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https://www.courtlistener.com/api/rest/v3/opinions/8481584/	Moncure, J. It was properly conceded, in the argument of this case, on the one hand, that R. F. Darracott had incurred a forfeiture of his lease from John281ston by subletting the demised premises to John Darracott \| and on the other, that the forfeiture might be waived by the lessor: And the only question to decided is, Whether it was so waived ? The underletting in this case was without the consent of the lessor, either written or parol. And a forfeiture for assigning or subletting without license may be waived, whether the license be required by the terms of the lease to be in writing or hot. Goodright v. Davids, Cowp. R. 803; Roe v. Harrison, 2 T. R. 425, 430. It is unnecessary, therefore, to consider whether this case comes within the operation of the Code, p. 506, § 18; which declares that “ in a deed of lease a covenant by the lessee that ‘ he will not assign without license,’ shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer or set over the premises or any part thereof, to any person without the consent in writing of the lessor, his representative or assigns.” Then, as to the question of waiver of the forfeiture. The doctrine on this subject is thus laid down by an elementary writer: “ The re-entry resting, as we have seen, in the election of the lessor, he may enforce or waive his right at his pleasure. And as forfeitures, to use the phrase of the books, are odious in law, slight acts on his part have been deemed sufficient to amount to a waiver. Indeed, it may be stated as a general rule, that any recognition of a tenancy subsisting after the right of entry has accrued, and the lessor has had notice of the forfeiture, will have that effect.” 2 Platt on Leases 468. To the same effect is the law laid down by other writers; and the cases cited, so far as I have seen, seem fully to sustain them. There is, indeed, no conflict of authority in regard to the principle which governs the case. The only apparent conflict is in its application to individual cases. The principle simply is, that if the lessor, with 282knowledge of the forfeiture, do any act affirming' the tenancy or recognizing its continuance, he thereby the forfeiture. Whether the act, in a given case> have effect, is sometimes a question of difficulty. The acceptance of rent, eo nomine, gene-rally, if not always, has that effect; because it can rarely, if ever, occur without the relation of landlord and tenant, and is an admission that the tenancy is then subsisting. Archbold 97, citing Pennant's Case, 3 Coke 64 b; Harvey v. Oswald, Cro. Eliz. 553, 572; Moore 456; 2 Anderson 90; Arnsby v. Woodward, 6 Barn. & Cress. 519, 13 Eng. C. L. R. 241. The same may be said of a distress for rent. Id.; and also of an absolute and unqualified demand of rent, whatever may be the secret motive of the lessor in demanding it. 2 Platt on Leases 468. Generally, the lessor, by merely being passive, will not waive the forfeiture. It is not enough that he knows of the breach without availing himself of his right of re-entry. The act by which the forfeiture is waived must, as we have seen, amount to an affirmance of the tenancy or a recognition of its continuance. Comyn 334; Archbold 97 ; Doe v. Allen, 3 Taunt. R. 78. Though if, by his acquiescence, he induce the tenant to incur expense in making improvements or otherwise, that is a circumstance from which, it seems, a jury might infer a waiver. Id. There is a case, however, which was much relied on by the counsel for the plaintiff in error as an authority to show that the mere acceptance of rent is not of itself a waiver, but matter of evidence only to be left to the jury. I mean the case of Hoe v. Batten, Cowp. R. 243. That was not a case of forfeiture. The question was, Whether the landlord, by receiving rent, had waived his notice to quit, and created a new tenancy for a year; or had merely received an occupation rent, instead of double rent to which he was 283entitled under the stat. 4 Geo. 2. It was held to be a question of intention for the consideration of the jury on all the evidence. Aston, J. expressly between that case and a case of forfeiture. But Doe v. Batten was cited, and the doctrine therein laid down disapproved by the Court of king’s bench, in Goodright v. Cordwent, 6 T. R. 219. Lord Kenyon, C. J. in delivering his opinion in that case, the other judges concurring, said, “If the defendant had paid, and the lessor of the plaintiff had received the money as a satisfaction for the injury done by the defendant in continuing on the plaintiff’s land as a trespasser, then the plaintiff might have recovered in ejectment. But if it were paid eo nomine as rent, and received as such, and the jury have found that it was so, I cannot assent to the doctrine laid down in the cases cited, that the receipt of rent accruing after the expiration of the notice to quit is not a waiver of it i for according to that doctrine, the same person might stand in the relation of tenant and trespasser to his landlord at the same time.” In Blyth v. Dennett, 16 Law & Equ. R. 424, which was also a case of notice to quit, it was conceded that the acceptance of rent, accruing after the expiration of the notice, would have been a waiver of it; but no such rent had been received. That Lord Mansfield did not intend, in Doe v. Batten, to question the principle that acceptance of rent accruing after forfeiture, with notice of the forfeiture, is a waiver of it, is conclusively shown by the case of Goodright v. Davids, Cowp. R. 803, decided only three years after the former. That was ejectment brought by lessor against lessee on the ground of forfeiture by subletting, contrary to a covenant and condition contained in the lease. The defense was that the forfeiture had been waived by the acceptance of rent. 284Lord Mansfield said, “ This case is extremely clear. To construe this acceptance of rent due since the condition broken, a waiver of the forfeiture, is to construe it according to the intention of the parties. Upon the breach of the condition the landlord had a right to enter. He had full notice of the breach, and does not take advantage of it; but accepts rent subsequently accrued. That shows he meant the lease should continue. Cases of forfeiture are not favored in law; and where the forfeiture is once waived, the court will not assist it. The consequence is, that there must be judgment for the plaintiff.” The authority of this case has never been denied. It is cited by the elementary writers, and set forth at length in 2 Lorn. Dig. marg. 91-2. The case of Jones’ devisees v. Roberts, 3 Hen. & Munf. 436, in which it was contended by the counsel for the plaintiff in error, that this court had approved the case of Doe v. Batten, was a suit for specific performance of an agreement for a lease, and there were many reasons for refusing to enforce the agreement, without relying on the doctrine of that case, which is incidentally referred to with seeming approbation by two of the judges. The question did not properly arise, and could not have been considered in the case. ITothing done by the lessor before he has knowledge of the forfeiture can have the effect of waiving it. After he is informed of the forfeiture he must make his election, in view' of all the circumstances, whether he will waive or enforce it. He is not bound to elect immediately; but may take his own time to’ do so. Until he makes up his mind, however, he must take care to do no act which may have the effect of affirming or recognizing the continuance of the tenancy. He cannot first waive, and then enforce the forfeiture. The lessee cannot be a tenant and a trespasser at the 285same time. He continues to be a tenant, if the forfeiture be waived, just as if it had never occurred. He becomes a trespasser, if it be enforced. The waiver of one forfeiture is of course not a waiver of a.subsequent forfeiture: And if the act of forfeiture be continuing, a waiver of a right of reentry for one breach will not preclude a re-entry for a new or continuing breach. Thus, a lessor may take advantage of a forfeiture occuring de die in diem, as in the case of a neglect to repair, work a mine, or the like, continuing from day to day, notwithstanding „a previous distress for rent. 2 Platt on Leases 471, and cases cited. So also, where the covenant was that rooms should not be used for certain purposes, it was held that there was a breach of this covenant every day during the term that they were so used ; and that the lessor was not precluded by receiving rent subsequent to the commencement of such user, from taking advantage of the forfeiture, provided the user continued after such receipt of rent. Comyn 334; Doe v. Woodbridge, 9 Barn. & Cress. 376, 17 Eng. C. L. R. 399. But a sublease is no more a continuing act of forfeiture than an assignment, notwithstanding what is said by Platt, Id. 472, that “ It does not appear to be settled whether an underletting is or is not a continuing breach.” The only authority cited for this observation is an obiter dictum of the V. C. in Dowell v. Dew, 1 Young & Col. 345, 366, 20 Eng. Ch. R. 345. But that dictum is plainly opposed to principle and the whole current of authority. The cases are numerous in which forfeitures by subletting have been held to be waived by the subsequent acceptance of rent. The case already cited from Cowper 803, is a case of that kind. There could have been no difficulty in enforcing the forfeitures in these cases if the breaches had been continuing. The only difference between an assignment and underlease in this respect is, that the 286doctrine of Dumpor’s Case, 4 Coke R. 119, in regard to assignments, has not been extended to underleases. It was held in that case that a license to assign any part is a dispensation of the whole condition, and the lessee or his assigns may assign all the residue without license. Whereas it has been since held that a lessor who has a right of re-entry on a breach of covenant not to under-let, does not, by waiving his entry on one underletting waive his right to re-enter on a subsequent underletting. Doe v. Bliss, 4 Taunt. R. 735; Archbold 97. Ip the former case the waiver is of the condition itself. In the latter only of the forfeiture for a particular breach. But in the latter each breach is a complete, and not a continuing act of forfeiture. Having stated the legal principles which I deemed pertinent, it now only remains to apply them to the case. It is certain that Johnston never assented to the underletting to John Darraeott, or affirmed or recognized his tenancy; but that he always refused to do so. It is, I think, equally certain that he did affirm and recognize the continuance of the tenancy of E. F. Darraeott, with full knowledge of the forfeiture. He was fully informed on the 2d of May 1855 that the premises would be sublet to John Darraeott on the 15th of that month; and again, on the 15th, was informed that they had accordingly been sublet. On the 2d of July he demanded the rent of E. F. Darracott, a quarter’s rent having, on the preceding day, become due under the lease. On the 3d of that month he received two hundred dollars, and signed a receipt for it, in part of rent to the first of the month. On the 5th or 6th of the month he sued out a distress warrant against E. F. Darraeott for five hundred and fifty dollars, balance of the quarter’s rent due on the first of the month, having first made the necessary affidavit that the said balance was justly due him, “ for rent reserved upon contract from the said E. F. 287Darracott.” On the same or the next day he received J. Darraeott’s check for the said balance, and gave a receipt therefor, 11 protesting at the same time that Darracott was not lessee or tenant, but that R. F. Darracott was.” Each and all of these acts, to wit, the demand of the rent, the distress for it, the acceptance of it, and the express declaration made at the time of its payment, were plain and palpable affirmations and recognitions of the existing tenancy of R. F. Darracott. Why, then, are they not a waiver of the forfeiture? Can it be because Johnston refused to sanction the underletting, or to recognize J. Darracott as his tenant? Certainly not. It was not necessary to do that in order to continue the existence of the lease. There was no inconsistency in repudiating the act of subletting, and at the same time insisting on the continuance of the lease. R. F. Darracott could not drive Johnston to the alternatives of sanctioning the act of forfeiture or putting an end to the lease. The right of re-entry was a cumulative remedy, to which Johnston might resort or not, at his election; and whether he resorted to it or not, he might still resort to his remedy by action for the breach of the • covenant not to underlet j in which action he would j be entitled to recover such damages as he could show that he had sustained. See Doe v. Meux, 10 Eng. C. L. R. 417. It might have been to his interest to continue the lease notwithstanding the breach, and to rely for his indemnity on the action only. The covenant would be of no use if he could not do so. By enforcing the forfeiture he would have lost the benefit of the year’s rent which had been secured to him in advance, (except so much as had accrued before the forfeiture,) and taken the chance of finding another tenant for the property. I conclude, then, that these acts were a waiver of the forfeiture: and the waiver, having once been 288made, could not be withdrawn. Johnston could not affirm the continuance of the tenancy to the 1st of July and then determine it. He may have supposed that he had a right to do so; but that cannot change the legal effect of his acts. If the tenancy of E. F. Darracott is still a subsisting tenancy, it follows that Johnston is not entitled to the possession of the premises, and of course cannot recover it of J. Darracott, however wrongful the act whereby the latter acquired it. I am for affirming the judgment of the Circuit court. The other judges concurred in the opinion of Moncure, J. