforce the payment of so much of the debt as they have* not levied for. The deputy sheriff pays the judgments recovered against him in 1847, and he does not institute his suit against the justices of the county until 1858. The statute of limitations is a bar to the claim. Qucere : Whether under any circumstances the deputy sheriff could maintain a suit against the justices of a county for their failure to lay the levy. And it seems he could not. In the case of Ramsey's Administrators vs. McCue et als., 21 Grat., 349, decided August, 1871, it was held : There is a judg- ment against a high sheriff for a fine for the failure of one of his deputies to return an execution, which the record showed had come into the hands of the deputy ; and the high sheriff satisfies CITATIONS TO THE CODE OF VIEGINIA. 63 the judgment. In fact, the execution had been delivered to another deputy, who formed the sheriffalty, who collected the money, and failed to pay it over, and to return the execution. The high sheriff may sue the last named deputy and the sureties on his bond, and recover the amount that he had paid. In the case of Crawford et als. vs. Turk (Sheriff], 24 Grat., 176 and 188, decided January, 1874, it was held : In an action by an execution creditor against a high sheriff for the failure of his deputy to pay over money made on the execution, the dep- uty is present at the trial and examined as a witness, but there is a verdict and judgment for the plaintiff. In a subsequent action by the high sheriff against the deputy and his sureties, on their bond with condition to indemnify the high sheriff from all loss and damages from the conduct of deputy in said office, the judgment against the high sheriff, in the absence of fraud and collusion, is conclusive evidence of the default of the deputy against not only the deputy, but also his sureties. Though the declaration in the action by the high sheriff does not allege that the deputy was requested to defend the suit against the high sheriff, or had an opportunity of doing so, or had notice thereof, his presence at the trial and being active in the defence may be proved by oral testimony. 1. In the case of Allebaugh vs. Coakley et als., Va. Reports, 75, 628, decided September, 1881, a deputy sheriff made default in paying over certain collections which were made, or ought to have been made, by him prior to 1869. A judgment for the amount of such collections was obtained against the sheriff in 1874, and the judgment was paid by him in 1878. In May, 1879, the sheriff moved against the deputy and his sureties for his judgment for the amount so paid with interest and damages. Held: That the claim of the plaintiff was not barred by the statute of limitations, notwithstanding the default of the deputy occurred more than ten years before his principal moved for judgment against him. 2. Under Section 46, Chapter 49, of the Code of 1873, whenever a sheriff becomes liable on account of the default of the deputy, whether a judgment has or has not been recovered against the sheriff, and although he has paid nothing to the creditor, he is entitled to recover against the deputy and his sureties the amount for which he may be so liable. Under the 47th Chapter of the same section the sheriff is authorized to proceed against the deputy and his sureties only when there has been a recovery against him, and a payment of the amount, in whole or in part, to the creditor. At common law the sheriff, upon paying the debt accruing from the default of his deputy, might at once bring an action against such deputies and his sureties for reimbursement. But 64 CITATIONS TO THE CODE OF VIRGINIA. until such payment no right of action could accrue upon the bond of the deputy. The object of the 46th Section aforesaid was to furnish a complete indemnity to the sheriff by providing for him a remedy by anticipation, so as to enable him to re- cover of the deputy in time to meet the demand of the credi- tor. The said 46th Section is cumulative, and was not designed to affect any of the sheriff's existing rights and remedies. He may, if he pleases, waive any proceeding under that section, await the termination of the creditor's action against him, pay the amount of the recovery, and then proceed by action on tha deputy's bond, or by motion under the 47th Section of the said chapter of the Code. If the deputy is notified of the creditor's action or motion against his principal, it is his duty to appear and defend it. It is in effect his suit and his liability, and that of his sureties is as fully established by the judgment as though it were a direct proceeding against the deputy himself. Such a judgment is a judicial ascertainment of the deputy's default or misconduct, which cannot be called in question in any subsequent proceed- ing against the deputy and his sureties. In such case the action of a sheriff against the deputy is not on account of the default of the latter, but for money paid un- der a judgment of a court of competent jurisdiction in a suit to which the deputy was the real party. The sheriff is not bound to prove the default or misconduct of the deputy or to show when it occurred. These are wholly immaterial inquiries. All that is necessary for him to do is, to show the action against him- self on account of the deputy's default, the notification of the deputy to defend, or that he had notice and did make defence, and the payment by the sheriff of the amount of the recovery. Under the said 47th Section the sheriff's right of action 'ac- crues from the time of his paying the amount of the recovery against him ; and the obvious meaning of the language of the statute, is, that after he has made such payment he may bring his action or motion thereafter against the deputy at any time within the period prescribed by the statute of limitations. The mere fact that the remedy is given the sheriff by the 46th Section for his protection and indemnity, can impose no obligation upon him to resort to that remedy under the peril of being barred of a right existing at common law and under another section of the statute. Whenever a former judgment is relied upon as a bar, whether by pleading or in evidence, it is competent for the plaintiff to show that it did not relate to the same property or transaction in controversy, and the question of identity thus raised is a matter of fact to be decided upon the evidence, if the record is CITATIONS TO THE CODE OF VIRGINIA. 65 itself silent. And so if the cause of action is diversible, or the pleadings involve two distinct propositions, it is competent to show that only one of them was submitted to and passed upon by the jury. Where the matters involved in a second motion were not submitted to the jury on the trial of the first motion, or, if submitted, could not have been legally adjudicated by them, no question of estoppel can arise. SECTION 911. The reference to 21 Grat., 182, is to the case of Lee County Justices vs. Fulkerson, cited supra, Section 910. CHAPTEE XL. CHAPTER XLI. CHAPTEE XLII. SECTION 925. In the case of the Board of Supervisors of Culpeper vs. Gor- rell et als., 20 Grat., 484, decided March, 1871, it was held: The board of supervisors of a county have authority to provide land for building a court-house, clerk's office, and a jail, either by purchase or proceeding to have it condemned in the mode prescribed in the statute. The board of supervisors of a county have authority to sell the lands belonging to the county on which the court-house and other public buildings stood. It is for the board of supervisors to determine what land they will procure for the public build- ing of their county; and whether their discretion is wisely or unwisely exercised in the selection, cannot be inquired into in the proceeding instituted to condemn the land. In the act authorizing the condemnation of the land for pub- lic purposes (Code, Chapter 50), the tenant of the freehold re- ferred to in Section 7 is the tenant in possession, appearing as the visible owner. In the case of Carroll County vs. Collier, 22 Grat., 302, de- cided June 22, 1872, on p. 310 it was said : In assumpsit by the contractor against a county for the price contracted to be paid for building a jail, the defendant pleads specially that the building was not completed in time, and that the material used, and the work, was defective, so that it was unfit for use as a jail, and the plaintiff takes issue on this plea. Upon the trial the defendant offers a witness to sustain the defence, when the plaintiff objects to the evidence, and offers in evidence an order of the court, showing that the court had appointed commission- ers to examine the buildings, and, upon their report that it had been done according to contract, had received it. Held : The 66 CITATIONS TO THE CODE OF VIRGINIA. plaintiff having taken issue upon the plea, the offer could not operate as an estoppel when offered in evidence, even if it would have been such if set up by replication to the plea, or if the trial had been upon the general issue. The order was not an estoppel, it not being a judgment, and the report of the commis- sioners not being an award. CHAPTEE XLIII. SECTION 946. In the case of Carpenter et als. vs. Sims, 3 Leigh, 675, decided May, 1832, it was held : Though authority is given to the county courts to open only such new roads as may be wanting for a public right of way to some one or more of the places mentioned by the statute, yet the purpose for which the road is wanting need not be stated in the petition of the applicant if it appear in any other part of the record, or be proved to the court ; and if this was a defect in the petition, the party opposed to the application, having appeared and prayed an ad quod dam- num, waived the objection. In the case of .Hollins vs. Patterson, 6 Leigh, 457, decided November, 1835, a county court, without petition or any of the proceedings required by the statute concerning roads, makes an order, summarily, on motion, for an alteration of a public road. Held : The court, as it had no jurisdiction to make such order, may, at a subsequent term, at the instance of a party aggrieved, and on hearing of the party on whose motion the alteration was ordered, set aside the order for alteration, and re-establish the old road. Upon a controversy in court touching the alteration of a pub- He road, the evidence leaves it doubtful whether the old road or the new is preferable, and the judge, upon his own knowledge of facts, and declaring such to be the ground of his judgment in the order, rejects the application for the new road. Held : There was no error in the judge in founding his order on his own knowledge, though that knowledge was not stated by him on oath as a witness in the cause. SECTION 947. In the case of Senter vs. Pagh, 9 Grat., 260, decided August 24, 1852, it was held : A county court, having made an order establishing a public road, and directing it to be opened, may entertain and act upon an application to discontinue the road before it has been opened. SECTION 948. In the case of Mitchell vs. Thornton et als., 21 Grat., 164, de- cided July, 1871, it was held: Upon application for a change of a road, the order directs the viewers to view the proposed alter- CITATIONS TO THE CODE OF VIRGINIA. 67 ations of the road (describing it), and to return to the court such view in the manner prescribed by law. It would have been more formal, and therefore better, to follow the terms of the law in the order, but the order is substantially and sufficiently conformed to it. Under the present law (Code, chapter 52, section 6), the viewers appointed to view the alteration proposed in a road, and report to the court, are not required to be sworn. And though the order appointing them directs them to be sworn, it need not be done. The writ of an ad quod damnum, issued in such a case, is defective for not directing any inquiry as to the damage to the residue of the tract beyond the peculiar benefits which will be derived in respect to such residue from the road. And the in- quest taken on such writ not making this inquiry is defective, and for this defect both the writ and the inquest will be quashed if the motion to quash is made at the proper time. In such a case the defendant, not having made any motion to quash the writ and inquest in the county court, but going to trial on the merits, waived the objection to the writ and inquest, and it is too late to move to quash them or any of the proceedings in the circuit court. Although in such cases there is an appeal as of right, and viva voce the testimony is heard in the circuit court on such ap- peal, yet, as a general rule, a party must make any objections he may have to the proceedings in the court of original jurisdic- tion ; and if he permits such proceedings to progress to the final trial of the case, without making the objection, he will be held to have waived them, and cannot make them for the first time in the appellate court. In such a case, on appeal by the de- fendant, it is his right and duty to begin, the judgment of the county court being prima facie right. SECTION 950. In the case of White vs. Coleman, 6 Grat., 138, decided July, 1849, it was held : A county court professing to proceed under the act of 1819 in opening a road, it is not necessary that the record of their proceedings shall show that the county court had previously dispensed with the act of 1835 in relation to roads, and retained the act of 1819. In such a case, where a party who opposes the opening the road should call for the production of the previous order of the county court dispensing with the act of 1835, and spread the whole evidence on that question on the record, and if he fails to do so, it will not be presumed in an appellate court that the county court,, though professing to proceed under the act of 1819, acted without law- ful authority. 68 CITATIONS TO THE CODE or VIEGINIA. SECTION 951. In the case of Lewis vs. Washington, 5 Grat., 265, decided October, 1848, it was held : No limitation to the power of the county court to establish a road is to be found in the degree of accommodation which it may afford to the public at large. This is a matter which addresses itself not to the authority, but to the discretion, of the court. The true limit to the authority of the court to establish a road is in the purpose for which the road is employed. A ter- minus of a proposed road must be at the court-house, or a pub- lic warehouse, landing, ferry, mill, coal mine, lead or iron works, or the seat of government, or in an already established road leading to one or more of these places ; but the other terminus may be at any place, whether public or private, or of any de- scription, and the road may accommodate many or one. The county court having established a proposed road, may authorize a particular individual to open it. In the case of The Commonwealth vs. Kelley, 8 Grat., 632, de- cided December, 1851, by the General Court, it was held : The mere use of a road by the public for however long a time will not constitute it a public road. A mere permission to the pub- lic by the owner of land to pass over a road upon it is more to be regarded as a license, and revocable at the pleasure of the owner. A road dedicated to the public must be accepted by the county court upon its records before it can be a public road. If a county court lays off a road before used into precincts, or appoints an overseer or surveyor for it, thereby claiming the road as a public road, and if, after notice of such claim, the owner of the soil permits the road to be passed over for a long time, the road may be well inferred to be a public road. In the case of Mitchell vs. Thornton et als. 21 Grat., 164, de- cided June, 1871, it was held, p. 176 : The writ of ad quod damnum issued in such a case is defective for not directing any inquiry as to damage to the residue of the tract beyond the pecu- liar benefits which will be derived in respect to such residue from the road ; and the inquest taken on such writ and inquest will be quashed if the motion to quash is made at the proper time. The regular mode of objecting to the inquest of the jury on account of the small amount of the damages assessed is by a motion to quash the inquest, on which motion evidence will be heard to prove if the damage assessed is insufficient. Until this is shown the inquest is conclusive on the question of damages. This objection may, however, be made on the hearing, and evi- dence may be then introduced by either party to show that the damages assessed are either adequate or inadequate. So, in such case upon appeal by defendant, he is entitled to introduce evidence in the circuit court to prove the inadequacy of the CITATIONS TO THE CODE OF VIRGINIA. 69 damages assessed by the inquest. In assessing the damages in such a case the defendant is entitled to have the value of the land taken for the road without deduction, and such further damages as the residue of this tract will sustain beyond the regular benefits which will be derived to said residue from the road. In the case of Jeter vs. Board et als., 27 Grat., 910, decided November, 1876, upon the petition of B. and others for the establishment of a road, the county court, in February, 1871, made an order that M., road commissioner, view the route pro- posed for the road and report, etc. In July, T., the road com- missioner of the township in which the road would lie, made a report, stating that, as to a part of the road, there was no objec- tion, and only J. claimed damages. There was an order of court establishing that part of the road not objected to, and a summons to J., who appeared and asked for a writ of ad quod tl'i'iiuium, which was ordered and executed and returned. The case was then continued, on motion of J. At a subsequent term J. moved the court to quash the return of the commissioner, which was done, and then at the same term B. and the other petitioners applied again for the road, and there was an order for a review, and B., &c., appealed from the order quashing the report. Held : M. having been the commissioner when the order directing the report was made, and he having been suc- ceeded in that office by T., the name of M. in the order was sur- plusage, and it was proper for T. to make the report. But if the objection could have ever been a good one, it was not made at the proper time, and was waived by J.'s applying for a writ of ad quod damnum, moving for a continuance of the case, and contesting it on other grounds. The provisions of the statute in relation to yards, gardens, etc., and as to a map or diagram of the route, are merely directory, and if any of them are not complied with, objection to the report on that ground must be made in due time, or it will be considered as waived. In this case it was not made in time, and was in effect waived. There may be an appeal as of right from an interlocutory or- der of a county court in a controversy concerning the establish- ment of a road. The judgment of the county court was final. As to much the larger part of the road, it had been established by a previous order of the court, and the order quashing the report put an end to the cause in that court. The order for another view of the route was a new proceeding. In the case of Taylor et als. vs. The Commonwealth, 29 Grat., 780, decided January, 1878, the defendants in an indictment for a nuisance for obstructing a street were the joint owners of 70 CITATIONS TO THE CODE OF VIRGINIA. a house and lot of two acres, fronting two hundred and sixty- four feet on Porter street in Manchester. The house was an- cient, and had been held by the defendants, and those under whom they claimed, for more than sixty years, according to its present enclosures. The city council of Manchester, holding that the said enclosures were in Porter street, directed that they should be removed, and the defendants obtained an in- junction to prevent it ; and this suit was pending in the same court. When the indictment was called for trial, the defend- ant moved that the case should be continued until the injunc- tion suit was decided. Held: The indictment was the appro- priate remedy in such a case, and the continuance was properly refused. The report of a case in a printed volume of reports of deci- sions of the Court of Appeals of Virginia, the original records of the case having been destroyed, held admissible in evidence to show that such a map as that mentioned in the report as Wat- kins' map actually existed, and was in the papers in said cause, and thereby to lay the foundation for the introduction, as further evidence in the cause, of a map purporting to be and certified as a map of Manchester by the clerk of the superior court of chancery of the Richmond district. Copies of two maps attached to two deeds for lots in Man- chester recorded in the clerk's office of Chesterfield county, one deed dated August 10, 1816, and the other January 3, 1847, held to be admissible for the purpose of ascertaining the scale and verifying the map of Manchester, certified by the clerk of the superior court of chancery for the Richmond district, which had been previously admitted as evidence, but for this purpose only. S. Taylor, under whom the defendants claimed the house and lot, was a member of the council of Manchester in 1855. Held : That certain proceedings of the council at that time, when he was present, in regard to what is called the Percival survey of the said town, were admissible evidence for the purpose of showing said S. Taylor's connection with said survey. William Byrd having laid off the land comprised within certain limits of the town of Manchester into lots and streets, and made a map of the town so laid off, showing the lots and streets, and having lots sold with reference to said map, all the streets desig- nated on the said map were irrevocably dedicated to the public ; and the public have the right to have the streets as designated on that map, throughout their entire length and width, thrown open forever, and kept free from any or all encroachments or obstructions. The act of the House of Burgesses passed November, 1769, establishing the town of Manchester as laid off into lots and CITATIONS TO THE CODE OF VIRGINIA. 71 streets, was an acceptance on the part of the colony of Virginia of the streets thus dedicated to the public. The streets of the city of Manchester having been dedicated to the public by William Byrd when he laid off the town, and this dedication having been accepted by the act of the House of Burgesses in November, 1769, the streets are public high- ways ; and any occupation of a street, or a part of the street, by the owner of an adjoining lot, however long continued, cannot give such occupant a right to hold it, or bar the right of the public to the use of the street to its full width and extent. In the case of Plecker vs. Rhodes, 30 Grat., 795, decided October 3, 1878, it was held, p. 799: The General Assembly has the power to authorize an individual to build a toll- bridge over a river. When the statute confers the privilege of build- ing the toll-bridge, that determines the question of public con- venience, and the only question to be ascertained by the pro- ceedings in the court is the damages to the owners of the land condemned. In the case of LinJdnkoker vs. Graybitt, 80 Va., 835, decided October 1, 1885, it was held: Easements follow land into as- signee's hands; division of a dominant tract does not destroy easement. Owner of any portion may claim right so far as ap- plicable to his portion; provided provision does not impose additional charge on servient tracts. If one take conveyance of land surrounded by lands of his grantors and others, he can enforce a right of way under plea of necessity against' none but his grantors. L. bought part of the R. lands, knowing how they were situ- ated as to public roads, and they were entitled to a right of way in one direction over G.'s lands to a public highway, and con- tracted with his grantors for a right of way out to the public road over other lands than G.'s. He cannot now be permitted to abandon his said rights of way and have a public road estab- lished for his own exclusive right, and to the great damage of G. over G.'s land in another direction to a public highway. In the case of Carpenter et als. vs. Sims, 3 Leigh, 675, de- cided May, 1832, it was held : The party opposed to opening a new road appears and prays an ad quod damnum, which the court awards, and appoints a day for holding the inquest ; the defendant shall be presumed to be present in court at the time the writ is awarded and the day of inquest appointed ; so that the sheriff need not give him notice of the day of the holding the inquest. SECTION 955. In the case of Wtdte vs. Coleman, 6 Grat., 138, decided July, 1849, it was held: It is proper that the county court should 72 CITATIONS TO THE CODE OP VIRGINIA. direct that the damages assessed by the jury to the owner of the land through which the road is opened, and the cost of the inquest, should be provided for and paid out of the county levy. But it is error to direct all the costs of the applicant for the road to be thus provided for and paid. His costs, except costs of the inquest, should be recovered against the contestant. SECTION 989. In the case of County Court of Gloucester vs. County Court of Middlesex, 79 Va., 15, decided March 20, 1884, a run divides Gloucester and Middlesex counties, and a swamp lies in Middle- sex adjacent to the run. County Court of Middlesex notified County Court of Gloucester of the necessity of a bridge over the run and a causeway over the swamp. Latter concurred as to the necessity, and appointed commissioners to confer with the commissioners appointed by the former. The commissioners also concurred as to the necessity; but those of Gloucester thought the causeway should be made at the sole expense of Middlesex, and so reported, and their report was confirmed. The County Court of Gloucester refused to appoint commis- sioners to unite with those of Middlesex in letting the cause- way to contract ; thereupon County Court of Middlesex applied to the Circuit Court of Gloucester for a mandamus. County Court of Gloucester demurred. Held: The section provides only for a bridge or causeway between two counties, and not for a bridge between the counties and a causeway wholly in one county, though adjacent and necessary to the bridge. Glouces- ter County was under no obligation to aid in making the cause- way, and in such case a mandamus should be denied. In the case of Gloucester County vs. Middlesex County, 88 Va., 843, decided March 10, 1892, it was held: A county is not liable for any part of the expenses of maintaining a causeway wholly in an adjacent county, though necessary to approach a bridge over a stream between the two counties. (This is the sequel to the above cited case from 79 Va., p. 15.) SECTION 990. In the case of The Dinwiddie Justices vs. The Chester-field Justices, 5 Call, 556, decided November, 1805, it was held: There must be a rule to show cause before a writ of mandamus can be awarded. 'J n ^ tlie CaSe f Erander vs - Th* Chesterfield Justices, 5 Call, 18, decided November, 1805, it was held : A mandamus is the proper remedy to compel the county court to erect a bridge on a public road. Records are the regular proofs of a public road ; but they will not be presumed without great length of time and a sug- gestion that they have been lost. CITATIONS TO THE CODE OF VIRGINIA. 73 In the case of Gloucester County vs. Middlesex County, 88 Ya., 843, decided March 10, 1892, it was held: A circuit judge has, in vacation, power to compel a county, by mandamus, to contribute to maintain a bridge or causeway over a place be- tween it and an adjacent county. CHAPTEE XLIV. SECTION 1016. In the case of Roche vs. Jones (Sergeant), 87 Va., 484, decided March 5, 1891, it was held: This section held not to a town having less than five thousand inhabitants and no corporation court, notwithstanding the provision that the word " city " shall be construed to mean a town of five thousand inhabitants and a corporation court. SECTION 1020. In the case of Paulson vs. The Justice of Accomac, 2 Leigh, 743, decided November, 1830, a justice of the peace of the county of A. leaves this State with the intent to establish his residence in another State; he remains in another State nine months, but does not establish his permanent residence there, and then he returns to, and resumes his former residence in the county of A. Held : He has no right to resume the exercise of his office of justice of the peace of A. In the case of The Commonwealth vs. Tate, 3 Leigh, 802, de- cided July, 1831, it was held: The office of deputy sheriff is incompatible with the office of justice of the peace, though by the statute law of Virginia the office of high sheriff is not so, and the acceptance of the office of deputy sheriff vacates the office of justice. In the case of The Commonwealth vs. Sherrard, 4 Leigh, 643, decided by the General Court December, 1832, it was held : By the statute of 1821-'22, Chapter 26, if a justice of the peace is ap- pointed to and accepts an office under the government of the United States, or any other incompatible office, he thereby va- cates his office of justice of the peace. His resignation of the in- compatible office will not restore him to the office of justice of the peace, nor can he ever lawfully exercise this office with- out a new commission. SECTION 1038. In the case of Jones <& Co. vs. The City of Richmond, 18 Grat, 517, decided April, 1868, it was held: On the 2d of April, 1865, in anticipation of the evacuation of the city of Richmond by the Confederate army, the council of the city ordered the destruction of all the liquor in the city, and under- took to pay for it. The council, under the charter of the city, had authority to make the order, and the pledge of the city of 74 CITATIONS TO THE CODE OF VIRGINIA. Richmond is responsible for the value of the liquor destroyed under the order of the council. In the case of Town of Danville vs. Sutherlin, 20 Grat., 555, decided April 18, 1871, it was held : The council of the city of Danville has authority, under its charter, to contract loans and issue certificates of debts. In 1863 the council sold the bonds of the city to be issued at public auction for Confederate money and for a bond of $5,000, bearing 6 per cent, interest, and pay- able at the end of twenty years. The purchaser gave $11,050 Confederate currency, being at the time as ten for one of gold. This is usury. In the case of Davenport & Morris vs. Richmond City, 81 Va., 636, decided April 15, 1886, it was held : Storage of gun- powder in a city being dangerous, its regulation is a matter within the power of the corporate authorities, and their judg- ment, as expressed in an ordinance requiring the removal of powder magazines, is conclusive upon the courts. An ordinance requiring the removal of powder magazines in a city, the sites whereof were sold by the city council to vendees for the purpose of erecting thereon such magazines, does not impair the obligation of a previous valid contract with that coun- cil, and does not take private property without compensa- tion, but is constitutional, being a valid exercise of the police power. In the case of Kehrer vs. Richmond City, 81 Va., 745, decided April 22, 1886, it was held : Such corporation, acting within the scope of its powers with reasonable care and skill in opening, grading, and improving its streets, is not liable to the adjacent owner, whose land is not actually taken, for consequential dam- ages to his premises, unless there is a provision in its charter, or income statute, creating the liability. It is a damnum absque injuria. Where the specifications of damages are rested in the declaration only upon the elevation of the grade of the street from which, as alleged, it results that plaintiff is obliged to maintain a wall to prevent earth falling from the street on his premises ; that ingress and egress is made inconvenient and un- safe ; that the value of his premises is diminished ; that his business has been injured, and that the flow of rain-water upon his premises causes further damages, a demurrer will lie. ^ In the case of Green vs. Ward et als., 82 Va., 324, decided September 16, 1886, by Section 14 of its charter power is conferred on the city of Alexandria "to specifically tax a lot adjoining a street on which paving is done or a curbstone put down (whether on. the sidewalk or carriage-way) not exceeding two-thirds of the expense of the curbstone or paving on that half of the street opposite the lot." Held : This section does not authorize a spe- cial assessment for street improvements to be made a personal. CITATIONS TO THE CODE OF VIEGIKIA. 75 charge against the owner, but only a charge on the lot so taxed. Nor does this section authorize a tax for the grading of the street, but only for the paving and laying down of curbstones on the same. This case is the same cited as from 10 Va. Law Journal, 683. SECTION 1042. In the case of Gilkeson vs. The Frederick Justices, 13 Grat. r 577, decided November 18, 1856, it was held : The Constitution of Virginia, Article 4, Sections 22, 23, and 25, in relation to taxa- tion and finance, relates to taxation by the General Assembly for purposes of State revenue, and does not apply to taxes, levies, etc., by counties, corporations, etc., for the local purposes of such bodies. The General Assembly has full power to authorize counties, municipal corporations, and the like, to levy taxes within their bounds for their peculiar purposes ; and the mode, subject, and extent of such taxation is not limited or regulated by the pro- visions of the Constitution in relation to taxation and finance. The act of June 7, 1852 (Session Acts of 1852, p. 12), authorizing assessments in certain cases on the offices of sheriffs and sergeants, is not in violation of the Constitution. An assessment of four hundred dollars upon the sheriff of Frederick county, laid on the 4th of October, and to be paid on the 1st of February following, is not in violation of the act of 1852. If the time of payment fixed by the court was incon- sistent with the act, that would not render the assessment void ; but it would be corrected as to the time of payment. In the case of Wades et als. vs. The City of Richmond, 18 Grat., 583, decided April, 1868, it was held : The act (Session Acts 1866-'67, p. 635) extending the boundaries of the city of Richmond is not unconstitutional in any of its provisions. The act operates upon the municipal relations of the inhabi- tants of the territory annexed to the city, but in political elec- tions they are still to vote as part of the county of Henrico. The General Assembly having authority to extend the bound- aries of the city, the justice or expediency of it is not a ques- tion of which the courts can take jurisdiction. That the tax-payers of the county may have the burthen of taxation increased, or the creditors may have their security lessened by the reduction of the value of the subjects of taxa- tion, or that the inhabitants of the annexed district may be sub- jected to heavier taxation, does not affect the constitutionality of the act. SECTION 1048. The reference to 18 Grat., 20, is an error. 76 CITATIONS TO THE CODE OF VIRGINIA. CHAPTEK XLV. SECTION 1060. In the case of Beach vs. Trudgain et als., 2 Grat., 219, de- cided July, 1845, it was held : A house in a town may be pulled down and removed, to arrest the spread of a fire, when it is in- evitable that the house will take fire and be consumed if it is permitted to stand, and it is inevitable that if it takes fire and is consumed it will spread the fire to other houses. A house in a town may not be pulled down and removed to arrest the spread of a fire if it may be prevented taking fire by the use of the means within the power of the parties pulling it down, or if the use of these means would prevent it communi- cating fire to other houses. Parties pulling down a house in a town to arrest the spread of a fire are responsible for the damages thereby sustained by the owner, if the house may be prevented taking fire by the use of the means within the power of the parties pulling it down. The declaration charges a trespass in entering the plaintiff's close and pulling down his house. The plea says the house was in imminent danger of taking fire and of communicating the fire to other houses. The replication to the plea avers that by a diligent use of the means in the power of the defendants the house might have been prevented taking fire. Held : This is no departure in pleading. It is not necessary to state in the replication the means by which the house might have been pre- vented taking fire. TITLE XVII. CHAPTEK XLVI. SECTION 1068. In the case of Carrie's Administrators vs. The Mutual As- surance Company, 4th H. and M., 315, decided November, 1809, it was held: A member of the Mutual Assurance Company against fire is bound by an act of assembly varying the terms of the original act of incorporation, such act being passed at the instance of a legally constituted meeting of the said society ; although that individual member was not present at said meet- ing. When an act of incorporation provides that there shall be *' three directors, out of whom a president shall be chosen," it is sufficient if the president be elected by a legally constituted meeting, and at the same time with the other directors, without having previously been appointed a director. In the case of Bank of Marietta vs. Pindall, 2 Kand., 465, decided May 31, 1824, it was held : A corporation of another CITATIONS TO THE CODE OF VIRGINIA. 77 State may maintain an action against its debtors in the courts of Virginia. But a bank of another State cannot enforce a pri- mary contract made in Virginia, as by discounting notes or otherwise. In the case of Taylor's Administrator vs. The Bank of Alex- andria, 5 Leigh, 471, decided November, 1834, it was held : A corporation of the District of Columbia, or of any State of the nation, and even a foreign corporation, may maintain suits in the courts of Virginia. It is not necessary for such corporation to show in its decla- ration how it was incorporated ; it may prove that it is incorpo- rated under the general issue. The printed copies of the Acts of Congress, distributed to the executives of the different States to be distributed among the people, are proper evidence of the statutes therein contained without other authentication. A statute is alleged in pleading to have been passed by Con- gress, to-wit: in 1811; but the statute given in evidence bears date in 1810. As the date is pleaded under a videlicet, the vari- ance is immaterial. In the case of Rivanna Navigation Co. vs. Dawsons, 3 Grat., 19, decided April, 1846, it was held : A bequest to a corporation of its own stock is valid. In the case of Callison vs. Hedrick, 15 Grat., 244, decided July, 1859, it was held: An act authorized the construction of a road from M. to L., and the road was located and a plat thereof returned to the clerk's office, and an owner of land through which the road was to pass did not apply to the county court within the year to have her damages assessed. The road was, in fact, made but a part of the distance and stopped, and at the next session of the legislature a company was incorporated to construct the remainder of the road. This company is entitled to make their road upon the location made under the previous law, and the owner of the land, not having applied for damages within the year from the return of the plat, is precluded from recovering them. In the case of the City of Richmond vs. Long's Administrator, 17 Grat., 375, decided April 18, 1867, it was held: Municipal corporations, in the exercise of their political, discretionary, and legislative authority, are not liable for the misconduct, negli- gence, or omissions of the agents employed by them. Municipal corporations, in the discharge of ministerial or specified duties, assumed in consideration of the privileges conferred by their charter, are liable for the misconduct, negli- gence, or omission of their agents; and this, though there be tin absence of special rewards or advantages. The city of Richmond is not responsible for the loss of a 78 CITATIONS TO THE CODE OF VIRGINIA. slave admitted into the city hospital, on the ground of the neg- ligence of its agents at the hospital. In the case of Anderson vs. The Commonwealth, 18 Grat., 295, decided January, 1868, it was held : Section 93 of the act of Feb- ruary 15, 1866, for the assessment of taxes, embraces express companies chartered by the State of Virginia, and the present stockholders are personally liable for taxes due to the Common- wealth from the company, incurred while they were stock- holders. Though the charter of an express company did not make the stockholders personally liable for the debts of the company, the said assessment act, passed subsequent to the charter, has so far modified the charter as to make them personally liable. The charter reserving to the General Assembly the power to modify or repeal the charter was effectually done by the act for the assess- ment of taxes, and it is not in violation of Section 16, Article 1, of the Constitution. Whether Section 93 of the said assessment act makes the stockholders of an express company liable for taxes due from the company primarily or only as guarantors ? In the case of Davis vs. Lee Camp, No. 1, C. V., 18 South- eastern Keports, 839, decided January 11, 1894, under this sec- tion of the Code every corporation, when not otherwise pro- vided, has the right to purchase, hold, and grant real estate and personal property. The defendant corporation, by special act, has power to hold land, to provide a home for invalid Confed- erate veterans, provided that it shall not hold, at any one time, more than 500 acres. The government was vested in a board of visitors, who purchased land. At a regular meeting of the camp the board of visitors was authorized to sell a portion of the tract purchased, if advisable. Subsequently the board of visitors sold the tract in question, which sale was ratified by both the board and the camp. Held : That the board of visitors had full power to make the sale, and the purchaser obtained a good title. SECTION 1069. In the case of Yeaton vs. Bank of the Old Dominion, 21 Grat., 593, decided January, 1872, it was held: Under the power vested in the charter of a private corporation to repeal, alter, or modify the charter, the legislature may repeal the charter, but cannot modify it without the consent of the corporation. But if the corporation refuses to consent to the modification, it must discontinue its business as a corporate body. The bank of D., located at Alexandria, within the Federal lines, has a branch at P., within the Confederate lines. The cts of March 9, 1862, and May 16, 1862, of the Eichmond government not having been assented to by the mother bank, CITATIONS TO THE CODE OF VIRGINIA. 79 though acted on by the branch at P., did not operate to amend the charter of the bank at D. In the case of City of Richmond vs. Richmond <& Danville Railroad Company, 21 Grat., 604, decided January, 1872, the charter of the Richmond & Danville Eailroad Company pro- vides that all machines, wagons, vehicles or carriages belonging to the company, with all their works and all profits which may accrue from the same, shall be vested in the respective stock- holders forever, in proportion to their respective shares ; shall be deemed personal estate, and exempt from any charge of tax whatever. Held : The real estate owned and used by the com- pany for the purposes of their business is embraced in the pro- vision, and is personal estate. All the said property, real and personal, is exempt from taxation, both State and municipal. The exemption from taxation of the real estate of the com- pany in the city of Richmond is not unconstitutional as being in conflict with the charter of the city, previously granted, giving the city the power to tax real estate for the purposes stated in the city charter; the city having ample means of taxation left for the payment of her expenses and debts. A city charter is not a contract between the State and the city, securing to the city the absolute power of taxation beyond the control or modi- fication of the legislature. The power of exemption as well as the power of taxation is an essential element of sovereignty, and can only be surrendered -or diminished in plain and explicit terms. Municipal corpora- tions are mere auxiliaries of the government, established for the more effective administration of justice ; and the power of taxa- tion confided to them is a delegated trust. In the case of Silliman et als. vs. Fredericksburg, Or. & Charl. R. R. Co., 27 Grat., 119, decided February, 1876, by statute the charter of a railroad company is extended to enable it to com- plete its road, and it is authorized to issue its bonds, registered or coupon, for $1,200,000, and sell them at less than par, and secure them by mortgage or deed of trust upon all the property and franchises of the company. And by the same act it is pro- vided, that unless the road is completed to a certain point by a certain day, the company shall forfeit to the State their cor- porate franchises and rights, together with their road-track and their road-bed, and all works and materials thereon, or other property ; the State to hold the same as trustee for certain par- ties named. The company accepted the charter, issued $480,000 of bonds, and executed a deed of trust upon its property and franchises to secure them. The company failed to complete the road to the point fixed by the time prescribed, or, as it would seem, to expend any money in its construction, and the State proceeded to declare the charter forfeited, and to take posses- 80 CITATIONS TO THE CODE OF VIRGINIA. sion of the road and other property and franchises of the com- pany, and to turn it all over to the cestui que trust, who organized another company. Persons, one of whom was president of the road, and all who were the principals in the road when the said act passed, or were connected with them, claimed they were the holders of $323,500 of the bonds issued and filed their bills to enforce the deed of trust. Held : Under the provision for the forfeiture of the charter, the State took the property and the franchises of the company free from the trust. Upon the failure of the company to complete the road to the point fixed by the day prescribed, the forfeiture became abso- lute and complete ; and the State having entered and elected to hold under the forfeiture, no inquisition or judicial proceedings or inquest or finding of any kind was required to consummate the forfeiture. From the relation of these plaintiffs to the company and to each other, they must be held to have had notice of the terms of the act which authorized the execution of the deed of trust under which they claim, and as no money was expended on the road, or, as they claim, paid for interest, the strong presumption is that the company received no money for the said bonds. The plaintiffs are not, therefore, innocent purchasers for value, and holders of said bonds without notice of the provisions of the said act. Persons dealing with corporations must take notice of what is contained in the law of their organization ; and they must be presumed to be informed as to the restrictions annexed to the grant of power by the law by which the corporation is author- ized to act. In all cases, even in cases of negotiable instruments, a party contracting with an agent must inquire into his authority ; and either a State or a corporation is bound only when its agents keep within the limit of their authority. In the case of the B. & 0. It. It. Co. vs. Noel's Administrator, 32 Grat., 394, decided November, 1879, it was held : A railroad company incorporated in another State, which leases a road lying in this State, and operates it as the owner of the same, is liable to be sued in the courts of Virginia for an injury which occurred on said road operated in this State, and said foreign company has no right to remove the suit to the United States court. Whilst the B. & O. K. R. Co., as a corporation of the State of Maryland, can have no legal existence outside of that State, yet, as the lessee of a Virginia railroad company, exercising all the powers and functions of the latter, it may be subject to all its duties and obligations. So acting, it may be treated as a Virginia corporation quoad the line of railroad under its con- CITATIONS TO THE CODE OF VIRGINIA. 81 trol in Virginia, so far, at least, as its liability to the citizens of Virginia is concerned. In the case of Cowardin et als vs. Universal Life Insurance Co., 32 Grat., 445, decided November, 1879, it was held : An insurance company, incorporated by the laws of New York, having its principal place of business in that State, which had complied with the laws of Virginia in relation to foreign insur- ance companies doing business in this State, by making the deposit and appointing a citizen of Virginia an agent, by power of attorney, etc., as required by the statute of Virginia, is not a resident of this State, within the meaning of the foreign attach- ment laws of Virginia, and the property of said insurance com- pany is liable to such attachment as a non-resident. The reference to 75 Va., 57, 215 and 263, are errors, as are also the references to 76 Va., 503 and 956. In the case of Iladen vs. Farmers and Mechanics Fire Asso- ciation, 80 Va., 683, decided September 24, 1885, it was held : Persons dealing with a corporation are effected with notice of the provisions of its charters, constitution and by-laws. SECTION 1072. See the case of Hodges vs. S. de JL It. 12. Co., 88 Va., 653, quoted Section 1093. SECTION 1074. In the case of James River and Kanaviha Canal Co. vs. Teays, 3 Grat., 270, decided July, 1846, it was held : The franchise, as well as the property of the citizen, may be taken for public uses, upon making just compensation therefore. An act directs the public engineer to fey off a road and bridges thereon, and declares that upon a return of the plats thereof to the clerk's offices of the county courts in which the road located lies, the land shall be vested in the Commonwealth for the use of the road. Held: That on a compliance with the law, the title to the land on which the road is located, and the sites of the bridges are fixed, is vested in the Commonwealth, and that the Commonwealth or her grantee may maintain eject- ment therefor against the former owner. In the case of i\ie. Board of Supervisors of Culpeper vs. Gor- rell et ah., 20 Grat., 484, decided April, 1871, it was held : In the act authorizing the condemnation of land for public uses, Code, chapter 5(J, the tenant of the freehold referred to in Section 7 is the tenant in possession appearing as the visible owner. The board of supervisors, proceeding to have certain land condemned for the purpose of building thereon a court-house, clerk's office and jail, and the persons whose lands .are proposed to be con- demned not objecting to the report of the commissioner, other citi/cus of the county have no right to make themselves parties 6 82 CITATIONS TO THE CODE OF VIRGINIA. in the proceeding and object to the confirmation of the report. In such case the circuit court of this county has no jurisdiction on the application of these citizens to award a writ of error and supersedeas to the judgment of the county court refusing to admit such citizens as parties, and confirming the report of the commissioner. In the case of the Va. & Tenn. R. R. Co. vs. Campbell's Ex'or, 22 Grat., 437, decided July 13, 1872, it was held : Under the statute, the case of a railroad company asking the county court to ascertain the compensation to a land owner for the land proposed to be taken for its purposes, which has remained in the court for more than one year without being determined, may be removed to the circuit court. In such a case, if the circuit court sets aside the report of the commissioners, that court should not send the case back to the county court, but should take jurisdiction of the case, and proceed in it with the same powers that are vested in tlje county court by the statute. A land-owner, or his executor, whose land has been taken by a railroad company for its purposes, cannot apply to the court for the appointment of commissioners to ascertain the compen- sation of the land-owner for the land so taken. After the com- pany has made a motion for commissioners to ascertain the com- pensation due to a laud-owner, and the commissioners have reported, and the court has allowed the money to be received by the clerk, and directed him to pay it to the land-owner, or hold it until the further order of the court, the executor of the land- owner applies to the same court for commissioners to ascertain such compensation, and this case is removed to the circuit court. The removal of this case does not bring up the first, and neither the circuit court nor this court can inquire whether there is error in the action of the court in the first case. The record in the first case may be used by the company in their defence upon the second motion. In the case of Roanctke City vs. Berkowitz, SO Ya., 616, de- cided June 27, 1885, it was held : Report of commissioners to condemn land for municipal purposes will not be quashed on the ground that a commissioner, appointed at the instance of the municipality, was interested, where the record does not show that the municipality was ignorant that he was interested when so appointed. Ignorance of the attorney making the motion for the appointment is not evidence of the municipality's ignorance that the commissioner was interested. But if the commissioner was interested and disqualified, and municipality was ignorant, report will not be quashed, if record shows that the damages assessed are not excessive. Corporations condemning land un- der Code of 1873, ch. 56*, sec. 11, must take and pay for the fee- simple, and not merely an easement, except it be a turnpike CITATIONS TO THE CODE OF VIRGINIA. 83 company. This statute requiring the condemnation of the fee- simple is not repugnant to the constitution ; and if it was, mu- nicipality cannot be heard to deny the validity of the statute under which it has chosen to proceed. The ordinance to which laud-owner refused assent, allowing him to build across the drain to be cut through land proposed to be condemned for the purpose, cannot be considered in assessing the damages. In the case of Foster vs. City of Manchester, 89 Va., 92, de- cided June 16, 1892, it was held : Defences allowed by the Code, Sections 1074 and 1075, must be made, if made at all, in the con- demnation proceedings. SECTION 1075. See case of Foster vs. City of Manchester, 89 Va., '92, cited siq)ra, Section 1074. SECTION 1076. In the case of Pltzer vs. Williams, 2 Rob., 241, decided August, 1843, a person owning real estate died intestate, leav- ing a widow and children, and dower not being assigned to the widow, she continued in the mansion house and the plantation thereto belonging. Under the statute, notice was given the widow as the proprietor of the laud, by a person desiring to build a machine useful to the public, and to abut his dam against the said land, that application would be made for a writ of ad r'it*, states that the applicant is the 120 CITATIONS TO THE CODE or VIRGINIA. owner of the banks on both sides of the stream. This is, in effect, the statement that he is the owner of the land, and espe- cially if it appears from the other parts of the proceedings that he is the owner of the land on both sides of the stream. The petition states that the applicant desired a writ of ad quod dam- num to issue for the purpose of erecting a water grist-mill, etc. This is a sufficient compliance with the statute. When, upon a fair and reasonable construction of the inqui- sition, it is substantially responsive to the requirements of the statute, that is sufficient. When the petition or the order of the court directing the writ of ad quod damnum to issue does not specify the height of the dam proposed to be erected, it is pro- per and .correct for the jury to specify it in their inquisition. There is an exception for the refusal of the county court to continue the cause on account of the absence of a material wit- ness ; but on appeal to the circuit court by the exceptant, the case is again heard upon the record of the county court and upon the testimony of witnesses then examined before the court, one of whom is the witness referred to in the exception, and the judgment of the county court is affirmed. The want of the wit- ness's testimony before the county court cannot be the subject of complaint in the court of appeals. An exception is taken to the judgment of the county court authorizing the erection of the dam, on the ground that it would be injurious to the health of the neighborhood ; and the evi- dence is stated in the exception. The circuit court passes on that question upon full evidence, and to its opinions there is no exception ; and as both the county and circuit courts were sat- isfied upon that point, the court of appeals will presume that the proofs showed that the health of the neighborhood would not be affected by the erection of the dam. The judgment of the court giving leave to erect the dam provides that the appel- lant shall keep a ferry-boat at the crossing of a public road over the stream across which the dam is to be erected. Held : This is authorized by the statute; and as the county and circuit courts have held upon the proofs that a ferry-boat at that place will sufficiently remedy any impediment to the crossing of the stream, the court of appeals will presume that they acted rightly, nothing being shown to the contrary. The duty of keeping up the ferry-boat is not merely personal to the grantee of the privilege of erecting the dam, but it is a condition of the grant, and attaches to it into whose hands soever it may pass. The kind of boat to be kept must be such an one as the exigencies of the travel and trade on the road shall require. It is the duty of the party required to keep up the ferry-boat to ferry the public over the stream without charge. CITATIONS TO THE CODE OF VIRGINIA. 121 SECTION 1348. In the case of Rowletfs Execiitor vs. Moody, 4 H. & M., 2, decided May 3, 1809, it was held : An inquisition on a writ of ad quod damnum in a mill case having found that the lands of T. R., deceased, would be overflowed, and a summons having issued to T. C., acting executor and trustee of the decedent, to show cause why leave should not be granted to erect the mill, and T. C. having appeared and contested the motion, he was precluded from afterwards saying that he was not legally sum- moned as the tenant or proprietor of the land. SECTION 1349. In the case of Noel vs. Sale, 1 Call, 495, 2d edition, 431, de- cided April 27, 1799, it was held : If an inquisition be im- properly quashed, the plaintiff should pray a new writ or except to the court's opinion. The deputy sheriff may take an inquisition. In the case of Coleman (Executor and Trustee of Roicletf) vs. Moody, 4 H. & M., 1, decided May, 1809, it was held : The men- tioning in the writ of ad quod damnum a certain height for a mill-dam, is no ground for setting aside the proceedings at the instance of the opposing party; notwithstanding no particular height was specified in the order directing the writ. SECTION 1350. In the case of Wroe vs. Harris, 2 Washington, 162, 1st edition, p. 126, decided October term, 1795, it was held : It is not necessary that the inquisition should set forth the injury which the land below the dam may sustain. In the case of Eppes vs. Cralle, 1 Munf., 258, decided May 1, 1810, it was held : On a petition for leave to add to the height of a mill-dam, the only proper subject of inquiry is, what dam- ages will be occasioned by the proposed addition. It is error, therefore, to direct the jury to assess such other damages ac- cruing from the dam already erected as were not contemplated by the original jury. But an error in this respect should be regarded as surplusage (the petition for the writ of ad quod damnum having prayed only for such inquiry as the law au- thorizes) if the jury assessed such erroneous damages sepa- rately, and the court did not direct the same to be paid, but only the damages properly assessed. In the case of Dawson vs. Moons, 4 Munf., 535, decided March 24, 1815, it was held : A date to the inquisition, upon a writ of ad quod damnum, is not essential, if it be stated, under the hands and seals of the jurors, that, "in obedience to the annexed writ, they viewed the lands in question," etc. If the jury in a mill case find that a certain number of acres of laud 122 CITATIONS TO THE CODE OF VIRGINIA. belonging to A. B. will be overflowed, estimated at a certain price ; and that all other damages which the said A. B. will sus- tain for probable injury to other lands, and inconveniences, are estimated by them at a farther sum, expressed in their inquest^ it is special enough. In the case of Coleman (Executor and Trustee of Rowletf] vs. Moody, 4 H. & M., 1, decided May, 1809, it was held : If the jury find a certain number of acres of land will be overflowed, "together with all other damages to the value of a specified sum," it is special enough, and will not bar an action for any damages not foreseen and estimated by them. An order of court granting leave to erect a mill is valid, though no order be made directing the payment of the damages found by the inquisition. An inquisition in a mill case ought not to be set aside on the ground that the jurors, before they were sworn, and afterwards^ when their verdict had been agreed upon, but before they had signed it, ate and drank moderately at the expense of the appel- lant, no corruption appearing, and the opposite party con- senting. It is sufficient for the clerk to state in the record that the writ of ad quod damnum; with the inquisition annexed, was re- turned by the sheriff, without inserting a copy of the signature of the sheriff, or of his deputy, to the return ; a copy of the in- quisition itself, with the signatures of the jurors, being inserted in the record. In the case of Kownslar vs. Ward, 1 Va. (Gilmer), 127, de- cided October 14, 1820, it was held : It is as necessary that an inquest should be had as to injuring the health of neighbors, obstructing navigation, etc., on an application to raise a mill- dam already erected, as to construct it originally. The verdict in such a case responding only to the damage done a contiguous owner by flooding his lands, and not to the health of the neigh- borhood, is imperfect, and the writ will be quashed. In the case of Smith vs. Waddill, 11 Leigh, 532, decided February, 1841, S. applied to the county court for leave to build a water grist-mill and dam Upon an ad quod damnum the in- quisition found " that the health of the neighbors would be less or as little annoyed as it was possible it should be by the erec- tion of any dam " upon return of the inquisition. W. opposed the grant of leave, objecting that the inquisition was insufficient and defective in regard to the effect upon health, and intimated that if that objection should be overruled, he should offer testi- mony on that point. The county court overruled the objection to the inquisition, and then refused to hear W.'s testimony, and gave S. leave to build the mill and dam ; "W. appealed to the circuit superior court, which heard the testimony he had to offer, but, CITATIONS TO THE CODE OF VIRGINIA. 123 without deciding upon it, held : That the inquisition should be quashed, and the cause remanded to the county court. Upon appeal taken by S. to this court, held : That the inquisition was sufficient, and the circuit superior court erred in quashing it, but the county court also erred in refusing to hear the testimony offered by W., and so the orders of both courts were erroneous; that the order of the circuit superior court should be reversed with costs, and the cause remanded to that court, to be there heard and decided upon the evidence and the merits. SECTION 1353. In the case of Wood vs. Boughan, 1 Call, 330, 2d edition, 285, decided May 14, 1798, the court below directed an issue to try the title, and as the parties acquiesced therein, it was held that the error was waived. But such a verdict is not conclusive, as it can only be for the information of the court. See Eppes vs. Cralle, 1 Munf., 258 ; see 1350, supra. In the case of Harwell vs. Bennett & Walker, 1 Band., 282, decided January, 1823, it was held : On the trial of a writ of a the border circuits of the church, the division of the churches of which is provided by the plan of 1844, the property in the churches, etc., of the congregations within the bounds of the Baltimore Conference, properly belongs to the churches in connection with the Baltimore Conference com- posed of those members of that conference who refused to con- cur in the action of the conference in 1862, and continued to adhere to the Methodist Church. The Harmony church, in Loudoun county, was not a border church, and the plan of division in 1844 did not apply to it, and though a majority of members of that church decided to go with the Baltimore Conference, South, the other party remain- ing in connection with the Baltimore Conference are entitled to the possession of the church property. In the case of Boxwell et als. vs. Affleck et als., 79 Va., 402, decided September 25, 1884. In 1854, N. devised after C.'s death a house and lot at B. to the trustees of the Methodist Episcopal Church at B. for the use of said church. B. was in the limits of the Baltimore Conference, then attached to the Methodist Episcopal Church, but afterwards in 1866 attached to the Metho- dist Episcopal Church, South. In 1876 a joint commission, ap- pointed by the general conferences of the two churches, awarded this house and lot to the Methodist Episcopal Church, South. C., the life tenant, died in 1881. Upon a bill by the trustees of the Methodist Episcopal Church, South, at B., to determine the title to this house and lot, held : Baltimore Conference by its said action in 1866 did not become entitled to the benefit of the plan of division adopted in the General Conference of the church in 1844. The devise was to a particular congregation of the Methodist Episcopal Church, and hence was valid. It was not to that church in a general sense. If it had been, it would have been invalid. The General Conference of the Methodist Episcopal Church had no power, directly or indirectly, to transfer the property of the said congregation of the Methodist Episcopal Church at B. to the Methodist Episcopal Church, South. Hence the joint commission at Cape May had no power to make such award. In the case of Protestant Episcopal Educational Soc. vs. Church- 138 CITATIONS TO THE CODE OP VIRGINIA. man's Reps, 80 Va., 718, decided September 25, 1885, testator iu 1880 bequeathed money to be invested by a fiduciary, giving ample security in safe interest-bearing funds, the interest only to be applied to the use of his legatee during her life, and at her death "the principal and any unexpended interest to be paid to the trustees of the Protestant Episcopal Educational Society of Virginia " (incorporated in 1875), " said bequest to be used exclusively for educating poor young men for the Epis- copal ministry, upon the basis of evangelical principles as now established." Held : The bequest to the legatee corporation is not null and void, because not absolute for its own use as a cor- porate body, but in trust to be exclusively used for the trusts therein named, and because those trusts are religious in their character, and too vague and indefinite to be upheld by the law of this State, or to be administered by a court of chancery, even if merely educational as contemplated by the Code 1873, Chapter 77, Section 2, the bequest is not contrary to public policy, but is valid both at common law and under Code 1873, Chapter 77,. and is enforceable by the chancery courts of this State. SECTION 1399. For the reference to 32 Grat., 428, see supra Section 1398. In the case of Wade et als vs. Hancock & Agee, 76 Va., 620. 4. Idem. Statutory. In summary proceedings under Code 1873, Chapter 76, Section 9, circuit courts have jurisdiction to appoint, change, and remove church trustees ; but not to determine how they shall administer their trust. 5. Idem. Idem. Appointment, change, and removal of trustees, under that section, must be "on application of the proper authorities of the congregation," and not of any vol- unteer. SECTION 1400. In the case of Finley et als. vs. Brent et als., 87 Va., 103, de- cided November 20, 1890, it was held : Act of February 18, 1867 (Acts 1866-'67, p. 649), when applied to property thereto- fore granted in trust for a particular congregation, alters the terms of the trust and impairs the obligation of the contract, and is repugnant both to the Federal and State Constitutions. SECTION 1405. In the case of Linn et als. (Trustees) vs. Carson's Administra- tor et als., 32 Grat., 170, decided September, 1879, it was held, p. ] 12 : The act, Chapter 76, Sections 12, 13, Code of 1873, does not prohibit the sale of church property for the payment of debts incurred in the purchase thereof, or to reimburse a party who has advanced money or made himself liable for any such debts at the instance of the trustees of the church, and the CITATIONS TO THE CODE OF VIRGINIA. 139 discipline of the church authorizing parties so advancing money on account of such property to raise said sum of money by mortgage or sale, a court of equity will, at the suit of a party so liable or so advancing money, subject the lot and buildings to sale for the purpose of satisfying the claim. SECTION 1408. In the case of Linn et als. (Trustees} vs. Carson s Adminis- trator et als., 32 Grat., 170, decided September, 1879, it was held, p. 182: The act, Chapter 76, Sections 12, 13, Code of 1873, does not prohibit the use of church property for the pay- ment of debts incurred in the purchase thereof, or to reimburse a party who has advanced money or made himself liable for any such debts at the instance of the trustees of the church ; and the discipline of the church authorizing parties so advancing money on account of such property to raise said sums of money by mortgage or sale, a court of equity will, at the suit of a party so liable or so advancing money, subject the lot and buildings to sale for the purpose of satisfying such claim. TITLE XXII. CHAPTEE LXV. SECTION 1420. In the case of Protestant Episcopal Educational Society vs. Churchman's Reps., 80 Va., 718, decided September 25, 1885. Testator in 1880 bequeathed money to be invested by a fiduciary, giving ample security in safe interest-bearing funds, the interest only to be applied to the use of his legatee during her life, and at her death " the principal and any unexpended interest to be paid to the trustees of the Protestant Episcopal Educational Society of Virginia" (incorporated in 1875), " said bequest to be used exclusively for educating poor young men for the Episco- pal ministry, upon the basis of evangelical principles as now established." Held : The bequest to the legatee corporation is not null and void, because not absolute for its own use as a cor- porate body, but in trust to be exclusively used for the trusts therein named, and because those trusts are religious in their bharacter, and too vague and indefinite to be upheld by the law of this State, or to be administered by a court of chancery, even if merely educational, as contemplated by Code of 1873, Chap- ter 77, Section 2. The bequest is not contrary to public policy, and, under Code of 1873, Chapter 77, is enforceable by the chancery courts of this State. 140 CITATIONS TO THE CODE OF VIRGINIA. CHAPTER LXVL SECTION 1429. In the case of Childrey et als. vs. Rady et als., 77 Va., 518, decided May 11, 1883, it was held : Constitution, Article 8, Sec- tion 2, constitutes the governor, attorney-general, and superin- tendent of public instruction, a board of education for the State. Act approved llth July, 1870 (Code, 1873, Chapter 78, Section 7, clause 4), empowers this board to appoint and remove dis- trict school trustees, until otherwise provided, and applies as well to cities and towns as to counties. In the case of Kilpatrick et als. vs. Smith et als., 77 Va., 347, decided March 29, 1883, it was held : Article 9, Section 2, of the Constitution provides for a board of education, composed of the governor, superintendent of public instruction, and attorney- general, and prescribes its duty; and section directs that the General Assembly shall make all needful rules and regulations to carry into effect the public free school system provided for by this article. Acts 1869-'70, Chapter 259, Section 2, declares that the public free school system shall be administered by a board of educa- tion, a superintendent of public instruction, county superin- tendent of schools, and district school trustees; and Section 7 prescribes the duties of the board of education ; among which is that of appointing and removing district school trustees, until otherwise provided. SECTION 1437. In the case of Pendleton vs. Miller, 82 Va., 390, decided Sep- tember 16, 1886, it was held: The office of these superinten- dents is a constitutional office, and the term of office is fixed by the State Constitution at four years. The joint resolution approved February 26, 1886, is repug- nant to the Constitution, and void. This is the case cited from 10 Virginia Law Journal, 606. In the case of Roller vs. Jordan, 10 Virginia Law Journal, 628, decided October 8, 1886 : On June 7, 1883, Boiler was ap- pointed superintendent of schools for Augusta county, and held the office until July 1, 1886, when Jordan, who was appointed thereto on March 20, 1886, took possession thereof, upon peti- tion for mandamus by B. to recover the office. Held : Under the repeated decisions of this court, Boiler was appointed to fill the unexpired term ending June 30, 1885, and since that time has been a mere locum tenens, holding by virtue of the constitutional provision which allowed him to hold until his successor was appointed and qualified. Jordan is entitled to hold the imexpired portion of the term, which began July 1st and will end June 30, 1889 ; his appoint- CITATIONS TO THE CODE OF VIRGINIA. 141 ment is valid (the board of education having authority to fill vacancies), notwithstanding the appointment was made under the joint resolution of February 26, 1886, which was held to be null and void in Pendleton vs. Miller, 11 Virginia Law Jour- nal, 606. SECTION 1441. In the case of Stewart <& Palmer vs. Thornton et als., 75 Va., 215, decided January 20, 1881, it was held : The county school boards are, by act of assembly, constituted a corporation, and a suit to recover a fund belonging to the corporation must be brought in its corporate name. A suit by persons styling themselves the directors of the county school board of their county cannot be maintained. SECTION 1453. In the case of Owens vs. O'Brien et als., 78 Va., 116, decided December 6, 1883, it was held : Such trustees are required to take and subscribe the oath of office as a condition precedent to entering on the discharge of their official duties, and their fail- ure to take it within the prescribed time, vacates their trustee- ship. If the city council fails to act within the time prescribed, it becomes the duty of the board of education to appoint, and such appointees constitute the lawful trustees of the city. SECTION 1455. In the case of Kilpatrick et als. vs. Smith et als., 77 Va., 347, decided March 29, 1883, it was held : Article 9, Section 2, of the Constitution provides for a board of education, composed of the governor, superintendent of public instruction, and attorney - general, and prescribes its duty, and this section directs that the General Assembly shall make all needful rules and regula- tions to carry into effect the public free school system provided for by this article. Acts 1869-70, Chapter 259, Section 2, declares that the pub- lic free school system shall be administered by a board of edu- cation, a superintendent of public instruction, county superin- tendent of schools, and district school trustees ; and Section 7 prescribes the duty of the board of education, among which is that of appointing and removing district school trustees until otherwise provided. In the case of Childrey et als. vs. JKady et als., 77 Va., 518, decided May 11, 1883, it was held : School trustees are officers, and as such are embraced by the Constitution. Article 8, Sec- tion 6, declaring that " all persons, before entering upon the discharge of any functions as officers of this State, must take and subscribe the following oath or affirmation." This oath is a condition precedent to the discharge of official duties as school trustees, and failure to take this oath causes a vacancy, which, 142 CITATIONS TO THE CODE or VIRGINIA. unless filled by the city council within the prescribed period, must be filled by the board of education. The case of Childrey et als. vs. Rady et als., here referred to, construes a statute now repealed. CHAPTEE LXYII. SECTION 1523. The case of McLeer et als. vs. Caldwell et als., 77 Va., 596, does not construe this section, but is ruled by it. SECTION 1528. In the case of CMldrey et als. vs. Rady et als., 77 Va., 518, decided May 11, 1883, it was held : School trustees are officers, and as such are embraced by the Constitution. Article 8, Sec- tion 6, declaring that " all persons, before entering upon the discharge of any functions as officers of this State, must take and subscribe the following oath or affirmation." This oath is a condition precedent to the discharge of official duties as school trustees, and failure to take this oath causes a vacancy, which, unless filled by the city council within the prescribed period, must be filled by the board of education. In the case of Kilpatrick et als. vs. Smith et als., 77 Va., 347, decided March 29, 1883, it was held : Acts 1870-71, Chapter 308, Section 3, makes each city ward a school district. Section 7 provides that all vacancies may be supplied at any time within sixty days after occurrence by the city council, which shall di- vide the trustees into three classes, to hold office one, two, and three years respectively, and enacts that, " should the city coun- cil in any case fail to act within the time prescribed, it shall be the duty of the board of education to fill the vacancy or vacan- cies without further delay." CHAPTEE LXVIII. CHAPTEE LXIX. SECTION 1563. In the case of Frazier vs. Military Institute, 81 Va., 59, de- cided October 8, 1885, it was held : The corporate name of the institute at Lexington is, " The Virginia Military Institute." CHAPTEE LXX. CHAPTEE LXXI. CHAPTEE LXXIL CHAPTEE LXXIII. SECTION 1651. In the case of Lewis et als. vs. Whittle et als., 77 Va., 415, CITATIONS TO THE CODE OF VIRGINIA. 143 decided April 19, 1883. In 1854 the Medical College of Virginia was incorporated with a board of nineteen visitors, named in the charter, and required to make annual reports to the second auditor. Power was reserved by the legislature to modify, alter, or repeal the charter at pleasure. An appropriation of $30,000 was made to the college in 1860, in consideration that it convey all its property to the literary fund. The conveyance was made. In 1866 an appropriation of $1,500 was made, and a like sum has been annually appropriated since then. The charter empowers the governor to fill any vacancy which may occur in the board by reason of death, resignation, or other- wise. In 1882 the governor removed the entire board of visi- tors and appointed a new board. The former refused to sur- render, and on the petition of the latter for a writ of manda?nus, held : 1. The college is a public corporation. 2. The visitorial authority is in the State. 3. The power of removing and appointing the visitors is re- served in the charter to the legislature, and has not been granted to the governor. 4. To him has been given only the power to fill vacancies which may occur by reason of death, resignation, or otherwise, but not to remove, and so create a vacancy in order to fill it. 5. There is no such thing in this State as a visitor holding, as in England, by life-tenure. CHAPTEK LXXIV. TITLE XXIII. CHAPTER LXXV. SECTION 1669. In the case of Miller vs. Rutledge et als., 82 Va.,863, decided February 10, 1887, it was held : The legal presumption is that all men are sane. The burden of proof is on the alleger of in- sanity. Legal competency to act is the possession of mental capacity sufficient to transact one's business with intelligence and understanding of what he is doing. Mere weakness of understanding is no objection to a man's disposing of his own property. The test of legal capacity is said to be that the party is capable of recollecting the property he is about to dispose of, the manner of distributing it, and the objects of his bounty; the particular act being attended with the consent of his will and understanding. In the case of Porter etals. vs. Porter et als., 89 Va., 118, de- cided June 16, 1892, it was held : The legal presumption is that 144 CITATIONS TO THE CODE or VIRGINIA. all men are sane, and the burden of proof is on him who alleges unsoundness of mind in an individual. Miller vs. Butledge, 82 Va., 867, " Mere weakness of the understanding is no objection to a man's disposing of his own estate." Beverly vs. Walden, 20 Grat., 147, " The testimony of witnesses present at ihefactum is more to be relied on than .the witnesses based upon facts which may be true, and yet not be the result of unsoundness of mind." SECTION 1688. In the case of Statham vs. Blackford (Superintendent} et als., 89 Va., 771, decided March 22, 1893, where a lunatic, who has been confined in an asylum, is released temporarily for her im- provement, and after such release completely recovers, man- damus will lie against the superintendent of such asylum to grant her a certificate of discharge without her return to the asylum for examination. Where the superintendent claims the right to retake the lunatic, and it is at the home of herself and all the parties that the apprehended act will be done, held: That mandamus proceedings for her discharge are properly commenced in the court at the place of her home. SECTION 1697. In the case of Harrison vs. Garnett, 86 Va., 763, decided April 3, 1890, it was held: A circuit court has no jurisdiction to adjudge a person insane. When once a person has been ad- judged by a county or corporation court, or the justices before whom he is examined, the circuit court has concurrent jurisdic- tion with such court to appoint a committee for the lunatic. SECTION 1698. See the case of Harrison vs. Garnett, 86 Va., 763, cited supra Section 1697. SECTION 1700. In the case of Harrison vs. Garnett, 86 Va., 763, decided April 3, 1890, it was held : A circuit court has no jurisdiction to adjudge a person insane. When once a person has been ad- judged by a county or corporation court, or the justice before whom he is examined, the circuit court has concurrent jurisdic- tion with such court to appoint a committee for the lunatic. SECTION 1701. In the case of Boiling vs. Turner, 6 Band., 584, decided December 13, 1828, it was held: A committee of a lunatic, ap- pointed by the chancellor, is a mere commissioner of the court, managing the personal estate of the lunatic under the direction the chancellor, and is responsible to the court as a receiver, CITATIONS TO THE CODE OF VIRGINIA. 145 removable in its discretion, and not liable to be sued at law on claims either against the lunatic himself or his estate, as in the case of a committee appointed under the statute. SECTION 1702. In the case of Bird's Committee vs. Bird, 21 Grat., 712, de- cided January, 1872, it was held : Where there is a committee of a lunatic, every suit respecting the person or the estate of the lunatic must be in the name of the committee. But where no committee of a lunatic has been appointed, or where the committee appointed has been removed for an account, and he objects to the parties, the court may make an order for the cause to proceed in the name of the lunatic by some fit per- son as her next friend, if the one mentioned in the bill is not such an one ; or the court may direct the appointment of a com- mittee, and the amendment of the bill by making such commit- tee a co-plaintiff or defendant in the suit. In such a case, if the defendant does not make such an objec- tion in the court below, and there is an account and decree against them, the appellate court will consider that he has waived the objection, and will not reverse the decree on that account. In 1836, the committee of a lunatic receives her estate, which consists principally of money, and he does not invest it, but re- tains it in his own hands. During the war he pays her expenses in Confederate money. These payments are to be scaled as of the date of payment. Where a committee of a lunatic is charged in his account with the annual interest on the money of the lunatic in his hands, he is entitled to his commission upon such interest. Whatever may be the correct general rule under the cir- cumstances of the case, interest should be charged upon in- terest. In the case of Cole's Committee vs. Cole's Administrator, 28 Grat., 365, decided March, 1877, W., committee of a lunatic, C., settled his account in 1858, which showed him indebted to C. in the sum of $1,761.72. In 1863 W. again settled his account, showing a balance against him of $1,394.71, as of the 1st of November, 1863, the only charges against him in this account being the balance of the previous account. In March, 1864, upon the petition of W., the judge of the circuit court made an order authorizing him to invest the amount of one thousand dollars in Confederate or State bonds, and in the same month W. deposited this sum with the treasurer of the Confederate States, and received a certificate showing he was entitled to re- ceive a 4 per cent, bond of the Confederate States ; but it does 10 146 CITATIONS TO THE CODE OF VIRGINIA. not appear that the bond was ever issued. Held : The money in the hands of W. having been received in good money, the order of the judge was not authorized by the statute, and W. must account for it in good money. The commissioner, in settling the account of W., makes two statements, the only difference in them being that in one he gives W. credit for the one thousand dollar Confederate bond, and in the other he omits it ; and he refers the question of W.'s rights to the credit of the court. The court adopts the statement, giving him the credit, and decrees accordingly. On appeal, held : An exception to the report was not necessary, and the appellate court may direct the decree. The accounts settled in 1858 and 1863 speak of W. as trustee of C., but in the account by the commissioner he is treated as committee of C. There having been no exception to the report for bringing into the latter account the charges in the first two, W.'s administrator cannot object to the report on this ground in the appellate court, he not having excepted in the circuit court. A bill says : " Your complainant, C., who, being a person of unsound mind, sues by his next friend and committee, A." It will be considered and treated as a suit by the committee. In the case of Creigler's Committee vs. Alexander's Executor, 33 Grat., 674, decided September, 1880, it was held : As a gen- eral rule, a committee of a lunatic is only to be charged simple interest upon the balances found against him on a settlement of his account. A committee of a lunatic, who qualified as such in 1838, and continued to act until his death, in 1875, and did not settle his accounts, is not entitled to commissions on his receipts from 1838 to 1859, and the statute of March 3, 1867 (Code of 1873, Chapter 128, Section 9), is not retrospective in its operation, and therefore the court has no authority to allow said commissions under that act. In the case of Hauser (Guardian ad litem. <&c.} vs. King et als., 76 Va., 731. (P. 736.) Idem. Voluntary Release Case at Bar. Insolvent commit- tee of lunatic sister made a trust deed to secure, first, D. and A., his sureties in his bond as committee, and J., his surety, in debt to C. ; afterwards other debts. Lunatic was supported by committee, who received her estate, but charged her no board. Reasonable charge for board would absorb her estate and leave no liability on the sureties on his bond. J. died insolvent with- out paying anything on the debt for which he was surety. On bill to distribute the trust funds, held : Committee was entitled, under Code of 1873, Chapter 82, Section 48, to apply lunatic's personality to her support so far as necessary; and having maintained her out of his own means, has a claim against her CITATIONS TO THE CODE OF VIRGINIA. 147 own estate for his reimbursement, which claim he has no right to release, and thus put a burden on the sureties on his bond. In the case of PannilVs Adm'r vs. Galloway's Committee et als., 78 Va., 387, decided January 31, 1884, it was held : In 1847, J. was appointed committee for G., a lunatic, by an order of the circuit court of H. county. In 1853, P. was, by an order of the county court of said county, appointed committee of said lunatic, so far only as his interest in a certain estate was con- cerned, and, with two sureties, executed bond ; and this order was never reversed, and under it P., as such committee, pos- sessed himself of the lunatic's estate. Held : In 1853 the county court was a court of general jurisdiction, and invested by law with special jurisdiction over the persons and estates of lunatics. Neither the committee nor his sureties can in another proceeding object that the order was void. It might be different if the lunatic objected to the legality of the appointment of the committee. Whatever estate of the lunatic the committee re- ceived by virtue and under color of his appointment he is liable for. If one assume to act as a trustee in relation to trust pro- perty without just authority, he shall be hel<} liable as if he had been lawfully appointed. J., the committee of G., who had been appointed by the circuit court, was largely indebted, and procured judgment and execution to be obtained against him by J. through H., his next friend, and on the execution slaves and other personal property were received with the approval of H. by P., who had been appointed committee of J. as to a certain estate only by the county court, which slaves, etc., were not con- verted to P.'s own use, but were lost by the results of the late war. Held : Under the circumstances of this case P. and his sureties cannot be held liable for said slaves, etc. So far as any of the property received by P. on the execution was converted to his own use, he and his sureties are liable. The estate of the committee should be first exhausted before that of his sureties is touched for money for which he is officially liable. In the case of Paxton vs. Stuart et als., 80 Va., 873, decided October 8, 1885, it was held : Pending a suit against a lunatic represented by his committee, the lunatic dies, the committee ipso facto becomes functus ojficio and the suit abates, and must be revived and proceed in the same name of the lunatic's per- sonal representative and heirs, and all the proceedings had after lunatic's death and before such revival, are void. SECTION 1703. See the case of Paxton vs. Stuart et als., 80 Va., 873, cited supra, Section 1702. 148 CITATIONS TO THE CODE OF VIRGINIA. TITLE XXIV. CHAPTEK LXXVI. SECTION 1719. In the case of The City of Richmond vs. Supervisors of ffenrico, 83 Va., 204, decided April 21, 1887, it was held: A municipal government " establishes " a hospital by purchasing, according to the then existing law, a farm and the buildings on it specially for that purpose. This is the case cited from 11 Virginia Law Journal, 651. SECTION 1721. In the case of The City of Richmond vs. Long's Adminis- trator, 17 Grat., 375, decided April 18, 1867, it was held : The city of Richmond is not responsible for the loss of a slave ad- mitted to the city hospital, on the grounds of the negligence of its agents at the hospital. CHAPTER LXXVII. CHAPTER LXXVIII. CHAPTER LXXIX. CHAPTER LXXX. TITLE XXV. CHAPTER LXXXI. SECTION 1788. in the case of Atlantic & Virginia fertilizing Company vs. Kishpaugh, 32 Grat., 578, decided December, 1879, it was held : The acts in relation to the inspection, labelling, etc., of fertilizers, are not in conflict with this section and are in force in this State. In the case of Niemeyer et als. vs. Wright, '75 Va., 239, de- cided January 27, 1881, it was held : A statute containing a prohibition and a penalty makes the acts which it punishes un- lawful ; and the same may be implied from a penalty without a prohibition. But it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract m#de in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void. Conceding the general rule to be as above stated, the mere imposition of a penalty by a statute for doing or omitting to do an act, does not of itself in CITATIONS TO THE CODE OF VIRGINIA. 149 every case necessarily imply an intention by the legislature that every such contract in contravention of the statute shall be void in the sense that it is not to be enforced in a court of justice. The acts of March 29, 1871 (Code of 1873, Chapter 227), and of March 29, 1877 (Acts of 1876-77, Chapter 249), which requires under heavy penalties certain things to be done by persons selling commercial manures, does not avoid the con- tract for such sale; and a party selling the said manures may recover upon such contracts in an action at law, though he has not complied with the directions of the statutes. SECTION 1789. In the case of Blanton (Commissioner) vs. Southern Fertilizer Company et als., 77 Va., 335, decided March 29, 1883, it was held : Chapter 249, Acts 1876-'77, establishing the department of agriculture, and empowering the commissioner of agriculture to make all necessary rules and regulations for carrying out the intentions of the act, does not authorize him to levy a tax upon manufacturers and sellers of fertilizers for the purpose of rais- ing money for the use of the department, in the shape of the charge on tags, as required by rule number two, or of any charges on such tags. But the commissioner has power to en- force the use of a tag to be attached to each package of fertilizer, showing that the same is registered in the department, without any charge therefor. Hence the statute changing the law. CHAPTER LXXXII. CHAPTER LXXXIII. SECTION 1797. In the case of Glass vs. Davis et als., 23 Grat., 184, decided March, 1873, it was held: Under the first proviso to the second section of the act of April 29, 1867, in relation to inspection of tobacco (Session Acts, 1866-'67, p. 967), the owners of a public warehouse may close it as such, at any time, in the mode there- in prescribed. And thereupon the authority of the inspector, ceases, and their lease of the warehouse terminates. The owners of a public warehouse may close it on a certain day and open it on the same day as a private warehouse, where everything is to be done as in public warehouses, except the in- spection of tobacco. SECTION 1816. In the case of Thweat & If in ton vs. Finch, 1 Washington, 217, decided at the fall term, 1793, the court held: Inspectors are liable to the owner for tobacco delivered to them, though removed by a stranger on a forged order. The declaration 150 CITATIONS TO THE CODE OF VIKGINIA. need not show that the inspectors were public inspectors, and the warehouse to be established by law. In the case of Commonwealth vs. Colquhouns, 2 H. & M., 213, decided April, 1808, it was held: The Commonwealth cannot be compelled to make good the loss of tobacco received, in- spected, and passed at a public warehouse, but not delivered by the inspectors on application to the persons holding the notes; notwithstanding the same was unlawfully converted to their own use by the inspectors, or is otherwise missing and unaccounted for, and the inspectors are insolvent. In the case of Page (Governor) vs. Peyton, 2 H. & M., 566, decided May 25, 1808, it was held: An action may be main- tained on the inspector's bond, in the name of the governor, for the benefit of a person injured by the non-delivery of tobacco, although the law directs the original bond to be transmitted to the treasurer, and is silent as to the prosecution of suits thereon ^ the person injured in such case having his option either to bring such suit or an action in his own name against the inspectors for the penalty (imposed by the law) of double the value of the tobacco. In the case of Thweatts Administrator vs. Jones' Administra- tor, <&c., 1 Band., 328, decided March, 1823, it was held: In equity, contribution may be claimed by one inspector of to- bacco against his co-inspector for the amount of a judgment had against the former, for failing to deliver the tobacco when legally demanded, which judgment he has discharged when the failure does not proceed ex maleficio, or from some actual fraud or voluntary wrong. But it is incumbent on the party asking relief to show that he is innocent of such imputations. CHAPTER LXXXIV. SECTION 1864. In the case of Delaplane vs. Crenshaw c# Fisher, Same vs. Haxall, Crenshaw cfc Co., 15 Grat., 457, decided January, 1860, it was held : The inspector of flour is bound to inspect it by 'boring through the head of the barrel with an auger not exceed- ing a half inch in diameter. An inspector of flour refusing to inspect flour by boring through the head of the barrel with a half-inch auger will be compelled to do it by mandamus from the court. SECTION 1878. In the case of Delaplane vs. Crenshaw & Fisher, Same vs. Haxall, Crenshaw & Co., 15 Grat., 457, it was held : If there could be in Virginia a legal valid usage or custom, the effect of which is to operate per se as an exception to the general rule of the common law, a usage or custom for the inspector of flour, CITATIONS TO THE CODE OP VIRGINIA. 151 who by the statute is to receive a specified money compensa- tion, and to take to his own use the flour drawn from the barrel in the process of inspection, called a draft flour, as an additional compensation or perquisite, would be bad, as being unreasonable, unjust, and contrary to the policy of the law. Although a custom when otherwise good may override and displace the common law rule, yet a statute introducing a new principle, with a negative either express or necessarily implied, must be strictly pursued, and no custom can be set up against it. A custom for the inspector of flour to take the draft flour, may have existed longer than the memory of any living man, yet, as the statute shows the commencement of the inspection of flour in Virginia, and as this period is within the limitation prescribed for the commencement of a custom, the custom is bad. The doctrine of presumptions cannot be applied to this cus- tom, because (1), The presumption is repelled by the evidence ; and (2), Because the doctrine of presumption can only apply to things in grant, and where there is a party by whom the grant could be made as well as one to receive it. There is no customary law in Virginia which per se can vest a party claiming under it. If a custom had been organized by a statute, either expressly or by necessary implication, it will thereby receive vitality, and the right claimed under it may be asserted as conferred by the statute. The act, Code, chapter 88, p. 413, does not recognize, either ex- pressly or by implication, the right of the inspector to take the draft flour, or to use an auger or trier more than half an inch in diameter. The act having directed that an auger of not more than a half of an inch in diameter shall be used in inspecting flour, a cus- tom to use a larger auger is bad, though the inspector says he cannot execute his duty satisfactorily with an auger of the size prescribed by the statute. The inspector of flour is bound to inspect it by boring through the head of the barrel with an auger not exceeding half an inch in diameter. An inspector of flour refusing to inspect flour by boring through the head of the barrel with a half-inch auger, he will be compelled to do it by mandamus from the court. The evidence of a member of the legislature is inadmissible to prove the knowledge of the members as to the existence of the custom of the inspector to take the draft flour, when the statute was enacted by them for the purpose of ascertaining the true meaning of the statute. In a civil suit (whatever may be the law in a criminal case), 152 CITATIONS TO THE CODE OF VIRGINIA. after the judge presiding at the trial has given an instruction to the jury the counsel should not be allowed to discuss be- fore the jury the same matter which the court has already de- cided. SECTION 1891. In the case of Atlantic & Virginia Fertilizer Company vs. Kishpaugh, 32 Grat., 578, decided November, 1879, Section 48 of Chapter 86 of the Code of 1873, and those sections follow- ing in relation to the inspection, labelling, etc., of fertilizers, are not in conflict with the provisions of the act approved March 29, 1877, entitled, "an act to establish a department of agri- culture, mining and manufacturing for the State" (Acts 1876-'77, p. 240) ; are not repealed by the last named act ; and are in force in this State. The Atlantic & Virginia Fertilizer Com- pany were the manufacturers of a fertilizer which was labelled on the bags containing it: "Eureka, two hundred pounds am- moniated bone superphosphate of lime," and which was sold by its agents to different parties, some of whom gave their nego- tiable notes, with Kishpaugh as endorser of the same. The notes were not paid, and in an action of debt by the company against Kishpaugh his sole defence under the plea of nil debet was, that the labels on the bags were not in conformity with the statute (Section 48, Chapter 86, Code of 1873), and that consequently the sales made to the makers of the notes for whom he was en- dorser were illegal and void. Held : The label aforesaid was a sufficient compliance with the terms of the statute, and that the company is entitled to recover on said notes given for the price of said fertilizers. In the case of Niemeyer et als. vs. Wright, 75 Va., 239, de- cided January 27, 1881, it was held : A statute containing a prohibition and a penalty makes the acts which it punishes un- lawful ; and the same may be implied from a penalty without a prohibition. But it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void. Conceding the general rule to be as above stated, the mere imposition of a penalty by a statute for doing or omitting to do an act does not of itself, in every case, necessarily imply an intention by the legislature that every such contract in contravention of the statute shall be void in the sense that it is not to be enforced in a court of justice. The acts of March 29, 1871 (Code of 1873, Chapter 227), and of March 29, 1877 (Acts of 1876-77, Chapter 249), which require under heavy penalties certain things to be done by persons selling commercial manures, does not avoid the con- tract for such sale ; and a party selling the said manures may CITATIONS TO THE CODE or VIRGINIA. 153 recover upon such contracts in an action at law, though he has not complied with the directions of the statutes. In the case of Blanton (Commissioner) vs. Southern Fertilizing Co. et als., 77 Va., 335, decided March 29, 1883, it was held : Chapter 249, Acts 1876-'77, establishing the department of ag- riculture, and empowering the commissioner of agriculture to make all necessary rules and regulations for carrying out the in- tentions of the act, does not authorize him to levy a tax upon manufacturers and sellers of fertilizers for the purpose of raising money for the use of the department in the shape of the charge on tags, as required by rule No. 2, or of any charges on such tags. But the commissioner has power to enforce the use of a tag to be attached to each package of fertilizer showing that the same is registered in the department without any charge there- for. CHAPTEE LXXXV. CHAPTEE LXXXVI. CHAPTEE LXXXVII. TITLE XXVI. CHAPTEE LXXXVIII. CHAPTEE LXXXIX. CHAPTEE XC. CHAPTEE XCI. SECTION 2004. In Ex pai'te Poole et als., 2 Va. Cases, 276, decided by the General Court, it was held : A seaman who signs a contract to perform a voyage is bound to specific performance, and may not elect to pay damages for a breach of it, and the master may, by the maritine law, pursue and bring back his seaman who deserts. CHAPTEE XCII. SECTION 2007. In the case of Groner et als. vs. City Council of Portsmouth, 77 Va., 488, decided May 10, 1883, it is well settled that a gen- eral grant of power carries with it the necessary means to effectuate the purpose of the grant. Act approved March 3, 1882, Session Acts 1881-'82, page 216, entitled, " An act creating a board of harbor commissioners of Norfolk and Portsmouth," provides that the governor shall appoint seven commissioners, and defines their duties ; that 154 CITATIONS TO THE CODE OF VIRGINIA. material excavated in the harbor shall be deposited in a desig- nated place ; that rules and regulations be made to preserve the harbor ; that to defray the expenses there shall be assessed on Norfolk county two-sevenths, on Norfolk city three-sevenths, and on Portsmouth two-sevenths of the estimate. The commis- sioners designated such a place, and to enforce the deposit there, employed an "inspector of chimping" at $60 a month salaty. In their assessment $750 was included to pay that salary. Portsmouth admitted that the amount was reasonable, yet re- fused to pay any part of the assessment, on the ground that the employment of the inspector is unauthorized by law. The tes- timony shows that his employment is essential to enforce the regulation, and to prevent the obstruction of the approaches to the harbor. Held : The board hath lawful authority to appoint such inspector, and to assess the sum necessary to pay his sal- ary upon the city of Portsmouth, ratably with the county and the city of Norfolk, and the mandamus is awarded as prayed for. TITLE XXVII. CHAPTEE XCIIL CHAPTEE XCIV. CHAPTEE XCV. CHAPTEE XCYI. SECTION 2091. In the case of Alexandria cfe Fredericksburg Railway Com- pany vs. Faunce, 31 Grat., 761 and 764, decided March, 1879, F. leased from Mrs. O. the land and a fishery in the Potomac Eiver, where the tide ebbed and flowed, with all the privileges attached thereto, for five years, at a rent of $500 a year. He built the necessary buildings and cleaned out the fish berth, and was largely engaged in carrying on the fishery. Pending the lease the Alexandria and Fredericksburg Eailroad Company, upon proceedings against O., had the land for their road-bed condemned, and paid into court the damages assessed. In building the road the company made an embankment along the line of the river, pulling down some of F.'s buildings, throwing obstructions into the fish berth, and materially damaging the fishery. In an action by F. against the company to recover damages for the injury done to him, held : The legislature has frequently recognized the rights of owners in their respective fisheries on the Potomac, and by various statutes has protected them in their rights, and the company could not, in making their road, injure the fishery of F. without making just compen- CITATIONS TO THE CODE OF VIRGINIA. 155 sation for the injury. The assessment and payment of the dam- ages into court does not preclude F. from the recovery of damages for the injury he has sustained as lessee of the fishery. The court below certified the evidence in relation to the lease and what had been done by F. under his lease, but certified that as to whether the road was built upon the strip of land condemned, the evidence was conflicting, and the whole of that evidence is not given. The appellate court cannot set aside the judgment and verdict, though the court may not be entirely sat- isfied that the damages are not excessive. The reference to 75 Va., 941, is no longer of value, the statute to which it referred having been repealed. SECTION 2092. The reference to 31 Grat., 764, is to the case cited supra, Sec- tion 2091, from page 761. The reference to 75 Va., 941, is no longer of use, the statute to which it referred having been repealed. CHAPTEK XCVIL SECTION 2137. In the case of Power <& Kellog vs. Tazewell, 25 Grat., 786, decided February 4, 1875, it was held : Tazewell having under the act of April 1, 1873, obtained an assignment of certain oyster beds for the planting and sowing of oysters for one year, and having paid the tax, and having had the beds staked off as required before May 1, 1874, has such an exclusive interest in them, that he may maintain an action of unlawful detainer against a party who enters upon said beds and holds them against him. In the case of Hurst vs. Dulaney, 84 Va., 701, decided April 5, 1888, it was held : There can be but one assignment for plant- ing oysters. If there has been an assignment to the tenant (occupier), the owner is not entitled to another assignment on the same water-front, and such assignment is void. SECTIO'N 2141. In the case of Morgan vs. Commonwealth, 26 Grat., 992, de- cided December 2, 1875, it was held: An indictment which charges a party with taking oysters with ordinary oyster tongs, without paying the tax prescribed by law, charges no offence against the law, and is fatally defective. SECTION 2147. In the case of McC'rewhj vs. The Commonwealth, 27 Grat., 985, decided January, 1876, it was held : The act of April 18, 1874, Session Acts of 1874, Chapter 214, Section 22, p. 243, 156 CITATIONS TO THE CODE OF VIRGINIA. which forbids the planting of oysters in the waters of the State by any person not a resident of the State, is a constitutional act ; not in conflict with either Article I., Section 8, or Article IV., Section 2, of the Constitution of the United States. The navigable waters and the soil under them within the ter- ritorial limits of the State are at its own discretion for the benefit of the people of the State ; only so as not to interfere with the authority of the government of the "United States in regulating commerce and navigation. The immunities and privileges secured to all citizens of the United States by the Constitution are the right to protection by the government, the enjoyment of life and liberty; to acquire and possess property of every kind, and to pursue happiness and safety. But they do not include the right to share the property belonging to the people of the State. CHAPTEE XCVIII. SECTION 2179. In the case of Boggs et als. vs. The Commonwealth, 76 Va., 989: Idem. Forfeiture of Vessles, etc. A State is also entitled to exact the forfeiture of vessels employed in violating her oyster law, though the owner be not implicated in the offence, and the vessels so employed without his consent or knowledge. 4. Idem. Acts of Confiscation. Forfeitures of rights and pro- perty cannot be adjudged by the legislative act, and confiscation without a judicial hearing, after due notice, would be void as not being by due process of law, Me Veigli vs. United States, 11 Wallace, 267. 5. Jurisdiction. Petition. So long as the proceeds of con- fiscated property paid into court remain under its control, any- one entitled to the money may apply therefor to the court by petition. In the case of Commonwealth vs. Mister et als., 79 Va., 5, de- cided March 16, 1884, it was held: Where such issue is, whether or not such petitioners owned the forfeited vessels at the time of the violation of said act, whereof the parties were con- victed, the record of conviction of those parties is irrelevant to that issue, and inadmissible as evidence at the trial. And so likewise are all instructions which are predicated on that con- viction. But an instruction is proper which tells the jury to find for the petitioners if from the evidence they believe the petitioners owned the vessels at the time of the violation of the act, and that no employment of said vessels in illegal oyster catching shall be considered by the jury in determining the verdict. CHAPTEE XCIX. CITATIONS TO THE CODE OF VIRGINIA. 157 TITLE XXVIII. CHAPTER C. SECTION 2218. In the case of Commonwealth vs. Williamson, 4 Grat., 554, de- cided December, 1847, it was held by the General Court: A clerk has no authority when applied to for a marriage license to examine a witness under oath as to the age of the parties. The authority of the clerk to administer an oath out of court only extends to cases in which, without regard to circumstances, the making the affidavit is a necessary prerequisite to the per- formance of the official act which the clerk is called upon to perform. The swearing falsely before the clerk, that a person applying for a marriage license is over the age of twenty-one years, does not constitute the offence of perjury. But if by such false oath the person applying is enabled to obtain a marriage license, and the marriage takes place, the tak- ing the false oath is a misdemeanor. In the case of Maybush vs. Commonwealth, 29 Grat., 857, de- cided February 7, 1878, it was held : The statute authorizes the clerk of a county or corporation court, when an application is made to him for a marriage license, to require evidence that the female to be married is over the age of twenty-one years, and to administer the oath to the person giving the testimony. SECTION [2224. In the case of The Commonwealth vs. Edmund Perryman and Kiturahman, 2 Leigh, 717, decided June, 1830, it is provided by statute that, "if the brother hath married or shall marry his brother's wife," the marriage shall be dissolved, the parties fined, &c. Held : The marrying a brother's widow is an offence with- in the statute. In the case of Kelly vs. Scott, 5 Grat., 479, decided January, 1849, it was held : In prosecutions prior to the act of 1827, for marrying a deceased wife's sister, or for marrying the husband of a deceased sister, the parties may appear by attorney ; and upon a plea of guilty by the attorney, judgment may be entered declaring the marriage a nullity. A judgment declaring a marriage a nullity is valid, though it does not proceed to punish the parties, or to require them to enter into bonds with condition to live separate. A marriage within the prohibited degrees having been de- clared null by a sentence of the court, the husband has no in- terest in the property which was the wife's at the time of the marriage ; and his creditors cannot subject it to the payment of his debts. 158 CITATIONS TO THE CODE OF VIRGINIA. SECTION 2227. In the case of Francis vs. Francis, 31 Grat., 283, decided January 9, 1879, it was held : This statute includes and applies to colored persons so living together, though they were born free. It is not necessary that there shall be evidence of an actual agreement to take each other as husband and wife, but the re- lation may be established by proof, by the acts, conduct, and conversation of the parties. In the case of Womack et als. vs. Tankersley et ux., 78 Va., 242, decided December 13, 1883, it was held: Marriage is a civil contract. Its existence is provable like any other fact. Registry, certificate, or persons present at its celebration need not be produced. Deliberate admissions and acts of a prisoner, coupled with cohabitation, is Sufficient to convict him. Delib- erate admissions and acts are also competent evidence of the validity of the marriage, under the lex loci contracts. When the existence of the marriage is the issue, the rule of evidence is the same in civil as in criminal proceedings, and the decision must be on the weight of the evidence. When the court below has determined the fact of the ex- istence of the marriage upon the weight of the evidence, the appellate tribunal will not overturn its decision, except in cases of manifest error or misconduct. Here the existence of the marriage was established by the proof of the deliberate admissions and acts of the parties, and by their cohabitation and recognition as husband and wife, without the production of the registry or certificate, or persons present at the celebration. In the case of Fitchett et als. vs. Smith's Administrator et als., 78 Va., 524, decided February 28, 1884. L. and S., col- ored persons, were never married, but cohabitated together as man and wife previous to November, 1863, when S. enlisted in the United States army. The result of the cohabitation was a child, J. S. died in 1865, but before his death recognized the child en venire sa mere as his, and declared his intention to marry L., who died a few years after the birth of the child, the latter subsequently dying unmarried and childless. To this child before its death, the United States government paid one thousand two hundred dollars for her father's services. After her death, J.'s maternal next of kin claimed that she was illegiti- mate, and that they were entitled to her whole estate, which claim was contested by her paternal next of kin, who insisted on the division of the estate into moieties, one of which should be distributed among them. Held: The statute being retro- spective, legitimated the child, J., though her parents had ceased to cohabit as man and wife before its passage, and P.'s CITATIONS TO THE CODE OF VIRGINIA. 159 estate must be divided into two moieties, one for the maternal, the other for the paternal, next of kin. In the case of Smith vs. Perry Administrator, et als., 80 Va., 563, decided June 18, 1885, it was held ; Under act approved Feb- ruary, 1866, to legalize marriage of colored persons living to- gether as husband and wife at the time of the passage, children of such persons are deemed legitimate whether born before or after the passage of the said act, and whether any sort of mar- riage ceremony has taken place between the parents or not. In such cases the question of bastardy must be considered as in any case where bastardy is alleged as to a child born during coverture, or born before and recognized afterwards. This law presumes legitimacy, where husband recognizes the child as his own, and impossibility of procreation is not estab- lished, though the cohabitation had ceased before the passage of this act. Bastards are persons born out of wedlock, lawful or un- lawful, or not within competent time after termination of cover- ture; or, if born out of wedlock, whose parents do not after- wards intermarry, and the father acknowledges them, or who are born in wedlock when procreation by the husband is impos- sible. In the case of Scott vs. Raul), 88 Va., 721, decided January 28, 1892. Plaintiff was born in 1862 of parents living together as husband and wife from 1861 to 1864, he being a colored man, and she a slave and dying then, and plaintiff was recognized as his child, and as such reared to womanhood. Held : She was a legitimate child, and entitled to share by inheritance in his real estate. SECTION 2229. The reference to 78 Va., 242, is to the case of Womack et als. vs. Tankersley et ux., quoted supra, Section 2227. CHAPTER CI. SECTION 2252. In the case of McPhersonvs. The Commonwealth, 28 Grat.,939, derided May 1, 1877, it was held : A marriage between a white man and a woman who is of less than one-fourth of negro blood, however small this quantity may be, is legal. A woman whose father was white and whose mother's father was white, and whose great grandmother was of brown complexion, is not a u-'_rro in the sense of the statute. In the case of Kmney vs. The Commonwealth, 30 Grat., 858, derided September, 1878, K., a negro man, and M., a white wo- in;ui, both domiciled in the county of Augusta, Virginia, left Virginia and went to Washington, D. C., and were married there according to the regular forms for celebrating marriages, and 160 CITATIONS TO THE CODE OF VIRGINIA. after remaining absent from Virginia about ten days, returned home, in Augusta county, Virginia, where they have since lived as man and wife. By the laws of Virginia (Code 1873, Chapter 105, Section 1) all marriages between a negro and a white per- son are absolutely void. On an indictment for lewdly and las- civiously associating and cohabiting together. Held : Although such marriages are not prohibited by the laws of the District of Columbia, and this marriage was performed according to the ceremonies there prescribed, it is void under the laws of Vir- ginia, and the parties are liable to the indictment. While the forms and ceremonies of marriage are governed by the laws of the place where the marriage is celebrated, the essentials of the contract depend upon, and are governed by the laws of the country where the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contem- plated. In the case of Jones vs. The Commonwealth , Gray vs. The Commonwealth, 80 Va., 538, decided June 18, 1885, it was held: In order to sustain an indictment under Section 8, Chapter 7, Acts 1877-'78, making the intermarriage with a white person a felony, it is necessary first to establish that the accused is a person with one-fourth or more of negro blood, id est, a negro, and the burden of proving this lies on the Commonwealth. In the case of Greenhow et als. vs. Jewries' s Executor, 80 Va., 636, decided April 16, 1885, it was held: The law of the place of its celebration governs as to the forms of ceremony which constitute marriage. The law of the domicile governs as to the capacity of the parties. But the rule which requires that a marriage valid where celebrated is valid everywhere else, has */ no application to marriage entered into in a foreign country in contravention of the public policy and statutes of the country of the domicile of the parties, which pronounce marriage be- tween them not only absolutely void, but criminal. Code 1873, Chapter 118, Sections 6 and 7, providing "that if a man having had offspring by a woman shall afterwards marry with her, such offspring, if recognized by him before or after the mar- riage, shall be deemed legitimate," and that the issue of mar- riages deemed null in law, or dissolved by a court, shall never- theless be legitimate, does not apply to and legitimate the off- spring of a cohabitation in this State between a white person and a colored, when the parents subsequently have celebrated between them a ceremony of marriage outside of this State, in some place where marriage between such persons is lawful. SECTION 2257. In the case of Throckmorton vs. Throckmorton, 86 Va., 768, decided April 10, 1890, it was held : When adultery is charged CITATIONS TO THE CODE OF VIRGINIA. 161 as the ground of divorce, the proof thereof should be " such as to lead the guarded discretion of a reasonable and just man to the conclusion of the defendant's guilt," though ocular evidence is seldom affected. A married man going into a known brothel, especially if when there he shuts himself up in a room with a strumpet, is, unexplained, sufficient proof of adultery. In the case here, held : The proof is not sufficient to sustain such charge, nor that of cruelty or desertion. SECTION 2258. In the case of Bailey vs. Bailey, 21 Grat., 43, decided June, 1871, it was held: Abandonment and desertion, which entitles a husband or wife to a divorce a mensa et thoro, consists in the actual breaking off of matrimonial cohabitation, with the intent to abandon and desert in the mind of the party so acting. And the intent to desert being once shown, the same intent will be presumed to continue until the contrary appears. The statute, Code, Chapter 109, fixes no period for which the desertion must have continued to entitle a party to a divorce a mensa et thoro. Desertion for less than five years may be in good cause, and the question is to be determined by the court exercising a sound discretion according to the facts and circum- stances of each case and the principles of law applicable thereto. B. leaves his home and family in November, 1865, and returns in November, 1866. He remains at home two weeks and then leaves it, and had not returned in September, 1867, when Mrs. B. files a bill for a divorce. B.'s intention to desert his wife being clearly proven, she is entitled to a decree for a divorce a mensa et thoro. In the case of Carr vs. Carr, 22 Grat., 168, decided April 10, 1872, it was held : That a husband is rude and dictatorial in his speech to his wife, exacting in his demands upon her, and sometimes unkind and negligent in his treatment of her, even when she was sick, and worn and weary in watching and nursing their sick child, is no legal ground for her leaving him. In the case of Latham, ly, <&c., vs. Latham, 30 Grat., 307, de- cided July, 1878, it was held : In suits for divorce the pleadings and rules of evidence are the same as in other suits in equity, except that the bill shall not be taken for confessed, and the cause must be heard independent of the admissions of either party on the pleadings. But where the answer is responsive to the allegations of the bill, the defendant is entitled to the benefit of it, as in other cases in equity. Although the fact that a married man is seen at a house of ill-fame is strong evidence of the crime of adultery, yet it is not of itself conclusive, and the act is open to explanation ; and it was satisfactorily explained in this case. 11 162 CITATIONS TO THE CODE OF VIRGINIA. Desertion is a breach of matrimonial duty, and is composed, first, of the breaking off of matrimonial cohabitation ; and sec- ondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. A mere separa- tion by mutual consent is not desertion by either party. The cruelty that authorizes a divorce is anything that tends to bodily harm, and thus renders cohabitation unsafe, or, as expressed in the older decisions, that involves danger of life, limb, or health. There may be cases in which the husband, without violence, actual or threatened, may make the marriage state impossible to be endured. There may be angry words, coarse and abusive language, humiliating insults and annoyances in all the forms that malice can suggest, which may as effectually endanger life or health as personal violence, and which would therefore afford grounds for relief by the court ; but what merely wounds the feelings, without being accompanied by bodily in- jury or actual menace, does not amount to legal cruelty. The father is the legal custodian of the minor children, and they wih 1 not be taken from his custody without the strongest reasons therefor ; and this right is not affected by the voluntary separation of the parties. If the application by the wife for divorce is refused, if the court is satisfied that she is the chief object in the way of a re- conciliation, and that the husband is, under all the circum- stances, entitled to the custody of the child, it is impossible to impose terms upon him, and to say that he shall be compelled to have the child, under the decree of the court, at particular places and times, to gratify the feelings and wishes of the mother. It may be there are many cases in which the court might re- fuse a divorce, and yet allow alimony to the wife. But if the husband is willing to be reconciled to the wife upon terms she can properly accept, if he has not abandoned her, if his conduct has not been such as to justify her separation from him, she is not entitled to alimony. In the case of Myers, by*and vs. Myers, 83 Va., 806, decided October, 1887, it was held : Divorce from bed and board may be granted for any conduct that renders cohabitation unsafe, that involves danger of life, limb, or health. But there may be angry words, coarse and abusive language, humiliating insults, and annoyances in all forms that malice can suggest, which may as effectually endanger life and health as personal violence, and which would therefore afford grounds for relief by the court. SECTION 2260. In the case of Bailey vs. Bailey, 21 Grat., 43, decided June, 1871, it was held : The Act, Code, Chapter 109, Section 9, is not intended to change the rules of evidence in divorce cases ; and CITATIONS TO THE CODE OF VIRGINIA. 163 the letters of the parties are admissible in evidence for the plaintiff to show the intention of the defendant to abandon and desert her. In the case of Latham, by, <&c., vs. Latham, 30 Grat., 307, decided July, 1878, it was held : In suits for divorce, the plead- ings and rules of evidence are the same as in other suits in equity, except that the bill shall not be taken for confessed, and the cause must be heard independent of the admissions of either party on the pleadings. But where the answer is re- sponsive to the allegations of the bill, the defendant is entitled to the benefit of it, as in other cases in equity. Although the fact that a married man is seen at the house of ill-fame is strong evidence of the crime of adultery, yet it is not of itself conclusive, and the act is open to explanation ; and it was satisfactorily explained in this case. Desertion is a breach of matrimonial duty, and is composed, first, of the breaking off of matrimonial cohabitation ; and sec- ondly, an intent to desert in the mind of the offender. Both must combine to make the desertion complete. A mere separa- tion by mutual consent is not desertion by either party. The cruelty that authorizes a divorce is anything that tends to bodily harm, and that thus renders cohabitation unsafe, or, as expressed in the older decisions, that involves danger of life, limb, or health. There may be cases in which the husband, without violence, actual or threatened, may make the marriage state impossible to be endured. There may be angry words, coarse and abusive language, humiliating insults and annoy- ances in all the forms that malice can suggest, which may as effectually endanger life or health as personal violence, and which would therefore afford grounds for relief by the court ; Imt what merely wounds the feelings without being accompanied by bodily injury or actual menace, does not amount to legal cruelty. The father is the legal custodian of the minor children, and they will not be taken from his custody without the strongest reasons therefor; and this right is not affected by the voluntary separation of the parties. If the application by the wife for divorce is refused, if the court is satisfied that she is the chief object in the way of a reconciliation, and that the husband is, under all the circum- stances, entitled to the custody of the child, it is impossible to impose terms upon him and to say that he shall be compelled to have the child, under the decree of the court, at particular places and times, to gratify the feelings and wishes of the mother. It may be there are many cases in which the court might re- t'use a divorce, and yet allow alimony to the wife. But if the husband is willing to be reconciled to the wife upon terms she 164 CITATIONS TO THE CODE OF VIRGINIA. can properly accept, if he has not abandoned her, if his conduct has not been such as to justify her separating from him, she is not entitled to alimony. In the case of Cratte vs. Oralle, 79 Va., 182, decided May 1, 1884, it was held: In suit for divorce, the admissions of the plaintiff are competent evidence to support the averments of the answer. Where husband, in 1874, obtained an order of publication against absjent wife, decree of divorce a vincula matrimonii for wilful desertion for five years, and in 1876 wife asks for rehearing and for alimony, and proves at rehearing, by plaintiff's admissions and otherwise, that the desertion was not wilful, in fact not hers but his. Held: The plaintiff's admis- sions are admissible evidence to support the allegations of de- fendant's answer. She might have asked to have the decree of divorce set aside, and though not asking for that, she is entitled to her support out of plaintiff's estate. Equity, regarding sub- stance rather than form, will treat her answer as a cross-bill, and give her what on the latter she would be entitled to. But in estimating the allowance for alimony, no account should be taken of acquisitions of the plaintiff after the date of the de- cree of divorce. In the case of Hampton vs. Hampton, 87 Va., 148, decided December 4, 1890, it was held : In suit for divorce the bill can- not be taken for coi_fessed, and whether answered or not, shall be heard independently of admissions of either party, and its charges proved by full and clear testimony. An evidence that defendant admitted the charge, and a letter from her purporting to admit it, are inadmissible. In the case of Marshall vs. Baynes, 88 Va., 1040, decided April 21, 1892. Pending suit for divorce a mensa et thoro, hus- band and wife agreed to live separate, each to acquire and hold property free from the claims of the other, and that decree to be entered confirming the agreement. Afterwards decree was entered reciting the taking of depositions, and arguments of counsel and confirming the agreement. Held : The decree was, in substance, for a divorce from bed and board, within Code, Section 2264, and was final and valid, and operated upon after- acquired property, and the legal rights and capacities of the parties as a decree from the bond of matrimony, except that neither party could marry again during the life of the other. The fact that the decree confirmed the agreement did not make it a decree on the admissions of the parties. SECTION 2261. In the case of Cralle vs. Cralle, 81 Va., 773, decided April 25, 1886. Pending appeal from decree to which supersedeas has been issued and perfected by bond, the only orders the court CITATIONS TO THE CODE OF VIRGINIA. 165 below can make in the suit are such as are needed to preserve the rem in litigation. Code 1873, Chapter 105, Section 10, authorizes trial court pending the suit to compel the man to pay the sums necessary to maintain the woman and enable her to carry on the suit; yet it does not justify it to make any order for such pur- pose, pending appeal here from decree rendered in same suit for alimony. Pending a divorce suit,, trial court decreed ali- mony to the womaa. From the decree, appeal was taken and supersedeas awarded. Pending the appeal, trial court de- creed to the woman an allowance of one hundred and fifty dollars to enable her to defend the suit in this court, and twenty-five dollars a month for her maintainance during the pendency of the suit. On appeal from last decree. Held : 1. The court below was authorized to make the decree last appealed from. 2. The amount decreed, however, being less than the mini- mum jurisdictional sum, the appeal must be dismissed. The appellant's remedy is by writ of prohibition from this court to the execution of the decree. SECTION 2262. In the case of Tfwckmorton vs. Th,ockmorton, 86 Va., 768, decided April 10, 1890, it was held : When adultery is charged as the ground of divorce, the proof thereof should be " such as to lead the guarded discretion of a reasonable and just man to the conclusion of the defendant's guilt," though ocular evidence is seldom affected. A married man going into a known brothel, especially if when there he shuts himself up in a room with a strumpet, if unexplained, is sufficient proof of adultery. In the case here held, the proof is not sufficient to sustain such charge, nor that of cruelty or desertion. In the case of Musick vs. Mustek, 88 Va., 12, decided June 11, 1891, it was held: In a suit for divorce, adultery may be proved by circumstantial evidence, such as visiting a house of ill-fame, being shut up with an unchaste woman, consorting with prostitutes and the like, even in the face of denial of de- fendant and particeps criminis. SECTION 2263. In the case of Bailey vs. Bailey, 21 Grat., 43, decided June, t!871, it was held : Where a wife is compelled to seek a divorce from her husband on account of his misconduct, in fixing the amount of her alimony, the earnings of the husband may be taken into the account, if necessary, as well as his property. In such a case, in fixing the amount of the alimony, the court will not seek to find how light the burden may possibly be made, 166 CITATIONS TO THE CODE OF VIRGINIA. but what under all the circumstances will be a fair and just allotment. In the case of Cart' vs. Oarr, 22 Grat., 168, decided April 10, 1872, it was held : A wife having left her husband without good legal grounds is not entitled to alimony. A wife having left her husband without good legal grounds, and taken their child with her, though there is no other imputation upon her conduct, upon a decree for divorce a mensa et thoro at the suit of the husband, on the ground of desertion, the child will be restored to the husband, though it is a female and but three years old ; and though the husband's treatment of his wife has been coarse, rude, petulant, close, exacting and penurious, leaving her to bear alone burdens and trials which it should have been his highest pleasure to share and relieve. This reference to 27 Grat., 307, is an error. In the case of Porter vs. Porter, 27 Grat., 599, decided July 26, 1876, it was held: E. is possessed of an estate in fee in a tract of land, and marries P. ; and they have two children born of the marriage. Upon a bill by P., the marriage is dis- solved for the adultery and desertion of E., but the decree directs nothing as to the property of the parties. Upon the dissolution of the marriage, all the husband's claims to the wife's land which depended on the marriage were extinguished, and she is entitled to the possession of the lands. In the case of Harris vs. Harris, 31 Grat., 13, decided No- vember, 1878, it was held; Alimony had its origin in the legal obligation of the husband incident to marriage state, to main- tain his wife in a manner suited to his means and social position, and although it is her right, she may, by her misconduct, forfeit it, and when she is the offender, she cannot have alimony on a divorce decreed in favor of the husband. So long as he had committed no breach of marital duty, he is under no obligation to provide her a separate maintainance, for she cannot claim it on the ground of her own misconduct. According to the ecclesiastical law, no alimony was allowed on a decree a vinculo matrimonii. And if under the Virginia statute the court has a discretion upon decreeing such a divorce, to allow alimony to the wife, that discretion should be exercised upon the principles which govern in a case of divorce from bed and board. The circumstances must be very peculiar indeed, if any such case there should be, which justifying a decree for an absolute divorce in behalf of the husband for wilful desertion of the wife, would at the same time warrant a decree in her behalf, that he should out of his own estate maintain her as long as she lived, although after the divorce she would become the wife of another. CITATIONS TO THE CODE OF VIRGINIA. 167 The wife Laving left her husband in 1863 upon the ground that he would not control his servants and maintain her rightful authority as his wife, the husband is entitled to a decree for a divorce a rinculo m.atrimonii on the ground of desertion on a bill filed by him in 1877. And the wife having left her husband without any sufficient cause, the court, upon decreeing the divorce, cannot allow her alimony out of the husband's estate. In the case of Francis vs. Francis, 31 Grat., 283, decided January 9, 1879, it was held : A certain sum monthly having been allowed as alimony to the wife, the husband appeals from the decree, and pending the appeal dies. The appellate court affirming the decree, the wife is entitled to the allowance up to the time of his death. In the case of Cralle vs. Cralle, 79 Va., 182, decided May 1, 1884, it was held : Curtesy and dower are barred by decree of divorce a vinculo, and the same principle applies to maintenance in the absence of any provisions in the decree as to the parties' property rights. In the case of Cralle vs. Cralle, 84 Va., 198, decided Decem- ber 1, 1887, it was held : When the time at which alimony shall begin to be paid has been fixed by a decree, which, on appeal here, has been affirmed in that respect, and the case has gone back to the court below to fix the amount, it is error for the court to change the time of commencing the payment. When the husband is of good business habits, and owned $3,800 worth of property at the time of the divorce, $150 per annum is reasonable alimony, and in fixing the amount, evi- dence of a decree in favor of the husband for a legacy is admissible. Unless the commissioner's account, on its face, shows error, exceptions will not be allowed to be made for the first time in this coiui. In the case of Heninger vs. Heninger, 18 Southeastern Re- porter, 193, decided November 9, 1893, it was held : In ascer- taining the amount of alimony to which a wife is entitled, where she is granted a divorce and the custody of the children, it is proper to take into consideration the education of the children as an item of expense. Under Code 1887, Section 2263, providing that the court shall make such further decree as it shall deem expedient con- cerning the estate and maintenance of the parties, or either of them, and the care and custody and maintenance of their minor children, the court may allow for alimony the sum to educate the husband's children. In the case of Purcell vs. Purcell, 4 H. & M., 507, decided in the Chancery Court of the city of Richmond, February term, 1810, it was held: The court of chancery h;is jurisdiction in cases of application for alimony, though no divorce is asked. 1 OS CITATIONS TO THE CODE OF VIRGINIA. In the case of Almond vs. Almond, 4 Rand., 662, decided July 21, 1826, it was held: A court of chancery has power to grant alimony to a wife in Virginia even without a contract for separation, when the misconduct of the husband is such as to render it unsafe for the wife to live with him, or he turns her out of doors without a support. But such a claim does not give the wife a right to any specific property of the husband. In the case of Spencer vs. Ford, 1 Rob., 608, 2d edition, 685. A suit for alimony being brought by a wife against her husband, who has deserted her and left the Commonwealth, and a sum of money being obtained for her by her attorney at law by a com- promise of that suit, held: That on a hill in equity in the name of the feme by her next friend against the attorney for the money so obtained by him, a decree may be rendered for the same, although the husband be no party to the suit. SECTION 2264. In the case of Jennings et als. vs. Montague, 2 Grat., 350, de- cided October, 1845, it was held: The statute does not au- thorize the court to interfere with or defeat the vested rights of creditors, or bona fide alienees or incumbrancers, which at- tached upon the property prior to the institution of such pro- ceedings for divorce, and when the property was the absolute property of the husband. An attachment against the effects of the husband as an ab- sconding debtor, levied before the institution of a suit by the wife for a divorce, entitles the attaching creditor to be satisfied out of the attached effects, in preference to the claim of the wife. In the case of Marshall vs. Baynes, 88 Va., 1040, decided April 21, 1892. Pending suit for divorce a mensa et thoro, hus- band and wife agreed to live separate, each to acquire and hold property free from the claims of the other, and that decree be entered confirming the agreement. Held : The decree was, in substance, for a divorce from bed and board, within this sec- tion, and was final and valid, and operated upon after-acquired property, and the legal rights and capacities of the parties as a decree from the bond of matrimony, except that neither party could marry again during the life of the other. After decree of separation, the woman acquired land and sold it to the appellant. After the death of both the man and woman, her heirs brought ejectment for the land, and the circuit court rendered judgment for the plaintiffs. Held : Error. SECTION 2265. In the case of Musick vs. Musick, 88 Va., 12, decided June 11, 1891, it was held: Under this section, which is constitu- tional, the court may, in such suit, decree that the guilty party shall not marry again unless such decree be annulled. CITATIONS TO THE CODE OF VIRGINIA. 169 CHAPTEE GIL SECTION 2267. In the case of Blow vs. Maynard, Lawrence vs. Blow, 2 Leigh, 29, decided March, 1830. A husband dies entitled to re- version of lands; his widow is not entitled to dower thereof. A husband makes a fraudulent conveyance of real estate to the use of himself and children, and contingently to the use of his wife, who does not execute the conveyance ; the husband dies ; a creditor exhibits his bill against his children and the widow to avoid the conveyance as voluntary and fraudulent; the widow claims under the conveyance ; it is declared fraudulent and void. Held : The widow is entitled to the dower of the estate. A father makes a voluntary and fraudulent conveyance of real estate to his children, and dies leaving other real estate which descends ; upon a bill by a creditor against the donees and heirs at law, to subject the land conveyed and land descended to debt of the donor and ancestor, chancellor may decree a sale of both, out and out, to satisfy the creditor's demand. In the case of Seekright on demise of Gilliam vs. Moore, 4 Leigh, 30, decided November, 1833. G., by deed of bargain and sale, sells and conveys a parcel of land to M., and M., by the deed of the same date, conveys the same land to trustees upon trust to secure the purchase-money thereof to G. Held : The two conveyances shall be intended parts of the same trans- action, and the seizing of M. was instantaneous and transitory, so that M.'s widow is not entitled to dower of the land. In the case of Cocke's Executors et als. vs. Phillips, 12 Leigh, 248, decided April, 1841, it was held : Husband dies entitled to a remainder in fee of real estate, expectant on an estate of free- hold therein, his widow is not entitled to dower of the land when the remainder falls in. In the case oiWheatley's Heirs vs. Calhoun, 12 Leigh, 264, de- cided April, 1841. By articles between C. and W. they agree to join in purchase of mills and two hundred acres of land ad- joining, and in case that the purchase shall be effected, C. shall keep the mills at a salary to be paid out of the joint concern, and that "the improvements, privileges, expenses, and profits, shall in all respects be equal to both parties and their legal representatives"; they make the purchase accordingly, the mills, etc., are conveyed to them jointly; they give their joint bonds for the purchase-money, payable in four annual instal- ments, and a joint mortgage of the property to secure payment of the same, and then commence and carry on the business of millers in partnership for several years ; the first instalment is paid out of the social funds, and the residue of the purchase- money out of money borrowed on the credit of the partnership, 170 CITATIONS TO THE CODE OF VIRGINIA. but repaid to the lenders by "W. alone after C.'s death. Held : Though C. and W. were partners in the milling business, car- ried on by them at the mills so purchased, yet the mills, etc., were not social property or stock, but real estate purchased by C. and W. individually, of which each was tenant in common with the other of an undivided moiety, and therefore C.'s widow is dowable of his moiety. Two persons purchased real estate jointly, and one of the terms of their purchase is, that on receiving a conveyance from vendor, they shall, at the same time, execute a mortgage of the property to secure payment of the purchase-money ; vendor makes the conveyance to the purchasers ; but their mortgage is not then executed, owing to difference between vendor and them as to the provisions to be inserted therein ; but the mortgage is executed ten months afterwards, in fulfilment of the original contract of sale and purchase. Held : The rights of the mort- gagee are paramount, in equity, to the dower rights of the pur- chasers' wives; and upon the death of one of them, his widow is dowable of his equity of redemption of his moiety, but of that only. C. and W. make a joint purchase of real estate, one of the terms of the purchase being, that on receiving a conveyance of the property from vendor, purchasers shall mortgage same pro- perty to secure payment of the purchase-money; vendor exe- cutes conveyance to C. and W., and they execute a mortgage of the property according to the agreement ; C. dies, leaving unpaid three-fourths of the purchase-money with interest thereon, all of which W. pays, except a trivial balance. Held : W. is en- titled to subrogate, in equity, to the rights of the mortgagee, and to have satisfaction out of the mortgaged subject, for the excess of the debt paid him above his just proportion, namely, a moiety thereof, and as the rights of the mortgagee were para- mount to the rights of C.'s widow to dower, so are the rights of W., by subrogation, likewise paramount to her right of dower. By articles between C. and W. they agree to make a joint purchase of land, and to divide the same between them by a. designated line, W. to pay the whole purchase-money of the whole land to the vendor thereof, and C. to pay W. the purchase- money for his part at a certain appointed time ; within the time C. pays W. the greater part, but not the whole of the purchase- money for his part of the land ; and then also within the time the contract between C. and W. is rescinded, W. agreeing to take back C.'s part of the land, upon condition that C. shall have credit on another account for the money that he has paid, and C. dies never having been let into possession of the land so by him agreed to be purchased and paid for. Held : That as the contract between C. and W. was wholly executory, and was CITATIONS TO THE CODE OF VIRGINIA. 171 rescinded before C. had completed payment of the purchase- money, and he never had legal or equitable possession, he had no such equitable estate as that his widow was dowable thereof. In the case of M. Blair vs. Thompson et als., 11 Grat., 441, decided July, 1854. In a bill by a widow for dower in land sold in the lifetime of her husband, and coming to the present owner through several intermediate conveyances, the present owner is the only necessary party defendant. W. bought land and gave bond with S. as a security for pur- chase-money ; and about eighteen months afterwards he executed a deed of trust upon the land and on personal property as a further security. Afterwards he took an oath as an insolvent debtor, and his equity of redemption was sold to T. and M., to whom the sheriff conveyed it. T., M., and S. then conveyed 'the land with general warranty to J., and he, T., M., and the trustee, united in a conveyance to secure the purchase-money. In a bill by the widow of W. to recover her dower, she sets out these conveyances and makes all the parties to them defendants. J. in his answer asks that if she is entitled to dower, the present value thereof may be ascertained, and that there may be a de- cree in plaintiff's favor for that amount against his vendors. M. and S. insist they are only sureties of T. Held : W. having given bond and security for the purchase-money, the vendor's lien was not retained ; and his widow is entitled to dower in the land. There cannot be a decree for a specific sum in lieu of dower without the assent of all the parties interested. That the equities between the defendants do not arise out of the plead- ings and proofs between the plaintiffs and defendants, and therefore there can be no decree between them. In the case of Jones and Wife vs. Hughes et als.. ^7 Grat., 560, decided March, 1876. H., by his will, gave certain lands, which he describes, to his sons, J. and D., and by another clause he says if his son J. should die without issue, he gives certain part of the land given to him to D. ; and if both of his sons should die without issue, then all of the aforesaid lands should go to his daughters, naming them. J. died without children, and the lands went into the possession of D., and D. afterwards died without issue, and left a widow, to whom, by his will, he left all of his estate, and appointed her his executrix. He owned, however, only personal estate. More than a year after D.'s will WHS admitted to probate, his widow filed her bill against the ex- ecutory devisees of H. to recover dower in the lands which had come to D. under the will. Held : The widow of D. is entitled to dower in the said lands. The act, Code 1873, Chapter 106, Section 4, does not apply to the case, and her right to dower is not barred. In the case of Medley et nl*. vs. Motley, 27 Grat., 568, decided 172 CITATIONS TO THE CODE OF VIRGINIA. April 29, 1876, it was held : M. devised his lands to his son G., and if G. should die without having had lawful issue of his body, the said lands were to be divided among testator's four daughters. G. died, leaving a widow, but without having had lawful issue of his body. G.'s widow is entitled to dower in the lands devised to him. The case referred to in 31 Grat., 13-33, does not decide any- thing on this point. The court merely said that it seemed that the court might make a decree reserving dower rights to the wife in a suit for divorce, but set the decree aside on other grounds. In the case of Waller vs. Waller's Adm'r et als., 33 Grat., 83, decided March, 1880. In 1853, W., before his marriage, sells and conveys a tract of land to B., and takes a deed of trust to secure the unpaid purchase-money. B. returns to the North during the war, and in his absence the land is sold by the trus- tee under the deed of trust, and W. purchases it for more than the debt. He is then married. After the war B. returns and files a bill to set aside the sale, and the court annuls it and de- crees a sale of the land to pay to W. the purchase-money due to him, and it is sold. Held : The sale to W. at the trustee's sale having been decreed to be a nullity, his widow is not entitled to dower in the land. In the case of Quarles vs. Lacy, 4 Munf., 251, decided No- vember 15, 1813, it was held : Although it is not competent for a husband, after his marriage, to defeat or obstruct his creditors by selling or exchanging his property, and taking a conveyance of the money or other property received therefor, to the use or for the benefit of his wife and family (such conveyances being deemed voluntary and fraudulent as to creditors), yet the case may be otherwise in relation to so much of such money or other property as goes to compensate the just interests of the wife. If, therefore, the wife relinquish her right of dower in other land in consideration of such conveyance, the value of such dower ought to be saved to her in opposition to the claims of her husband's creditors. In the case of Mantonvs. Taylor, 1 Va. (Gilmer), 209, decided November 22, 1820, it was held : The participation of a wife in the fraud of her husband will not impair her rights. Provision in lieu of dower will not be disturbed as fraudulent as far as it is only equivalent to dower. In the case of Harvey (Surviving Partner, etc.] vs. Alexander, etc., 1 Band., 219, decided December, 1822, it was held: A wife parting with her dower right in real property, forms a sufficient consideration for a subsequent deed conveying other property for her benefit. Although personal property acquired by mar- riage cannot be considered a valuable consideration to support CITATIONS TO THE CODE or VIRGINIA. 173 a subsequent deed for the benefit of the wife, yet it is meritorious consideration, and the deed will be supported or set aside, ac- cording to circumstances. A deedtnot lodged to be recorded until eight months after its date, and not proved by the witnesses on whose testimony it was recorded to have been sealed and delivered within eight months before it was recorded, is not good as a recorded deed. In the case of Taylor vs. Moore, 2 Rand., 563, decided June 16, 1824, it was held : If a married woman relinquishes dower in lands, under a promise that other property shall be settled on her as a compensation, such settlement will be good, though made after the relinquishment. But if the value of the property settled exceed the value of the dower relinquished, the deed should be set aside as to the excess, and supported as to the residue. In the case of Harrison vs. Carrol, 11 Leigh, 476, decided January, 1841 : Husband and wife agree by parol that the hus- band shall settle personal property to the separate use of the wife, and that the wife shall relinquish her contingent right of dower in certain lands of the husband, which he proposes to convey for the benefit of creditors. The settlement upon wife is executed accordingly. Afterwards a creditor of the husband obtains judgment against him, sues out a fieri facias thereon, and delivers it to the sheriff; and then the wife, in pursuance of her agreement, joins her husband in a deed conveying the lands. Held : The property settled on the wife is liable to the execu- tion of the judgment creditor, and equity will not restrain him from proceeding to make his debt out of same. In the case of William and Mary College vs. Powell et als., 12 Grat., 372, decided April, 1855, it was held: A post-nuptial settlement is made by a husband upon his wife. The wife afterwards dies, and then a bill is filed by the creditor of the husband, against her children, to set aside the settlement as fraudulent to the creditor. The husband is not a competent witness to prove the consideration upon which the settlement was made. Such a settlement is made which recites the con- sideration in part the agreement of the wife to unite in a conveyance of land, a part of which is her own, derived from her father, and in another part of which she has a right of dower, for the purpose of paying a debt of her husband, and she does afterwards unite in the conveyance. The deeds them- selves are proofs of the consideration, and the settlements will be sustained to the extent of the value of the interest she conveys. In the case of BurweWs Executor vs. Lumsden et als., 24 Grat., 443, decided March, 1874, it was held: It is settled law in this State, that if a married woman relinquishes her claim 174 CITATIONS TO THE CODE OF VIRGINIA. for dower on the faith of a settlement of other property made by her husband, or even if she make a relinquishment under a mere promise that other property shall be settled on her for a compensation ; in either case such settlement in her f ayor will be held good to the extent of a just compensation for the interest so relinquished. If the value of the property exceeds the value of the dower, or other interest relinquished by the wife, the deed will be vacated as to the excess, and supported as to the residue. In the absence of fraud the settlement will not be disturbed, unless it manifestly appears to be grossly excessive. In the case of Davis s widow vs. Davis 's Creditors, 25 Grat., 587, decided December, 1874. D., who was seventy years old, and his wife A., thirty-five, on the consideration that A. would unite with him to convey to trustees three tracts of land in trust to pay his debts, conveyed to a trustee two tracts in trust for A. for her life, and then to her children. On the same day D. and A. conveyed the three tracts to trustees to pay his debts. At the time it was supposed the tracts and personal estate conveyed to pay D.'s debts were sufficient for the purpose, but owing to the decline in prices, they fell short of doing it. After the death of D., some of his creditors filed their bill to set aside the deed in trust for A., on the ground that the settlement was grossly excessive, and this is ascertained to be a fact. Held : The settlement will be set aside as to excess. Where a wife is induced to unite with her husband in conveying away her interest in his real estate, upon condition that certain and specific pro- perty shall be settled on her in consideration of her thus part- ing with her rights, if s*uch settlement is set aside and anulled, she has the right to be placed in the same position, and restored to the same rights with which she was invested by law before she united in the deed, of which the specific settlement was the consideration; provided this can be done without prejudice to the rights of creditors or purchasers. In this case A. is entitled to be restored as far as possible to the same position, and invested with the same rights she had before she united in the deed with her husband ; the value either to be commuted in money, or laid off in kind in the lands not sold by the trustees. And this may be done without prejudice to the rights of creditors or purchasers, as the value of her dower in the five tracts may be laid off to her in two tracts con- veyed in trust for her which are still unsold. In the case of Hurst vs. Dulaney, 87 Va., 444, decided Feb- ruary 12, 1891, it was held : Conveyance of land to buyer, and trust-deed by him to secure price, executed same day, are deemed one in.equity, and wife of buyer is not entitled to dower in the land, the seisin of the husband being only for an instant. CITATIONS TO THE CODE OF VIRGINIA. 175 The principal applies equally where the trust deed is for the benefit of an assignee. In the case of Deering & Co. vs. Kerf oofs Executor et als., 89 Va., 491, decided December 15, 1892, it was held: Land bought with partnership funds for partnership purposes is so far considered as personalty, that widow of deceased partner is not entitled to dower therein, but only to her distributive share thereof. SECTION 2269. In the case of Wilson vs. Davisson, 2 Bob., 384, decided August, 1843, it was held, p. 398: When land in which there is a right of dower is sold in a suit to which the tenant in dower is a party, the other parties interested have a right to insist that instead of a sum in gross, one-third of the purchase-money shall be set apart, and the interest thereof paid annually to the tenant in dower during her life. In the case of leage, etc., vs. J3oisseux, 15 Grat., 83, decided January, 1859, it was held : Before decreeing the sale of a house and lot, the court should determine the priorities as between the building fund companies and the assignee of the mechanic's lien ; and it is error merely to decree a sale and direct the pro- ceeds to be brought into court. A copy of the valuations of the referees is filed with the bill, and though noticed in the answer is not objected to. It is re- ceived by the commissioner who settles the accounts as evi- dence, and no call is made for the original before him, but there is an exception without date endorsed upon it as being a copy. The exception either came too late or was waived by the party. In the case of Robinson vs. Shacklett, 29 Grat., 99, decided September, 1877. In 1853 S. and wife sold and conveyed to B. land for two thousand one hundred dollars, retaining a vendor's lien. B. paid one thousand five hundred dollars, and gave three bonds, each of two hundred dollars, two of which were assigned to H. and one to T. B. conveyed the land to T. in trust to se- cure a debt of six hundred and twenty-seven dollars to W. In May, 1858, B. and T. made a private sale of this land to A. and his wife for two thousand one hundred dollars, payable seven hundred dollars on the first of August, 1858, and the balance in payments extending to 1863 ; and A. and wife paid of the pur- chase-money five hundred and ninety-two dollars, which was applied to the debt of W. In 1860 H. and T. tiled a bill against A. :md wife and others for specific execution of the contract and to sell the land to pay the vendor's lien held by H. and T. In -May, 1860, before a decree in the cause, T., B. and A. and wife made a private sale of the land to R. for two thousand one hun- dred dollars, payable one thousand dollars October 1, 1860, and three annual payments. R. paid to T. one thousand dollars, 176 CITATIONS TO THE CODE OF VIRGINIA. and gave his bond to T. for the balance. This sale was con- firmed by the court at the October term, 1860. T. was ap- pointed a receiver to collect the money and pay it out to the persons entitled. But he was directed not to pay H. until he filed the bonds held by him among the payers. T. paid the debt of "W., retained enough to pay H., and paid the balance to B. The bond of E., due in 1862, was assigned by B. and T. to S., who recovered a judgment upon it, and then B. filed a bill against S. to enjoin the judgment. The injunction was granted, and afterwards dissolved ; and then B. filed a bill of review, on the ground that the wives of B. and A. were entitled to a con- tingent right of dower in the land, and that H. had a lien on the land. The bill of review was dismissed, and B. appealed. Held : As the bonds of B. were left in the hands of T., the re- ceiver, to pay the debt of H., and were sufficient for that pur- pose if B. had paid them to T., H. can have no lien on the land. A.'s wife having been a party to the suit, she cannot claim dower in the land ; and the proceeds of the land having been exhausted by the prior liens upon it, there is no surplus out of which she may be endowed. In the case of Coffman vs. Coffman, 79 Ya., 504, decided Oc- tober 6, 1884, it was held : When land is conveyed on condition that grantee shall pay grantor's debts, and by deed executed later on the same day, that grantee conveys the land to secure money loaned him to pay his grantor's debts, that grantee's widow is entitled to dower, but not until the said debts are paid, though she did not join in the trust deed. In the case of Hurst vs. Dulaney, 87 Va., 444, decided Feb- ruary 12, 1891, it was held : Conveyance of land to buyer and trust deed by him to secure price, executed the same day, are deemed one in equity, and wife of buyer is not entitled to dower in the land, the seisin of the husband being only for an instant. The principle applies equally where the trust deed is for the benefit of an assignee. SECTION 2270. In the case of Blair vs. Thompson et als., 11 Grat., 441, decided July, 1854, in a bill by a widow for dower in land sold in the life time of her husband, and coming to the present owner through several intermediate conveyances, the present owner is the only necessary party defendant. W. bought land, and gave bond with S. as a security for pur- chase-money; and about eighteen months afterwards he exe- cuted a deed of trust upon the land and on personal property as a further security. Afterwards he took an oath of an in- solvent debtor, and his equity of redemption was sold to T. and M. to whom the sheriff conveyed it. T., M., and S. then con- veyed the land with general warranty to J., and he, T., M., and CITATIONS TO THE CODE OF VIRGINIA. 177 the trustee united in a conveyance to secure the purchase-money. In a bill by the widow of W. to recover her dower, she sets out these conveyances and makes all the parties to them defendants. J. in his answer asks that if she is entitled to dower, the present value thereof may be ascertained, and that there may be a decree in plaintiff's favor for that amount against his vendors. M. and S. insist they are only sureties of T. Held : W. having given bond and security for the purchase-money, the vendor's lien was not retained ; and his widow is entitled to dower in the land. There cannot be a decree for a specific sum in lieu of dower without the assent of all the parties interested. That the equi- ties between the defendants do not arise out of the pleadings and proofs between the plaintiffs and defendants, and therefore there can be no decree between them. In the case of Boiling vs. Boiling, 88 Va., 524, decided De- cember 14, 1891, it was held : It is a rule of the common law that wills of personal property are to be construed according to the law of the place of testator's domicile, wheresoever the judi- cial inquiry may be made as to its meaning, and there is nothing in this section indicating an intention to abrogate or change it. Where a testator domiciled in New York bequeathed personal property to his wife, but made no disposition of his realty in Virginia, and there is no incompatibility between her claim for dower and her claim to the provision, the testator's intention must be construed according to the law of New York, which is : Where there are no express words, there must be on the face of the will a demonstration of the testator's intent that the widow shall not take both dower and the provision. SECTION 2271. In the case of Wilson vs. Davisson, 2 Rob., 384, decided Au- gust, 1843, it was held : The vendor of land conveys the same to the vendee in fee-simple and receives part of the purchase- money, but no security for the residue. On a bill in equity against the vendee to enforce the implied equitable lien of the vendor, a decree is made for the sale of the land, and the pro- ceeds are more than sufficient to satisfy what remains due to the vendor. The surplus is claimed by creditors of the vendee, who have obtained judgments against him and taken him in execution, from which he escaped; with the vendee's assent, a decree is made in favor of those creditors for the surplus. Afterwards, the vendee dying, a bill is filed by his widow against those in possession of the land, to-wit, one to whom the purchaser, at the sale under the decree, had aliened the whole, and two others to whom that one had aliened a part claiming to be endowed. Held: (by two judges) That the lands in the hands of the purchasers are not chargeable to the 12 178 CITATIONS TO THE CODE OF VIRGINIA. widow, and that her bill must be dismissed; dissented to by Allen, J., whose opinion was, that the widow was entitled to dower in the surplus which remained after satisfying the ven- dor's lien, and that the amount to which she was entitled con- stituted a charge upon the land in the hands of the purchaser at the sale under the decree, and of those claiming under him. In the case of Cocke's Executors et als. vs. Phillips, 12 Leigh, 248, decided April, 1841 : A married man dies possessed of personal estate, leaving a will wherein he bequeaths his whole estate to his nephews and nieces, and makes no provision for or mention of his wife. Held: Upon the construction of the statute 1 Rev. Code, Chapter 104, Sections 26 and 29, that in order to entitle herself to a distributive share of her husband's personal estate, the widow must declare her dissatisfaction with the will, all benefit under the same, within the time, and in the manner prescribed by the statute. In the case of Higginbotham vs. Cornwell, 8 Grat., 83, de- cided July, 1851 : Husband, during the coverture, sells and conveys the land with general warranty, but his wife does not join in the deed. By this will he gives his whole estate, real and personal, to his wife for her life, remainder to his children. Held: She is entitled to take under the will, and also to have her dower in the land sold. That a provision for a wife in a will of her husband shall be held to be in lieu of her dower, the will must so declare in terms ; or the conclusion from the provisions of the will ought to be as clear and satisfactory as if it were expressed. In the case of Dixon vs. McCue, 14 Grat., 540, decided August 28, 1858, it was held : The principles applicable to the case of a widow as to the necessity of electing between her right of dower and the provisions of her husband's will, are the same as those applicable to other persons. If the widow's tak- ing dower in the real estate will clearly interfere with the provi- sions of the will, she must elect. In the case above stated, though the widow kept possession of the land for the five years, and cultivated it, and took a leg- acy of property to the value of five hundred dollars to aid her in carrying on the farm, still she, having been under a mistake as to her rights under the will, will not be held to have elected to take under it, but may still take her dower. In the case of Rutherford vs. Mayo, 76 Va., 117, decided January 19, 1882, it was held : Doctrine of election is founded on the same reasons, and governed by the same rules, when ap- plied to a widow claiming dower as to any other case. One entitled to a benefit under an instrument must, if he claims that benefit, abandon every right, the assertion of which CITATIONS TO THE CODE OF VIRGINIA. 179 would defeat, even partially, any of the provisions of that instru- ment. If the widow's taking dower would interfere with any of the provisions of the will, she must elect. Testator died in February, 1862, leaving considerable estate in lands, slaves, choses in action, etc., and a widow and five chil- dren. He gave each child one thousand dollars in money or lands, and to the widow all the residue, durantee viduitate, or if she married, only one half of the same; how much not fully ascertained, but much more than her distributive share, and more than all the children together received ; she did not re- nounce but enjoyed all these provisions, or those thereof which the war spared, for thirteen years. Held: The provision was intended for her jointure, and she elected in lieu of dower. In the case of Nelsons Administrator vs. Kownslar Executor, 79 Va., 468, decided October 6, 1884, it was held: In order that provision for wife in will of husband shall be held to be in lieu of dower, the will must so declare in terms, or the conclu- sion from the will must be as clear and satisfactory to that effect as if it was so expressed. No question of election under Code of 1860, between dower and provision in lieu thereof arises, unless the intention to bar dower is clear. Under Code of 1873, unless the instruction plainly appears not to bar dower, the election must be made by the widow between the dower and the provision. But when any provision for a wife is made in her husband's will, she may within one year from the admission of the will, probate, renounce such provision, and take such share of his personal estate as she would have had if he had died intestate. SECTION 2274. In the case of Simmons vs. Lyle's Adm'r et als., 32 Grat, 752, decided January, 1880. A widow remains in the mansion house, having with her her two infant children, who she sup- ports, and no assignment of dower is made to her. She pays n balance of the purchase-money for the property secured by the vendor's lien, and she pays the taxes due upon the pro- perty. As against judgment creditors of her late husband, held : She is entitled to be paid for the amount of the taxes she has paid, and they are the prior lien upon the property. She is to l)i! paid for so nmch of the purchase-money paid by her as was properly payable by the heirs ; and this is also a prior lien on the property as against the creditors. Having held the man- sion house, and the heirs being infants, unable to assign dower, she must be considered as holding one-third of the house as doweress, and liable to pay one-third of the interest of the said purchase-money during her life. It being necessary to sell the 180 CITATIONS TO THE CODE OF VIRGINIA. property, and therefore to fix the present amount chargeable to her on account of said interest, the annual interest is to be treated as an annuity, to be computed for so many years as she may be supposed to live, regard being had to her state of health ; and the sum so ascertained in gross is to be deducted from the amount of the purchase-money paid by her. There being accounts to be taken in the cause, so that the property cannot be sold at once, the court should appoint two or more discreet persons to fix a rent upon the house, and if the widow will take it at the rate so fixed, she to pay two-thirds thereof, it should be rented to her ; and as the court has funds of hers un- der its control sufficient to pay the rent, no security should be required of her. In the case of Hamon et als. vs. Honnihan et als., 85 Va., 429, decided September 20, 1888. Under this section the widow being entitled to hold mansion and curtilage until dower is assigned. Held : Her possession not being adverse, will not in law be so deemed, and the statute of limitations will not begin to run until such possession ends, or she publishes her claim and her possession to be adverse and hostile by open and actual disseizin. SECTION 2275. In the case of Moore's et ux. vs. Waller, 2 Band., 418, de- cided March 30, 1824, it was held : An assignment of dower r made by commissioners under an order of court at the instance of one of several co-heirs, is binding on the widow, provided it be a full and just assignment ; and it is binding also on the co- heirs, even if they are infants, provided the assignment is not excessive. At common law the heir had the power of assigning dower without resorting to any court whatever, and that power is not impaired by the act of assembly. If the widow keeps posses- sion in such case of the whole land under pretence that the assignment of dower was not legal, she will be accountable to the heirs for the rents and profits of all but her dower lands. In the case of Raper vs. Sanders, 21 Grat., 60, decided June, 1871, testator directs : First, That so long as his wife, L., remains his widow, all his property, real and personal, shall be kept to- gether, and subject to the control of his executor, but the pos- session to remain with his wife during her widowhood. Second,. If she marries, she is to take one-third of his estate, and the re- mainder to go into the possession of his executor, and if in his opinion it should at any time thereafter be for the interest of testator's children to sell the entire estate and loan the money for their benefit, the executor may sell the same in his discre- tion. The widow renounces the will, and dower is assigned to her by an order of the court, to which the children are not parties. CITATIONS TO THE CODE OF VIKGINIA. 181 The executor and widow, she selling her dower interest, join in selling and conveying the land, the executor acting under the power. Held : The executor had no authority to sell under the power during the widowhood of L. On a bill to set aside the sale by the children, the court may set aside the sale so far as made by the executor, and confirm it so far as made by the widow ; and direct a new assignment of dower. Though the bill does not pr&j that the sale may be set aside, yet if it makes a proper case for such relief, it may be given under the prayer for general relief. In the case of Helm vs. Helm's Administrator et als., 30 Grat., 404, decided July 18, 1878, it was held: A widow whose husband has died leaving no children and no debts, and has not claimed the homestead in his lifetime, is not entitled to a home- stead in the estate as against his heirs. An order of the county court setting apart a homestead, made upon ex parte application of the widow, is of no effect as against the heirs. SECTION 2276. In the case of Wilson vs. Davisson, 2 Rob., 384, decided August, 1843, it was held : When the present value of a dower interest is to be calculated, the probable duration of the life by which it is limited, and the sum derived from it annually, are first to be ascertained, and then the calculation is to be made, not by dis- counting simple interest, biit by discounting compound interest. For the present value of an annuity is that sum which, being improved at compound interest, will be sufficient to pay the annuity. In the case of Blair vs. Thompson et als., 11 Grat., 441, de- cided August 15, 1854, it was held : In a bill by a widow for dower in land sold in the lifetime of her husband, and coming to the present owner through several intermediate conveyances, the present owner is the only necessary party defendant. In the case of White vs. White, 16 Grat., 264, decided April 23, 1861, it was held: Unless it is impossible to assign to a widow her dower in real estate in specie, a court of equity lias no power, under its general jurisdiction, against her will, to decree a sale of the real estate and to provide her a compensa- tion in money in lieu of her dower. A widow, entitled to a dower in the real estate of her deceased husband, is neither a joint tenant in common nor coparcener with the heirs at law, within the meaning of the statute concern- ing partition, so as to authorize a court of equity to sell the whole estate against her will, and compel her to receive a moneyed compensation out of the proceeds in lieu of her dower. In decreeing a sale at the suit of the heirs of a decedent's estate, real and personal, except the widow's share of the slaves, 182 CITATIONS TO THE CODE OF VIRGINIA. the court should protect and secure to her her interest in the proceeds of the other personal property. A conveyance of slaves in trust for S. for her life, and after her death to B. and the heirs of her body forever. But should B. die without heirs, or heirs of her body, in that case to C. The conveyance does not give B. a separate estate,- but upon her marriage, and her husband's possession of the slaves, the right of B. in the slaves is vested in him. In the case of Simmons vs. Lyles et als., 27 Grat., 922, de- cided November, 1876. A vendor of land, who has retained the title, files a bill against the widow and infant children of the vendee, for a sale of the land to satisfy his debt. The widow answers, claiming dower in the land subject to the vendor's lien. Judgment creditors of- the vendee may make themselves parties to the cause, and have the land subject to the vendor's lien, and the widow's dower applied to the payment of their debts. In such case the debt of the vendor is ascertained, and a commissioner is appointed to sell the land. He reports that a friend of the widow and children of the vendee has paid to the vendor his debt, and therefore he did not sell the land. The vendor then ceases to be interested in the case, and it becomes the suit of the creditors of the vendee. In such a case, a commissioner is directed to settle the ac- count of the administrator of the vendee, to take an account of the vendee's debts and their priorities, and also of the present value of the widow's dower in the land; and before the com- missioner makes report, the court decrees a sale of the land. Held : It was premature to decree a sale of the land before the debts of the vendee and their priorities were ascertained ; that it could not be so assigned before a moneyed compensation to her in lieu of her dower has been ascertained. A widow is entitled as against creditors of her husband by lien created since her marriage to have her dower in his real estate assigned in kind, if it can be done without regard to its effect upon the interest of his creditors. If from the nature of the property, or of the husband's interest in it, the dower can- not be assigned in kind, the court may sell the property and .make to her a moneyed compensation. In this case the vendor having acquiesced in the decree for the payment of the amount ascertained to be due to him, and received the money, upon appeal by the widow and children of the vendee from a subsequent decree for the sale of the land for the payment of creditors, the appeal does not bring up the first decree so as to entitle him as an appellee to have that first decree reviewed and reversed for error against him. In the case of Harrisoiis Executors et als. vs. Payne et als.y. 32 Grat., 387, decided November, 1879, it wns held : Where, in CITATIONS TO THE CODE OF VIRGINIA. 183 a suit in equity, brought for the purpose of subjecting the real estate of a decedent to the payment of his lien debts and an assignment of dower to his widow, the dower cannot be assigned in kind, and it is necessary to sell the whole real estate, and to satisfy the claim of dower out of the proceeds, the court cannot, without the consent of all parties, satisfy said claim by the pay- ment of a gross sum out of said proceeds, but must securely in- vest one-third of said proceeds and direct the interest on such investment to be paid to the widow during her life in satisfac- tion of her claim of dower. In the case of Wilson vs. -Branch et als., 77 Va., 65, decided January 25, 1883. Unless impracticable to assign widow dower in kind, a court of equity has no power against her will to de- cree sale of the real estate and give her money in lieu of dower. The dower right of the widow must be settled before decreeing sale of the real estate. It is an acknowledged rule, that when there are two or more coexisting disabilities in the same person when his right of ac- tion accrues, he is not obliged to act until the last is removed. This is the rule under the statute of limitations. If an infant, who is a married woman, makes an instrument avoidable because of her infancy, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after coverture ended. Where there is nothing more than silence, many cases hold that an infant's deed may be avoided at any time after reaching his majority until he is barred by the statute of limitations, and that silent acquiescence for any period short of the period of limitation is no bar. An infant feme covert and her husband, in 1845, granted her "maiden land" half of ''Cedar Lawn" to G., who next day conveyed it to her husband, who owned the other half. In 1876 he and she conveyed the whole in trust to secure his debt. He died in October, 1877. His will was probated in December, 1878. In March, 1879, B. and others filed a creditors' bill to settle his estate and subject his lands to pay his debts In April, 1879, she answered, renouncing her husband's will, de- manding dower in his lands, disaffirming her deed of 1845 as void by reason of her then infancy, and denying that she had in any way ratified it. An account showed that the trust debt, amounting to $1,532.89, was the only debt paramount to dower. The fee-simple value of " Cedar Lawn " was $2,750. The court below decreed that she had ratified the deed of 1845 when free from the disability of infancy, and without assigning dower, but reserving right to make all orders to protect the right of dower, decreed the sale of the whole tract to pay her husband's debts. On appeal here, held : 184 CITATIONS TO THE CODE OP VIRGINIA. 1. The decree, without previous assignment of dower in kind, if practicable or if impracticable by compensation, was prema- ture and erroneous. 2. The record discloses no act done by the widow to affirm the deed of 1845, made during her infancy. 3. Within a short period after she became of age, and was relieved of the disability of coverture, she disaffirmed her deed made during her infancy, and thereby rendered it void. 4. The trust deed of 1876 having been made during her coverture, cannot be regarded as affirming the deed made in infancy. 5. The trust debt, however, having been acknowledged in the mode prescribed by law for married women, is binding upon the widow to the extent of the debt therein secured, and no further. SECTION 2277. In the case of Tod vs. Baylor, 4 Leigh, 498, decided May, 1833, it was held : Upon a bill in equity by a widow against the alienee of her husband for dower of lands aliened by her hus- band in his lifetime, the widow is dowable of the lands as of the value thereof at the time of alienation, not at the time of assignment of dower ; she is entitled to no advantage from en- hancement of the value, either by improvements made by the alienee, or from general rise in value, or from any cause whatever. Upon a bill in equity by a widow against an alienee of the husband for dower of lands sold, she is not entitled to an ac- count of profits from the death of the husband, but only from the date of the subpoena in the cause; otherwise upon a bill against the heir. In the case of Thomas vs. Gammel and Wife, 6 Leigh, 9, decided January, 1835, it was held: An infant feme covert, joining her husband in a deed of lands, and acknowledging the same before justices, upon privy examination, duly made, cer- tified and recorded, according to the statute of 1792, is nowise bound by such deed. Therefore, she is entitled to dower of the lands conveyed ; but, as her husband did not die seised, she is not entitled to damages. SECTION 2281. For the case of Wilson vs. Davisson, 2 Bob., 384, see Ante, Section 2276. ^ In the case of Fisher vs. Clement's Executor, 82 Va., 813, de- cided February 3, 1887: In suit against widow and heirs of decedent, to subject his lands to his debts, commissioner was directed to inquire and report if she elected dower in kind or commutation. Commissioner reported that she elected com- mutation ; report confirmed. The lands were sold free of dower. CITATIONS TO THE CODE OF VIRGINIA. 