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481585/	Moncure, J. I think that Frederick Bryan was not to lose the land devised to him, unless and until he should become entitled to the land devised to John F. Bryan. The will so expressly declares, and that was the testator’s plain intention. Then, if the land devised to John F. Bryan was devised to him in tail, the limitation over to Frederick can never take effect; being a remainder limited on an estate tail, and destroyed by the statute converting that estate into a fee simple. The question therefore is, Whether John F. Bryan took an estate tail in the land devised to him ? If he did, it must have been by virtue of- the words “ die without issue,” in the limitation over; there being no words of inheritance superadded to the devise. The first words of the limitation over are, “ It is my will if my said son John F. Bryan die without issue, that the property heretofore given him shall go to his brother Frederick Bryan.” If the will had stopped here, it would, by clear implication, have created an estate tail in J. F. Bryan; it being well settled that a limitation over in these words superadded to an estate given to the ancestor in fee or for life, will in the one case cut down, and in the other enlarge, the estate of the ancestor into an estate tail. The remaining words are, “ who (that is F. Bryan) in that case will lose the land heretofore given him. It being my will and desire then and in that case,” &o. (ut sufra.) Do these words restrict the technical meaning of the words “ die without issue,” and prevent them from conferring an estate tail on J. F. Bryan ? If the words “ and upon the happening of the event of my son J. F. Bryan’s death,” had been omitted, the residue certainly would not have had that effect. The w'hole question then is, as to the effect of the last recited words in the connection in which they stand. 292“Issue” is nomen collectivum, and a word of very extensive import, embracing the whole line of lineal descendants. It is used in the statute de donis, in some instances, at least, synonymously with heirs of the body; and a devise to A and his issue has even been stated by an eminent judge, (Lord Thurlow7,) as “the aptest way of describing an estate tail, according to the statute.” 2 Jarm. on Wills 329, 331. It is a technical word of established meaning, and must always have its effect accordingly, unless there be a clear manifestation of intention in the context to use it in the restricted sense of issue living at the death. It has been long settled that words (occurring in a will which took effect before the revision of Í819) referring to the death of a person without issue, whether the terms be “if he die without issue,” “if he have no issue,” “if he die before- he has any issue,” or “ for want, or in default of issue,” unexplained by the context, and whether applied to real or personal estate, are construed to import a general indefinite failure of issue. Id. 418. “ The rule (in the language of Lord Redesdale) is, that technical words shall have their legal effect, unless from subsequent inconsistent words it is very clear that the testator meant otherwise.” Id. 284. Or “ unless (in the language of another distinguished judge, Lord Alvanley, in Poole v. Poole, 3 Bos. & Pul. 620) the intent appear so plainly to the contrary that no one can misunderstand it.” As to personalty, it seems the word “issue” yields more readily to expressions and circumstances in the will tending to confine it to the restricted sense than when applied to real estate. Id. 427. Thus, where the phrase is, “ leaving no issue,” the settled construction is that, applied to real estate, it means an indefinite failure of issue, but in reference to pérsonal estate, it imports a failure of, issue at the death. Forth v. Chapman, 1 P. Wms. 663, is the leading authority for this distinction; but it has 293been confirmed by a long train of subsequent decisions. 2 Jarm. 419, and cases cited; also Bamford v. Lord, 78 Eng. C. L. R. 707; Dunn & wife v. Bray, 1 Call 338 ; Hill v. Burrow, 3 Id. 342. The question in this case arises in regard to real, and not personal estate. For though the land in controversy is that which was devised to F. Bryan which, in the event of the limitation over taking effect, is directed to be sold and the money divided, (thus converting the subject, in that event, into personal estate,) yet, as we have seen, the question on which the case depends is as to the estate devised to J. F. Bryan, which in no event is directed to be sold. Then do the words “ upon the happening of the event of my son J. F. Bryan’s death” clearly manifest an intention to use the word “ issue” in a restricted sense? Similar words have, in England, been held not to have that effect. 2 Jarm. 439. In Walter v. Drew, 1 Com. R. 373, the words of the devise were, “It is my will that if W, my son, shall happen to die and have no issue, &e., then and in that case, and not otherwise, after the death of the said W, I give, &c. all my lands, &c. unto R, my son, to have and to hold the same after the death of the said W, to him and his heirs.” Held that W took an estate tail. In Doe v. Cooper, 1 East. R. 229, it was held that a devise of land to R C for the term only of his life, and after his decease to his issue as tenants in common, but in case he should die without leaving issue, then to E II in fee, gives to R C an estate tail. In Doe v. Goldsmith, 7 Taunt. 209, 2 Eng. C. L. R. 73, the devise was to F Gr and his assigns for his life, and immediately after his decease to the heirs of his body in such parts or shares as he should by deed or will appoint; and in default of such heir of his body, then immediately after Ids decease to J G-. Held, that F Gr took an estate tail by 294implication. See also Broadhurst v. Morris, 22 Id. 1, and Doe v. Rucastle, &c. 65 Id. 876. I have seen no English case in which similar words have had the effect of restricting the technical meaning of the words “die without issue,” in regard to real estate, though there have been several in which they have had that effect in regard to personal estate. 2 Jarm. 443; as in Pinbury v. Elkin, 1 P. Wms. 563; which was followed by Stratton v. Payne, 3 Bro. P. C. Toml. ed. 99, (cited in Read v. Shell, 2 Atk. 647;) Wilkinson v. South, 7 T. R. 553; Trotter v. Oswald, 1 Cox’s Cas. 317; and Rackstraw v. Vile, 1 Sim. & Stu. 604, 1 Cond. Eng. Ch. R. 309. But in Donn v. Penny, 19 Ves. R. 545, the words ‘.‘after him” (following the words “ for want of issue”) were held by Sir W. Grant not to vary the construction. “ That no judge of later times, (says Jarman, p. 446,) would have departed from the legal sense of the wmrds upon such an expression as that in Pinbury v. Elkin, admits of little doubt.” But he thinks that, followed as that case has been by the other cases above mentioned, it is too late to question its authority. “ We are taught, however, (he says,) by Sir W. Grant’s decision in Donn v. Penny, that the doctrine of the case of Pinbury v. Elkin will not be applied to any case in which the variation of phrase is such as fairly to take it out of the reach of its authority.” But stronger manifestation of intention to use the words “ die without issue” in a restricted sense will be required in a case in which a life estate only is given to the ancestor, than in a case in which a fee simple is given to him. In the latter case the issue may inherit the estate from the ancestor as his heirs at law, or derive it from him by deed or will; whereas in the former they cannot get it at all, if the words be construed in a restricted sense; and it is therefore necessary to con295strue them in a-technical sense to effectuate the manifest intention of the testator. There can be no conceivable motive for limiting the estate over only in the event of the ancestor’s dying without issue, but that the issue, if any, may have the estate. The restrictive words should therefore be extremely strong to require such a construction as would deprive the issue of any possible means of succeeding to the estate. See 2 Jarm. 440-1 — 2 ; in which the case of Wyld v. Lewis, 1 Atk. R. 432, is cited as having been decided under the influence of these views. But the opinion of Tucker, P. in Doe v. Craigen, 8 Leigh 449, is conclusive on this subject. “ Here, (said he,) the words, if she dies without heirs of her body, do not amount to a devise to the heirs of her body after the determination of her estate for life; and the consequence would be, that if she takes but an estate for life, her issue can never take any thing. The law of England would therefore construe this clearly an estate tail.” “ The estate for life must be enlarged into a fee tail, according to the general intent.” The authorities upon this subject, he said, are numerous; and he cited several, not only from the .English, but also from our own reports. The will in this case does not give an express estate for life to J. F. Bryan; but it gives the land to him, without the superaddition of any words of inheritance ; and there is nothing in the will, but the limitation over in the event of his dying without issue, to manifest an intention to give them more than a life estate. The consequence is, that but for that limitation over he would have been entitled only to a life estate, independently of the act dispensing with the necessity of words of inheritance in the creation of an estate in fee simple. The act of 1785 converting estates tail into estates in fee, declares that every estate in lands which since the 7th of October 1776 296hath been, or hereafter shall be limited so that, as the law aforetime was, such an estate would have been an estate tail, shall be deemed to have been, and to continue, an estate in fee simple. 12 Hen. Stat. 156. The question, therefore, in determining whether an estate tail is created, always is, (or at least was before the revision of 1819,) Whether it would have been such an estate under the law as it was before the 7th of October 1776. In the language of Roane, J. in Tate v. Talley, 3 Call 354, the act “ refers to and reserves all laws then in force for the decision of the question, Whether, in future as well as in past cases, an estate tail would (but for the interposition of the act) have passed or not?” And in the language of Fleming, J. in the same case, “ the whole effect of the statute is to convert estates tail into estates in fee simple, and not to alter the meaning of words or destroy the established rules of construction.” The doctrine of that case, which seems indeed to be nothing more than the necessary construction of the act according to its terms, has been recognized and acted on in all the subsequent cases. Some of the judges in some of the cases supposed that’ as the same act of 17S5, which referred to the law as it aforetime was, also dispensed with the necessity of words of inheritance in the creation of a fee, the law as it aforetime was must be considered as modified to that extent in the determination of cases arising afterwards. But that view, it seems to me, is opposed not only to the manifest design of the provision dispensing with words of inheritance, but to the plain language of the act. That design was to effectuate the probable intent of a grantor or testator where there is nothing in the deed or will to show that a less estate than a fee was intended to be given, and where but for the provision the grantee or devisee would be entitled only to a life estate. The act refers to and adopts the law as it 297aforetime was without limitation or restriction; and it expressly declares that every estate, &c. “ shall be deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been granted, &c. by construction or operation of law.” Where an estate is devised to A, and if he die without issue, to B, the statute, or rather the provision in question, does not give A an estate in fee, because the will, “ by construction or operation of law,” gives him an estate tail. So also where the words “ then on the happening of his death,” or any other words insufficient to restrict the technical meaning of the word “issue,” are superadded thereto. But it seems to be now definitively settled that the provision in question can have no effect in such cases. “ From an examination of the cases, (says Tucker, P. in Doe v. Craigen, supra,) it will be found that the question is expressly decided against the statute (that is against the effect of the said provision) in Ball v. Payne, 6 Rand. 73 ; and that the case of Bramble v. Billups, 4 Leigh 90, recognizes the principles of that decision in extenso.” Though he had struggled against that construction in more than one case, yet he said he could no longer undertake to controvert it, and must therefore surrender. 8 Leigh 452. The case of Lucas & wife v. Duffield, 6 Gratt. 456, was cited and very much relied on by the counsel of the appellant, to show that the words “ die without issue,” in this case, were used in the restricted sense of issue living at the death of J. F. Bryan, who did not therefore take an estate tail. Without undertaking to reconcile that case with others on the- same subject, it is sufficient to say that it certainly does not profess, nor was it thereby intended, to overrule the case of Lee v. Craigen, and other cases therein referred to; from which it is plainly distinguishable in this, that the land there was devised to W D, to him, and, his heirs. 298No reasons are assigned for the judgment; but, in construing the words “ die without legal issue,” to mean issue living at the death of W D, the court no doubt considered that it would not only be pursuing the restrictive words contained in the clause of attestation, but would be giving effect to the whole will; and that the issue might inherit the land as heirs of W D, or derive it from him by deed or will, and thus get the benefit intended for them, while the limitation over would take effect as an executory devise. The decision I imagine would have been different if a life estate only had been given by the will to W D ; and the manifest general intent in favor of the issue could only have been effected by enlarging that life estate into an estate in tail. See Roe v. Grew, 2 Wils. R. 322; and Doe v. Applin, 4 T. R. 82. The result of what I have said is, that in my opinion J. F. Bryan took an estate tail in the land devised to him, with remainder limited thereon to F. Bryan. It is not material to enquire whether that remainder is limited to take effect on the death of J. F. Bryan without issue indefinitely, or without issue living at his death; as, by the act for docking entails, all remainders, as well contingent as vested, dependent on the estate in tail, are utterly barred; and as the case occurred before the act of 1819 giving effect to every limitation upon such an estate which would be valid when limited upon an estate in fee simple created by technical language. 1 Rev. Code, p. 369, § 25. The following cases in our own reports tend strongly to sustain the principles on which the foregoing opinion is based : Carter v. Tyler, 1 Call 165; Hill v. Burrow, 3 Id. 342; Tate v. Tally, Id. 354; Eldridge v. Fisher, 1 Hen. & Munf. 559; Goodrich v. Harding, 3 Rand. 280 ; Bells v. Gillespie, 5 Id. 273; Broaddus v. Turner, Id. 308; Ball v. Payne, 6 Id. 73; Jiggetts v. Davis, 1 Leigh 368; Callana v. Pope, 3 Id. 103; Bram299ble v. Billups, 4 Id. 90; Doe v. Anderson, Id. 118; Doe v. Craigen, 8 Id. 449; Wright v. Cohoon, 12 Id. 370; Callis v. Kemp, 11 Gratt. 78; and Moore v. Brooks, 12 Id. 135. All of these cases concern real estate; in regard to which there has been little conflict in the decisions of this court. Many cases concerning personal property might be cited for the same purpose; but it cannot be necessary to do so. It now only remains to consider whether, as contended. by the counsel for the appellant, F. Bryan has concluded himself and his assigns from setting up the title of J. F. Bryan as tenant in tail, by the agreement with him of the 20th of April 1820, and by joining him in the deed of the 21st of August of that year, conveying the land to the appellee Jones. I think not. The agreement was between the two brothers; and was a compromise of their respective rights, whatever they might be, in the land devised to J. F. Bryan. None of the other children of the testator were parties to it, or had any interest whatever in the subject. The agreement was not intended to benefit, and could not injure them in anyway. The only consideration required of F. Bryan for being permitted to participate in the purchase money of the land was his joining in the deed and giving a covenant of warranty to the purchaser, and a covenant to convey to J. F. Bryan, in the event of his having a child or children, one-half of the land devised to F. Bryan, which is the land now in controversy. That land, as early as February 1826, was conveyed by F. Bryan by deed of trust for the benefit of a creditor. The deed was duly recorded; the land was sold under it j has been conveyed to several successive owners ; and ultimately to the appellee Jones, as he says, for full value paid for the fee simple estate; he and those under whom he claims having been advised, as he says, that F. Bryan *300had a good title to the land under his father’s will. If the said appellee had notice, of the agreement aforesaid, it does not appear that the intermediate vendors had; nor do I deem it material whether they had or not. I think the decree ought to be affirmed. The other judges concurred in the opinion of Moncure, J. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481586/	Daniel, J. delivered his opinion in the case of Brooke v. Shacklett, but it applies equally to both cases : In the case of Gallego's ex'ors v. Attorney General, 3 Leigh 450, decided by this court in 1832, it was held that the courts of chancery in this state had ho jurisdiction to enforce devises and bequests to religious societies or congregations. The court said, that as the statute of charitable uses, 43 Eliz. under which alone such vague bequests could be established, if ever in force in Virginia, had been repealed in 1792, in the general repeal of English statutes, charitable bequests were to be treated as standing on the same footing with other bequests. If definite, they were to be treated as trusts which courts of equity would execute by virtue of their ordinary jurisdiction; but if indefinite, they were no longer recognized by law, and could not be enforced: And a devise or bequest of property to or for the uses of a religious congregation was, it was said, of the character last mentioned. It was too uncertain as to the beneficiaries. The reasoning of the court, it is obvious, applies 310with equal force to a conveyance of property to a religious congregation by deed. I do not deem it at all necessary to enquire how far the decision in the case just cited may conform to the views of courts elsewhere in respect to this branch of the law, inasmuch as I am -not aware that the authority of the case as a true exposition of the law in this state, has been ever seriously questioned. If, therefore, the law now stood as it did prior to the passage of certain acts whose provisions will be presently noticed, I should find no difficulty in holding that the bill of the appellee ought to have been dismissed as stating no case for the jurisdiction of a court of equity. For though there can be no reverter of the property in question to the grantor or his heirs, inasmuch as the deed purports to be founded on a valuable consideration, and contains a warranty warranting to the trus'tees and their successors, the property, against the claim of the grantors, their heirs, and all persons claiming by or under them; Yet the same indefiniteness as to the beneficiaries which defeated the bequest to the Roman Catholic congregation in Gallego's ex’ors v. Attorney General, is to be found in the deed here, and would present an insuperable difficulty in the way of the court’s undertaking to control the trustees in the performance of their duties, at the instance of a beneficiary in the deed, whether he claimed a use in the property as a member of the Methodist Episcopal church, or as a member of the congregation of that church, worshiping at Salem church-house. It becomes necessary, therefore, to examine the acts of assembly just mentioned, and to enquire whether the trusts of the deed can be brought within the scope of their provisions. The first of the acts to which I refer, is the act entitled an act concerning conveyances or devises of places of public worship, passed February 3d, 1842. 311This act in substance declares, that where any lot or parcel of land has been heretofore, or shall be hereafter, conveyed to one or more trustees for the use and benefit of any religious congregation as and for a place of public worship, the same and all improvements thereupon shall be held by such trustee or trustees, and their successors, for the purposes of the trust, and not otherwise; that where such conveyance or devise has been heretofore made to trustees, or where such conveyance or devise shall hereafter be made, whether by the intervention of trustees or not, the Circuit superior court of law and chancery for the county or corporation where the property is situate, shall, on application of the attorney for the commonwealth on behalf of the authorized authorities of any such religious congregation, have power and authority to appoint trustees originally where there were none, or to substitute others from time to time, in cases of death, removal from the county or corporation, or other inability to execute the trust beneficially and conveniently; and the legal title shall thereupon become exclusively vested in the whole number of the then trustees, and their successors. The act, after further providing that a majority of the acting trustees of any such congregation may sue and be sued in relation to the title, possession or enjoyment of such property, concludes with a proviso, that such trustees, for the use of a religious congregation, shall not hereafter take or hold at any one time any tract of land in the country, exceeding in quantity thirty acres, or in any incorporated town, exceeding two acres; and that such real property shall not be held by them for any other use than as a place of public worship, religious or other instruction, burial ground and residence of their minister. The next in order is the act of 1S46-7, which gives to any one or more of the members of any religious congregation the right, in his or their 312names, on behalf of such congregation, to commence au<^ prosecute a suit in equity against the trustees, to compel them to apply the property for the use or benefit of the congregation, as their duty shall require. In 1849 these acts were substantially re-enacted and are embodied in the Code, in the eighth, ninth, tenth, eleventh, twelfth and thirteenth sections of chapter 77. The only material changes made by these sections of the Code in the provisions of the acts of 1842 and 1846-7, are those to be found in the eighth and tenth sections ; by the former of which, validity is given not only to every conveyance and devise, but also-to every dedication of property for the uses aforesaid; and by the latter of which it is declared that when books or furniture shall be given or acquired for the benefit of such congregation, to be used on the said land in the ceremonies of public worship, or at the residence of their minister, the same shall stand vested in the trustees having the legal title to the land, to be held by them as the land is held, for the benefit of the congregation.^' There is, I think, nothing in the language of these laws to show that the legislature designed to confer peculiar benefits on any particular religious sect or sects. And the manifestation of any such design would not only have been utterly at war with the whole spirit of our institutions, but in direct conflict with the letter of the constitution declaring that the legislature “shall not confer any peculiar privileges or advantages on any one sect or denomination.” The terms of the acts are broad enough to embrace not only such congregations as may be independent of others, choosing their own pastors, and making the laws for their own government, but also such as may be united with other congregations under a common government, from which they may respectively receive the pastors that are to instruct them or the laws that 313are to regulate them, without having any voice either in the selection or appointment of the former, or in the framing or enactment of the latter. And such is, I think, the obvious design of the legislature. The benefits which these acts confer are intended for any and every religious congregation, without regard to the peculiarities of religious faith or the forms of church government. It is, however, equally obvious that the conveyances, devises and dedications to which the acts mean to give validity, are conveyances, devises and dedications of property for the use of the “religious congregations” therein mentioned, in the limited and local sense of the term, viz : for the members (of these religious congregations) as such, who, from their residence at or near the place of public worship, may be expected to use it for such purpose. This interpretation is to be drawn from the general tenor of the acts, but more especially from the language of those portions of them that stand in the Code as the eighth and tenth sections of the chapter before referred to.. The dedications of real estate must be made for the use of the “ religious congregation, as a place for public worship, or as a burial place, or a residence for a minister;” and that of the “books and furniture,” “ for the benefit of such congregation, to be used on the said land in the ceremonies of public worship, or at the residence of their ministeruses, which it is plain, from their very nature and the connection in which they are mentioned, must belong peculiarly to the local society, “the religious congregation” at or near the locality of the property conveyed. Ho dedication of property to religious uses, which does not respect these rights of the local society or religious congregation, no deed which does not design such enjoyment of the uses of the property conveyed, by the local religious society or congregation, can be placed within the influence and protection of the statutes. 