185 With her consent, and by leave of court, a lot in town was assigned to her for her dower ; up to her death she possessed it. After her death, on petition to subject the lot to her hus- band's debts, held: The lot was the widow's property in fee, and passed to her heirs. CHAPTEE GUI. SECTION 2284. In the case of McDearman vs. Hodnett et als., 83 Va., 281, decided April, 1887, it was held: The married woman's act does not affect the question of advancement. In the case of Dagger's Children vs. Dugger et als., 84 Va., 130, decided December 1, 1887, it was held: A separate estate created by the gift, conveyance or settlement of the husband to or for his wife, whether directly or indirectly through a trustee, presumptively excludes the husband from tenancy by the cur- tesy in said estate. Gift from husband to wife is construed to be for her separate use. In the case of Crabtree vs. Dunn et als., 86 Va., 953, decided June 19, 1890, it was held : Where land is claimed by wife as her separate property against her husband's creditors, she is not a competent witness in support of her claims. SECTION 2286. In the case of Chapman et als. vs. Price et als., 83 Va., 392, decided June, 1886, it was held : At common law, in grant of estate of inheritance to married women, husband's right to cur- tesy could not be excluded ; and the same as to equitable estates. But as to married woman's " separate estate," the same may be limited as to give her the inheritance and to exclude the hus- band from the curtesy. The power of alienation by deed inter vivos, or by will, is an incident to the "separate estate," and, if not expressly or im- pliedly restricted, always exists in a married woman, just as if she were sole ; and if exercised, effectually excludes husband's rights by curtesy or otherwise. In grant by parents of an estate of inheritance in lands to married daughter, occurs the following habendum: "To have and to hold in her own right, free from any claims or demands from her husband, or any person claiming under, through, or against him in any way, now or at any time hereafter." After- wards the wife, by her will, devised the land to her children, died, leaving her husband her surviving heir. His creditors brought their bill to subject his supposed curtesy in the land to his debts. The terms of the devise created a separate estate in the wife, with power of alienation, which she exercised, and thereby ex- 186 CITATIONS TO THE CODE OF VIRGINIA. eluded her husband and all claiming under him from all claims on the land. In the case of Yates vs. Law, 86 Ya., 117, decided May 2 r 1889, it was held : It is a presumption of law, not affected by the married woman's act, that husband owns all property in possession of wife, especially if living together; and to over- come it she must show by affirmative proof that the property is her own, and was acquired by means not derived from him, if he be insolvent; and this rule exists in favor of all persons having the right to have his property applied to pay his debts. SECTION 2285. In the case of Geiger vs. Blackley et als., 86 Va., 328, decided September 26, 1889, it was held : Where wife contracts for such domestic matters as husband is held by law T responsible for, the presumption is that the contract is on the behalf of her hus- band. In the case of McDonald and Wife vs. Hurst, Purnell & Co.,. 86 Va., 885, decided May 8, 1890. Where a bill against hus- band and wife to subject her separate estate to judgments against them fails to charge that at the time she signs the notes whereon the judgments were had, she had separate property, and that she signed them with intent, expressed or implied, to charge it. Held : A demurrer lies. SECTION 2286. In the case of Gentry vs. Gentry, 87 Va., 478, decided March 5, 1891. As under this section a married woman may dispose of her separate estate, make contracts in respect thereto, and be sued on them, and have a personal judgment rendered and enforced against her and such estate, as though she were a feme sole. Held : Specific performance of her contract to con- vey her separate estate in land may be decreed. SECTION 2288. In the case of Tote vs. Perkins, 85 Va., 169, decided July 19, 1888. In action on bond by a married woman described in de- claration "as assignee of obligee," and her husband described therein as "having no interest in subject-matter, but joined by way of conformity " upon demurrer. Held : Declaration unob- jectionable. In the case of Gentry vs. Gentry, 87 Va., 478, decided March 5, 1891. As under this section a married woman may dispose of her separate estate, make contracts in respect thereto, and be sued on them, and have a personal judgment rendered and enforced against her and such estate, as though she were a feme sole. Held : Specific performance of her contract to con- vey her separate estate in land may be decreed. CITATIONS TO THE CODE OF VIRGINIA. 187 In the case of Virginia Coal and Iron Co. vs. Kdberson, 88 Va., 116, decided June 25, 1891. Previous to act of April 4, 1877, specific performance of a married woman's contract could not be enforced. After that date, and previous to May 1, 1888, her contract could only be specifically enforced as to her separate estate, and while her husband united with her. Since the date last named, her executory contract may be speci- fically enforced under the rule as to specific performances gene- rally. The case at the bar was as follows : In 1880, husband and wife executed a deed conveying her separate estate in land. The certificate of acknowledgment was defective as to her. The purchase-money was paid and possession delivered. Held : The deed constituted a contract, whereof, under act of April 4, 1876, specific performance was enforcible. SECTION 2289. In the case of Gentry vs. Gentry, 87 Va., 478, decided March 5, 1891. As under this section a married woman may dispose of her separate estate, make contracts in respect thereto, and be sued on them, and have a personal judgment rendered and enforced against her and such estate, as though she were a feme sole. Held : Specific performance of her contract to con- vey her separate estate in land may be decreed. SECTION 2297. In the case of Tate vs. Perkins, 85 Va., 169, decided July 19, 1888. In action on bond by a married woman described in de- claration " as assignee of obligee," and her husband described therein "as having no interest in subject matter, but joined by way of conformity " upon demurrer. Held : Declaration un- objectionable. TITLE XXIX. CHAPTEK CIV. SECTION 2304. In the case of Hunter et als. vs. Hall, 1 Call., 206 (2d. edition, 178), decided April 20, 1798, it was held: A reasonable degree of strictures is necessary in entries for land. The dismissal of a caveat, unless it be on its merits, is not binding. In the case of Millers. Page, 6 Call, 28, decided April/1806, it was held : An entry in these words, J. M. enters one thousand acres "between the lines of H. C., deceased, on both sides of Hatcher's creek beginning on the same," is void for uncertainty. In the case of Lewis et ah. vs. Blllups et als., 1 Leigh, 353, decided June, 1829. In the location of a land war- 188 CITATIONS TO THE CODE OF VIRGINIA. rant, the entry calls to begin at three marked red oaks, and to extend down for quantity ; these three oaks are on the head- waters of a stream called Popular Fork; the survey does not extend down that stream for quantity, but leaving it entirely, extends down the general course of the country; and there is evidence that the call of the entry to extend down for quantity, in the usual sense of that phrase in locations, required the locator to extend down Popular Fork for quantity. Held : The survey is naught for not conforming with the entry. In the case of McNeel vs. Herald, 11 Grat., 309, decided July, 1854, it was held: An entry of waste and unappropriated land, to be valid, must call for objects which possess that notoriety in themselves, or they must be so particularly described that other persons, by using due care and reasonable diligence, may readily find them. The general or descriptive calls, and the particular or loca- tive calls of the entry, must possess that reasonable degree of certainty which will put a subsequent adventurer duly upon his guard; and the locative calls must be found to be embraced within the descriptive calls, and they should properly be con- sistent with the latter and with one another; though in certain cases, where all the calls of an entry cannot be satisfied, the courts, for the purpose of sustaining it, will reject such as ap- pear vague and repugnant, and hold to those appearing to be certain and consistent. Where there are several distinct and independent calls in an entry, it is not necessary that all the objects thus called for should be shown and recognized by the public, or that they should be described with that speciality that a subsequent loca- tor can readily find them ; but it is necessary that some one of the leading calls should be thus known, or so described that other persons, with due care and proper diligence, may be led to ascertain their positions, and thus distinguish the land ap- propriated from the adjacent residuum. The objects called for are so connected with the general his- tory or geography of the country, or its legislation, that the courts will take notice of them and they will be deemed of general notoriety, and sufficiently identified without further proof. An entry call for snch objects may be supported with- out proof of notoriety or identity. When the objects called for possess but a local notoriety, the party affirming the validity of the entry must prove the identity of the land intended to be appropriated, and that the calls of the entry are such that a subsequent locator, in the exercise of proper judgment and reasonable diligence, would be enabled to distinguish them from the surrounding lands, so as to appropri- ate for himself the adjacent residuum. CITATIONS TO THE CODE OF VIRGINIA. 189 In a caveat, where the objects called for in the entry are not of such public notoriety as that the courts will take notice of them, a special verdict must find that the objects called for have a real existence, and are such as are required to make it a valid entry ; and a finding defective in these respects will not be remedied by finding that the survey was made in conformity with the. entry. SECTION 2321. In the case of Lewis et als. vs. Billups et als., 1 Leigh, 353, decided June, 1829, it was held: An entry calls to begin one mile above a marked tree and a rock on Big Hurricane Creek, eight or nine miles above its mouth ; the marked tree and the rock are on the east side of the creek, thirteen miles from its moiith by the meanders, and more than nine miles in a straight line ; the survey of this entry begins at a point on the west side of the creek, sixty-five poles from the stream, and one mile and eighty-four poles from the designated tree and rock. Held : 1. The entry is special and precise enough. 2. The survey conforms with the entry with reasonable exactness, especially as a jiiry had so found shortly after the survey, upon a caveat to which, though not all, yet some of the parties now contest- ing the right under this survey were parties. SECTION 2324. In the case of Preston vs. Bowen, 6 Munf., 271, decided Feb- ruary 3, 1819, it was held : A special action on the case lies against the surveyor of a county for fraudulently refusing to furnish copies of surveys when lawfully demanded, and thereby enabling a third person to locate the lands therein described before the plaintiff. It is a part of the official duty of the sur- veyor of a county to furnish in reasonable time, when de- manded, copies of all surveys not specially excepted in the land law. Where the declaration declares that the defendant, contrary to his official duty, refused to furnish copies of certain surveys when demanded by the plaintiff, if the defendant be excused by any provision in the land law from furnishing the copies so de- manded, he ought to plead it specially. SECTION 2327. In the case of Wilcox vs. Calloway, 1 Wash., 38 (2d. edition, p. 50), it was held : The effect of a caveat is to prevent the ema- nation of a grant, not to set one aside. In the case of ( 'nrri/ vs. Martin, 3 Call, 28 (2d. edition, 26), argued May 11, 1801, reargued and decided act 29, 1802, it was held : The party who caveats must show a title to the warrant 190 CITATIONS TO THE CODE OF VIKGINIA. under which his own survey is made. The reference to 3 Call, 59, is an error. In the case of Stever vs. Gillis, 3 Call, 417 (2d. edition, 361), decided October 15, 1803. G. in 1770 surveyed and took a patent for a tract of one hundred and sixty acres of land, the lines of which were all surveyed, except two, which were the lines of A. H., under a former patent, and which formed a small angle containing twenty-six acres. These two lines in the survey and patent of G. were thus described: Thence along Andrew Henry's lines one hundred and eighty-three poles to the begin- ning. Held : The survey and patent are good, and entitle G. to a pre-emption in the twenty-six acres. In the case of Preston vs. Harvey, 3 Call, 495 (2d. edition, 427), decided November 3, 1803, it was held : The time of the return of the survey into the office is the period from whence the six months are to be calculated for entering a caveat, in such case the caveat must show the fact. A caveat lies to an inclusive survey, though there be no certificate from the county court that it is reasonable. In the case of Hamilton vs. Maize, 4 Call, 196, decided June, 1791, it was held : A party who can caveat ought to do so ; but circumstances may excuse it. In the case of Tanner's Administrator vs. Saddler, 2 H. & M.j 370, decided April 28, 1808, it was held : A patent or grant for lands may, under circumstances, be presumed to have formerly issued, of which circumstances and of the conclusion to be drawn from them, it is the province of the jury and not of the court to judge. In this case the circumstances of upwards of sixty years' peaceable and uninterrupted possession in the caveator and those under whom he claimed together, with the payment of quit-rents before and taxes since the revolution, was considered as sufficient ground for such presumption. In the case of Depew vs. Howard et ux, 1 Munf., 293, decided April 19, 1810, it was held : In cases where the regular remedy is by caveat, a court of equity may entertain jurisdiction under circumstances which renders its interposition just and proper, but such circumstances must be made to appear to the satisfac- tion of the court. A legal title to land ought not to be disturbed in favor of a party not having a superior right in equity to the identical land in question. In the case of Noland vs. Cromwell, 4 Munf., 155, decided January 26, 1814, it was held : Although a party may be let into a court of equity on grounds which he could not have used on the trial of a caveat, and which, in fact, make another case (in reference to that which he might have availed himself of on such trial), or upon a case suggesting and proving that he was CITATIONS TO THE CODE OF VIRGINIA. 191 prevented by fraud or accident from prosecuting his caveat, he is not to be sustained in the court of equity on such grounds as were or might have been brought forward on the trial of the caveat. In the case of Christian's Devisee vs. Christian et als., 6 Munf., 534, decided March 18, 1820, it was held : The general princi- ple laid down in the case of Poland vs. Cromwell, 4 Munf., 155, does not apply to a case in which the rights of the parties can- not be adjudicated in the court of caveat, but the aid of a court of equity is necessary to give each his proper share of the land for which one has improperly obtained a patent. In the case of Lyne vs. Jackson and Lyne vs. Wifaon, 1 Rand., 114, decided April, 1822, it was held : "Where a party applies to a court of chancery to prevent the issuing of a patent or an assignment of a survey, and alleges a fraud committed by the defendant in forging an agreement between him and the com- plainant, the court of chancery has jurisdiction without the party resorting to a caveat in the first instance. During the pendency of such suit no person can obtain a patent for the same land under a treasury warrant located since the institu- tion of the suit, but he will be regarded as a purchaser with notice. In the case of Me Clung vs. Hughes, 5 Randolph, 453, de- cided June, 1827, it was held : After a grant issued, any one claiming a prior equity against the grantee, can in no case have relief in equity, unless upon the ground of actual fraud in the acquisition of the legal title, or unless the party was prevented from prosecuting a caveat by fraud, accident, or mistake. In the case of Jackson vs. McGavock, 5 Rand., 509, decided June, 1827, the decision in McClung vs. Hughes, 5 Rand., 453, cited supra, was affirmed and followed. In the case of Hardman vs. Boardman, 4 Leigh, 377, decided April, 1833. Upon the construction of the 38th section of the general law, 1 Rev. Code, Chapter 86. Held: That a person holding a perfect legal title to lands by grant from the Com- monwealth, may maintain a caveat to prevent the issuing of a junior grant to another person. In the case of Donnell (& Preston vs. Ktiuj* Heirs and Devisees, 7 Leigh, 393, decided March, 1836. Entry of laud by A. in 1783, patent in 1800. Survey of same land by B. in 1790, without any entry thereof made by him, and patent to B. in 1793. A. in 1815 brings scire facias in chancery against B. to repeal his patent. Qucere : Whether equity will entertain the suit, A. having failed to caveat, and there being no proof that B. had actual notice of A.'s entry? In the case of Wilsons Heirs vs. Daggs, 8 Leigh, 681, decided August, 1837. After the dismission of a caveat upon the merits, 192 CITATIONS TO THE CODE OF VIRGINIA. the caveatee files in the land office a copy of the judgment, and obtains a patent. A supersedeas being awarded to the judgment, the patent is relied on as a bar. Held : Notwithstanding the emanation of the patent, the court may examine into the cor- rectness of the judgment; but if the same be reversed, then a dismission will be without prejudice to any proceeding which may be instituted to vacate the patent. A caveator, whose survey had not been made twelve months before he entered his caveat, will not have judgment rendered against him merely because the twelve months allowed for re- turning the plat and certificate of survey into the land office have elapsed pending the caveat. In the case of Warwick and Wife and Another vs. Norvell, 1 Bob., 308 (2d edition), 326. The statute of May, 1779, Chapter 13, giving the remedy by caveat for determining the right to waste and unappropriated lands, did not extend to lands which, having been once granted by patent, had afterwards lapsed and become forfeited to the State. In the case of Walton vs. Hale, 9 Grat., 194, decided August 16, 1852, it was held : In a case of caveat, the caveat rests upon the ground of the better right in the caveator to the land sur- veyed. Unless he can show such better right, the caveator is entitled to the judgment, though it might appear that as against a party showing a right, his entry and survey were defective. Qucere: If a tenant in common of an undivided interest in land may not maintain a caveat against the issuing of a grant to a third person, upon a survey of part of the land embraced within the limits of the grant in which he holds an undivided interest ? In the case of Harper & Western vs. Baugh <& Seguine, 9 Grat., 508, decided November 17, 1852, it was held : In a caveat the caveator must show the better title to the land in controversy to be in him. He cannot recover upon the ground of the weak- ness of his adversary's title. The caveator must state in his caveat the grounds on which he claims the better right to the land in controversy, and he will not be permitted to abandon on the trial the right which he has set out in his caveat as that under which he claims, and prove a different right. In the case of McNeel vs. Herold, 11 Grat., 309, decided July, 1854, it was held : In a caveat, where the objects called for in the entry are not of such public notoriety as that the courts will take notice of it, a special verdict must find that the objects called for have a real existence, and are such as are required to make it a valid entry ; and a finding defective in these respects will not be remedied by finding that the survey was made in conformity with the entry. A party who files a caveat must show a title to the warrant under which his own entry and CITATIONS TO THE CODE OF VIRGINIA. 193 survey were made; and if he fails to do so, his caveat will be dismissed. In the case of Hamilton vs. McNiel et als., 13 Grat., 389, de- cided July 28, 1856, it was held : In a case of caveat all the facts agreed by the parties or found by the jury, or if a jury is dis- pensed with, ascertained by the court, necessarily become, and should be made a part of the record of the cause. In a case of caveat, if the court shall certify the evidence instead of the facts, yet if there is no conflict in the parol evidence, and taking the whole as true, the appellate court may proceed safely to judg- ment upon the same, it is the duty of such court to proceed and give judgment according to the very right of the case. In a case of caveat where a jury is dispensed with, and the whole cause is submitted to the court, it is not necessary for the loosing party to file a bill of exceptions to the judgment of the court, or to move for a new trial, and if it is refused to except to the opinion of the court refusing it; but it is sufficient that the circuit court shall make the facts agreed and ascer- tained, or the evidence, where the parol evidence is in no re- spect conflicting, a part of the record by its order to that effect upon rendering judgment. In a case of caveat upon a question involving the boundary line between two counties, the courts, in construing the acts in relation to their boundaries, may look to the acts forming other counties, both before and subsequent, for the purpose of ascer- taining the intention of the legislature as to said boundary line. In the case of Clements vs. Kyles, 13 Grat., 468, decided Au- gust 29, 1856, it was held : In a case of caveat the caveator should state in his caveat the grounds on which he claims to have the better right to the land in controversy ; and if this is not done, the caveatee may either move the court to dismiss the caveat, or to require the caveator to file a specification of the alleged better right on which his claim is founded. But after the jury is sworn to ascertain the facts, it is then too late to ob- ject to the form of the caveat. In a case of caveat the caveator claims under a patent issued to W. in 1756, which does not refer to any survey. In order to show that the patent was founded on a survey the caveator offers in evidence a copy from the books of the surveyor of Au- gusta county of a certificate of a survey and plat made for W., dated in November, 1749. The certificate itself does not con- tain the calls for course and distance or other marks, but these are given on the plat, and they agreed with the grant in its gen- eral and locative calls. It is competent evidence for the pur- pose for which it is offered. To prove the boundaries of W.'s patent, the caveatorx offer the deposition of a witness who had purchased a part of the 13 194 CITATIONS TO THE CODE OF VIRGINIA. land included in that patent from a party claiming under it, but not any part of the land claimed by the caveators. The witness then had a controversy with a third person, in which it was im- portant to him to establish the boundaries of said patent. The deposition had been taken in a caveat between the ancestor of the caveators and the same caveatees in relation to the same land, in which the said caveator had suffered a non-suit. Held : He is a competent witness. The deposition is competent testi- mony. The statement of a person living on the land at the time, made many years before the trial, at which time he was dead, pointing out to the witness two of the corners called for in W.'s patent, is not competent evidence, he not having been the sur- veyor or chain-carrier at the making of the survey, or owner of that or adjoining lands calling for the same boundaries, or hav- ing any motive or interest to inquire or ascertain the facts. Surveys made many years after W.'s survey, and by a different surveyor, are not competent evidence as to the boundaries of W.'s survey. Three or four corners of a large survey are ascer- tained, but between these ascertained corners the patent calls for several lines and courses. In fixing the boundaries of the land, the lines calling for these ascertained corners must be run thereto, though this may require a variation of both course and distance ; but when a corner is called for which is not found, the course and distance called for in the patent must govern, and an average allowance of variation in each course and line called for between the ascertained corners is not to be made. The land in controversy, lying in the western part of a large survey, it is error to instruct the jury that if they are satisfied certain specified corners of the survey are established, and the courses of the patent between these corners are correctly laid down upon the plot of the survey made in the cause, it is all that is necessary for them to ascertain in this suit, as it is that portion of said patent that the survey of the caveatees lies, as appears by the plat, and it is only to that portion that they have set up title*. The will of W. having been made in 1746, before the survey or patent to him, the land embraced in said patent did not pass by his will to Mrs. W., but descended to his heir at law. In the case of Carter vs. Ramey, 15 Grat., 346, decided July, 1859, it was held : The entry and the survey of both the caveator and the caveatee being upon land which was previously granted by the Commonwealth, and which had never been forfeited, the Com- monwealth having no interest in the land which could be vested in the caveator, he can have no right to it, and therefore cannot maintain a caveat, though the caveatee may have no better right. In the case of Troter et als. vs. Newton et als., 30 Grat., 582, decided September, 1877. In a case of caveat founded on the CITATIONS TO THE CODE OF VIRGINIA. 195 alleged better right of the caveatorto the land in controversy, the first inquiry is as to the title or interest in the subject. The caveator cannot recover upon the mere infirmity of the title of the caveatee, for however defective that may be, no one has a right to interpose for the purpose of preventing him from carrying his entry into grant, unless he has a better right, legal or equitable in himself. The caveator must state in his caveat the grounds on which he claims the better right to the land in controversy, and he will not be permitted to abandon on the trial the right which he has set out in his caveat, as that under which he claims, and prove a different right. In February, 1796, D. obtained a grant for four thousand six hundred and sixty acres of waste mountain land, the grant show- ing that there was excluded from the grant forty-seven and one- half acres of prior claims of F. In 1854, T. bought D.'s land at a judicial sale. In 1873, N. laid a warrant on the forty-seven and one-half acres, and applied for a grant, and stated as the grounds of his claim, among others, (1st), That F. had entered and surveyed the land, and it did not appear that his right had ever been forfeited; and (2d), That T. had been in possession of the land under the color of title for more than twenty years, paying taxes upon it. Held: T. cannot set lip title in F. to defeat the caveatee, but must show a better right in himself. As. T. only purchased the land of D., which did not include the land in controversy, and does not connect himself with the right of F., he must show an exclusive, actual and continued possession under a colorable claim of title for the period re- quired by the statute to ripen his possession into a valid title. The whole tract being waste mountain land, and the evidence not showing any continued possession of the land in contro- versy, T. cannot maintain his caveat. In the petition for an appeal, T. states that he had located a warrant on the land in controversy, and claims that he is pro- tected by the provisions of Section 14, Chapter 108, Code of 1873. Held : That the statute only applies to a party who has actual possession and claim which T. did not have. The claim not having been made in the court below, cannot be considered in the appellate court. This ground of claim not having been stated in the caveat, cannot afterwards be set up. In the case of Carter vs. Ilagan, 75 Va., 557, decided August 11, 1881, it was held : A patent is the consummation of the legal title, and passes to the grantee the legal estate and seisin of the Commonwealth. Accordingly where a patent contains a reservation in favor of a prior claimant, who relies only on his entry and survey, and under these circumstances, a patent, in- cluding the land so claimed, and without a reservation, is issued 196 CITATIONS TO THE CODE OF VIRGINIA. to a junior patentee, the latter acquires the legal title, and must prevail in a court of law over such prior claimant, whatever may be the date of his survey. A party claiming under such prior survey must resort to his caveat to prevent the emanation of a grant to his adversary, and if he fails in that, without sufficient excuse, he is without rem- edy, unless by some proceeding in equity, having for its object the annulment of the patent upon equitable grounds. Where a patent contains a reservation, the title and seisin of the land so reserved does not pass to the patentee, but remains in the Commonwealth. SECTION 2336. See the case of Hunter et als. vs. Hall, 1 Call, 206, (2d edi- tion, 178), see Section 2304. SECTION 2338. The reference to 8 Leigh, 681, is an error. The case does not apply. SECTION 2339. In the case of French <& Brown vs. Commonwealth, 5 Leigh, 512, decided December, 1834, it was held : This section has no application to escheated lands. In the case of Tichanel vs. Roe, 2 Bob., 288, decided August, 1843. In 1796 a person settled upon, cleared and improved a tract of land. In 1806 he conveyed a part of it by metes and bounds, and in 1834 the land embraced in this conveyance was granted by the Commonwealth, in conformity with a survey made in 1833. It appearing that the tenant claiming under the deed of 1806 had entered upon, settled and improved the land conveyed by this deed, and had, during the period he held it, paid the taxes thereon, and that a portion of this land was ac- tually enclosed in 1796, when the tract of which it then formed a part was settled, held : It is competent for the tenant to con- nect his possession with the possession of those under whom he claims (the same having never been interrupted), and it thus ap- pearing that the location on which the Commonwealth's grant was founded was on lands which had been settled thirty years prior to the date of the location, and upon which taxes had been paid within that time, held, further, that the location was in- valid, and that no title passed by the Commonwealth's grant. In the case of Matthews vs. Burton, 17 Grat., 312, decided February 14, 1867, it was held : In eastern Virginia, a party in possession of land, tracing back his title for upwards of seventy years, it is a presumption of law, that a grant has issued for the land, and it is not, therefore, subject to entry and grant as waste and unappropriated. CITATIONS TO THE CODE OF VIRGINIA. 197 SECTION 2340. In the case of Nichols et als. vs. Covey <&c., 4 Band., 365, de- cided June, 1826, it was held : Where a patent is issued in pur- suance of the act of 1788, which includes, in its general courses, a prior claim, it does not pass to the patentee the title of the Commonwealth in and to the other lands covered by such prior claim, subject only to the title whatever it may be in the prior claimant ; but, if that title is only a prior entry, and becomes vacated by neglect to survey and return the plat, any one may lay a warrant on the same, as in other cases of vacant and un- appropriated lands. In the case of Carter vs. Haqan, 75 Va., 557, decided August 11, 1881, it was held : A party claiming under such prior survey must resort to his caveat to prevent the emanation of a grant to his adversary, and if he fails in that, without sufficient excuse, he is without remedy, unless by some proceeding in equity, having for its object the annulment of the patent upon equitable grounds. SECTION 2344. In the case of Morrison vs. Campbell et als., 2 Rand., 206, de- cided January, 1824, it was held: An inchoate right to land, held by entry and survey only, is real estate, and will descend to the heirs, and not the executors, warrants and surveys of land may be assigned but not entries. In the case of Nichols et als. vs. Covey, etc., 4 Rand., 365, de- cided June, 1826, it was held: The purchase of a warrant from the Commonwealth, and an entry in consequence thereof, is not a purchase of the land itself, until the entry is carried into grant. SECTION 2349. In the case of Blankenpickler vs. Anderson! s Heirs, 16 Grat., 59, decided August 21, 1860, it was held : If the grantee in a patent for land was dead at the time the grant issued, the patent is void ; and this may be shown on a trial in ejectment in which one party claims under the grant. In the case of Carter vs. Hagan, 75 Va., 557, decided August 11, 1881, it was held : A patent is the consummation of the legal title, and passes to the grantee the legal estate and seisin of the Commonwealth. Accordingly, where a patent contains a reser- vation in favor of a prior claimant who relies only on his entry and survey, and under these circumstances, a patent claiming the land so claimed and without a reservation is issued to a junior patentee, the latter acquires the legal title, and must pre- viiil in a court of law over such prior claimant, whatever may be the date of his survey. A party claiming under such prior survey must resort to his car eat to prevent the emanation of a grant to his adversary, 198 CITATIONS TO THE CODE OF VIRGINIA. and if he fails in that, without sufficient excuse, he is without remedy, unless by some proceeding in equity, having for its object the annulment of the patent upon equitable grounds. Where a patent contains a reservation, the title and siesin of the land so reserved does not pass to the patentee, but remains in the Commonwealth. SECTION 2351. In the case of Blankenpickler vs. Andersons Heirs, 16 Grat., 59, decided August 21, 1860, it was held : If the grantee in a patent for land was dead at the time the grant issued, the patent is void ; and this may be shown on a trial in ejectment in which one party claims under the patent. SECTION 2357. * In the case of Preston vs. Harvey, 3 Call, 495 (2d. edition, 427), decided November 2, 1803, it was held : The Act of As- sembly, concerning inclusive surveys, does not extend to lands held by entry only. In the case of Preston vs. Harvey, 2 H. & M., 55, decided March 4, 1808, it was held : An inclusive survey cannot lawfully be made of lands held by entry only. A judgment on a caveat that no grant shall issue to a caveatee on his inclusive survey, where it appears that he has any other claim or survey by which he may possibly hold part of the land, ought to be so worded as not to affect his right under such claim or survey. In such case the judgment ought not to be that no grant issue to the caveatee for the land mentioned and described in his in- clusive survey, caveated, etc., but "that no grant issue to him in pursuance of his inclusive survey made under the order of the court granting him leave to comprehend in one survey his sev- eral adjoining claims." SECTION 2360. In the case of Jones vs. Jones, 1 Call, 458 (2d edition, 396), decided November 3, 1798, it was held: Inclusive patent to three creates a joint tenancy. A father and three sons obtained separate patents for four hundred acres of land each, adjoining one another, and the father obtains a patent for another tract of four hundred acres ; afterwards the three take one inclusive patent for all these tracts and another tract of one thousand one hundred and sitxy-two acres. This destroys the separate estates in the first three tracts, and creates a joint tenancy in the whole two thou- sand seven hundred and sixty-two acres comprised in the patent. SECTION 2368. In the case of Hambleton vs. Wells, 4 Call, 213, decided June, 1791, it was held : In ejectment it is competent to the defendant CITATIONS TO THE CODE OF VIRGINIA. 199 to give in evidence that the patent under which the plaintiff claims was obtained contrary to law, although upon the face it appears to have been regularly issued. In the case of White vs. Jones, 4 Call, 253, decided October, 1792, it was held : A court of law can avoid a patent for fraud in obtaining it, but neither a court of equity nor a court of law can afford relief unless the fraud be proved. In the case of Alexander vs. Greenup, 1 Munf., 135, decided April, 1810, it was held: A patent from the Commonwealth, containing a recital " that the land was escheated from a certain J. M., dec'd," and granting the same "by virtue of an entry made in the office of the late lord proprietor of the Northern Neck, and in consideration of the ancient composition of one pound, five shillings, sterling, paid by the grantee into the treasury," is illegal and void, and not to be received as evi- dence of title on the general issue in ejectment The Commonwealth, under existing laws, cannot grant escheat- ed lands without a previous inquest of office, and then not (as waste and unappropriated lands) upon entry and surveys, but upon sales by the escheators. A patent may be declared void for defects apparent on its face, without the necessity of resort- ing to a scire facias to repeal it. In the case of Witherinton vs. McDonald, 1 H. & M., 306, decided June 10, 1807, it was held : In an action of ejectment, evidence cannot be introduced to prove that a patent was irregu- larly obtained. Qucere: Whether in such case evidence is ad- missible that a patent was obtained by fraud? The reference to 6 Munf., 308, is an error. In the case of Morrison vs. Campbell et als., 2 Band., 206, de- cided January, 1824, it was held : A man deriving title under a forged assignment of an entry, and who afterwards obtains a legal title from the Commonwealth, ought not to be preferred to one who holds a regular assignment of a survey of the same lands. In the case of Warwick and Wife, and Another vs. Norvell, 1 Rob., 308 (2d edition, 326). Land which had been patented in 1755, being adjudged in 1774, upon petition to the general court to be forfeited and revested in the crown, was, in 1797, granted anew by patent to the holder of a land office treasury warrant as waste and unappropriated land. Held by the coiirt of appeals (following the decision in Whitiington, etc., vs. Chris- tian, etc., 2 Rand)., that the patent of 1797 was void. In the case of Blankenpickler vs. Anderson's Heirs, 16 Grat., 59, decided August 21, 1860, it was held, page 62: If the grantee in a patent for land was dead at the time the grant is- sued, the patent is void ; and this may be shown in an action of ejectment in which one party claims under the patent. 200 CITATIONS TO THE CODE OF VIRGINIA. In the case of Garrison vs. Hall et als., 75 Va., 150, decided January 13, 1881, it was held, page 164 : A party claiming title to land to which he has the legal title of one-third and an equitable title to the other two-thirds, may go into equity to re- strain waste upon the land, and to set aside a conveyance from the board of public works of Virginia to a purchaser of the land, the same having been previously legally granted by a valid grant. CHAPTER CV. SECTION 2375. For 27 Grat., 291, see Section 2398. SECTION 2376. In the case of Bennett vs. The Commonwealth, 2 Washington, 199 (1st edition, page 154), decided at October term, 1795, it was held : Upon an inquest of office respecting property escheated or forfeited to the Commonwealth, the jury might have been composed of twelve jurors, or of a greater or smaller number, prior to the act of 1794. In the case of Dunlop vs. Commonwealth, 2 Call, 284 (2d edi- tion, 240), decided April 30, 1800. The question was raised, whether an inquisition finding an escheat for want of heirs must say in express words that the deceased died without issue, but as the motion to quash was made by an amicus curia, the above point was not decided. It was held : Ah amicus curia cannot move to quash an inquisition of escheat unless he either has an interest himself or represents somebody who has. An amicus curia cannot appeal. SECTION 2378. As to case cited, 2 Call, 284, see Section 2376 supra. SECTION 2379. In the case of French & Brown vs. The Commonwealth, 5 Leigh, 512, decided December, 1834, it was held : In a monstrans de droit to an inquisition of escheat, prosecuted under this section, the monstrant is plaintiff. The monstrant must show good title in himself in order to en- title him to judgment of amoveas manus against the Common- wealth. SECTION 2388. In the case of Fiottet als. vs. The Commonwealth, 12 Grat., 564, decided September 7, 1855, it was held : A subject and citizen of Great Britain purchased land in Virginia in 1793, and he lived until 1818. By the treaty of 1794 between Great Britain and the United States, he was entitled to hold the land, and no CITATIONS TO THE CODE OF VIRGINIA. 201 proceedings having been instituted during the war of 1812 to escheat it, that war did not divest his rights, but the land de- scended on his death to his heirs. In a case of escheat between the heirs of the alien and the Commonwealth, both parties claiming under the same person, and the inquisition referring to a deed to the alien for the land, as recorded in the county of K., an office copy of said deed is evidence for the heirs, though it was not recorded upon proper proof. In the case of Hauenstein vs. Lynham (Escheator), 28 Grat., 62, decided January, 1877. H., of foreign birth, bought real estate in 1856 and 1859, and died in 1861, seised thereof without known heirs. The said real estate was escheated to the Com- monwealth, and in May, 1876, persons, natives of and living in Switzerland, instituted proceedings for the recovery of the real estate. Held : The law as it was at the death of H. must govern the case, and under the act of April 7, 1858, Session, Acts of 1857-58, Chapter 42, Section 44, Code of 1860, Chapter 115, p. 557, persons, natives of another country, and living there, are not entitled to the real estate. The treaty of November, 1855, between the United States and the Republic of Switzerland, 11 U. S. Statute at large, p. 590, Article 5, Clause 3, by its terms depends for its operation and effect upon the legislature of the State in which the real estate lies, and no right in real estate in Virginia will vest in a citizen of that republic under said treaty, there having been, at the death of H., no statute authorizing it. In the case of Hauenstein vs. Lynham, 100 U. S. S. C. Re- ports, 483, decided October, 1879. A., a citizen of Switzerland, died in 1861 in Virginia, intestate and without issue. For want of an heir capable under the statutes of the State to inherit the lands there situate, whereof he died seized in fee, they were sold by the escheator of the proper district. A.'s next of kin, B., a citizen of Switzerland, filed a petition to recover the proceeds of that sale, upon consideration of the treaty between the United States and the Swiss confederation of November 5, 1850. Held : That the treaty is the supreme law of the land, and by its terms the incapacity of B. as an alien was so far removed as to entitle him to recover and sell the lands, and "withdraw and export the proceeds thereof." That his rights thus secured are not barred by the lapse of time, inasmuch as no statute of Virginia prescribes the term within which they must be asserted. That where a treaty admits of two constructions, one restrictive of the rights which may be claimed under it, and the other lib- eral, the latter is to be preferred. That the treaty-making clause of the Constitution is retro- active as well as prospective. 202 CITATIONS TO THE CODE or VIRGINIA. That in view of B.'s rights in the premises, the escheator is entitled only to the amount allowed by law for making sales. of real estate in ordinary cases. The counsel cannot be paid out of fund in dispute. SECTION 2397. In the case of The Commonwealth vs. Martins Executor and Devisee, 5 Munf., 117, decided March 30, 1816. A tes- tator devised his real estate in Virginia to his executors, to be sold by them or the survivor of them, at such time and in such manner as they, or the survivor of them, should judge most advantageous ; and gave and bequeathed the money aris- ing from such sales, and the rents and profits of the said lands which might accrue before the sales, to his sisters, who were aliens, subject, nevertheless, to the payment of his just debts, and of certain legacies to his executors. Qucere : Whether under this will the title of the alien sisters was good against the Com- monwealth claiming the money for which the lands were sold ; the testator having died without any lawful heir, and his per- sonal estate being sufficient to pay his debts? In the case of Commonwealth vs. Selden, etc., 5 Munf., 160, decided April 1, 1816, it was held : The finding of an inquest of escheat in favor of the Commonwealth will not take away the title of a purchaser claiming by a deed of bargain and sale, legally executed and recorded before the inquest was sealed, though without the knowledge of the bargainee till afterwards. In the case of Ferguson vs. Franklins, 6 Munf., 305, decided February 20, 1819, it was held : A sale and conveyance of land by a trustee cannot be set aside on the ground that he was an alien when the deed was made to him, and when he conveyed the land to the purchaser. In the case of HuHbard vs. Goodwin, Kennedy, etc., vs. Same, 3 Leigh, 492, decided, it was held : The court of equity in such case follows the law in relation to escheats of legal estates pur- chased by aliens ; and as the law does not, in cases of escheat, give the Commonwealth the profit received by the alien or any other person before office found, so neither will equity, in the case of the trust estate, give the Commonwealth the profits thereof accrued before decree. SECTION 2398. In the case of Watson vs. Lyle's Administrator, 4 Leigh, 236, decided February, 1833, it was held : Under a petition under the statute, 1 Rev. Code, Chapter 82, Section 14, by the creditor of a person whose lands have been escheated, the creditor is required to make an affidavit that the amount of his demand is bona fide due ; but this requisition of the statute does not dispense with CITATIONS TO THE CODE OF VIRGINIA. 203 the necessity of other evidence. The court can only render judgment for such sum as is proved to be due. If judgment has been rendered for the whole amount of the demand, when the whole is not proved to be due, and it is un- certain to what part the proof extends, an appellate court will reverse the judgment and dismiss the petition. The escheator, who is defendant to the petition, has the same right to plead the statute of limitations in bar of the petition that a representative of the debtor would have to plead the statute in bar of an action. In the case of Sands vs. Lyman (Escheator), 27 Grat., 291, de- cided March, 1876. H., of foreign birth, died in 1867, seised and possessed of real estate in E., intestate and without any known heirs. The real estate of which he died seised vested in possession in the State without office found or other proceed- ings at law. After the death of H., G. sued his curator, S.', for a large debt alleged to be due from H., and there was a judgment by de- fault. G. then sued S., the curator in equity, to subject the real estate of which H. died seised for the payment of the judg- ment. There was a decree for a sale, and a sale was made in pursuance of the decree, when J. became the purchaser of a part of the property sold. Held : The State not having been a party to the suit, the decree and sale are a nullity as to her, and gave J. no title to the property purchased by him. If J. was a bona fide purchaser, he is entitled to be substituted to the rights of the creditor G. ; and upon showing that the claim of G. is just, to have the real estate subjected to its payment. After the death of H. an inquisition of escheat was executed in 1868, and the jury, after finding the death of H. without known heirs seised of the real estate, stated that certain parties were in possession, claiming under said sale. The escheator returned the inquisi- tion in June, 1869, when the property was advertised as escheated. J. then filed his petition in the proper court, stating that he held the property under his purchase, and asking for an injunction. The escheator and register were made parties, but before the escheator answered, the court made a decree per- petuating the injunction. The escheator then filed a bill to re- view the decree. Held : It was error to make a decree passing upon the rights of the purchaser of the property and perpetuat- ing the injunction without the answer of the escheator. (Code of 1860, Chapter 113, Section 8.) As the title of the State does not depend upon the inquisition, it cannot be affected by any errors or irregularities in the proceedings of the ' escheator. The decree of the court was a decree by default, and the bill of review by the escheator may be treated as a petition for a re- hearing of the decree ; but it was a proper case for a bill of review. 204 CITATIONS TO THE CODE OF VIRGINIA. SECTION 2399. The reference to 27 Grat., 291, is to the case cited supra Sec- tion 2398. CHAPTEE CVL TITLE XXX. CHAPTEE CVII. SECTION 2413. In the case of The Bank of the United States vs. Cawington et als., 7 Leigh, 566, decided November, 1836, it was held: Where land is purchased and paid for by one person, and the conveyance is taken to another, the law will imply a trust for the benefit of the former, and such purchase and payment may be proved by parol evidence. In the case of Lyle vs. Higginbotham, 10 Leigh, 57 (2d. edi- tion, 67), decided February, 1839, it was held : Case in which under the particular circumstances a letter written by a mort- gagee to his attorney, informing him that the mortgage debt had been paid, and requesting him to dismiss a suit then pending to foreclose the mortgage, was held to be proper evidence in favor of a subsequent incumbrancer, in a controversy with the execu- tor of the mortgagee, who had revived the proceedings to fore- close, the attorney submitting to produce the letter, if directed by the court to do so. In the case of Borst vs. Nolle et als., 28 Grat., 423, 435 and 436, decided March, 1877, T., an executor, employs E. to sell a tract of land for him, and to facilitate it, T. executes a deed to B., but does not deliver it. E. makes a sale to B., and B. pays the money to T., and then T. delivers the deed to E., and at the same time E. executes a deed to B. In a suit by a judgment creditor of E. against B. to subject the land to pay his debt. Held : T. is a competent witness to prove the fact that E. sold as his agent, that the conveyance to him was that he could convey to B., and that B. paid the purchase-money to him. By the conveyance to E. there was an implied or resulting trust in favor of B., who had paid the purchase-money ; and this trust may be proved by parol evidence. The trust having been fully executed by E. conveying the land to B. before this litiga- tion was commenced, it seems that on that ground parol evi- dence is admissible to establish the trust. E. being dead, B. is not a competent witness in his own behalf as to the sale and conveyance of the property. In the case of Boiling vs. Teel et als., 76 Va., 487 and 492 : CITATIONS TO THE CODE OF VIRGINIA. 205 1. Chancery Practice. Partition. Commissioners to make partition allot land to husband instead of his wife, whose inher- itance it was, and their report is confirmed by the court ; no conveyances are directed or made. Held: The husband ac- quires no title by the proceedings : 1. Decree of partition does not of itself operate as a conveyance of title. 2. The court usually directs the execution of mutual conveyances by the parties, if sui juris, and by a commissioner for those non sui juris. 3. Eegistration of partition, or assignment of dower, does not alter this rule of chancery, but only gives notice of the decree. 2. Coparceners. At common law coparceners could make partition even by parol. No conveyance is necessary. They are seised of their shares by descent from the common ances- tor, and partition only adjusts their rights. Quaere: Has the rule been changed by statute? Mutual conveyances are necessary to -pass title in all cases where partition can only be made by deed, as between joint tenants In the case of BurkTiolder et als. vs. Ludlam et als., 30 Grat., 255, decided March, 1878, it was held : B., who married the daughter of C., bought a lot when he was poor, and C. in good circumstances. B., being unable to pay for the lot, turned it over to C., who paid for it, took the title in his own name, and commenced to build a house on it for his daughter, the wife of B. Before the house was finished B. removed with his family to another town and engaged in business, which was succeeding well, when C. offered that upon condition that he would return, he would turn over the lot and unfinished building to the wife of B. as her own property. B. acceded to this, and with his family returned, and he paid the expenses of doing so, and then with his own earnings and that of his wife, finished the build- ing, took possession, and had remained therein for about twelve years ; but no deed was made by C. to the property until the insolvency of C., and after judgments were obtained against him and duly docketed. The house and lot were then conveyed to a trustee for the wife of B., in consideration of five dollars and "love and affection." In a suit by the judgment creditors to annul the deed and enforce their liens, held : That the title to the house and lot was in the trustee for the use of the wife and children of B., and that the liens of the judgments against C. did not attach to the property. A court of equity will compel the conveyance of the legal title of land claimed under a parol gift, supported by a meritorious con- sideration, and by reason of which the donee has been induced to alter his condition and make expenditures of money in valua- ble improvements on the land. 206 CITATIONS TO THE CODE OF VIRGINIA. In the case of Stokes et als. vs. Oliver et als., 76 Va., 72 : 1. Parol Gifts. Whenever Valid Quoad Creditors of Donor. In 1853 and 1855, S. owned estate of much value, and owed but one debt, for which his sons, H. and E., were sureties. In 1853, he induced H. to sell out in L. and settle on a farm in P. E., assessed at thirteen thousand eight hundred dollars, which he agreed to give H. if H. would pay him two thousand five hundred dollars. H. paid the money. In 1855, S. ex- changed with E. a farm in P. E., assessed at fifteen thousand dollars, for lands in L., assessed at two thousand five hundred dollars. S. placed H. and E. in possession of the respective farms, and they held notorious and adverse possession of it and made valuable improvements, and paid taxes on same until 1869. S. also gave to his daughter, B., land in L., adjacent to the land occupied by her already, and she held it openly and cultivated it as her own until 1869, but made no valuable im- provements on it. No conveyances were made until December, 1863, when S. conveyed the said farms to H., E., and B., re- spectively, by deeds declaring that they were, in consideration re- spectively, " of natural love and affection and two thousand five hundred dollars," of natural love and affection and certain lands, and of natural love and affection. After these alienations were made, S. retained estate ample to pay not only what he owed in 1855, but what he owed in 1863. In 1865 S. died insolvent. In 1869, O., whose debt was contracted before 1853, and other creditors, whose debts were contracted after that date, filed a bill to annul these deeds as voluntary and void as io them, and to subject the lands to pay their debts. Held: The bill should have been dismissed as to H. and E., the parol gifts to whom were not only in part supported by valuable considerations, but who were also induced by the donor to alter their conditions, and to expend money in valuable improvements on the land. 2. The deed to B. was voluntary, and void as to the creditors of S. B. had not been induced, by reason of the parol, gift to alter her condition and to expend money in valuable improve- ments on the land. There was nothing in her case whereon she could have founded a claim for specific performance. See Burkeholder vs. Ludlam, etc., 30 Grat., 255. In the case of Halsey vs. Peter's Executor, 79 Va., 60, de- cided May 1, 1884, it was held : Equity will compel conveyance of legal title of land claimed under parol gift, supported by meritorious consideration, and by reason of which donee has been induced to alter his condition and make expenditures of money in valuable improvements on the land, and will protect such gifts equally with parol agreements to sell land. No writ- ing is necessary to create a good equitable title to real estate. The statute of frauds has no bearing on parol gifts of land CITATIONS TO THE CODE OP VIRGINIA. 207 wjiich are founded on meritorious consideration. If the promise, reduced to writing, could, under the circumstances, be enforced, it may be enforced even when only parole. In the case of Grigsby vs. Osborn, 82 Va., 371, decided Sep- tember 16, 1886, it was held : A court of equity will compel the conveyance of the legal title to land claimed under a parol gift, accompanied by possession, when the donee, induced by the promise to give it, has made valuable improvements on it. But the promise must be definite in its terms and clearly proved. This is the case cited from 10 Va. Law Journal, 717. SECTION 2414. In the case of Davis vs. Payne's Administrator, 4 Rand., 332, decided June, 1826, it was held : A voluntary conveyance of per- sonal property, by a party not indebted at the time, is good against creditors, if the deed be duly recorded, or the posses- sion made solely and bona fide with the donee. Otherwise it is void by the Statute of Frauds. In the case of Durham, and Wife vs. Dunkley, 6 Rand., 149 (cited as 135), decided February 16, 1828, it was held : A slave is given to an infant by deed, with a reservation expressed in the deed that the donor is to keep the slave and raise it for the donee until she arrives at the age of thirteen. The slave is deliv- ered to the donee on the day of the execution of the deed, and on the same day taken back by the donor. The deed is never recorded, and the donee never lived with the donor. This gift is void under the act of Assembly. A gift of slaves can only be evidenced by deed or will duly proved and recorded, or by possession passing from donor to donee, and remaining with him, or one claiming under him. The possession here meant is an actual, abiding, permanent possession. In the case of Hunter vs. Jones, 6 Rand., 541, decided Octo- ber, 1828, it was held : A parol gift of a slave by a father to an infant child living with him, by a declaration that the gift is made, without delivery of possession, is not good against a sub- sequent purchaser of that slave, although the purchaser knew at the time of his purchase that the father had so made the gift. In the case of Shirley vs. Long et als., 6 Rand., 856, decided by the General Court, August, 1827, it was held : If a father give a slave to a child, and the donor retain possession of the slave and exercise control over it, the gift is not the less fraudulent because the child always lived with the father, and the slave was always called the child's in the family and neighborhood. A parol gift of a slave to child, without possession in the donee, is void, as between donor and donee, if the slave given 208 CITATIONS TO THE CODE OF VIRGINIA. be conveyed by deed (unaccompanied with possession in tl*e donee), and without being recorded, it is void as to creditors and purchasers. If a defendant in his answer admit that a slave which he claims as a gift was always in the possession and under the control of the donor, with whom the donee lived, proof that the donee had the possession is inadmissible, since it varies from the admissions of the defendant. In the case of Hansborough 's Executors vs. Thorn, 3 Leigh, 147, decided November, 1831. In detinue for slaves, the ques- tion being whether a contract between plaintiff and defendant's testator was a gift or a sale of the slaves by the latter to the former, the defendant demurs to the plaintiff's evidence. Held : The evidence states facts from which it may fairly be inferred that the contract was a sale, though there was no express proof of any valuable consideration paid or stipulated, and that there- fore it was a sale. In the case of Brown vs. Handley, 7 Leigh, 119, decided Jan- uary, 1836, it was held : When a father has declared that he has given a slave to a married daughter, and afterwards tells her to go and take possession of the slave, the declaration of the father's wife, in his absence at the time the daughter takes possession, that she did not give, but only lent her the slave, is of no effect to convert the father's gift into a loan, though the daughter re- ceives the possession from the donor's wife, without complain- ing of her qualification of the gift. When a father has made a parol gift of a slave to a married daughter, and delivered her the possession, the gift is consum- mated, and he cannot afterwards retract it by refusing to exe- cute a deed for the slave. In the case of Cross vs. Cross's Administrators, 9 Leigh, 245, decided February, 1838, it was held : Though a parol gift of slaves may be given in evidence to show the character of the possession held by the donee, yet the gift itself is void. A father-in-law puts slaves into the possession of his son-in- law on loan ; no length of possession will give the lendee title against the lender, till such possession has become adverse by demand and refusal of the possession. It seems that, as between parent and child, possession of a slave is very equivocal evidence of a gift from the parent to the child, since the delivery of the possession would equally accom- pany a loan, and the law would rather infer a loan than a gift from a mere transfer of possession. In the case of Anderson vs. Thompson, 11 Leigh, 439, de- cided November, 1840. A father delivers a slave to his infant son living with him, and calls upon persons present to take notice that he gives that slave to the son, but says, at the same CITATIONS TO THE CODE OF VIRGINIA. 209 time, that lie claims an estate in the slave for his own life. Held : Nothing passes to the son by such parol gift. In the case of Anglin vs. Bottom, 3 Grat., 1, decided April, 1846, it was held : On a parol gift of slaves, the slaves must come into the actual possession of and remain with the donee, or some person claiming under him, to give to such donee a valid title to the slaves. When, upon overruling a motion for a new trial, the court be- low certifies that the donor made an absolute gift of slaves to the donee, this is not sufficient to authorize the appellate court to infer the actual and continued possession of the slaves by the donee, or those claiming under him, which is essential to his title. Such a certificate as to other personal property would imply such a delivery as constituted a valid gift. The reference to 5 Grat., 364, is to the case of Tutt vs. Slaughter (Executor), and decides the questions of a case of gift, depending not on law, but evidence. In the case of Henry vs. Graves, 16 Grat., 244, decided April 16, 1861, it was held : A husband, in the lifetime of his wife, makes an absolute gift of his wife's remainder in slaves by deed, which is recorded after her death, and he survives both his wife and the life tenant. The gift is valid and effectual against him, though before possession is obtained by the donee he dissents from it. In the case of Miller and Wife vs. Jeffress et als., 4 Grat., 472, decided January, 1848, it was held : A delivery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, or of the means of getting the pos- session and enjoyment of the thing ; or if the thing be in action of the instrument, by using which the chose is to be reduced into possession. It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa ; and after-acquired possession of the donee is no- thing ; and a previous and continuing possession, though by authority of the donor, is no better. In the case of Lee's Executor vs. Boak, 11 Grat., 182, decided April, 1854. Testator gives a legacy to a nephew, but directs that he shall account for the amount of certain bonds and re- ceipts of the nephew which the testator had paid off for him as his security. After making his will, testator, shortly before his death, and in contemplation of that event, delivers to the nephew the bonds, etc., with the view of them becoming his ab- solute property in the event of the testator's death, and for the purpose of discharging the nephew from all accountability for the same as one of the legatees, in his settlement with the exec- utor. Held: The intention of the testator being that the nephew shall not account for the moneys paid by the testator u 210 CITATIONS TO THE CODE OF VIKGINIA. for him, the gift of bonds and receipts is not an advancement in satisfaction of the legacy to the nephew. A bond may be the subject of a donatio mortis causa, whether it be the bond of a stranger or the donee, and in this case the donation was valid. In the case of Mayo's Executor et als. vs. Carrington's Execu- tor et als., 19 Grat., 74, decided February 23, 1869. The court said : It was stated in Henry vs. Graves, 16 Grat., 244, and re- affirmed in this case as the result of all the authorities, that a voluntary gift, valid at law or equity, may be made of any pro- perty, real or personal, legal or equitable, in possession, rever- sion, or remainder, vested or contingent, and including choses in action, unless they be of such a nature as that an assignment of them would be a violation of the law against maintenance and champerty ; that such a gift to be valid, must be complete, and not executory, that what is necessary to the completion of the gift depends on the nature of the subject and the circum- stances of the case, and that it is always sufficient, though not always necessary to the completion of a gift, at least between the parties, that the donor do everything in his power, or which the nature of the case will admit of, to make it complete. In the case of Morrison's Executors vs. Grubb, 23 Grat., 342, decided March, 1873-, it was held: W., executor of M., files a bill against G. in which he says that his testator in his lifetime owned a number of bonds or notes amounting to four thousand dollars, which were drawn payable to him, and were in his pos- session a few days before his death. That after his death they were in possession or under the control of said G., and were not assigned to him ; and that G. gave no consideration for them. The averments do not make a case against G., and do not enti- tle the plaintiff to any recovery or relief against him. The bill further alleges that the bonds, etc., were the property of M. at his death, and became assets of said estate which should come to plaintiff's hands, that he is entitled to know what bonds of said M. said G. holds, and to recover them for the said M.'s estate. And he calls for a full answer. G. answers and denies that he had in possession, or under his control at the time of M.'s death, or at any time since, any bonds which were at his death property, or to which the plaintiff, as his execu- tor, or otherwise had any right, title, or interest. These averments of the bills are facts, and necessary to sustain it, and being posi- tively denied by the answer must be proved. The defendant hav- ing denied the allegations of the bill, proceeds to state that the bonds were the property of M., and were given to him by M., and when and how it was done. The whole statement must be taken together as his answer. In the case of Basket vs. Hassell, 107 U. S. S. C. Eeport, CITATIONS TO THE CODE OF VIRGINIA. 211 602, decided October, 1882, it was held : A certificate of deposit in these terms : EVANSVILLE NATIONAL BANK, JSvansville, Lid., September 3, 1875. H. M. Chaney has deposited in this bank twenty-three thou- sand five hundred and fourteen dollars and seventy cents, pay- able in current funds to the order of himself on surrender of this certificate, properly endorsed, with interest at the rate of six per cent, per annum if left for six months. $23,514.70. HENRY KEIS, Cashier. may, as a subsisting chose in action, be the subject of a valid gift if the person therein named endorse and deliver it to the donee, and thus vest in him the whole title and interest therein, or so deliver it, without endorsement, as to divest the donor of all present control and dominion over it, and make an equitable assignment of the fund which it represents and describes. A donatio mortis causa must, during the life of the donor, take effect as an executed and complete transfer of his possession of the thing and his title thereto, although the right of the donee is subject to be divested by the actual revocation of the donor, or by his surviving the apprehended peril, or by his outliving the donee, or by the insufficiency of his estate to pay his debts. If, by the terms and conditions of the gift, it is to take effect only upon the death of the donor, it is not such a donation, but is available, if at all, as a testamentary disposition.' Where, therefore, during his last illness, and when he was in apprehen- sion of death, the person named in the above certificate made thereon the following endorsement : "Pay to Martin Basket, of Henderson, Kentucky; no one else ; then not till my death. My life seems to be uncertain. I may live through this spell. Then I will attend to it myself. "H. M. CHENEY." and then delivered it to Basket, and died at his home, in Ten- nessee. Held : That Basket, by such endorsement and deliv- ery, acquired no title to or interest in the fund. In the case of Thomas s A.dm'r vs. Bettie Thomas Lewis et alt*., 89 Virginia, 1, decided June 16, 1892, it was held: The words " no gift " in the Code of 1887, Section 2414, refers not to, and the section does not embrace gifts, causa mortis. In the case of Vaughan et als. vs. Moore et als., 89 Va., 925, decided March 30, 1893. A father executed, acknowledged, and delivered a deed of gift of land to his son. After its' de- livery to the clerk for record, but before it was actually re- corded, the father took and destroyed it, and conveyed the land to others having notice of the son's equitable rights. Held : The court below erred in refusing to set up the destroyed deed in behalf of the son. 212 CITATIONS TO THE CODE OF VIRGINIA. SECTION 2415. See the references to Section 2860. In the case of Jtoss vs. Milne and Wife, 12 Leigh, 204, de- cided April, 1841, it was held: Upon an indenture between S. and E., wherein E. covenants to pay money to M., a daughter of S., within two months after S.'s death, the representative of S. only can maintain an action against E. for breach of cove- nant, and M. cannot maintain either covenant for the breach or debt for the money. So, iipon a contract between S. and E., whereby E., upon a consideration moving entirely from S., pro- mises to pay S.'s daughter M. a sum of money after S.'s death, M. cannot maintain either debt or assumpsit for the money ; the representative of S. only can maintain an action at law. In the case of Jones vs. Thomas, 21 Grat., 96 and 102, de- cided June, 1871, A. T. executes his bond as follows : March 12, 1863. I hereby bind myself, my heirs, etc., to pay - - the amount of principal and interest due from W. A. J. on the tract of land purchased by him of G. W. J. and wife. Witness my hand and seal the day and date above. And he delivers it to- W. A. J. Held : W. A. J. may maintain an action of covenant on the bond against A. T. W. A. J. may recover upon the bond against A. T., if A. T. has not paid the debt, though it is not averred or proved that W. A. J.. has paid it, or has been otherwise injured by the failure of A. T. to pay it. The declaration does not in its commencement aver that A. T. covenanted with the plaintiff to pay the debt, but it does so- in a subsequent part of it. This is substantially sufficient. In a declaration on a covenant it should be set out without any intermediate inducements or statements of the considera- tion, but if averments are made which may be treated as mere surplusage, they will not vitiate the declaration. Qucere : If G. W. J. might not sue on this bond in his own name to enforce the covenant of A. T., under the act, Code of 1860, Chapter 116, Section 2? In the case of Stuart vs! James River c& KanawTia Company, 24 Grat., 294 and 297, decided January, 1874, it was held : The act of March 1, 1867, entitled an "act to authorize the James Eiver & Kanawha Company to borrow money," though Avhen accepted by the company it creates a contract between the com- pany and the State, does not create a contract between the com- pany and the holders of the $180,000 of State bonds therein mentioned ; and a holder of one of these bonds cannot maintain an action thereon against the company. Though the company has executed a mortgage on its property to secure money au- thorized to be borrowed by said act, yet if the company has not borrowed the money, or made use of the bonds intended to be CITATIONS TO THE CODE OF VIRGINIA. 213 secured by the mortgage, it cannot be held to have accepted the terms of the act or become liable under its proviso in relation to said $180,000 of State bonds. In the case of Clemmitt and Wife vs. New York Life Insur- ance Company, 76 Va., 355 and 360, decided March 30, 1882: 1. Insurance Policy. War. Husband took out policy on his life for his wife, and, in case she died before him, then for her children. Premiums paid up to the war. After the war, insur- ance company repudiated the policy. Then wife died, only one child surviving. Suit was brought by the child during life of insured for damages for breach of policy. Pending suit, insured died. At trial, circuit court instructed the jury that if they be- lieved from the evidence that the insurance company repudiated the policy during wife's life, action accrued to wife ; and, after her death, action survived to her personal representative, and they must find for defendant ; and refused to give other instruc- tions. Held: 1. The instructions were erroneous. As soon as wife died, the child's rights vested. After insurance company repudiated policy, wife might have sued in her own name (Code 1873, Chapter 12, Section 2) for damages for breach, or await the event on which the sum assured became payable to her if she survived the insured, to her children if she did not survive him. 2. The war only suspended, but did not abrogate the policy. 3. The insurance company's repudiation of the policy after the war, excused thereafter the insured from making any tender of premiums. In the case of Tilley vs. Connecticut Fire Insurance Company, 86 Va., 811, decided April 10, 1890, it was held : Any person having an interest in property insured, though no party to the policy, may institute and maintain an action in his own name to extent of loss occasioned him by its destruction. SECTION 2416. In the case of Martin vs. Flowers, 8 Leigh, 158, decided M.'irch, 1837. A deed for the conveyance of land, purporting to be made by A., attorney in fact for B., witnesses "that the said attorney in fact, A., for and in consideration, etc., doth release and qiiit claim," etc., and concludes, "in testimony whereof the said B. hath hereunto set his hand and seal," but is signed with the name of A. (not styled attorney), a scroll being annexed to the signature. Held : This is not the deed of B., and does not convey his title to the land. In the case of Shanks et als. vs. Lancaster, 5 Grat., 110, de- cided July, 1848, it was held : A power of attorney for convey- ance of lands falls within both the letter and spirit of the act regulating conveyances. 214 CITATIONS TO THE CODE OF VIRGINIA. 1 Bev. Code, Chapter 99, Section 7, page 363, authorizing deeds to be acknowledged before any two justices of the peace for any county or corporation of the United States, and the cer- tificate of the justices is sufficient for the admission of the power of attorney to record with the conveyance, although it does not certify the instrument to any court or clerk's office for the purpose of being recorded. The act, 1 Kev. Code, Chapter 99, Section 15, page 365, does not embrace power of attorney, or authorize two justices to take and certify the privy examination of the wife as to her execu- tion thereof. A deed executed by an attorney in fact, in which he refers to the power of attorney, but conveys in his own name as attorney, and covenants and warrants in his own name on behalf of his principal, the deed being signed with the name of the principal, as by the attorney, is the deed of the principal. It is a sufficient execution of a deed by an attorney in fact for his principal if he signs the name of the principal with the seal annexed, stating it to be done by him as attorney by the prin- cipal, or if he signs his own name with the seal annexed, stating it to be for the principal. A deed of husband and wife, executed under a power of attor- ney, is the deed of the husband, though it is void as to the wife, the power being void as to her. In the case of Bryan vs. /Stump, etc., 8 Grat., 241, decided October, 1851. A trustee in a deed, the trusts of which have been satisfied, executes a power of attorney to a third person, with authority to release the deed. The attorney executes a deed, which commences in the name of the trustee by the attor- ney, but it is signed in the name of the attorney for the trus- tee, and it releases the land not to the grantor in the trust deed, but to a purchaser under him. Held : The deed of trust is duly and regularly released. In the case of Stinchcoml) vs. Marsh, 15 Grat., 202, decided July, 1858, it was held : M. gives to J. a power of attorney to sell her lands in the county of K., with a power to J. to appoint other agents or attorneys. J. executes a power to C. to sell the lands, but the power only authorizes C. to act in the name of J., and it is signed by J. in his own name, without any reference to his principal. This power does not authorize C. to convey the land as attorney of M. SECTION 2418. In the case of Tab vs. Baird, 3 Call, 475 (2d edition, 411), decided November 12, 1803, it was held : If the verdict does not find title or possession in the grantor, he can convey neither, and therefore his grantee cannot maintain an ejectment against the tenant in possession. CITATIONS TO THE CODE OF VIKGINIA. 215 In the case of Hall vs. Hall, 3 CaU, 488 (2d edition, 421), de- cided November 12, 1803, it was held : If the title of the heir be abated by a stranger, he cannot convey it by deed of bargain and sale before entry. In the case of Carrington vs. Goddin, 13 Grat., 587, decided February 3, 1857, it was held : A party having an interest in or claim to land held adversely by another, may, under the Code, sell and convey the same, and his grantee may maintain eject- ment for it. Testator empowers his executors to set apart so much of his estate, not specifically bequeathed, as they may think sufficient to produce a clear annual income by rent or interest of two thou- sand dollars, which is directed to be distributed among certain legatees for life, and after some other unimportant provisions, he gives the balance of his estate among his nieces and nephews. And then he says : "And for the purpose of making such divi- sion with greater facility, I hereby give to my executors, or such of these as may choose to act, full power to sell or otherwise dispose of the whole or any part of said property, in such time and manner,, and on such credit as to them may seem most bene- ficial for the whole. Quaere : If the legal title to the real estate vested in the executor? The executors had full power and authority to sell all or any part of the real estate ; and a bona fide purchaser from them is not bound to show that such sale was necessary for the purpose of making division among the devisees. A bona fide purchaser will not be affected by the failure of the executors to account for the purchase-money, and therefore evi- dence to prove such failure is properly excluded in an action at law between a claimant under such purchaser and the devisees. The executors by a deed reciting that it is made in execution of the powers vested in them, in the considering of an exchange of land made with A. (one of the executors), and for the further consideration of one dollar paid by the purchaser, convey a lot belonging to their testator's estate. Such deed on its face is not invalid, but passes the title to the purchaser. In an action of ejectment by a party claiming under the pur- chaser against the devisees, evidence to prove that the considera- tion of the deed was different from that expressed in it is in- admissible. A deed of trust conveys two small lots in Adam's Valley with other property, and upon its face shows that it was intended, to convey all the property of the grantor. In fact, three lots had been conveyed to the grantor, though two of them fronted on the same street, and adjoined each other, and both together fronted but sixty-two feet on the street, and they were unen- closed. Held: It is not competent to prove by the grantor 216 CITATIONS TO THE CODE OF VIRGINIA. that he intended to include both parcels of the lot in his deed, though there is no objection to his competency as a wit- ness. If it is doubtful on the face of the deed whether one or both of the parcels were intended to be conveyed, the deed will be construed most strongly against the grantor, and so as to give it effect rather than that it should be void for uncertainty. Though it is not competent to prove by the grantor his inten- tion to convey by his deed the land in controversy, yet he may identify the lot, and may show that it answers to the descrip- tion given in the deed. In an action of ejectment, the tenant, without disclaiming title to any part of the land in the declaration mentioned, proves upon the trial that he is only in possession, and claiming title to a part of it. A verdict and judgment in favor of the plaintiff for all claimed in the declaration is not erroneous, or if it is, it is not an error by which the tenant is injured, or of which he can complain in an appellate court. In the case of Mustard vs. WohlforcPs Heirs, 15 Grat., 329, decided September 5, 1859, it was held: An infant sells his tract of land, puts the purchaser in possession, and executes a bond in a penalty with condition to make the title. The con- tract is voidable, but not void. In such a case the infant, on coming of age, sells the land to another person, and executes to him a bond in a penalty with condition to make the title. This is an avoiding of the first contract. In this State a party out of possession may sell and convey his interest in lands; and therefore, though the first purchaser from the infant has been put in possession of the land, and has received a conveyance, the infant, on coming of age, may con- vey, and his deed will avoid the first deed. The reference to 15 Grat., 339, is to the case above cited from page 329. In the case of Young vs. Young, 89 Va., 675, decided Feb- ruary 16, 1893, it was held : A contingent remainder, which is a mere possibility, is not within the Code, 1873, Chapter 148, Section 1, allowing an attachment against " estates or debts " in certain cases. A contingent remainder, which is, however, " an interest or claim " to real estate, may be conveyed under Code, Section 2418. A conveyance of a contingent remainder, if made with gene- ral warranty of title, would operate as an estoppel as against the grantor subsequently claiming that he had no estate in the real estate conveyed at the date of the conveyance. SECTION 2419. In the case of Pembleton vs. Van De Vier, 1 Washington, CITATIONS TO THE CODE OF VIKGINIA. 217 381, decided at the fall term, 1794: P., holding under a devise which conveyed either a life estate or a fee-simple (which the court did not decide), made a deed of lease and release to M., whereupon the heir at law of P.'s devisor brought suit to re- cover the land, under the claim that a lease and release for a term longer than the tenant had therein worked a forfeiture of the estate. P. was living at the time of the suit. Held: No forfeiture, as the deed could only operate to convey such in- terest as P. had therein. In the case of Carter vs. Tyler et als., 1 Call, 165 (2d edition, 143), decided November 14, 1797, it was held : By the act of October, 1776, for docking entails, all remainders, as well con- tingent as vested, are utterly barred, whether the entail be created before or after the passing of the act. Nor will the court, in order to avoid this effect, construe that to be an execu- tory devise which before would have been held to be a contin- gent remainder ; and during the trial of the cause the court an- nounced (page 174, 2d edition, 150) that the alienation or war- ranty of a grantor cannot give the grantee a better title than the grantor himself possessed, which was so clear as not to require the labor used to prove it. In the case of Urquhart et als. vs. Clarke et als., 2 Rand., 549, decided June 11, 1824, it was held: Where a husband con- veys the property of his wife with warranty against the claims of himself and his heirs, his children, deriving title from their mother, will not be affected by the warranty. In the case of Wiseley vs. Findlay et als., 3 Rand., 361, de- cided March, 1825, it was held : Where a purchaser acquires the rights of certain legatees to their undivided portions of their father's estate, and the conveyances recite that the widow is en- titled to a life estate in the same property, whereas in truth she has only an estate for years, the conveyance will nevertheless be good for the whole amount of interest possessed by the legatees. In the case of Norman's Executor vs. Cunningham and Wife et als., 5 Grat., 63, decided April, 1848. Mrs. W. and Miss T., as tenants in common, hold the equitable title to a tract of land by warrant, survey, and possession. N. marries Miss T., and then buys Mrs. W.'s moiety of the land, and a patent issues for the whole tract to N. and his wife T. T. dies in 1805, leaving several children. After her death N. sells the land t<5 bonafide purchasers without notice, and conveys to them with general warranty. He marries a second time, and dies in 1838, leaving a widow, and children by both of his wives, and devises and be- queaths to them a large estate. After the death of N. the chil- dren of his first wife, T., file their bill against his executrix, claiming compensation from the estate of N. for the moiety of 218 CITATIONS TO THE CODE OF VIRGINIA. the tract which had belonged to their mother, T., and they charge that the sales and conveyances were to bona fide pur- chasers without notice. The executrix answers, not admitting the facts, and calling for proof. Held : It was not competent for N., by an act of his, to divest the equitable estate of his wife, T., and vest it in himself, either absolutely or contingently. N. having sold the land to bona fide purchasers without notice, equity will compensate the heirs of the wife, T., out of the estate ofN. SECTION 2420. In the case of Kennon vs. McRoberts and Wife, 1 Wash., 96,. decided at the fall term, 1792, it was held : A conveyance, un- limited as to duration, will, under the statute, convey the entire interest of the grantor or devisor. In the case of Davies vs. Miller et als., 1 Call, 127 (2d edition, 110) decided October 30, 1797, it was held : The word "estate" may be transposed from the preamble or other parts of a will, and annexed to the devise so as to fulfil the intention of the testator to give a fee. In this case that intention was further manifested by the use of the same word in the conclusion of the will. In the case of Watson vs. Powell, 3 Call, 306 (2d edition, 265), decided October 27, 1802, it was held: The word "estate," used in describing a devise, is a word of limitation, and conveys a fee-simple. (Words of limitation are expressly dispensed with by this statute. This refers to the common law.) In the case of Wyatt vs. Sadler's Heirs, 1 Munf., 537, decided April 27, 1810: A testator (who died in the year 1768) ex- pressed himself in the introductory part of his will thus : " And as to what worldly goods it hath pleased God to give me, I leave and bequeath as followeth : " In the next clause he wills and devises that his wife should enjoy all his lands during her life, and after her decease, gives and bequeaths to his two sons all his land, to be equally divided between them, his still, like- wise, to be between them, to distill for their own use, and after to his eldest son. A fee-simple estate in his share of the land passed to the younger son. In the case of Johnson et als. vs. Johnson's Widow and Heirs, 1 Muuf., 549, decided May 9, 1810, it was held : A fee-simple estate in lands might pass by a will (even before the act of 1785, C. 62,) without words of perpetuity, or any words equiva- lent : provided it appeared from the whole will taken together that such was the intention of the testator. When an illiterate testator uses the same words in disposing of his real estate as in disposing of his personal property, and in the same clause of the will, it is fair to infer that he intended to give them the same effect as to both kinds of property. CITATIONS TO THE CODE OF VIRGINIA. 219 In the case of Mooberry et als. vs. Marye, 2 Munf., 453, de- cided April 13, 1811, it was held: A devise of lands (before the first of January, 1787), without words of perpetuity, will not be enlarged to a fee-simple, on the ground of a general charge, arising from a direction that all the testator's debts be first paid, especially if other funds be appropriated for payment of the debts. In the case of Goodrich vs. Harding et als., 3 Rand., 280, de- cided March, 1825, it was held: The words "temporal goods" may be borrowed from the preamble of a will and coupled with a devising clause to enlarge a life estate into a fee-simple. In the case of deary vs. Taylor et als., 29 Grat., 448 and 454, decided November, 1877. By a deed made on the 28th of July, 1828, certain land in said deed described was granted to D. by his grandson R., his executors, administrators, and assigns, from and after the grantor's death, for and during his life only ; and after his death the said piece of land to go to such person or persons as shall at that time answer the description of heir or heirs at law of the said R. ; and such person or persons shall take the said land under that description as purchasers under and by virtue of the deed, and not by inheritance as heirs of the said R. Held : R. took but a life estate in the land, and the persons who at the time of R.'s death answered the description of his heirs at law, took as purchasers under the deed. By the act of 1785, dispensing with the word "heirs" in the grant of an estate in fee-simple, the grant to the remainderman is a fee; but that act does not, therefore, extend the rule in Shelley's case to the estate given to R., so as to enlarge it into a fee. In the case of Wine vs. Markwood et als., 31 Grat., 43 and 46, decided November, 1878. P. by his will gave to his four sons, George, Joseph, James, and Sampson, each a parcel of land; to George and Joseph in fee, and to the other two each devise, ex- cept as to the land devised the same, and is as follows : Fourth, I will and bequeath to my son Sampson the use and benefit of the home place, which I now occupy, containing about three hundred acres, during his natural life ; he then says, should my sons, George, Joseph, James, and Sampson, or any of them die without issue, I direct that what has been bequeathed to them shall be equally divided between the surviving brothers, James and Sampson, for their use and benefit during their nat- ural lives. Held : That Sampson took but a life estate in the land devised to him. The term in the limitation over, under the Virginia statutes, means issue living at the death of the first taker, or born within ten months thereafter. If Sampson has issue living at his death, or born within ten months thereafter, his issue will take the 220 CITATIONS TO THE CODE OF VIRGINIA. land devised to Sampson by implication. Sampson sells in fee- simple a part of the land devised to him. The purchaser must elect to give up the land or take such title as Sampson can give him to it. In the case of Markells vs. Markells, 32 Grat., 544 and 557, decided November, 1879. M. by his will in December, 1864, after directing the payment of his debts, gives to his wife all the property of every kind which belonged to her at the time of their marriage, and in addition thereto, he gives to her for her natural life the house in which he lives, with the yard and garden at- tached, and his servant girl A. and any increase that she may have ; and he gives her in absolute right one-half of his personal property. He gives to his nieces, E. and S., certain articles and Confederate bonds, and also A. at the death of his wife. The residuary clause of the will is as follows : All the rest and resi- due of my estate to be divided into two equal shares, and I give one-half to my sons, J. and A., and the other half to my nieces above named ; but if from any cause any alienage or confisca- tion of either of my said sons cannot take or hold the share hereby given to him, then in that event I give the share of such one to my two nieces above named. Held : The house and lot given to the wife for her life passes under the residuary clause of the will to the sons and nieces in equal shares, and this though there is some evidence of conversations between M. and his wife of an intention that his sons should have the house and lot. In the case of Little vs. Bowen et als., 76 Va., 724 and 728 : 1. Merger. When greater and less estate co-exists in one person, without any intermediate estate, the less is immedi- ately merged in the greater. SECTION 2421. In the case of Roy et als. vs. Garnett, 2 "Wash., 11 (2d edition, p. 9), decided at October term, 1794. A. devises certain lands to his son J. for life, remainder to his son M. and his heirs in trust, and for the use of the first and every other son of his said son J. who should survive him in tail male, equally to be divided, but if his said son J. should die without male issue, then he gives the said land to his son M. during his life with like re- mainders to his first and other sons who should survive him in tail male, equally to be divided ; but if he should die without heirs male, then in trust for the testator's three grandsons who should survive them in tail male, equally to be divided ; remain- der to M. in fee. He then desires that the widows of his sons and grandsons should be entitled to dower. Held : J. took an estate for life in possession with remainder in tail male, expec- tant upon the determination of the estate tail to his surviving sons. The estate for life did not incorporate the implicative branch CITATIONS TO THE CODE OF VIRGINIA. 221 of the devise, because the estates were of different natures, the former being a legal estate, and the latter remaining an equita- ble estate, not executed by the statute of uses for the want of male issue of James. See the case of Carter vs. Tyler et als., 1 Call, 165 (2d edition, 143), ante, Section 2419. In the case of Hill vs. Harrow, 3 Call, 342 (2d edition, 297), decided April 28, 1803, it was held: Devise of lands to T. H., to him and his heirs for ever, but in case T. H. dies without law- ful heir, remainder over to R. H. and his heirs forever creates an estate-tail in T. H., and consequently is barred by the act of Assembly docking entails. In the case of Tate vs. Tally, 3 Call, 354 (2d edition, 307), decided April 28, 1803, it was held : Devise of lands to A., and if the said A. should die not having any lawful heir of his body, the,n the land to go to B.; this is an estate tail. In the case of Crump et als. vs. Dudey et use., 3 Call, 507 (2d edition, 439, quoted in Code as 501), decided June 23, 1790. E. P. devised a slave to her daughter for life, and if she died be- fore testator's son, J. P., then to be given to my son J., after which she gave the remainder of her estate to be equally di- vided among her four children, T., J., M., and S. Held : It seems that the remainder in the slave passes. In the case of Smith vs. Chapman, 1 H. and M., 240, decided June 5, 1807. A testator made three devises (to his two sons and daughter severally) for the life of each devisee, and after his or her decease, to his or her child or children, if none to the other two devisees for life and then to be equally divided be- tween their children, and annexed a codicil, in which he says that if all his children should die without issue of their bodies, his wife living, the life estate should go to his wife during her natural life, and after her death, remainder to other persons. Held : The two sons and daughter take each an estate for life, and the remainders over are good, and may take effect, the con- tingencies not being too remote. In construing wills made since the Acts of Assembly of 1776 and 1785 on the subject of estates tail, it seems that the courts in this country -will not, by implication, turn an express estate for life with limitations over in remainder into a fee tail, as in lik-: cases in England, because, although it is done there to effectuate the general intention of the testator, such a construc- tion, under the operation of our statutes, would defeat that in- tention. In the case of l^ldr'nhjc vs. I'*ix/ier, 1 H. and 3Vf., 559, decided November 17, 1807. A testator, by will made in 1784, devised certain lands, with personal estate in the same clause, to his son and his heirs forever, " and if my son, J. F., should die without 222 CITATIONS TO THE CODE OF VIRGINIA. a lawful heir," remainder over to testator's grandsons. Held : The first devisee, J. R, took an estate-tail, which was converted into a fee-simple by the act for docking entails. In the case of Warner vs. Mason et ux., 5 Munf., 242, decided November 20, 1816, it was held : A testator gave to his son W. a tract of land " during his natural life, and then to his heirs lawfully begotten of his body, that is, born at the time of his death, or nine calendar months afterwards"; and for want of such heirs, then heir to his, J.'s two sons, Jacob and George, one of them to set a price on the whole of it, and give or receive half of that amount from the other. This was a good limitation by way of contingent remainder to Jacob and George. In the case of Bells vs. Gillepsie, 5 Randolph, 273, decided June, 1827, it was held: A will is made between the 1st day of January, 1787, and the 1st day of January, 1820, by which the testator gives to his sons several tracts of land, and if either of them should die without lawful issue, the part allotted to him to be equally divided among his surviving brothers ; and this is a fee-tail, and not an executory devise. In the case of Broaddus and Wife vs. Turner, 5 Band., 308, decided June, 1827, it was held : By a will dated in 1778, the testator gave a tract of land to his two sons, to be equally divided between them, to them and their heirs forever, but in case either of his sons should die without issue lawfully begotten, he desired that the survivor should have the whole. But if both his said sons should die without issue, he desired that his land should be sold by his executors, and the money arising there- from should be equally divided among his daughters then living, etc. This is an estate-tail in the sons, which was converted into a fee-simple by the act of 1776. In the case of Jiggetts and Wife vs. Davis, 1 Leigh, 368, de- cided June, 1829, it was held : Testator having realty of his own inheritance and personalty, part acquired in his own right and part in right of his wife, devises all his worldy estate in manner following : All the profits of my estate, after providing genteel support for my wife and daughter, to be applied to my debts ; and after debts paid, I wish my estate kept together for mutual benefit of my wife and daughter, until my daughter attain full age or marry. After which I wish my estate divided in the fol- lowing manner: I leave my wife one-half the land I live on, and one-half of my estate during her life. If my wife die without any more issue, the whole of my estate to revert to my wife, and if they both die without issue, then that part of my estate which came by my wife to revert to her brothers and sisters that may then be living, and the balance of my estate to revert to my brother J., or to his heirs, if any; if none, to be equally divided between my two half-brothers. If my wife marry and again CITATIONS TO THE CODE OF VIRGINIA. 223 have issue, I wish her to have the disposal of the whole pro- perty that came by her. Held : 1. Took by the devise, the moiety of the land that was not devised to the wife. 2. The daughter took an implied estate-tail in the moiety of the land devised to her; and the wife took an implied estate- tail in the moiety devised to her expressly for life ; each of which estates was converted into a fee-simple, by force of the statute abolishing estates-tail ; consequently : 3. The executory limitations were contingent reminders, and barred by the statute. In the case of Seekright on demise of Bramble vs. Billups, 4 Leigh, 90, decided January, 1833. Testator devises the residue of his real estate to his daughter, L. B., and her husband, J. B., during the life of the longest liver of them, and then to their offspring, if any, by his daughter, L. B., as they shall think best to give it ; and, in default of such offspring, to M. B.'s and N. A.'s offspring, if they have any, and as they think best to dis- pose to their offspring ; and if they have none, then to the poor of E. R. parish. At the date of the will, the testator's daughter, L. B., had offspring by her husband, J. B. The daughter died before the testator, her offspring survived him and died in in- fancy ; living, their father, J. B. Held : J. B., the husband, took by the will an estate-tail, which the statute for abolishing en- tails converted into a fee-simple, and barred the contingent, re- mainder limited on the estate-tail ; dissent! ente, Tucker, P. In the case of Doe on demise of See vs. Craigen, 8 Leigh, 449, decided August, 1836. Testator devises to his daughter, P. C., the upper half of his plantation, but should she die without heirs of her own body, then the said half of the plantation to be divided between the son-in-law and son of the testator. Held : P. C. took by the will an estate-tail in the land devised to her, which the statute for abolishing entails converted into a fee- simple, and barred the contingent remainder limited on the estate- tail. In the case of Deane vs. Hansford, 9 Leigh, 253, decided February, 1838. Testator, by his will, lends slaves and their in- crease to his grandson, T. D., and the heirs of his body, and if he shall die without a lawful heir, then he bequeaths them to the children of his daughter, E. S. Held : This is an executory lim- itation after an indefinite failure of issue of the grandson, and therefore void, and the slaves rest in the grandson in absolute property. In the case of Brooke vs. Croxton, 2 Grat., 50G, decided Jan- uary, 1846, it w'as held : A testator, after directing that all his estate shall be equally distributed among his seven children, adds: "It is my will and desire that if any of my children 224 CITATIONS TO THE CODE OF VIRGINIA. should die before they attain to legal age, or without a lawful heir, in either case that all such property as they may receive in the division of my property, return to my surviving children or their lawful heirs." Held : The limitation over takes place upon the happening of either contingency. Upon the death of one of the children under age, his share of the estate vested absolutely in the survivors, and upon the death of another child under age, or without children, the property which such child received from the share of the first did not pass under the limitation over to the surviving children. In the case of Pry or vs. Duncan et als., 6 Grat., 27, decided April, 1849. A testator devises as follows : I lend to my daugh- ter, Lucy, my negro woman Sidney and her child Sarah, and ne- gro boy named John, to her during her natural life, and to her heirs lawfully begotten of her body. And should my said daugh- ter, or her husband, dispose of, convey out of the way, conceal, or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease, and direct my executors to take them in posses- sion ; and in such case after her decease, they and their in- crease to be divided among her children if living ; otherwise to be divided among my children, J., E., P., and C., and their heirs. Held : The daughter Lucy had but a life estate in the slaves, and her children took in remainder as purchasers under the will. In the case of Lucas and Wife vs. D-uffield, 6 Grat., 456, de- cided October, 1849, it was held : Every part of a will may be looked to to ascertain the intention of a testator in the particular devise, and thus to limit the phrase, dying without issue, to a dying without issue living at the death of the devisee. In the case of Nowlin and Wife vs. Winfree, 8 Grat., 346, de- cided January, 1852, it was held : Prior to 1819, a testator de- vises to his three daughters by name his estate " both real and personal," to them and their heirs lawfully begotten of their bodies. "And in case either of my daughters should die with- out heir or heirs, as above mentioned, the surviving ones to en- joy their equal part." This is an estate-tail, which by the stat- ute is converted into a fee ; and the limitation over is after an indefinite failure of issue, and void. In the case of Callis et als. vs. Kemp et als., 11 Grat., 78, decided April, 1854: In 1799 testator lends, to his son, B., a tract of land during his natural life, and if he should die with- out lawful issue, testator gives the land to his grandson, H. B., to him and his heirs forever. But should my son B. leave law- ful issue, my will and desire is that he will dispose of said land to such of his issue as he may think fit. Held : That B. took an estate-tail in the land, which by the statute was converted into a fee. CITATIONS TO THE CODE OF VIRGINIA. 225 In the case of Moore et als. vs. Brooks, 12 Grat., 135, decided February 28, 1855. Testator gives his estate to his wife during her life ; and at her death it is to be equally divided amongst all of his children, and the shares of his two daughters, M. and B., to be held by them during their natural lives and no longer, and then equally divided between their heirs lawfully begotten ; and at his wife's death, he directs the lands to be sold, and the pro- ceeds divided as aforesaid. Held : The words " lawfully to be begotten," are words of limitation, and M. and B. took the whole interest in their shares of the estate. In the case of Nixon vs. -Rose, 12 Grat., 425, decided May 21, 1855. Testatrix bequeaths slaves to A., B., and C., jointly, upon the following trust : To be held by them in trust only for the benefit of her daughter, E., a married woman, or her heirs. And as it is my wish to guard in the most ample manner against the imprudent sale or other disposition of the aforesaid property during the natural life of E., it is hereby wholly and solely con- fided to the discretion of the aforesaid trustees, A., B., and C., in what manner the said E. shall receive and enjoy the profits arising from the liens or other disposition of the slaves afore- said; and in the event of the death of E., without heirs of her body, then all the slaves and their increase to B. Held: E. took an absolute interest in the slaves, and the bequest over is void ; that it is a bequest to the separate use of E. In the case of Tinsley vs. Jones, 13 Grat., 289, decided May 8, 1856. B. died in 1807, and by his will devised a tract of land to each of his sons, J. and F. He then says : " It is my will if my said son J. die without issue, that the property heretofore given him shall go to his brother F., who in that case will lose the land heretofore given him ; it being my will and desire then, and in that case, and upon the happening of the event of my son J.'s death, that the land near W., which should otherwise be F.'s share, be sold, and the money equally divided between my surviving children." J. dies without issue. Held: J. took an estate-tail in the land devised to him, which was converted by the statute into a fee-simple; and therefore the limitation over to F. is void. F. not being entitled to take the estate de- vised to J. under the limitation over to him, the bequest of the proceeds of land devised to him, to the surviving children of the testator upon F.'s taking the land devised to J., is void, and F. is entitled to retain it. In the case of JVorris vs. Johnston, 17 Grat., 8, decided May 3, 1866. Testator had twelve children ; six unmarried daugh- ters. He directed his estate to be divided into twelve parts, and gave a part to each child. He then says: "It is my will and desire that if any of my children die without heirs, for their part to be equally divided amongst all of my children then liv- 15 226 CITATIONS TO THE CODE OF VIRGINIA. ing. Held : This is a good executory bequest in favor of the children surviving, one dying without issue. In the case of HalVs Executor vs. Smith et als., 25 Grat., 70, decided April 16, 1874, it was held : W. died in 1831. By his will he gave the residue of his estate, to be equally divided among his children, naming them, to them and their assigns for- ever, " except my daughter, Mary C. ; and her portion, after deducting forty-nine dollars, I lend unto her during her life, and after her death I give the same to the lawful issue of her body, to them and their heirs and assigns forever." Mary C. took an absolute interest in the slaves received by her under this clause of the will. In the case of Stone's Executor vs. Nicholson et als., 27 Grat., 1, decided November, 1876. Testator, by his will made in Jan- uary, 1807, lends to his daughter, Sallie, who is one of eleven, one female slave named Phoebe, to be possessed by her during her natural life or widowhood of her present or future husband, and at her death, or after marriage of her husband, then to be equally divided among her children ; and if she has none, then to be equally divided among all the testator's children. Testa- tor died in 1810, Sallie being then about fourteen years old. She lived until 1857, unmarried, and without children, the de- scendants of Phoebe then numbering twenty-five. Held : The executory devise over to testator's children is too remote and void. If the executory devise is not void, then it includes all the testator's children alive at his death, and Sallie is one of them. An executory devise over to testator's children will always be held to refer to children living at his death, unless there is a clear indication in the will that some other period is in- tended. In the case of Taylor vs. Cleary et als., 29 Grat., 448, decided November, 1877. By a deed made on the 28th of July, 1828, certain land in said deed described was granted to D. bv his f / grandson, E., his executors, administrators, and assigns from and after the grantor's death, for and during his life only ; and after his death the said piece of land to go to such person or persons as shall at that time answer the description of the heir or heirs at law of the said E. ; and such person or persons shall take the said land under that description as purchasers under and by virtue of the deed, and not by inheritance as heirs of the said E. Held : E. took but a life estate in the land ; and the persons who, at the time of E.'s death, answered the de- scription of his heirs at law took as purchasers under the deed. By the act of 1785 dispensing with the word " heirs " in the grant of an estate in fee-simple, the grant to the remainderman is a fee ; but that act does not, therefore, extend the rule in CITATIONS TO THE CODE OF VIRGINIA. 227 Shelley s case to the estate given to R. so as to enlarge it into a fee. In the case of Wine vs. Markwood et als., 31 Grat., 43, de- cided November, 1878. P., by his will, gave to his four sons, George, Joseph, James, and Sampson, each a parcel of land ; to George and Joseph in fee, and to the other two each devise, except as to the land devised the same, and is as follows: fourth, I will and bequeath to my son Sampson the use and benefit of the home-place which I now occupy, containing about three hundred acres, during his natural life; he then says: should my sons George, Joseph, James, and Sampson, or either of them die without issue, I direct that what has been be- queathed to them shall be equally divided between the surviving brothers, James and Sampson, for their use and benefit during their natural lives. Held : That Sampson took but a life estate in the land devised to him. The term in the limitation over, under the Virginia statutes, means issue living at the death of the first taker, or born within ten months thereafter. If Sampson has issue living at his death, or born within ten months thereafter, his issue will take the land devised to Sampson by implication. Sampson sells in fee-simple a part of the land devised to him. The purchaser must elect to give up the land, or take such title as Sampson can give him to it. In the case of Camp vs. Cleary, 76 Va., 141. Conditional Limitations. By deed dated July 28, 1821, D. granted, to take effect after his death, land whereon he had erected a mausoleum to grandson R. for life, and after his death to such a person as shall at that time answer the description of his heir-at law, such person to take as purchaser under the deed, and not by inheritance as heir of R., on condition that R. shall never sell, give, lease, mortgage, or in any way alien the land, or any part thereof, or even attempt so to do to any person whomsoever, then this deed should be void, and the land, to- gether with two other lots conveyed to him in fee, shall re- vert to and vest in his sister E. and her heirs forever. This con- dition R. broke, and .the heirs of E. brought ejectment to re- cover it from those claiming under alienation by R. Held : 1. This is a valid conditional limitation, which is defined to be a conditional followed by a limitation over to a third per- son, in case the condition be not fulfilled, or there be a breach of it. 2. There having been a breach of the condition on which R. held the land, immediately the limitation over to C. took effect, and E.'s heirs have a right to recover it from R.'s alienees. 3. There is nothing in the law that prevents one man from 228 CITATIONS TO THE CODE OF VIBGINIA. limiting an estate to another until lie alien it, or attempt to alien it, or until he become bankrupt or insolvent, and as soon as he alien or attempt to alien, or become a bankrupt or insol- vent, that his estate shall cease and go to another. 4. Power of alienation may be restricted to a limited extent as to designated persons; but absolute restraint is inadmissible, except as to the separate estates of married woman. And so as to liability for debts (statutory exemptions aside). 5. The limitation over was not void, for that the contingency on which it was to take effect is too remote, under the rule against perpetuities, which requires that such limitations shall take effect within a life, or lives, in being, and twenty-one years and ten months thereafter. The condition of the deed is, that the life-tenant shall not alien or attempt to alien, etc., and if he does, the whole property vests at once in E. in fee-simple. 6. The restrictive provisions of the deed are within the limits of the law, and are confined to the life-tenant R. In the case of Hood vs. ffaden, 82 Va., 588, decided Decem- ber 2, 1886, it was held : The statute essaying to abolish this- rule, applies only when the grantor or testator is competent to r and does vest in the heir a remainder in fee-simple after an estate for the ancestor's life. This is the case cited as 11 Va. Law Journal, 304. In the case of Smith et als. vs. Fox (Adm'r), 82 Va., 763, de- cided February 10, 1887. Testator devises land to his daughter M. without limitation, She had been married thirty years, but had no children. By a later clause he directs that all property willed to his daughters should be held in trust by A. for the separate use of them and their children, etc. , and that the trus- tee, when notified by either of them of her desire to sell, should do so, and re-invest in the same way. Held : 1. "Children" must be construed as equivalent to "issue" in order to effectuate the manifest intention of the testator, and M. takes a fee. 2. Jus disponendi is incident to such an estate as M. held, and she could encumber it for her husband's debts. In the case of Stokes\&. Van Wyck, 83 Va., 724, decided Septem- ber 23, 1877. Where testator, dying in 1834, limited to his daughter, Mrs. "W., an estate for life, with remainder to her issue in fee, and in default of issue, with limitation over to his own heirs. Held : Under the law then in force (1 Eev. Code 1879, page 329, Section 25), Mrs. W. took an estate-tail that by the statute was converted into a fee-simple, but the fee was de- terminable by her death without issue then living, with limita- tion over to the person who was testator's heir at the time of his death, the rule of law applying which favors the vesting of estates as soon as possible. . CITATIONS TO THE CODE or VIRGINIA. 229 In the case of Hawthorne vs. Beckwith, 89 Va., 786, decided March 30, 1893, it was held : Where a court below construed a will as giving a life estate (the said rule not applying to execu- tory limitations), and the construction, on appeal, was not drawn in question, but was approved by the appellate court, the question as to what estate passed by the will is res judicata, and the fact that the remaindermen were not parties to that suit is immaterial. This is on the ground of representation. In the case of Riddick vs. Cohoon, 4 Band, 547, decided No- vember, 1826, it was held : A limitation over an indefinite fail- ure of issue in the first taker is too remote and void. Where an estate is given by will to A. and his heirs, and if he should die without issue living at his death, then so much of the estate as may remain undisposed of by A. to B. ; the limitation over is void for uncertainty, and because the power to dispose of the property gives A. an absolute estate. In the case of Madden vs. Madden 's Executor, 2 Leigh, 377, decided November, 1830. Testator bequeathesthat "all his move- able property after the death of his wife shall be sold, and the proceeds divided among his five daughters ; after all his debts paid, all his moveable property should be at the disposal of his wife ; on her decease the same to be disposed as above men- tioned." Held : That the wife took only a life estate in such of the moveables as were capable of being used and returned in kind ; and, therefore, the wife's gift of a slave to one of her daughters passed only the wife's life estate therein to the donee. In the case of JSurweWs Executors vs. Anderson (Administrator, etc.), 3 Leigh, 348, decided December, 1831. Testator after direct- ing the sale of certain property to raise a fund to pay debts, and after giving all the residue of his estate to his wife for life, directs that at her death all his estate, real and personal, shall be turned into money, to be distributed as follows : First, He desires that his wife, by will or otherwise, may have the abso- lute disposal of five hundred pounds, then he bequeathes to his nephew, W. P., two hundred pounds, and after deducting these two sums, he bequeathes two-thirds of the balance to his niece, A. S., and the other one-third to his sister, A. C., and he directs that if the funds provided for debt prove inadequate, the sum to make up the deficiency shall be deducted in equal propor- tions from the sums bequeathed to his wife, his niece, nephew, and sister. Held : The wife took by will the absolute property in the five hundred pounds bequeathed to her, and not a mere power to dispose of that sum. In the case of Brown vs. George, 6 Grat., 424, decided Octo- ber, 1849. Testatrix bequeathes property to her married daughter for life, for her separate use ; the said property, or so much thereof as may be in existence at her death, to go to her children 230 CITATIONS TO THE CODE or VIRGINIA. or their descendants if there be any. And more fully to pre- serve said property to the separate use of her daughter for her life, and to her children after her death, testatrix appoints a trustee, to whom the property is to be delivered by her executor. And she further directs that all receipts given to the trustee by the daughter, for payments given to her either of principal or interest of the property, shall be to him a full discharge. Held : That the daughter is entitled to use both principal and interest of the property at her discretion. In the case of May vs. Joynes et als., 20 Grat., 692, decided March, 1871. Testator says, I give to my beloved and excellent wife, subject to the provisions hereafter declared, my whole estate, real and personal, and especially all real estate which I may hereafter acquire, to have during her life, but with full power to make sale of any part of the said estate, and to convey absolute conveyance to the purchasers ; and use the purchase- money for investment or any purpose that she pleases, with only this restriction, that whatever remains at her death shall, after paying any debts that she may owe, or any legacies that she may leave, be divided as follows : there are then limitations to his children and grandchildren. Held : The wife takes a fee- simple in the real, and an absolute property in the personal estate ; and the limitation over whatever remains at her death, is inconsistent with and repugnant to such fee-simple, and abso- lute property in said real and personal estate, and fails for un- certainty. In the case of Sprinkle vs. Hayworth, 26 Grat., 384, decided July, 8, 1875. S. and his wife P. had no children, and it was- understood and agreed between them that the survivor should have all his property during the life of the survivor, and at his or her death it should be equally divided between his and her heirs and next of kin. S. made his will, by which he gave all his property, real and personal, to his wife P., absolutely. He died in her lifetime, and she was so shocked at his death that she was immediately paralyzed, and remained unconscious until she died the day after he did. She died without having made a will. Held : A court of equity will not enforce the agreement at the suit of the heirs and next of kin of S. against the heirs and next of kin of P. In the absence of fraud on the part of a legatee, a court of equity will not enforce a parol charge upon his legacy. If it appeared from the evidence in the case that S. intended P. should have entire control of the whole property during her life, and use as much of it as she chose to use, and that only what remained of it at her death was to be divided between his and her heirs and next of kin, the trust would not be enforced even if it had been in writing. CITATIONS TO THE CODE OF VIRGINIA. 231 In the case of the Missionary Society of the J/i E. Church vs. Calverfs Administrator et als., 32 Grat., 357, decided Novem- ber, 1879. C., owning several tracts of land and personal estate, by his will says : " 3. I give to my wife, Theresa, during her natural life or widowhood, all my estate, real and personal, except as hereinafter excepted. But if she should marry again, she is to have the same portion of my estate as if I died intes- tate." He directs his executors to sell his lands and personal property, and then says : " The home place is for my wife, to live on as long as she may remain my widow, and then it is to be sold." He then says : " I wish the proceeds of the sale of my real and personal estate, and the debts due me after paying my debts, to be put at interest by my executor, and my wife to receive the interest. But so long as she remains my widow, she is to receive from my executors, or from my estate, suclj part of it as she may choose, and to appropriate it as she may choose to be just and right." And he then directs that all such part of his estate as she does not thus appropriate, and all the rest of his estate, shall be given and paid over to the Missionary So- ciety of the Methodist Episcopal Church, incorporated by an act of the legislature of the State of New York, passed April 9, 1839. All so paid to the said Missionary Society shall be paid to the Indian Mission by that society. Held : That under the provision that his wife, Theresa, is to be at liberty to receive from his executors such part of it as she may choose, and appropriate it as she may think just and right, all the estate directed to be sold and invested by his executors passed absolutely to his wife. The home place, which was to be sold after the death or marriage of his wife, did not pass ab- solutely to the wife, but the proceeds of the sale thereof passed to the said Missionary Society. The testator, directing the home place to be sold by his executors, the bequest to the Mis- sionary Society, though a foreign corporation, is valid, they taking the proceeds of the sale. The direction that the Mis- sionary Society shall expend it on the Indian Mission does not avoid the bequest for uncertainty. In the case of Carr vs. Ejfinger et als., 78 Va., 197, decided December 13, 1883. Testator gave annuity of one hundred dol- lars to his mother, "to be paid out of the money arising from the bonds due me," and then provided as follows: "What money or bonds I have in my possession, or judgments due me, I leave unto my beloved wife to be collected, should she think it best, and vested in Confederate bonds, or loaned out at inter- est. Out of the interest thus arising, my wife is to pay to my mother the one hundred dollars annually, so long as my mother shall live, and the remainder of the interest thus arising is to be used by my wife for her own benefit. I also leave to my wife 232 CITATIONS TO THE CODE OF VIRGINIA. five shares of stock in the O. & A. R. K., which she is to sell at such time as she may think proper, and invest the proceeds in Confederate bonds, or loan it out at interest for her benefit. At the death of my wife, what bonds she may not have used, I give to my two sisters, C. T. and S. E., and the children of their bodies. Held : The wife takes an absolute estate in the pro- perty, subject to the charge of the annuity to the mother. In the case of Cole vs. Cole et als., 79 Va., 251, decided July 31, 1884, it was held : It is a well-settled rule of laAv, in the con- struction of wills, that an absolute power of disposal in the first taker renders a subsequent limitation repugnant and void. In the case of Blair vs. Muse, 83 Va., 238, decided April 21, 1887, it was held : Unlimited power of alienation is an essential incident of a fee-simple estate. A deed conveys land to four grantees in fee-simple. Subsequent clause, giving one of them power to dispose of the whole at her pleasure, is invalid, the rule being, that when two clauses in a deed are repugnant, the first shall prevail. This is the case cited from 11 Virginia Law Journal, 566. SECTIONS 2422 AND 2423. See the references supra, Section 2421. SECTION 2426. In the case of Ware vs. Gary, 2 Call, 263 (2d edition, 222), decided April 21, 1800, it was held: A deed in which an estate for life is given the husband, made by husband and wife, of the wife's lands to a trustee, will pass the estate, although no con- sideration be expressed therein, particularly if the verdict finds that it was for the purpose of settling it on the wife's family. In the case of Rowletts vs. Daniel, 4 Muni., 473, decided Oc- tober 19, 1815, it was held: A legally certified copy of an ancient deed, recorded on the grantor's acknowledgment, and accompanied with possession of the land by the grantee, ought to be received as evidence, without any proof that the original is lost or destroyed. A deed being defective as a feoffment, for want of proof of livery of seisin, may operate as a covenant to stand seised to use, and as such to pass the title to the grantee, for the use is executed into possession by the force of the statute of uses. A voluntary deed duly recorded, operating as a covenant to stand seised to the use of the grantee, cannot be limited in its effect by a subsequent deed from the grantor to a third per- son. After executing a deed operating by way of covenant to stand seised to use, the grantor cannot, by a decree to a third person, CITATIONS TO THE CODE OF VIRGINIA. 233 convert his own possession into a possession adverse to that of the grantee. In the case of Bass and Wife et als. vs. Scott et als., 2 Leigh, 356, decided October, 1830. Testator devises and bequeathes real and personal estate to trustees, in trust for the equal use and benefit of testator's four sisters (naming them), and their heirs forever, to be managed as the trustees should think most conducive to the interest of each of the parties ; two of the sis- ters being femes covert. Held : 1. That each of the sisters took a fee-simple as to the real, and the absolute property as to the personal, subject in her share of the trust estate. 2. That the legal title remains in the trustees, in order that they may manage the part of the subject intended for the use and benefit of each sister, in such manner as the trustees may think most conducive to the interests of each respectively. It seems that the statute of uses of Virginia does not apply to the uses created by devise, and transfers such uses into pos- session of the cestid que use. In the case of Jones vs. Tatum, 19 Grat., 720, decided May 23, 1870. T. conveyed to H. B. and J. B. ninety acres of land in trust for his wife for life, and at her death to their children, with a power of appointment by will to the wife, which she did not make. After the death of T. and his wife, four of their children, being of age, file their bill against the other two, who were infants of the age of seventeen and nineteen years, asking for a sale of the land. There was a decree directing the land to be sold, and it was sold partly on a credit, and the sale was confirmed. The purchaser having failed to make the last pay- ment, a rule was made on him to show cause why the land should not be sold to pay the balance of the purchase-money. He appeared and filed an affidavit objecting to the title that the trustees, H. B. and J. B., had not been parties to the suit, and that there was but eighty-nine acres of land. J. B., de- scribing himself as surviving trustee, executed a release deed, which was filed in the suit. A sale was decreed, and the pur- chaser appealed. QucKre : Whether under the Virginia statute of uses, the trust having ended, the legal title was in the trustees? But if it was, and they should have been parties, the sale having been made and confirmed, and the purchaser in quiet possession, the deed of release of the surviving trustee cured the defect. In the case of Redd and Wife vs. Dyer et als., 83 Va., 331, de- cided May, 1887, it was held : The maxim caveat emptor strictly applies to judicial sales. Purchaser's objections must, ordi- larily, be made before the sale is confirmed. But the pur- 234 CITATIONS TO THE CODE OF VIRGINIA. chaser is entitled to relief on the ground of after-discovered mutual mistake of material facts, or of fraud, which must be clearly proved. SECTION 2428. In the case of Claytor vs. Anthony, 6 Hand., 285 (on p. 307-'8) r decided March, 1828, it was held : This section embraces all de- scriptions of property when the cestui qui trust has an imme- diate equitable right to the possession and enjoyment of the property. In the case of Coutts vs. Walker, 2 Leigh, 268, decided June, 1830, it was held : A judgment creditor has a lien in equity on the equitable estate of the debtor in like manner as he has a^ lien at law on his legal estate. In the case of Findlay vs. Toncray, 2 Rob., 374, decided Au- gust, 1843. Under a deed of trust conveying land, with gene- ral warranty to secure debts, the land is sold for more than enough to pay the debts. The purchaser instituted a proceed- ing against the grantor for unlawful detainer, and obtains a judgment against him, and then the purchaser insists, first, that he was not bound to pay his purchase-money (and therefore cannot be charged with interest on the same) until he obtained possession ; and second, that he may retain part of the surplus of the purchase-money to pay the costs recovered by the judg- ment on his complaint for unlawful detainer. The claims of the purchaser are objected to by a creditor of the grantor, who obtained a decree against him after the deed of trust, and sued out an elegit within a year. Held : The claims so made by the purchaser cannot be allowed. The purchaser further claims to apply other parts of the sur- plus to extinguish a dower right in the property existing at the time of the warranty, and to pay taxes assessed on the property before the sale was made. Held : These claims also must be disallowed. In the case of Armstrong, Cator & Co. vs. Lachman, 84 Ya., 726, decided April 17, 1888, it was held : While no rule can be laid down as to the extent of evidence required to set aside a conveyance as fraudulent, it must satisfy the chancellor's con- science, and it may be, and generally must be circumstantial. SECTION 2429. In the case of Rowton vs. Rowton, 1 H. & M., 92, decided November 5, 1806, the court said : Under the act of 1785, giv- ing a widow dower in a trust estate, it seems that she is entitled to dower in an equitable estate in fee-simple contracted by ver- bal agreement, to be conveyed to her late husband, provided the contract be proved to be such as would authorize a court of equity to decree the legal estate. CITATIONS TO THE CODE OF VIRGINIA. 235 In the case of Claiborne vs. Henderson, 3 H. & M., 322, de- cided March, 1809, it was held : Before our act of Assembly (of 1785, which took effect the first day of January, 1787) giving a widow dower of a trust estate, she was not dowable of an equitable estate. In the case of Ileih vs. Cocke et ux., 1 Band, 344, decided March, 1823, it was held : A widow is not entitled to dower of real estate which had been mortgaged by her husband before the marriage. The only claim of the widow in such a case is to dower in the equity of redemption. The same principle applies as well to mortgages after marriage, where the wife unites in the mortgage, and has been privily examined, as to mortgages be- fore marriage. In the case of Wheatley 's Heirs vs. Calhoun, 12 Leigh, 264, decided April, 1841. By articles between C. and W., they agree to make a joint purchase of land, and to divide the same be- tween them by a designated line, W, to pay the whole purchase- money of the whole land to the vendor thereof, and C. to pay "W. the purchase-money for his part at a certain appointed time ; within the time C. pays to W. the greater part, but not the whole of the purchase-money for his part of the land ; and then, also, within the time the contract between C. and W. is rescinded, W. agreeing to take back C.'s part of the land, upon condition that C. have credit on another account for the money he has paid ; and C. dies, never having been let into possession of the land so by him agreed to be purchased and paid for. Held : That as the contract between C. and W. was wholly executory, and was rescinded before C. had completed payment of the purchase-money, and he had never had legal or equitable pos- session, he had no such equitable estate as that his widow was dowable thereof. In the case of Deering c Co. vs. Kerf oofs Executor et als., 89 Va., 491, decided December 15, 1892, it was held : Land bought with partnership funds, for partnership purposes, is so far con- sidered as personality, that widow of deceased partner is not entitled to dower therein, but only to her distributive share thereof. In the case of Ficklin's Administrator vs. Rixey, 89 Va., 832, decided April 6, 1893, it was held: Wife's right of dower, whether inchoate or consummate, is an existing lien, and a cov- enant against encumbrances is broken by its existence. This lien is inferior to all which attached prior to the marriage, but superior to those acquired after marriage without her consent. Such settlements on a wife for value are valid in equity, though void at common law, and relinquished of her right of dower is a good consideration to the extent of its value as against the husband's creditors. 236 CITATIONS TO THE CODE OF VIRGINIA. In the case here, as the value of the dower relinquished ex- ceeded that of the land settled on the wife, she and her heirs at law, after her death, were entitled to the land free from all liability for her husband's debts. SECTION 2430. In the case of Deloney vs. Hutcheson, 2 Hand., 183, decided December, 1823, it was held : Where parties purchase an estate jointly for the purposes of their trade, it is considered in equity as an estate in common in England ; and in Virginia, where the jus accrescendi is abolished, it is so considered in law as well as equity. Therefore, a surviving partner can have no other claim against real estate held in partnership than any other cred- itor has. In the case of Pierce 's Administrator vs. Trigg's Heirs, 10 Leigh, 406 (2d edition, 423), decided July, 1839, it was held : Where land is purchased by two partners for partnership pur- poses with partnership funds, and is used as part of the stock in trade, a court of equity deems such lands partnership's pro- perty ; and though, if the conveyance has been made to both partners, their will, upon the death of one, passes to his heirs a legal title, yet the whole beneficial interest devolves upon the survivor, and he may sue the heirs, compel a sale, and dispose of the proceeds as he would dispose of the personal estate of the firm. In the case of Wheatley's Heirs vs. Calhoun, 12 Leigh, 264, decided April, 1841. By articles between C. and W., they agree to join in the purchase of mills and two hundred acres of land adjoining, and that in case the purchase shall be effected, C. shall keep the mills at a salary to be paid out of the joint concern, and that "the improvements, privileges, expenses, and profits shall in all respects be equal to both parties and their legal representatives." They make the purchase accordingly ; the mills, etc., are conveyed to them jointly ; they give their joint bonds for the purchase-money, payable in four annual in- stalments, and a joint mortgage of the property to secure pay- ment of the same, and then commence and carry on the busi- ness of millers in partnership for several years. The first in- stalment is paid out of the social funds, and the residue of the purchase-money out of money borrowed on the credit of the partnership, but repaid to the lenders by W. alone after C.'s death. Held : Though C. and W. were partners in the milling business carried on by them at the mills so purchased, yet the mills, etc., were not social property or stock, but real estate, pur- chased by C. and W. individually, of which one was a tenant in common with the other of an undivided moiety, and therefore C.'s widow is dowable of his moiety. CITATIONS TO THE CODE OF VIRGINIA. 237 In the case of Thornton vs. Thornton, 3 Rand., 179, decided February, 1825, it was held : An estate given to husband and wife is not joint tenancy, and therefore not affected by our act of Assembly concerning joint rights and obligations. In such an estate each party takes the entirety, and the survivor takes the whole, not by survivorship, but by virtue of the original conveyance. In the case of Normaris Executrix vs. Cunningham and Wife et als., 5 Grat., 63, decided April, 1848. Mrs. W. and Miss T., as tenants in common, hold the equitable title to a tract of land by wan-ant, survey and possession. N. marries Miss T., and then buys Mrs. W.'s moiety of the land, and a patent issues for the whole tract to N. and his wife, T. T. dies in 1805, leaving several children. After her death N. sells the land to bona fide purchasers without notice, and conveys to them with general warranty. He marries a second time, and dies in 1838, leaving a widow and children by both of his wives, and devises and be- queathes to them a large estate. After the death of N., the chil- dren of his first wife, T., file their bill against his executrix, claiming compensation from the estate of N. for the moiety of the tract which had belonged to their mother, T. ; and they charge that the sales and conveyances were to bona fide pur- chasers without notice. The executrix answers, not admitting the facts, and calling for proof. Held : Under the patent, N. and his wife, T., each took the entirety of the tract of land, with the chance of excluding, by survivorship, the heirs of the other. Though the patent vested the legal estate of the entire tract in N. and his wife, which, upon her death, survived to him alone, yet her equitable estate in an undivided moiety was not thereby defeated, but descended to her heirs at her death, subject to N.'s life estate as tenant by. the curtesy. SECTION 2432. In the case of Troth vs. Robertson, 78 Va., 46, decided No- vember 22, 1883, it was held : This section should be construed as remedial and liberal, and therein the word "estate" is held to be used in its most extended sense, and as meaning the pro- perty or thing given by the deed or will, and not merely the in- terest therein, so as to promote the policy of the legislature, which was to remove those fetters upon alienation which con- tingent limitation, more or less, tend to fasten. Under that, statute circuit courts have jurisdiction to sell and make good title to real estate devised to one for life, and remainder to his children or descendants, if any, at his death, and if none, then remainder to the children or descendants of another, if any such be living at the former's death. 238 CITATIONS TO THE CODE OF VIRGINIA. SECTION 2434. In the case of Pierce 's Administrator, vs Trigg, 10 Leigh, 423, it was held : The decree against an infant, though it gives him a day in court to answer, is of the nature of a final decree, and is carried into execution as such ; nor is it reversible but for error, or fraud, or collusion. CHAPTER CVIII. SECTION 2440. In the case of Mickie vs. Lawrence, Executor of Wood, 5 Ran- dolph, 571, decided August, 1827, it was held : No set form of words is necessary to constitute a lease ; and a contract between two persons, that one should have, during the life of the other, land, negroes, etc., he paying therefor a stipulated annual sum, is not a sale, but a rent. Such a contract does not lose its character of a rent by slaves and other personal property being included in the contract. Interest cannot be recovered as of course in an action for the recovery of rent, but may be given under circumstances to be judged by the jury. SECTION 2441. In the case of Clark vs. Moore (Trustee, etc.], 76 Va., 262 and 265. 2. Case here : Father conveyed property in trust to secure two debts to son and to trustee of his wife, by deed in statutory form, giving no priority. One of the debts secured to son arose out of a judgment against father, prior to deed, in favor of a third person, which son had paid, but no assignment thereof had been made. It was only referred to in the deed as an execution against father, which son had paid. Upon ques- tioning whether this was entitled to priority, held : 1. It is not. All three of the debts must be paid pari passu. 2. But even if this judgment had been the property of son by bona jid 76 Va., 546, 563 and 564. Idem Abatement. In the absence of an express covenant to pay rent, a tenant is not liable for the same where the premises are destroyed, whatever the rule may be in the case of such ex- press covenant. The Code refers to the report of the revisors of the Code of 1849. That report cites the case of Overton vs. oss, 3 Call,. 309, above cited, and other previous foreign cases, as a reason for passing an act substantially the same as this one. In the case of the Postal Telegraph- Cable Company vs. Nor- folk and Western Railroad Company, 87 Va., 349, decided Jan- uary 22, 1891, it was held : Judgment obtained by telegraph company appointing commissioners to fix a just compensation for the land of a railroad company, proposed to be taken for the purpose of the former in condemnation proceedings, is not final, and is appealable SECTION 2456. In the case of N. Clenahan vs. Gwynn, 3 Munf., 556, de- cided November 16, 1811, it was held: A person assigning a- lease for value received, but without any special agreement to be responsible for the title, is not bound to restore the purchase- money, upon the eviction of the assignee, in consequence of a defect in the lessor's title, especially when the lessor has not CITATIONS TO THE CODE OF VIRGINIA. 251 been previously resorted to, or shown to be insolvent, and when the possibility of the eviction was in contemplation of both the parties at the time of the assignment. When a lease is assigned, and the assignee is evicted through a defect in the lessor's title, he may sue the lessor for compensation. In the case of Black vs. Gilmore, 9 Leigh, 446, decided July, 1838, it was held : When a conveyance is of a freehold estate, words of lease do not amount to a covenant for quiet enjoyment. A declaration in covenant sets forth that the defendant, by an indenture, did rent and lease to the plaintiff a tract of land, to have and to hold the same so long as the plaintiff should live; and it avers as a breach of the covenant that the de- fendant entered upon the possession of the plaintiff, and ex- pelled and removed him. Held : On general demurrer, that no covenant for quiet enjoyment is to be implied from the words set forth, and that the action cannot be maintained. CHAPTEE CIX. SECTION 2458. In the case of Starke's Executors vs. Littlepage, 4 Rand., 368, decided June, 1826, it was held : Parol evidence is admissible to impeach evidence under seal on the ground of fraud. The rule in pari delicto potior est conditio defendentis does not apply where the policy of the law requires that a fraudulent or vicious conveyance should be enforced ; and therefore, where a debtor makes a fraudulent conveyance of his property for the purpose of protecting it from his creditors, the fraudulent grantee may enforce such conveyance in a court of law, and the debtor will not he allowed to defeat the claim by proving the fraud. De- cided by two judges out of three. In the case of James vs. Bird's Administrator, 8 Leigh, 510, decided July, 1837, it was held: A party who, to hinder and delay his creditors, fraudulently conveys his land to another, cannot, except under peculiar circumstances, maintain a bill to rescind the contract ; the grantor and grantee being generally in pari delicto, neither is entitled to come into equity. In the case of Terrell vs. Imboden et als., 10 Leigh, 321 (2d edition, 332), decided July, 1839, it was held : The obligee in a bond secured by a deed of trust makes a deed transferring the bond and deed of trust for the benefit of his creditors. After- wards, at the request of the obligor, the obligee signs a receipt, stating that on the day of the date thereof he received the amount of the bond. The bond was, in fact, executed without consideration, and the receipt was, in fact, given without any payment. The creditors for whose benefit the bond w;is assigned had no notice of its being without consideration until after the 252 CITATIONS TO THE CODE OF VIRGINIA. assignment ; but the obligor knew of the assignment when he took the receipt. In a suit between the obligor and those claiming under the assignment, an injunction, awarded to re- strain the sale of the property conveyed to secure the bond, was dissolved, and the court of appeals affirmed the order of disso- lution. In the case of Owen vs. Sharp and Wife et als., 12 Leigh, 427, decided November, 1841. One makes a fraudulent bill of sale of a female slave, absolute on its face, in order to protect the property from his creditors, but there is a secret trust that the grantee shall hold the property for the benefit of the gran- tor's daughters. Held : The daughters cannot establish the secret trust in equity and have a decree for the slave, her in- crease and profits. A fraudulent bill of sale is made of a female slave, absolute on its face, with a secret trust for the grantor's daughters, of. whom the grantee becomes guardian in 1827, and in 1829 he settles his guardianship accounts, both wards having then at- tained to full age. They then set up a claim to the property, which the grantee denies to be just, and in 1837 they file a bill to establish the secret trust. Held : The statute of limitations would alone be a bar to the bill. In the case of Harris vs. Harris's Executor, 23 Grat., 737, de- cided September, 1873. In a debt on bonds by the executor of H. against G., G. tenders a special plea that at the time of the execution of said bonds he owed nothing to G., and the con- sideration of said bonds was as follows : In 1866 four Suits at law were pending against him in the county, naming plaintiffs, to recover damages for trespass during the civil war in impress- ing horses, etc., by him under orders of the Confederate govern- ment, he being an officer of the army under that government. He did not regard these claims as debts or just liabilities on his part, but owing to the unfavorable and unjust constitution of courts and juries at that time, he feared they might be enforced against his property. He was informed by his counsel that the result was uncertain ; that judgment had been given in similar cases in Berkeley county; then he conferred with his father, who warmly advised him to secure his property against these claims. The plan adopted was for him to execute to his father the bonds sued out on, antedated with the distinct understand- ing that they were only to be used and treated as obligations to claim priority over the plaintiffs in case of necessity, and, if unne- cessary, were to be handed back to the defendant. Said bonds were executed under this understanding, and upon no other consideration. Wherefore said G. and his executor were bound to deliver said bonds to defendant, because said suits had been dismissed in 1867, before the death of G. ; and the bonds were CITATIONS TO THE CODE OF VIRGINIA. 253 therefore null and void, and to be surrendered. Therefore he has sustained damages, etc. On the motion of the plaintiff, the plea was rejected. Held : The plea was properly rejected, be- cause no issue, either by general or special replication, could be made upon it. It was not good as a plea under the statute for failure of consideration. The statute only applies to cases where the consideration was originally valuable, and not where there was no consideration. Such a defence cannot be made to a specialty, either at common law or under the statute. The seal imports a consideration, and a party cannot avoid it upon the ground of a want of consideration. The plea is not good, on the ground that the facts stated would entitle him to relief in equity, because his ground of relief is his own fraud. The averment of his fears that the courts and juries would not do him justice could not avail him, as the court must presume that no injustice could be perpetrated in regular legal proceedings had in the forum where such proceedings were pending. It is not a good plea at common law, because it is emphatically of the class in which the maxim, " nemo allegans snam turpitudi- nem OMdiendus eat" applies with full force. This case does not come within the maxim "inpari delicto potior est condito de- fejidentis" There is a marked distinction between contracts which are void ab initio and contracts which are void as to third persons, but are valid between the parties. Where the contract is void ab initio, when it appears either by the allegation of the plaintiff or by a proper plea of the de- fendant, that the contract is so void, the court will not lend its aid either to enforce it on the one hand or give relief on the other. Though the bonds are void as to creditors, they are valid between the parties, and therefore they will be enforced by the courts. In order to apply correctly the rule potior est conditio de- fendentis, it is necessary to consider not who is plaintiff or who is defendant, but by whom the fraud is alleged or sought to be made a ground of defence or recovery. Upon the question whether a fraudulent contract shall or shall not be enforced, there is no distinction between an execu- ted or an executory contract. A party claiming damages for the acts of another must be re- garded in law as much the creditor of that other as one holding his bonds or other promises to pay. A special plea of nan extjactum, which admits the execution and delivery of the bonds sued on, but avers that they were to be delivered to the defendant when he should request it, is not a good plea. In the case of Montgomery vs. Itose, 1 Patton & Heath, 5, 254 CITATIONS TO THE CODE OP VIRGINIA. decided January, 1855. A. defrauds B. of certain slaves, and afterwards makes a deed conveying them to a trustee to secure a debt. The trustee sells to C., for valuable consideration, and without notice of the fraud ; C. then conveys to D. Held : D. is entitled to hold against B., whether he had notice of the fraud or not. In the former case he holds valid title under C. ; in the latter,' he is himself a lona -fide, purchaser, without notice of fraud. In the case of Coutts et als. vs. Greenhow, 2 Munf., 363, de- cided June 7, 1811, it was held: A marriage settlement on a wife and her children, by the husband, though born in fornica- tion, is a conveyance to purchasers for valuable considera- tion' as to the children as well as the wife ; and not void as to creditors, no fraudulent intention being proved. In the case of Herring et als. vs. Wickham and Wife et als., 29 Grat., 628, decided January, 1878, it was held : If the grantee in a deed be a lona fide purchaser for valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud to invalidate the deed. Fraud cannot be presumed; it must be proved by clear and satisfactory evidence. Marriage is a valuable consideration, sufficient to support a conveyance of property, even against creditors, and in such a case the wife is deemed a purchaser of the property settled on her, in consideration of the marriage, and is entitled to hold it against all the. world. However much a man may be indebted, an ante-nuptial set- tlement, made by him in consideration of marriage, is good against his creditors, unless it appears that the intended wife was cognizant of the fraud; and even though it conveys his whole estate, it is not simply on that account void ; and when a settlement is made in contemplation of a marriage, the law pre- sumes it was an inducement to it, and the courts cannot assume the contrary to be the fact. The fact of the cohabitation of the parties, and the birth of children before the marriage, will not avoid the conveyance. Coutts vs. Greenhow, 2 Munf., 363, examined and followed. In the case of Triplett et als. vs. Romine's Administrator etals., 33 Grat., 651 and 659, decided September, 1880. M., a widow, having property settled by her upon her former hus- band, purchases land, and borrows from E. money to pay for it in part. Being about to marry again, she enters into a mar- riage contract with her intended husband, T., by which she con- veys all her property, real and personal, to a trustee, in trust for the separate use of herself and T., and the children of T. by a former marriage ; the money she borrowed to pay for the CITATIONS TO THE CODE OF VIRGINIA. 255 land still being due and unpaid. Held : The land is liable to pay the debt due to R. as against the children. R. files his bill against T. and his wife M., to subject the land to the payment of his debt. They answer; an account is ordered and taken, fixing the amount of R.'s debt to some items, to which T. ex- cepts. After the death of M., and eight years after the suit was brought, the children of T. file their petition in the cause. R.'s administrator answers the petition, and the court decrees against them. Held : They should have been made parties, but as their case was fully stated and investigated upon their petition and the answer of R.'s administrator, and after the delay they would not allow to be disturbed the report of the commissioner, the appellate court will not reverse the decree ; they may be made parties, if they desire it, when the cause goes back. In the case of Clay vs. Walter <& Co., 79 Va., 92, decided May 1, 1884, it was held : Whatever the design of the grantor, a settlement on a woman in contemplation and in consideration of marriage is valid, unless her knowledge of his intended fraud is clearly and satisfactorily proved. Service by the creditors of the grantor of written notice in accordance with the statute on the grantee before the marriage of his fraudulent design in making the settlement, cannot affect her constructively with notice of such design ; but her actual knowledge of, and actual participation in that fraudulent design, must be clearly estab- lished by proof. In the case of Garland vs. JRives, 4 Rand, 282, decided June, 1826, it 'was held : A creditor who takes a conveyance from his debtor to secure his debt, but at the same time inserts provi- sions in the deed to delay, hinder, or defraud other creditors, comes within the statute of frauds, and the conveyance is void. So, likewise, if the grantee be privy to a fraudulent intent on the part of the grantor, and takes a deed to secure his own debt, with provisions to delay, hinder, or defraud other creditors, the deed will be void, although his only motive was to secure his own debt, and the other provisions were forced upon him by the grantor as the only means of having his own debt secured. Such a grantee will not be considered as a lona fide purchaser. Under our statute of frauds, as well as the English statute of 13 Eliz., a bona fide purchaser for value, having no notice of covin, fraud, collusion, etc., will be protected. To vitiate a conveyance there must be a fraudulent design in the grantor, and notice of that design in the grantee. In cases of actual fraud a court of equity has concurrent ju- risdiction with a court of law in remedying the fraud. In these cases equity follows the law, and gives relief to the same extent as a court of law. And therefore where a creditor comes into equity to set aside a conveyance tainted with actual fraud, and 256 CITATIONS TO THE CODE OF VIRGINIA. the grantee had notice of the fraud, the conveyance shall be set aside in toto. In the case of Tate vs. Liggat da Matthews and Liggat d? Matthews vs. Morgan et als., 2 Leigh, 84, decided March, 1830. A creditor at large, not having obtained judgment or decree against his debtor, cannot resort to equity to set aside a fraudu- lent conveyance of his debtor, though interference of the court be also prayed to prevent a sale or removal of the subject, and though the subject be equitable estate not liable to execu- tion. Deison mortgages property to secure a fair debt due the Farmers Bank and a pretended debt to Tate. L. & M. bring a suit in chancery impeaching the security provided by the mort- gage for the pretended debt to T. as fraudulent. Pending this suit D. mortgages not the property, but his equity of redemp- tion in it, to S. & Co., fair creditors, to secure a just debt due them ; and then L. & M. obtain a decree for their claim against D. Held : That S. & Co. purchased only what D. could right- fully convey, that is, his equity of redemption, and took subject, not only to the fair debt due the Farmers Bank, but the pre- tended debt secured to T. ; and L. & M. being creditors by de- cree, and thus having the right to satisfaction in preference to the pretended creditor, T. acquired a preference also over the second mortgagees, S. & Co., who were postponed by contract to the pretended creditor, T. A., creditor at large, procuring a mortgage of his debtor's property, cannot claim as a creditor or in the double character as creditor and purchaser, but only as purchaser. And per Green, J., if A. make a fraudulent conveyance for valuable consideration to C., who has full notice of the previous fraudulent conveyance, the statute of frauds and perjuries does not apply to protect such a subsequent purchaser against the previous fraudulent conveyance ; nor upon the principles of common law can he claim against the previous fraudulent con- veyance whereof he had notice when he purchased. In the case of BrockenbrougJi, 's Executrix et als. vs. BrocJcen- brough's Administrator et als., 31 Grat., 580, decided March, 1879. A deed of trust is given in 1870 to secure a lona fide debt of ten thousand dollars, evidenced by four notes, payable in one, two, three and four years, and conveys a tract of land, with the crops then upon or thereafter grown upon the land, until said notes are fully paid ; all the stock of horses, mules, cattle, sheep, and hogs, with the increase of the same then on the said land and thereafter placed on the same, and all farm- ing implements of the said land. Held : The deed is not per se fraudulent on its face. Quaere : If the crops thereafter grown upon the land, or the increase of the stock, or other stock or CITATIONS TO THE CODE or VIRGINIA. 257 implements afterwards put upon the land, pass by the deed, and will be protected against subsequent execution creditors ? Pending a suit by judgment creditors to set aside a deed as fraudulent, the grantor makes a deed of quit-claim to his cre- ditor of all the property conveyed in the deed, but the notes are not given up, nor is the deed of trust released. Held : That whether the trust released depends upon the intention of the creditor ; and in this case it was held, upon the evidence, that there was no such intention. A deed of trust, to secure certain debts, conveys certain real estate, and the grantor reserves in it to himself and his family, all exemptions and property allowed by the Constitution of Vir- ginia and all laws passed in pursuance thereof, and in addition thereto, all exemptions allowed under the bankrupt laws. Held : The reservation is legal and valid. L. brings an action on a bond against B., which is on the office judgment of the court at its March term, which com- mences on the third of the month, and the office judgment is confirmed on the fifth, which is the last day of the term of the court. On the first day of the same term of the court, B. goes into court and confesses a judgment in favor of S., no suit hav- ing been instituted against B. by S. Held : The judgment in favor of S. is valid, though no suit had been instituted by him against B. ; that the judgment of L. relates back to the first day of the term, and the law not regarding the fraction of a day, both judgments stand as of the same date. In the case of Williams et als. vs. Lord <& Robinson et als., 75, Va. Reports, 390, decided March 24, 1881, it was held: W., a merchant, conveys his stock of goods in trust for the benefit of such of his creditors as shall accept the deed in a prescribed time. A few of the creditors accept the deed, but other cred- itors refuse. The creditors who accept the deed sell their claims to the wife of W., and she buys some goods and opens a store. Whether or not she may claim to hold the money she receives under her contract as a separate trader from the claims of her husband's creditors, under the first section of the said act, she is entitled, under the second section of said act, to all the benefits of her said contract, and to hold the same free from the claims of her husband's creditors. In the case of Davis vs. Turner, 4 Grat., 422, decided Jan- uary, 1848, it was held: The retaining possession of personal property by the vendor, after an absolute sale, is prima facia fraudulent ; but the presumption may be rebutted by proof. In the case of Forkner vs. Stuart, 6 Grat., 197, decided July, 1849. On a sale of slaves, if the possession does not accom- pany the sale, but remains with the vendor, such retention of the vendor is prima facia evidence of fraud, but is not con- 17 258 CITATIONS TO THE CODE OF VIRGINIA. elusive ; and it is liable to be repelled by satisfactory legal evi- dence of the fairness and good faith of the transaction. C. makes an absolute bill of sale of slaves to F., and F. exe- cutes to him an obligation that, upon C.'s producing evidence of the payment of a certain debt for which F. is bound as surety for W., that he will cancel the bill of sale. This is not a mort- gage ; but the bond is conditional defeasance. In an action on an indemnifying bond, the relator claims title to the property sold under a sale made by one partner without the knowledge or consent of the other of partnership property. The relator may recover for the undivided interest of the partner who made the sale, under a general allegation in the declaration of his ownership of the property. One partner, in the absence and without authority from his co-partner, sells partnership property, and executes a bill of sale under seal, in the name of both to the purchaser. The sale is made to pay a pressing debt of the absent partner, and is bona fide and for whole value, and the money is applied to pay the debt. Held : That the partner, having the authority by law as partner to sell partnership effects, his sale thereof is obligatory upon and passed the title of the firm. In the case of Curd vs. Miller (Executor), 7 Grat., 185, de- cided December 7, 1850, it was held : The grantor, in an abo- lute conveyance of personal property, continuing in possession thereof such continued possession, raises the legal presumption that the sale was fraudulent as regards the creditors of the grantor, which presumption throws imperatively upon the grantee the whole burden of proving the fairness and good faith of the transaction ; and that cannot be done without sufficient evidence that the pretended sale was for a fair and valuable considera- tion; and in the absence of such evidence, the prima facie presumption becomes absolutely and irresistibly conclusive. A judgment having been obtained against the grantor and his surety, the surety may direct the execution to be levied on the property so conveyed, and set up the fraud in the conveyance. In the case of Lang vs. Lee et als., 3 Kand., 410, decided June, 1825, it was held : Where a deed reserves to the grantor a power inconsistent with the avowed object for which the deed is made, it will be null and void as against creditors and purchasers. In the case of Skeppards vs. Turpin, 3 Grat., 373, decided January, 1847. A property taken under a deed of trust is taken under execution and sold, at the instance of parties not claiming under the trust deed. Held : A court of equity will not entertain a suit by the trustee or cestui que trust against the pur- chasers at the sale under the execution to recover the property ; there being no obstacle in the way of their proceeding at law. Property conveyed in a deed of trust is taken under execu- CITATIONS TO THE CODE OF VIRGINIA. 259 tion and sold, and the purchasers remain in peaceable posses- sion thereof for five years before the suit is instituted by the trustee for cestui que trust to recover it. Held : The statute of limitations is a bar to the recovery. A reservation in a deed of trust inconsistent with the avowed object of the trust, and adequate to the defeat thereof, renders the deed fraudulent and void as to the creditors thereby post- poned. In the case of Spence vs. Bagwell, 6 Grat., 444, decided Octo- ber, 1849. A deed of trust was held fraudulent because it re- served powers to the grantor which were sufficient to defeat the purposes for which the deed purported to be given. In the case of Addington vs. Ethelridge (Coroner), 12 Grat., 436, decided May 22, 1855, it was held: H., a merchant, con- veys to S. all his stock of goods and the store-house for the current year in trust to pay certain debts described in the deed ; and the deed provides that H. shall keep possession of and sell the stock of goods in the usual line of his trade, and occupy the store until default is made in the payment of any of ihe debts secured, and until the trustee shall be requested by any of the said creditors to close the deed by a sale. The deed is fraudulent per se, and void as to the creditors of H. In the case of Perry & Co. vs. Shenandoah National Bank et als., 27 Grat., 755, decided September, 1876. In November, 1873, N. conveyed to G. certain real and personal estate, and all his stock in trade, with all accretions to and replenishments of said stock, in trust to secure and indemnify certain endorsers upon negotiable notes due by said N. And if the said notes were not paid on demand, C., upon the written request of either of the parties secured, should sell the said property according to law ; but C. was not to be responsible for any of said pro- perty until he was ordered to sell the same as aforesaid. N. continued in possession and carried on his store for two years, and until all the goods in the store at the time of the deed were sold, and other goods were bought with the proceeds. In No- vember, 1875, under an execution of P. against N., the goods then in store were levied on. Held : The deed is fraudulet per se, and P. is entitled to the proceeds of the sale of said goods under his execution. In the case of McCormick (Trustee) vs. Atkinson (Trustee}, 78 Va., 8, decided November 15, 1883, it was held : It is well settled that a conveyance professedly to indemnify creditors, but ex- pressly or impliedly reserving to the grantor powers inconsis- tent with and adequate to defeat such purpose, is void as to creditors and purchasers. When conveyance is made of stock and fixtures of a store in trust to secure debts payable in futuro, Avithout right to trustee to possess or control the pro- 260 CITATIONS TO THE CODE OF VIRGINIA. perty except in event of default of payment, then, on request of C., G., and trustee to sell the same, such conveyance impliedly reserves to grantor the power to possess and sell the property ; and if he sells, then, as to the purchaser and creditors of that purchaser, that conveyance is void, although it may have been recorded, its recordation being only notice of a void thing. As between an unrecorded deed of trust and a subsequent but recorded conveyance of the equity of redemption, without notice of the former deed, the latter hath priority. In the case of Wray vs. Davenport, 79 Va., 19, decided April 3, 1884, it was held : It is well settled that conveyances, pro- fessedly to indemnify creditors, but expressly or impliedly re- serving to grantors powers inconsistent and adequate to defeat such purpose, is void to creditors and purchasers. It is too late for a grantor in a fraudulent deed to urge in the appellate court that a judgment is excessive in a suit to annul that deed, and subject the property to that judgment. In the case of Peay vs. Morrison's Executors, 10 Grat., 149 r decided July, 1853, it was held : A creditor at large may main- tain a suit in equity to set aside as fraudulent a deed conveying real estate made by his debtor, both the debtor and his grantee living and being out of the Commonwealth. In the case of William and Mary College vs. Powell et als., 12 Grat., 372, decided April, 1855, it was held : A post-nuptial settlement is made by a husband upon his wife. The wife afterwards dies, and then a bill is filed by a creditor of the hus- band against the children to set aside the deed as fraudulent as to the creditor. The husband is not a competent witness to prove the consideration upon which the settlement was made. In the case of Penn et als. vs. Whitehead, 17 Grat., 503, de- cided June 26, 1867, it was held, pages 527-530 : A married woman may engage in trade on her separate account, and enter into partnership for that purpose, by the consent of her hus- band, and she will be entitled to the profits of the trade against her husband, even though his agreement be merely voluntary ; and against his creditors, at least to some extent, if the agree- ment be founded on valuable consideration paid by or for the wife. A married woman, having a separate estate, may engage in trade, with the consent of her husband, and may, to the extent of her power over it, subject her estate to the payment of the debts, and she will be entitled to the profits of the trade as against her husband and his creditors, to the extent, at least, to which such profits may not be due to the labor, skill, capital or credit furnished by her husband. Where the husband furnishes all, or a portion of the labor and skill, or a portion of the capital and credit used in carrying CITATIONS TO THE CODE OF VIBGINIA. 261 on the business, the wife will be entitled, even as against his creditors, to such portion of the profits as will compensate her for what she has contributed to the business, either in the shape of capital or credit. To the extent to which a just apportion- ment can, it will, be made. If the power to dispose of or charge the wife's separate estate is not denied, either expressly or by implication, she has the power as incident to the separate estate. Property is conveyed to a trustee, on a consideration flowing from the wife, for her separate use for life, to remain in her pos- session for the support of herself and her issue and family, and for no other purpose, and with power to dispose of it by will among her family. She has the power to charge her life estate with payment of the debts of the business in which she was engaged. In such a case the wife is entitled to have the debts of the business paid out of the assets, in exoneration of her separate life estate. A wife, being without any adequate means of support for her- self and family, and her husband being insolvent, she, with his consent, and for the purpose of obtaining a support, engaged in a mercantile business for her separate use, by the aid of her friends in loaning her money or selling her goods on the credit of the business. Her stock in trade will be liable for the debts thus contracted, and so liable, preferably, to the proper debts of her husband, even though the necessary labor and skill em- ployed in conducting the business was furnished by him and his minor sons. In such a case any claim which the husband may have for the services of himself and his minor sons will be subor- dinate to the claims of the creditors of the concern to priority of payment out of the assets. An infant may be a partner, and his father, though indebted and insolvent, may release to his son all claim to his services; and the consent of the father to the son's becoming a partner is a release of his services. A business in which the wife is engaged, with the consent of the husband, is carried on by the labor and skill of her husband and his minor sons, and he is indebted and insolvent. The profits of the business, after paying off its debts and expenses, are liable to the creditors of the husband. The expenses of the support of the husband and his wife and family are a part of the necessary expenses of the business, without which there could be no profits. In the case of Burton vs. Mill et als., 78 Va., 468, decided March 13, 1884. This statute protects against fraudulent transfer all claims, debts, and demands, including claims to damages for breach of contract to marry, for which judgment may, after the execution of the conveyance, be obtained. 262 CITATIONS TO THE CODE OF VIRGINIA. In the case of Saunders (Trustee] vs. Waggoner, 82 Va., 316, decided July 15, 1886, it was held : It is well settled that convey- ances, professedly to indemnify creditors, but expressly or impli- edly reserving to grantors powers inconsistent with and adequate to defeat such purpose, are void as to creditors and purchasers. In the case of Ilickmans Executor et als. vs. Trout et als., 83 Va., 478, decided June, 1887, it was held : Fraud must be clearly proved. The burden of proof rests on the alleger. It may be proved by circumstances. "When the evidence shows a prima facie fraud, the burden shifts to the upholder of the transaction to establish its fairness. The grantee must be proved to have had notice of grantor's fraudulent intent. The usual badges of fraud are : Gross inadequacy of price ; no se- curity taken for the purchase-money ; unusual length of credit ; bonds taken at long periods ; conveyance in payment of alleged antecedent indebtedness of father to son residing together; threats and pendency of suits ; concealment of the transaction ; keeping the deed unacknowledged and unrecorded for some time ; grantor remaining in possession, as before the convey- ance. Any of these facts may make a case of prima facie fraud, calling on the parties for explanation. Where to these indicia are added the absence of itemized accounts, vouchers, etc. ; contradictions in the testimony of grantor and grantee ; the want of means in grantee to create the alleged indebtedness of grantor to grantee, and the failure to examine as witnesses persons having opportunities to know the facts these things Combine to establish the fraudulency of the conveyance as to both grantor and grantee. In the case of Rucker's Administrators vs. Moss et als., 84 Va., 634, decided March 15, 1888. M., for E.'s benefit, put a lien on his real estate for the amount of a fictitious note that could cover its value, and then referred his creditors to E. as a probable purchaser of their debts, and sold some at fifty cents on the dollar, it being agreed secretly between M. and K. that the discounts should be shared equally between them. Held : The deed creating the lien was fraudulent in fact and void as to M.'s creditors. In the case of Hawkins vs. Gresham, 85 Va., 34, decided May 10,^1888, it was held : In suits to set aside fraudulent deeds and subject the property therein to satisfy a debt, it is the amount of the debt, and not the value of the property which determines the appellate jurisdiction. In the case of Paul vs. BaugJi et als., 85 Va., 955, decided April 4, 1889, it was held : Debtor, in failing circumstances, may make valid assignment of all his property, giving prefer- ences as between his creditors, in the. absence of fraud, which must always be proved with clearness and certainty. CITATIONS TO THE CODE OF VIKGINIA. 263 SECTION 2459. For the references to 17 Grat, 503, 527, 530 ; 2 Munf., 363; 29 Grat., 628, and 33 Grat., 651-659, see supra, Sec- tion 2458. In the ease of Cfiamberlayne et als. vs. Temple, 2 Band., 384, decided February, 1824, it was held : A voluntary conveyance of property to children at a time when the donor is largely in- debted, is void as against creditors. A creditor cannot subject the property thus conveyed by a suit against the donees until he has established his. demand at law by obtaining judgment, and in the case of personal pro- perty, by suing out an execution against the donor or his repre- sentatives, or by showing, by a settlement of the administration account, that there are no assets in the hands of the executor or administrator to satisfy the debt. A voluntary conveyance is good between the parties, and only void as to creditors, who are thereby delayed, hindered, or defrauded. "When a decree is rendered on behalf of a creditor against several voluntary donees of the debtor, a court of equity should decree contribution among them, so that each man should pay his just proportion of the debt. But all the donees should be liable for the failure of any one to pay his proportion until the debt is completely discharged, as far as he has received the funds of the donor. In the case of Davis vs. Payne's Administrator, 4 Rand., 332, decided June, 1826, it was held : A voluntary conveyance of personal property, by a party not indebted at the time, is good against creditors, if the deed be duly recorded, or the posses- sion remain solely and lona fide with the donee ; otherwise it is void by the statute of frauds. In the case of Huston's Administrators vs. Cantril, 11 Leigh, 136, decided April, 1840. A father, owing a debt at the time, makes a deed of gift of personal chattels to his infant daughter, which is duly recorded. The daughter marries, and after the father's death the creditor files a bill against the daughter and her husband, impeaching the deed as fraudulent, and seeking to subject the property to the payment of his demand. Held : Whatever might have been the character of the conveyance in its origin, it was rendered good and available against creditors upon the marriage of the daughter, who thereupon was to be considered a purchaser by relation for valuable consideration. The reference to 1 Bob., 123, is an error. In the case of The Bank of Ale,.i- 1827, it was held : A court of probate occupies the place of a jury as to facts, and ought to find all proper inferences from facts proved. In the case of Commonwealth vs. Hudgin, 2 Leigh, 248, de- cided June, 1830. A resident of Kentucky dies intestate there, having no estate in Virginia, but a claim on this Commonwealth for money. Held: The Circuit Court of Henrico county, wherein is the seat of government, has jurisdiction to grant administration of such decedent's estate. In the case of Ex-parte Barker, 2 Leigh, 719, decided June, 1830, it was held : Letters of administration granted by a court having no jurisdiction to grant them are merely void ; and the court having competent jurisdiction to grant the administration may proceed to grant it, though the letters of administration before improperly granted have not been revoked. In the case of Fisher vs. Bassett, 9 Leigh, 119, decided De- cember, 1837. A county or corporation court grants adminis- tration of the estate of a foreigner, who died abroad, and who had no residence in the county or corporation at the time of his death, and had no estate of any kind there, so that in truth the state of facts is not such as to give the court jurisdiction to grant administration in the particular case according to the provisions of the statute ; yet held : That such a grant of administration is not a void but only a voidable act, and therefore rightful acts of, and fair dealings with, the administrator, consummated before his administration is revoked or superseded, cannot be impeached. Qucere : Whether if a county or corporation court grant ad- ministration of a decedent's estate in a case when the true state of facts is not such as to give such court jurisdiction to grant administration, and yet such grant is only voidable, not void, the General Court can make a valid grant of administration until the former irregular grant by the county or corporation court shall have been duly revoked or superseded ? In the case of Burnley vs. Duke, 2 Rob., 102, decided May, 1843. Pending a suit in chancery by legatees against an ex- ecutor to recover their legacies, the executor died. Process was awarded to revive the suit against his administrator ; and the administrator dying, process was issued and an order entered to revive the suit against his representative. But afterwards that process was quashed and that order set aside as early as 1811, and then, by consent of the parties, the suit was revived against the administrator de bonis non of the executor, and by like consent it was entered that the cause was not to abate by the death of any of the parties. A personal decree was obtained in 1818 by the legatees against 318 CITATIONS TO THE CODE OF VIRGINIA. the administrator de bonis non, from which he appealed. Pending the appeal he died. Whereupon, though the two former grants of administration on the executor's estate had been by the court of Orange, the court of Hanover now granted administration on the same estate, not in the form of a grant de bonis non, but of an original grant. At the instance of the legatees, a scire facias issued to revive the appeal against this new administrate! (calling him administrator de bonis non), which was duly executed, and in 1822 the decree affirmed. In the caption of the decree of affirmance, the name of the administrator debonis non, against whom the decree of the court below was entered, did not appear as a party, but the new administrator was mentioned therein as appellant. In 1823 a bill of revivor and supplement was filed in the court below, convening before the court, and seeking to charge the representatives of the first administrator and of the first administrator de bonis non. It turned out that after the scire facias to revive the appeal had been executed, and before the decree of affirmance, the new administrator had, in the char- acter of administrator de bonis non, brought suits and obtained decrees for the assets of the executor's estate in the hands of the representatives of the first administrator, and of the first ad- ministrator de bonis non, against those representatives respect- ively, without opposition on their part ; and the decrees so ob- tained were soon after satisfied. Those decrees were in 1820 and 1821, about six years before the decision in Wemick's Ad- ministrator vs. McMurdo, 5 Band., 51. Held: 1. That the grants of administration by the court of Orange to the first adminis- trator and to the first administrator de bonis non, never having been reversed or revoked, must be considered valid grants, which conferred upon those administrators respectively all the power of rightful administrators. 2. That when the grant to the first administrator de bonis non expired by his death, and there was no conflicting right in ex- istence, it was competent for the court which might in the first in- stance rightfully have exercised jurisdiction, to act on the sub- ject ; and Hanover court having acted when there was no such conflicting right, and its grant not having been reversed or re- voked, that grant is good and valid, and the sureties in the ad- minstration bond taken in Hanover court are liable thereupon. 3. That as the legatees after the death of the first adminis- trator dismissed his representative from the suit, it was lawful for that representative to pay over to the administrator against whom the legatees were proceeding, the unapplied assets of the executor's estate ; and such payment made in good faith and under the sanction of a decree of a court of competent jurisdic- tion, is a complete protection to such representative against the legatees as to the money so paid. CITATIONS TO THE CODE OF VIEGINIA. 319 4. That the decree in favor of the legatees against the admin- istrator de bonis non was personal, only in respect to the assets in his hands, and (it being nowhere alledged that he had con- verted or wasted the same) such unapplied assets coming to the hands of his representatives must in equity be regarded as un- administered assets of the executor's estate ; and the representa- tive of the administrator de bonis non having in good faith and in pursuance of the decree of a court of competent jurisdiction, paid over the said assets to the administrator against whom the legatees revived the appeal, such payment protects the estate of the administrator de bonis non from the claims of the legatees. 5. That for the assets so paid over by the representatives of the first administrator and of the administrator de, bonis non, the administrator to whom such payment was made and the sureties in his official bond are liable. 6. That the dismission of the bill as to the representatives of the first administrator and of the administrator de bonis non, should be without costs. In the case of Hutcheson vs. Priddy, 12 Grat., 85, decided January, 1855, it was held: If the county court commits an estate to the sheriff for administration before the expiration of three months from the death of the testator or intestate, the act is not void but voidable. In such a case the county court having general jurisdiction to grant administration, the act of the court in committing the estate to the sheriff cannot be ques- tioned in any collateral proceeding. In the case of Ballow vs. Hudson, 13 Grat., 672, decided Feb- ruary 24, 1857, it was held : A paper is propounded for probate to the County Court of C. as the will of B., and is rejected on the ground that B. was incompetent to make a will. After- wards the paper is propounded to the Circuit Court of C., and that court, with knowledge that it had been rejected in the County Court, admits it to probate. The sentence of the County Court is conclusive against the will, and the sentence of the Cir- cuit Court is a nullity. In the case of Andrews vs. Avory et als., 14 Grat., 229, decided February 16, 1858, it was held: Administration granted where the deceased lived and died out of the State, and left no estate within, is not void. An administrator appointed in Virginia, whose intestate lived and died in North Carolina, and left no estate in Virginia, goes to North Carolina, and without qualifying there, takes posses- sion of the assets and brings them to Virginia. His sureties in Virginia are liable for his faithful administration of those assets. In the case of Conolly vs. Conolly et als., 32 Grat., 657, de- cided January, 1880, it was held, pages 664-'65 : The court in which a bill is filed under the statute to impeach or establish a 320 CITATIONS TO THE CODE OF VIRGINIA. will is not a mere court of probate, but something more. It is a court of equity, and though its powers over the subject con- fided to it are limited, it may, on a proper bill, review and cor- rect errors in its proceedings after final decree in the cause. The present state of the law of probate in Virginia is, that a sentence pronounced by a court having jurisdiction, whether it be a sentence admitting a paper to probate or excluding it from probate, as long as it remains in force binds conclusively, not only the immediate parties to the proceeding in which the sen- tence is had, but all other persons and all other courts ; and the principle applies as well to a sentence represented by a verdict of a jury and decree thereon in the proceeding by bill under the statute, as to a sentence pronounced in any other authorized probate proceeding. In the case of Norvell et als. vs. Lessueur et als. t 33 Grat., 222, decided April, 1880, it was held : It is a settled rule of law of the State of Virginia, that the admission of a will to probate generally is conclusive of its validity, both as a will of realty and personalty, which cannot be drawn in question, except on an issue devistavit vel non within the time and mode prescribed by the statute. A case in which a will, good as a will of personalty, but not good as a rule of realty, though admitted to probate generally. Held : Upon the action of the same court, between the same par- ties, on the same day, treating the probate as only of a will of personalty, and this acted on for forty years, that the order ad- mitting the order to probate will be considered as only a pro- bate of a will of personalty. SECTION 2534. In the case of Wynri's Executor vs. Wynn's Adininistrators ; Wynn's Administrators vs. Wynris Executor, 8 Leigh, 264, de- cided April, 1837, it was held : When a court of probate under the 24th Section of the statute concerning wills appoints a per- son to collect and preserve the estate of a decedent until admin- istration be granted, such appointee cannot properly be sued on a bond of the decedent. If he be sued and judgment be ren- dered against him, a scire facias upon the judgment will not lie after administration is granted against the administrator, nor will the judgment be any bar to a new action against the ad- ministrator upon his decedent's bond. The reference to 9 Leigh, 242, is an error, nothing in point appearing there. In the case of Helsley et als. vs. Craig's Administrators et als., 33 Grat., 716, decided September, 1880. H. is appointed cura- tor of the estate pending a contest over C.'s will, and whilst curator collects an ante-war debt well secured in Confederate CITATIONS TO THE CODE OF VIRGINIA. 321 money. C.'s will having been established, H. qualifies as ex- ecutor, but is afterwards removed, and the administrator de bonis non, with the will annexed, files a bill against H., as curator, and his sureties, seeking to subject them to the payment of said debt, and the defendant demurs to the bill. Held : The admin- istrator de bonis non, with the will annexed, may maintain the suit against the curator and his sureties under the statute, Code of 1873, Chapter 118, Section 24. SECTION 2536. In the case of Rice vs. Jones, 4 Call, 89, decided November, 1786, it was held: A will devising lands in Virginia may be proved in this State, although it may have been declared void in any other of the United States. In the case of Burnley's Administrator vs. Duke et als., 1 Rand., 108, decided March, 1822, it was held: Where a testator leaves two wills, one in Virginia and the other in England, the English will being the last in date, and his executor takes out letters of administration on the posterior will in England, this does not ipso facto repeal letters of administration which have been granted in Virginia on the first will ; the English executor must first qualify by giving bond and security as the law directs. In the case of Ex, Parte Povall, 3 Leigh, 816, decided by the General Court, July, 1831, it was held: When an authenticated copy of a will proved in another or foreign State is offered for probate here, if the probate show that the will has been so proved there, as that if proved in like manner here it could only be admitted to probate here as a will of personalty, it shall be so admitted; but if the proof in the foreign court of probate be such as if taken here would suffice to establish it as a will of lands, it shall be admitted to probate here also as a will of lands. SECTION 2537. In the case of Nolle s Representatives, etc. vs. Fenwick, (Sur- viving Partner, etc.], 4 Band., 585, decided December, 1826, it was held : It seems that a will of lands where two of the three at- testing witnesses reside out of the State, and cannot be procured by any legal means, may be proved by the remaining witness, he proving the attestation of the absent witnesses. The mode pointing out in the act " prescribing the method of proving cer- tain wills," gives an additional mode of proceeding, and does not deprive a party of any of which he might have pursued be- fore. In the case ol Pollard's Heirs vs. Lively, 2 Grat., 216, decided July, 1845, it was held : This court will presume that a deposition has been taken upon a regular commission and notice, where no 21 322 CITATIONS TO THE CODE OF VIRGINIA. objection has been raised to it on that ground in the court below. A person taking a deposition under a regular commission and notice, certifies that the deposition was taken before him, and signs his name to the certificate, with the addition of the letters J. P. Held : It sufficiently appears he is a justice of the peace. A witness giving his deposition de bene esse, states in it that he is unable, from his age and health, to attend the court. This is sufficient to authorize his deposition to be read upon the trial of the cause in which it is taken. In the case of NuckoCs Administrator vs. Jones, 8 Grat., 267, decided October, 1851. In a case of probate, the deposition of an aged witness taken de bene esse is allowed to be read, upon proof either by witnesses or by his own affidavit of his inability to attend the court. In a case of probate a witness unable to attend the court, is examined as to the handwriting of a testamentary paper which had been shown to him by the propounder of the will, but which was not before him at the time he gave his deposition. Held : That the testimony is admissible, its weight depending upon the certainty of the proof that the paper propounded for probate is the paper that was shown to the witnesses. In the case of Steptoe vs. jKead, 19 Grat., 1, decided October 27, 1868, it was held : A commission to take deposition, being in all other respects correct, the omission, from inadvertence of the clerk issuing it, to sign his name to it at the bottom, will not vitiate it. Though the commissioner taking a deposition does not give the names of the parties in his certificate, or state that it was taken in pursuance of a commission, yet, as the names are given in the caption to the certificate, and the commission is returned with the deposition and attached to it, the certificate is sufficient. The certificate of a commissioner who takes a deposition does not state that it was taken pursuant to notice, but though the deposition is excepted to on the ground that there was no com- mission, and that the certificate does not state the parties to the suit in which it is taken, no objection is taken to it in the court below for want of notice. Although there is no notice, or evi- dence of notice in the record, the objection for want of notice cannot be taken in the appellate court. SECTION 2542. The reference to 10 Grat., 259, is an error. In the case of Tucker et als, vs. Sandidge, (Curator), 82 Va., 532, decided November 11, 1886. In a proceeding at law to contest paper- writing propounded by the executor S. for pro- bate, a jury was empaneled to ascertain whether the paper- CITATIONS TO THE CODE OF VIKGINIA. 323 writing was the last will and testament of T. The verdict was that it was not. On motion of the propounder, the verdict was set aside, and a new trial awarded. Contestants appealed. Held : The appeal was improvidently awarded, and must be dis- missed, and the case remanded for trial and final order. This is the case cited from 11 Va. Law Journal, 107. SECTION 2544. In the case of lord vs. Gardiner, 1 H. & M., 71, decided October 30, 1806, it was held : Upon an issue from a court of chancery to try the validity of a will, the court ought to give directions respecting the reading of the papers filed in the cause, otherwise the omission to read any of them on the trial of such issue will not be ground for reversing the proceedings if the court of chancery refuses to grant a new trial when the verdict in such case is certified to the court sitting in chancery, and a new trial refused ; the allegations relative to what passed at the trial, stated in the bill of exceptions to the opinion of the court in refusing the new trial, if no proof of the truth of these alle- gations appear on the record, are not to be taken as admitted to be true by the courts signing and sealing. After the probate of a will, any person interested who had not appeared and contested such probate, may, within seven years (now two years), file a bill in equity to contest its validity, and any such person, even though he had appeared and contested the probate, may file a bill as aforesaid on the ground of fraud, to the existence of which he was a stranger at the time of the probate. A county court sitting in chancery has the right to direct an issue to be tried on the common law side of the same court. An issue to try the validity of a will has the same effect as an issue to try whether the writing in question is the will or not. In the case of YaugTian vs. Doe on demise of Green, 1 Leigh, 287, decided June 18, 1829, it was held : Will disposing of real and personal estate, but not duly executed as to the real, was admitted to probate by county court in general terms 1785, and never contested. Held : This was full probate, the heir could only have contested the will by bill in chancery, within seven years, and he, instead of contesting it, having taken as devisee under it, it must now be regarded as a complete will of lands. In the case of Street vs. Street, 11 Leigh, 498 (2d. edition, 521), decided January, 1841. A will devising or charging lands is admitted to full probate, without proof appearing in the sentence of probate that it was duly attested by witnesses, or that it was wholly written by the testator. Held : That according to our 324 CITATIONS TO THE CODE OF VIRGINIA. laws and course of judicial decisions, the will cannot be contro- verted as a will of lands after the lapse of seven years from such full probate. But if the sentence of probate distinctly shows that the will was not duly executed to pass real estate. Qucere: Whether the sentence of probate, though general, ought not in such case to be understood in the restricted sense of declaring the instrument a good will of personahty only? In the case of Malone's Administrator et als. vs. Hobbs etals., 1 Bob., 346, (2d edition, 366), decided November, 1842. Where a will has been admitted to probate, and a person interested appears within seven years afterwards and files a bill in chancery under the Act 1, Eev. Code of 1819, Chapter 104, Section 13, it is sufficient in such bill to aver in general- terms that the writ- ing of which probate has been received is not the will of dece- dent. An answer to a bill contesting the validity of a will states that some of the plaintiffs had accepted legacies and devises under the will; and the fact appears to be so by exhibits filed with the answer. After verdict and decree against the will, the objection is taken in an appellate court, that those parties had precluded themselves from disputing the validity of the will, and that as they are improperly joined with the other plaintiffs, the suit cannot be sustained. Held: The objection will not avail. On the trial of an issue whether a writing, admitted to pro- bate as a will, be the will of the decedent or not, the evidence against the will consists of statements by witnesses of what a legatee told them had passed on one occasion when he and the decedent were together. That legatee is one of many defend- ants, and it does not appear that he refused to testify. The admissibility of such evidence is questioned before the appellate court by counsel, but not decided. In the case of Coalter's Executor et als. vs. Bryant et ux., et als., 1 Grat., 18, decided May, 1844, it was held : Upon a bill to contest the validity of a will which has been regularly ad- mitted to probate, the function of the suit is exhausted when the question is decided ; and if the will is declared invalid and null, it is not competent for the court to proceed in that cause to make any farther decree. A person acting as executor is not to be made a party in his own right to a bill filed to contest the validity of a will under which he is acting. In the issue devisavit vel non, the party sustaining the will is the plaintiff, and entitled to the opening and conclusion of the case before the jury ; and the party contesting the will is the defendant, and this though the contestant may propose to CITATIONS TO THE CODE OF VIKGINIA. 325 admit on the record a prima facie case in favor of the will. When a party has interests under and against a will, he may be authorized by the court to choose whether he will be plain- tiff or defendant in the issue. In the case of Wills vs. Spraggins, 3 Grat., 555, decided Jan- nary, 1847, it was held : The sentence of a court of probate fairly obtained and pronounced upon, the merits by which a paper propounded by a will by the nominated executor is rejected in a proceeding in which some of the next of kin interested to de- feat it are parties defendants, is conclusively binding upon a legatee in said paper, though he was an infant at the time, and no party to the proceedings, and the paper cannot be again propounded by the legatee. In the case of Sallow vs. Hudson, 13 Grat., 672, decided February 24, 1857, it was held : A paper is propounded to the county court of C. as the will of B., and is rejected on the ground that B. was incompetent to make a will; afterwards the paper is propounded for probate to the Circuit Court of C., and that court, with knowledge that it had been rejected in the county court, admits it to probate. The sentence of the county court is con- clusive against the will, and the sentence of the circuit court is a nullity. Bill to set aside a will states the facts showing the probate is a nullity, but asks for an issue devisavit vel non, and for general relief. The court may disregard the prayer for an issue, and give the proper relief under the prayer for general relief. In the case of Lamberts vs. Cooper's Executor et als., 29 Grat., 61, decided September, 1877, it was held: On the trial of an issue of devisavit vel non, if one of the parties object to the ad- mission of a person to testify, on the ground of interest ; or if objection is made to the admission of evidence of the character of a witness who had testified, on the ground that no proper foundation had been laid for its introduction ; and the objec- tions are overruled," and the witness and the evidence is admit- ted, and the objector does not except at the time, or give notice of his intention to except before the verdict is rendered, he waives the objection, and cannot rely upon it upon a motion for a new trial. The same rule applies upon the trial of such an issue as implies on a trial at common law. Upon a motion to set aside the issue, on the ground that the verdict was contrary to the evidence, the court overrules the motion and makes a decree according to the verdict, and the party moving files a bill of exceptions to the refusal of the court to set aside the verdict, and all the evidence is set out in the bill of exceptions. The appellate court will reject all the parol evidence of the exceptor which is in conflict with that of 326 CITATIONS TO THE CODE OF VIEGINIA. the other party ; and if, upon the evidence of the appellee and written evidence of the appellant, the case is in favor of the appellee, the decree will be affirmed. The attesting witnesses of a -will who are introduced to prove a will was not properly executed, or to the incapacity of a testa- tor, will not be excluded; but their evidence will be received with much suspicion. Though the statute requires at least two witnesses to a will, it may be proved by one of them, he proving the attestation of the other. In the case of Conolly vs. Conolly et als., 32 Grat., 657, de- cided January, 1880, it was held : The court in which a bill is filed under the statute to impeach or establish a will is not a mere court of probate, but something more. It is a court of equity, and though its powers over the subject confided to it are limited, it may, on a proper bill, review and correct errors in its proceedings after final decree in the cause. The present state of the law of probate in Virginia is, that a sentence pronounced by a court having jurisdiction, whether it be a sentence admitting a paper to probate or excluding it from probate, as long as it remains in force binds conclusively not only the immediate parties to the proceeding in which the sen- tence is had, but all other persons and all other courts ; and the principle applies as well to a sentence represented by a verdict of a jury and decree thereon in the proceeding by bill under the statute, as to a sentence pronounced in any other authorized probate proceeding. In the case of Norvell et als. vs. Lessueur et als., 33 Grat., 222, decided April, 1880, it was held : It is a settled rule of law of the State of Virginia, that the admission of a will to probate generally is conclusive of its validity, both as a will of realty and personalty, which cannot be drawn in question, except on an issue devisavit vel non within the time and mode prescribed by the statute. A case in which a will, good as a will of personalty but not good as a rule of realty, though admitted to probate generally, held : Upon the action of the same court, between the same parties on the same day, treating the probate as only of a will of person- alty, and this acted on for forty years, that the order admitting the order to probate will be considered as only a probate of a will of personalty. In the case of Hartman vs. Stickler, 82 Va., 225, decided July 8, 1886, it was held : On motion for new trial of issue, devisavit vel non, where the certificate is of the evidence, and not of the facts, the verdict must stand, unless, after rejecting all the ex- ceptor's parol^ evidence, and giving full force and credit to the adverse party's, the decision of the court below shall appear CITATIONS TO THE 'CODE OF VIKGINIA. 327 to be wrong. This is the case quoted from 10 Va. Law Jour- nal, 525. In the case of Kirby vs. Kirby, 84 Va., 627, decided March 15, 1888, it was held: Upon a bill filed under this section to impeach or establish a will, the court can exercise only the special and limited powers conferred upon it by the statute ; it can only ascertain by a jury trial, whether the paper in question is or is not the will of the decedent ; it can go no further, and cannot make an order respecting his estate; and a decree ap- pointing a receiver to take charge of the estate pendente lite is ultra vires and void. SECTION 2546. For 1 Grat., 18 and 19, see Ooalter's Executors et als., supra, Section 2544. CHAPTER CXIII. SECTION 2549. In the case of Blunt vs. Gee, 5 Call, 481, decided October, 1805. C. N. in 1788, devised a tract of land to C. N. B., and all the residue of his lands to the testator's son, J. N. To his wife, M. N., the use of all the said residue of feis lands for the benefit of his children E. N., J. N., and S. N., during her life or widow- hood, or until his son, J. N., came of age, when his wife was to have the use only of the plantation whereon he lived. He then devised her the use, during her life or widowhood, of all the rest of his estate to make use of for his children E. N., J. N., and S. N, The wife was entitled to the use of the whole of the subjects de- vised to her as aforesaid for the mainteance of herself and the children during her widowhood, without accountability, and upon her second marriage her last husband was entitled to com- pensation for board of the children from that time. And as J. N. attained to twenty-one years of age, and then died intestate and without issue, his whole estate was decreed to be divided as follows : To his mother two-seventh parts, to his sisters of the whole blood two-seventh parts each, and to his brother of the half-blood one-seventh part, but his other half-sister, not born at his death, was entitled to no part thereof. And as S. N. died under age, without issue, her lands devised from her brother, J. N., were decreed to be divided thus: To her mother one-third, to her sister of the whole blood one-third, to her brother of the half-blood one-sixth, and to her sister of the half- blood one-sixth. In the case of Garland vs. Harrison, 8 Leigh, 368, decided May, 1837, it was held : Under the statute of Virginia directing the course of descents, bastards are capable of transmitting in- heritance on the part of their mother, and where a bastard dies intestate, leaving no children or descendants, but leaving his 328 CITATIONS TO THE CODE OF VIRGINIA. mother surviving and two bastard brothers by other fathers, the estate will pass to the mother and the two bastard brothers. In such case the two bastard brothers, being regarded as of the half-blood only, will each inherit only half so much as the mother. SECTION 2550. In the case of Davis vs. Eowe, 6 Hand., 355, decided May, 1828, it was held : The act of descents entirely repealed and abrogated the common law course of descents, and all the prin- ciples thereof. If an intestate dies without children, or their descendants without a father, mother, brother, or sister, but hav- ing had a brother and a sister, both of whom died before him, leaving a niece, the only child of the brother, and two nephews, and two nieces, the children of the sister, the real estate of the intestate will descend, and the personal estate be distributed to all of these nieces and nephews per capita and not per stirpes, they being all in the same degree of consanguinity to the intestate. In such case the estate will not be divided into moieties, to be given one moiety to the child of the brother, according to the common law doctrine of jus representationis, and the other moiety to the four nephews and nieces, as representing their mother, but it will be divided into five equal parts, one to each of the nephews and nieces, each one taking jure proprio. If in such case the two nieces (children of the deceased sis- ter) be dead before the intestate, living, the two nephews and the niece (the child of the brother), and one of those deceased nieces has left two children, and the other six children, the estate will still be divided into five parts, of which one part will be alloted to the niece (the daughter of the brother), another part to each of the nephews, one other part to the two children of the deceased niece, as representing their mother, and the other fifth part to the six children, as representing their mother, and this on the principle contained in this section, that if a part of those in the same degree be dead, and a part living, the issue of those dead shall take per stirpes, that is, the share of their deceased parent. Although this section does not provide in terms for the case of a brother and sister dying before the intestate, and leaving an unequal number of children, and does not in words declare what portion of the inheritance shall descend to those children, yet the spirit of the section, taken in connection with the first and fourth sections of the entire act, justifies the construction that they will take per capita. It is a just inference from this decision, that if a grandfather die intestate, having had two children, A. and B., both of whom died before their father, but A. leaves one child, and B. leaves six children, the estate of the grandfather will descend to all the CITATIONS TO THE CODE OF VIRGINIA. 329 grandchildren equally, and the child of A. will only get a seventh part, although if A. had been alive, and the other brother dead, A. would have got a moiety, and the other moiety would have been divided between the six children of B., and so of all other cases of like kind. In the case of Ball et als. vs. Ball et als., 27 Grat., 325, de- cided March 23, 1876, it was held : B. dies intestate, leaving as her heirs five children of her deceased son, S., six children of her deceased sou, W., and a grandchild of W., the only child of a deceased daughter of W. B.'s real estate is to be divided into twelve equal parts, of which the five children of her son, S., the six children of her son, W., and the grandchild of W., representing her deceased mother, are each to take one part. SECTION 2551. In the case of Jacksons vs. Sanders and Wife et als., 2 Leigh, 109, decided March, 1830. A citizen dies seised of lands in Virginia, leaving a brother who is a citizen, a sister who is an alien, yet living, children of the alien sister, who are citizens, anxl grandchildren of the alien sister, who are citizens, though their fathers as well as their grandmothers are aliens. Held : Under the statute of descents, the descendants of the alien sister take by descent one moiety to be divided among them per stirpes, and the citizen brother the other moiety. In the case of Hannon el als. vs. Honnihan et als., 85 Va., 429, decided September 20, 1888, it was held : By this section it is provided that, in making title by descent, it shall be no bar to a party that any ancestor (whether dead or living) through whom he derives his descent from the intestate is or hath been an alien. SECTION 2552. In the case of Doe on demise of Thompson vs. Anderson, 4 Leigh, 118, decided January, 1833. Testator devises real and personal estate to his natural daughter, P. A., to her and her heirs forever ; and if she should die leaving no child, the estate before given should return into his estate, and be divided among his legitimate children ; but should she leave a living child or children, then the estate should be heired by him, her or them, as the case might be. Held : P. A. took by the will an estate- tail in the lands devised to her, which the statute for abolishing entails converted into a fee-simple, and barred the contingent remainder limited on the estate-tail, the devisee, P. A., having left illegitimate children living at her death, capable of inherit- ing and of transmitting inheritance on the part of their mother in like manner as if they had been her lawful children, by the provision of the statute of descents, 1 Rev. Code, Chapter 96, Section 18. 330 CITATIONS TO THE CODE OF VIRGINIA. In the case of Garland vs. Harrison, 8 Leigh, 368, decided May, 1837, it was held : Under the statute of Virginia directing the course of descents, bastards are capable of transmitting in- heritance on the part of their mother, and where a bastard dies intestate, leaving no children or descendants, but leaving his mother surviving and two bastard brothers by other fathers, the estate will pass to the mother and the two bastard brothers. In such case the two bastard brothers being regarded as of the half-blood only, will each inherit only half so much as tha mother. In the case of Hepburn vs. Dundas, 13 Grat., 219, decided March 7, 1856, it was held : There are three negroes, children of the same mother, born slaves, and the mother and children are afterwards emancipated. One of the three dies, having ac- quired real estate, intestate and without children. The mother is dead. The other two take the estate as heirs of the deceased sister. In the case of Bennett et als. vs. 2oler et als., 15 Grat., 588, decided April, 1860, it was held : Upon a devise to a daughter for life, and at her death the property to be equally divided among her children, an illegitimate child of the daughter will take \\ith her legitimate children SECTION 2553. In the case of Sleigh vs. Stricter, 5 Call, 439, decided April, 1805, it was held : A child born out of wedlock in the year 1774 was legitimated by the subsequent marriage and acknowledg- ment of the parents in 1776. In the case of Rice et als. vs. Efford et als., 3 H. & M., 225, decided November 16, 1808, it was held : An illegitimate child, born before the 1st of January, 1787, of parents who inter- married also before that period (the father, who died in 1799, having recognized the child by his will as his own, though born before wedlock), is entitled to an equal distribution of the father's unbequeathed estate with his other children born after the marriage. In the case of Ash vs. Way's Administrators et als., 2 Grat.,. 203, decided July, 1845, it was held : A bastard marries, and dies, leaving a legitimate child; and then the parents of the bastard marry. The father of the bastard, before the father's- marriage, and in the lifetime of the bastard, recognized her as his child, and so recognizes her after his marriage, which is after her death. Held : The child of the bastard may inherit through his mother from her father. For the reference to 15 Grat., 588, see the case.of Bennett et als. vs. Toler, supra, Section 2552. CITATIONS TO THE CODE OF VIKGINIA. 331 SECTION 2554. In the case of Heckert et als. vs. Hile's Administrator et als. y 18 Southeastern Reporter, 841, decided January 11, 1894, it was held : Under Code of 1887, this section, declaring that the issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate, children by the second marriage of a man whose wife had left him and gone to another State are legitimate, though born before the first marriage was dis- solved. SECTION 2556. In the case of Browne et als. vs. Turberville et als., 2 Call, 390 (2d edition, 329), decided October 24, 1800. W., of full age, died intestate, without issue and unmarried, seised and pos- sessed of an estate partly derived by devise from his father, G. W., and partly by descent from his brother, R. W., leaving an uncle and three cousins, children of a deceased uncle of the whole-blood on the mother's side, and an uncle of the half-blood, likewise on the mother's side, and leaving also two relations on the father's side. The estates were ordered to be divided into two moieties, of which one was to be divided between the two relations on the father's side, and the other moiety was to be allotted those on the mother's side, as follows, to-wit : two-fifths to the uncle of the whole-blood ; two-fifths to the three cousins, and one-fifth to the uncle of the half-blood. In the case of Tomlinson et als. vs. Dillard, 3 Call, 106 (2d edition, 93), decided November 13, 1801, it was held: By the act of 1792, the personal estate is distributable among the per- sons entitled to the real; and therefore, the mother of a deceased infant is not entitled to any part of his personal property de- rived from the father. In the case of Dillard vs. Tomlinson et als., 1 Munf., 183, decided April, 1810, it was held : It is now settled that the mother of an infant who died intestate between the 1st of Octo- ber, 1793 (when the suspended acts of 1792 took effect), and the 22d of January, 1802 (when the act concerning the distribution of unbequeathed personal estate was passed), or any of her issue, by a person other than the father, was not entitled to any part of such infant's personal estate derived immediately from the father. But the law was otherwise relative to the property of an infant who died intestate between the 1st of January, 1787 (when the act of 1785 took effect), and the 1st of October, 1793, the distribution during that interval being regulated by the acts of 1781, Code 60 and 61. Neither was the mother or her issue, as above mentioned, excluded, where the property wus derived not iramediatel}', but by intervening succession, from the father. In the case of Steptoe's Executor vs. Steptoe et als., 1 Munf., 332 CITATIONS TO THE CODE OF VIRGINIA. 339, decided October 8, 1810, it was held: Where an infant having title to real estate of inheritance, derived by purchase or descent immediately from the father, dies without issue, and with no brother or sister, or descendant of either, the father being dead, but the mother living, the right of inheritance is not in abeyance, but goes in parcenary to the brothers and sisters of the father, or their lineal descendants, and vice versa, such estate being derived immediately from the mother, and she be- ing dead, but the father living, it goes to her brothers and sisters, or their lineal descendants. In the case of Addison and Wife vs. Core's Administrator, 2 Muni., 279, decided May 8, 1811, it was held : The true con- struction of the seventh section of the act " reducing into one the several acts directing the course of descents" as to the case of an infant, is, that if there be no mother, etc., and the estate was derived from the father or mother, the inheritance shall not be divided into moieties, but the whole shall go to the kindred of that parent from whom the estate was derived. And the law was the same as to the distribution of unbequeathed personal estate belonging to infants who died between the 1st of October, 1793, and the 22d of January, 1802. In the case of Liggon vs. Fuqua and Wife, 6 Munf., 281, de- cided February 10, 1819, it was held : Under the fifth section of the Act of Descents of 1792, where an infant died without issue, having title to certain real estate derived by descent immediately from the father, leaving no relations in the paternal line but a grandmother and uncle, the grandmother was not entitled to in- herit any part of such estate, but the paternal uncle was enti- tled to the whole. In the case of Vaughn vs. Jones et als., 23 Grat., 444, de- cided April 25, 1873. The real estate of R., a female infant, is sold under decree of court, and turned over to V., her guardian, upon his giving bond and security for the faithful accounting therefor; in 1862, E. married B., to whom V. paid over the estate upon his giving security to indemnify V., and in 1864 E. died, still under the age of twenty-one years, leaving a child which survived her but a few hours, and her husband who sur- vived the child. Held : The proceeds of the real estate of E. descended as real estate to her child, subject to a life estate in her husband, and upon the death of her child it passed as real estate to the heirs of the child on the part of the mother. SECTION 2557. In the case of Paup's Administrator et als. vs. Mingo et als., 4 Leigh, 163, decided January, 1833, it was held: The executor is not entitled to the surplus of profits, but the same is part of his testator's estate undisposed of by his will, which belongs to his next of kin. CITATIONS TO THE CODE or VIRGINIA. 333 It seems, that since the statute of distributions of 1785, the executor is not, in any case, entitled to the residuum of his tes- tator's personal estate not actually bequeathed away by the will. In the case of JSossieux vs. Aldridges, 5 Leigh, 222, decided April, 1834. B. in his lifetime signs and seals the following in- strument: "Not having made a will so as to dispose of my pro- perty, and two of my sisters having married contrary to my wishes, I wish this instrument to prevent either of their husbands from having one cent of my estate ; say, the husbands of my two sisters, M. and D., nor either of them to have one cent, un- less they survive their husbands, in that case I leave them five hundred dollars each to be paid," etc., on which he endorses "Mem. To prevent Bennet and Burwell Aldridge (the two husbands) from having any part of my estate that each might claim in right of their wives without a will made by me." Held : The instrument is a testamentary paper, but a man cannot dis- inherit his heirs without giving his estate to some one else. The instrument is not a devise and bequest of the testator's estate by implication to his heirs or next of kin, other than the two sisters M. and D. and their husbands. These two sisters are entitled to their shares of his estate un- disposed of by the will. In the case of Templeman vs. fauntleroy, 3 Band., 434, de- cided June, 1825, it was held : It seems that the executor or administrator of a husband who had survived his wife, but had never taken administration on her estate, may sue the guardian of the wife for her estate committed to him. In the case of Wade vs. Boxley, 5 Leigh, 442, decided Novem- ber, 1834. Testator bequeathed slaves to his wife for life, re- mainder to be equally divided between his seven children and their heirs, to them and their heirs forever ; one of the testator's children at the time of his death is a married woman. She dies before the widow, legatee for life, leaving a husband and children surviving her. Held : The daughter took a vested re- mainder in her seventh part of the slaves, which at her death devolved to her husband, not to her children. In the case of Breeding vs. Davis et als., 77 Va., 639 and 650, decided July 26, 1883. Before issue born, husband and wife in her right are jointly seised during their joint lives of a freehold in her fee-simple lands. After issue born alive, in such lands he becomes tenant by the curtesy initiate, and holds an estate therein in his own right, which, after her death, illo vivente, be- comes an estate by the curtesy consummate. By the act of April 4, 1877, the wife's property is her sepa- rate estate, which she may possess, enjoy, and devise as if sole; the husband must unite with her in alienating it, and if he refuse, the court will, if of opinion that her interest will be 334 CITATIONS TO THE CODE OF VIRGINIA. benefited thereby, cause the absolute title to be conveyed. No interest or estate in the wife's lands vests in husband during the coverture. But if after issue born alive lie survive her, he has an estate by the curtesy in the fee-simple lands of which she was seised, but made no alienation during the coverture. The act only protects the estate of the wife during her life, but does not after her death affect the law of succession as to her real or personal property. On April 11, 1877, there descended on E., wife of C., real estate in fee. Issue has been born alive of their marriage. D., a creditor of C., who was a non-resident, levied an attachment on C.'s interest in that real estate, and sale thereof was decreed to pay a debt less than five hundred dollars in amount. Before sale, C. and wife conveyed the real estate to B., who conveyed the same with general warranty and covenant to quiet title, purchase-money withheld until its performance, to M. B. ob- tained an injunction to the sale. Held : 1. The controversy is not concerning the debt of C. to D. The question is: "Where is the title to E.'s land vested?" The title to her land is the issue. The jurisdiction of this court is undoubted. 2. C. has no interest or estate whatever in the land by reason of his marriage with E. The injunction should have been per- petuated. 3. The adjudications in the attachment suit in no way affect E. or her land, she having been no party to that suit. 4. Under the circumstances B. was entitled to bring this suit by reason of his subsisting interest in the subject-matter. In the case of Bernard vs. Hipkins, 6 Call, 101, decided April, 1806, it was held : If the wife renounce the will of her husband, who has a child alive, she is entitled to dower in his slaves and a moiety in his other personal estate in absolute property although he left grandchildren. The word child or children in a will does not extend to grandchildren, unless such intent be clear. In the case of McCargo (Executor of James Callicott} vs. Su- sanna Callicott, 2 Munf., 501, decided October 15, 1811, it was held : When a widow marries again, the slaves which she held for the term of her life as part of the estate of her first hus- band, belong to her second husband and his representatives until her death. In the case of Lightfoot vs. Colgin etux., 5 Munf., 42, decided January 21, 1813, it was held : A deed of trust, if not revokable by the grantor, is not to be considered a will in disguise, on the ground that nearly all his personal estate is thereby conveyed, and that he reserves to himself the possession and control of the property during his life. CITATIONS TO THE CODE OF VIRGINIA. 335 The reference to 5 Munf., 555, is to the opinion of Judge Cabell in the case of Lightfoot vs. Colgin et ux., 5 Munf., 42, quoted supra, which was omitted there by accident, and coin- cides with the'opinions therein stated. In the case of Ruth et als. vs. Owens, 2 Band., 507, decided June, 1824, it was held : Notes to the same amount as legacies specified in the will, and declared by the testator at the time of signing them to be intended to reduce the legacies, are to be regarded as legacies in disguise, and therefore subject to the widow's interest in the personalty, and not as debts due by the testator. In the case of Gentry et als. vs. Bailey, 6 Grat., 594, decided January, 1850, it was held : A conveyance by a husband, by which he parts absolutely with an interest in personal property, though it is not to take effect until his death, and though he re- tains the power to sell and re-invest or account, and also the power to re-appoint among specified objects, is valid to bar the wife of her distributable share therein. SECTION 2559. In the case of Noel vs. Garnet, 4 Call, 92, decided October, 1786, it was held: If the widow does not relinquish the will within the prescribed period, she is barred from dower in the undevised estate. In the case of Blunt vs. Gee, 5 Call, 481, decided October, 1805, it was held: If the widow does not renounce her hus- band's will within one year after his death, she loses her dis- tributive share of the personal estate and is confined to the provisions of the will, but is entitled to her dower in the lands. As to those lying within the State of Virginia, the court of chancery had authority to decree an allotment of her dower; but not as to those lying in another State, without the jurisdic- tion of the court. In the case of Taylor and Wife vs. Brown et als., 2 Leigh, p. 419, decided November, 1830. B. makes a deed of settlement of property upon his wife, and then by will makes a disposition of his property different from that made by deed of settlement, and far less beneficial to the wife, and dies ; the wife takes ad- ministration with the will annexed. Held : 1. The widow may claim under the deed of settlement, without having renounced the provision made for her by the will according to the statute ; 2. The widow taking administration with the will annexed is not an election by her to take under the will, and not to claim under the deed of settlement. In the case of Dupree's Administrator et als. vs. Gary and Wife et alt., 6 Leigh, 36, decided January, 1835. Testator, by 336 CITATIONS TO THE CODE OF VIRGINIA. his will, gives real and personal estate to his wife, and leaves part of his personal estate undisposed of; the wife does not re- nounce, but accepts the provision made for her by the will. Held: She is excluded by the statute, 1 Rev. Code, Chapter 104, from any share of her husband's personal estate undis- posed of by his will. In the case of Kinnaird's Executor, etc., vs. Williams s Ad- ministrator et als., 8 Leigh, 400, decided July, 1836, it was held : A widow cannot effectually renounce the provision made for her by the will of her husband, so as to entitle herself as distributee, but by declaration made within one year after the husband's death, before the General Court, or court having jurisdiction of the probate of the will, or by deed executed in the presence of two or more creditable witnesses. In the case of Cock's Executors et als. vs. Phillips, 12 Leigh, 248, decided April, 1841. A married man dies possessed of personal estate, leaving a will wherein he bequeathes his whole estate to his nephews and nieces, and makes no provision for or mention of his wife. Held: Upon the construction of the statute, 1 Rev. Code, Chapter 104, Sections 26 and 29, that, in order to entitle her to a distributive share of her husband's per- sonal estate, the widow must declare her dissatisfaction with the will and renounce all benefit under the same, within the time and in the manner prescribed by the statute. In the case of ftndley's Executors vs. Findley, 11 Grat., 434, decided July, 1854. By an agreement in contemplation of mar- riage, the intended husband bound his estate to pay to the in- tended wife certain sums of money, if she survived him, which were to be in bar of and in full compensation for her dower. Held : This agreement barred her of her dower in her husband's real estate, but does not deprive her of her distributal share of his personal estate. The husband by his will gave to the wife certain personal estate absolutely, and a tract of land for life, but she, after his death, renounced the will in the mode prescribed by the statute. Held : She is not entitled to take under the will what is thereby given to her. But the property bequeathed to her is to be ap- plied to compensate the legatees who are disappointed by her taking her distributal share of the personal estate. In the case of Nelsons Administrator vs Kownslar's Execu- tor, 79 Va., 468, decided October 6, 1884, it was held : Under Code of 1860 in order that provision for wife in will of husband shall be held to be in lieu of dower, the will must so declare in terms, or the conclusion from the provisions of the will must be as clear and satisfactory to that effect as if it was so expressed. Under Code of 1860 no question of election between dower and provision in lieu thereof arises, unless the intention to bar CITATIONS TO THE CODE OF VIRGINIA. 337 dower is clear. Under Code of 1873, unless the intention plainly appears not to bar dower, the election must be made by the widow between the dower and the provision. When any provi- sion is made for a wife in her husband's will, she may, within one year from the admission of the will to probate, renounce - such provision, and take such share of his personal estate as she would have had if he had died intestate. SECTION 2561. In the case of Sir Jonathan Beckwith vs. Beckwith Butler el als., 1 Wash., 224, decided at the fall term, 1793, it was held : All advancements must be brought into hotchpot in order to en- title the heir or distributee to his share of the estate. The reference to 3 Hand., 117-'20, is to a mere obiter dictum, in the case Hudson et als. vs. Hudson's Executor, as that case went off on the statute of limititations. In the case of Christian and Wife and Another vs. Colem.aris Administrator et als., 3 Leigh, 30, decided May, 1831. A mother tenant for life of lands, gives possession of several par- cels thereof to four of her children respectively, to be cultivated by them for their own use, but makes them no conveyance ; these children hold the respective parcels of land as tenants at the will of their mother till her death, taking the profits to their own use, no rents being rendered or demanded. Held: They are not bound to account for these profits, and bring them into hotchpot, as an advancement, real or personal, in the division and distribution of the mother's estate under the statute. . In the case of Chinn el als. 'vs. Murray et als., 4 Grat., 348, decided January, 1848. A father conveys to a child a tract of land in fee, subject to the father's life estate. In bringing this advancement into hotchpot, on the partition of the father's estate. Quaere : If the advancement is to be valued as at the time of the advancement, or at the death of the father? In the case of Lee's Executors vs. Boak, 11 Grat., 182, decided April, 1854. Testator gives a legacy to his nephew, but directs that he shall account for the amount of certain bonds and re- ceipts of the nephew which the testator had paid off for him as his security. After making his will, testator shortly before his death, and in contemplation of that event, delivers to the nephew the bonds, etc., with the view of it becoming his absolute pro- perty in the event of the testator's death, and for the purpose of discharging the nephew from all accountability for the same as one of his legatees, in his settlement with the executor. Held : The intention of the testator being that the nephew does not account for the moneys paid by the testator for him, the gift of bonds and receipts is not an advancement in satisfaction of the legacy to the nephew. 22 338 CITATIONS TO THE CODE OF VIRGINIA. In the case of Knight et ux. vs. Oliver, 12 Grat., 33, decided January 29, 1855, it was held: Advancements ^ to children are not brought into hotchpot for the benefit of the widow ; she is only entitled to share in the estate of the intestate of which he died possessed. The slaves allotted to the widow are not a part of the distributable surplus to be divided amongst the children at the death of the intestate, and a child refusing to bring his ad- vancements into hotchpot upon the first division, is not thereby precluded from claiming to share in the division of the dower slaves. A child having received advancements, and refusing to share in the first division, but claiming to share in the division of the dower slaves, is to be charged with interest on his advancements, or their value, from the death of the intestate to the date of the division ; and if the principal and interest of his advance- ment exceed the amount received by the other children, he is then to be charged with interest on such excess from that time to the period of the second division. But having elected not to come in on the first division, if his advancements with inter- est thereon were not equal to the shares of the other children, he is not entitled to have the deficiency made up upon the second division. In the case of Gaw vs. Huffman, 12 Grat., 628, decided Sep- tember 11, 1855, it was held : Advancements made by testator in his lifetime are not to be taken into account in fixing the pro- portion of the debts which each devisee is to pay. In the case of Gregory et als. vs. Winston Administrator et als., 23 Grat., 102, decided January, *1873, it was held: J. held an estate for her widowhood in a tract of land, remainder to the children of her husband, two of whom were by her. Her son, E., used her money, with her concurrence, to buy the interest of the remaindermen in the land, and took the conveyances to himself. Upon the evidence in the cause, held : that the money so used by R. was intended as an advancement by his mother to him. In the case of Puryear et als. vs. Cdbell et als., 24 Grat., 260, decided January, 1874. W. died in 1857. By his will he gave his estate to his wife, "W., for her life, to be used and controlled by her at her entire discretion ; but as certain of his children named came of age, or married, she was at liberty to give them, or either of them, as also his daughter Mrs. C., such part of his estate as she could conveniently spare ; she to be the sole judge of it. And at her death he gave his estate among his children named, each of whom was to account for what they had or were to receive. In 1858 W. has a tract of land and a number of slaves divided and valued, to allot a part to each to whom she was authorized to make advancements, and she conveys and delivers one of the parts to each of said children, she being then dead. CITATIONS TO THE CODE OF VIRGINIA. 339 On dividing the estate on the death of W. Held : The advance- ments made to the children in 1858 are to be taken at the val- uation then put upon them, but without interest during W.'s life. The advancement to Mrs. C.'s children is to be valued as at the time it was delivered to the guardian. The slaves in this lot were not then free, and are to be valued at what they are then worth to the children of Mrs. C. The husband of one of the children, having cut timber off of another tract, which he and W. intended should be accounted for, its value is to be charged to him and his wife in the division. In the case of Per singer et als. vs. Simmons et als., 25 Grat., 238, decided June, 1874, it was held : The dower of a widow in the land of her husband is assigned to her ; and upon bill filed the other two-thirds of the land is divided among ten of the twelve heirs, the other two refusing to bring their advancements into hotchpot. Upon the death of the widow, the heirs who re- fuse to come into the first division may come into the division of the dower property. Though there may be cases in which a court of equity would, in her lifetime, decree a division of the property assigned to the widow for dower, in a suit for partition brought during her life, in which some of the children refuse to bring their advance- ments into hotchpot, the decree, though broad enough in its terms to exclude them from any share of the dower lands, will be restricted to their interest in the two-thirds then di- vided, unless the pleadings make a case for the division of the dower land. One of the children who had failed to come into the first division died after the death of the widow, leaving children. Her husband is a proper party plaintiff for a division of the dower land. In the case of Cabells vs. Puryear et als., 27 Grat., 902, de- cided November, 1876. W. in his lifetime made advancements to some of his children. By his will he gave his estate to his widow for her life, and authorized her to make advancements to their children ; and he directed at her death that his estate, includ- ing these advancements, should be equally divided among his children. Mrs. W. did make advancements to all of the children, but to one much less than to the others. She died in February, 1868, but the estate was not ready for a division until October, 1874. Held : Interest should be charged to each legatee on the excess of the advancements made to him or her from the death of Mrs. W. in 1868 until the time of the division in 1874. In the case of Lewis vs. Henry's Executors et als., 28 Grat., 192, decided March, 1877. Testator, by his will, gives land, and stock upon it, to his son H. By the third clause of his 340 CITATIONS TO THE CODE OF VIRGINIA. will he gives to his five daughters, by name, the balance of his land, his daughter M. to account to the rest of his daughters in the sum of three thousand five hundred dollars, and his daughter L. five thousand two hundred dollars, these being the amounts paid for homes for them. By the fourth clause he gives to his son H., and his five daughters, the balance of his personal property, to be equally divided among them. Held : The advancements of M. and L. are only to be brought in the division of the real estate. The personal estate embraced in the fourth clause is to be equally divided among the son H. and the five daughters. In the case of Wafkins et als. vs. Young et als., 31 Grat., 84, decided November, 1878, it was held : If a gift, unexplained in the lifetime of a father, who dies intestate, to one of his children, is to be presumed in law to be an advancement, this presump- tion may be repelled by evidence. Whether a gift by a father in his lifetime to a child is an ab- solute gift or an advancement, depends upon the intention of the father; and his statements or declarations made at the time of the gift are subseqiiently competent evidence to show what was his intention in making the gift. In this case the evidence is conclusive to prove it was an absolute gift and not an ad- vancement. The only issue in the cause being whether the gift of the father was intended to be absolute or an advance- ment, and all the evidence having been taken with reference to that issue, it was proper for the court to decide it without a reference to a commissioner to inquire and report upon the question. In the case of Barrett and Wife vs. Morrises Executor et als., 33 Grat,, 273, decided April, 1880. M. died in 1867, having made large, though unequal, advancements to his four chil- dren. By his will he gave an annuity of two thousand dol- lars to his wife, secured on all his estate, and directed that his real estate should not be sold during her life, and gave some small legacies. He then says : " What shall remain of my estate, after funeral charges, expenses of administration, and debts and bequests shall have been paid and satisfied, I direct to be so divided as that there shall be four shares." Whereof the first, together with thirty-one thousand dollars, he gives to C., and in the same manner to each of the other three children, stating the advancement made to each; and concludes, "shall severally and respectively be equal to one another." Mrs. M. died in 1872, but owing to suits for large debts of uncertain amount sued for and not ascertained until December, 1875, the estate was not ready for division until that time. Held : Interest on the excess of advancements to the children is to be charged to this date. CITATIONS TO THE CODE OF VIEGINIA. 341 In the case of Strother's Administrator et als. vs. Mitchell's Executor et als., 80 Ya., 149, decided January 29, 1885, it was held: Where one in loco parentis gives a legacy as a portion, and afterwards advances in the nature of a portion to the same person, such advancement will be deemed an ademption to the legacy. But where the gift is given before the making of the will, and the will does not charge it as an advancement, the court cannot so charge it in settling the estate. A letter written by a distributee, after assigning his share of the estate, is not admissible as evidence for any purpose in suit to settle the estate. One not a party to the suit is not bound by any proceedings or decrees therein. In the case of Dame's Executor vs. Lloyd, 82 Ya., 859, decided January 26, 1887, it was held: An advancement is the gift, by anticipation, of the whole or part of what it is supposed a child will be entitled to on the death of the giver intestate. In the case of McDearman vs. Hodnett et als., 83 Va., 281, decided April 28, 1887, it was held : A gift unexplained in the lifetime of an intestate father, to one of his children, is prima facie an advancement. His statements at the time, or subse- quently, are competent evidence to show what was his intention. And so such a gift to a son-in-law is prima facie an advance- ment to the daughter. The married woman's act does not affect the question of advancements. The case of McDearman vs. Hodnett, 11 Va. Law Journal, 694, is the same case above quoted from the 83 Ya. In the case of West vs. Jones et als., 85 Ya., 616, decided Jan- uary 10, 1889, it was held : Where three heirs were advanced in slaves in 1855, 1859, and 1861 respectively, it was held proper, in allotting slaves in December, 1864, to equalize an heir who had received none, to allot them as of their value in 1861, the subsequent emancipation causing a loss common to all the heirs. In the case of Dames and Wife vs. Hughes, 86 Ya., 909, de- cided May 8, 1890, it was held : Testator bequeathed two-thirds of his land to his son and executor, and remainder to the chil- dren of his deceased sou. Sale to be at executor's discretion. He kept possession and all profits. The children lived with and served him, with no other compensation than their board. Held : Executor should be charged with rent for the children's portion. In the case of Biedler vs. Biedler, 87 Ya., 300, decided Jan- uary 8, 1891. Where testator devises certain land to his two sons, and directs the residue to be disposed of as the law directs. Held: It was his intention to equalize the two sons with his other children, to whom gifts had been previously made, and 342 CITATIONS TO THE CODE or VIRGINIA. not that the devise should operate as an advancement to be brought into hotchpot under this section. The reference to 4 Grat., 397, is to the same case above cited from 348. TITLE XXXI. CHAPTEE CXIV. SECTION 2562. In the case of Christian's Devisee vs. Christian et als., 6 Munf., 534, decided March 18, 1820, it was held : In decreeing a parti- tion in favor of a plaintiff claiming by equitable title, the court ought not to direct that the holders of the legal title stand seised of the plaintiff's part to his use, but that they convey the same by. deed to him and his heirs. In the case of Weisley vs. Findlay et als., 3 Band., 361, de- cided March, 1825, it was held : The power of a court of equity to grant partitions is not discretionary but ex debito justifies ; and whenever a plaintiff has a right to partition at law, he has the same right in equity. In a suit brought by the purchasers of the interests of devisees for a partition, it is not regular to impeach the conveyances to him, on the ground of fraud or mistake. In the case of Castleman & McCormick vs. Veitch et als., & Band., 598, decided December, 1825, it was held : "Where a di- vision of land is sought, a court of equity has jurisdiction. A claim for a deficiency in the quantity of land sold gives jurisdiction to a court of equity. Where a bill in chancery sets forth various claims, and the defendant files a general demurrer, the demurrer will be overruled if any of the claims be proper for the jurisdiction of a court of equity. In the case of Stuarts 'Heirs, etc. vs. Coalter, 4 Band., 74, decided February, 1826, it was held : The power of a court of equity to decree partition is governed by the same principles which govern cases of partition at law. It may de'cide on the rights of the parties to participate in the division, but not on the simple question of title to the land. In the case of Straughan et als. vs. Wright et als., 4 Band., 493, decided November, 1826, it was held : A bill in equity for partition is a matter of right, if the title of the plaintiff is ad- mitted or clear, but, if that be denied, and it depends on doubt- ful facts, or questions of law, a court of equity will either dis- miss the bill or retain it until the right is decided at law. In the case of Ruffner's vs. Lewis's Executors et als., 7 Leigh, 720, decided July, 1836. P., after taking the oath of insolvency, with the assent of his judgment-creditor, conveys an undi- CITATIONS TO THE CODE or VIRGINIA. 343 vided moiety in the ten acres to L., another creditor of P., in trust that L. shall sue for and recover the moiety and its pro- fits, and after such recovery sell the land, and out of the pro- ceeds of the sale and the profits recovered pay the expenses of suit and the debts secured, and the surplus, if any, to P. ; then a bill in equity is filed in the name of L., the trustee, P., the judgment-debtor and the judgment-creditor, as plaintiffs against defendants, holding adverse possession in the land, and R., to whom the ten acres were conveyed jointly with P., seeking a recovery against the adverse defendants, partition between R. and P., and application of the funds according to the deed to L. Held: Equity has jurisdiction, and should not refuse to enter- tain the bill on the ground of maintenance. In the case of Otley vs. Me Alpines Heirs, 2 Grat., 340, de- cided October, 1845. A tenant by curtesy of lands purchased the reversionary interest of one of three heirs. Another interest is held by infants. Held : That a court of equity will decree a partition of the lands at the suit of the tenant by the curtesy. In the case of Currin etals. vs. Spraull et als., 10 Grat., 145, decided July, 1853, it was held : Upon a bill for a partition of land, if the title of the plaintiffs is doubtful, the court, prior to the act, Code, chapter 124, section 1, p. 526, should have sent the parties to law to try their title. In the case of Custis vs. Snead, 12 Grat., 260, decided March 10, 1855, it was held : Under a bill for partition of land, as a general rule, the share of each parcener should be assigned to him in severalty. And if, from the condition of the subject or the parties, it is proper to pursue a different course, the facts justifying a departure from the rule should, at least when in- fants are concerned, be disclosed by the report, or otherwise ap- pear, to enable the court to judge whether or not their interest will be injuriously affected where the same parties are entitled to lands derived from the father,' and also to lands derived from the mother, and some or all of them are infants ; if these lands are blended in the division, it must appear to the court that the interest of the parties in general will be promoted by this mode of partition, to enable the court to protect the rights of the infants. When the widow of the person who died seised of the lands of which partition is sought is alive and entitled to dower, she should be a party to the suit, and her dower should be assigned to her, and partition made of the residue. And it is error to proceed in her absence, and make partition of the lands subject to her right of dower. In the case of Cox et als. vs. McMullin, 14 Grat., 82, decided September 8, 1857, it was held : In the partition of real estate, each part owner is entitled to have in severalty a part equal to 344 CITATIONS TO THE CODE OF VIRGINIA. his interest in the whole subject, if this is practicable, with due regard to the interest of all concerned. But if such partition cannot be made without impairing the portion of some others, the property may be divided into shares of unequal values, and the inequality may be corrected by a charge of money on the more valuable, in favor of the less valuable portion, or other means recognized in the law of partition. The general rule of partition requires an allotment of the several parcels to the part owners. Yet it may benefit both classes of owners to assign the parcels, or it may benefit one class without injury to the other, to assign rather than to allot, and in either case the commissioners may avoid the risk of an unfortunate allotment by resorting to an assignment. In the case of Early et ux. vs. Friend et als., 16 Grat., 21, de- cided August 28, 1860, it was held : One tenant in common may maintain a suit in equity against his co-tenant who has occupied the whole of the common property, for an account of the rents and profits. Whenever the nature of the property is such as not to admit of its use and occupation by several, and it is used and occu- pied by one only of the tenants in common, or whenever the property, though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than comes to his just share and propor- tion in the meaning of the statute. When the common pro- perty is rented out by one tenant in common, he is accountable to his co-tenants for their share of the rents he has received, and when he occupies and uses the whole property for himself, he is liable to his co-tenants for a reasonable rent for it in the condition it was when he took possession. Interest is to be paid upon the rents found to be due from the tenant in common in possession to his co-tenants. In the case of Graham vs. Pierce, 19 Grat., 28, decided Jan- uary 29, 1869, it was held : Every tenant in common has a right to possess, use, and enjoy the common property, without being accountable to his co-tenants for rents or profits, except under the statute, for so much as he may receive beyond his just share or proportion. Tenants in common are not bound to use the common pro- perty jointly by means of a contract of partnership between them, but may possess, use, and enjoy the common property severally, accounting to their co-tenants for so much of the rents and profits as they may receive beyond their just share and pro- portion. As a general rule, when a tenant in common uses the common property to the exclusion of his co-tenants, or occupies and uses more than his just share or proportion, the best measure of his CITATIONS TO THE CODE OF VIRGINIA. 345 accountability to his co-tenants is their share of a fair rent of the property so occupied and used by him. But there may be peculiar circumstances in a case, making it proper to resort to an account of issues, profits, etc., as a mode of adjustment between the tenants in common. In the case of a tenancy in common in lead mines, an account of issues and profits is the proper mode of adjustment, and in settling the accounts of the operating tenants they should not be charged a certain sum per ton for the ore raised from the mine, or credited with an estimated sum per ton for raising the ore and manufacturing the lead ; but each so operating is to be charged with all his receipts, and credited with all his expenses, on account of the operation of the mine. In such case the operating tenant in common should have a credit in his account for improvements made by him which were necessary to his ope- ration of the mine. A tenant in common, occupying and using the common pro- perty separately, will be responsible to his co-tenants if he wil- fully or by gross negligence has destroyed or wasted the com- mon property. But he cannot be held responsible for such de- struction or waste in a case in which the bill does not charge it. The commissioner for settling the accounts of the parties says in his report, "the complainants will hereafter render an account of a remnant of the business still left in their hands." There are exceptions by both parties to the accounts as stated, but the court overrules them all, confirms the report, and makes a final decree in favor of the defendant. It being not probable that the further account referred to by the commissioner will lessen the amount due the defendant, if there be no other error, the appellate court may amend the decree by providing for the further account and affirm it. In the case of Howery vs. Helms et als., 20 Grat., 1, decided September, 1870, it was held : In a suit for partition the court has no authority to order a sale of the land, unless it is made to appear by an inquiry before a commissioner, or otherwise, that partition cannot be made in some of the modes provided by the second and third sections of Chapter 128 of the Code. But when it did not so appear, and no such inquiry was asked in the court below, a party who promoted the suit and at whose in- stance the decree was made, will not be allowed to raise the ob- jection for the first time in the appellate court. In the case of Frazier vs. Frazier, 26 Grat., 500, decided Sep- tember 23, 1875. F. and K. owned one-half of two tracts of land, one in Bath county called the Bath Alum, and the other in Rock- bridge county called the Eockbridge Alum. The other half of these tracts was owned by J., an infant aged seventeen years, sub- ject to his mother's dower, and she had married P., who became 346 CITATIONS TO THE CODE OF VIEGINIA. the guardian of J. F. sold the Bath Alum tract with some fur- niture to B. for thirty thousand dollars in Confederate eight per cent, bonds, subject to the ratification of the court. F. and K. then brought their suit in equity to have the sale ratified, alleg- ing that the property could not be conveniently divided, and that it was for the interest of all parties, including the infant, that the property should be sold. P. and wife and J. answered, concurring in the statements of the bill, and in the prayer that the sale to B. should be confirmed. Three witnesses concur in sustaining the statements of the bill, and that the price is a full price for the land ; and the court confirms the sale. Held : The suit of F. and B. was a suit for partition, and the proceeding having been regular throughout, the fact that the sale was made for Confederate bonds, which have since become worthless, is no ground for setting aside the sale. The fact that the parties owned another tract of land, and that it did not appear that partition in kind of the two tracts could not be made, is not ground for setting aside the sale, the parties not wishing to sell this other tract, which was productive. The fact that the witnesses spoke of the value of the land, not referring to the furniture, which was not worth more than two thousand dollars or twenty-five hundred dollars in Confederate money, but estimating the price to be given as a very full price for the land, is not ground for setting aside the sale, especially as this objection was not made till the court had decreed to dismiss the bill, when it was set up by an amended bill. In the case of Zirkle vs. McCue, 26 Grat., 517, decided Sep- tember 24, 1875, it was held : A guardian of infants may main- tain a suit for partition of real estate held jointly by the infants and other adult parties. In a suit for partition, to authorize the sale under the statutes of lands in which infants have an interest, the case must be one in which partition cannot be con- veniently made, and it must appear that the interests of the parties will be promoted by a sale of the property. It is not necessary that the facts necessary to warrant a decree for sale should appear from the report of commissioners or by the depositions of witnesses. It is sufficient if the facts appear- ing in the record reasonably warrant the decree of sale ; and this especially when the proceeding is to defeat the title of an in- nocent purchaser. In the case of Wright, etc., vs. Strother et als.^smd Wright,, etc., vs. Wright et als., 76 Va., 857. 2. Co-tenants. Partition. Where some of the co-tenants have sold undivided interest in lands and reserved liens for the unpaid purchase-money, the existence of these liens on the undivided shares does not, per se, prevent the division of the common property among the owners. The liens will be CITATIONS TO THE CODE OF VIRGINIA. 347 considered as attaching to the parcels under the partition in severalty. 3. Idem. Rehearing. Reversal. "Where partition has been made among the co-tenants, it will not be disturbed at the in- stance of the lien creditors, unless they show that it is unequal and unfair as respects the security for their debts. In the case of Effinger vs. Hall, 81 Va., 94, decided Novem- ber 19, 1885, it was held: Testator intended to bequeath his property to eight persons or classes enumerated in his will. By manifest mistake the number of parts is styled seven in- stead of eight, and each part is styled one-seventh instead of one-eighth. Equity has power to correct such mistake, and it is its duty to do so. In the case of Davis vs. Tebbs et als., 81 Va., 600, decided April 18, 1886, it was held : The jurisdiction of equity to decree partition of lands, and take cognizance of all questions of law aris- ing therein affecting title, is settled by statute, Code 1873, Chapter 120, Section 1. A bill averring that the plaintiff, under a duly probated will, is entitled to part of tract of land held by defendant owning the other part under the same will, and praying for par- tition, is sufficient, though it fails to aver that defendant pur- chased his part with notice of plaintiff's claim; it sufficiently appearing that defendant was put on inquiry, and being bound to make it, was affected with knowledge of all he might have discovered had he done his duty. In the case of Bradley vs. Zehmer, 82 Va., 685, decided De- cember 16, 1886, it was held : This section authorizes the court, in making partition of land, to take cognizance of all questions of law affecting the legal title that may arise in any proceeding. This doctrine applies to all matters existing at the time of giv- ing the judgment or decree, which the party had opportunity to bring before the court. This is the case cited from 11 Va. Law Journal, 223. In the case of Fry et als. vs. Payne, 82 Va., 759, decided Jan- uary 27, 1887, it was held: In suits for partition, the court has jurisdiction to settle all questions of title arising in the case. In the case of Fry vs. Thomas, 11 Va. Law Journal, 295, de- cided January 27, 1887, it was held: In suit for partition, a court of equity has authority to pass upon all questions of law affecting the legal title that may arise in the proceedings. SECTION 2563. In the case of Wimer et ux. vs. Wimer et als., 82 Va., 890, decided October 8, 1886, it was held : Courts in Virginia have no jurisdiction to partition lands situated in another State, be- cause such right can only be exercised under the lex loci rei sita. 348 CITATIONS TO THE CODE or VIRGINIA. SECTION 2564. In the case of Hinton et als. vs. Bland? s Administrator et als., 81 Va., 588, decided April 18, 1886, it was held: Court of equity hath authority to pass upon all questions necessary to justice between the parties in suits for partition, such as accounts for liens and priorities on the lands to be partitioned. SECTION 2565. In the case of Boiling vs. Teel et als., 76 Va., 487. 2. Coparceners. At common law, coparceners could make partition even by parol. No conveyance is necessary. They are seised of their shares by descent from the common ances- tor, and partition only adjusts their rights. Quaere: Has the rule been changed by statute? 3. Mutual conveyances are necessary to pass title in all cases where partition can only be made by deed, as between joint tenants. SECTION 2566. In the case of Turner vs. Dawson et als., 80 Va., 841, de- cided October 8, 1885, it was held: Where court of equity causes land ,to be sold for partition, it leaves it to the party entitled to the proceeds to designate whether it will hold them as personalty or as realty. And when, for any reason, that party is incapable of making such designation, the court will hold them subject to all the incidents of realty. SECTION 2569. The Code refers to page 13, 6 Call, as an authority on this subject. No such authority exists in 6 Call, save the case of Turpin vs. Locket, page 113, where the question was, had the legislature power to order the glebe lands sold and the money applied to the use of the poor? The court was equally divided in opinion, but held: The court of chancery had jurisdiction in the case, and might have awarded an injunction to prevent the sale. In the case of Smith et als. vs. Smith, etc., 4 Band., 95, de- cided February, 1826, it was held : Tenants in common of per- sonal estate cannot have partition at common law, and, therefore, a court of equity is the proper tribunal to decree a partition of it. TITLE XXXII. CHAPTER CXV. SECTION 2581. In the case of Cooper vs. Saunders, 1 H. & M., 412, decided October 6, 1807, it was held : No appeal lies from an order of a CITATIONS TO THE CODE OF VIRGINIA. 349 county or corporation court for binding out an apprentice, or for rescinding his indentures. It seems that in such case, a writ of certiorari lies from the General Court to bring up the record and correct the proceed- ings. In the case of Pierce vs. Massenburg, 4 Leigh, 493, decided May, 1833, it was held : A father cannot bind his infant child apprentice by indentures to which the child is not a party, and indentures of apprenticeship executed by the father without the child's concurrence are not voidable only, but void. In the case of Brewer vs. Harris et als., 5 Grat., 285, decided October, 1848, it was held : The word month in a statute is a calendar month. The order of the county court directs a bastard child to be bound out by the overseers of the poor. If one overseer of the poor of the county executes the indenture, it is sufficient. The master covenants with the overseers of the poor of the county without naming them, and the indenture is in the name of but one, and he and the master only execute it. The inden- ture is valid. The indenture contains covenants by the master in favor of the mother of the apprentice, and also in favor of the appren- tice, but they are not parties to it. It is nevertheless valid, and the remedies will be adapted to the case. The statute directs that female apprentices shall be bound out until they are eighteen years of age. A binding out until the age of seventeen years is valid. The reference to 5 Grat., 385, is an error. The case referred to is the one above, cited from page 285. SECTION 2585. In the case of Bullock vs. Sebrell, 6 Leigh, 560, decided July, 1835, it was held : Covenant will not lie in the name of appren- tice on an indenture of apprenticeship entered into by the over- seers of the poor without any previous order of court for bind- ing out the apprentice ; such indenture is not a statutory deed, and, therefore, covenant can only be maintained on it in the name of the overseers who are the parties to it. SECTION 2587. In the case of Brewer vs. Harris et als., 5 Grat., 285, decided October, 1848, it was held : The word month in a statute is a calendar month. The order of the county court directs a bastard child to be bound out by the overseers of the poor. If one overseer of the poor of the county executes the indenture, it is sufficient. The master covenants with the overseers of the poor of the 350 CITATIONS TO) THE CODE OF VIRGINIA. county without naming them, and the indenture is in the name of but one, and he and the master only execute it. The inden- ture is valid. The indenture contains covenants by the master in favor of the mother of the apprentice, and also in favor of the appren- tice, but they are not parties to it. It is nevertheless valid, and the remedies will be adapted to the case. The statute directs that female apprentices shall be bound out until they are eighteen years of age. A binding out until the age of seventeen years is valid. SECTION 2592. In the case of Cooper vs. Sounders, 1 H. & M., 412, decided October 6, 1807, it was held : It belongs by law to the county, city, and borough courts of this State exclusively to make orders for binding out poor orphans as apprentices, and to hear and determine in a summary way all complaints of apprentices against their masters, and to make orders for removing them when it shall seem necessary, from which orders no appeal lies. CHAPTEE CXYL SECTION 2597. In the case of Kevanvs. Waller, 11 Leigh, 414, decided Novem- ber, 1840. Testator bequeathes his infant son fifteen thousand dollars, to be invested in bank stock, or such other stock as his executors shall think more profitable, and from the proceeds or dividends to educate him in the best manner under the direction of his executors, and the surplus, if any, to be vested in like manner ; and appoints two executors. Held : This was not an appointment of the executors as testamentary guardians of the in- fant son. If two persons be appointed testamentary guardians, the office is joint and several, and either may qualify without the other, and without summoning the other to accept or re- nounce the guardianship. SECTION 2599. In the case of Durrett vs. Dams (Guardian) et als., 24 Grat., 302, decided January 28, 1874, it was held, p. 315 : A court of chancery may appoint a guardian in the first instance, as well as remove and re-appoint where a guardian has been previously appointed. SECTION 2600. In the case of Ham vs. Ham, 15 Grat., 74, decided January 1859, it was held : A county court having regularly appointed a guardian for an infant under fourteen years of age, the infant, CITATIONS TO THE CODE OF VIRGINIA. 351 after he attains that age, has not the right at his mere election to have his guardian thus appointed displaced, and a new one of his own nomination substituted. SECTION 2601. In the case of Call vs. Ruffin, 1 Call, 333, decided May 5, 1798, it was held : A guardian's bond is sufficiently accurate, though the condition does not state the appointment of a guar- dian. One guardian's bond may be taken for two orphans. In the case of Page {Administrator of Nelson) vs. Taylor <& Thornton, 2 Munf., 492, decided November 21, 1811, it was held : The taking a guardian's bond is not a ministerial, but a judicial, act imposed by law on the court, which (and not its clerk) is to judge of the sufficiency or insufficiency of the se- curity offered. In the case of Austin vs. Richardson, 1 Grat., 310, decided December, 1844. The justices of the county court appoint a guardian, and take from him and his sureties a defective bond, so that the sureties are released from all liability for the default of the guardian. Held : Equity has no jurisdiction to enforce the liability imposed upon the justices by statute, and this, whether they are sued alone or are joined in a suit against the guardian for the settlement of his guardianship accounts. In a suit against the guardian, the surviving justices, and the representatives of a deceased justice, the surviving justices answer, but the bill is taken for confessed against the represen- tative of the deceased justice. Held : The court not having juris- diction of the cause as against the justices and their represen- tatives, the bill should be dismissed as against the representa- tive of the deceased justice as well as of the surviving justices. SECTION 2603. In the case of Ross vs. Gill et ux., 1 Wash., 87, decided at the spring term, 1792, it was held: There is no doubt but that a guardian may lease the lands of the ward during infancy, if the guardianship so long continue. The reservation of the rent to the infant was proper. In the case of Ross vs. Gill et ux., 4 Call, 250, decided April, 1794, it was held : Guardian appointed by the court continues to the infant's age of twenty-one unless it be revoked. In the case of Truss vs. Old, 6 Rand., 556, decided Novem- ber, 1828, it was held : Possession is indispensably necessary to support trespass quaere clausam fregit. Guardians in socage and testamentary guardians (although they have no beneficial interest) have a legal interest and the possession of the ward's land during the guardianship. If, therefore, a person trespass on the lands of an infant, and cut 352 CITATIONS TO THE CODE OF VIRGINIA. and carry away his trees without the license of the guardian, the ward cannot maintain trespass, but the guardian may and must account to the ward for the damages recovered. If the trees are cut and carried away by permission of the guardian, no trespass is committed, and the infant, even after the guardianship has ceased, cannot maintain trespass for the act. The wrong must be compensated to the ward by the guar- dian. It seems that if timber trees growing on the inheritance of the ward are thrown down by tempest or otherwise, they be- come personal property, and the guardian has a legal right to sell them as being perishable, and of no value except as a subject of sale, and in such case the infant cannot bring trover for them. In the case of The Bank of Virginia vs. (Jraig, 6 Leigh, 399, decided May, 1835, it was held: Bank stock standing in the name of F., guardian of C., may be sold and transferred by the guardian, and the officers of the bank have no right to control or prevent him from transferring it on their transfer book. A guardian has the like power to sell the personal estate of his ward which an executor has to sell the assets of his testator. In the case of Armstrong's Heirs vs. Walk up et als., 9 Grat. y 372, decided September 3, 1852, it was held: A guardian of in- fants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it y and in fact kept no accounts against them. A payment made to the husband of one of three wards, who is the guardian of another of them, though intended to be a payment to all of them, is not to be credited against the third ward, who is then an adult, she not having authorized him to receive it, but it is to be credited against the husband and wife and his ward. The accounts of the three wards should be stated separately from the commencement, or at least from the time when their expenses differed in amount. In the case of Hunter vs. Lawrence's Administrator et als., 11 Grat., Ill, decided April, 1854. A bond executed to an execu- tor is transferred by him to a guardian as a part of the ward's estate. Whatever interest the ward has in the bond is subject to the control of the guardian, who may receive the money due thereon if voluntarily paid ; may sue for it in a common law court in the name of the executor, for his own use as guardian, and cannot be prevented by the executor ; or he may sell and transfer the bond. As a general rule, a guardian has the legal title of the ward's personal estate, and has the power and authority to sell it. A guardian violates his trust when he sells or transfers the property of his ward to pay his own debt. CITATIONS TO THE CODE OF VIRGINIA. 353 The fraud of a guardian in disposing of the property of his ward is not sufficient of itself, under all circumstances, to inval- idate his transactions with innocent parties. A bond executed to an executor is transferred by him to the guardian as part of the ward's estate ; the guardian is himself a legatee for a large amount of the same testator, and is guardian of another legatee ; and he receives the amount of those legacies from the executor in bonds and other evidences of debt. Upon the marriage of the last-mentioned legatee, he transfers to her husband the bond belonging to the first-named ward in part discharge of her legacy, he being at the time in good circum- stances, and his sureties as guardian being wealthy. The hus- band takes the bond at par, without knowing or suspecting that it is the property of the first-named ward ; and takes it without a hope of gain or fear of loss, but simply as a mode of payment convenient to both parties. Tears afterwards the guardian be- comes insolvent by the failure of speculations in which he is then engaged. Held: The husband who received the bond is not responsible to the ward whose property it was for the amount thereof. The principle upon which a party dealing with a fiduciary is held responsible is, that he has co-operated in the fraud of the fiduciary. A guardian qualifies in 1821. In 1825 he transfers a bond of his ward to a party wholly innocent of any participation in the guardian's fraud, in payment of a debt. The ward comes of age in 1832, and takes no steps to obtain his estate from his guardian until 1840, when the guardian becomes insolvent. He then sues the sureties of the guardian, and recovers from them the amount due to him from his guardian. In all this time the sureties had done nothing to secure the faithful discharge of his duties by the guardian, or to compel him to pay over to the ward his estate after he became of age. Held: That even if the party who had received the bond from the guardian could be held responsible to the ward, he is not responsible to the sureties. In the case of Barnum et als. vs. frosts Administrator et als., 17 Grat., 398, decided April 30, 1867, it was held : A guardian is not personally responsible for the support and education of his wards, unless he consents to become bound for them. A guardian placing his ward with a third person to be sup- ported and educated, though he may undertake to pay the ward's expenses, does not thereby relieve the ward's estate, but the person with whom the ward has been placed may proceed in equity to subject the profits of the ward's estate to the pay- ment of her expenses. Bonds executed by the guardian as guardian, showing on their face that they are given for the 23 354 CITATIONS TO THE CODE OF VIRGINIA. ward's expenses, and which at the time he promises to pay out of the profits of the ward's estate as soon as he can collect them, will not relieve the ward's estate from liability for these expenses. If the condition of the guardian's bond is as pre- scribed by the statute, and the guardian wastes the profits of the ward's estate, a creditor for the support of the ward, though she has taken the bonds of the guardian for the same, not thereby intending to release the ward's estate, may proceed in equity against the guardian and his sureties, and subject them to the payment of the amount due her. The condition of the guardian's bond is to pay and deliver to the ward her estate when thereto required by the justices. A creditor for neces- saries furnished to the ward may be substituted to the rights of the ward upon the bond, against the guardian and his sureties, for the payment of her debt. In the case of Oo/eevs. Black, 82 Va., 567, decided November 18, 1866, it was held : When a person entitled to, but not having the custody of an infant, is claiming to recover it, the court will exercise its discretion according to the facts, consulting infant's wishes if of years of discretion, and if not, exercising its own judgment as to what will be best calculated to promote the in- fant's welfare, having due regard to the legal rights of the claimant. A parent may transfer to another the custody of his child, and the court will not pronounce that custody an illegal restraint which is held under fair agreement, and is not injurious to the child. A case where at the death of its mother the father transferred his daughter, three years old, to her mother's sister, who reared her properly and made her happy, and was desirous and able to continue so to do, and the child was loth to leave her aunt. After several years the father, by writ of habeas corpus, sought to recover the custody. It appeared that the change was calcu- lated not to promote the child's welfare. On appeal, Held : Under the circumstances the situation of the child should not be changed, and the writ should be denied. This is the case cited as 11 Va. Law Journal, 103. SECTION 2604. In the case of Hooper vs. Eoyster, 1 Munf., 119, decided April, 1810, it was held : A guardian may be allowed for moneys paid and advanced for the clothes, schooling, and other neces- sary expenses of the ward, out of the principal of the ward's estate, if it appear that from extraordinary circumstances such disbursements were unavoidable without culpable neglect on the part of the guardian, otherwise such allowance ought to be made out of the profits only. CITATIONS TO THE CODE OF VIRGINIA. 355 In the case of Myers vs. Wade, 6 Rand., 444, decided May, 1828, it was held : A guardian cannot apply any part of the principal of the infant's estate to his education or maintenance without the previous consent of the court appointing the guar- dian. A parent who is guardian of his children is more .bound than others to a strict observance of this rule, for there is a natural, if not a legal, obligation on all parents to support their children, if of ability to do so. If the expense of maintaining and educating infant wards ex- ceeds their annual income until they become of an age to render service (say fourteen, fifteen, or sixteen years), and if when they arrive at that age their services are equal to their support, the surplus of expenditure during the former period ought to be set off against the income of their estates during the latter period till they arrive at the age of twenty-one. In the cases of Broadus et als. vs. jRosson and Wife et als., Winston vs. Same, 3 Leigh, 12, decided May, 1831, it was held : Though a guardian has no right to expend the principal of his ward's estate, yet if he take up goods for his ward, the merchant who furnishes them is not bound to see that the profits of ward's estate are sufficient to pay for them and that the princi- pal is not applied to pay for them. In the case of Foreman vs. Murray et ux. et als., 1 Leigh, 412, decided March, 1836, it was held : A guardian shall be allowed his disbursements on account of the ward, though they exceed the income of the ward's whole estate in the hands of the guardian and of the administrator of t*he ward's father. In the case of Anderson vs. Thompson, 11 Leigh, 439, decided November, 1840, it was held : A guardian shall not be allowed for his disbursements for the maintenance and education of the ward more than the profits of the ward's estate, and those profits shall be taken exclusive of the increase of slaves belonging to the ward. In the case of Armstrong's Heirs vs. Walkup et als., 9 Grat., 372, decided September 3, 1852, it was held : A guardian of in- fants is entitled to compensation for their support, even though he may have promised their friends that he would not make any charge for it, and in fact kept no accounts against them. A payment made to the husband of one of three wards, who is a guardian of another of them, though intended to be a pay- ment to all, is not to be credited against the third ward, who is then an adult, she not having authorized him to receive it, but it is to be credited against the husband and wife and his ward. The accounts of the three wards should be stated separately from the commencement, or at least from the time their expenses differed in amount. 356 CITATIONS TO THE CODE or VIEGINIA. In the case of Evans vs. Pearce, 15 Grat., 513, decided Jan- uary, 1860, it was held : A father has property of his infant chil- dren in his possession, and during his life does not apply to the court to have any of the profits of that property applied to their support, nor does he make any charge against them during his life. His estate will not be allowed anything for their support without the clearest proof that justice requires it. In such a case the father will be treated as a guardian, and his accounts will be settled on the principles applicable to guar- dians' accounts. In the case of Rinker and Wife vs. Streit, 33 Grat., 663, de- cided September, 1880. The income of the estate of M., the ward, being insufficient for her support and education, her guardian, S., expended the principal of the proceeds of the sale of her real and personal estate upon her, and upon the settle- ment of his account after the termination of his guardianship he was still in advance to his ward. Held : The guardian was not authorized to use the principal of the ward's real estate for the support and education of his ward, and the court of equity settling his account could not render the expenditure valid by its decree. Chapter 123, Section 13, Code of 1873, which authorizes the chancery court in certain cases to allow the application of the real estate to the maintenance and education of a ward, does not authorize the court to sanction such application already made by the guardian ; but the order of the court must be first made by the guardian in order to authorize it. The guardian may apply the principal of the ward's personal estate to her maintenance and education, in a proper case, and if the court would have authorized it upon application to the court before it was done, the court may and will sanction it upon settlement of his accounts. In the case of Gayle vs. Hayes' Administrator, 79 Va., 542, decided August 14, 1884, it was held : What are necessaries for which an infant's estate is liable depend upon his condition and circumstances. In 1871 G. married a widow having a son ten years old, and lived with them on land owned by her as her dower and by son in fee expectant on her decease. Present worth of his interest was only $977.55. He had no personalty. In 1874 he was reasonably well educated. He died in 1878. G. set up against his estate a claim of $799.83 for his maintenance and education during years 1874 to 1878 inclusive. Held: G.'s claim is not sustainable as being for necessaries. Out of annual proceeds of ward's estate his maintenance and education may be provided. To pay expense thereof in excess of annual income, chancery court may order sale of his person- CITATIONS TO THE CODE OF VIRGINIA. 357 alty; but neither ward himself nor his real estate is liable therefor. Not until present statute was passed was it lawful for the court to order application of proceeds of ward's real estate beyond an- nual income to his maintenance and education. And under this section such order must always precede such application. SECTION 2605. In the case of Harkrader vs. Bonhavn, 88 Va., 247, decided July 9, 1891, it was held : Under this section the court must order sale or sanction previous sale of such of ward's personalty as may be necessary to pay proper expenditures beyond income ; but neither ward personally nor his realty are liable therefor. SECTION 2606. In the case of Hooper vs. Royster, 1 Munf., 119, decided April, 1810, it was held: A reasonable time ought to be allowed a guardian to put the money of a ward out at interest, and in this case six months were considered as such reasonable time. In the case of Garrett (Executor of A.llen] vs. Carr and Wife of his wards and does not invest it, but retains it in his own hands, is to be charged interest thereon from the date of its receipt, and not from the end of the thirty days allowed by the statute to the guardian to make investments. A guardian receiving from the administrator of the father of his ward his own bonds bearing 12 per cent, interest as a part of the ward's estate, and not investing the same, is to be charged the same rate of interest upon it to the termination of his guar- dianship. In the stating of a guardian's account, his commissions on the money received by him should be credited at the time of the re- ceipt of the money, and interest only charged on the balance. SECTION 2609. In the case of Lemon (Guardian] vs. Hansbarger, 6 Grat., 301, decided July, 1849, it was held : A second guardian of an infant has no authority to file a bill in his own name, against a former guardian, for an account of his transactions in relation to the ward's estate. An infant may by his next friend call the acting guardian, or any preceding guardian, to account by a bill in chancery ; but the bill must be in his own name by his next friend. In the case of Snaveley vs. Harkrader et als., 29 Grat., 112, decided September, 1877. Infants by their next friend file their bill against their guardian, first to discharge and falsify the set- tled account of their guardian and to have him removed; and second, to have a sale of their lands. The guardian demurs to the bill on the ground that it is multifarious. Held : That, as the court cannot sell the infants' land on a bill filed by them, and no- relief on that part of the bill can be given, the court will con- sider the case as if that part of the bill was not in it ; and the de- murrer was properly overruled. Pending the case some of the plaintiffs came of age, and they all unite in an amended bill asking the same relief against the guardian; and the plaintiffs who have come of age ask for a partition of the land and the sale of it, on the ground that it cannot be divided in kind without injury to all. The guardian demurs to the amended bill on the same ground. Held : The court cannot decree a partition and sale of the land on this bill, and, therefore, it will be treated as if this part of the bill was not in it ; and the demurrer was properly overruled. Pending the suit all the plaintiffs go off to their relations in the State of Illinois, and one of them qualifies in that State as guardian of the infants, and they then amend their bill, stating these facts and filing a copy of the guardian's bond, and asking that their property may be turned over to their Illinois guar- dian. The account of the guardian having been settled, show- 360 CITATIONS TO THE CODE OF VIRGINIA. ing the amount due to each of his wards, the cause came on to be heard, when the court made a decree moving the first guardian, and that he should pay over to the Illinois guardian the amounts severally reported to be due to his wards. Held: Upon the large discretion vested in the courts in the appointment and re- moval of guardians, and the circumstances in this case as de- veloped by the evidence, the court did not err in removing the guardian. It was error to decree the payment of the money of the wards to the Illinois guardian without proceeding in the mode prescribed by the statute, Code of 1873, Chapter 125, Section 5. The Illinois guardian may file his petition in this cause for the removal of the personal property of his wards, and the pro- ceedings prescribed by said statute may be had therein. The sale or partition of lands of the infants cannot be made in this case, but the proceeding to effect this object must be as prescribed by the statute, Code of 1873, Chapter 124, Sec- tions 2 to 8. In the case of Rinker and Wife vs. Streit, 33 Grat., 663, de- cided September, 1880, it was held: Chapter 123, Section 13, Code of 1873, which authorizes the chancery court in certain cases to allow the application of the real estate to the mainte- nance and education of a ward, does not authorize the court to sanction it upon settlement of his accounts. In the case of Gayle vs. Haye's Administrators, 79 Va., 542, decided August 14, 1884, it was held: Not until the present statute was passed was it lawful for the court to order application of proceeds of ward's real estate, beyond annual income, to his maintenance and education, and under that act such order must always precede such application. In the case of Cummings vs. Simpson, 11 Va. Law Journal, 462, decided January 6, 1887, it was held : A guardian cannot expend, for the maintenance or education of his ward, his real estate or the proceeds thereof in the guardian's hands, stamped with the character of realty, in excess of the annual income from the same, without first obtaining from the circuit court having jurisdiction in the premises an order authorizing such expendi- ture as provided for in said section. In the case of Harkrader vs. Bonham, 88 Va., 247, decided July 9, 1891, it was held : Under this section the chancery court may order sale of ward's realty when it appears that his proper maintenance and education, or other interests require the pro- ceeds beyond the annual income thereof, to be applied for his use ; but if, when the court is called upon to confirm such sale, the necessity therefor, which seemed to exist when the sale was ordered, shall have ceased, it is proper that the court should re- fuse to confirm the sale. CITATIONS TO THE CODE OF VIRGINIA. 361 SECTION 2610. In the case of Latham^ by, etc., vs. Latham, 30 Grat., 307, de- cided July, 1878, it was held : The father is the legal custodian of the minor children, and they will not be taken from his cus- tody without the strongest reasons therefor ; and this right is not affected by the voluntary separation of the parties. Notice is given to take depositions at two distant places on the same day. The other party may attend at one of the places, and object to the depositions taken at the other place for want of notice ; but if he attends by his counsel at both places, he cannot except to the depositions taken at either or at both places. SECTION 2614. In the case of Stewart vs. Crdbbins (Guardian], 6 Munf., 280, decided February 10, 1819, it was held: An action ibr an assault and battery committed on an infant ought not to be brought in the name of the guardian of such infant, but in the name of such infant by his or her guardian or next friend ; an error in this respect before January 1, 1820, was fatal, even after general verdict for the plaintiff. In the case of Burwell et als. vs. Corbin et als., 1 Hand., 131, decided April, 1822, it was held : A man who is made &prochein ami to an infant without his knowledge or consent is not dis- qualified from being a witness; but qucere, what shall amount to a recognition by such prochein ami that his name was pro- perly used? In the case of Lemon (Guardian) vs. Hansbarger, 6 Grat., 301, decided July, 1849, it was held : An infant may, by his next friend, call the acting guardian, or any preceding guardian to account by a bill in chancery ; but the bill must be in his own name by his next friend. TITLE XXXIII. CHAPTEE CXVIL SECTION 2616. In the case of Garland vs. Loving, 1 Rand., 396, here referred to, there is nothing which can be used as a guide in this work. In the case of Pierce 's Administrator, etc., vs. Trigg's Ileirs, 10 Leigh, 406 (2d edition, 423), decided July, 1839, it was held : Where land is purchased by partners for partnership purposes with partnership funds, and is used as a part of the stock in trade, a court of equity deems such land partnership's property; and though, if the conveyance has been made to both parties, there will, upon the death of one, pass to his heirs a legal title, 362 CITATIONS TO THE CODE or VIRGINIA. yet the whole beneficial interest devolves upon the survivor, and he may sue the heirs, compel a sale, and dispose of the pro- ceeds as he would of the personal estate of the firm. In the case of Talley et als. vs. Stark's Administratrix et als., 6 Grat., 339, decided October, 1849. Testator says : " Believ- ing that a sale of my property at this time would be ruinous to the general interest of my wife and our children, my will and de- sire is that all my estate (after payment of my debts as provided for) be kept together until my youngest child becomes of age ; to be controlled and managed by my executors and my wife with their best discretion, so as to make it productive of the greatest amount of profit for the support of my wife and children." Held : That a court of equity may direct a sale of the real estate if it is for the benefit of the infant children, and those who are of age consent. In a suit in equity by the guardian of infants for the sale of their real estate, a guardian for the infants ad litem may be ap- pointed at rules. It is not necessary in the decree for the sale of the land to direct that the guardian shall give security, under Section 20 of the act, 1 Eev. Code, Chapter 108, pages 408-'10. The decree directing the sale to be made on the premises, the commissioner acts irregularly in making it at a different place ; especially after advertising that it was to be made on the premises. He should report to the court that it could not be made there for want of bidders, and obtain instructions for his future action. A sale having thus been irregularly made, as the purchasers could not enforce their contracts if resisted by the parties in the cause, they ought not to be compelled to per- fect them if they object. The appellate court having set aside certain parcels of the land at the instance of the purchasers, who were the appel- lants in the cause, and the ground of the objection to the sale being such as the infant parties may make to all the sales, the court will set aside the whole decree confirming the sale of all the parcels, and though the other purchasers are satisfied with their purchases, and are not parties to the appeal ; and will send the cause back for the court below to determine whether these last-mentioned sales ought to be set aside, or confirmed with the consent of the purchasers, and for the benefit of the infant defendants. In the case of Cooper vs. Hepburn, 15 Grat., 551, decided May 15, 1860, it was. held: H. devises real estate to M. during his. natural life, and to his children if he should have lawful issue ; if not, then at his decease to H.'s grandchildren. At the death of M., H. is not married, but he afterwards marries and haa lawful children. Upon the birth of the first child of M. the remainder vests in the child, subject to open and let in the after- CITATIONS TO THE CODE OF VIRGINIA. 363 born children as they severally come into being; and the re- mainder in favor of the grandchildren was defeated, and there- fore the grandchildren were not necessary parties to a suit by the guardian of M.'s children for a sale of the real estate. M., as guardian of his infant children, files a bill for the sale of the real estate held by himself for life and by his children in remainder, and it is sold accordingly. This is authorized by the statute. In the case of Faulkner et als, vs. Davis et als., 18 Grat., 651, decided April, 1868, it was held : A court of equity will enjoin a sale under a deed of trust given to secure the purchase-money of land where there is a cloud upon the title which would occa- sion a sacrifice at such a sale. It seems that in Virginia a court of equity has not authority, under its general jurisdiction as guardians of infants, to sell their real estate whenever it is for the advantage of the infants to do so. The statutes in relation to the sale of infants' lands are remedial in their nature, and should be construed liber- ally. By the act of February 18, 1853, Session Acts, Chapter 34, p. 39, and the previous acts on the subject, courts of equity had authority to sell the lauds in which the infants had an interest, whether in possession or remainder, vested or contingent, if the proper parties should be brought before the courts. Two vacant lots in the city of Richmond are conveyed to trustees in trust for N. and his wife, L., and the survivor of them for life, and at the death of the survivor to be conveyed by the trustees to the children of N. and his wife, who should be living at the death of the survivor, and the descendants of such of the children as would be then dead leaving decendants ; and upon the further trust, that if N. should think it expedient to sell the lots, or any part of them, the trustees should permit him to do so, the proceeds of sale to be secured and held upon the same trusts. N. dies without selling the lots, leaving his wife and five chil- dren surviving him. The trust to sell continues, and a court of equity may execute it. Upon a bill filed by the widow of N. against the children and trustees for the sale of the lots, the court may decree a sale, and the descendants of any child dying in the lifetime of the widow will be bound by the decree, the parties before the court representing any such descendants who may become entitled under the trusts of the deed. Although the bill was prepared with reference to the sale of the land of infants under the statute, yet all the facts having been stated in it, and all the proceedings having been regularly conducted, it was competent for the court to make a decree therein for the sale of the property, if upon these facts, upon 364 CITATIONS TO THE CODE OF VIRGINIA. any ground whatever, the court of chancery had authority to make such a decree. See the case of Snaveley vs. Harkrader, 29 Grat., 112, quoted supra, Section 2609. In the case of Quisenberry et als. vs. Barbour, 31 Grat., 491, decided January, 1879. F. conveys land to Q. in trust for J., the daughter of F. and wife of Q., for her life, and then toh er children. Afterwards J. and her children, who are infants un- der fourteen years of age, by their next friend tile their bill against Q., the trustee, for the sale of the land, and there is a decree for the sale, and a sale made more than six months after the decree, and this sale is confirmed and a conveyance made to the purchaser. In an action of ejectment by the children of J. after her death to recover the land from a vendee of the pur- chaser. Held: The court having had jurisdiction of the case under the statute, the validity and propriety of the decree for the sale of the land cannot be questioned in a collateral pro- ceeding. The sale having been made more than six months after the decree for the sale, the sale cannot be set aside, even if the de- cree was erroneous. The facts that the infants were plaintiffs with their mother instead of being made defendants, is no objection to the pro- ceeding in the suit for a sale of the land. In the case of Palmer et als. vs. Garland's Committee et als., 81 Va., 444, decided February 11, 1886. H., committee of G., a female lunatic, institutes a suit under Code 1873, Chapter 124, to sell her contingent estate in lands, and conducts it in the proper manner, and against the proper parties, and adduces the proper evidence, in every respect in accordance with the requirements of the statute, and in his bill he presents the bids of certain par- ties who already owned other contingent interest in the same lands. The court deeming that the interest of the lunatic will be promoted, and the rights of no one violated by the sale of her said contingent estate, decrees that the proposed sale be confirmed at the said bids, and the said estate of the lunatic therein be conveyed to the said bidders. Held : The sale is lawful. SECTION 2618. In the case of Garland vs. Loving, 1 Kand., 396, here referred to, there is nothing which can be of use in a work of this char- acter. In the case of Talley et als. vs. Starke's Administratrix et als., 6 Grat., 339, decided October, 1849, it was held: In a suit in equity by the guardian of infants for the sale of their real estate, a guardian ad litem for the infants may be appointed at rules. In the case of Swing's Administrator et als. vs. Ferguson's CITATIONS TO THE CODE OF VIRGINIA. 365 Administrator et als., 33 Grat., 548, decided September, 1880, it was held : The heirs of E. being infants, though their guar- dian was a party and answered, they were entitled to be de- fended by a guardian ad litem, and although one was appointed for them, and there was a paper purporting to be an answer found among the papers of the case, yet as it did not appear that it had been filed, it was error to decree a sale of the infant's land without an answer filed by the guardian ad litem. SECTION 2620. In the case of Garland vs. Loving, 1 Rand., 396, here referred to, there is nothing to guide one as to the principle on which this section is based. See the case of Faulkner et als. vs. Davis et als., 18 Grat., 651, ante, Section 2616. See the case of Palmer et als., vs. Garland's Committee et als.> 81 Va., 444, cited ante, Section 2616. In the case of Palmer et als. vs. Garland 's Committee et als., 81 Va., 444, decided February 11, 1886. H., committee of G., a female lunatic, institutes a suit under Code 1873, Chapter 124, to sell her contingent estate in lands, and conducts it in the proper manner, and against the proper parties, and adduces the proper evidence, in every respect in accordance with the require- ments of the statute, and in his bill he presents the bids of cer- tain parties who already owned other contingent interest in the same lands. The court deeming that the interest of the lunatic will be promoted, and the rights of no one violated by the sale of her said contingent estate, decrees that the proposed sale be confirmed at the said bids, and the said estate of the lunatic therein be conveyed to the said bidders. Held: The sale is lawful. SECTION 2621. In the case of Redd vs. Jones et als., 30 Grat., 123, decided April 4, 1878, it was held : In a writ by a guardian for the sale of his ward's lands, a decree is made appointing commissioners to sell it, and in October, 1859, they sell the land at public auc- tion, when the guardian becomes the purchaser at a full price, makes the cash payment, and executes his two bonds, with sure- ties, for the deferred payments. All the papers in the case were destroyed by the Union forces during the war, except the order- book of the court, extending from 1858 to 1863, and the two bonds of the purchaser, which were found among the scattered papers in the office. The purchaser goes into possession of the land, which he has held ever since without question. Though the order-book does not contain a decree confirming the sale, yet no question having been made as to the purchaser's title down to 1873, when suit is brought by the commissioner and the 366 CITATIONS TO THE CODE OF VIRGINIA. parties entitled to the proceeds against the purchaser's assignee in bankruptcy, and the sureties of the purchaser to enforce the payment of the purchase-money of the land which had fal- len very nmch in value, the sale will be held to be valid, and the sureties in the bond held liable. SECTION 2622. In the case of Talley et als. vs. Starke's Administratrix et als., 6 Grat., 339, it was held : It is necessary, in the decree for the sale of the land, to direct that the guardian shall give security, under Section 20 of the act, 1 Eev. Code, Chapter 108, pages 409-10. SECTION 2626. In the case of Vaughn vs. Jones et ah., 23 Grat., 444, decided March, 1873. The real estate of E., a female infant, is sold under decrees of court and turned over to V., her guardian, upon his giving bond and security for the faithful accounting therefor. In 1862 R. married B., to whom Y. paid over the estate upon his giving security to indemnify V. ; and in 1864 R. died, still under the age of twenty-one years, leaving a child which survived her but a few hours, and her husband who survived the child. Held: The proceeds of the real estate of R. descended as real estate to her child, subject to a life estate in her husband ; and upon the death of the child it passed as real estate to the heirs of the child on the part of the mother. In the case of Rinker and Wife vs. Streit, 33 Grat., 663, de- cided September, 1880. The income of the estate of M., the ward, being insufficient for her support and education, her guardian, S., expended the principal of the proceeds of the sale of her real and personal estate upon her, and upon the settle- ment of his account after the termination of his guardianship, he was still in advance to his ward. Held : The guardian was not authorized to use the principal of the ward's real estate for the support and education of his ward ; and the court of equity settling his account could not render the expenditure valid by its decree. Chapter 123, Section 13, Code of 1873, which authorizes the chancery court in certain cases to allow the application of the real estate to the maintenance and education of a ward, does not authorize the court to sanction such application already made by the guardian ; but the order of the court must be first made by the guardian in order to authorize it. The guardian may apply the principal of the ward's personal estate to her maintenance and education, in a proper case, and if the court would have authorized it upon application to the court before it was done, the court may and will sanction it upon settlement of his accounts. CITATIONS TO THE CODE OF VIRGINIA. 367 In the case of Hurt vs. Jones and Wife, 75 Va. Reports, 341, decided March 10, 1881, it was held, p. 350-51 : The one-sixth interest of the wife, H., passed by the sale in the suit for parti- tion, and her interest thereto was her share of the purchase- money retained by H. under the decree of the court. Qucere : Whether under the amended act of February 28, 1868, it passes to heir at law ? In the case of Turner vs. Dawson et als., 80 Va., 841, decided October 8, 1885, it was held : Where court of equity causes land to be sold for partition, it leaves it to the party entitled to the proceeds to designate whether it will hold them as person- alty or as realty. And when, for any reason, that party is incap- able of making such designation, the court will hold them sub- ject to all the incidents of realty TITLE XXXIV. CHAPTER CXVIII. SECTION 2629. See the case of Snaveley vs. Harkrader et als., 29 Grat., 112, cited ante, Section 2609. SECTION 2631. See the case of /Snaveley vs. Harkrader et als., 29 Grat., 112, cited ante, Section 2609. In the case of Coltrane vs. Norrell, 30 Grat., 434, decided July, 1878, it was held : The trust deed provides that D. shall have the interest and so much of the principal of the trust fund as shall be necessary for her support. If she dies in the lifetime of her husband she may dispose of the whole of the trust fund by her will, and if she shall survive him it shall be hers abso- lutely. She may have the trust-fund removed to Missouri, and vested in a trustee appointed in that State to receive and hold it on the same trusts. SECTION 2632. In the case of Coltrane vs. Norrell, 30 Grat., 434, it was held, Page 449 : It is too late to object to the transfer of trust funds, on the ground of informality in the proceedings in the appelate court. TITLE XXXV. CHAPTER CXIX. SECTION 2636. In the case of fleming vs. Boiling, 3 Call, 75 (2d edition, 66), decided October 26, 1801. The testator devised that his 368 CITATIONS TO THE CODE OF VIKGINIA. book be given up to A., and that he shall receive all the debts due, and pay all the testator owes. Held : This is an appointment of A. to perform the duties of executor, but does not entitle him to the surplus of the debts due the testator, nor does it discharge him from a debt which he himself owed. In the case of Monroe (Executor of Jones) vs. James, 4 Muni., 194, decided January 20, 1814, it was held : A sale of a slave be- longing to the estate of a testator, by a person named as one of the executors, but who, at the time of such sale, had not quali- fied, and afterwards died without having qualified, by giving bond and security is void against the executor who did qualify, notwithstanding such sale was made for valuable consideration, and at a time when there was no qualified executor. In the case of Mills et als. vs. Mills' Executors, 28 Grat., 442, decided March 22, 1877, it was held, p. 491 : Where two of three executors qualify, they may act, and upon the qualifica- tion of the third he is entitled to act as to the estate not yet administered. SECTION 2637. In the case of Burnley's Administrator vs. Duke et als., 1 Band., 108, decided March, 1822, it was held : Where a testator leaves two wills, one in Virginia and the other in England, the English will being the last in date, and his executor takes out letters of administration on the posterior will in England, this does not ipso facto repeal letters of administration which have been granted in Virginia on the first will ; but the English ex- ecutor must first qualify by giving bond and security as the law directs. In the case of Thompson vs. Meek, 7 Leigh, 419, decided April, 1836. A court of probate receives proof of a will and admits it to record, and six months afterwards grants adminis- tration with the will annexed ; and it does not appear by the record of the court of probate that the executors named in the will had ever renounced. Held : The failure to state such re- nunciation upon the record does not make the grant of adminis- tration absolutely void. In a suit in equity by devisees against an administrator, with the will annexed, and a purchaser from him, the court will pre- sume the grant of administration to be regular, unless its regu- larity be drawn in question by the pleadings. If the grant of administration with the will annexed be alleged to be irregular, upon the ground that the executor had not renounced, the fact of such renunciation may be established by parol evidence. In the case of Gibson vs. Beckham et als., 16 Grat., 321, de- cided November 18, 1862. A will is offered for probate in the proper court, and it is proved by one of three subscribing wit- nesses, which is ordered to be certified. At the next term of CITATIONS TO THE CODE OF VIRGINIA. 369 the court the executors renounce, and the widow relinquishes her right to administer, and administration c. t. a. is com- mitted to G., who executes his official bond, with sureties, in the proper form. Held : The bond is valid, and binds the ad- ministrator and his sureties for his default. When a court has cognizance of the subject-matter, its judg- ment, though it may be erroneous, is not void. It is .binding until it is set aside or reversed, and cannot be questioned inci- dentally; acts done and bonds taken under it bind the ob- ligors. Where a court or officer has authority or capacity to take a bond, and makes a mistake by omitting some condition pre- scribed, or inserting a condition not authorized or illegal, unless the statute, by express words or necessary implication, makes it wholly void, the bond is not void; the good shall not be vitiated by the bad ; and the bond may be sued on, so far as the conditions are good, as a statutory bond. When the court has cognizance of the subject-matter, or ca- pacity to take a bond, and takes a bond which on its face is validbut contains a recital of facts necessary to its validity, as in the cases of the election and induction into office of a sheriff, the presence of the justices named as obligees, and the like, the obligors shall be estopped from denying the truth of such reaitals. SECTION 2639. In the case of Cutchins vs. Wilkinson, 1 Call, 1, decided April 22, 1797. W. died intestate, leaving a widow and three chil- dren ; the children died infants and intestate in the lifetime of their mother; the widow administered on the estate of her hus- band; died, leaving a will appointing executors. Held: The brother of the widow was entitled to the administration de bonis non of the husband in preference to W.'s brother. But, it seems, had the executors of the widow applied, the administration would have been committed to them. In the case of McCandlisfi vs. Hopkins, 6 Call, 208, decided December, 1814, it was held: A creditor since the act of 1792 has no preference over any other person in an application for administration upon an intestate's estate ; but every case must depend upon its own circumstances. Under a power of attorney authorizing a person to execute an administration bond for the person giving the power, the at- torney may be allowed to execute the bond accordingly. In the case of Hendren vs. Colgin, 4 Muni., 231, decided March 12, 1814, it was held : Upon the death of a husband, who survived his wife, and administered upon her estate, his executor (or, it seems, his administrator) is entitled to be ad- ministrator de bonis non of the wife, in preference to her next of 24 370 CITATIONS TO THE CODE OF VIRGINIA. kin. It seems, too, that his executor is entitled, in preference to his residuary legatee. In the case of Bray vs. Dungeon, 6 Munf., 132, decided Feb- ruary 24, 1818, it was held : Where the personal property of the wife is so settled by a deed executed before the marriage, and duly recorded, that upon her dying intestate in her husband's lifetime, the trustee is to convey the same to her legal heirs, her nearest blood relation is, in such event, entitled to the adminis- tration of her estate in preference to her husband. In the case of Cottom vs. Cottom, 4 Rand., 192, decided May, 1826, it was held : Wherefore two successive applications are made to a county court for administration, and rejected, appeals taken to the circuit court from both decisions, and the judg- ments of the county court affirmed; upon an appeal to this court on the second case, the court cannot reverse the first judgment and grant administration. In the case of Commonwealth vs. Hudgin, 2 Leigh, 248, de- cided June, 1830. A resident of Kentucky dies intestate there, having no estate in Virginia, but a claim on this Commonwealth for money. Held : The circuit court of Henrico county, wherein is the seat of government, has jurisdiction to grant administra- tion of such decedent's estate. In the case of Haxall vs. Lee, 2 Leigh, 267, decided June, 1830. A person dies intestate in 1825 ; and in 1830 a distribu- tee and a creditor come, at the same time, to ask administration. Held: The court has no discretion to choose between them, but must prefer the distributee. In the case of Ex Parte Barker, 2 Leigh, 719, decided June, 1830, it was held : Letters of administration granted by a court having no jurisdiction to grant them are merely void ; and the court having competent jurisdiction to grant the administration may proceed to grant it, though the letters of administration before improperly granted have not been revoked. In the case of Ex Parte Lyons, 2 Leigh, 761, decided Novem- ber, 1830, it was held: When administration of a decedent's estate has been duly granted by any court of competent juris- diction, that same court only, upon the death of the adminis- trator, has the jurisdiction to grant administration de lojiis non. In the case of Thornton vs. Winston, 4 Leigh, 152, decided January, 1833. There may be a valid renunciation of the ex- ecutorship of a will, by matter inpais. An executrix declines to qualify as such, and agrees that administration with the will annexed shall be granted to her daughter, reserving her right to qualify after her daughter's death. Held : This renunciation of the executorship is absolute and perpetual, and cannot be re- tracted after the death of the administratrix,.nor does the nomi- nation of the executrix in the will give her any preferable right CITATIONS TO THE CODE OF VIRGINIA. 371 to the administration de bonis non with the will annexed. The person entitled to the estate of a decedent is entitled to the administration. A testator by his will gives personal property to his wife, and she takes the provision made for her by the will. Held : She is entitled to no part of an undisposed of residuum as distributee of her husband, being excluded from distribution by the statute, 1 Rev. Code, Chapter 104, Section 26, and in a contest between the widow and a distributee, for administration with the will annexed, the distributee is entitled to it. In the case of Charles vs. Charles, 8 Grat., 486, decided Jan- uary, 1852, it was held: If the husband had relinquished his marital rights to his wife's property, he is not entitled to ad- ministration upon her estate. SECTION 2641. In the case of Jones vs. Hobson, 2 Hand., 483, decided June 11, 1824, it was held : Where a suit is brought against an exec- utor and his securities, and the executor confesses assets, it is competent for a court of equity to decree immediately against the executor, and that liberty should be reserved to the creditor to proceed against the sureties by motion if it should become necessary. The sureties of an executor are not responsible for the pro- ceeds of land sold by them under the will. The sureties of an executor are not responsible for the acts of his executor in the administration of the estate of the first testator. In the case of Burnett et als. vs. Harwell et als., etc., 3 Leigh, 89, decided October, 1831, it was held : Under the former pro- visions of the statute concerning executors' bonds, the sureties of an executor are not responsible for the proceeds of land sold by him under a power in the testator's will. In such an action the declaration must aver that the assets came to his hands, and the devastavit thereof; and if the declaration contain no such averment, it is bad on general de- murrer ; per Tucker, P. In the case of Morrow's Administrators vs. Peyton's Admin- istrator et als., 8 Leigh, 54, decided February, 1837. "Where two administrators execute a joint administration bond, each is a surety for the other; and if one commit a devastavit the other is chargeable, but only as surety, and pari passu with the other sureties in the bond; dissentient Brook, J., who held that for a devastavit by one administrator the other is not re- sponsible, either as principal or surety. Where the estate of one decedent is indebted to that of the other, and the same person is administrator of both, and wastes assets of the debtor's estate which he was bound, but has failed, to pay over to the creditor's estate, the sureties for his due ad- 372 CITATIONS TO THE CODE OF VIRGINIA. ministration of the creditor's estate are liable for such default and devastavit. After the death of an executor who had qualified as such, the court grants administration of the testator's unadministered estate, but the bond taken from the administrator is in the form of a bond for administration de bonis non of an intestate, not in the form of a bond for administration de bonis non with the will annexed of a testator. Held : The bond is void. An administrator makes a verbal promise to the agent em- ployed to collect a debt from the estate, that if he will pay the amount to his principal, the administrator will repay it to him with interest ; the agent accordingly pays his principal the debt, and the administrator afterwards refunds to the agent the sum paid with interest. Held : The payment by the agent was pay- ment by the administrator, for which he is entitled to credit at the date thereof, whatever be the time at which the amount was paid to the agent. In the case of BoycPs Executor vs. Boyd's Heirs, 3 Grat., 113, decided July, 1846, it was held : Co-executors joining in the same executorial bond are sureties for each other. In the case of Atkinson vs. Christian, 3 Grat., 449, decided January, 1847, it was held : By the statute it was intended that the court granting administration on an estate, or admitting an executor to qualify as such, should have a discretion in regard to the amount of the security. And the general rule of practice requiring security in double the estimated value of the estate is a proper exercise of that discretion. The other good security authorized to be required is not to be in lieu of, or by way of substitution for, the former security, but in addition thereto. And the former securities are not thereby exonerated. In determining the amount for which the other good security ought to be required, regard ought to be had to the value of the estate remaining unadministered, including any accessions there- to beyond the original estimate thereof, and to the extent of the available security still furnished by the original bond. In the case of Hutcheson, etc., vs. Pigg, 8 Grat., 220, decided October, 1851, it was held: The official bond of an executrix only binding the obligors for the due administration of the per- sonal estate, the sureties are to no extent responsible for rents and profits of the real estate. All the sureties in the official bond of an executrix should be parties to a suit by legatees for distribution, or a sufficient reason should be shown for failing to make them parties, be- fore a decree is made against one of them. In the case of Eeherd et als. vs. Long et als., 77 Va., 839, de- cided October 18, 1883, it was held, p. 845 : In the absence of evi- CITATIONS TO THE CODE OF VIRGINIA. 373 dence directly to the contrary, it must be presumed that the official bond of the executor and his sureties was in the usual form, with a condition "for the faithful discharge by him of the duties of the trust." As the law aforetime stood, when Jones vs. Hobson, 2 Rand., 483, was decided, the sureties could not have been held liable for the land payments collected by the executor, but as the law stood when the bond was executed and stands now, the sureties are liable therefor, and should have not been released. SECTION 2642. In the case of Bryce vs. Stevenson et als., 2 Rand., 438, de- cided May 14, 1824, it was held : When an executor who has been permitted to qualify without security brings a suit in chan- cery to reduce into possession the funds of his testator, the court may, in its discretion, require security before it will lend its aid. In the case of Fairfax vs. Fairfax (Executor), 1 Grat., 36, de- cided May 11, 1850, it was held: To the judgment of a county court refusing to permit a person named as executor in a will to qualify without giving security, an appeal, demandable as of right, lies to the circuit court. A testator appointed his wife and son executrix and execu- tor, and expressed his confidence in them, directing that they should be permitted to qualify without giving security. Some years afterwards he added a codicil, by which he says, " I further appoint J. H. executor to the within will with my wife and son. Held: J. H. is not entitled to qualify without giving security. Qucere : If in such case parol testimony is admissible to show the intention of the testator? SECTION 2645. In the case of Cooke vs. Harrison, 3 Rand., 494, decided October, 1825, it was held : A sheriff, to whom the estate of a decedent is committed, is, to all intents and purposes, an ad- ministrator under the present law, whatever he may have been previously ; and, therefore, is responsible for the due adminis- tration of the estate after his term of office as sheriff expires. AY here the representative of a sheriff is sued on account of an estate committed to his hands, and it appears that his deputy (who is also sued) had the entire management of the estate, the court may decree against the deputy in the first instance, if as- sented to by the plaintiff, reserving liberty to him to resort to the court for ulterior decrees against the other parties ; but if such consent be not given, it is the duty of the court to decree between the defendants in order to throw the burden on the person ultimately liable. 374 CITATIONS TO THE CODE OF VIRGINIA. In the case of Dabney's Administrator vs. Smith's Legatee, 5 Leigh, 13, decided January, 1834. Administration of a de- cedent's estate cum testamento annexo was committed to a sheriff under the statute, and the administration was conducted by his deputy, and, for the most part, after the sheriff's term of office expired. Held: The administration did not devolve on the sheriffs successor, but he was bound to complete it, and he and his official sureties are answerable for his deputies after, as well as before, the expiration of his office. In a suit in chancery by the legatees against the personal representatives of sheriff, of his deputy, and of his official sure- ties, decree first against the representatives of the sheriff and of the deputy for the balance due ; and fi. fa. on the decree returned nulla bona testatoris. Held : No necessity to direct accounts of administration by their representatives, to ascertain whether they have committed a devastavit, before proceeding to decree against the sheriffs sureties. Nor necessary to make the heirs of the sheriff and the deputy sheriff parties to inquire whether any real estate descended to them before proceeding to decree against the sureties. Nor necessary, two of the sureties having died insolvent, to order accounts of administration of their es- tates before decreeing against the solvent sureties. Decree being first against the representatives of the sheriff and his deputy, with liberty to apply to court for decree against the representatives of the sureties, the executor of one of the sureties dies, and then, without reviving the suit against his ad- ministrator de bonis non, notice is given to him of a motion for a decree against him, and upon such notice the decree is made against him. Held : The proceeding is regular. In the case of Douglas (Executor) vs. Stumps et als., 5 Leigh, 392, decided May, 1834. D. is commissioned sheriff of L. county in July, 1805, but receives no commission in 1806 for a second year of shrievalty, and yet continues to act as sheriff for the second year of 1806-'7 ; the estate of a decedent is commit- ted to him by order of court during the second year. Held: The sheriff, though not regularly commissioned, was sheriff until his successor was appointed, and he is responsible for the ad- ministration of the decedent's estate by his deputy. In the case of Mosby (Administrator) et als. vs. Mosby (Ad- ministrator), 9 Grat., 584, decided February 7, 1853, it was held : One of the executors having died, and the other having been removed, and the administration c. t. a. having been committed to the sheriff, he was authorized as such administrator to exe- cute the power and trust, and is, therefore, bound to account for the rents and profits ; the case, though not within the let- ter of the statute, being within its spirit and meaning. The rents and profits of the land having been received by the deputy of the high sheriff, he is responsible for them. CITATIONS TO THE CODE OF VIEGINIA. 375 In the case of Ilutcheson vs. Priddy, 12 Grat., 85, decided February 12, 1855, it was held : If the county court commits an estate to the sheriff for administration before the expiration of three months from the death of the testator or intestate, the act is not void, but voidable. An estate having been committed to the sheriff, the county court cannot grant the administration to a distributee without notice to the sheriff of the application. It is not imperative on the county court to grant administra- tion to a distributee after the estate has been committed to a sheriff; but there is a legal discretion in the court. SECTION 2646. In the case of Dickinson (Administrator, etc.,} vs. McCraw, 4 Band., 158, decided March, 1826, it was held : The certificate of probate, or of administration, granted by a court of this State, and attested by the clerk, will enable the executor or adminis- trator to act, and may be given in evidence in any court of this Commonwealth. SECTION 2647. The reference to 2 H. & M., 361, cannot be ascertained, as the paging of that book is, from 350 to 370, in complete confu- sion, and nothing appears there on this section. In the case of Rogers (Administrator) vs. Chandler (Adminis- trator), 3 Munf., 65, decided January 10, 1811, it was held: Upon issue joined on plea of fully administered, a verdict find- ing in general terms " the issue for the plaintiff, and that assets equal to the claim of the plaintiff came to the hands of the de- fendant," is uncertain and insufficient. It should set forth with sufficient certainty what portion of the assets which came to the defendant's hands was unadministered at the time of suing out the plaintiff's writ. An appraisement of a decedent's estate, though not signed by the executor or administrator, and there- fore not to be received as an inventory, is admissible as prima facie evidence of the value of the estate. In the case of Park's Administrator vs. Rucker, 5 Leigh, 149, decided March, 1834, it was held : An inventory not signed by an administrator is no inventory as to him, and so no ground on which to charge him. SECTION 2648. In the case of Dandridge, etc., vs. Minge, 4 Band., 397, de- cided July, 1826, it was held : It is the duty of an executor or administrator to apply the assets of the estate not necessary for the payment of debts to the exoneration of the real estate of his testator or intestate which may be under mortgage. In the case of Coleman (Administrator de bonis non Wernick) 376 CITATIONS TO THE CODE or VIRGINIA. vs. McMurdo & Prentis, 5 Band., 51, decided March, 1827, it was held : An administrator de bonis non cannot sue the repre- sentative of a former executor or administrator, either at law or in eqiiity, for assets wasted and converted bj the first execu- tor or administrator ; but such suit may be brought directly by creditors, legatees, or distributees. In the case of Morris (Administrator) vs. Morris (Adminis- trator] et als., 4 Grat., 294, decided January, 1848, it was held : An administrator not having settled his accounts is not entitled to commissions. In a suit by an administrator de bonis non against the representative of the first administrator for the set- tlement of the first administrator's accounts of his administra- tion, it is irregular to decree payment to the administrator de bonis non, but the distributees, being party to the suit and not complaining, so that a payment to the administrator de bonis non would be a valid discharge to the representative of the first administrator, he will not be heard to complain of the irregularity in the appellate court. At the close of an administration account, the interest due from the administrator is not to bear interest. In the case of Clarke vs. Wells (Administrator), 6 Grat., 475, decided January, 1850. The sale by an administrator of his intestate's effects, though upon a credit, must be treated at law as a conversion thereof. There is an exception to this rule in equity when, upon a settlement between proper parties of the administration of the administrator, it appears that the collec- tion of such sale bonds by his personal representative is un- necessary for the reimbursement or indemnity of his dece- dert's estate, and may therefore be confided as unadministered assets to the administrator de bonis non. W., administrator of C., sells assets on a credit, and dies in- debted to his intestate's estate. A purchaser at the sale quali- fies as administrator de bonis non of C. Held : The proceeds of sale not being necessary for the reimbursement or indemnity of W.'s estate, his administrator shall be enjoined from proceeding to collect the debt from the administrator de bonis non of C., but he shall hold it as unadministered assets of his intestate. In the case of Tyler et als. vs. Nelson's Administratrix, 14 Grat, 214, decided February 9, 1858, it was held : A court of equity has jurisdiction in a suit by a high sheriff against his deputy and the sureties of the deputy to have a settlement of the accounts of several administrations upon estates committed to the high sheriff, and which went into the hands of the deputy. And the suit may be maintained, though the deputy had settled the administration accounts before the probate court, and though the bill does not allege, and it is not proved, that the high sheriff hud paid the balances reported to be due on the settled accounts, CITATIONS TO THE CODE OF VIBGINIA. 377 or any part of them. Upon the death of the high sheriff, the suit should be revived in the name of his personal representa- tive, and not in the name of the personal representative of the different estates, it being his suit against his agent. The bond of the sureties for the deputy, which was given dur- ing the first year of the sheriffalty, bound them to indemnify the high sheriff for the acts of his deputy during the continu- ance in office of the high sheriff. Their liability does not ex- tend to indemnify the high sheriff for the acts of the deputy in relation lo an estate committed to the sheriff during his second year in office. The sureties of the deputy are liable for the amount of bonds taken by the first administrator on the estate, and after his death delivered by his administrator to the sheriff in the first year of his sheriffalty. The sureties of the deputy will be responsible for assets received by him after the end of the year. In the case of Utterback 's Administrator vs. Cooper, 28 Grat., 233, decided March, 1877, it was held: Although at common law the appointment by a creditor of his debtor as executor operated as against legatees and distributees, with certain ex- ceptions, as a release of the debt, this rule never applied to a debtor who was appointed administrator of his creditor. If the obligor of a bond take out administration to the obligee, and dies, the administrator de bo?iis non of the obligee may main- tain an action for such debt against the executor of the obligor. And so, if the debtor administrator is removed from his office, the action may be maintained against him by the administrator de bonis non of the obligee. A lien given to secure the debt due from an executor or ad- ministrator to his testator or intestate is of course discharged when the debt is actually paid to the creditors or legatees or distributees of the creditor ; but the introducing a debt into an administration account as a charge to the executor or adminis- trator is not sufficient to discharge the lien either as against creditors, legatees, or distributees of the creditor, or as against the sureties of the executor or administrator. A. sold to his son U. a tract of laud, taking his bonds for the purchase-money, and a deed of trust on the land to secure them. He died, and his son U. qualified as his administrator. Shortly afterwards U. obtained a loan of money and stock from C., and gave a deed on his same land to secure it. Upon a bill by C. against the administrator de bonis non of A., and U. and his sureties on his official bond, to enforce his lien, the court being of opinion from all the evidence that U. had not paid any part of his debt to A., though he represented to C. he had done it, and that he was fraudulently trying to get rid of the lien in favor of A. in order to raise money for his own purposes, and that C. 378 CITATIONS TO THE CODE OF VIRGINIA. either knew, or might have known if he had wished it, the facts, and made the loan with the knowledge of them, or in wilful ignorance, held : In favor of A.'s estate and U.'s sureties, that the lien to secure A.'s debt was a valid, subsisting lien, and had preference to the lien of C. In the case of Hinton et als, vs. Eland's Administrator et als. r 81 Va., 588, decided April 8, 1886, it was held: Administrator de bonis non is entitled to all the personal estate of intestate which has not been converted by the former administrator. And where in suit there is money ordered to be paid to the in- testate's estate, the administrator de bonis non must be a party. In the case of Smith vs. Pattie, 81 Va., 654, decided April 15, 1886, it was held : Where administrator is sole heir and dis- tributee of his intestate, and there are judgments against him individually which attached to the intestate's estate as soon as it descended upon his said heir and distributee, and there are debts against the intestate which are barred by the statute of limitations, the administrator cannot review those debts and repel the bar by any promise in writing, or otherwise, but is bound to plead the statute against those debts ; and if he refuses or fails to do so, it is the right of the judgment-creditor, by reason of his interest in the fund, to interpose the plea. In the case of. Harman vs. McMullin, 85 Va., 187, decided August 2, 1888. Appointment of receiver does not affect title to fund which is still regarded as in custodia legis. When ad- ministrator has been removed and estate committed to sheriff as administrator de bonis non, and unadministered assets are in- sufficient to pay debts, and to pay same that fund must be drawn upon to some unknown extent. Held : It is proper not to pay the fund at once to distributees, but to appoint a receiver to hold same for protection of sureties, creditors, and distribu- tees, especially as administrator de bonis non cannot sue his predecessor for assets wasted or converted. SECTION 2651. In the case of Lawrason's Administrators vs. Davenport et alu^. 2 Call, 95 (2d edition, 79), decided October 31, 1799. An ad- ministrator selling a large certificate to pay a small debt was held (under the circumstances) not liable for "what the certificate would have sold for if kept, but for the market price at his own residence. In the case of McCall vs. Peachey's Administrators, 3 Munf., 288, decided January 25, 1812, it was held: In determining which of the goods and chattels of a testator, or intestate, shall be sold " as liable to perish, consume, or be the worse for using or keeping," some latitude of discretion must be allowed to the executor or administrator, and his conduct appearing to be fair, CITATIONS TO THE CODE OF VIRGINIA. 379 and probably proceeding from a good intention, ought to be sanctioned by a court of equity. An administrator with the will annexed has, in general, the same powers which, under the will, the executors would have had if they had qualified. SECTION 2652. In the case of Sale vs. Roy, 2 H. & M., 69, decided March 9, 1808, it was held : The right of a purchaser at public auction from an executor of slaves specifically bequeathed by *the tes- tator cannot be disturbed by the legatee, whether the sale was necessary for the payment of debts or not, unless it be proved that the purchaser knew there were no debts to render such sale necessary, the remedy of the legatee being otherwise against the executor only ; neither can such purchaser himself compel the executor to rescind the contract. In the case of Anderson vs. fox, 2 H. & M., 245, decided April, 1808, it was held : If an executor sells the slaves of his testator when there are no debts to render such sale necessary, and buys them himself, the sale may be set aside at the in- stance of any person interested. An executor having sold certain slaves which were specifically bequeathed by his testatrix, having become the purchaser him- self, and afterwards recovered damages in an action of trespass against the sheriff for seizing and selling them as the property of the specific legatee in whose possession they were found, a court of equity will require an account of his administration, to ascertain whether the sale at which he was himself the pur- chaser was necessary for the payment of debts or not, and (even if the sale and purchase by himself be justified by the result of the investigation) will grant a new trial of the issue in the action of trespass (though no motion to that effect was made at law) in case the damages were excessive and produced by erro- neous impressions on the minds of the jury; and where the damages are evidently excessive, the testimony of the jurors will be received to declare the motives which induced them to give such damages. In such case the damages ought not to be vindic- tive, but only for the value of the slaves, with a reasonable allowance for hire. NOTE. In this case a doubt was suggested whether an ex- ecutor could legally purchase the property of his testator sold by himself, though the sale were public and necessary for the payment of debts, but it appears from the decree that such sale and purchase (the sale being necessary for the payment of debts) would be confirmed if no fraud were proved. In the case of JIt//i et als. vs. Hudson's Administrator*, 5 Munf., 180, decided October 25, 1816, it was held : If an execu- tor or administrator sell the shares of his testator or intestate 380 CITATIONS TO THE CODE OF VIRGINIA. by private contract for ready money, he ought to be charged therefor such sum as they would have sold for upon a reason- able credit, if the situation of the estate would admit of such credit ; and if not, such a sum as they would have sold for, in cash, at public auction. A purchase by an executor or administrator of any part of the estate of his testator or intestate, where other persons were debarred from bidding in consequence of doubts concerning the title suggested by himself, whereby he obtained the property for less than its value, ought to be annulled by a court of equity. In the case of Knight vs. Yarborough, 4 Band., 566, decided December, 1826, it was held : An executor may make a valid sale of his testator's effects, whether they be necessary for the pay- ment of debts or not, if there is no fraud or collusion in the purchaser. SECTION 2654. In the case of Daniel's Executor vs. Cook, 1 Wash., 306, de- cided at the fall term, 1794, it was held : If the testator is bound, the executor is also bound, though not named in per- sonal contracts. The court avoided giving any opinion in regard to real con- tracts. In the case of Payne's Executor vs. Sampson, 2 Wash., 200 (1st edition, p. 155), decided at October term, 1795, it was held: An action of covenant respecting real estate will lie against ex- ecutors, though not expressly bound. In the case of Fitzhugh's Executor vs. G. F. Fitzhugh, 11 Grat., 300, decided April, 1854, it was held: A personal repre- sentative cannot be sued as such for services rendered or goods furnished to his testator's or intestate's estate since his death. It seems that an action will not lie against the personal repre- sentative as such for the funeral expenses of his testator or intestate. In some cases, where money is paid for a deceased person, an action for money paid will lie against the personal repre- sentative as such, as where money has been paid by a joint surety. Where the demands made in all the counts in a declaration are such that an action cannot in any case be maintained upon them against the personal representative as such, the descrip- tion of him as such may be considered as mere surplusage, and the judgment may be against him personally. But if the demand set out in any one of the counts may possi- bly be maintained against the personal representative as such, then the description of him as such cannot be treated as sur- plusage, and if the action cannot be maintained against him in his representative character, it must fail. . CITATIONS TO THE CODE OF VIRGINIA. 381 In the case of Georgia Home Insurance Co. vs. Kinnier (Ad- ministrator), 28 Grat., 88, decided January, 25, 1877, it was held, p. 92 : A policy of insurance on a building insures K. and his legal representatives. The building having been burned after the death of K., his administratrix may maintain an action on the policy. One of the conditions of the policy is, that it shall be void " if the title of the property is transferred or changed." This does not apply to the descent of the property on the death of the assured to his heirs. In the case of GrubVs Administrators vs. Suit, 32 Grat., 203, decided September 19, 1879, it was held : An action for breach of promise of marriage will not lie against the personal repre- sentative of the promisor, either at common law or under our statute, in a case where no special damages are alleged and proved. In such a case, the maxim actio personalis moritur cum persona applies. Qucere: Can such an action be maintained against the personal representative of the promisor where special damages are alleged? SECTION 2655. In the case of Ferril vs. Brewis's Administrators, 25 Grat., 765-770, decided January 21, 1875, it was held : Trover may be sustained against a personal representative as such, though the goods never came into his hands. ^~'..^M In the case of Lee's Administrator vs. Hill, 87 Va., 497, decided March 5, 1891, it was held: Where one was wrongfully dis- charged by decedent, trespass on the case may be maintained under this section against the personal administrator, or as- sum.psit for breach of contract at common. In either case the action survives. And when defendant dies pending the action it may be revived against the personal representative. SECTION 2657. In the case of Dykes cfc Co, vs. Wood/louse's Administrators, 3 Hand., 287, decided March, 1825, it was held: An adminis- trator de lonis non may maintain an action of debt on a judg- ment obtained by the executor. In such an action, it will be sufficient to allege in the declaration that A. B., executor of C. D., recovered the judgment, and it will be inferred that the debt was originally due to the testator on the plea of nul tiel record. SECTION 2658. In the case of Braxtons Executor vs. Winslow, 1 Wash., 31, decided at the spring term, 1791, it was held : For creditors of decedent to charge the securities on the bond of a personal re- presentative, it is necessary to prosecute suit against personal representative to judgment, and execution must bear a return of nuLla lona, and must prove that the said personal representa- tive has committed a devastavit. 382 CITATIONS TO THE CODE OF VIEGINIA. In the case of Allen et als., etc., vs. Cunningham et als., 3 Leigh, 395, decided December, 1831. A fi. fa. on judgment against an administrator is returned "no unadministered or unincum- bered effects found," etc. Held : This is a return of nulla ~bona, to entitle the plaintiff to an action on the administrator's bond. In the case of Bush vs. Beale, 1 Grat., 229, decided Septem- ber, 1844, it was held : A creditor of a decedent who has ob- tained a decree de bonis testatoris against the executor, on which an execution has issued, and has been returned nulla bona> may maintain an action against the executor and his sureties on the executorial bond. In the case of Kent's Administrators vs. Cloyd's Administra- tors, 30 Grat., 555, decided August 1, 1878, it was held, p. 559 : It is error to decree that an administrator de ~bonis non shall pay a debt of his testator out of the assets in his hands, upon an ad- mission in his answer that there are debts due the estate, uncol- lected, more than sufficient to pay all the debts. SECTION 2659. In the case of Eppe's Administrators vs. Smith, (Administra- tor of Bagley], 4 Munf., 466, decided October, 1815, it was held : On the plea of "no assets," a verdict finding that the adminis- trator has in his hands assets belonging to the estate of his in- testate, without saying to what amount, is defective, and a new trial ought to be directed. If a judgment be rendered against an administrator for a debt of his intestate, and after his death an action of debt suggest- ing a devastavit to have been committed by him in his lifetime be brought against his administrator, such defendant is stopped by the judgment from pleading that no assets of the estate of the original intestate ever came to the hands of the said origi- nal administrator. A general replication and demurrer to the same plea may be put in. In the case of Pendleton's Administrators^. Stuart & McCoull, 6 Munf., 377, decided April 13, 1819, it was held : Notwithstand- ing a judgment against administrators, as such, in an action of debt, to which they pleaded " payment by the intestate," and a subsequent judgment against them personally, in an action sug- gesting a devastavit, to which they pleaded "no waste," relief in equity was granted them in this case, on the grounds that the peculiar and perplexed state of the assets made it difficult, if not impracticable, to plead in relation thereto at law ; and that at the trial of the second action their principal counsel was ab- sent, and their assistant counsel withdrew from the cause; in consequence whereof they were wholly undefended, and a ver- dict perhaps contrary to justice was obtained against them, without any negligence or default on their part. CITATIONS TO THE CODE OF VIRGINIA. 383 In the case of Miller's Executors vs. Rice et als^ 1 Band., 438, decided May, 1823, it was held : Where an executor confesses judgment, and gives forthcoming bonds for debts due by his testator, under the belief that the assets of the estate are amply sufficient to pay all claims against it, but afterwards, by an un- expected depreciation of property, the amount of assets proves inadequate, the executor shall be relieved in equity. In the case of Henrico Justices at the relation of Craddock vs. Turner's Administrator, 6 Leigh, 116, decided February, 1835. A man marries &feme executrix or administratrix, and so, being executor or administrator in his wife's right, administers the estate and wastes the assets of her testator or intestate, and then dies, leaving i\iefeme executrix or administratrix surviving him. Held : The waste committed by the husband during the cover- ture, does not constitute a debt due from him to the testator's estate, which is entitled to preference in the administration of his own estate over his own proper debts under the statute. In the case of Clements vs. Powell's Administrators, 9 Leigh, 1, decided November, 1837, it was held : In a summary motion against administrators for money paid by plaintiffs for defen- dant's intestate, it is no sufficient ground for a continuance that defendants had qualified only some seven or eight months be- fore, and so had not had time to settle their accounts of admin- istration, and that they desired to defend themselves on the ground of want of assets to pay the debt, without offering any plea or affidavit that the assets were insufficient. SECTION 2660. In the case of Mayo vs. Bentley, 4 -Call, 528, decided October, 1800, it was held : An administrator who has not notice of a specialty debt, may pay or confess judgment to a simple con- tract-creditor. Qucere: "Whether a very quick confession of judgment to a simple contract-debt be not fraudulent upon bond creditors? The judges were equally divided upon it. An ad- ministrator must take notice at his peril of judgments against the intestate. If there be two bonds, one payable at the death of the intes- tate, and the other not, the administrator may delay the cred- itor in the first with dilatory pleas until the second becomes payable, and then confess judgment upon the latter, pending the prior suit on the first, and plead it in bar on the first action. For among creditors of equal dignity, the administrator may prefer either, and the second bond was debitum in praesenti, though payable at a future day. In the case of Lindsay vs. Hoiverton, 2 H. & M., 9, decided September 9, 1807, it was held : An executor or administrator ought to be credited in his administration account for fees paid 384 CITATIONS TO THE CODE OF VIRGINIA. to counsel, notwithstanding those fees were more than the law allowed. In the case of Nimmd's Executor vs. The Commonwealth, 4 H. & M., 57, decided May, 1809, it was held : An executor must, at his peril, take notice of a judgment against his testator, in what court soever it may have been rendered ; and if he ex- hausts assets by paying debts of inferior dignity, must satisfy such judgment de lonis propriis. The proceeds of the sale of land, directed by the will of the testator to be sold for the payment of his debts, are equitable assets, and should be distributed among all the creditors pari passu; nor are such assets proper subjects for the cognizance of a court of law. In the case of Elliot vs. Carter et als., 9 Grat., 541, decided January, 1853, it was held, p. 548: The first fund to be ap- plied to the payment of debts is the personal estate at large, not exempted by the terms of the will or necessary implication ; next to it real estate, or an interest therein expressly set apart by the will for the payment of debts ; next, real estate descended to the heir ; after it, property real or personal, expressly charged with payment of debts, and then subject to such charge, specifi- cally devised or bequeathed. If these prove inadequate, then general pecuniary legacies, and after them specific legacies, both classes ratably ; and in the last resort real estate devised by the will. In the case of JPrice's .Executor et als. vs. Harrison s Executor et als., 31 Grat., 114, decided November, 1878. P., who is trustee under a deed for benefit of infant children, died in June, 1865, indebted to the trust, and his executor pays to the other trustee in the deed a part of that debt. Upon the settlement of P.'s estate in 1877, it appears that he is largely indebted for more than his assets. Held : Under the statute in force at the time of P.'s death his debt as trustee was not embraced in the third class of creditors provided for in that act, but must be placed in the fourth class, with the general creditors of P., and his ex- ecutor is not entitled to a credit in his administration account for the amount of the trust debt he had paid. See Code of 1860, Chapter 131, Section 25. The act of July, 1870, Code of 1873, Chapter 126, Section 25, which amends the former law by inserting in the third class debts of trustees for persons under disabilities, is only prospec- tive in its operation and will not authorize the placing of P.'s- debt as trustee in the third class, though the estate is not dis- tributed until this last act went into operation. In the case of Smith et als. vs. Blackwell et als., 31 Grat., 291, decided January, 1879. B. is the guardian of J., and upon J.'s coming of age B. has a settlement with J. of his account as. CITATIONS TO THE CODE or VIKGINIA. 385 guardian, and being found indebted on the account in the sum of three thousand dollars, he executes to J. his four bonds, each for seven hundred and fifty dollars, payable in one, two, three, and four years, with interest. B. pays the interest during his life, and a part of the principal, and was, up to the war, able to pay the whole. Held : The giving and taking these bonds was not a novation of the debt, but the debt due from B. to J. con- tinued to be a fiduciary debt and entitled to rank as such in the administration of B.'s estate. In a suit for the administration of B.'s estate the commissioner classifies the debt of J. among the general creditors of B., and there is a decree confirming the report and distributing a fund in court pro Tata among the credi- tors. There were several other decrees for accounts of further debts of B., and still a fund in court to be distributed, when J. made himself a defendant in the suit and filed his petition in- sisting that his was a fiduciary debt. Held : The decree con- firming the report was an interlocutory decree, and J. was not precluded from setting up his claim as a fiduciary creditor of B. In the case of Brown et als. vs. Lamberts Administrator etals., 33 Grat., 256, decided April, 1880. On the 15th of January, 1858, E., by deed recorded the same day, in consideration of love and affection, conveyed to B., trustee, all of his property, includ- ing therein several slaves, in trust for the use of himself and wife for their lives, and at the death of both of them for their surviving children, and in case of the death of any of the children before E. and his wife, for the children of the deceased children, and in such portions as his children would have taken had they survived him and his wife. B., the trustee, died in 1832, and the property was without any regularly appointed trustee until 1862, when E., the grantor, instituted proceedings and had himself appointed trustee by the court. E. died in 1872, and his wife in 1874, no children survived either, and the appellants, the grandchildren, were entitled to the trust estate. From the date of the deed to the death of E. the latter continued in pos- session of the trust property, using it as his own ; and between 1832 and 1862 sold several of the slaves, received the proceeds, appropriated them to his own use, and never accounted for them to anyone. In a creditor's suit brought for a settlement of E.'s estate, the grandchildren claimed the proceeds of the slaves sold by E., and that the debt was a fiduciary one, and as such entitled to priority. Held : The debt is entitled to priority as a fiduciary one in the distribution of the assets of the de- cedent. In the case of Strange'* Administrator vs. Strange et /*:, 76 Va., 240 and 244. 3. Homestead. Rules for subjecting to decedent's debts. Decedent's entire estate maybe subjected to a homestead- 25 386 CITATIONS TO THE CODE OF VIRGINIA. debt, but the portion not embraced in the homestead deed shall be first subjected. V. C. 1873, Chapter 183, Section 3. 4. Idem. After the exempted property has been set apart, the residue shall be applied towards paying all the decedent's debts ratably (unless there be some entitled to priority under V. C. 1873, Chapter 126, Section 25), and after the residue has been exhausted, the exempted property maybe subjected to pay such portion of the homestead-waived debts as remain unpaid. 5. Idem. Decree that the administrator turn over to widow money and choses in action for her "homestead" before the residue of the estate has been gotten in and applied to the debts, or before it is ascertained whether it will be sufficient to satisfy all the debts, is erroneous. The course proper for the court be- low is stated by Burks, J., on the last page of opinion. In the case of Spillman vs. Payne, 84 Va., 435, decided Jan- uary 26, 1888, it was held: The State has no priority under this section on decedent's estate for taxes collected byiiim as tax collector of the estate and not accounted for, but only for taxes assessed upon him during his lifetime. In the case of Robinson vs. Allen, 85 Va., 721, decided Feb- ruary 7, 1889, it was held : Where deceased partner's separate assets are not sufficient to pay all his debts, those due by him in a fiduciary capacity are to be paid first. SECTION 2662. In the case of Trevillians Executors vs. Guerranfs Executors et als., 31 Grat., 525, decided February 13, 1879, it was held : The lien of an execution of a fieri facias upon the debtor's choses in action, though not enforced in his lifetime, continues after his death as against the other creditors of the debtor. CHAPTEE CXX. SECTION 2663. In the case of Johnston vs. Thompson, 5 Call, 248, decided October, 1804, it was held : If before the revolution the testator directed that his executors should sell his lands, a sale by one was void unless it appeared that the other was dead, or refused to qualify. In the case of Deneale vs. Morgan's Executors, 5 Call, 407, decided April, 1805, it was held : If in a will made before the revolution a general power to executors to sell lands was given, a sale by one without the consent of the rest was void. In the case of Geddy & Knox vs. Butler et ux., 3 Munf., 345, decided November 27, 1812, it was held : Where a testator who empowered his executors to sell and convey certain real estate died before the 1st of January, 1787, the construction of the will, as to the power of the executors to convey, is to be gov- CITATIONS TO THE CODE OF VIRGINIA. 387 erned by the statute of 21 Henry VIII., and not by the act of 1785, Chapter 61, notwithstanding the conveyance was executed after the 1st of January, 1787. In the case of Nelson vs. Carrington (Executor of Burwell et als.}, 4 Muni, 332, decided November 24, 1813, it was held: A testator in the year 1784, having directed that his executors should sell all his real and personal estate for the payment of his debts, and having appointed four executors, three of whom qualified, a sale in the year 1794, by two of the acting execu- tors, was considered valid, and the third executor (as well as the fourth, who never qualified) was presumed to have renounced his right to administer, as at the date of the sale in question. If the written agreement of sale be signed by the purchaser and one of the two acting executors, the other may, by acts inpais, though not in writing (such as delivering possession of the land and the like), manifest his assent to the sale, and make it his own act. Although a tract of land be decreed to be sold to satisfy a mortgage, the executors of a mortgagor, being authorized by his will to sell all his real and personal property, may sell it for a full price with the assent of the mortgagee or his attorney. In the case of Grantland vs. Joys Executor, 5 Munf., 295, decided December 11, 1816, it was held: An executor selling the lands of his testator, by virtue of a power given by the will, is not bound to convey with general warranty, without an agree- ment to that effect; but only with special warranty against himself and all persons claiming under him, notwithstanding a written agreement after the sale that he would make "a good and indefeasible" title to the purchaser; for such agreement is to be understood in reference to the terms of sale. In the case of Carrington s Executors vs. Belt and Wife, 6 Munf., 374, decided April 12, 1819, it was held: A testator in- vested in his executors his whole estate, "to be divided by them among his heirs from time to time as they might think most conducive to the interest of his estate and family." By another clause he empowered them to sell his landed interests in a certain undivided estate, and in the State of Kentucky. According to the true construction of this will, his executors were empowered to divide his other lands and his slaves among his heirs, but not to sell them, nor to make an unequal division, nor to give certain classes of the property to some of the devi- sees, and others to others. In the case stated, although the words giving power to divide the estate "from time to time," etc., are very extensive, the court should rather consider them as authorizing the executors, under circumstances, to deliver the property to the devisees before at- taining legal age or marriage, than to hold it up indefinitely 388 CITATIONS TO THE CODE OF VIRGINIA. thereafter. If thereafter they could, under any circumstances, suspend an allotment, the circumstances must be such as to render the division more injurious to the interests of the estate and family then than at a future period. In the case of Brown vs. Annistead, 6 Rand., 594, decided December, 1828, it was held : "When executors are directed by will to sell lands, and they renounce the executorship, an ad- ministrator with the will annexed may sell under the authority given by our statute, although the will directs the executors to sell, "provided the said land will sell for as much as, in their judgment, will be equal to its value ; " for the power of the ex- ecutors is rather restricted than enlarged by the proviso. It does not vest any peculiar personal confidence in them. The executors are made trustees, and within the limit imposed on the exercise of the power the trust is imperative, and, the ex- ecutors having renounced, the case falls within the letter and spirit of the statute. In the cases of Broadus et als. vs. Rosson and Wife et als., Win- ston vs. Same, 3 Leigh, 12, decided May, 1831. Testator, being about to leave the country, makes his will, and devises that, in case of his death, or if he should not be heard of for ten years, his land should be sold for the best price that could be got, as was directed by letter of attorney to J. H., of same date with the will, and proceeds divided among his four sisters. Held : The administrator with the will annexed has power to sell the land under the statute. In the case of Jackson vs. Lignon, 3 Leigh, 161, decided November, 1831. Testator, after making provisions for his wife by his will, devises that after his wife's death or marriage his land shall be sold and the money arising from the sale equally divided among his children; widow renounces the will and dower is assigned her. Held : Executor has no power to sell during widow's life and widowhood, or to sell part of the sub- ject. In the case of Thompson vs. Meek, 1 Leigh, 419, decided April, 1836. A testator directs, first, that his funeral expenses and all his just debts be paid ; second, he desires that certain lands, which he specifies, be sold by his executors, and the money ap- propriated to the payment of debts; he then devises a par- ticular tract of land to his son and daughter; afterwards he directs, if necessary for the payment of his debts, that a part, the least in value, of the tract given his son and daughter be sold "to fully satisfy and pay all his just debts." Held: The testator's meaning was, that all his debts should be fully satisfied, and so much of the tract of land last mentioned be sold as would effect the purpose, even though it may take the whole, but that before any part of this tract was sold the other CITATIONS TO THE CODE OF VIRGINIA. 389 property specifically appropriated to the payment of debts ought first to be applied to the object. In the case of Mills et als. vs. Mills' Executors et als., Same vs. Lancaster et als., 28 Grat., 442 and 490, decided March, 1877. Where executors acting during the late war had full power under the will to do the acts which they performed, and in per- forming them acted in good faith in discharge of what they be- lieved to be their duty as executors, they are not liable for the ultimate loss which had arisen out of the facts. Executors who are empowered by the will under which they act to sell real estate and collect debts, and invest the proceeds for the purpose of the trusts declared in the will, in December, 1862, sell real estate, and in January, March, and April, 1863, collect the war debts well secured on real estate, taking payment in Confederate money, which they immediately invest in Confederate 8 per cent, bonds for the purpose of the trusts of the will. Held: That having acted in good faith, and in the exercise of their best judgments, under the circumstances surrounding them, they are not liable for the losses incurred from such sales, col- lections, and investments. Two out of three nominated executors qualify and sell and convey real estate to the purchasers, who pay up the purchase- money in full. Afterwards the third qualifies, and consents to the sale by sharing the commissions. Held: The title of the purchaser is valid, at least in equity. There is a perpetual rent secured on real estate which the lessee has the right to redeem by paying an amount which at 6 per cent, will produce an interest equal to the rent. Held : One of these executors may receive the payment, though it may require all to execute the release. SECTION 2664. In the case of Jones vs. Hobson, 2 Rand., 483, decided June 11, 1824, it was held : Where a suit is brought against an ex- ecutor and his sureties, and the executor confesses assets, it is competent for a court of equity to decree immediately against the executor ; and that liberty should be reserved to the creditor to proceed against the sureties by motion if it should become necessary. In the case of Burnett et als. vs. Harwell et als., etc., 3 Leigh, 89, decided October, 1831, it was held : Under the provisions of the same statute, an action cannot be maintained on an ex- ecutor's bond, at the relation of an assignee of a legatee of a decree for a legacy ; such action can only be maintained at the relation of the person who has the legal right to the debt. In the case of Smith's Executors vs. Smith et als., 17 Grat., 268 and 277, decided February 5, 1867. " All the rest and 390 CITATIONS TO THE CODE OF VIBGINIA. residue of my estate which may at any time come to the hands of my executor, either from the lapsing of the aforesaid legacies or otherwise." Held: Upon a consideration of the whole will and surrounding circumstances, to include the testator's real estate, legacies held to be good out of the real estate if the per- sonal estate is not sufficient. The references to 22 Grat., 224, 230, are errors. SECTION 2665. In the case of Trent vs. Trent's Executor et als., 1 Va. (Gil- mer), 174, decided February 7, 1821, it was held : Directing by will "the payment of all just debts," charges the whole estate, which charge is not released by a subsequent selection of par- ticular parts to be sold for that purpose. Charging the whole estate with particular debts lets in every creditor on the whole estate. An annuity is a legacy charged on the whole estate not specifically devised. The heir is entitled to the real estate, though charged with debts, until convicted of mismanagement or misapplication of profits. In the case of Meek's Administrator, etc. vs. Thompson et als., 8 Grat., 134, decided July, 1851, it was held: Where the charge upon land by will for the payment of debts is general, the pur- chaser from the executor or the administrator, with the will annexed, is not bound to see to the application of the pur- chase-money. In such case, if the sale was necessary at the time it was made, and was fairly made, and the purchase-money has been paid, the failure of the executor or the administrator to account for and pay over the proceeds to the creditors of the estate will not impair the title of the vendee. Land in which a widow is entitled to dower, being sold by an executor under a charge for payment of debts, should be credited in his account of the proceeds for the amount he has paid the widow in satisfaction of her dower interest. In the case of Elliot vs. Carter, 9 Grat., 541, decided January, 1853, it was held, page 548 : The first fund to be applied to the payment of debts is the personal estate at large not exempted by the terms of the will or necessary implication. Next to it real estate, or an interest therein, expressly set apart by the will for the payment of the debts. Next, real estate descended to the heir. After it, property, real or personal, expressly charged with payment of debts, and then subject to such charge. If these prove inadequate, then general pecuniary legacies; and after them, specific legacies, both classes ratably ; and in the last resort real estate devised by the will. In the case of Gaw vs. Huffman, 12 Grat., 628, decided Sep- tember 11, 1855, it was held: Executor having exhausted the CITATIONS TO THE CODE or VIRGINIA. 391 personal estate in payment of debts, and being largely in ad- vance to the estate for the payment of debts which bound the heirs, is entitled to stand in the place of the creditors whose debts he has paid, and charge the real estate. And the real estate in the hands of the devisees is liable in proportion to its value at the death of the testator. In the case of McCandlish vs. Keen, 13 Grat., 615, decided February 3, 1857. C., in 1849, gives a deed of trust upon land to secure a lona fide debt, which is duly acknowledged and certified for record, but it is not recorded until after his death. He makes his will in December, 1849, by which he charges his whole estate with the payment of his debts ; and he dies in 1851, indebted more than his whole estate will pay, but there were no jud gment creditors at his death. Held : The act which de- clares that all the real estate of a party dying which he has not subjected by his will to the payment of his debts, shall be assets for the payment of debts in the order in which personal estate is to be applied does not apply, except subject to the charge, to the real estate on which the debtor has created a bonafide lien, which is good against himself. C. having sub- jected his whole estate to the payment of his debts, his general creditors must take the real estate under the charge in the will ; and must take it in the plight and condition in which he held it ; and it is equitable assets, though the statute would have sub- jected it to the payment of his debts, if there had been no such charge in the will. The act in relation to creditors and purchasers who shall be protected against unrecorded deeds does not include creditors claiming under a devise for the payment of debts, or under the statute subjecting real estate to their payment. But the credi- tor who may avoid such a deed must have some lien by judg- ment or otherwise, which entitles him to charge the subject conveyed specifically. In the case of Pierce vs. Graham, 85 Va., 227, decided Au- gust 16, 1888, it was held : Executor, who is given no power as to the realty by the will is not authorized by the statute to maintain a suit against the heirs to sell the realty to pay the debts ; nor, as next friend to the infant heirs, uniting with the widow to compel the creditors to have the realty sold to pay debts. In the case of Scott's Executrix vs. Ashlin et als., 86 Va., 581, decided January, 23, 1890, it was held : There can be no resort to decedent's real estate to pay his debts until his personalty has been exhausted. When that has been exhausted, whether by devastavit or distribution, the real estate in the hands of his heirs may be subjected. In the case of Pleasants vs. Flood's Administrator et als., 89 392 CITATIONS TO THE CODE OF VIEGINIA. Va., 96, decided June 16, 1892. A farm encumbered by trust and other liens was granted by husband to wife's use. She en- joined sale under trust deed, alledging it had been satisfied, and that before becoming aware of its satisfaction she had made payments, and prayed for account of liens and payments. Re- port showed the first lien to be the trust debt, and the second her own for moneys paid by her. Sale was decreed. She pur- chased the land and paid the cash, and gave her bonds for the deferred payment and then died. Her heirs petitioned the court to require her bonds to be paid out of her personal estate, to the exoneration of the land which descended on them. Held : Under the circumstances, the land, and not the personalty is primarily bound for the payment of those bonds, as the pur- chase was only a mode of getting rid of the liens paramount to those owned by her, and was a personal undertaking that was merely collateral, and did not release the land from its primary liability under the trust deed. But this is material only as be- tween her heirs and her distributees. In the case of Deering & Co. vs. Kerf oof s Executor et als., 89 Va\, 491, decided December 15, 1892, it was held: Code, Section 2665, makes decedent's real property assets for pay- ment of his debts in the order in which his personal estate is directed to be applied ; but it recognizes his right to charge his land, but not his personalty, for such of his debts as he may prefer. SECTION 2666. In the case of Blow vs. Maynard, Lawrence vs. Blow, 2 Leigh, 30, decided March, 1830, it was held : A father makes a volun- tary and fraudulent conveyance of real estate to his children, and dies, leaving other real estate which descends ; upon a bill by a creditor against the donees and heirs at law, to subject the land conveyed and land descended to debt of the donor and an- cestor, chancellor may decree a sale of both, out and out, to satisfy the creditor's demand. In the case of Mann's vs. 2cille vs. Sutherlin, '20 Grat., 555, decided March, 1871, it was held: The council of the town of 476 CITATIONS TO THE CODE OF VIHGINIA. Danville lias authority under its charter to contract loans and issue certificates of debt. In 1863, the council issued the bonds of the city to be sold at public auction for Confederate money and for a bond of five thousand dollars, bearing 6 per cent, in- terest, and payable at the end of twenty years, the purchaser gave eleven thousand and fifty dollars Confederate currency, being at the time as ten for one of gold. This is usury. In the case of The City of LyncJiburg vs. Norvdl, 20 Grat., 601, decided March, 1871, it was held: City bonds, payable thirty days after date, and bearing 6 per cent, per annum interest from their date, sold in 1864 for Confederate money at the rate of two and one-half for one, when the Confederate money was at the rate of twenty to one for gold. This is usury. The fact that these bonds might be paid in the currency which at the time they fell due, would be taken by the State for taxes, does not constitute such a contract for hazard as relieved it from the taint of usury. In the case of Moffett vs. Bickle, 21 Grat., 280, decided Au- gust, 1871, it was held : In an action of debt by the holder of a negotiable note against the maker and four endorsers, upon the plea of usury by the endorsers the jury found that the note was endorsed by the first three endorsers for accommodation of the maker, and was sold by him to the fourth endorser at a usuri- ous rate of interest, who afterwards, and before it became due, endorsed it to the holder for value. Upon this verdict the court should render a judgment in favor of the maker and the first three endorsers, and against the fourth endorser, under the act, Code, Chapter 177, Section 19, p. 733. In the case of MicMe vs. Jeffries et als., 21 Grat., 334, de- cided August, 1871, it was held: J. lent to G. five thousand dollars and took his bond for the amount, dated April 17, 1862, payable five years after date with interest, and a deed of trust on land to secure the debt. The money loaned had been de- posited in bank in January, 1861, to J.'s credit, and she gave G. a check upon the bank for the amount in the usual form. This was not a Confederate contract, and is not liable to be so scaled. The bond and deed of trust are not tainted with usury ; but if they were it should not be set up for the first time in argu- ment in the appellate court ; nor could M. set it up at any time, it being G.'s debt, and M. having received the money to pay it. In the case of Hilb (for, etc.] vs. Peyton et als., 21 Grat., 386, decided August, 1871, it was held : P. executes his bond to H. for five thousand dollars, dated January 9, 1863, and payable two years after date without interest "in such funds as the banks receive and pay out." Parol evidence is not admissible under Section 2 of the adjustment act of March, 1866, to prove the kind of currency in which the bond was to be paid, or with CITATIONS TO THE CODE OF VIRGINIA. 