314The deed under consideration, in its first clause or declaration of trusts, provides that the trustees are to hold the property conveyed to them, and their successors forever, in trust that they shall build or cause to be built thereon a house or place of worship for the use of the members of the Methodist Episcopal church in the United States of America, according to the rules and discipline which from time to time may be agreed upon apd adopted by the ministers and preachers of the said church, at their general conferences in the United States of America; and in further trust and confidence that they shall at all times forever hereafter permit such ministers and preachers belonging to said church, as shall from time to time be duly authorized by the general conferences of the ministers and preachers of the said Methodist Episcopal church, or by the annual conferences authorized by the said general conference,- to preach and expound Q-od’s holy word therein. I am free to admit, that the first impression which this clause of the deed is calculated to make is that of a declaration of trust, not for the benefit of a local society, or congregation of Methodists worshiping or expected to worship at a particular place, but for the benefit of the “Methodist Episcopal church in the United States as an aggregate body or sect,” to the exclusion of any peculiar" rights of property in the land conveyed, in such local society or congregation. And if such is the true interpretation to be given the deed, it would plainly stand, for reasons already mentioned, out of the influence and operation of the statutes. Upon a fuller and more rigid examination of the deed, however, in which I have been much aided by the clear and forcible views presented by Chief Justice Marshall of Kentucky, in announcing the interpretation placed by the Supreme court of that state-, on a deed identical in its features with the deed under 315consideration, (see Gibson v. Armstrong, 7 B. Monr. R. 481,) I have come to the conclusion that the deed is entitled to be regarded as substantially a of the property therein mentioned, to the uses of the local society. And that said property is thus placed within the pale of the statutes. It is to be observed, as already stated, that the house or place of worship to be erected is to be for the ..use of the members of the Methodist Episcopal church, &c.; and as the members of the local society are necessarily members of the Methodist Episcopal church, in the sense in which the term is used in the deed, it follows that the land is conveyed for the benefit, to some extent at least, of the local society or congregation. It is to be noted further also, that except upon the happening of a certain contingency, the deed contemplates the perpetual use of the property as a place of worship. And it is obvious, from the nature of things, that the usual occupancy of the property, in attending upon the preaching and exhortations of their minister and in meeting for the observance of the various religious duties and exercises enjoined upon its members by the rules of the church, is one that can be enjoyed only by the local society; and that any use or occupancy of the house by other members of the .church must be necessarily casual and infrequent; so much so as not to interfere with the full use and enjoyment of it as a place of worship by the local members. Hence it is fairly inferrible that the former use and not the latter was mainly if not exclusively within the contemplation of the parties to the deed. This view is made still more apparent in the subsequent declaration of the trusts. The deed proceeds to provide further, that in case one or more of the trustees die or cease to be a member or members of the said church, the stationed minister or preacher who shall have the pastoral charge of the 316members of the said church, (meaning plainly the so-°iety>) is to call a meeting of the remaining trustees, who, upon his nomination, are to appoint one or more Persons> who shall have been one year a member or members of said church, to fill such vacancy: showing that the minister provided for m the deed is to have charge of the members of the local society; who, consequently, are expected to attend upon and receive his religious instructions and ministrations; and ..who are thus necessarily the members that are, peculiarly, to enjoy the occupancy of the house as a place of worship. And in the next and last clause, in which, upon a certain contingency, provision is made for the sale of the property for the discharge of debts incurred by the trustees on account of the premises, the surplus arising from the sale, after paying the debts, is directed to be placed in the hands of the steward of the society attending divine service on the premises, and is to be disposed of by the next yearly conference, according to the best of their judgment, for the use of said society. Does not this provision strongly persuade to the conclusion of a design that, in the event no sale of the property-is ever required, or until it is required, the immediate control and peculiar use of the property is to be and remain with the local society, by the contribution of whose members, in the main, (as is stated in the bill and not denied in the answer,) the church-house was erected, and to whose use the surplus proceeds of the property, in the event of a sale, are to be appropriated ? “ The primary object of the whole transaction, (in the language of Chief Justice Marshall in the case befoi'e cited,) must necessarily have been to provide and secure a place of worship according to the Methodist Episcopal discipline for the local society of that denomination, by and for which contributions 317were made, and which was expected to attend worship on the premises. The members of the Methodist Episcopal church at large, not belonging to the society, can, in a general view, have no other use of the local premises but through the instrumentality °f the local society, and by means of the subordination of the local use to the laws and authority of the church at large.” _ _ The provision that the trustees are at all times to permit the ministers and preachers belonging to the Methodist Episcopal church, who shall be duly authorized by the conferences of the church, to preach in the house to be erected, it is obvious, cannot in any degree detract from the character and effect of the deed as a dedication of property to the use and benefit of a religious congregation, in conformity with the statute. For the religious congregations, whose worship is not conducted under the lead and instruction of a minister, are comparatively few in number, and it is expressly provided in the statutes, as we have seen, that one of the uses to which the property dedicated may be applied, is, as “ a residence for a minister.” The only ground, therefore, on which it can be argued that this feature of the deed places it without the pale of the statute, is, that it sanctions the appointment of the ministers, and authorizes them to use the house for preaching, without any reference to the vote or wish of the congregation. It is true, that under the deed, and according to the rules and discipline therein referred to, the local societies have no voice in the selection of their ministers. But it does not follow that the deed therefore fails to fulfill any requirement of the statute, or is in any regard in conflict with its spirit. It could not have been unknown to the legislature that a large number of the religious congregations in the state are in such predicament; receiving their ministers from bodies who are bound by no rule 318of church government to consult the preferences of the local societies or congregations in appointing the pastors who are to have charge of them. To declare the deed objectionable and invalid because of the feature in question, would therefore be to impute to the legislature the design of making a most unjust and invidious discrimination against all the congregations just mentioned, and in favor of those who have the selection of their own pastors. Such an idea is wholly inadmissible. Upon the whole, therefore, though some of the provisions of the deed, upon a first inspection, did seem to me to look another wTay, I am satisfied that it does import a substantial dedication of the property therein mentioned to the uses of the local society, and that we cannot reject it, without adopting in respect to it, rules of construction favorable to the defeat rather than the upholding of such instruments : And I cannot see that we have the warrant of any sufficient reason for such a course. The dangers to be apprehended from church establishments, and the evils likely to flow from allowing them to acquire property under such broad powers as were at one time claimed and exercised by the chancellor in England as representing the superintendency of the crown, as parens patrice, over charities, might be; very properly looked to and considered by a court engaged, as this court was, in the case of Gallego's ex'ors v. Attorney General, in enquiring whether it had been left free to exercise a jurisdiction, which when once admitted it had no power to limit by any well defined boundaries. The subject is however presented to our consideration under circumstances wholly different.. The transfer and acquisition of property for religious purposes has been made the subject of a legislation in which the extent and the uses to which dedications of this character may be made, are precisely fixed and ascertained. The legislature has de319dared that permanency may be legally assured to the houses of worship, the pastoral residences, and the burial places of the various religious congregations the country. They have given the form and sanction of law to the opinion that the good to the community likely to result from placing the title to such property on a firm and certain footing, and thus putting an end, as far as the law can, to the unseemly disorder that might otherwise arise from leaving it to the uncertain tenure by which it has been hitherto held, is of such character and weight as to overbalance any vague apprehension that the object may not be attained without furnishing occasion for ecclesiastical encroachments dangerous to the institutions of the state. This course of the legislature has been approved by the convention of 1850-51, and in the 32d section of the 4th article of our new constitution it is declared, that the general assembly may secure the title to church property to an extent to be limited by law; whilst an additional guard against the dangers adverted to is thrown around the subject by a provision that there shall not be any grants of charters of incorporation to any church or religious denomination. In passing now, therefore, on such a deed as the one under consideration, no jealousy of the extension of ecclesiastical power can be properly allowed to exert an influence in the selection of the rules of interpretation to be applied. On the contrary, we should rather favor that interpretation of the instrument which, consistently with the rules of construction, will place it within the operation of the changed policy of our legislation. The deed being valid, as we must, I think, hold it to be, all doubt as to the jurisdiction of the court is ended; and we have to decide which of the two parties litigant are entitled to the use of the property which the deed conveys. There is no dispute between 320the parties about any matter of religious faith. The doctrines of the two parties are identical. Neither party denies that the ministers of the other are, in the doctrinal sense of the word, members of the Metho®P^SC0Pa^ church. But it is most obvious that “simply holding the same faith, without submitting to the government and discipline of a church, cannot make or keep a man a member of that church. To constitute a member of any church, two points at least are essential, without meaning to say that others are not so, a profession of its faith and a submission to its government.” Den v. Bolton, 7 Halst. R. 215. The local society of which both of the parties litigant claim to be members, is not a separate and independent society or congregation making its own laws, but is one of a large number of local societies belonging (prior to a division of the church which will be presently noticed) to the Methodist Episcopal church in the United States. According to the plan of church government, annual conferences were composed of the traveling preachers within certain boundaries fixed by the general conference. The preachers were received into the church by the annual conferences, and distributed ;or assigned to their several charges by the bishops. The general conference was composed of one for every member of each annual conference appointed either by seniority or choice at the discretion of each annual conference; Yet so that such representatives should have traveled at least a certain number of years. The general conference elected the bishops, and had “ full powers to make rules and regulations for the church under certain specified limitations and restrictions.” The members of the local societies had no right to be represented by delegates either in the annual conferences or in the general conference. They had no voice in making the rules for the government of the church; none in the appointment or selection 321of the preacher to whose charge they might be committed. If at any time before the division of the church a controversy had arisen among the members of the society at Salem church-house, in respect to the occupancy of the house — each party under the lead of a preacher claiming its exclusive use for purposes of worship — the dispute must have been determined by enquiring, not which of the two parties constituted a majority, or represented the wishes of a majority, of the members of the society, but which of the two preachers had been appointed and assigned to the society in accordance to the laws of the church; which of the two parties was acting in conformity with the discipline of the church, and submitting to its lawful government. These views conduct us necessarily to the enquiry as to what effect the division of the church is to have on the control of the uses of the houses of worship by the local societies. I do not deem it necessary to go into any statement of the causes which led to this division, which was effected under certain resolutions adopted by the general conference in 1844. The resolutions are preceded by a preamble setting forth that a declaration had been presented with the signatures of fifty-one delegates of the body from thirteen annual conferences the slaveholding states, representing that for various reasons enumerated, the objects and purposes of the Christian ministry and church organization could not be successfully accomplished by them under the jurisdiction of the general conference as then constituted; and that in the event of a separation, a