477 reference to which as a standard of value it was made and entered into. Such a bond creates a contract of hazard. In the case of White vs. Mch. Building Fund Association, 22 Grat., 233, decided June 12, 1872, it was held: W., a share- holder in a building fund association, having obtained an ad- vance of money oh his shares, the association thereby acquired the right of property therein ; and the assignment of the asso- ciation for the advances he received was not a hypothecation for a loan, but an absolute surrender of them to the association, whereby they were sunk and extinguished, and cannot entitle the said "W. to participate in the final division and distribution of the funds of the association. The assignment of his shares by W. to the association does not release him from his covenant as a party to the articles of the association to make his regular monthly payment on shares, and on account of fines ; and the enforcement of his said obliga- tion is secured by his bond and deed of trust, by which, also, he obligates himself to pay six per cent, interest on the sum received, as authorized by the statute, until the termination of the association ; and the transaction between the parties is not usurious, nor within the prohibition of the statute. In the case of Graeme vs. Adams, 23 Grat., 225, decided March, 1873, it was held: A. contracts to build for G. in the city of Richmond certain houses, according to a plan and specifica- tions, for the sum of $54,700, payable in annual instalments of $12,000, to bear interest at the rate of $7.30 per cent, per annum, to be secured by deed of trust on the property. If the interest was a part of the contract price of the buildings the contract is not usurious ; if it was for the loan of money or other thing, or for the forbearance of a debt due, it was usurious. A. claims that he entered into another subsequent contract with G. which was to bear six per cent, interest. If the first contract was usurious, all the usury included in it must have been excluded from the second, or it is usurious. The price under which the work was done under the second contract was just as much greater than that provided for in the first as the difference of the interest on that sum at six and $7.30 per cent, per annum for the whole time of the credit, viz., $57,800 ; and when the work was completed, notes payable as agreed on in the contract were taken, bearing six per cent, in- terest from their date until their time of payment. If this addi- tion to the first sum contracted for was for the loan of money, or other thing, or for the forbearance of a debt due, the second contract is usurious, but if it was not for such loan or forbear- ance, it was not usurious. Forbearance in the sense of the statute in relation to usury is the giving a further day for the return of a loan when the 478 CITATIONS TO THE CODE OF VIRGINIA. time originally agreed on is passed, and if the rate of interest agreed on for' such forbearance is over six per cent, per annum, it is usurious. If the contract for the price of the houses is payable in instal- ments bearing interest, that contract cannot be discharged by the tender of cash at the time when the buildings are completed. A debtor has no right to anticipate the payment of a debt pay- able at a future day, and bearing interest, without the consent of the creditor. In the case of Turpin vs. SleecPs Executor, 23 Grat., 238, de- cided March, 1873, it was held : T. executes his bond to S., by which on demand he promises to pay to S., in gold or silver, or the equivalent thereof, $2,400. This is a promise to pay $2,400 in gold or silver coin, or the equivalent thereof, and debt may be maintained upon it. The bond was dated May, 1866, and the consideration proved was a debt due before the war of uncertain amount, and $1,670 in United States currency advanced at the date of the bond, when the currency was at 129 1-8 for gold and 121 for silver. As it does not appear what was the amount of the ante-war debt, usury is not proved. The reference to 25 Grat., 1, is to the case of Town of Dan- ville vs. Pace, cited to Section 2821. In the case of Bowman vs. Miller <& Co., et als., 25 Grat., 331, decided September, 1874. B. being in want of money in August, 1867, went to the city of Baltimore with a negotiable note for $3,500, blank as to the State and place of payment, but signed by himself and endorsed by five persons, he and they living in Virginia. This note he sold to M., of Baltimore, at a discount of one and one-fourth per cent, per month ; the proper date was inserted and the place of payment fixed at the National Ex- change of Baltimore. This note was renewed with the same parties, and in April, 1868, B. made a payment on it of $550 ; and another note to meet the balance was made by the same parties, payable at the same bank, and M. agreed to take this note at the same discount. The last note not being paid, M. sent it and all the previous notes and papers connected with the loan, with a statement of the amount due him, to a friend residing in Harrisonburg, with a request that he would take B.'s note for what was due, endorsed by the same parties. This was done, and the note was made payable at the National Bank of Harrisonburg. Held : The taking of the last note was not a novation of the previously existing debt, but the contract is still a Maryland contract, to be governed by the law of Maryland. By the law of Maryland the contract was not null and void, but M. might recover upon it there the principal and the legal interest. CITATIONS TO THE CODE OF VIRGINIA. 479 The last note not providing on its face for the payment in future of more than legal interest, it not being a Virginia con- tract, and not being void by the law of Maryland, it will be en- forced as a Maryland contract in the courts of Virginia. In the case of Coif man & Bouffy vs. Miller da Co., 26 Grat., 698, decided October 9, 1875. B., of Harrisonburg, Virginia, was indebted to M., of Baltimore, Maryland, by various notes and accounts, on some of which notes usurious interest was charged. In February, 1868, B. and M. made a full settlement, by which B. transferred to M. judgments and debts to the amount of his debt ; and it was agreed that M. should prosecute these claims, and if any of them proved insolvent, that M. might recover from B. any deficit that remained ; and then M. de- livered to B. all his notes and accounts. Some of the claims transferred to M. proved worthless, and in June, 1869, B. gave to M. his note endorsed by C., made and payable in Harrison- burg, for the amount of the deficit. Held: The note was founded on a new contract, on a new consideration, and the usury in the previous notes given by B. to M. before their set- tlement does not affect it. In the case of Backhouse (Executor) vs. Selden, 29 Grat., 581, decided December 19, 1877. Where a bond dated in Texas, signed by the principal obligor, a resident of Texas, and by two sureties, residents of Virginia, payable to a resident of Virginia, when the drafts which were the consideration of the bond were sent to and received in Texas, and the money borrowed used in Texas by the principal obligor. Held: To be a contract governed by the laws of Texas, and not affected by the laws of usury in Virginia. In the case of Mosely (Trustee) vs. Brown et als., 76 Va., 419. Usury. -Sale at discount greater than legal interest of nego- tiable notes, made and endorsed in blank for purpose of raising money, by broker for maker to purchaser ignorant of that pur- pose, is not usury. 2. Idem. But payment of illegal interest, after maturity of notes for forbearance, is usury, and the usurious premium may be recovered back. In the case of Hansucket et als. vs. Walker et als., 76 Va., 753. Commissioner's Report. Usurious Interest. From face of report, usurious interest was paid ; no exception when report was adopted; afterwards exception was endorsed, but attention of court not called thereto. Held: The decree cannot be re- versed on that ground, but on other grounds being remanded, the court below can disallow the usurious interest, and apply excess as a credit to the debt. In the case of B SECTION 3012. See the references given to Sections 3058, 3080, 3086, 3094, and 3218. CHAPTEE CXLY. In the case of The Commonwealth vs. Birchett, 2 Va. Cases, 51, decided by the General Court, it was held : An information in the nature of a quo warranto, though in form a criminal proceeding, yet is in substance a civil proceeding for the trial of a civil right, and therefore the statute which limits the prosecu- tion of informations on any penal law to one year does not ap- ply to such information. In the case of The Commonwealth vs. James River Improve- ment Company, 2 Va. Cases, 190, decided by the General Court, it was held : An information in the nature of a writ of quo war- ranto, is the proper remedy by which to try and decide whether the James Eiver Company's charter ought to be nullified and vacated, or whether it has forfeited its privilege of receiving tolls. The Commonwealth being a stockholder in a corporation and partner with individual stockholders is no reason why she should not, in her sovereign capacity, proceed by way of infor- mation in the nature of a writ of quo warranto against the cor- poration for the purpose either of destroying its character or depriving it of any of its franchises. 654 CITATIONS TO THE CODE OF VIBGINIA. The information aforesaid will lie against a corporation eo nomine to try whether the said company has forfeited its fran- chise of being a corporation, as well as of its other franchises and liberties. Where the Commonwealth proceeds by an information in the nature of a quo warranto against a corporation in the superior court of law in which the president and directors of the corpora- tion reside, she has jurisdiction to grant the rule and try the cause, although the acts of violation of duty, which are the grounds of the proceeding may have been committed in other countries. In the case of Royal vs. Thomas, 28 Grat., 130, decided Feb- ruary 1, 1877, it was held: Under the Constitution and statutes of Virginia a party who has aided and assisted in a duel fought with deadly weapons may be removed from office by a proceed- ing by quo warranto, or, if that writ be not in use, by informa- tion in the nature of a quo warranto, though he has not been convicted of the offence in any criminal proceeding against him. In the Stand and Giles County Judge case, 33 Grat., 443, de- cided July, 1880. In December, 1874, E. was elected by the legislature judge of the county courts of G. and B. counties, and on the twelfth of the same month he was commissioned as such, the commission stating that he was elected to fill the un- expired term of his predecessor. In December, 1879, W. was elected judge of the same counties, and was commissioned as such on the 20th of the same month. Without objection on the part of E., W. entered at once upon the duties of the office, and E. qualified as an attorney, and practiced in both of the courts over which W. presided, until the April term, 1880, when, the court of appeals having decided that the terms of all the county judges in Virginia, whether elected to fill vacancies or not, com- menced on the first day of January next following their appoint- ment, and were for the whole term of six years, as fixed by the Constitution, E. appeared and protested that he was the lawful judge. This claim W. refused to recognize, principally on the ground that E., by acquiescing in the assumption of the office by W. and becoming a practicing attorney in this court, held an office incompatible with the office of judge, and by this con- duct had forfeited and abandoned his said office. On quo war- ranto by E. against W., held : E. was entitled to the office, and the fact that he only yielded to the legislative and executive con- struction of the Constitution until the question was settled by the Supreme Court was no abandonment or forfeiture of his office. An attorney-at-law is not an officer. An office is termi- nated proprio vigore by resignation, expiration of term, and re- moval by competent authority. But in other cases the office is not determined ipso facto by the occurrence of the cause. There CITATIONS TO THE CODE OF VIRGINIA. 655 must be a judgment of a motion after judicial ascertainment of the fact, which may be by indictment or information, by writ of quo warranto, or by impeachment. The writ of quo warranto is not abolished in Virginia, and the circuit courts have jurisdic- tion of the same. W., having waived the filing of an informa- tion in the court below, cannot be heard to complain of any irregularity on this ground in the appellate court. In the case of Pixley et als. vs. Roanoke Navigation Co, et als., 75 Va., 320, decided March 17, 1881, it was held : A court of equity has no jurisdiction to restrain a navigation company from collecting tolls on the streams to which the charter refers, on the ground that the company had failed to improve the streams as their charter prescribed, or to keep them in order. The only mode of proceeding against a corporation in such case is by quo warranto at the suit of the Commonwealth. In the case of Kilpatrick et als. vs. Smith et als., 77 Va., 347, decided March 29, 1883 : Where title to office is the point in controversy, the remedy is not by injunction, but, at law, by in- formation in the nature of quo warranto. In 1870 the board of education appointed E. and five others trustees for the city of Portsmouth three for each ward. The city council failed to divide them into three classes. They continued until June, 1882, when the city council created a new board of school trus- tees. In July, 1882, the board of education appointed K. and eleven others trustees three for each ward, the wards having been increased to four for said city, who duly qualified and entered upon their duties. In August, 1882, E. and the five other appointees of the city council obtained from the judge of the hustings court of Portsmouth an injunction inhibiting K. and his co-trustees from acting as members of the school board of Portsmouth, etc. Defendants demurred and answered. The hustings court, on the 28th of December, 1882, hearing the cause, overruled the demurrer, and perpetuated the injunction. On appeal to this court, it was held : 1. As this question involved the question of title to office, an injunction was not the proper remedy, and the demurrer to the bill should have been sustained and the bill dismissed. 2. The appointment of E. and his five associates by the city council was without authority of law, and was void. 3. The appointment of K. and his eleven co-trustees by the board' of education was pursuant to law, and was valid. SECTION 3023. See references to Sections 3058, 3080, and 3217. 656 CITATIONS TO THE CODE OF VIRGINIA. CHAPTEE CXLVI. SECTION 3029. In the case of Armstrong vs. Stone et ux., 9 Grat., 102, de- cided August 2, 1852, it was held : The petition for a writ of ha beas corpus to obtain possession of a child may be in the name of the infant by its next friend, or in the name of the person claiming the possession ; and when it is the mother of the child that is claiming the possession, and she is a married woman, it may be in the names of her husband and herself. The proper office of the writ of habeas corpus is to release from illegal restraint ; and when the party is of years of discretion and sui juris, nothing more is done than to discharge him ; but if he be not of an age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody ; and to enable it to do so, must determine to whom the right to the custody belongs. The father being dead, the mother is en- titled to the custody as of right, and she does not lose this right by a second marriage ; but when she is seeking by the writ of habeas corpus to have the child placed in her custody, the court may exercise its discretion, and determine whether, under all the circumstances, it is best for the infant that he should be assigned to the custody of the mother. In the case of Leftwich vs. The Commonwealth, 20 Grat., 716, decided November, 1870, it was held : When a prisoner has been taken to the penitentiary before the judgment against him is reversed by the court of appeals, that court will bring him before them by habeas corpus, and discharge him. In the case of Jones vs. The Commonwealth, 20 Grat., 848, decided March, 1871, it was held : The prisoner being in the penitentiary, he will be brought before the appellate court by writ of habeas corpus, and committed to the sheriff of the county of Henrico, to be taken back to the county from whence he was sent. The reference to 19 Grat., 676, is an error. The case of Meredith, exparte, 33 Grat., 119, was a case of habeas corpus, but as it was only for the purpose of determining who was county judge in a certain county it is no authority. In the case of Ex Parte Rollins, 80 Ya., 314, decided March 19, 1885, it was held : The remedy for mere errors in proceed- ings of courts of competent jurisdiction is by writ of error or appeal, and not by writ of habeas corpus. In the case of Coffee vs. Black, 82 Va., 567, decided Novem- ber 18, 1886, it was held : A case where at the death of the mother the father transferred his daughter, then three years oM, to her mother's sister, who reared her properly and made her happy, and was desirous and able to continue so to do, and the CITATIONS TO THE CODE OF VIKGINIA. 657 child was loth to leave her aunt. After several years, the father, by writ of habeas corpus, sought to recover custody. It ap- peared that the change was calculated not to promote the child's welfare. On appeal, held: Under the circumstances the situation of the child should not be changed, and the writ should be dismissed. This is the case cited from 11 Va. Law Journal, 103. SECTION 3035. In the case of Ex Parte Marx, 86 Va., 40, decided April 18, 1889, it was held : This section providing for affidavits refers only to the illegality, not the irregularity, of the prisoner's de- tention, and does not authorize a review of the sufficiency. A writ of habeas corpus is not a writ of error, which is the remedy for mere errors in proceedings of courts of competent jurisdic- tion. TITLE XLVI. CHAPTER CXLVII. SECTION 3045. In the case of Read vs. Commonwealth, 22 Grat., 924, decided December 11, 1872, it was held, p. 952-'54 : Sunday is not to be counted as one of the days of the term of a court. SECTION 3046. See the references given to Sections 3218 and 4016. SECTION 3047. In the case of Ayres (Administrator] et als. vs. Burke et als., 82 Va., 338, decided September 16, 1886, it was held: After judgment is barred, if it be revived by scire facias through col- lusion between creditor and debtor, a court of equity, in a suit to enforce the liens against the debtor's estate, will not give effect to the revival so as to affect the rights of other lien cred- itors of said debtor, though it be effectual against himself. SECTION 3049. In the case of Smith vs. The Commonwealth, 75 Va., 904, de- cided November, 1881, it was held: This act is constitutional. In the case of Gresham vs. Ewell (Judge), 85 Va., 1, decided June 6, 1888. The county judge of one county presided at the trial of a cause in another county without entering upon record that the regular judge (personally present) was in his opinion so situated as to make it improper for him to preside. Held : The judgment is void, and its enforcement should be restrained by a writ of prohibition. 42 658 CITATIONS TO THE CODE OF VIRGINIA. SECTION 3054. In the case of Cluverius vs. The Commonwealth, 81 Va., 787, decided May 6, 1886, it was held: Under this section corpora- tion courts have the authority to continue a term from day to day into the next succeeding month, and to change accordingly the day for the commencement of the succeeding term. SECTION 3055. In the case of Tremaine vs. The Commonwealth, 25 Grat.. 987, decided January 14, 1875, it was held : Under this section corpo- ration courts in cities and towns having a population of more than five thousand have the same jurisdiction to try offences committed within their respective limits as circuit and county courts had, and the act of April 2, 1873, to regulate and define the jurisdiction of the county and circuit courts, does not apply to or affect the jurisdiction of said corporation courts. CHAPTEE CXLVIII. SECTION 3060. In the case of Patton vs. Hoge, 22 Grat., 443, decided July 15, 1872. A point raised in the cause was, that a circuit court could not enter a decree at a special term, though the cause was ready for hearing at the previous regular term, and was not then heard, unless by the consent of the parties. Held : The decree was valid. In the case of Harman vs. Copenhaver, 89 Va., 836, decided April 13, 1893. Where the judge's warrant appointing a special term was duly posted in accordance with Code, this section, the presumption is that all of the provisions of that section were complied with according to the rule in such cases, that all acts are presumed to have beea rightly and regularly done. Besides, the provision that the clerk shall inform the attorney for the Commonwealth and the sheriff or sergeant of such ap- pointment is directory merely, and his failure so to do held not to affect the validity of the proceedings at such special term. SECTION 3062. In the case of Harman vs. Copenhaver, 89 Va., 836, decided April 13, 1893. A decree was entered at a special term con- firming a report of sale filed before the commencement of the preceding regular term, and which could have been acted on at that term. Held : No error. CHAPTEE CXLIX. SECTION 3069. In the case of Hunter's Executrix vs. Vaughn et als., 24 Grat., 400, decided January, 1874, it was held : Where the trustees in CITATIONS TO THE CODE OF VIRGINIA. 659 & deed recorded in the clerk's office in Richmond have died or removed out of the State, or refiise to act, the Circuit Court of the city of Richmond has jurisdiction to appoint a trustee in the place of such trustees. SECTION 3073. In the case of Cluverius vs. The Commonwealth, 81 Va., 787, decided May 6, 1886, it was held : Corporation courts have the authority to continue a term from day to day into the next succeeding month, and to change accordingly the day for the commencement of the succeeding term. SECTION 3079. In the case of Morriss vs. Virginia Insurance Company, 85 Va., 588, decided December 13, 1888. Section 3427 provides that any chancery cause may, by consent, be submitted to the judge of the court wherein pending for determination in vaca- tion. This section authorizes, in certain events, the judge of the Hustings Court of the city of Richmond to perform any duty required by law of the judge of the chancery court. Where such cause pending in the chancery court of said city was, by consent (the infant defendants being represented by guardian ad litem), submitted, July 8, 1873, to the judge thereof for de- cree in vacation, and a decree beneficial to said infants was entered in vacation by the judge of said hustings court, acting as judge of said chancery court. Held : The judge of the hustings court, sitting as the judge of the said chancery court, was the judge of the latter court, and the decree valid. CHAPTER CL. SECTION 3086. In the case of Gresham vs. Ewell (Judge], 84 Va., 784, de- cided April 26, 1888, the court held : This court has no juris- diction to award a writ of prohibition to a county court. In the case of Clay vs. Bollard, 87 Va., 787, decided May 5, 1891, it was held : This section was intended to define the rem- edy of mandamus as it exists at common law, and does not, nor does the fact that the said section gives similar authority to the circuit courts, restrict the jurisdiction of this court to award the writ in all cases in which it may be necessary to prevent a fail- ure of justice. CHAPTER CLI. SECTION 3111. See references to Section 4203. SECTION 3114. The reference to 20 Grat., 136, is an error. 660 , CITATIONS TO THE CODE OF VIRGINIA. In the case of Snodgrass vs. The Commonwealth, 89 Ya., 679,. decided February 16, 1893, it was held : It is not necessary un- der this section of the Code to read the court orders in court each day, but it is sufficient if they are drawn up and read at the conclusion of the trial during that term. SECTION 3122. In the case of Langliorm vs. Waller's Executor, 76 Va., 213. 1. Courts. Failure to Sit. When a court fails to sit on any day to which it may have adjourned, all matters ready for the court to act upon, if it had been held on such day, shall be in the same condition, and have the same effect, as if continued to the next day of the same term that the court may sit. 2. Idem. Idem. Case at Bar. Corporation court of L. adjourned from 20th to 23d of December; failed to sit on 23d, but sat before 4 o'clock of the third day after the 23d, and tried and entered judgment in a cause which at a previous day of the term had been set for trial on the day last referred to for con- venience and by agreement of counsel. Held : The court had a right to sit and try and determine the cause before 4 o'clock on the 26th of December, and the judgment entered by it that day is valid. SECTION 3124. In the case of Wilkinson vs. Hendrick, 5 Call, 12, decided April, 1804, it was held : In a judgment on a forthcoming bond, if the record states that the cause was continued until the next day, but does not mention that the defendant was called, it is not error, if the defendant on the day of the judgment prays an appeal and gives bond, in court to prosecute it. In the case of Amis vs. Roger, 7 Leigh, 221, decided Febru- ary, 1836. Notice is given by K. to A. of a motion to be made at June term of a county court for money paid by K. as A.'s security. The motion is continued without A.'s consent from June term to August term, passing by the intermediate July term. Held : This was a discontinuance, and a judgment sub- sequently rendered for the plaintiff on the same notice is there- fore erroneous. In the case of Clerk vs. The Commonwealth, 21 Grat., 777, decided June 16, 1871, it was held, p. 781 : A county court has authority under this section to render a judgment at the August term upon a verdict entered at the July term, though no order of continuance be entered. In the case of Van Gunden vs. Kane, 88 Va., 591, decided January 14, 1892, it was held : Under this section it was in the power of the court at its July term to enter judgment nunc pro tune, which it had omitted on the verdict at its April term. CITATIONS TO THE CODE OF VIRGINIA. 661 SECTION 3126. In the case of Cluverius vs. The Commonwealth, 81 Va., 787, decided May 6, 1886, it was held : Corporation courts have au- thority to continue a term from day to day into the next suc- ceeding mouth, and to change accordingly the day for the com- mencement of the succeeding term. CHAPTEB CLII. SECTION 3139. In the case of Booth vs. The Commonwealth, 16 Grat., 519, decided April 10, 1861, it was held : Persons over sixty years of age are not disqualified from serving on grand juries, though they are exempt from the service if they choose to claim the exemption. SECTION 3140. In the case of Miller vs. The Commonwealth, 80 Va., 33, de- cided January 9, 1885, it was held : Where a roll of a volunteer military company is filed with the clerk of the court, the mem- bers thereof are exempt from summons for jury duty, and, if summoned, need not attend to make their excuses. SECTION 3155. In the case of Hodges vs. The Commonwealth, 89 Va., 265, decided July 6, 1892, it was held: Where, after a verdict of murder in the second degree, a juror, on a motion to set aside the verdict on the ground of previously-expressed opinion, ad- mitted that he might have said that the prisoner would be, but denied saying that she should be, hung, and said that he did not then know that he had been put on the venire ; that he had never expressed an opinion as to her guilt or innocence, and that his sympathies were with her, and that he at first favored fixing her imprisonment at the lowest term ; it was held : The motion was properly overruled. SECTION 3156. In the case of Parsons vs. Harper, 16 Grat., 64, decided Au- gust 28, 1860, it was held : An irregularity in forming a jury must be objected to before the jury is sworn, unless the party is shown to have been injured by it. In the case of Poindexter vs. The Commonwealth, 33 Grat., 766, decided January 8, 1880, it was held (pp. 791-92) : The objection to a juror that he was not a competent juror, because he had not paid his capitation tax of the previous year, comes too late after a verdict of conviction in a criminal trial, and is not good ground for setting aside the verdict and granting a new trial to the prisoner. In the case of Spurgeon vs. The Commonwealth, 86 Va., 652, 662 CITATIONS TO THE CODE OF VIRGINIA. decided March 13, 1890, it was held : In criminal cases wherein judgment was rendered before passage of act of January 18, 1888 (this section), failure of record to show affirmatively that the jury was regularly summoned is error, whereof advantage may be taken in the appellate court, though no objection was raised in the court below. In the case of Jones vs. The Commonwealth, 87 Va., 63, de- cided November 13, 1890, it was held : This section, to cure ir- regularity in writ of venire facias, etc., applies only to civil and misdemeanor cases; and the act of January, 1888 (Acts 1887- 1888), does not apply to a felony case where there is no venire facias at all. SECTION 3166. In the case of Mays vs. The Commonwealth, 82 Va., 550, de- cided November 8, 1886, it was held: The defendant in a crim- inal prosecution cannot waive a trial by jury and submit all matters of law and fact to the determination of the court, there being in this State no statute authorizing an issue joined upon a plea of not guilty in such prosecution in a court of record to be tried otherwise than by a jury. This is the case referred to in 11 Virginia Law Journal, 88. In the case of Ford vs. The Commonwealth, 82 Va., 553, de- cided November 18, 1886, it was held : In this State defendant cannot waive trial by jury in a criminal prosecution in a court of record. SECTION 3167. In the case of Baltimore & Ohio Railroad Company vs. Polly, Woods & Co., 14 Grat., 447, decided August 9, 1858, it was held, p. 471 : In an action by a contractor on a railroad against the company for work and labor, the plaintiffs having offered evi- dence tending to show that certain excavation which was a part of the work in controversy was of solid rock, and the defendant having offered evidence tending to show the contrary, the de- fendant moved the court to have the jury taken to view the premises, they being about thirty mile's off on the line of the road, and offered to send the jury on the train of the company, and to defray the expenses. The court having overruled the motion, the appellate court cannot say the court below erred, unless it appears from the record that a view was necessary to a just decision, and that does not so appear. SECTION 3168. In the case of Price's Executor vs. Fuqua's Administrators, 1 H. & M., 385, decided July, 1807, it was held: A new trial ought not to be granted on the affidavit of two of the jurors that they were influenced in their verdict by information given by one of their own body in the jury room. CITATIONS TO THE CODE OF VIBGINIA. 663 In the case of Atlantic & Danville Railroad Company vs. Peake, 87 Va., 130, decided December 4, 1890, it was held: Remarks of juror during trial, even if reprehensible, cannot be taken advantage of after verdict ; and for a juror to say upon hearing a fact testified by a witness, "Yes sir; I know all about it. That is so," is only in obedience to this section, declaring that "a juror, knowing anything relative to a fact in issue, shall disclose the same in open court." TITLE XLVII. CHAPTER CLIII. CHAPTER CLIV. SECTION 3193. In the case of Benjamin Watkins Leigh, 1 Munf., 468, decided November 16, 1810, it was held : The practice of the law is not an office or place under the Commonwealth. An attorney-at-law is not bound, as a requisite to his admission to the bar of any court, to take the oath prescribed by the third section of the act to suppress dueling. SECTION 3196. Ex Parte Fisher, 6 Leigh, 619, decided by the General Court December, 1835. By the provisions of the statute, a court can- not for malpractice of an attorney or counsellor, committed in its presence, suspend the license of the party offending in a summary way, but must direct an information to be filed against him, and inflict the punishment on the verdict found on such information. SECTION 3198. In the case of Wells vs. The Commonwealth, 21 Grat., 500, decided November, 1871, it was held : An appeal may be made to the court of appeals from the judgment of a circuit court im- posing a fine upon a person for a contempt of the court in aiding to obstruct the execution of a decree of the court. Where a rule is made upon a person to show cause why he should not be punished for a contempt of the court in aiding to obstruct the execution of a decree of the court, he purges him- self of the contempt by answering under oath that in what he had done he acted as counsel in good faith, without design, wish, or expectation of committing any contempt of, or offering dis- respect to, the court. The duty of an attorney to his client cannot conflict with his obligation to demean himself honestly in the practice of the law, or to be faithful in his country. But if he acts in good 664 CITATIONS TO THE CODE OF VIRGINIA. faith and demeans himself honestly, he is not responsible for an error in judgment. SECTION 3199. In the case of Ex Parte Collins, 2 Va. Cases, 222, decided by the General Court, it was held : The clerk of a superior court of law cannot be permitted to practice as attorney in the court of which he is clerk, notwithstanding his license to practice in all the courts of the Commonwealth. SECTION 3200. In the .case of Stephens vs. White, 2 Wash., 260 (1st edition, p. 203), decided at October term, 1796, it was held : To hold an attorney responsible in damages for mismanagement of a cause, it is necessary to show gross negligence. It is also necessary to show that he was employed at a time when he might have made the suit good by proper skill, and is not liable for the acts of a predecessor or colleague not employed by himself. In the case of Tailor vs. Armistead, 3 Call, 200 (2d edition, 171), decided May 7, 1802, it was held: To recover 15 per cent, damages under this section it is necessary to show not only the receipt of the money, but also a demand for the pay- ment of the same. In the case of Rootes vs. Stone, 2 Leigh, 650, decided April, 1831. An attorney at law is employed to collect debts, and some of them are lost to his client through his negligence. Held : The attorney is chargeable for the principal of the debts lost, but not with interest thereon. In the case of Pidgeon vs. Williarns's Administrators, 21 Grat., 251, decided August, 1871, it was held: Attorneys at law are liable as ordinary bailees for money collected for their clients. An attorney receiving in February, 1862, Confederate cur- rency, which was then the only currency, and very little depre- ciated, is not liable to his client for receiving such money, he not having forbade it. An attorney receiving Confederate currency for a debt due to his client, deducts his fees from the amount, and deposits the balance in a bank of good credit, not in his own name, but to " collection account," an account in which he deposits all money collected by him for his clients, and on the book pf the bank the name of the client is written opposite the name of the sum deposited for him. The client not calling for his money until the end of the war, when the bank has failed, the attorney is not liable for it. The client living in Maryland, but the place of his residence being unknown to the attorney, though the client comes to the CITATIONS TO THE CODE OF VIRGINIA. 665 to\vn where the attorney lives occasionally during the war, when the Federal forces have possession of it, but does not call upon the attorney, nor does he let him know he is there. Held : The attorney is not liable for failing to give him notice that the money has been collected. In the case of Tanner vs. Bennetts Administrator, 33 Grat., 251, decided April, 1880. T. died in 1863, and his estate was committed to B., sheriff of P., as administrator with the will annexed. Among the assets was a bond of F., who lived in P. E. county, to T. for one thousand seven hundred and eighty- five dollars, executed November 2, 1857. In 1863 B. sent this bond to H., a lawyer living in P. E. county, for collection by suit or otherwise. F. had in possession a considerable estate, real and personal, but he was largely indebted, and H., as well as other counsel who had claims against F., apprehended that if he was sued he would convey his estate to secure preferred creditors; and therefore H. did not bring suit upon the bond until 1866. Several suits were brought against F. in January, 1866, and he sold and conveyed his land in payment of debts mentioned in the deed, and soon after went into bankruptcy, paying nothing. Held : Neither B. nor his counsel was guilty of negligence ; and B.'s estate is not responsible for the debt. In the case of Tuley vs. Barton, 79 Va., 387, decided Septem- ber 25, 1884, it was held : Attorney's receipt for claims for col- lection may be so far added to by parol testimony as to show a contemporaneous additional contract on the part of attorney to receive the claims as collateral security for debts due him from client. But the liability of attorney or transferee is only for the exercise of due diligence to collect those claims; and in neither capacity is he responsible for their loss, unless such loss be occasioned by his negligence. In the case of Hudson vs. Johnson, 1 Wash., 10, decided at the spring term, 1791, it was held: Payment to an attorney-at- law under the custom of the country is good, though made after the action brought. In the case of Branch vs. Burnley et als., 1 Call, 147 (2d edi- tion, 127), decided November 6, 1797, it was held : An attorney- at-law may receive the money recovered from the defendant, and his receipt will discharge the judgment. In the case of Herbert vs. Alexander, 2 Call, 499 (2d edition, 418), decided October 20, 1800, it was held: An attorney-at- law only represents the plaintiff or defendant in court to do such acts as the plaintiff or defendant, if in the court, might do himself; but he has no right to enter into.private or executory contracts. The powers of an attorney do not extend to the making of any collateral agreement. 666 CITATIONS TO THE CODE OF VIRGINIA. In the case of Wilson vs. Stokes and Betts, 4 Munf., 455, de-^ cided October, 1815, it was held: It seems that since the attor- ney-at-law, "who prosecutes a suit and obtains judgment, has full power to receive the money recovered when levied by exe- cution, a demand made by him of the sheriff by whom it is levied is sufficient to authorize a motion against such sheriff for non-payment. In the case of Jas. /Smock vs. Laurence T. Dade, 5 Rand., 639, decided by the General Court, November, 1826, it was held : An attorney-at-law has no right to receive a bond from the debtor in discharge of his client's claim, without the assent of the client. If he does, he is the agent not of the plaintiff, but of the defendant, and the plaintiff may still proceed against the defendant. In the case of Wilkinson da Co. vs. Holloway, 7 Leigh, 277, decided February, 1836. An attorney-at-law employed to col- lect a debt may receive payment in money, but has no authority to accept anything else in satisfaction. Therefore, where an attorney employed to collect a debt dis- counts from it a debt he himself owes the debtor, and takes for the balance the debtor's assignment of a bond of third persons, the creditor is not bound by such arrangement. An attorney-at-law employed to collect a debt takes in satis- faction thereof the debtor's assignment to the creditor of a bond of third persons held by the debtor, and institutes a suit on the assigned bond against the obligors ; the creditor prosecutes the suit, which is long pending, and pays the costs therein incurred. Held : The creditor does not thereby ratify the act of the attor- ney in commuting the original debt ; and the recovery against the obligors in the assigned bond having proved unavailing, the debtor's liability still continues. In the case of Smith's Administrators vs. Lambert, 7 Grat., 138, decided November 18, 1850. An attorney-at-law receives a claim for collection, and he brings suit upon it and obtains a judgment. The debtor then puts into his hands the bond of a third person for about the amount that is due on the judgment, and the attorney gives him a receipt by which he says that he has received the bond on which he is to bring suit, and after paying himself his fee and commission is to apply the balance to the credit of the judgment. The attorne} 7 receives the money on the bond, but does not pay it over to the creditor. Held : This is a valid payment by the judgment-debtor. In the case of Hill et als. vs. Bowyer et als., 18 Grat., 364, decided April, 1868, it was held, p. 378 : A defendant upon whom process has been served, who wholly neglects his defence, or contents himself with merely writing to a lawyer who practices. in the court to defend him, without giving him any information, CITATIONS TO THE CODE OF VIRGINIA. 667 about his defence, or inquiring whether he is attending to the case, is not entitled to relief against a decree by default, on the ground of surprise, however grossly unjust the decree may be. In the case of Holland et ux. vs. Trotter, 22 Grat., 136, de- cided April 10, 1872, it was held, p. 143 : Where the defendant at law has been prevented from making his defence by the as- surances or promises of the counsel of the plaintiff, the court will relieve him. In the case of Wilson et ux. vs. Smith, 22 Grat., 493, decided August 28, 1872, it was held : In a suit for partition of real estate by W. against S. W. dies and the suit is revived in the name of his widow and infant son. The counsel employed by W. will be presumed, in the absence of evidence to the contrary, to be continued as counsel in the cause ; and a decree for a sale of the property entered upon a consent of the counsel is a valid decree, and the sale under the decree will be sustained. In the case of Johnson vs. Gibbons, 27 Grat., 632, decided July, 1876, it was held : In 1860 attorneys-at-law receive two notes and give a receipt which says: "Beceived for collection," and describing them, says : " On the above notes we are about to bring suit, and prosecute them to judgment, and to have a fee of five dollars in each case." Though the clause of the receipt may be construed to relieve them from the obligation to collect, and from the corresponding compensation or commission for collecting, it cannot be construed to deny to them the authority to collect, or to limit them to the function of prosecuting the claims to judgment. Judgments having been recovered in the cases, and executions issued, which were stayed, the debtor in 1862 pays to the at- torneys two thousand six hundred dollars in part of these debts, the payment being in Confederate money, neither the attorneys nor the debtor having any notice that the creditor was unwilling to receive Confederate money, and the attorneys write immedi- ately to the creditor that they have this money for him ; and he, holding that the attorneys had no authority to collect the money, does not reply to their letter, and neither attorneys nor debtor hear of any objection to their receipt of the money until 1874. The creditor is concluded by his failure to give his attorneys notice of the objection to their receiving the money. SECTION 3201. In the case of Yates t& Ayres vs. Robertson & Berkley, 80- Va., 475, decided May 7, 1885, it was held: The clerk of the court cannot tax against the losing party in a suit other than the fees prescribed by statute. But contracts, expressed or im- plied, between attorney and client for fees, are not limited as to the amount, and may be enforced as other contracts. A client 668 CITATIONS TO THE CODE OF VIRGINIA. cannot refuse to pay his attorney his fees, though that attorney be practicing without license. In the case of Thomas vs. Turner's Administrator et als., 87 Va., 1, decided November 6, 1890, it was held: This section, enacting that " in any contract made with an attorney, other or higher fees shall be valid, and may be enforced in like manner with other contracts," does not apply to an agreement made after the relation of attorney and client is established. In the case of Rixey ( Trustee) vs. Peare Bros. & Co., 89 Va., 113, it was held : An agreement in a note to pay an attorney's fees for collection is a penalty, and not enforceable. SECTION 3202. In the case of Citizens' National Bank of Charlottesville vs. Manoni, 76 Va., 802. Judicial Sales Costs Fees of Counsel. When property is sold iinder a decree of court to satisfy liens thereon, out of the proceeds must be paid the taxed costs, but not more than the legal fee to the plaintiffs counsel. If an al- lowance beyond the usual fee for counsel representing the cre- ditors be proper, and it be paid out of the proceeds, it should be credited ratably on the liens, so as not to tax the debtor with- it. In the case of Doswell vs. Anderson, 1 Patton & Heath, 185, decided January, 1855, it was questioned: Whether the trust subject is liable beyond the profits for fees of counsel employed by cestui que trust and trustee. In the case of Gurnee vs. Bausemer & Co., 80 Va., 867, de- cided October 8, 1885. B. & Co. held judgments against M. binding on land of his surety, W., aliened to G. In a suit of Band vs. M., funds were recovered to pay M.'s debts. A decree was entered requiring those participating in said funds to pay iJ5 per cent, of their claims for fees allowed plaintiffs counsel. B. & Co. participated, received the amounts of their judgments, less said 25 per cent., and receipted in full. Later, B. & Co. claimed that their judgments were subsisting liens on W.'s land aliened to G., who was no party to the suit, to the extent of said 25 per cent. ; and the court below directed the receiver to collect said 25 per cent, of G. On appeal it was held : Release of the principal, M., was the release of his surety, W., and the judg- ment-liens were discharged in toto. Creditors have no legal right to be reimbursed by their debtors for counsel-fees con- tracted by them. G. being no party to the suit, the decree was -a nullity quoad him. i CHAPTER CLV. CITATIONS TO THE CODE OF VIRGINIA. 669 TITLE XLVHI. CHAPTEK CLVI. SECTION 3207. See references to Section 3224. In the case of Seffouine vs. the Auditor of Public Accounts, 4 Muni., 398, decided March 13, 1815, it was held: A notice that a motion will be made for a judgment against a sheriff for the amount of his receipt for sundry executions for fines, " as appears by a copy of said receipt," is sufficient, without men- tioning the aggregate sum due, the separate amount of each execution, or the time when delivered to the sheriff. And a judgment thereupon for the aggregate sum due, without dis- tinguishing the amount of each execution, will be sustained if conformable to law in other respects. A notice is sufficient if delivered to a free white person above sixteen years of age, in whose house the party for whom it is intended is a boarder, though not a permanent resident. In the case of Barksdale vs. Neal, 16 Grat., 314, decided March 5, 1862, it was held: A return upon a summons "ex- ecuted in person," signed by the deputy-sheriff with his own name and that of his principal, shows that the summons was actually served on the defendants; and therefore if it is de- fective the defect can only be taken advantage of by plea in abatement. In the case of Goolsby, etc., vs. St. John, 25 Grat., 146, de- cided June, 1874. In 1866 S. sues G. & R., partners, in debt. The sheriff returns on the process executed on G., leaving a copy at the house with his sister, and on R., leaving a copy at his house with his wife. On his return there is an office judg- ment confirmed. The stay-law prevents an execution on this judgment, but there is a judgment upon notice for a year's in- terest upon the judgment in 1867, and also in 1868. In 1870 execution is issued on the judgment, when G. & R. enjoin it on the ground that a credit of one hundred dollars endorsed on the note should have been six hundred dollars, and that the process was not properly served, and they had no notice of the suit. S. demurs to the bill for want of equity. Held : G. & R. having had notice of the judgment within the time limited for a motion to quash it, they had a remedy at law by motion to quash the sheriff's return, and therefore they are not entitled to relief in equity. In the case of McVeigh vs. The -Bank of the Old Dominion, 26 Grat , 785, decided November 18, 1875, it was held: The statute directing how notices may be given does not apply to a notice of the dishonor of negotiable paper. 670 CITATIONS TO THE CODE OF VIKGINIA. In the case of Smithson vs. Briggs, 33 Grat., 180, decided April, 1880. In an action of ejectment, the officer returns upon the rule to plead, "G. W. Smithson not being found at his usual place of abode, a true copy of the within rule was left at his residence with his daughter, who is over the age of six- teen years, and purport explained to her, this 28th day of August, 1871." Held: It will be presumed that the word "residence" was used as synonymous with "his usual place of abode," and that the daughter was a member of defendant's family, and the notice was sufficient. In the case of Clay et als. vs. Walter <& Co., 79 Va., 92, de- cided May 1, 1884, it was held, p. 97 : Whatever the design of the grantor, a settlement on a woman in contemplation and in consideration of marriage is valid, unless her knowledge of his intended fraud is clearly and satisfactorily proved. Service, by creditors of grantor of written notice on the grantee, before the marriage, of his fraudulent design in making the settlement, cannot affect her constructively with notice of such design ; but her actual knowledge of, and participation in, that fraudulent design must be clearly established by proof. The reference to 11 Virginia Law Journal, 627, is an error, as nothing in point there appears. In the case of Drew vs. Anderson, 1 Call, 51 (2d edition, 44), decided November 16, 1797, it was held: If notice, which is the act of the parties and not of counsel, be general, it is to be fa- vorably expounded, and applied to the truth of the case as far as it will bear ; but if it descends to particulars, it must be correct as to them. In the case of Graves vs. Webb, 1 Cp-11, 444 (2d edition, 385), decided November 2, 1798, it was held: If the notice apprise the defendant of the grounds of the motion, it is sufficient. In the case of Lemoiyne vs. Montgomery, 5 Call, 528, decided October, 1805, it was held : If the notice on a forthcoming bond be signed by the plaintiff, it is sufficient, although it omit to state to whom the bond is made payable, as the defendant in such a case has no reason to presume that the plaintiff means to move upon a bond not given to himself. For reference to 4 Munf., 398, see supra, this section. In the case of Cooke vs. The Patriotic Bank of Washington, 1 Leigh, 433, decided October, 1829. In a notice of a motion to be made on a forthcoming bond, the' bond is described by mis- take as executed by John, when it was, in fact, executed by George M. Cooke. It was held : Variance material, and notice insufficient. In the case of Hendricks vs. Shoemaker, 3 Grat., 197, decided July, 1846, it was held : One joint notice to the constable and his sureties, upon defaults of the constable in several cases, is CITATIONS TO THE CODE OF VIKGINIA. 671 sufficient, and the justice should give a separate and distinct judgment in each case. In the case of Booth vs. Kinsey, 8 Grat., 560, decided April, 1852. A debtor in execution executes a forthcoming bond to the creditor, and a third person and the obligee execute the bond with the debtor, as his sureties. The bond being forfeited, the obligee gives notice to the principal obligor and the other surety of a motion of award of execution upon the bond against them, but the notice does not mention the obligee as co-obligor. Held : The notice is not defective for failing to mention the obli- gee as a co-obligor. In the case of Monteith (Sheriff} et als. vs. The Commonwealth, 15 Grat., 172, decided April, 1859, it was held: The notice to the sheriff and the sureties being of a motion for a balance of the land, property, and free negro taxes of 1857, and the judg- ment being for a balance due upon these and also upon the license tax, this is error, for which the judgment will be re- versed in the appellate court. In the case of Board of Supervisors of Washington County TS. Dunn et als., 27 Grat., 608, decided June, 1876, it was held: A notice by the supervisors of a county to D., late sheriff, and his sureties, that they will move the county court at its Novem- ber term to render judgment against them for the sum of $4,840.03, the same being the amount of said D.'s deficiencies and default for the county's levy for the year 1869 that went into D.'s hands as sheriff as aforesaid, and which he had failed to account for, etc., is sufficiently specific and definite to warrant a judgment thereon. The rules governing notices are, that they are presumed to be the acts of parties, and not of lawyers. They are viewed with great indulgence by the courts, and if the terms of the notice be general, the court will construe it favorably, and will apply it according to the truth of the case, as far as the notice will ad- mit of such application. If it be such that the defendant can- not mistake the object of the motion, it will be sufficient. In the case of Carr et als. vs. Mead's Executors et als. ; Same vs. Clayett's Executors et als., 77 Va., 142 and 158, decided Feb- ruary 18, 1883. In 1871, on the entire stock of goods of S. B., a retail storekeeper, execution of R. F. & Co. was levied by W. B., then sheriff. Thereupon same claimants for the goods on di- vers pretexts, notably M. and C., who claimed by levy thereon by a former sheriff, under senior executions. Sale was made by W. B., sheriff, who then instituted a chancery suit convening F. R & Co., M. C., and the other claimants, and had an account of liens and priorities. In 1875 the court decreed that sheriff,. W. B., pay out proceeds to M. and to C. their respective claims. Sheriff, W. B., squandered the money and became in- 672 CITATIONS TO THE CODE OF VIRGINIA. solvent. In 1879 M. and C. moved the county court of L. y wherein sheriff, W. B., qualified for judgment against him and sureties for money each was entitled to. Defendants moved to dismiss for want of jurisdiction, and to quash the notice for want of certainty, and to amend return on the execution, all whereof the county court overruled, but, on motion of plaintiffs, admitted as evidence the chancery record, yet on the merits ad- judged for defendants. On error, circuit court affirmed the overruling of defendants' motion and the admitting of the re- cord as evidence, but reversed the judgment on the merits, and adjudged to M. and to C. the sums of money each was entitled to, and costs. On error here, held : 1. The county court of L. had jurisdiction to hear and deter- mine the motions of M. and C. for judgments on the official bond of the sheriff and his sureties. 2. The notice was sufficient. See references to Section 3249. In the case of Fowler vs. MosJier, 85 Va., 421, decided Sep- tember 20, 1888. This section provides that notice may be served by delivering a copy to a "member of the family" of the person to be notified. Held : Delivery to a " mere boarder, a stranger to his blood " is not sufficient, and appearing and con- testing validity of service is no waiver of defects of notice. Sed qucere : Is delivery to a servant of the person to be notified suf- ficient ? By this section, return stating that person to be noti- fied was " not at home." Held : Sufficient to authorize service upon member of his family. SECTION 3209. In the case of Virginia Fire and Marine Insurance Company vs. Vaughn, 88 Va., 832, decided March 10, 1892. Service of summons on defendant's agent having been made within ten days of return-day, and suit having been remanded to rules to be properly matured, and an alias summons having been issued and duly served, it was held: Commencement of suit was the issuance of original summons and saved the suit from being barred by the limitation clause in the policy. SECTION 3210. In the case of Carr et als. vs. Mead's Executrix' et als., 77 Va., 142, decided February 8, 1883, it was held : To sustain such motion, any notice, however informal, which informs the defend- ants of the nature and object of the motion is sufficient. SECTION 3211. In the case of Amis vs. Roger, 7 Leigh, 220, decided Feb- ruary, 1836. Notice is given by K. to M. of a motion to be made at June term of a county court for money paid by K. as CITATIONS TO THE CODE OF VIRGINIA. 673 A.'s surety ; the motion is continued without A.'s consent from June term to August term, passing by the intermediate July term: Held: This was a discontinuance, and a judgment subse- quently rendered for the plaintiff on the same notice is there- fore erroneous. In the case of Hale vs. Chamberlain, 13 Grat., 658, decided February 10, 1857, it was held: In a proceeding under the statute to recover money due upon contract by notice, the notice must be returned forty days before the commencement of the term, and put upon the docket of the court, or it cannot be tried at that term. In the case of Davis (Sheriff] vs. The Commonwealth, 16 Grat., 134, decided March 5, 1861, it was held, p. 136 : All judgments where there has been no appearance by the defendant are judg- ments by default, within the meaning of the act. SECTION 3212. In the case of Glassel vs. Delima, 2 Call, 368 (2d edition, 309), decided October 27, 1800, it was held : On a joint notice to all the obligors in a forthcoming bond the plaintiff may take judgment against one of the defendants. In the case of Walking's Executor vs. Tate, 3 Call, 521 (2d edi- tion, 451), decided June 28, 1790, it was held : The executors of two deceased joint obligors cannot be joined in the same action. In the case of Grymesvs. Pendleton, 4 Call, 130, decided May, 1788, it was held : The representatives of two deceased persons cannot be joined in the same action, although the undertakings of the testators might have been joint and several. In the case of Winston vs. WhitlocJce, 5 Call, 435, decided April, 1805. A. gave a forthcoming bond with W. as security. Judgment was rendered on the bond against A. and a fi. fa. issued. Property was taken, but the ji. fa. was not returned. Held: These proceedings were no bar to a motion upon the bond against W. In the case of Booth vs. Kinsey, 8 Grat., 560, 565, decided April, 1852. A debtor in execution executes a forthcoming bond to the creditor, and a third person and the obligee execute the bond with the debtor, as his sureties. The bond being for- feited, the obligee gives notice to the "principal obligor and the other surety of a motion for award of execution upon the bond against them ; but the notice does not mention the obligee as co-obligor. Held : That the bond is a valid bond to bind the other surety, but that he is only liable as a co-surety with the obligee. That if the principal creditor proves insolvent the surety mny be relieved to the extent of one moiety of the debt, either by bill 43 674 CITATIONS TO THE CODE OF VIRGINIA. in equity, or by motion under the statute for the relief of sure- ties. The notice is not defective for failing to mention the obligee as a co-obligor. SECTION 3213. In the case of Asbury, etc., vs. Calloway, etc., 1 Wash., 72, decided at the spring term, 1792, it was held : On a motion on a joint obligation, where one defendant after severance pleads non est faction, such plea should be determined by a jury before any judgment in the case be entered. In the case of Burke (Administrator), etc., vs. Levy's Execu- tors, 1 Rand., 1, decided November, 1821, it was held: "Where non est factum is pleaded to a motion on a forthcoming bond, the court may render judgment without the intervention of a jury, or they may empanel a jury to try the issue at their dis- cretion. In the case of McJZinster vs. Garrot et als., 3 Rand., 554, de- cided December 1, 1825, it was held : No formal issue need be joined on motion on forthcoming bond, as the pleadings may be ore tenus, and the court may pronounce judgment on the evi- dence. In the case of Claflin & Co. vs. Steenbock <& Co., 18 Grat., 842, decided June, 1868, it was held, p. 846 : On a motion to abate an attachment on the ground that it was issued on false suggestions, and without sufficient cause, the plaintiff declining to express any wish for a jury, and the defendant expressing a wish that a jury might be dispensed with, and that the court should hear and decide the case, the court should hear and de- cide it without a jury. The reference to 27 Grat., 608, is an error. In the case of Dunlap vs. Dillard <& McCorkle, etc.; Same vs. Karn & Hickson, 77 Va., 847, decided October 18, 1883, it was held, p. 855 : The power given any circuit court in vacation, under the act of 28th of February, 1866, amending Code 1860, Chapter 151, Section 148, to quash or to dismiss an attachment, conflicts not with, and repeals not, any other provision of that chapter, and was intended to give the defendant a speedy and summary remedy where he has a clear defence, and to have the attachment quashed or dismissed, if in the opinion of the judge it was sued out without sufficient cause. The judgment in vacation, under said Section 6, refusing to quash or dismiss the attachment, is not final, and does not supersede the defendant's right to make defence at the trial in term against the attachment in any respect under Sections 21, 22, and 23 of said chapter. The court's order for the defendant's delivery of the attached and replevied property to the sheriff should be reasonable as to the time and place of such delivery. CITATIONS TO THE CODE OF VIRGINIA. 675 CHAPTEB CLVII. SECTION 3214. In the case of Beirne vs. Rosser & Turner, 26 Grat., 537, de- cided September 23, 1875, it was held: R. brings assumpsit against B. in the county of N., and the process is served upon him. B. appears at the rules and files a plea in abatement, that at the time of the service upon him, and at this time, he was not and is not a resident of N., but was and is an inhabitant of, and resides in, M. county, West Virginia. This plea does not give the plaintiff a better writ in this State, and is therefore bad. In the case of Warren vs. Saunders, 27 Grat., 259, decided March 9, 1876. "W. sues S. in assumpsit in the county of J., and sends the process to the city of R. where S. resides, and it is served upon S. by the sheriff of R. S. files a plea in abate- ment stating these facts, but does not say where the cause of action arose. Held : The plea is sufficient in this case, though it does not give the plaintiff a better writ. W. having demurred to the plea, and the court having sus- tained the demurrer, when the cause is called for trial S. moves to dismiss the cause from the docket. Held : The motion should have been sustained and the suit dismissed ; the statute expressly providing that, when the suit is brought where the cause of ac- tion arose, process shall not be directed to an officer of any other county or corporation than that wherein the action is brought. In the case of Hull vs. Fields & Thomas, 76 Va., 594. Jurisdiction. Annulment of Conveyance. Case at Bar. Under contract made in S. county, H. executed deed conveying real estate therein situated to F. & T. Later, in the circuit court of that county, H. brought suit against F. & T. to rescind the contract and vacate the deed. Summons was not served in that county on either of the defendants, both of whom resided elsewhere. Held : The suit was properly brought in S. county under Code 1873, Chapter 165, Section 1, Clause 3, and Sec- tion 2. See Warren vs. Saunders, 27 Grat., 259, supra. In the case of IZngland vs. Broadnax et (ds., 29 Grat., 401, decided November, 1877, it was held : The Circuit Court of the city of Richmond has no equity jurisdiction except in certain cases specified in the statute, in which the State is interested or some of the officers and boards representing the State are necessary or proper parties; and in such cases its jurisdiction is exclusive. In the case of TJw, Commonwealth (by, etc.) vs. Ford et als., 29 Grat., 683, decided January, 1878, it was held. p. 694 : A judg- ment in the name of the Commonwealth for W., treasurer of 676 CITATIONS TO THE CODE OF VIRGINIA. C. county, founded .on a notice in the name of the Common- wealth, proceeding by "W., late treasurer of C., against F. t the collector of township M., and his sureties upon his official bond, is a judgment in favor of the Commonwealth. On such a judgment the Commonwealth, at the relation of T., auditor of accounts, may maintain a suit against F. and his sureties. The judgment having been recovered in C. county, the suit may be brought in that county. Except in cases where it is other- wise specially provided for, the Commonwealth may prosecute her suits in any of the courts in which other parties may prose- cute suits of like character. In the case of Blanton ( Commissioner) vs. Southern Fertilizer Company et als., 77 Va., 335, decided March 29, 1883, it was held : This court has chancery jurisdiction only in cases where it may be necessary or proper to make certain enumerated offi- cers or corporations defendants. The commissioner of agricul- ture is not one of these. Chancery has jurisdiction to enjoin illegal acts of an officer attempted colore qfficii. A suit against an officer is not neces- sarily a suit against the State, e. g., a suit to restrain one from doing unlawful acts under color of an executive office, such as any illegal acts of the commissioner of agriculture. SECTION 3215. For the references here given, see supra, Section 3214. CHAPTER CLVIII. SECTION 3220. In the case of Kyles vs. ford, 2 Band., 1, decided November 7, 1823, it was held: It seems that where a scire facias against bail is returnable to a rule-day, the day of return and of ap- pearance are the same. If the writ is returnable to the first day of a court, and that happens to be a rule-day, that day is also the appearance-day. But if a scire facias is made return- able to a rule-day, and the same day is the first day of the court, the writ is merely void, for in that case it can only be re- turnable to the first day of the court. Process made returnable to a day which is not a return-day is void ; and a scire facias cannot be amended. In the case of Couch vs. Miller, 2 Leigh, 545, decided Feb- ruary, 1831. JLfi. fa. is directed to the- sheriff of Campbell, but is delivered to, and levied by, the sergeant of Lynch burg, who takes a forthcoming bond upon it, reciting that the writ had been directed to the sergeant. Held : The writ gave no author- ity to the sergeant, and no warrant to him to take the forth- coming bond ; and that the bond is variant from the execution, and therefore the bond ought to be quashed. CITATIONS TO THE CODE OF VIRGINIA. 677 In the case of Hare vs. Niblo, 4 Leigh, 359, decided March, 1833. A capias ad respond enditm is made returnable to the next term generally, instead of the first day of the term, as the statute requires ; the writ is executed before the term, and re- turned to the first day ; an office judgment is entered at rules ; at the ensuing term defendant moves to quash the writ and all the proceedings on it at rules, on the ground that the writ, be- ing returnable to the term generally, was naught; and the court -overrules the motion. Held : The motion was rightly overruled. In the case of IRckam vs. Larkey, 6 Grat., 210, decided July, 1849, it w r as held : A defendant in an action at law, not having -entered his appearance either at rules or in term, has a right, on the calling of the cause, to object that it has not been legally matured for trial. In considering such objection, all the pro- cesses, returns, and proceedings are necessarily parts of the record, and are to be looked into. A writ which purports to be a pluries capias, but which is without date, and is not attested by the clerk, is wholly null and void as process ; and an order based thereon directing a proclamation to issue, and all the subsequent proceedings, are without warrant and illegal. See the case of Warren vs. Saunders, cited ante, Section 3214. SECTION 3224. The reference to 11 Va. Law Journal, 627, is an error, not in point. In the case of Andrews vs. Fitzpatrick, 89 Va., 438, decided December 1, 1892, it was held : Unless the office of coroner is vacant, or the incumbent under disability, a constable cannot lawfully serve a process directed to the sheriff. Such is no legal service, and should be quashed. SECTION 3225. In the case of The Bank of Virginia vs. Craig, 6 Leigh, 399, decided May, 1835. Bill filed by the sureties of a guardian, and the president and directors of the Bank of Virginia, not the president, directors and Company of the Bank of Virginia, which is its corporate name ; injunction ordered by the court against the guardian, to restrain him from selling his ward's stock in bank ; a suhpmna, with an injunction endorsed by the clerk, to restrain the directors and president of the bank from permitting the guardian to transfer the stock, is served on the president. This process, so served, does not bind the bank ; nor is it even notice to the bank, actual or constructive, of the equity asserted by the guardian's sureties in their bill, since the bank in its corporate character is not party to the bill, and the president is not the officer of the bank whose province it is to receive such notice. 678 CITATIONS TO THE CODE OF VIRGINIA. In the case of Mason vs. Farmers' Bank of Petersburg, 12 Leigh, 84, decided March, 1841. Upon the construction of the statute "authorizing suits against branch banks in this Com- monwealth." Held: A suit cannot be maintained against the president and directors of the branch; the suit must still be brought against the principal bank by its corporate name. In the case of The Bank of the United States et als. vs. The Merchants' Bank of Baltimore, 1 Rob., 573 (2d edition, 605). Under the act in 1 Rev. Code 1819, Chapter 123, p. 474, direct- ing the method of proceeding in courts of equity against absent debtors, a creditor of a corporation created by another State may maintain a suit in equity against such corporation as a de- fendant out of this Commonwealth, where there are persons within the same who have in their hands effects of, or are in- debted to, such absent defendant; or may maintain a suit in equity against such corporation as an absent defendant, where it has lands or tenements within the Commonwealth. In the case of Baltimore & Ohio Railroad Company vs. Gal- lahue's Administrators, 12 Grat., 655, decided September 11, 1855, it was held, p. 661 : The Baltimore & Ohio Railroad Conir pany is a corporation of the State of Virginia, and although its principal office is in Maryland, and its principal officer resides there, it may be sued in Virginia on contracts made here. A corporation may be summoned and proceeded against as a garnishee. When the word " person " is used in a statute, cor- porations as well as natural persons are included for civil pur- poses. When a corporation is proceeded against as a garnishee, its answer is to be received in the only mode in which a cor- poration can answer, under its corporate seal. The reference to 16 Grat., 314-317, is an error. In the case of Fairfax vs. City of Alexandria, 28 Grat., 16, decided January, 1877, it was held : In a proceeding to confis- cate property of a person charged to be in rebellion, the direc- tions of the attorney-general are, that the method of seizure of the property shall be conformed as nearly as may be to the State laws, if there be such. When, therefore, the proceeding is to confiscate debts due from a municipal corporation, the notice to the debtor must be to the mayor or other officer named in Vir- ginia statute ; and notice given to the auditor of the corporation is of no effect ; and the judgment based upon such notice is null and void. In the case of Shenandoah Valley Railroad Company vs. J. T. Griffith et als., 76 Va., 913 and 922. Return. Appellate Court. An objection to a defective return of the service of process, made here for the first time, is too late. In the case of Dillardvs. Central Virginia Iron Company, 82 CITATIONS TO THE CODE OF VIEGINIA. 67 9 Va., 734, decided January 13, 1887, it was held: Section 3232 applies only to non-resident defendants who are natural per- sons, and not to corporations nor their agents. Service of pro- cess upon corporations must be in this State upon an officer or agent resident here. In the case of N. & W. R. R. Co. vs. Cottrell, 83 Va., 512, de- cided June 30, 1887, it was held: The service on any corpora- tion, other than a bank of circulation, may be on any agent thereof in the county or corporation in which he resides, or in which the principal office of the company is located, whatever may be the employment of such agent. SECTION 3227. In the case of Raub vs. Otterback, 89 Va., 645, decided Feb- ruary 16, 1893, it was held: A writ which summoned defend- ants "before the of our circuit court" is meaningless. A writ returnable at rules " on the first day of the next term, 1889," that day being the second Monday in June, whereas there was no rule until the third Monday, was invalid. SECTION 3229. In the case of Lee & Fitzhugh vs. Chilton, 5 Munf., 407, de- cided February 7, 1817, it was held : On a writ of scire facias against bail, a return by the sheriff that the defendant is no in- habitant of his bailiwick, and is not found within the same, is not a sufficient return of nihil: but it should be stated, also, that he has nothing in the bailiwick by which he could be sum- moned. SECTION 3230. In the case of The United States (Incorporated by Pennsyl- vania and others) vs. The Merchants' Bank of Baltimore, 1 Rob., 573 (2d edition, 605). Under the act in 1 Revised Code, 1819, Chapter 123, page 474, directing the method of proceeding in courts of equity against absent debtors, a creditor of a corpora- tion created by another State may maintain a snit in equity against such corporation as a defendant out of this Common- wealth, where there are persons within the same who have in their hands effects of, or are indebted to, such absent defend- ant ; or may maintain a suit in equity against such corporation as an absent defendant, where it lias lands or tenements within the Commonwealth. In the case of The Baltimore & Ohio Railroad Company vs. Gallahue's Administrators, 12 Grat., 655, decided September 11, 1855, it was held: Where the word "person" is used in a stat- ute, corporations as well as natural persons are included for civil purposes. In the case of Dorr's Administrators vs. Rohr et als., 82 Va., 680 CITATIONS TO THE CODE OF VIRGINIA. 359, decided September 16, 1886, it was held : During the war between the Confederate States and the United States an order of publication executed in Virginia was withovit legal effect, and was no notice, actual or constructive, upon a resident of New York. This is the case cited from 10 Virginia Law Journal, 720. In the case of The Wytheville Insurance Company vs. Stultz, 87 Va., 629, decided April 9, 1891, it was held: Where a com- pany that does business both in banking and insurance is sued on a policy in the county where the insured property lies, and there is no agent residing there on whom process may be served, an order of publication is proper. SECTION 3231. See the references given to Section 3358. In the case of Hunters Executor and Hemdoris Executors vs. Spotswood, 1 Washington, 145, decided at the fall term, 1792. There was an order of publication, not noted in the record. A certificate was produced from the clerk of the high court of chancery stating that due publication had been made. Held : Insufficient. The order must appear in the record. In the case of Myrick (Administrator of Lundie] vs. Adams, 4 Munf., 366, decided January 30, 1815, it was held: Proof that an order of publication has been inserted in a newspaper for two months is not sufficient. It should also be proved that a copy was posted at the front door of the house in which the court is held. In the case of Craig vs. Sebrill, 9 Grat., 131, decided August 2, 1852, it was held : In a suit in which there is an absent de- fendant, the decree recites that the cause came on, as to him, upon the bill, etc., and upon order of publication duly executed. This is conclusive that the order was duly made, published in the newspaper, and posted at the front door of the court- house. In the case of Moore et als. vs. Holt, 10 Grat., 284, decided July, 1853, it was held, p. 291 : The decree states that the or- der of publication against the absent defendant has been duly published. It is to be taken in an appellate court that every- thing required by the statute was done. SECTION 3232. In the case of Anderson vs. Johnson, 32 Grat., 558, decided December 18, 1879, it was held : The certificate of M., describ- ing himself as a justice of the peace of the county of B., in the State of Ohio, that P., a deputy-sheriff of said county and State, had made oath before him, the said M., of the delivery to the defendant of the copy of the summons and attachment, CITATIONS TO THE CODE OF VIRGINIA. 681 not objected to in the court below, cannot be objected to in the appellate court. In the case of Smith & IVimsatt vs. Chilian, Assignee ; Boyd M. Smith vs. Same, 77 Va., 535, decided May 10, 1883. In 1878 C. sued out foreign attachments against S. & W., non- residents, and L., home defendant. The original summons was served on L., and as to S. & W. was returned " S. & W. non- residents." After the return-day another summons was re- turned endorsed, " Hereby we acknowledge legal service of the within," which acknowledgment was made in the District of Columbia. In 1879 sale of the attached effects was decreed. In 1880, before the decree was executed, S. & W. appeared and petitioned that the cause be reheard. The circuit court dis- missed the petitions. Held : The acknowledgment by S. & W. of legal service within the District of Columbia must be treated as equivalent to an order of publication duly posted and pub- lished, and no more. Such acknowledgment did not give the court jurisdiction over the persons of the defendants so as to entitle it to render personal decrees against them, but it had the effect of substituted service under Code 1873, Chapter 166, Section 15, and brought these causes within the purview of Sec- tion 27, Chapter 148, Code 1873, and entitled the defendants, at any time within five years from the date of the decree, to have the cause reheard. The acknowledgment of the service sixty days before the date of the decrees complained of does not mil- itate against the defendants' right to have the causes reheard. In the case of Burwell et als. vs. Jf'itrwell's Guardian, 78 Va., 574, decided January 31, 1884, it was held : Where order of publication has been duly executed against non-resident or un- known defendants, no other notice is required to be given them in any proceedings in court or before a commissioner, or for the purpose of taking depositions, unless specially ordered by the court, if those defendants shall not appear within one month after completion of publication. But if they so appear, then they are entitled to notice in all the subsequent proceedings in the suit. In the case of Dillnrd vs. Central Virginia Iron Company, 82 Va., 734, decided January 13, 1887, it was held: This section applies only to non-resident defendants who are natural per- sons, and not to corporations or their agents. Service of pro- cess upon corporations must be in this State upon an officer or agent resident here, according to Code, Section 3225. Suit is brought in a county in this State against a corporation domiciled in that county, and process is served upon the president of the company, resident in Philadelphia, by a third party, who make affidavit as required by this section. Held : Such service is insufficient to give the court jurisdiction. This is the case cited in 11 Virginia Law Journal, 351. 682 CITATIONS TO THE CODE OF VIRGINIA. SECTION 3233. In the case of Rootes (Executor) vs. Tomkins (Trustee), 3 Grat., 98, decided April, 1846, it was held: The statute directing the decree against an absent debtor to stand absolutely confirmed against the absent debtor who shall not within seven years ap- pear and petition to have the cause reheard, only applies to so much of such decree as operated upon the estate or effects of such absent debtor, subject to the jurisdiction of the courts of this Commonwealth. A decree in personam against an ab- sent debtor is entitled to all the respect to which any other decree is entitled in all collateral controversies. So if the property is sold under an execution issued thereon, the title to said property cannot be impeached by objections to the form or merits of the decree. A decree against an absent debtor merges the original cause of action, so far as to enable the plaintiff to rely thereon in any subsequent proceeding to enforce it, asprima facie evidence of the demand it establishes, and to repel the statute of limitations except so far as the statute may apply to judgments or de- crees. Such a decree, so far as it reaches beyond the cause or thing subject to the jurisdiction of the court, and purports to operate in personam merely, so as to create a personal charge alone, is not of such binding and conclusive character as to preclude all in- quiry into the merits thereof, notwithstanding more than seven years have elapsed since it was pronounced ; but it may be shown to be erroneous, either upon its face, or by evidence ali- unde. Decrees against absent defendants have the same effect as decrees against absent debtors, and so far as the decree operates upon a subject within the jurisdiction of the court, the interests of such absent defendant therein are conclusively bound by the decree, unless he shall appear and petition for a rehearing within seven years. But the limitation of seven years has no appli- cation to so much of the decree as acts in personam, and estab- lishes a personal demand. In the case of James River c& KanawTia Company vs. Lit- tlejohn, 18 Grat., 53, decided October, 1867, it was held: In a suit in which there is an absent defendant, there is a decree against the home defendant, from which he appeals. Pending the appeal, the absent defendant may file his petition in the court below to be permitted to appear and file his answer in the cause, and may have the decree reheard and set aside if it is erroneous as to him. If upon such rehearing the decree, or so much of it as is the subject of appeal, is wholly set aside, the appeal will generally be dismissed. But if an appeal is taken from the decree on. CITATIONS TO THE CODE OF VIRGINIA. 683 the rehearing before the dismissal of the first appeal, the appel- late court may refuse to dismiss it. In the case of Crnlle vs. Cralle, 79 Va., 182, decided May 1, 1884, it was held : Defendants not served with process and not appearing may, if not served with a copy of the judgment more than a year before the end of five years from its date, within such five years have the case reheard; and if so served more than a year before the end of such five years, may do so within a year from such service. CHAPTEE CLIX. SECTION 3236. In the case of Botts vs. Pollard, 11 Leigh, 433, decided No- vember, 1840, it was held : The rules shall be kept open for all purposes as long as the statute permits. SECTION 3240. In the case of Ross vs. Gill et ux., 1 Wash., 87, decided at the spring term, 1792, it was held : The court has no power to direct a non-suit. They may advise it and direct the plaintiff to be called, but if he refuse to suffer a non-suit the court can only enforce their opinion by directing a new trial in case the jury finds against their direction. The reference to 6 Rand., 674, is an error. In the case of Walker vs. Boaz, 2 Rob., 485, decided Novem- ber, 1843. A non-suit in a writ of right having been suffered under misapprehension on the part of the demandants and their counsel as to the legal effect of an instruction given at the trial, held : The court in the exercise of a sound discre- tion should, on the motion of the demandants, have set aside the non-suit, and this not having been done, the judgment overruling, such motion was reversed. SECTION 3241. In the case of Buchanan et als. vs. King's Heirs, 22 Grat., 414, decided July 13, 1872, it was held: It is the duty of a clerk to dismiss a suit when the process is served and the bill is not filed within the time prescribed by the statute. But if the bill is filed before an order of dismissal is entered, and the defendant answers without insisting upon the dismissal of the suit, and consents to the hearing of the cause, he thereby waives the objection. SECTION 3242. In the case of Brown vs. Belches, 1 Wash., 9, decided at the spring term, 1791. In an action on the case for a partnership debt there was a return of "no inhabitant," and an abatement 684 CITATIONS TO THE CODE OF VIRGINIA. as to him ; judgment against the other partner. Judgment af- firmed. SECTION 3243. In the case of Shaver vs. White and Doughtery, 6 Munf., 110, decided February 9, 1818, it was held : Actions may be brought in the courts of this State under contracts entered into, or per- sonal injuries committed, anywhere. In general, it is not neces- sary to state in the declaration where the contract arose or the injury was committed; but this is sometimes necessary, and then, for the sake of obviating the objection of a variance, or the like, the plaintiff is permitted to state, by a fiction under a videlicet, that the place is within the jurisdiction of the court in which the suit is brought; which fiction, being in furtherance of justice, cannot be traversed. In cases in which the plaintiff does not use this fiction, the defendant is not, in general, per- mitted to aver that the cause of action arose in another country, unless he wishes to justify the act by the laws of that country, or to show thereby that he is not responsible in the particular form of action in question ; in which cases the locality of the act forms an essential part of his defence ; but such plea does not go to the jurisdiction of the court, but only to the justifica- tion of the defendant. It is a principle that, if a party be justi- fied as to a transaction in the country or place in which it is committed, he is justifiable everywhere. In the case of Payne vs. Brittoris Executor, 6 Rand., 102, de- cided January, 1828, it was held : In this State it is not error that the venue is laid in one county, and the action is brought in another, unless the defendant is an inhabitant of another county, and moves to dismiss the suit for that cause. SECTION 3244. In the case of Thornton vs. Smith, 1 Wash., 81, decided at the spring term, 1792, it was held: The allegation "within the jurisdiction of the court" is necessary, and cannot be supplied by equivalent words ; hence the statute. In the case of Hughes vs. Clayton et ux. y 3 Call, 554 (2d edi- tion, 478), it was held : If an administrator brings detinue, he is not bound at the trial to produce the certificate for his obtain- ing letters of administration, unless he receives notice that it will be required. In the case of Hill vs. Pride, 4 Call, 167, decided October, 1787, in the General Court, it was held : The jurisdiction must be averred in courts of limited authority as well in real as in transitory actions. This ruling, of course, is now reversed by the effect of the statute, which probably was passed because of the decision. In the case of Jarretfs Administrators vs. Jarrett, 7 Leigh, CITATIONS TO THE CODE OF VIRGINIA. 685 93, decided January, 1836, it was held: If in an action on a deed plaintiff makes profert of the deed, it is thereby made a part of the declaration ; and defendant cannot object to the deed as evidence at the trial on the ground of variance. In the case of Sterrett vs. Tea ford, 4 Grat., 84, decided July, 1847, it was held : To take advantage by demurrer of a variance between the declaration and the bond declared on, the defendant must crave oyer of the bond. In the case of Smith's Administrator vs. Loyd's Executor, 16 Grat., 295, decided March 5, 1862, it was held: In action of debt upon a bond, plaintiff, to excuse the non-production of the bond, in answer to oyer craved by the defendant, says the bond is filed in another court ; that he applied to that court for it ; that his application was opposed by the defendant, and was re- fused by the court. This is sufficient excuse for not producing the original bond. An excuse for not producing the original bond sued on may be ore tenus. In this case the excuse was made in the form of a plea, which is demurred to. The de- murrer does not authorize the court to decide upon errors in the declaration. In considering a demurrer to a declaration, where oyer is craved of the bond sued upon, the court can only look at the declaration and bond, and if words in the bond, without the condition of extraneous facts, are insensible, they will be treated as surplusage. If the bond or deed sued on is not filed with the declaration, and the defendant appears at rules and craves oyer of it, which the plaintiff does not give, and the defendant will not plead without oyer, the clerk may properly take the rules without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court. SECTION 3248. In the case of Moore vs. Mauro, 4 Rand., 488, decided No- vember, 1826, it was held : Under Section 86 of the act concern- ing proceedings in civil suits, etc., an account filed in an action of indelnttitnx 3 "\V. and wife conveyed the land purchased of C. with other lands to H., made him a deed and put him in possession. On October 19, 1866, the balance due on the $10,630.50 bond was $4,123, for which W., who was the representative and had married the widow of M., gave his bond, got possession of the $10.630.50 bond, and confessed a judgment for the $4,123 in favor of C., which he, W., alleges was in lieu of the bond which he got pos- session of. W. soon went into bankruptcy and paid but a small portion of the judgment. C. denies the statement of W. about his possession of the bond, and there is nothing in the record to certainly show, or to show that she ever intended to release the lien reserved in the deed to M. H. denies all knowledge of the reserved lien at the time of the purchase and until a long time thereafter. There was nothing done by C. to induce H. to believe that she had waived her lien, or to influence his con- duct in any way. On a bill filed by C. against H., and W. and wife in 1871, to enforce the lien for the purchase-money then due on the land sold by C. to M., and afterwards by W. and wife to H., held : As to the payments made on the bond for $10,630.50, H. insisted that they should be first applied to ex- tinguish the purchase-money bond of $3,564, and that was therefore extinguished. Held : H., being not one of the origi- nal parties to the bond, has no right to insist how payments shall be appropriated, that being a right existing only between those parties, and whilst, as a rule, where there are two debts, one secured and the other not, the courts will apply the pay- ments to the unsecured debts, yet, as no general rule applicable to every case can be adopted without the greatest hardship, if neither party has made the application, according to what it deems right and proper in each case, and in this case the pay- ments should be applied pro rata to all of the debts due toC. In the case of Magarity vs. Shipman, 11 Va. Law Journal, 214, decided January 20, 1887, it was held: When no applica- tion of a payment by a debtor has been made by either party, the creditor cannot complain of the action of the court in apply- ing them to a secured debt which is undisputed and is prior to and bears a higher rate of interest than another and an unse- cured debt. CITATIONS TO THE CODE OF VIRGINIA. 725 SECTION 3295. In the case of Faulkner's Administrator vs. BrockenbrougJi, 4 Rand., 245, decided May, 1826, it was held: Where it is stipulated in a mortgage that money shall be paid on or before a certain day, and it is paid after that day, the mortgagee is not deprived of his right of action at law on the mortgage. The acceptance of the money by the mortgagee after the day ap- pointed for payment does not change the rights of the party at law. SECTION 3298. In the case of Scott vs. Alexander & Peterfield Trent, 1 Wash., 77, decided at the spring term, 1792, it was held: A debt due from an individual partner cannot be set off against a partner- ship debt. In the case of White, Whipple & Co. vs. Bannister 's Ex- ecutors, 1 Wash., 166, decided at the spring term, 1793, it was held : A set-off is improper as against rent due testator's estate, though a bill in chancery to restrain the execution of a judg- ment for the rent may be treated as an original bill of discov- ery of assets ; and after such discovery, if the estate be solvent, then the set-off will be proper. In the case of Browns Administratrix vs. Garland et als., 1 Wash., 221, decided at the fall term, 1794. The administratrix had advertised a discount of five per cent, to all creditors of the decedent who should purchase any of the property of decedent, and the defendant offered this as evidence of the solvency of the estate, to support a plea of set-off against a bond given by said defendant to the plaintiff as administratrix; and the de- fendant thereunder offered two bonds given by the decedent. Held : The defendant, not being a purchasing creditor, cannot claim under this offer, and without this there is no doubt of the admission of the set-off being improper. In the case of Rose vs. Mnrchie, 2 Call, 409 (2d edition, 344), decided October 25, 1800. A., being indebted to D., F. & Co. by bond, died; and at the sale of his estate by his executors, F., the acting partner of D., F. & Co., bought a slave, which he carried to his own plantation, and there kept him. The amount of the purchase for the slave was held a good discount against the bond. (In this case the rule that a private debt of a part- ner cannot be set off against a debt due the company does not apply.) In the case of Danyerfield vs. Baylor's Administrator, 1 Munf., 529, decided November 27, 1810, it was held: A debtor ought not to be allowed a set-off (even in equity) for unliqtiid- ated and disputed claims against his creditor purchased by him after suit brought by the creditor against him. 726 CITATIONS TO THE CODE OF VIRGINIA. In the case of Ritchie & Wales vs. Moore, 5 Munf., 388, de- cided February 4, 1817, it was held: In "an action against a commercial company, a set-off of a debt due to an individual partner cannot be allowed. In the case of Porter vs. Nekervis, 4 Rand, 359, decided June, 1826, it was held: Joint and separate demands cannot be set off against each other; nor can partnership and separate de- mands be set off against each other. In the case of Webster vs. Couch, 6 Rand, 519, decided Octo- ber, 1828, it was held : Unliquidated damages for a substantive injury cannot be set off either at law or in equity against a legal demand. In the case of CdbelTs Executor vs. Roberts 's Administrator, 6 Rand., 580, decided November, 1828, it was held: Court of equity will not interfere with judgment at common law where matters of set-off could have been introduced by common law methods. In the case of Gilliat vs. Lynch, 2 Leigh, 493, decided Feb- ruary, 1831, it was held : Against a debt due by A. and B. jointly to C., a due debt by C. to B. alone cannot be set off in equity any more than at law. In the case of Feazle vs. Dillard, 5 Leigh, 30, decided Jan- uary, 1834. Feazle is indebted to Dillard by bond payable January, 1820, which, after it is due, is assigned by Dillard to Campbell; but before notice of assignment, Feazle becomes surety for Dillard in a bond to Burd, payable February 22, 1822. Dillard becomes insolvent. Held : Feazle is entitled in equity to set off the amount of the bond in which he is Dillard's surety to Burd, though not yet due (unless he is indemnified against his suretyship) against his own bond to Dillard in the hands of Campbell, the assignee. But he may waive this equity as against the assignee by his own conduct. In the case of Palliam vs. Winston, 5 Leigh, 324, decided April, 1834, it was held : An obligor in a bond given to one as administrator of an estate cannot offset debts due him from the administrator individually against the demand on the bond, either at law or in equity ; nor can he set off debts due him from the intestate, nor his claim as one of the distributees of the in- testate's estate, since, to allow such set-offs, would involve the necessity of taking an account of the assets in every case in which the administrator asserts a demand on behalf of the estate, and might subject the administrator to a devastavit if a mistake should be made. In the case of Clopton (Administrator) vs. Morris et al., 6 Leigh, 278, decided April, 1835. N., holding bonds of C. for $40,000, payable at a future day, assigns them to B. and M., and then becomes insolvent ; S. holds a bond of N. to him for $2,247 on CITATIONS TO THE CODE OF VIRGINIA. 727 demand; after N.'s assignment of C.'s bonds to M. and B., but before C. has notice of such assignment, an agreement is made between C. and S. whereby S. assigns N.'s bond held by him to C., and C. gives his note to S. to pay him the amount thereof six months after the date when C.'s bonds to N., assigned to M. and B., were to fall due; at the time of this agreement between C. and S. they were both apprised of N.'s insolvency, and their purpose was to save to S. the debt which N. owed him, if by this means it could be saved ; and it was understood between them that, if S.'s assignment of N.'s bond to C. should turn out not to be a legal one, or if, by reason of any law unknown to either party, C. should be unable to set off N.'s bond assigned to him by S. against his own bonds to N. assigned to M. and B., then neither C. should have recourse against S. on his con- tract of assignment, nor S. have recourse against C. on his note for the contents of N.'s bond assigned by S. to him. In an ac- tion by M. and B. against C. on his bonds assigned by N. to them, it was held : C. is entitled to set off N.'s bond to S. as- signed by S. to C. In the case of Craigeris Executrix vs. Lobb, 12 Leigh, 627, decided August, 1841, it was held: Though no action lies for clerk's fees till they shall be put into an officer's hands for col- lection, and he has returned that they cannot be levied by dis- tress, yet the clerk may set them off against an action on his bond to the party from whom they are due. In the case of Taylor's Administrator vs. Spindle, 2 Grat., 44, decided April, 1845. A vendee of land being entitled to an abatement from the amount of the purchase-money for the fail- ure of the vendor to put him in possession of part of the land at the time specified in the contract, and the vendee afterwards becoming insolvent, and the land being sold, and the vendor having assigned the bonds for the purchase-money arid removed from the State, the assignee of one of the bonds, having obtained a judgment against the vendee before the conveyance by him of the laud, comes into equity to enforce satisfaction of his judg- ment out of the lands in the hands of the purchasers. Held : The purchasers are entitled to set off the amount to which the vendee is so entitled against the purchase-money yet due. If the vendee paid a part of the purchase-money to the vendor, or to a subse- quent assignee, with notice of a prior assignment of one of the bonds, the purchaser can only set off against such prior as- signee the balance due to the vendee, the amount so paid by him. If two or more of the bonds for the purchase-money are unpaid, the claim of the vendee should be first applied to the discharge of those last assigned, and only the balance remain- ing after their discharge is a good set-off against the first as- signee. If the bonds were still in the hands of the vendor, or 7'23 CITATIONS TO THE CODE OF VIRGINIA. if the assignment thereof was a cotemporaneous act, and a judgment binding the lands of the debtor has been obtained on one of the bonds, and no such judgment has been obtained on the others, the claim of the vendee shall not be set off against the judgment binding the land, except for the balance of said claim, after discharging the other bonds. In the case of Wayland vs. Tucker et als., 4 Grat., 267, de- cided January, 1848. The principal and two sureties in a bond became insolvent, and the other surety paid the debt. Previous to this payment the solvent surety had executed his bond for less than half the amount of the first-named bond to one of his co-sureties, who had conveyed it in trust for his creditors. After the payment of the first-mentioned debt by the solvent surety, judgment was recovered against him on his own bond, and he then enjoined the judgment, claiming to offset it by his co-surety's portion of the debt that he had paid. Held : He is entitled in preference to the assignee of his bond. He is entitled to relief in equity, notwithstanding the judgment at law. In the case of Trimyer vs. Pollard, 5 Grat., 460, decided January, 1849, it was held: Where a defendant does not file a plea of set-off, but files his account and gives notice of set-off, the plaintiff cannot reply the statute of limitations, and he is therefore at liberty to rely upon it in evidence. In the case of Hupp vs. Hupp, 6 Grat., 310, decided July, 1849. H. & N. are merchants and partners. H. sells out to M., and the new firm undertakes to pay the debts of the first. H. becomes indebted to the new firm, for which he executes his bond with two sureties, and this bond is assigned for value to A. The new firm afterwards fails, and the partners are in- solvent, leaving debts of the old firm unpaid to a larger amount than the bond of H., and H. pays them. Held : H. is entitled to equity to set-off against his bond in the hands of the assignee the debts of the old concern of H. & N., which M. & N. were bound to pay, and which H. had paid. In the case of McClellan vs. Jfinnaird, 6 Grat., 352, decided October, 1849, it was held: Judgment on a forthcoming bond enjoined at the suit of the surety, on the ground that he had an action pending against the plaintiff in the judgment for a larger amount, and that the plaintiff was insolvent. In the case of Minor vs. Minor's Administrator, 8 Grat., 1, decided July, 1851, it was held : The count in an action of assumpsit by an administrator is for money had and received, and the bill of particulars merely states an account in which the defendant is debtor to the administrator for money re- ceived, stating a sum certain. The count and the bill of par- ticulars are not sufficient to admit proof of an admission by the CITATIONS TO THE CODE OF VIRGINIA. 729 defendant that he had received from a third person a sum cer- tain belonging to the estate of the plaintiff's intestate. In the case of Bell vs. Crawford, 8 Grat., 110, decided July, 1851, it "was held : In assumpsit defendant pleads non-assumpsit, and with it files affidavit of set-off and the set-off, which is a note. Though there is no plea of set-off or bill of particulars, the evidence in relation to the set-off is properly admitted. In the case of Glazebrook's Administrator vs. Ra glands Ad- ministrator, 8 Grat., 332, decided October, 1851. A deed of trust by husband in favor of himself and wife was not duly re- corded, but the land was sold by the trustee undr a decree of the court in a friendly suit by the cestui que trust against the trustee, and conveyed to the purchaser by deed duly recorded. Years afterwards, but before all the purchase-money was paid, the purchaser became the surety of the husband in a forthcom- ing bond, and was compelled to pay the money. In an action on the bond for the purchase-money by the trustee against the administratrix of the purchaser, she pleaded as a set-off the debt paid by the purchaser as surety of the husband. Held : That though the deed of trust was not duly recorded, yet under the circumstances it was valid, and neither the purchase-money nor the land was liable for the husband's debts. The deed of trust being valid, the interest of the husband in the trust-subject is a joint interest, and therefore cannot be set off by a debt due from himself. In the case of IZice's Executor vs. Annatfs Administrator, 8 Grat., 557, decided April, 1852, it was held: Where the de- fendant relies upon a specific payment or set-off by way of dis- count against a debt, an account stating distinctly the nature of such payment or set-off, and the several items thereof, must be filed with the plea, though the defendant may rely upon the parol admissions of the plaintiff to prove such payment. But this is not necessary where no specific payment is relied on ; but the defendant offers proof of the admissions of the plaintiff that but a portion of the debt is due. In the case of Hudson vs. Kline, 9 Grat., 379, decided Sep- tember 3, 1852, it was held : If the claims which he holds against the plaintiffs at law are only recoverable in equity, still he is not entitled to enjoin the judgment, and to have them set off against it. In the case of Ragsdale vs. Ilagy et als., 9 Grat., 409, decided September 6, 1852, it was held: A vendee of land being en- titled to come into equity to enjoin a judgment recovered by an assignee on a bond given for the purchase-money, on the ground of difficulties in the title, and it being doubtful whether he can get a title, though the title is decreed to him in his suit, he is entitled to set up in equity offsets he held against his vendor 730 CITATIONS TO THE CODE OF VIRGINIA. prior to the assignment; and he is not bound to plead them at law ; and this especially as one of the offsets arose out of the contract of sale, and another was only an equitable offset at the time of the assignment. In the case of Perkins (Administrator} vs. Hawkins (Adminis- trator), 9 Grat., 649, decided February 24, 1853, it was held: Defendant may have leave to file an additional account of set- offs when it will not produce delay to the plaintiffs and it is necessary to attain the justice of the case. And if the plaintiff obtains leave to amend his declaration, as defendant is entitled to a continuance, there can be no objection to filing the account on the ground of delay. In the case of George vs. Strangers Executor, 10 Grat., 499, decided October, 1853, it was held : An injunction to a judg- ment at law to set up payments or offsets which he might have pleaded at law, and if a discovery was necessary to enable him to prove them, he should have filed his bill of discovery in aid of his defence at law, or he should have filed interrogatories to the plaintiff under the statute. In the case of Davis vs. Miller, 14 Grat., 1, decided April 11, 1857, it was held: A set-off as between the maker and payee, acquired after the transfer of an overdue note, though acquired without notice of the transfer of the note, cannot be set off against the holder. By the endorsement of negotiable notes, though after-due, the legal title passes without notice to the maker. But in the case of transfers of choses in action not negotiable, only the equitable title passes, and the maker may make payments to the payee or obligee until he has notice of the transfer. In the case of Allen et als. vs. Hart, 18 Grat., 722, decided April, 1868, it was held : The defence of set-off is admissible in a motion upon a forthcoming bond taken on a warrant of distress. In the case of Exchange Bank of Virginia vs. Knox, 19 Grat., 739, decided May 25, 1870. Under the act requiring the banks of the Commonwealth to go into liquidation, the banks being insolvent execute deeds conveying all their property, including debts due to them, to trustees for the payment of their debts. Held : Though the charter of the banks requires them to take their notes in payment of debts due to them, this does not authorize debtors of the banks to pay their debts with the notes of the banks bought up after the execution and recording of the deeds. In the case of Saunders, etc., vs. White et als., 20 Grat., 327, decided January, 1871, it was held: The principles decided in the cases of Exchange Sank of Virginia for Camp (Trustee}, etc., vs. Knox, etc., and Farmer Bank of Virginia for Goddin, etc., vs. Anderson & Co., 19 Grat., 739, reaffirmed. CITATIONS TO THE CODE OF VIKGINIA. 731 In the case of James et als. vs. Johnson, 22 Grat., 461, decided July 18, 1872, it was held : In a suit upon a bond given by M. and others to the person who was administrator of the estate of their intestate for the amount due him upon a settlement, they can- not set off moneys subsequently received by him as adminis- trator, the claims not being in the same character. Though the administrator has made a statement of assets re- ceived and payments made by him since the bond was given, and, finding a balance of the estate in his hands, endorses it as a credit upon the bond, yet as the obligors do not acquiesce in that statement, they are not to be allowed the credit endorsed, but the balance due by the administrator must be ascertained by a correct settlement of his administration account. The bond bears date on the 14th of May, 1863, and is pay- able on demand, and the balance found due to the administra- tor at that date is almost wholly made up of his commissions on receipts and disbursements prior to the 15th day of Novem- ber, 1862. The bond having been given with reference to the Confederate States treasury notes as a standard of value, is to be scaled as of its date. In the case of Whurtman et als. vs. Yost, 22 Grat., 595, de- cided September 11, 1872. Y. brings an action of debt upon a bond against W. and two others, W. being the principal in the bond. The defendants seek to set off a judgment recovered by P. against Y., which has been assigned to W. Held: Under the statute the judgment is a good set-off to the bond, though the debt sued for is against W. and two others, and the judg- ment is assigned to W., and though the plaintiff's claim is legal and the claim of W. is equitable. See the case of Chapman et als. vs. 2 he Commonwealth, 25 Grat., 721, cited ante, Chapter 160. In the case of Huffmans vs. Walker, 26 Grat., 314, decided Juno 30, 1875. W. brings debt on a bond against H., and H. pleads payment and set-off, on which there is a re-issue. H. files with his plea a statement of the payment which was the amount of a bond of W. and J. to S., and that W. agreed with H. if H. would pay the bond due to S., H. should have credit for the amount as a payment on the bond sued on. Held: H. is a competent witness to prove what passed between himself and J. in relation to the arrangement between him and J. for the pro- curement, and D., that F. would take in payment of his debt any debt on W. which K. would take in payment of S.'s debt to W. D. obtained this judgment from H., and assigned it to K., who credited the amount on S.'s debt to W. There was a verdict for the defendant, and on motion for a new trial, held : The evi- dence should have been excluded from the jury, the defendant's plea not describing the payment so as to give plaintiff notice of its nature, as required by the statute. 732 CITATIONS TO THE CODE OF VIRGINIA. In the case of Peery vs. Peery, 26 Grat., 320, decided June 30, 1875. H. recovers a judgment against "W. and P. ; after- wards W. and H. die, and K. qualifies as the executor of TV. and the administrator of H. ; as administrator of H., K. sues out a scire facias to revive the judgment against P., the surviving obligor, and he appears and files a general plea of payment, without stating the nature of the payment. He proves that H. in his lifetime assigned the judgment to D., who was a debtor of S., who was a debtor of TV., and that under an agreement be- tween S. and by H. of the bond of S., though J. is dead. If the plea is sustained by the evidence, the payment of the bond of S. by H. is a good payment pro tanto upon his bond to TV. Payment of a debt is not necessarily a payment of money, but that is payment which the parties contract shall be accepted as payment. In the case oiFinney et als. vs. Bennett, 27 Grat., 365, decided March, 1876, it was held : The bank of P. was ruined by the late war, and no officers of the bank have been elected, nor has there been a meeting of the board since April, 1865, and it has done no business since, and in fact it had been abandoned and ceased to exist. In April, 1866, H. and M., suing as well for themselves as for all the other stockholders, creditors, and de- positors, etc., filed their bill against the bank and the president for a settlement of its affairs and a distribution of its assets. The court appointed a receiver in the case, and in June, 1866, there was a decree for an account. A debtor of the bank purchasing debts due from the bank after the decree for an account is only entitled to stand in the shoes of his assignor, and receive his proportion of the assets realized. In the case of Armentrouts Executors et als. vs. Gibbons et als., 30 Grat., 632, decided September, 1878. In 1856 M. sold and conveyed her share of that tract of land to her brothers, J. and H., reserving a vendor's lien in the deed for $1,204.93. In 1860 J. and H. sold and conveyed with general warranty the whole tract to A. for $23,500, of which one-third was paid in cash, and bonds of $2,000 given to H. for the balance, payable in each year, from 1861 to 1867, and $1,666.66 in 1868, reserv- ing in the deed a vendor's lien as security. In 1860 H. assigned the four bonds falling due in 1865, 1866, 1867, and 1868 to K., and K. assigned to G. in April, 1861. K. assigned to S. the bond due in 1865. A. died in 1867, having paid off the first four bonds and made payments to G. on the sixth, and after his death A.'s executors paid to K. the last bond. The deed from M. to J. and H. was recorded, but was destroyed by the Federal forces in 1864. After the war C., as assignee of M., filed a bill CITATIONS TO THE CODE OF VIRGINIA. 733 to enforce the vendor's lien in the deed from M. for the >!.- 204.93 and obtained a decree. Pending C.'s suit G. filed his hill to enforce the vendor's lien in the deed to A. for a balance due on the two bonds assigned to. him. A.'s executors and de- visees insisted that they should have credit on the bonds as- signed to G. and S. for the amount of C.'s decree, they insisting that the purchase-money paid by A. in his lifetime, and by the executors since, was paid without any knowledge of C.'s lien on the land ; that, deed having been destroyed, J. and H. were in- solvent. Held : A. was entitled to a credit on account of the purchase-money due by him as a vendee of said land for the said sum of $1,204.93, with interest, and he was so entitled as against the assignee of said bonds, at least of the assignments made without his consent. That the liability of such assigned bonds to such right of set- off is not in the order in which said bonds are payable, 'but in the inverse order of their assignment, and if some of said bonds were assigned and some were not, the unassigned bonds were liable to said right of set-off bonds before the assigned bonds, even though the unassigned bonds were payable before the as- signed bonds. That the said land remained liable in the hands of A., the vendee, to the said vendor's lien for the said sum of $1,204.93 and interest, notwithstanding the destruction of the record of the deed, and that the said A. and his executors may have paid the full amount of the purchase-money and interest, without actual knowledge of the existence of such lien at the time of such payment, the due recordation of the said deed in which said lien was reserved being constructive notice to him and them of the existence of such lien, and as effectual for this purpose as actual notice of its existence, or as if the deed had not been destroyed. A. receiving notice of the assignment of the said bond to K., before his payment of the bonds of 1861, 1862, 1863, and 1864, then such payment, to the extent of the said sum of $1,204.93, with interest, was a payment in his own wrong ; but if he made such payment without such notice, then he or his intestate is entitled to a credit for the sum of $1,204.93 on the said assigned bonds. The bond for $1,666.66 paid by the executors of A. to K. was subject to the said set-off in preference to, and in exoneration of, the bonds assigned by K. to G. and S., and this though the executors paid it without knowledge of the said C.'s lien. Both A. and his executors were chargeable with constructive notice of said set-off, by reason of the recordation of the deed afore- said, and the liability of said estate resulted from such notice. The bill having been filed to enforce the vendor's lien upon 734 CITATIONS TO THE CODE OP VIEGINIA. the land, it was not necessary that the plaintiff should have a settlement of an account of the personal estate of A., for the purpose of exhausting the same in the payment of his debts, be.- fore he could enforce the charge reserved on the land for the payment of the purchase-money. This charge is as effectual as would have been a deed of trust on the land to secure the pur- chase-money, which certainly might have been enforced by a sale either before or after A.'s death, without a necessity of first exhausting the personal estate. In the case of Edmunds (Assignee) vs. Harper, 31 Grat., 637, decided March 20, 1879, it was held : S. as principal and H. as his surety executed their bond to E. E. owes S. and N., part- ners, an account, and N. assigns it to S. E. becomes bankrupt, and S. proves the account before the register in bankruptcy, and he afterwards becomes bankrupt. The assignee in bank- ruptcy of E. sues H. on the bond, and H. pleads the account as set-off. Held : Under the Virginia statute the account is a valid set-off for H. in the action against him on the bond. In the case of Liberty Savings Sank vs. Campbell et als., 75 Va., 534, decided August 11, 1881. J. and C. were partners and the owners of two bonds executed to them on a sale of land. The bonds were in the custody of J., who, to raise money for his private purposes, pledged them by an attempted assign- ment, along with other securities, to the Liberty Savings Bank, where he procured certain notes to be discounted, and used the proceeds, sometimes for his own benefit and sometimes for the benefit of the firm. The bank afterwards made collections on the bonds, and ultimately became the owner of them by purchase at public auction, where they had been sold as forfeited collateral. In a controversy between C. (representing the firm) and the bank (representing the bonds and their proceeds) it was held : That the bank is equitably entitled to set-off against C.'s claim the amount of money which the bank paid out on J.'s checks, and which actually went to the discharge of the partnership debts; and it makes no difference that the money so checked upon by J. was the proceeds of notes discounted by the bank for his private accommodation. In the case of Dobyns (& Davis vs. Rawley, 76 Va., 537. Joint Purchasers. Sureties. Substitution. Innocent Pur- chaser. Set-offs. Alteration of Bond. F. conveys land to joint purchasers, R. and J., but retains a lien for unpaid price. They divide it, valuing R.'s part at two thousand six hundred dollars, J.'s at two thousand four hundred dollars, and R. con- veys to J. his part, retaining no lien. R. (J. uniting) conveys his part to F. D., retaining lien for unpaid price. R. and J. pay F. equally, except on note of one thousand five hundred dollars for last instalment, whereof R. owed eight hundred and CITATIONS TO THE CODE OF VIRGINIA. 735 fifty dollars and J. six hundred and fifty dollars ; but R. paid four hundred and fifty dollars on it, when F. D. took it up from F. By recorded title bond, J. sold his part to B., who owed balance of one thousand three hundred and fifty dollars on the price. In 1879 R. sued F. D. to enforce his lien for the unpaid price, making only F. D. defendant; but all concerned were ultimately made parties by amended bills that were demurred to as too multifarious. B. claimed that he was purchaser for value without notice; but the conveyance from F. to R. and J., retaining lien, was recorded before B. bought. J. relied on a six hundred dollar note of R. to J. as guardian, and on a one thou- sand dollar bond of P. and R. to J., partly in his own right and partly as guardian, as set-offs against any sum demanded of him by R. on note given by R. and J. to F., and held by F. D. The six hundred dollar note was included in a judgment confessed by J. to his wards, but which, though possibly secured, was not paid. The one thousand dollar bond had been changed in a material point by J. without R.'s consent. Held : 1. F. D. is entitled to set off the note of R. and J., which he took up from F., against the balance that he owes on the land conveyed to him by R. and J. 2. R. hath a lien on the land conveyed by him to J., in the hands of B., who is not a purchaser for value without notice, not having paid all the purchase-money, and being affected with notice of the lien on the whole land conveyed by F. to R. and J., which is retained on the face of the recorded deed; and to satisfy that lien, so much as is necessary for the purpose must be sold. 3. The amended bills are not too multifarious, the new par- ties and matters being necessary. 4. The six hundred dollar note is not a proper set-off against R.'s claim, as J. holds it only as a guardian, no title in his own right having been vested by mere confession of judgment to his wards. 5. Had the wards' money been, by agreement actually exe- cuted, applied by the guardian to pay his own debt to R., such application would not be allowed to stand as against the wards. And even as between R. and the guardian, such an agreement would not be carried out by this court. 6. The one thousand dollar bond, having been materially changed by J. after its delivery, is null, and, of course, cannot be used as a set-off against R.'s claim on J. In the case of Smith vs. Bradford, 76 Va., 758. 3. Idem. Idem. Equitable Set-offs. Competency of Wit- nesses. Case at Bar. B. and wife sell and convey her maiden land. Purchase bonds secured by trust deed thereon. At same time B. conveys his encumbered land to trustee for Mrs. B.'s 736 CITATIONS TO THE CODE OF VIRGINIA. separate use, and in trust deed it is stipulated that trustee shall collect the bonds and discharge the liens. B. collected and misapplied the money. Later, when insolvent, B. assigned to the trustee two other bonds and his interest jure mariti in the per- sonal estate of his wife's father, P., deceased, in lieu of the trust funds so misapplied. W., a brother of Mrs. B., was indebted to P.'s estate. B. was indebted to W. Mrs. B. died, leaving chil- dren. In suit to settle the administration of P.'s estate, W. filed petition alleging that B. owed him, and praying that what he owed B. on account of his distributive share in P.'s estate might be set off by B.'s indebtedness to him. Held : 1. The bonds given for the maiden land of Mrs B., and by the trust deed securing their payment, settled to her separate use, and directed to be applied to discharge the liens on the land conveyed to her for her separate use, so far as needed for the pur- pose, are to that extent to be considered as her separate real estate, at her death descendible to her children as her heir at law. 2. The assignment by B. dated December 1, 1869, in trust for Mrs. B. , is valid, and the assigned property, so far as is needed to discharge said liens, is to be considered as her separate real estate. But the surplus, if any, is to be considered as her sepa- rate personal estate, and such personal estate having, upon her death, vested in B. as her distributee, can be properly set off by W. to the extent of B.'s indebtedness to him against his debt to P.'s estate. In the case of Botetourt County vs. Burger, 86 Va., 530, de- cided November 21, 1889, it was held: In an action on a bond with collateral conditions, where the only plea is "conditions performed," the defendant is not entitled to prove a set-off. SECTION 3299. In the case of Chew (Executor of Wormeley] vs. Carter's Ad- ministratrix, 6 Munf., 120, decided February 18, 1818, it was held : In debt on a bond, if defendant plead that the same was obtained by false suggestions and misrepresentations by the plaintiff, as per preamble in the said bond, and the plaintiff* join issue as to the fact, which issue is found against him by a jury, whatever estoppel (if any) might have been to such plea is thereby waived, and judgment ought to be for the defendant. Issue being joined on a plea that a bond was obtained by fraud, a verdict "for the defendant, because the jury believe the bond was obtained by fraudulent means," is sufficiently posi- tive and certain. In the case of Taylor vs. King, 6 Munf., 358, decided April 7, 1819, it was held : In a court of common law, fraud may be given in evidence to vacate a deed on the plea of non est factuin,. CITATIONS TO THE CODE OF VIEGINIA. 737 if such fraud relate to the execution of the instrument, as if it be misread to the party, or his signature be obtained to an in- strument which he did not intend to sign ; but fraud committed in a settlement of accounts which preceded, or in a statement of facts which induced, its execution cannot be pleaded or given in evidence, the only remedy in such cases being in equity. In the case of Wyche vs. Maclin, 2 Rand., 426, decided May 7, 1824, it was held : In an action at law on a specialty it is not competent for the defendant to avoid it by pleading that it was obtained by fraudulent misrepresentations made by the plaintiff. In the case of Tomtinson's Administrator vs. Mason, 6 Band., 169, decided March, 1828, it was held: In debt on a bond a plea that the bond was obtained by fraud, covin, etc., without saying whether the fraud was in the consideration of the bond, or in its execution, is immaterial. Where property is sold, a bond taken, suit brought, and the defendant pleads that the property was of less value than it was represented to be, such defence sounding in damages is bad, and the proper remedy would be an action of deceit. In the case of Christian ami Wife et als. vs. Miller (Assignee), 3 Leigh, 78, decided October, 1831, it was held : A. and B. exe- cute a joint bond to C., part of the consideration of which is the price of a parcel of corn sold by C. to A., deliverable at a day subsequent to the date of the bond ; the corn is not delivered according to the contract. In debt on the bond by C. against A. and B. the defendants cannot set off the value or the price of the corn. In the case of Murray, Caldwell c5 Co. vs. Pennington, 3 Grat., 91, decided April, 1846, it was held : A lessor covenants to put certain repairs on the demised premises, which he fails to do. In an action of replevin upon a distress for the rent the tenant may set off the damages accrued by the failure of 'the lessor to make the repairs. In a suit between third persons and a lessor, to which the lessee is not a party, a decree is made directing the sheriff to rent out the demised premises. The premises are rented out and the lessee yields possession of the premises. Held : That as the decree did not direct the sheriff to-evict the lessee, and there was no paramount title under which the lessee might have been evicted, his surrender of the premises was not an eviction so as to release him from the payment of rent. In the case of IdteWs Administrator vs. NorvelVs Executor, 4 Grat., 176, decided October, 1847, it was held : Upon an ac- tion on a bond given for the hire of two slaves, one of whom was never delivered to the hirer, the obligor is entitled under a special plea to a credit to the amount of the hire of the slave not delivered. 47 738 CITATIONS TO THE CODE OF VIRGINIA. Hirer of a slave pays physician for attending on the slave whilst he is hired. He is entitled to have the amount repaid him by the owner of the slave. In the case of Pence (for, etc.] vs. Hustons Executors, 6 Grat., 304, decided July, 1849. In debt upon a bond the defendant files a special plea under the act of April 16, 1831, in which he alleges that the bond was executed for part of the purchase- money of a tract of land which the obligee in the bond had conveyed to the defendant, with a covenant to warrant the title thereof free of the claims of all persons whatever ; that a valid claim had been set up to the land by a purchaser from the de- fendant's vendor, and the defendant had been compelled to give up the land, and had purchased it again from said claimant at an advanced price. The plaintiff took issue on the plea, and there was a verdict for the defendant. Held : That if the plea does not set up a defence which is authorized by the statute, yet it asserts a substantial claim against the plaintiff; and after verdict it is cured by the statute of jeofails. In the case of Shiflett vs. The Orange Humane Society, 7 Grat., 297, decided March 5, 1851, it was held : In an action for a bond given for the purchase-money of land, the act of 1831 does not authorize a plea of failure of consideration upon equitable grounds, which would require a recision of the contract out of which the bond originated, and a reinvestment of the obligee with the interest of the land alleged to have been sold to the obligor. In the case of Cunningham vs. Smith et als., 10 Grat., 255, de- cided July, 1853, it was held: But in such case the plea avers that the representations were untrue, and that the plaintiff at the time of making them knew them to be untrue, and know- ingly made them with the intent to defraud the defendant; and proceeds to set out the unsoundness of numerous articles pur- chased, and to detail particulars in which the representations had turned out to be untrue. This is a good plea. In the case of Watkins vs. Hopkins (Executor), 13 Grat., 743, decided March 11, 1857, it was held : A plea of equitable offset under the statute must show that the offset is such as may be set up under the statute, and must be verified by affidavit. In an action on a bond for five hundred dollars, given for the last payment of the purchase-money of land, a plea that the plaintiff was to make the defendant a good title to the land upon the payment of the bond, and that the defendant had offered to pay it upon the making of the title, and that the plaintiff had failed and refused to make the title, by reason whereof the consideration had failed to the extent of two hun- dred and fifty dollars, is not a good plea in substance. In such an action a plea that the plaintiff had failed to give the de- CITATIONS TO THE CODE OF VIRGINIA. 739 fendant possession of two acres of the land for two months after the time at which by the contract he was to deliver pos- session, or that he had not delivered the tenement in the plight and condition in which it was at the trme of the sale, and in which by the contract he was to deliver it, but delivered it in a damaged condition from injuries done or permitted in the mean- time to the tenement and freehold, is a good plea, setting up a partial failure of the consideration. The reference to 21 Grat., 678, is an error. In the case of Burtners vs. Reran, 24 Grat., 42, decided No- vember, 1873, it was held: Where a deed is procured by a fraudulent misrepresentation the defence can only be made at law in the mode provided by the statute, and the defendant should file a plea averring the fraud or special circumstances which entitle him to relief in equity. And the facts should be set forth with sufficient precision and certainty to apprise the plaintiff of the character of the defence intended to be made, and to enable the court to decide whether the matter relied on constitutes a valid claim to equitable relief. In the case of TTw/'vs. Broyles, 26 Grat., 283, decided June 16, 1875, it was held : A party who in an action of debt against him files a plea under the statute of the breach of the warranty in the sale of an animal, and claims to be relieved to the extent of the price paid for the animal, in which he succeeds, cannot maintain another action for other damages and expenses he has incurred on account of the breach of said warranty. A party tiling a plea under said statute may claim and recover all the damages he has sustained by the breach of the warranty which he could recover in an action for a breach of warranty. If a party filing such a plea only claims and recovers a part of the damages he has sustained, and then brings an action to recover for other damages, a plea of the former judgment is a good plea in bar to the action. In such action defendant pleads non assumpsit, and a special plea of the former judgment, vouching the record, to which special plea plaintiff demurs. The court sustains the demurrer, and the plaintiff not replying further to the special plea the court may render judgment for the defendant without trying the issue upon the plea of non assumpsit. In the case of Keckley vs. Union Bank of Winchester, 79 Va., 458, decided October 2, 1884, it was held : Where plea avers that defendant had been induced by plaintiff to make a note, for which the note in suit is a renewal, and which was given for an- other's debt, by representing to defendant that that debt was amply secured by trust deed on real estate, whilst the plea on its face shows that the note was renewed several times after the defendant knew that the trust deed would not satisfy the debt 740 CITATIONS TO THE CODE OP VIKGINIA. and that defendant had changed the debt by dropping the origi- nal debtor, and giving the note in suit, such facts constitute no defence to the note in suit. In the case of Grayson vs. Buchanan, 88 Va., 251, decided July 9, 1891. A contract for the sale of land, containing, ac- cording to representations, one hundred and forty acres and one-half of a certain spring, but which afterwards proved to contain only one hundred and twenty-six acres and not the spring, was held liable to abatement in price. Though written contract fails to mention spring, and a bill in equity is brought to reform contract, alleging mistake on one side accompanied by misrepresentations on the other, parol evidence is admissible to show that the true contract and relief will be granted ; and so likewise, where the defence is made in action at law for the price by special plea in the nature of set-off under this section, such plea is allowable in such case. Where a plea in the nature of set-off filed in such case suffi- ciently conforms to the statute, but was not sworn to, such de- fect is not one for which judgment will be reversed, inasmuch as, upon survey of entire record, the judgment appears to be substantially right. SECTION 3303. The case of Jones (Executor] vs. Jones, 1 Munf., 150, is an error. See the case of Trimyer vs. Pollard, 5 Grat., 460, cited ante, Section 3298. In the case of Botetourt County vs. Burger, 86 Va., 530, de- cided November 21, 1889, it was held : In an action on a bond with collateral conditions, where the only plea is " conditions performed," the defendant is not entitled to prove a set-off. CHAPTER CLXI. SECTION 3306. In the case of Bullifs Executor vs. Winston, 1 Munf., 269, decided March 22, 1810, it was held : An appeal from, or super- sedeas to, an order quashing an execution against two defendants need not, if one of them die, be revived against his representa- tive, but should be proceeded on as to the other only. In the case of Ilairston vs. Woods, 9 Leigh, 308, decided March, 1838, it was held : Where there are two plaintiffs in a supersedeas, if one of them die, the cause will abate as to him, and proceed in the name of the surviving plaintiff. In the case of Rose's Administrator vs. Burgess, 10 Leigh, 186 (2d edition, 193), decided April, 1839. Pending an action of detinue at the suit of four plaintiffs, one of them dies, and a CITATIONS TO THE CODE OF VIRGINIA. 741 facias is awarded to revive the action in the name of his executor. Held : The scire facias was improvidently awarded. In the case of Cunningham (Executor), etc., vs. Smithson, 12 Leigh, 33, decided March, 1841, it was held: Decree against surviving partners and executor of deceased partner of mercan- tile hoTise, from which defendant appeals, and pending appeal, one of the surviving partners dies ; the death is not suggested, and the court proceeds to hear cause, reverses the decree, and dismisses plaintiff's bill as to the siirviving partners ; proof is afterward offered of the death of one of them before the hearing, and appellee moves to set aside decree of reversal for that cause ; motion overruled because there "was still a surviving partner be- fore the court, who represented the whole interest, and because appellee cannot complain of a decree in favor of the deceased party. In the case of Townes vs. Birchett, 12 Leigh, 173, decided April, 1841, it was held : Bill in equity against two persons who have been auctioneers and partners ; one dies pending the suit, it is not necessary to revive the suit against the representative of the decedent ; the plaintiff may proceed against the survivor alone. See the case of Richardson's Executor vs. Jones, 12 Grat., 53, cited ante, Section 2855. SECTION 3307. In the case of Norris vs. Tomlin t& Gray, 2 Munf., 336, de- cided June 24, 1811, it was held: Process of revivor is not necessary in the court of appeals, if the appellee died between verdict and judgment. In the case of Reid's Administrator vs. Strident s Adminis- trators, 7 Grat., 76, decided May 14, 1850, it was held : Where a party to a cause pending in the supreme court of appeals dies pending the appeal, it is not necessary to revive the cause in the name of the representative, but the case may be revived when it goes back to the court below. SECTION 3308. In the case of Keel & Roberts vs. Herbert's Executors, 1 Wash., 138, decided at the fall term, 1792. A supersedeas was awarded against Herbert, who afterwards, and before the service of the writ, died. This court, on motion, awarded a new supersedeas against the executors, which was executed, but afterwards quashed it, and awarded a scire facias to hear errors against the executors, being of the opinion that the second supersedeas could not be considered as a continuing process, but a new one, and therefore that the executor could not sue upon the bond first given for prosecuting the supersedeas. In 'the case of Daniel vs. Robinson's Executors, 1 Wash., 154, 742 .CITATIONS TO THE CODE or VIRGINIA. decided at the spring term of 1793. The appellee being dead, counsel for the defence moved to enter appearance for the ex- ecutors without waiting for a scire facias, which is only neces- sary to force an appearance. The court granted the motion and tried the cause at the instance of the counsel for the ap- pellee, although it was objected by Mercer, J., that a trial at this time would be a surprise upon the appellant, who might consider the appeal as abated until regularly revived; but it was said by the court that the appellant ought to follow the cause. In the case of Boswell (& Johnson vs. Jones, 1 Wash., 322, de- cided at the fall term, 1794. An action of trespass was brought by Jones against the appellants in the district court; they pleaded jointly not guilty. A verdict was rendered against Johnson for X15, and the defendant, Boswell, was found not guilty. Upon the motion of Johnson alone a new trial was awarded, and a verdict was afterwards found for ,60 against both defendants. A motion in arrest of judgment being made by Boswell, and overruled, both defendants applied for and obtained a supersedeas to the judgment of the court rendered upon the last verdict. The plaintiffs in error being both dead, it was submitted to the court whether a new supersedeas or writ of error should be awarded, or whether a scire facias to revive the former ought to issue, and in the latter case whether it should be revived in the names of the executors of both plaintiffs, or of the survivor only. Held: A scire facias should issue in the names of the executors of both the plaintiffs. In the case of Tomkies vs. Walker, 6 Call, 44, decided April, 1806, it was held: If in ejectment judgment be given for the defendant, and the plaintiff appeals, pending which the appellee dies, the appellant cannot sue out a scire facias against his heirs. He must bring a new suit. In the case of Keys's Executor vs. Ifarmer's Representatives, 1 H. & M., 330, decided June 16, 1807, it was held: A suit in chancery for a conveyance of land, in case the defendant dies before a final decree, ought to be revived against his heirs and devisees, and all other persons holding, claiming, or in any manner interested in the land in question. In the case of Gr-'ibbs vs. Perkinson, 2 H. & M., 211, decided March 29, 1808. An appeal having abated at one term by the death of the appellant, at the next term a scire facias was awarded on the motion of his administrator, who had qualified since the abatement, for the appellee to show cause why the appeal should not be revived. In the case of Buster vs. Wallace, 3 H. & M., 217, decided November 16, 1808, it was held : An appeal having abated at the CITATIONS TO THE CODE OF VIRGINIA. 743 March term by the death of the appellant, a scire facias to re- vive it may be awarded at the ensuing October term. In the case of Scott vs. Adams, 3 H. & M., 501, decided April 29, 1809, it was held : Where the appellee dies, the court will not take up the appeal in the name of the executors without giving the appellant notice of a scire facias, especially where a great length of time has elapsed since the appeal. In the case of Carter vs. Oarr, 1 Va. (Gilmer), 145, decided December 8, 1820, it was held: The death of one of the de- mandants in a writ of right before trial abates the whole writ. In the case of Drago vs. Stead et als., 2 Band., 454, decided May 28, 1824, it was held : The death of one of the demandants in a writ of right before trial and judgment abates the whole writ, and it is of 110 importance whether the deceased demand- ant left a child or not. In the case of Harris vs. Crenshaw, 3 Rand., 14, decided No- vember, 1825, it was held : In a case of trespass qucere clausum fregit, if the defendant dies before verdict, the writ will abate, but if after verdict and judgment, the plaintiff has a right to a sci. fa. against the personal representative of the defendant, though not against his heir or devisee, and the personal repre- sentative has a right to reverse the judgment on appeal r if he can. In the case of Commonwealth vs. Ilaines, 2 Va. Cases, 134, decided by the General Court at the June term, 1818, it was held : On a joint recognizance by three persons, default being made, a sci. fa. was awarded, which abated by return as to one, by death as to the second, and the third pleaded to issue, after which he. died. A scire facias to revive was proper against the personal representative of the third cognizor, though not against his heirs. But original process of sci. fa. will lie against the heirs of the said cognizor and against the heirs and personal representatives of the second deceased cognizor. In the case of Lovell vs. Arnold, 2 Leigh, 16, decided Feb- ruary, 1830. Writ of right abates at the death of the tenant in 1812, and the abatement is entered of record; sci. fa. sued out by demandant in 1820 to revive the suit against heirs of tenant. Held : The abatement was absolute, and suit could not be revived under provision of statute of 1819, that provision being prospective. For the references to 3 Leigh, 42 and 344, see Chapter 138. See the case of Cloptons Administrator vs. Clarke's Executor, 1 Leigh, 325, cited ante, Section 2920. The reference to 7 Leigh, 720, is an error. In the case of Davis et als. vs. Teays, 3 Grat,, 283, decided at the July term, 1846. A writ of right is brought against a feme life tenant, who dies, and the demandant8 revive the action 7 1 1 CITATIONS TO THE CODE OF VIKCINIA. against her heirs at law. They claim and hold the land in con- troversy, not as her heirs at law. but as devisees under the will of her father. Held: The demandants may revive against the heirs of the tirst tenant, and they may defend the action by showing title in themselves, however revived. In the case of (Vil, decided July, 1847, it was held: The defendant in a proceeding of un- lawful detainer dies pending an appeal by the plaintitV below. The cause cannot be revived. In the case of ]?ieh''>!(/,'. Co. t/ttttfuMf, 11 Grat., 190, decided April, 1854. A judgment is recovered in the name of B. H. and three others, justices of Prince George county, for the benefit of the marshal of the Superior Court of Chancery of the Williamsburg district. The defendant being dead, a *v//v j,tr/,t. issued to revive the judg- ment, which, after setting out the plaintiffs, and the recovery of the judgment for the benefit of the marshal, adds, "which mar- shal was W." Held : This is not a variance. In this case, the marshal being dead, the *< !/< /'iH'itis recites that it was awarded at the instance of M., his administrator. Though it might have been more regular for the scirtfacuu to recite that it was awarded at the instance and on the behalf of the plaintiffs on the record, yet, as it would have been good if the averment at whose instance it had issued had been wholly omitted, the recital was mere surplusage, and does not vitiate the .NV//V fiu'itt*. Neither the 9C*refaciat nor any part of the record showing what was the character of the obligation or other liability upon which the original judgment was rendered, and the demandant's plea not averring that it was such a statutory bond as required that there should be a relator in any action brought upon it, and that the relator should be a party, having the legal right to sue, it must be regarded as a common law bond or liability, subject to be sued on in the names of the payees without a relator. or for the benefit of the holder, or any party entitled to the benefit of it; and whether W. was marshal or M. was the administrator, is a question in which defendant has no interest, and it cannot be raised by him by plea in bar to the plaintiff's i-laim. The #cirefae'iene esse, but it must be proved that he is dead, or, if living, unable to attend. In the case of Tompkins <& Co. vs. Wiley, 6 Band., 242, de- cided February, 1828, it was held: If there be no objection made to the regularity of the deposition in a court of law, the court of appeals will presume it was properly taken, although there is neither commission or notice in the record. It is improper to read a deposition in a court of law on ac- count of the absence of the witness, unless the party offering it proves that he has used due diligence to find the witness, or that he is not within the jurisdiction of the court and the reach of its process. In the case of Lynch vs. T/iomas, 3 Leigh, 682, decided May, 1832. Plaintiff having taken the deposition of an aged and in- firm witness to be read de bene esse, fails to take out a subpoena and have it served on the witness to attend at the trial. Held : That upon satisfactory proof of the witness's inability to attend the trial by reason of ill-health, the deposition shall be read. See the case of Pollard's Heirs vs. Lively, 2 Grat., 216, cited ante, 3359. 772 CITATIONS TO THE CODE OP VIRGINIA. In the case of NuchoVs Administrator vs. Jones, 8 Grat., 267,. decided October, 1851. In a case of probate the deposition of an aged witness taken de lene esse, is allowed to be read upon proof, either by witnesses, or by his own affidavit of his inability to attend the court. In a case of probate, a witness unable to at- tend the court is examined as to the handwriting of a testamen- tary paper which had been shown to him by the propounder of the will, but which was not before him at the time he gave his deposition. Held: That the testimony is admissible, its weight depending upon the certainty of the pi oof that the paper pro- pounded for probate is the paper that was shown to the witness. In the case of Tayloe vs. Smith, 10 Grat., 557, decided Jan- uary, 1854, it was held : The affidavit of a witness taken before a justice of the peace, that from his age and infirmities he was unable to attend the court without endangering his life, not hav- ing been objected to in the court below for want of notice, that objection cannot be made in an appellate court. Such an affi- davit taken eight days before a cause is called for trial, is suffi- cient to authorize the deposition of the witness, which had been taken de bene esse, to be read as evidence. SECTION 3366. In the case of Barnett & Woolfolk vs. Watson & Urquhart, 1 Wash., 372 and 380, decided at the fall term, 1794. The de- claration was against Barnett & Woolfolk ; the writ was returned "no inhabitant" as to Barnett; Woolfolk entered appearance, pleaded, and the plaintiff got an order for taking depositions, after which Barnett appeared and acknowledged the service of notice of taking depositions, and afterwards Barnett & Woolfolk appealed on the ground that depositions taken in a suit against Joseph Woolfolk were not available in a suit against the firm. Held : The depositions were properly read, as the appearance was a joint defence. The deposition need not be subscribed by the witness where certified by two magistrates to be taken on oath. In the case of Marshall vs. Frisbee, 1 Munf., 247 and 252, decided April 30, 1810, it was held : An order of court granting leave to take a deposition in the city of Philadelphia, being " by consent of parties that a commission issue to any four aldermen of the aaid city and W. -K.," and a subsequent order also by consent, granting " new commissions to take deposi- tions," a commission issuing afterwards " to K. K., alderman of the city of Philadelphia, and four other persons by name," not said to be aldermen (and omitting W. K), "any three of whom to act if the whole cannot," should be presumed to have been directed to persons agreed upon by the parties, but whose CITATIONS TO THE CODE OF VIRGINIA. 773 names were omitted by the clerk in entering the last order; no objection having been made in the court below on account of any real or supposed variance between the first and second orders and commissions. A commission directed to five persons, " any three of whom to act," cannot be executed by one only, and a return by one that three others were present when the deposition was taken, is not sufiicient. It should be certified by three, at least, who were present. A deposition taken at a time and place not mentioned in the notice may be read as evidence ; an agent of the party to whom the notice was given, duly authorized to attend to the taking of such deposition, having appeared at the time and place ap- pointed and consented to a postponement to such other time and place ; and if in other respects the commission be regu- larly executed and returned, the court will presume from cir- cumstances that the person who gave the consent was the authorized agent of the party. In the case of Givens & Reynolds vs. Manns, 6 Munf., 191, decided October 23, 1818, it was held : It seems that a deposi- tion taken de bene esse by two magistrates, and with due notice (it appearing that an order of court was made awarding a com- mission to take it, and that the clerk charged a fee for issuing the commission), may be read as evidence, on proof of inability of the witness to attend, notwithstanding there be no other proof that it was taken by virtue of a commission delivered to the magistrates (no commission being found among the papers), and it be returned to the clerk's office, opened and unsealed, but without being shown to have been erased or altered. In the case of CdbelVs Executors vs. Megginson's Administra- tors, 6 Munf., 202, decided October 26, 1818, it was held: Ac- cording to the practice in our court of equity, it seems that a bill to set up a lost bond need not be supported by the plain- tiff's affidavit. SECTION 3370. In the case of Templeman vs. Fauntleroy, 3 Rand., 434, de- cided June, 1825, it was held: A court of chancery may direct the reference of a case to a master, with authority to examine the defendants on oath, and such examination will have the effect of an answer. In the case of Baker vs..Morriss's Administrator, 10 Leigh, 284 (2d edition, 294), decided May, 1839. In a suit in equity to enforce payment of a bond debt twenty-eight years after the right to demand it accrued, there being no remedy under the circumstances of the case but in equity, the bill, to rebut the presumption of satisfaction arising from lapse of time, calls on the defendant to answer whether the debt has been paid or 774 CITATIONS TO THE CODE OF VIRGINIA. not. Held : The defendant was properly compelled to answer that point. Where assumpsit is brought at law, and the statute of limita- tions pleaded, the plaintiff may file a bill of discovery in equity, calling on the defendant to answer whether he has not made a new promise within the term of limitation, in order to use this matter on the trial of the action at law in avoidance of the bar of the statute, and the defendant shall answer the allegation of the new promise on oath. In the case of Vaughn & Co. vs. Garland, 11 Leigh, 251, de- cided July, 1840, it was held : A plaintiff in an action at law, wishing a discovery from the defendant, files written interroga- tories, under the statute, to which answers are given. At the trial the defendant offers to read to the jury as evidence the in- terrogatories and answers, to which the plaintiff objects. Never- theless, the circuit court permits the same to be read, and a verdict and judgment are rendered for the defendant. The court of appeals reverses the judgment of the circuit court, and awards a new trial, with directions that the answers to the in- terrogatories are not to be read, unless introduced on the part of the plaintiff. In the case of Poindexter, etc., vs. Davis et als., 6 Grat., 481, decided January, 1850, it was held : A party to a cause is not bound to answer interrogatories which may subject him to a penalty or forfeiture. This rule is not confined to cases where the purpose of the action is to enforce the penalty or forfeiture, but extends to those where the discovery itself would expose the party to some action or suit, or to any criminal or penal prose- cution tending to the like result. If the court permits improper interrogatories to be filed, and directs them to be answered, the party to whom they are directed may answer them, and then, on trial of the cause, may object to their admission as evidence. In the case of Fant vs. Miller & Mayhew, 17 Grat., 187, de- cided January 16, 1867, it was held : The rule in equity practice that the answer of the defendant upon any matter stated in the bill, and responsive to it, is evidence in his favor, applies when a material disclosure is called for by the bill and is made in the answer. A plaintiff cannot destroy the weight of the whole an- swer by proving that the defendant is unworthy of credit, nor can he incidentally do so by proving that the answer is defect- ive in one respect, or in several respects, the only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by that amount of evidence which is required by the rule in chancery. The answer of a defendant to a pure bill of discovery, when used on a trial at law, is used as a matter of evidence, the whole of which is to be read as the CITATIONS TO THE CODE OF VIRGINIA. 775 testimony of a witness, including not only admissions against the interest of the respondent, but all assertions in his favor, subject, however, to be credited or discredited, in whole or in part^by the court or the jury, according to its own intrinsic weight, or its relative weight in comparison with the other evi- dence in the action at law. When a plaintiff goes into equity for relief on the ground of discovery, the court will give to the answer of the defendant the same effect that would be given to it in a court of law, ex- cept that the plaintiff cannot contradict the answer by other evidence, as he would thereby prove himself out of court. A commissioner properly has much latitude of discretion in granting continuances of proceedings before him, and the court whose order he is executing will not overrule his action in that respect, unless it be plainly erroneous. Still less will an appel- late court reverse a decree for that cause. SECTION 3373. In the case of Evans vs. Stewart et als., 81 Va., 724, decided February 18, 1886, it was held : A person for seven years not heard of by those who, had he been alive, would naturally have heard of him, is presumed to be dead ; but the law raises no presumption as to the precise time of his death. The burden of proving that the death took place at any par- ticular time within the seven years lies upon the person claim- ing a right to the establishment of which that fact is essential. SECTION 3375. See the references given to Section 2897. In the case of The Commonwealth vs. Morris, 1 Va. Cases, 176 (referred to as 172), it was held: In a criminal prosecution for libel truth may be shown in mitigation of fine. In the case of Brooks vs. Galloway ', 12 Leigh, 466, decided December, 1841. The court, on the trial of an issue, makes a remark calculated to prejudice the minds of the jury against the defendant, but at the same time tells the jury that that remark has nothing to do with the cause, and ought not to influence their verdict ; and a verdict is rendered for the plaintiff. Held : Such remark is no ground for reversing the judgment on the verdict. In the case of Moseley vs. Moss, 6 Grat., 534, decided Jan- uary, 1850, it was held : If in actioos of slander under the statute, the truth of the words spoken may be given in evidence in mitigation of damages. Capell, P., and Baldwin, J., in the affirmative, and Allen, J., in the negative. In the case of Bourlandvs. JZdison, 8 Grat., 27, decided July, 1851, it was held : In an action of slander, under the plea of not 776 CITATIONS TO THE CODE OF VIRGINIA. guilty, the defendant may in mitigation of damages prove any facts, as to the conduct of the plaintiff in relation to the trans- action which was the occasion of the slanderous language com- plained of, which tend to excuse him for uttering the words, provided the facts do not prove or tend to prove the truth of the charge complained of, but in fact relieve the plaintiff from the imputation involved in it. In the case of Hogan vs. WUmouth, 16 Grat., 80-85, et seq., decided August 30, 1860, it was held : In this case the truth of the words may be shown in mitigation of damages though the action is under the statute; but the court carefully refrained from deciding, and expressly said that they should not decide this rule to be universal. See the case of Dillard vs. Collins, 25 Grat., 343, cited ante, Section 2897. See the case of Hansbrough et ux. vs. Stinnet, 25 Grat., 495, cited ante, Section 2897. See the case of Chajfin vs. Lynch, 598, cited ante, Section 2897. CHAPTEE CLXV. SECTION 3376. In the case of Lyons (Surviving Executor of Claiborne) vs. Gregory, 3 H. & M., 237, decided November 22, 1808, it was held: Where the records of a court have been destroyed, -an imperfect minute of a judgment may be admitted to record un- der the act of assembly, in lieu of the original, provided the substantial parts thereof appear ; and the record of such minute, made by order of the court., is good evidence on a plea of nul- tiel record, although the clerk has failed to endorse upon it that the original was lost or destroyed^ and has also failed to make an entry to the same effect in the record-book. What variances between a judgment and the recital thereof in a scire facias, or in the judgment thereupon, are not material. In the case of Smith vs. Carter, 3 Band., 167, decided Feb- ruary, 1825, it was held: Where a will has been regularly proved in a court of probate, and afterwards destroyed by the enemy, together with the book in which it was recorded, its contents may be proved by parol evidence. The remedy pointed out here is only cumulative, and does not deprive a party of his remedy at common law. In the case of Bradshaw vs. Commonwealth, 16 Grat., 507, decided September 3, 1860, it was held, p. 517 : In a prosecu- tion for a felony or a misdemeanor, if the indictment is lost at any time before the trial, though after arraignment and plea, the party cannot be tried. The act authorizing a lost record or paper to be substituted CITATIONS TO THE CODE OF VIRGINIA. 777 by an authenticated copy or proof of its contents, applies only to civil cases, and does not extend to records or papers in crimi- nal proceedings. In the case of Corlett vs. Nutt (Trustee), 18 Grat., 624, de- cided April, 1868, it was held, p. 639 : Plaintiff in unlawful de- tainer proves he deposited the original will of his testatrix with the clerk of the Circuit Court of Richmond, in 1864. He also proves that the witness had inquired for said paper of the said clerk at his office in the city of Richmond, in whose custody the said original paper had been left ; that said clerk at his request made search for said paper, and reported it had been lost out of his possession, and destroyed at the time of the tire in April, 1865. In the absence of all suspicion of fair* dealing, this testimony is sufficient to let in a copy of the will, of the accuracy of which copy there is no question. Upon proof that the will had been regularly admitted to pro- bate in the Circuit Court of Richmond, such proof of the loss and destruction of the record will authorize the admission of an official copy of the record, certified by the clerk. And this offi- cial copy having been admitted to probate in the Orphan's Court of the District of Columbia, an official copy from that office is admissible. In the case of Dismal Swamp Land Company vs. Macauley's Administrators, 85 Va., 16, decided June 4, 1888. The cause was on the docket of the circuit court at its last session before the war. All records of that court were destroyed during the war except such as were in the attorney's hands. In 1881 the cause was not on the docket, it not appearing that it had been legally removed. On motion it was reinstated. Held : No error. In the case of Hudson vs. Yost, 88 Va., 347, decided July 23, 1891, it was held: It is sufficient compliance with the Code where sworn bill alleges and answer admits the destruction of the original papers in a cause wherein was a decree of sale of certain lands, and there is filed a certified copy of the papers from supreme court where the cause was on appeal, and an in- junction will not lie to such sale on the ground that "no affi- davit" of destruction was filed. CHAPTER CLXVI. SECTION 3378. See the references given to Sections 3211 and 3287. In the case of White vs. Archer, 2 Va. Cases, 201, decided by the General Court, June term, 1820, it was held : A capias ad respondendum was issued returnable to the rules, on the first Monday in April, and on that day common order was entered ; the first Monday in May was the next rule day, on which day Query : " unfair.". 778 CITATIONS TO THE CODE OF VIRGINIA. the common order was confirmed in the office ; on the same day the court sat. It was not regular to place that case on the office-judgment docket of that term, because the statute directs that the docket shall be made out before every term. In the case of Hale, vs. Chamberlain, 13 Grat., 658, decided February 10, 1857, it was held: In a proceeding under the statute to recover money due upon contract by notice, the notice must be returned forty days before the commencement of the term, and put upon the docket of the court, or it cannot be tried at that term. The references to 29 Grat., 392 and 395, are errors. SECTION 3380. In the case of Ex Parte Richardson, 3 Leigh, 343, decided December, 1831, it was held: The statute of 1825-'26, Chapter 15, was intended to prevent unreasonable and causeless delays in suits in chancery, and, with that view, the 14th Section au- thorizes the court of appeals to award a mandamus to the courts of chancery to compel them to hear causes at the first term at which they are prepared for hearing, when no special cause ap- pears for the refusal of the court to hear them, but the statute does not authorize a mandamus to compel a hearing of the cause, which the court of chancery, in its discretion, for reasons satisfactory to it, thinks proper to continue. SECTION 3381. In the case of Pleasants, Shore <& Co., arid Anderson vs. Jtoss, 1 Wash., 156, decided at the spring term, 1793, it was held: The issue in this cause was intended to satisfy the conscience of the chancellor. It appears that his conscience was satisfied, but this court has the power of examining and correcting hi decrees and will be guided by the same conscientious prin- ciples. In the case of Southall vs. McKeand, Mayo, et als., 1 Wash.,, 336, decided at the fall term, 1794, it was held : The verdict in an issue directed out of chancery ought not to stand when there is a certificate of the judges therewith certifying that the weight of evidence is against such verdict. In the case of Pryor vs. Adams, 1 Call, 382 (2d edition, 332), decided October 25, 1798, it was held : The court of chancery should judge on the proofs before it, and in a clear case should decree thereon without directing an issue. In the case of Wilson vs. Rucker, 1 Call, 500 (2d edition, 435), decided May 4, 1799, it was held : The court of chancery may, on granting a new trial in the same court, order the ver- dict to be certified into the court of chancery, and proceed to make a final decree in the cause. CITATIONS TO THE CODE OF VIRGINIA. 779 In the case of Stannard vs. Blaydds Executors, 2 Call, 369 (2d edition, 310), decided November 5, 1800, it was held: After three verdicts, the court of chancery did right in decreeing ac- cording to the opinion of the juries. If the court before which the issues are tried is dissatisfied with the verdict, this dissatisfaction must be certified in the re- cord of the court, or, if refused, it must be put on the record by a bill of exceptions. It cannot be supplied by affidavits, espe- cially those of counsel in the cause. The discretion of the chancellor is to be exercised on sound principles, of which this court may judge. In the case of Ilooe vs. Marquess, 4 Call, 416, decided Octo- ber, 1798. The court of appeals, where a son had obtained a deed from his father for ninety acres of land and five slaves, in consideration of one pound sixteen shillings and maintenance for life, after which he sold the land to a third person, who filed a bill alleging that deed to have been recorded, but to have been afterwards destroyed, another substituted in its room, and the land sold again by the first donor to a purchaser with no- tice of the plaintiff's title, whose deed had not been recorded, ordered an issue to try whether there was such substitution of one deed for another, and, if so, what were the terms of the first deed. In the case of McCall vs. Graham,, 1 H. r to direct it ; and although the issue is found in favor of the plaintiff, the bill should not- withstanding be dismissed at the hearing. When the allega- tions of the bill are positively denied by the answer, and the plaintiff has failed to furnish two witnesses, or one witness and corroborating circumstances, in support of the bill, it is error to direct an issue. The onus must be shifted and the case ren- dered doubtful by the conflicting evidence of the opposing parties before an issue should be ordered. In the case of Beverly vs. Walden, 20 Grat., 147, decided No- vember, 1870, it was held : Whether a court of equity will direct an issue to be tried by a jury is a question of discretion ; but it is a sound judicial discretion, and if improperly exercised an appellate court will direct it. When the allegations of the bill are positively denied by the answer, and the plaintiff has failed to produce two witnesses, or oije witness and strong corroborating circumstances in support 782 CITATIONS TO 'THE CODE OF VIBGINIA. of the bill, it is error in the chancellor to order an issue; no issue should be ordered until the plaintiff has thrown the bur- den of proof on the defendant. In the case of Powell et ux. vs. Manson, 22 Grat., 177, decided April 17, 1872, it was held : Upon the trial of an issue out of chancery, depositions taken in the cause in the chancery court are not to be read to the jury, unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. Upon the trial of an issue out of chancery, the bill is not proof of its allegations, except so far as these allegations are admitted to be true by the answer. And the answer is not proof of the allegations therein contained, unless the allegations in the answer a^ to facts be positive, and responsive to some allegation of the bill; and to be responsive such allegations of the answer must not be either evasive or contradictory. On the trial of an issue out of chancery, the rule of evidence is the same as on the hearing in the chancery court ; and the allegations of the answer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness and corroborating circumstances. Upon a motion for a new trial of an issue out of chancery, on the ground that the verdict is contrary to the law and the evidence, the judge overruling the motion refuses to certify the facts proved because the testimony was conflicting ; but all the oral testimony is certified. The court will consider not merely whether the evidence adduced before the jury warrants the verdict, but also whether, having regard to the whole case, farther investigation is necessary to attain the ends of justice. In such a case, although there may have been a misdirection by the court, or evidence mfy have been improperly rejected, a new trial will not be granted, if the verdict appears to be right, upon a consideration of all the evidence, including that which was rejected. In the case of Nagle vs. Newton, 22 Grat., 814, decided De- cember 11, 1872. N. sues J. in equity to rescind or enforce specific execution of a contract for the sale of land by N. to J. J. answers, not objecting to a specific execution, but insisting that he shall be compensated for injuries to which he has been subjected by the failure of N. to comply with his contract, and by the intermeddling of N. and his agents with J.'s possession of the land and the property upon it. Held : The case being a proper one for decreeing specific execution of the contract, the court has jurisdiction, as ancillary thereto, to decree compensa- tion to J. for the damages he has sustained by the improper acts of N. and his agents. The damages may be ascertained either by a commission or CITATIONS TO THE CODE OF VIRGINIA. 783 by an issue of quantum damnificatus to be tried at the bar of the court. In the case of Lavell vs. Gold"s Administrator, 25 Grat., 473, decided September, 1874. In a chancery cause the court directs an issue to be tried at its bar. This issue is tried on the com- mon law side of the court, and the verdict is certified to the chancery side of the court, and there is a motion to set it aside for a new trial. The court sets aside the verdict, and directs a new trial of the issue as amended by him, he being the same judge who presided at the trial of the issue. Held : It is not necessary for the judge sitting on the common law side of the court to certify to himself on the chancery side that he is dissat- isfied with the verdict ; but he may set it aside without such cer- tificate. Another judge holding a subsequent term cannot set aside the order of the judge at the previous term and reinstate the verdict. If the party objecting to set aside the verdict is dissatisfied with the order, he should except to it, and have the facts proved on trial, or the evidence spread upon the record, and thus the order may be reviewed. In the case of Steptoe vs. Flood's Administrator, 31 Grat., 323, decided January, 1879, it was held: On the trial of an issue out of chancery, the plaintiff in the issue relies upon a receipt to which there is an attesting witness, but both the principal and the witness are dead. The plaintiff having proved the hand- writing of the witness, the defendant may introduce the testimony of witnesses to prove that the name of the principal to the re- ceipt is not in his own handwriting. There being great conflict of opinion among the witnesses as to the genuineness of the handwriting of the principal to the receipt, the verdict of the jury against it will not be disturbed. The court will not set aside the verdict of the jury on the cer- tificate or affidavit of two of the jurors, that they thought the receipt proved and ought to be considered; but the other mem- bers of the jury insisted that the receipt had nothing to do with the case, and they were persuaded against their judgment. It is the general rule in ordinary trials that a verdict will not be disturbed upon the affidavits of jurors, and this is so in the case of an issue out of chancery especially. In the case of Snouffers (Administrator) vs. Ilansbrough, 79 Va., 166, decided July 22, 1884, it was held : Where, because of conflict in testimony, an issue is directed, the solution whereof depends on credibility of witnesses, and the verdict is sanctioned by the trial court, the settled rule is that the appellate court will consider not merely whether the evidence warrants the verdict, but also whether upon the whole farther investigation is neces- sary to justice, and though there may have been misdirection, 784 CITATIONS TO THE CODE OF VIRGINIA. or improper rejection of evidence, it will not grant a new trial if, on considering all the evidence, including that rejected, the verdict appears to be right. At trial of issue, whether vendee was induced to buy by ven- dor's misrepresentation as to boundaries, evidence of the value of the land at time of sale and since is admissible, as tending to disprove imposition. At such trial, though instructions that vendee must be held to have had notice, from the written con- tract of sale and the title papers therein referred to, that the purchased tract included one hundred and thirty -five acres of mountain land, might not have been directly relevant to the issue, the solution whereof depended on the credit the jury at- tached to the witnesses, yet the instruction could not affect the verdict, and, even if erroneous, is no ground of reversal. At such trial, that jury shall weigh defendant's answer instead of merely the parts responsive to the bill, though rather broad, is not error for which the verdict will be set aside. Where at such trial impartially had the verdict could not have been dif- ferent had a certain instruction been given, the refusal to give the instruction is not error for which the verdict will be set aside. And the rule is the same where the court gives, in lieu of instructions asked for by a party, others substantially em- bodying the same ideas. In the case of Crebs vs. Jones, 79 Va., 381, decided Septem- ber 25, 1884, it was held : The object of trying by juries such issues is to satisfy the chancellor's conscience where the evi- dence is contradictory, but the court is not bound to direct an issue merely because the evidence is contradictory. The ex- pense and delay of such trials are to be incurred only where the court, exercising sound discretion, thinks it necessary, ex- cept in certain cases where they are matters of right. In the case of Carter vs. Carter, 82 Va., 624, decided Decem- ber 2, 1886, it was held : Legal discretion lies in the chancellor to direct or refuse an issue to be tried by a jury ; but the appel- late court must judge whether or not such discretion has been soundly exercised, whenever the ruling impliedly involves a set- tlement of the principles of the case. Where plaintiff avers that certain deeds were procured by the fraud of the prior grantee from their common grantor, when she was mentally incapable of conveying, and both the grantor and prior grantee, by their answers, positively deny every material averment, and plaintiff fails to present two wit- nesses, or one and corroborating circumstances, in support of the bill, or even to throw the burden of proof on the defendant, and to render the case doubtful by conflicting evidence, no issue need be directed. This is the case cited from 11 Virginia Law Journal, 275. CITATIONS TO THE CODE OF VIRGINIA. 785 In the case of Loftus vs. Maloney : , 89 Va., 576, decided Jan- uary 26, 1893, it was held : An issue out of chancery is not al- lowable except to aid and satisfy the chancellor in cases where the evidence is so conflicting as to make him doubt what his decision should be. SECTION 3383. In the case of McMillion vs. Dobbins, 9 Leigh, 422, decided July, 1838, it was held : In an action on the case, if there be an office-judgment against the defendant, with a writ of inquiry, and afterwards, without any plea in the cause, the jury be sworn as if there was an issue, and a verdict be found for the defendant, the verdict will be set aside and a new trial directed. In the case of Hewit vs. The Commonwealth, 17 Grat., 627, decided April 19, 1867, it was held: A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case, and although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. As a general rule, where a witness for a party fails to appear at the time appointed for the trial, if such party show that a subpoena for the witness has been returned executed, or, if not so returned, was delivered to the proper officer of the county or corporation in which the witness resides a reasonable time before the time for the trial, and shall swear that the witness is material, and that he cannot safely go to trial without his testi- mony, a continuance ought to be granted, if there be reasonable grounds to believe that the attendance of the witness at the next term of the court can be secured, especially if the case has not been before continued for the same cause. Where the circumstances satisfy the court that the real pur- pose in moving for the continuance is to delay or evade a trial, and not to prepare for it, then, though the witnesses have been summoned, and the party has sworn to their materiality, and that he cannot safely go to trial without them, the continuance should be refused. In the case of Ilarman vs. Howe, 27 Grat., 676, decided June, 1876, it was held, p. 686 : A motion for a continuance is ad- dressed to the sound discretion of the court, under all the cir- cumstances of the case, and although an appellate court will supervise the action of an inferior court on such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous. Where the circumstances satisfy the court that the real pur- pose in moving for a continuance is to delay or evade a trial, and not to prepare for it, then, though the witnesses have been summoned, and the party has sworn to their materiality, and 50 786 CITATIONS TO THE CODE or VIRGINIA. that he cannot safely go to trial without them, the continuance should be refused. Where the circumstances are such as to induce the court to doubt the motives of the parties in moving for a continuance, the court may require him to state what he expects to prove by the absent witness, and if such proof would not effect the result the motion should be overruled. In the case of Rousell vs. The Commonwealth, 28 Grat., 930, decided January, 1877, it was held : R. is indicted for larceny in the Corporation Court of Norfolk, in October, 1875. The clerk, at her instance, twice sends a subpcena for C. as a witness to the sheriff of Surry, where C. lives, which are returned " came too late to serve." He sends another, which is not returned. In June the case is continued for the Commonwealth. The counsel of R., relying on the practice of other clerks to issue subpoenas for a witness directed to be summoned, does not direct the issue of one to the October term, and one is not issued, and C. is not present when, on the 2d of October, the case is called at that term. The court continues the case until the ninth, and the clerk by the first mail (the next day) sends a subpmna for C. to the sheriff of Surry, but on the ninth the writ is not returned nor is the witness present. Though the counsel for R. states in writing that he has conversed with C. and that he will prove material facts, which he states in favor of R., and R. swears that C. is a material witness for her, and she cannot go safely to trial without him, and that she can prove by him the facts stated by the counsel, the court is justified in refusing a continuance of the cause. In the case of ^Walton vs. The Commonwealth, 32 Grat., 855, decided January 16, 1879. The principles governing the court on motions for a continuance in criminal cases as stated in Hewit's case, 17 Gr,t., 627-'29, approved and acted on. SECTION 3384. The case of Syme vs. Jude (Executor), 3 Call, 522 (2d edi- tion, 452), decided June 30, 1790, was submitted to the jury, who not agreeing, a juror was withdrawn by consent. In this stage of the proceedings the plaintiff was permitted to amend his declaration, the cause being in paper, notwithstanding the jury had been sworn, as no verdict was rendered, during which time amendments in favor of justice are within the discretion of the court. In the case of Tabb vs. Gregory, 4 Call, 225, decided April, 1792, it was held: Amendment to the declaration may be al- lowed during the trial of the issue, but, if the defendant request it, the jury should be discharged, the defendant be permitted to amend his plea, or to plead anew, and the cause should be con- tinued. CITATIONS TO THE CODE OF VIRGINIA. 787 In the case of Anderson vs. Dudley, 5 Call, 529, decided Oc- tober, 1805, it was held : Upon trial of the issue of nul tiel re- cord, the court may allow an amendment of the declaration, and, if the defendant consent, may proceed with the trial. See the case of Perkins (Administrator) vs. Hawkins's Ad- ministrators, 9 Grat., 649 and 653-'54, ante, Section 3298. In the case of Beasley vs. Robinson, 24 Grat., 325, decided January, 1874, it was held : A notice is addressed by B. to R., late sheriff, and to his surviving sureties by name, survivors of themselves and of James Sims. On the trial B. introduces the bond, which is signed by R. and all the surviving sureties ; but it is objected to as evidence, because the name described in the address of the notice as James Sims is written Jos. Sin. This is not a material variance, and the bond should be admitted as evidence. The court having excluded the bond for the variance, B. proposes to introduce the record of the court setting out the qualification of R. as sheriff, and the names of his sureties, of whom James Sims is one, who signed, sealed, and acknowledged the said bond. But the defendants objected to the introduction of said evidence and the admission of said bond. The record is proper evidence, and should be admitted. If it could be con- sidered a case of variance between the pleadings and the proofs, it would have been such an one as might, and ought to, have been cured by an amendment according to the Code. In the case of TJie New York Life Insurance Company vs. Ilendren, 24 Grat., 536, decided March, 1874, it was held : In an action on a policy of insurance the declaration omitted one of the conditions endorsed upon it ; and on the trial, when the policy is offered in evidence, it is objected to for the variance. The court may allow the plaintiff to amend the declaration by inserting the omitted condition, and may then proceed with the trial. In the case of Carter et als. vs. Grant's Adm'rs, 32 Grat., 769, decided February 5, 1880, it was held, p. 777 : On proceeding upon a forthcoming bond given on a distress for rent, whether by motion or by action on the bond, the plaintiff must prove the contract of rent for which the distress was sued out. On such a proceeding, though the warrant of distress was for more rent than was due, the plaintiff may have judgment for the less amount due. In the case of Forbes & Alters vs. Hagman, 75 Va., 168, de- cided January 13, 1881, it was held, pp. 193-'95 : The record in the action of F. & A. vs. //. < Cr. is competent evidence in the case for the plaintiffs, and slight variances between the declara- tion and the record, which would not prevent the record in the present case from being a bar to another action for the same cause, are not sufficient to exclude it. 788 CITATIONS TO THE CODE or VIRGINIA. In the case of Alexandria & F'redericksbnrg Railroad Com- pany vs. Herndon, 87 Va., 193, decided December 4, 1890, it was held : At trial, in case of variance between declaration and evidence, the court may allow the former to be amended by striking out immaterial words without remanding the case to rules. SECTION ^3385. In the case of Washington and New Orleans Telegraph Com- pany vs. Hobson & Son, 15 Grat., 122, decided April, 1859, it was held: On an exception to an opinion of the court over- ruling a motion for a new trial on the ground that the verdict is contrary to the evidence, if the exception states neither the facts proved nor the evidence introduced on the trial, nor refers to another bill of exceptions in which all the facts or evidence given on the trial are shown to be stated, the appellate court cannot review the judgment of the court below. It must appear from the record that a point decided by the court has been saved before the jury retires, though the excep- tion may be prepared, and may be signed by the judge, either during the trial or after it is over, during the same term. If this appears from the whole record, it is sufficient, though not ex- pressly stated in the bill of exceptions ; but if it does not so ap- pear from the record, the appellate court cannot review the judgment of the court below upon the point. In the case of Peery vs. Peery, 26 Grat., 320, decided June 30, 1875, it was held, p. 324 : Though a plaintiff moves the court, before the jury retires to consider of their verdict, to ex- clude certain evidence which had been given on the trial, which the court refuses to do if notice of a purpose to except to the ruling of the court is not given until the jury come into court with their verdict, the exception is too late. In the case of Winston vs. Giles, 27 Grat., 530, decided March, 1876, it was held : In an action at law which is submitted to the judgment of the court without a jury the court renders a judg- ment to which one party excepts, and it being near the end of the term, the court gives the counsel time until the first day of the next term to prepare the bill of exception, but judgment is entered. The court cannot give such leave, and the bill of ex- ception cannot be made a part of the record. Even if the court had the authority to give the time until a day certain in the next term to prepare the bill of exception, if the bill of exception is not tendered to the court on that day it cannot afterwards be received. In cases when it may be important to give time until the next term to prepare the bill of exception, the case should be kept open, and the judgment should not be entered until the next term. In the case of Page vs. Clopton, 30 Grat., 415 and 427-'30, CITATIONS TO THE CODE OF VIRGINIA. 789 decided July, 1878. On the 22d of March, 1878, C., a judge in court, imposed a fine on P., an attorney, for alleged contemptuous behavior in the presence of the court, and at the same time a motion was made by another attorney to remit the fine, which motion was continued until a further day. On the 25th of the same month, the court overruled the motion to remit the fine, and ordered the sergeant to take P. in custody and detain him until the fine was paid. P. was in court on both of these days, and no exception was taken to the action of the court. On the 27th of the same month, and during the same term, P., who had paid the fine under protest, appeared in court and offered to ac- cept the judgment imposing the fine, and moved the court to certify the facts, which, for reasons stated by the court, was re- fused. No bills of exceptions appear to have been tendered this day, but on the 30th day of the same mouth, the last day of the term, P. tendered three bills of exceptions to the judgment and rulings of the court, which the judge refused to sign, and P. applied for a mandamus to compel him to sign the same. Held : The writ of mandamus will lie to compel the judge to sign bills of exceptions in this case, if "the truth of the case be fairly stated therein." When a bill of exceptions is tendered which does not fairly state the truth of the case, it is the duty of the judge, with the aid of the counsel, to settle the bill, and when settled to sign it, and if he refuse to do this, mandamus will lie to com- pel him. The usual practice is to give notice of the excep- tions at the time the decision is made, and reserve liberty to draw up and present the bill for settlement and signing, either during the trial or after the trial, and during the term at which final judgment is rendered; and it will be disregarded in the appellate court if signed after the end of such term as may be allowed by the court ; but it must be signed during the term at which final judgment is rendered, and it will be disre- garded in the appellate court if signed at the end of such term, although signed pursuant to a previous order allowing it, unless, perhaps, such order be made by consent of parties. The rule as to notice of intention to take an exception, or of taking it at the time of the ruling, does not apply to a case like the present, in which the exceptant and the judge are the only parties concerned. In the case of Danville Bank vs. WaddilVs Administrators, 31 Grat., 469, decided February 6, 1879, it was held, pp. 474- 478 : If an instruction is given to the jury without objection at the time, and no exception, or notice of exception, is taken or given before the verdict is rendered, the giving of the instruc- tion cannot be the ground for setting aside the verdict and granting a new trial of the cause. 790 CITATIONS TO THE CODE OF VIRGINIA. In the case of Harman vs. Ihe City of LyncJiburg, 33 Grat. r 37, decided March 11, 1880, it was held, pp. 43-44: When ex- ception is taken to the admission or exclusion of evidence, or to the granting or refusing of instructions, or, indeed, to any other ruling of the court below at the trial, the bill should be so framed, by the insertion of the proper matter, as to make the error, if any, apparent; otherwise the exception will gener- ally be unavailing. In the case of Powell, who sues for, etc., vs. Tarry 1 s Adminis- trator, 77 Va,, 250, decided March 15, 1883, it was held: Un- less by record it appears that points decided by the court be- low were saved before the jury retired, they cannot be reviewed by the appellate court. But a bill of exceptions may be pre- pared and signed at any time during the term. When evidence conflicts, the court may refuse to certify facts proved, but must certify the evidence on motion of any suitor. Unless the evidence given is before the appellate court, it cannot pass on instructions given or refused. Lack of time, or lapse of memory, is no excuse for a judge's refusal to certify the evidence on the trial of. a cause before him, or to perform any other duty imposed on him by law. To compel a judge to certify evidence a mandamus lies ; but his refusal is error reviewable in the appellate court on com- plaint of the party injured. To deny certificate of evidence is to deny the suitor his right of appeal. In the case of Closes vs. Cromwell, 78 Va., 671, decided March 13, 1884, it was held : A bill of exceptions cannot be properly and regularly added to the record of a case after the case is ended by final judgment, and the power of the court over it has ended by the close of the term. In the case of Brown vs. Hall, 85 Va., 146, decided July 19, 1888, it was held : Though, to avoid confusion, it is better to take a separate bill of exceptions to each ruling of the trial- court, yet it is allowable in this State to embody in one bill ex- ceptions to several rulings, set forth with sufficient particularity, In the case of Bransford (Treasurer} vs. Karn <& Hickson, 87 Va., 242, decided December 11, 1890, it was held: A refusal of a judge to sign a bill of exceptions, when the record does not show that the losing party excepted at the trial to the ruling of the coiirt, cannot be maintained as error. SECTION 3387. In the case of David Ross vs. Gill et ux., 1 Wash., 87, de- cided at the spring term, 1792, it was held : The court has no power to direct a non-suit, however destitute the plaintiff might be of a right to recover. In the case of Champ's Executor vs. Jett, 1 Wash., 138, de- CITATIONS TO THE CODE OP VIRGINIA. 791 cided at the fall term, 1792, it was held : When the court has directed a non-suit, to which the plaintiff submits, he abandons his cause, and cannot, in an appellate court, object to the opin- ion of the court below in granting it. In the case of Tarpley's Administrators vs. Dobyns, 1 Wash., 185, decided at the spring term, 1793. The plaintiff pursued his remedy at law, and, after a verdict for the defendant, sought relief in equity. Held : The plaintiff, when he discovered a dis- position on the part of the defendant to avail himself of a legal advantage, should have suffered a non-suit, and have sought relief in equity if his case would bear it. In the case of Thweat <& Hinton vs. Finch, 1 Wash., 217, de- cided at the fall term, 1793, it was held : Upon a motion for a non-suit the court may give their opinion that the plaintiff has no cause of action, and may direct him to be called. But he may nevertheless appear and refuse to be non-suited, nor can the court compel him against his will. In the case of Calvert vs. Bowdoin, 4 Call, 217, decided June, 1791, it was held : If the evidence differs from the statement in the declaration, judgment of non-suit will be given by the court of error, and the cause will not be sent back to the court below with a direction to call the plaintiff, or to instruct the jury that the evidence does not support the declaration. In the case of Pinner et als. vs. Price (Administrator), 6 Hand., 676, decided by the General Court, November, 1828, it was held: The damages of five dollars, given by the act of assembly in case of non-suits, ought to be awarded in all cases of dismissions and discontinuances produced by a voluntary abandonment of the cause by the plaintiff after the defendant's appearance, whether in the office or in court, and such dismis- sion ought to be entered up as non-suits. But the dismission of a suit for a failure to give security for costs is not such a voluntary abandonment as authorizes this judgment. In the case of a retraxit these damages ought not to be awarded. In the case of Walkers vs. Boaz, 2 Rob., 485, decided No- vember, 1843. A non-suit in a writ of right having been suf- fered under a misapprehension on the part of the demandants and their counsel as to the legal effect of an instruction given at the trial, held: The court, in the exercise of a sound discre- tion, should, on the motion of the demandants, have set aside the non-suit ; and this not having been done, the judgment over- ruling such motion was reversed. SECTION 3388. In the case of Hansbrough et ux. vs. Stinnet, 25 Grat., 495, decided November 19, 1874, it was held, p. 505 : A deposition which has been read to the jury may be taken with them 792 CITATIONS TO THE CODE OF VIRGINIA. in their retirement, if what is objectionable in it has been erased. SECTION 3390. In the case of Baker vs. Morris's Administrator, 10 Leigh, 285 (2d edition, 294), decided May, 1839, it was held: It seems that in an action of debt on a bond at law the surplus interest beyond the penalty may be given in the form of damages. In the case of Hepburn vs. Dundass, 13 Grat., 219, decided March 7, 1856, it was held : Prior to this statute interest could not be allowed by a jury, in an ejectment, upon the profits ; and the jury having allowed such interest it is mere surplusage, and the judgment will be for the principal sum and interest from the date of the verdict. In the case of TazeweWs Executors vs. Saunders's Executor, 13 Grat., 354, decided May 23, 1856, it was held : Courts of equity will decree interest upon a bond or judgment beyond the penalty against the principal debtor. In the case of Lewis vs. Arnold, 13 Grat., 454, decided Au- gust 27, 1856, it was held: Upon a judgment in an action for a tort depending when the statute went into effect, it is proper to charge interest from the date of the verdict. In the case of Robert's Administrator vs. Cocke, etc., Murphy vs. Gaskin's Administrator, 28 Grat., 207, decided March, 1877, it was held : Where during the late war a creditor resided in the territory of one of the belligerent powers, and his debtor within that of the other said power, such debtor would, under the rules of public law, be entitled to an abatement of interest during the time the war lasted. Where the debtor and the creditor resided within the same territory the mere existence of war does not alone furnish any legal ground for the abatement of interest upon contracts during the time such war lasted. In contracts for the payment of a certain sum of money, in- terest on the principal sum is a legal incident of the debt, and the right to it is founded upon the presumed intention of the parties. Wherever there is a contract, expressed or implied, for the payment of legal interest, the obligation of the contract extends as well to the payment of interest as it does to the payment of the principal sum, and neither the courts nor the juries ever had the arbitrary power to dispense with the performance of such contracts either in whole or in part. In the case of Cecil vs..Deyerle et als., 28 Grat., 775, decided July, 1877, it was held, p. 783 : The act of the General As- sembly approved April 2, 1873, entitled "An act to amend and re-enact Section 14, Chapter 187, of the Code of 1860 in rela- tion to interest," so far as the said act confers upon courts and juries in the suits therein mentioned power to remit interest as CITATIONS TO THE CODE OF VIRGINIA. 793 therein provided, on contracts entered prior to April 10, 1865, which said courts and- juries did not have under the laws in force at the time such contracts were entered into, is repugnant to the Constitution of the United States and of this State, and is so far null and void. And so much of the said act as empowers the courts to review judgments and decrees upon motion, and to abate interest as in said act provided, is repugnant to the Con- stitution of the United States and this State, and therefore void. And this though the evidence of debt on which the judgments are founded does not provide in terms for the payment of in- terest, but the judgments are for interest. In the case of Kent's Administrator vs. Kent's Administrator, 28 Grat., 840, decided July, 1877. On a bond dated June 6, 1845, payable on demand, in which there is nothing said about interest, on which judgment was rendered March 12, 1874, and in which judgment the circuit court, simply by virtue of the act of April 2, 1873, above recited, there being no evidence on the question of interest before it, abated the interest from April 17, 1861, to April 10, 1865. Held: The bond is payable presently, and bears interest from its date until it is paid ; that there is an implied contract to pay said interest, and that said act allowing the abatement within the periods mentioned impairs that con- tract, and is therefore null and void. In the case of Cecil & Perry vs. Hicks, 29 Grat., 1, decided September 1877. C. and P. executed their single bill dated October 18, 1871, whereby they promised six months after date to pay H. or order the sum of seven thousand dollars, with in- terest at the rate of 12 per centum per annum from date. Held : The contract for interest at the rate of 12 per cent, per annum was legal under the constitutional provision in force at the time of the contract, and it is not affected by the subsequent aboli- tion of that provision. The obligors in the bond are bound to pay interest at the rate of 12 per centum per annum not only up to the maturity of the bond, but after maturity and until the payment thereof. In the case of King vs. Buck et als., 30 Grat., 828, decided October 3, 1878, it was held, p. 831 : Under Section 2821, the judgment is to be for the principal sum ascertained to be due after deducting the usury and interest on that principal from the date of the judgment. In the case of Brewster vs. Wake-field,, 22 Howard, 118, de- cided December, 1859. While Minnesota was a territory the following statute was passed : Section 1. Any rate of interest agreed upon by the parties in contract, specifying the same in writing, shall be legal and valid. 2. When no rate of interest is agreed upon or specified in a note or other contract, 7 per cent, per annum shall be the legal rate. 794 CITATIONS TO THE CODE OF VIRGINIA. "Where a party gave two promissory notes, in one of which he promised to pay twelve months after the date thereof a sum of money, with interest thereon at the rate of 20 per cent, per annum from the date thereof, and in another promised to pay another sum, six months from date, with interest at the rate of 2 per cent, per month, the mode of computing interest under the statute was to calculate the interest stipulated for up to the time when the notes became due, and after that time at the rate of 7 per cent, per annum. In the case QiBumhisel vs. Firman, 22 Wallace, 170, decided October, 1874, it was held: When a party agrees by note to pay a certain sum at the expiration of the year, with interest on it at a rate named, the rate being higher than the customary one of the State or territory where he lives, and does not pay the note at the expiration of the year, it bears interest not at the old rate, but at the customary or statute rate. In the case of Cromwell vs. The County of Sac, 96 U. S. S. C. Reports, 51, decided October, 1877, it was held, p. 61: When at the place of contract the rate of interest differs from that at the place of payment, the parties may stipulate for either rate,, and the contract will govern. In the case of Holden vs. Trust Company, 100 U. S. S. C. Reports, 72, decided October, 1879, it was held : In the District of Columbia, the legal rate of interest is six per cent, per annum, but parties may, in writing, stipulate for any other rate, not exceeding ten per cent. Where a party made there his promis- sory note, whereby he promised to pay a certain sum named therein, " with ten per cent, interest," held : That interest should be computed at that rate up to the maturity of the note, and' thereafter at six per cent. In the case of Ewell vs. Daggs, 108 U. S. S. C. Reports, 143, decided March 26, 1883, it was held: When the amount of the face of a note represents a principal sum and interest thereon at a rate higher than the legal rate, and nothing is said in the note itself about interest, the note, after maturity, will bear in-; terest at the legal rate. In the case of Stayer vs. Long, 83 Va., 715, decided Septem- ber 22, 1887, it was held: Where a debtor lawfully agreed to _ pay interest at the rate of ten per cent, per annum, the court, will compel payment, though the debtor's lands are placed in a; receiver's hands at the creditor's instance. In the case of Stuart, Buchanan & Co. vs. Hurt, 88 Va., 343,. decided July 23, 1891, it was held: In an action of debt, on a decree for an amount of interest thereby found due the plaintiff from the defendant, interest on the amount of the decree may be recovered in the shape of damages for its detention, though the decree makes no provision for the payment of interest; thereon. CITATIONS TO THE CODE OF VIRGINIA. 795 SECTION 3391. In the case of Kerr & Co. vs. Love, 1 "Washington, 172, de- cided at the spring term, 1793, it was held: Where accounts are unliquidated and disputed, interest should only be allowed from the commencement of the suit. In the case of McConnico vs. Curzen, 2 Call, 358 (2d edition, 301), decided October 30, 1799, it was held : Interest cannot be allowed on unliquidated accounts. In the case of Deanes vs. Scriba et als., 2 Call, 416 (2d edi- tion, 350), decided October 22, 1800, it was held : The court of chancery, on debts not bearing interest in terms, cannot carry interest down below the decree. In the case of Waggoner vs. Gray's Administrators, 2 H. & M., 603, decided October 8, 1808, it was held : Interest on an unliquidated account ought not to be allowed. In the case of Clanton's Heirs vs. IloweWs Administrator, 1 Munf., 557, decided May 16, 1810, it was held: Interest on the hire of slaves ought not to be charged where the right to the slaves was in dispute, and it was doubtful to whom the money, when collected, should be paid, no proof appearing that the executors or administrators received any interest, or made any profit. In the case of Snickers vs. Dorsey, 2 Munf., 505, decided No- vember 23, 1811, it was held: In general, since the first of May, 1804, when interest is allowed in equity, it should not stop at the time when the balance of account is struck, nor at the date of the decree, but should run to the payment of such balance. In the case of Baird vs. Bland et als., 5 Munf., 492, decided March 19, 1817, it was held: When a person who bought a slave with lawful notice of a better title is decreed to deliver him and pay profits, interest ought to be charged against him upon the hires actually received from other persons from the dates of his receipts, but not upon the profits of such slave while in his own possession without being hired, the same being unliquidated and merely conjectural sums, and which he was in no default in not paying. In the case of Beall vs. Silver, 2 Band., 401, decided March, 1824, it was held : A creditor having obtained judgment against his debtor, without running interest, his execution is obstructed by a fraudulent conveyance made by the debtor of his property. A suit in chancery is then brought to remove the obstruction of the conveyance and for general relief. The chancellor ought to decree the interest, as well as to set aside the conveyance ; the prayer for general relief being sufficient to cover the demand for interest. In the case of Selden vs. Buchanan (Executor), 6 Hand., 465, decided May, 1828, it was held : The vendee of land on a credit 796 CITATIONS TO THE CODE OF VIRGINIA. to whom a deed is given, is not excused from paying interest on the purchase-price, the payment of the principal having been de- layed by a third party, who set up an adverse claim (and com- menced a course of litigation which continued for ten years, but which terminated in favor of the vendee's title), the vendee having continued all that time in possession, and enjoyed the issues and profits. The vendor only covenanted to sell and convey a perfect title (which was so conveyed, as proved by the result of the trial), not that there should be no claimants who would sue for it ; he therefore committed no breach of his covenant, and this is no ground to excuse the vendee from paying interest. The trouble and expense of defending the suit is what every, one who is sued is exposed to, and the vendee's costs cannot be set off against the interest. To excuse the vendee from paying interest during the time that the adverse claim is in suit, it is not sufficient that he should be ready and willing to pay the principal ; it ought also to appear clearly that he did in fact keep the money useless and unproductive by him, and that he gave the vendee notice that it was so unproductive. Although the adverse claim in this case was by the Commonwealth, who proceeded to escheat the land by inquisition (which was opposed by the vendee by a monstrans de droit, who defeated the claim), the supposed seisin in law into the hands of the Commonwealth by the office found, and the supposed liability of the vendee to the Commonwealth for the rents and profits, did not prevail over the actual seisin of the vendee, and as he actually enjoyed the issues and profits during the whole time, and by the result became exempted from all lia- bility for them to the Commonwealth, that supposed legal seisin of the Commonwealth forms no excuse to the vendee for not paying the interest to the vendor. In the case of The Auditor of Public Accounts vs. Dugger <& Foley, 3 Leigh, 241, decided November, 1881. A claim against the Commonwealth is presented to the auditor, which is yet doubtful, and therefore the auditor disallows it, and an appeal is taken from the auditor to a court of justice, which adjudges the claim against the Commonwealth. Held : In such case the court ought not to allow the interest. In the case of Waller's Administrator et als. vs. ByrcPs Ad- ministrators, 3 Leigh, 729, decided May, 1832, it was held : In- terest upon estimated hires and profits of slaves should be al- lowed only from the date of decree, and it is error to allow interest from the date of the report ascertaining the amounts of such hires and profits. In the case of Mercer's Administrator vs. Beale et als., 4 Leigh, 189, decided January, 1833. In covenant by M. against CITATIONS TO THE CODE OF VIKGINIA. 797 B., judgment is recovered by M. in 1792 for two thousand five hundred pounds damages; ft. fa. is sued out by M. and re- turned nulla bona ; then both parties die; and afterwards the executor of B. makes sundry payments at sundry times to M.'s administrator. Held: All such payments shall be applied to the principal of the debt due on the judgment, and M. is only entitled to the balance of principal, with interest from the date of the judgment, and shall not be allowed to compute interest on the whole debt from date of the judgment, and apply the partial payments first to the satisfaction of interest so com- puted, and then to the principal. In the case of Eubank et als. vs. Rails' s Executor, 4 Leigh, 308, decided February, 1833. Judgment upon nil dicit in county court, entered on the minute-book "for specialty and costs," and then entered at large by the clerk in the order-book for debt, with interest from March 1, 1817, the date of the specialty, though the day of payment appointed in the condition was March 1, 1818, the clerk, in his entry in his order-book, follow- ing not the conditions of the bond but a memorandum thereon endorsed, that the debt, if not punctually paid, should bear in- terest from the date of the bond. Held : 1. It was error to give interest from the date of bond, instead of the day of payment. 2. This error was a clerical mistake, amendable by the court at a subsequent term. In the case of Roper et als. vs. Wren's Administrator, etc., 6 Leigh, 38, decided February, 1835, it was held: Interest should not be allowed on estimated rents and profits. See the case of D. & W. Kyle vs. Robertas Executor et als., 6 Leigh, 495, cited ante, Section 2840. In the case of Dunlar's Executors vs. Woodcock's Executor, 10 Leigh, 629 (2d edition, 660), decided March, 1840. A com- missioner's report shows a balance due from the defendant, consisting entirely of interest found due on an account never before settled, and states that that balance of interest is to bear interest from a remote day ; there is no exception to the report, and the court decrees the balance with interest accordingly. Held : The decree was erroneous in giving interest upon the in- terest from a remote day; interest ought to be allowed only from the date of the final decree. In the case of Wilson vs. Spencer, 11 Leigh, 260, decided August, 1840. In debt on a bond with collateral condition, the jury who try the issues find the same for the plaintiff, and assess his damages and allow interest thereon ; and their judg- ment is entered for the damages so assessed, with interest and costs, instead of being entered for the penalty of the bond and costs, to be discharged by the damages, interest and costs. 798 CITATIONS TO THE CODE OF VIRGINIA. Held: Though the judgment is not entered in proper form, yet the error in the form producing no injury to the defendants, the judgment will not be reversed therefor. In the case of Allen 's Executer vs. Carr et ux. et als., 1 Rob., 196 (2d edition, 208). From the time that the guardianship terminates, the account between the guardian and ward will be stated upon the ordinary principle that prevails between debtor and creditor. Sums paid after that time by the guardian to the ward will be credited at the respective dates of such payment, so as to stop interest pro tanto from those dates. In the case of Cross (Curatrix) vs. Cross s Legatees, 4 Grat , 257, decided January, 1848, it was held : An administratrix or other fiduciary whose duty it is to hire out slaves for the benefit of the cestni que trust, will be held to account for the interest on their estimated hires. In the case of Hosser (Executor of Wood) vs. Depriest et als., 5 Grat., 6, decided April, 1848, it was held: An executor takes bonds for purchases made at a sale by himself of testator's per- sonal property, and it does not appear when these bonds were paid off. He will be charged with the principal of the bonds in the year when they fell due, but with interest thereon only from the end of that year. See the references given to Sections 2606 and 2607. In the case of Lewis's Executor vs. Bacoris Legatee and Ex- ecutors, 3 H. & M., 89, decided October, 1808, it was held: A creditor kept an account- current with his debtor, and also an interest-account, on which he charged interest on the several items of debit to a particular period, and gave credit by inter- est on the several payments to the same period, and charged in the account-current the balance appearing in the interest ac- count. A balance being then struck, and a new account being opened, in which interest was charged on that balance, thus consisting of principal and interest, it was held to be compound interest, and not allowable. In the case of Childers vs. Dean e and Page, 4 Rand., 406, de- cided July, 1826, it was held: Compound interest will not be allowed, except under special circumstances. An agreement at the time of the loan, that at the end of the year interest shall become principal, or, after interest has become due, an agree- ment that it shall bear interest previous to such agreement will not be permitted, as tending to usury. But where a settlement of accounts takes place after interest has become due, and an agreement is then made that interest due shall hereafter carry interest ; or where the principal and interest are computed in a master's report, and the same is confirmed ; in these cases com- pound interest is lawful. In the case of PindaWs Executor, etc., vs. The Bank of Mari- CITATIONS TO THE CODE OF VIRGINIA. 799 etta, 10 Leigh, 481 (2d edition, 502), decided July, 1839. A debtor owing a debt consisting of principal and interest, it is agreed between him and his creditor that he shall, in the first place, pay off the principal, and that the interest may for a time remain unpaid. The creditor, having received money from the debtor, applies it in satisfaction of the principal. Afterwards many years elapse without payment of the interest. Held : The creditor is only entitled to the interest due at the time the prin- cipal was paid, and not to interest on that interest, there having been no agreement to pay interest on interest. In the case of Fultz vs. Davis, 26 Grat., 903, decided Decem- ber 2, 1875, it was held, page 911 : Where payments are made from time to time on a debt bearing interest, the interest is to be computed on the debt up to the time of payment, and the payment is to be deducted from the amount, principal and in- terest. It is error to compute interest on payments to a future day, when the debt is paid or settlement is made, and then to credit the payment and interest upon the debt, principal and interest. In the case of Gilbert vs. The Washington City, Virginia Mid- land, and Great Southern Railroad Company, 33 Grat., 586 and 599, decided October 7, 1880. One of the railroad companies, not having been able to pay the interest on their bonds, gave to the holders of the interest-coupons the coiipon bonds of the company for the amount of said interest. Held : The coupons for interest bore interest from the time they were payable. SECTION 3392. In the case of Borland vs. Barrett, 76 Va., 128. 8. Idem. Excessive Damages. In this case, as the record does not disclose a single mitigating circumstance in favor of the defendant, held : The damages are not excessive, but if they were, the verdict would not be disturbed unless it showed that the jury were actuated by passion, prejudice, or undue influence, or unless the amount be grossly excessive. 9. Jurors. Tampering, etc. It is highly reprehensible for the parties to converse with the jurors, and, however innocent, it is calculated to impair confidence in the impartiality of ver- dicts, and it should be frowned upon by the courts. But casual conversations between parties and jurors during recess of court have never been considered sufficient of themselves to set aside a verdict. 10. Jurors. Non-Payment of Capitation Tax. The point that one of the jurors had not paid his capitation tax was not raised until after the verdict, which is met by Poindexter's case, 33 Grat., 766. In the case of Ambler vs. Wyld, 2 Wash., 47 (1st edition, 37), 800 CITATIONS TO THE CODE OF VIRGINIA. decided at October term, 1794, it was held : If the parties in an action at law are at liberty by the issue to go fully into the ex- amination of evidence, and, having done so, a verdict is found, after a fair trial, a court of chancery ought not to direct a new trial ; otherwise if part of the evidence was suppressed by the court. In the case of McRae vs. Woods, 2 Wash., 103 (1st edition, 80), decided at October term, 1795, it was held : If the plaintiff at law recover more than he is in conscience entitled to, and there is no standard by which a court of equity can ascertain the amount of the excess unrighteously recovered, that court will set aside the verdict in toto. In the case of Picket vs. Morris, 2 "Wash., 325 (1st edition, 255), decided at October term, 1796, it was held: Whenever a case is fully and fairly tried in a court of law, the decision is so far binding that it can only be examined by an appellate court ; chancery cannot intervene. But if the court of law refuse to decide points of law, or to reserve them, it will submit such point to the jury, and if they decide inequitably chancery may interfere. In the case of Wilson vs. Rucker, 1 Call, 500 (2d edition, 435), decided May 4, 1799, it was held : The court of chancery may, on granting a new trial in the same court, order the verdict to be certified into the court of chancery, and proceed to make a final decree in the cause. In the case of Terrell vs. Dick, 1 Call, 546 (2d edition, 474), decided April 16, 1799, it was held : After a cause has been once fully decided by a court of common law, equity wall not grant relief. In the case of Foushee vs. Lea, 4 Call, 279, decided April, 1795, it was held : If the defendant's counsel means to move for a new trial because the finding of the jury is contrary to evi- dence, he is not bound to do it at the time the verdict is ren- dered, but may postpone it to another day of the term. If the chancellor refuses to dissolve the injunction, and the parties consent that the new trial shall be had in a particular county, the chancellor, on the motion of either party, may direct the trial to be at a different place without the assent of the other. In the case of Meredith vs. Johns, 1 H. & M., 585, decided November, 1807, it was held : After a verdict for the plaintiff in an action sounding in damages, and a refusal by the court of law to grant a new trial, a court of equity ought to cautiously inter- pose. In the case of Anderson vs. Fox, 2 H. & M., 245, decided April, 1808, it was held : An executor having sold certain slaves which were specifically bequeathed by his testatrix, having be- CITATIONS TO THE CODE OF VIRGINIA. 801 come the purchaser himself, and afterwards recovered damages in an action of trespass against the sheriff for seizing and selling them as the property of the specific legatee, in whose possession they were found, a court of equity will require an account of his administration, to ascertain whether the sale at which he was himself the purchaser was necessary for the payment of debts, and (even if the sale and purchase by himself be justified by the result of the investigation) will grant a new trial of the issue in the action of trespass (although no motion to that effect was made at law) in case the damages were excessive and produced by erroneous impressions on the mind of the jury; and where the damages are evidently excessive the testi- mony of the jurors will be received to declare the motives which induced them to give such damages. In the case of Price (Executor) vs. FuqucCs Administrator y 4 Munf., 68, decided February, 1813. An executor being sued on a bond of his testator of more than twenty years' standing, was advised by his counsel to rely on the presumption of pay- ment arising from the length of time, and, supposing such pre- sumption a sufficient defence, neglected to fortify it by other testimony which was in his power ; in consequence of evidence given by one of the jurors in the jury-room a verdict was found against him. He moved for a new trial on that ground, but was denied it. He afterwards obtained a new trial by applying to a court of equity on the ground of mistake and accident. In the case of Faulkner's Administrators vs. ffarwood, 6 Rand., 125, decided February, 1828, it was held : After a trial at law, a court of equity will not grant a new trial merely be- cause injustice has been done; but the party applying for anew trial must show that he has done everything that could be rea- sonably expected of him to obtain relief at law. A bill of discovery to obtain evidence which might have been useful in a trial at law must be filed pending the suit at law, un- less some sufficient excuse is shown why it was not filed at that time. In the case of Knifong vs. Hendricks etals., 2 Grat., 212, 'de- cided July, 1845, it was held : Upon an application to a court of equity to enjoin a judgment at law, and grant a new trial in the case, it is error in the court to perpetuate the injunction, set aside the judgment, and grant a new trial of the cause, which had been terminated, and to finally dispose of the suit in equity. In such a case the judgment at law is a security for anything the plaintiff at law may be entitled to, and a court of equity should continue the injunction and direct proper issues, and upon the coming in of the verdict should perpetuate the injunc- tion, or dissolve it in whole or in part, according to the finding of the jury. 51 802 CITATIONS TO THE CODE OF VIRGINIA. The justices composing a court before which a cause is tried, having left the bench after the verdict was rendered, so that a motion for a new trial could not be made to them, a court of equity has jurisdiction to award it. In the case of Griffiths vs. Thompson, 4 Grat., 147, decided October, 1847. An action is brought in 1835 and tried in 1839 upon an issue made upon the plea of non-assumpsit, and there is a judgment for plaintiff. Defendant then applies for an injunction to the judgment on the ground that he had offsets which he had intended to plead, but that owing to the sickness of his family at the time when the court sat, and for some time before, he was not able to attend the court or prepare for trial, and that his counsel to whom he had communicated his defence was also absent. It appeared that offsets were neither pleaded nor filed, and though one of the defendant's counsel was present, no application for a con- tinuance was made, nor was any affidavit filed upon which such an application could have been based. Held: There was no cause for an injunction and new trial. In the case of jftust et als. vs. Ware, 6 Grat., 50, decided April, 1849, it was held : Judgment at law is enjoined on the ground of mistake by the jury ascertained by after-discovered evidence. The subject of the action being accounts, the court of equity will not direct a new trial at law, but will refer the accounts to a commissioner, and will itself give the proper relief. In the case of Slack vs. Woods, 9 Grat., 40, decided July 19, 1852, it was held, pp. 42-'3 : The party applying for a new trial, to entitle himself to it, must show that he has been guilty of no laches, that he has done everything that could be reasonably required of him to render his defence effectual at law. The reference to 10 Grat., 2333, is an error. In the case of Green & Sutile vs. Massie, 21 Grat., 356, de- cided August, 1871, it was held: If at the hearing of a cause the case made upon the pleadings and proofs is one of which a court of equity has no jurisdiction, the bill should be dismissed, though the defendant has made no objection to the jurisdiction, either by demurrer, plea, or answer, but has defended himself on the merits. And in such a case an appellate court will re- verse a decree in favor of the plaintiff, and dismiss the bill, though no objection to the jurisdiction was taken in the court below. In the case of Adams vs. Ifubbard, 25 Grat., 129, decided June 17, 1874. An injunction to a judgment is obtained, and whilst it is pending the matter in dispute is referred to arbitra- tors, who, after reading the pleadings and depositions and hear- ing oral evidence, including that of the parties, make an award that the injunction be dissolved. On a motion to set aside the CITATIONS TO THE CODE OF VIRGINIA. 803 award on the ground of after-discovered evidence, held: The rules governing courts of equity in awarding new trials in ac- tions at law on the ground of after- discovered evidence apply equally to motions to set aside an award on that ground. Where all the evidence that was before the arbitrators is not before the court on the motion to set aside the award, the motion must fail. Though the evidence in the cause before the reference was made might have warranted the court to direct a new trial, yet the award is in fact a new trial, and the party is not entitled to another trial on that evidence. In the case of Wynne vs. Newman 's Administrator, etc., 75 Va., 811, decided November, 1881. A bill was brought to ob- tain a new trial of an issue in an action at law, in which there was a verdict and a judgment for the defendant. At the hear- ing the court annulled the judgment, set aside the verdict, and ordered a new trial in the action at law. A court of chancery under our system of jurisprudence is invested with no such power as this. It may act on the parties, but not directly on the judgment, nor on the court which rendered it. Such judg- ment by a court having jurisdiction to render it can be vacated only by some direct proceeding at law, either in the court in which the judgment was recovered or in some other court hav- ing appellate jurisdiction. There are cases in which the court has required the defendant in chancery to submit to a new trial, and restrained him from enforcing the judgment complained of. But the regular course, it seems, would be for the chancery court to order such issues as may be proper, and to base its decree on the finding of the jury at the hearing, either dissolving or perpetuating the in- junction in whole or in part, according to circumstances. In the present case, if a new trial was proper the court should have ordered an issue, the same as in an action at law, to be tried as other issues out of chancery are tried, the verdict of the jury, if the trial was in the law court, to be certified to the chancery court, and in the meantime continue the injunction until the hearing of the cause ; and if the finding was for the defendant, and approved, dissolve the injunction; if for the plaintiff, perpetuate the injunction and decree for the com- plainant according to the verdict. Courts of equity as well as courts of law sometimes grant new trials on the ground of after-discovered evidence, but always with great reluctance, and never except under special circum- stances, which may be summed up thus: 1. The evidence must have been discovered since the trial. 2. It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by -the exercise of reasonable diligence. 3. It must be material in its object, and 304 CITATIONS TO THE CODE or VIKGINIA. such, as ought on another trial to produce an opposite result on the merits. 4. It must not be merely cumulative, corroborative, or collateral. Evidence newly discovered is said to be cumulative in its re- lation to the evidence on the trial when it is of the same kind and character. If it is dissimilar in kind, it is not cumulative in a legal sense, though it tends to prove the same proposition ; and the discovery of evidence, though not strictly cumulative, is not sufficient if it does not bear directly on the issue, but is col- lateral only. The appellate court and this is equally applicable to a chan- cery court considering a bill for a new trial on the ground of after-discovered evidence will not on that ground interfere with the decision of the trying court, unless it has before it all the evidence heard in the latter court; and the observance of this rule is necessary to prevent the granting of new trials in consequence of the discovery of merely cumulative facts and circumstances relating to matters which may have been contro- verted on the former trial. In the case of Smith vs. jRawlings's Administrator et als., 83 Va., 674, decided September, 1887, it was held : Plaintiff claimed, as purchaser at a sale under execution, the property levied on by defendent ; the issue was tried on the first day of the term, in plaintiff's absence; written evidence of plaintiff's title was produced ; defendant testified to statements of plaintiff that he had released the property to the execution debtor ; ver- dict was for the defendant. During the term plaintiff filed his affidavit that he had started in time for the trial, and had failed to reach the court-house in time on account of delays in the trains and their failure to connect; that he never made said statements, and that never having released, he still owned, the property. He was entitled to a new trial. In the case of Bertha Zinc Company vs. Black? s Adminis- trator, 88 Va., 303, it was held : "While under this section the question of a new trial, where the damages are too small or too large, is under the control of the court, yet the verdict will not be disturbed unless it shows the jury were actuated by passion, prejudice, or undue influence. SECTION 3393. In the case of Atwell (Administrator) vs. lowles, 1 Munf., 175, decided April 19, 1810, it was held : In an action of debt on a bond the judgment is always entered for the penalty, to be discharged by the principal and interest. In the case of Tennant (Executor} vs. Gray, 5 Munf., 494, de- cided March 22, 1817, it was held: Where the principal and interest due on a bond amounts to more than the penalty, and CITATIONS TO THE CODE OF VIRGINIA. 805 damages are found by a verdict, judgment ought not to be en- tered for the penalty and costs, to be discharged by the principal and interest, with the damages so assessed and the costs, but for the penalty and damages if not exceeding those laid in the writ. In the case of Waller vs. Long, 6 Munf., 71, decided January 20, 1818, it was held : If a bond be given in the usual form with a penalty, conditioned to be discharged by payment of the principal at a future day, " with interest from the date if not punctually paid," such back interest is to be considered an ad- ditional penalty, and not recoverable. The clause in our act of Assembly which prescribes the sum for which judgment is to be rendered on a bond meant, that in cases of penalties by way of security the final justice of the case should be attained in the courts of law, in effectuating which object those courts are to be governed by the same considerations which influence the courts of equity. In the case of Moore vs. f'enwick, 1 Va. (Gilmer), 214, decided March 28, 1821, it was held : Judgment on a penal bond should be for the penalty, to be discharged by the payment of the sum actually due. In the case of Jenkins vs. Surfs Commissioners, 2 Band., 446, decided May 22, 1824, it was held: In a joint action upon con- tract, the plaintiff must have judgment against all the defendants before the court, or he can have judgment against none. If errors in the pleadings or proceedings are cured by the statute of jeofails as to one defendant, they are cured as to all defendants. In the case of Baker vs. Morris's Administrator, 10 Leigh, 285 (2d edition, 294), decided May, 1839, it was held: Full in- terest is given on the bond though it exceed the penalty. It seems, that, in an action of debt on a bond at law, the surplus interest beyond the penalty may be given in the form of damages. In the case of Fleming vs. Toler, 1 Grat., 310, decided April 21, 1851, it was held: The penulty and condition of a bond for the payment of money is in the same sum. It is proper to treat it as a single bill, and to give judgment for the amount of the bond, with interest from the time of payment. In the case of Taz&welVs Executors vs. Saunders's Executor, 13 Grat., 354, decided May 23, 1856, it was held: Courts of equity will decree interest upon a bond or judgment beyond the penalty against the principal debtor. A commissioner having by mistake omitted a credit in ascertaining the amount due upon a bond, the appellate court will correct the decree in this respect, and affirm it with costs. In the case of Collier vs. T/te Southern Express Campany, 32 806 CITATIONS TO THE CODE OF VIRGINIA. Grat., 718 and 725-'26. E. was employed by the Southern Ex- press Company as freight clerk at P., and whilst so employed executed a bond with sureties, by which, after reciting that, whereas E. is to be hereafter employed by the Southern Ex- press Company in its business of forwarding by different rail- roads, etc., packages of any and all kinds, and movable property, including money and securities for money, E., in consideration of said employment and the compensation he is to receive from said company for his services, covenants, etc., thai he will well and truly perform all the duties required of him in said employ- ment, and truly account for all money, etc., which may come to his possession or control by said employment, etc., and E. and his sureties bound themselves for the faithful performance of the above covenants by E. in the penalty of $2,000. After the execution of this bond E. was raised to the office of principal agent of the company at P., and whilst acting as such principal agent embezzled money which came to his hands. Held : There being no dispute about the facts it is for the court to construe the instrument, and the jury are bound to take the construction of the court as correct. The obligation, by its terms, extends to any employment of E. whilst acting as principal agent of the company at P. SECTION 3394. In the case of Bibb vs. Cauthorne, 1 Wash., 91, decided at the spring term, 1792. Upon a sheriff's bond for breach of the condition, it was held : Upon new breaches alleged and suing out a scire facias for future injuries a recovery may be had. In the case of Call vs. Buffin, 1 Call, 333 (2d edition, 289), decided May 5, 1798, it was held : In a suit for the penalty of a bond, the penalty not being exhausted, new breaches may be assigned, and on scire facias being sued out, farther damages assessed. The reference to 3 Munf., 249, is an error. In the case of McDowell vs. BurwelTs Administrator, 4 Hand./ 317, decided June, 1826, it was held : An action of debt will not lie against the surety of a sheriff on his official bond to recover the penalty imposed by law for failing to return an execution. Such penalty can only be recovered by motion, and an action of debt will only lie for the damage actually sustained by the sher- iff's failure to return the execution. An averment of the breach of the condition of a bond, although it may not entitle the plaintiff to all the demands, will entitle him to recover what he is legally entitled to in consequence of the breach. In the case of Governor (for Davis) vs. Roach', 9 Grat.. 13, decided July 12, 1852. In an action on a constable's official CITATIONS TO THE CODE OF VIRGINIA. 807 bond, the assignment of the breach did not set out specifically the claims put into the constable's hands, but stated that the relator had placed divers claims in his hands for collection, which were particularly set out in a receipt given by him as constable, and which was thereto annexed, marked A., and then proceeded to aver the collection of the moneys by the constable, and his failure and refusal to pay over to the relator. Held : On demurrer to the breach, that it was well assigned. In the case of Sangster et als. vs. Commonwealth, 17 Grat., 124 and 135-37, decided October 29, 1866, it was held: Other actions may be maintained on an official bond, though in pre- vious action judgment has been rendered for the penalty to be discharged by the sum assessed in that action, and of such further sums as might be afterwards assessed or found due, upon scire facias assigning a new breach. SECTION 3395. In the case of Steptoe vs. Read, 19 Grat., 1, decided October 27, 1868, it was held. At common law in a joint action against several parties there can be but one final judgment, and it must be for or against all the defendants; and the rule is the same, whether the contract sued on is joint, or joint and several, or whether the action is founded on several and distinct contracts, as the maker and endorsers of a negotiable note. This general rule does not apply where the plea of one of the defendants admits the contract and sets up a discharge by matter subsequent, as bankruptcy, or where he sets up a per- sonal disability at the time of the contract sued on, as infancy, and these exceptions apply equally, whether the contract is joint, or joint and several. The statute applies only to cases in which some of the de- fendants are discharged upon grounds merely personal, and where the ground of defence goes to the foundation of the entire contract the case remains as at common law. In the case of Mojfett vs. Bickle, 21 Grat., 280, decided Au- gust, 1871, it was held: In an action of debt by the holder of a negotiable note against the maker and four endorsers, upon the plea of usury by the endorsers, the jury found that the note was endorsed by the first three endorsers for the accommodation of the maker, and was sold by him at a usurious rate of interest to the fourth endorser, who afterwards, and before it became due, endorsed it to the holder for value. Upon this verdict the court should render a judgment in favor of the maker and the first three endorsers, and against the fourth endorser. In the case of Bnxh vs. Campbell, 26 Grat., 403, decided July 8, 1875. In an action of debt upon a bond against five persons, upon one of whom the process is not served, by direction of the 808 CITATIONS TO THE CODE OF VIKGINIA. plaintiff, the four plead usury in the bond, and three of them plead severally non est factum, but cannot agree on the plea of usury. There is a judgment in favor of the three, and the case is continued as to the fourth. Afterwards there is a verdict against the fourth, and he moves in arrest of judgment. Held : Under the statute there may be judgment in favor of the three at one time, and a judgment in favor of the plaintiff against the fourth defendant at another time. In the case of Muse et als. vs. The Farmers Bank of Virginia, 27 Grat., 252, decided January, 1876. B. brings an action of debt against F. & M. as late partners and as makers of a nego- tiable note, and against C. and G. as endorsers. The case stands on the office-judgment docket at the next term of the court, when F. files his plea of nil debet, which is sworn to ; and on the mo- tion of B. by his counsel, the cause is discontinued as to F. The other parties not appearing, there is a judgment by default against them. Held : The judgment is a valid judgment. SECTION 3396. In the case of Moss vs. Moss's Administrators, 4 H. & M., 293, decided October, 1809, it was held: In an action against several defendants, the capias being returned executed in part only, who appeared and defended the suit, and a discontinu- ance as to the rest having taken place by a failure to take out further process against them, a judgment against the defend- ants in general terms must be understood as against those only who appeared, notwithstanding the declaration charged them all as "in custody," etc., and the caption of the entry of the judgment in the order-book mentioned the names of all. Where there was an action on a joint or several bond against six obligors, and the capias, which was against all, was executed on two only, it was held : That the plaintiff was not bound to send out further process against the rest, but might take judg- ment against those two. In such a case it seems indifferent whether the declaration be against those two only, or against all those named in the writ, provided the bond be properly de- scribed. In the case of Shields vs. Oney, 5 Munf., 550, decided April 3, 1817, it was held : If, by direction of the plaintiff, the writ be served on one only of two partners in trade, when the declara- tion shows that the plaintiff knew the names of both, and he gets a verdict upon the plea of non-assumpsit pleaded by the partner upon whom the writ was served, judgment ought to be arrested. In the case of Jones vs. Doe (Lessee of Carter), 6 Munf., 105, decide'd February 5, 1818, it was held : Upon a scire facias against heirs and devisees, to revive a judgment in ejectment, CITATIONS TO THE CODE OF VIRGINIA. 809 if one of the defendants confess the plaintiffs right to revive the judgment in the scire facias mentioned, and thereupon jud- ment be entered against him that the plaintiff have execution for the whole tract of land in question, there is no error in such judgment of which he can take advantage. In the case of Jenkins vs. Hurts Commissioners, 2 Rand., 446, decided May 22, 1824, it was held : In a joint action upon con- tract the plaintiff must have judgment against all the defendants before the court, or he can have judgment against none. In the case of Peadey vs. Boatwright, 2 Leigh, 195, decided June, 1830. In joint action of debt against two, there is judg- ment by default against one; the other pleads to the action, and there is trial, and verdict against him. Held : There should be one and the same joint judgment against both. In the case of Early vs. Clarksoiis Administrator, 7 Leigh, 83, decided January, 1836, it was held : Upon a scire facias to revive a judgment against two persons jointly, and in all joint actions against two persons on a joint contract, it is error to enter final judgment against one until the plaintiff has ma- tured the case against the other also, so that a joint judgment may be entered against both, or has proceeded against the other as far as the law aiithorizes, or enables him to proceed. See the case of Bush vs. Campbell, 26 Grat., 403, cited ante, Section 3395. The reference to 27 Grat., 252 and 257, is to the case cited vupra, Section 3395. In the case of Beazley's Administrators vs. Sims (Adminis- trator), 81 Va., 644, decided April 15, 1886, it was held: In an action ex contractu against several defendants, the common law rule was that all should be summoned actually, or construc- tively, by prosecution to outlawry, before judgment could be had against any. Code changes this for another rule, whereby judgment may be had against one defendant served with pro- cess, and a discontinuance as to the others, or at the plain- tiff's election, subsequent service of process, judgment in the same suit against the other defendants. In the case of Corbin vs. Planters National Bank, 87 Va., 661, decided April 26, 1891, it was held: The discontinuance provided for by this section is a discontinuance as against any one or more defendants upon whom process has not been served. In the case of Dillard et als. vs. Turner s Administrator, 87 Va., 669, decided April 16, 1891, it was held : Action against seven. Summons returned executed as to four, and " no inhabi- tants" as to two, and as to the other, " I understand he is dead." At the rules the six plead in abatement for misj cinder of surviv- ing with dead obligor, and clerk abated action as to those re- turned "no inhabitants," and the "dead" one. The court, how- 810 CITATIONS TO THE CODE OF VIRGINIA. ever, rejected the plea and entered judgment against the four who had been summoned. Held : No error. CHAPTEE CLXVIL SECTION 3397. In the case of Hess vs. Racier et ux., 26 Grat., 746, decided October 12, 1875. "W. is appointed a commissioner to sell lands at public auction, but he is not to act under the decree until he gives bond, etc., faithfully to perform this and any future decrees made in the cause. He does not execute the bond, but he sells the land at private sale to H., which he reports to the court. The court confirms the sale, and directs him to collect the money and invest it ; and H. pays him the whole purchase-money ; only part of which he invests, and dies insolvent. Held : The sale having been made by a commissioner under a decree of the court, and that sale having been confirmed by the court, it is a judicial sale, whether made at public or private sale ; it only be- comes a sale at all when confirmed by the court, that constitutes such sale a judicial sale. W. not having given the bond as required, had no authority to receive the purchase-money, and H. is responsible to the party who is entitled to the proceeds, for so much as has not been properly invested by W., and cannot be made out of W.'s estate. The statute is imperative that a bond shall be given, and it is the duty of a purchaser at a judicial sale to see that the bond has been given before he pays his money to the commissioner, or he does it at his own risk. In the case of Lloyd vs. Erwiris Administrator, 29 Grat., 598, decided November, 1877, it was held: A purchaser at a judicial sale of land pays the purchase-money to the com- missioner ; but the commissioner has not executed the bond required by the decree, or the bond executed by him is dis- approved by the clerk. The purchaser has paid in his own wrong, and the land is liable for the purchase-money received by the commissioner and misapplied, though the land has been conveyed by the commissioner to the purchaser, as the decree directed to be done when the purchase-money was paid. In such a case the parties entitled to the fund are not bound to proceed against the commissioner and his sureties in the bond he executed, but which the clerk disapproved, before proceeding against the land to have it subjected to the payment of the pur- chase-money misapplied by the commissioner. In the case of Tyler vs. Toms et als., 75 Va., 116, decided December 17, 1880. Where two commissioners are appointed to sell land, and they are required before proceeding to act to- CITATIONS TO THE CODE OF VIRGINIA. 811 execute a bond with security conditioned according to law, each executes a separate bond with the other as his surety. Held : This is not a compliance with the decree, and that though the bonds were given in court. The sale on the land is to be on the credit, and the bonds to be taken for the several deferred payments, and the title to be retained. The sale is made, the bonds taken, and the sale reported to the court ; but there does not appear to have been a decree confirming the sale. As the bonds fall due the purchaser pays the money to one of the com- missioners, and he deposits it as collected in a bank to his credit as commissioner, not using it or mingling it with his own, but it is lost by the failure of the bank. Held : 1. The purchaser is bound to pay the purchase-money of the land again. 2. The commissioner having received the money without au- thority to receive it, is liable to the purchaser for the amount so paid. 3. The commissioner may be proceeded against by rule in the cause, and an execution of fieri facias may be sued out against him for the money. In the case of Hurt vs. Jones and Wife, 75 Va., 341, decided March 10, 1881. A purchaser of land under a decree of a court of equity, after the sale is confirmed, is the equitable owner of the land, subject to be compelled to comply with his contract by payment of the purchase-money. When such a purchaser fails to comply with his contract, and a court directs a resale of the land, it is resold as the land of the purchaser and at his risk. If, on such resale, it does not bring enough to discharge the unpaid purchase-money of the former sale, and the cost and expenses of the resale, he is liable for the deficiency. If it brings more than enough for these purposes he is entitled to the surplus. Under a decree in a suit for partition, M. bought the land for seven thousand dollars, and the sale was confirmed. He paid no part of the purchase-money, but went into bankruptcy, giving in the land as part of the assets and the debt of seven thousand dollars as one of his liabilities. Subsequently M. and his assignee in bankiuptcy, with the sanction of the bankrupt court, conveyed their interest in the land to H., on the consid- eration that H. should pay to the parties entitled the said seven thousand dollars, and this H. does. Held: H. has a valid equitable title to the land. Upon the failure of M. to pay the purchase-money, there was a decree appointing H. a commissioner to resell the land, and whilst such commissioner he made the arrangement with M. and his assignee in the bankruptcy, and he paid all the other par- ceners their shares of the seven thousand dollars, retaining the 812 CITATIONS TO THE CODE OF VIKGINIA. one-sixth to which his wife was entitled, and they conveyed all their rights and interests in the land to H. ; and this was re- ported to the court, was approved and confirmed, and H. was authorized to retain his wife's share of the money. The wife of H. afterwards died, never having given birth to a child, and L., her sister, was her heir. Held : 1. That the fact that H. was a commissioner to sell the land did not avoid his purchase from M. ; and the parties having all that they were entitled to claim, cannot object to it. 2. The court in the partition suit having confirmed what was done, that cannot be called in question in another suit. 3. The one-sixth interest of the wife of H. passed by the sale in the suit for partition ; and her interest, therefore, was her share of the purchase-money retained by H. under the decree of the court. 4. The bill by L. being purely for partition of the land, not noticing the suit in which the land had been sold, and the court holding that L. has no title to the land, she is not entitled under the prayer to have general relief to have a decree against H. for the money, even if L. is entitled to it ; nor is it a case in which the plaintiff will be permitted to file an amended and supple- mental bill to recover the money ; but this bill will be dismissed without prejudice. The reference to 75 Va., 815-833-'34, is an error. In the case of Lee vs. Swepson, 76 Va., 173 and 178 : 1. Commissioner of Sales. The bond with security required of him is for the benefit of those entitled to the proceeds. If he collects without giving bond, and they ratify his act and look to him for payment, no one else can complain or claim that any equity is raised in his favor. 2. Idem. Subrogation. If purchaser should have to pay a second time, he would be substituted to the creditor's rights under a decree requiring the commissioner to pay them. Idem. Lien of Decree. Case at Bar. Commissioner made sale under decree, and received one-third of purchase-money without giving bond as required ; sale reported and confirmed, and decree entered directing him, out of funds reported in his hands, to pay certain creditors therein mentioned, which he failed to do. The decree was docketed, and five days later he conveyed in trust his own real estate to secure his creditor, L. On bill by creditors in the decree mentioned to enforce it against that real estate, he having become insolvent, held : 1. The decree against commissioner had effect of a judgment, and being docketed, L. was Affected with notice of same, though purchaser paid commissioner in his own wrong. 2. L. has no claim to be subrogated to the rights of the cred- itors against the purchaser, having no equity superior to that of the latter. CITATIONS TO THE CODE OF VIRGINIA. 813 In the case of McAllister vs. Bodkin et als., 76 Ya., 809 and 815. The statute requires a bond of commissioners of sale, and it must be given before they receive any money under the decree, whether it be therein directed or not. In the case of Stimpson vs. Bishop, 82 Va., 190, decided July 1, 1886, it was held : In judicial sales of property embraced in deeds of trust and other instruments, where the terms of sale are agreed on, the contract governs, and the court hath no dis- cretion as to terms. This is the case cited from 10 Va. Law Journal, 593. In the case of Whitehead vs. Bradley et als., 87 Va., 676, de- cided April 23, 1891, it was held: Where purchaser at sale made under decree of court pays the purchase-money to sale-commis- sioner, who has not given the bond required by law, such pay- ment is invalid, unless certificate of clerk that such bond has been given was published with advertisement of sale. In the case of Roberts vs. Roberts, 13 Grat., 639, decided Feb- ruary 3, 1857, it was held : A sale of a tract of land made by a commissioner under a decree of the chancery court on day so inclement that persons intending to be present and to bid for a part of the land are deterred from attending, and where there was but one bidder present, who lived at the place, will be set aside without weighing the evidence, which is conflicting, as to the sufficiency of the price at which it was sold. According to the practice in Virginia, upon objection to a sale of land made by a commissioner it is not necessary to ask that the biddings may be opened by the offer of a substantial advance upon the price reported ; but the court will consider the objec- tions to the sale, and confirm or set it aside as the merits of the case may require. In the case of Effinger vs. Ralston et als., 21 Grat., 430, de- cided August, 1871, E.. sold land to E. and retained the vendor's lien. E. sold parts of the land to F. and Q. E. not paying R., R. filed a bill against E., F., and Q., to enforce the lien. The court decrees a sale of that in possession of E. first, and, if that is not sufficient, then of that bought by F. and Q. The sale is made and F. and Q. buy the parts they had before bought of E. at less than they were to give E. The commis- sioner reports the sales good. E. objects to the confirmation of the sale, on the ground of the inadequacy of price, but he does not move to open the biddings, or offer an advance. Held: There was no error as to R. in directing the sale of the parts by F. and Q. instead of confirming the sale of E. to them, especi- ally as Q. alleged that E. had defrauded him, and he did not intend to pay him. If E. objected to the sale for inadequacy of price he should have moved the court to open the biddings and have offered an advance on the price bid ; this objection to 814 CITATIONS TO THE CODE OF VIRGINIA. the confirmation of the sale without more was no ground for re- fusing to confirm it. In the case of IJudgins vs. Lanier, J3ro. & Co., 23 Grat., 494, decided June, 1873. Judgments are recovered against H. and docketed. He afterwards makes a deed, in which his wife joins, conveying certain real estate to T., in trust to sell upon demand of a majority of his creditors and pay his debts ratably; but if any have obtained liens, they to be first paid. He, at the same time, conveys to T. other real estate, in trust for the separate use of his wife, stated upon the express consideration of exe- cuting the deed. The judgment does not name any creditor or enumerate the debts. L., one of the judgment creditors, files a bill to enforce the payment of his debt. He says he does not mean to give up any right he has, but is willing to proceed first against the land conveyed in the deed. He makes H., T., and the judgment- creditors defendants, and the bill is taken for con- fessed as to all the defendants. A commissioner states the debts of the judgment-creditors, and there is no exception to the report, and there is a decree appointing commissioners to sell the land conveyed in the deed at auction, but with the con- sent of H. there may be a private sale. H. negotiates with B. for a sale of a part of the property at $4,500 which he proposes to the commissioners, and they are disposed to accept the offer, but before it is closed M. offers $5,000, and then H. protests against the sale to M., and insists that it shall be sold at auction, but Ei. declining to give more, the commissioners accept the offer of M., and H. excepts to the reports. H. then files his answer, insisting that T. shall elect whether he will proceed under his judgment-lien or under the deed, and insists that under the deed only a majority of the creditors could direct a sale. And he files a petition saying that R. had offered $5,100 for the property, and proposing to give bond and security, that if accepted the offer will be complied with in five days after the rising of the court. Held : The deed not naming the creditors, the only mode of proceeding open to them was by bill in equity, where the necessary parties might be convened, their rights and liabilities ascertained and adjusted, and the trust enforced under the supervision of the court. There having been no objection for want of proper parties, the want of such parties is no objec- tion to the proceeding. If there were other creditors besides those named in the bill they could have asserted their claims before the commissioner. The creditors before the court made no objection to a sale under the deed, and as the bill was taken for confessed as to them, it is to be presumed that they desired the sale. If they did not constitute a majority of the creditors, it was for H. to show it. He alone knew their names or numbers. CITATIONS TO THE CODE OF VIRGINIA. 815 H. having consented to a private sale by the commissioners to B. at a certain price, and the commissioners having sold to M. at a higher price, he could not withdraw his consent to a private sale so as to set aside a sale as made, as not made in pursuance of the decree. It is no just cause for vacating a judicial sale, that only a few bidders were present. The only inquiry for the court is whether the terms for the decree have been pursued, and the property sold at an adequate price. The advance of one hundred dollars upon the price paid for the property is no such substantial and material advance upon the price obtained by the commissioners as would justify the court in annulling the sale and in ordering a new sale. In the case of Brock vs. Rice et als., 27 Grat., 812, decided September, 1876, it was held : Whether the court will confirm a sale made by commissioners under its decree must, in a great measure, depend upon the circumstances in each case. It is difficult to lay down any rule applicable to all cases, nor is it possible to specify all the grounds which will justify the court in withholding its approval. In a case where there is reason to believe that fraud or mistake has been committed, to the detriment of the owner or the purchaser, or that the officer conducting the sale has been guilty of any wrong or breach of duty, to the injury of the parties interested, the court will with- hold a confirmation of the sale. In such a case either party may object to the report of the commissioner; and the pur- chaser himself, who becomes a party to the sale, may appear before the court and have any error corrected. The court, in acting upon a report of sale, does not exercise an arbitrary, but a sound legal, discretion, in the interests of fairness and prudence, and with a just regard to the rights of all concerned. An auctioneer or crier making a sale cannot properly act for himself or for any other person in bidding for the property. In the case of Curtis vs. Thompson, 29 Grat., 474, decided November, 1877. A tract of land was fairly sold by commis- sioners, pursuant to a decree of court, to a purchaser for $27.50 per acre, subject to a contingent right of dower. The tract was assessed in 1870 at thirty dollars, and thirty dollars per acre was the value fixed upon the land by a commissioner of the court, whose report in the cause had been confirmed without exception, in which valuation no allowance was made for the contingent right of dower. The owner of the land objected to a confirmation of the sale, on the ground of inadequacy of price, and affidavits touching the value of the land were filed by both parties. The court below set aside the sale and ordered a re- sale, whereat the same party became the purchaser at the same 816 CITATIONS TO THE CODE OP VIRGINIA. price. In the meanwhile the assessment of the land had been reduced to twenty dollars per acre. The owner of the land again objected to a confirmation of the sale, on the same grounds as before, and the court again refused to confirm the sale, and again ordered a resale. Held : The first sale should have been confirmed, and the decree setting it aside and all the subse- quent proceedings were erroneous. In the case of Roudabush vs. Miller et als., 32 Grat., 454, de- cided November, 1879, it was held : The English practice of, as a matter of course, reopening the biddings of a sale made by the master under a decree of the court, upon the offer of a rea- sonable advance bid, has not been adopted in Virginia. Whe- ther the court will reopen the bids after such a sale is a ques- tion addressed to the sound discretion of the court, subject to the review of the appellate tribunal, and the propriety of its ex- ercise depends upon the circumstances of each case, and it can be exercised only when it can be done with a due regard for the rights and interests of all concerned, the purchaser as well as all others. When a sale has been fairly made, and for a fair price, it should never be set aside when there is a good reason to believe that the upset price has been offered to gratify ill- will towards the purchaser. In the case of Merchants Bank of Baltimore et als. vs. Camp- bell et als., 75 Va., 455, decided April 21, 1881. In a creditor's suit there is a sale of a tract of land, and the sale is confirmed by the court ; but before the purchase-money is paid creditors apply by petition to set aside the order confirming the sale, on the ground of the fraudulent concealment by the purchasers of a cave under it, which gives great value to the tract. Held : 1. In a judicial sale, if it should be made to appear, either before or after the sale has been ratified, that there has been an injurious mistake, misrepresentation, or fraud, the biddings will be reopened and the reported sale rejected, or the order of ratification will be rescinded, and the property again sent into the market and resold. 2. On the evidence in this case, the purchasers, having dis- covered the cave, used means to conceal it, and made false re- presentations in relation to it ; and upon this ground the order confirming the sale should be set aside. In the case of Berlin vs. Melhorn, 75 Va., 639, decided Sep- tember, 1881, it was held, p. 642 : After a judicial sale has been confirmed by the court which ordered it, it will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give relief if the sale had been made by the par- ties in interest instead of by the court. Where the objection is to the confirmation, the rule is more liberal as to the principles applicable to such a case. CITATIONS TO THE CODE OF VIRGINIA. 817 In the case of Ilansucker vs. Walker, 76 Va., 753. The court is of opinion that the sale of the land in the bill and proceed- ings mentioned ought to be set aside and a resale ordered. The commissioners, in their report of the sale, say that the sale is believed to be much below its value. The commissioner in chancery, to whom the matter of taking the accounts was re- ferred, reports the land as worth $4.50 more per acre than the price for which it was sold, making a difference of more than eight hundred dollars. In an affidavit given by three of the ad- joining land-holders it is stated that the land is worth $32.50 per acre, which is twelve dollars per acre in excess of the price it commanded at the commissioners' sale. It seems, also, that an upset bid of ten per cent, was made by a responsible party with good and sufficient security. Against these facts there is not a scintilla of opposing testimony. It does not appear that the purchaser at the sale insisted on its confirmation. So far as the record discloses, he was not represented by counsel in the court below, nor is he here insisting on the affirmance of the decree. In the case of Langyher (Trustee) vs. Patterson & Bash^ 77 Va., 470, decided May 3, 1883. Where such sale has been con- firmed by the court, it cannot be set aside except upon petition or motion, after proper notice to parties interested and for good cause shown. Commissioner empowered to sell mill property for one-fourth cash and the balance in one, two, and three years, reported sale of same to L. at $1,000, receiving in cash $56.50, and the pur- chaser's notes for balance, payable in three equal annual instal- ments, and that he found it impossible to sell at any advantage on terms of decree. No exception. On hearing, sale confirmed. During same term, two years later, upset bid of 10 per cent, offered. No money or security tendered, no affidavit or sugges- tion that the price was inadequate. Without notice to pur- chaser who had left court, decree was entered rescinding confir- mation, ordering the property to be set up on the terms ordered, and started at $1,100. On appeal, held: The decree of recis- sion of confirmation of the sale was erroneous. Subsequent confirmation is equivalent to previous authority, cures departures from the terms prescribed, and supplies all de- fects in the execution of the decree, except those founded in lack of jurisdiction. It makes the sale the court's own act and renders it no longer executory, but executed. Public policy re- quires that purchasers at such sales should be entitled to cer- tainty and security of their rights under their purchases, and they should not be refused confirmation simply because they may have got a good bargain. In the case of Ejfiiiger vs. Kenney (Trustee), 79 Va., 551, de- 52 818 CITATIONS TO THE CODE OF VIRGINIA. cided November 20, 1884, it was held : It is a settled rule that in suits to sell real estate to satisfy liens by judgments or deeds of trust it is premature and erroneous to decree sale before ac- count is taken of liens and their priorities. In the case of Terry vs. Coles (Executor) et als., 80 Va., 695, decided September 24, 1885, it was held : Sale made by an order of a court of competent jurisdiction pendente lite is a judi- cial sale. An executioner having authority under the will to sell land declines to exercise his authority, but applies to the court for instructions and directions, and is ordered to make sale and report it to the court for confirmation, whereupon he makes and reports the sale to the court as ordered, such sale is a judi- cial sale. Bidder acquires no rights until his bid is accepted and the sale confirmed by the court. "Whether the sale will be con- firmed depends on the circumstances of each case and the sound discretion of the court in view of fairness, prudence, and the' rights of all concerned. No general rules will apply to all the cases. Where sale of land is decreed to pay specific legacies, and the residue to four residuary legatees, and the land is bid in by one of those legatees, and the other legatees opposed the acceptance of the bid and the confirmation of the sale, and show by nu- merous witnesses well acquainted with the land that though the sale was open and fair, yet the price bid was grossly inadequate, and that the land, if divided and sold in parcels, would, on the usual terms of payments in such cases, bring two or three times the price bid, there was no error in the court rejecting the bid, and refusing to confirm the sale and directing a resale. In the case of Yost vs. fbrter et als., 80 Va., 855, decided October 8, 1885, it was held : Sale for purchase-money will not be decreed where the property remains encumbered for pur- chase-money due from plaintiff, without providing for discharge of such encumbrance. Terms of the sale are within court's discre- tion, and no complaint against them will be heard without evi- dence that the price would have been better had the terms been more liberal. Where after-sale fairly made for adequate price has been confirmed, an upset bid is offered, and the sale is set aside upon condition that the said bid be made after a certain time, when the resale should take place upon terms which would not extend the deferred payments beyond the time at which the bonds taken at the previous sale were to become due, and no complaints of said terms were made below, and no proof offered that upset- bidder could have complied with his bid had the terms been more liberal, there is no ground on this account for complaint in the appellate court. CITATIONS TO THE CODE OF VIRGINIA. 819 In the case of Clarkson vs. Reade, 15 Grat., 288, decided July, 1859, it was held : A judicial sale of land is partly on a credit, and the purchaser pays the cash payment and executes his bonds with security for the deferred payments, and the sale is con- firmed by the court. When the bonds become due, the pur- chaser fails to pay them. He may be proceeded against by a rule made upon him to show cause why the land shall not be sold for the payment of the purchase-money, and upon that proceeding a decree may be made for a sale of the land. In the case of Long et als. vs. Wetter 1 s Executors et als., 29 Grat., 347, decided November, 1877, it was held: An objection to the title of land by a purchaser at a judicial sale must be made before the sale is confirmed by the court. Ordinarily an objection after confirmation comes too late. The title to an easement on the land to which it is appurtenant, is necessarily connected with the title to the land, and an objection referring to such easement must be governed by the same rules. An objection by such a purchaser after the sale has been confirmed, that owing to his misinformation as to the bounda- ries of the land he does not get certain water privileges which he would have had if he had been rightly informed as to the said boundaries, can only be sustained on the grounds of fraud or mistake, and if mistake is relied on, it must be the mistake of both parties. An objection of the kind should be made to the court as soon as it is discovered by the purchaser. Where a judicial sale of land is made upon a credit, and the title retained as security, upon a rule against the purchaser to show cause why the land should be resold for his failure to pay the purchase-money before making a decree for the sale, the court should ascertain how much of the purchase-money is due, and should in the decree give him a day in which to pay it, and if not paid in that time, the commissioner is to sell. Whether the whole or any part of the land should be sold, or whether as a whole, or in parcels, must be referred to the dis- cretion of the court, and his act will not be disturbed unless plainly erroneous In the case of Thornton vs. Fairfax et als., 29 Grat., 669 and 677-'78, decided January, 1878. In a suit for the sale of land to satisfy liens upon it, there was an order for an account of the liens and their priorities, and in 1860 the account was returned arranging the debts in twenty-four classes, of which the second, thi r'l, and thirteenth were debts reported to be due to S. In 1866 the report was confirmed and there was a decree for the sale of the land, one-tenth cash and the balance at one and two years. The sale was made to J. and confirmed, and J. directed to pay the money to the receiver. In 1870 T. filed his petition 820 CITATIONS TO THE CODE or VIRGINIA. in the cause, claiming that the debts mentioned in the said second, third, and thirteenth classes were his, acquired in 1864, and asking that the receiver might be required to show how much of the purchase-money he had received and what he had done with it, and if it had not been paid, for a resale of the land. The case was referred to the commissioner, and J. ap- peared before him, claiming that said debts were his, and con- testing the claim of T. S. did not claim them. Held: That it was competent for T., though not a party to the suit, but who had acquired subsequently the liens of one who was a party, by petition or motion to require a report from the receiver show- ing the amount of the purchase-money in his hands, and to have it applied to the satisfaction of the liens according to their priorities, and to direct a resale of the land for the balance of the purchase-money due, pursuant to the decree of sale. It was necessary that he should have proceeded by bill for that purpose, or to have made the purchaser a party defendant to his petition, or to have required him to answer. If S. had disputed the claim of T. then it would have been proper for T. to have asserted his claim by supplemental bill or by an original bill in the nature of a supplemental bill. Before there could be a decree for a resale of the property it was proper and necessary that the purchaser should have notice of the proceeding. The approved practice has been to proceed by the service of a rule upon the purchaser, to show cause why the lands should not be resold. Though no rule was served on the purchaser in this case, he had notice of the proceeding and came forward to show cause in his own chosen way. There was no need therefore for a rule. The purchaser might have moved the court for leave to answer the petition of T. or he might have filed a supplemental bill or an original bill in the nature of a supplemental bill, and put the matters in issue on which he relied. For reference to 75 Va., 639 and 642, see supra, this Section. In the case of Boyce vs. Strother et als., 76 Va., 862 and 864. Where the purchaser is in default in paying the purchase-money and a rule is awarded requiring him to show cause why there should not be a resale of the land, the objection that the rule is returnable to the same term at which it is issued is without force, provided sufficient time is given to answer the rule. In the case of Ogden vs. Davidson et als., 81 Va., 757, decided December 10, 1885, it was held: Decree is merely null as to persons not named as parties in the bill, and against whom no allegations are made and no relief is prayed. In the case of Thurman et als. vs. Morgan (Receiver], 79 Va., 367, decided August 14, 1884, it was held : Creditor instead of CITATIONS TO THE CODE OF VIRGINIA. 821 proceeding at common law to recover his claim obtains an order for its payment on a summary rule to show cause. This is a departure from the established modes of procedure, and the order so obtained has not the force of a judgment, but is void on its face. In the case of Anthony vs. Kasey, 83 Va., 338, decided May 19, 1887, it was held: When purchaser at a judicial sale fails to pay his bonds, and upon rule against him and his surety a personal decree is rendered against the surety, such decree is extra judicial and void. SECTION 3398. In the case of Eggleton vs. Dinsmore & Kyle, 84 Va., 858, decided May 3, 1888. A commissioner sold land under a decree and received the price without giving a bond or accounting for it. Purchaser had to pay it over, and the land was resold for that purpose. Commissioner gave a trust deed to indemnify the purchaser. In creditor's sale trust subject was sold. Held: Purchaser was entitled only to the amount he paid, with interest and costs of the resale. In the case of Newberry vs. Sheffey (Commissioner), 89 Va., 286, decided July 6, 1892, it was held : Under Code, Section 3396, judgment on a forthcoming bond may be had against the sureties, though the principal has never been served with notice of the motion. SECTION 3403. In the case of Moran vs. Johnston, 26 Grat., 108, decided April 1, 1875, it was held: After a decree for the sale of real estate to satisfy creditors having liens thereon, and an appeal from that decree by the debtor, the court below in which the suit was pending may appoint a receiver to take possession of the property and rent it out, and collect the rents until the further order of the court, etc. If the sergeant of the city in which the property is located, is appointed the receiver, it is not necessary to require him to give bond for the faithful performance of his duty, as it is covered by his official bond. SECTION 3405. In the case of Beverly vs. Brooke et als., 4 Grat., 187, decided October, 1847, it was held : The suit in which the receiver was appointed, embracing other matters beside the trust-fund which is in dispute, all these matters are adjudicated and settled, and the disputed subject is silently dropped in that suit, and the ouise sleeps, or is finally decided ; but the controversy as to the disputed subject goes on in the other suit, and the receiver, not having been formally discharged, continues to hold the disputed subject. The plaintiff in the second suit, though he was not a 822 CITATIONS TO THE CODE or VIRGINIA. party to the first, having succeeded in the controversy, is enti- tled to an account and to a decree against the receiver in his own suit. In the case of Thornton vs. The Washington Savings Bank, 76 Va., 432. 1. Chancery Practice. Receiver. An order appointing a re- ceiver is in the nature of an injunction or writ of sequestration, preventing any alienation of, or interference with, the property without the consent of the court. Any meddling with the con- trol or possession of the receiver, whether forcibly or by legal proceedings, without the permission of the court, is contempt of court, and is punishable. In the case of Melendy & Russell vs. Barbour (Receiver), 78 Va., 544, decided February 7, 1884, it was held: One aggrieved by the decree of the court which appointed the receiver for or against whom the decree is rendered, may appeal, in a proper case, to this court, even if the receiver cannot question the de- cree of the court appointing him. The established rule is, that when a railroad company is in the hands of a receiver appointed by a court of equity, the re- ceiver cannot be sued at law without the permission of the ap- pointing court. Such receiver may be held responsible for the damage actually sustained by a shipper of freight through the negligence of the receiver's agents and employees in any case in which the company could be so held. In the case of Barton vs. Barbour, 104 U. S. S. C. Eeports, 126, decided October, 1881, it was held : The rule that a receiver cannot be sued without leave of the court of equity which ap- pointed him applies to suits against him on a money demand, or for damages, as well as to those the object of which is to re- cover property which he holds by order of that court. The fact that by such order he is in possession of a railroad, and is en- gaged in the business of a common carrier thereon, does not so take his case out of the rule as that an action will lie against him for an injury caused by his negligence, or that of his serv- ants, in conducting that business. If the adjudgment of a de- mand against him involves disputed facts, that court may, in a proper case, either of its own motion, or on the prayer of the parties injured, allow him to be sued in a court of law, or may direct the trial of a feigned issue to settle the facts. The determination by a court of equity, according to its own, course and practice, of issues of fact growing out of the admin- istration of trust property in its possession, does not impair the constitutional right of trial by jury. In view of the public and private interests involved, a court of equity, having in its possession for administration as trust assets a railroad or other property, may authorize the receiver CITATIONS TO THE CODE OF VIRGINIA. 823 to keep it in repair, and to manage and use it in the ordinary way, until it can be sold to the best advantage of all interested therein. Without leave of that court, a court of another State has, under such circumstances, no jurisdiction to entertain suits against him for causes of action arising in the State wherein he was appointed and wherein the property is situated, which are based on his negligence, or that of his servants, in the perform- ance of their duty in respect to the property. SECTION 3409. The case of Walton vs. Williams, here quoted as "not yet reported," has never been reported. In the case of Carr's Administrators vs. Morris, 85 Va., 21, decided May 10, 1888. A receiver is ordered by the court to lend a trust fund at six per cent, per annum interest on bond secured by trust deed on real estate, payable to himself, with in- terest recoverable by suit upon default, and entire debt to be payable upon two successive defaults of interest, and to make re- port of his actions. He lends this money at eight per cent, per annum on notes payable to another, secured by trust deed on real estate, and neglects to enforce the debt upon default and to report. The trust-money is lost. Held : The receiver is charge- able with the loss, though no bad faith is shown. SECTION 3418. In the case of Farley vs. Shippen, Wythe Chancery Reports, 254, the points here referred to are not considered. In the case of Guerrant vs. Foivler, 1 H. & M., 5, decided September 22, 1806, it was held: A person being within the Commonwealth may be decreed to execute a conveyance for lands lying in another State, or to cancel a deed for such lands obtained by fraud. In the case of Cocke's Administrator vs. Gilpin, 1 Rob., 20 and 45 (2d edition, 22). In a suit by one partner against his co-partner for a settlement of the partnership accounts, and for a moiety of a tract of land purchased by the defendant in his own name, and paid for out of the partnership funds, a decree having been made declaring the land partnership property, and directing a settlement of the accounts, and the cause afterwards coming on to be further heard upon the report of the commis- sioner, the court decrees that the plaintiff pay to the defendant a sum of money appearing due by the report, and that the defendant thereupon convey to the plaintiff a moiety of the land ; but if the plaintiff shall not, within six months from the date of decree, pay the said money, that the marshal sell the moiety of the land, and out of the proceeds of sale, after defray- ing the expenses, pay to the defendant the money so decreed, 824 CITATIONS TO THE CODE OF VIRGINIA. and the residue, if any, to the plaintiff. And the court further decrees that the outstanding debts due to the firm be equally divided between the parties, and that the costs of the suit be equally borne by them. Held : This decree is interlocutory, and it may be reviewed upon an appeal, although there has been such lapse of time between the rendition of the decree and the appeal as would preclude its being reviewed if the de- cree were final. The references to 3 Grat., 148 and 167, and to 8 Grat, 351 and 411, are errors. In the case of Barger vs. Buckland et als., 28 Grat., 850, de- cided July, 1877, it was held: Pending a suit by judgment-cred- itors against their debtors and others to set aside a deed of trust or subject the surplus to payment of their debts, the debtor is declared a bankrupt on his own petition, and in the suit he claims his exemption and homestead out of the surplus of the purchase-money of the land, after satisfying the debt secured by the deed of trust; the circuit court dismisses the debtor's application and makes a decree distributing the fund. The bankrupt has such an interest in the case as entitles him to take an appeal. In such a case the trustee in a deed did not sign it, and it does not appear that he accepted or acted under it, and he lives out of the State and is not a party to the suit. The court may de- cree a sale of the land and appoint a commissioner to make the sale. A part of the tract of laud lies in Virginia and a part in West Virginia. The court may decree a sale of the whole tract. See the case of Hurt vs. Jones and Wife, 75 Va., 341 and 394, cited, ante, Section 3397. In the case of Mutter vs. Dows, 94 U. S. S. C. Reports, 444, decided October, '1876, it was held: A decree foreclosing a mortgage executed by the Chicago and Southwestern Railroad Company of its entire railroad and franchises, and ordering a sale of them, passed by the Circuit Court of the United States for the District of Iowa, which in a suit there pending had jur- isdiction of the mortgagor and the trustees in the mortgage, is not invalid because a part of the property ordered to be sold is in the State of Missouri. In the case of Poindexter vs. Burwell, 82 Va., 507, decided October 8, 1886, it was held : A court of one State cannot de- cree so as directly to affect land in another State; e. g., to sell land. But it can act upon the person, if he be within its juris- diction, and compel him to convey the land, or otherwise com- ply with its decree. This is the case cited from 10 Va. Law Journal, 738. In the case of Gibson vs. Burgess, 82 Va., 650, decided De- cember 9, 1886, it was held : It is well settled that the courts of CITATIONS TO THE CODE OP VIKGINIA. 825 this State are without jurisdiction to sell and convey land situ- ated beyond the limits of this State. This is the case cited from 11 Va. Law Journal, 297. SECTION 3420. In the case of Dunscomb vs. Dunscomb, 2 H. & M., 11, de- cided September 21, 1807. A sole trustee appointed by will to manage the estate of infants having died, the court of equity appointed his successor and required him to give bond and security for the faithful performance of his duty in a penalty double the amount of the trust estate, payable to the judge of the court and his successors in office. In the case of Pate vs. McCLure, 4 Band., 164, decided March, 1826, it was held: Where a debtor who has given a deed. of trust enjoins a sale of the property, and pending the suit the trustee dies, the chancellor, upon dismissing the bill, may direct the property to be sold by his marshal. In the case of Terny vs. Fitzgerald et als., 32 Grat., 843, de- cided March, 1879. T. conveyed to S. a tract of land of eleven hundred and seventeen acres in trust, to secure a debt of one thousand four hundred dollars, with interest, to P., and the deed provided that the trustee should sell the land, or so much as should be necessary to pay the debt. S. declining to act, F. has R., who was his counsel, and was insolvent, substituted as tmstee, and R. advertises the land, or so much as might be necessary to pay the debt, for sale. T. then applies for and ob- tains an injunction, on the grounds that R. was insolvent and the counsel of F., and because they refused to divide the land and sell it in parcels, alleging that there were four separate im- provements on the land, and insists that the trustee shall not sell without giving security for the safety of the trust fund. Held : Insolvency does not disqualify a person to act as trustee, but when money of the trust fund is to pass through the hands of an insolvent trustee, upon the application of one who is inter- ested in the right disbursement of the money, and who is appre- hensive that it may be misapplied or misused, a court of equity ought undoubtedly to require of the trustee security before he is allowed to proceed with the execution of the trust. Although R. was substituted as trustee by an order of the court, on motion of which T. had notice, he is not therefore pre- cluded from applying to a court of equity to require of him bond and security before he proceeds to execute the trust. The trustee being the agent of both parties, it was his duty to sell the laud as a whole, or in separate parcels, as would be conducive to its bringing tlie most money. It was his duty to sell so as to get the best price for it. If the land will bring a better price by dividing it and selling 826 CITATIONS TO THE CODE OF VIRGINIA. in separate lots, and the owner desires and requests it, and the trustee refuses, the owner may invoke the intervention and as- sistance of a court of equity, in a proper case, to control the trustee in the exercise of his discretion. The court having possession of this case, ought, instead of dissolving the injunction, to have retained the case, and directed the execution of the trust. It had authority to appoint com- missioners to view the land and take testimony, and to report whether it was susceptible of division into different tracts and in what way, with power to employ a surveyor to lay it off into as many different tracts as would promote an advantageous sale. And if upon the coming in of the report the court is satisfied from it and the testimony that it would conduce to an advantageous sale to have it so divided and sold in separate parcels, it would have authority to decree a sale in that way, and the order in which the tracts should be sold to pay the debt, interest and expense. In the case of Diehl vs. Marchant, 87 Va., 447, decided Feb- ruary 12, 1891, it was held : Decree dissolving injunction awarded grantors in trust deed restraining purchaser from taking posses- sion of the land because substituted trustee had been appointed without notice under this section, is conclusive on the grantors' rights, who failed to appeal in time, and is a bar to their peti- tion based on same ground for rehearing order of appointment. SECTION 3421. In the case of Reynolds vs. The Bank of Virginia et als., 6 Grat., 174, decided July, 1849. A debtor conveys a large pro- perty, real and personal, in trust to secure numerous creditors, who are divided into three classes: The first two classes are creditors by judgment. The trustees, not having signed the deed, refuse to act ; and thereupon two of the creditors of the first class file a bill on behalf of themselves and the other cred- itors secured by the deed against the grantor and the trustees ; and the prayer is for appointment of other trustees and for general relief. The grantor appears and demurs to the bill for want of proper parties plaintiff. Held: In such case one or more creditors may sue for themselves and the other creditors secured by the deed. In such case it is error simply to ap- point trustees in the place of those named in the deed. But the court should have the trust administered under its own supervision and control. The appointment of commissioners to sell and administer the trust under the supervision and control of the court is authorized either under the prayer for the ap- pointment of trustees or under the prayer for general relief. In the case of Hogan vs. Duke et als., 20 Grat., 244, decided January, 1871, it was held : On a bill to enjoin a sale of land CITATIONS TO THE CODE OF VIRGINIA. 827 by the trustee, the answer denies all the grounds of equity stated in the bill ; and there is no proof to sustain them. The court may dissolve the injunction and have the sale made and the proceeds distributed under its direction. In such case the trustee having been declared a bankrupt, it was especially pro- per for the court to retain the cause and have the trust admin- istered under its direction, and to require the trustee to give security for the faithful performance of his duties. The references to 21 Grat., 334-346, are errors. In the case of Robinson vs. Mays (Trustee), Obenshain et als. y 76 Va., 708 and 715. Whether a court, on dissolving injunction to sale under trust deed, should dismiss the bill, or retain it with a view of supervising the administration of the trust, lies within the discretion of the court. SECTION 3422. In the case of Stayer vs. Long, 83 Va., 715, decided Septem- ber 22, 1887, it was held : In a suit to annul a deed of settle- ment by debtor to trustee for his wife and children, it is the court's duty, upon the trustee's death, to appoint a substitute, though it is provided that his personal representative shall exe- cute the trust. SECTION 3424. In the case of Brown vs. Armistead, 6 Band., 594, decided December, 1828, it was held : Although it is a general rule that an infant defendant is not bound by a decree, if, when he arrives at age, he can show error in it, yet it seems that, where a decree is obviously for his benefit, his rights may be absolutely bound by it. In the case of Zirkle vs. McCue, 26 Grat., 517, decided Sep- tember 24, 1875, it was held : It is well settled in Virginia that an infant, as a general rule, is as much bound by a decree against him as a person of full age. He is not permitted to im- peach such decree, except on the same grounds as a person of full age may impeach it, such as fraud, collusion, and error. But in suits for partition, whenever the court sells and conveys an infant's inheritance, he is entitled to an opportunity of mak- ing a defence at any time within six months after he arrives at full age. The errors for which a judicial sale of an infant's land may be set aside must be substantial errors. A fair purchaser is not bound to go through all the proceedings and to look into all the circumstances and to see that the decree is right in all its parts. He has the right to presume that the court has taken the necessary steps to investigate the rights of parties, and that upon such investigation it has properly decreed a sale. He will 828 CITATIONS TO THE CODE or VIRGINIA. not be affected by any imperfection in the frame of the bill if it contain sufficient matter to show the propriety of the decree. The propriety of the sale must be tested, and its validity deter- mined, by the circumstances then existing and the surrounding circumstances. The only matter for inquiry is, Did the court have jurisdiction of the subject-matter? Were the proper par- ties before it ? Were the proceedings regular ? Was the sale proper under all the circumstances then surrounding the par- ties? If so, the title of an innocent purchaser is not to be dis- turbed because, from subsequent events, the sale has proved unfortunate for the infants. In the case of Parker vs. McCoy, 10 Grat., 594, it was held : A fair purchaser is not bound to go through all the proceedings, and to look into all the circumstances, and to see that the de- cree is right in all its parts, and that it cannot be altered in any respect. In the case of Walker's Executor vs. Page, 21 Grat., 636, it was held : The right of an infant to show cause against a decree which affects his interests, after he arrives at age, must be lim- ited to the extent of showing cause existing at the rendition of the decree, and not such as arose afterwards. In the case of Voorhees vs. The Bank of the United States, 10 Peters's Reports, 449, it was held by the United States Supreme Court: The principles which must govern this and all other sales by judicial process are general ones adopted for the se- curity of titles, the repose of possession, and the enjoyment of property by innocent purchasers, who are the favorites of the law in every court and by every code. SECTION 3425. In the case of Taylor vs. Cooper, 10 Leigh, 317 (2d edition, 327), decided July, 1839. Where a sale is made under a de- cree, if, before it is confirmed, the value of the property be ma- terially increased or diminished, the purchaser, under the Eng- lish -practice, has neither the benefit in the one case, nor the burden in the other. After the sale is confirmed, the confirmation relates back to the sale, and the purchaser is entitled to everything that he would have been entitled to had the confirmation and convey- ance been contemporaneous with the sale. On the 30th of Oc- tober, 1834, a decree was made for the sale of a tract of land on a credit of six, twelve, and eighteen months. Before the de- cree, there had been a contract to rent the land, and, pursuant to that contract, a Jease was made for a year, commencing the 25th of December, 1834, and ending 25th of December, 1835. During this year, to-wit, on the 10th of January, 1835, sale was made under the decree, that sale being confirmed, and a con- CITATIONS TO THE CODE OF VIRGINIA. 829 veyance being executed to the purchaser. Held : The purchaser must be considered complete owner from the date of the sale, and as entitled to the rent which became due afterwards. In such case, if the rent has been paid to the representative of the former owner, the purchaser may recover it from him by an action of assumpsit for money had and received. In the case of J. <& H. Brian vs. Pittman (& Co., 12 Leigh, 379, decided November, 1841. In proceeding by foreign attach- ment in chancery, held: Error to decree for plaintiff without affidavit of defendant's non-residence. Error to decree sale of lands without requiring bond with surety from plaintiff, in dou- ble the reported value of the lands, with condition for perform- ing future orders or decrees. Error to decree a sale of lands for cash. Error to direct payment of money to creditor and conveyance of land to the purchaser before the sale is reported and con- firmed. In the case of f lemmings vs. RiddicKs Executor, 5 Grat., 272, decided October, 1848. A decree directs the defendants to pay to the plaintiff certain sums of money. Upon appeal, the appel- late court reverses the decree, and proceeding to render such decree as the court below ought to have rendered, dismisses the bill, and this decree is entered in the court below. Pending the appeal, executions are issued on the decree of the court below, and the defendants pay the money. Held: They may proceed by motion to the court below upon notice to have restitution of the money so paid by them, and this though the decree of the appellate court does not direct restitution. In the case of Cooper vs. Hepburn et als., 15 Grat., 551, de- cided April, 1860, it was held : One of the infant defendants be- ing over fourteen years of age when the bill was filed, it was irregular not to require her to file her answer. But the sale having been decreed, and it having been made more than six months after the decree, and confirmed without objection, it is too late for the purchaser eighteen months afterwards to object to the irregularity. In the case of Dixon et aU. vs. McCue's Administratrix et als., 21 Grat., 373, decided August, 1871. In November, 1860, M. was appointed a commissioner to sell infant's land on a credit of six, twelve, eighteen, and twenty-four months. M. reports that after three trials to sell he had failed, and suggests that it be rented out for the present, and in June, 1861, there is an order that M. be authorized to rent out the land for the time, and on such terms as he might think judicious, and he rents it out for that and the next year. In March, 1863, M. reports that in that month he has sold the land on the terms of the decree to S. and D., and the report is confirmed, and he is directed to collect the 830 CITATIONS TO THE CODE OF VIRGINIA. purchase-money as it falls due, and pay it to the receiver of the court if the parties entitled decline to receive it. M., without giving bond as required by the statute, but which was not directed by the decree, collects the first three payments as they fall due, and pays the money into a bank which has been ap- pointed receiver of the court. The last payment was not made by S. and D., one of them being in the army, and the other a pris- oner. After the war they propose to pay the last payment, and the parties entitled object to the sale and also to the payments made, which were in Confederate currency. Held : The decree of November, 1860, for the sale of the land, continued in force, notwithstanding the order of June, 1861, for renting it, and the commissioner had authority to sell in March, 1863. The sale having been made more than six months after the decree for a sale, and having been confirmed, the sale cannot be set aside as to the purchasers. When the sale was confirmed in March, 1863, the court must have understood and intended that the sale was for Confederate currency, and the purchase- money was to be paid in such currency. The payments made to M. and his payments to the receiver of the court were valid payments, though M. had not given the bond required by the statute, and the purchasers and M. are not lia- ble for this part of the purchase-money. S. and D. were, under the circumstances, excused for the non- payment of their fourth bonds as they fell due, and upon paying these bonds they are entitled to have the land conveyed to them. The references to 32 Grat., 305-320, is an error. SECTION 3426. In the case of Patterson vs. Eakin et als., 87 Va., 49, decided November 6, 1890, it was held : Testator owning a store-house whereon was a vendor's lien and a farm, devised the latter to wife and children. Store-house and lot, in a suit to enforce the lien, were sold for enough to pay the lien. By an account in that suit it was ascertained that the only other debt was an un- secured one, which, with the lien, had been assigned to the pur- chaser. Later, in suit by the devisees to sell the farm, and after paying the debts, to distribute the proceeds, sale of the farm was decreed, and the causes consolidated. Sale was made and con- firmed in vacation without notice to the creditors. Held : The creditor, as purchaser, became party to the first suit, and by the consolidation, also to the last suit, and as such party was under this section entitled to notice of the sale made in vaca- tion ; but the confirmation will not be set aside unless he was prejudiced by want of notice. CITATIONS TO THE CODE OF VIRGINIA. 831 CHAPTER CXLVIII. SECTION 3435. In the case of Triplett vs. Wilson, 6 Call, 47, decided April, 1806, it was held : A bill of review must suggest error in law or newly discovered matter, or it cannot be sustained. In the case of Banks vs. Anderson, 2 H. & M., 20, decided June 3, 1808, it was held: A bill of review ought not to be granted to an interlocutory decree ; but if such decree be erro- neous it may be corrected by motion or petition to the court. In the case of Quarrier vs. Carter's Representatives, 4 H. & M., 242, decided October, 1809, it was held : It is not necessary to state in a decree in chancery that all the preliminary steps towards maturing the cause for hearing were taken, it being intended, where the cause is set for hearing, that it was regu- larly done, unless the party attempting to impugn the decree show to the contrary. In the case of Braxton vs. Lee's Heirs, 4 H. & M., 376, de- cided November, 1809, it was held : It should appear that de- fendants, against whom a decree is entered, had answered the bill, or stood out process of contempt ; and if this be omitted, a bill of review may be tiled on the ground of error on the face of the decree. In the case of Hodges vs. Davis, 4 H. & M., 400, decided June, 1808, it was held : A cause may be reheard upon a peti- tion presented before the term has passed in which the final decree was pronounced; but not afterwards, except by bill of review. In the case of Robertas Widow and Heirs vs. Stanton, 2 Munf., 129, decided May 30, 1810, it was held : It is error to enter a decree against infant defendants without assigning them a guar- dian ad litem; and though the infancy did not appear in the original proceedings, yet, if it be alleged in a petition for re- hearing (the decree being interlocutory), a guardian ad litem should be appointed. In the case of Winston vs. Johnson's Executors, 2 Munf., 305, decided June 5, 1811, it was held : Want of notice of the time and place of a commissioner's taking an account, or the court's acting upon the report so soon, are not sufficient reasons for a bill of review, such objections not having been taken (as they ought to have been) before the rendition of the decree. New matter is no ground for a bill of review, unless it was discov- ered since the decree was pronounced. In the case of Shepherd vs. Lirue, 6 Munf., 529, decided March 15, 1820, it was held : A bill of review to decree pro- nounced before February 11, 1814, could not be received after five years had elapsed from the date of such decree. It is not 832 CITATIONS TO THE CODE OF VIRGINIA. necessary to plead the act of limitations against a bill of re- view ; for it ought to appear in the bill itself that it is exhibited within the time prescribed by law, or that the complainant is protected by some of the savings in the act ; otherwise, it ought not to be received. In such case, if the fact alleged to prevent the operation of the act be not true, it may be denied by the answer of the other party ; and, on the proofs (if in his favor), the bill of review should be rejected. In the case of RoyalVs Administrators vs. Johnson et als., 1 Rand., 421, decided May, 1823, it was held : "When a decree is made as to one of several defendants whose interests are not at all connected with each other, with a direction for the payment of costs as to that defendant, such decree is final as to him, although the cause may be still pending in the court as to the rest. In the case of Thornton vs. Stewart, 7 Leigh, 128, decided January, 1836, it was held : To a final decree to S. against T., the latter files a bill of review for errors in law in the proceed- ings and decree ; S. cannot, in an answer to the bill of review, allege any new matters of fact. In the case of Laidley vs. Merrifield, 7 Leigh, 346, decided March, 1836. A party against whom a decree interlocutory in its nature has been rendered, files a bill which he styles, and which is in form, a bill of review, alleging errors on the face of the decree, as well as new facts in relation to the matter of con- troversy, and praying that the decree be reviewed and reversed. Held : Notwithstanding the form of the bill, it shall be taken as a supplemental bill in the nature of a bill of review and a peti- tion for releasing. In the case of Carter vs. Allen et als., 21 Grat., 241, decided August, 1871. C., committee of D., a lunatic, files a bill for the sale of D.'s land. There is a decree for a sale, and S., the com- missioner, sells, and reports to J., the purchaser, and returns his bonds with C. as his surety. The report is confirmed, and S. reports that he has collected the purchase-money and paid it to C., the committee, and returns the receipts of C. with his report. This report is confirmed, and a commissioner is di- rected to convey the land to J. as he shall direct ; and the com- missioner, by direction of J., conveys it to C. Afterwards C. and his wife, who is a sister of D., convey the land to G. in trust to secure a large debt to B. After the death of D. and of C., J., and S., the widow of C., one of the heirs of D., files her bill against the administrator of C., and against the trustee G., and against B., to set aside the sale and the conveyances to C. and G., on the ground that C. was in fact the purchaser, which was forbidden by the statute. She does not allege in her bill any error on the face of the proceedings, or after-discovered CITATIONS TO THE CODE OF VIRGINIA. 833 evidence ; nor does she allege or approve notice of the fact that she relies on, by G. or B., and they demur and deny notice. Held : The bill is fatally defective as a bill of review for failing to show defect in the proceedings, or to allege that she had dis- covered evidence since the decree that she could only by rea- sonable diligence have ascertained before. It is fatally defect- ive as a bill to impeach the decree for fraud, as against B., for failing to charge him with notice of the fraud. In the case of J. B. Campbell's Executors vs. A. C. Campbell's Executor, 22 Grat., 649, decided September 25, 1872, it wa& held : Where the court of appeals makes a decree and sends the cause back for further proceedings, there cannot be a bill of re- view to correct the decree of the court of appeals for errors ap- parent on the face of the record, but there may be such a bill to correct the decree on the ground of after-discovered evi- dence. But to sustain a bill of review in such a case the great- est caution should be observed ; and the new matters, to be suf- ficient ground for the reversal of the decree, ought to be very material, and newly discovered, and unknown to the party seek- ing relief at the time the decree was rendered, and snch as could not have been discovered by the use of reasonable diligence. In the case of Ambrouse's Heirs vs. Keller, 22 Grat., 769, de- cided October 28, 1872, it was held: If the plaintiffs present their bill of review, verified by oath, and ask leave to file it, if the decree was interlocutory, the court should treat the bill as a petition for a rehearing of the cause, and, if the decree was erroneous, should rehear and reverse it. An appeal from the decree of the court refusing to allow the- bill of review to be filed, if the decree was final, brings up for consideration the correctness of the first decree, and, if the de- cree was interlocutory, brings up the whole case. In the case of Sands vs. Lynham (Escheator], 27 Grat., 291, decided March, 1876. H., of foreign birth, died in 1867, seised and possessed of real estate in E., intestate and without any known heirs. The real estate of which he died seised vested in possession in the State without office found, or other proceed- ings at law. After the death of II., G. sued his curator, S., for a large debt, alleged to be due from H., and there was judgment by default. G. then sued S., the curator, in equity, to subject the real estate of which H. died seised for the payment of the judgment. There was a decree for a sale, and a sale in pursuance of a de- cree, when J. became the purchaser of a part of the property. Held : The State not having been a party to the suit, the de- cree and sale are nullity as to her, and gave J. no title to the property purchased by him. If J. was a bona fide purchaser, he is entitled to be substi- 53 834 CITATIONS TO THE CODE OF VIRGINIA. tuted to the rights of the creditor, G., and upon showing that the claim of G. is just, to have the real estate subject to his payment. After the death of H., an inquisition of escheat was exe- cuted in 1868, and the jury, after finding the death of H. without known heirs seised of the real estate, stated that certain parties were in possession, claiming under said sale. The escheator returned the inquisition in June, 1869, when the property was advertised as escheated. J. then filed his petition in the proper court, stating he had held the property under his purchase, and asking for an injunction. The escheator and register were made parties, but before the escheator answered, the court made a de- cree perpetuating the injunction. The escheator then filed a bill to review the decree. Held: It was error to make a de- cree upon the rights of the purchaser of the property, and per- petuating the injunction without the answer of the escheator. As the title of the estate does not depend upon the inquisi- tion, it cannot be effected by any errors or irregularities in the proceedings of the escheator. The decree of the court was a decree by default, and the bill of review by the escheator may be treated as a petition for a rehearsing of the decree. But it was a proper case for a bill of review. In the case of Kendrick et als. vs. Whitney et als., 28 Grat., 646, decided July, 1877, it was held : There is no statutory bar to the time within which a petition may be filed to correct error in an interlocutory decree. Whether in such a case a rehear- ing shall be granted depends upon the sound discretion of the court upon all the circumstances of the case. The motion to correct error in a judgment or decree by de- fault is barred after the lapse of five years from the date of the judgment or decree. That statutory remedy is, however, cumu- lative, and has not superseded or abolished petitions for re- hearing, which may still be had according to the course of equity in the same manner as before the enactment of that statute. Though the motion here is barred by the lapse of time, still, inasmuch as the notice on which that motion was founded was signed by counsel, was served upon all the par- ties in interest, and was regularly filed and contained all the requisites of a petition for a rehearing, it will be treated as a petition for a rehearing and relief given accordingly. In the case of Conolly vs. Conolly et als., 32 Grat., 657 and 660-'61, decided January, 1880. On a bill under the statute to invalidate the probate of a will which had been admitted to pro- bate as the will of C., there was a final decree in the cause establishing the paper as the will of C., and this was affirmed on appeal. A relation of C., interested in his estate, who was CITATIONS TO THE CODE or VIRGINIA. 835 an infant at the time, and was not made a party, or represented in the case, may file a bill to review the decree. And the bill stating the fact that the plaintiff was an infant at the time of the decree, and was not a party, or represented in the case, and also the discovery of evidence since the decree which is stated is of great importance and not cumulative, held : Upon applica- tion for leave to file the bill, the statements of the bill must be taken as true. The grounds stated in the bill are sufficient to authorize the bill of review. In the case of Raivlirigs (Executor] vs. Rawlings et als., 75 Va., 76, decided December 9, 1880, it was held: If the decree in this case was interlocutory, and the bill treated as petition for rehearing after the long acquiescence by the parties in the decrees settling the questions in the cause, and all the circumstances of the case, the rehearing should not be granted. In the case of Wtiitten, etc., vs. Saunders, etc., 75 Va., 563, de- cided August 11, 1881, it was held, p. 573: Upon asking leave to file a petition for a rehearing, or bill of review, on the ground of newly-discovered matter, the new matter must be so stated in the bill as to enable the court to see, on inspecting it, that if it had been brought forward it would probably have changed the character of the decree ; and it must be so stated that the defendant can answer it understandingly, and thus present a direct issue to the court. It is not sufficient to say that the party asking the leave expects to prove certain facts. He must state the evidence distinctly on which he relies, and file affidavits of witnesses in support of his averments. In the case of Davis vs. Morriss's Executors, etc., 76 Va., 21. Bills of Review. Every distinct averment must be taken as true upon a mere application to file a bill of review. In the case of Thomas et als. vs. Brooke et als. 76 Va., 160. Idem. Appeal. Review. If errors of judgment in the de- termination of facts be complained of by bill of review, the errors must be such as appear on the face of the decrees, opinion of the court, orders and proceedings in the cause, aris- ing on facts either admitted by the pleadings or stated as facts in the decrees (or opinions of the court) ; and the evidence in the case cannot be looked into in order to show the decrees to be erroneous in the statement of the facts. In the case of Hancock vs. Hutchison, 76 Va., 609. 1. Equitable Jurisdiction. Bill of Review. Appeal. One court cannot review the decree of another court upon a bill of review. Acts of 1872-'73, Chapter 395, Section 6, Paragraph 383, gives the circuit court no such jurisdiction over the final decrees of the county courts, and only removed from the latter to the former such causes at law and in chancery as were pend- 836 CITATIONS TO THE CODE or VIRGINIA. ing on the day the act took effect. The only remedy is an ap- peal from the decree of the county court. 2. Idem. Errors in Law. Errors in Judgment. On bill ta review decree error in law, the error must appear on the face of the decrees or orders or proceedings in the cause, arising on facts either admitted by the pleadings or stated as facts in the decrees. But if the errors be errors of judgment in the determination of facts, such errors can be corrected only by ap- peal. The evidence cannot be looked into in order to show that the decree is erroneous in its statement of facts. In the case of Norfolk Trust Co. vs. Foster, 78 Va., 413, de- cided February 7, 1884, it was held : Bill of review for new matter must not only set out the discovery of the new matter after the decree, and state the nature thereof, but must be ac- companied by affidavit that it could not have been discovered by reasonable diligence in the original cause. In the case of Wayland et ux. vs. Crank, 's Executor, 79 Va., 602, decided December 4, 1884, it was held : There is not statu- tory bar to the time within which a petition may be filed to cor- rect error in an interlocutory decree, and rehearing is granted or denied at the sound discretion of the court. In the case of Pracht <& Co. et als. vs. Lang et als., 81 Va.,. 711, decided February 18, 1886, it was held: Bill of review may be filed by infant defendants against whom a decree has been rendered at any time before or within three years after attain- ing majority, and may be asked to be taken as a petition for re- hearing, and thereby the infant is entitled to show any good cause existing at date of rendition against the original decree. In the case of Trevelyan's Administrators vs. Lofft, 83 Va., 141, decided April 14, 1887, it was held : Petition is the appro- priate mode of applying for a rehearing of interlocutory decrees, and bill of review of final decrees ; and the evidence sought to be introduced must be shown by affidavit to be not only new, but discovered after decree, and not discoverable by due diligence before decree, and not merely cumulative, but such as should produce a different decree. This is the case case cited from 11 Va. Law Journal, 610. In the case of Armistead vs. Bailey, 11 Va. Law Journal, 620, decided April 28, 1887. In a creditor's suit to subject lands of a decedent to payment of his debts, his former wards came in by petition, claiming a balance due them, which was ascertained by a commissioner, and the proceeds of the land were applied to its payment. Several years thereafter A. filed his petition in the cause, claiming to be the assignee of a claim against the dece- dent, and alleging that during the lifetime of the decedent, and after their majority, the wards had received and accepted certain bonds from decedent in full satisfaction of their claims, and had CITATIONS TO THE CODE OF VIRGINIA. 837 sued for and collected the same, and were therefore not entitled to any part of the fund arising from the sale of decedent's land, which he prayed to have refunded by them and applied to the payment of his claim, and praying a rehearing of the former de- cree. The petition set forth no newly discovered evidence, and was not supported by affidavit that the facts relied on could not, with reasonable diligence, have been used before the decree sought to be reheard was made. Held : A demurrer to the pe- tion was properly sustained. SECTION 3436. In the case of Ambler vs. Wyld, 2 Wash., 47 (1st edition, p. 36), decided at October term, 1794, it was held : The court of one county may on' its equity side relieve against a judgment at law rendered in another county by way of original jurisdiction, and though it cannot award a new trial at the bar of that other court, yet it may direct an issue to be tried at its own bar. And if the relief be afforded without the trial of an issue, where that is proper, the high court of chancery may upon an appeal after re- versal retain the cause and direct an issue to be tried. In the case of Randolph's Executors et als. vs. Tucker et als., 10 Leigh, 655 (2d edition, 688), decided March, 1840, the stat- ute giving jurisdiction to each of the judges of the circuit su- perior courts to award injunctions to judgments rendered, or to proceedings apprehended, out of his own circuit, but directing that in such a case the order for the process of injunction shall be directed to the clerk of the court of that county wherein the judgment is rendered, or the apprehended proceedings are to be had, gives the judge jurisdiction only to award the injunc- tion, not to hear and determine the cause. Therefore, when the judge of the Circuit Superior Court of James City awarded an injunction to proceedings to be had in the county of Char- lotte, and directed the order for the process of injunction, not to the clerk of the court of Charlotte, but to the clerk of the court of James City, though the defendant whose proceedings were enjoined was the judge of the court of Charlotte, yet it was held : The process and the subsequent proceedings in the court of James City, which were founded on it, were without authority, and erroneous. In the case of Beckley vs. Palmer et als. 11 Grat., 625, de- cided July, 1854, it was held : A defendant in an execution files a bill to enjoin the execution, on the ground that a previous execution, sued out on the same judgment, had been levied by the sheriff on the property of another defendant in the execu- tion sufficient to discharge it. In such case the bill must be filed in the county in which the judgment was recovered ; and the circuit court of another county has no jurisdiction of the case. 838 CITATIONS TO THE CODE OF VIEGINIA. In the case of Winston et als. vs. The Midlothian Coal Mining Company et als., 20 Grat., 686, decided March, 1871, it was held: Where a bill seeks relief, and asks for an injunction to restrain the sale of real estate in another county as ancillary to the relief sought, the court of the county or city where the de- fendants, or some of them, reside has jurisdiction of the cause, and the order for the injunction properly proceeds from the court of that county or city. In the case of Muller, etc., vs. Bayly et als., 21 Grat., 521, de- cided November, 1871, it was held : This statute applies only to a pure bill of injunction, not to a bill seeking other relief, to which the injunction sought is merely ancillary. In a case of a pure bill of injunction to restrain a sale of real estate in one county, if the plaintiff institutes his suit in one county or cor- poration, where the defendants answer and do not object to the jurisdiction, the plaintiff cannot afterwards make the objection, and the court may, under its general jurisdiction, hear and de- termine the case. Both plaintiffs and defendants being present by their coun- sel, the court makes an order removing a cause to the court of another county, assigning as a reason for making it that it ap- pears that the cause has been improperly brought in this court. If this reason was unfounded in fact it would not invalidate the order which the court had power to make, and to which there was no exception. A cause having been removed, and received by the clerk, the defendant may, upon notice in vacation, before the next term of the court to which the cause is removed, move the judge to dis- solve the injunction which had been granted. In such a case the judge may, in vacation, dissolve the injunction, but he can- not then dismiss the bill. In the case of Fredenheimer vs. Rohr, 87 Va., 764, decided April 30, 1891, it was held: Where a court below, or a judge thereof, refuses an injunction, the remedy is by application to a judge of this court, accompanied by the original papers and the order of refusal. In the case of The N. & W. R. R. Co. vs. Postal Telegraph Cable Company, 88 Va., 936, decided March 24, 1892, it was held : The Chancery Court of the city of Richmond cannot en- join an act to be done in the county of Prince George. SECTION 3437. See the case of Randolphs Executors et als. vs. Tucker et als. r 10 Leigh, 655, cited ante, Section 3436. SECTION 3438. In the case of Jaynes et als. vs. Brock, 10 Grat., 211, decided CITATIONS TO THE CODE OF VIRGINIA. 839 P July, 1853, it was held : An injunction refused by a judge of a circuit court is presented to a judge of a supreme court of ap- peals, who also refuses it. The injunction may be awarded by another judge of the court of appeals. In the case of Wilde?- vs. Kelly, 88 Va., 274, decided July 16, 1891. Where a circuit court judge refused to award an injunc- tion, the remedy is by application, accompanied by the original papers and the order of refusal to a judge of this court, who may review and reverse the action of the circuit court judge, and award the injunction, which injunction so awarded, it is the province of the circuit court judge to enforce and restrain any disobedience thereto by attachment or other proper process. Nor does it matter that the injunction in question is the second or supplemental bill for an injunction, since a motion to reinstate an injunction on additional evidence is in the nature of an origi- nal application for an injunction, and where the circuit court re- fuses to enforce obedience to such injunction so awarded by a judge of this court, the writ of mandamus may be issued. SECTION 3441. In the case of Holllday et ux. vs. Coleman et ux., 2 Munf., 162, decided March 25, 1811, it was held : The power of a court of equity to rule a tenant for life, of slaves or other personal property, to give security that the property shall be forthcoming at his or her death, is to be exercised, not as a matter of course, but of sound discretion, according to circumstances. SECTION 3442. In the case of Woodson vs. Johns, 3 Munf., 230, decided April, 8, 1812, it was held : The security in a bond for the prosecution of an injunction is not liable for the costs and damages which may accrue on an appeal to a superior court. In the case of Fox & Vowles vs. Edwards (Executor), G Munf., 36, decided December, 1817, it was held : In an action iipon a bond for prosecuting an injunction to stay proceedings on a judgment at law for a debt bearing interest, which injunc- tion is dissolved and the bill dismissed, the plaintiff is entitled to a verdict for the amount of the principal sum, with lawful interest to the time of finding such verdict, the costs at law and in chancery (costs being awarded to the plaintiff by the decree), with damages on the said principal at the rate of 10 per cent, per annum during the pendency of the injunction, although the condition of the bond be for payment of the judgment and costs of the injunction (if ruled to be paid "by the complainant"), without mentioning interest or damages. In the case of Ashby vs. Kiger et als., 1 Va. (Gilmer), 153, de- 840 CITATIONS TO THE CODE OF VIRGINIA, cided October 2, 1820, it was held : The judge failing to direct a release of errors on granting an injunction, this court will re- spect the principle. In the case of Lomax vs. Picot, 2 Band., 247, decided Feb- ruary 7, 1824, it was held: It is error in the chancellor to grant an injunction without requiring security, except in the case of executors, administrators, and other fiduciary charac- ters. In the case of White vs. Clay's Executors, 7 Leigh, 68, de- cided January, 1836. The condition of an injunction bond is broken by a dissolution of the injunction in part, as well as by a total dissolution ; so that an action lies on a bond, whether the injunction be partly or wholly dissolved. To debt on an injunction bond, defendant pleads that the in- junction cause is still pending on a bill of review in the court of appeals, concluding with a verification ; plaintiff replies that the bill of review mentioned in the plea has been decided by the court of appeals, concluding to the country; and issue joined. Held: 1. The first fault in pleading, if fault it was, having been com- mitted by the defendant, he cannot complain of the same fault in the pleading of plaintiff; but, 2. It was necessary in such case to conclude to the court, with a verification by the record. On the trial of an action of debt on an injunction bond, ex- tracts from the record of the injunction cause of the decrees in the cause are competent and sufficient evidence without pro- ducing the whole record. An injunction bond not strictly pursuing the directions of the statute is yet held a good statutory bond. See the case of Beniley vs. Harris's Administrator, 2 Grat., 357, cited ante, Section 2893. In the case of Harman vs. Howe, 27 Grat., 676, decided June, 1876. A bond is given upon an injunction to a judgment for money, and in penalty it is said "in the just and full sum of seven hundred and seventy-six lawful money of Virginia." The word "dollars" is obviously left out by mistake, and the bond will be treated as if the word was in it. The clerk states at the foot of an injunction bond that it was signed, sealed, and delivered in the presence of the court, and it is dated and endorsed as filed on the 23d October, on which day it appears from the records of the court that it was not then in session. Held : The statute does not require the bond to be executed in the presence of the court, but before the clerk of the court in which the judgment was. Though its being given before the court, if it was, cannot vitiate it: CITATIONS TO THE CODE OF VIRGINIA. 841 The judge granting an injunction to a judgment for money endorses on the bill, " Injunction granted on the usual terms," without stating on what terms it was to become operative. The injunction bond is given in penalty about double the amount of the judgment, and is in other respects as directed by the statute. The penalty being about double the amount of the judgment, and that being the amount of the penalty generally prescribed in such cases, this would seem to be a compliance with the order, and the order a compliance with the law, which directs that the judge shall prescribe the amount of the penalty. But however that may be, the obligors to the bond are estopped from denying that penalty of the bond conformed to the direc- tion of the judge who awarded the injunction. In the case of Warwick and Wife and Another vs. JVbrvel, 1 Leigh, 96, decided February, 1829, it was held : Where a party defendant in a suit at law, before judgment, resorts as plaintiff to equity, praying relief against the claim asserted at law, on equitable grounds, and an injunction to stay proceedings at law, the injunction should be granted only on condition that he con- fess judgment at law, though he may have grounds of defence at law distinct from the grounds of relief preferred to the court of equity. Where an injunction has been granted in such a case, and the chancellor dissolves the injunction, unless the plaintiff in equity will confess judgment at law, on appeal from such order this court will not examine the merits, though at the time the order was made the cause stood for hearing. In the case of The Great Falls Manufacturing Company vs. Henry's Administrator, 25 Grat., 575, decided December, 1874, it was held : When a defendant in an action at law files a bill to make his defence in equity, and asks for a stay of proceed- ings in the law court, it is a matter in the discretion of the chancellor, in granting the injunction, whether he will or will not require a confession of judgment in the action at law. In such a case, if the confession of judgment in the action at law is required, the order should require the judgment to be taken to be dealt with as the court shall direct. Though the order requiring the confession of judgment is absolute, yet, if the court dissolves the injunction and dismisses the bill on the ground that the plaintiff's defence to the action is legal, and that the court of equity has no jurisdiction, the decree should direct that the judgment at law should be set aside and that the case be reinstated as it was when the injunc- tion was granted ; and if this is not done, the chancery court will, on motion afterwards made, direct the judgment to be set aside. In the case of Staples vs. Turner (Administrator) et als., 29 842 CITATIONS TO THE CODE OF VIRGINIA. Grat., 330, decided November, 1877. S., who is executor of his father, A., and M., who is administrator of T., have a settlement of accounts between S. individually and as executor of T., and A. in his lifetime, said accounts extending through many years, and embracing many items. All these items, whether as ex- ecutor or as individual, are brought into the statement, and there is a balance against S. of $1,176.10. At the foot of of the statement S. says that he is only to be individually re- sponsible for what appeared to be due from him in his individ- ual character. M. sues S. upon this account, and S. applies for an injunction to stay proceedings, which is granted upon his confessing judgment. In his bill he points out a number of what he alleges are errors in the account, and items which are against his testator's estate. Held : It is a proper case for re- lief in equity. The injunction should have been granted with- out requiring S. to confess judgment in the action at law. The court should direct the accounts as individual and as executor to be taken separately. Though S. should not have been re- quired to confess a judgment in the action at law, it may be held as a security for any amount found, upon settling the ac- counts, to be due from him individually. In the case of Thornton vs. Thornton, 31 Grat., 212, decided November, 1878, it was held : If it was proper to require a con- fession of judgment, it should expressly provide that the judg- ment so confessed was thereafter to be dealt with as the chan- cery court might direct. Although there is no such express provision in the order granting the injunction, the court, if of opinion that the bill should be dismissed for want of jurisdiction, should, in the order of dismissal, direct that the judgment at law be set aside. SECTION 3444. In the case of RadforcCs Executor vs. Innetfs Executor, 1 H. & M., 7, decided September 23, 1806,. it was held: A motion to dissolve an injunction ought never to be continued unless from some very great necessity. The court of chancery is always open to reinstate as well as to grant injunctions. The complainant should always be ready to prove the allega- tions in his bill of injunction, even before the answer is filed. In the case of Norths Executor vs. Perrow and Others, 4 Hand., 1, decided January, 1826, it was held : On a motion to dissolve an injunction, it ought not to be required of the de- fendant to invalidate, by fiill proof, the allegations of the bill, but the burden of proof lies on the plaintiff to support them. All that is required of the defendant is to show that the evi- dence of the plaintiff is entitled to no credit. CITATIONS TO THE CODE OF VIRGINIA. 843 In the case of Randolph vs. Randolph, 6 Rand., 194, decided March, 1828, it was held: It is an irregular proceeding in a chancellor to dissolve an injunction in court, with a direction that the order of dissolution should not go out, and then, in va- cation, to direct that the order should go out. In the case of Kakn vs. Kerngood, 80 Va., 342, decided March 19, 1885, it was held : From an order overruling an in- junction and adjudicating the principles of the cause, an appeal lies. When on bill and answer denying all equity in the bill, there is motion to dissolve the injunction, it is customary to dissolve, but for good cause the motion may be overruled, and the injunc- tion continued until the hearing, without any adjudication of the principles of the cause. In the case of Jenkin & Outchin vs. Waller <& Jordan, 80 Va., 668, decided September 17, 1885. It rests in the sound discre- tion of the court to dissolve an interlocutory injunction upon the coming in of the answer denying the equities of the bill, or to continue it to a final hearing, especially where fraud is the gravamen of the bill, or where dissolution would result in greater injury than continuance till hearing. Mercantile firms having on hand large stocks of perishable goods confessed judgments for large sums in favor of certain preferred creditors. Executions were issued and levied, and the goods advertised for sale. Unpreferred creditors bring their bill, charged fraud in the confession of said judgments, usury in the debts whereon the judgments were founded, want of juris- diction in the courts wherein they were confessed, etc., and ob- tain injunction to sale and appointment of receiver to take charge of the goods and sell same publicly or privately, upon giving bond of sufficient penalty. Judgment-creditors present their answers to the bill, and move to dissolve the injunction in vacation. No deposition had been taken, but affidavits sustained the allegations of the bill, and receiver had executed ample bond and taken possession of the goods. The motion to dis- solve was overruled, and the injunction continued to the hear- ing on the merits, the decision of all questions being reserved until then. Held: Such action is sustained by the sound dis- cretion of the court under the circumstances, and should be affirmed. SECTION 3445. See the case of Fox & Vowles vs. Edwards (Executor), 6 Munf., 36, cited ante, Section 3442. In the case of Garnett vs. Jones, 4 Leigh, 633, decided De- cember, 1833. Execution is awarded on a forthcoming bond against the principal and the surety therein bound ; the princi- pal alone obtains an injunction to stay proceedings at law, 844 CITATIONS TO THE CODE OF VIRGINIA. which injunction is dissolved. Held : The surety is not liable for the damages incurred by the principal for retarding the exe- cution by an injunction; and if an execution issue against the surety as well as against the principal for such damages, it ought, on surety's motion, to be quashed. The execution should be so moulded as to exempt the surety from the damages, and to make the principal, who incurred them, alone liable therefor. In the case of Washington's .Executor vs. Parks, 6 Leigh, 581, decided July, 1835, it was held : Upon the dissolution of an in- junction on a judgment, the damages for retarding execution by the injunction should be computed on the aggregate of princi- pal, interest, and costs, appearing due on the judgment at the date of the injunction. And the damages should be ascertained, and the precept to levy them inserted in the body of the execution. In the case of Medley vs. PanniWs Administrator ; Same vs. Tunis's Executors, 1 Hob., 63 (2d edition, 67). Where, pending an injunction to a judgment for money, the judgment-creditor dies, and there is a revival in the name of his administrator of the suit in equity, but not of the judgment at law, it is not regular, though the object be to avoid the delay that would take place after a dissolution of the injunction in re- viving the judgment, to make a decree in the suit in equity for the money which will be payable to the creditor upon such dis- solution. The court of equity is to dissolve or perpetuate the injunction, or perpetuate it in part and dissolve it for the balance, and it may in the latter case, if it shall appear just, direct that no damages shall be paid by the complainant ; but it is not, in any injunction case, not even where the injunction is wholly dissolved, to make a decree for the damages payable to the credi- tor on the dissolution. In the case of Jeter vs. Langhorn, 5 Grat., 193, decided July, 1848, it was held: An injunction is dissolved, and on appeal the decree is affirmed. Ten per cent, damages is to be computed from the time when the injunction was granted to the date of the dissolution thereof in the court below ; but not for the time it was pending in the appellate court. In the case of Michaux's Administrator vs. Brown et als., 10 Grat., 612, decided January, 1854, it was held: A judgment is a lien upon an equity of redemption in land, and will be re- ferred to a subsequent purchaser of the equity of redemption not having the legal title ; and the lien of the judgment extends to the whole equity of redemption. Though the judgment was enjoined at the time of the purchase, yet upon the dissolution of the injunction the lien relates back to the date of the judg- ment, and so has priority over the equity of the purchaser. The damages on the dissolution of an injunction to a judgment CITATIONS TO THE CODE OF VIRGINIA. 845 become, as to the party obtaining it, a part of the judgment, and are embraced in the lien of the judgment upon the equity of redemption. A judgment being rendered for the penalty of a bond to be discharged by the payment of the principal sum due and in- terest, and the payment of the money having been delayed by an injunction until the principal due and the interest exceed the penalty, the lien of the judgment only extends to the penalty, the damages upon the dissolution of the injunction and the costs at law, without continuing interest. In the case of Claytor vs. Anthony, 15 Grat., 518, decided April, 1860, it was held : If a person not a party to the judg- ment enjoins it and the injunction is dissolved, he is liable to pay the ten per cent, damages prescribed by the statute. Though the condition of the injunction bond provides for the payment of such damages as may be awarded by the court, and the court simply dissolves the injunction and dismisses the bill, yet ^ie order of dissolution necessarily imports that the damages are to be paid, unless they are expressly remitted by the terms of the order. Where upon a bill of review an injunction is granted which is afterwards dissolved, the damages are to be computed, not upon the amount of the judgment at the time it was first granted on the original bill, but on the amount of the judgment at the time it was granted on the bill of review. If the judgment, principal, interest, costs and damages on the injunction bond, yet the plaintiff in the judgment having sued out execution on the judgment and made the money, principal, interest and costs, may recover the damages by suit upon the bond. SECTION 3446. In the case of Franklin vs. Wilkinson, 3 Munf., 112, decided March 17, 1812, it was held : After an injunction bond has been wholly dissolved, if the cause be set for hearing on motion of the defendant in equity, he cannot take advantage of the cir- cumstance that the bill should have been dismissed under the act of assembly. In the case of Hough vs. Shreeve, 4 Munf., 490, decided No- vember 8, 1815, it was held: The third section of the act of January 20, 1804, "concerning the proceedings in courts of chancery," does not apply to a bill which is not merely a bill of injunction, but has the farther object in view of obtaining a de- cree for conveyance. In the case of Singleton vs. Lewis et ah., 6 Munf., 397, decided October 13, 1819, it was held: Again decided, viz.: that a bill of injunction ought not to be dismissed at the next term after dissolution, under the third section of the act of January 20, 846 CITATIONS TO THE CODE OF VIRGINIA. 1804, if such bill have such objects besides those embraced by the injunction. In the case of Pulliam vs. Winston et als., 5 Leigh, 324, de- cided April, 1834, it was held : The statute directing the dismis- sion of bills of injunction at the next term, etc., after the disso- lution of the injunction, unless cause be shown to the contrary, does not apply to cases in which the bill claims other relief be- sides the injunction. The case of AdMns vs. Edwards, 83 Va., 300, supports and cites the case of Pulliam vs. Winston, 5 Leigh, 324, supra, CHAPTEE CLXIX. SECTION 3447. In the case of Reid's Administrators vs. Strider's Administra- tors, 7 Grat., 76, decided May 14, 1850, it was held : A writ of error coram vobis does not lie to the supreme court of appeals. SECTION 3448. In the case of Worsham vs. McKensie, 1 H. & M., 342, decided June 22, 1807, it was held : After a confession of a judgment by an executor in an action brought on his executorial bond for the purpose of recovering against him and his securities for a devas- tavit, he cannot resort to a court of equity for relief on the ground that he had fully admitted the assets of his testator. In the case of Hite's Heir vs. Wilson, 2 H. & M., 268, decided April, 1808, it was held : If a release of errors be pleaded to a supersedeas and found for the defendant in error, the judgment should be, not that the judgment of the court below be affirmed, but that the plaintiff be barred of his writ of supersedeas. . The reference to 2 H. & M., 575, is an error. In the case of Edmonds vs. Green, 1 Rand., 44, decided Jan- uary, 1822, it was held: A confession of judgment on a motion on a forthcoming bond will operate as a release of errors in the original judgment. Therefore, where an office-judgment is erro- neously entered up against the principal and special bail, the latter afterwards giving a forthcoming bond and confessing judg- ment on the said bond, he cannot avail himself of the error in the original judgment. In the case of McRae vs. Turnpike Co., 3 Band., 160, decided February 10, 1825, it was held : The confession of a judgment on a forthcoming bond is a release of errors, if any exist, in the original judgment. In the case of Stanard vs. Timberlake, 3 Leigh, 681, decided May, 1832, it was held : A confession of judgment on a forth- coming bond is a release of all errors in the previous proceed- ings. CITATIONS TO THE CODE OF VIRGINIA. 847 In the case of Richardson's Executor vs. Jones, 12 Grat., 53, decided January 29, 1855, it was held : An entry that the de- fendant, relinquishing his plea of payment, saith he cannot gainsay the plaintiff's action for the sum of, etc.; and judgment accordingly is a judgment by confession, and releases all pre- vious errors in the proceeding in the cause. In the case of Brockenbrougli s Executrix et als. vs. Brocken- brougtis Administrator et als., 31 Grat., 580 and 599, decided March, 1879. L. brings an action on a bond against B., which is on the office-judgment of the court at its March term, which commences on the third of the month, and the office-judgment is confirmed on the fifth, which is the last day of the term of the court. On the first day of the same term of the court B. goes into court and confesses a judgment in favor of S., no suit having been instituted against B. Held : The judgment in favor of S. is valid, though no suit had been instituted by him against B. That the judgment of L. relates back to the first day of the term, and the law not regarding a fraction of a day, both judg- ments stand as of the same date. In the case of Alexander vs. Alexander et als., 85 Va., 353, decided August 23, 1888, it was held : A power of attorney to confess a judgment need not be under seal. Power of attorney to confess a judgment executed by a firm, and the judgment con- fessed thereunder, are valid. SECTION 3449. In the case of Jones vs. Bradshaw, 16 Grat., 355, decided February 18, 1863, it was held : If pending an appeal in the court of appeals the defendant has satisfied the decree, upon a reversal of it the circuit court should make an order of restitu- tion in his favor. In the case of Green & Sutile vs. Massie, 21 Grat., 356, de- cided August, 1871, it was held, p. 362-'64: If a discovery from the plaintiff is necessary to enable the defendant to make his defence at law, he must file his bill for the discovery before the judgment has been rendered against him; and he cannot go into equity for discovery and relief against the judgment after it has been rendered. In the case of O. A. & M. R. R. Co. vs. Miles, 76 Va., 773. Demurrer to Evidence. By defendant company's demurrer, it must be held to admit all plaintiff's evidence, and all in- ferences justly deducible therefrom, and to waive all its own evidence conflicting with the plaintiff's, and all inferences dedu- cible from its own evidence (though not in conflict with plain- tiff's) which do not necessarily result therefrom. In the case of Salamone vs. Keiley et als., 80 Va., 86, decided January 15, 1885, it was held: Where a bill fails to state a case 848 CITATIONS TO THE CODE OF VIRGINIA. proper for relief in equity, the court will dismiss it at the hearing, though no objection has been made in the pleadings. But a defective bill may be aided by the answer and the evi- dence. In the case of Roanoke Land and Improvement Company vs. Earn <& Hickson, 80 Va., 589, decided June 25, 1885, it was held, p. 595 : Judgment will not be reversed for defect, imper- fection, or omission in the pleadings, unless in court below there, was a demurrer. But a failure to state any cause of action at all is not cured by the statute. In the case of N. & W. ft. B. Co. vs. Wysor, 82 Va., 250, de- cided July 8, 1886, it was held : Counts ex delicto cannot be joined in the same declaration with counts ex contracts, such misjoinder makes the declaration bad on demurrer. But unless a demurrer has been filed and overruled, such misjoinder will not be grounds for a motion in arrest of judgment or writ of error. SECTION 3450. In the case of Ddbney vs. Preston's Administrators, 25 Grat. r 838, decided February 18, 1875, it was held : The decree in the court below was made when there was no replication to the answer of D., and after an appeal from the decree by D. was perfected, the court, on the motion of the plaintiffs, made an order permitting the plaintiffs to file the replication nunc pro tune. If it was a proper case for such an order, the court should have allowed D. to take testimony to meet the new phase of the case presented by the issue thus taken on his answer. The reference to 31 Grat., 13, 18 and 19, is an error. In the case of Simmons vs. Simmons 's Administrator, 33 Grat., 451 and 458-'59, decided July, 1880. With the answer of a de- fendant a bond of the plaintiff's decedent is filed. The plaintiff filed no replication, but pleaded non est factum to the bond filed with the answer. On the evidence being heard, the court below decided that the bond was not the deed of the plaintiff*. Held : While it was irregular and improper to have allowed a plea to have been filed to an answer, and the proper course was for the plaintiff to have filed a general replication to the answer, accom- panied by an affidavit, putting in issue the execution of the bond, which would have been sufficient to require the defendant to prove such execution, yet, as the plea which was sworn to can be now treated as an affidavit, as the parties took issue on on it and testimony, and the appellant has not been prejudiced by the irregular proceedings and trial on said plea, as such the decree will not now be reversed for such irregularities, substan- tial justice having been done between the parties. In the case of Jones vs. Degge, 84 Va., 685, decided April 5, 1888, it was held : Where defendant has taken depositions as if CITATIONS TO THE CODE OF VIRGINIA. 849 there had been a replication-, the decree shall not be reversed for want of a replication. SECTION 3451. In the case of Ervnn vs. Vint, 6 Munf., 267, decided January 18, 1819, it was held: A final decree by default may be set aside at a subsequent term for good cause shown, in a case where relief cannot be given by bill of review, or bill to impeach the decree for fraud in obtaining it. In this case circumstances shown were that the defendant against whom the decree was rendered was prevented by mis- take and accident from filing his answer, and that, in fact, his title was good to the land in controversy. In the case of Richardson's Executor vs. Jones, 12 Grat., 53, decided January 29, 1855, it was held : A judgment bv confes- sion entered by mistake of the clerk instead of a judgment nil dicit cannot be corrected at the next term of the court. In the case of Davis (Sheriff) vs. The Commonwealth, 16 Grat., 134, decided March 5, 1861, it was held : If a party ob- tains a supersedeas to a judgment by default, before applying to the court in which the judgment was rendered, or to the judge thereof, to correct the errors of which he complains, his super- sedeas will be dismissed as improvidently awarded. In the case of Bollard et als. vs. Whitlock, 18 Grat., 235, de- cided January, 1867, it was held : A judgment and an award of execution upon a forfeited forthcoming bond having been en- tered by default upon a day prior to that to which the notice was given, the court in which the judgment and award of exe- cution was rendered has jurisdiction on the motion of the plaintiff to set aside the judgment and to quash the execution, upon reasonable 'notice to the defendants. The plaintiff having given a second notice to the obligors in a forthcoming bond for a judgment and an award of execution thereon, and they ap- pearing and objecting to the rendering of the judgment and the award of execution asked, the court may, at the same time, quash the first judgment and execution, and render another judgment and award of execution on the bond ; and the obligors being present by their counsel, they had reasonable notice of the motion to quash. When a judgment is set aside, the execution which has is- sued upon it falls with it, without an express order to quash the execution. j^-In the case of Ragland & Co. vs. Butler, 18 Grat., 323, de- cided January, 1868, it was held : The court having refused to give an instruction to the jury asked for by the defendant, th.it the plaintiff must prove the offer to deliver merchantable lum- ber cut from the merchantable timber upon the land, etc., and 54 850 CITATIONS TO THE CODE OF VIRGINIA. afterwards having instructed the jufy that if they believed that the plaintiff cut from the -land, etc., merchantable pine timber, and sawed it into lumber, without saying that the lumber must be merchantable, this instruction, after the refusal of the first, was calculated to mislead the jury, and the judgment will be reversed. In the case of Goolsby, etc., vs. St. John, 25 Grat., 146, decid- ed June, 1874. In 1866 S. sues G. & E., partners, in debt. The sheriff returns on the process, " Executed on G. by leaving copy at his house with sister, and on B. by leaving copy at his house with wife." On his return there is an office-judgment confirmed. The stay law prevents an execution on this judgment, but there is a judgment upon notice for a year's interest upon this judg- ment, in 1867, and also in 1868. In 1870 execution is issued on the judgment, when G. & B. enjoin it on the ground that the credit of $100 endorsed on the note should have been $600, and that the process was not properly served, and they had no notice of the suit. S. demurs to the bill for want of equity. Held: G. & R. having had notice of the judgment within the time limited for a motion to quash it, they had a remedy at law by motion to quash the sheriff's return, and therefore they are not entitled to relief in equity. The judgment is a judgment by default in the sense of the statute. In this case, in September, 1871, the court made a decree- perpetuating the injunction, setting aside the judgment, and re- manding the cause to the rules. In March, 1872, S., by leave of the court, filed a bill of review for errors apparent in the de- cree ; and on the 2d of September, 1872, the court made a de- cree in the bill- of -re view case, reversing and annulling the de- cree ; and on the same day the original case of G. & B. against S. was reinstated on the docket; and, on the 'motion of S., it was decreed that the injunction be dissolved. Held : It was a proper case for a bill of review. The court should not only have dissolved the injunction, but should have dismissed the original bill. The bill of review is a continuance of the original suit, and there should not have been two decrees, but the whole should have been embraced in one decree, and the appellate court will so regard them. If the case had not been a proper one for a bill of review, still, an appeal from that decree brings up the whole case, and the appellate court will go back to the first error, and reverse the decree of September, 1871. In the case of Kendrick et als. vs. Whitney et als., 28 Grat., 646, decided July, 1877, it was held : There is no statutory bar to the time within which a petition may be filed to correct error in an interlocutory decree. Whether, in such a case, a rehear- ing shall be granted, depends upon the sound discretion of the court upon all the circumstances of the case. The motion to CITATIONS TO THE CODE OF VIRGINIA. 851 correct error in a judgment or decree by default, given by statute, is barred after the lapse of five years from the date of the judg- ment or decree. That statutory remedy is, however, cumula- tive, and has not superseded or abolished petitions for re- hearing, which may still be had, according to the course of equity, in the same manner as before the enactment of that statute. Though the motion here, if treated as made under the statute, is barred by the lapse of time, still, inasmuch as the notice on which that motion was founded was signed by counsel, was served upon all the parties in interest, and was regularly filed, and contained all the requisites of a petition for a rehearing, it will be treated as a petition for a rehearing, and relief given ac- cordingly. In the case of Dillard vs. Thornton, 29 Grat., 392, decided November, 1877. On September 30, 1867, a summons in debt on a single bill was sued out, returnable to the succeeding Octo- ber rules, to which rules it was returned executed on the 3d of October ; and the plaintiff filed his declaration ; and the defend- ant not appearing, a conditional judgment was entered against him, which was confirmed at the succeeding rules held October 28, 1867, and final judgment was entered against the defendant on the last day of the succeeding term of the circuit court, which was October 31, 1867, which was less than one month after the service of the process on the defendant. Held : The entry of final judgment against the defendant within one month after he was served with process was erroneous. According to the true construction of our statutes, where less than one month has elapsed between the service of process and the end of the succeeding term, the conditional judgment will become final at the term next succeeding the expiration of one month after the service of process. The aforesaid judgment of October 31, 1867, having been set aside in the court below on the motion of the defendant, the court should have reinstated the cause upon the docket, with liberty to the defendant to plead, and to set aside the office- judgment upon the usual terms, the said judgment to become final in case of his failure to set it aside. Where under such judgment a fi. fa. is issued, and there is a proceeding by suggestion against persons indebted to the de- fendant, such defendant may, upon proper notice, appear in such proceeding and have the judgment vacated, and all proceedings thereunder quashed. A notice to reverse or correct a judgment by default, or to quash an execution, need not be in writing; all that is requisite- is, that there should be a reasonable notice. It is too late to make the objection in the appellate court that 852 CITATIONS TO THE CODE OF VIKGINIA. the notice was insufficient, when the parties appeared and made no such objection in the court below. The court below having vacated the judgment of October 31,. 1867, upon a motion of the defendant, where all parties ap- peared by their counsel, it had no jurisdiction to correct its action in that regard, but the proper remedy was by appeal. In the case oiDilliards Administrator vs. Dilliard et als., 77 Va., 820, decided October 11, 1883, it was held : Under Code 1873, Chapter 177, Section 5, upon notice to the opposite party, his agent or attorney-at-law, or, in fact, the court wherein the decree is rendered, may, on motion, correct such decree as to any clerical error therein, where (as in the case at bar) there is sufficient in the record to enable the court to safely amend the same. In the case of Saunders vs. Griggs's Administrator et als., 81 Va., 506, decided March 11, 1886, it was held : The notice need not specify the errors for which the court is asked to correct or reverse its judgment by default, or decree in bill taken for con- fessed. In the case of Stotz vs. Collins, 83 Va., 423, decided June 16, 1887. Where the defendant moves the judge in vacation to reverse a judgment by default upon a defective return of a sub- stituted service of the summons, and to remand the case for trial. Held : The court may allow the sheriff to amend his re- turn so as to show a proper service, and dismiss the defendant's motion. In the case of Thompson vs. Carpenter, 88 Va., 702, decided January 28, 1892. A county court, upon the merits, refused to open a road. The circuit court reversed it in 1889, remanded the case and gave costs. Afterwards circuit court set aside its 'previous order, and later, in October, 1890, made an order re- versing the county court's order, and directing the road to be opened. Held: The last order of the circuit court was errone- ous, it being without jurisdiction over the case after its final order of 1889. This section applies only to judgments by default and to decrees on bills taken for confessed, and to cases of mistake or misrecital, or miscalculation, for which no appeal lies to this court. CHAPTER CLXX. In the case of Moran vs. Johnston, 26 Grat., 108, decided April 1, 1875, it was held: After a decree for the sale of real estate to satisfy creditors having liens thereon, and an appeal from that decree by the debtor, the court below, in which the suit was pending, may appoint a receiver to take possession of the property and rent it out, and collect the rents until the further order of the court, etc. CITATIONS TO THE CODE OF VIRGINIA. 853 In the case of Adkins vs. Edwards, 83 Va., 316, decided May 5, 1887, it was held : After decree to sell real estate, and appeal from that decree, the court below may appoint receiver to rent out the real estate. SECTION 3453. In the case of Grymes's Administrators vs. Grymes, 1 H. & M., 404, decided July 10, 1807, it was held : An appeal or superse- deas to a judgment ought not to be granted to any person not appearing to be interested in the matter in controversy. In the case of Cogbill vs. Cogbill, 2 H. & M., 467, decided May 12, 1808, it was held : In a contest about a will, a person who was not a party in the county court may, by becoming in- terested after an appeal to the district court, be admitted a party there and carry up the cause to the court of appeals, but on re- versing the judgment of the district court, and affirming that of the county court, such party can only recover the costs in the dis- trict court. In the case of Wi7ig field vs. Crenshaw, 3 H. & M., 245, decided November 9, 1808, it was held: A supersedeas is the proper remedy only where the error is apparent on the face of the pro- ceedings, and where the person seeking to reverse the judgment is a party in the court below. In the case of Bohn vs. Sheppard, 4 Munf., 403, decided Jan- uary 26, 1815, it was held : Although in controversies concern- ing mills, roads, the probate of wills, and granting adminis- trations, the superior court of law, to which an appeal is taken from the county or corporation court, may hear new evidence upon questions submitted to its revisal by the record, it ought not to receive any evidence but that of the record itself to prove what questions were in fact tried in the court below. The reference to 1 Bob., 263, is an error. The reference to 3 Grat , 468, is an error. In the case of Fairfax vs. Fairfax (Executors), 1 Grat., 36, de- cided May 11, 1850, it was held: To the judgment of a county court refusing to permit a person named as executor in a will to qualify as such without giving security, an appeal demand- able as of right lies to the circuit court. In the case of Seuiter vs. Pugh, 9 Grat., 260, decided August 24, 1852, it was held : An appeal to the circuit court is demand- able as of right from an order of the county court discontinuing a public road. In the case of Jeter vs. Board et als., 27 Grat., 910, decided December 7, 1876, it was held : There may be an appeal as of right from an interlocutory order of a county court in a contro- versy concerning the establishment of a road. In the case of Neale vs. Farinholt, 79 Va., 54, decided April 854 CITATIONS TO THE CODE OF VIRGINIA. 24, 1884, it was held : Judgments of courts of competent juris- diction are always presumed to be right until contrary is shown ; and in appellate court one alleging error in court below must show it in the record in the regular way, else the presumption of correctness must prevail. Where petition of privilege to erect wharf, etc., is contested and dismissed by the county court, petitioner may appeal as of right and give bond during the term. Then the petition is heard de novo on extrinsic testimony in the circuit court. But if petitioner obtains writ of error, judgment of county court must be reviewed on the record ; and if there has been taken to the rulings of the court below no bills of exceptions spreading the evidence and points decided on the record, the judgment will be presumed to be right, and will be affirmed. And so in this court quod judgment of circuit court, except that appeals to the former from the latter are always appeals for errors which must appear in the record. But when petitioner goes to circuit court on writ of error, and circuit court hearing petition on ex- trinsic evidence reverses judgment of county court, and grants the prayer of the petition, and the case comes to this court with- out exceptions, spreading the evidence and points decided on the record, and no error appears in the record of the county court, this court will reverse the judgment of the circuit court and affirm that of the county court. In the case of LeigJiton vs. Maury, 76 Va., 865. Construction of Statutes. Liquor Licenses. County Courts. The object of the statute, Acts 1879-'80, p. 148, was to depart from the former laws on the subject of licenses to sell ardent spirits, as construed by this court in Yeager's case, 11 Grat., 655, where it was held that the county courts had unlimited discre- tion on the subject, and that their decisions were not liable to review by any appellate tribunal. The present statute is man- datory, and the right of appeal is to the circuit court, where it is heard de novo. In the case of Ailstock vs. Page et als., 77 Va., 386, decided April 19, 1883. The purpose of the legislature in framing the act of March 3, 1880, was to require the county courts to grant a license to sell liquor to every applicant who brought his case within the requirements of the law. The purpose and effect of the change by the legislature by its act of March 6, 1882, of the word "shall" to the word "may," was to conform the act of March 3, 1880, so amended, to the law in this respect, when the case of French vs. Noel, 22 Grat., 454, was decided, and to so leave it discretionary with county courts to grant or refuse such licenses. This, however, is a sound legal discretion, subject to the appeal specifically allowed by the statute to the applicant. Before these acts of 1880 and 1882, there was from the de- CITATIONS TO THE CODE OF VIKGINIA. 855 cisions of county courts granting or refusing licenses to sell liquor, under Yeager's case, 11 Grat., 655, and French vs. Noel, supra, no appeal allowed either applicant or contestant. Those acts give to the applicant an appeal to the circuit court only. The failure to give the appeal to others must be construed as conclusive evidence of a purpose to withhold the right of ap- peal from all but the applicant, and the contestant has no ap- peal whatever. So far as this court in Leightons case reached a different conclusion on the question of the right of appeal from judgments of county courts on applications for license to sell liquor, its decision is overruled. A. applied to a county court of E. for license to sell, by retail, liquor at G. P. opposed. By the evidence the court was fully satisfied that A. brought this case within the requirements of the law, and granted the license. P. excepted. The court cer- tified the evidence. P. obtained from the circuit judge a writ of error and super sedeas. On petition of A. to this court for a writ of prohibition to the circuit court, held : The circuit court has no jurisdiction to award a writ of error and supersedeas in this case. The writ of prohibition must be awarded so that the judgment of the county court will remain as if no writ of error and supersedeas had been awarded. Ex parte Lester, 77 Va., 663, decided September 20, 1883. Act of March 6, 1882, amending act of March 3, 1880, and sub- stituting "may" for "shall," was not designed to remit applica- tions to sell liquor to the court's arbitrary discretion. The words "may grant the license" mean the court must grant it in a proper case. Where statute declares a court may do a judicial act, the word " may " must be construed as mandatory when a proper occasion for doing the act arises. To applicant denied liquor license by the act of March 6, 1882, there is given an appeal of right to the circuit court. Under Code 1873, Chapter 178, Section 2, he may, upon the bill of exceptions taken at the trial, apply to the circuit court for a writ of error and supersedeas. Of his two remedies he may resort to either, and if the circuit court also erroneously refuse the license, its decision is reviewable by the court upon appeal or writ of error and supersedeas as in other cases. The applicant is a party directly interested in the decision refusing the license, and comes within the letter of Code 1873, Chapter 178, Section 2. Not so with contestant. Ex parte Yeager, 11 Grat., 655, was founded on the law of 1849, which gave county courts arbitrary discretion as to liquor licenses ; French vs. Noel, 22 Grat., 454, on law of 1870, was based on the same ground; Leighton vs. Maury, 76 Va., 865, on the law of 1880, construing the law as giving those courts a legal discretion, reviewable upon appeal or error upon petition 856 CITATIONS TO THE CODE OF VIRGINIA. of either applicant or contestant; Ailstock vs. Page, ante, p. 386, on law of 1880, amended by act of March 6, 1882, over- rules Leighton vs. Maury, so far as latter allows right of appeal or error to the contestant, but decides nothing concerning the applicant. L. applied to county court of M. for license to sell liquor. The court certified that the applicant proved that he was a fit person, and that his place of business was suitable. L. ap- plied to the circuit court for a writ of error. He denied the writ of error, and endorsed the petition as follows: "The words of the statute (1882) only apply to an applicant, and only allow him right of appeal during the term at which the refusal to allow his application is entered. I therefore decline to grant as asked for in the petition." Held (by a majority of the court) : 1. The applicant brought himself within the requirements of the law, and was entitled to the license applied for. 2. The right of appeal upon errors to the circuit court was not taken away by the statute, and the applicant was entitled, upon the facts manifested by the record, to have the judgment refusing him the license reviewed and reversed by the circuit court. Held (by Lewis, P., and Hinton, J) : From the judg- ment of the county court refusing license under the act of March 3, 1880, amended by the act of March 6, 1882, the applicant is entitled, during the term at which the refusal is entered, to take an appeal of right to the circuit court, and no further, and such appeal is his only remedy. In Haddox vs. County of Clarke, 79 Va., 677, the above cases were affirmed and approved. SECTION 3454. In the case of Lomax vs. Picot, 2 Kand., 247, decided Febru- ary 7, 1824, it was held : An appeal will lie from an order of the chancellor overruling a motion to dissolve an injunction, when the motion has been overruled, on the ground that the plaintiff in equity is entitled to relief on the merits, and fixing the principle on which the cause depends, or where it is neces- sary to avoid expense or delay. In the case of Talley vs. Tyree, 2 Rob., 500, decided Novem- ber, 1843, it was held : An appeal lies to the court of appeals from an order of a circuit court overruling a motion to dissolve an injunction which was improvidently granted. In the case of Heed vs. Cline's Ifeirs, 9 Grat., 136, decided August 2, 1852, it was held : There may be an appeal from a decree directing an issue, when the decree impliedly involves a settlement of the principles of the cause. In the case of Baltimore & Ohio Railroad Company vs. City of Wheeling, 13 Grat., 40, decided November 23, 1855, it was held : A proceeding for a contempt in disobeying an injunction CITATIONS TO THE CODE OF VIRGINIA. 857 is not an order in the cause, but is in the nature of a criminal proceeding, and the judgment in such a proceeding can only be reviewed by a superior tribunal by writ of error, and not always in that way. An order overruling a motion to dissolve an injunction may be appealed from if the principles of the cause are thereby ad- judicated, and this though such an order is made in vacation. The court, for good cause shown, may overrule a motion to dissolve an injunction and continue 1 it to the hearing, without adjudicating the principles of the cause; in which case no ap- peal will lie from the order. When the principles of the cause are adjudicated by such order, an appeal may be refused if the court or judge to whom the petition of appeal is presented deems it most proper that the cause should be proceeded in farther in the court below before an appeal is allowed therein ; and if, in such case, an appeal is allowed, it may be dismissed as prematurely allowed. In a case which is purely an injunction cause, the parties having had time to prepare the case, and having taken testi- mony to support their respective pretensions, and it not being probable that any other facts can be brought into the cause which will affect its principles, a motion was made in vacation to dissolve the injunction, on the ground that it was improvi- dently awarded, and upon the cause as it then stood. The hearing of the motion was objected to, 1. Because a foreign corporation, which was a party, had not answered. 2. Because exceptions had been filed to the sufficiency of the answer of the defendants which were still pending and unde- termined. 3. Because the answer of the defendant, a corporation, was not verified by affidavit. The judge heard the motion, but refused to dissolve the in- junction, and continued it until further order or decree. Held : The refusal of the judge to dissolve the injunction adjudicated the principles of the cause to the extent that the injunction had not been improvidently awarded, and that the cause as it then stood ought to be continued. It is, therefore, such an order as may be appealed from, and it is a proper case for appeal at once. In the case of Richmond & York River Railroad Cmnpany vs. \Vicker, 13 Grat., 375, decided May 24, 1856, it was held: An appeal may be taken from an order made in vacation, over- ruling a motion to dissolve an injunction, when the principles of the cause are thereby adjudicated. In the case of Gooefs Administratrix vs. Bradford, 28 Grat., 309, decided May 1, 1877, it was held: A decree which over- 858 CITATIONS TO THE CODE OF VIRGINIA. rules certain exceptions to a commissioner's report, and confirms the report as to the questions involved in these exceptions, is a decree settling the principles of the cause as to these questions,. from which the party excepting may appeal, although the report is recommitted to the commissioner as to other matters involved in other exceptions. In the case of Elder's Executors et als. vs. Harris et als., 75- Va., 68, decided December 2, 1880. The court of appeals has no jurisdiction to entertain an appeal from an interlocutory decree, except as it is given by the statute. In a pending cause a commissioner is directed to take an account of certain personal property and rents of lands, the report is returned and excepted to, and the court without de- ciding upon any question upon the report directs a jury to try an issue of fact as to what was the value of the personal pro- perty. Held : The decree decides no principle in the cause, and an appeal allowed from it will be dismissed as improvidently awarded. In the case of Kahn vs. Kerngood, 80 Va., 342, decided March 19, 1885, it was held : From an order overruling an injunction and adjudicating the principles of the cause, an appeal lies. Where a deed conveys property alleged therein to be worth over five hundred dollars, and is assailed as fraudulent by a creditor whose debt is less than five hundred dollars as between the grantee and the assailing creditor, the matter in controversy is the value of the property, and not the amount of the debt ; and in the absence of proof to the contrary the alleged must be deemed the actual value of the property. When on bill and answer denying all equity in the bill there is a motion to dissolve an injunction, it is customary to dissolve, but for good cause the motion may be overruled and the injunc- tion continued until the hearing, without any adjudication of the principles of the cause. In the case of Wells vs. Jackson, 3 Munf., 458, decided March 26, 1814, it was held : The plaintiff cannot appeal from a judg- ment in favor of all the defendants except one in a joint actions of trespass, until the suit has been abated, dismissed, or decided as to that one. In the case of Cowling vs. The Justices of Nanseinond County \ 6 Hand., 349, decided May, 1828, it was held: Though a judg- ment of a superior court of law, reversing a judgment of a county court, and directing other pleadings in the cause, be in- terlocutory iii its character, yet the finality of the judgment in the county court imparts its character to the judgment of the supe- rior court, so as to authorize an appeal to the court of appeals. In the case of Janey vs. Blake's Administrator, 8 Leigh, 88, decided February, 1837. On a supersedeas to a judgment of a CITATIONS TO THE CODE OF VIRGINIA. 