contingency to which the declaration asked attention as not improbable, the conference esteemed it a duty to meet the emergency with Christian kindness and the strictest equity. The first resolution declares, that should the dele322gates from the annual conferences in the slaveholding ° . ° states find it necessary to unite in a distinct ecclesiastical connection, the following rule shall be observed with regard to the northern boundary of such connec^on : the societies, stations and conferences ad-Bering °bm'ch in the south by a vote of a majority of the members of said societies, stations ar)d conferences, shall remain under the unmolested pastoral care of the southern church; (and the ministers of the Methodist Episcopal church shall in no • case attempt to organize churches or societies within the limits of the church south; nor shall they attempt to exercise any pastoral oversight therein, it being understood that the ministry of the south reciprocally observe the same rule in relation to stations, societies and conferences adhering by vote of a majority to‘the Methodist Episcopal church;) provided also that this rule shall apply only to societies, stations- and conferences bordering on the line of division, and not to interior charges, which shall in all cases be left to the care of that church within whose territory they are situated. By the second resolution it is declared that ministers, local and traveling, of every grade and office in the Methodist Episcopal church may, as they prefer, remain in that church, or, without blame, attach themselves to the church south. And by the ninth it is declared that all the property of the Methodist-Episcopal church, in meeting-houses, •parsonages, colleges, schools, conference funds, cemeteries, and of every kind, within the limits of the southern organization, shall be forever free from any claim set up on the part of the Methodist Episcopal church, so far as this resolution can be of force in the premises. In May of the following year (1845) delegates, regularly appointed by the several annual conferences of 323the Methodist Episcopal church in the slaveholding states, met in Louisville, Kentucky, iñ a general convention, and adopted by a vote (of ninety-four to three) a resolution by which they declare the jurisdiction hitherto exercised over said annual conferences by the J general conference of the Methodist Episcopal church entirely dissolved; and that said.annual conferences shall be and they hereby are constituted a separate ecclesiastical connection under the provisional plan of separation aforesaid, and based upon the discipline of the Methodist Episcopal church, comprehending the doctrines and entire moral, ecclesiastical and economical rules and regulations of said discipline, except only in so far as verbal alterations may be necessary to a distinct organization, and to be known by the style and title of the Methodist Episcopal Church South. If this division of the church was lawful, it is obvious, I think, that the members of the local societies in the southern organization of the church stand in the same relation to the general conference, the annual conferences, the bishops, pastors, rules and discipline of the Methodist Episcopal church south, that they occupied before the division, in respect to those of the Methodist Episcopal church. There has been no change of faith, no change of doctrine, no change of discipline, no change in the mode of administering it: All remain as before. By the express terms of the plan of separation, no blame is to be attached to the pastors in the south for adhering to the church south; and the members of the local societies are to remain under the unmolested care of the southern church, as they were before under that of the Methodist Episcopal church. And the southern church is to occupy the same relation to the church property in the south that the Methodist Episcopal church before occupied in respect to it. If the division has been lawfully effected, why may not a controversy among the local 324members of a society iu respect to the use of the church property be settled by a resort to the same mode of enquiry, (merely changing the name of the church,) that would have determined it before ? Upon the hypothesis that the plan of separation is constitutional, the questions upon which such a controversy would now turn, would be, Which of the two parties is in regular connection with the Methodist Episcopal church south, recognizing its discipline, submitting to its government, and receiving its pastors? Those who can identify themselves with the party indicated in the enquiry, are entitled to the use of the property. We have still to enquire, Whether the general conference of 1844 had the power to adopt the resolutions authorizing the division ? If I had the largest freedom of time and space, I should not desire to pursue any very extended course of statement or of argument in considering this question. And I do not think that there is any necessity for my doing so. The question is one which has been deemed for some years past of such public concernment, of such vast importance in its bearing on the rights, interests and feelings of a large portion of the community, as to have been made the subject of the fullest examination. The zeal, ability and research of the most eminent men of the bar and of the church have been enlisted in its discussion. No fact or argument that could elucidate the subject remains to be stated or urged. Not only so, but the question has been decided by the Supreme court of Kentucky and by the Supreme court of the United States, upon such mature deliberation and with such unanimity, in each case, as to leave but little room for hesitating as to the propriety of regarding the question as settled. In each case the validity of the plan of separation was sustained. Smith v. Swormstedt, 16 How. U. S. R. 288 ; Gibson v. Armstrong, 7 B. Monr. R. 481. 325I deem it necessary to say but little more than that I concur in these decisions. I have not been able to perceive on what ground it is to be maintained the general conference of 1844 was not invested with as full powers over the subject as any general conference that preceded it. The six restrictive articles adopted by the conference of 1808 and by succeeding conferences manifestly contain no limitation of power that can bear on the question. The ministers and preachers in whom i’esided the supreme power, had, when they assembled in 1784 to frame a government for the church, full power to place it under one or two or a still greater number of general oi’ganizations, if they had believed that the interests of the church would be thereby promoted. And I do not see how it can be said that the general conferences of 1792, 1796, 1800, 1804 and 1808, composed as they were of the body of the ministers and preachers, did not each have the same power. And when they determined at the last mentioned conference (1808) to meet no longer en masse, but thereafter, by a delegation from their own body, the provision, which they adopted, that the general conference should have full powers to make rules and regulations for the church, under the limitations and restrictions contained in the six restrictive articles just mentioned, amounted in substance to an authority to the delegates in conference thereafter to exercise all the powers (except those prohibited in said restrictive articles) that could at any time have been exercised by a full conference of all the ministers and preachers. No further limitation on the powers of the general conference having been subsequently made, it seems to me that the conference of 1844 was clothed with the power which it claimed and exercised. The Baltimore conference sent no delegates to the Louisville convention, and in 1846 adopted resolutions 326declaring that they still regarded themselves a constituent part of the Methodist Episcopal church in the United States. By virtue of this action of said conference, the society at Salem church being within the limits of that conference, would have been left to stand in connection with the northern division of the church, as they stood before the division of the church; and the appellants, under the influence of the principles which I have endeavored to establish, would thus have been entitled, though a minority, to prevail in this controversy were it not for the provision in the first resolution of the plan of separation, by which the border societies have a right, by vote of a majority of its members, to choose to which j urisdictional division of the church they will belong. The members of Salem church, at a meeting which seems to have been fairly conducted, have determined, by a majority vote, to adhere to the church south. A still further question, however, remains to be settled, viz : Whether this is a border society ? The boundaries of the annual conferences have been from time to time fixed by the general conference, but no boundaries have been fixed for the societies, stations and circuits. In this state of things, it is obvious that in some cases it may be extremely difficult, if not impracticable, to carry out the plan of separation. It is next to impossible to lay down any general rule by which to define a border society. In some cases, however, as in the case of the Maysville Church, in 7 B. Monr. R. 481, and in the case of Clift Church, (which was argued with this,) the proximity of the houses of worship to a common .boundary of two conferences was so close that no question seems to have arisen as to the claim of the societies to be regarded as border societies, in the meaning of the resolutions. One of the witnesses expresses the belief that Salem society is not a border society, and that a portion of 327Warrenton circuit is interposed between it and the Rappahannock river, which is the common boundary of the Virginia and Baltimore conferences. But five or six other witnesses express the belief that Salem is a border society, and that no portion of the country between the church and the river is attached to the Warrenton circuit. The weight of this testimony is in favor of the proposition that it is a border society; and upon a question of the kind the conduct of the parties interested, as showing how they have regarded the matter, is entitled to much weight. The minority, by going into a vote on the question, have treated it as one on which a vote might be properly taken; which would not be the case on any other hypothesis than that of the society’s being a border society. And it seems to me, therefore, that this conduct of the parties, taken in connection with the other proofs in the cause, justifies us in treating this as a border society. By the vote of a majority, the society has been placed, in the manner contemplated and allowed by the plan of separation, in jurisdictional connection with the ecclesiastical government of the Methodist Episcopal church south; which, by virtue of its organization under said plan, is now the lawful successor of the Methodist Episcopal church in respect to the disciplinary control and protection of the members of the church adhering to the southern division. And such members have now the same right to enjoy the church property which was held by their societies before the division, in exclusion of those who repudiate the authority of the Methodist Episcopal church south, and refuse to receive the pastors appointed by it, that they had, before the division and whilst in connection with the Methodist Episcopal church, to enjoy said property in exclusion of any who might have refused *328to submit to the discipline and to receive the preachers of said last mentioned church. Such being the views which I have taken of the case, it seems to me that the decree of the Circuit court is erroneous, and ought to be reversed, and that the bill should be dismissed. Lee and Samuels, Js. concurred in the results of the opinion of Daniel, J. but not in the views or reasoning. Allen, P. and Moncure, J. concurred in the opinion. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481587/	Moncure, J. The debt for which the decree in this case was rendered consists of two parts; first, a balance claimed to be due for personal property sold by Conway Whittle to Littleton Tazewell in March 1803; and secondly, a balance claimed to be due for 344rent of a tract of land called Piney Grove, leased by said Whittle to said Tazewell from that time until the end of 1809. First: As to the balance claimed on account of the sale of personal property. This debt was due by 1 , A: 1 . . , „ "i parol contract. The original cause ot action accrued in 1803 or 1804. The suit was brought in 1825. It is of course barred by the statute of limitations; if the appellant had a right to avail himself of that defense, and if the debt has not been taken out of the ojieration of the statute. It is objected that the appellant had no right to avail himself of the statute ; not having relied on the same by plea or answer. It is certainly true, as a general rule, that this defense must be made by plea or answer: and the rule applies as well to a court of equity as a court of law. If this case comes under the rule, I think the defense was sufficiently made by answer. The same strictness of pleading is not required in equity as at law.' It is not common to plead the statute specially or formally in equity; but only to rely upon it, in general terms, in the answer. The only reason for requiring the defense to be made by plea or answer is that the plaintiff may have an opportunity, if he can, to take the case out of the operation of the statute. Any thing in an answer which will apprise the plaintiff that the defendant relies on the statute will be sufficient, if such facts be averred as are necessary to show that the statute is applicable. In this case the executor of Littleton Tazewell in his answer submits to the court, “ Whether, even should the statute of limitations not bar the claim, it may not be esteemed a stale account, especially as the same, if due at all, was so more than five years before the death of the testator.” This plainly shows that if the statute should be a bar to the claim, the respondent intended to rely upon it. And the facts necessary 345to sustain the defense are here set forth. In this respect the case differs from that of Hudsons v. Hudson's adm’r, 6 Munf. 352. It is certainly an informal of pleading the statute : hut proceeded no douht from the fact that the plaintiff had alleged the debt to be due by specialty; to which of course the statute would not have applied. Again : the defendant Goode expressly and formally relies on the statute in his answer; and as he, in right of his deceased wife, is sole residuary legatee of Littleton Tazewell, his defense enures to the benefit of the executor. In Shewen v. Vanderhorst, 4 Cond. Eng. Ch. R. 458, a creditor applied, under the common decree in an administration suit, to prove a debt which was barred by lapse of time; and the executors refusing to interfere, the plaintiff a residuary legatee, insisted on setting up the objection of the statute : Held, that it was competent for the plaintiff or any other party interested in the fund to take advantage of the statute, notwithstanding the refusal of the executors. In this case the executor, instead of refusing, manifested his intention to rely on the statute if it should be applicable. But I do not think this case comes under the general rule. The plaintiff averred in his bill that the debt was due by specialty; which was alleged to be lost. It afterwards appeared that the debt was not due by specialty, but by simple contract: or at least that was the presumption from the absence of any proof on the subject. Until then, it did not appear that the statute afforded a bar to the claim. The proper mode of making the defense, therefore, was by exception to the commissioner’s report of the claim ; which exception was accordingly taken. The appellant then had a right to avail himself of the statute; and the next question is, Whether the debt has been taken out of its operation ? The counsel for the appellee contended that it has; 1st, by the 346will, which charges the whole estate of the testator with e payment of his debts; and 2dly, by a new or acknowledgment, made by the personal representatives or one of them, within five years before the institution of the suit. • . As to the charge created by the will. It raises no trust in regard to the personal estate; and is merely inoperative, so far as that is concerned. It cannot therefore prevent the statute from being a bar to a suit brought to obtain payment of a debt out of the personal estate. Jones v. Scott, 4 Cond. Eng. Ch. R. 413; S. C. 4 Clarke & Fin. 382; Brown’s adm’r v. Griffiths, 6 Munf. 450; Braxton v. Wood’s adm’r, 4 Gratt. 25. But the charge creates a trust in regard to the real estate. Formerly it was supposed that such a trust embraced all debts of the testator, whether barred or not by the statute at the time of his death. But since the decision of Burke v. Jones, 2 Ves. & Beame 275, it has been considered to be well settled that a debt barred at the time of the testator’s death, is not revived by such a charge, in regard to real any more than personal estate. The able judgment of Sir Thomas Plumer in that case, as Ch. Kent has said, is well founded upon principle and upon the authorities, and puts an end to the question. Roosevelt v. Mark, 6 John. Ch. R. 266. See the principles stated and the cases collected on this subject in 1 Rob. Pr. new ed. p. 566-571. “ The doctrine, then, (in the language of that writer,) is narrowed down to this, that where there is a devise of real estate for the payment of debts, there is, as to the proceeds of such real estate, a trust created (according to Lord Redesdale’s opinion) for those creditors whose debts, at the testator’s death, were not barred by the statute; and after that event the statute, does not so run as to affect the claim of those creditors upon these proceeds.” It is unnecessary to determine the construction and effect 347of the provision on this subject in the Code, p. 592, § 9, as it does not apply to this case. In Lewis' ex'or v. Bacon's legatee, 3 Hen. & Munf. 89, it was held that a debt barred at the time of the testator’s death was, to some extent, revived by such a trust. But that case was decided in 1808, before the decision of Burke v. Jones, and ought not to be considered as settling the law of this state in opposition to the sound doctrine of the latter case. It was decided by three judges, who differed among themselves and made a compromise decree; and was decided at a period when the statute was almost entirely frittered away by the course of adjudication here and elsewhere. A striking illustration of this is afforded in the opinion of Judge Roane, who says, “It has been established, (and if it has not it ought to be,) that an advertisement by a debtor notifying all those who have any just debts owing to them, that they may apply at such a place and get payment, is such an acknowledgment as will bring a debt out of the statute.” Id. 109. He was for considering the debt revived as to the personal as well as the real estate. Then was the debt barred by the statute at the time of the testator’s death ? There is nothing in the record to show the precise period of his death; except the statement made by his executor and returned with Commissioner Green’s report, from which it appears that he died in November 1815; in which month also Ms will was admitted to probat. Regarding that as the period of his death, the debt in question was barred, in any view which can be taken as to the time when the cause of action accrued; whether it was in March 1804, when it is said the debt first became due, or July 26, 1809, the date of his letter to C. Whittle, or August 8, 1810, the date of the last credit given on account of the debt. But it was contended (and perhaps properly) that there is no sufficient evidence of 348the period of his death, or that it happened within five years after the cause of action accrued. Concede this, still it does not help the objection to the bar of the statute. The appellant relies on the statute; which is certainly a bar, unless the claimant can show , something which will take the case out of its operation. The burden of doing this devolves on the latter. He seeks to do it by producing the will. But that is not enough ; as the will was admitted to probat more than five years after the cause of action accrued. He ought further to have proved, if he could, that the testator died within five years after the cause of action accrued. This he has not done, and therefore he has failed to repel the bar of the statute by means of the will. As to any new promise or acknowledgment by the personal representatives, or either of them. The debt, as wTe have seen, was barred at the time of the testator’s death ; and if the counsel for the appellant was right in maintaining that a personal representative cannot revive such a debt, then there is an end of the question. But without expressing any opinion upon that point, and conceding, so far as this case is concerned, that such a debt may be revived by a personal representative, let us enquire whether this debt has been so revived. The letters of W. Tazewell of the 24th of July 1816, and 30th of November 1819, are plainly insufficient, according to all the recent authorities, to revive the debt. Even if they were sufficient; more than five years elapsed between the date of the last, and the institution of the suit; so that the debt was then again barred, unless in the mean time revived by some other promise or acknowledgment. The only evidence of any such promise or acknowledgment is the fact admitted in the answer of W. Tazewell; that, in compliance with the request contained in his letter of 349the 30th of November 1819, Whittle would furnish a statement of what appeared to be due from any doouments in his hands, “ a statement was furnished, no proof of its accuracy or any documents nied it, and none have been furnished to this day.” This fact, whether taken by itself, or in connection with the letters, cannot amount to such a promise or acknowledgment as will take the debt out of the statute. The only authority relied on to give it that effect, is Townes v. Birchett, 12 Leigh 173; decided by two judges in a court of three, and of course not a binding authority. The majority, Judges Tucker and Cabell, were of opinion that the rule, that “ an account current rendered by one party to another, received and held without complaint or objection, shall be deemed a stated account,” is not confined to accounts rendered by merchant to merchant of mutual dealings between them as merchants. The third judge, Allen, was of opinion that the rule is so confined. Whether it be so or not, it cannot apply to this case; in -which an account current is not rendered by one party to another, of transactions of which they are both cognizant ; but in which an account is rendered against the estate of a decedent to his personal representative, wholly ignorant of the nature or amount of the debt. A promise by the executor to pay the debt cannot be inferred from his receiving and holding the account without objection; and more especially, if the debt be barred by the statute. If an executor can revive a debt so barred, he can only do it by an express promise; or, at least, by such an express acknowledgment as plainly implies a promise to pay the debt. Indeed, in Tullock v. Dunn, 21 Eng. C. L. R. 478, Chief Justice Abbott said, “As against an executor, an acknowledgment merely is not sufficient; there must be an express promise.” See also 1 Rob. Pr. new ed. 575. But even if the statement rendered 350could be considered as an account stated, and sufficient to revive the debt, it does not appear that it was within five years before the institution of the su^- -i1 evei7 view of the case, therefore, the claim wkich arose from the sale of personal property, is barred by the statute. - Secondly: As to the claim for rent. The complainant alleged in his bill that the land was leased by deed on the 24th of March 1803, to be held from that time until the end of 1810, at the rent of one hundred and sixty-six dollars and sixty-six and two-thirds cents for the remaining part of 1803, and three hundred and thirty-three dollars and thirty-three and one-third cents per year for the residue of the term; that it was agreed that the lessee should retain four hundred dollars for the purpose of making certain improvements on the land; and that the deed contained a covenant for the payment of the rent, but, by some accident or misfortune unknown to the complainant, had been lost: And he claimed the whole amount of the rent, subject only to a credit for the four hundred dollars. W. Tazewell in his answer admitted that the land was rented of C. Whittle by L. Tazewell; but at what time, for what period, or on what terms, he did not know, and called for the strictest proof. He denied “that L. Tazewell ever consented, for the sum of four hundred dollars, to improve the Piney Grove estate to the extent which he did improve it. For the plantation had been unoccupied for many years; the dwelling-house had been burnt down; only one negro-house was standing, and that in so old and shattered a condition that it was not worth repairing, and the fencing entirely rotten or removed. Instead of this state of things when the plantation was returned to C. Whittle, besides other valuable improvements, L. Tazewell had built on it at his cost, a good dwelling-house with two rooms on the floor, and a brick chimney at each 351end, and a large well built barn, which together could not have been worth less than two thousand dollars.” He denied all knowledge of the deed of lease, and manded proof that it ever existed, and of its contents, The evidence shows that a deed of lease was executed, but does not show what were its contents. It shows that the annual rent was probably one hundred pounds, though Abrahams, the witness mainly relied on to sustain the claim, thinks the rent was ninety pounds. It further shows that the lease probably commenced in 1803, though Abrahams thinks it was in 1804; and that it determined at the end of 1809 instead of 1810, as alleged in the bill. There is no evidence of the loss of the lease, or of any search having been made for it. Abrahams, who proves its execution, thinks he last saw it in possession of C. Whittle, and advised L. Tazewell to take a copy; but does not know whether he did or not. There is no evidence that L. Tazewell agreed to make the improvements for four hundred dollars. On the contrary, Abrahams proves that the plantation was in a wretched condition, having little or no fencing around it, nor any building upon it except an old log house; that during the term he built a dwelling-house and smoke-house, and completed a dairy, and other workmen built a very substantial barn; and that under the agreement between C. Whittle and L. Tazewell, the cost of building all the said houses was to be deducted from the rent. His bill alone amounted to six hundred and ninety-six dollars and thirty-five cents; and included no charge for materials. It does not appear what was the cost of materials, nor what the cost of the barn and other improvements made upon the land. There is reason, however, for believing that the whole cost of improvements made by L. Tazewell under the agreement was equal, or nearly so, to the whole amount of the rent, and that at the termination of the lease he owed little 352or nothing on account of rent. That this was the opinion of the parties, or at least of L. Tazewell, is manifest from the tenor of his letter to C. Whittle of July 