859 county court, the circuit court reverses the judgment with costs, but omits to give such judgment as the county court ought to have given, and retains the cause. Held : This judgment of the circuit court is to be regarded as its final judgment in its appel- late character, and a supersedeas will lie thereto from the court of appeals. In the case of Priddy & Taylor vs. Ifartsook, 81 Va., 67, de- cided October 8, 1885, it was held : A rule in action at law re- quiring plaintiff to elect by the next term whether he will pro- ceed at law or in chancery is not a final judgment, and this court has not jurisdiction to review it. In the case of Tucker et als. vs. Sandidge (Curator), 82 Va., 532, decided November 11, 1886. In a proceeding at law to contest writing propounded by the executor, S., for probate, a jury was impaneled to ascertain whether the paper-writing was the last will and testament of T. The verdict was that it was not. On motion of the propounder, the verdict was set aside and a new trial awarded. Contestants appealed. Held: The appeal was improvidently awarded and must be dismissed, and the case remanded for trial and final order. This is the case cited from 11 Va. Law Journal, 107. In the case of Cocke's Administrator vs. Gilpin, 1 Rob., 20 (2d edition, p. 22.) Question whether a decree was final or interlocutory. Per Baldwin, J. Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded not as final, but interlocutory. The opinion of the Supreme Court of the United States in Ray vs. Law, 3 Cranch, 179, that a decree for a sale under a mortgage is a final decree, disapproved. In the case of Farneyhough vs. Dickerson, 2 Rob., 582, decided December, 1843. An executorial account being settled by com- missioners under an order of the court of probate, some of the legatees file exceptions to the account, and the court overrules the same, orders the account to be recorded, and adjudges the exceptors to pay the executor's costs. Held : This is a final pro- ceeding or order within the meaning of the statute, to which, on the petition of the exceptors, a supersedeas may be awarded. In the case of Ambrouse's Heirs vs. Keller, 22 Grat., 769, decided October 28, 769, it was held, p. 774 : An appeal from a decree of the court refusing to allow the bill of review to be filed, if the decree was final, brings up for consideration the cor- rectness of the first decree, and if the first decree was interlocu- tory, brings up the whole case. If the petition for an appeal is presented within the period for the limitations of appeals, it is sufficient. 860 CITATIONS TO THE CODE OF VIRGINIA. In the case of Ryaris Administrators vs. McLeod et als., 32 Grat., 367, decided November 20, 1879, it was held, pp. 376- 381 : A decree cannot be in part final, and in part interlocutory, in the same cause, for and against the same parties who remain in court. Whenever a partial relief is contemplated, if anything remains to be done by the court to make the relief effectual, the decree is interlocutory. When no further action is required the decree is final. In the case of Rowling's Executors et als. vs. Rawling et als., 75 Va., 76, decided December 9, 1880, it was held, pp. 87-88 : In a suit for the administration of an estate, a decree which settles the principles of the case and distributes the whole pro- perty to the parties entitled, and directs the payment of the costs, leaving nothing to be done in the cause, is a final decree, though it may possibly become necessary to resort to measures to enforce it. On a bill to review a decree on the ground of error in law, the errors must be such as appear on the face of the decrees, orders, and proceedings in the cause, arising on facts either ad- mitted by the pleadings or stated as facts in the decrees. But if the errors be errors of judgment in the determination of facts, such errors can be corrected only by appeal. In this case, held: The decree was a final decree, and the errors sought to be corrected were not errors of law apparent in the decree, but errors, if errors, of judgment on the deter- mination of fact on which the decrees complained of are based. If the decree in this case was interlocutory, and the bill treated as a petition for a rehearing, after the long acquiescence by the parties in the decrees settling the questions in the cause, and all the circumstances of the case, the rehearing should not be granted. In the case of Jones vs. Turner, 81 Va ., 709, decided Febru- ary 14, 1886. A decree in these words: "The plaintiff failing to prosecute his suit, it is ordered that the same be dismissed," is a final decree. It can only be set aside by appeal, or by bill of review, within the periods limited by statute. In the case of JSransford ( Treasurer) vs. Karn (& Hickson, 87 Va., 242, decided December 11, 1890, it was held : No writ of error lies where judgment is entered upon agreement that judg- ment be entered in accordance with the result of another case. In the case of Ludlow vs. City of Norfolk, 87 Va., 319, de- cided January 16, 1891, it was held : There must be a degree of finality about every judgment taken up to be reviewed by ap- pellate courts. A judgment appointing commissioners to fix a just compensation for land proposed to be taken in condemna- tion proceedings is not final and appealable. CITATIONS TO THE CODE OF VIRGINIA. 861 In the case of Shannon vs. Hanks, 88 Va., 338, decided July 23, 1891, it was held : Under this section an appeal lies to a decree appointing a receiver, whereby a change in possession or control of the property is acquired, though made in vacation. In the case of Norris vs. Lake et als., 89 Va., 513, decided January 5, 1893, it was held : Where a decree decides that the deed attacked by the bill as fraudulent per se is not so, thus overruling one of the grounds on which relief is prayed for in the bill, it adjudicates, to a certain extent, the principles of the cause, and is, therefore, an appealable order. SECTION 3455. In the case of TJie Commonwealth vs. Moore's Administrators, 1 Grat., 294, decided December, 1844, it was held : The statute which limits the right of appeal to the court of appeals to five years applies to the Commonwealth. In the case of Mclntosh (Treasurer) vs. Braden et als., 80 Va., 217, decided February 5, 1885, it was held, p. 222: Act of March 12, 1884, is unconstitutional as far as it confers upon this court jurisdiction in all cases of coupons arising under act of January 14, 1882, without regard to the amount in contro- versy, being in conflict with Article 6 of State constitution, fix- ing minimum jurisdictional amount in cases purely pecuniary at five hundred dollars. See the references to Section 2720. In the case of Carter's Administrators vs. Kelly (Judge], 28 Grat., 787, decided August 2, 1877, it was held : Where a war- rant is brought before a justice upon a claim exceeding twenty dollars, and upon the application of the defendant before trial it is removed to the county court, an appeal lies to the circuit court from the judgment of the county court in the case. In the case of Clark vs. Brown, 8 Grat., 549, decided April, 1852, it was held: In an action on a case for an injury done to the plaintiff's land by the mill-dam of the defendant, though the freehold or franchise was drawn in question, yet if the damages found by the jury are under two hundred dollars, the court of appeals has no jurisdiction of the case. In the case of Snoddy vs. Haskins, 12 Grat., 363, decided May 14, 1855, it was held : The execution is for less than five hun- dred dollars, but the slave is allotted to the widow at a valuation above that sum, she having obtained an injunction to the sale under the execution, which is afterwards dissolved. Qu&re: If the supreme court of appeals has jurisdiction in the case ? In the case of Umbarger and Wife et ah. vs. Watts et als., 25 Grat., 167, decided June, 1874, it was held: A judgment-cred- itor brings a suit in equity to subject his debtor's land to satisfy his judgment, and other judgment-creditors of the same debtor 862 CITATIONS TO THE CODE or VIRGINIA. come into the cause by their petitions to subject the same land. None of these judgments amount to five hundred dollars. Upon a decree against them, dismissing the bill, the court of appeals has no jurisdiction to allow or hear an appeal from the decree, either on the ground that the united judgments amount to more than five hundred dollars, or that the suit concerns the titles or bounds of land. In such a case the decree is to be considered as several as to each creditor. The matter in controversy in reference to the appellate juris- diction of the court of appeals, is that which is the essence and substance of the judgment, and by which the party may dis- charge himself. In the case of Gage vs. Crockett, 27 Grat., 735, decided Sep- tember 21, 1876, it was held: To give the court of appeals jurisdiction of a cause, except in certain cases specified, the judgment or decree must amount to five hundred dollars, prin- cipal and interest, at the date of the judgment or decree, except where the claim of the plaintiff is more than that amount and he applies for the appeal. In the case of Stuart vs. Valley R. R. Co., 32 Grat., 146, decided September, 1879. S. denies that he was a stockholder in the company, and the controversy involved the validity of his sub- scription for the whole of said five shares, which was five hun- dred dollars. Held : That though the judgment against S. for the three hundred dollars and interest was less than five hundred dollars, yet the subject in controversy was the validity of the subscription for the five shares, and the court of appeals has jurisdiction to hear the case upon appeal. In the case of Campbell vs. Smith, 32 Grat., 288, decided September, 1879. S. moved the court below to quash an exe- cution issued against his effects on a judgment recovered against him by C., on the ground that he had paid it. The court allowed a credit on the execution to the amount of four hundred and twenty dollars, and from this judgment C. obtained an appeal to this court. On the motion of S. to dismiss the appeal on the ground that the matter in controversy was not as much as five hundred dollars. Held: That the appeal being by C., it is not the amount of the execution, but the amount of the credit which is the matter in controversy, and this court does not have juris- diction of the casp, and the appeal is dismissed. In the case of Harman vs. City of Lynchburg, 33 Grat., 37, de- cided March, 1880, it was held: The term "matter in contro- versy" as used in reference to the jurisdiction of the court of ap- peals, in Section 2, Article 6, of the Virginia Constitution, means the "subject of litigation, the matter for which suit is brought and upon which issue is joined." When a plaintiff seeks a revision of the judgment below, if CITATIONS TO THE CODE OF VIRGINIA. 863 lie claims in his declaration money or property of the value of not less than five hundred dollars, the court of appeals has juris- diction, although the judgment may be for less, or for the de- fendant. But where the revision is sought by the defendant, the amount of value of the judgment at its date determines the jurisdiction. The onus is upon the party seeking the revision to establish the jurisdiction of the appellate court. In the case of Fink, Mother & Co. vs. Denny et als., 75 Va., 663, decided September, 1881, it was held : Every post-nuptial settlement, when the settler is indebted, is, against his credi- tors, fraudulent and void ; and every settlement will be taken to be voluntary, unless those claiming under it can show that it was made for valuable consideration. In such a case when a bill charges that a deed was voluntary and fraudulent, the answer of husband and wife denying the fraud and setting up the defence of valuable consideration, is not evidence for the respondents, but the defence must be estab- lished by proof. In the case of Batch elder & Collins vs. Richardson, 75 Va., 835, decided November, 1881, it was held: Where on a money demand the difference between the amount decreed to the ap- pellant in the court below and the amount of the claim asserted by him in that court is not sufficient to give this court jurisdic- tion, his appeal will be dismissed. And if the actual amount in dispute does not otherwise appear, the court will look to the whole record for the purpose of determining the jurisdiction. In the case of Southern Fertilizing Co. vs. Nelson, 6 Va. Law Journal, 162, decided March, 1882, it was held: The onus of showing that the appellate court has jurisdiction of a case is always on the appellant or plaintiff in error. Several creditors were seeking to enforce their executions against property which was adjudged in the circuit court not to belong to the judgment-debtor. One of these creditors obtained a writ of error to this judgment, but the record, although show- ing that the aggregate amount of the several executions levied on the property and held by different plaintiffs were more in amount, exclusive of costs, than five hundred dollars, and also that the property levied on and claimed to be liable to the levy, was of greater value than five hundred dollars, yet it did not show that the amount of the execution of the plaintiff in error was five hundred dollars exclusive of costs. Held : The court has no jurisdiction, and the writ of error must be dismissed as having been improvidently awarded. The property levied on does not constitute the "matter in controversy " so as to give the court jurisdiction in the case. In the case of Atkinson (Trustee] vs. McCormick (Trustee] et als., 76 Va., 791. 864 CITATIONS TO THE CODE OF VIRGINIA. 1. Appeals. If a bill be erroneously dismissed as insufficient in law, a party aggrieved thereby may, though a defendant in form, appeal from the decree of dismission. 2. Idem. A trustee in an assignment for the benefit of credi- tors, as a representative of the whole fund, may appeal if ag- grieved thereby, though none of the debts secured separately amount to five hundred dollars. In the case of Buckner vs. Metz et als., 77 Va., 107, decided February 1, 1883. B. has judgment against M. for $1,689.99. M. has only one tract of land, containing eighteen and a quar- ter acres, and worth $91.25. After the judgment M. makes his deed, setting apart his land as his homestead. The bond where- on the judgment was founded, contained no waiver of the home- stead, and was not for the price of this land. Court below dis- missed this bill. On appeal, held : 1. To give this court jurisdiction of the case under Constitu- tion, Article 6, Section 2, "the matter in controversy that for which the suit is brought" the subject of the litigation, and upon which the issue is joined, must either be of the value of five hundred dollars, exclusive of costs, or concerning the title of boundaries of land. 2. Here the suit was brought to enforce the lien of the judg- ment upon the eighteen and a quarter acres owned by M. at the recovery of the judgment, but subsequently conveyed to P. The whole aim, object, and scope of the suit is the value of the land, by payment whereof P. may discharge the land from the judgment. Its value ascertained by the proceedings in the cause is less than five hundred dollars. 3. The matter in controversy, as concerns the appellate juris- diction of this court, is the value of the land, and that being less than five hundred dollars, this court has no jurisdiction. 4. This is not a suit for the land, and no such . controversy "concerning the title or boundaries of land" as would give this court jurisdiction can arise. In the case of breeding vs. Davis et als., 77 Va., 639 and 651, decided July 26, 1883. On the llth of April, 1877, there descended on E., wife of C., real estate in fee. Issue had been born alive of their marriage. D., a creditor of C., who was a non-resident, levied an attachment on C.'s interest in that real estate, and sale thereof was decreed to pay a debt of less than five hundred dollars in amount. Before sale, C. and wife con- veyed the real estate to B., who conveyed same with general warranty and covenant to quiet title, purchase-money withheld until its performance, to M.; B. obtained an injunction to the sale. Held : The controversy is not concerning the debt of C. to D. The question is, "Where is the title to E.'s land vested? " The title to her land is the issue. The jurisdiction to this court is undoubted. CITATIONS TO THE CODE OF VIKGINIA. 865 In the case of Updike's Administrator vs. Lane, 78 Va., 132, decided December 6, 1883, it was held : Where for debt of de- cedent there is no decree in solido against his personal repre- sentatives, but severally against each distributee for his propor- tion of the debt which exceeds five hundred dollars, substantially it is a decree against the decedent's estate, and as it exceeds in the aggregate the minimum jurisdictional sum, an appeal lies from the decree in behalf of the distributees. In the case of Peters & Reed vs. Me Williams et als., 78 Va., 567, decided February 7, 1884, it was held : Where the amount in controversy exceeds the minimum jurisdictional sum, this court has jurisdiction, though the judgment complained of be not in form in solido for that amount, but be divided into lesser sums payable to the persons respectively entitled thereto. In form the judgment is several. In substance it is in solido. In the case of Cox vs. Carr et als., 79 Va., 28, decided April 3, 1884, it was held, p. 54 : When jurisdiction depends upon the amount in controversy, if plaintiff in his declaration or bill claims money or property of greater value than five hundred dollars, he is entitled to his appeal or writ of error, though judg- ment be for less. Yet if the claim is merely colorable in order to give the court jurisdiction, and that was made to appear, jurisdiction would be declined, for jurisdiction can no more be conferred than it can be taken away by improper devices of parties. Sum claimed in bill, with interest at date of final decree, ex- cluding costs, exceeds five hundred dollars, and nothing appears to show that the sum claimed was fixed with the view of acquir- ing jurisdiction in this court. Held : The court has jurisdiction of the appeal. In the case olMcCrowell vs. Burson, 79 Va., 290, decided Au- gust 7, 1884, it was held : To give this court jurisdiction, save in certain cases, the judgment must amount to five hundred dol- lars, principal and interest, at its date, except when plaintiff's demand exceeds that sum, and he applies for the appeal. Though plaintiff's claim, except a sum less than five hun- dred dollars, be admitted by defendant in an agreed statement of facts, and the sum so admitted may determine the jurisdic- tion of this court, yet such is not the case where a special ver- dict finds plaintiff's claim to be less than five hundred dollars, whether court below renders judgment for plaintiff for the sum found by the verdict, or for the defendant. In the case of Smith et ux. vs. Rosenheim, 79 Va., 540, decided October 7, 1884, it was held: The test of jurisdiction in this court to entertain an appeal from a decree of the court below enforcing on land the lien of a judgment, is the amount or value of the judgments. If such amount or value fall below five huu- 866 CITATIONS TO THE CODE OF VIRGINIA. dred dollars this court has no jurisdiction to review such decree. As respects jurisdiction, the case is not altered by the fact that in the progress of the cause in the court below a claim of homestead in the land was asserted by the defendant. For 80 Va., 217, see supra^ this Section. For 80 Va., 342, see ante, Section 3454. In the case of Duffy & Bolton vs. Figgat, 80 Va., 664, decided September 17, 1885, it was held: If plaintiff's claim exceed five hundred dollars, and he apply for appeal, this court hath juris- diction, though the judgment or decree be less. But if the judgment or decree be for less than five hundred dollars, prin- cipal and interest, at the date of the decree, and the defendant apply for appeal, this court hath not jurisdiction. Where purchasers at judicial sale are compelled to pay a second time a part of purchase-money by means of the special commis- sioner's failure to give required bond, and his default in paying over money collected of them, the jurisdiction of this court to hear their appeal depends on the amount of the defalcation, and not on the amount of his official bond. In the case of Whitmer's Heirs vs. Spitzer et als., 81 Va., 64, decided October 8, 1885. A decree requiring S. to pay nine hundred and seventy-five dollars to equalize the four other heirs with his wife, he paid the money. ^ Later, an inquiry resulted in a decree that the wife of S. was entitled to an equal share of that sum, and that the four other heirs refund to S. one-fifth thereof. Held : This is a decree for payment of a less sum of money than constitutes the minimum jurisdictional amount, and the appeal must be dismissed. In the case of Cralle vs. Cralle, 81 Va., 773, decided April 25, 1886. Pending an appeal from decree to which a sviper- sedeas has been issued, and perfected by bond, the only orders the court below can make in the suit are such as are needed to preserve the rem in litigation. Code 1873, Chapter 105, Section 10, authorizes trial court pending the suit to compel the man to pay the sum necessary to maintain the woman and enable her to carry on the suit; yet it does not justify it to make any order for such purpose, pending appeal here from decree rendered in same suit for alimony. Pending a divorce suit, trial court decreed alimony to the woman. From the decree appeal was taken and a superseded* awarded. Pending the appeal trial court decreed to the woman an allowance of one hundred and fifty dollars to enable her to defend the suit in this court, and twenty-five dollars a month for her maintenance during the pendency of the suit. On ap- peal from last decree. Held : 1. The court below was authorized to make the decree last appealed from. CITATIONS TO THE CODE OF VIRGINIA. 867 2. The amount decreed, however, being less than the minimum jurisdictional sum, the appeal must be dismissed. 3. The appellant's remedy is by writ of prohibition from this court to the execution of the decree. In the case of McCarthy & Hurlburt vs. Hamaker et als., 82 Va., 471, decided October 7, 1886, it was held : Where appellant's -debt, as claimed in his bill and as allowed by the master and con- firmed by the court, is less than the minimum of appellate juris- diction, that debt cannot be supplemented so as to give this court jurisdiction by the appellant's taking an assignment of another debt, unless the assignment was recognized by the master in his report, and by the court in its decree confirming the same. In the case of Thompson vs. Adams, 82 Va., 672, decided December 9, 1886, it was held: Where several judgment-cred- itors with judgments each below five hundred dollars unite in one suit to enforce their liens on the judgment-debtor's lands, and their bill is dismissed by the court below, this court has no jurisdiction to entertain their appeal. That the land has been conveyed away by a deed alleged to be fraudulent makes no difference as to the appellate jurisdiction. This is the case cited from 11 Virginia Law Journal, 217. In the case of Witz vs. Osburn and Wife, 83 Va., 227, decided April, 1887, it was held: Where the claims of all the appellants but one are below the appellate jurisdiction, but the questions as to all are identical and their interests inseverable, this court will retain the appeal for all. This is the case cited from 11 Virginia Law Journal, 585. In the case of Cabell & McGuire vs. Southern Mutual In- surance Company, 10 Va. Law Journal, 729, decided May 6, 1886. The Southern Mutual Insiirance Company conveyed to C. <'.ir from a bill of exceptions properly taken. In the case of Southwest Improvement Company vs. Smith's Administrator, 85 Va., 306, decided August 23, 1888, it was held: Where motion to set aside verdict as coatrary to evi- 886 CITATIONS TO THE CODE OF VIRGINIA. dence is overruled, the mover excepts and evidence is certified, this court will consider the case as if it were a demurrer to evi- dence by the exceptor under this section, though lower court rendered its judgment before this code took effect, because this section takes away no vested right, but merely prescribes a rule of practice. In the case of Tucker vs. Sandidge (Curator), 85 Va., 546, decided December 13, 1888. When at trial jury finds against the will, verdict is set aside on motion of plaintiff; at second trial jury finds for the will. Motion for defendants to set aside the verdict is overruled, and the defendants having excepted, and the evidence (not the facts) certified on appeal. Held : Un- der this section plaintiff in error's exception must, in consider- ing the decision of the court below setting aside the first verdict, be treated as a demurrer to evidence, and all his oral evidence treated as waived, and all his adversary's evidence, and all fair inferences therefrom, be treated as true, instead of considering the whole evidence at the first trial as under the rule before this section was enacted. In the case of Adams et als. vs. Hays et als., 86 Va., 153, de- cided June 13, 1889, it was held : Plaintiff sold the defendant's bricks at an agreed price per one thousand, "kiln count." For the former it was testified that "kiln count" meant an estimat- ed count of the brick while in the kiln ; for the latter, that an actual count of the brick from the kiln was meant. Held : Un- der this section, prescribing as the rule of decision the rule as upon demurrer to evidence, "kiln count" must be construed to mean a count by estimation while the bricks were in the kiln. In the case of Mears <& Lewis vs. Dexter, 86 Va., 828, decid- ed April 17, 1890, it was held : This section requires the appel- late court to look first to the proceedings and the whole evi- dence on the first trial, and, if there be error in setting aside the verdict on that trial, to set aside and annul all proceedings subsequent to said verdict, and to enter judgment thereon. Held: The rule of this act, which operates retrospectively, ap- plies to all cases which, though decided by the court below be- fore, yet come before this court on error since, the passage of said act. In the case of Woods vs. The Commomcealth, 86 Va., 929, de- cided June 19, 1890, it was held : Where the evidence, not the facts, is certified, the appellate court must dispose of the case as on a demurrer to evidence. In the case of Vawter vs. The Commonwealth, 87 Va., 245, decided December 11, 1890, it was held: This court cannot re- view a refusal of the court below to give an instruction, when the evidence or the facts are not certified. In the case of Tucker vs. The Commonwealth, 88 Va., 20, de- CITATIONS TO THE CODE OF VIRGINIA. 887 cided June 18, 1891, it was held: "Where exceptor's evidence does not conflict with exceptee's, or with any inference which the jury might have reasonably drawn therefrom, such evidence is not waived by the rule under this section. In the case of If. & W. Railroad Co. vs. Groseclose's A d- ministrators, 88 Va., 267, decided July 16, 1891, it was held: Where the evidence, and not the facts, is certified, and the de- fendant in such action is the exceptor, any evidence that it may have adduced tending to show contributory negligence on the part of the exceptee, and contrary to the exceptee's evidence, must be rejected. In the case of Lyles vs. The Commonwealth, 88 Va., 396, de- cided November 12, 1891, it was held: Where the evidence, and not the facts, is certified, the accused must be considered here, on review of the refusal of the court below to grant a new trial, as admitting the truth of all the Commonwealth's evidence, and as waiving all his own which conflicts therewith, even where one of the Commonwealth's witnesses admitted at the trial that she had made different statements. In the case of Blakeley et als. vs. Morris, 89 Va., 717, decided March 9, 1893. As the plaintiff must recover, if at all, upon the strength and sufficiency of his own title, and not upon the in- sufficiency of the defendant's title, and the evidence adduced in the cause being contradictory, the jury found for the defendant. Held: That under the rule, Section 3484, this court will not disturb the verdict, there having been no correct instructions on the law given to the jury. SECTION 3485. In the case of Moss and Wife et als. vs. Moorman's Adminis- trator et als., 24 Grat., 97, decided November, 1873, it was held: There is a decree against an administrator and his sureties ; and on appeal by plaintiffs decree is reversed, and the administrator is held liable for a larger amount than was decreed against him ; though the decree is also reversed in favor of a purchaser of land from an administrator. Whilst the appellate court reverses the decree so far as it is erroneous, it will affirm it so as to con- tinue the lien of the decree for the security of the pro tanto of the amounts which may be found due by the parties respectively against whom the said decree was rendered. In the case of Thompson vs. Chapman, 11 Va. Law Journal, 667, decided April 21, 1887, it was held : Where a decree is re- versed in part and affirmed as to the residue, the reversal in part does not destroy the lien of so much of the decree as is unreversed or affirmed. But this principle does not apply to a judgment at law which has been reversed and a new trial awarded. 888 CITATIONS TO THE CODE OF VIRGINIA. SECTION 3486. For the reference to 10 Leigh, 394 and 400, see ante, Section 3470. In the case of Jeter vs. JLanghorn, 5 Grat., 193, decided July, 1848, it was held : An injunction is dissolved, and on appeal the decreee is affirmed. Ten per cent, damages is to be computed from the time when the injunction was granted to the date of the dissolution thereof in the court below ; but not for the time it was pending in the appellate court. SECTION 3487. In the case of Smith vs. Hutchinson et als., 78 Va., 683, de- cided March 13, 1884, it was held : On reversal or affirmance of judgment of county court, the cause must be retained by circuit court, and not remanded except by consent or for cause. In the case of Pettit vs. Cowherd, 83 Va., 20, decided March 10, 1887, it was held : On reversal or affirmance of judgment of county court the cause must be retained in circuit court, and not remanded except by consent or for cause, which consent, or cause, must be stated in remanding order. SECTION 3488. In the case of Hudson vs. Ross & Co., 1 Wash., 74, decided at the spring term, 1792. A motion was made that the clerk might be permitted to give a certificate of the judgment to be entered in the district court then sitting. Held: This is a motion which is never granted without strong reasons. In gen- eral it is not permitted, as we may change our opinions during the term. It is often granted if the delay would endanger the debt. In the case of The Sank of Virginia vs. Craig, 6 Leigh, 399, decided May, 1835, it was held: The court cannot examine the propriety of a decree made at a former term inter paries, nor set aside such decree of a former term, on the ground that it de- cided matters coram nonjudice at the time. In the case of Wynn vs. Wyatfs Administrators, 11 Leigh, 584, decided February, 1841, it was held : After this court had reversed a judgment and remanded a case to the court below for further proceedings there, and certificate of that judgment had been sent by the clerk to the court below, a rehearing was, on motion of defendant in error, directed here, whereupon this court revoked the certificate of its former judgment, and di- rected the court below to surcease proceedings till further or- der; and plaintiff in error, being now a non-resident, ordered that service of this order on the counsel who appeared for him on the former argument should be as sufficient service. CITATIONS TO THE CODE OF VIRGINIA. 889 SECTION 3490. In the case of White vs. Atkinson, 2 Call, 876 (2d edition, 316), decided November 15, 1800, it was held: The court of chancery cannot make any alterations in the terms of a decree of this court certified therein, in order that a final decree may be made in the cause. In the case of Price vs. Campbell, 5 Call, 115, decided April, 1804, it was held : The court of chancery cannot, upon the same facts, alter a decree of the court of appeals. In the case of Murdoch vs. Hendrons Executors, 4 H. & M., 200, decided October, 1809, it was held : If a cause be remanded to an inferior court, and a new trial be directed, the superior court must be presumed to have thought the declaration suffi- cient; consequently, on the new trial, or on a second appeal, no exception can be taken to the appeal. In the case of Campbell vs. Price et als., 3 Munf., 227, decided April 1, 1812, it was held: The court of chancery cannot correct, on motion or by bill of review, any error apparent on the face of the proceedings in a decree which has been affirmed by the court of appeals. In the case of Lanier, Shelton & Cocke vs. Cocke, Crawford & Company, 6 Munf., 580, decided March 30, 1820, it was held: After the court of appeals has passed upon a case and remanded the cause for a new trial upon the general issue, a demurrer to the declaration, or a plea in abatement, upon the ground that the Christian names of the respective parties are not mentioned therein, ought not to be received. In the case of Epes's Administrator vs. Dudley, 4 Leigh, 145, decided January, 1833, it was held: If proceedings on a judg- ment at law be enjoined by a court of chancery, and the in- junction be afterwards dissolved, and on appeal taken to the court of appeals, the order of dissolution is affirmed in omnibus; an execution may be sued out on the judgment at law, before the decree of affirmation is entered up in the court of chancery. In the case of Towner vs. Lane's Administrator, 9 Leigh, 262, decided February, 1838, which is here quoted as an authority, the judges were equally divided, so the case is valueless. In the case of Deneufville's Administrator vs. Travis (Ad- ministrator), 5 Grat., 28, decided April, 1848. Upon an appeal from a final decree made upon the report of a commissioner to which there were various exceptions by the appellant to the report ; and the decree is reversed and the cause remanded for the necessary inquiries to be made in relation to the subject of that exception. Held : The decree concluded all other ques- tions. In the case of Burton vs. Brown's Executors, 22 Grat., 1, de- cided March 20, 1872, it was held : An appeal by one party 890 CITATIONS TO THE CODE OF VIKGINIA. from a decree overruling some exceptions to a commissioner's report, and sustaining others, and recommitting the report, brings up the whole cause ; and the decree of the court of ap- peals, affirming the decree of the court below, concludes all questions previously decided, whether in favor of the appel- lants or appellees. In the case of Campbell's Executors vs. Campbell's Executor, 2"2 Grat., 649, decided September 25, 1872, it was held: The decree of the court of appeals upon a question decided by the court below is final and irresistible ; and upon a second appeal in the cause, the question decided upon the first appeal cannot be reversed. In such a case the conclusiveness of the decree of the court of appeals is the same, whether the first appeal was from a final or interlocutory decree of the court below. All the decrees of the appellate court are in their nature final, except, possibly, where that court disposes only of part of the case at one term and reserves it for further and final action at another. In the case of Sank of Old Dominion vs. Me Veigh, 29 Grat., 546, decided December 13, 1877, it was held, p. 554-'55. It is settled that whatever is decided here upon one appeal cannot be re-examined in a subsequent appeal of the same suit. Such subsequent appeal brings up for consideration the proceedings of the court below after the mandate of this court. The reference to 32 Grat., 657-'61, is an error. For the reference to 76 Va., 892 and 894, see ante, Sec- tion 3475. In the case of New York Life Insurance Company vs. C. TP. Clemmit et ux., 77 Va., 366, decided April 5, 1883, it was held, p. 373-'74 : It is a settled rule that decrees of the court of ap- peals on questions decided by the court below are conclusive, and on second appeal those questions cannot again be raised. In the case of Frazier vs. Frazier et als., 77 Va., 775, decided October 11, 1883, it was held, p. 784: Decree of appellate court upon questions raised by court below is final and irre- vocable. Upon second appeal, questions decided by the first cannot be reversed. Its decision is not only final as to the decree appealed from, but also as to all prior orders and de- crees in the cause between the appellants and appellees. But this rule has, of course, no application where a different ques- tion arises, or the same question arises between different parties. In the case of McCormicKs Executor vs. Wrighfs Executor, 79 Va., 524, decided October 7, 1884, it was held, p. 533 : It is a settled rule that decrees of the court of appeals on questions decided by the court below are conclusive, and on second ap- peal those questions cannot again be raised. In the case of Ejfinger vs. Kenney (Trustee], 79 Va., 551, de- CITATIONS TO THE CODE OF VIRGINIA. 891 cided November 20, 1884, it was held, p. 553 : Where objection for want of liens was not raised in court below when decree of sale was entered, and on appeal that decree has been affirmed, such affirmance is a final determination between the parties of all questions which were or might have been raised on that ap- peal. In the case of Cobbs (Assignee) vs. Crilchrisfs Administrator et als., 80 Va., 503 and 507, decided June 11, 1885 : By decree H.'s land was subject to certain liabilities. H. devised his lands to L. and to J. Between them partition was made. L. was ad- judicated a bankrupt. C., her assignee, became a party to the suit. In 1876 a decree apportioned the liabilities between the lands of L. and J., and directed sale. Sale was made and pro- ceeds collected. Then a personal fund amenable to same lia- bilities turned lip and was applied, causing a surplus. J. and one S. had a contest for said surplus, which, in 1882, was ad- judged to J. During this contest C. was neutral, but more than two years after the accrual of his right of action, he, as L.'s assignee, claimed said surplus as part of L.'s assets, be- cause L.'s lands had contributed more than their proportion to satisfy said liabilities. Court below, in 1883, decreed against C. On appeal, held: Decree of 1883 could not be reversed without disturbing decree of 1876, affirmed by dismissal of appeal. Suit by assignee for said surplus was barred by lapse of two years before the suit was brought. In the case of Stuart < Palmer vs. Preston et als., 80 Va., 625, decided June 18, 1885, it was held : It is the well-settled rule of this court, that a question which has been decided upon the first appeal in any cause cannot be reviewed or reversed upon any subsequent appeal in the same cause. In the case of Smith vs. Snyder, 82 Va., 614, decided Decem- ber 2, 1886, it was held : "Where instructions given, or verdict rendered, at trial in the court below, are, on appeal, pronounced erroneous, it is improper, at a subsequent trial, the evidence be- ing the same, to give the same instructions, or to enter up judg- ment on the same verdict. In the case of Diehl vs. Marchant, 87 Va., 447, decided Feb- ruary 12, 1891, it was held: When matter alleged in the second suit between the same parties was either actually litigated, or might have been, under the issues, in the first suit, the judg- ment in the first may be set up as a bar to the second suit. In the case of Foster vs. T/ie City of Manchester, 89 Va., 92, decided June 16, 1892, it was held : A judgment of a court of competent jurisdiction upon a question directly involved is con- clusive of that question in another suit between the same parties. In the case of Lore et als. vs. llatsh et als., 89 Va., 277, decided July 6, 1892, it was held: Where a decree has been affirmed 892 CITATIONS TO THE CODE OF VIRGINIA. by this court on appeal, it becomes res adjudicata, and no error in it can be corrected by a rehearing in the court below. In the case of Carter vs. Hough & Co. et als., 89 Va., 503, decided December 15, 1892, it was held: Matters once deter- mined on appeal in this court cannot be reopened ; and this is true, whether those matters were actually adjudicated or not; if they could have been adjudicated in that suit, they are equally settled. SECTION 3492. In the case of Armistead vs. Bailey et als., 83 Va., 242, de- cided April, 1887, it was held : Neither bills of review nor peti- tions for rehearing lie for assignees. CHAPTEE CLXXI. SECTION 3493. In the case of Jones's Executors vs. Clarke et als., 25 Grat., 642, decided January 7, 1875, it was held, p. 675 : A demurrer to. a bill in equity, in the form given in the statute, is sufficient. SECTION 3494. In the case of Newel vs. Wood (Governor), 1 Munf., 555, de- cided May 9, 1810, it was held : The court of appeals has juris- diction to revise any judgment on a bond, provided the penalty amount to the sum limited by law. The statute was passed to change this. In the case of Heathe (Executor) vs. Blaker & Kimbler, 2 Va. Cases, 215, decided by the General Court, June, 1820, it was held : Debt on a penal bill for one hundred dollars conditioned to pay forty-seven dollars. The defendant moved the court to stay proceedings, because the penalty was inserted for the pur- pose of giving the court a jurisdiction which the law withheld. Decided that the superior court ought not to sustain the motion, but declined deciding whether the fact alleged would avail if pleaded. In the case of Fleming vs. Toler, 7 Grat., 310, decided April 21, 1851, it was held : The penalty and condition of a bond for the payment of money is in the same sum. It is proper to treat it as a single bill, and to give judgment for the amount of the bond with interest from the time of payment. SECTION 3495. See the references to Section 2990. CITATIONS TO THE CODE OF VIRGINIA. 893 TITLE XLIX. CHAPTER CLXXII. SECTION 3520. In the case of Craigeris Executor vs. Lobb, 12 Leigh, 627, de- cided August, 1841, it was held: Though no action lies for clerk's fees, till they shall be put into an officer's hands for col- lection, and he has returned that they cannot be levied by dis- tress, yet the clerk may set them off against an action on his bond to the party from whom they are due. And if the clerk's fees were never put into an officer's hands for collection, there was not until the statute of 1839 any limitation to the clerk's claim for them. CHAPTER CLXXIII. SECTION 3539. In the case of Vance 'vs. Bird et als., 4 Munf., 364, decided February 1, 1815, it was held : Upon a rule requiring security for costs, if sufficient security be tendered in court, at the first calling, after the expiration of the sixty days, it ought to be re- ceived, and the suit ought not to be dismissed. In the case of Jacobs vs. Sale, 1 Va. (Gilmer), 123, decided October 19, 1820, it was held : Error to rule a defendant to trial on a motion for continuance, when the plaintiff has failed until the term at which the motion is made to give security for costs, after a rule to do so. In the case of deed's Lessee vs. See, 1 Va. Cases, 123, decided by the General Court, it was held : Where plaintiffs ordered by court to give security for costs within sixty days, but failed to do so, but before the court dismissed the suit offered the requisite security, it should have been accepted and the suit retained. In the case of Evans vs. Bradshaw et als., 10 Grat., 207, de- cided July, 1853, it was held : Upon a motion against a plaintiff in equity for security for costs, a bill of exceptions is taken to the opinion of the court, which states the evidence introduced on the motion. There is no objection to this mode of putting the evidence upon the record. In the case of Anderson vs. Johnson et als., 32 Grat., 558, de- cided November, 1879, it was held, p. 573 : Where, on the mo- tion of the defendant in an attachment case, the plaintiff, who is a non-resident of the State, is ordered to give security for the costs of the suit within sixty days, and fails to do so, his bill should be dismissed, and it is error to hear and decide the case. On reversing the decree and remanding the cause, the appel- late court will not direct the suit to be dismissed at once for the 894 CITATIONS TO THE CODE OF VIRGINIA. failure of the plaintiff to give security for costs, but will direct that he be allowed a reasonable time to comply with the order. SECTION 3543. In the case of Bills vs. Harris, 2 Va. Cases, 26, decided by the General Court, November, 1815, it was held : In assault and battery, the jury found for the plaintiff six cents and the costs. They had no right, under our statute, to find the costs. SECTION 3544. In the case of Maitland vs. McDearman, 1 Va. Cases, 131, decided by the General Court, it was held : Where the amount sued for was over one hundred dollars and verdict was for less the court held: Verdict should be arrested because the verdict did not show that the account was reduced by set-off. In the case of Neff vs. Talbot, 1 Va. Cases, 140, decided by the General Court, it was held : Where the arbitrators found an award of one hundred dollars, the award was confirmed and made the judgment of the court. In the case of Pendred's Administrators vs. Pendred, 2 Va. Cases, 93, decided by the General Court, November, 1817, it was held : Where damages for breach of contract are uncertain, and therefore unknown, till ascertained by verdict, the superior court has jurisdiction, although the verdict is for less than one hundred- dollars. In the case of Larowe vs. Harding 's Administrators, 2 Va. Cases, 203, decided June, 1820, by the General Court, it was held : Where a debt is reduced by payment below one hundred dollars, the superior court has not jurisdiction to render judg- ment on the verdict. In the case of Acker's Assignee vs. Highley, 2 Va. Cases, 255, decided by the General Court, June, 1821, it was held : Debt for a sum more than one hundred dollars, reduced to a sum below it by a set-off, the superior court has jurisdiction to render judgment on the verdict. SECTION 3545. In the case of Middleton vs. Johns, 4 Grat., 129, decided July, 1847, it was held: A general judgment for costs against two defendants in ejectment is proper, though one of them did not enter himself a defendant until there had been one trial of the cause, and a large portion of the costs had been incurred. SECTION 3546. In the case of Pates vs. St. Olair, 11 Grat., 22, decided April, 1854, it was held : It was not improper, even before the act of 1849, Code, p. 706, Section 9, to render judgment for costs in CITATIONS TO THE CODE OF VIRGINIA. 895 favor of the defendant against a person for whose benefit a suit was brought, when the defendant succeeded in the case. In a suit brought in the name of one person for the benefit of another, a judgment stating that the parties appeared by their attorneys, and that, by consent, the suit was dismissed, and judgment was rendered for defendant's costs against the person for whose benefit the suit was brought, it must be held that the consent is the consent of the latter, and that the judg- ment is proper. SECTION 3552. In the case of Thon vs. The Commonwealth, 11 Va., 289, de- cided March 15, 1883, it was held: Act approved March 12, 1878, Acts 1877-78, Chapter 183, Section 2, page 174, provid- ing that the attorney-general shall receive a salary of $2,500 annually for his services, and shall not be entitled to any fur- ther compensation therefor, refers to salaries payable out of the State treasury, and not to fees taxed in the costs as fees of at- torneys on the winning side in any case, under Code, Chapter 181, Section 13. The laws requiring such fees to be taxed for the benefit of the Commonwealth have never been repealed nor amended, and the losing suitor has them to pay, whether they go into the State treasury or to the attorney-general. But the laws requiring such fees to be taxed in the costs and to be paid to said attorney-general are also nnrepealed. SECTION 3554. In the case of Mahone vs. Long, 3 Rand., 557, decided De- cember, 1825, it was held : Where the appellant fails to bring up a copy of the record within the time limited by law, and it is filed by the appellee, who obtains a dismission of the appeal, the fee of the clerk of the chancery court for the copy of the record so filed may be taxed in the bill of costs as a part of the cost of defending the appeal; and the same rule exists where the record is brought up by the appellant. In the case of Leachman vs. The Overseers of the Poor of Prince William County, 2 Va. Cases, 399, decided by the Gen- eral Court, June, 1824, it was held : If, on a motion in a county court, on the common law side thereof, it becomes proper to refer to a commissioner long-standing and perplexed accounts, for the purpose of facilitating the investigation of the cause to the parties and to the court, and such reference is made by order of the court, and with the assent of the parties, the fee of the commissioner for stating and reporting the accounts ought to be taxed in the bill of costs, and a judgment for those costs ought to be rendered against the party who had to pay the general costs. If such taxation is made, and noted by the clerk of the county court at the foot of the record, it will be 896 CITATIONS TO THE CODE or VIRGINIA. presumed by the appellate court that the order for such taxa- tion was made by the court itself (it not being a matter of course with the clerk to include such fee in his taxation of costs), though it does not appear on the minutes of the court. TITLE L. CHAPTER CLXXIV. SECTION 3557. The case referred to as 2 Leigh, 84 and 101, follows the statute, not construes it. In the case of Windrum vs. Parker & Goodwyn, 2 Leigh, 361, decided October, 1830, it was held: The statute giving common law executions on decrees in chancery gives the courts, of chancery the superintendence and control of all such pro- cess, and power to correct irregularities and abuses in it. The courts of chancery may quash executions irregularly sued out on their decrees, and forthcoming bonds taken under them, on motion made on notice, in a summary way. For the references to 75 Va., 116 and 126-'27, and 76 Va., 173 and 176, see ante, Section 3397. In the case of Hutcheson vs. Grubls, 80 Va., 251, decided February 10, 1885, it was held: A decree for specific property, or requiring payment of money, has the effect of a judgment, and persons entitled thereto are judgment-creditors. In the case of Cheatham vs. Cheatham' s Executor, 81 Va., 395, decided January 2$, 1886, it was held: If husband and wife agree to sell and convey wife's lands, the agreement cannot be specifically enforced in a court of equity : not against wife, be- cause she is incapable of binding herself by an executory con- tract; not against husband, because coercion against him would be moral coercion against her; and not against the other party, because then the obligation of the contract would not be mutual and the remedies equal. Fiduciary cannot be compelled, by summary process of rule, to show cause why he shall not be fined and imprisoned to pay a decree against him as such, especially where his accounts have not been settled in the suit, and it has not been shown that he has assets in his hands. SECTION 3561. In the case of Old Dominion Granite Company et als. vs. Clarke et als., 28 Grat., 617, decided March, 1877. C. obtained a judgment against B. & P., as partners, trading under the firm of B. & Co. He delivered an abstract of his judgment to the clerk of the county court of the county wherein there was a CITATIONS TO THE CODE OF VIRGINIA. 897 tract of land belonging to P., and the same was properly entered by the clerk in the body of the judgment docket, but was not indexed in the name of P., but merely in the name of B. & Co. Subsequently P. sold and conveyed his land to O., who had no knowledge of C.'s judgment. Upon a bill filed by C. to subject the lands in the hands of O. to the lien of his judgment. Held : That indexing was not a necessary part of the docketing, and that the land was therefore subject to the lien of C.'s judgment. SECTION 3566. In the case of Newman vs. Chapman, 2 Band., 93, decided December 6, 1823, it was held : The doctrine of lispendens does not rest upon the presumption of notice, but upon reasons of public policy; and in cases in which it operates, applies where there is no possibility that the party should have notice of the pendency of the suit. In the case of French vs. The Successors of the Loyal Company, 5 Leigh, 627, decided July, 1834, it was held: A lispendens can only affect a purchaser of the subject in controversy from a party to the suit. In the case of Smith vs. Brown's Administrators, 9 Leigh, 293, decided March, 1838, it was held : If, pending a suit in chancery for recovery of slaves and their profits, one of the slaves is sold by the defendant, and the plaintiffs ask and obtain a decree against the defendant for the value of the slave sold, they thereby waive the claim against the purchaser pendente lite for the specific property. In the case of Page et als. vs. Booth et als., 1 Rob., 169 (2d edition, 170). Upon a bill in equity to charge property which has passed into the hands of third persons without notice of the complainant's claim, the court being called upon to investigate transactions which occurred thirty years before the institution of the suit, and, from the lapse of time and the obscurity of the transactions, it being impossible to arrive at the truth of the case. Held : The bill ought to be dismissed. A person entitled to have an assignment of a title bond and the possession of the property upon paying a certain sum, trans- fers his right, and his assignee pays that sum, and assigns his right to another, who obtains title to the property according to the bond; after which the person first mentioned files a bill, alleging that his transfer was in consideration of money which has never been paid him, and claiming that the lien of a vendor for purchase-money exists in his favor, upon the property in the hands of the subsequent holders, who purchased, as he alleges, with notice. Held : No such lieu exists. In the case of Philips et als. vs. Williams, etc., 5 Grat., 259, decided October, 1848, it was held : Land on which the annuity 57 898 CITATIONS TO THE CODE OF VIKGINIA. is a charge, having been sold during the pendency of the suit, it will be directed to be sold to satisfy the arrears of the annuity, without noticing thependente lite purchaser. In the case of Carrington et als. vs. Dieder, Norvell & Co., 8 Grat., 260, decided October, 1851, it was held : Creditor of a deceased debtor may proceed by foreign attachment against the heirs residing abroad, to subject land or its proceeds in the State descended to them from the debtor. So he may proceed against them as absent defendants in equity to marshal the assets, and thus subject the land descended to them. Heirs residing out of the State having instituted a suit for a sale of land descended to them, and the same having been sold and the proceeds being in the hands of a commissioner directed by the court to collect them ; a creditor of the ancestor seeking to subject these proceeds to the payment of his debt should apply by petition to the court to be made a party in the cause, and to have the fund applied by proceedings in that cause to the payment of his debt; or if he proceeds by foreign attachment the commissioner should be a party, and be re- strained by the endorsement on the process from disposing of the proceeds; or if the creditor proceeds against the heirs to marshal the assets, there should be an injunction to restrain the commissioner from paying away the money in his hands. And the commissioner, though a party, as administrator of the debtor, to the creditor's suit, but having in fact no knowledge of the object of it, paying over the money to the heirs under the order of the court, whose commissioner he was, will not be affected by the lit pendent of the creditor's suit so as to be held liable to pay it over again to the collector. In the case of Cirodevs. Buchanan's Administrators, 22 Grat., 205, decided June 12, 1872, it was held, p. 220 : After Us pen- dens tiled, all rights from or under the defendant to the subject in controversy, pending the suit, are subject to any decree which may be made in the suit, except so far as a purchaser without actual notice is protected by the statute. In the case of Briscoe vs. Ashby, 24 Grat., 454, decided March, 1874, it was held : Mrs. A. and her children claiming under the decree of the Circuit Court of Fauquier, the case does not come within the operation of the registry act, Code of 1860, Chapter 119, Sections 4 and 5, and the decree is not necessary to be recorded in Culpeper to protect them against the claim of T. and B., claiming to be purchasers for value with- out notice. Nor is the decree of the Fauquier court such a de- cree as is require 1 to be recorded by the first and eighth sec- tions of Chapter 186, Code of 1860. Nor does the fifth section of said Chapter 186, which requires a Us pendensio be recorded, apply to the decree in the Fauquier suit. CITATIONS TO THE CODE OF VIRGINIA. 899 In the case of Cammack vs. Soran et al., 30 Grat., 292, de- cided March, 1878, it was held : The consideration for the sale and conveyance of land is a debt due at the time by the vendor to the purchaser; the purchaser is a purchaser for valuable consideration within the meaning of the recording acts; and such a purchaser, having purchased and received a conveyance of the land, without notice of an attachment which had been previously levied upon it, but which had not been docketed, is entitled to hold the land free from the lien of attachment. In the case of Easley et als. vs. Barksdale et al., 75 Va., 274, decided February 10, 1881, it was held : Lands sold and con- veyed by an heir and devisee after such report filed will be held liable in the hands of a purchaser for the debts of the deced- ent, while lands sold and conve} 7 ed to a pendente lite purchaser without actual notice of the Us pendens will not be bound by such lis pendens, unless the provisions of the statute, Chapter 182, are complied with. In the case of Hum vs. Keller, 79 Va., 415, decided Septem- ber 25, 1884, it was held : Independent of statute, a purchaser pendente lite from a party to a suit of the subject thereof takes it bound in his hands by any decree rendered against his vendor in that suit touching said subject. By statute such purchaser is not bound by such decree until the Us penden* is recorded, as thereby directed, provided he purchased without actual no- tice of the pending suit. In the case of Dams et al. vs. Bonney et al., 89 Va., 755, decided March 16, 1893, it was held : A creditor at large, suc- cessfully suing to set aside a deed conveying property in fraud of creditors, has a lien on the property from the time of suit brought, and a creditor who comes into this suit shall have a like lien from the filing of his petition, but, as against creditors, with or without notice, and purchasers for value without notice, from the time of his filing his memorandum of lis pendens. Such lien is a lien only upon the property conveyed, and not, like the lien of a judgment, on all of the debtor's estate. SECTION 3567. In the case of Mutual Assurance Society vs. Stannard et als., 4 Muni., 539, decided January 21, 1815, it was held : The lien of a judgment upon the lands of the party relates back to the commencement of the term at which it was obtained. If a judgment-creditor (without suing out execution) file a bill in chancery to get satisfaction out of the real and personal property of the debtor, the whole being conveyed by a deed of trust executed during the term in which the judgment was ob- tained, and providing that the property conveyed may be sold by the trustees to answer the purposes of the trust, the court 900 CITATIONS TO THE CODE OF VIRGINIA. ought to dismiss the bill as to the personal property, without prejudice to the plaintiff's right, if any, to the residuary money resulting to the debtor from the sale of that property, after satisfying the deed; but should direct the trustees to sell the lands, and out of the proceeds thereof to satisfy the judgment in the first place, and afterwards to perform the trusts reposed in them by the deed. In the case of Coutts vs. Walker, 2 Leigh, 268, decided June, 1830. Real estate is vested in a trustee by deed of marriage settlement, in trust to pay the wife an annuity out of the profits, and, subject to the annuity, in trust for the son of the grantor; while the annuitant is yet living a creditor of the son recovers a judgment against him, and exhibits his bill in chancery, to subject the son's equity in the estate to the debt. Held : 1. That such an equitable interest cannot be taken in execu- tion at law. 2. That it is bound by the judgment in equity, which will apply it to the satisfaction of the debt ; but, 8. As the annuitant is yet living, and is not compellable to take a gross sum in satisfaction of the annuity, and as the trus- tee is to hold the subject and pay the annuity out of the profits, the court of chancery ought not to direct the sales out and out of the debtor's equitable interest subject to the annuity, but ought to only direct the application of the surplus of profits as they accrue, after paying the annuity, to the debt. In the case of Skipwith's Executor vs. Cimningham, etc., 8 Leigh, 271, decided April, 1837, it was held : It is well settled as general rule, that the lien of a judgment upon the land of the debtor relates back to the commencement of the term at which the judgment was obtained, and overreaches a deed of trust on the land executed by the debtor on or after the first day of the term ; but the term is not considered as necessarily commencing on the day appointed by law for its commence- ment. A deed admitted to record on the day appointed for commencing the term, but before the day on which the court actually commences its session, will be unaffected by the lien of the judgment. In the case of Taylor's Administrator vs. Spindle, 2 Grat., 44, decided April, 1845, it was held : Where a fieri facias has been issued upon a judgment within the year and a day, the judg- ment is a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which were afterwards acquired, in the hands of bona fide purchasers for value, with- out notice. So long as a judgment may be revived, it is a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which are afterwards acquired, into whosesoever hands they may have come. CITATIONS TO THE CODE OF VIRGINIA. 901 It is the settled practice in Virginia to entertain the suit of the judgment- creditor for relief in equity, when the debtor has, subsequent to the judgment, conveyed his lands in trust for the payment of debts, or on other trusts authorizing the sale of the land. And in such case the court will decree a sale to satisfy the judgment. It is not necessary that a judgment-creditor should have issued an elegit on his judgment before coming into equity for relief. In the case of Leake vs. Ferguson, 2 Grat., 419, decided Jan- uary, 1846, it was held : The lien of a judgment is a legal lien, and a purchaser of the legal title from the debtor takes it sub- ject to the lien, though he had no notice of it. On a joint judgment against several, the service of a ca. sa. upon one does not extinguish the lien of the judgment upon the land of the others. On a joint judgment against several, the service of a ca. fta. on one, and the execution and forfeiture of a forthcoming bond by him, does not extinguish the lien of the judgment upon the land of the others. In such a case, the party upon whom a ca. sa. was served, and who executed the forthcoming bond, having been a surety of the principal debtor in the judgment, his surety in the forthcoming bond having paid the debt, is entitled to be substituted to the creditor's remedies against the land of the principal debtor; and this though the land was sold by the principal debtor, and had come into the hands of a bona fide purchaser for value without notice before the service of the ca. sa. Prior to the act of 1822, a judgment in favor of the Common- wealth against general debtors only bound one- half the land of the debtor. A party coming into equity to enforce the lien of a judgment is not entitled to an account for rents accrued before the decree. In the case of Rodgers vs. McClure's Administrator et als., 4 Grat., 81, decided July, 1847, it was held: A judgment is a lien upon the lands owned by the debtor at the date of the judg- ment in the hands of bona fide alienees for value. The land last sold by the debtor is to be first applied to the satisfaction of the judgment, and this though the last purchaser obtained a conveyance before the first; the first having pre- viously had a good equitable title. In the case of Withers vs. Carter, 4 Grat., 407, decided Jan- uary, 1848, it was held : A creditor by judgment or decree may in equity subject the debtor's equitable interest in land sold by him for the purchase-money unpaid ; and such creditor will be preferred to an assignee of the purchase-money claiming under an assignment made subsequent to the judgment or decree. The fiction of law which gives the judgment relation to the 902 CITATIONS TO THE CODE OF VIRGINIA. first day of the term, applies to all cases in which the judgment might have been rendered on that day ; but not to a case in which it could not have been then rendered. There is a creditor by judgment prior to a sale of land by his debtor, and there is purchase-money unpaid sufficient to satisfy the judgment, when another creditor recovers judgment against the same debtor. This last cannot insist that the first shall go against the land, and leave the purchase-money unpaid for him, but the purchaser of the land is entitled to have the purchase- money applied to relieve his land. In the case of Burbridge vs. Higgins (Administrator), 6 Grat., 119, decided July, 1849. In a suit in the nature of a foreign attachment the subpoena is served upon the absent defendant, and there is a personal decree against him in favor of the plain- tiff for the amount of the debt. In another suit brought by the plaintiff to obtain satisfaction of this decree, the validity of the decree in the first suit canot be questioned. . A person largely indebted purchases land and pays part of the purchase-money, and has the land conveyed to his son ; and the son conveys it in trust to secure the balance of the purchase- money. The son then sells the land to a third person at an ad- vance price given by the father. A decree-creditor of the father files a bill to set aside the conveyance as fraudulent as to credi- tors, and pending this suit the balance of the original purchase- money is paid by the last purchaser out of the money due him from his son. The plaintiff being willing that the last sale shall stand, and to look to the purchase-money for satisfaction. Held : That the deed of trust given to secure the balance of purchase-money on the first sale being still outstanding, though satisfied since the commencement of this suit, the plaintiff is entitled to have the whole of the purchase-money, after satisfy- ing said trust, and not a moiety only, applied to the discharge of the debt. A decree is a lien on the debtor's land, and the creditor may come into equity to subject the land though the decree has not been revived against the administrator of the debtor, and no execution has ever been issued upon it. In the case of Jones, etc. vs. Myricks's Executors, 8 Grat., 179, decided October, 1851. Lands subject to a judgment lien which have been sold or encumbered by the debtor are to be subjected to the satisfaction of the judgment in the inverse order in point of time of the alienations and encumbrances. The land last sold or encumbered being first subjected. A judgment-creditor having by his conduct waived or lost his right to subject the land first liable to satisfy his judgment, is not entitled to subject the lands next liable to the whole amount of his judgment, but only for the balance after crediting thereon the value of the land first liable. CITATIONS TO THE CODE OF VIRGINIA. 903 A judgment-creditor having the prior lien on the lands of his debtor files a bill against the debtor and other creditors having encumbrances on his debtor's lands. Pending this suit another creditor of the same debtor files a bill against him and his creditors, and among them the judgment-creditor, seeking to subject the lands under his lien, and in this suit the proceeds of the whole lands which were sold by the sheriff under the in- solvent laws, or by the trustees in the deeds, are distributed by the decree of the court to other creditors. The judgment-credi- tor afterwards matures his suit and brings it on for hearing. Held: That the decree in the other cause concludes him, so that he is not entitled to recover from the creditors who received them the proceeds of the land sold by the sheriff, nor is he en- titled to have the land sold, as against the purchaser thereof. In the case of (Jraig vs. SebreU, 9 Grat., 131, decided August 2, 1852, it was held : A judgment is a lien upon the lands in the hands of a purchaser, though at the time of the conveyance execution upon the judgment was suspended by an injunction, and the lien exists though the judgment was not docketed, the purchaser having had notice thereof. In the case of Michaux's Administrator vs. Brown et als., 10 Grat., 612, decided January, 1854, it was held: A judgment is a lien upon an equity of redemption in land, and will be re- ferred to a subsequent purchaser of the equity of redemption not having the legal title. And the lien of the judgment extends to the whole equity of redemption. Though the judgment was enjoined at the time of the pur- chase, yet upon the dissolution of the injunction the lien relates back to the date of the judgment, and so has priority over the equity of the purchaser. The damages on the dissolution of an injunction to a judgment becomes, as to the party obtaining it, a part of the judgment, and are embraced in the lien of the judgment upon the equity of redemption. A judgment being rendered for the penalty of a bond to be discharged by the payment of the principal sum due and in- terest, and the payment of the money having been delayed by an injunction until the principal due and the interest exceed the penalty, the lien of the judgment only extends to the penalty, the damages upon the dissolution of the injunction, and the costs at law, without continuing interest. The reference to 16 Grat., 265, is an error. In the case of Gatewood"s Administrator vs. Ooode et als., 23 Grat., 880, decided September, 1875. At the March term, 1861, of the County Court of Monroe, a judgment was rendered at the suit of the Bank of V., plaintiff, ayainst W. S. and G., the latter living in the county of Bath. Execution of/, fa. was issued on this judgment, and was levied on the property of W. S. ; and 904 CITATIONS TO THE CODE OF VIRGINIA. the sheriff returned, after June, 1861, a levy upon the personal property of W., that the property was appraised and offered for sale, and, not bringing its valuation, it was returned. G. died during the war, leaving real estate in Bath county, and also in West Virginia ; and after his death some of his creditors filed their bill in the Circuit Court of Bath to subject his real estate to the payment of his debts. The commissioner reported the above judgment as a debt by judgment having priority. A copy of the judgment was certified by the "clerk of Monroe Circuit Court, and, as such, keeper of the records of Monroe County Court, and which by law are a part of the records of my office." The Circuit Court of Bath confirmed the report. Held: The judgment, as constituted between the parties thereto, was a lien on the real estate in Virginia belonging to the judgment-debt- ors, or any of them, whether the said judgment was docketed in the counties in which the real estate might be or not. That thejien was not discharged by the levy of the execution upon the property of W., one of the debtors, by the sheriff of Mon- roe county; nor was the execution satisfied by the act of the sheriff returning the property so levied on to W., in obedience to the ordinance of the Virginia Convention of 1861, whether such ordinance was valid or not, said act of the sheriff being entirely his own act, neither prompted nor assisted by the plaintiff in the judgment. That the lien of said judgments on the lands of G. in Bath county was neither lost nor impaired by reason of the division of the State of Virginia into two States, and the falling of the county of Monroe into the State of West Virginia. That the certificate of the clerk of the Cir- cuit Court of Monroe county in West Virginia, of the records of which court the records of the former County Court of Mon- roe form a part, was proper evidence of such judgment; and, there appearing no other judgment binding said lands, nor any debt of G. of superior dignity, there was no error in the decree. In the case of Floyd (Trustee) vs. Harding et als., 28 Grat., 401, decided March, 1877. In 1856 L. sells land to T. by parol contract, receives all the purchase-money, and puts T. into pos- session. In January, 1857, L. executes a deed to T., by which he releases all the land to T. and warrants the title. T. then sells the land to W., and W. conveys it to F. In March, 1866, B. recovers a judgment against L., which is docketed within the year. In a suit against F. to subject the land to satisfy the judgment against L., held : That the registry acts do not apply to a parol contract for land; and T. having paid all the pur- chase-money, and having been put into possession, so that he had a valuable equitable title to the land, it is not subject to the lien of the judgments against L. The valid equitable title of T. is not so merged in the legal title acquired by the deed of CITATIONS TO THE CODE OF VIRGINIA. 905 L. to him as to subject the land to the lien of the judgment against L. In the case of Lavell and Jordan vs. McCurdy's Executors, 77 Va., 763, decided October 4, 1883, it was held : The utmost ex- tent of the jurisdiction in the court upon a writ of scire facias reciting a judgment for money, and notifying the defendants to appear and show why the plaintiffs should not have an execu- tion against them for the debt, interest, and cost of said judg- ment, is to render judgment that the plaintiffs in the writ of scire facias have execution of the judgment in the writ set forth. Such judgment for the award of execution does not constitute a lien on real estate. In the case of Sinclair vs. Sinclair, 79 Va., 40, decided April 3, 1884, it was held: A judgment-creditor can acquire no better right to his debtor's estate than the latter himself has, and ap- plies it to satisfy his lien, subject to all equities existing at the time in favor of third persons. When one, with another's money, buys an estate, and takes the conveyance in his own name, by presumption of law a trust results in favor of him whose money is thus used. Such trust may be established by parol proof, but the proof must be clear. If part only of the purchase-money has been paid of another's funds, the land will be charged proportionately, and judgment- creditors of the grantee can subject only his portion or interest therein. In the case of Yates & Ay res vs. Robertson c& Berkley, 80 Va., 475, decided May 7, 1885, it was held : As a general rule a judg- ment rendered at any time during a term relates back to the first day of the term, as if rendered then. This, however, is not always so. This rule does not apply to a judgment rendered during a term in a case which was in such a condition that the judgment could not have been rendered on the first day of the term. SECTION 3569. In the case of McCance vs. Taylor, 10 Grat., 580, decided January, 1854, it was held : The act of March 3, 1843, Session Acts 1842-'43, p. 51, does not apply to purchasers before the passage of the act. As to such the lien of a prior judgment is valid though not recorded. SECTION 3570. For the reference to 28 Grat., 401, see ante, Section 3567. In the case of Borst vs. Nalle et als., 28 Grat., 423, decided March, 1877. The docketing of a judgment is an act to be done to preserve or prevent the loss of a civil right or remedy within the meaning of the acts of March 4, 1862, Acts of 1861-'62, Chapter 81, and of March 2, 1866, Code of 1873, Chapter 146, Sections 6 and 7, pp. 998-'99. And, therefore, in computing the time 906 CITATIONS TO THE CODE OF VIKGINIA. within which a judgment is required by Section 8, Chapter 186, Code of 1860, to be docketed, in order to preserve the lien of such judgment against purchasers, the period between the 17th of April, 1861, and the 2d of March, 1866, is not to be computed as a part of such time. For the reference to 28 Grat., 617, see ante, Section 3561. In the case of Edison vs. Huff et als., 29 Grat., 338, decided November, 1877. At the February term, 1857, of the court a judgment was recovered against S., and H. as his surety on a forthcoming bond, and it was docketed on the 1st of April, 1857. An execution was issued on this judgment, and it was paid by H. On the 8th of October, 1856, S. by written agreement under seal sold to E. a house and lot, and delivered possession, and on the 18th of the same month S. conveyed the same to E. This deed was acknowledged on the same day, H. being one of the justices who took the acknowledgment, but it was not pre- sented in the clerk's office for record until March 9, 1857. Upon a bill by H. against E. and S. to be substituted by the lien of the judgment against S., held : H. is entitled to be substituted to the lien of the judgment. The judgment having been docketed within twelve months from the date of its being rendered, and the deed not having been docketed within sixty days from its acknowledgment, the judgment is a lien upon the house and lot against the deed. The agreement not having been docketed, it is void as to the, creditor and as to H. claiming under him, though H. had notice of the deed, and E. had possession of the house and lot. Notice of deed or written agreement for sale of land does not affect a creditor of the grantor. In the case of March, Price <& Co. vs. Chambers et als., 30 Grat., 299, decided March, 1878. In January, 1866, C. by an agreement in writing sold to W. a lot in Danville, and in the same month conveyed it to him. The agreement was never recorded, and the deed was not recorded until September 18, 1873. W. having paid all the purchase-money to C., conveyed the lot to R. to secure him a debt of four thousand dollars. This deed was recorded on the 24th of August, 1866. In April, 1868, W. was declared a bankrupt, giving in the lot as a part of his estate. In May, 1868, on the joint application of the as- signee and R. as a lien creditor of the bankrupt, the court in bankruptcy ordered a sale of the lot, and the sale was made to R., and on the 18th of November confirmed, and the assignee directed to convey the lot to R. which was done on the same day, and R. took possession. In July, 1872, M. recovered a judgment against C. in the Corporation Court of Danville, which was docketed on the llth of March, 1873. Held : Though M. had notice of the sale by C. to W., the lot is liable to satisfy this CITATIONS TO THE CODE OF VIRGINIA. 907 judgment notwithstanding all the subsequent conveyances and proceedings in relation to said lot. In the case of Redd vs. Ramey, 31 Grat., 265, decided Jan- uary 9, 1879, it was held : E. obtains a decree against his guar- dian and his sureties for a certain sum of money, and sues out an execution, which is levied, and a forthcoming bond taken and forfeited. The court on its chancery side, on notice to the obligors in the forthcoming bond, renders a judgment in favor of E. against them, and this judgment is docketed. Held : The judgment is a valid judgment, and having been docketed, it is notice which will affect all subsequent purchasers of land from any of the defendants in the judgment. In the case of Young et als. vs. Devries et ah'., 31 Grat., 304, decided January 23, 1879, it was held: Land sold and pur- chased under a written contract which has not been recorded, though the purchasers have paid all the purchase-money and have been for years in possession under the contract before a judgment has been recovered against their vendor, is liable to satisfy the judgment. Land sold and purchased under a parol contract, the pur- chasers having paid the purchase -money, and having been put in possession, and holding the possession under the contract before a judgment has been recovered against their vendor, is not liable to satisfy the judgment. For the reference to 75 Va., 757, see ante, Section 3469. For the reference to 76 Va., 173, see ante, Section 3397. In the case of Gordon (Assignee) vs. Rixey (Assignee) et als., 76 Va., 694. Liens. Judgment. Vendors. Priorities. Case at Bar. In 1867, on bond of M. and B. to P., assigned by P. to E., the lat- ter obtained judgment, which was docketed in 1869. In 1866 M. granted his land to B., reserving lien for purchase-money, and in 1870 assigned the purchase- money bonds to G. for value without notice of the judgment. In contest for priority between E., as judgment-creditor, and G., as assignee of the vendor's lien and of the bonds thereby secured. Held: The lien of the judg- ment hath priority. In the case of Gurnee vs. Johnson's Executor et als., 77 Va., 712, decided September 27, 1883, it was held: Code 1873, Chap- ter 182, Section 6, makes every judgment rendered in this State a lieu on all the debtor's real estate, and the prior judgment hath priority as between the judgments, whether docketed or undocketed. But no judgment is a lien on real estate as against purchasers thereof for a valuable consideration without notice, unless it be docketed in the mode and within the time pre- scribed. If docketed, the judgment, if prior in time, hath priority over such purchaser. To docket his judgment is the 908 CITATIONS TO THE CODE OF VIRGINIA. creditor's privilege, not his duty. If he fails to docket it he may lose his lien on the real estate aliened to a purchaser without notice. In the case of McCormick (Trustee) vs. Atkinson (Trustee], 78 Va., 8, decided November 15, 1883, it was held: Where con- veyance is made of the stock and fixtures of a store, in trust to secure debt payable in futuro, without right to trustee to pos- sess or control the property, except in event of default of pay- ment, then, on request of cestui que trust to sell the same, such conveyance impliedly reserves to grantor the power to possess and sell the property ; and if he sells, then, as to the purchaser, and creditors of that purchaser-, that conveyance is void, although it may have been recorded, its recordation being only notice of & void thing. As between an unrecorded deed of trust and a subsequent but recorded conveyance of the equity of redemption without notice of the former deed, the latter hath priority. SECTION 3571. In the case of Cronie vs. Hart et als., 18 Grat., 739, it was held : It must appear that the rents and profits will not dis- charge the judgment, even against fraudulent alienees. In the case of Horton vs. Bond^ 28 Grat., 815, decided Au- gust 9, 1877, it was held, p. 820 : The decree of sale, though a sale was ascertained to be necessary, was premature if entered before the priority of the liens was determined, affirming Coles' 's Administrator vs. McRae, 6 Rand., 644 ; Smith et als. vs. flint et. als., 6 Grat., 40; Buchanan vs. Clark et als., 10 Grat., 164; Large vs. Boisseux, 15 Grat., 83 ; Lipscomb vs. Rogers et als., 20 Grat., 658; ~Wkite vs. Mechanics Building Fund Association, 22 Grat., 233; Moran vs. Brent et als., 25 Grat., 104. In the case of Price vs. Thrash, 30 Grat., 515 and 524-'28, decided July, 1878. There being no averment in the bill or ad- mission or proof that the rents and profits of the land retained by P. will not pay the debt in five years, it was error to decree a sale of the land before having this inquiry made. But the decree appealed from being interlocutory, this court will amend the decree in this respect, and as amended affirm it, with costs to the appellee. In the case of Compton vs. Tabor, 32 Grat., 121, decided July, 1879, it was held : Upon a bill filed by a judgment- creditor to subject the land of his debtor to satisfy his debt, the court, in order to ascertain whether the rents of the land will pay the debt in five years, should generally direct the commissioner to offer it first for one year, and, if that will not pay the debt, then for two, and so on, if necessary, for five years, closing the con- tract whenever the rent will pay the debt, the terms of payment CITATIONS TO THE CODE OF VIRGINIA. 909 of the rent to be fixed by the court, looking to the kind of pro- perty and the usage of the country. If it will not rent for enough in five years, the commissioner should report the fact to the court. The reference to 33 Grat., 576-'77, is an error. This case is, however, cited to Section 2442. For the reference to 75 Va., 825 and 833-'34, see ante, Sec- tion 2475. In the case of Muse vs. Friedenwald ', 77 Va., 57, decided January 25, 1883, it was held : Before sale of realty can be de- creed to pay judgment liens, the court must, in some way, be convinced that the rents and profits will not in five years satisfy those liens. When the insufficiency is alleged and not denied, there need be no inquiry ; but where not alleged, or, if alleged, the allegation is denied, there must be inquiry before a sale is decreed. In the case of Brenyle et als. vs. Richardson's Administrators et als., 78 Va., 406, decided January 31, 1884, it was held: Judgment- creditor brings suit to enforce his lien. After ac- count ordered and taken, and other liens proved, the other lienors become parties to the suit, and are entitled to have the lands sold for their relief in the order of their respective priori- ties, and aliened lands of the debtor must be sold in the inverse order of the alienation. The acts of courts of competent jurisdiction, having cogni- zance of the parties and of the subject-matter, cannot be ques- tioned elsewhere. If a bankrupt court wrongfully allows the bankrupt the exemption claimed by him, the remedy is not in the State courts. Where the bill does not allege the insufficiency of the rents and profits to satisfy the liens within the period of five years, and where there has been no inquiry, but the decree of the court below sets forth that it appears that the lands without the improvements, when sold, would not more than pay the liens, the party entitled to the inquiry may be presumed to have waived it, and the decree of sale will not be set aside on account of the omission of such inquiry ; but it will be amend- ed, and that party be allowed to have the inquiry if he chooses; and, so amended, the decree will be affirmed. In the case of Daingerfield vs. Smith, 83 Va., 81, decided March 31, 1887, it was held: It is improper to decree sale and renting of lands before taking an account of liens and priorities. It is also improper to decree renting and sale simultaneously, if the rents prove insufficient. The renting should be first de- creed, and, if report shows it to be insufficient, sale may be de- creed. This is the case cited from 11 Virginia Law Journal, 588. 910 CITATIONS TO THE CODE OF VIRGINIA. In the case of Neffvs. Wooding and Wife, 83 Va., 432, decid- ed June, 1887, it was held : In suit to enforce liens reserved in favor of grantor in his conveyance of land, as provided by Sec- tion 2473, the court may decree sale of the land to satisfy the lien, without any previous account of rents and profits ; Section 3571 applies only to suits for the enforcement of judgment liens. This is the case cited from 11 Virginia Law Journal, 634. In the case of Eggleston vs. Whittle, 84 Va., 163, decided De- cember 1, 1887. A commissioner sold land and received the money without giving bond or accounting. Purchaser was re- quired to pay it again; receiver got judgment against him and surety; execution was returned no effects. Before the return, commissioner executed trust deed to secure the purchaser. Re- ceiver filed in pending creditor's suit against commissioner his petition to enforce his execution lien against fund secured to purchaser. Latter resisted on the ground, first, that he claimed the fund as his homestead, and second, that he had assigned it. Receiver then brought suit to enforce his judgment lien against the lands of the purchaser and surety. Held: Receiver was entitled to maintain his suit to enforce said judgment lien against lands of surety and purchaser. In the case of Moore vs. Bruce, 85 Va., 139, decided July 19, 1888, it was held: The lien of a judgment may always be en- forced in equity without a j. fa. thereon. In the case of 2homas vs. Sellman, 87 Va., 683, decided April 23, 1891, it was held : It is not multifarious for a bill to seek to subject judgment-debtor's alleged interest in lands, chattels, etc., to the payment of plaintiff's debt. In the case of Kyger vs. Sipe (Trustee], 89 Va., 507, decided December 15, 1892, it was held: In suit to enforce trust deed, the value of the rents and profits of the lands is immaterial, as the deed is not a judgment within the meaning of the Code, Section 3571. SECTION 3573. In the case of Hutcheson vs. Grubbs, 80 Va., 251, decided February 19, 1885, it was held : Courts of equity follow the law as respects the statutes of limitations. If a legal claim barred at law be asserted in equity, it is equally barred there. Lien of judgment is a creature of statute, and cannot be en- forced in equity after it ceases to be enforcible at law. The language of the statute, Code 1873, Chapter 182, Section 9, " The lien of a judgment may always be enforced in a court of equity," implies only a purpose to confer jurisdiction on courts of equity to enforce the lien, whether the remedies at law are adequate or not. In the case of Sutton et als. vs. McKenny (Trustee], 82 Va., CITATIONS TO THE CODE OF VIRGINIA. 911 46, decided April 22, 1886, it was held : The lien of a judgment is not enforcible in equity after it ceases to be enforcible at law. SECTION 3574. For the reference to 76 Va., 895-'96, see ante, Section 3475. SECTION 3575. In the case of Alley et ah. vs. Rogers, 19 Grat., 366, 388-89, decided March 12, 1869. On the 24th of May, 1859, G. con- veyed real estate in Henrico to W. to secure four negotiable notes of that date, payable in six, twelve, eighteen, and twenty- four months to R. who lived in Kentucky. The notes were en- dorsed by R. and deposited by him in the F. bank for collection. On the 21st of February, 1861, G. conveyed to A. this real estate with much more, in trust for the payment of his debts; debts being a lien upon any of the property to be paid -first. On the 17th of April, 1863, A. sold the greater part of the real estate conveyed to W., and conveyed the same by deeds of different dates to the purchasers, and some of these purchasers conveyed subsequently to others. The last two of the notes aforesaid were protested for non-payment and remained in the bank until the 14th of September, 1863, when A. paid them to the bank in Confederate currency, and took them up, Confeder- ate notes being then the only currency, and being generally received by the banks in payment of notes either owned by the bank or deposited for collection, and being then depreciated to about twelve for one in gold. But the deed of trust to W. was not released. After the war R. filed his bill claiming that the two notes were still due, and seeking to enforce the trust for their payment, and he made G., the bank, A., and the pur- chasers from A., and the present holders parties. Held : If it is not necessary to sell the whole of the real estate conveyed to W. to pay said notes, the part not sold by A. is first to be sold, and after applying the proceeds of said sale to the payment pro tanto of said notes, the balance due upon them should be raised ratably out of the lots now held by the purchasers re- spectively in proportion to the amounts of the purchase-money for which they were respectively sold by A. on the 17th of April, 1863, without regard to the dates of the deeds from A. to the purchasers. In the case of JTarrnan et als. vs. Oberdorfer et als. 33 Grat., 497, p. 503-'7, decided September, 1880. A deed takes effect from its delivery, and such delivery, like any other fact, may be established either by direct proof or by circumstances. Without evidence of any preceding executory agreements be- tween the parties, or any evidence of the time of the delivery of the deeds, except what may be inferred from their dates, P., a 912 CITATIONS TO THE CODE OF VIRGINIA. judgment-debtor, by one deed (dated January 1, 1860, acknow- ledged February 1, 1860, and recorded April 13, 1860) con- veyed one tract of land to H., and by another deed (dated Feb- ruary 1, 1860, acknowledged February 1, 1860, and recorded February 24, 1860) conveyed another tract to B. In proceed- ings to subject both tracts to the payment of judgments ob- tained against P. prior to either deed, held : The tract to B. was the last aliened, and therefore first liable to satisfy the judgments. If a deed has a date, the law intends it to have been delivered at the date ; and when it is proved by witnesses, who say nothing as to the time of delivery, and is recorded, it stands recorded as a deed proved to have been delivered at its date. There is no distinction in principle between the presumption of delivery arising from the proof by witnesses and the acknowledgment be- fore a justice or notary. The provision that every deed, etc., shall be void as to credi- tors and subsequent purchasers for valuable consideration with- out notice, until and except from the time it is duly admitted to record, etc., does not apply to purchasers of different tracts of land from the same vendor, but refers only to subsequent pur- chasers of the same subject as that embraced in the instrument declared to be void. Where several lots of land are sold on the same day, on the same terms, to several parties, all of whom are immediately put into possession under the same agreement as to the deeds con- veying the same land and the trust deeds to secure the pur- chase-money, although the deeds conveying them are really delivered and recorded at different times, they will all be re- garded as alienations within the meaning of the statute as of the same day (day of sale), and in subjecting them to the pay- ment of a judgment docketed against a vendor at the time of the sale, each lot must bear its proportion according to their rela- tive values on the day of sale, and subjected in accordance with the principles of Horton vs. Bond, 28 Grat., 815. In the case of Whitten, etc., vs. Saunders, etc., 75 Va., 563, de- cided August 11, 1881. A debtor possessed of a large tract of land conveys a part of the same by deed of gift to one of the sons, who thereafter sells it to another person for valuable con- sideration. The father-debtor then, by subsequent deeds for value, executed at different times, conveys nearly the whole of his said land to different purchasers. On proceedings to sub- ject said land to the payment of a portion of the purchase- money, for which the vendor to the debtor had retained his vendor's lien, held: The lands will be held in the inverse order of the alienations from the debtor, and this, too, although one of the alienees is a purchaser from the son of the debtor, who held under a voluntary conveyance from the debtor. CITATIONS TO THE CODE OF VIRGINIA. 913 In the case of Dickinson vs. Clement, 87 Va., 41, decided No- vember 6, 1890, it was held : Where decree to sell debtor's land in judgment-creditor's suit, and the creditors garnishee bonds of previous purchasers of land from debtor, but realize nothing. Held: Debtor is not entitled to credit on the judg- ments for amount of said bonds, and in fact has no right to go on the lands sold until the lands retained by him have been ex- hausted. SECTION 3576. See references to Sections 3567 and 3568. In the case of Rliea et als. vs. Preston, 75 Va., 757 and 767- 768, decided July 21, 1881. K. sold and conveyed to T. a tract of land, reserving a lien for the payment of the purchase-money. Afterwards, and on the same day, T. executed two deeds of trust to secure the payment of two certain debts to D., in one of which deeds the tract purchased from K. is conveyed to se- cure one debt, K. uniting in this deed ; and in the other deed a tract called the "Mill tract" and other tracts of land. Held: That K. had the right to require that the debt to D. shall be paid by the "Mill tract," on which D., as between himself and K., has the exclusive lien, and leave the other tract to be ap- plied to K.'s lien; and K.'s equity in this respect is prior and paramount to that of P. to have the " Mill tract." on which his lien rested, exonerated from the D. debt for his benefit. SECTION 3577. In the case of Yates's Executor vs. Pickett, 4 Munf., 104, de- cided March 9, 1813, it was held : A plea of the act of limita- tions in bar of scire facias to revive a judgment cannot be re- pelled by a replication that the defendant, within five years next before the suing out of the scire facias, promised to pay the judgment. If a replication be insufficient, and be demurred to as such, yet, if the plea be also insufficient, the court will go up to the first fault and give judgment for the plaintiff. In the case of Gee vs. Hamilton et ux., 6 Munf., 32, decided December 4, 1817, it was held: The right to issue a scire facias upon a judgment is not barred by the act of limitations in a case where execution was issued in due time, and returned "no effects," though more than ten years elapsed between the re- turn of the execution and the date of the scire facias. Issue being joined on the plea of " no such record " and on the act of limitations, if the jury find for the plaintiff on the second plea, and the court, without taking any notice of the first plea, enter judgment, such judgment ought to be reversed, notwithstanding on previous pleadings, which, by consent, were 58 914 CITATIONS TO THE CODE OF VIRGINIA. set aside, the court had pronounced that, in fact, there was such a record. In the case of Peyton's Administrator vs. Carr's Executor, 1 Band., 436, decided May, 1823, it was held : A judgment ob- tained against a testator in his lifetime, and not revived against his personal representative after his death, within five years from the time of his qualification, is barred by the statute of limitations. The operation of the statute will not be prevented by a scire facias sued out within the five years, on which the plaintiff suffered a non-suit. In the case of Randolph's Administratrix vs. Randolph, 3 Rand., 490, decided October, 1825, it was held: There is no limitation by statute to an action of debt, or sci. fa. on a judg- ment,' except only in the case of a judgment on which no execu- tion has been taken out, and except in cases of executors and administrators, on a judgment against their testator or intes- tate. In the case of LipscomVs Administrator vs. Davis 's Admin- istrator, 4 Leigh, 303, decided February, 1833, it was held: The statute of limitations, whereby the remedy on a judgment by debt or scire facias is limited to ten years, is no bar to a motion on a forthcoming bond of more than ten years' standing. In the case of Fleming's Executor vs. Dunlap & Buchanan, etc., 4 Leigh, 338, decided March, 1833, judgment recovered by D. P. & Co. against F. in September, 1810, and execution sued out in the same month, and another in October, 1815, but neither returned ; to a scire facias to revive the judgment against F.'s executor sued out in July, 1826, defendant pleads in bar the statute of limitations ; plaintiffs reply to the two executions sued out in September, 1810, and October, 1815, on demurrer to this replication. Held: The statute is a bar to the scire facias. But it seems, by the opinion of Tucker, P., that debt would lie on the judgment, and the statute would not be a bar to that action. In the case of Manns vs. Flinris Administrator, 10 Leigh, 93 (2d edition, 97), decided February, 1839. Judgment is recov- ered against A. in his lifetime ; A. dies, and upon the supposi- tion of his intestancy, administration of his estate is granted to B.; a will of A.'s being afterwards found and proved, the former grant of administration is revoked, and administration, with the will annexed, granted to C., and suit is brought on the judg- ment, after five years had elapsed from the grant of administra- tion to the rightful administrator, C. Held: The five years limitation prescribed by the statute began to run, not from the void grant of administration to B., but from the qualification of C., the rightful administrator, and so the statute was not a bar to the suit. CITATIONS TO THE CODE OF VIRGINIA. 915 In the case of Hill's Executor vs. Fox's Administrator, 10 Leigh, 587 (2d edition, 615), decided February, 1840. A decree for a sum of money provides that if no property of the debtor can be found, other than that conveyed by him by a deed of trust and mortgage, then he shall deliver up the trust and mortgage property to the marshal, to be sold to satisfy the money secured by the trust and mortgage, and then to satisfy the decree. The debtor dying, a bill of revivor and supplement is filed against his administrator, to obtain payment of the decree out of the assets in his hands. And the administrator by his answer relies upon the statute of limitations. Held : The decree in this case is not a final decree, and, if it were, is not such a one as the statutes can apply to. For the reference to 11 Leigh, 2, see ante, Section 2921. In the case of Herrington vs. Ilarkinss Administrators, 1 Rob., 591 (2d edition, 624). Where an action of debt is brought on a judgment after ten years from the date thereof, and the defend- ant wishes to avail himself of the statute of limitations, it is necessary that he should do so by plea. A demurrer to the declaration is not the proper mode to take advantage of the statute. The statute 1 Rev. Code 1819, Chapter 128, Section 5, p. 489, declaring that where execution hath issued and no return is made thereon, the party in whose favor the same was issued may obtain other executions for ten years from the date of the judgment, and not after, does not bar such party from maintain- ing an action of debt on the judgment after ten years. In the case of Braxton vs. Wood's Administrators, 4 Grat., 25, decided April, 1847, it was held: A suit brought by the judgment-creditor to enforce satisfaction of his judgment sus- pends the operation of the statute of limitations during its pendency. But if it is dismissed without satisfaction of the judgment, it will not prevent the bar of the statute to another suit brought after its dismissal. In the case of Smith's Executor vs. Charlton's Administra- tors, 7 Grat., 425, decided May 11, 1851, it was held: A judg- ment quando accidevint does not come within the operation of the statute of limitations in relation to judgments. In the case of BeaCs Administrator vs. Botetourt Justices, for, etc., 10 Grat., 278, decided July, 1853, it was held: In such an action a plea that the execution issued irregularly and unlaw- fully after the expiration of more than a } r ear and a day from the time of the decree, without any previous proceeding by way of Kcire facias or otherwise to authorize the same, presents an immaterial issue, such an irregularity would not render the exe- cution void, but only voidable, and it cannot be avoided by pleading or proof in this collateral suit. 916 CITATIONS TO THE CODE OP VIRGINIA. In the case of Richardson (Administrator] vs. Prince George Justices, 11 Grat., 190, decided April, 1854, it was held: The scire facias stated that the judgment had been suspended by in- junction. This was an unnecessary allegation, and may be treated as surplusage, and a plea that the judgment had not been suspended by injunction offered no bar to the scire facias. The scire facias further stated that the injunction had been dissolved is bad, and an issue made up upon it is immaterial. Therefore, though the court admits improper evidence upon it, offered by the plaintiff, it is not cause for reversing the judgment. The pendency of an injunction to a judgment at law will not prevent the revival of the judgment upon the death of either the plaintiff or defendant, and the injunction operates upon the judgment on the scire facias to restrain and prohibit the issue of execution thereon. In the case of Hutsonspiller 's Administrators vs. Stover's Ad- ministrators, 12 Grat., 579, decided September 7, 1855, it was held: Upon the dissolution of an injunction to a judgment, execution may issue thereon within a year and a day from the dissolution of the injunction without a scire facias, though the injunction was in force for more than ten years. The statute of limitations to judgments does not run whilst an injunction to the judgment is in force. If a defendant in a judgment dies whilst an injunction to the judgment is pending, though the injunction may not be dis- solved for more than five years after his death, the statute re- quiring judgments to be revived within five years does not run during the pending of the injunction ; and the judgment may be revived after the five years from the death of the defendant; and this though the judgment might have been revived while the injunction was in force. Upon a scire facias to revive a judgment which had been suspended by an injunction for forty-six years, issue was made upon the plea of payment; and upon the trial the court in- structed the jury that the pending of said injunction cause re- pelled the legal presumption of payment which would have arisen from lapse of time if said injunction had not been pend- ing. Held: This instruction was proper, and it is not neces- sary to distinguish to the jury between the legal presumption and the natural presumption arising from lapse of time. In the case of Shannon vs. McMullen, 25 Grat., 211, decided July 1, 1874, it was held : When process is returnable process, if the officer make return of the performance of acts beyond his duty under such process, such return will be invalid as to such parts, and will not be evidence, though the addition of such parts will not render the whole return void, but it will be good to the extent he was authorized to make such return. CITATIONS TO THE CODE OF VIRGINIA. 917 In the case of Brown (Administrator] vs. Campbell et als., 3& Grat., 402, decided July, 1880, it was held, pp. 404-'5 : Under the circumstances of this case held, the proof is sufficient to establish the payment of a debt on which judgment had been rendered and execution issued twenty-three years before the filing of a bill to enforce the payment of the judgment. Where three executions have been issued upon a judgment and two of them returned by the officer, the statute of limita- tions is twenty years from the return-day of the execution on which a return was made. In the case of Me Veigk vs. Bank of Old Dominion, 76 Va., 267. Scire Facias. Neither declaration nor rule is necessary upon a scire facias to revive a judgment. If scire facias is return- able to rules, and defendant makes default, there should then be an award of execution, which, if not set aside at the next term, becomes a final judgment as of the last day of the term. No order of the court is necessary in such case, but could preju- dice no one. In the case of Sutton et als. vs. Marye (Auditor), 81 Va , 329, decided January 14, 1886. The Commonwealth got judgment against the sheriff of W. county and his sureties, and had fi. fa. issued and levied. Upon return thereof it had a venditioni ex- ponas issued. Instead of this writ going to the sheriff, it was taken in charge by the auditor of public accounts. Nothing was done and no process issued for over sixteen years, when in December, 1884, an alias fi. fa. was issued, levied, and returned, and thereupon a writ of venditioni exponas was issued. The sureties moved the court below to quash the alias writ of vendi- tioni exponas, which motion was denied. On error, held : The writ of venditioni exponas, as well as the alias fi. fa., was issued without authority of law, and should be quashed. In the case of Hamilton vs. McConkey, 83 Va., 533, decided June 23, 1887, it was held : Under the Code of 1860, Chapter 186, Section 15, it is required that the officer shall return upon a writ oifi.fa. "whether the money is, or cannot be, made.' A return of "not levied by reason of the stay law" is a return, substantially, that the money cannot be made. The limitation within which an alias execution may be issued is twenty years where there is a return of an officer; and whe- ther such return be true or false, sufficient or insufficient, is not a question which can arise. In the case of McCarthy vs. Ball, 82 Va., 872, decided Feb- ruary 10, 1887, it was held : Courts of equity follow courts of law as respects this statute. If a legal claim, barred at law, is asserted in equity, it is equally barred there. Thus, liens are creatures of statutes, and cannot be enforced in equity after they have ceased to be enforcible at law . 918 CITATIONS TO THE CODE OF VIRGINIA. This is the case cited from 11 Va. Law Journal, 697. In the case of Kennerly vs. Schwartz, 11 Va. Law Journal, 605, decided September 22, 1887, it was held : Where a judg- ment has been obtained against one who is not a householder or head of a family, and has become a lien upon his land, and he subsequently becomes a householder or head of a family, the judgment has priority over his claim to a homestead exemption in the land ; but he may claim such exemption in the land after satisfying the judgment. In the case of Straus vs. JSodeker's Executrix et als., 86 Va., 543, decided December 5, 1889, it was held : Where non-resi- dent judgment-creditors are summoned by order of publication, and no order is made to suspend the issuing of executions, a suit to enforce a contract for the sale of the judgment-debtor's land is no such "legal process" as suspends judgment-credi- tors' right to sue out execution, and stops the running of the statute of limitations against such judgments. In the case of Brovm vs. Butler, 87 Va., 621, decided April, 9, 1891, it was held : In April, 1887, suit was brought to enforce the liens of two judgments, one dated February 23, 1866, the other dated November 2, 1866, both duly docketed, but execu- tion had been issued on neither. Held : Eight to enforce had ceased by limitation. CHAPTEE CLXXV. SECTION 3583. In the case of Tolson vs. Elwes, 1 Leigh, 436, decided Octo- ber, 1829, it was held : Execution sued out in the name of W., endorsed for the benefit of E., held that E. cannot maintain a motion in his own name against the sheriff for the amount levied on the execution, or for his default in service and return of the writ. In the case of Meze vs. Howver, 1 Leigh, 442, decided Octo- ber, 1829, it was held : A fi. fa. is sued out by M. and M. on judgment recovered by them ; they endorse on the writ that it is for the benefit of H. The sheriff levies it and takes forthcom- ing bond payable to H. Held : The bond is naught. In the case of Fietcher vs. Chapman, 2 Leigh, 560, decided March, 1831. Judgment is rendered against a sheriff for a fine for the alleged default of his deputy, the sheriff making no de- fence, nor giving any notice to the deputy of the proceeding ; this judgment is erroneous in point of law, and unjust upon the merits. Held : In such case, the sheriff is not entitled to recover the amount of the fine from the deputy. In the case of Burnett et als. vs. Harwell et als., 3 Leigh, 89, decided October, 1831, it was held: Under the provisions of CITATIONS TO THE CODE OF VIRGINIA. 919 the statute, an action cannot be maintained on an executor's bond at the relation of an assignee of a legatee of a decree for legacy; such action can only be maintained at the relation of the person who has the legal right to the debt. In the case of Governor for Leighton vs. Hinchman et als. y 1 Grat., 156, decided September, 1844, it was held: The action against a high sheriff and his sureties upon his official bond for the misconduct of his deputy in his proceedings on an execu- tion in his hands must be at the relation of the plaintiff in the execution, and cannot be sustained at the .relation of the parties for whose benefit the execution issued. In the case of Gallop's Administrator vs. ScarburgJi et als., 5 Grat., 1, decided April, 1848, it was held: A motion to quash a writ and inquisition founded on a judgment may be in the name of the party on the record, and must be against such a party. A stranger having acquired an equitable right to the benefit of an execution, or to the property to which it is levied, will generally have authority to sue out and conduct the process, or to object to its regularity or validity ; but he must do it in the name of a legal party to the process, or one who can be made to do so. And his authority to use the name of the party to the process of a court of law will be so far recognized by such court as to preclude the intervention of such party for the pur- pose of defeating it. In the case of Pates vs. St. Clair, 11 Grat., 22, decided April, 1854, it was held : It was not improper, even before the statute, to render judgment for costs in favor of the defendant against a person for whose benefit a suit was brought when the de- fendant succeeded in the case. In a suit brought in the name of one person for the benefit of another, a judgment stating that the parties appeared by their attorneys, and by consent the suit was dismissed, and judgment for defendant's costs against the person for whose benefit the suit was brought, it must be held that the consent is the consent of the latter, and that the judgment is proper. SECTION 3585. In the case of Garland vs. Bugg ; 5 Munf., 166, decided Octo- ber, 1816, it was held: After a distringas upon a judgment in detinuo has been returned executed, but without satisfaction, if the court, on the plaintiff's motion, direct the distringns to be superseded so far as it relates to the specific property, and to be executed as to the alternative value, such order is not erro- neous ; but it seems the plaintiff may have a new distringas, to be executed as to such value. After the distringas upon a judgment in detinue has been exe- 920 CITATIONS TO THE CODE OF VIRGINIA. cuted -without satisfaction, or superseded as to the specific property, and directed to be executed as to the alternative value, if it appear to the court that, in consequence of the de- fendant's persisting in withholding the specific property, the plaintiff cannot get it by the distringas, a ca. sa. or ft. fa. may be directed to be issued for the alternative value. Notice of a motion to supersede distringas, or for a ca. sa. or a ft. fa., in lieu thereof, need not be given by the plaintiff to the defendant. In the case of Jordan (Administrator) vs. Williams, 3 Rand., 501, decided October, 1825, it was held : On a distringas fi. fa. the sheriff cannot distrain the very property for which the exe- cution issued, nor can he seize and sell it to pay the damages mentioned in the execution. SECTION 3586. See the case of Garland vs. Bugg, 5 Munf., 166, quoted supra, Section 3585. SECTION 3587. In the case of Price vs. Crump, 2 H. & M., 89, decided March 11, 1808, it was held : Money lent bona fide to a sheriff, and applied by him to his own use prior to receiving a writ of fieri facias against the lender, is not liable to satisfy such execution, either in law or equity, notwithstanding the same money was originally deposited in his hands as a pledge for certain pur- poses. In the case of Bullitfs Executors vs. Winstons, 1 Munf., 269, decided March 22, 1810, it was held: A writ of fieri facias may be levied without touching or removing the property, provided it be in the immediate power of the sheriff, and admitted by him to have been taken to satisfy the debt. The sheriff's per- mitting the property to remain in the possession of a third per- son or of the defendant, under a verbal engagement to produce it on the day of sale, does not prevent thej. fa. from having been levied in contemplation of law, the sheriff being responsi- ble to the plaintiff if the property be not produced. Parol evidence is admissible to prove that a fi.fa. was levied, though no return was made upon it. A sheriff may be permitted, by order of court, to make a re- turn upon an execution, or to amend it according to the truth of the case, at any time after the return-day. A plaintiff, by directing the sheriff to put off the sale of pro- perty taken in execution to a day after the return-day, and to suffer it to remain in the possession of the principal defendant or his securities, releases the securities altogether from that or any subsequent execution, such direction being given without their concurrence. In such a case the plaintiff's adding to the CITATIONS TO THE CODE op VIRGINIA. 921 direction the words "holding the property subject to the said execution" cannot prevent the release from operating. An appeal from, or supersedeas to, an order quashing an exe- cution against two defendants need not, if one of them die, be revived against his representative, but should be proceeded on as to the other only. In the case of Dix vs. Evans, 3 Munf., 308, decided Novem- ber 20, 1812, it was held: The sheriffs failing to mention in his return of an execution one of the negroes on whom it was levied is no ground for reversing a judgment on a forfeited forthcoming bond in which that negro is mentioned as one of those on whom such execution was levied. It seems that where a capias ad satisfaciendum is executed at any time before the return-day thereof, the sheriff may re- ceive property tendered by the debtor in discharge of his body out of custody, and may appoint a day of sale posterior to the return-day ; and that a bond for the forthcoming of such pro- perty is good in law, though dated after such return-day. In the case of Lusk vs. Ramsay, 3 Munf., 417, decided No- vember 9, 1811, it was held: The lien by virtue of the writ of fieri facias upon the property of the debtor is not released by his giving a forthcoming bond, but continues until such bond is forfeited. In the case of Steele vs. Brown et als., 2 Va. Cases, 246, de- cided by the General Court, June, 1821, it was held : A writ of fi. fa. may be levied on ready money in the possession of tho defendant. For the reference to 2 Leigh, 268 and 280, see case of Coutts vs. Walker, ante, Section 3567. In the case of Turnbull (Executor, etc.) vs. Claibornes, 3 Leigh, 392, decided December, 1831. Eobertson, executor of Cole, re- covers judgment against Claibornes, and sues out execution thereon ; before the execution is delivered to the sheriff, Robert- son dies ; the execution being then delivered to the sheriff, he levies it on property of defendant, and takes a forthcoming bond payable to Robertson, executor of Cole. Held : The execution was properly levied, though Robertson was dead before it was Delivered, and the forthcoming bond was rightly taken to Rob- ertson, as executor, and was good. In the case of Governor for fisher vs. Van Meter, 9 Leigh, 18, decided November, 1837. A sheriff having levied a ft. fa. on goods of the debtor, receives an order to postpone the sale from an unauthorized person, and postpones the sale accord- ingly, and the sheriff relies on the acquiescence of the plaintiff in tl'ie order to discharge him from liability for conforming with it. Held : It is incumbent on him to prove such acquiescence, and the time of it, for if it occurred after the sale day of the 922 CITATIONS TO THE CODE OF VIRGINIA. execution, it would be of little weight, since then all the mis- chief had been done. When goods have been taken in execution under &Jt.fa,^ a direction given by the creditor to the sheriff to restore the goods to the possession of the debtor is fraudulent and destroys the lien of the execution on the goods ; but a mere order to post- pone the sale without collusion does not affect the lien of the execution. A deputy sheriff having levied a fi. fa. on the goods of the debtor, receives an order from the creditor to postpone the sale for two months, holding the property subject to the sheriff's control to satisfy the debt, and the deputy sheriff postpones the sale, but instead of holding the property, restores it to the debtor, whereby the lien of the execution is destroyed and the debt ultimately lost. Held : This is official misconduct in the deputy, for which the sheriff and his sureties are liable in an action on his official bond. In the case of Pegram vs. May, 9 Leigh, 176, decided Jan- uary, 1838. A creditor delivers a fi.fa. to a deputy sheriff act- ing in a different district of the county from that in which the debtor resides, in order by such delivery to bind the debtor's property, but with directions to the deputy to hold it till a future day, and then to transfer it to the deputy of the district in which the debtor resides, to be by him levied, unless the debt should be paid in the meantime, or unless the debtor should bring his property to the district of the first deputy to be sold, in which case the first deputy was to levy the execu- tion upon it. Held: The execution binds the goods of the debtor from the date of its delivery to the first deputy. In the case of Cartes Administrators vs. Glasscock's Admin- istrators, 3 Grat., 343, decided October, 1846, it was held : The lien which a creditor acquires by a levy of his execution upon personal property, if not enforced by a sale thereof, is only temporary, and expires with the authority to sell under the exe- cution. Therefore a surety of the debtor who afterwards pays the debt has no right to be subrogated to the lien of the execu- tion upon this property. In Langster's Case et als., 17 Grat., 124, decided October 29, 1866, it was held, pp. 129-'32 : A sheriff who takes the pro- perty of A. under an attachment against the property of B. thereby not only commits a trespass, but plainly violates the duty of his office, and breaks the condition of his official bond ; and his sureties are liable for his act. In the case of Walker et als. vs. The Commonwealth, 18 Grat., 13, decided October, 1867, it was held : The levy of an execu- tion of fi. fa. does not divest the defendant in the execution of the property and transfer the title to the plaintiff or the sheriff. CITATIONS TO THE CODE OF VIRGINIA. 923 Only a special interest is vested in the sheriff as a mere bailee, to enable him to keep the property safely, and defend it against wrong-doers. It is in the custody of the law, and the sheriff has a naked power to sell it and pass the title of the owner to the purchaser. A plaintiff may always, with the consent of all the defendants, abandon a levy upon the property of all or any of them, and afterwards sue out a new execution. If the defendants in an execution be a principal and his sure- ties, and the property levied on be that of the sureties, the plaintiff may, with the consent of the sureties only, abandon the levy and afterwards sue out an execution against all the de- fendants. If the levy be abandoned by the sheriff, with the consent of the defendants, without the concurrence or authority of the plaintiff; or if the property be eloigned or removed by the de- fendant out of the reach of the sheriff, without the consent of the sheriff or the plaintiff, the latter may sue out a new execu- tion. But if the property levied on be lost to the defendant by the misconduct or neglect of the sheriff, the execution is thereby satisfied, to the extent of the value of the property; and the plaintiff can only look to the sheriff for indemnity. A mere suspension of proceedings on a levied execution does not authorize a restoration of the property to the possession of the defendant, or release the levy. And if by a misunderstand- ing of the directions of the plaintiff by the sheriff and the de- fendants the property is released by the sheriff to them, the plaintiff may have a new execution. In a proceeding at law against several parties, judgments against one or more are entered at one time, and against others at another time, one execution may be issued against all. Upon a motion to quash a second execution in vacation, the judge may, in vacation, allow the sheriff to amend his return on the first execution. In the case of O 1 Bannon et als. vs. Saunders, 24 Grat., 138, decided November, 1873, it was held: When an execution is placed in the hands of a sheriff, the presumption of law is that he has levied it and made the money, and in the absence of evi- dence that he did not levy it, he and his sureties will be liable for the debt to the creditor. If the sheriff fails to levy the execution, when he might do it, he and his sureties are liable for the debt. Execution is issued in June, 1860, and the sheriff does not return it until 1868, after suit is brought against him and his sureties, when he returns that he had received the money in 1861 or 1862. A law to stay the levy of executions and directing 924 CITATIONS TO THE CODE OF VIRGINIA. that when levied at the time the sheriff should restore the pro- perty to the debtor, was passed in July, 1861. The court will presume against the sheriff and his sureties that the money was received on the first of January, 1861. In the case of Paine (Survivor, etc.) vs. Tutwiler, et als., 27 Grat., 440, decided March, 1876. Execution on a forthcoming bond for $318.53, in the name of K. against T., returnable December rules, 1860, went into the hands of J., deputy of S., sheriff of the county of F. On January 1, 1861, J. becomes sheriff of F. In May, 1861, J. receives from T. $176.40 on this execution and signs his own name to the receipt with the addi- tion of sheriff, but he does not return the execution. In Feb- ruary K. issues another execution on the judgment ; then T. files his bill to enjoin it, on the ground that he had paid it, and he files J.'s receipt for $176.40. Neither T. nor J. can say posi- tively whether the execution was or was not levied, or whether J. received the money, as deputy of S., or as sheriff. Held : After the great lapse of time the court will presume that the execution was levied by J. before the return-day, and that he received the money as duputy of S., so as to entitle T. to a credit for the amount paid. In the case of Orandstaff (late Sheriff) et als. vs. fiidgley Hampton & Co., 30 Grat., 1, decided January, 1878. The act, though it gives to & fieri facias the effect of a continuing lien, after the return-day, upon all the personal estate of the execu- tion debtor, except as therein stated, does not enlarge the pow- ers of the sheriff with respect to executions, and was not so in- tended. It simply extends the lien for the benefit of the cred- itor. The authority of an officer to collect money in discharge of an execution does not result from the lien, but is a consequence of the right to levy and sell the debtor's property under the ex- ecution. So long as the right to sell continues, the right to receive remains, but no longer. If the officer levies before the return-day of the writ, he may sell after the return-day has passed; and, as a necessary conse- quence, he may receive payment without selling. But if he fails to levy before the return-day, his authority to sell after- wards ceases, and with it the right to receive payment in dis- charge of the writ. He may receive payment at any time be- fore the return-day without a levy. In the case of Sage et als. vs. Dickinson et als., 33 Grat., 361, decided July, 1880. A judgment is obtained in 1870 on a con- tract entered into prior to the present Constitution of Virginia, and in the same year an execution issued thereon was placed in the hands of the deputy-sheriff, and was levied on property of the judgment debtor, who gives a forthcoming bond, and has CITATIONS TO THE CODE OF VIKGINIA. 925 the property forthcoming on the day and place of the sale. The debtor then claims the property as exempt under the homestead provision of the Constitution and the statute of Vir- ginia, and the deputy -sheriff releases the property to him with- out requiring an indemnifying bond of the creditor, or even notifying him of the claim of homestead set up by the debtor. In a suit by the creditor against the sheriff and his sureties to recover the value of the property lost by the conduct of the deputy, held : The sheriff and his sureties are liable. When an officer surrenders property he has seized under an execution, he does it at his peril, and the burden of establish- ing that it is not liable to levy is on him. In the case of Rhea et als. vs. Preston, 75 Va., 758 and 771- 772, decided July 21, 1881. The mere levy of an execution is not a satisfaction. There must be a sale or some other act di- vesting the debtor of his title, or depriving him of his property. And where the property levied on is left with the debtor and the levy abandoned, other creditors may resort to it, if they see fit, in like manner as if no execution had issued. SECTION 3591. The case of Rullitfs Executors vs. Winstons, 1 Munf., 269-284, is quoted ante, Section 3587. In the case of Rucker vs. Harrison, 6 Munf., 181, decided October 15, 1818, it was held : If a supersedeas to a judgment, execution being levied and a forthcoming bond taken, be issued before the day of sale, and thereupon the property be not forth- coming, the penalty of the bond is saved, and no motion lies upon it. It seems, too, that if the property taken in execution be in the sheriff's hands at the time of his receiving the supersedeas, or if it be delivered to him on the day of sale after his receiving such writ, he ought to restore it to the owner. An amended return by a sheriff upon an execution, stating that a writ of supersedeas was issued on a day specified, being a day previous to that appointed for the sale of the property taken in execution ; that he thinks the said writ was delivered to him on the day of sale ; and that the property, for which a forthcoming bond was given, was not delivered at the day and place of sale, is sufficiently precise and certain. In this case the sheriff was permitted by the court to amend his return after a lapse of seven years from its date. In the case of Smith and Richard vs. Tnplett <& Neal, 4 Leigh, 590, decided November, 1833. Upon a bond, assigned for valuable consideration, the assignees bring suit against the obligors, recover judgment, and sue out a fieri facias, which is levied, and a forthcoming bond taken, and, that being returned 926 CITATIONS TO THE CODE OF VIRGINIA. forfeited, execution is awarded thereon against principal and surety, and &ji.fa. is sued out on the forthcoming bond, and on this execution the sheriff returns "mtlla bona" as to the surety, but not as to the principal; then the assignees bring suit against the assignors, and, after trial and verdict for the defendants, court allows the sheriff to amend his return, and to return "nulla bona" as to the principal in the forthcoming bond, and gives plaintiff leave to amend his declaration, and to count on the amended return. Held : It was right to permit the sheriff so to amend his return, and to permit the plaintiffs so to amend their declaration. In the action between the assignees and assignors .the sheriff's return of "mtlla bona" on the execution against the obligors in the forthcoming bond, though amended after the assignees' ac- tion, and five years after the return, so as to show the insolv- ency of both, is conclusive evidence of such insolvency. In such case the insolvency of the debtors might be proved by other evidence, but the assignees have a right to the conclusive evidence of the sheriff's return. In the case of Wardsworth vs. Miller, 4 Grat., 99, decided July, 1847, it was held: A sheriff will be permitted to amend his return on an execution after an action has been commenced by the plaintiff in the execution against the sheriff and his sure- ties on his official bond, founded on said return. In the case of Stone vs. Wilson, 10 Grat., 529, decided Octo- ber, 1853, it was held, pp. 533-'34: A sheriff may have leave to amend his return upon an execution, after notice of a motion against him founded on the original return ; and the amended return may be made by a deputy who did not make the first re- turn. A second notice to the sheriff is not necessary after the amended return ; but the plaintiff may proceed upon the origi- nal notice. Under the act an action of debt may be maiutained against a sheriff for either a wilful or negligent escape. In order to main- tain the action it is only necessary for the plaintiff to show the escape, which may be done by evidence aliunde the return on the execution. And to defeat the action the sheriff must show that the escape was tortious, and that fresh pursuit was made. For the reference to 25 Grat., 211, 217 '18, see ante, Sec- tion 3577. In the case of Hammen (Sheriff] et als. vs. Jtfinnick, 32 Grat., 249, decided September, 1879. A sheriff cannot amend his re- turn upon an execution after it has been filed, except by motion to the court, upon notice to the creditor. A deputy-sheriff returns upon an execution, " Levied upon a lot of wheat, &c.," setting out the several species of property. Upon debt by the creditor against the sheriff and his sureties CITATIONS TO THE CODE OF VIRGINIA. 927 upon his official bond for failing to make the money on the exe- cution, they plead, "Condition performed." Held: The de- fendants may prove by the deputy that he had at the time other executions of prior date, and taxes due the State and the county, all of which had been before levied on the same pro- perty, and the whole proceeds thereof were consumed in the payment of these executions and taxes; and that the debtor had no other property unencumbered out of which the plain- tiff's execution could have been made. In the case of Carr et als. vs. Mead's Executrix et als., 77 Va., 142, decided February 8, 1883, it was held, p. 159-'60 : Having made return on an execution, and on that return, in part, a de- cree having been entered, in subsequent proceedings against him and his sureties, the sheriff will not be permitted to amend his return so as to explain it away and enable his sureties to escape liability for his default. The record in proceedings whereby a sheriffs liability (e. g., on his return) has been adjudicated, is admissible as evidence against his sureties, and is prima facie proof of their liability, although those sureties were not parties to that record. SECTION 3594. In the case of Haivison & Co. vs. Ilickmaris Executors, 1 Call, 295 (2d edition, 257), decided May 15, 1798, it was held: No distrinyas lies against the executors of the old sheriff to oblige them to sell property taken by him in his lifetime under a writ of fieri, facias. SECTION 3596. In the case of Wilson vs. Stokes <& Betts, 4 Munf., 455, de- cided October, 1815, it was held : It seems that since the attor- ncy-at-law who prosecutes a suit and obtains judgment has full power to receive the money recovered when levied by execution, a demand made by him of the sheriff by whom it is levied is sufficient to authorize a motion against such sheriff for non- payment. In the case of Chapman vs. Cfieves, 9 Leigh, 297, decided March, 1838, it was held : Where an execution is delivered to a sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney-at-law practicing in the sheriff's county to collect the money, without, however, giving the attorney a written order, and then the attorney makes a demand of the money from the sheriff, such demand, if no objection be made at the time to the authority of the attorney to receive the money, is, notwithstanding the statute, a sufficient demand to justify a judgment against the sheriff. In the case of Ballard vs. Thomas & Amman, 19 Grat., 14, decided November 14, 18G8, it was held, p. 25 : A county credi- 928 CITATIONS TO THE CODE OF VIRGINIA. tor provided for in the county levy is not bound to apply to the sheriff or his deputies for payment before he proceeds to en- force payment of his debt by the sheriff and his sureties. Page 25, the court said " this statute is confined to money made under execution." In the case of O" Bannon et als. vs. Saunders, 24Grat., 138, de- cided November, 187S, it was held, pp. 144-'45: Proof that money collected on an execution by counsel for plaintiff within the county is sufficient to repel an excuse based on the fact of the plaintiff's non-residence. In the case of Grandshtff (late Sheriff] et als. vs. Ridgley, Hampton & Co., 30 Grat., 1, decided January 1878, it was held, pp. 14, 15 : In an action by an execution-creditor against the sheriff ' and his sureties upon his official bond for the failure to pay over the money he had collected on the execution which had gone into the hands of one of his deputies, the declaration not stating that the plaintiff did not reside in the county of the sheriff, it is not necessary to aver that a demand had been made upon the sheriff as prescribed by the statute before the action was instituted. If it appears upon the trial that the plaintiff in the execution did not reside in the same county with the sheriff, then, unless the plaintiff proves that such demand was made on the sheriff, his action must fail. SECTION 3597. In the case of Eckhols vs. Graham, et als., 1 Call, 492 (2d edi- tion, 428), decided April 30, 1799, it was held: If plaintiff sues a second execution before the property taken under the first is disposed of, he waives the first, and destroys the lien on the property taken under the first. In the case of Coleman vs. Cocke, 6 Rand., 618, decided De- cember, 1828, it was held : According to the equitable and cor- rect construction of our statute concerning executions, if a creditor by judgment or decree sues out a fi. fa. which is levied and returned satisfied in part only, he may take out another kind of execution (as the elegit) without pursuing the fi. fa. to return of nihil. In the case of Windrum vs. Parker, 2 Leigh, 361, decided Oc- tober, 1830, it was held : The statute of executions authorizes a party who has sued out one execution to sue out other execu- tions if the first be not returned and be not executed; if the first be executed though not returned, the party is not entitled to sue out any other execution. For the reference to 81 Va., 329, see Sutton vs. Mayre (Audi- tor), ante, Section 3577. CITATIONS TO THE CODE OF VIRGINIA. 929 SECTION 3599. In the case of Ilendricks et als. vs. Dundas, 2 Wash., 63 (1st edition, 50), decided at April term, 1795, it was held: Every court has power to watch over the execution of its process, and when it has been irregularly or fraudulently executed, to quash it. If the commissioners who take a replevy bond act improperly, the court will, on motion, quash the bond. In the case of Fergueson et als. vs. Moore, 2 Wash., 68 (1st edition, 54), decided at April term, 1795, it was held : A bond taken upon replevying property distrained for rent must be re- turned to the court to which the officer levying the distress be- longs, or to the court of that county in which the land lies. Property distrained for rent can be sold only by an officer duly qualified as such as by a sheriff or constable. In the case of Burwell vs. Anderson, 2 Wash., 249 (1st edi- tion, 194), decided at April term, 1796, it was held: A super- sedeas will not lie where an execution was improperly issued upon a twelve months replevin bond. The injured party may move to quash the execution, and the judgment on that motion, if erroneous, may be corrected on an appeal or supersedeas. In the case of The Commonwealth vs. Hewitt, 2 H. & M., 181, decided March 24, 1808, it was held : A party may, without any previous notice, move the court to direct an execution to be issued (where the clerk refuses to issue one) or to quash an exe- cution, and it will be so far considered a cause depending that either party may appeal from the decision of the court on such motion. In the case of Moss vs. Moss's Executors, 4 H. & M*, 293, de- cided October, 1809, it was held : If the clerk of an inferior court misconceive a judgment and issue execution against any persons not properly a party thereto, the remedy is not by supersedeas or writ of error, but by motion to quash the execu- tion, and if such motion be overruled an appeal may be taken to the court of error, or an application may be made for a writ of error or supersedeas to the order overruling such motion. The case of Bullitfs Executors vs. Winston's, 1 Munf., 269-'84, is quoted ante, Section 3587. In the case of Hamilton vs. Shrewsbury, 4 Hand., 427, de- cided August, 1826, it was held, p. 431: If the execution is valid so far as to bind the property, but the sale under it is void, on account of the interest or improper conduct of the sheriff, the court from which the execution issued may correct the abuse of its own process by quashing the execution, etc., and there is no ground for equity to interfere. In the case of Smock vs. Dade, 5 Kand., 639, decided by the General Court, November, 1826, it was held: If, on a motion (to quash an execution, or enter a judgment satisfied), the re- 59 930 CITATIONS TO THE CODE OF VIRGINIA. lief of the party depends on matters of fact, the court has a dis- cretion to direct a jury to try the facts. In the case of Crawford vs. Thurmond et als., 3 Leigh, 85, decided October, 1831. A. recovers a judgment against B., and C., who had prosecuted the suit to judgment as A.'s agent, sues out a fi. fa. upon it, and endorses on the execution that it is partly for his, C.'s, own benefit; before this execution is de- livered to the sheriff, B., the debtor, makes a satisfaction to A. of the full amount of the debt, and A. gives him a receipt in full and discharge. Held : Though B., the debtor, might have made a motion to quash the execution, and thus had remedy at law, yet a court of equity has jurisdiction to give him relief by way of injunction to inhibit further proceedings on the execution. In the case of Shackleford vs. Apperson, 6 Grat., 451, de- cided October, 1849. In a suit to subject land for the payment of the purchase-money there is a decree against the defendant for a sum certain; and if he shall fail to pay it within thirty days, a commissioner is directed to sell the land upon terms prescribed in the decree. Held : The clerk has no authority to issue an execution on this decree without an order of the court or of the judge in vacation. Though circumstances may exist which will warrant the court, or a judge in vacation, to allow process of execution in such an interlocutory decree, these circumstances must be shown, and if not shown, it is improper to allow it. If an execution is issued by the clerk without an order of the court, or the judge in vacation, the court may quash the execu- tion in tejm, or the judge in vacation may restrain proceedings upon it by an injunction order. In the case of Shumaker vs. Nichols, 6 Grat., 592, decided January, 1850, it was held : A tender of money in payment of a judgment will not authorize the quashing of an execution issued thereon, unless the tender is followed by the payment of the money into the court, and a motion to enter satisfaction on the record. A tender of money in payment of a judgment will not au- thorize a court of equity to stop the execution, where there is neither allegation or proof that the defendant in execution kept the money on hand for the discharge of the judgment. In the case of ^Morrison vs. Speer, 10 Grat., 228, decided July, 1853, it was held : A party claiming that he has not been cred- ited for all the money paid by him to the sheriff on an execu- tion, may have any injustice done to him in that respect cor- rected by the court from whence the execution issued ; and it is not a case for an injunction and relief in equity. In the case of Beckley vs. Palmer et al., 11 Grat., 625, decid- ed July, 1854, it was held : Where the debtor in an execution CITATIONS TO THE CODE OF VIRGINIA. 931 objects that a previous execution has been levied by the sheriff upon sufficient property to satisfy the judgment, and that he has improperly misapplied the proceeds of the sale of the pro- perty, or if he insists that payment has been made to the sheriff which has not been credited on the execution, if he has an op- portunity to apply to the court of law from which the execution issued for redress, he has no right to come into equity for relief. In the case of Coleman's Administrators vs. Anderson, 29 Grat., 425, everything relating to this section is a mere quaere, and is of no effect. In the case of Snaveley et als. vs. Harkrader et als. 30 Grat., 487, decided July, 1878. In a suit by infants who have re- moved out of the State, by their next friend, against their Vir- ginia guardian, they ask that their property may be transferred to their foreign guardian, and the court decrees that the amount ascertained to be due from the Virginia guardian to the several plaintiffs shall be paid to the foreign guardian, and that he may sue out execution upon the decree. Upon appeal, so much of the decree as directs the payment to the foreign guardian is re- versed, and he is directed to proceed according to the statute to have the infants' estate removed ; and when that is done, the circuit court may decree that the said several sums shall be paid over to him. Without any further proceeding, several execu- tions are sued out in the name of the infants for the amounts due respectively, the executions being made returnable in less than four weeks; and the Virginia guardian enjoins the execu- tions. Held: Although, under the statute, the defendants in the executions might have asked the court, or the judge in va- cation, to quash them, as this must be done upon notice to the plaintiffs, and could only have been done by publication as to these foreign plaintiffs, under the circumstances the defendants were entitled to enjoin the executions. For the reference to 81 Va., 329, see the case of Button vs. Marye (Auditor), ante, Section 3577. SECTION 3600. In the case of Enders's Executors vs. Burch, 15 Grat., 64, de- cided January, 1859, it was held : When a court authorizes exe- cutions to issue upon judgments recovered during the term, the judgments become final from the time when execution may issue, and cannot afterwards be set aside by the court. In the case of James River and Kanawha Company vs. Lee, 16 Grat., 424, decided November 23, 1863, it wafe held, p. 433: An office-judgment in an action of ejectment does not become final without the intervention of a court or a jury, but there ought in every such case to be an order for an inquiry of dam- ages. 932 CITATIONS TO THE CODE OF VIRGINIA. CHAPTEK CLXXYI. SECTION 3601. In the case of Puryear vs. Taylor, 12 Grat., 401, decided May 18, 1855, it was held: A fieri facias is a lien from the time it goes into the hands of the officer to be executed upon all the personal estate of the debtor, including debts due to him, with the exception stated in the statute, and this lien continues after the return-day of the execution, and only ceases when the right to levy the execution, or to levy a new execution upon the j udg- ment, ceases, or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process. A lien of a fieri facias of prior date has priority over an at- tachment of subsequent date. In the case of Evans (Trustee) vs. Greenhow et als., 15 Grat., 153, decided April, 1859, it was held: The trustee and bene- ficiaries of a deed to secure bona fide debts without notice are purchasers for valuable consideration, within the meaning of the exception in the statute, and will be preferred to an execu- tion-creditor of the grantor in the deed as to a chose in action thereby conveyed. In the case of Charron & Co. vs. Boswell et als., 18 Grat. r 216, decided January, 1868, it was held : A fieri facias placed in the hands of an officer for execution is a legal lien upon all the personal property and choses in action of the debtor, from the time it goes into the hands of an officer, except in the cases stated in said section. This lien continues after the return of the execution "no effects," and his priority over a subsequent execution lien under the same law, even though there has been a proceeding by suggestion under the junior sooner than under the senior execution; and this though the executions issued from different courts. In the case of Trevilliarfs Executors vs. Guerranfs Executors, 31 Grat., 525, decided February 13, 1879, it was held: The lien of an execution of fieri facias upon the debtor's choses in action, though not enforced in his lifetime, continues after his death as against the other creditors of the debtor. In the case of Frayser's Administrator vs. R. <& A. R. R. Co. et als., 81 Va., 388, decided January 28, 1886. Eailroad is under trust to pay certain debts. At suit of trust creditors, receiver is appointed and ordered, after executing required bond, to take possession and carry on the railroad. Between such appoint- ment and the execution of said bond, &fi.fa. against the rail- road company is placed in the sheriffs hands; and there ar& funds in bank to the credit of the suit, representing the earnings, etc., of the road. Held : The^. fa. creditor is entitled to have those funds applied to satisfy his debt in preference to the trust creditor. CETATIONS TO THE CODE OF VIBGINIA. 933 SECTION 3602. See the cases cited supra, Section 3601. SECTION 3608. In the case of Shirley vs. Long, 6 Band., 735, decided by two judges only, August, 1827, it was held : When a debtor takes the insolvent oath, and delivers in a schedule, the sheriff is vested by the act of assembly with all the insolvent's estate, rights and interests, whether they are named in the schedule or not, and whether the property be in the possession of the debtor or in that of some other person. The clause of the act, "for such interest therein as such prisoner hath, and may lawfully part withall," is borrowed from the English statutes of bank- ruptcy, and has been used in all of our statutes of bankruptcy from 1726 to 1748, inclusive, as applying to partial interests in real estate, such as fees-tail, life estates, estates for years, re- mainders, reversions, etc., and not to personal estate. It is still to be so understood in the act of 1769, and in the revised laws of 1792 and 1819, and is not to be taken as a restriction on the vesting in the sheriff of the whole of the debtor's chattels, whether he may part with or deliver possession of them or not. Therefore, if an insolvent debtor, having made a fraudulent gift of a slave to a child, still retaining possession thereof in his schedule, disclaims all title to said slave, the law vests in the sheriff the legal title to the slave, the gift being void, and he may recover it in a court of law from the debtor. The sheriff has the right to sell and pass by deed a slave or other chattel which the insolvent debtor has made a fraudulent gift of to his child (but of which he retains the possession), and the purchaser, under such sale, may recover the slave or other chattel, although the sheriff had not possession of it at any time. If the property so fraudulently given be not in the possession of the insolvent debtor, but of some other person, although the title vest in the sheriff, it seems that he cannot sell the property in such case, but must proceed by summons against the person holding it. But even if the act were violated by selling the chattels of the insolvent before they came into the possession of the sheriff, yet, as the legal title is vested in him, if he does sell, the sale is not void, and the purchaser may recover. The sheriff is a trustee for the creditors, and for a violation of his trust he may be re- sponsible, but that does not prevent the legal title passing to the purchaser. A deed from a sheriff, which conveys all " the right, title, and interest vested in the sheriff by law, in and to eight negroes conveyed by a debtor to his children," without naming the negroes, is sufficiently descriptive to pass them. The identity 934 CITATIONS TO THE CODE OF VIBGINIA. of the negroes is matter of proof, and as soon as they are iden- tified the deed operates on them. SECTION 3609. In the case of Dillard vs. Thornton, 29 Grat., 392, decided November 22, 1877, it was held, p. 398: Where, under a de- fective judgment, a ft. fa. is issued, and there is a proceeding by suggestion against the persons indebted to the defendant, such defendant may, upon proper notice, appear in such pro- ceeding and have the judgment vacated and all proceedings thereunder quashed. A notice to reverse or correct a judgment by default, or to quash an execution, need not be in writing. All that is requisite is, that there should be reasonable notice. It is too late to make the objection in the appellate court that the notice was insuffi- cient, when the parties appeared and made no such objection in the court below. SECTION 3610. In the case of The Baltimore dc Ohio Railroad Company vs. G-allahue's Administrators, 12 Grat., 655, decided September 11, 1855, it was held : "When a corporation is proceeded against as a garnishee, its answer is to be received in the only mode in which a corporation can answer, under its corporate seal. In the case of Sickle et als. vs. Christman's Administratrix, 76 Va., 678 and 690-'93, decided September 28, 1882. Judg- ment-creditor garnisheed decedent's administratrix and got judgment by default de bonis testatoris. Decedent had owed a debt to the debtor of the judment-creditor, but that debtor had assigned it to B., who sued and got a judgment against the ad- ministratrix de bonis testatoris. Held: The judgment did not bind administratrix personally, because it was de bonis testatoris. It did not bind the decedent's estate in her hands, because it is well settled that process of garnishment at law will not lie against personal representatives. SECTION 3614. See the case of Shirley vs. Long, 6 Rand., 735, cited ante t Section 3608. In the case of C lough vs. Thompson, 1 Grat., 26, decided May 4, 1850, it was held: Upon taking the oath of insolvency, all the property and rights of the insolvent debtor are vested in the sheriff, who, as representative of the creditor, is entitled to assert the legal and equitable rights of the creditor and to set aside fraudulent conveyances of the insolvent debtor, and recover the property for the benefit of the creditor. In the case of Staton vs. Pittman (Sheriff], 11 Grat., 99, decided April, 1854. Judgments had been recovered against CITATIONS TO THE CODE OF VIRGINIA. 935 N., and executions sued out thereon had been returned "no effects." In this state of things, slaves sold at public auction on a credit were cried out to N., and he induced T. to take them and give his bond for the price, upon the understanding that N. would afterwards take them and pay T. the price, and he told T. he was indebted to his sister, R., for washing, mending, etc., and owed her a great deal of money, and he wished to give the slaves to her as a compensation for what he owed her. T. kept the slaves about three months, and then N. paid T. the price of the slaves, and T. gave N. a receipt in the name of R., and a a day or two afterwards T. sent the slaves to the house of B., the father of R., where R. then lived, she being about fourteen years old, and the slaves and R. both remained there, she claim- ing them as hers, but it not appearing that B. set up any claim to them. Whilst the slaves were yet at the house of B. the sheriff tried to levy upon them as the property of N., but when he came in sight the doors of the servants' houses were shut. Afterwards N. was taken on a ca. sa. and took the insolvent debtor's oath, and then the sheriff brought separate actions of detinue against B. and R. to recover the slaves. Held : The arrangement by N. was fraudulent as to his creditors. Though N. never had possession of the slaves, yet as he paid the purchase-money to T. they became the property of N. upon which his creditors would have been entitled to levy their exe- cutions, and the subsequent transfer of the possession to R. without consideration, and upon a fraudulent arrangement be- tween N. and R., did not bar the action of the sheriff for the slaves. CHAPTER CLXXVII. In the case of Wood vs. Davis, I Wash., 69, decided at the fall term of 1791, it was held : It is not necessary that the time appointed for the delivery of the property should be stated as that at which the sale is to take place. In the case of Irvin, Gait & Co. vs. Eldridge & Brackenridg^ 1 Wash., 161, decided at the spring term, 1793. The case of Wood vs. Davis, supra, was affirmed ; the same point was the only one in issue. In the case of Smith, <& Moreton vs. Wallace, I Wash., 254, decided at the spring term, 1794. The clerk refused to accept a bail-piece, because it did not mention the name of a defendant on whom the writ had not been served. Held : The bail-piece was good, and should have been accepted. In the case of Hubbard vs. Taylor, 1 Wash., 259, decided at the spring term, 1794, it was held: The condition must show against whom execution was issued, and whose property was taken in execution. 936 CITATIONS TO THE CODE OF VIRGINIA. In the case of Worsham vs. Eggleston, 1 Call, 48 (2d edition, 41), decided October 16, 1797, it was held : If, before the act of 1794, the sheriff, in taking a forthcoming bond, included his commissions on the debt, it was erroneous ; but in such a case the bond is not void, and the judgment shall be entered for the sum due without the commissions. In the case of Wilkinson vs. McLoctilin & Co., 1 Call, 49 (2d edition, 42), decided November 17, 1797, it was held: If in a forthcoming bond the teneri be right, though the solvendum be wrong, it will not vitiate ; the bond is good. In the case of Winston vs. The Commonwealth, 2 -Call, 290 (2d edition, 246), decided April 30, 1800, it was held : One forthcoming bond may be taken on several executions. Two separate bonds may be included in one instrument. In the case of Bartley vs. Yates, 2 H. & M., 398, decided May 2, 1808, it was held : Though there be a total blank for the name of the surety in the obligation part of a forthcoming bond, yet his name being mentioned in the recital of the condition, and he having signed and sealed it, was he!4 sufficient to charge him. A Jblank being left in the condition of a forthcoming bond for the name of the high sheriff, to whom the property was to be delivered at the time and place of sale, was held not to vitiate it, the name of the high sheriff having been mentioned in a for- mer part of the condition. In the case of Glascocti s Administrators vs. Dawson, 1 Munf., 605, decided May 23, 1810. A writ of fieri facias against an administratrix, " to be levied, as to certain damages and costs, of the goods and chattels of her intestate, and, as to other dam- ages and costs, of her own goods and chattels," was returned " executed on certain slaves, the property of the administratrix, and a forthcoming bond taken," etc. The forthcoming bond, being given by the administratrix eo nomine, but expressing that the fi. fa. was against the goods and chattels of the said admin- istratrix, was decided to be variant from the ft. fa., and, there- fore, was quashed. In reviewing a judgment by default on a forthcoming bond, the appellate court will compare it with the execution on which it was taken. In the case of Bronaughs vs. Freeman's Executor, 2 Munf., 266, decided May 2, 1811, it was held: A forthcoming bond mentioning the persons against whom the execution issued, and "they were desirous of keeping in their possession until the day of sale the property taken by the sheriff," sufficiently de- scribes it as their property. Where a judgment upon a forthcoming bond is obtained against a defendant having legal notice and appearing by at- torney, but not moving to quash the bond, nor stating by plea CITATIONS TO THE CODE OF VIKGINIA. 937 or bill of exceptions any variance between it and the execution, the appellate court is not to reverse the judgment on the ground of such variance. The sheriff's fee for taking the forthcoming bond may be in- cluded in it. In the case of Beale vs. Wilson et als., 4 Munf., 380, decided March 20, 1815, it was held: A forthcoming bond appearing in other respects to be in proper form ought not to be quashed on the ground that in the obligatory or penal part thereof a blank is left for the names of the obligors. A forthcoming bond being inserted in the transcript of the record is to be taken as the forthcoming bond on which the court gave judgment, without any certificate by the clerk to that effect. If a judgment quashing a forthcoming bond be reversed, the appellate court will not proceed to give judgment for the plain- tiff, unless it regularly appear that the defendants had legal notice of the motion, or appeared to oppose it. If, therefore, there be no bill of exceptions making the notice stated in the record a part thereof, and it does not appear by the judgment itself that the defendants had legal notice, or appeared in the court below, the cause should be sent back to give the plaintiff an opportunity to prove his notice, and the defendants to make any defence thereto which their case may admit of according to law. In the case of Harpers et at. vs. Patton, 1 Leigh, 306, de- cided June, 1829, it was held: FL fa. against three, A., T. and H. Forthcoming bond taken, the condition whereof does not distinctly state to which of the three defendants the property taken in execution belonged, and omits to state that it was re- stored to the debtor. Held : The bond is good. Judgment on forthcoming bond, instead of awarding exe- cution thereon, is, that plaintiff recover the debt against de- fendants. Held : Irregular in form, yet well in substance. For reference to 1 Leigh, 442, see Meze vs. Ifower, cited ante, Section 3583. For reference to 3 Leigh, 392, see Turnbull vs. Claiborne, ante, Section 3587. In the case of Douglass vs. Fogg, 8 Leigh, 588, decided July, 1837. M. sells lands to F., who gives two bonds for the pur- chase-money. D., for whose benefit the purchase is made, pays off the first bond and part of the second. The balance he de- livers to F. to be paid to M., but it is not paid over, and suit is brought for the same on the second bond against F. Judg- ment being rendered, F. gives a forthcoming bond with surety, which is forfeited, and afterwards obtains an injunction upon giving bond with surety to pay the amount of the judgment in 938 CITATIONS TO THE CODE OF VIRGINIA. case the injunction shall be dissolved. The injunction is after- wards dissolved, and judgment rendered against the surety in the injunction bond, which he satisfies. Then the surety claims for this money paid him in satisfaction of the vendor's claim, that the vendor had a lien upon the land, and files a bill to be sub- stituted in the place of the vendor and have the benefit of the lien. Held : The claim to substitution cannot be sustained, and the bill must therefore be dismissed. In the case of Hairston vs. Woods, 9 Leigh, 308, decided March, 1838. By a fieri facias the sheriff is commanded to cause principal, interest, and costs to be levied of the goods and chattels of J. W., in the hands of S. H., his administrator, if so much thereof he hath, but if not then out of the goods and chattels of S. H. There being no goods and chattels of J. W. in the hands of S. H., the sheriff levies the execution on the in- dividual property of S. H., and takes a forthcoming bond, which recites the execution as being against the goods and chattels of S. H., administrator of J. W., deceased. Held : There is no sub- stantial variance between the execution and the recital thereof in the forthcoming bond. In the case of Spencer vs. Pitcher, 10 Leigh, 490 (2d edition, 512), decided July, 1839. A forthcoming bond dated the 1st day of November, 1834, being conditioned for the delivery of the property " on the third Monday of November next," it is con- tended that there could be no breach of the condition until the third Monday in November, 1835. Held : By the court of ap- peals (construing the instrument according to the subject-matter and the evident meaning of the parties), that the day for the delivery of the property was the third Monday of November, 1834. A forthcoming bond being forfeited, notice is given that a motion will be made on it. After the notice, and before the term to which it is given, a supersedeas is awarded to the original judgment, and it is perfected by giving bond and security. The motion is then continued from term to term, until there is a de- cision affirming the original judgment. After that decision, but before a copy of it is received by the court in which the motion is pending, the motion is heard, and judgment entered against the obligors. It is objected that the court proceeded on its own unofficial information that the original judgment had been affirmed. But the only evidence in the record to show that a supersedeas had been awarded is the supersedeas bond. Held : 1. The right to move a forthcoming bond is not suspended by a supersedeas to the original judgment. 2. Whether this be so or not, the writ of supersedeas not hav- ing been given in evidence in the court below, there is no suf- ficient foundation for the objection to the proceedings of that court upon the motion. CITATIONS TO THE CODE OF VIRGINIA. 939 In the case of Booth vs. Kinsey, 8 Grat., 560, decided April, 1852. A debtor in execution executes a forthcoming bond to the creditor, and a third person and the obligee execute the bond with the debtor as his sureties. The bond being forfeited, the obligee gives notice to the principal obligor and the other surety of a motion for award of execution upon the bond against them, but the notice does not mention the obligee as a co- obligor. Held : That the bond is a valid bond to bind the other surety, but that he is only liable as a co-surety with the obligee. That if the principal creditor proves insolvent, the surety may be relieved to the extent of one moiety of the debt, either by bill in equity or by motion under the statute for the relief of sureties. The notice is not defective for failing to mention the obligee as a co-obligor. In the case of Washington vs. Smith, 3 Call, 13, decided May 1, 1801, it was held : A forthcoming bond given by the defend- ant only, without any security, will support a motion, and judg- ment will be rendered on it in favor of the plaintiff. In the case of Garland et als. vs. Lynch, 1 Hob., 545 (2d edi- tion, 576). The decisions in Randolph's Administratrix vs. Randolph, 3 Rand., 490, Taylor vs. Dundass, 1 Wash., 92, and Downman vs. Downman's J?xecutor, 2 Wash., 189, approved. In conformity with the principle of the first case. Held : That if judgment be rendered against two, and one gives a forthcom- ing bond with security which is forfeited, the other is not dis- charged from the original judgment, if the obligors in the forth- coming bond prove insolvent. But also held, according to the decisions in the two last cases, that the forfeited forthcoming bond will prevent any execution or other proceeding on the original judgment until the same be quashed. Even after execution has been awarded on a forthcoming bond, the bond may be quashed on the motion of the creditor to enable him to have execution on the original judgment, if the case be one in which the execution on the forthcoming bond has proved unavailing, without any default to the creditor. Where the sheriff takes from the owner of goods levied on under execution a forthcoming bond with security, and, upon the same being forfeited and execution awarded thereon, the obligors prove insolvent, the sheriff will not generally be liable to the creditor on account of such insolvency, if he can establish that the security was sufficient at the time of taking the bond. But where execution against two is levied on the goods of one, and he gives a forthcoming bond with the other as his only surety, such surety being already bound, is not security such as the law requires; and if the execution on the forthcoming bond prove unavailing, the sheriff will, in this case, be liable to the creditor, although he may prove that the surety in the forth- 940 CITATIONS TO THE CODE OF VIRGINIA. coming bond was sufficient in point of estate at the time of taking the bond. In a suit on a sheriff's bond under the act there is a demurrer to the evidence, and it appearing thereby that the party for whose use the suit is brought had an execu- tion against two, which was levied on the goods of one, who gave a forthcoming bond with the other as security, and that the bond being forfeited the execution awarded thereon proved unavailing, the circuit court holds the evidence sufficient to support the action. Some of the evidence which had been in- troduced tending to show that part of the debt might have been made under the execution on the forthcoming bond if the credi- tor had not interfered, the counsel for the defendants then in- sists that the jury weigh the evidence in assessing the damages. But the opinion of the circuit court is that the plaintiff must re- cover the amount of his debt, or nothing, and that t the evidence cannot be urged before the jury in mitigation of damages. Held: That in fixing the damages absolutely at the amount of the debt, and thus taking from the jury all discretion, the circuit court erred. In the case of Lusk vs. Ramsay, 3 Munf., 417, decided Novem- ber 9, 1811, it was held : The surety in a forthcoming bond has a right to deliver the property on the day of sale, if he can on that day peaceably obtain possession thereof. If the sheriff, after taking a forthcoming bond, accept the same goods from the defendant in discharge of his body from another execu- tion, and prevent the surety in such bond from delivering them on the day of sale therein appointed, the court of equity, on a bill for discovery and injunction, exhibited by the surety, will require the sheriff, and all parties concerned, to answer a charge of fraud and combination, and (whether fraud be established or not) will perpetually enjoin a judgment rendered against the surety upon the forthcoming bond as unconscionable against him ; leaving the plaintiff in that judgment to his remedy against the sheriff, and the sheriff to his remedy against the person who indemnified him, or to whom, by mistake, or in his own wrong, he paid the money in satisfaction of the second execution. The plaintiff, in the second execution, to satisfy which the sheriff improperly sells the goods, need not be a party to such suit in chancery, because the surety in the bond wants no decree against him. In the case of Taylor vs. Dundass, 1 Wash., 92, decided at the spring term, 1792, it was held : A replevy bond is the same as if the estate had been sold to the amount of the debt, and though it is an indulgence to the defendant, still the execution is considered as levied and the judgment discharged. In the case of Downman vs. Downrtians Executor, 2 Wash., CITATIONS TO THE CODE OF VIRGINIA. 941 243 (1st edition, 189-'91), decided at April term, 1796, it was held : A forthcoming bond should be made payable to the credi- tor, and not to the sheriff; the amount of the execution ought to be recited, and the condition should be to deliver the pro- perty at the time and place of sale, and not when demanded. If the bond be defective in any of the above instances the court may, and ought to, quash it on motion. A faulty forthcoming bond whilst in force is a satisfaction of the judgment, and a second execution cannot issue till it is quashed. The common course is to quash the execution, as well as the bond, if a motion for that purpose be made, other- wise it is not necessary. In the case of Randolph's Administratrix vs. Randolph, 3 Band., 490, decided October, 1825, it was held : Where judg- ment is obtained against principal and surety to a bond, and the latter gives a forthcoming bond which is forfeited, the orig- inal judgment is not thereby satisfied, although any farther proceedings on it will be barred until the forthcoming bond shall be quashed. For reference to 1 Kob., 545, see supra, this chapter. In the case of Robinson vs. Sherman, 2 Grat., 178, decided July, 1845. A judgment is obtained against three persons, and execution is issued thereon, which is levied on the property of one of them, who thereupon gives a bond with security for the forthcoming and delivery of the property on the day of sale ; and this bond is forfeited. Held : The execution and forfeiture of the bond did not discharge and extinguish the original debt as against the other joint debtors. The surety of a joint debtor in a forthcoming bond becomes, upon the forfeiture thereof, surety for the debt, and, when he has discharged it, is entitled to be substituted to all the rights of the creditor against the original debtors subsisting at the time he became so bound for the debt. The surety in a forth- coming bond is entitled to recover from the original debtors the principal, interest, and costs of the original judgment, but not the costs incurred by the execution and forfeiture of the forthcoming bond. The original debtors are each bound for the whole amount of the debt to the surety in the forthcoming bond who discharges it. In the case of Leake vs. Ferguson, 2 Grat., 419, decided Jan- uary, 1846, it was held : On a joint judgment against several, the service of a ca. sa. on one, and the execution and forfeiture of a forthcoming bond by him, does not extinguish the lien of the judgment upon the land of the others. In such a case, the party upon whom the ca. sa. was served, and who executed the forthcoming bond, having been a surety of the principal debtor in the judgment, his surety in the forthcoming bond having 942 CITATIONS TO THE CODE or VIBGINIA. paid the debt is entitled to the creditor's remedies against the land of the principal debtor ; and this, though the land was sold by the principal debtor, and had come into the hands of a bona fide purchaser for value without notice before the service of the ca. sa. In the case of Jones, etc., vs. MymcKs Executors, 8 Grat., 179, decided October, 1851, it was held: A forthcoming bond for- feited has the force of judgment so as to create a lien upon the lands of the obligors only from the time the bond is returned to the clerk's office. There being no evidence that the bond was returned to the clerk's office before the day on which there was an award of execution by the court, it will be regarded as hav- ing been returned to the office on that day. A judgment confessed in court in a pending suit, and the oath of insolvency taken thereon by the debtor upon his sur- render by his bail, has relation to the first moment of the first day of the term ; but a forfeited forthcoming bond which is not returned to the clerk's office until some day in the term after the first, when there is an award of execution thereon, has no rela- tion ; and therefore the assignment by operation of law under the first has preference over the lien of the forthcoming bond. Though a forthcoming bond is forfeited and not quashed, yet in equity the lien of the original judgment still exists; and if the obligors in the bond prove insolvent, so that the debt is not paid, a court of law will quash the bond so as to revive the lien of the original judgment. And a court of equity having juris- diction of the subject, will treat the bond as a nullity, and pro- ceed to give such relief as the creditor is entitled to under the original judgment. In the case of Bollard et als. vs. Whitlock, 18 Grat., 235, de- cided January, 1867, it was held: A forthcoming bond, with condition to deliver property taken in execution on a day of sale occurring after the return-day, is valid. A judgment and award of execution upon a forfeited forth- coming bond having been entered by default upon a day prior to that to which notice was given, the court in which the judg- ment and award of execution was rendered has jurisdiction on the motion of the plaintiff to set aside the judgment and quash the execution, upon reasonable notice to the defendants. In the case of Rhea et als. vs. Preston, 75 Va., 757, decided July 21, 1881, it was held, p. 774; A forfeited forthcoming bond stands as a security for the debt, and though while in force no execution can be taken out or other proceeding be had at law to enforce the original judgment, yet the bond is not an abso- lute satisfaction. For if it be faulty on its face, or the security when taken be insufficient, or the obligors, though solvent when the bond is taken, become insolvent afterwards, the plaintiff CITATIONS TO THE CODE OF VIRGINIA. 943 may, for these or other good reasons, on his motion, have his bond quashed and be restored to his original judgment. And though the bond be not quashed, if it appear that it may pro- perly be, a court of equity which looks to substance rather than form, and when occasion requires it treats that as done which ought to be done, will regard the bond as a nullity, and the original judgment as in full force. In the case of Barksdale <& Terry vs. Fitzgerald, 76 Va., 892 and 895. 1. Subrogation. Principal and Surety. Evidence. Case Here. Judgment against T. and another docketed April, 1872 ; fi. fa. levied and forthcoming bond taken with E. as surety ; bond forfeited and returned May, 1873, but not docketed ; judg- ment on the bond against all the obligors January 19, 1874, and docketed. E. claims that he paid the judgment as surety, and asks to be substituted to the lien of the judgment on the land of T., conveyed by trust deed to secure F., recorded January 4, 1874; fi. fa. on last judgment levied on principal obligor's pro- perty, but, with consent of surety, held up by plaintiff's order. The debt was then paid without sale. On the last fi. fa. is an endorsement purporting to be signed by W. & S., the judg- ment-creditor's attorneys, to the effect that the ft. fa. was satis- fied by E., and one of the attorneys deposed that he was induced to hold up the fi. fa. by the promise of one of the principals or the surety, E., or both, to see the money paid at an early day, whilst the testimony of the sheriff tends to show that if pay- ment was made by either the principal or E., it was probably by the former. Held : 1. The endorsement on foefi.fa. is not evidence against any other than the judgment-creditor. 2. The onus of proving the payment by himself, so as to en- title him to the relief he asks, rests on E., and as it is insufficient, the other questions involved are left undecided. See the references cited to Section 3574. In the case of LipscomVs Administrator vs. Davis 1 8 Admin- istrator, 4 Leigh, 303, decided February, 1833, it was held: The statute of limitations, whereby the remedy on a judgment by debt or scire facias is limited to ten years, is no bar to a motion on a forthcoming bond of more than ten years standing. It seems that a forthcoming bond has not the force of judg- ment till it is returned forfeited, and filed in the clerk's office ; and even after it is filed, it is only in a partial sense that it has the force of judgment before execution upon it is awarded. In the case of Pleasants & Co. vs. Lewis, 1 Wash., 273, de- cided at the fall term, 1794. A forthcoming bond for one thou- sand bushels of wheat was taken ; a quantity of wheat was de- livered, and received without objection by the sheriff; it was afterwards found to contain about five hundred bushels. Held : 944 CITATIONS TO THE CODE or VIRGINIA. Condition not performed by a partial delivery, and penalty for- feited. In the case of Nicholas vs. Fletcher, 1 Wash., 330, decided at the fall term, 1794, it was held; It is not necessary for the plaintiff to prove a forfeiture after the sheriff has returned upon the bond, but it is incumbent on the defendant to prove per- formance. In the case of Bernard vs. Scott $ Administrators, 3 Rand., 522, decided November, 1825, it was held : Where a "forthcom- ing bond is given, and the debtor, on the day of sale, pays to the creditor the full amount of the debt, interest, and costs, ex- cept the sheriff's commission, the bond will be forfeited, and a motion will lie upon it. In the case of ftucker vs. Harrison, 6 Munf., 181, decided October 15, 1818, it was held : If a supersedeas to judgment, ex- ecution being levied and a forthcoming bond taken, be issued before the day of sale, and thereupon the property be not forth- coming, the penalty of the bond is saved, and no motion lies upon it. For references to 2 Wash., 189, 191, and to 1 Rob., 545, see supra, this chapter. In the case of Jones vs. Hull, 1 H. & M., 211, decided June 2, 1807, it was held : The sheriff's failure to make a return on an execution is no ground for reversing a judgment obtained on a forthcoming bond taken in pursuance thereof. For reference to 1 Munf., 605, see supra, this chapter. For references to 2 Munf., 266, and 4 Munf., 380, see supra, this chapter ; also for 1 Wash., 161, and 4 Munf., 380. In the case of Hewlett vs. Chamberlaine, 1 Wash., 367, de- cided at the fall term, 1794, it was held: Where the bond is made payable to the sheriff an action of debt may be maintained by the creditor. In the case of Booker's Executor vs. Coutts's Executor, 1 Call, 243, (2d edition, 213), decided May 15, 1798, it was held : Execu- tors may maintain an action of debt upon a three months re- plevy bond payable to their testator. In the case of Beale vs. Downman et als., 1 Call, 249 (2d edi- tion, 219), decided May 15, 1798, it was held : If a forthcoming bond be taken payable to the sheriff, he may maintain an action of debt upon it. In the case of Syme vs. Johnson, 3 Call, 523 (2d edition, 453), decided June 30, 1790, it was held: It is not a valid objection to a surety to an appeal bond that he was surety to the injunc- tion bond also. In the case of Edmonds vs. Green, 1 Rand., 44, decided Jan- uary, 1822, it was held : A confession of judgment on a forth- coming bond will operate as a release of errors in the original CITATIONS TO THE CODE OF VIRGINIA. 945 judgment. Therefore, where an office-judgment is erroneously entered up against the principal and special bail, the latter afterwards gives a forthcoming bond, confesses judgment on the said bond, he cannot avail himself of the error in the original judgment. In the case of Cooper (Guardian) vs. Daugherty's Adminis- trators et als., 85 Va., 343, decided August 23, 1888, it was held : Equity will treat as a nullity a forfeited forthcoming bond, on the execution issued on the judgment whereon there has been a return of nulla bona, and regard the lien of the original judg- ment as still subsisting for the benefit of the creditor. In the case of Newberry vs. Sheffey (Commissioner), 89 Va., 286, decided July 6, 1892, it was held : Under Code, Section 3396, judgment on a forthcoming bond may be had against the sureties, though the principal has never been served with a notice of the motion. SECTION 3620. See references to Section 3210. SECTION 3621. In the case of Allen et als. vs. Hart, 18 Grat., 722, decided April, 1868, it was held : The defence of set-off is admissible in a motion upon a forthcoming bond taken on a warrant of distress. In the case of Carter et als. vs. Grant's Administrator, 32 Grat., 769, decided February 5, 1880, it was held : On proceed- ings upon a forthcoming bond given on a distress for rent, whether by motion or by action on the bond, the plaintiff must prove the contract of rent for which the distress was sued out. On such proceeding, though the warrant of distress was for more rent than was due, the plaintiff may have judgment for the less amount due. TITLE LI. CHAPTER CLXXVIII. In the Homestead Cases, 22 Grat., 266, decided Jane 13, 1872, it was held: Article 11, Section 1, of the Constitution of Vir- ginia, and the act of June 27, 1870, Chapter 157, passed in pur- suance thereof, in relation to homestead exemptions, are in conflict with Article 8, Section 10, of the Constitution of the United States, which provides that no State shall pass any law impairing the obligation of contracts, so far as the Virginia 60 946 CITATIONS TO THE CODE OF VIRGINIA. Constitution and Acts apply to debts contracted before that Constitution went into operation. In the case of Rose and Wife vs. Sharpless <& Son, 33 Grat., 153, decided April, 1880, it was held : Where a householder or head of a family executes a homestead deed as a part and in furtherance of a design to hinder, delay, and defraud his credi- tors in the recovery of their just debts, such deed will be viti- ated and invalidated by such conduct. The Constitution and Laws of Virginia not allowing property to be claimed as exempt for debts contracted for the purchase price of such property or any part thereof, where a large por- tion of goods claimed as exempt has not been paid for, and is so mingled with those that have been, as to put it out of the power of the vendors to distinguish between the two, the onus is on the person claiming the exception to show which have been paid for, and he failing to do this, they will all be treated as not having been paid for as far as the homestead deed is concerned, and therefore not exempt under the law. Qucere : Can a " home- stead" be claimed in a shifting stock of goods used in the way of trade? In the case of Shipe, Cloud <& Co. vs. Repass et als., 28 Grat., 716, decided July 26, 1877, it was held: Where a grantor in a conveyance of land had claimed homestead in bonds given for a part of the purchase-money by the grantee, and the convey- ance is afterwards set aside as fraudulent and void as to judg- ment-creditors of the grantor, he may claim homestead, as against the creditors, in the land or the proceeds of the sale thereof to the amount of said bonds. In the case of Boynton et als. vs. MacNeal et als., 31 Grat., 456, decided February 6, 1879. B. conveys a house and lot to H. in trust for the separate use of B.'s wife. M., a creditor of B., files a bill to set the deed aside as fraudulent and void as to creditors of B., and so the court decrees. B. then executes a deed of homestead of the house and lot, and files his petition in the cause to be allowed his homestead. Held : B. is entitled to his homestead in the house and lot as against M., the cred- itor. In the case of Marshall vs. Sears' Executors, 79 Va., 49, de- cided April 17, 1884, it was held: Where there is a fraudulent conveyance of property, which is subsequently annulled at the suit of the creditor, the grantor is not estopped, as against the creditor, to assert his right of homestead in the premises. In the case of Brockenbroug/i (Executor] et als. vs. Brocken- brough (Administrator) et als., 31 Grat., 580 and 596, decided March 13, 1879. A deed of trust to secure certain debts con- veys certain real estate, and the grantor reserves in it, to him- self and his family, all exemptions and property allowed by the CITATIONS TO THE CODE OF VIRGINIA. 