26, 1809, in which he says, “I have experienced considerable uneasiness at not having been able to pay your claim against me for articles purchased at Piney Grove,” excuses himself for not having done so, and expresses a hope that he would be able to do so by the end of the year; but makes no allusion whatever to any debt on account of rent. Is it credible that he would not have made such an allusion if he had owed all the rents (except four hundred dollars for improvements) according to the pretension set up in this suit; or even if he had owed any material part of them ? He lived six years after the date of that letter, and C. Whittle survived him; and yet it does not appear, and is not pretended, that he ever admitted his liability, or that application was ever made to him for any thing, on account of rent. Nor was any account for rent ever rendered to him or his representatives until after W. Tazewell’s letter of November 30th, 1819. If C. Whittle intended to make any claim on account of rent, the circumstances required him to make it promptly, and to prosecute it with diligence. Instead of doing so, no claim was asserted during the lives of the parties, nor until 1819, nor any suit brought until 1821; when, it seems, a suit at law was brought, which was pending two or three years and then dismissed ; the executor of O. Whittle having then, for the first time, discovered that the debt was not due by parol, as he had supposed, but by a specialty which had been lost. In 1825 this suit was brought in equity. In 1827 an order was made for the settlement of the account of L. Tazewell’s executor. Afterwards, in the same year, for the first time, depositions were taken to sustain the claim. In 1829 the order of account was placed in the hands of a commis*353sioner, whose report was not made until 1834; after which nothing further was done until 1841, when leave was obtained to file an amended bill, which accordingly filed, but more than a year thereafter. In 1846 an order was, for the first time, made, to take an account of what was due from the estate of L. Tazewell to the estate of C. Whittle; and it was not until 1853 that the decree'was made from which this appeal was taken. It would be difficult to excuse such gross laches in such a case. The excuse assigned for it is wholly inadequate for the purpose. A just account cannot now be settled. The proper parties to make the settlement are not in esse, but have long been in their graves. Their representatives know little or nothing about the facts; and even the original representatives of the alleged debtor have long since passed from the stage. There may or may not be something due. It is matter of conjecture merely; and the most probable conjecture is that nothing is due. I think we must so conclude; and, at all events, that no relief can now be given on account of the claim for rent. For the foregoing reasons, I am of opinion' that the decree ought to be reversed, and the bill dismissed with costs. The other judges concurred in the opinion of Moncure, J. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481591/	Lee, J. delivered the opinion of the court: The court is of opinion that in a proceeding by way of caveat to prevent the emanation of a grant for lands under the provisions of the act of March 1, 1819, or those of the Code of Virginia, all the facts material in the cause and not agreed by the parties should be found by the jury, or if a jury be dispensed with and the whole case submitted to the court upon the law and the facts, should be ascertained by the court; and that the facts so agreed, if any, and those so found by the jury or ascertained by the court necessarily become and should in every case be made a part of the record to the end that in the absence of pleadings in writing and a general verdict, the nature of the controversy and the character and effect of the judgment may distinctly appear and that the latter may be reviewed by the proper appellate tribunal. And the court is further of opinion that if in such statutory proceeding by caveat the inferior court shall fail to certify and make part of the record, the facts proven by the evidence, but shall in lieu thereof certify the evidence itself, yet if it shall appear to the appellate court that there is no conflict in the parol evidence and that accepting the whole as true, it may 393proceed safely to judgment upon the same, it is the duty of such court so to proceed and to give j udgment according to the very right of the cause. And the court is further of opinion that in the parol testimony certified by the Circuit court in this cause there is no conflict nor discrepancy in any material particular, but that the same may fairly and properly be regarded as entirely consistent throughout and as devolving no duty or necessity upon the court to distinguish between the different witnesses or the different degrees of weight and credibility to which their testimony may be entitled; and that this court may safely proceed to review the judgment upon the certificate of the judge of the Circuit court together with the facts agreed in the cause, and that it is its duty so to proceed and to render its judgment between the parties upon the whole case. And the court is further of opinion that to entitle the appellant to a review of the case upon the facts in this court, it was not necessary that he should have filed a bill of exceptions to the judgment of the Circuit court given in favor of the appellees nor that he should as upon a verdict by a jury in an ordinary action at law, have moved for a new trial of the cause, and if refused, have taken an exception to such refusal ; but that it was sufficient that the Circuit court should, as it did, make the facts agreed and its certificate of all the evidence documentary and parol, the latter being in no respect conflicting, part and parcel of the record (as a quasi special verdict) by an express order to that effect made upon rendering judgment, and that the same should now be considered by this court in the same manner and to all intents and purposes as fully as if such facts agreed and evidence had been made part of the record by a formal bill of exceptions signed and sealed for that purpose. And the court is further of opinion that in passing 394upon the matters in controversy in this cause, it is proper to consider, in connection, the act forming the counties of Ohio, Yohogania and Monongalia, passed in October 1776, (ch. 45), the act forming the county of Greenbrier passed in October 1777 (ch. 18), the act for dividing Monongalia county, passed May 1784 (ch. 6), the act of October 1786, (ch. 101) for dividing the county of Harrison, the act of the 4th of December 1787 (ch. 94) forming the county of Pendleton, the act of the 14th December 1790 (ch. 43) forming the county of Bath, the act of December 3, 1796 (ch. 56) annexing part of Bath to Pendleton, the act of December 21, 1821 (ch. 27) forming the county of Pocahontas, and the act of the 19th of March 1847 (ch. 56) forming the county of Highland, as being in a certain sense acts in pari materia, and aiding in the proper construction of the acts relating to Pendleton and Pocahontas counties and in defining the precise territory embraced within the limits of the same, respectively. And the court is further of opinion that these acts being intended merely for the division and arrangement of the territory which they embrace for local municipal purposes and the convenient and economical administration of the government within the same should not be construed with the same strictness which is to be observed in the construction of a grant or of a contract between individuals affecting rights of property, but that a more liberal and beneficial rule should be adopted the object being to ascertain the true meaning and intention of the legislature in any given act by considering the same in connection with all others in pa.ri materia and with the general policy of the legislature and such intention to effectuate and carry out whensoever and wheresoever the same can be discovered. And the court is further of opinion that in determining the territorial boundaries specified in said acts 395due weight should be given to the cotemporaneous interpretation placed upon the same by the courts and other lawful authorities within the same and by the population at large residing therein : and that maps of such territory made out or published by authority of law may properly be referred to as persuasive evidence in support of the pretensions of either party to have such weight as consistently with the other testimony in the cause they shall appear to be entitled to. And the court is further of opinion that the lands embraced by the entries of both parties in this cause were prior to the passage of the act entitled “ an act adding part of the county of Bath to the county of Pendleton” passed December 3, 1796, clearly within the boundaries of the county of Bath, but that by the provisions of said act, all that part of the said county of Bath within which said lands were situate, must be held and taken to have been stricken off from the-county of Bath and annexed to the county of Pendleton. For although upon the terms of said act it might appear to be doubtful whether the call for beginning “ on the top of the Alleghany mountain, the northwest side of the line of the county of Pendleton,” would not require that the beginning should be at some point on the Main Alleghany mountain (that lying east of the eastern fork or branch of Greenbrier river) as contended for by the appellant, or could be satisfied by beginning at a point on the mountain lying west of the north or western fork or branch of said river, (the same being from ten to fifteen miles distant from the line of Pendleton county as it then ran) as contended for by the appellees, yet considering that said last mentioned mountain was also recognized as a range of the Alleghany and was commonly known as the “Back Alleghany,” and that by the cotemporaneous construction placed upon the calls of said act by the County court of Pendleton in its order direct396ing the running of the lines supposed to be called for in said act, and the actual running of the same beginning at letter R on the plats of surveyors Johnson and Holloway thence S 68 E, 500 poles to a chesnut oak on a mountain at the lower end of John Slaven’s plantation, at the point designated by letter S, and that a report of such running was made to the said County court of Pendleton and was by said court accepted and recorded, as evidencing the true courses of the lines between the counties of Bath and Pendleton as established by said act: considering also that after the passage of said act exclusive jurisdiction over the territory in question was exercised by the courts and officers of Pendleton county without claim or contestation on the part of the authorities or people of Bath county, which jurisdiction was recognized by the court of the adjoining county of Randolph in its official acts, as within the rightful authority of the court of Pendleton county : and further, as in the act erecting the county of Pocahontas passed on the 21st of December 1821, there is a call for a straight line from the top of the mountain between the Valley river and mouth of the Dry fork of Elk river where the road from Clover Lick to Randolph court-house crosses said mountain, to where the line of Pendleton county intersects the line of Bath and Randolph counties on the top of the mountain between Greenbrier and Cheat rivers, and a call to run thence with the top of the said mountain to where the road leading from Slaven’s to Randolph court-house crosses it, which calls cannot be satisfied by running the lines of the territory annexed to Pendleton by the act of 1796 according to the pretensions of the appellant but are fully satisfied by the points R and P and the line on the top of the Back Alleghany between them, according to the pretensions of the appellees, and are therefore to be regarded as a legislative interpretation of the act of 3971796 and as demonstrating that the beginning of the boundary of the territory thereby proposed to be annexed to Pendleton was and is upon the Back Alleghany and not the Main Alleghany and at or near the point B as claimed by the appellees; and, moreover, as there is no sufficient nor scarcely any conceivable reason why the legislature should have annexed that portion of the county of Bath lying south of a line running from some point on the top of the Main Alleghany mountain to the lower end of John Slaven’s plantation to the county of Pendleton leaving out and retaining as part of the county of Bath though connected with the body of the county only by the narrow neck of land on the mountain from S to B, all that territory lying north of said line according to the pretensions of the appellants; and as that construction which annexed the whole of said territory to the county of Pendleton was accepted by the population within its boundaries, generally, and by the people of the adjoining counties, as expressing the true intent and meaning of said act, the conclusion to which the court must be brought is that the call for the northwest side of the Pendleton line must be rejected as conflicting with the intention of the legislature or that it must be so corrected or its literal meaning so modified, that the beginning of the boundary of the annexed territory must be placed at or near letter B, running thence to S, thence to Dinwiddle’s gap thence with the other calls designated in the act to the Pendleton line and that all the territory north of the lines from B to S and thence to Dinwiddie’s gap comprehending the whole of both forks of the Greenbrier up to the lines of Bandolph county including all the lands covered by the entries of the parties in this cause was thus annexed to and made part of the county of Pendleton. But the court is further of opinion that at the time 398of the passage of the act of the 21st of December 1821 for the formation of the county of Pocahontas it would appear to have been the general policy of the legislature as evinced by various acts of legislation before and after, to establish and preserve the top of the Main Alleghany mountain as the line of boundary between the adjacent counties on either side, from which policy at the date of said act there appear to have been no existing variations except in the instances of the counties of Montgomery and Monroe as to which from the depression and flattening of the Alleghany ridge in that particular section, the reason founded on the greater convenience and accessibility to the population did not apply with equal force, and except the instances of the counties of Bath and Pendleton which latter county embraced so much territory west of the Alleghany as lay between the Main Alleghany and the Back Alleghany northwardly of the lines from R to S and from thence to the Main Alleghany in the direction of Dinwiddie’s gap and which had been annexed to the said county of Pendleton by the act of 1796; and that in the construction of the various acts touching the territorial boundaries of 'counties, this policy should be duly considered and respected, and no intention to depart therefrom should be imputed to the legislature except it be plainly expressed or its purpose to do so be sufficiently manifested,- and in the absence of such plain expression or manifest purpose the general intent to establish the top of the Alleghany as the line of county boundaries, should be effectuated, and that the calls in such acts should be reconciled and harmonized, for that purpose a particular call which taken literally would conflict with the intent of the act should be disregarded or modified and any error in the same arising from an imperfect knowledge of the topography of the country or any other fortuitous cause should be corrected. 