947 Constitution of Virginia and by all laws passed in pursuance thereof, and, in addition thereto, all exemptions allowed under the bankrupt laws. Held : The reservation is legal and valid. In the case of Blose vs. Bear et aL, 87 Va., 177, decided De- cember 4, 1890, it was held: Lien of judgment attached before homestead was claimed in land cannot be enforced during the homestead's existence; but after the homestead is abandoned, it has priority over a trust deed executed during the occupancy of the land as a homestead. SECTION 3630. In the case of Farinholt vs. Lukard, 10 Va. Law Journal, 213, decided February 11, 1886, it was held : One engaged in carrying the United States mail over a country post-route is a "laboring person" within the meaning of those words as used in the Virginia Constitution, Article XI., Section 1 ; and the fact that he owns the horse and vehicle used by him for that purpose does not alter the case. In the case of The Commonwealth vs. Ford, 29 Grat., 683, decided January 17, 1878, it was held: The third exception in the proviso to the 1st Section of Article 11, of the Constitution of the State in relation to homestead exemptions, which is, "For liabilities incurred by any public officer, or officer of a court, or other fiduciary, or any attorney- at-law for money col- lected," embraces the liability of a collector of taxes and also of his sureties in his official bond, and therefore the said sureties are not entitled to their homestead exemptions, as against the Com- monwealth, in a proceeding against them and their principal to recover the amount of taxes for which the collector had failed to account. In the case of Reed et als. vs. Union Bank of Winchester et al$., 29 Grat., 719, decided January 31, 1878, it was held : The act which authorizes the waiver of the homestead exemption is not in conflict with the 12th Article of the Constitution of the State ; and if a party executing his bond or note waives his homestead exemption as to the bond or note, neither he nor his wife can set up said homestead exemption as against the said bond or note. In the case of Linkenhoker's Heirs vs. Detrick et als., 81 Va., 44, decided September 24, 1885, it was held: The act which authorizes the waiver of the homestead exemption, whether made before or after the property has been set apart, is not in conflict with the llth Article of the Constitution of this State; and if a party executing his bond or note before or after the property has been set apart as his homestead exemption waives his homestead exemption as to the bond or note, neither he nor his wife in his lifetime, nor after his decease, neither his widow 948 CITATIONS TO THE CODE OF VIBGINIA. nor his infant children, can set up said homestead exemption as against said bond or note. In the case of Wray vs. Davenport, 79 Va., 19, decided April 3, 1884, it was held : Constitution, Article 11, secures homestead, yet legislature may prescribe mode of setting it apart, only it cannot defeat or impair the benefit thereof. The statute is within legislative authority, and to avail himself thereof house- holder must actually claim the exemption and set it apart as prescribed. In the case of Calhoun vs. Williams, 32 Grat., 18, decided July, 1879, it was held : An unmarried man who has no children or other persons dependent upon him living with him, though he keeps house, and has persons hired by him, is not a house- holder or a head of a family within the meaning of these terms as used in the Constitution and Laws of Virginia, and therefore is not entitled to the homestead exemption as provided by the same. The terms "householder" and "head of family" are held to have the same meaning in the provision of the Constitution and statute relating to homesteads. In the case of Kennerly vs. Schwartz, 11 Va. Law Journal, 697, decided September 22, 1887, it was held : Where a judg- ment has been obtained against one who is not a householder or head of a family, and has become a lien upon his land, and he subsequently becomes a householder or head of a family, the judgment has priority over his claim to a homestead ex- emption in the land, but he may claim such exemption in the land after satisfying the judgment. In the case of Lindsay vs. Murphy, 76 Va., 428. 1. Homestead. Citizens. The privilege of homestead is ac- corded, under the Constitution of Virginia, only to citizens of this State whilst they remain such. 2. Idem. Domicile. Change of domicile from this State puts an end to the homestead privilege. 3. Domicile. Change. Domicile is "residence with no pre- sent intention of removal." Mere absence, however long, ef- fects no change of domicile. 4. Idem. Burden of proof of change of domicile is on him alleging it. 5. Case at Bar. M. long resided in Virginia, where he had a family and homestead. Embarrassed, he left his family here, took some personal property, and went to South Carolina, and commenced business there. The family, except one daughter at school, followed him, because his creditors deprived them of the means of subsistence. The proof is, he went to South Caro- lina to raise money to pay his debts, without intending to give up his domicile in Virginia. On a bill to subject the house and CITATIONS TO THE CODE OF VIRGINIA, 949 lot duly set apart as M.'s homestead to the lien of a judgment, on the ground that the exemption has been forfeited by his re- moval. Held: M., not having ceased to be a citizen of this State, did not lose or abandon his homestead exemption. In the case of Whiteacre (Sheriff] vs. EectSr et ux., 29 Grat., 714, decided January 31, 1878, it was held: A homestead ex- emption cannot be claimed against a fine due the Common- wealth, imposed for a violation of the criminal laws. In the case of Frazier vs. Baker et ux., 5 Va. Law Journal, 565, decided September, 1881, it was held: The homestead ex- emption allowed under the Constitution and Laws of Virginia cannot be claimed against a judgment for a tort. In the case of Burton vs. Mill % 78 Va., 468, decided March 13, 1884, it was held : The homestead exemption does not pro- tect against a demand for damages for breach of promise to marry, which is not a debt contracted, but a quasi tort. In the case of Oppenheimer vs. Howell et als., 76 Va., 218. Homestead. The primary object of the act is to authorize the sale of a homestead, and the investment of the proceeds in a new one, to be held on like terms as the original. In it there is nothing to authorize the debtor, who has squandered one homestead, to appropriate another against subsequent creditors. In the case of Hatcher vs. Crew's Administrator et als., 83 Va., 371, decided April, 1887, it was held : Where a fraudulent conveyance of property is subsequently annulled at the suit of the creditor, the grantor is not estopped as against the creditor to assert his rights to homestead in the said property. The fact that the homesteader has claimed his homestead ex- emption in the bankrupt court, and has been allowed a part thereof by the assignee, does not affect his claim to the balance. In the case of Sears' s Executor vs. Marshall, 83 Va., 383, de- cided May, 1887, it was held : Decree or former appeal remand- ing cause to circuit court, with direction to assign to appellant (then) as his homestead the proceeds of certain property em- braced in a deed that has been annulled as fraudulent, concludes with the words, " unless he appears not entitled to the same on other grounds"; and the circuit court disregarded the new ob- jections presented by the creditor (the then appellee) to such assignment, did make the assignment. There is no error in the order of the circuit court. The intention of those words not being to open up the matter at large to new objections. In the case of Wilkinson vs. Merrill et als., 87 Va., 513, decided March 19, 1891, it was held : Where homestead exemption has been regularly set apart, it is for the benefit of the householder and his family, and is not ended by the latter's decease. SECTION 3634. In the case of White vs. Owen et als., 30 Grat., 43, decided 950 CITATIONS TO THE CODE OF VIKGINIA. March, 1878, it was held : A deed of trust to secure a debt exe- cuted by the grantor and his wife, conveying real and personal property which had been previously set apart by the husband as his homestead, has priority over the homestead exemption, and the said property may be subjected to satisfy the debt. Quaere: Whether the deed of trust by the husband, in which his wife did not join, would have priority to the homestead ex- emption ? SECTION 3635. In the case of Helm vs. Helm's Administrators etals., 30 Grat., 404, decided July 18, 1878, it was held : A widow, whose hus- band has died leaving no children and no debts, and has not claimed the homestead in his lifetime, is not entitled to a home- stead in his estate as against his heirs. An order of a county court setting apart a homestead, made upon the ex parte application of his widow, is of no effect as against the heirs. In the case of Hanky's Administrator vs. Henritzes Adminis- trators, 85 Va., 177, decided August 2, 1888, it was held: This section declares that the homestead shall continue after house- holder's death for benefit of his widow and children until her marriage or death and the children become of age, and after its expiration allows the property to be sold for all his debts ac- crued before or after the homestead was set aside, and is not unconstitutional. SECTION 3636. In the case of Hartorfvs. Wellford (Judge), 27 Grat., 356, de- cided March 30, 1876, it was held : A householder dying leaving a widow, without having had a homestead assigned him in his lifetime, his widow, remaining unmarried, is entitled to claim the same and have it assigned to her. SECTION 3639. See Wray vs. Davenport, 79 Va., 19, cited ante, Section 3630. SECTION 3646. See Oppenheimer vs. Howell, 76 Va., 218, cited ante, Section 3630. SECTION 3647. See Reed vs. Union Bank, 29 Grat., 719, cited ante, Section 3630. See LinkenJioker" s Heirs vs. Dietrich et als., 81 Va., 44, cited ante, Section 3630. SECIION 3649. In the case of Strange 's Administrator vs. Strange et als., 76 Va. 240. CITATIONS TO THE CODE OF VIRGINIA. 951 After the exempted property has been set apart, the resi- due shall be applied tpwards paying all the decedent's debts ratably (unless there be some entitled to priority), and after the residue has been exhausted, the exempted property may be sub- jected to pay such portions of the homestead-waived debts as remain unpaid. In the case of Scott vs. Cheatham et als., 78 Va., 82, decided November 28, 1883, it was held : This exemption is a privilege conferred by law on the debtor, which he may waive or claim at his option. Creditor with waiver of homestead is not a lien or preferred creditor ; he has merely the right to apply homestead to satisfy his debt so far as unpaid, after taking his ratable share of his debtor's estate outside of the homestead. If homestead is not claimed by debtor during his life, nor by his widow after his death, the whole estate must be distributed rata- bly among all, unless there be some entitled to priority. If claimed either way, and the homestead is waived as to some debts, and not as to others, all the debts share ratably in the surplus above the exempted property, and when such surplus has been exhausted, the exempted property may be subjected to pay such portion of the waiver debts as remain unpaid. In the case of Richardson vs. Butler, 1 Va. Law Journal, 120, decided in the Chancery Court of the city of Kichmond, Feb- ruary, 1877, it was held: Under the homestead laws of Virginia, the homestead right is not, in an absolute sense, an estate in the land. The fee is left under the law as it was before, subject to a right of occupancy which cannot be disturbed while the homestead character exists. But when the land is sold it loses its character as homestead, and becomes subject in the pur- chaser's hands to all prior liens which have been duly recorded against the homesteader. SECTION 3652. In the case of Crump vs. The Commonwealth, 75 Va., 922, decided January, 1882, it was held : An oath by a laboring man, a householder and head of a family, in a proceeding by garnishment to subject his wages, not exceeding fifty dollars per month, due him from his employer, to the lien of a fi. fa. execution that he did not sign a writing purporting to be signed by him, waiving all exemptions, including his claim as a laborer, is immaterial in such proceeding, inasmuch as the fifty dol- lars exemption to laborers cannot be waived so as to give a lien by fi. fa. thereon. See Farinholt vs. Luckhard, 10 Va. Law Journal, 213, cited ante, Section 3630. SECTION 3657. See Calhoun vs. Williams, 32 Grat., 18, cited ante, Section 3630. 952 CITATIONS TO THE CODE OF VIRGINIA. TITLE L1I. CHAPTEE CLXXIX. CHAPTEE CLXXX. SECTION 3662. The reference to 2 Va. Cases, 78, is in point, but so involved as to be of no authority on this question. The case referred to in 2 Va. Cases, 483, is an involved opinion on a case of murder in the first degree, but throws no light on the distinction between murder of first and second degree. In Whitefords Case, 6 Eand., 721, decided by the General Court, November, 1828, it was held : To constitute murder in the first degree, it is not necessary that the premeditated design to kill should have existed for any particular length of time. If, therefore, the accused, as he approached deceased, and first came within view of him, at a short distance, then formed the design to kill, and walked up with a quick pace and killed him without any provocation then or recently received, it is murder in the first degree. The legislature in their description of offences which constitute murder in the first degree have at first enumer- ated some of the most striking instances of deliberate and cruel homicide ; but finding it impossible to enumerate all of them, then proceeded, by general words, to embrace all kinds of wilful, deliberate and premeditated killing. It is improper to interpo- late the word " such " in that general description. The offence of homicide by a workman throwing timber from a house into the street of a populous city without warning, or of a person shooting at a fowl aniino furandi, and killing a man, are in- stances of murder in the second degree. In Jones's Case, I Leigh, 598. The lines between murder of first and second degree were drawn out, but in such shape as to be useless here. In Bennetts Case, 8 Leigh, 745, decided by the General Court, December, 1837. After a verdict of guilty on an indict- ment for murder, prisoner makes affidavit that T. C. is a material witness for him in the prosecution ; that he was not summoned to attend the trial, because prisoner was not informed that he knew anything relating to the matter, and that prisoner con- siders that his testimony would have an important effect on a subsequent trial of the cause ; and, on this affidavit, founds a motion for a new trial, which the court overrules: Held, the new trial was properly refused. In Mailes's Case, 9 Leigh, 661, decided December, 1839, by the General Court. Indictment for murder charges that the prisoner, of his malice aforethought, did make the assault ; but CITATIONS TO THE CODE OF VIRGINIA. 953 the striking and wounding, and the killing and murder, are re- spectively charged to have been done "of his malice aforesaid." Held : A good indictment for murder. In Slaughter's Case, 11 Leigh, 681, decided December, 1841, by the General Court. S., having conceived and declared de- sign to kill P., the parties afterwards met in front of P.'s own house, and a quarrel ensued, in which S. gave the first offence. P. proposed a fight , upon which S. retired for a very brief time into his own house, armed himself with a loaded pistol, which he concealed in his pocket, and instantly returned, so armed, to the scene of quarrel; then P. threw a brickbat at S., which did not hit him, but falling short of him broke, and a small frag- ment struck S.'s child, standing within his own door, who cried out, and S., hearing his child cry out, but without looking to see whether he was hurt or not, exclaimed, " He has killed my child, and I will kill him ," advanced towards P., deliberately aimed and fired the pistol at him, then retreated with his face towards P., and the shot took effect and killed P. Upon trial of indictment against S., verdict guilty of murder in the second degree. Held : The jury might well impute the killing to the previous malice, and not to the sudden provocation of P.'s assault, and, therefore, the verdict was right. Two persons quarrel, and one throws a brickbat at the other, who has privately armed himself with a deadly weapon, and keeps it concealed in expectation of the affray, and on such assault being made upon him, immediately draws forth the weapon and with it kills the assailant, though then retreating. Jury finds this killing murder in the second degree. Held: Upon these circumstances, even without proof of any previous malice, the verdict could not be disapproved. In Hill's Case, 2 Grat., 594, decided December, 1845, by the General Court, it was held : On a trial for murder, the dying declarations of the deceased, if made in the expectation of death, are competent evidence against the prisoner. The proof of the deceased's expectation of death is not confined to his de- clarations, but the fact may be satisfactorily established by the circumstances of the case. Regularly, the court should first as- certain that the deceased expected to die, before his dying de- clarations are permitted to be given in evidence to the jury. But if the court permits the dying declarations of the deceased to be given in evidence to the jury, reserving the question whether they were made under an expectation of death ; and if it appears from the testimony that they were made in expecta- tion of death, and were, therefore, competent testimony, this is no error of which the prisoner can complain. Where homicide is proved, the presumption is that it is mur- der in the second degree. If the Commonwealth would elevate 954 CITATIONS TO THE CODE OF VIEGINIA. it to murder in the first degree, she must establish the charac- teristics of that crime ; and if the prisoner would reduce it to manslaughter, the burden of proof is upon him. The rule of law is, that a man shall be taken to intend that which he does, or which is the immediate or necessary conse- quence of his act. A mortal wound given with a deadly weapon, in the previous possession of the slayer, without any, or upon very slight pro- vocation, is, prima facie, wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances. In McWhirfs Case, 3 Grat., 594, decided June, 1846, by the General Court, it was held: On a trial for murder, it is not error that the clerk, in charging the jury, does not include in his enumeration the various species of homicide and involun- tary manslaughter. A father is informed on one evening that his son, a small boy, has been wantonly whipped by a man. He meets with the man on the evening of the next day, and then with his fists and feet beats and stamps him, while he is unresisting, with so much violence that the man dies from the effects of the beating on the next night. There is evidence of deliberation, and the beating is cruelly severe. This is murder. In trials for murder, the jury is the proper tribunal to weigh the facts and circumstances, as well as the testimony in the case ; and the court cannot undertake to set the verdict aside because the jury have decided against the evidence, or without evidence. In Vaidens Case, 12 Grat., 717, decided May 21, 1855, it was held : On a. trial for murder the necessity relied on to justify the killing must not arise out of the prisoners own miscon- duct. In Livingstone's Case, 14 Grat., 592, decided November 7, 1857, it was held : Under a common law indictment for murder, the prisoner may be found guilty of murder in the first or second degree, or manslaughter. Upon a trial for murder, it having been proved that the pris- oner had beat the deceased, the complaint of the deceased of pain suffered by her within two hours of the beating, is compe- tent evidence. It being proved that a witness is a practicing physician, he is a competent witness to express an opinion as an expert upon a medical question. Upon a trial for homicide it is competent for the Common- wealth to introduce physicians and surgeons to give their opin- ion on a state of facts testified to by themselves or other wit- nesses, in respect to a wound or beating proved to have been inflicted on the deceased, as to whether such wound or beating CITATIONS TO THE CODE OF VIRGINIA. 955 would be a cause adequate to produce death, or was the actual cause of death. In such case the questions put and the answers given should be so put and given as not to elicit or express an opinion by the physician or surgeon on the credit of the witnesses, or the truth of the facts testified to by others. When in a case of homicide it appears that a wound or beat- ing was inflicted on the deceased which was not mortal, and the deceased, whilst laboring under the effects of the violence, becomes sick of a disease not caused by such violence, from which disease death ensues within a year and a day, the party , charged with the homicide is not criminally responsible for the death, although it should also appear that the symptoms of the disease were aggravated, and the fatal progress quickened by the enfeebled or irritated condition of the deceased caused by the violence. In Bull's Case, 14 Grat., 613, decided November 10, 1857, it was held : In an indictment for murder the omission of the word "deliberately" will be fatal on general demurrer. On a trial for murder, the Commonwealth, to introduce the dying declarations of the deceased, proved that he was told that his physicians thought that if he could not be relieved of the shortness of breath under which he was then suffering he would die very soon. He then made the statements which were proposed to be introduced as evidence ; and he was asked if these were made as his dying declarations, to which he an- swered that they were. The deceased was then told that the doctors were of opinion that he was certainly dying, and that he would die very soon; and what he had said was repeated to him, and he was asked if he made that statement again, and did he make it as a dying declaration ; and he said he did. The statement is admissible as a dying declaration. On a trial for murder, when the evidence repelled the idea of self-defence, the court instructed the jury that if they believed from the evidence that the deceased and the prisoner were en- gaged in a sudden and mutual combat, in which no weapon dan- gerous in itself was used, and during the progress of the fight the prisoner struck the deceased an ordinary blow or blows with his fists or feet, without any intention either to kill the de- ceased or to do him great bodily harm, but to repel his attack, and that the death of the deceased was caused thereby acci- dentally and apart from the prisoner's intention, then the pri- soner is guilty of involuntary manslaughter. This is not error. In such a case, the court farther instructs the jury that though no weapon dangerous in itself is used, but only the fists and feet, yet if the jury are satisfied from the evidence that the manner of inflicting the blows was cruel and unusual, and ex- 956 CITATIONS TO THE CODE OF VIRGINIA. ceeded in number and violence what was necessary to repel the deceased, and he died of such beating, then the prisoner is guilty of voluntary manslaughter. This is not error. In Bristow's Case, 15 Grat., 634, decided July, 1859. De- ceased strikes the prisoner's father with his fist, and a fight ensues, when the prisoner, who sees it, comes up and catches the deceased by the collar of his coat behind, and strikes the deceased from behind with a pocket knife, wounding him in the right side. The prisoner, who was about seventeen years old, had lately left the school of the deceased, and had used lan- guage on more than one occasion before the affray, and also used language after it, but before it was known the deceased , was dangerously wounded, which evinced hostility to him. Held : The killing is murder. In BotnneUs Case, 20 Grat., 860, decided March, 1871, it was held : A person, whether he be an habitual drinker or not, can- not voluntarily make himself so drunk as to become, on that account, irresponsible fur his conduct during such drunkenness. He may be perfectly unconscious of what he does, and yet he is responsible. He may be incapable of express malice, but the law implies malice in such a case from the nature of the in- strument used, the absence of provocation, and other circum- stances under which it is done. If permanent insanity is produced by habitual drunkenness, then, like any other insanity, it excuses an act which would be otherwise criminal. Insanity, when it is relied on as a defence to a charge of crime, must be proved to the satisfaction of the jury to entitle the ac- cused to an acquittal on that ground. If, upon the whole evi- dence, the jury believe he was insane when he committed the act, they will acquit him on that ground, but not upon any fanciful ground, that though they believe he was sane, yet as there may be a rational doubt of such sanity, he is therefore entitled to acquittal. If a person kill another without provocation and through reckless wickedness of heart, but, at the time of doing so, his condition from intoxication was such as to render him incapable of doing a wilful, deliberate, and premeditated act, he is guilty of murder in the second degree. In Dock's Case, 21 Grat., 909, decided January 31, 1872, it was held: On a trial for murder it is not competent for the Commonwealth to introduce evidence in chief as to the char- acter of the person on whom the offence was committed. If the prisoner, in execution of a malicious purpose to do the de- ceased a serious personal injury or hurt by wounding and beat- ing him, killed him, the offence is murder. In Read's Case, 22 Grat., 924, decided December 11, 1872, it CITATIONS TO THE CODE OF VIRGINIA. 957 was held : Every unlawful homicide must be either murder or manslaughter, and whether it be the one or the other depends alone upon whether the party who perpetrated the act did it with malice or not, malice either express or implied. Where there has been a previous grudge, and also an immediate provo- cation, it is for the jury to determine whether the shooting was induced by the previous grudge or the immediate provocation, and it is not for an appellate court to reverse their judgment, which the judge who tried the case declines to set aside. In Stoneman's Case, 25 Grat., 887, decided June, 1874, it was held : On the trial of S. for the murder of E., the Common- wealth having shown that E. and O., the sister of S., had been married, the prisoner may introduce in evidence the decree in a suit by O. against E. for a divorce, either to render O. compe- tent as a witness for him, or to show that E., being no longer the husband of O., was a mere intruder upon the prisoner's family. But the pleadings and depositions are not admissible as evi- dence for such other purpose. An objection to a question asked and to the witness answer- ing it, is overruled, and an exception taken, which does not state the answer; the appellate court cannot consider it. On the trial of S. for the murder of E., if S. shot E. under a reasonable apprehension that his own life or that of some mem- ber of the family was in imminent danger, or under a reason- able apprehension that the deceased intended to burn the dwelling-house of his mother, or commit some other known fel- ony, and that there was imminent danger of such design being carried into execution, he is justified in so doing, though such danger was unreal. The bare fear that a man will commit murder or other atro- cious felony, however well grounded, unaccompanied by an overt act indicative of any such intention, will not warrant the killing of the party by way of prevention. There must be some overt act indicative of imminent danger at the time. There must be some act of the deceased meaning present peril, or something in the attending circumstances indicative of a present purpose to make the apprehended attack. This act so done, or circumstances thus existing, must be of such a character as to afford a reasonable ground for believing there is a design to commit a felony, or to do some serious bodily harm, and im- minent danger of carrying such design into immediate execu- tion. Then the killing will be justifiable, though there was in fact no such design by the deceased. If an instruction correctly expounds the law, and is expressed in terms familiar to the books, and well understood by the judi- cial mind, and especially if the jury or the counsel do not ask for an explanation of it, the appellate court will not set the ver- 958 CITATIONS TO THE CODE OF VIRGINIA. diet aside, because its true import and meaning possibly may not have been comprehended by the jury. In HoweWs Case, 26 Grat., 995, decided December 16, 1875, it was held : The jury having found the prisoner guilty of mur- der in the first degree, and the court of trial having refused to set aside the verdict and grant a new trial, the appellate court, even if they had some doubt about the sufficiency of the evi- dence to convict the prisoner of murder in the first degree, would not reverse the judgment. Murder committed by any of the specific means enumerated in the statute is murder in the first degree, whether there was any actual intent to kill or not. In Willis's Case, 32 Grat., 929, decided November, 1879, it was held : All homicide is presumed to be murder in the second de- gree. In order to elevate the offence to murder in the first de- gree, the burden is on the Commonwealth ; and to reduce it to manslaughter, the burden is on the prisoner. Whilst voluntary intoxication is no defence to the fact of guilt, yet where the question of intent or premeditation is in- volved, evidence of it is admissible for the purpose of determin- ing the precise degree of the crime. And in all cases where the question is between murder in the first degree and second degree, the fact of the prisoner's drunkenness may be proved to shed light on his mental status, and thereby enable the jury to determine whether the killing was from a premeditated purpose or from passion, excited by inadequate provocation. But caution is necessary in the application of this doctrine, as there may be many cases of premeditated murder in which the prisoner pre- viously nerves himself for the deed by liquor. In such cases as these, drunkenness is entitled to no consideration in favor of the prisoner in determining the degree of his crime, but on the con- trary tends to elevate the offence to murder in the first de- gree. In Mitchell's Case, 33 Grat., 845, decided March, 1880. M. and two others are indicted for murder in the County Court of L., and upon their arraignment they elect to be tried in the circuit court. A writ of venire is issued by the county court for the summoning of a jury returnable to the circuit court, and the twenty-four men selected by the county court are summoned to the circuit court. On the motion of the prisoner the venire is quashed by the circuit court, and the court directs another venire of twenty-four to be summoned, and names the twenty- four summoned on the first venire. Held: The directing the same twenty-four men to be summoned is not error. Upon the trial of a prisoner for murder he twice makes a confession, both of which are admitted in evidence. There is very little doubt that the first confession was made without any CITATIONS TO THE CODE OF VIRGINIA. 959 promise or threat to induce it, and there is no doubt the last was so made. Held : The evidence is admissible. In Mitchell's Case, 33 Grat., 872, decided March, 1880, it was held : There was no doubt but what the prisoner intended to kill the deceased, and that he struck the fatal blow when the deceased was endeavoring to escape from him, and the blow was on the back of the head, and the only questions were, whether the striking of the prisoner with a heavy stick to resent an insult offered him was a sufficient provocation to justify the killing of the deceased in the manner in which it was done, and whether the prisoner did not provoke the attack upon himself that he might have an excuse for killing the deceased. And the jury having found the prisoner guilty of murder in the first degree, and the county judge who presided at the trial, and the judge of the circuit court of the county having refused to grant a new trial, this court, seeing there is evidence to warrant the verdict, will not set it aside. Upon the evidence in this case, three persons go together to rob a store. One, M., is posted some distance from the house to watch, and the other two obtain admittance into the store- house, kill the owner and rob the store, and M. shares the booty. Held: M. is principal in the first degree of the crime of murder, and may be punished with death. In Wright's Case, 33 Grat., 880, decided July, 1880, it was held : To constitute a wilful, deliberate, and premeditated killing, constituting murder in the first degree, it is not necessary that an intention to kill should exist for any particular length of time prior to the actual killing, it is only necessary that said in- tention should come into existence for the first time at the time of such killing, or any time previously. In Dejarnette's Case, 75 Va., 867, decided January, 1881. Where the defence in a trial for murder is insanity, it is com- petent to ask a medical expert such a question as this : Suppose a man had inherited a predisposition to insanity, would great mental anxiety, loss of property or the honor of one's family, and losses of other kind be likely to develop the disease? Whilst the mere fact that the presiding judge in the trying court on his own motion charges the jury on the law of the case, if done correctly, is no ground for reversing the judgment, yet such is not the practice in Virginia, and is not desirable that it should become so. Malice being a necessary ingredient in the crime of murder, the law infers it wherever the killing is deliberate and premedi- tated, and it would therefore be error to instruct the jury that they must believe the killing was malicious, deliberate and pre- meditated. In Wrights Case, 75 Va., 914, decided January, 1882. A 960 CITATIONS TO THE CODE OF VIRGINIA. fight was going on outside of a bar-room in which prisoner was, between the grandfather of the prisoner and two others ; a good many other persons were standing around but not engaged in the fight. Prisoner, on hearing of the fight, seized a large stick, ran out into the crowd, striking several persons with it, breaking the arm of one, and struck one person who was not engaged in it, or noticing the fight, a blow on the head from which he died the next day. Held : Guilty of murder in the first degree. The premeditated design to kill need not have existed for any length of time, but if the design at the time of killing was then formed, and the killing was done without provocation then or recently received, it is murder in the first degree. Hatchetfs Case, 76 Va., 1026. Criminal Proceedings. Murder by Poison. To entitle the Commonwealth to a verdict, it is essential to prove clearly, beyond a reasonable doubt, these three essential propositions, viz. : 1. That the deceased came to his death by poison. 2. That the poison was administered by the accused. 3. That he administered it knowingly and feloniously. Idem. Idem case at bar. H. is indicted for the murder of Z. by poison. There was no post-mortem and no analysis of the contents of the deceased's stomach, or of the vessel which contained the liquor administered, or sufficient proof that the accused administered it, or that he knew it contained poison ; and that there was any motive or provocation for the deed. Held : The verdict must be set aside and new trial granted the accused. In McDanieVs Case, 77 Va., 281, decided March 15, 1883. Much caution is used by this court in granting a new trial, where it is asked on the ground that the verdict is contrary to evidence, great weight being given to the verdict of the jury. To constitute this offence the killing must be predetermined, and not under momentary impulse of passion ; though the de- termination may not have existed any particular length of time. Prima facie, all homicide is murder in the second degree. Onus on prosecution to raise the offence to the first degree. A quarrel occurred between prisoner and deceased. Former gave the latter the lie. They separated. Twenty minutes later de- ceased, with light walking stick approached prisoner, saying that he would not stand what prisoner had said. Prisoner picked up a "bearing stick." Deceased asked "why he stood holding that stick? " Prisoner answered, "If you come here I will show you." Prisoner raised his cane to parry a blow from the prisoner, and may be, struck at, or struck the prisoner, who then struck the prisoner two blows with the " bearing stick," from which he died in about two hours. Held : The presump- tion is not warranted from the mere use of that weapon, without CITATIONS TO THE CODE OF VIRGINIA. 961 any words or circumstances, other than those mentioned, tend- ing to show the prisoner's intent, that such intent was not to repel an attack or to inflict bodily harm, but to kill. The facts* do not prove murder in the first degree. In Lewis's Case, 78 Va., 732, decided April 24, 1884, it was held : Malice is presumed from the fact of killing unaccom- panied with circumstances of extenuation, and the burden of disproving malice is upon the accused. Every man is presumed to intend the natural and probable consequences of his own acts. The necessity relied on to justify the killing must not arise out of the prisoner's own misconduct. Threats by deceased to prisoner, directly or through others, are admissible to determine whether the prisoner had at the time of the killing reasonable ground to apprehend serious bodily harm. In Harrison's Case, 79 Va., 374, decided September 18, 1884, it was held : Murder is where a man of sound sense unlawfully killeth another of malice aforethought, either express or im- plied. If express, the facts remain with the jury. If it is to arise from implication, it is a matter of law, the entire consid- eration whereof resides with the court. It must be presumed that a man intends what is the natural and necessary consequence of his own acts ; Where a case of self-defence has been prima facie made out, evidence of the dangerous character of deceased is admissible. It is no pallia- tion that prisoner believed the man he attacks and kills to be a dangerous person, and in such case such evidence is inadmis- sible. Where such evidence is admissible the proof must be of the deceased's general reputation as a dangerous person, and not of the opinion of a particular individual. Barbour's Case, 80 Va., 287, decided March 12, 1885, is a case in which the killing was held to be murder in the first degree, but it is of so wilful a character that it is not necessary as an authority. In Parristis Case, 81 Va., 1, decided November 28, 1884, it was held : Where one in defence of his person, habitation or property kills another, who manifestly intends and endeavors by violence or surprise to commit a forcible or atrocious felony upon either, such killing is justifiable homicide; and in such case the justification of the prisoner must depend on the cir- cumstances as they appear to him. In Honesty's Case, 81 Va., 283, decided January 7, 1886, it was held : An instruction otherwise right will not be vitiated by, a conclusion in the words following: "And if there be a rea- sonable doubt whether the prisoner had willed, deliberated and premeditated to kill the deceased, or to do him some serious in- jury which would probably occasion his death, the jury ought not to find him guilty of murder in the first degree." 61 962 CITATIONS TO THE CODE OF VIRGINIA. The necessity relied on to justify killing must not arise out of prisoner's own misconduct. Provocation sought, or involuntarily provoked, cannot excuse killing or doing bodily harm. No provocation whatever can render homicide justifiable, or even excusable. The lowest grade to which it can reduce homicide is manslaughter. If a man kill another suddenly, without any, or without a considerable, provocation, the law implies malice, and the homi- cide is murder. The onus rests on accused to prove, if he relies on intoxica- tion as a defence, that when he committed the offence his con- dition from intoxication was such as to render him incapable of doing a wilful, deliberate and premeditated act. And so of in- sanity. Both must be proved as independent facts. The facts disclosed by the record here show a homicide com- mitted deliberately with a deadly weapon, where the law im- plies the malice requisite for murder in the first degree, a man being presumed to intend the natural and probable consequences of his own act. In Lewis's Case, 81 Va., 416, decided February 4, 1886, it was held : The well-settled rule of this court in granting new trials, when asked, for on the sole ground that the verdict is contrary to the evidence, is to grant them very cautiously, and only when the verdict is manifestly wrong, great weight being due to a verdict rendered by a jury and approved by a judge, before whom the witnesses gave their evidence. In Tuckers Case, 88 Va., 20, decided June 18, 1891. The ac- cused and the deceased had long been inimical, and had made frequent threats to kill one another. Qn the day of the homi- cide both were seen going toward an orchard, a part whereof each possessed. The former, with his gun, two children, aged ten and twelve years respectively, a horse and sled, was going for apples. The latter, also with his gun, followed at no great distance, and a few hours later was found near the fence of the orchard dead, with his head crushed and his back pierced by a bullet. A Commonwealth's witness testified that on that day, from mountains three-quarters of a mile .off, he heard accused's voice swearing, etc., in the orchard, saw smoke arise, heard re- port of gun, and later heard a second report, and immediately a man ran and disappeared in the orchard. The children for the defence testified that they were with the accused : that he did not shoot, but that some unseen person fired twice at him, one ball passing through his hat, the other through his shirt ; that he did not hear of the homicide for several hours, and be- fore hearing of it had started for a warrant to arrest deceased. Held : Evidence insufficient to warrant the verdict of guilty of murder in the second degree, and a new trial should have been granted the accused. CITATIONS TO THE CODE OF VIRGINIA. 963 In Hash's Case, 88 Va., 172, decided July 2, 1891, it was lield : A motion to quash a joint indictment against two persons, on the ground of omission to insert the copulative conjunction "and" between their names, is properly overruled where a <;omma is placed after the first name. On an instruction that a man cannot in any case justify the killing of another upon the pretense of self-defence, unless he be without fault in bringing upon himself the necessity of so doing, held: Improper, because the word "pretense" implies groundlessness, and is calculated to prejudice the jury against the theory of necessary self-defence, relied on by the accused. The word "plea" should have been used instead of "pretense"; and because the true doctrine is that, although the slayer pro- voked the combat or produced the occasion, yet, if it be done without any felonious intent, intending, for instance, merely an ordinary battery or trespass, the accused may avail himself of the plea of self-defence. Where the accused had built a fence upon the line between his land and that of the deceased, and it had been so used for a number of years, and the deceased had notified the accused not to remove it, the removal thereof would be nothing more than a trespass. But if the fence had been built by the accused on his own land, such removal would not be a tortious act at ah 1 . And in either event, if, to prevent such removal, the deceased .had made an attack upon the accused with a deadly weapon, under circumstances calculated to excite in the latter's mind a reasonable apprehension of death or of great bodily injury to himself, under which he kills his assailant, he is entitled to avail himself of the plea of self-defence. An instruction to the contrary. Held erroneous. In Davis 1 s Case, 89 Va., 132, decided June 23, 1892, it was held : Accused met in the street his wife, from whom he had been for some time separated ; becoming enraged, began firing at her as she ran into a house. He fired at her and another there, when she ran out by a side door. He, returning to the street, attempted to reload, succeeded after interference in getting one cartridge in, when deceased, whom he knew to be a policeman, arrested him, and was shot by him, and died in four days. Ac- cused was not drunk, but was drinking. Held : Conviction of murder in the first degree should not be disturbed. In Tilley'* Case, 89 Va., 136, decided June 23, 1892. Priso- ner and deceased, his mistress, left their companions in the pub- lic road in the afternoon and disappeared in the woods. She had about thirty dollars (part silver) in a purse. She was never seen alive afterwards. An hour later he was seen where the body was found, and avoided recognition. He left the State that night and did not return for several years. Her body was 964 CITATIONS TO THE CODE OP VIRGINIA. found in a secluded place in the woods, partly consumed by fire, with a bullet hole in her head, such as would be made by a ball from the pistol then in his possession. The coin and purse could not be found. He gave a false name at the place he stayed that night, and when arrested several years afterwards. Held: The verdict "guilty of murder in the first degree" should not be disturbed, as the circumstances show that robbery was the motive of the homicide. The Commonwealth was properly allowed to prove as part of the res gestce that on the day of her death the deceased was on her way to a neighbor's house near where her bodv was found. In Hall's Cose, 89 Va., 171, decided June 23, 1892, it was held : Shortly after being shot the deceased said to his wife, it is a death shot this time, and that he wanted to go to heaven when he died, but did not express belief that he was going to die. To others he told who shot him, and the circumstances, but he did not say anything about dying. He died twenty- four hours after being shot. Held : His declarations were admis- sible as evidence. Instructions unsupported by any evidence should be refused. Instructions having been given to the jury that they could not find prisoner guilty of murder in the first degree, unless the evi- dence showed him guilty "to the exclusion of all reasonable doubt," and the jury having found him guilty of murder in the first degree, held: The prisoner should not have been preju- diced by the refusal of the court to instruct the jury that "the evidence of his guilt must be so strong as to exclude every rea- sonable hypothesis of his innocence," and that "mere suspicion, however strong, is not sufficient" ; the law requires proof to the exclusion of every reasonable doubt. In Field's Case, 89 Va., 690, decided February 16, 1893, it was held: A man is not justifiable in shooting another when there is a mere justifiable apprehension of immediate danger, no matter how sincere such apprehension may be ; but there must be honest and reasonable belief of such danger, that is to say, the act done, or circumstances existing, must be of such a char- acter as to afford reasonable ground for believing there is a de- sign to commit a felony, or to do some serious bodily harm, and imminent danger of such design being carried into immediate execution. In Snodgrass's Case, 89 Va., 679, decided February 16, 1893. Accused deliberately raised a pistol under arm of a witness and shot the deceased. Several hours before, he made threats to shoot deceased before sun-down, and talked angrily with him several times during the day, and flourished a pistol as if threat- ening him. Held : A verdict of murder in the second degree is fully warranted by the evidence. CITATIONS TO THE CODE OF VIRGINIA. 965 Evidence of threats of the accused before, and threats to and assault upon a witness after, the shooting is admissible to prove the demeanor of accused as indicating his animus. SECTION 3664. The reference to 2 Va. Cases, 78, is not in point. For 81 Va. 416, see Lewis's Case, cited ante, Section 3662. In Shipp's Case, 86 Va., 746, decided March 27, 1890, it was held: Prisoner, after altercation with deceased, declared he would shoot him if caught off his land ; met him soon after, ac- cused him of slander, and aimed a gun at him ; and when de- ceased, unable to retreat, picked up an iron pipe for self-defence, prisoner shot and killed him. Held : Evidence warrants the ver- dict of guilty of murder in the second degree. SECTION 3665. For the reference to 3 Grat., 594, see McWhirfs Case, cited ante, Section 3662. For the reference to 14 Grat., 613, see Bull's Case, cited ante, Section 3662. In Dock's Case, 21 Grat., 909, decided January 31, 1872, it was held: Where death ensues on a sudden provocation or a sudden quarrel, without malice prepense, the killing is man- slaughter, and in order to reduce the offence to killing in self- defence the prisoner must prove two things : First, that before the mortal blow was given he declined further combat, and re- treated as far as he could with safety; and secondly, he killed the deceased through the necessity of preserving his own life, or to save himself from great bodily harm. For the reference to 22 Grat., 924, see Head's Case, cited ante, Section 3662. The reference to 33 Grat., 757, is an error. SECTION 3671. In Chappie's Case, 1 Va. Cases, 184, decided by the General Court, it was held: This section applies to the stabbing of a slave as well as to a free person. In Trimble's Case, 2 Va. Cases, 143, decided November, 1818, by the General Court, it was held : In an indictment for mali- cious and voluntary shooting, the term wilfully being used for voluntary is cured by the statute of jeofails. A conclusion against the acts of the General Assembly, where there is but one act, is also cured. The omission to state that the grand jury was impaneled in the superior court of the county (the county itself being men- tioned), if an error, is also cured. An indictment for malicious shooting ought to charge that it 966 CITATIONS TO THE CODE OF VIRGINIA. was done feloniously, and this under the act of 1817, which does not in terms declare it a felony, but makes it punishable with penitentiary confinement. In Lester's Case, 2 Va. Cases, 198, decided by the General Court, June, 1820, it was held : An indictment which charges- that a prisoner feloniously did break the jawbone of another with intent to maim, disfigure, disable or kill, and concludes against the form of the statute, is yet not a good indictment under the statute, because it does not aver that he did disable any limb or member, but only that he did break a bone with intent to disable. If the prisoner be charged with feloniously breaking the jaw- bone of another, contra fornam statuti, the indictment cannot be sustained as one for mayhem at common law, because a mayhem at common law, with one exception only, is not a felony. In Angel's Case, 2 Va. Cases 231, decided by the General Court, November, 1820, it was held: Although the statute against unlawful shooting, etc., fixes a penalty when the act is done with intent to maim, disfigure, disable or kill (in the dis- junctive), yet the indictment should charge the intents conjunc- tively. Although all of the intents be laid, yet proof of either sup- ports the indictment. The reference to 2 Va. Cases, 273, is error, as the only point decided there relates to the validity of plea of auterfoits acquit. In Derieux's Case, 2 Va. Cases, 379, decided November, 1823, by the General Court, it was held : The record of the examin- ing court shows that the prisoner was charged with a felonious stabbing, with intent to kill. The indictment contained four counts, of which the first charged a malicious stabbing with in- tent to kill ; the second, a malicious stabbing with intent to maim, disfigure and disable; the third and fourth, an unlawful stabbing with the same intents respectively. This variance between the record of the examining court and the indictment is no ground for quashing the latter. If an in- dictment charge that one feloniously did strike, cut and stab another, with intent to kill, etc., although the words strike and cut are not in the statute, yet the indictment ought not to be quashed, " because of the commixture of misdemeanor and felony" contained therein. Those words may be rejected as sur- plusage. In Woodson's Case, 9 Leigh, 669, decided by the General Court December, 1839, it was held : An indictment, charging that the prisoner "at the county, and within the jurisdiction of this court, feloniously and maliciously did stab one P. T., with intention to maim, etc., and kill him," will not be quashed, upon objection that it does not allege any assault, striking or wound- CITATIONS TO THE CODE OF VIRGINIA. 967 ing, nor that P. T. was within the county or jurisdiction, nor that the intent was felonious or malicious. In Canada's Case, 22 Grat., 899, decided November 27, 1872. C. is indicted for feloniously and maliciously cutting, striking, wounding, etc., H., with intent to maim, disfigure, disable and kill. The indictment charges that C. made an assault upon H., and feloniously, etc. The jury find the prisoner not guilty of the malicious cutting and wounding as charged in the indictment, but guilty of an assault and battery as charged in the within in- dictment, and assess his fine at five hundred dollars. Held: This is an acquittal of the prisoner of the felony charged, whether of the "malicious" or "unlawful" cutting, etc., with intent to maim, etc., and it is a conviction for the misdemeanor of assault and battery. Though the indictment only uses the word malicious, the jury might have found the prisoner guilty of the unlawful cutting, etc., with intent, etc. Though the indictment is for a felony, the assault and battery being charged in it, the prisoner may be acquitted of the felony, and convicted of the misdemeanor, and the jury may assess a pecuniary fine upon him, but not im- prisonment. Upon such conviction the court may sentence the prisoner to be imprisoned in the county jail in addition to the pecuniary fine. In Read's Case, 22 Grat., 924, decided December 11, 1872, it was held : Whether a prisoner on trial is guilty of malicious shooting with intent to kill depends upon the question, Whether, if he had killed the person at whom he shot, instead of only wounding him with intent to kill him, the offence would have been murder? If the killing would not have been murder, then he is not guilty of the offence of malicious shooting, however he may have been guilty of another offence, as of unlawful shooting with intent to kill. In Murpheys Case, 23 Grat., 960, decided March, 1873, it was held: Malice may be inferred from the deliberate use of a deadly weapon, in the absence of proof to the contrary. In Randall's Case, 24 Grat., 644, decided January, 1874, it was held : Upon an indictment under the act concerning mali- cious, unlawful shooting, stabbing, etc., which charges that the prisoner did unlawfully shoot, etc., with set purpose and malice aforethought to kill and murder, etc., the jury find the prisoner guilty of malicious shooting, without saying who is shot, and fix the term of his imprisonment in the penitentiary at five years. No judgment can be entered on the verdict. In Iloback's Ca*e, 28 Grat., 922, decided January, 1877, it was held : On an indictment, under this section, of H., that he maliciously and of his malice aforethought did shoot one S., 968 CITATIONS TO THE CODE OF VIRGINIA. the jury returned their verdict: " We, the jury, find the defend- ant, H., not guilty of malicious shooting, as in the within in- dictment charged, but guilty of unlawful shooting, with intent to maim, disfigure, and kill ; and we fix his term of confinement in the penitentiary at two years." The verdict is to be read in connection with the indictment, and, therefore, it sufficiently in- dicates the person shot. In Stuart's Case, 28 Grat., 950, decided July, 1877, it was held : It is settled law in this State that where there are several counts in an indictment, and the jury find the accused guilty upon one of the counts, but say nothing as to the others, the verdict operates as an acquittal upon the counts of which the ver- dict takes no notice; and the court should enter a judgment accordingly. And the same rule applies where, on an indict- ment for murder, the jury find the prisoner guilty of man- slaughter, or on an indictment for malicious stabbing, etc., with intent to maim, disfigure, or kill, the jury find the prisoner guilty of unlawful stabbing, with intent to kill. Under an indictment with only one count, for malicious stab- bing, shooting, or cutting, with the intent to kill, the accused may be convicted of the offence charged, or of unlawfully doing such acts, or, indeed, of any other offence, felony, or misde- meanor which is substantially charged in the indictment. In Jones's Case, 31 Grat., 830, decided November 14, 1878, it was held : J. was indicted for malicious stabbing, etc., of W., with intent to maim, etc. The jury found J. guilty of unlawful cutting, "as charged in the within indictment," which has re- ference both to the cutting and to the intent, and is a sufficient finding of the intent with which the unlawful act was done to meet the requirements of the statute. In Price's Case, 77 Va., 393, decided April 12, 1883, it was held : On an indictment for maliciously shooting, with intent to kill, etc., one 8., the jury return their verdict: "We, the jury, find the prisoner guilty of unlawful shooting with intent to kill, as charged in the indictment, and fix the term of imprisonment at three years in the penitentiary." The verdict is to be read in connection with the indictment, and, therefore, it sufficiently indicates the person shot. In Jones's Case, 87 Va., 63, decided November 13, 1890, it was held : Indictment charging that accused made assault with a stone, and did feloniously, maliciously, and unlawfully beat, wound, ill-treat, and cause bodily injury, etc., sufficiently con- forms to this section. SECTION 3673. In Walker's Case, 2 Va. Cases, 515, decided by the General Court, June, 1826, it was held : A jail abandoned by the county CITATIONS TO THE CODE OF VIRGINIA. 969 for the purposes of a jail, but open and accessible to the citizens of the county, is a public place under the gaming act. The reference to 4 Leigh, 480, is an error. SECTION 3674. In Hardy & Curry's Case, 17 Grat., 592, decided January 26, 1867. An indictment for robbery charged that the pri- soners "did make an assault" upon G., and one gold watch, tc., from the person and against the will of G., etc., " felo- niously and violently did steal," etc. The jury acquitted the prisoners of the felony charged, but found them guilty of "as- sault and battery." On motion in arrest of judgment, held : The finding is valid. In Jordan's Case, 25 Grat., 943, decided December, 1874, it was held : The prisoner is prosecuted for the robbery of a pistol. If he snatched the pistol from the hands of the prosecutor sim- ply to prevent the prosecutor from using it against his assailants, without at the time intending to appro prite it, though he after- wards takes it away and sells it, this is not robbery of the pistol, though he and others went to the house of the prosecutor for the purpose of committing a robbery. But in such case, if the prisoner, when he snatched the pistol, had the intention to de- prive the prosecutor of it, though he may also have had the purpose to prevent the use of it by the prosecutor, this is rob- bery. To constitute a robbery it is not necessary that the pri- soner should intend to appropriate the property to his own use. If he intended to deprive the prosecutor of his property, that is sufficient. In Houston's Case, 87 Va., 257, decided December 16, 1890, it was held: Where indictment charges accused with robbery by presenting of firearms, it is proper to charge the jury that if they find him guilty, as alleged in the indictment, they should fix his punishment according to the provisions of the first clause of this section. SECTION 3675. In Mitchell's Case, 75 Va., 856, decided November, 1880. On an indictment against M. for extorting money from K., an un- married female, by threats to prosecute her for a criminal offence, on the issue of not guilty, B., as a witness on her examination- in-chief, spoke of what passed at two interviews between her and the accused, and on cross-examinations she stated that there had been several interviews between the two that she had spoken of, at which she ascertained that the accused was the person that she had seen wandering about her home ; the wit- ness will not be required to state generally what passed at these interviews, but ooly so much, if anything, as bears upon the issue, and what was said in respect to identifying each other in 970 CITATIONS TO THE CODE OF VIRGINIA. connection with having seen him about the premises of her father. On a trial a paper was produced, signed by the witness, R., in which she stated that she had, in March, 1869, given birth to a child which she had killed, and Dr. Bass had been sent for to deliver her of the after-birth, and introduced in evidence, which paper, the witness stated, she had been compelled by the accused to copy and sign and give to him, though she told him at the time it was a lie. And then the counsel for the accused proposed to ask the witness: In 1869 were you in the family way? "Were you delivered of a child on March 23, 1869? "Was Dr. Bass sent for to attend you? Did he deliver you of the after-birth on the following morning? But the court excluded all the questions. Held : The questions were irrelevant to the issue, and were properly excluded. Whether the female, lL, was virtuous or vicious, she was equally entitled to the protection of the law. SECTION 3678. In Anderson's Case, 5 Band., 627, decided by the General Court, November, 1826, it was held : The seduction of a female over sixteen years old (being not within the statute) cannot be punished by indictment. It would have been otherwise if a con- spiracy had been charged. SECTION 3680. In BenneCs Case, 2 Va. Cases, 235, decided by the General Court, November, 1820, it was held : In an indictment for rape, if the charge is for carnally knowing and abusing a female child under ten, instead of a woman child, it is good after ver- dict. In the same case "unlawfully" was omitted, this, too, is cured by the statute of jeofails, that word not being one of art. The first part of the act against rape applies only to a rape on a female over ten years of age, the third section to cases where she is under ten years, and applies whether she consented or not, such a child being incapable of consent. If the count for a rape under the third section charges more than is necessary (as that the prisoner "forcibly ravished," and "that it was done against the will and without the consent" of the person on whom it was committed), that part may be re- jected as surplusage. In Field's Case, 4 Leigh, 648, decided by the General Court, December, 1832. Upon an indictment it is found that a free negro, not intending to have carnal knowledge of a white woman by force, but intending to have such knowledge of her while she was asleep, got into bed with her, and pulled up her night garment, which waked her, using no other force. Held : CITATIONS TO THE CODE OF VIRGINIA. 971 This was not an attempt to ravish, within the meaning of the statute. In Watts' s Case, 4 Leigh, 672, decided by the General Court, December, 1833, it was held : A white girl under twelve years of age, and not having attained to puberty, is a white woman, within the meaning of the statute, making it a felony punish- able with death for a slave, free negro, or mulatto to attempt to ravish a white woman. In Brogy's Case, 10 Grat., 722. On a trial for rape, the main question is as to the identity of the prisoner. The female is ex- amined, and although she swears that the prisoner is the person that committed the outrage upon her, she declines to give a de- scription of him as at the time of the outrage. The Common- wealth then introduces a witness to prove the particulars of the description of the person who committed the outrage, given by the female to the witness on the morning after the rape was committed, and before she had seen the prisoner, in corrobora- tion or proof of the causa scientice of the female witness. Held : Though it is competent to prove the fact of a recent complaint by the female for the purpose of sustaining her credit, it is not competent to prove the particulars of her complaint ; and so it is not competent to prove the particulars of the description given by her. The female having declined to give a description ol the person who committed the outrage, when upon oath, it is not competent to prove the description given by her when not upon oath. In Taylor's Case, 20 Grat., 825, decided March, 1871. An indictment for rape does not charge that it was committed on a female, but the name given is a woman's name, and the indict- ment uses the pronouns "she " and "her" in ppeaking of the person upon whom the rape was committed. Held : Though it would have been better to use the word female, as it is the word used in the statute, yet the language used sufficiently shows that the rape was committed on a female, and is, therefore, good. The question whether the name in the indictment is idem sonans with the true name of the person upon whom the offense was committed, is a question for the jury and not for the court. The indictment charges that the rape was committed upon Helen Francis Davis, and the true name is Helen Francis Davids, but the proof is that she was as frequently called the first in the community as the last. The proof of the rape upon Helen Francis Davids is admissible under the indictment. In Christian's Case, 23 Grat., 954, decided March 19, 1873, it was held : It seems that in an indictment for an attempt to commit a rape, the word ravish, as descriptive of the offence attempted, is not necessary, but the words " feloniously carnally to know," are sufficient. 972 CITATIONS TO THE CODE OF VIRGINIA. Same case, page 958, the court said : Whether the proof is sufficient or not must depend on the circumstances of each case, among which the character and condition of the parties may have an important bearing. Acts of the accused, which would be ample to show and to produce conviction on the mind, that it was the wicked intent and purpose to commit this in- famous crime, if done in reference to a female of good and vir- tuous character, would be wholly insufficient to establish guilt if they were acts done to a female of dissolute character and easy virtue. In Boxley's Case, 24 Grat., 649, decided January, 1874, it was held : The prisoner is entitled to a new trial, on the ground of surprise, the testimony of the principal witness, as given in court, varying materially from that given before the committing justice, and the justice, who was a physician, having been called away at the time of the trial. In Givens's Case, 29 Grat., 830, decided January, 1878, it was held : To carnally know a female child under twelve years of age, whether with or without her consent, is a rape. To at- tempt to carnally know a child under twelve years of age, with- out or with her consent, is an offence embraced in the statute. The statute provides that the offence charged may be, at the discretion of the jury, punished with death or with confinement in the penitentiary. This is a death penalty, and the attempt to do the act forbidden is embraced in the statute. In a pro- secution for carnally knowing a female child under twelve years of age, the jury find the prisoner not guilty of the act, but guilty of the attempt to commit it. The only witness as to the act was the child, who was proved by her mother to be between ten and eleven years of age. The court below having refused to set aside the verdict and to grant a new trial, the appellate court will not reverse the judgment. In Lawrence's Case, 30 Grat., 845, decided March, 1878, it was held : The indictment for rape charges in one count that it was done by force, and against the consent of the female, and that she was under twelve years of age. The prisoner may be convicted under the indictment if the jury shall believe that she was under twelve years of age, though she consented to the act. The prisoner may be convicted, though the female told him that she was over twelve years of age, and he had reasonable cause to believe that she was over that age. He takes the risk, and if she is not over twelve years old, he is guilty under the statute. In Law's Case, 75 Va., 885, decided March, 1881, it was held : A boy under fourteen years of age, who assists another person in an attempt to commit a rape, may be convicted as a princi- pal in the second degree, and, under the Virginia statute, may CITATIONS TO THE CODE OF VIRGINIA. 973 be punished the same as the principal in the first degree, if it appear, under all the circumstances of the case, that he had a " mischievous discretion." In any case of felony, the principal in the second degree is punishable in Virginia as if he were the principal in the first degree. The fact that a boy eleven years and eleven months old, of "average capacity" for his age, put his hand over the mouth of a female whilst his elder brother attempted to commit a rape upon her, is not sufficient of itself for his conviction as princi- pal in the second degree of the felony of which his elder bro- ther had been convicted. The evidence of malice, which is to supply age, must be beyond all doubt and contradiction. In Brown s Case, 11 Virginia Law Journal, 237. There was simply no evidence to warrant a conviction, no questions of law raised at any stage of the proceedings. In Fry's Case, 82 Va., 334, decided September 16, 1886, it was held : It is not allowable on cross-examination to ask prose- cutrix at the trial of an indictment for rape, if she had been be- fore a person of unchaste character. In Smith's Case, 85 Va., 924, decided March 21, 1889, it was held : An indictment for rape in the words of this section defin- ing the offence is good. In Mitchell's Case, 89 Va., 826, decided March 30, 1893. On the trial for rape, after the jury were directed to consider of their verdict, the clerk called their attention to the charge which had been given to them as to the punishment, and, at his sug- gestion, the jury took such charge with them to their room. Held : No error. SECTION 3681. The references to 2 Va. Cases, 144, and 11 Leigh, 586, both relate to stolen negroes, and are no longer of value. In Davenport's Case, 1 Leigh, 588, it was held: The offence is complete by the kidnapping without actual sale. SECTION 3682. The reference to 11 Grat., 697, is entirely upon the civil as- pect of this offence, and has no bearing upon the criminal view. SECTION 3686. The reference to 2 Va. Cases, 576, is an error. In Lambert's Case, 9 Leigh, 603, decided by the General Court, June, 1838, it was held : An indictment at common law, charg- ing that the defendant did fight a duel with pistols, is bad on demurrer. SECTION 3691. In Jones's Case, 1 Va. Cases, 270, decided by the General 974 CITATIONS TO THE CODE OF VIRGINIA. Court, it was held : A judge out of court has power to commit a witness who may refuse to give testimony by affidavit under this section. SECTION 3692. In Cullen's Case, 24 Grat., 624, decided November, 1873, it was held : By the 8th section of the bill of rights of Virginia a person is not only secured against giving evidence against him- self on his own trial, but he cannot be required, on the trial of another, to testify, if his evidence will tend to criminate him- self. Even if a person may be required to give evidence on the trial of another which might tend to criminate himself, if the statute afforded him a complete indemnity by discharging him from all prosecution for the offence (of which qucere) the act of October 7, 1870, amending Section 1, Chapter 12, of the Code of 1860, does not afford that indemnity, and, therefore, in re- quiring any person engaged in a duel to testify against another prosecuted for having fought, etc., such duel, is unconstitutional. Under the principles of the common law and the statutes against dueling, it may well be apprehended that the surgeon of a party to a duel would be regarded in law as being concerned in, or as aiding or abetting the duel. The fact that the witness has testified before the coroner and stated the facts does not deprive him of the privilege, it is not a a waiver of it by him. In Temple's Case, 75 Va., 892, decided March, 1881, it was held : The act of criminal procedure, which provides that a wit- ness giving evidence in a prosecution for unlawful gaming shall never be proceeded against for any offence of unlawful gaming committed by him at the time and place indicated in such prose- cution, does not apply to a prosecution for managing and con- ducting a lottery, and a witness cannot be required to testify in such a case if he will thereby criminate himself. The fact that the witness testified before the grand jury, and that it was on his testimony that the indictment was found, will not deprive him of his privilege to decline to testify on the trial of the party indicted. In KendricVs Case, 78 Va., 490, decided March 27, 1884. K. was sworn and sent to the grand jury to testify as to charge against S. of unlawful gambling, and refused to answer questions propounded by grand jury because the answers would tend to criminate himself. Held : Statute secures full protection to wit- nesses testifying in prosecutions for unlawful gaming, and K. is not justified in refusing to testify on the ground that his answer will tend to criminate and disgrace him. CITATIONS TO THE CODE OF VIRGINIA. 975 CHAPTEE CLXXXL SECTION 3695. In Posey's Case, 4 Call, 109, decided November, 1787, it was held: In an indictment at common law it is not necessary to state that the house burnt was a dwelling-house, for the word house imports it ; and if upon the trial it appears that it was not a house upon which arson could be committed, it is the duty of the judges to direct the jury to acquit the prisoner. In Stevens 's Case, 4 Leigh, 683, decided by the General Court July, 1834. Indictment for arson describes the house burned as " the county jail and prison of the County of H., being the house of L. J., sheriff and jailer of the said county. Held: The burn- ing of such jail is felony by the statute, and whether the jail may be properly said to be the house of the sheriff and jailer or not, that part of the description is unnecessary and may be re- jected as surplusage. In Howel's Case, 5 Grat., 664, decided June, 1848, it was held: In indictments for statutory offences the language of the statute defining the offence should be strictly followed. In an indict- ment for arson under the statute it is not sufficient to use the words set fire to the house, but the word burn must be used, that being the word employed in that section of the statute to define the offence. In Curran's Case, 7 Grat., 619, decided June, 1850, by the General Court, it was held : An indictment for arson, according to the form at common law, is sufficient in a case of arson in the day time. To convict of the offence of burning at night, it seems the in- dictment must charge the burning in the night. Though the offence of burning in the day time may be charged in the common law form, yet it is more appropriate to charge the burning in the day time. The indictment charges the setting fire to and burning the dwelling-house of E. on the llth of February, 1850. The ver- dict is "guilty of arson in the day time, on the llth of February, 1850." The verdict is sufficiently certain. In Hooker's Case, 13 Grat., 763, decided November 23, 1855, it was held: A house, though it was built for a dwelling-house, and had been used as such, and although it was about to be used as such again, yet having been unoccupied for ten months previous, and being unoccupied when it is burned, is not a dwelling-house within the meaning of the statute. In Page's Case, 26 Grat., 943, decided April 1, 1875, it was held : A count in an indictment which charges that the prisoner at night did burn " a certain other house called a barn or stable of one E. there situate, the same being an out house not adjoin- 976 CITATIONS TO THE CODE OP VIRGINIA. ing the dwelling-house, nor under the same roof, but some per- sons usually lodging therein at night, to- wit : " etc., does not set out an offence for which the punishment is death. On such a count the prisoner having been found guilty, and sentenced to be hung, the appellate court will reverse the judg- ment. But as the count does charge the burning of a barn and stable, which is punishable by imprisonment in the peni- tentiary, the additional description of the barn in the count may be rejected as surplusage, and he will be remanded to be tried for that offence. To make an out-house not adjoining a dwelling-house, nor under the same roof, parcel thereof, within the meaning of the statute, two things must appear : First, That such out-house is within the curtilage of the dwelling house, and occupied there- with ; and, Second, That some person usually lodges therein at night. A dwelling-house, in the meaning of the statute, embraces all its parcels, including such an out-house as is parcel thereof. The burning of such an out-house is the burning of a dwelling- house in the meaning of the law, and may be so described in the indictment, and proof of the burning of the out-house will as much sustain the indictment as would proof of the burning of the principal dwelling-house, or the whole of it, including all the parcels. SECTION 3696. In Butler's Case, 81 Va., 159, decided December 3, 1885, it was held: An indictment for the burning of "a certain store- house, not adjoining or occupied with the dwelling-house of one S.," sufficiently describes the store-house as the property of S. SECTION 3697. The reference to 27 Grat., 1009, is not in point. SECTION 3698. In Erskin's Case, 8 Grat., 624, decided December, 1851, by the General Court, it was held : The malicious burning of wheat threshed from the straw is not a violation of the act. For the reference to 26 Grat., 943, see Page's Case, cited ante, Section 3695. SECTION 3699. For reference to 4 Leigh, 737, see Stevens's Case, ante, Sec- tion 3695. In Erskins's Case, 8 Grat., 624, decided December, 1851, by the General Court, it was held : The malicious burning by the owner of a house on his own land, the house being then the le- gal occupancy of another, is a violation of the statute. In Wolf's Case, 30 Grat., 833, decided March 21, 1878. An CITATIONS TO THE CODE OF VIRGINIA. 977 indictment charges that the accused " did feloniously and ma- liciously burn a certain barn and the property therein, being the property of one H. H. Dulaney, and situated in the county aforesaid, which said barn and the property therein was then and there of the value of one thousand five hundred dollars. Held : Sufficient. In Richard's Case, 81 Va., 110, decided November 19, 1885, it was held: Statute provides punishment for burning "any building, the burning thereof is not punishable under any other section" of said chapter. Indictment under said section must describe the building with such particularity as will inform ac- cused what building is meant. SECTION 3701. In EarJiarts Case, 9 Leigh, 671, decided by the General Court, December, 1839. Indictment for unlawfully, wilfully, and ma- liciously setting fire to the woods near the plantation of A. M., and burning said woods and a fence belonging to said A. M., is described in the record of the finding as an indictment "for set- ting fire to the woods and burning same." Held : A sufficient record of the finding. SECTION 3704. In ]\eldo?i's Case, 4 Leigh, 652, decided by the General Court, July, 1833, it was held, p. 660: An indictment charging that goods were feloniously taken from a dwelling-house, and charg- ing that this was done in the night time, is not a good indict- ment for burglary, but is only an indictment for larceny. In Finch s Case, 14 Grat., 643, decided January 27, 1858, it was held : An entry into a dwelling-house in the day time through a door that was so closed that it came within the casing, and to open which required some degree of force, constitutes in law a breaking, though there was no fastening of any other kind on the door. The word "break" in the Code is borrowed from the law of burglary, and is to be understood as it would be when used in a charge of burglary. In Speers's Case, 17 Grat., 570, decided January 21, 1867, it was held : An indictment which charges a breaking into a house with intent to steal, and the stealing therefrom, is an indictment for house-breaking and not for larceny, and is good. To such a count may be added a count for simple larceny of the same goods, and the jury may find the prisoner guilty on each count, and fix a several punishment for each offence. In Vaughn's Case, 17 Grat., 576, decided January 21, 1867. A person committed on a charge of larceny by a justice is sent in charge of a special constable and the prosecutor to jail, and on the way this constable says to him, "you had as well tell all about it." After they had ridden about a mile after this remark 62 978 CITATIONS TO THE CODE OF VIEGINIA. without any other remark having addressed to the prisoner, he voluntarily says to the prosecutor, " I will tell you all about it," and proceeds to tell how and by whom the breaking and larceny were committed. The constable is a person in authority over him, and the statement is not admissible in evidence. In Claris Case, 25 Grat., 908, decided June, 1874, it was held: D. and H. rent a room jointly of S., of which each has a key. C. rents an adjoining room, the doors of the two rooms entering upon the same porch near each other. They frequently interchange visits. On the night of March 11, 1874, D. locks his door, takes out the key, and starts to church. On his way he meets H., who says he is going to his room, and will follow him to the church soon. H. and C. conspire to steal D.'s goods in the absence of D. on this night, and H. opens the door with his key, and they enter the room and take and carry away the trunk of D. with its contents. This is not such a breaking as will constitute burglary in C. The indictment charging not only the breaking and entering, but the stealing of the trunk and its contents of a stated value, C., though acquitted of the bur- glary, may be found guilty of larceny. In Walker's Case, 28 Grat., 969, decided, July, 1877, it was held : Though the mere possession of the stolen property might not be prima facie evidence of the burglary or house-breaking charged in the indictment, yet, in connection with other evi- dence of such burglary or house-breaking, evidence of posses- sion of the stolen goods is admissible. In Taliaferro's Case, 77 Va., 411, decided April 12, 1883, it was held: It is well settled that the exclusive' possession of goods recently stolen, unaccompanied by a reasonable account of how the possession was acquired, creates a presumption that the possessor is a thief, and is sufficient to warrant his convic- tion of larceny. But it has never been decided in this State that possession is even prima facie evidence of guilt in cases of burglary and house-breaking. The question was discussed, but not decided in Walker's Case, 28 Grat., 969. The contrary is laid down by several authorities. In Wright's Case, 82 Ya., 183, decided July 1, 1886, it was held : Indictment charging a breaking into the dwelling-house of J. with intent to steal, and stealing therefrom, is an indict- ment for burglary, and is good. Such indictment charging that prisoner six labor tickets, of the value of six dollars, then and there feloniously did steal, take and carry away, is good, though it does not specify the articles nor state that they were the pro- perty of J. or of any other person. Though the mere possession of the stolen property might not be prima facie evidence of the burglary charged in the indict- ment, yet, in connection with other evidence of such burglary, CITATIONS TO THE CODE OF VIRGINIA. 979 evidence of exclusive possession of the stolen property is ad- missible. In Gravely 's Case, 86 Va., 396, decided December 5, 1889, it was held : Recent possession of stolen goods is not prima facie evidence of guilt of burglary; but such possession is a material fact to be considered by the jury, and, with other culpatory facts, such as a refusal by the accused to give any, or his giving a false account of how he came by the goods, will warrant a con- viction. SECTION 3705. In Lawrence's Case, 81 Va., 484, decided February 25, 1886, it was held : Indictment in usual form for "house-breaking" is not sufficient, because it does not negative the idea that the bar- room which was broken and entered adjoined any dwelling- house other than that of the owner of the bar-room. SECTION 3706. In Bentoris Case, 89 Va., 570, decided January 26, 1893, it was held : A felony is such an offence as may be (not must be) punished by death or confinement in the penitentiary. Break- ing and entering a house in the night time with intent to commit larceny may be punished by imprisonment in the penitentiary or in jail, at the discretion of the jury. SECTION 3707. In Thompson's Case, 2 Va. Cases, 135, decided by the General Court, June, 1818, it was held : In larceny at common law the indictment need not charge that the goods were stolen from the possession of the owner or of any other person. In Angel's Case, 2 Va. Cases, 228, decided by the General Court, November, 1820, it was held : In an indictment for the larceny of bank-notes under the statute it is not necessary that it should charge that the stealing was from the possession of any one. In Chiles's Case, 2 Va. Cases, 260, decided by the General Court, June, 1821, it was held : Indictments for horse-stealing need not conclude contra formam statuti; and even if it were proper that they should, the omission would be cured by the statute of jeofails. In Poindexter 's Case, 6 Rand., 667, decided by the General Court, November, 1828, it was held : If a person be indicted for grand larceny, and the jury convict him of petit larceny, without ascertaining the value of the goods stolen, the verdict is sufficient. A verdict which does not ascertain what goods were stolen, nor their value, nor whether they are forthcoming or not, nor what articles are not forthcoming, if any, nor the value of such as are not forthcoming, but merely finds the prisoner guilty of 980 CITATIONS TO THE CODE OF VIKGINIA. petit larceny on an indictment for grand larceny, will not be set aside as erroneous. The reference to 7 Leigh, 152, is an error. In Walker 's Case, 8 Leigh, 743, decided by the General Court, December, 1837. A person employed by a mercantile firm as a salesman in their store, having full control of the goods in the store-room and the money in the cash-drawer, for the purpose of his employment, abstracts a part of the goods and money with a fraudulent intent to convert the same to his own use. Held : He is guilty of larceny. In booth's Case, 4 Grat., 525, decided June, '1847, by the General Court, it was held: On a trial for larceny the court instructs the jury that it must be proved that the original taking was felonious ; but that the jury had a right to infer, from all the facts and circumstances of the case, the felonious intent in the original taking ; and that not in one case in a hundred could it be proved directly that the original taking was felonious. There is no error in the instruction. In Hunt's Case, 13 Grat., 757, decided November 23, 1855, it was held : Upon trial for larceny of a bank-note, the property of G.^ of the value of twenty dollars, it is error to instruct the jury, that if they believe from the evidence that G. lost a bank-note of the value of twenty dollars, and that the same was afterwards found in the possession of the prisoner, they ought to find him guilty, unless his possession of the note was explained by tes- timony. The mere possession of goods which had been actually lost does not furnish any conclusive or even prima facie proof of guilt; of itself it does not raise the suspicion of guilt. To constitute larceny in the finder of the goods actually lost, it is not enough that the party has general means by the use of proper diligence of discovering the true owner. He must know the owner at the time of the finding, or the goods must have some mark about them, understood by him or presumably known by him, by which the owner can be ascertained; and he must appropriate them at the time of finding, with intent to take entire dominion over them. In Tanner's Case, 14 Grat., 635, decided November 17, 1858, it was held : Lost property may be the subject of larceny. To constitute a larceny of lost property the person finding it must know or have the means of knowing the owner, or have reason to believe that the owner may be discovered, and he must intend at the time of finding the property to appropriate it to his own use. In Jones's Case, 17 Grat., 563, decided October 4, 1866, it was held : In a trial for larceny to convict the prisoner there CITATIONS TO THE CODE OF VIKGINIA. 981 must be satisfactory proof that the property stolen was the property of the person stated in the indictment. In Hughes 's Case, 17 Grat., 565, decided January 18, 1867, it was held : In an indictment for larceny, the name of the owner of the property charged to have been stolen must be stated ; and if it appears that the person so stated to be the owner was a married woman at the time of the larceny, it is error, and the prisoner should be acquitted. In such a case if there is a verdict and judgment against 'the prisoner, which on appeal is reversed, when the case goes back a nolle proseqid may be entered, and a new indictment may be found. In LeftwicKs Case, 20 Grat., 716, decided November, 1870, it was held: The statute for punishing persons obtaining money or other property which may be the subject for larceny, and an indictment for an offence may be either in the form of an in- dictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny. In an in- dictment under this statute for obtaining money under a false pretense, it is not sufficient to describe it as "ninety dollars in United States currency," but it should show what kind of United States currency was obtained. In Price's Case, 21 Grat., 846, decided January, 1872, it was held : If a person be indicted for the simple larceny of a thing, and the proof be that it was stolen by some other person and received by the accused, knowing it to have been stolen, the proof will sustain the charge ; the act making the receiving of a thing stolen, knowing it to be stolen, larceny. P. is in- dicted for receiving a horse which had been stolen, know- ing that it had been stolen. The indictment may charge espec- ially the fact of receiving the horse, with the knowledge that it had been stolen, or it may charge P. with the larceny of the horse, and the latter would seem to be the better practice. If property be stolen and recently thereafter be found in the exclu- sive possession of the prisoner, then such possession of itself affords sufficient grounds for presumption of fact that he was the thief, and, in order to repel the presumption, makes it incumbent on him, or being called on for the purpose, to account for such possession consistently with his innocence. If he gives a reason- able account of it, then it devolves on the Commonwealth to prove that such account is untrue. If he gives an unreasonable account of it, then it devolves on the prisoner to sustain such account by evidence. What is such a recent possession as raises a presumption against a prisoner in the meaning of the rule, is a question for the jury, and depends upon the nature of the property and other circumstances of the particular case. In Harvey s Case, 23 Grat., 941, decided March, 1873. H. 982 CITATIONS TO THE CODE OF VIRGINIA. was indicted for the larceny of three bee-hives of the value of five dollars, three swarms of bees of the value of three dollars, and forty pounds of honey of the value of five dollars of the goods and chattels of C. The jury by their verdict found him guilty as charged in the indictment, and ascertained the term of his imprisonment in the county jail at three months, and the judgment of the court was for three months imprisonment. TV. then moved in arrest of judgment, because, First, The jury was not authorized to fix the term of his imprisonment ; and, Second, Two of the three subjects of larceny charged in the indictment are not proper subjects of larceny. Held: Though the jury had no authority to fix the imprisonment, it was a mere surplusage, and the verdict of guilty was good, and the imprisonment was the act of the court. It may be intended after verdict that the bees were reclaimed, and the honey the property of C. If any one of three subjects mentioned in the indictment might be the subject of larceny, it is sufficient, and the verdict will not be arrested. In Johnson's Case, 24 Grat., 555, decided November, 1873, it was held : A. was standing in a street in R., holding six dollars in his open hand, which he was counting, and J., passing by,. took the money out of his hand and walked off, no force being used beyond what was necessary to withdraw the money. A. asked J. for it several times as she walked off, but she would not return it. This is grand larceny under the statute, if done animo furandi. The indictment against J. is for stealing six dollars of " United States treasury notes." Upon an exception to the refusal of the court to grant J. a new trial, the certificate of facts states that A. was holding some money, etc. The facts certified do not sustain the verdict. In Anable's Case, 24 Grat., 563, decided November, 1873. Upon an indictment for larceny, proof that the accused ob- tained money by false pretenses will sustain the indictment. A. was the secretary of the board of supervisors of the county of H., and there was to his credit on the books of the treasurer, for claims held by him against the county, $1,649. Blank war- rants, signed by the chairman of the board, were left with him, and he filled up and sold warrants to a considerably larger amount than the sum due to him. Warrants to nearly the amount due are registered, and among these one for $350, sold to TV. But there were other warrants sold before the one sold to TV. ; but if they had been registered before TV.'s, the fund would have been exhausted, and would have left nothing to be applied to W.'s warrant. Upon an indictment of A. for larceny of the check given by TV. for payment of the warrant, held : The warrants are to be paid in the order in which they are regis- CITATIONS TO THE CODE OF VIRGINIA. 983 tered, and, there being sufficient to pay W.'s wan-ant as well as all the warrants registered before it, A. cannot be convicted of the larceny charged. W. having bought his warrant of N., an agent of A., and hav- ing given a check payable to the order of N., and the indict- ment charging the larceny of the check of W. endorsed by N., and the proof being that N. endorsed his name after receiving the check, quaere whether this is a variance. For the reference to 25 Grat., 908, see ante, Section 3704, darkens Case. For the reference to 25 Grat., 943, see Jordan's Case, ante, Section 3674. In Williams's Case, 27 Grat., 997, decided March, 1876. W. was indicted for stealing $150, the money of S. On the trial it was proved that J., a detective, arrested W., who made a con- fession, which was made under a promise, and was excluded as evidence. In this confession he directed J. to go to certain gamblers and get the money back from them. J. sent for the gamblers named, and told them what W. had said, and they paid over to J. and S. $104, though one of them protested that W. had not been at his house, and the others denied that he had lost the money claimed with them. The balance of the money, $46, was paid over by the father of W. Held : It not being proved that the money paid to J. was the same lost by S., the statement of W. and J., and what passed between J. and the gamblers and the father of W., is not competent evidence. In Trodgons Case, 31 Grat., 862, decided November, 1878. Upon the prosecution of T. for obtaining goods from M. & Co. upon false pretenses, evidence that the accused, in the same city, and at or about the same time, purchased goods from other parties, B. & O., upon the same false pretenses, is admis- sible to show the intent of the accused in making the represen- tations to M. & Co., but not as proof that the accused had com- mitted other offences not charged in the indictment, and this though the statute has made the obtaining of goods on false pretences larceny. A statement is made by T. of his partners and of the condition of the partnership to one of the firm of M. & Co., who encloses it in a letter to another member of the firm, then in New York, and asks if he shall send the goods, and he receives a reply by telegram to send them. The state- ment is admissible as evidence. On the 15th of March, 1878, L., having received an order to send some goods to T. & Co., obtained from B. a copy of the representations made to him by T. on the 28th of February, H which were the same representations made to M. He mailed a copy to T. & Co., asking if that statement represented the true condition of their affairs, and received, by due course of mail, 984 CITATIONS TO THE CODE OF VIRGINIA. a letter signed T. & Co., saying that it did, and that the business was still prospering. Held: The testimony of L., his letter to T. & Co. containing the statement, and the answer re- ceived by him, are admissible as evidence in this case to show the intent of the accused. Whenever the intent or guilty knowledge of a party charged with a crime is a material ingredient in the issue of the case, other acts and declarations of a similar character, tending to establish such intent or knowledge, are proper evidence to be admitted, provided they are not too remotely connected. Although, under the statute of Virginia, the obtaining of goods by false pretenses is made larceny, and an indictment under the same for larceny is sufficient, yet every ingredient entering into the offence of obtaining goods by false pretenses must be shown as fully as if the statute had not thus passed. In Robinsoris Case, 32 Grat., 866, decided January, 1879. On a trial for stealing certain bank-notes, "the numbers and denominations of which are unknown to the jurors," the evi- dence of the Commonwealth shows that the numbers and de- nominations of the notes were known to the jurors, and for this variance between the indictment and the evidence ; and then, against the objection of the prisoner, excludes the evidence; and then, against the objection of the prisoner, discharges the jury. On a second indictment for the same offence, held: That if the jury had, on the first trial, rendered a verdict in favor of the prisoner, it would not, under the statute, have been a bar to another indictment and trial for the same offence ; and therefore the discharge of the jury was no injury to the pri- soner. In Shinris Case, 32 Grat., 899, decided March, 1879, it was held: The check having been given to S., the secretary, in pay- ment of a debt due to the association, was the property of the association, and though payable to S., as secretary, it was also payable to bearer, and it was the duty of S. to turn it over to the treasurer. If S. had accounted for the money, that fact would, of course, show that he had no intention to appropriate the check ; not having done so, it was a question for the jury whether he intended to embezzle the check ; and to convict him, it was necessary for the jury that they should be satisfied that his intention existed before, or at the time, the check passed into possession of the bank. If S. drew the money on the Avery check with the intention of using the same for his own purpose, and not for the liquida- tion of the Avery debt, though probably with the intention to return the same at some future day to the building association, he is guilty of the embezzlement of the check. In Hey's Case, 32 Grat., 946, decided November, 1879, it was CITATIONS TO THE CODE OF VIRGINIA. 985 held : To sustain the prosecution under the statute four things must be proved : First, That the goods or other things were previously stolen by some other person. Second, That the ac- cused bought or received them from another person, or aided in concealing them. Third, That at the time he so bought or received or aided in concealing them, he knew they had been stolen. Fourth, That he so bought or received them malo animo, or with a dishonest purpose. In Wolverton's Case, 75 Va., 909, decided November, 1881. An article, to be subject to larceny, must be of some value ; but it may be worth less than the smallest coin. The indictment in this case charged the value of the lock stolen to be thirty cents. There was no distinct proof of any specific value, nor was it necessary ; the evidence showed that it had a key in it, and was used in fastening a door. Held : This was sufficient to show that it was of some value. In Taliaferro's Case, 77 Va., 411, decided April 12, 1883. K.'s dwelling is broken open and her goods stolen therefrom. Next day the goods are found on a bed in a room occupied by prisoner and another woman, P., whose friend often came and spent the night there. On the second day prisoner sold the goods, worth nine dollars, for seventy-five cents, and said she got them of P., but made contradictory statements. Prisoner was indicted for burglary, and convicted of house-breaking. Held: 1. Even in cases of simply larceny, in order to raise the pre- sumption of guilt from the possession of stolen goods, it is necessary that they be found in the exclusive possession, and subject to the exclusive control, of the accused. Such was not the case here. 2. Prisoner's conflicting statements as to how she came by the goods certainly excite a strong suspicion against her, yet the testimony is insufficient to establish her guilt of burglary or house-breaking. In Hall's Case, 78 Va., 678, decided March 13, 1884. H., in a drunken spree, unhitched and mounted a horse in the presence of its owner, and of the warehouse man, and of a number of factory hands in the warehouse yard where the horse was hitched, claiming the horse as his own, and attempted to ride it out of the lot homeward. He was arrested, remanded to jail, tried, and found guilty of the larceny of the horse. He moved for a new trial, which was denied. On error, held : The facts do not evince felonious intent, and do not warrant the verdict. See Gravely* s Case, 86 Va., 396, cited ante, Section 3704. In Perrins Case, 87 Va., 554, decided March 26, 1891, it was held : To constitute larceny in finder of lost goods, the finder must know the owner at time of finding, or the goods must 986 CITATIONS TO THE CODE OF VIRGINIA. have some mark about them presumably understood by him, whereby the owner can be ascertained, and he must appropriate them at the time with intent to take entire dominion over them. In Anthony's Case, 88 Va., 847, decided March 10, 1892, it was held : When indictment charges joint defendants with con- spiracy to commit a larceny, and then charges them with actually committing the larceny in pursuance of the conspiracy, there is no misjoinder. Obtaining goods under false pretenses, with intent to defraud, is larceny, and it is not a misjoinder to include a count there- for, with other larceny counts in the indictment. SECTION 3708. In Mosely's Case, 2 Va. Cases, 154, decided by the General Court, June, 1819, it was held: An indictment which charges a larceny of bank-notes "of the value, etc., of the money, goods and chattels of one G. F., and from the said G. F.," is a suffi- cient averment of property in the said G. F., the person from whom they were stolen, after verdict, for the words money, goods and chattels may be rejected as surplusage. A general description of a bank-note current in the United States is sufficient in the indictment for the larceny thereof. See Angel's Case, 2 Va. Cases, 228, cited ante, 3707. In Pomeroy's Case, 2 Va. Cases, 342, decided by the General Court, June, 1823, it was held : The law which made it felony to steal any bank-note embraced any available chose in action bearing that name. That law being re-enacted in 1819, should not be taken to be altered by implication when incorporated with other laws on the same subject, unless that implication be unop- posed by matters calling for the original construction. The legislature did not mean to restrict the meaning of the term " bank-note " to those of chartered banks, because it makes the stealing " of any other writing or paper of value " to be larceny, which expression would include any available chose in action called a bank-note. The term "bank-note" ought not, therefore, to be considered in this restricted sense. To support the allegation in an indictment, that the bank- notes purport on their faces to be notes of certain banks, the notes produced in evidence must correspond therewith. When an indictment charges that the prisoner committed a larceny of certain bank-notes, "purporting on their faces to be, and being bank-notes of and issued by banks chartered," etc., the latter part of the charge may be rejected as surplusage, be- cause it constitutes an independent allegation of an immaterial fact, and the fact constituting the offence is fully charged with- out it. It is not, therefore, necessary in such case to give proof of the charters of those banks. CITATIONS TO THE CODE OF VIRGINIA. 987 The words, "or any other writing or paper of value," furnish a good rule for limiting and explaining the words, "warrant or certificate," in the same section ; which mean papers of that de- scription being of value and capable of conversion. In Moore's Case, 2 Leigh, 701, decided June, 1830, it was held, p. 706 : In an indictment for larceny of bank-notes, it is not indispensably necessary to produce the stolen notes upon the trial. The reference to 13 Grat., 757, is to Hunts Case, cited supra, Section 3707. See Leftwiclis Case, 20 Grat., 716, cited ante, Section 3707. In Adams's Case, 23 Grat., 949, decided March, 1873, it was held : In an indictment for stealing bank-notes it is sufficient to state that the notes were for a certain sum of money, without stating their value. In such a case since the statute, the value of the bank-notes is not traversable. See Johnson's Case, 24 Grat., 555, cited ante, Section 3707. For the reference to 32 Grat., 866 and 899, see supra, Section 3707. SECTION 3714. In Rutherford's Case, 2 Va. Cases, 141, decided by the General Court, November, 1818, it was held : The receiving of a stolen bank-note is not the receiving of stolen goods within the mean- ing of the statute. In Dowdy's Case, 9 Grat., 727, decided August 16, 1852. An indictment containing several counts, one for larceny, others for receiving stolen goods, knowing them to have been stolen, and others for aiding another person to conceal stolen goods, know- them to have been stolen ; the charges in all the counts, how- ever, relate to the same goods which in different counts are laid to be the goods of different persons or of a person unknown. Held : It is not a case in which the court should quash some of the counts, or compel the prosecution to elect on which count the prisoner shall be tried. See Price's Case, 21 Grat., 846, cited ante, SectioD 3707. The reference to 24 Grat., 31, is an error. See Trodgon's Case, 31 Grat., 862, cited ante, 3707. See Heys's Case, 32 Grat., 946 and 950, cited ante, 3707. SECTION 3716. See SMnn\s Case, 32 Grat., 899, cited ante, 3707. SECTION 3717. In Smith's Case, 4 Grat., 532, decided June, 1847, by the General Court, it was held : It is not necessary that the party 988 CITATIONS TO THE CODE OF VIRGINIA. charged with embezzlement should be the captain of the boat to bring his offence within the statute. SECTION 3720. See Walker's Case, 8 Leigh, 743, cited ante, Section 3707. SECTION 3722. In Speeds Case, 2 Va. Cases, 65, decided by the General Court, June, 1817, it was held : The false passing as a true note a false and forged note, purporting to be a note of a bank (which bank never existed), and procuring goods by means thereof, is not such an offence as comes within the act to prevent the deceit- fully obtaining goods, etc., by privy token or counterfeit letters, but it is a public cheat indictable at common law if the defend- ant knew that it was such false note, and it is necessary to aver in such case the scienter in the indictment. See LeftwicKs Case, 20 Grat., 716, cited ante, Section 3707. See Anable's Case, 24 Grat., 563, cited ante r Section 3707. In DuWs Case, 25 Grat., 965, decided January, 1875, it was held: If P. & L., at the house of the accused, by the use of false pretenses, obtained from F. the sum of five hundred and seventy dollars, the accused is not guilty of the offence unless he was present, aiding and abetting therein, or suffered or per- mitted the said P. & L. to use said house, with knowledge that they intended to use the same for the employing of such pre- tenses. But if the accused was within easy call, with intent to aid or assist them in their purpose, or in escaping, or in get- ting rid of or misleading the person from whom such money was obtained, that is a present aiding and abetting, and the accused is as guilty as if he were personally present. The obtaining money by false pretenses is made larceny by the statute ; and the penalty for the offence is the same as in other cases of larceny. On an indictment for larceny, the clerk charges the jury in the usual form. If on the trial it appears that the money charged to have been stolon was obtained by false pretenses, another charge made by the clerk is not necessary nor proper. In Fay's Case, 28 Grat., 912, decided January, 1877, it was held : F. is indicted for the larceny of two hundred and eight dollars of notes of United States currency, the property of B. The proofs refer to F.'s obtaining money from R. by false pre- tenses. To sustain the prosecution the Commonwealth must prove every fact which would be required to be alleged in an indictment for obtaining money on false pretenses. In such an indictment it would be a material allegation that the money was obtained by the false pretenses alleged, and therefore it is neces- sary to be proved under the indictment for larceny in order to a conviction. CITATIONS TO THE CODE OF VIRGINIA. 989 The false pretenses, either with or without other causes, must have had a decisive influence upon the mind of the owner, so that without their weight he would not have parted with the property. Unless the selling of the property by F. to E. was by false pretenses, with intent to defraud the buyer, the case is not within the statute. Therefore the fraudulent intent must have existed at the time false pretenses were made by which the money was obtained. In the absence of proof that such money as is charged in the indictment to have been stolen was received by the prisoner, he cannot be properly convicted. See Trodgoris Case, 31 Grat., 862, cited ante, Section 3707. SECTION 3729. Keference to 2 Hand., 791, error; no such page. In Madijis Case, 3 Leigh, 809, decided by the General Court, July, 1831, it was held : The statute of 1822-23, Chapter 34, does not authorize a criminal prosecution for killing dogs be- longing to another. In Israel's Case, 4 Leigh, 675, decided by the General Court, December, 1833. Indictment at common law, charging de- fendant with rescuing property that had been distrained by a sheriff for public dues from a bailee, to whose safe-keeping the sheriff had committed it, without charging that the defendant knew in what right the bailee held it. Held : Indictment de- fective for not averring that the defendant had such knowledge ; and this defect is not cured by verdict by the statute of jeofails in criminal cases. In PercaviVs Case, 4 Leigh, 686, decided by the General Court, July, 1834. Upon an indictment on the statute of 1822-'23, the jury find in a special verdict that defendant shot and killed hogs, the property of another, the hogs being on the defendant's own land at the time of his shooting and killing them. Held : The verdict is defective and insufficient in not finding the essen- tial ingredients required by the statute to constitute the misde- meanor, viz. : that defendant killed the hogs " knowingly and wilfully, without lawful authority." The provisions of that statute are not confined to property ejusdem generis' with that specially there enumerated, and the circumstance of the property destroyed being at the time on de- fendant's land does not take the case out of the statute. In Ratdiffes Case, 5 Grat., 657, decided June, 1848, by the General Court, it was held : An indictment which charges that defendant knowingly and wilfully removed a fence from the lands of P., and did injure and expose the growing crop of P. then on said lands, charges but one offence, and is valid. 990 CITATIONS TO THE CODE OF VIRGINIA. If the defendant removed the fence under a claim of right, believing it to be his own, and that he had a bona fide right to it, he committed no offence against the statute. In Davis s Case, 17 Grat., 617, decided February 12, 1867, it was held : The killing of a dog is not an indictable offence. CHAPTEE CLXXXII. SECTION 3733. In Foulkess Case, 2 Bob., 836, decided December, 1843, by the General Court, it was held : Upon a trial for forgery of a written instrument, the Commonwealth may, without producing as a witness the party Jby whom the instrument purports to be signed, and without accounting for his absence, prove by the evidence of other witnesses that the instrument is not genuine ; such evidence, not being in its nature secondary to that of the party whose signature is in question. On trial for an indictment for forgery of a letter of credit with intent to defraud W. and W., the Commonwealth proves that a draft presented by the prisoner to W. and W. at the same time with the letter of credit, had been filed, together with an indictment against the prisoner for forging the same, with the clerk of the court, who, upon making search for the draft among the papers in his office, has been unable to find it, and thereupon the Commonwealth offers secondary evi- dence of the contents of the draft ; no notice having been given to the prisoner, before the jury was impaneled, of any inten- tion to offer such evidence. Held: The foundation so laid for the admission of the secondary evidence is sufficient. Indictment for forging with intent to defraud W. and W., a letter in the following terms : NOTTOWAY, April 24, 1841. GENT.: Agreeable to Mr. Wm. J. "Watkin's request, I take pleasure in making you acquainted with his name, and would say to you that he is very extensively engaged in the manufac- turing of tobacco, and has made some large purchases, and says that he wishes to patronize you (on my recommendation). You may be assured that whatever he engages to do he will cer- tainly perform. He says it is probable that he will want one thousand dollars by the 1st of May to meet his engagements, and if he apply for the amount I have no doubt but you will accommodate him. The roads are in such condition that it is impossible to get any produce to market. Write me a few lines by Mr. Watkins, and say what the chance is for a rise in to- bacco. Your compliance with the above will very much oblige your obedient servant, JOSEPH M. FOULKES. CITATIONS TO THE CODE or VIRGINIA. 991 P. S. Mr. Watkins prefers giving a negotiable note payable in Petersburg Exchange Bank, where he can always have an opportunity of sending at the shortest notice and draw. He is not a gentleman of low, mean degree, but one that is a perfect gen- tleman in every sense of the word. I am confident, as T have observed to him, that you will either let him have the money, or endorse for him. J. M. F. Held : This is not a writing whereof forgery can be committed, either at common law or under the statute. In Chahoons Case, 20 Grat., 733, decided January, 1871, it was held : Upon a trial for forgery, to prove that the paper was forged, a witness was introduced, who said that he knew H., the party whose signature was in question and who was dead about two years, was his tenant, had seen him write, think he knew his handwriting tolerably well, but could not swear to a particu- lar signature as his without knowing the fact, though he had sufficient knowledge or recollection of his signature to enable him to give an opinion as to the genuineness of his signature, though he would not swear absolutely about it ; says, I think it is not his handwriting, but, at the same time, I cannot say oil oath positively it is not. This is admissible evidence. On such a trial the Commonwealth may prove that H. was prompt in the payment of debts, and that he owned a large pro- perty, real and personal, and was doing a good business. Forgery of a paper may be by performing the act in person, or by being present, procuring and assisting in the forgery. Uttering a forged paper may be proved by showing that the prisoner attempted to employ as true the forged writing, with a knowledge at the time of the said attempt that the same was forged with intent to fraud ; and any assertion or declaration by word or act that the forged writing is good, with such knowledge or intent, is an uttering or attempt to employ as true the said writing, if such assertion or declaration was made in the prose- cution of the purpose of obtaining the money mentioned in the said writing. To convict of forgery the jury must be governed entirely by the testimony before them, and they must not presume the guilt of the accused by reason of his failure or neglect to produce evidence in his own behalf; but if the jury believe that it is in the power of the accused to produce evidence in elucidation of the subject-matter of the charge against him, then his failure to produce such evidence may be considered by the jury in con- nection with the other facts proved in the case. The forgery charged was the note of H., an unnaturalized 992 CITATIONS TO THE CODE OF VIRGINIA. foreigner. The forging it was in fraud of the administrator of H., and tlie heirs, of H., if he had any, or the State, if he had none. The bringing the suit at law, as counsel upon the forged note, and recovering judgment thereon, and the filing a bill to enforce payment of the judgment out of the real estate of H., and hav- ing the same sold and receiving the proceeds, the same being done with knowledge that the note was a forgery, w r as an at- tempt to employ the said note as true within the meaning of the statute. Though the suit at law was brought in the County Court of Henrico, and the suit in equity was in the Circuit Court of Henrico, yet as both these courts were held within the limits of the city of Richmond, and the prisoner lived in the city, the Hustings Court of the city had jurisdiction to try the prisoner. In Sands's Case, 20 Grat., 800, decided January, 1871, it was held: On the trial 1 for the forgery of a note of H., who is dead, the Commonwealth may prove that H. was prompt in the pay- ment of his debts, and that he owned a large property, real and personal, and was doing a good business. To convict a prisoner of uttering or attempting to employ as true a forged writing, it must be shown that the accused himself uttered or attempted to employ as true the said forged writing, or was present at the time such forged writing was uttered or attempted to be em- ployed as true, by some other person aiding and assisting such person to utter or employ the same as true, and it must be further shown that the accused knew at the time that the said writing was in fact forged ; and that such uttering and attempt- ing to employ as true was made or done by him with the intent to defraud; but any assertion or declaration, by word or act, directly or indirectly, that the forged writing is good, with such knowledge and intent, is an uttering or attempting to em- ploy as true the said writing, provided that such assertion or declaration was made in the prosecution for the purpose of obtaining the money mentioned in the said writing. In Colemaris Case, 25 Grat., 865, decided March, 1874, it was held : A public record must be a written memorial, intended to serve as evidence of something written, said or done, made by a public officer authorized by law to make it, but that authority need not be derived from express statutory enactment. Whenever a written record of the transactions of a public officer in his office is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep a written memorial, whether expressly required to do so or not ; and when kept it becomes a public document, a public record, belonging to the office and not to the officer. The warrant book of the sinking fund, kept by the second CITATIONS TO THE CODE OF VIRGINIA. 993 auditor in his office, of the transactions of the commissioners of the sinking fund of the State, is a public record, and is of itself evidence of what it contains, to be considered with the other evidence in the case. SECTION 3735. See Speer's Case, 2 Va. Cases, 65, cited ante, Section 3722. In Jlensley's Case, 2 Va. Cases, 149, decided by the General Court, June, 1819, it was held: The false uttering of a forged bank-note of another State or district may be prosecuted as the false uttering of a promisory note for the payment of money under the statute. . In RasnicKs Case, 2 Va. Cases, 356, decided by the General Court, June, 1823, it was held : An indictment which charges a prisoner with the offences of falsely making, forging and coun- terfeiting; of causing and procuring to be made, forged and counterfeited, and of willingly acting and assisting in the said false making, forging and counterfeiting, is a good indictment, though all of these charges are in a single count, the words of the statute being pursued, and there being a general verdict of guilty, judgment ought not to be arrested on the ground that the offences are distinct. One who brightens base pieces (which are brought to him ready formed with the impression and appearance of dollars, except that they are of a dark color, like lead, and not then pas- sable) by boiling them in lye and rubbing them with a woolen cloth, and subjecting them to other processes, thereby render- ing them, by their resemblance to real dollars, more fit for circu- lation, is guilty of counterfeiting. He completes the offence, and thereby subjects to the penalties of the law, not only him- self, but all who acted a part and were present and assisting at the transaction from beginning to end, or who did do anything thought necessary by themselves to impose on the public, by making the base coin resemble the true. In Browris Case, 2 Leigh, 769, decided by the General Court, November, 1830. An indictment for passing a counter- feited bank-note to a slave, with intent to defraud the bank, is good. In Murry's Case, 5 Leigh, 720, decided July, 1835, by the General Court. Upon an indictment for passing a counterfeit note of the Bank of Louisville, without alleging that the bank is a chartered bank, or that there is no such bank, and without alleging that the note was passed "to the prejudice of another's right," or "for the prisoner's own benefit, or for the benefit of another." Held : The offence so charged is a felony within the meaning of the statute, and the indictment is good and sufficient. In Auckland's Case, 8 Leigh, 753, decided by the General 63 994 CITATIONS TO THE CODE OF VIRGINIA. Court, June, 1837. It is a felony, under the statute, to pass a counterfeit note of the Bank of the United States, dated at a time when that bank was in existence, though at the time of passing the note the charter of the bank had expired. Indictment for passing a counterfeit note charges that the prisoner, on a particular day, at the county of M. and within the jurisdiction of the court, being possessed of the note, feloni- ously did pass the same, well knowing it to be a counterfeit at the time he passed it. Held : The time and place of passing the note, and of the scienter, are set forth with sufficient certainty. In setting out a counterfeit bank-note in hcec verba in an in- dictment for feloniously passing the same, an endorsement, ap- pearing to have been made on the note after it was passed, is properly omitted, and the omission is, therefore, no ground for the objection of variance. On the trial of an indictment for passing a counterfeit bank-note, the prisoner moves to exclude the note produced from going in evidence to the jury, on the ground that the name of one of the firm of engravers, set out in the description of the note in the indictment, does not appear on the note produced; the attorney for the Commonwealth proves that when he drew the indictment he had been able to make out the name on the note, from his knowledge that one of the firm of engravers bore that name, though he cannot say he would have been able to do so without the knowledge of that fact; but that the word had since become indistinct, he sup- poses, by handling the note. The court thereupon overrules the motion to exclude, and permits evidence to be given of the passing of the note produced. Held : It was right for the court to do so. In Kirk's Case, 9 Leigh, 627, decided by the General Court, December, 1838, it was held: In a prosecution for passing a counterfeit coin to a person who resides in another State, if a subj)(Kna for such person as a witness has been issued, and re- turned "not found," the fact of the passing and the counterfeit character of the coin may be proved without producing the coin at the trial. It seems that in a prosecution for passing a counterfeit coin, the prosecutor is at liberty to prove the fact of the passing, and the counterfeit character, of the coin, without either producing the coin or accounting for its non-production. In Page's Case, 9 Leigh, 683, decided by the General Court, December, 1839. A prisoner is committed for examination, is examined and remanded by the examining court for trial, for " feloniously using and employing as true for his own benefit a certain counterfeit note, well knowing the same to be counter- feit. Held : An indictment for forging the note is not warranted by the examination and must be quashed. CITATIONS TO THE CODE OF VIRGINIA. 995 An indictment (described in the record of the finding and in the entry of the arraignment as an indictment for forgery) con- tains, First, A count for forging and counterfeiting a note, and, Second, A count for feloniously using and employing as true a counterfeit note ; verdict finds the prisoner guilty of forgery as alleged in the indictment. Held : An acquittal must be entered on the second count. In Scotfs Case, 1 Kob. 695 (2d edition, 752), decided by the General Court, it was held: An indictment on the statute charging that the prisoner did knowingly have in his custody, without lawful authority or excuse, "one die or instrument" for the purpose of producing and impressing the stamp and similitude of the current silver coin called a half-dollar (no fur- ther describing the die or instrument) is insufficient. For Fotdkes's Case, 2 Rob., 836, here cited, see ante, Section 3733. In Cady's Case, 10 Grat., 776, decided January, 1854, it was held : On a prosecution for uttering and attempting to employ as true a forged note purporting to be the note of the Bank of Delaware in Pennsylvania, a banking company authorized by the laws' of Pennsylvania, the existence of such a bank may be proved by parol evidence. The averment that it was authorized by the laws of Pennsylvania is surplusage, and need not be proved. The time when the offence is alleged in the indictment to have been committed being stated in figures, is no error. In Powell's Case, 11 Grat., 822, decided October, 1854, it was held : The words " to the prejudice of another's rights," in re- lation to forgeries, are descriptive not of the offence, but of the writings of which forgery may be committed ; and it is not, therefore, necessary that they shall be inserted in the indict- ment in describing the offence charged. The maker of a negotiable instrument passes it to the payee, with the name of a third person endorsed upon it, which name he forged ; the forging of the name endorsed upon the paper constitutes the offence of forgery. The description of the writing in the indictment as the en- dorsement of the person whose name is forged will not vitiate the indictment, though the simulated liability might not be that of technical endorser, but of a different character. In Wash's Case, 16 Grat., 530, decided October 29, 1861, it was held : In a prosecution for uttering counterfeit coin, the guilty knowledge of the prisoner that the coin was counterfeit is a fact to be proved, and there can be no presumption of law from the existence of other facts of this guilty knowledge, though there may be a presumption of fact. In JetCs Case, 18 Grat., 933, decided October, 1867, it was held: A State court has jurisdiction to punish an act made an 996 CITATIONS TO THE CODE OF VIRGINIA. offence by the laws of the State, though the same act is made an offence by a law of the Congress of the United States. A State court has jurisdiction to punish the offence of at- tempting to pass a forged note purporting to be a note of one of the national banks of the United States. See Sand's Case, 20 Grat., 800, cited ante, Section 3733. SECTION 3737. In Kearns's Case, 1 Va. Cases, 109, decided by the General Court, it was held : Where in the forgery of an order on the treasury of the State the name of one of the auditors is incor- rect, there is no forgery. In Ervin c& Lewis's Case, 2 Va. Cases, 337, decided by the General Court, June, 1823, it was held : A charge that a forgery of bank-notes was committed with intent to injure "divers good citizens of the Commonwealth and others," to the jury unknown r without setting out an intent to injure the president, directors, and company of those banks, or of any particular person, or body politic, by name, is good after verdict. In Huffman's Case, 6 Rand., 685, decided by the General Court, November, 1828, it was held : If the examining court re- mand to the superior court for trial a prisoner charged with forgery, the prisoner may be indicted in the superior court, not only for the forgery, but also for procuring the instrument to be forged, and for acting and assisting in the forgery. It is not necessary to set forth in the count the persons whom the prisoner procured to forge the instrument, or with whom he acted and assisted in the forgery. A general description in the words of the statute is sufficient. An indictment which charges that the prisoner caused and procured a certain instrument to- be forged, and willingly assisted in the forgery, etc., is to be un- derstood as charging that he caused it to be done in his pres- ence, and that he aided, being present, in other words, as charging him as principal in the second degree, and not as accessory. If an examining court remand a prisoner on a charge of pass- ing a forged note, he may be indicted for passing it, knowing it to be forged. In a bill of indictment with thr^e counts, if in the third count it is omitted to be stated that the grand jury "on their oath" present (the first two counts being regular in that respect), the objection is obviated by the fact that the record states that the grand jury were sworn in open court. A forged paper is passed by a prisoner bearing date in 1828; immediately after, the prisoner, with the knowledge of the holder, alters the date to 1827. The indictment sets forth its tenor, and describes it as dated in 1827. The paper is proper CITATIONS TO THE CODE OF VIRGINIA. 997 evidence to go to the jury in support of the indictment, notwith- standing the proof that it bore date in 1828 when passed. In Martin's Case, 2 Leigh, 745, decided November, 1830, it was held : Upon the trial of indictment for passing counterfeit bank-notes, proof that prisoner had, about same time, passed another note of same kind, which was thought to be a counter- feit, and which he took back, though this note is not produced ^it the trial, is admissible evidence to prove the scienter. In a criminal prosecution for passing a counterfeit note, it is not necessary to prove the notes to be counterfeit by an officer of the bank of which the notes are counterfeited. See Urown's Case, 2 Leigh, 769, cited ante, Section 3735. In Pendleton's Case, 4 Leigh, 694, decided by the General Court, July, 1834, it was held : On the trial of indictment for forgery of a check on a bank, if there be proof rendering it highly probable that the original paper has been lost or de- stroyed, though this was not done by the accused or by his procurement, secondary evidence of the contents, character and description of the paper is admissible to sustain the prosecu- tion. In IlendricKs Case, 5 Leigh, 708, decided by the General Court, December, 1834. Upon an indictment for passing a counterfeit check or order of a president of a branch of the bank of the United States on the cashier of the bank, payable to K. T. or order, and endorsed by R. T. to bearer. Held: That whether the charter of the bank of the United States be constitutional or not, and whether the charter authorizes the issue of such checks or orders or not, the counterfeiting or pass- ing counterfeits of such checks or orders is felony by the statute, and though the offender be indictable in the courts of the United States for the offence against the laws of the United States, he is also indictable in the courts of Virginia for the offence against the laws of the State. On the trial of an indictment for passing a counterfeit bank- note or check, after evidence that the prisoner passed the note, and that it was counterfeit, evidence that it was counterfeit, evi- dence that the prisoner had in his possession and attempted to pass other counterfeit notes of the same kind to other persons the day after he passed those in the indictment mentioned, is admissible to prove the scienter. For the reference to 5 Leigh, 720, see Murnfs Case, quoted ante, Section 3735. See Bucldands Case, 8 Leigh, 732, cited ante, Section 3735. For Foulkes's Case, 2 Eob., 837, see ante, Section 3733. In Perkins's Case, 1 Grat., 651, decided June, 1851, by the Oeneral Court. An indictment for forgery charged the forgery of a negotiable note, and set it out in JMKC verba, without setting 9.98 CITATIONS TO THE CODE or VIRGINIA. out the endorsements on the back of it. On the trial, when the note was offered in evidence, it was objected to on the ground of variance. Held : It was not necessary to set out in the in- dictment the endorsements upon the note, or any other matter written upon the same paper, constituting no part of the note itself, and not entering into the essential description of that in- strument. The note said, " I promise to pay," etc. It was still a nego- tiable note, though a bank might refuse to discount it because of its informality. After the case had been submitted to the jury and they had retired to consider of their verdict, they returned into court and asked the court to instruct them as to whether it was necessary that they should be satisfied that the prisoner did actually and personally forge the paper charged in the indictment in order to his conviction. The court instructed them that either the actual forgery by the prisoner, or his actual presence aiding and assisting with a felonious intent when the forged instru- ment was made, constituted the offence of forgery. Held: The instruction being responsive to the inquiry propounded by the jury, even if it was an abstract proposition, yet as the jury asked an instruction on the point, and the instruction given correctly stated the law, it is not cause for setting aside the verdict. See Powell's Case, 11 Grat., 822, cited ante, Section 3735. The reference to 31 Grat., 862, is an error. In Terry's Case, 87 Va., 672, decided April 16, 1891, it was held : This section predicates the offence of forgery only of such writings as are, or may be, to the prejudice of another. If it be not so, the indictment does not charge an offence. SECTION 3738. In Martin's Case, 2 Leigh, 745, decided November, 1830. Upon the trial of an indictment against M., for passing counter- feit bank-notes, the prisoner appears to have been confederated with one L. in passing counterfeit notes, and present when L. passed such notes, the notes so passed by L. are produced in evidence against the prisoner. Held : They are proper evi- dence. In Spencer's Case, 2 Leigh, 751, decided November, 1830, it was held : Upon trial of an indictment for forging bank-notes, the fact, if proved, of the forged notes mentioned in the indict- ment, and other forged notes of like kind, and the plates, imple- ments, and materials for forging such notes, being found in the prisoner's possession, is prima facie or circumstantial presump- tive evidence that the prisoner was the forger, proper to be given to the jury. And such forged notes, etc., being found in possession of the prisoner in the county of B., are like prima CITATIONS TO THE CODE OF VIRGINIA. 999 fade evidence, proper to be given to the jury, of the fact that he committed the forgery there. For reference to 5 Leigh, 708, see Hendricks Case, quoted ante, Section 3737. In Scott's Case, 14 Grat., 687, decided August 20, 1858, it was held: A prisoner is examined for forging and counterfeiting twenty-four pieces of silver coin, and is sent to the circuit court for further trial. He cannot be indicted for having in his pos- session ten or more pieces of coin, with intent to alter and em- ploy the same as true. An indictment under the statute for feloniously having in his possession more than ten pieces of forged or base coin nius\ allege that the prisoner had them in his possession at the same time ; and the charge that on a cer- tain day he had them in his possession is not sufficient. There are counts in an indictment for forging and counterfeit- ing coin, and also a count for feloniously having in his posses- sion twenty pieces of forged coin, not saying "at the same time." The prisoner having moved the court to quash the last count, which is overruled, there is a verdict and judgment against him, and he obtains a writ of error. This court, holding that the count is bad as an indictment for a felony, will not permit it to stand as a count for a misdemeanor, but will reverse the judg- ment and quash the count. CHAPTEE CLXXXIIL SECTION 3741. In Jlickmaiis Case, 2 Va. Cases, 323, decided November,. 1822, it was held : In a prosecution for perjury, if the indict- ment sets forth that a " warrant for debt due by account for rent " was sued out by the defendant, and the warrant given in evidence shows that the claim was not for rent, but for other things, this is such a variance that the warrant ought not to be given in evidence. Stockley's Case, 10 Leigh, 678 (2d edition, 712), here cited, does not decide what is, or what is not, perjury, but only that perjury can be committed on voir dire. In Heath's Case, 1 Bob., 729 (2d edition, 796), decided by the General Court, it was held : After a verdict of conviction for murder in the first degree, the prisoner adduces testimony that two of the jurors who tried the case, and who, on the voir >/<>>', declared that they had not formed or expressed any opinion as to the guilt or innocence of the prisoner, had, in fact, previous to the trial, expressed decided opinions that the prisoner \\:IH guilty and ought to be hung; of which circumstance, tin- pris- oner alleges, he had no knowledge until since the verdict was rendered; and on this ground he moves to set aside the ver- dict. Held : 1000 CITATIONS TO THE CODE OF VIRGINIA. 1. Such inquiry was open, and the evidence admissible, for the purpose of showing perjury and corruption in the jurors. But, 2. It belonged exclusively to the judge who presided at the trial to weigh the conflicting credibility of the witnesses ad- duced by the prisoner and of the jurors, and to decide whether, in justice to the prisoner, and upon all the circumstances of the case, a new trial ought, or ought not, to be awarded. In Thomas's Case, 2 Rob., 795, decided by the General Court, June, 1843. An indictment for felony in giving false testimony before a grand jury charges that the defendant, being duly sworn, "did depose and give evidence to the grand jury in sub- stance and to the effect following" (stating the testimony), which said evidence was wilfully false and corrupt ; for in truth, etc. (falsifying the facts deposed to) ; " and so the defendant did, in manner and form aforesaid, commit wilful and corrupt perjury." On general demurrer to the indictment, held : Here is no suffi- cient averment that the defendant wilfully or corruptly swore falsely, and the indictment is defective as well at common law as under the statute. In RoacKs Case, 1 Grat., 561, decided December, 1844, by the General Court. A demurrer to an indictment for perjury was sustained, but no grounds of demurrer are stated. In Lodge's Case, 2 Grat., 579, decided December, 1845, by the General Court, it was held: Indictments for perjury in Vir- ginia must be according to the common law. An indictment for perjury in swearing to an answer in chan- cery should set out the whole bill and answer. In Williamson's Case, 4 Grat., 554, decided December, 1847, by the General Court, it was held: A clerk has no authority, when applied to for a marriage license, to examine a witness on oath as to the age of the parties. The authority of a clerk to administer an oath out of court only extends to cases in which, without regard to circumstances, the making the affidavit is a necessary prerequisite to the per- formance of the official act which the clerk is called upon to perform. The swearing falsely before the clerk that a person applying for a marriage license is over the age of twenty-one years, does not constitute the offence of perjury. But if, by such false oath, the person applying is enabled to obtain a marriage license, and the marriage takes place, the taking the false oath is a misde- meanor. In Litton' s Case, 6 Grat., 691, decided December, 1849, by the General Court. On a trial of a warrant for debt before a justice, founded on an order given by the defendant, he makes oath before the justice that he did not sign his name to the order. Upon an indictment for perjury in taking this oath, CITATIONS TO THE CODE OF VIRGINIA. 1001 held : That perjury may be committed in taking such oath. In such case the court should not quash the indictment, but should put the defendant to his demurrer. In Schwartz's Case, 27 Grat., 1025, decided November 23, 1876. S. is examined as a witness against T., charged with the crime of rape. He is asked if he and T. had not agreed to commit the rape, and if he did not hear the cries of the girl whilst T. had her in the bushes ; and he denies both. The ex- amination is interrupted for a few minutes, and the witness is retired into another room, where he states to two 'of the officers and another person that to help T. he had sworn falsely ; and when his examination is* resumed he says that he and T. had agreed to commit the rape, and that he did hear the cries of the girl. S. is then indicted for perjury in making his first state- ment. There is no evidence against him but his own state- ments. Held : His statements are not sufficient to convict him. In MaybusKs Case, 29 Grat., 857, decided January, 1878, it was held : The act authorizes the clerk of a county or a cor- poration court, when an application is made to him for a mar- riage license, to require evidence that the female is over the age of twenty- one years, and to administer an oath to the person giving the testimony. M. is prosecuted for subornation of perjury, found guilty, and judgment rendered against him. At the same term of the court, but after the conviction of M., G. is tried for the perjury and is acquitted. M. then moves the court for a new trial. G. having been acquitted of the perjury, M. should have a new trial, as, if G. was not guilty of the perjury, M. could not be guilty of subornation of perjury. SECTION 3742. The case referred to as 29 Grat., 857, will be found supra, Section 3741. SECTION 3744. In Callagharfs Case, 2 Va. Cases, 460, decided by the General Court, June, 1825, it .was held : A corrupt agreement between two justices of the peace, A. and B., to the effect following: That A. will vote for C. for commissioner of the revenue, in consideration that B. will vote for D. as clerk ; and that B. will vote for D. as clerk in consideration that A. will vote for C. as commissioner of the revenue ; and the actual voting of the said two justices, in pursuance of said corrupt agreement, is not an offence within the statute against buying and selling offices, be- cause corrupt bargains and sales, prohibited by that statute, are those by which the party bargaining or selling is to receive some profit, or some assurance of profit, directly or indirectly, to himself. But such corrupt agreement (and the execution of 1002 CITATIONS TO THE CODE OF VIRGINIA. it) is a misdemeanor at common law, for which an information on indictment will lie. In NeweWs Case, 2 Wash., 88 (2d edition, 119), decided at October term, 1795, it was held : In an information against a justice of the peace for bribery in an election for a clerk, it ought to be stated with certainty that an election was held, and that at that election the vote was cast. SECTION 3749. In Old? s Case, 18 Grat., 915 and 924, decided October, 1867, it was held : The Code punishes the omitting or delaying to per- form any duty pertaining to the office of one who is authorized to serve legal process. The offence punishable by the act is the omitting or delaying to perform any duty, etc., not the doing any act. The presentment should follow the terms of the statute or must use terms which show conclusively, or beyond any rational doubt to the contrary, that the accused is guilty of the offence described in the statute, and unless this is done, the addition that " so the accused did receive money for omitting and delay- ing to perform a duty pertaining to his office of constable," etc., will not cure the defect. SECTION 3753. In Lewis's Case, 4 Leigh, 664, decided by the General Court, July, 1833. A sheriff is not liable to criminal prosecution for a malfeasance in office committed by his deputy. The Circuit Court of Richmond issues a capias against a per- son there indicted of felony, which is directed to the sheriff of Essex, and by him served, and then in Essex he wilfully permits the prisoner to escape. Held : In such case a criminal prose- cution against the sheriff cannot be maintained in the Circuit Superior Court of Richmond for this official malfeasance com- mitted in Essex. SECTION 3755. In deck's Case, 21 Grat., 777, decided June, 1871. Upon an indictment in the county court against C. the jury render a ver- dict of guilty, and that he be imprisoned in the county jail for ten months and pay a fine of ten dollars. No judgment on the verdict is entered at that time, nor is the case continued, but at the next term of the court the judgment is rendered. Before the ten months have expired C. escapes from the jail and is after- wards retaken. Held: The case was pending in a court, and it was proper to render the judgment on the verdict at the next term of the court. C. is not entitled to be discharged at the end of the ten months, but is to be kept in prison beyond that period for the CITATIONS TO THE CODE OF VIRGINIA. 1005 length of time he was out when he eseaped, and this though C. had been indicted for his escape. SECTION 3767. In Feely's Case, 2 Va. Cases, 1, decided by the General Court, June, 1815, it was held : Using means to prevent and preventing a witness from attending court, who has been duly summoned, is a contempt of court which may be punished by information. SECTION 3768. In Morris vs. Creel et als., 1 Va. Cases, 333, decided by the General Court, it was held : After a subpoena duces tecum has been disobeyed, an attachment should not issue without first serving a rule to show cause why it should not issue. In Stuart's Case, 2 Va. Cases, 320, decided November, 1822, by the General Court, it was held : The making of an affray and riot, accompanied by great noise and turbulence at the tavern (near the court-house) where the judge of the court was, and of which the rioters were advised, during the night of a term (but the court being then in recess), is not a contempt of court. In Dandridge's Case, 2 Va. Cases, 408, decided by the Gen- eral Court, June, 1824, it was held, p. 426 : D., being interested in the event of a suit pending in court, met the judge of the court on the steps of the court-house as he was proceeding to take his seat on the bench (the hour having arrived to which court had been adjourned), being saluted by the judge with "Good morning, Mr. D.," he returned it by saying, "I do not speak to any one who acted so corruptly and in so cowardly a manner as to attack my character when I was absent, and so entirely defenceless," or words to that effect, alluding to the said judge's opinion expressed at the trial of the said cause at a former term. This is a contempt for which the said D. may be fined or imprisoned or both, although the court was not then actually in session. An attachment for contempt has no other object than to bring the party into court ; when the contempt is in open court, the party being present, there is no need of process to bring him in, nor any need of interrogatories to ascertain what has occurred in open court. When the contempt is not in open court, the usual course is to issue a rule to show cause why an attachment should not issue, though the attachment sometimes issues without the rule. If the party appear to the rule to shqw cause, and instead of mov- ing to discharge it, submit to interrogatories, there is no neces- sity for the attachment. So if, before the rule to show cause why an attachment should not be awarded, the party be present in court and a nilo be made upon him to show cause "why he should not be fined, 1004 CITATIONS TO THE CODE OF VIRGINIA. or committed for his contempt," returnable on the morrow, and he be recognized to appear on the return of the rule, the rule for an attachment, as well as the attachment itself, may be dis- pensed with. On the return of the said rule last mentioned, if the party be again ruled to appear on the next day to answer interrogatories, and he do not appear to answer on the next day, and he do not purge himself of the contempt, the court may proceed in the same way as if he had been attached, and those interrogatories had been propounded to him, and answered by him while so attached. When the contempt consists of an insult to the judge, relat- ing to his official conduct, and is expressed to his face, though out of court, a written statement made by him, especially if supported by the affidavits of others who heard the insult, is a sufficient ground for a rule. In Deskins's Case, 4 Leigh, 685, decided by the General Court, July, 1834. A circuit superior court orders a subpcena for wit- nesses to attend the grand jury then in session, and they inten- tionally conceal themselves from the sheriff to prevent the pro- cess from being served, and so prevent it from being served till the grand jury is discharged. Held: Upon the construction of the statute, this is not a contempt punishable by the court in a sum- mary manner. In the case of Baltimore and Ohio Railroad Company vs. City of Wheeling, 13 Grat., 40, decided November 23, 1855, it was held: A proceeding for a contempt in disobeying an injunc- tion is not an order in the cause, but is in the nature of a crimi- nal proceeding, and the judgment in such a proceeding can only be reviewed by a superior tribunal by writ of error, and not al- ways in that way. In Wells's Case, 21 Grat., 500, decided November, 1871, it was held, p. 504 : An appeal may be taken to the court of appeals from the judgment of a circuit court imposing a fine upon a per- son for a contempt of the court in aiding to obstruct the execu- tion of the decree of the court. Where a rule is made upon a person to show cause why he shall not be punished for a contempt of a court in aiding to ob- struct in the execution of a decree of the court, he purges him- self of the contempt by answering under oath that in what he had done he acted as counsel in good faith, without any design, wish, or expectation of committing any contempt of, or offering disrespect to, the court. The duty of an attorney to his client cannot conflict with his obligation to demean himself honestly in the practice of the law, or to be faithful to his country. But if he acts in good faith, and demeans himself nonestly, he is not responsible for an error in judgment. CITATIONS TO THE CODE OF VIRGINIA. 1005 See Kendricks's Case, 78 Va., 490, cited ante, Section 3692. In Miller's Case, 80 Va., 33, decided January 8, 1885, it was held : Where a roll of a volunteer military company is filed with the clerk of the court, the members thereof are exempt from sum- mons for jury duty, and if summoned, need not attend to make their excuses. CHAPTEK CLXXXIV. SECTION 3774. In Mackdboy's Case, 2 Va. Cases, 268, decided by the Gen- eral Court, November, 1821, it was held: A record of a riot, on the view of the justices, is a conviction of so great authority that it cannot be traversed. An inquisition ought to charge the offence with convenient certainty ; it ought to be as special and verbatim as an indict- ment in ordinary cases. An inquisition, therefore, which charges only that the defendants were guilty of a riot, without setting forth the time, place, or manner of committing it, or any facts which in law constitute a riot, is defective and insufficient. SECTION 3778. In Meaner' s Case, 26 Grat., 976, decided October 9, 1875, it was held : A policeman who does not use more force than is necessary to arrest a person who is engaged in riotous and dis- orderly conduct, is not guilty of an assault and battery. SECTION 3779. In Samannini's Case, 16 Grat., 543, decided November 23, 1863, it was held : S. occupies a house, the front room on the first floor as a store, the back room as a dining-room, the upper room as a sleeping-apartment for her family ; but the only mode of ascent to the upper story is outside of the house. A riotous destruction of the front door and window of the store-room is an offence under the act. A partial pulling down or destruction of a dwelling-house is an offence under the act, in this differing from the English statute. SECTION 3780. In Hicks's Case, 7 Grat., 597, decided June, 1850, by the General Court, it was held : A jury may well find a habitual or general wearing of concealed weapons from evidence that the defendant was seen once wearing concealed weapons under cir- cumstances which satisfied them that it was his general practice. CHAPTER CLXXXV. SECTION 3781. In Warner's Case, 2 Va. Cases, 95, decided by tho General Court, November, 1817, it was held : In a prosecution for bigamy, 1006 CITATIONS TO THE CODE OF VIKGINIA. where the first marriage took place in Pennsylvania and the second marriage in this State, it became a question how the said first marriage might be proved. By the law of Pennsyl- vania marriages may be solemnized by taking each other for husband and wife before twelve witnesses, and the certificate of their marriage under the hands of the parties and witnesses, at least twelve, and one of them a justice of the peace, shall be brought to the register of the county where they are married, and registered in his office. Decided that the parol evidence of one of the witnesses who was present at the marriage (and who proved that they took each other for husband and wife before twelve witnesses, one of whom was a justice of the peace) was proper, competent and sufficient to prove that such person was a justice of the peace, the commission of said justice or a copy thereof is not necessary, but the parol evidence of the witness that he knew the said justice, that he was generally reputed as such, that he acted as justice, and that witness had not heard to the contrary, is proper and sufficient. The fact of the marriage in such prosecution may likewise be established by such parol testimony alone, without producing the certificate of marriage or a copy thereof from the register's office. The acknowledgment of the husband that he is married, and his cohabitation with the woman as his wife, are proper evidence of the first marriage in a prosecution for bigamy. There is no case in the 6 Hand, affecting this statute. In Moore's Case, 9 Leigh, 639, decided by the General Court, December, 1838. On a trial for bigamy, a certificate stating that the prisoner was married to J. F. by the person whose name is subscribed thereto, and appearing to have been returned by him to the county court, but nowise showing that he was a person authorized to celebrate marriage, is offered in evidence by the prosecutor "for the purpose" (as a bill of exceptions filed by the prisoner states) ." of proving, in connection with other evidence, a marriage between the prisoner and J. F.," and though objected to by the prisoner, is admitted by the court. On this ground prisoner applies to the General Court for a writ of error, which is refused. On trial for bigamy, evidence may be given of prisoner's marriage under a license purporting to have been issued by the clerk of the proper court, and of the fact that such a license was issued to the prisoner, without producing the license itself, though it be within the power of the Commonwealth. In Oneale's Case, 17 Grat., 582, decided January 23, 1867, it was held : A marriage contracted in Virginia after the secession of the State of Virginia, and before the re- establishment of the government under the Alexandria Constitution, is not therefore invalid. CITATIONS TO THE CODE OF VIRGINIA. 1007 On a trial for bigamy, where the charge in the indictment is that the first marriage took .place in another State or country, it must be proved to the satisfaction of the jury that a valid marriage had taken place as stated. In such a case the admissions of the prisoner and his acts are competent evidence to prove the marriage, without produc- ing the record, or a witness present at the marriage. In Bird's Case, 21 Grat., 800, decided November, 1871, it was held : On a prosecution for bigamy, where the marriage is alleged to have taken place in a foreign country or State, proof must be made of a valid marriage according to the law of that coun- try or State; but no particular kind of evidence is essential to establish the fact, except that it cannot be proved by reputation and cohabitation. When a witness testifies to a marriage in a foreign State, sol- emnized in the manner usual and customary in such State by a person duly authorized to celebrate the rites of marriage, and the parties afterwards lived together as man and wife, this is as satisfactory evidence of a valid marriage as can be expected or desired, and in such case it is not necessary to prove the laws of such State as to offer further evidence of a compliance with its provisions. M. proves that he is a Catholic priest and a pastor of a church in Washington, D. C., and authorized to celebrate the rites of marriage, that by virtue of license issued by the proper officer in the usual form, he married B. and M. at his residence in said city, in the presence of two persons, and in accord- ance with the rules and customs of the Catholic church and the laws of the District of Columbia. It was proved that B. and M. afterwards lived together as husband and wife. On a prosecution of B. for bigamy, this is sufficient evidence of the marriage of B. and M. SECTION 3783. In Hutchins's Case, 2 Va. Cases, 331, decided by the Gene- ral Court, June, 1823, it was held : An indictment under this statute charging that W. T. (the man) did incestuously inter- marry with N. H. (the woman), is sufficiently certain to charge her as well as him, for he could not intermarry with her with- out her intermarrying with him also. In Ferryman's Case, 2 Leigh, 717, decided June, 1830. It is provided by statute "that if the brother hath married or shall marry his brother's wife," the marriage shall be dissolved, the parties fined, etc. Held : The marrying a brother's widow is an offence within the statute. In the case of Kelly vs. Scott, 5 Grat, 479, decided January, 1849, it was held : In prosecution, prior to the act of 1827, for 1008 CITATIONS TO THE CODE OF VIEGINIA. marrying a deceased wife's sister, or for marrying the husband' of a deceased sister, the parties might appear by attorney, and r upon a plea of guilty by the attorney, judgment might be en- tered declaring the marriage a nullity. A judgment declaring the marriage a nullity is valid, though it does not proceed to punish the parties, or to require them to enter into bonds with condition to live separate. SECTION 3784. In Hill's Case, 6 Leigh, 636, decided by the General Court r June, 1836, it was held: In an indictment upon the statute, against the clerk of a county court for issuing a marriage-li- cense for the marriage of an infant never before married, with- out the consent of the infant's father or guardian, it is not ne- cessary to charge that the clerk knew that the party was an infant, or that he issued the license maliciously or corruptly, or that a marriage took place in pursuance of the license. SECTION 3786. In Anderson's Case, 5 Rand., 627, decided by the General Court, November, 1826, it was held : Although our courts take cognizance of offences contra bonos mores, yet the adjudicated cases afford a safe rule for fixing the limits of the principle; if they are departed from, the criminal jurisdiction may be ex- tended to cases which, though grossly immoral, were never yet thought of as indictable offences, such as slander and the like. In Isaacs and West's Case, 5 Rand., 634, decided by the Gen- eral Court, November, 1826, it was held : The offence of forni- cation (or the cohabiting together by a man and a woman in a state of illicit commerce, as man and wife, but without marri- age) is not punishable as a common-law offence. The statute which prescribes a penalty for the offence must be pursued in such cases. In Jones's Case, 2 Grat., 555, decided June, 1845, it was held by the General Court : Adultery or fornication committed with a slave is a violation of the statute. In Lafferty's Case, 6 Grat., 672, decided December, 1849, by the General Court, it was held : Illicit intercourse between an unmarried man and a married woman is fornication in the man. In Nichol and Jane's Case, 7 Grat., 589, decided June, 1850. by the General Court, it was held : In an indictment for lewd and lascivious cohabitation, the offence is charged from a day prior to the day when the statute went into effect, but as con- tinuing to a day after the commencement of the act. The in- dictment is good. In Cregor's Case, 7 Grat., 591, decided June, 1850, by the General Court, it was held : One credible witness is now suffi- cient to authorize a conviction for adultery or fornication. CITATIONS TO THE CODE OF VIRGINIA. 1009 SECTION 3787. For the reference to 7 Grat., 589, see Nichol and Jane's Case, cited supra, Section 3786. In Scoffs Case, 77 Va., 344, decided January 25, 1883, it was held : An indictment for a statutory offence, charging the offence in the language of the statute, is sufficient. An indictment for lewd and lascivious cohabitation may be either joint or separate. In Jones's Case, 80 Va., 18, decided January 8, 1885, it was held : To sustain an indictment under this section the evidence must establish that the parties, not being married, lewdly and lasciviously associated and cohabited, that is, lived together in the same house as man and wife live together. In Pruner & Clark's Case, 82 Va., 115, decided June 24, 1886, it was held : To constitute this offence it is essential that it be proved that the parties cohabit together, that is, live to- gether in the same house as man and wife. Proof of occasional acts of incontinence merely is not sufficient. SECTION 3788. In McPherson's Case, 28 Grat., 939, decided May 1, 1877, it was held : A marriage between a white man and a woman who is of less than one-fourth of negro blood, however small this lesser quantity may be, is legal. A woman whose father was white, and whose mother's father was white, and whose great-grandmother was of brown com- plexion, is not a negro in the sense of the statute. In Kinney's Case, 30 Grat., 858, decided September, 1878. K., a negro man, and M., a white woman, both domiciled in the county of Augusta, Virginia, left Virginia and went to Washing- ton, D. C., and were married there according to the regular forms for celebrating marriages, and after remaining absent from Virginia about ten days, returned to their home in Augusta county, Virginia, where they have since lived as man and wife. By the laws of Virginia, all marriages between a white person and a negro are absolutely void. On an indictment for lewdly and lasciviously associating and cohabiting together, held : Al- though such marriages are not prohibited by the laws of the District of Columbia, and this marriage was performed accord- ing to the ceremonies there prescribed, it is void under the laws of Virginia, and the parties are liable to indictment. While the forms and ceremonies of marriage are governed by the laws of the place where the marriage is celebrated, the essen- tials of the contract depend upon and are governed by the laws of the country where the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated. See Scott s Case, 77 Va., 344, cited ante, Section 3787. 64 1010 CITATIONS TO THE CODE OF VIRGINIA. In the case of Jones vs. Commonwealth, 79 Va., 213, decided July 24, 1884, it was held: An indictment in the language of the statute interdicting marriage between a negro and a white person is sufficient. To sustain a charge under said section the Commonwealth must prove an actual marriage, duly celebrated between the parties by a person duly authorized and qualified to celebrate it ; or that the parties consummated the marriage in the bona fide belief that the person celebrating it was legally au- thorized and qualified to celebrate it according to the law of Virginia, and also the color and indentity of the parties ; and this must be fully proved by the best evidence attainable. In Jones's Case, 80 Va., 538, decided June 18, 1885, it was held : In order to sustain an indictment under this section making the inter-marriage of a negro with a white person a felony, it is necessary first to establish that the accused is a person with one-fourth or more of negro blood, id est, a negro ; and the burden of proving this lies on the Commonwealth. SECTION 3799. In the case of Ex-Parte Marx., 86 Va. 40, decided April 18, 1889, it was held: The fine prescribed for violating the Sabbath is recoverable before a justice and by a civil warrant. The con- stitutional right to trial by jury does not extend to such an offence. SECTION 3801. In N. <& W. R. It. Co.'s Case, 88 Va., 95, decided June 25, 1892, it was held : Statutes forbidding inter-State freight trains to run on Sunday are by their necessary operation, whatever their professed object, a regulation of or an obstruction to inter- State commerce. This section as to Sunday trains is inconsistent with United States Constitution, Act 1, Section 18, giving Congress power to regulate inter-State commerce, and void as to trains running between different States. SECTION 3804. In Arlington's Case, 87 Va., 96, decided November 20, 1890, it was held : Prosecution for selling liquor on Sunday contrary to this section is no bar to prosecution for selling same liquor without license contrary to act. SECTION 3805. In Daniel's Case, 2 Va. Cases, 402, decided by the General Court, June, 1824, it was held : An indictment for disturbing a religious congregation need not set out the means by which the disturbance was effected. In Jenning's Case, 3 Grat. 624, it was held, by the General ( Jourt : The statute is applicable not only to disturbances which CITATIONS TO THE CODE OF VIRGINIA. 1011 are made while the religious services are progressing, but to disturbances made whilst the congregation is assembled for reli- gious worship, though it be at night after the religious services are closed for the day and the congregation has retired to rest. CHAPTER CLXXXVI. CHAPTER CLXXXVIL SECTION 3815. In Wyatfs Case, 6 Rand., 694, decided by the General Court, November, 1828, it was held: The distinctive feature in the character of the games called A. B. C. and E. O. and faro -bank is, that the chances of the game are unequal, all other things being equal, and those unequal chances are in favor of the exhibi- tor of the games or tables. If other games resemble those standard games in that distinctive feature, they come within the terms of this section, being " gaming tables of the same or like kind," and are liable to the penalties denounced against those standard games, whatever may be the denomination of those other games, and whether played with cards, dice, or in any other manner. Under this construction, the exhibitor of a gam- ing table called haphazard, alias blind hazard, alias snickup, etc. Held : To be liable to the same punishment with the ex- hibitor of a faro-bank. In Huff's Case, 14 Grat., 648, decided March 8, 1858, it was held : An indictment for gaming under the statute must charge the playing of one of the games specified, or it must show by averment that the gaming charged is of the like kind as those specified, that is, that the chances of the game are unequal, all other things being equal. A presentment for gaming, not setting out any offence against the statute, may be quashed on motion. In Leattis Case, 32 Grat., 873, decided January, 1873, it was held : An indictment under the statute for gaming pursues the language of the statute, except that it uses the word " and " in all the place of "or," thus charging the accused with exhibiting the games mentioned in the statute. This is correct. It charges but one offence, and is supported by proof of the keeping or ex- hibiting of any one of the games or tables mentioned, and on conviction there would be but one fine and one term of impri- sonment. The indictment charges the offence to have been committed in the city of Richmond, and within the jurisdiction of the court. This allegation is sufficiently certain. It is not an offe nee in which place enters into the offence, but it is an offence without re- gard to the particular house, building, or other particular locality 1012 CITATIONS TO THE CODE OF VIRGINIA. where it is committed. It is not necessary that the indictment should charge that the games or tables were kept or exhibited for gain. It is sufficient that it follows the language of the statute, and further charges that the accused did unlawfully keep and exhibit, etc. Upon the facts as certified in this case, the accused was properly convicted, and the judgment was re- versed by the appellate court. In NuckolTs Case, 32 Grat., 884, decided March, 1879, it was held : The game of poker or draw poker, is not a game of the like kind with faro, keno, etc., and does not come within the stat- ute. A person who does not take part in the game, but fur- nishes the room and gas in which poker or draw poker is played, for which he receives a moderate compensation from the parties playing, is not guilty under the statute of being concerned in interest in the keeping a table of the like kind with faro, keno, etc. SECTION 3816. In Maddox's Case, 2 Va. Cases, 19, decided by the General Court, November, 1815, it was held: A tavern-keeper, who is presented for suffering faro and loo to be played at his house, may be tried on the presentment alone, without any information, and if he refuses to answer to the presentment, judgment by default may be rendered against him. SECTION 3818. In Butts 's Case, 2 Va. Cases, 18, decided by the General Court> November, 1815, it was held : On a presentment for gaming the defendant was charged with the offence committed at the booth of Price Skinner, the proof was of gaming at the booth of Clarke, the said Skinner having no right, interest, or 'agency in the booth, this proof is insufficient to support the charge. In Terry's Case, 2 Va. Cases, 77, decided by the General Court, June, 1817, it was held : Playing at cards in a tavern is unlawful gaming, whether the party bets or not. In Walker's Case, 2 Va. Cases, 515, decided by the General Court, June, 1826, it was held: An abandoned jail, used for the guard and open to all the citizens of the county, is a public place. In Windsor's Case, 4 Leigh, 680, decided by the General Court, December, 1833. Indictment for gaming charges de- fendant with unlawful playing with cards, to- wit, at the game of all-fours, of loo, and of whist at a public place, to-wit, at the store-house of G., H. & Co. Held: 1. That to convict the defendant it is incumbent on the prose- cutor to prove that he played at some one of the games specified in the indictment. 2. That, if the playing was at the store-house of G., H. & Co., CITATIONS TO THE CODE OF VIRGINIA. 1013 in the night-time, after the business of the day was at an end, and the doors closed, the store-house in that state of things, prima facie, was not a public place, though it was so when it was open to the public in the day-time. In Sanders's Case, 5 Leigh, 751, decided by the General Court, July, 1835, it was held: The lessee and occupier of a tavern is also the occupier under the same lease of a store- house, which, however, is not within the curtilage of the tavern, nor used in any way with the tavern. Held : The store-house is not a part or an appurtenance of the tavern, within the meaning of the statute against unlawful gaming. To make a separate house an appurtenance of a tavern, within the meaning of that provision, such house must be used in con- nection with the tavern for the accommodation of guests as a part of the tavern. In Farmer's Case, 8 Leigh, 741, decided by the General Court, December, 1837. On a day when many persons are assembled at a tavern for the purpose of mustering a party engage in gaming in a barn two hundred yards distant from the tavern house and in a separate enclosure, though on the same plantation, the barn being seventy or eighty yards in the rear of another barn- in which spirits are sold by the tavern-keeper. Held : The first- mentioned barn is a public place, within the meaning of the act to prevent unlawful gaming. In Prices Case, 8 Leigh, 757, it was held, by the General Court: In an indictment against a tavern-keeper for suffering the game of loo to be played in his tavern by certain persons named, will be supported by proof of his having suffered that game to be played therein, though by other persons than those named in the indictment. If a party indicted for suffering an unlawful game to be played in his tavern was keeper of the tavern at the time of the playing, his having a license at the time is not necessary to his conviction. On conviction of a tavern-keeper upon an indictment for per- mitting unlawful gaming in his tavern, judgment cannot be ren- dered for revocation of defendant's license, acquired since the commission of the offence. In Sinkous' Case, 9 Leigh, 608, decided by the General Court, June, 1838, it was held : An indictment charging the defandant with unlawful gaming "at the house of J. W., the same being a house of entertainment," is sufficient. Wilson's Case, 9 Leigh, 648, decided by the General Court, June, 1839, was a mixed question of law and fact, and decided only that certain described premises was a race-field. No ap- plication as authority. In Roberts' Case, 10 Leigh, 686 (2d edition, 720), decided by the General Court, December, 1840, it was held : A presentment 1014 CITATIONS TO THE CODE OF VIRGINIA. " for unlawfully playing cards at the grocery of D. and C" is defective in substance, for not alleging the grocery to be a public place, or a place of public resort. In Vandine's Case, 6 Grat., 689, decided at December term, 1849, by the General Court. A cleared space in woods held not to be a public place within the meaning of the act. In teazle's Case, 8 Grat., 585, decided December, 1851, by the General Court, it was held : A store-house in a village, late at night after persons cease to come to the store to purchase goods, and the door is locked, is not a public place, within the meaning of the statute against gaming. In Shelton's Case, 8 Grat., 592, decided December, 1851, by the General Court, it was held : Betting on a horse race is not within the meaning of the section. In Bishop's Case, 13 Grat., 785, decided February 11, 1856, it was held : A presentment for playing at cards must charge that the place at which it occurred was a public place at the time of such playing, the name of the place not of itself import- ing that it was at all times a public place. A presentment for playing at cards "at or near" a public place is objectionable for uncertainty. In Gibboney's Case, 14 Grat., 582, decided September 8, 1857, it was held : An indictment for playing at cards at a public place may be sustained by proof that the party bet at faro at the time and place stated in the indictment. In ParcelVs Case, 14 Grat., 679, decided May 18, 1858, it was held : A room in an outhouse within the enclosures of a tavern lot, which had at one time been used in connection with the tavern, and the room over which is still so used, having been rented by a third party, and held, used, and controlled by him, independent of the proprietor of the tavern, though the occupier boarded at the hotel, and the servants belonging to it attended to the room, it is not a public ordinary, nor is it a public place in the sense of the act. In NeaVs Case, 22 Grat., 917, decided December 4, 1872, it was held : A licensed eating-house in a town is a public place in the meaning of the statute. Betting on the game of "bagatelle" at a public place is a violation of the statute, and is equally so if the person plays as well as bets. It is unlawful to bet at any game at a public place. SECTION 3820. See Maddox's Case, 2 Va. Cases, 19, cited ante, Section; 3816. See Saunders's Case, 5 Leigh, 751, cited ante, Section 3818. See Price's Case, 8 Leigh, 757, cited ante, Section 3818. See PurceWs Case, 14 Grat., 679, cited ante, Section 3818. CITATIONS TO THE CODE OF VIRGINIA. 1015 SECTION 3824. See 15 Grat., 653, cited post, Section 3837. SECTION 3826. In Chubb' s Case, 5 Band., 715, decided by the General Court r November, 1827, it was held: The act entitled "an act to pre- vent the sale of foreign lottery tickets within this Common- wealth " does not come within the operation of the twenty- ninth section of the gaming law, and is, therefore, not to be in- terpreted as if it were a remedial law, but like other penal laws. A guarantee (or written assurance or promise, whereby the warranter binds himself that he will pay the prize which may be drawn to a certain number in a lottery) when sold by the proprietor of the lottery, or a duly authorized agent of the pro- prietor, is strictly a lottery ticket, although it is not written in the usual form of lottery tickets, and the sale of such guarantee by such proprietor, or his agent, is forbidden by the said act. If an individual opens an office and sells guarantees as a sub- stitute for lottery tickets, he, the vendor, holding the tickets themselves for the benefit of the purchaser, sells those things which are substantially lottery tickets, and such sale is forbid* den by this act. See Temple's Case, 75 Va., 892, cited ante, Section 3692. SECTION 3837. In Shumate's Case, 15 Grat., 653, decided January, 1860. The section in relation to betting on elections is to be construed as a remedial statute. This section of the Code applies to all the preceding sections of the chapter. A short time before the election of county officers for A. to be made in May, 1858, M. sold to S. a wagon at the price of one hundred and fifty dollars, and worth that sum, to be paid by S. when K., one of the candidates for office of county court clerk at said election, should be elected to that office, and not at all if he was not elected, and S. at the time of said sale put up his check agreeably to that understanding, and upon these terms took possession of the wagon. Held : This is a wager on the part of M. and S. within the meaning of the Code. Both M. and S. are liable to a fine not exceeding the amount that either might lose. CHAPTEB CLXXXVIII. SECTION 3853. See NewelFs Case, 2 Wash., 88, cited ante, Section 3744. 1016 CITATIONS TO THE CODE OF VIRGINIA. CHAPTEE CLXXXIX. SECTION 3856. In Bailey's Case, 78 Va., 19, decided November 19, 1883, it was held: Under this section a road which has merely been ordered to be opened, but has never been actually opened, is not a road such as that section prescribes a penalty for obstructing. Resisting the execution of the court's order to open such "road" is not an offence under that section, but a contempt of the court. CHAPTEE CXC. SECTION 3879. In Barker's Case, 2 Va. Cases, 122, decided by the General Court, November, 1817, it was held: Every offence to which a capital punishment is annexed by statute is a felony, and since the establishment of the penitentiary, every offence there pun- ishable is in like manner a felony, unless it be by statute denom- inated a misdemeanor. In Rider's Case, 16 Grat., 499, decided August 30, 1860, it was held: An indictment for petit larceny, which proceeds to charge that the person indicted had been previously indicted, tried, and sentenced for another petty larceny, is an indictment for a felony; and a county or a corporation court has no juris- diction to try the prisoner. If, upon such an indictment, the the prisoner is tried and found guilty, the verdict should be arrested, and all the proceeding subsequent to the indictment should be quashed. In Randall's Case, 24 Grat., 644, decided January, 1874, it was held : All offences for which the penalty is confinement in the penitentiary are felonies, and the indictment for such offence must describe it as having been done "feloniously." In Benton's Case, 89 Va., 570, decided January 26, 1893, it was held : A felony is such an offence as may be (not must be) punished by death or confinement in the penitentiary. SECTION 3885. In Williamson's Case, 2 Va. Cases, 211, decided June, 1820, by the General Court, it was held : An accessory may be tried after conviction, and before attainder of the principal under this statute. It is not necessary that the indictment against the ac- cessory should aver the conviction of the principal, for they may be jointly indicted. A verdict which finds a person indicted as being accessory to murder to be guilty thereof, but does not determine whether he is guilty as accessory to the murder in the first or second de- gree, is erroneous, and ought to be set aside and a venire facias de novo granted. CITATIONS TO THE CODE OF VIRGINIA. 1017 In Thorntons Case, 24 Grat., 657, decided January, 1874, it was held : An indictment for murder against T. and B. contains two counts : the second charges T. as principal and B. as acces- sory, before the fact; and, on the motion of T., the second count is struck out. At a subsequent term, on the trial of T., the clerk reads both counts, and charges the jury on both ; and then the prisoner excepts. The court then directs the clerk to read the first count, which is done, and the clerk charges the jury upon it; and then the prisoner excepts to the second reading and charge. The second reading and charge was proper, and cures the error of the first. In Wren's Case, 25 Grat., 989, decided January 22, 1875. W., a police officer, was indicted and tried as accessory after the fact to a felony committed by D. The jury put to the court the question, "Are we considering the question against W., or W., a detective officer? If a detective official, does the fact that he allowed D., after knowing D.'s offence, to go away un- arrested, make him accessory after the fact ? " Held : The court should have responded directly to the question in the negative. In Wren's Case, 26 Grat., 952, decided April 22, 1875, it was held : An accessory after the fact to a felony is a person who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. To constitute an acces- sory after the fact, three things are requisite : 1. The felony must be completed. 2. He must know that the felon is guilty. 3. He must receive, relieve, comfort, or assist him. It is necessary that the accessory have notice, express or im- plied, at the time he assists or comforts the felon, that he has committed a felony; and the mere fact that one receives a felon in the same county in which he has been attainted, is not suffi- cient to raise the presumption of knowledge ; and the question of knowledge is a question for the jury. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man accessory after the fact : as that he concealed him in the house, or shut the doors against his pursuers until he should have an opportunity to escape, or took money from him to allow him to escape, or supplied him with money, a horse, or other necessaries, in order to enable him to escape ; or that the principal was in prison, and the jailer was bribed to let him escape, or conveyed to him instruments to enable him to break prison and escape. Merely suffering the principal to escape will not make the party an accessory after the fact, for it amounts, at most, to a mere omission ; or if he agree for money not to prosecute the felon, or if, knowing of a felony, he fails to make it known to 1018 CITATIONS TO THE CODE OF VIRGINIA. the proper authorities, none of these acts are sufficient to make the party an accessory after the fact. If the thing done amounts to no more than compounding a felony, or the misprision of it, the doer of it will not be an accessory. The true test whether one is an accessory after the fact is, to consider whether what he did was done by way of personal help to his principal, with the view of enabling his principal to elude punishment, the kinds of help rendered appearing unimportant. See MaybusKs Case, 29 Grat., 857, cited ante, under Section 3741. In Mitchell's Case, 33 Grat., 868. The statute was followed. In Hawley's Case, 75 Va., 847, decided November, 1880. An indictment for felony is against four persons, M., P., C., and G. The first three counts are for the murder of H. The fourth count is against M., one of them, for murder, and against the other three for knowingly and wilfully aiding, abetting, and counselling the said M. to commit the felony aforesaid. And the count in the conclusion charges that the said M., P., C., and G., him, the said H., in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, etc. Held : The same count may contain a charge of murder against one, and a charge of being an accessory against others. If the conclusion of the count charging them as guilty of mur- der is not correct, it is not essential to the indictment, and may be struck out as surplusage. In Hatchetfs Case, 75 Va., 925, decided January, 1882, it was held : An accessory to a felony cannot be prosecuted for a sub- stantive offence, but only as an accessory to the crime perpe- trated by the principal felon. And in order to this conviction, although it is not necessary to show that the principal felon has been convicted, it is necessary to show that the substantive of- fence, to which he is charged as having been accessory, has been committed bv the principal felon. In Oliver's Case, 77 Va., 590, decided July 19, 1883, it was held : Though conspiracy has been proved, statements of a con- spirator, made after the object of the conspiracy is accomplished, are inadmissible to criminate his co-conspirator. In Kemp's Case, 80 Va., 443, decided April 16, 1885, it was held : It is well-settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him to show his consent to the felonious purpose, and contributing to its exe- cution. SECTION 3886. In Uhl's Case, 6 Grat., 706, decided December, 1849, by the General Court, it was held : Where a wife acts in the further- ance of a combination to commit a felony, in the presence of her CITATIONS TO THE CODE or VIRGINIA. 1019 husband, she will be presumed to have acted under his coercion. But if the circumstances show that she was not acting under such coercion, but of her own free will, then she is accountable for her acts. SECTION 3887. In Kemp's Case, 18 Grat., 969, decided January, 1868, it was held : Several prisoners having been tried together for the same felony, and found guilty, the court may grant a new trial to one of them and render a judgment against the others. SECTION 3888. In Clark's Case, 6 Grat., 675, decided December, 1849, by the General Court, it was held : An indictment for an attempt to commit an offence ought to allege some act done by the defend- ant, of such a nature as to constitute an attempt to commit the offence mentioned in the indictment. In Vhl's Case, 6 Grat., 706, decided December, 1849, by the General Court : On an indictment against several for an attempt to burn a barn. Held: That an attempt, according to the true intent and meaning of the statute, can only be made by an actual, ineffectual deed, done in pursuance of, and in further- ance of, the design to commit the offence. But if the parties combined to commit the offence, and they all assented to it, and a part of them only went to do the act, those who were absent, knowing with what intent the others went to the place, and assenting to the same, are principals in the offence. The overt act done in the attempt to commit the offence need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated. In Cunningham's Case, 88 Va., 37, decided June 18, 1891, it was held : An indictment for attempt to commit rape, some act towards its commission must be alleged, but to aver that accused "violently and feloniously made an assault" in the attempt is sufficient. SECTION 3889. In Chichester's Case, 1 Va. Cases, 312, decided by the General Court. An indictment for assault was brought within a year, but was held insufficient ; after a year had expired another in- dictment was found. Held : Barred by the statute. In Birchetfs Case, 2 Va. Cases, 51, decided June, 1 was held: An information in the nature of a writ of quo war- ranto, though in form a criminal proceeding, yet is in substance a civil proceeding, for the trial of a civil right, and therefore the act which limits the prosecution of informations on any penal law to one year does not apply to such informations. In Auditor vs. Graham, 1 Call, 475 (2d edition, 411), decided 1020 CITATIONS TO THE CODE OF VIRGINIA. October 22, 1798, it was held : Motions are included in the terms "suits" and "actions" in the act of 1789 for limitation of actions upon penal statutes. In Earharfs Case, 9 Leigh, 671, decided by the General Court, December, 1839, it was held : After a verdict of convic- tion for misdemeanor, an appellate court will presume that the offence was proved to have been within the period of limita- tions, where the record does not show the contrary. In Christian's Case, 1 Grat., 631, decided June, 1850, by the General Court, it was held : A presentment for a misdemeanor is the commencement of the prosecution, and unless the prose- cution is then barred by the statute of limitations it will not be barred by the failure to find an information or indictment upon the presentment before the time of limitation runs out. Upon a rule the defendant again appears and moves to quash the presentment on the ground : Because the supposed offence must be committed more than a year before granting the rule to file the information, and so was barred by the statute of limita- tions. Held : That under the facts and circumstances of the case the act of limitations does not protect the defendant against further prosecution by information. SECTION 3892. In Lintoris Case, 2 Va. Cases, 205, decided by the General Court, June, 1820, it was held : If a person be stabbed in this State, and dies of his wounds in another, the prisoner cannot be tried for murder in any county of the Commonwealth, but he may be examined, indicted, and tried for the felonious stab- bing in the county where the blow was inflicted. SECTION 3893. In Gibson's Case, 2 Ya. Cases, 70, decided by the General Court, June, 1817, it was held : If a verdict be argued on and written out in the jury room and then brought into court, read by the clerk, and corrected in an immaterial point, and then re- ceive the assent of eleven jurors (the twelfth being sick, having meantime withdrawn to the jury room without the knowledge of the court or the other jurors) it is a nullity. A verdict in such case having been set aside as insufficient, a venire facias de novo may be awarded and a new trial had, either on the same indictment or another. In Quann's Case, 2 Va. Cases, 89, decided by the General Court, November, 1817. An acquittal of forging an order, and of uttering as true a forged order, is no bar to a prosecution for the misdemeanor of fraudulently obtaining goods by means of a false privy token and counterfeit letter, the said privy token being the same order of the forgery and uttering of which he had been acquitted. CITATIONS TO THE CODE OF VIRGINIA. 1021 In Vaughan's Case, 2 Va. Cases, 273, decided by the General Court, November, 1821, it was held : If a person be indicted for shooting S. W. and acquitted thereof, and then indicted for shooting J. W., her plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment, for the jury who tried the first indictment might have acquitted the prisoner on several grounds, which would not affect the second trial, as that the shot did not strike and wound S. W. or that she did not shoot S. W. with intent to maim, disfigure, dis- able or kill the said S. W. If the prisoner to an indictment for shooting J. W. plead that she had been indicted and acquitted of the shooting of S. W., and that the shooting of which she is indicted is the identical shooting of which she had before been acquitted and no other, and the verdict find "that she hath not before been acquitted of the same offence," this finding is sufficiently responsive to the issue on that plea and, therefore, good. In Mortimer's Case, 2 Va. Cases, 325, decided November, 1822, it was held : If a prisoner be acquitted of burning the barn of Josiah Thompson, he cannot plead this in bar of an indict- ment for burning the barn of Josias Thompson. In Lindsay's Case, 2 Va. Cases, 345, decided by the General Court, June, 1823, it was held : A nolle prosequi entered by the attorney for the Commonwealth and a consequent discharge from custody, is not an acquittal or discharge from further prose- cution, and, therefore, does not support the plea of autrefois acquit. In Jackson's Case, 2 Va. Cases, 501, decided June, 1826, by the General Court, it was held : If a person charged with an assault and battery be recognized to appear at the next superior court to answer an indictment to be then and there preferred against him for the said offence, in the meantime fraudulently procure himself to be indicted for the same offence in the county court, and confess his guilt, and a small amercement be there- upon assessed on him, such fraudulent prosecution and convic- tion present no bar to the indictment preferred against him in the superior court. The plea of autrefois convict in such a case being replied to specially, the replication which sets forth such fraudulent prosecution and conviction, being well drawn, is a sufficient answer to the defendant's plea, and should be adjudged good on demurrer. The reference to 81 Va., 290, is an error. SECTION 3894. In WUliamJs Case, 2 Grat., 568, decided December, 1845, by the General Court, it was held : If the court improperly c charge the jury without the consent of the prisoner, he is enti- tled to be discharged from the prosecution. 1022 CITATIONS TO THE CODE OF VIRGINIA. In Smith's Case, 7 Grat., 593, decided June, 1850, by the General Court, it was held: A conviction for advising, etc., one slave to abscond is not a bar to a prosecution for advising, etc., another slave to abscond, though the advising, etc., was to both at one time, and by the same words and acts. In Adock's Case, 8 Grat., 661, decided December, 1851, by the General Court. A prisoner is remanded by the examining court to be tried for embezzling the goods of W.; he may there- upon be indicted for embezzling the goods of A., the embezzle- ment being of the same goods for which he was tried by the examining court. A prisoner is indicted for embezzling the goods of W., and at the fifth term after he was examined for the offence he is tried and convicted, but the verdict is set aside for a variance be- tween the allegation and the proof as to the ownership of the goods, and the case is continued. At the next term of the court the attorney for the Commonwealth enters a nolle prosequi upon the indictment, and the prisoner is indicted again for the same offence, the indictment in the first count being the same as in the former indictment, and another count charging the goods embezzled to be the goods of A. Upon his arraignment he moves the court to discharge him from the offence, on the ground that three regular terms of the court had been held since he was examined and remanded for trial, without his be- ing indicted. The attorney for the Commonwealth opposes the motion, and offers the record of the proceedings of the circuit court upon the first indictment, to show that he had been in- dicted, tried, and convicted; which was objected to by the pri- soner. Held : The record is competent evidence, and the only competent evidence upon the question. The second indictment being for the same act of embezzling as the first, and the. pri- soner having been indicted, tried, and convicted in time, and the verdict having been set aside for the variance, the second indictment was proper in time, and the prisoner is not entitled to be discharged. In Jones's Case, 20 Grat., 848, decided April, 1871, it was held : On trial for felony, for which the shortest term of impri- sonment is five years, the jury find the prisoner guilty and fix the term of his imprisonment in the penitentiary for three years, and the judgment is according to the verdict. Upon a writ of error to the judgment on the application of the prisoner, the judgment will be reversed, but the prisoner will not be dis- charged, but will be remanded for another trial. In Day's Case, 23 Grat., 915, decided January, 1873, it was held: A plea of autrefois acquit, if it is good in substance, though informal, will be sustained, though demurred to. In the first place the defendant is charged as the " keeper of a house CITATIONS TO THE CODE OP VIRGINIA. 1023 of entertainment," in the second, as "keeper of an ordinary." The offence charged in both being the same, not only in kind, but in fact, the acquittal in the first case is a bar to the second. In JSurresss Case, 27 Grat., 934, decided January 13, 1876, it was held : To a plea of autrefois acquit, upon an indictment for forgery, the attorney for the Commonwealth craves oyer of the former record and demurs to the plea. The record shows that the indictment was for forging an order for forty -seven dollars .and twenty-five cents, and that the order was for forty-seven dollars and twenty-three cents. This was a variance which entitled the accused to an acquit- tal on that indictment, and therefore the acquittal on that in- dictment does not forbid the prosecution of the accused on another indictment for the same forgery, setting out the order correctly. A person acquitted by the jury on the facts and merits on a former trial, may plead such acquittal in bar to a second prose- cution for the same offence, notwithstanding any defect in the form or substance of the indictment or accusation on which he was acquitted. But it must appear from the record of the first case, or be averred in the plea and proved, that his acquittal was on the merits. The act does not make a variance between the indictment and the forged paper immaterial. The accused must be ac- quitted on that ground if no other, and, if acquitted, the presump- tion, in the absence of evidence to the contrary, is that he was acquitted on that ground. In Page's Case, 27 Grat., 954, decided February 3, 1876, it was held : A prisoner indicted for felony files a plea of autrefois acquit, and makes the record of his former trial a part of his plea, and he avers that the offence for which he had been be- fore tried is the same offence for which he is now on trial, and necessary evidence to convict him in the present indictment, if introduced, would have convicted him on the first trial. The attorney for the Commonwealth replies that there is no record of the trial of the prisoner for the same identical felony and offence charged in the indictment on which the prisoner is then arraigned. The replication denies one of the essential aver- ments of the plea, viz.: that the offence was the same as that for which the prisoner had been before tried, and is, therefore, a good replication to the plea. In such a case it would not have been proper to traverse the allegation that the evidence necessary to convict him, etc. The two indictments being for similar offences, and in the same words, except as to time, which is immaterial, of course the same facts which sustain the one would, standing by themselves, 1024 CITATIONS TO THE CODE OF VIRGINIA. sustain the other; but when it is averred and shown that the two offences, though similar, are not in fact the same, but different of- fences, all foundation for the plea is taken away. Upon the trial of the issue on the plea of autrefois acquit, an instruction to the jury that if they believe, etc., that the house named in the indict- ment, for the burning of which the prisoner was arraigned and tried at a previous term of the court, is not the same house, nor the same burning charged in the indictment upon which he now stands arraigned, then they must find against the prisoner that the issue joined is correct; and it makes no difference that the offences charged in the two indictments are described as the burning of the dwelling-house of R., if the jury believe that in reality distinct houses and distinct burnings are referred to in the two indictments. On the trial of the issue on the plea of autrefois acquit, R,., whose dwelling-house was in both indictments alleged to have been burned, and who was the principal witness for the Com- monwealth as to the burnings on both trials, may be asked and may state whether or not the verdict of the jury had relation to the house charged to have been burned in the indictment on which the prisoner was then arraigned. The inquiry is as to a "fact" not an "opinion." The court may direct jurors to be summoned from another county or corporation for the trial of a prisoner upon the is- sue on the plea of autrefois acquit, as well as on the general issue. In Stuarts Case, 28 Grat., 950, decided July, 1877, it was held : The mere pendency of one indictment is no bar to another, even for the same offence; the accused cannot be tried on both, but the Commonwealth may elect on which it will prose- cute. The discharge of a jury after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity because it was not duly perfected, and thereupon set aside as in- sufficient, is no bar to a prosecution under the same or a new indictment. The reference to 32 Grat., 872, is to a case in which the statute is not construed, but only quoted as a final disposition of ques- tions raised. SECTION 3895. In Brovm's Case, 9 Leigh, 633, decided by the General Court, December, 1838, it was held : Where the confession of a pris- oner is given in evidence, the whole must go to the jury ; but the whole is not necessarily to be taken as true ; on the contrary, if from opposing evidence or the confession itself, facts appear which are sufficient to satisfy a rational mind that a part is not true, it ought to be disregarded. CITATIONS TO THE CODE or VIRGINIA. 1025 In Smith's Case, 10 Grat., 734, decided July, 1853, it held: On a trial for felony, a confession of the prisoner mav be given in evidence, unless it appears that the confession was ob- tained from the party by some inducement of a worldly or a temporal character in the nature of a threat, or promise of bene- fit, held out to him in respect of his escape from the conse- quences of the offence, or the mitigation of the punishment, by a person in authority, or with the apparent sanction of such person. A person to whom a free negro is bound as an apprentice, though a justice of the peace, if not acting as such, and no way effected by the offence, is not a person in authority in the sense of the rule which excludes confessions made to a person in au- thority. In Skiffle? s Case, 14 Grat., 652, decided March 9, 1858, it was held : A young man living in the jailer's family, and who occa- sionally, in the absence of the jailer, attended on the prisoners and kept the keys of the jail, is not a person in authority whose threat or promise will exclude the confessions of a prisoner in the jail awaiting his trial. A prisoner is told, in answer to his assertion of his innocence, that the person to whom he is speak- ing does not believe one word he says, but that such person be- lieves he knows all about it, and his mother too. Prisoner de- clares that his mother knew nothing about it. He is then told he need not say anything more about it, for that he had to go to the penitentiary anyhow. He says he knows that, but that his mother is innocent of it ; and he requests the person to whom he is talking to go and tell certain persons he names to come to him. The person then says, What do you mean by what you say ? In the name of God and all that is holy, have you let this charge rest on your mother, and she innocent of it ? Pris- oner again repeats she was innocent, and requests that the per- sons he had named may be sent for, which is done; and he makes confessions to them. Held : There was no inducement held out to the prisoner which will exclude his confession. See Vaughans Case, 17 Grat., 576, cited ante, Section 3704. In Thompson's Case, 20 Grat., 724, decided November, 1870, it was held : That a confession of a prisoner tried for murder is voluntary, is a condition precedent of its admissibility, and the court must be satisfied that the confession was voluntary before it can be permitted to go to the jury; the burden of proof that it was voluntary is on the Commonwealth. Though a confession may be inadmissible because not volun- tary, it may become admissible by being subsequently repeated by the accused when his mind is perfectly free from the undue influence which induced the original confession, jyun-t J the undue influence will be considered as continuing, though 65 1026 CITATIONS TO THE CODE or VIRGINIA. the presumption will be repelled by evidence, which, however, must be strong and clear. In Venable's Case, 24 Grat., 639, decided November, 1873, it was held : Prisoner charged with murder makes a confession to a police officer on the morning of the day he is examined by the police-justice. Before that examination he has employed counsel, and is warned both by his counsel and the police-jus- tice against making any statement or confession. Being com- mitted by the justice, on getting to the jail he appears to be very much frightened and agitated; and upon getting there he makes a confession, and again, on the same day, confesses the deed to a woman of his acquaintance who is in the jail. Though the confession to the police-officer was properly ex- cluded, the confession made after the warnings given him is proper evidence. In Little's Case, 25 Grat., 921, decided September, 1874, it was held: On the trial of a prisoner for murder, a statement made by him to a person a few minntes after the homicide was committed, and near to the place, and in the presence and hearing of eye-witnesses of the homicide, who were not intro- duced as witnesses by the Commonwealth, should be admitted as evidence at the instance of the prisoner, as part of the res gestce. At least the statement should have been heard by the court below, so that the court might determine whether all or any part of it was admissible evidence, and that the appellate court might reverse the judgment in that respect. In Page's Case, 27 Grat., 954, decided February 3, 1876, it was held : The admissions and confessions of a prisoner may be given in evidence against him. See William* 's Case, 27 Grat., 997, cited ante, Section 3707. In Parrisfis Case, 81 Va., 1, decided November 28, 1884, it was held: If the prosecution uses prisoner's statements, the whole must be taken together, and one part cannot be taken and the other left out. In Sprouse's Case, 81 Va., 374, decided January 21, 1886, it was held : Accused will not be permitted to make evidence in his own favor by proving his self-servient declarations. In Brown's Case, 89 Va., 379, decided November 10, 1892. Where all the evidence is purely circumstantial, and the circum- stances themselves are not satisfactorily proved and are insuffi- cient to establish clearly that the fire was of incendiary origin, and, if so, then to prove the guilt of tho accused, though at third trial one detective testified to admissions made to him about the time of the fire which he had never mentioned before at the other trials, though he was a witness at both, and another de- tective testified as to admissions made to him in jail since the second trial, when he was kept in the accused's cell for several CITATIONS TO THE CODE OF VIRGINIA. 1027 days and nights, ostensibly as a murderer, and acknowledging his guilt as to the accused. Held : The testimony of the detec- tive being replete with suspicion, the verdict should be set aside. SECTION 3897. In Price's Case, 77 Va., 393, decided April 12, 1883, it was held : Where in such case accused does not testify, it is im- proper for prosecuting attorney to comment on that fact. But if exception is not taken thereto till after verdict, it is too late, unless, under all the circumstances, the court can see that a proper verdict has been rendered and the accused not injured by the comment. In SuttorCs Case, 85 Va., 128, decided July 19, 1888, it was held : Kemark of prosecuting attorney to the jury that prisoner had not accounted for his whereabouts at time of homicide nor his flight from the State without allusion to his failure to testify, comes not within this section. In Sawyer's Case, 88 Va., 356, decided September 17, 1891, it was held : A remark of prosecuting attorney that " though he had no right to swear any man accused of crime, he had the right to prove his statement/' is no violation of this section. SECTION 3898. In Barbvur's Case, 80 Va., 287, decided March 12, 1885, it was held (p. 290) : Conviction of petit larceny does not, in this State, disqualify one as a witness. A witness cannot be impeached by proof of particular acts and offences committed by him. In Bentoris Case, 89 Va. 570, decided January 26, 1893. A person was convicted of breaking and entering a house in the night-time with intent to steal. At the trial the jury assessed his punishment at imprisonment in the county jail and a fine. Held : He was guilty of a felony, and not having been pardoned or punished therefor, was an incompetent witness. SECTION 3899. See Eendrick's Case, 78 Va., 490, cited ante, Section 3692. SECTION 3900. In Campbell's Case, 2 Va. Cases, 314, decided by the General Court, June, 1822, it was held : When two persons are jointly indicted of a felony and severally tried, the co-defendant in the same indictment is not a competent witness for the prisoner un- less that co-defendant has been acquitted. In Byrtfs Case, 2 Va. Cases, 490, decided by the General Court, June, 1826, it was held : An accomplice is unquestion- ably a competent witness against a prisoner charged with crime. 1028 CITATIONS TO THE CODE OF VIRGINIA. The admissibility of an accomplice does not depend on the ancient and exploded doctrine of approvement. In Lazier' s Case, 10 Grat., 708, decided July, 1853, it was held : Two persons being jointly indicted for the same offence, and being tried separately, one is not an incompetent witness for the other by the reason of the joint indictment. SECTION 3901. In Oliver's Case, 77 Va., 590, decided July 19, 1883, it was held : Though conspiracy has been proved, statements of a con- spirator made after the object of the conspiracy is accomplished are admissible to criminate his co-conspirators. In Kirby's Case, 77 Va., 681, decided September 13, 1883, it was held: The inadmissibility of declarations of the injured party as part of the res gestoe depends on whether or not they were made recently after the injury, before sufficient time had elapsed for the fabrication of a story. Code 1873, Chapter 195, Section 22, provided that "in a criminal prosecution, other than for injury on an action on a penal statute, evidence shall not be given against the accused of any statement made by him as witness upon a legal exami- nation. Therefore evidence that a statement of witnesses for the accused conflict with the testimony of the accused as de- livered on his examination as a witness at a former trial, is in- admissible. SECTION 3904. The reference to 1 Va. Cases, 79 is an error. In Crump's Case, 1 Va. Cases, 172, decided by the General Court, it was held : In cases of misdemeanor, judgment for fine only may be rendered. This maybe done in the absence of the prisoner and no judg- ment of imprisonment can be so rendered save the statute under which indictment found specially authorize such proceeding. In Ray's Case, 1 Va. Cases, 262, decided by the General Court, it was held : A fine ought to be assessed against each prisoner separately, and when jointly assessed it is greund for a new trial. In Jones's Case, 1 Call, 555 (2d edition, 482), decided April 22, 1799, it was held : In an indictment for an assault against several, a joint award of one fine against all is erroneous, it should have been several against each defendant. In House's Case, 8 Leigh, 755, decided by the General Court, December, 1837. On such indictment the jury find defendant guilty, ascertain the term of his imprisonment, and assess the fine, and the court renders judgment according to the verdict. Held : There is no error in such proceeding. In Pifer's Case, 14 Grat., 710, decided August 30, 1858, it CITATIONS TO THE CODE OF VIRGINIA. 1029 was held : On a prosecution for a misdemeanor there is a ver- dict against the defendant for a fine, and the court enters up a judgment thereon for the fine and costs, and directs a capias ad audiendum against the defendant, and a subsequent term sen- tences him to six months imprisonment in the county jail. The judgment for the fine and costs was final, and no further judg- ment could be rendered in the case. The judgment for the im- prisonment was therefore error. In Read's Case, 24 Grat., 618, decided November, 1873, it was held : The accused having been tried by a jury in the county court and found guilty and sentenced, the errors in the proceed- ings of the justice on his second trial cannot affect the judg- ment of the county court. SECTION 3905. In Rands Case, 9 Grat., 738, decided November 17, 1852, it was held : The act applies to the case of a prisoner on trial who had been convicted and sentenced previous to the passage of this act. The act as applicable to such a case is not ex post facto and unconstitutional. The act does not apply to the case of a conviction for an of- fence committed after commission of that for which the prisoner is on trial. The indictment must set out the time and place of the first conviction, and must show that the previous conviction was for an offence committed before the commission of that for which the prisoner is on trial. Evidence having been improperly admitted to prove a former conviction, the whole judgment must he reversed, and a new trial awarded/ See Rider's Case, 16 Grat., 499, cited ante, Section 3879. In White's Case, 79 Va., 611, decided December 4, 1884, it was held : Motion for continuance rests in the sound discretion of the court. But where one is convicted and sentenced on an indict- ment " for the first offence," and judgment is suspended by writ of eiTor and supersedeas awarded by this court, and, pending such suspension, an indictment against the same one, under the same act, "for the second offence," is called for trial, and the defendant moves the court to continue the case until this court decides the case before it as aforesaid, the court below should sustain the motion and grant the continuance. SECTION 3907. See the references to Section 3905, supra. SECTION 3908. The reference to 1 Va. Cases, 157, is an error. 1030 CITATIONS TO THE CODE OF VIKGINIA. TITLE LIII. CHAPTER CXCI. SECTION 3913. In Spengler vs. Davy, 15 Grat., 381, decided September 5, 1859, it was held, page 388 : Probable cause is said to be " a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offence with which he is charged." In the case of Scott da Boydvs. Shelor, 28 Grat., 891, decided July, 1877, it was held: Probable cause in a criminal prosecu- tion is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts with- in the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. SECTION 3914. In the case oi Wells vs. Jackson, 3 Munf., 458, decided March 26, 1814, it was held : A warrant to arrest a person of whom surety for the peace is demanded, being executed neither by a sworn officer nor by the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magis- trate and substituted that of the person selected by himself, is thereby rendered altogether illegal and void as a justification, but may be given in mitigation of damages. A warrant directing the "associates" of persons named to be arrested, without mentioning the names of such associates, is illegal and void as to them. SECTION 3915. In Worthairis Case, 5 Band., 669 (quoted as 675), decided by the General Court, November, 1827, it was held: A volunteer informer ought to be made a prosecutor, and liable for costs in case of failure, but one who is compelled to be an informer can- not be considered a prosecutor. InWellings's Case, 6 Grat., 670, decided December, 1849, by the General Court, it was held: The county court has authority to require a party to enter into a recognizance to keep the peace, at least where the proceeding was commenced before the act of 1848. SECTION 3916. In Read's Case, 24 Grat., 618, decided November, 1873, it was held : When a person is tried by a justice of the peace for a CITATIONS TO THE CODE OF VIRGINIA. 1031 petit larceny and convicted, he has an absolute right of appeal to the county court, and in that court the cause is to be heard de novo upon the evidence, and the accused is entitled to be tried by a jury as in like cases originating in that court. In such a case it is error in the county court to reverse the judgment of the justice, and remand the case to the justice to be tried, and any subsequent trial of the case by the justice is null and void. In such case the justice again tries and convicts the accused, and he again appeals to the county court. The proceed- ings before the justice on the second trial being null, the ac- cused is in the county court upon the first appeal, and is to be tried by a jury as if the case had originated in that court. The accused having been tried by a jury in the county court, and found guilty and sentenced, the errors in the proceedings of the justice on his second trial cannot affect the judgment of the county court. SECTION 3927. See Mesruers's Case, 26 Grat., 976 and 985, cited ante, Section 3778. CHAPTER CXCII. SECTION 3942. In Jackson s Case, 23 Grat., 919, decided January, 1873. A jury of inquest find that the deceased was killed by J., and the justice who acted as coroner issued process, upon which J. is committed to prison. The grand jury in the county court find an indictment against J. for murder, and he is brought into court and arraigned, and on his arraignment elects to be tried in the circuit court. The testimony of witnesses examined before a jury of inquest, and committed to writing, cannot be used to impeach the evi- dence given on the trial of the prisoner, unless their attention has been called to it, and to any discrepancies between that and their evidence. SECTION 3945. In Wormley's Case, 10 Grat., 658, decided April, 1853. Quare : If a coroner has authority to commit to a jail for trial a person charged by the inquest with felony? If he has not such authority, it is too late to object to it after the prisoner has been regularly examined and sent on for trial, and has been indicted for the felony in the circuit court. A justice of the peace acting as coroner, and having as coro- ner committed a person to jail for felony, may certify the fact of such committal as a justice of the peace. On trial for murder, to contradict a witness for the pris< it is competent to introduce in evidence a deposition given by 1032 CITATIONS TO THE CODE OF VIBGINIA. him before the inquest taken down at the time by the coroner, and read to the witness and signed by him. See Jackson's Case, 23 Grat., cited ante, Section 3942. SECTION 3948. For the reference to 10 Grat., 658, see ante, Section 3945. CHAPTEE CXCIII. SECTION 3951. In the case of Faulkner vs. Alderson, 1 Va. (Gilmer), 221, de- cided March 30, 1821, it was held : The landlord of a tenant at will, may peaceably enter the premises, but an illegal search for stolen goods makes him a trespasser ab initio. CHAPTEE CXCIY. SECTION 3956. See Spengler vs. Davy, 15 Grat., 381, and Seott & Boyd vs. Shelor, 28 Grat., 891 and 905, cited ante, Section 3913. SECTION 3957. In the case of Jones vs. Timberlake, 6 Eand., 678, decided by the General Court, November, 1828, it was held : Although an escape-warrant ought regularly to show on its face that the per- son who issues it is a justice of the peace, yet on a habeas corpus sued out by the person arrested under it, if it is proved that he is a justice, the prisoner ought not to be discharged. SECTION 3960. In Rutherford" s Case, 5 Eand., 646, decided by the General Court, November, 1826, it was held: When a prisoner who has been .remanded for trial by the examining court to the superior court, on a charge of felony, and against whom a bill of indict- ment has been found by the grand jury, applies to the superior court to be let to bail on the ground that there is only a slight suspicion of guilt against him, that judgment and the finding of the bill are not conclusive evidence against the application, but the court may examine other evidence ; but it is a question for the exercise of the sound discretion of the court, and if the court is satisfied that there is material evidence for the Commonwealth that is not before the court, was not before the examining court, or spread on the record, the court ought not to sustain the motion. In the case of John Tyler (Governor, etc.] vs. Greenlaw, 5 Hand., 711, decided by the General Court, November, 1827, it was held: A justice of the peace, before whom is brought a prisoner charged with a felony, has power to bail him, where CITATIONS TO THE CODE OF VIRGINIA. 1033 only a slight suspicion of guilt falls on the party, and a recogni- zance taken before such justice, conditioned for the appearance of such prisoner before the examining court is good, and a re- covery may be had thereon, if the party makes default. Although the condition of a cognizance does not specify the court-house of the county as the place the prisoner is to appear, and the declaration on the recognizance avers that such was the condition, yet on nul tiel record pleaded, judgment ought to be rendered for the plaintiff, because the statute points out that as the only place where the examination shall be had. The case referred to as 3 Leigh, 561, is not in point. In Semmes's Case, 11 Leigh, 665, decided June, 1841, by the General Court. A prisoner in close jail, upon an indictment for murder, applies to the circuit superior court in term time to be admitted to bail, and that court refuses to bail him, and then he presents a petition to the General Court praying to be let to bail. Held : The General Court has original concurrent juris- diction with the circuit superior court, and with the judge thereof in vacation, to admit the prisoner to bail for good cause to it shown. It is good cause for admitting to bail a prisoner confined in rat., 556, decided December, 1844, by the General Court. In a prosecution for misdemeanor, at the 1044 CITATIONS TO THE CODE or VIKGINIA. instance of a voluntary prosecutor, the defendant tiles a plea in abatement, that one of the grand jurors, who found the indict- ment, was not a freeholder ; and the issue made up on that plea is found for the defendant, and the indictment quashed. Held : The court should give judgment for the costs against the prose- cutor. SECTION 3993. See Thomases Case, 2 Rob., 795, cited ante, Section 3741. See RoacKs Case, 1 Grat., 561, cited ante, Section 3741. See RoacKs Case, 2 Grat., 579, cited ante, Section 3741. In Pickering's Case, 8 Grat., 628, decided December, 1851, by the General Court, it was held: An indictment for perjury must show that the evidence which the defendant gave was material. And therefore, if the evidence which the defendant gave before the grand jury is not shown clearly on the face of the indict- ment to relate to an offence committed within the county, the indictment is defective. In Rhodes 's Case, 78 Va., 692, decided March 13, 1884, it was held: As a general rule, time of commission of offence, as laid in indictment, is not material, and confines not proof to time laid ; but where time laid is provable by record, and in indictment for perjury, time must be truly and precisely laid, and failure so to state renders indictment demurrable. Where an indictment is for swearing contradictorily on two occasions, prosecutor must elect which oath he holds to be perjured, and that oath he must afiirmatively prove to be false. If defendant is shown to have sworn contradictory oaths, without more, non constat, which is false. The matter of the false oath must be material. If it be not material, the fact that it is false will not sustain the conviction. R. swore that M. had stolen bacon, and offered to sell it to him November 15, 1875. Later, R. swore that M. had stolen bacon and offered to sell it to him just before Christmas, December, 1875. On indictment against R. for perjury, it was not proved that M. did not steal bacon, but it was proved that R. made contra- dictory statements as to the date. R. was convicted. On error. Held: The stealing of the bacon was the material matter of the change. The date of the ofler to sell was not material to the offence. The oath as to the date was not material as to the issue, and was not likely to induce the jury to give the readier credit to the substantial part of the evidence. R. was not guilty of perjury. SECTION 3994. In DuWs Case, 25 Grat., 965, decided January, 1875, it was held: An indictment for the larceny of divers notes of the CITATIONS TO THE CODE OF VIRGINIA. 1045 "national currency of the United States" is equivalent to the phrase in the statute of "United States currency," and the in- dictment is sufficient. There are two kinds of United States currency, both of which may be properly called national currency of the United States. Of these, one consists of treasury notes, and the other of national bank-notes. On an indictment for larceny, the clerk charges the jury in the usual form. If on trial it appears that the money charged to have been stolen was obtained under false pretences, another charge by the clerk is not necessary or proper. See Fay's Case, 28 Grat., 912, cited ante, Section 3722. SECTION 3996. See Jones's Case, 17 Grat., 563, and Eughes's Case, 17 Grat., 565, cited ante, Section 3707. SECTION 3997. See Ervin cfe Lewis's Case, 2 Va. Cases, 337, cited ante, Sec- tion 3737. SECTION 3998. In Lazier } s Case, 10 Grat., 708, decided July, 1853, it was held, p. 715 : An indictment for murder charges the wound tc have been inflicted on the 9th of December, of which wound she. on the said 14th of December, died. The word "said" is sur- plusage, and its insertion is not a fatal defect. In an in- dictment for murder it is not necessary to set out the length, breadth, or depth of the wound. In Sledd's Case, 19 Grat., 813, decided May 26, 1870, it was held, p. 818 : Since the statute no mode of stating the time of an offence in an indictment or presentment can vitiate it. SECTION 3999. In McCauVs Case, 1 Va. Cases, 271 and 301, decided by the General Court, it was held : Where the fact for which the examin- ing court remanded the prisoner cannot be ascertained save by evidence de hors the record, the indictment should be quashed. For this purpose the warrant of commitment is no part of the record. In Vance's Case, 2 Va. Cases, 162, decided June, 1819, by the General Court, it was held : An indictment for murder need not conclude contra formam statuti, although a punishment va- riant from the common law punishment is prescribed by statute for the second degree of the offence. In Jackson's Case, 2 Va. Cases, 501, decided June, 1826, by the General Court, it was held: In criminal cases defects of form in pleading may be taken -ad vantage of by general de- murrer. 1046 CITATIONS TO THE CODE OF VIRGINIA. In Huffman 's Case, 6 Rand., 685, decided by the General Court, November, 1828, it was held : In a bill of indictment with three counts, if in the third count it is omitted to be stated that the grand jury " on their oaths " present (the first two counts being regular in that respect), the objection is obviated by the fact that the record states that the grand jury were sworn in open court. See Kerby's Case, 1 Leigh, 747, cited ante, Section 3977. See Tefft's Case, 8 Leigh, 721, cited ante, Section 3984. In Kirk's Case, 9 Leigh, 627, decided by the General Court, December, 1838, it was held: The defect of some of the counts in an indictment does not affect the validity of the rest, and if any count is good, judgment may be given against the accused. In Peas's Case, 2 Grat., 629, decided June, 1834, by the Gen- eral Court, pp. 636-'37 : Indictment for feloniously and fraudu- lently taking and removing a slave from one county to another, with intent to defraud the owner and deprive him of his pro- perty. Held : Fatally defective after verdict for want of aver- ment, that the slave was so taken and removed without the consent of the owner. In Carney's Case, 4 Grat., 546, decided December, 1847, by the General Court, it was held : An indictment is defective for omitting the conclusion, " against the peace and dignity of the Commonwealth." In Buzzards Case, 5 Grat., 694, decided December, 1848, by the General Court, it was held : By mistake a wrong name is inserted in an indictment for a misdemeanor, though the record of the court and the endorsement on the indictment shows the correct name. The indictment cannot be amended by striking out the wrong name and inserting the name of the person in- tended. In Clark's Case, 6 Grat., 675, decided December, 1849, by the General Court, it was held: An indictment for an attempt to commit an offence ought to allege some act done by the de- fendant of such a nature as to constitute an attempt to commit the offence mentioned in the indictment. When an indictment does not charge a criminal offence, the court, may upon the motion of the defendant, quash it. In Bell's Case, 8 Grat., 600, decided December, 1851, by the General Court, it was held : In prosecutions for felonies and other serious offences, the court will not, on the motion of the prisoner, quash the indictment unless where the court has no jurisdiction, where no indictable offence is charged, or where there is some other substantial and material defect. In other cases he will be left to his demurrer, motion in arrest of judg- ment, or writ of error. Where the indictment in the caption names one county, and CITATIONS TO THE CODE OF VIRGINIA. 1047 in the body of it speaks of the defendant as of another county, the charging the offence to have been committed in the county aforesaid is error, it not being alleged with sufficient certainty that the offence was committed in the county in which the in- dictment was found. In Burner's Case, 13 Grat., 778, decided February 11, 1856, it was held : An indictment which charges that the defendant, on a day and time specified, kept an ordinary without obtaining a license to do so, is sufficient, without setting out the facts of his furnishing for compensation lodgings or diet, etc. Such an indictment, with the addition that he continued to keep the ordinary from the day stated to another subsequent day, the continuando is mere surplusage. A person having a license to keep a house of private enter- tainment cannot be convicted of keeping an unlicensed ordinary by proving the sale by him of spirits to be drunk at the house of private entertainment, the place of sale, in addition to the furnishing for compensation diet, lodging, and provender at that place. In Young's Case,l5 Grat., 664, decided January, 1860, it was held: In an indictment under the section for retailing ardent spirits, the words "not to be drunk where sold" not being in the statute need not be in the indictment. In such indictment the words "without having a license there- for according to law" are not equivalent to the words " without paying such tax and obtaining such a certificate as is prescribed by the 14th section," which are the words used in the statute, and the indictment is defective. In an indictment for a statutory offence it is generally proper and safest to describe the offence in the words used by the statute for the purpose. But it is sufficient to use in the indictment such terms of description as that, if true, the accused must of necessity be guilty of the offence described in the statute. If the indictment may be true, and still the accused may be not guilty of the offence described in the statute, the indictment is insufficient. See SUM s Case, 19 Grat., 813, cited ante, Section 3998. In Thompson's Case, 20 Grat., 724, decided November, ls.<>. it was held: Every count in an indictment must conclude, " against the peace and dignity of the Commonwealth," or the count which omits it is fatally defective. The only proper endorsement on an indictment is "a true bill," or "not a true bill," with the name of the foreman, and anything else is not a part of the finding of the grand jurv. The record of the finding of the grand jury saying, "in com- mission of rape," which was on the indictment, is mere sur- plusage. 1048 CITATIONS TO THE CODE OF VIRGINIA. See Randalls Case, 24 Grat., 644, cited ante, Section 3671. In Helf rick's Case, 29 Grat., 844, decided February 7, 1878, it was held : If an indictment for a statutory offence, by following the language of the statute, charges expressly or by necessary implication every fact necessary to constitute the offence, it is sufficient. In Robinson's Case, 32 Grat., 866, decided January, 1879, it was held: An indictment charging the prisoner with stealing certain papers of the value of one hundred and ten dollars, not otherwise describing the papers charged to have been stolen, is fatally defective. In Baccigalupo' s Case, 33 Grat., 807, decided January, 1880. In such a case an indictment which has been made by the grand jury of the Hustings Court of the city of Richmond charges the assault to have been made at the said city, and within the jurisdiction of the said Hustings Court of the city of Richmond. Held : This is sufficient, and it is not necessary to state the place in the city where the assault was made. See Hawley's Case, 75 Va., 847, cited ante, Section 3885. In Hendricks 's Case, 75 Va., 934, decided March, 1882, it was held : A demurrer to an indictment containing two counts, be- ing general and not to each count thereof, if either is good, it is properly overruled ; and the verdict, being general, if support- ed by either count, must stand. In Boyd's Case, 77 Va., 52, decided January 25, 1883. An indictment under a statute must state all the circumstances which constitute the offence as defined in the statute. Though the offence, at common law or by statute, is denned in general terms, yet the indictment must charge it specifically, and must descend to particulars. In an indictment for corrupt misbehavior in office, the act must be distinctly charged as done knowingly and with corrupt motives. B., an election official, is indicted under the Code for acting unlawfully as such official. On motion to quash, held : Though he may have acted unlawfully, it does not follow that he was guilty of corrupt conduct, for the punishment whereof the stat- ute was intended, and the indictment is insufficient. In Bailey's Case, 78 Va., 19, decided November 15, 1883, it was held : In describing an offence under a statute the indict- ment must follow the statute, and any material variance will be fatal. In criminal procedure, an essential of the offence therein described is the scienter. Failure of the indictment to aver the xri enter is fatal. See Rhodes's Case, 78 Va., 692, cited ante, Section 3993. In Webster's Case, 80 Va., 598, decided June 25, 1885, it was held : An indictment charging that the prisoner on, etc., a cer- CITATIONS TO THE CODE OF VIRGINIA. 1049 tain mill-house, not adjoining to, nor occupied with, the dwell- ing-house, of F., etc., sufficiently alleges the ownership of the mill-house to be in F., and is sufficient in law. In Sprouse's Case, 81 Va., 374, decided January 21, 1886, it was held : The joining of two or more offences in one count is not permitted. But if the whole transaction be only parts of one fact of endeavor, all the parts may be stated together as one offence ; e. g., a man may be indicted for the battery of two or more persons in the same count, etc. ; and so an indictment charging in one count the forgery of a check and of the endorse- ment thereof is not liable to the objection of duplicity or mis- joinder. In Shelton's Case, 89 Va., 450, decided December 8, 1892, it was held : An indictment is sufficiently certain as to the time when it alleges that an offence was committed on a certain day, about the hour of 12 o'clock in the night of that day, and means in the night after the sundown of that day. SECTION 4000. In Taylor's Case, 2 Va. Cases, 94, decided by the General Court, November, 1817, it was held: The omission to charge that the offence was committed "within the jurisdiction of the court," the county itself being named, is cured by the verdict. The caption of the indictment setting forth the county is suffi- cient, without entitling it of the superior court. In Barker's Case, 2 Va. Cases, 122, decided November, 1817, by the General Court, it was held : In an indictment for steal- ing bank-notes it should be charged that they were feloniously stolen, although by the act it is not denominated a felony ; and this error is not cured by the statute of jeofails. If the indictment for stealing bank-notes does not charge that they are the bank-notes and belong to some person or persons by name, or of, or to, some person, to the jury unknown, the defect is fatal, and not cured by the statute of jeofails. See Trimble's Case, 2 Va. Cases, 143, cited ante, Section 3671. In the case of Commonwealth vs. Ervin <& Lewis, 2 Va. Cases, 337, decided by the General Court, June, 1823, it was held, p. 340-'41 : In an indictment for the forgery of bank-notes, instead of setting out the tenor of the forged notes, the attorney, for the greater certainty as to their identity, referred to them as "being annexed" hereto, and actually did annex them. The prisoner did not move to quash the indictment, nor did ho plead in abatement, but pleaded the general issue, and a ver- dict was rendered against him. Although this is a careless and irregular mode of counting, yet, after verdict, the irregularity is ured by the statute of jeofails. A charge that a forgery of bank-notes was committed with 1050 CITATIONS TO THE CODE OF VIRGINIA. intent to injure "divers good citizens of the Commonwealth and others" to the jurors unknown, without setting out an in- tent to injure the president, directors, and company of those banks, or of any particular person, or body politic by name, is good after verdict. So to charge that the prisoners willingly acted and assisted in false making and forging, without setting out in particular any person who was assisted ; so to charge them with causing and procuring the forged notes to be passed, without setting out the persons whom the prisoners caused or procured to pass them, nor to whom ; so to charge them with passing them to W. S., with intent to defraud the said W. S. and others; so, also, to charge them with causing them to be passed or exchanged. In Jacobs' s Case, 2 Leigh, 709, decided June, 1830. In an indictment against justices of the county court for misbehavior in office, it is necessary that the act imputed as misbehavior be distinctly and substantially charged to have been done with corrupt, partial, malicious or improper motives, and, above all, with knowledge that it was wrong, though there are no technical words indispensably required in which the charge of corruption, partiality, etc., shall be made. An indictment in such case, not charging the corruption, par- tiality, etc., distinctly and substantially and not charging the scienter. Held : Naught after verdict of conviction, its defects not being cured by the statute. In IsreaCs Case, 4 Leigh, 675, decided by the General Court, December, 1833. Indictment at common law charging defendant with rescuing property that had been distrained by a sheriff for public dues from a bailee to whose safe-keeping the sheriff had committed it, without charging that the defendant knew in what right the bailee held it. Held: Indictment defective for not averring that the defendant had such knowledge. And this defect is not cured by verdict, by the statute of jeofails in criminal cases. In Stephen's Case, 4 Leigh, 679, decided by the General Court, December, 1833, it was held: Motion in arrest of judg- ment because several of the petty jury were not freeholders ; this being matter of fact not appearing in the record, is not a good reason for arresting judgment. In Jones's Case, 2 Grat., 555, decided June, 1845, it was held, by the General Court : In the case of a misdemeanor after the verdict of not guilty, and a trial and verdict upon that plea, it is not competent to arrest the judgment for any supposed vari- ance between the information and presentment. A defendant may avail himself of such variance by showing it as a cause against the filing of the information or by motion to quash it. See Peass Case, 2 Grat., 629 and 637, cited ante, Section 3999. CITATIONS TO THE CODE OF VIRGINIA. 1051 In Old's Case, 18 Grat., 915, decided October, 1867, it was held : When the presentment does not charge the offence, the appellate court will reverse the judgment against the accused, though no motion in arrest of judgment was made in the court below. Where a pecuniary judgment has been rendered against a defendant in a criminal case and he pays it, and upon appeal the judgment is reversed, the cause will be remanded to the court below for an order of restitution to be made therein if the money is yet in the hands or power of the court. In Matthews' 8 Case, 18 Grat., 989, decided January, 1868, it was held : Anything which is good cause for arresting a judg- ment is good cause for reversing it, though no motion in arrest is made. In Cousins 's Case, 19 Grat., 807, decided April 29, 1870, it was held: An information under the act in relation to the assess- ment of taxes on licenses, must allege that the sale was "for profit or on commission, or for other compensation," or it will be fatally defective on demurrer, or on motion in arrest of judgment. In fiandall's Case, 24 Grat., 644, decided January, 1874, it was held: The indictment and verdict being fatally defective, the judgment may be reversed by the appellate court, though no motion in arrest of judgment was made in the court below. In Puryear's Case, 11 Va. Law Journal, 532, decided March 24, 1887, it was held : A case in which the indictment charges the offence with sufficient certainty for judgment to be given thereon according to the very right of the case, and a motion in- arrest of judgment, was properly overruled. SECTION 4001. In Lovetfs Case, 2 Va. Cases, 74, decided June, 1817, by the General Court, it was held : A special session of the superior court of law held for the trial of offences is not the third term within the meaning of the act, but a substitute for it, and there- fore, when there is a failure to hold two irregular terms, and then a special term was held, at which the prisoner was not tried, but being indicted at the regular term succeeding the special term, he ought not to be discharged for the crime, but may be tried. In the case Ex parte Joseph Santee, 2 Va. Cases, 363, de- cided by the General Court, November, 1823, it was held : The word "term" ought to be construed to mean not the stated time when a court should meet, but the actual session of the court. In BeWs Case, 8 Grat., 600, decided December, 1851, by the General Court, it was held: A prisoner being sent on for further trial by an examining court which sat during the session of the circuit court to which he is sent for further trial, that term Ol the circuit court is not one of the two at which the statute di- 1052 CITATIONS TO THE CODE OF VIRGINIA. rects that lie shall be indicted, or that he shall be discharged from imprisonment. In Adock's Case, 8 Grat., 661, decided December, 1851, by the General Court. A prisoner is indicted for embezzling the goods of W., and at the fifth term after he was examined for the offence he is tried and convicted, but the verdict is set aside for a variance between the allegation and the proof as to the owner- ship of the goods, and the case is continued. At the next term of the court the attorney for the Commonwealth enters a nolle prosequi upon the indictment, and the prisoner is indicted again for the same offence, the indictment being in the first count as in the former indictment, and another count charging the goods embezzled to be the goods of A. Upon his arraignment, he moves the court to discharge him from the offence on the ground that three regular terms of the court had been held since he was examined and remanded for trial without his being indicted. The attorney for the Commonwealth opposes the motion and offers the record of the proceedings of the circuit court upon the first indictment to show that he had been indicted, tried and convicted, which was objected to by the prisoner. Held: The record is competent, and the only competent evidence upon the question. The second indictment being for the same act of embezzling as the first, and the prisoner having been indicted, tried and convicted in time, and the verdict set aside for the variance, the second indictment was proper and in time, and the prisoner is not entitled to be discharged. The exceptions or excuses for failure to try the prisoner, enu- merated in the statute, are not intended to exclude others of a similar nature, or in pari ratione, but only that if the Common- wealth was in default for three terms without any of the excuses for the failure enumerated in the statute, or such like excuses fairly implicable by the courts from the reason and spirit of the law, the prisoner should be entitled to his discharge. In Jones's Case, 19 Grat., 478, decided October 17, 1868. In September, 1867, J. is committed to be tried for a felony at the October term of the county court, and at that term of the court an information is filed against him, and he elects to be tried in the circuit court and is remanded for trial in that court. He remains in jail until the April term of the court, 1868, no indict- ment having been found against him. The grand jury terms of the county court are November and June. At the April term of the circuit court, after the grand jury has been discharged, he applies for a writ of habeas corpus to obtain his discharge. Held : Having been committed for trial in the county court, that is the court in which he is held to answer, in the sense of the statute, CITATIONS TO THE CODE OF VIRGINIA. 1053 though he had been remanded for trial in the circuit court, and he should be indicted in the county court. The second term of the court spoken of in the statute is the second term at which a grand jury is directed to be summoned. If it was so that the prisoner was held to answer in the circuit court, that would not be till he was remanded to that court; and, therefore, though the prisoner was committed for trial in the county court before the September term of the circuit court, that could not be one of the two terms spoken of by the statute. And if the November term in the county court could be con- nected with the April term in the circuit court, still, though the grand jury at the April term had been discharged before the ap- plication for the writ, the judge might have ordered another grand jury to be summoned during the term, and, therefore, the term could not be counted as one of the terms until it was ended. The filing of the information being unauthorized in the case of a felony, is of no avail, and an indictment must be found within the time prescribed by statute. In Hatts Case, 78 Va., 678, decided March 13, 1884. H. was examined before a justice for felony, May 9, 1883, and was re- manded for trial in the Hustings Court of D. The court held terms May 10 and June 4, 1883, at both of which grand juries were impaneled ; but H. was indicted for said felony not until October, 1883. Failure to indict did not arise from any of the causes excepted in the statute. To the indictment H. filed a special plea in bar, which was rejected. On error, held : The plea is good, and H. is entitled to be discharged from imprison- ment. In Waller & Boggs's Case, 84 Va., 492, decided February 9, 1888, it was held : Under this section, it suffices that any indict- ment be found against the accused before the end of the second term at which he is held to answer, though he be actually tried upon an indictment found after that time. SECTION 4003. In Goode's Case, 2 Va. Cases, 200, decided June, 1820, it was held : If a defendant be presented for a misdemeanor, and sum- moned to show cause why an information should not be filed, and, upon the return of that summons executed, the defendant fails to appear, and the rule be made absolute and the informa- tion be filed, the court cannot proceed to try it, but the defend- ant must be summoned to answer the information ; or, if he be charged with an offence to which an infamous or corporal pun- ishment is affixed, or may ensue, the court may award a cnj>"i* instead of a summons. In Word's Case, 3 Leigh, 743, decided November, 1 527, by the General Court. Upon presentment for unlawful gaming at 1054 CITATIONS TO THE CODE OF VIRGINIA. cards at a particular place, within six months next preceding, process is issued summoning the defendant to answer a pre- sentment for unlawful gaming at cards, generally without speci- fying time or place. Held : Such process is good and suffi- cient. See Towles's Case, 5 Leigh, 743, cited ante, Section 3989. In Wright's Case, 19 Grat., 626, decided January 24, 1870, by the military court of appeals, it was held: A prisoner is indicted for felony in the circuit court, he being in custody at the time. The circuit court has no jurisdiction to try him on this indictment, but he must be sent before a justice for exami- nation, and committed for trial in the county court. In Shetty's Case, 19 Grat., 653, decided February 16, 1870, by the military court of appeals, it was held: A prisoner in cus- tody is indicted in the Hustings Court of L., held by a judge. He is not entitled to be sent before a justice for examination ; but the court may proceed to try him on the indictment. In Chahoon's Case, 20 Grat., 733 and 758, decided January, 1871, it was held : C. is indicted for felony in the Corporation Court of R., the proper court to try him for the offence. When indicted he is not in custody, and has been arrested or examined by the justice. Qucere : If he should be arrested and sent before a justice to be examined, or whether he may be taken on a capias and tried upon the indictment without any examination by a justice ? In Jackson's Case, 23 Grat., 919, decided January, 1873. A jury of inquest find that the deceased was killed by J., and the justice, who acted as coroner, issues process, upon which J. is committed to prison. The grand jury in the county court find an indictment against J. for murder, and he is brought into court and arraigned, and on his arraignment elects to be tried in the circuit court. In the circuit court J. moves to quash the indictment because he had not been sent before a justice for examination; and that motion being overruled, and the cause continued to the next term on his motion, he at the next term files a plea in abatement to the indictment, on the ground that he had not had the benefit of an examination before a justice of the peace or other legally authorized officer for commitment. To this plea the attorney for the Commonwealth demurs, and the demurrer is sustained. Held: J. was not entitled to be sent before a justice for examination. In Stuarts Case, 28 Grat., 950, decided July 26, 1877, it was held: Where a prisoner is arrested under a warrant of a justice, examined, and committed to jail, and indicted and tried, and afterwards that indictment quashed, and a new indictment found against him for the same offence, he is not then entitled to a new preliminary examination before a justice under the last in- dictment found against him. CITATIONS TO THE CODE OF VIRGINIA. 1055 The reference to 81 Va., 159, is an error. In Jones's Case, 86 Ya., 661, decided March 13, 1890, it was held : By the law in force before May 1, 1888, accused, when indicted, was required to be sent before a justice for examina- tion. By this section that requirement is omitted, and accused indicted since then need not have such preliminary examination, though the offence was committed before then. SECTION 4009. In WebVs Case, 2 Leigh, 721, decided June, 1830, it was held: Upon a presentment in the circuit court for an offence for which the penalty prescribed by law exceeds not twenty dollars, the court cannot proceed by way of information, but only in a sum- mary manner under the statute. SECTION 4010. See Maddox's Case, 2 Va. Cases, 19, cited ante, Section 3816. SECTION 4011. In Adkinson's Case, 2 Va. Cases, 513, decided by the General Court, June, 1826, it was held : A misnomer cannot be pleaded to a presentment, indictment, or information for unlawful gam- ing under our laws. SECTION 4012. In Skiff let? s Case, 18 Southeastern Report, 838, decided Jan- uary 11, 1894. Code, this section, declares that in prosecution for misdemeanors not embraced by Section 4010, after a sum- mons has been executed ten days before the first day of the term, the court may award a capias or proceed to trial in the same manner as if the accused had appeared. Held : That it was proper to try defendants for a misdemeanor in their absence without first awarding a capias for their arrest when they had been duly summoned. SECTION 4013. In Hill's Case, 2 Va. Cases, 61, decided by the General Court, June, 1817, it was held: The omission to continue a cause in which there was a verdict, on the records of the county court for two quarterly terms, is no discontinuance of the prosecution. The reference to 2 Va. Cases, 240, is an error. In the case referred to, 21 Grat., 780, the statute is followed, not construed. In Bolanz's Case, 24 Grat., 31, decided November, 1873, it was held : Prisoner charged with a felony in the county court appears at the August term, and on his motion his case is con- tinued until the first day of the October term, passing over the September term. This is not error. 1056 CITATIONS TO THE CODE or VIRGINIA. In Harrisons Case, 81 Ya., 491, decided March 11, 1886, it was held : A case stands continued without any order, and fail- ure to enter order of continuance works no discontinuance. SECTION 4014. The cases cited from 2 Va. Cases are in construction of the common law now abolished. CHAPTER CXCVII. SECTION 4016. In White/lead's Case, 19 Grat., 640, decided January 24, 1870, by the military court of appeals, it was held : The arraignment of a prisoner and his plea are distinct parts of the proceeding ; and, therefore, upon his arraignment, and without pleading, he may elect to be tried in the circuit court. Two prisoners may be arraigned together. This does not pre- vent their pleading separately and electing to be tried sepa- rately. In Jackson's Case, 19 Grat., 656, decided February 16, 1870, by the military court of appeals, it was held : Upon a trial for felony it is the right of the prisoner, a right which he cannot waive, to be present from the arraignment to the verdict. And if the evidence of a witness on a trial, which has been reduced to writing, or any part of it is read to the jury in the absence of the prisoner, it is error, for which the verdict will be set aside. See Chahoorfs Case, 20 Grat., 733, cited ante, 4003. In BosweUs Case, 20 Grat., 860, decided March, 1871, it was held : A prisoner indicted in a corporation court for murder, is not entitled to elect to be tried in the circuit court. In Bolanz's Case, 24 Grat., 31, decided November, 1873, it was held : Prisoner charged with a felony in the county court appears at the August term, and, on his motion, his case is con- tinued until the first day of the October term, passing over the September term. This is not error. In Joyce's Case, 78 Va., 287, decided January 17, 1884. Upon application for change of venue, on ground that an impartial jury cannot be had in that county or brought thereto from an- other county or corporation, application is refused, and a jury obtained in the county. Held : Prisoner should first have asked for a jury from another county. Not having done so, and an. impartial jury having in fact been obtained, the conclusive pre- sumption is that the application for change of venue was un- founded. Prisoner may move for continuance before arraign- ment, but affidavits of prevalence of bitter and general prejudice against him, do not of themselves constitute good grounds for a continuance. CITATIONS TO THE CODE OF VIRGINIA. 1057 In Anderson's Case, 84 Va., 77, decided November 17, 1887. The county court wherein accused was indicted for a capital felony refused to consider, till after his arraignment, motion for continuance, on ground of absence of material, duly-summoned witness, and thereupon accused elected to be tried in the circuit court. Held : Such refusal deprived the accused of his right of free election of forum, and was error. In Stoneham's Case, 86 Va., 523, decided November 14, 1889, it was held : A person charged with a felony that may be pun- ished with death, may, when called to the bar to answer the in- dictment, elect to be tried in the circuit court, and when the re- cord shows this, it is not error for the circuit court to refuse to remand the case to the county court for trial. In HoweWs Case, 86 Va., 817, decided April 10, 1890, it was held : Prisoner indicted for murder, on arraignment elected to be tried in circuit court, and was produced therein, but the re- cord had not been certified, and he moved to be remanded to the county court for trial. The circuit court examined the un- certified record before it held there was error apparent therein, in that the county court had refused to hear prisoner's motion for a continuance before his arraignment, and remanded the case. 'When afterwards prisoner objected to trial in the county court because he had, upon his arraignment, elected to be tried in the circuit court, but his objection being overruled, the trial proceeded. Held : After election to be tried in circuit court, it alone had jurisdiction to try him, but it could not do so without a certified record of the case, but it had no jurisdiction to cor- rect errors of court below. And so, prisoner has not been law- fully tried. In Early 's Case, 86 Va., 921, decided June 19, 1890, it was held : Where prisoner on arraignment, informed of his right to trial in circuit court, pleads " not guilty," and elects to be tried in county court, and counsel appointed to defend were sufferers by the offence charged, but appear to have been faithful and obtained continuance to prepare for trial, and at next term prisoner moves that another plea be substituted, and his elec- tion to be tried in the county court be withdrawn, the motion is overruled. Held : No error. In Mitchell's Case, 89 Va. , 826, decided March 30, 1893. Where on trial for a capital offence, accused elected to be tried in cir- cuit court, the clerk of the county court failed to certify the copy of the record transmitted to the circuit court. Held: The cir- cuit court acquired no jurisdiction of the case, and a judgment rendered therein was void. In Drier's Case, 89 Va., 529, decided January 12, 1893, it was held : This section, providing that a defendant upon arraignment in the county court for a felony, may demand to be tried in the 67 1058 CITATIONS TO THE CODE OF VIRGINIA. circuit court, does not warrant the inference that it is the duty of the court or clerk to inform him of his right to be tried in the latter court. In Benton's Case, 18 Southeastern Eeporter, 282, decided November 23, 1893. Defendant had been imprisoned since September, 1892, during which time he was ready and anxious for a trial, and his case was set for trial on the 15th of February, 1893 ; the case was called, and he demanded a trial, but the Commonwealth's attorney announced that he had made no pre- paration for trial at that term, that he had recalled processes issued for witnesses, that he could offer no evidence at that term, though defendant offered to admit evidence taken at former trials, except that of one B., who being in prison for felony, was incompetent to testify, and that if ruled to trial a nolle prosequi would be entered. The court then continued the case to March 16, the day on which B.'s sentence would expire. Held : That the court erred in such continuance, as there was no good ground therefor, and under Constitution, Article 1, Section 10, and Code, this section, the prisoner was entitled to a speedy trial. SECTION 4017. In Sperry's Case, 9 Leigh, 623, decided by the General Court, December, 1838, it was held : In a prosecution for felony the accused must be arraigned and plead in person, and in all the subsequent proceedings he must appear in person, not by attor- ney; and such appearance in person must be shown by the record. In Hooker's Case, 13 Grat., 763, decided November 23, 1855, it was held : A verdict having been found against a prisoner, he moves the court to set it aside as contrary to evidence, which motion is on another day overruled. On the day when the motion is made, and also when it is overruled, the record states that the prisoner appeared by attorney, and there is nothing in the record to show that he was present. This is error. In Piker's Case, 14 Grat., 710, decided August 20, 1858, it was held, p. 713 : In misdemeanor the personal presence of the defendant is not necessary at the trial, but where a man is to receive any corporeal punishment, judgment cannot be given in his absence. For the reference to 19 Grat., 656, see supra, Section 4016, Jackson's Case. In BosweWs Case, 20 Grat., 860, decided March, 1871, it was held: The act which provides that a person tried for felony shall be personally present during the trial, does not apply be- fore his arraignment, but before his arraignment an order may be made in his absence. CITATIONS TO THE CODE OF VIRGINIA. 1059 In Lawrence's Case, 30 Grat., 845, decided March 21, 1878, it -vvas held: It is necessary that the prisoner shall be present 'in person when arraigned, and during his trial, but if it may be in- ferred from the record that he was present, that is sufficient, though it is not formally stated that he was present. It is not necessary that the prisoner should be present when the jury, which had been sent out for the night, is brought in in the morning and sent to their room. In Prices Case, 33 Grat., 819, decided January, 1880. Upon the trial of P. for murder, the jury found him not guilty of the murder, but guilty of involuntary manslaughter, and assessed upon him a fine of five hundred dollars, and the court thereon entered a judgment discharging him. At the same term of the court, in the absence of P., the court set aside the judgment and entered a judgment against him for the fine of five hundred dol- lars and six months imprisonment, and directed him to be arrested and committed to prison. Held: The first judgment was erroneous. During the same term of the court the matter was under the control of the court, and it was competent for the court to set aside the first, and render the second judgment. It was not necessary that P. should be present at the court when the second judgment was entered. In Jones's Case, 79 Va., 213, decided July 24, 1884, it was held: It is not error wherefor a verdict of guilty will be set aside, that in the absence of the prisoner, on the morning of the second day of the trial, the jury is called and sent to their room to consider of their verdict, the jury afterwards returning into court and in the presence of prisoner returning their verdict. In Cluverius's Case, 81 Va., 787, decided May 6, 1886, it was held : Where at the end of the record of the proceedings of the court on the day of conviction, it is stated and " Thereupon the accused was remanded to jail," is conclusive that he had been personally present during all the proceedings had that day. In Curtis 's Case, 87, Va., 589, decided April 2, 1891, it was held : Where trial interrupted by sudden fit and the removal of prisoner was resumed upon his restoration and return into court. Held : Not error. In Shelton's Case, 89 Va., 450, decided December 1, 1892, it was held : A person indicted for felony must be shown from the record to have been personally present at every stage of the prosecution ; nor can he waive the right to be present, and entry upon the record. "This case was continued for the defendant" does not show that he was personally present, as it is a settled principal that the presumption that a court of general juris- diction acts rightly cannot supply an essential part of the record. 1060 CITATIONS TO THE CODE OF VIBGINIA. SECTION 4018. In Sprouce's Case, 2 Va. Cases, 375, decided by the General Court, November, 1823, it was held : A venireman, who had heard a relation of what the principal witness for the prosecution had sworn to, and had said that if these things were true he be- lieved the prisoner guilty; but who declared, on his voir dire t that he felt no prejudice, was open to conviction, and if the facts did not turn out as they had been represented he was ready to change his opinion, is a good juror, and the prisoner's challenge for cause was property overruled. In Hughes *s Case, 5 Rand., 655, decided by the General Court, November, 1826, it was held : A hypothetical declaration (made by a juror before he was impaneled), that "if he (the prisoner) killed the man he ought to be hanged," is not a sufficient ground on which to grant a new trial, such declaration not being an opinion as to the prisoner's guilt. In Pollard's Case, 5 Band., 659, decided by the General Court, "June, 1827, it was held: A juror, who having heard the testimony of a witness in the cause and then formed an opinion on it, and was doubtful whether he had expressed the opinion or not, though he thought it most probable he had expressed it, but declared that at the time of the trial he had no prejudice against the prisoner or his cause, and that he could, as he be- lieved, give the prisoner as fair a trial as if he had not heard anything on the subject, is an impartial juror, and a challenge against him for cause ought to be overruled. In. Jones's Case, 1 Leigh, 598, decided November, 1829, it was held : By-standers are called as jurors in a capital case, and, at the instance of the accused, are sworn and examined touching tLeir indifferency, and then elected by the prisoner and sworn of the jury; upon objections to the indifferency of these jurors, dis- covered after the trial, not directly inconsistent with what was disclosed by the jurors themselves on their examination touch- ing their indifferency, the court ought not to set aside a verdict of guilty, just in itself, though the objections be such, that if known and disclosed before the jurors were elected and sworn, they might have been good cause of challenge to the jurors, much less if the objections be such as would not have been good cause of challenge. In Brown 's Case, 2 Leigh, 769 (erroneously quoted 778) decided by the General Court, November, 1830: A person being called as a juror in a case of felony, says on voir dire, " that he had expressed an opinion on the circumstances as he had heard them narrated in the country, but he had not heard any of the evidence given on the examination of the pris- oner, or conversed with any of the witnesses or parties, and he did not think the opinion so formed would have any influence CITATIONS TO THE CODE OF VIRGINIA. 1061 on his mind in trying the case," and this juror is challenged for eause. Held : The challenge for cause rightly disallowed. In Osiander's Case, 3 Leigh, 780, decided July, 1831. A person called as a juror in a criminal case, and examined as to his indifferency on his voir dire, declared he had heard reports concerning the case in the country, and a state of the circum- stances from one of the witnesses, and had formed a hypotheti- cal opinion, but he believed it would not influence his mind as a juror ; he believed the account he had heard of the case at the time he heard it (and he did not now express any doubt of its truth) if the evidence at the trial should correspond with the account he had heard, his former opinion would remain, but if it should be different, he felt satisfied he would be able to decide the cause without being influenced by what he had before heard, and without prejudice; and it did not appear that the witness had ever before expressed the opinion he had so formed. Held : Such preconceived hypothetical opinion did not constitute good cause of .challenge to the juror. To constitute good oause of challenge to a juror, on the ground of preconceived opinion of the case formed by him, it must appear that such preconceived opinion was a decided one. In Stephen's Case, 4 Leigh, 679, decided by the General Court, December, 1833, it was held : Motion in arrest of judgment be- cause several of the petty jurors were not freeholders, this being matter of fact not appearing in the record, is not a good reason for arresting judgment. In Hendrick's Case, 5 Leigh, 708, decided by the General Court, December, 1834, it was held: A person called to serve as a juror in a criminal case, being examined on his voir dire, first says he is not a freeholder, but soon afterwards, be- fore the panel is completed, returns into court and says he was mistaken, that he has been reminded of his mistake by a friend, and that he is a freeholder ; the pourt holds him a good and lawful juror, and then the prisoner challenges him perempto- rily. Held : The court was right in permitting such correction of the first mistaken statement and in holding him a good and lawful juror. Persons called to serve as jurors in a criminal case, examined on their voir dire, say they have heard part of the evidence on a former investigation, and formed some opinion thereon, yet the opinion so formed would nowise incline their minds as jurors for or against the prisoner, but they could pass upon the case upon the whole evidence as impartially as if they had never heard of it. Held : Such persons are good and impartial jurors. A person called to serve as a juror in a criminal case ] elected by the prisoner, but before he is sworn the prisoner 1062 CITATIONS TO THE CODE or VIRGINIA. retracts his election, and asks that he may be permitted to chal- lenge him peremptorily ; the court refused to permit such per- emptory challenge, and the juror is sworn and serves on the jury. Held : This was error, the prisoner having an absolute right to challenge any juror peremptorily at any time before he is sworn. In Moran's Case, 9 Leigh, 651, decided by the General Court, June, 1839. On a trial for murder, two jurors are severally examined on their voir dire: 1. One states that he was not present at the examination of the prisoner before the hustings court, and has heard no statement of the evidence from any witness or person who was present ; that he has heard the case spoken of in the town, and rumors in regard to its circum- stances, upon which he has expressed no opinion, though he believes those rumors to be true, and if they should turn out upon the trial to be true he has a decided opinion in regard to the case ; but he feels no prejudice, and is satisfied that he shall be able to decide the case upon the evidence which- may be given in, uninfluenced by the rumors he has heard; that the opinion he had formed was, that if the prisoner had stabbed the deceased under the circumstances which he had heard, he ought to be punished. 2. The other juror states that he has made up no decided opinion ; that he has heard part of the evi- dence of one witness, and formed an impression, and if the balance of the testimony should run in that way, that impres- sion would be confirmed ; that as far as the evidence went he had a decided opinion, if the rest should not run against it; but that he has no prejudice, has not expressed any opinion, and is prepared to decide the case according to the evidence which may be given in, uninfluenced by the portion of evidence he had heard. Held: Both the jurors are competent. In Matte's Case, 9 Leigh, 661, decided by the General Court, December, 1839. On 'a trial for felony, a juror, being exam-' ined on his voir dire, states that he was not present at the ex- amining' court, but has heard a report of some of the circum- stances of the case ; that he does not know that the report came from any one who heard the evidence at the examining court, nor does he believe it to be a full detail of all the circumstances, but he believes it to be true, and upon that belief has formed and expressed a decided opinion, which is still abiding on his mind ; but he believes that, notwithstanding what he has heard, his mind is open to conviction ; and he has no doubt that, if the facts should turn out to be different from what they have been represented to him, his opinion would be changed. Held : He is a competent juror. In Stockley's Case, 10 Leigh, 678 (2d edition, 712), decided by the General Court, December, 1840, it was held : A circuit CITATIONS TO THE CODE OF VIRGINIA. 1063 court has the right and power, on the trial of an indictment for felony, to compel a venireman or bystander, called to serve as a juror on the trial, to be sworn on his voir dire, and to answer proper questions touching his fitness as a juror in the particu- lar case. In Heath's Case, \ Bob., 735 (2d edition, 796), decided by the General Court. A person called as a juror upon a trial for felony, and sworn to answer questions touching his competency, having deposed that he has formed no opinion nor come to any conclusion on the case, prisoner's counsel is about to interro- gate him further, and asks whether he has not conversed much about the case, when the court arrests the examination, and de- cides that no further question shall be put to the juror by the prisoner's counsel, and that he is a competent juror. Held: Such proceeding and decision of the court are erroneous, and judgment against the prisoner must be reversed therefor. The doctrine laid down in Osiander's Case, 3 Leigh, 780, and in Armisteatfs Case, 11 Leigh, 657, as to the disqualification of jurors by preconceived opinions respecting the case of the ac- cused is reaffirmed. A person is not rendered incompetent as a juror in a criminal case by the formation of a legal opinion upon facts previously presented to his mind, as he would be by the formation of previous convictions in respect to the facts themselves. After a verdict of conviction for murder in the first degree, prisoner adduces testimony that two of the jurors who tried the case, and who, on the voir dire, declared that they had not formed or expressed any opinion as to the guilt or innocence of the prisoner, had, in fact, previous to the trial, expressed de- cided opinions that the prisoner was guilty, and ought to be hung; of which circumstance, the prisoner alleges, he had no knowledge until since the verdict was rendered; and on this ground he moves to set aside the verdict. Held : Such inquiry was open, and the evidence admissible, for the purpose of showing perjury and corruption in the jurors; but, it belonged exclusively to the judge who presided at the trial to weigh the conflicting credibility of the witnesses ad- duced by the prisoner and of the jurors, and to decide whether, in justice to the prisoner, and upon all the circumstances of the case, a new trial ought or ought hot to be awarded. In Overbee's Case, 1 Rob. (2d edition) 819, decided by the General Court. Pending a trial for felony, and before the tesl mony closes, five of the jiiry having received permission to tire from the court-room accompank-.l by the sheriff, another juror thereupon leaves the jury-box without the knowled the court, passes out of the courthouse through a crowd Ol i> sons collected about the door, and remains absent a few mm- 1064 CITATIONS TO THE CODE OF VIRGINIA. utes, after which he returns into court, having, as he deposes, held no communication whatever with any person during his absence, but not having been, during that period, in charge of the sheriff, or even seen by him. The trial proceeds, and the prisoner is convicted. Held: Such separation of the juror from his fellows is sufficient cause for setting aside the verdict. The reference to 2 Rob., 77, is error. In HailstocKs Case, 2 Grat., 564, decided December, 1845, by the General Court. A person called as a juror on a trial for a felony swears upon his voir dire that he has not formed an opinion as to the prisoner's guilt or innocence, and is challenged peremptorily by the prisoner, whereupon on getting out of the courthouse he remarks in a rather warm and excited manner, " It is well I was rejected, for if I were on the jury I would send the prisoner to the other side of Boston." Afterwards the pris- oner, to make up the jury, elects this person as a juror, not then being informed of his remark. Held : No ground for a new trial. In Day's Case, 3 Grat., 629, decided December, 1846, by the General Court, it was held : A juror in a criminal case must be a freeholder in the county to the officer of which the venire facias is directed. In Epes's Case, 5 Grat., 676, decided December, 1848, it was held, by the General Court, p. 681 : Several days being taken up in completing the panel in a trial for murder, it is not neces- sary that the jurors who have been sworn shall be committed to the custody of the sheriff until the whole number of the panel is completed. The prisoner objecting to a juror on the ground that the venire facias was illegally executed, and the court sustaining the objection, it is proper to set aside the whole return and direct another venire facias. In Smith's Case, 6 Grat., 696, decided December, 1849, by the General Court, it was held : A prisoner is examined before the Hustings Court of Richmond and sent on to the Circuit Court of Henrico to be tried, and the venire facias is directed to the sergeant of the corporation, who executes it and returns the panel for the trial of the prisoner. The venire facias is pro- perly executed by the sergeant. In Smith's Case, 7 Grat., 593, decided June, 1850, it was held, by the General Court: The entertaining a decided opinion of the prisoner's guilt, formed on the testimony as published in the newspapers, is not a valid objection to a juror if he thinks he can discard his opinion, and that it would not influence his judgment, and that he could give the prisoner a fair trial ac- cording to the law and the evidence submitted to the jury. The prisoner was charged with having advised, etc., two CITATIONS TO THE CODE OF VIKGINIA. 1065 slaves to abscond at the same time ; a venireman summoned on the first trial was stricken from the panel by the prisoner. This is not a valid objection to him as a juror on the second trial. In Currants Case, 1 Grat., 619, decided June, 1850, it was held, by the General Court : A juror having expressed himself before the jury was empaneled as determined to punish a pris- oner if taken on a jury, not from any malice toward him, but from an opinion of his conduct, is no ground for setting aside the verdict and granting a new trial. In Clords Case, 8 Grat., 606, decided December, 1851, by the General Court, it was held : Upon trial for murder, a venireman when called states that he has conscientious scruples about the propriety of capital punishment, and is opposed to it, and being asked by the Commonwealth's attorney whether if the testimony in the cause proved the prisoner to be guilty of murder in the first degree he would convict him of it, replies, " I do not know." He is properly challenged for cause by the attorney, and set aside by the court. A venireman when called stated "that he had not heard any of the evidence, nor had he heard any report of it from those who had heard it, but from the rumor of the neighborhood he had formed an opinion, which at the time he spoke was existing on his mind, and which he should stick to unless the evidence should turn out to be different from what rumor had reported it to be ; that he had no prejudice or partiality for or against the prisoner, and believed he would give him a fair and impartial trial according to the evidence that should be given in." He is a competent juror, and challenge of him for cause by the prisoner was properly overruled. In Dowdy's Case, 9 Grat., 727, decided August 16, 1 852, li was held : It is good objection to a juror in a case of felony that he is not a freeholder. If a prisoner's objection to a juror is improperly overruled, the error is not cured by the juror's name being stricken off from the panel by the prisoner, or his not being drawn as one < the twelve who are to try the prisoner. In Wormley's Case, 10 Grat., 658, decided April, 1853, i was held: After the original venire is exhausted without pleting the panel, the court may order any number of persons to be summoned it may think necessary, and if the sheriff, fc want of time or other cause, fails to summon the whole nui er, his return is valid for as many as are summoned. The prisoner objects to a juror, and his objection is overruled, and lie excepts. After the panel is made up but before prisoner has exercised his right of challenge, the court, on tl motion of the attorney for the Commonwealth, out of abundant caution, sets aside the juror. This is not error. 1066 CITATIONS TO THE CODE or VIRGINIA. In Jaeques's Case, 10 Grat., 690, decided April, 1853, it was held : On a trial for arson, the nephew of the deceased wife of the person whose house was burned, if she left children, is an incompetent juror. Such relationship to a party on the record would be a cause of principal challenge. If it be not a cause of principal chal- lenge because the person whose house was burned is not a party on the record, it is a case in which, a favor being apparent, he should be set aside. In such case if the deceased wife left no issue, it is for the prosecution to show the fact, and that fact not being shown, the objection is valid. In Montague's Case, 10 Grat., 767, decided October, 1853, it was held : On a trial for a felonious 1 offence the court of its own motion, without the suggestion of either party, may examine all upon oath who have been summoned to serve upon the jury, touching any disability created by statute, such as infancy, want of freehold or, property qualifications, or in capital cases, con- scientious scruples on the subject of capital punishment, and upon any such disability being thus made to appear, or if it be thus shown that any one summoned has been convicted of perjury, the court may, and should set aside any such juror of its own action, without objection made by either party. On a trial for felony the court of its own motion, without the suggestion or. consent of either party, may excuse or set aside a juror who, though in all other respects competent, is disabled physically or mentally, by disease, domestic affliction, ignorance of the vernacular tongue, loss of hearing, or other like cause from properly performing the duties of a juror. But the erroneous exercise of this power is a matter of exception by the prisoner, for which the judgment of the court may be reversed. As no challenge to a juror is allowed to the Commonwealth except for cause when such challenge is made, the cause should be shown, and should be a good and legal cause for the exclu- sion of the juror, otherwise it should be overruled. The decision of a court allowing the challenge on the part of the Commonwealth, or disallowing a part of the challenge on the part of the accused, whether such challenge be a principal chal- lenge or a challenge to the favor, is a matter of exception on the part of the accused, which it is his right to have reviewed in the appellate court. The court cannot, of its own motion, whether no challenge is made without good cause, set aside a juror except where he is disabled physically or mentally from properly performing the duties of a juror or is disqualified by statute. Though in all cases great weight is justly due to the opinion of the court before whom the jurors are questioned and exam- CITATIONS TO THE CODE OF VIRGINIA. 1067 ined, yet upon exception taken the appellate court must judge from the facts therein stated whether the reason for setting aside a juror is good and sufficient or contrary. A talesman when examined on his voir dire said that he had heard a great deal about the case, but he had not heard or read the evidence given at the examinations before the mayor or hustings court, and that he had formed no opinion on the sub- ject. He then stated that since the prisoner had been in jail his wife and family had moved to the lot adjoining his resi- dence, and had lived there ; they were often at his house, and that there was great intimacy between the families, and on that account he would rather not sit in the case, that his mind might be influenced ; and in answer to a question from the court, he said he was unwilling to trust himself under the circumstances; he thought he would give the prisoner a fair trial on the evi- dence; that he had no prejudice for or against the prisoner- there was no connection by blood or marriage between them, and that he had never spoke to the prisoner's wife or family about the trial. He is a competent juror, and it is error to set him aside, for which the prisoner may except and have the judgment reversed. The appellate court will not inquire whether injury has been done to the prisoner by improperly setting aside a competent juror, but the law will intend prejudice to the prisoner. In DilwortKs Case, 12 Grat., 689, decided March 5, 1855, it was held : On a trial for a felony, a member of the grand jury which found the indictment against the prisoner is not a com- petent juror to try him. If the prisoner does not know, or might not with due diligence have known, that one of the jury was a member of the grand jury which found the indictment against him, until after the jury is impaneled and sworn, he may make the objection to the juror, if made before any of the evidence is introduced. The statute only relates to those disabilities created by our statutes, and does not refer to other causes of challenge which exist at common law, and as to which our statutes are silent. In Bristow's Case, 15 Grat,, 634, decided July, 1859, it ys held, p. 648 : It is a principal cause of challenge to a juror t he was one of the grand jury that found the indictment, if the objection is not taken until after the verdict, it will not be set aside on this ground, unless it appears from the whole case that the juror was biased against the prisoner, who nac therefore had a fair and impartial trial. An objection to the mode of selecting a jury m a fa murder must be made at the time the jury are chosen, and pn soner cannot avail himself of it after verdict. After the panel has been completed, and the prisoner 1068 CITATIONS TO THE CODE OF VIRGINIA. struck off the eight, the jury may be selected from the remain- ing sixteen, either by drawing by lot, four who shall be dis- charged, or the twelve who shall constitute the jury. In Booth's Case, 16 Grat., 519, decided April 18, 1861, it was held : Persons over sixty years of age are not disqualified from serving on grand juries, though they are exempted from the ser- vice if they choose to claim the exemption. In Wash's Case, 16 Grat., 530, decided October 29, 1861, it was held : The acts directing the issue of a venire facias are merely directory to the officer, and the prisoner cannot object to the writ because the acts have not been complied with. Jurors in case of felony are not now required to own estate, real or personal, of the value of one hundred dollars, and if the writ of venire facias requires the officers to summon jurors with this qualification, it will be quashed on motion of the prisoner. If there is an error on the face of the writ of venire facias, and the prisoner moves to quash it, though he does not specify the error, it may be taken advantage of in the appellate court. In Wkitehead's Case, 19 Grat., 640, decided January 24, 1870, by the military court of appeals, it was held : The statute re- quires the venire men to be persons "residing remote from the place where the offence is charged to have been committed." This direction is mandatory ; and the writ is defective, and should be quashed if it is omitted ; and it is not in violation of the Bill of Eights. In Sands's Case, 21 Grat., 871, decided January, 1871, it was held : The list given by the judge to an officer who is to sum- mon jurors for the trial of a prisoner for felony, contains but twenty-four names, and the officer returns the names of nine- teen of them whom he has summoned, and of five as not found. Though it would be best for the judge to put more than twenty- four names on the list, it is not error to give but twenty-four, and the return of the officer that he has summoned less than the twenty-four, and that the others were not found, is a valid return. The court before which a prisoner is arraigned for trial, if qualified jurors who are not exempt from serving cannot be conveniently found in the county or corporation, may send to another county or corporation for such jurors. A person who is qualified to vote by the Constitution of Vir- ginia is a competent juror, though he is disabled from holding office by the Fourteenth Amendment to the Constitution of the United States. The provision in the State Constitution, Article III., Section 3, has reference to the disability to hold office under that Constitution by that provision which was stricken out by the vote of the people. In Craft's Case, 24 Grat., 602, decided November, 1873, it CITATIONS TO THE CODE OF VIRGINIA. 1069 was held: If a person has the constitutional qualifications of a voter, though he has not been registered and has not voted, he is a qualified juror. In Poindexter's Case, 33 Grat., 766, decided January, 1880. Upon an indictment of P. for the murder of C., before the jury is called the prisoner moves the court to quash the venire facias and the return thereon for errors and irregularities appearing thereon. The only ground of error is, that the act requires the jurors to be summoned, etc., "remote from the place where the offence is charged to have been committed," and the language of the venire facias is, "where the felony was committed." Held: This was error. A jury not having been obtained from the twenty-four per- sons summoned under the first venire facias, a tales is issued directing the persons named by the judge to be summoned, " who reside remote from the place where the felony was com- mitted." Held : The introduction of these words into the tales, if not required by the statute, is in accordance with the policy of the law, and does not invalidate the venire ; and in a venire facias sent to a distant city the insertion of these words is im- material. In Baccigalupo's Case { 33 Grat., 807, decided January, 1880, it was held: In a criminal prosecution for felonious stabbing with intent to kill, the first venire facias and the return thereon having been exhausted without getting a jury, it is not errror to insert in the second venire facias a direction that persons be summoned who reside remote from the place where the felony was committed. In MitchelVs Case, 33 Grat., 845, decided March, 1880. M. and two others are indicted for murder in the County Court of L., and on their arraignment they elect to be tried in the circuit court. A writ of venire is issued by the county court for the summoning of a jury, returnable to the circuit court, and the twenty- four men summoned by the county court are summoned to the circuit court. On the motion of the prisoner this venire is quashed by the circuit court, and the court directs another venire of twenty-four to be summoned, and names the twenty- four summoned on the first venire. Held: The directing the same twenty-four men to be summoned is not error. In ffichards's Case, 81 Va., 110, decided November 19, 1 it was held: In case where death may be the punishment, writ shall require to be summoned twenty-four persons of the county or corporation, to be taken from a list to be furnished by t fudge residing remote from the place where the offence charged to have been committed, and qualified in other res to serve as jurors. From these shall be selected a panel of teen free from exception, and from this panel the accused may 1070 CITATIONS TO THE CODE OF VIKGINIA. strike four, and the remaining twelve may constitute the jury. Omission to comply with these provisions is fatal error. In Honesty's Case, 81 Ya., 283, decided January 7, 1886, it was held : In a case where death may be the punishment, the writ shall require to be summoned twenty-four persons of the county or corporation, to be taken from a list to be furnished by the judge, residing remote from the place where offence is charged to have been committed, and qualified in other respects to serve as jurors. From these shall be selected a panel of six- teen, free from exception, and from this panel the accused may strike four, and the remaining twelve shall constitute a jury. In Lawrence's Case, 81 Va., 484, decided February 25, 1886, it was held : A man of color indicted for a felony is not entitled to demand to be tried by a mixed jury. In legal sense all parts of adjoining county are remote from scene of crime, where it is alleged it was committed within a corporation. When one juror has been summoned from too near the scene of crime, objection should be made to him and not to the array. In Coleman's Case, 84 Va., 1, decided November 17, 1887. The writ of venire facias commands sheriff to summon twenty- four persons from list to be furnished by county judge, and to have "there" this writ and the judge's list of said jurors, is fol- lowed in the record by the "list of venire" referred to above, and is signed by the name of the county judge with nothing to indi- cate his official capacity, and is endorsed "executed by sum- moning the within-mentioned parties" and signed by the sheriff. Held: The record conclusively shows that the persons were summoned from a list furnished and signed by the county judge. In Vawter's Case, 87 Va., 245, decided December 11, 1890, it was held : Ordering persons to be summoned without a writ of venire facias is ground for motion in arrest of judgment, though the objection was not made before the jury were sworn. In Robinson's Case, 88 Va., 900, decided March 17, 1892, it was held : Where the record is silent, this court will presume that an order to summon a grand jury was duly made. Objection is waived, when not made till after verdict, that without writ of venire facias grand jury was summoned from list furnished by the judge. Moreover, by Section 3978 a special grand jury may be summoned without such list. In Prince's Case, 89 Va., 330, decided September 22, 1892, it was held : Where a venire facias was issued for a jury for a trial during the term of each of three felony cases, including that of the defendant, and defendant was tried by a jury com- posed of persons thus summoned, held : Such proceeding suffi- ciently complies with Code. CITATIONS TO THE CODE OF VIRGINIA. 1071 A juror's residing at place of alleged commission of the offence charged cannot be availed of by challenge to the array, but by objection to the individual juror. In Clarke's Case, 18 Southeastern Reporter, 440, decided De- cember 7, 1893, it was held : Where in a criminal case a venire facias is ordered to be directed to the sergeant of another county to summon jurors, under the authority of Section 4024, it is not necessary that a list be furnished such officer, as is required by Sections 4018 and 4019, when jurors are summoned from the county in which the case is tried. SECTION 4019. In Williams 's Case, 85 Va., 607, decided January 10, 1889, it was held : Under this section, where persons from the bystanders are ordered to be summoned to complete the panel on trial of a felony, the Jist is not required to be signed by the judge. See the case of Clarke vs. The Commonwealth, 18 S. E. Hep., 440, cited supra, Section 4018. SECTION 4020. In Wormley's Case, 10 Grat., 658 and 684, decided April, 1853. The regular term of the court having been spent, and only one of the veniremen summoned to try the prisoner having been found free from exception, the court discharges him, and being of the opinion that jurors qualified to serve cannot be gotten in the county, makes an order directing the sheriff to summon thirty persons from each of two corporations, to attend as jurors for the trial of the prisoner at a special term of the court appointed to be held, and to which time the court ad- journs. Held: It was not necessary to have another venire facias for summoning jurors from the county returnable to the special term, before making the order to summon jurors from abroad; and there was no error in directing jurors to be sum- moned from two counties or two corporations at the same time. SECTION 4021. See Clare's Case, 8 Grat., 606, cited ante, Section 4018 ; see Montague's Case, 10 Grat., 767, cited ante, Section 4018. SECTION 4022. See Clare's Case, 8 Grat., 606, cited ante, Section 4018. SECTION 4023. In Gibson's Case, 2 Va. Cases, 111, decided by the General Court, November, 1817, it was held: If a jury cannot be formed from the original panel, nor from the bystanders, in conse- quence of the prisoner's challenges, the court may award a venire facias commanding the sheriff to summon a specified 1072 CITATIONS TO THE CODE OF VIRGINIA. number to attend the court then in session ; and, upon the re- turn of the process, the prisoner may be compelled to elect a jury, saving his right of challenge. Such process may be awarded on the report of the sheriff that there are no other by- standers. Nor will the court, at a subsequent time, hear proof that there were other qualified bystanders who had not been called. See Dowdy's Case, 9 Grat., 727, cited ante, Section 4018; see Bristow's Case, 15 Grat., 634, cited ante, Section 4018. The reference to 21 Grat., 571, is error; it should be 871; see ante, Section 4018. See Mitchell's Case, 33 Grat., 845, cited ante, Section 4018. In Hall's Case, 80 Ya., 555, decided June 18, 1885, it was held: The statutory provisions are imperative and essential. The accused is entitled to demand strict compliance with them. Omission of such compliance is error. In a case where death may be the punishment, the writ shall require to be summoned twenty-four persons of the county or corporation, to be taken from a list to be furnished by the judge, residing remote from the place w r here the offence is charged to have been committed, and qualified in other re- spects to serve as jurors. From these shall be selected a panel of sixteen, free from exception, and from the panel the accused may strike four, and the remaining twelve shall constitute the jury. In a felony case, where from those summoned and in attend- ance a sufficient number of jurors cannot be had, a new venire facias must be directed, requiring to be summoned from the bystanders, or from a list to be furnished by the court, as many persons as may be deemed necessary. Omission to direct a new venire facias, or omission of any statutory essential apparent on the face of the record, is error, and may be taken advantage of after the verdict by motion in arrest of judgment, failure of the accused to make the objection before the jury is sworn being no waiver. Cluverius's Case, 81 Va., 787, decided May 6, 1886, it was held : It is not error in the trial court to discharge a venireman who had previously expressed opinioDS repugnant to inflicting capital punishment on circumstantial evidence, or who had made a bet on the result of the trial. HaWs Case, 80 Va., 555, approved as to mode of selecting a jury. SECTION 4024. The reference to 7 Grat., 673, is an error. See Dowdy's Case, 9 Grat., 727, cited ante, Section 4018; see Wormleys Case, 10 Grat., 658 and 672, cited ante, Section 4020. In Chahoons Case, 21 Grat., 822, decided November, 1871, it CITATIONS TO THE CODE OF VIRGINIA. was held : The court before which a prisoner is arraigned for trial, if qualified jurors not exempt from serving cannot be con- veniently found in the county or corporation, may send to an- other county or corporation for such jurors ; and in acting in such a case the court must have a large discretion. See Sands's Case, 21 Grat., 871, cited ante, Section 4018. In Graffs Case, 24 Grat., 602, decided November, 1873, it wa& held : In directing jurors to be summoned from another county, the court may make an order directing its officer to summon them, or may direct the clerk to issue a venire facias requiring the officer to summon them. A corporation court has authority to direct jurors to be sum- moned from without the limits of the corporation for the trial of a prisoner indicted in that court, when an impartial jury can- not be obtained within the corporation. In the sense of the law all parts of the adjoining county out- side of the limits of the corporation are remote from the place where the offence is alleged to have been committed, if it is al- leged to have been committed within the limits of the corpora- tion. Where jurors are directed to be summoned from an ad- joining county, and it appeared that one of the panel had been summoned by mistake or misapprehension of the law or otherwise from a place near to instead of remote from the vicinage, the objection, if valid, instead of being made to the array of jurors, should be made to the individual juror summoned. See Page's Case, 27 Grat., 954, cited ante, Section 3894; see Clarke's Case, 18 S. E. Eep., 440, cited ante, Section 4018. SECTION 4025. In Bennett's Case, 8 Leigh, 745, decided by the General Court, December, 1837, it was held: The sheriff is ex-ojficio bound to- keep the jury when adjourned in a criminal cause, and it is not indispensably necessary that he should be sworn, but if it were necessary to swear him, it would be presumed that he was sworn, in a case where the record does not show the contrary. In McCarter's Case, 11 Leigh, 633, decided by the General Court, June, 1841. Upon trial of indictment for murder the jury not agreeing on a verdict, are, after dark, adjourned over till next morning, and committed to two sheriffs to be inclosed in a room to be prepared for them ; in conducting them from the courthouse to their room, one juror separates from his fellows, gets twenty-five yards from them and the sheriffs having th.-m in charges tells a servant whom he meets to take care of his horse, say nothing else to any one, and no one speaks to In in : he is immediately pursued by one of the sheriffs and brought back to the rest of the jury, his separation does not exc. minute, and he was a yet shorter time out of sight of the sli- 63 1074 CITATIONS TO THE CODE OF VIRGINIA. Next morning the jury finds the prisoner guilty of murder in the first degree and court passed sentence of death. Held: Such separation of the juror from his fellows is no cause for setting aside the verdict. In TooeVs Case, 11 Leigh, 714, decided by the General Court, December, 1841, it was held : In impaneling for trial of an in- dictment for felony, there is no necessity to keep the jurymen who have been elected and sworn together and separate from other persons, under charge of the sheriff, until the whole num- ber shall be elected and sworn. In impaneling a jury for trial of an indictment for felony, eight are elected and sworn, and three elected but not sworn; one who has been sworn separates from the rest, goes some miles off and stays some hours ; the other ten are put in charge of the sheriff, to be kept together and separate from other per- sons till ensuing morning; upon attachment against the ab- sconding juror, he is taken the same night and put and kept in the same room with the other jurymen till next morning, but there appears to have been no conversation on the subject of the prosecution ; next morning, by allowance of the court, this juryman is challenged by the prisoner for cause, and set aside ; the jury is then completed, and find the prisoner guilty. Held : The separation of the absconding juror from his fellows, and his subsequent association with them, though he was afterwards struck from the panel, does not vitiate the verdict, and is no good reason for a new trial. After a juryman has been elected and sworn, the court may, in its discretion, allow the prisoner to challenge him for cause, and strike him from the panel. In Williams' s Case, 2 Grat., 567, decided December, 1845, it was held, by the General Court : On a trial for felony, the court has no authority to discharge the jury without the consent of the prisoner, merely because the court is of opinion that the jury will not be able to agree. There must be a necessity for the discharge of the jury to authorize it. If the court impro- perly discharge the jury without the consent of the prisoner, he is entitled to be discharged from the prosecution. The practice of finally adjourning the court, without noticing the jury, whereby it is discharged by operation of law, or of discharging them simultaneously with the final adjournment of the court, approved. In Thompson's Case., 8 Grat., 637, decided December, 1851, by the General Court: A juror called by the prisoner as a wit- ness, states that on a certain morning during the progress of the trial, before the rest of the jury had risen, he rose, dressed himself and went down stairs to the pavement before the door of the hotel where the jury were lodged for the night, for the CITATIONS TO THE CODE OF VIRGINIA. 1075 purpose of meeting with a passer-by to send a message to his family, and after remaining there about five minutes and seeing no one passing, he returned to the rest of the jury. Held : That the only proof of separation of the jury being that of the juror, the prisoner's witness, who negatives all abuse, tampering or improper influence, the act of the juror is not sufficient grounds for setting aside the verdict and granting a new trial. In the progress of a trial which lasts several days, upon the adjournment of the court at night the jury are committed to the sheriff to be kept until next day. The most convenient and suitable accommodation which can be provided for the jury is in the third story of a large hotel, where they are placed in five different rooms opening upon a common passage which com- municates with the street below by flights of stairs, the doors of their chambers being unlocked during the night, the jurors being unwilling to have them locked from apprehension of fire during the night, and there being no doors or other fastenings at either ends of the passage. Held : This is not a separation of the jury for which the prisoner is entitled to a new trial. In the morning before the court meets, the jury are walking out, accompanied by the sheriff, for relaxation and exercise, and pass the boundary line separating the county in which the trial is progressing from an adjoining county, and remain in the adjoining county a few minutes, but there is no separation or communication with any one by any of the jurors. Held : This is not a separation of the jury, and the prisoner is not entitled to a new trial. A jury in a criminal trial concur in opinion as to the guilt of the prisoner, but differ as to the length of time for which he should be sentenced to the penitentiary; and they agree that each one shall state the time for which he will send him to the penitentiary, and that the aggregate of these periods, divided by twelve, shall be the verdict. After it is done they strike off the odd months, and all agree to the verdict, understanding what it is. Held : This is not misbehavior in the jury for which the verdict will be set aside and a new trial awarded. Is is not misbehavior in a juror between the adjournment of the court in the evening and its meeting next morning to drink spirituous liquors in moderation. A medical witness for the Commonwealth being accidentally present at the hotel when the jury are brought there by the sheriff to be lodged for the night, invites the jury, in the presence of the sheriff, to drink with him, and some of them accept the invitation. The act was inadvertent, but intended only as an act of courtesy, and it was all in the presence of the sheriff. This is not sufficient to set aside the verdict and award a new trial. 1076 CITATIONS TO THE CODE OF VIRGINIA. In Trim's Case, 18 Grat., 983, decided January, 1868, it was held : On a trial for murder, during a recess, the jury is com- mitted to the keeping of the high-sheriff, who is sworn to keep them, but his deputy is not sworn. The high-sheriff goes out with a part of the jury, leaving the others in the jury-room with the deputy, and with the door locked or closed. This is not misconduct of the jury which will entitle the prisoner to a new trial. In Phillips 's Case, 19 Grat., 485, decided November 4, 1868, it was held : The authority of a judge, who presides at a crimi- nal trial, extends over the jury not only during the day while they are in court, but after the adjournment for the day; and it is not illegal or improper for the judge to take charge of a juror in the temporary absence of the sheriff to whom the jury has been committed. Separation of a juror out of the custody and control of the officers having charge of the jury, is prima facie sufficient to vitiate the verdict ; and it is incumbent on the Commonwealth to refute that presumption by disproving all probabilities or sus- picions of tampering. In Bead's Case, 22 Grat., 924, decided December 11, 1872, it was held : On the trial of a prisoner for a felony, which lasts several days, the sheriffs are sworn to keep the jury and not allow them to be spoken to, or to speak to them themselves in relation to the case. In the progress of the trial one of the deputies is called by the Commonwealth, and gives evidence of a fact which had occurred in his presence, and the same fact had been proven by other witnesses. This is not sufficient ground for setting aside the verdict. In Jones's Case, 31 Grat., 830, decided November, 1878, it was held : The statute having dispensed with the necessity of keep- ing the jury together in prosecutions where the penalty cannot be death or confinement in the penitentiary for ten years if the jury in prosecution for malicious stabbing, etc., with intent to kill, etc., find the prisoner guilty of unlawful cutting with intent, etc. Upon a motion to set aside the verdict and grant a new trial on the ground of the separation of the jury before the ver- dict was rendered, the court is not bound to set aside the ver- dict for that cause, if it approved the verdict and is satisfied it is fairly and honestly rendered, and that neither the Common- wealth nor the prisoner had been damnified by the separation. Upon a motion to set aside the verdict on the ground of the separation of the jury, the prisoner must prove the separation by affidavits or proof in court, and the offer to prove, which the court refuses under the circumstances to hear, is not sufficient to enable the appellate court to act on the question. The ex- ception should show the proof. CITATIONS TO THE CODE OF VIEGINIA. 1077 In Jones'* Case, 79 Va., 213, decided July 24, 1884, it was held : Where the offence tried is not punishable with death or ten years confinement in the penitentiary, an objection that the jury was allowed to separate has no merit, th.ough the court may have ordered that they be boarded at a hotel during the trial. SECTION 4026. In fell's Case, 9 Leigh, 613, decided by the General Court, June, 1838, it was held: In any criminal case, whether capital or other, the court has power for good cause to discharge the jury and put the accused upon his trial before a new jury. Such power held to have been properly exercised in a capital case where the jury had been kept together for nine days with- out agreeing on a verdict, and the health of one df the jurors was suffering from confinement, while the personal attentions of another juror were required by the situation of his wife. Williams' s Case, 2 Grat., 567, is given supra, Section 4025. In Dye's Case, 7 Grat., 662, decided June, 1851, by the General Court, it was held : If it does not appear on the record that the defendant objected, it will be presumed in the appel- late court that the court below discharged the jury impaneled and sworn in the case for sufficient cause, and with the consent or acquiescence of the defendant. In cases of misdemeanor, the court has authority to discharge without or against the con- sent of the defendant. The reference to 32 Grat., 872, is to a case in which the stat- ute is not construed, but only quoted as a final disposition of questions raised. SECTION 4027. In Me WJdrfs Case, 3 Grat., 594, decided June, 1846, by the General Court, it was held : Where several persons are pro- ceeded against jointly for a felony before an examining court, and are sent on to the superior court for trial, the clerk of the county court should issue a separate venire facias for summon- ing a venire for the trial of each of them separately. Hence the statute. The reference to 18 Grat., 981, does not apply to the Code of 1887 ; it was a construction of a previous act. In Jones's Case, 31 Grat., 836, decided November 14, 1878, it was held: Where two persons are indicted jointly for con- spiracy to prosecute another for larceny, neither of them is en- titled to a separate trial. In such case, both the defendants having been found gu one of them applies for a new trial, which is overruled, and he obtains a writ of error. The other does not apply for a new .trial, and there is a judgment against him. The judgment may 1078 CITATIONS TO THE CODE or VIRGINIA. be reversed as to the one who appeals, without reversing the judgment against the other, who did not apply for a new trial. SECTION 4028. The reference to 7 Grat., 619, is an error. SECTION 4029. See McWhirfs Case, 8 Grat., 594, cited ante, Section 4027; see Currans Case, 7 Grat., 619, cited ante, Section 4028. The reference to 18 Grat., 981, does not apply to the Code of 1887 ; it was a construction of a previous act. In Lewis and Divinney's Case, 25 Grat., 938, decided De- cember 10, 1874, it was held: Where two persons have been indicted jointly for a misdemeanor, they cannot claim any right to be tried separately. SECTION 4036. In Vance's Case, 2 Va. Cases, 162, decided by the General Court, June, 1819, it was held : The venue being changed from the county of R. to that of W., a plea that the murder was com- mitted in R., and that, therefore, the court of W. has no juris- diction, is bad on demurrer. Nor can the array of the jury be challenged because they were summoned by the sheriff of W. A prisoner having been arraigned, and having pleaded in the county in which the offence was committed, need not be ar- raigned, nor be required to plead, in the county to which the venue is changed. In the case of Boswell vs. Flockheart t 8 Leigh, 364, decided May, 1837, it was held : An application by a defendant for a change of venue, on the ground of general prejudices existing against him in the town where the cause is to be tried, should be supported by the affidavits of disinterested individuals. See Wormley's Case, 10 Grat., 658, cited ante, Section 4020. In Wrights Case, 33 Grat., 880, decided July, 1880. Upon an application of the prisoner to change the venue, upon the ground that an impartial jury cannot be had in the county, the application is refused, and a jury is obtained in the county. Held : If the prisoner feared that he could not get an impartial jury in the county, he should first have asked that the jurors should be sent for from another county ; and he not having done this, and an impartial jury having been, in fact, obtained, the appellate court will not set aside a verdict for the refusal of the court to change the venue. See Joyce's Case, 78 Va., 287, cited ante, Section 4016. SECTION 4037. In Vance's Case, 2 Va. Cases, 162, decided by the General CITATIONS TO THE CODE OF VIRGINIA. 1070 Court, June, 1819 : It was held : If a prisoner has been tried and convicted of a crime, and a new trial awarded to him, al- though he should not be again tried till after the third term (subsequent to his examination) he is not entitled to a discharge. SECTION 4038. In Vance's Case, 2 Va. Cases, 162, decided June, 1819, by the General Court, it was held : This section does not require the clerk to certify of the record of the examining court. SECTION 4039. In the case of Boswdl vs. Flockheart, 8 Leigh, 364, decided May, 1837, it was held : When a judge of the circuit court is so situated to render it improper in his judgment for him to pre- side at the trial of a cause, the statute makes it lawful for him to remove the cause to another circuit. In such case, however, the propriety of removing or refusing to remove depends upon the selfconsciousness of the judge, and an appellate court can- not revise his decision. SECTION 4040. In Kirk" a Case, 9 Leigh, 627, decided by the General Court, December, 1838, it was held : Where a verdict finds a prisoner guilty upon some of the counts in an indictment, saying no- thing of others, judgment of acquittal should be entered upon those counts of which the verdict takes no notice. In Hardy <& Curry's Case, 17 Grat., 592, decided January 26, 1867, it was held, pp. 599 and 615 : When assault is a necessary ingredient of a felony charged, the prisoner may be acquitted of the felony and convicted of the assault. See Canada's Case, 22 Grat., 899, cited ante, Section 3671. In Page's Case, 26 Grat., 943, decided April 1, 1875, it was held : An indictment for felony contains three counts, and the trial of the prisoner he is found guilty on the third count He is entitled to a judgment of acquittal on the first and sec< *lb Stuarts Case, 28 Grat., 950, decided July 26, 1877, it was held- It is settled law in this State that where there are sevei counts in an indictment, and the jury find the accused guilty upon one of the counts, saying nothing as to the oth verdict operates as an acquittal upon the counts of whic verdict takes no notice, and the court should enter a judgm nuc a case if the accused applies for and obtains a new trial he does not thereby waive the advantage of the acquitl thus obtained ; but he must be tried, and can only be tri. 1 1080 CITATIONS TO THE CODE OF VIRGINIA. on the count on which he was convicted, and not on the counts on which he has been before acquitted ; and the rule is the same whether the new trial is granted because the verdict is contrary to the evidence, or because the verdict is so defective or uncer- tain, that legally no judgment can be pronounced thereon. In Briggs's Case, 82 Va., 554, decided November 18, 1886, it was held : So much of this section as declares that, " If a ver- dict be set aside on the motion of the accused and a new trial l>e awarded, on such new trial the accused shall be tried, and such verdict may be found and sentence pronounced as if a iormer verdict had not been found," is not unconstitutional. On indictment for murder at first trial accused is convicted of murder in the second degree, and gets verdict set aside, at the second trial he pleads that he has been before acquitted of murder in the first degree by virtue of his conviction of murder in the second degree, and moves that the jury be instructed to exclude a finding of murder in the first degree. It is not error to reject the plea nor to deny the instruction. This is the case cited from 11 Va. Law Journal, 139. In Prather's Case, 85 Va., 122, decided July 19, 1888, it was held : On motion to set aside a verdict of conviction and award a new trial in a criminal case, the sole question is, is the verdict plainly insufficient to support the verdict? In Muscods Case, 86 Va., 443, decided January 9, 1890, it was held: The accused is entitled to a full and correct state- ment of the law applicable to the evidence in his case, and any misdirection by the court in point of law on matters material to the issue, is ground for a new trial. SECTION 4041. Reference to 2 Va. cases, 210, is error. SECTION 4042. Livingstone's Case, 14 Grat., 592, is a query as to whether, on indictment for murder, verdict of manslaughter on second trial, a verdict of higher grade than manslaughter may be entered; since decided that it can not. See Hardy & Curry's Case, 17 Grat., 592, cited ante, Section 3674 ; see Canada's Case, 22 Grat., 899, cited ante, Section 3671; see HobacKs Case, 28 Grat., 922, cited ante, Section 3671. SECTION 4043. See Poindexter's Case, 6 Rand., 667, cited ante, Section 3707. The reference here given to 1 Leigh, 625, is an error, as 1 Leigh has not that number of pages. CITATIONS TO THE CODE OF VIRGINIA. 1081 SECTION 4044. See Hardy & Curry's Case, 17 Grat., 592, cited ante, Section 3674. In Glover's Case, 86 Va., 382, decided November 21, 1889, it was held: Refusal to instruct jury that, if they believe from the evidence that prisoner intended to commit a felony, but be- fore committing it voluntarily abandoned it, they were to find him not guilty, and instructing them that on an indictment for felony prisoner might be found guilty of an attempt to com- mit a felony. Held : Not error. SECTION 4045. See Kirk's Case, 9 Leigh, 627, cited ante, 4040. In Page's Case, 9 Leigh, 683, decided by the General Court, December, 1839. An indictment (described in the record of the finding and in the entry of the arraignment as an indict- ment for forgery) contains : First, a count for forging and coun- terfeiting a note ; and second, a count for feloniously using and employing as true a counterfeit note. Verdict finds the prisoner guilty of forgery, as alleged in the indictment. Held : An ac- quittal must be entered on the second count. In Mowbrays Case, 11 Leigh, 643, decided June, 1841, by the General Court, it was held: The rule of practice in criminal cases, that if an indictment contain several counts, some good and others faulty, and a general verdict of guilty be found, the bad counts will not affect the validity of the good, and judgment will be given on those which are good, is not applicable to cases of penitentiary crimes in Virginia, where the jury is to ascertain the term of imprisonment, since the evidence on the bad counts may aggravate the punishment imposed by the verdict. In Clere'8 Case, 3 Grat., 615, decided December, 1846, by the General Court. An examining court sends on a prisoner to the superior court to be tried for the larceny of a slave. The in- dictment against him in the superior court is not only for the larceny, but for carrying the slave from one county to another, without the master's consent, and with intent to defraud him; and also for aiding and enticing the slave to abscond It is error. If the indictment includes offences for which the prisoner has not been tried and sent on by the examining court for far- ther trial it is error, and the court should, upon the motion o the prisoner, quash the counts of the indictment which chat these offences. The common-law rule, that a good count 111 tin- indictment, where the other counts are bad, will support a general venlu-t of guilty, is overruled in Virginia as to offences winch are pu ishable by confinement in the penitentiary. 1082 CITATIONS TO THE CODE OF VIRGINIA, In Shifflefs Case, 14 Grat., 652, decided March 9, 1858, it was held, p. 672 : If it appears from the record returned with the certiorari that the prisoner had appeared, and that the court had, on his motion, quashed one of the counts in the indictment, though on his trial he pleaded to the whole indictment, and was tried on the count which was quashed as well as on the others, yet this is not cause for reversing the judgment. See Canada's Case, 22 Grat., 899, cited ante, Section 3671. See Page's Case, 26 Grat., 943, cited ante, Section 4040. See Stuarts Case, 28 Grat., 950, cited ante, Section 4040. In Richards' 8 Case, 81 Va., 110, decided November 19, 1885, it was held : When of two counts the second is bad, but jury finds a general verdict of guilty, and fixes a punishment that should not be fixed under the first count, the verdict must be set aside, and a new trial awarded. Accused is entitle to acquittal under the first count, as the verdict must have been under the second. SECTION 4046. In Kemp's Case, 18 Grat., 969, decided January, 1868, it was held : Several prisoners having been tried together for the same felony, and found guilty, the court may grant a new trial to one of them, and render a judgment against the others. In Jones's Case, 31 Grat., 836, decided November 14, 1878, it was held : On an indictment for conspiracy the jury cannot find either party guilty unless they believe from the evidence that there was an agreement of mind between the two to do and perform the matters and things as charged in the indictment. SECTION 4047. See Vance's Case, 2 Va. Cases, 162, cited ante, Section 3737. In Ex-parte Santee, 2 Va. Cases, 363, decided by the General Court, November, 1823, it was held: The word "term" ought to be construed to mean not the stated time when a court should meet, but the actual sessions of the court. In Cawoods Case, 2 Va. Cases, 527 (erroneous reference to 546), decided by the General Court, June, 1826, it was held: If after the prisoner has been examined by the county court for an offence, two actual sessions of a superior court thereafter occur, and it does not appear from the records of the superior court that an indictment has been found against him, he is entitled under our statute to be discharged from imprisonment, although he has been in fact arraigned on and has pleaded to an indict- ment not appearing by the record to have been found by the grand jury, and if a third actual term has passed without such record of the finding, he is entitled under the statute to be dis- charged from the crime. CITATIONS TO THE CODE OF VIRGINIA. 1083 In Green's Case, I Kob., 736 (2d edition, 791), decided by the General Court. A. prisoner charged with felony being indicted at the term of the circuit court after his examination, the case is continued at that term for the want of time to try it. At the second term the case is continued on the motion of the prisoner upon the ground of the absence of a material witness for him. At each of the three succeeding terms the case is again continued for the want of time to try it. Held : That upon the expiration of the last of the five terms, the prisoner became entitled under the statute to be forever discharged of the crime imputed to him. In BelCs Case, 8 Grat., 600, decided December, 1851, by the General Court, it was held : A prisoner being sent on for further trial by an examining court which sat during the session of the circuit court to which he is sent for further trial, that term of the circuit court is not one of the two at which the statute directs that he shall be indicted or that he shall be discharged from imprisonment. In Adoctfs Case, 8 Grat., 661, decided December, 1851, by the General Court. A prisoner is indicted for embezzling the goods of W., and at the fifth term after he was examined for the offence he is tried and convicted, but the verdict is set aside for a variance between the allegation and the proof as to the ownership of the goods, and the case is continued. At the next term of the court the attorney for the Commonwealth enters a nolle prosequi upon the indictment, and the prisoner is indicted again for the same offence ; the indictment being in the first count as in the former indictment, and another count charging the goods embezzled to be the goods of A. Upon h arraignment he moves the court to discharge him from the offence, on the ground that three regular terms of the court har been held since he was examined and remanded for trial with- out his being indicted. The attorney for the Commonwealth opposes the motion, and offers the record of the proceedings of the circuit court upon the first indictment to show that he nac been indicted, tried, and convicted, which was objected to the prisoner. Held : The record is competent, apd competent evidence upon the question. The second indictment being for the same act of ernbe as the first, and the prisoner having been indicted, toed, a convicted in time, and the verdict set aside for the vai the second indictment was proper and in time ; and the pn is not entitled to be discharged. The exceptions or excuses for failure to try the priJ enumerated in the statute, are not intended to exclude others a similar nature, or in pan rf>u', but only that if the Ooi monwealth was in default for three terms without any of 1084 CITATIONS TO THE CODE OF VIRGINIA. excuses for tlie failure enumerated in the statute, or such like excuses fairly implicable by the courts from the reason and spirit of the law, the prisoner should be entitled to his dis- charge. In Jones's Case, 19 Grat., 478, decided October 17, 1868. In September, J. is committed to be tried for a felony at the Octo- ber term of the county court, and at that term of the court an information is filed against him, and he elects to be tried in the circuit court, and is remanded for trial in that court. He re- mains in jail until the April term of the court, 1868, no indict- ment having been found against him. The grand jury terms of the county court are November and June. At the April term of the circuit court, after the grand jury has been discharged, he applies for a writ of habeas corpus to obtain his discharge. Held: Having been committed for trial in the county court, that is the court in which he is held to answer in the sense of the statute, though he may have been remanded for trial in the circuit court; and he should be indicted in the county court. The second term of the court spoken of in the statute is the second term at which a grand jury is directed to be summoned. If it was so that the prisoner was held to answer in the circuit court, that would not be until he was remanded to that court ; and therefore, though the prisoner was committed for trial in the county court, before the September term of the circuit court, that could not be one of the two terms spoken of by the statute. And if the November term in the county could be connected with the April term in the circuit court, still, though the grand jury at the April term had been discharged before the application for the writ, the judge might have ordered another grand jury to be summoned during the term, and therefore the term could not be counted as one of the terms until it was ended. In Sands's Case, 20 Grat., 800, decided January, 1871, it was held : The three terms spoken of in the act are three terms after that at which the prisoner is first held for trial: And though a prisoner has been arrested and committed to jail, or gives bail to appear, or does appear, or is brought into court on the first day of a term of a court, that term is not to be counted as one of the three terms aforesaid. In HalVs Case, 78 Va., 678, decided March 13, 1884. H. was examined before a justice of the peace for felony, May 9, 1883, and was remanded for trial in the Hustings Court of D. That court held terms May 10 and June 4, 1883, at both of which grand juries were impaneled. But H. was indicted for the said felony not until October, 1883. Failure to indict did not arise from any of the causes excepted in the statute. To the indict- ment H. filed a special plea in bar, which was rejected. On CITATIONS TO THE CODE OP VIKGINIA. 1085 error, held : The plea is good, and H. is entitled to his dis- charge from imprisonment. In Smith's Case, 85 Va., 924, decided March 21^ 1889. The prisoner plead that he had been held for trial more than four terms after indictment. Replication that during that period prisoner had been convicted, and the conviction reversed; and that he had been held, till reversal, for punishment, not for trial. Held : Sufficient. In Davis 1 s Case, 89 Va., 132, decided June 23, 1892, it was held : Code, Section 4047, providing that accused shall be tried within four terms of the county court after indictment, is satis- fied by trial at the fourth term after he was indicted. CHAPTEE CXCVIII. SECTION 4050. In Crowes Case, I Va. Cases, 125, decided by the General Court, it was held: The right of appeal does not extend to criminal cases, or prosecutions by indictment in behalf of the Commonwealth. In Vawter's Case, 1 Va. Cases, 127, decided by the General Court, it was held : No appeal or writ of mpersedeas is grant- able in any case wherein the Commonwealth is plaintiff upon a penal statute which is considered in the nature of a criminal prosecution. L In Temple's Case, 1 Va. Cases, 163, decided by the General Court, it was held : No judgment of an inferior court on a pre- sentment for a misdemeanor can be reviewed and reversed by a superior court either upon appeal or superseded*, the common- law writ of error being the only way in which such judgments can be reviewed and reversed, which writ of error may issue without any regard to the costs, or the value of the judgment, and without the assent of the attorney for the Commonwealtl See Page vs. Clopton, 30 Grat., 415, cited ante, Section 3 35. SECTION 4052. In Harrison's Case, 2 Va. Cases, 202, decided by the General Court, it was held : No writ of error lies for the Commonwealth in a gaming or any other criminal case. In White vs. King & McCall, 5 Leigh, 726, decided July, 18, it was held: An act of assembly empowers a county court to issue a writ of ad quod damnum, and to give leave to an i vidual to make a dam across a river which is a public highway, as if it was not a public highway, provided he shall not be en- titled to the benefit of the act unless he make in his tan and keep in repair a lock or slope for the passage of fish, boa and the act constitutes the county court judge of the suffi 1086 CITATIONS TO THE CODE or VIRGINIA. of the lock or slope, with power to abate the dam as a nuisance, if, after three months notice, entered of record, the lock or slope shall in its opinion be insufficient ; the dam is erected by leave of the court, notice is given by two individuals and entered of record of a motion to abate the dam as a nuisance, because raised higher than authorized, and because of no sufficient lock or slope, and on that motion the county court orders the dam to be abated as a nuisance, and the circuit superior court affirms the order. Held : This is a criminal prosecution, and a writ of error lies from this court to the order of the circuit court affirm- ing the order of the county court. In Abraham 's Case, 11 Leigh, 675, decided by the General Court, December, 1841, it was held : The General Court has no jurisdiction to award a writ of error to a refusal of a judge of a circuit superior court in vacation to award a writ of error to a judgment of an inferior court; nor has this court jurisdiction to award a writ of error to an inferior court. In Scott's Case, 10 Grat., 749, decided November 23, 1853, it was held, p. 754 : In a prosecution for selling ardent spirits at retail to be drunk at the place where sold, without having first obtained a license to keep an ordinary, a writ of error lies for the Commonwealth from the judgment of an inferior court. In Lewis (& Diviney's Case, 25 Grat., 938, decided December 10, 1874, it was held : On a trial for a misdemeanor in a county court, there is a verdict and judgment against the defendants, and they take the case to the circuit court where the judgment is reversed, and the cause retained for a new trial. There may be a writ of error to the court of appeals from the judg- ment of the circuit court. SECTION 4053. In Stokely's Case, 1 Va. Cases, 330, decided by the General Court, it was held : The superior court of law of a county has jurisdiction of appeals from judgments for contempt of court rendered in the county court. Dandridgds Case, 2 Ya. Cases, 408, decided by the Gen- eral Court, June, 1824, was appealed by the defendant from the district circuit court to the General Court. In Wells's Case, 21 Grat., 500, decided November, 1871, it was held : An appeal may be taken to the court of appeals from the judgment of the circuit court imposing a fine upon a person for a contempt of the court, in aiding to obstruct the execution of a decree of the court. SECTION 4055. In Lazier's Case, 10 Grat., 708, decided July, 1853, it was held : A writ of error awarded during term to a judgment in a case of felony may be made returnable to any day of the term. CITATIONS TO THE CODE OF VIRGINIA. 1087 SECTION 4056. In Connor's Case, 2 Va. Cases, 30, decided by the General Court, November, 1815, it was held : A writ of error in a crimi- nal case does not of itself have the effect of a supersedeas, in each case the court will direct by an endorsement that it shall have that effect if it be proper. SECTION 4058. This reference, 2 Va. Cases, 122, is to a case which is so vague that no authority can be derived from it. In Brook's Case, 4 Leigh, 669, decided by the General Court, July, 1833, it was held : A circuit superior court not averting to the statute of 1832-'33, sentences a convict to solitary confine- ment in the penitentiary for one-sixth of the term of imprison- ment fixed by the verdict ; judgment reversed for this cause, but the General Court proceeds to enter judgment, that the solitary confinement shall be one-twelfth of the term, according to that statute. The reference to 2 Grat., 538, is an error. In Nemo's Case, 2 Grat., 558, decided June, 1845, it was held by the General Court : The statute gives no authority to the General Court to correct the judgment of an inferior court. In Marshall's Case, 5 Grat., 663, decided June, 1848, by the General Court, it was held : On an indictment for unlawful stabbing under the statute of Virginia, a verdict of "guilty of unlawful stabbing" will not authorize a judgment, but the court should direct a new trial. In Old 1 * Case, 18 Grat., 915, decided October, 1867, it was held : Where the presentment does not charge the offence, the appellate court will reverse the judgment against the accused, though no motion in arrest of judgment was made in the court below. Where a pecuniary judgment has been rendered against a defendant in a criminal case, and he pays it, and upon appeal the judgment is reversed, the cause will be remanded to the court below for an order of restitution to be made therein, if the money is yet in the hands or in the power of the court. In Chahoons Case, 21 Grat., 822, decided November, 1871, it was held : A point in the cause in which the judges of the court of appeals are equally divided stands affirmed by virtue of the act, as well where it is a ruling of the court below in the pro- gress of the cause as where it is the final judgment of the court in the case; and this decision is final and irreversible, and can- not be changed upon a second appeal in the cause. SECTION 4071. In Quinines Case, 2 Va. Cases, 494, decided by the General Court, June, 1826, it was held : If a defendant against whom a 1088 CITATIONS TO THE CODE OF VIRGINIA. judgment has been rendered for a fine or amercement in a pro- secution for a misdemeanor, being in custody under a capias pro fine or a capias ad satis faciendum, take the oath of an in- solvent debtor, surrendering his property, and be thereupon discharged, such discharge is an exoneration from all further liability on such judgment as to said fine or amercement. No other ca. sa. can afterwards be obtained against him, by motion to the court or otherwise, nor can a fi. fa. be issued against his after- acquired goods and chattels. SECTION 4074. In Webster's Case, 8 Grat., 702, decided June, 1852, by the General Court, it was held : Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from imprisonment. But the term of his imprison- ment under such capias is limited by the provision in the Code. In Wilkerson (Sheriff) vs. Allan, 23 Grat., 10, and p. 20, de- cided January 22, 1873, it was held : A. is indicted for a mis- demeanor, and the jury find him guilty and assess his fine at five hundred dollars, and the court sentences him to be im- prisoned for four months and until he pays the fine. The governor remits so much of the sentence as orders A.'s im- prisonment for four months, and the jailer discharges him from custody. The Commonwealth then sues out a capias pro fine, under which A. is taken into custody by the sheriff; and he then applies for a writ of habeas corpus, and asks for his dis- charge. Held: The governor has no authority to remit the fine, and does not intend it by his pardon. The effect of the pardon was to remit the four months imprisonment, but it did not affect the remaining part of the judgment. The discharge of A. by the sheriff did not discharge his liabiliiy for the fine to the Commonwealth ; and he may be taken in execution by a capias pro fine. SECTION 4076. In Shiffletts Case, 18 Southeastern Keporter, 838, decided Jan- uary 11, 1894, it was held : It is not error to enter a judgment calling for imprisonment in jail, in the absence of defendants charged with a misdemeanor, the rule of the common law re- quiring their presence having been changed by Code, this section. CHAPTEE CXCIX. SECTION 4081. In St. Claire's Case, 1 Grat., 556, decided December, 1844, by the General Court. In a prosecution for a misdemeanor at the instance of a voluntary prosecutor, the defendant files a plea in abatement, that one of the grand jurors who found the indictment was not a freeholder ; and the issue made upon that CITATIONS TO TBE CODE OF VIRGINIA. 1089 plea is found for the defendant, and the indictment quashed. Held: The courts should give judgment for the costs against the prosecutor. SECTION 4087. In Webster's Case, 8 Grat., 702, decided June, 1852, by the General Court, it was held : Where there is a judgment in favor of the Commonwealth for a fine and costs of prosecution, the writ may issue for the fine and the costs ; but where the judg- ment is for costs without a fine, the writ is not a proper process to enforce the judgment. In Angled s Case, 10 Grat., 696, decided April, 1853. A per- son convicted and sentenced for felony is afterwards pardoned by the executive, releasing him from all pains, penalties, and forfeitures incurred in his prosecution by the Commonwealth. The statute only subjects the prisoner for such costs as the Commonwealth is bound to pay, and, therefore, does not em- brace the fees of the clerks, sheriffs, or attorneys for the Com- monwealth. Held : That the pardon did not release him from these costs. In finch's Case, 14 Grat., 643, decided January 27, 1858, it was held: A prisoner convicted of a felony, and obtaining a writ of error to the court of appeals, where the judgment is af- firmed, is not responsible for the fees of the clerk or the attor- ney-general. CHAPTER CC. SECTION 4090. In Scoffs Case, 10 Grat., 749, decided October, 1853, it was held, p. 755 : The presentment in such a case describes the de- fendant as a free negro. As, for this offence, white persons, In- dians, and free negroes are to be prosecuted and punished in the same manner, a plea that the defendant is an Indian and not a free negro is an immaterial plea, and was properly ex- cluded. SECTION 4093. See Craig's Case, 6 Hand., 731, cited ante, Section 3965 ; see Bias vs. Floyd (Governor), 7 Leigh, 640, cited ante, Section 3965. In Welling* s Case, 6 Grat., 670, decided December, 1849, by the General Court, it was held: The county court has the au- thority to require a party to enter into a recognizance to keep the peace, at least where the proceeding was commenced before the act of 1848. In Archer's Case, 10 Grat., 627, decided January, 1854, it was held: In the case of a scire facias against a bail upon a r. nizance in a case of felony, a plea which alleges that at tin- tiim- the recognizance was entered into the principal was by law ac- quitted and discharged of the said several supposed offences of 69 1090 CITATIONS TO THE CODE OF VIKGINIA. which he stood charged presents no defence for the bail ; and this, whether the plea is to be considered as averring an acquit- tal of the principal upon the trial had, or discharged by opera- tion of law for the failure to try him within three terms of the court. In such case that at the time of entering the recognizance the principal was unlawfully imprisoned by the Commonwealth, and detained in prison until by force and duress of imprisonment he and his security entered into the cognizance, presents no defence for the bail. Where a recognizance has a condition to do some act for the doing of which an obligation may be properly taken, and the court or officer taking it had the authority of law to act in cases of that general description, the recognizance is valid, though it does not recite the special circumstances under which it was taken ; and in declaring upon such a recognizance it is not neces- sary to aver the existence of the particular facts which show that the court or officer had authority to take it. The condition of the recognizance being that the principal shall make his appearance on the first day of the next term of the court to which he was recognized, but that the judge who presided on the first said day of the court would not sit in his case or make any order therein, does not present a defence for the bail. A plea that a previous prosecution against the principal for the same offences to which, by the recognizance he had under- taken to appear, had been terminated by a nolle prosequi pre- sents no defence to the action. See Gedney's Case, 14 Grat., 318, cited ante, Section 3965. SECTION 4097. In the case of Randolph (Governor) vs. rown et als., 2 Va. Cases, 351, decided by the General Court, June, 1823, it was held : A recognizance has been entered into by the defendant to keep the peace generally, and particularly towards J. S. The sci. fa. issued on this recognizance merely set forth that the de- fendant had failed to perform the conditions of the said recog- nizance. This sci. fa. is defective in not stating how, or in what, he had broken his recognizance, and it ought to be quashed. In the case of Garland vs. Ellis, 2 Leigh, 555, decided March, 1831. A demurrer to a sci. fa. upon a recognizance of special bail is regular practice. In a joint action of debt against three obligors, three persons severally undertake, by several recogni- zances, as special bail for each of the three defendants ; after judgment, creditor sues out one sd. fa. against the three bailors upon their several recognizances. Held : They cannot be joined in one sci. fa., and that the sci. fa. is naught, and ought to be quashed. CITATIONS TO THE CODE OF VIRGINIA. 1091 See Solans' s Case, 24 Grat., 31 and 38. cited ante. Section 3965. SECTION 4099. See Craig's Case, 6 Rand., 731, cited ante, Section 3965. In CaldweWs Case, 14 Grat., 698, decided August 26, 1858, it was held, p. 707 : It appears clear that the courts of oyer and terminer have the right at any time before a recognizance is estreated either to estreat or spare it. This is a discretion vested in them for the obvioiis purpose of remitting the obliga- tion in a hard case. The statute has extended this power. SECTION 4100. In Hamlet? s Case, 3 Grat., 82, decided April, 1846, it was held : The recognizance of bail taken by a justice of a prisoner sent on for trial by the examining court must show on its face that the examining court had entered of record that the pris- oner was bailable, and had fixed the amount in which bail should be taken. In Allerfs Case, 18 Southeastern Reporter, 437, decided De- cember 7, 1893, it was held: Under this section it is no objec- tion to the issue of a scire facias, on a bail bond given by one accused of felonious assault, that the condition of bond was that defendant should appear to answer the charge against him in- stead of to answer the felony whereof he stands charged. SECTION 4104. In the case of Morris vs. Creel, 1 Va. Cases, 333, decided by the General Court, it was held : Attachment ought not to issue for contempt until a rule is served upon the person in contempt to show cause why it should not. See Deskins's Case, 4 Leigh, 685, cited ante, Section 3768. TITLE LIV. CHAPTER CCI. SECTION 4106. In Wolverton's Case, 75 Va., 909, it was held: A justice of the peace has jurisdiction either to try and punish a prisoner charged with petit larceny or to examine and send him on to the county court to be indicted and tried therefor; and where he exercises only the latter jurisdiction, on the trial in the county court the plea of "twice in jeopardy" will not lie. In Miller's Case, 88 Va., 618, decided January 15, 189'2. it was held: This section, conferring upon justices jurisdiction concurrent with that of the county and corporation courts over ithe offence of keeping a bawdy house, is repugnant to Article I., 1092 CITATIONS TO THE CODE OF VIRGINIA. Section 10, Virginia Constitution, and Sections 4107 and 4108. Giving in such cases the right of appeal and trial by jury in the appellate court does not relieve Section 4106 of its repug- nancy. SECTION 4107. In Read's Case, 24 Grat., 618, decided November, 1873, it was held: When a person is tried by a justice of the peace for a petit larceny and convicted he has an absolute right of appeal to the county court ; and in that court the cause is to be heard de novo upon the evidence; and the accused is entitled to be tried by a jury, as in like cases originating in that court. In such a case it is error in the county court to reverse the judg- ment of the justice and remand the case to the justice to be tried ; and any subsequent trial of the case by the justice is null and void. In such case the justice again tries and convicts the accused, and he again appeals to the county court. The proceedings before the justice on the second trial being null, the accused is in the county court upon the first appeal, and is to be tried by a jury as if the case had originated in that court. The accused having been tried by a jury in the county court, and found guilty and sentenced, the errors in the proceedings of the justice on his second trial cannot affect the judgment of the county court. TITLE LV. CHAPTEE CCII. CHAPTER CCIII. SECTION 4174. The reference to 2 Va. Cases, 467, has no bearing on the pre- sent statute, but had on the statute in force at the time of the decision, a very different law. In Buffin's Case, 21 Grat., 790, decided November, 1871, it was held : A penitentiary convict is hired to work on a railroad, and in Bath county, in attempting to escape, he kills the man put by the contractor to guard him. He may be tried for the offence before the Circuit Court of the city of Richmond, and by a jury summoned from the city. The Bill of Rights, though made a part of the present Con- stitution, has the same force and authority, and no more, that it has always had ; and the principles* which it declares have reference to free-men, and not to convicted felons. A convicted felon has only such rights as the statutes may give him. A person convicted of a felony and sentenced to confinement in the penitentiary is, until the time of his- imprisonment has CITATIONS TO THE CODE OF VIRGINIA. 1093 expired, or he has been pardoned, in contemplation of law, in the penitentiary, though he may have been hired out to work on the railroad, or the like, in a distant county ; and the laws relating to convicts in a penitentiary apply to him. SECTION 4176. See Rii jfin's Case, 21 Grat., 790, cited supra, Section 4174. CHAPTEK CCIV. SECTION 4179. This reference to 2 Va. Cases, 465, has no bearing on this statute, but construes an old one placing this jurisdiction in the Superior Court for Henrico county. In the case of King vs. Lynn (Penitentiary Superintendent] , 18 Southeastern Reporter, 439, decided November 23, 1893. Code 1887, Sections 4179, 4182, provide that if a person sen- tenced to the penitentiary, and received therein, shall have been before sentenced to like punishment, and the record of his con- viction does not show that he was sentenced under Sections 3905, 3906, requiring a sentence for an increased term, in such cases the superintendent of the penitentiary shall file an infor- mation in the Circuit Court of Richmond to require the convict to say whether he is the person formerly convicted and sen- tenced, and if he remain silent and deny such identity, a jury of bystanders shall be summoned to try the issue thus raised, and upon a verdict against the prisoner, the court shall sentence him to such further confinement as is prescribed by the Chapter 190 in case of a second or third conviction. Held : That such pro- visions are constitutional, as such prisoner is not in the position of one charged with a crime for the first time, with all the pre- sumptions of law in favor of his innocence. SECTION 4180. In Brooks's Case, 2 Rob., 845, decided by the General Court, December, 1843. A report being made by the superintendent of the penitentiary that a convict received into the penitentiary is the same person mentioned in the record of a former convic- tion, and that he has not been sentenced to the punishment pre- scribed by law for his second offence, the court continues the case at several successive terms, in the absence and without the consent of the convict ; after which he is brought into court for the first time, and his identity being duly ascertained, he is sen- tenced to the proper punishment for his second offence. Such continuance of the case furnishes no ground of objection to the judgment. SECTION 4181. For Brooks'* Case, 2 Rob., 845, see ante, Section 4180. 1094 CITATIONS TO THE CODE OF VIRGINIA. SECTION 4182. In Brooks's Case, 2 Bob., 845, decided by the General Court,, December, 1843. Upon an inquiry whether a convict received into the penitentiary be the same person mentioned in the record of a former conviction, the prisoner has no right to challenge peremptorily any person called as a juror. See King vs. Lynn, 18 S. E. Eep., 439, cited ante, Section 4179. SECTION 4183. In Bryant's Case, 2 Va. Cases, 465, decided by the General Court, June, 1825, it was held : A convict ascertained to be serv- ing a second term, may, on his being identified, either by ver- dict or by confession, be sentenced by said court to a portion of confinement in solitary cells. SECTION 4185. See Ruffiris Case, 21 Grat., 790, cited ante, Section 4174. SECTION 4187. In Johnson's Case, 2 Grat., 581, decided December, 1845, it was held, by the General Court : On the trial of a convict from the penitentiary for a felony, a convict confined there for felony is a competent witness for the prosecution. TITLE LVI. CHAPTEE CCV. SECTION 4198. In the case of Lee (Sergeant] vs. Murphy, 22 Grat., 789^ decided December 4, 1872, it was held : The governor of Vir- ginia has authority under the Constitution to grant a condi- tional pardon to a prisoner convicted of felony. The condition annexed to a pardon must not be impossible, immoral or illegal, but it may, with the consent of the prisoner, be any punishment recognized by statute, or by the common law as enforced in this State. Though the warrant of the governor speaks as com- muting the punishment, yet as it substitutes a less for a greater punishment, and is intended to be done, and is done, with the consent of the prisoner, it will be considered a pardon, and not a commutation of the punishment. In the case of Wilkerson (Sheriff, for, etc.,] vs. Allen, 23 Grat., 10 and 20, decided January, 1873. A. is indicted for a misde- meanor, and the jury find him guilty and assess his fine at five hundred dollars, and the court sentences him to be imprisoned for four months, and until he pays the fine. The governor re- CITATIONS TO THE CODE OF VIRGINIA. 1095 mits so much of the sentence as orders A.'s imprisonment for four months, and the jailer discharges him from custody. The Commonwealth then sues out a capias pro fine, under which A. is taken into custody by the sheriff; and he then applies for a writ of habeas corpus, and asks for his discharge. Held: The governor has no authority to remit the fine, and does not in- tend it by his pardon. The effect of the pardon was to remit the four mouths imprisonment ; but did not affect the remain- ing part of the judgment. In Blair's Case, 25 Grat., 850, decided March 12, 1874, it was held : Under the Constitution of Virginia, the governor has authority to pardon a person convicted of a felony by the ver- dict of a jury, before sentence is passed upon him by the court. SECTION 4199. See \Vilkerson (Sheri/) vs. Allen, 23 Grat., 10 and 20, cited ante, Section 4198. TITLE LV1I. CHAPTER CCVL SECTION 4202. In the case of Carter's Heirs vs. Edwards, 88 Va., 205, de- cided July 2, 1891, it was held: This section repealed the act of March 9, 1880, as to actions of ejectment in certain counties, the said act being a general law. SECTION 4204. In Scot? a Case, 2 Va. Cases, 54, decided by the General Court, June, 1817, it was held : Where an offence is made a felony by statute, and the statute be afterwards repealed, no proceedings can be had after the repeal for an offence commit- ted under it, unless the repealing statute have a proviso enabling the proceedings for offences committed before. This rule is ap- plicable to cases where the repealing statute has a clause de- scribing the offence and prescribing the punishment, in all re- spects the same with the statute repealed. In Attoo's Case, 2 Va. Cases, 382, decided by the General Court, November, 1823, it was held: The passage of an act which prescribes a new punishment for old offences, and repeals all laws coming within the purview of it, without providing that offences committed before the operation of the new law shall be punished under the old, operates as a discharge to all who have committed such offences and have not been tried previous to the new law going into effect. In Pegram's Case, 1 Leigh, 569, decided June, 1829, it wa* 109G CITATIONS TO THE CODE OF VIRGINIA. held : A statute passed in the Assembly of 1827-'28, prescribing a new punishment for an offence committed after May 1, 1828, does not repeal former statutes, denning the offence and pre- scribing other punishment for the same, as to such offence com- mitted before May 1, Ic828. In Allen's Case, 2 Leigh, 727, decided June, 1830. By statute of 1819 grand larceny is defined as stealing goods to the value of four dollars and upwards, and punished by imprisonment, etc., not less than one nor more than three years; by statute of 1824 larceny committed after May 1, 1824, to the value of ten dollars and upwards, is defined grand larceny, and punished as grand larceny theretofore was, and larceny of goods of less value than ten dollars is defined petit larceny, and punished as petit larceny theretofore was ; and the latter statute neither makes provisions as to larcenies committed before May 1, 1824, nor contains any express repeal of the former statute. Held : The latter statute does not repeal the former as to larcenies com- mitted before May 1, 1824. In the case of Curran et als. vs. Spraul et als., 10 Grat., 145, decided July 18, 1853, it was held, p. 148: If a party shows a defence valid at the time it is passed on by the court, a subse- quent change in the law cannot deprive him thereof. In the case of Hogan vs. Guigon (Judge), 29 Grat., 705, de- cided January 31, 1878, it was held : A statute will not be re- pealed by implication, unless the latter statute is so inconsistent with the first that they cannot stand together, or the latter statute embraces the whole subject-matter of the first. In the case of Davies & Co. vs. Creighton, 33 Grat., 696, de- cided September, 1880, it was held : The act of May 29, 1852, which authorizes the organization of building fund associations, has not been repealed by any of the subsequent statutes, and a building fund association organized under that statute on the 8th of September, 1872, is a legally organized association. In Ryan's Case, 80 Va., 385, decided April 2, 1885, it was held : Unless a statute by its language, expressly or by neces- sary implication, demands such construction, it will not be con- strued as repealing a previous statute, or as being retrospective. INDEX. CONSTITUTION. ,_ PAGE. Article 1, Section 21 1 Article 4, Section 5, 1 Article 4, Section 8, 2 Article 5, Sections 14 and 15, ... 2 Article 5. Sections 17 and 22, ... 4 Article 6, Section 2 4 Article 6, Sections 3, 8. and 14, .. 8 Article 6, Sections 20 and 22, . . . 9 Article 6, Section 25 10 Article 7, Section 5, 10 Article 10, Sections 1, 4, and 10, . 11 Article 11, Section 1, 12 Article 11, Section 1, Paragraph 2, 13 Article 11, Section 9, 13 CODE. TITLE I. CHAPTER I. TITLE II. CHAPTER II. Srrtion :j ............. 14 5, Paragraphs, 3, 4, 8, and 9, 14 Section ."), Paragraphs 12 and 13, . 15 Sr<-t:oii li ............. 16 17 TITLE III. II AFTER III. <. -ii. in Ui, Paragraph 8, ..... 17 CHAITKKS IV.. V. TITLE IV. ( IIAI'TKi; VI. Srrtion- 4!. 49, ......... 18 TITLE V. CHAPTER VII. HAITKK VIII. S.M-tio.^s:;. H4 .......... 1 CHAPTERS IX., X. Section 117.. .-...-.... 19 (I I. \ITKH XI. Ili'l ............ 19 TITLE VI. CHAPTER XII. PAOM. Sections 162 and 163, ....... 20 Sections 165, 167, ........ 21 TITLE VII. CHAPTER XIII. Sections 168 and 177 ........ 21 Sections 179 and 180, ....... 22 Section 181,- .......... 23 TITLE VIII. 28 CHAPTER XIV. Section 183, Paragraph 2, ..... 25 Section 185, Paragraph 3, ..... 26 Section 192, ........... 26 TITLE IX. CHAPTER XV. Section 207 ..... ^ ....... 26 TITLE X. CHAITKItS XVI., XVII., XVIII., XIX.. XX TITLE XI. < -HAITI:!; xxi. TITLE XII. CHAPTKH XXII. Section 3 ............ 27 Sections 402 and 406, ....... 28 Section 408, ........... 81 Sections 409 to 412 ........ 83 Sections 414 to 434, ....... 88 TITLE XIII. CHAPTERS XXIII.. XXIV. Sections 457 to 485 ........ 84 Section 579 ............ 86 c -HAITI:!! xxv Sections 581 to 587 ........ 40 ( HAITI.]! XXVI. Section .WO ............ 41 ( HAITI:!! XXVII. Section f,l'. ............ 41 1098 INDEX. CHAPTER XXVIII. PAGE. Section 635, 41 Section 643, 43 Sections 651 to 653, x 44 Sections 654 and 655, 45 Section 661, 46 CHAPTERS XXIX., XXX. Sections 682 to 685, 47 Sections 684 to 702, 48 CHAPTER XXXI. Sections 712 to 717, 48 Sections 724 to 735, 49 TITLE XIV. CHAPTER XXXII. Section 746, 49 Section 751, 50 TITLE XV. CHAPTER XXXIII. Sections 755 to 780, 51 TITLE XVI. CHAPTER XXXIV. Section 802, .' 51 CHAPTER XXXV. Sections 812 and 813, 52 CHAPTER XXXVI. Section 833, Paragraph 2, 52 Sections 834 to 838, 53 Sections 843 and 844, 54 CHAPTER XXXVII. Sections 859 to 864, 54 Section 865, 55 CHAPTER XXXVIII. Section 869, 56 Section 881, 57 CHAPTER XXXIX. Sections 893 to 895, . 57 Sections 897 to 901, 58 Sections 907 to 909, 59 Section 910, 60 Section 911, 65 CHAPTERS XL., XLL, XLII. Section 925, 65 CHAPTER XLIII. Sections 946 to 948, 66 Section 950, 67 Section 951, 68 Section 955, 71 Sections 989 and 990, 72 CHAPTER XLIV. Sections 1016 to 1038, 73 PAGE. Sections 1042 to 1048, 7* CHAPTER XLV. Section 1060, .' . . 76- TITLE XVII. CHAPTER XLVI. Section 1068, 76 Section 1069, 78 Sections 1072 to 1074, 81 Sections 1075 and 1076, 83 Section 1078, 84 Sections 1079 and 1080, 86 Section 1081, 87 Sections 1093 and 1094, 90- Section 1103, 91 TITLE XVIII. CHAPTER XLVII. Section 1106, 92 Sections 1107 to 1122, 93 Section 1125 94 Section 1127, 95 Section 1128, 96 Sections 1130 to 1145, 97 Section 1149, 98 CHAPTER XLVIII. Section 1159, 100 Section 1161, 101 CHAPTERS XLIX., L. Section 1181, .102 Section 1182, . . 103 - CHAPTER LI. Sections 1185 to 1201, 103 Sections 1202 to 1233, 104 Sections 1234 to 1243, 105 CHAPTER LII. Section 1264, 107 CHAPTER LIII. Sections 1265 to 1271, 108 Section 1276, 109 CHAPTER LIV. Sections 1287 to 1291, 110 Section 1292, 112 CHAPTER LV. Section 1295, 112 Section 1296 114- CHAPTER LVI. TITLE XIX. CHAPTER LVII. Section 1315, 115: CHAPTERS LVIIL, LIX, TITLE XX. CHAPTER LX. Section 1338, lift INDEX. 109i CHAPTER LXI. PAGE. < Section 1347, 117 Sections 1348 to 1350, 121 Section 1353, 123 Section 1354, 127 Section 1358, 12* CHAPTER LXIL Sections 1374 and 1375, 131 Section 1376, 132 Sections 1381 to 1388, 133 TITLE XXI. CHAPTER LXIII. Section 1394, 134 CHAPTER LXIV. Section 1396, 135 Sections 1397 and 1398 136 Sections 1399 to 1405, 138 Section 1408, 139 TITLE XXII. CHAPTER LXV. Section 1420, 139 CHAPTER LXVI. Sections 1429 to 1437, 140 Sections 1441 to 1455, 141 CHAPTER LXVII. Sections 1523 to 1528, 143 CHAPTERS LXVIIL, LXIX. Section 1563, 142 CHAPTERS LXX., LXXL, LXXIL, L XXIII. 'Section 1651, 142 CHAPTER LXXIV. TITLE XXIII. CHAPTER LXXV. Section 1669, 143 Sections 1688 to 1701, 144 Section 1702, " Section 1703, -147 TITLE XXIV. CHAPTER LXXVI. Sections 1719 to 1721, 148 CIIM'TF.KS LXXVIL. LXXVIIL. LXXIX.. LXXX. TITLE XXV. CHAl'TKU LXX XI. Section 1788, ] 4 * Section 1789 CIIAI'TLKS LXX XII.. LXX XIII. S. -lions 1797 to ll 14!l CHAPTER LXXXIV PAOK. Sections 1864 to 1878, 150 Section 1891, 152 CHAPTERS LXX XV.. LXX XVI., LXX XVII. TITLE XXVI. CHAPTERS LXXX VIII. , L X X X I X .. VP V < I -\ V . , ^\.\^A. Section 2004 153- CHAPTER XC'II. Section 2007, 158 TITLE XXVII. CHAPTERS XCIII. XCIV.. Xc\ . XCM. Section 2091, '154 Section 2092, 155 CHAPTER XCVII. Sections 2137 to 2147, 155- CHAPTER XCM 11 Section 2179 156- CHAPTER XCIX. TITLE XXVIII. CHAPTER C. Sections 2218 to 2224, 157 Section 2227, 158 Section 2229, 159 CHAPTER CI. Section 2252, Jjjj> Section 2257 J Section 2258 1( Section 2260, ' Section 2261, } Sections 2262 and 22(53, I' Sections 2264 and 2205, M CHAPTER (II Section 2267, Section 2209, Section 2270 Section 2271, Section 2274, Section 2275 Section 2276 Sections 2277 to 2281, V CIIAITKIJ < III. Sections 2284 to 2280, Section* 8866 to SMS, . Sections 2289 to 2297, ' v TITI.I: \MV CII.MTLI; civ Sections 282 i to ':',> 1 Sections 8880 to 2889, . Hill IT'. 176 17? 179 ISM; 1100 INDEX. PAGE. Sections 2340 to 2349, 197 Sections 2351 to 2368, 198 CHAPTER CV. Sections 2375 to 2388, 200 Sections 2397 and 2398, 202 Section 2399, 204 CHAPTER CVI. TITLE XXX. CHAPTER CVII. Seetion.2413, 204 Section 2414, 207 Section 2415, 212 Section 2416, 213 Section 2418, 214 Section 2419, 216 Section 2420, 218 Section 2421, 220 Sections 2422 to 2426, 232 Sections 2428 and 2429, 234 Section 2430, 236 Section 2432, 237 Section 2434, 238 CHAPTER CVIII. Sections 2440 to 2442, 238 Section 2446, 244 Sections 2449 to 2455, 248 Section 2456, 250 CHAPTER CIX. Section 2458, 251 Section 2459, 263 Section 2460, 266 Section 2461, 267 Sections 2462 and 2463, 271 Section 2465, 273 Sections 2466 and 2467, 278 Section 2468, 279 Sections 2469 and 2470, 281 Section 2472, 282 Section 2473, 284 CHAPTER CX. Section 2474, 284 Section 2475, 286 Section 2476, 291 Sections 2479 to 2484, 293 Section 2498, 294 CHAPTER CXI. Section 2500, 294 Sections 2501 to 2510, 296 CHAPTER CXII. Section 2512, 296 Sections 2513 and 2514, 297 Section 2515, 305 Sections 2517 and 2518 307 Sections 2519 to 2521, 310 Section 2522 311 Sections 2523 to 2526, 313 PAGE. Section 2528, 314 Section 2529, 315 Sections 2531 and 2532, 316 Section 2533, 317 Section 2534, 320 Sections 2536 and 2537, 321 Section 2542, 322 Section 2544, 323 Section 2546, 327 CHAPTER CXIII. Section 2549, 327 Section 2550, 328 Sections 2551 and 2552, 329 Section 2553, 330 Sections 2554 to 2556, 331 Section 2557, 332 Section 2259, 335 Section 2561, 337 TITLE XXXI. CHAPTER CXIV. Section 2562, 342 Section 2563, 347 Sections 2564 to 2569, 348 TITLE XXXII. CHAPTER CXV. Section 2581, 348 Sections 2585 to 2587, 349 Section 2592, 350 CHAPTER CXVI. Sections 2597 to 2600, 350 Sections 2601 to 2603, 351 Section 2604, 354 Sections 2605 and 2606, 357 Section 2608, 358 Section 2609, 359 Sections 2610 to 2614, 361 TITLE XXXIII. CHAPTER CXVII. Section 2616, 361 Section 2618, 364 Sections 2620 and 2621, 365 Sections 2622 to 2626, 366 TITLE XXXIV. CHAPTER CXVIII. Sections 2629 to 2632, 367 TITLE XXXV. CHAPTER CXIX. Section 2636, 367 Section 2637, 368 Section 2639, 369 Section 2641, 371 Sections 2642 to 2645, 373 Sections 2646 to 2648, 375 Section 2651, 378 Section 2652, 379 Section 2654, 380 INDEX. 11(11 PAGK. Sections 2655 to 2658, 381 Section 2659, 382 Section 2660, 383 Section 2662, 386 CHAPTER CXX. Section 2663 386 Section 2664, 389 Section 2665, 390 Section 2666, 392 Section 2667 393 Section 2668, 394 TITLE XXXVI. CHAPTER CXXI. Section 2676, 395 Section 2(578 399 Section 267!), 400 Section 2687, 401 Sections 2693 to 2605, 403 Sections 26!)7 to 265)!) 413 Sections 2700 to 2706, 416 Section 2707, 417 TITLE XXXVII. CHAPTER CXX 1 1. Section 2713, 417 CHAPTER CXXIII. Section 271(5 418 Sections 2718 and 2719, 430 Section 2720, 431 CHAPTER CXXIV. Section 2722 431 Section 2723, 432 Sections 2726 and 3726 433 Section 2727 434 Sections 2728 and 272! 435 Sections 2730 to 2735, 437 Section 2736 441 Sections 2738 to 2740, 442 Section 2741, 443 Sect ion 2742, , . 444 Section 2744, 445 Section 27-lti 446 S.-d ions 2749 and 2750, 447 Sections 3751 and 2752 448 Sections 2754 to 2757 449 CHAPTER CXX V. -I5( Section 2760, 450 Sections 2770 and 2771, 451 CIIAI'TKU (XXVI. 151 Section 2775, 453 Section 2775 45-t TITLE XXXVIII. CIIAITKU CXXVII. Sections 27*2 ami 27*:; 4.1 Sections 27*5 t<> 27S7 45-' Section 27!>1 457 PAOK. Sections 2792 to 2797, Section 2800, 460 (II APTERS CXXVIII. , ( X X 1 X . TITLE XXXIX. CHAPTER CX XX 460 Section 2816 481 Sections 2818 to 2821, 482 Section 2822, . . 48& Sections 2823 to 2825, 488 TITLE XL. CHAPTER CXXXI. Section 2830, 48* CHAPTER CXXXI I. Section 2836 485* CHAPTER CXXXIII. Section 2840, l!'v? Section 2841 504 CHAPTER CXXXIV. Section 2842, 5()4 Section 2845, 506 Section 2848, 5'i7 Section 2849, Section 2850, 5i>'.i Section 2&52 510 Section 2853, 511 Sections 2854 and 2855, 512 Sections 2*56 to 2858 514 Section 2860, 515 Section 2862, 531 CHAPTER CXXXIV.* Section 2863 531 Section 2874, Section 2877, CHAPTER CXXXV.+ Section 2890 Section 2891 Section 2K!)3, 53(5 Section 2H!)5 ~>5l TITLE XLI. CHAPTER CXXXVII. Section 2H!ii5 558 Sections 2898 to 2900 Section 2! iul Section 2!>02 Sections 2903 and 2904 >i;i; CHA1TKU C.\.\.\\ III. 566 Section 2912, "'"" TITLE Xl.ll. CIIAITKU (XXXIX. Section -".H. Section -.".H7 Sections 2iMM;ni,| .!! - Thin corresponds with Ch. CXXXV. in Code. t Thii correspond* with Ch. CXXXVI. in Cod*. 1102 INDEX. PAGE. Section 2920 583 Section 2921 598 Section 2922, 600 Sections 2928 and 2924 602 Section 2927, 603 Section 2929, 605 Sections 2930 and 2931 006 Section 2932, , .... 607 Section 2933 608 Sections 2934 to 2936, 610 Section 2937, 611 TITLE XLIII. CHAPTER CXL. Sections 2939 to 2952, 611 Section 2953, 612 CHAPTER CXLI. Section 2959, 613 Sections 2961 and 2962, 617 Section 2964, 618 Section 2967, 620 Section 2968, 622 Sections 2969 to 2971, 623 Sections 2975 and 2976 626 Sections 2979 to 2981, 628 Section 2982, 630 Sections 2983 and 2984 631 -Section 2986, 632 Sections 2989 to 2991, 634 : Section 2995, . . . ' 636 TITLE XLIV. CHAPTER CXLII. Section 2998, 636 Sections 2999 to 3001, 638 Section 3003, 640 CHAPTER CXLIII. Section 3006, 641 Sections 3007 to 3009, 643 .Section 3010, 652 TITLE XLV. CHAPTER CXLIV. Section 3012, 653 CHAPTER CXLV. 653 Section 3023, 655 CHAPTER CXLVI. Section 3029, 656 .Section 3035, 657 TITLE XLVI. CHAPTER CXLVII. Sections 3045 to 3049, 657 Sections 3054 and 3055, 658 CHAPTER CXLVIII. Sections 3060 to 3062 658 CHAPTER CXLIX. Section 3069, 658 PAGE. Sections 3073 to 3079, 659 CHAPTER CL. Section 3086, 659 CHAPTER CLI. Sections 3111 to 3114, 659 Sections 3122 to 3124, 660 Section 3126, 661 CHAPTER CLII. Sections 3139 to 3156, 661 Sections 3166 to 3168, 662 TITLE XLVII. CHAPTERS CLIIL, CLIV. Sections 3193 to 3198, 663 Sections 3199 and 3200, 664 Section 3201 667 Section 3202, 668 CHAPTER CLV. TITLE XLV11I. CHAPTER CLVI. Section 3207 669 Sections 3209 to 3211, 672 Section 3212 673 Section 3213, 674 CHAPTER CLVII. Section 3214, . 675 Section 3215, 676 CHAPTER CLVIII. Section 3220, 676 Sections 3224 and 3225, 677 Sections 3227 to 3230, 679 Sections 3231 and 3232, 680 Section 3233, 682 CHAPTER CLIX. Sections 3236 to 3242, 683 Sections 3243 and 3244 684 Section 3248, 685 Section 3251, 686 Sections 3253 and 3254, 687 Section 3255, 688 Sections 3259 and 3260, 690 Sections 3261 and 3262, 693 Section 3264, 694 Sections 3266 to 3268, 696 Sections 3271 and 3272, 697 Sections 3273 and 3274, 700 Section 3275 701 Sections 3276 to 3278, 702 Section 3279 706 Sections 3280 and 3281 707 Section 3283, 708 Section 3284, 709 Section 3285, 710 Sections 3286 and 3287, 711 Section 3288, 715 Sections 3290 and 3291, 716 IN1>E\. 1108 Section 3292 717 Sections 3293 and 3294 718 CHAPTER CIA. 719 Sections 3295 to 3298, 725 Section 3299 7:!(i Section 3303, 740 CHAPTER CIAI. Section 3306 740 Sections 3307 and 3308, 741 Section 3309 745 CHAPTER CIAII. Section 331(5, section 3317 747 CHAPTER CLXII1. Section :',320 747 8ection0 3822 to 8835, ">-' CHAPTKIl CL XIV. .Sections 3328 to 3330, 752 Section 3334, 753 Sections 3886 to 8888 755 Sections 8840 to 8842 756 Sections 3344 to 3340, 757 Sections 3347 to 3358, 7<><5 PAGE. Section 3436, 887 Sections 3437 and 3438, 888 Sections 3441 and 3442 889 Section 3444, 842 Section 3445, 843 Section 3446, 845 CIIAITKU CIA1X. Sections 3447 and 3448, 846 Section 3449, 847 Section 3450, 848 Section 3451; 84$) CHAPTER CIAX. S52 Sections 8859 to 8862 767 Sections 8864 and 8865 771 .Section 3366 772 Section 3370 773 Sections 33 T3 to 3375 1 > C1IAITKI! CLXV. Section 3376 776 CHAPTER CLXVI. Section 3378 7T Sec (ions 3380 and 3381, 778 Section 8888 785 .Section 3384 786 Section 33S." '* Se<-ti..n :!3S7 7!l() section :;:',HS 791 Section :i390 '^ Section :539 1 ^95 Se-tion 3392 " 8ection8898 Section 3394 806 on :{:59:, 807 lOD 3396 H( CHAPTKl! CI.XVI1. Section 339; WO Sections 8898 to :MII.-, 8. . stj.j 881 Section 3453, 853 Section 3454, 856 Section 3455, 861 Section 3457, 870 Sections 3458 to 3469 871 Section 3470, 872 Section 3474, Section 3475, 878 Section 3482, 879 Section 3484, 880 Section 3485 887 Sections 3486 to 34SH 88* Section 3490, Section 3492, *''-' CHAPTER CLXXI. Sections 3498 to 3495 8W TITLE XLIX. CHAPTER CLXXII. Section 3520, 893 CHAPTER CLXXI 1 1. Section 3539, ....... 898 Sections 8548 to 3546, 894 Sections 3552 to 3554 *'>> TITLE L. CHAPTKK CIA XIV. Sections 8557 tb 561 896 Section 3566, 887 >ecti<>!IS ;J4() ( .) to Section 3420 Section 3421. . Sect ions :!4-J-J to 3424 Becti. Section 342'; CHAPTKl! CIA\ HI Sections 8609 and 8670, 905 Section 3571 M8 Section 8578 910 Sections 8574 an. I 8678 '" Section* 8576 and :t:.77 9i:i ( -HAITI-:!! (I. XXV. Section ::.-,s:; '-'is '" Sections 8686 and :tts7. . , , Se,-tio,, :;:,; 1 g Sections 8594 to 3596 ''-. Section 3597 ;' S.-.-ti..n3600 981 CHAITI-.I: i. xxvi. Section 3iioi ** 1104 INDEX. PAGE. Sections 3602 to 3608, 933 Sections 3609 to 3614, 934 CHAPTER CLXXVII. 935 Sections 3620 to 3621, 945 TITLE LI. CHAPTER CLXXVIII. Section 3630, 947 Section 3634, 949 Sections 3635 to 3649, 950 Sections 3652 to 3657, 951 TITLE LI1. CHAPTERS CLXXIX., CLXXX. Section 3662, 952 Sections 3664 to 3671, 965 Section 3673, 968 Sections 3674 and 3675, 969 Sections 3678 and 3680, ...... 970 Sections 3681 to 3691, 973 Section 3692, 974 CHAPTER CLXXXI. Section 3695, 975 Sections 3696 to 3699, 976 Sections 3701 to 3704, 977 Sections 3705 to 3707, 979 Section 3708, 986 Sections 3714 to 3717, 987 Sections 3720 to 3722, 988 Section 3729, 989 CHAPTER CLXXXII. Section 3733, 990 Section 3735, 993 Section 3737, 996 Section 3738, 998 CHAPTER CLXXXIII. Section 3741, 999 Sections 3742 to 3744, 1001 Sections 3749 to 3755 1002 Sections 3767 and 3768, 1003 CHAPTER CLXXXIV. Sections 3774 to 3780, 1005 CHAPTER CLXXXV. Section 3781, 1005 Section 3783, 1007 Sections 3784 to 3786, 1008 Sections 3787 and 3788, 1009 Sections 3799 to 3805, 1010 CHAPS. CLXXXVL, CLXXXVII. Section 3815,. 1011 Sections 3816 to 3818, 1012 Sections 3820, 1014 Sections 8824 to 3837, 1015 CHAPTER CLXXXVIII. Section 3853, 1015 CHAPTER CLXXXIX. Section 3856, 1016' CHAPTER CXC. Sections 3879 to 3885, 1016 Section 3886, 1018 Sections 3887 to 3889 1019 Sections 3892 and 3893, 1020 Section 3894, 1021 Section 3895 1024 Sections 3897 to 3900, 1027 Sections 3901 to 3904, 1028 Sections 3905 to 3908, 1029 TITLE LIU. CHAPTER CXCI. Sections 3913 to 3916, 1030 Section 3927, 1031 CHAPTER CXCII. Sections 3942 to 3945, 1031 Section 3948, 1032 CHAPTER CXCIII. Section 3951, 1032 CHAPTER CXCIV. Sections 3956 to 3960, 1032 Section 3965, 1034 Sections 3966 to 3970, 1037 CHAPTER CXCV. Section 3977, 1037 Sections 3979 to 3984, 1039 CHAPTER CXCVI. Section 3989, 1041 Sections 3990 and 3991, 1042 Section 3992, 1043 Sections 3993 and 3994, 1044 Sections 3996 to 3999, 1045 Section 4000, 1049 Section 4001, 1051 Section 4003 1053 Sections 4009 to 401 3, .1055 Section 4014, 1056. CHAPTER CXCVIL Section 4016, 1656 Section 4017, 1058 Section 4018 1060 Sections 401 9 to 4023, 1071 Section 4024, 1072 Section 4025, 1073 Sections 4026 and 4027, . ... .1073 Sections 4028 to 4037, 107& Sections 4038 to 4040, 1079 Sections 4041 to 4043, 1080 Sections 4044 and 4045, 1081 Sections 4046 and 4047, 1082 CHAPTER CXCVI1I. Sections 4050 to 4052, 1085 Sections 4053 to 4055, 108(1 INDEX. 1105 PAGE. Stations 4056 to 4071, ...... . . 1087; Sections 4074 to 4076, 1088 > CHAPTER CXCIX. Section 4081 1088 S'-rtion 4087 1089 CHAPTER CC. S.-ct ions 4090 to 4093 1089 Section 4097, 1090 Sections 4099 to 4104, 1091 TITLE LIV. CHAPTER CCI. Section 4106 1091 S.vtiou 4107, 1092 PAGB. TITLE LV. CHAPTERS CCII., CCIII. Section 41 74, Section 4176, .......... 1093 CHAPTER CCIV. Sections 4179 to 4181 ....... 1093 Sections 4182 to 41 87, ...... 1094 TITLE LVI. CHAPTER CCV. Section 4198, .......... 1094 Section 4199, .......... 1095 TITLE LVII. CHAPTER CCVI. Sections 4202 to 4204, ...... 1095 -DEC LAW LIBRARY UNIVERSITY OF CALIFOKNIS LOS ANGELES 5 1951 UC SOUTHERN REGIONAL LIBRARY FACILITY A 000 680 907 3