399And the court is further of opinion that in the arrangements of the territory of the state for county municipal purposes, it has also been the general licy of the general assembly to avoid inconvenient elongations and awkward or undue contractions of the territory of a county, and to preserve the same in as compact a form as practicable, and especially for reasons of high public necessity and convenience, to keep the same in one body and avoid the detachment of any part of a county from the residue by the interposition of any other county; and that in the construction of such acts it should be presumed that such was the intention of the legislature and no different interpretation should be admitted unless the contrary be plainly expressed or it shall appear that the legislature did intend to depart from the policy which had hitherto prevailed upon that subject. And the court is further of opinion that there was no sufficient or conceivable reason why the legislature in forming the said county of Pocahontas should have left that portion of territory on the heads of the two forks of Greenbrier (the territory northwardly of the line P Y) within the limits of the county of Pendleton and that the reason why it is to be supposed it was the intention of the act of 1796 to annex the said territory to Pendleton comes with equal or greater force to demonstrate that it was the intention of the act of the 21st of December 1821 to embrace the same within the limits of the county of Pocahontas, thereby erected. And the court is of opinion that the legislature did intend by said act to restore to the county of Pendleton its former boundary along the top of the Alleghany mountain and to embrace all of its territory which lay west of that line within the said county of Pocahontas; and that the legislature believed it had done so is plainly inferrible from the provisions of the act forming Highland county out of parts of Pendle400ton and Bath counties passed March 19, 1847. This ac^ erects the new county out of territory on the east of the Alleghany without including any lying on ^ weg£ gjc\|e. an(j ^ jg impossible to suppose, if a Por^on Pendleton county had at that time lain on the west side of the Alleghany, the legislature would not have included it in the county of Highland but would have suffered it to remain part and parcel of Pendleton county though detached and separated from it by the intervening county of Highland when it might just as well and every consideration of public policy and convenience required that it should form, part of the county of Highland which it adjoined. That such was the belief of the legislature is also apparent from the act of the 24th of March 1838 providing for a reassessment of the lands in this commonwealth ; for whereas by the third section of the act of February 18, 1817, the counties of Bath and Pendleton, as well as the counties of Monroe and Montgomery, are described as lying on both sides of the Alleghany, yet after the passage of the acts forming said counties of Bath and Pocahontas, by the said act of 1838, when the legislative mind was directed to the very question, the counties of Bath and Pendleton are embraced in a district composed of counties lying between the Blue Ridge and Alleghany and the counties of Monroe and Montgomery, only, are still described as lying on both sides of the Alleghany. And these acts may fairly and properly be considered in connection with the act forming Pocahontas county as supplying a legislative interpretation of the meaning and intent of the legislature in the provisions of said last named act. And the court is further of opinion that in giving locality to the points called for as corners in said act, the terminus of the line from the top of the mountain between the head of the Valley river and the mouth 401of tlie Dry fork of Elk river to where the line of Pendleton county intersects the line of Bath and Eandolph counties is to be placed at or near letter E the plats, and that of the line thence with the top of the mountain to where the road leading from Slaven’s to Eandolph court-house crosses it, is at letter P ; but that the terminus of the line to the top of tlie Alleghany mountain opposite the head of the East fork of Greenbrier river is not at a point opposite the head of an eastern branch of the fork of Greenbrier known as the East or South fork as claimed by the appellees, but is to be sought on the top of the Alleghany mountain opposite to the head of the main or longest branch of said fork: that the East fork of said river intended by said act was the main fork running along the foot of the Main Alleghany, the head of which was the head of its longest branch; and consequently the boundary line between the top of the Back Alleghany or Green-brier mountain and the top of the Main Alleghany is not the line P Y as contended for by the appellees, such line neither satisfying the literal call of the act nor in the opinion of this court being the boundary intended by the legislature, inasmuch as it would according to the appellant’s pretensions entirely cut off from the body of the county of Pendleton a portion of its territory lying west of the Alleghany mountain, or if as the appellees contend, it would not entirely sever it, it would yet even according to their pretensions leave it connected with the rest of the county by a narrow neck of land not exceeding one hundred poles in width and stretching out from such neck in a southwestern direction from fifteen to eighteen miles; and if such portion wrere not so severed and disconnected by that line, it would certainly be so upon the formation of Highland county which took off all the southern part of Pendleton east of the Alleghany, all which would be contrary to the general policy and plain intention 402of the legislature. Whilst in running the boundary from P to the top of the Alleghany opposite to the head of the East or South fork of the Greenbrier, to carry out the intention of the legislature, it would seem not unreasonable, and would do no violence to the approved rules of construction to assume that one or more calls may have been omitted or that the call for a straight line from P was made in mistake arising from the very imperfect knowledge, as it is proven to have been, of the exact topography of the mountain region in question, and to supply such omitted calls or disregard such repugnant call or so corréct it or modify its literal import that the said boundary might be run along the top of the Back Alleghany or Greenbrier mountain, with the Randolph county line until it reaches the top of the Main Alleghany at a point opposite to the head of the longest branch of the South or right hand fork (ascending) of the Greenbrier river, so as to embrace the whole of the territory annexed to the county of Pendleton by the act of 1796 which lay northwardly of the line from P to the top of the Main Alleghany in the direction of Dinwiddie’s gap, and between the boundary of Randolph county on the Back Alleghany and the top of the Main Alleghany, within the limits of the county of Pocahontas. And it appearing to the court that this construction of the act forming Pocahontas county is supported by the cotemporaneous exposition thereof by the courts and other authorities of Pocahontas county in exercising immediately after its passage exclusive jurisdiction over said territory without question in any quarter, by the complete surrender of such jurisdiction by the courts and other authorities of Pendleton county, by its recognition by the general assembly in repeated acts of subsequent legislation, by the representation of county boundaries on maps prepared and published under the authority of the legislature and *403in conformity with the provisions of laws requiring the exterior boundaries of the counties to be laid down by actual survey or by reference to one or more actual surveys and strict accuracy to be observed in denoting the true position of the corners of adjacent counties, and by its universal acceptance as the true construction by the people generally from the passage of the act until the origin of the present litigation, the court is of opinion that this construction should prevail and should be adopted by this court as the true exposition of the act in question. And it appearing to the court that the foregoing views and opinions of the court are decisive against the pretensions of the appellees, it is deemed unnecessary to express an opinion upon any other question arising in the cause. The judgment of this court therefore must be that the judgment of the Circuit court be reversed with costs to the appellant, and that the caveat be dismissed with costs to the caveatee in the Circuit court. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481592/	Moncure, J. The first objection taken to the decree of the Circuit court is that the appellee has an adequate remedy at law, and that a court of equity has therefore no jurisdiction of the case. In answer to this objection it is contended that he has not an adequate remedy at law, first, because of the nature of the subject of the contract, being slaves; and secondly, because of the contingent and uncertain interest contracted for, being an estate for life or widowhood. I will consider these answers in their order. And first, as to the nature of the subject of the contract. This is believed to be the first case in which the question has been distinctly presented for decision to this court, Whether a court of equity will specifically execute a contract for the sale or delivery of slaves, unless it be shown that they are of peculiar value, or that adequate compensation for them cannot be- obtained at law: Though there are several decisions of the court, which will be heréafter noticed, having an important bearing upon the question. The English books throw no light on the subject. The only English case I have seen in which the question was involved, is that of Pearne v. Lisle, Amb. R. 75 ; which was a suit to compel the delivery of certain negroes which had been hired by the defendant in the island of Antigua. In that case Lord Hardwicke is reported 411to have said, “ As to the merits, a specific delivery of the negroes is prayed; but that is not necessary, others are as good; indeed in the case of a cherry-stone very finely engraved, and likewise of an extraordinary wrought piece of plate, for -the specific delivery of which bills w7ere brought in this court, they could not be satisfied any other way; their value arose on circumstances peculiar to themselves; but in other things, as diamonds, one may be as good as another.” His lordship rightly considered negroes as property; but seems not to have considered them as human beings, of greater peculiar value than “ a cherry-stone very finely engraved,” or “ an extraordinary wrought piece of plate.” Certainly that case can have no influence on the decision of this; which, must be decided on principle, and with such aid as may be derived from our own decisions, and those of our sister states in which the institution of slavery exists. How stands the case on principle ? It is a general rule that a party cannot come into equity for relief if he has an adequate remedy at law; but if he has not, he is entitled, for that very reason, to come into equity. On this rule, the doctrine of specific performance rests. Courts of equity have long, if not always, exercised a general jurisdiction in the specific execution of contracts concerning real estate; “ not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy.” Adderley v. Dixon, 1 Sim. & Stu. 607,1 Cond. Eng. Ch. R. 311, 2 Story’s Eq. Jur. § 717. Although in some cases of contract for the purchase of real estate a party may have an adequate remedy at law, yet he is not bound to resort to it, but may, at his election, sue in equity. Where such a contract is unobjectionable, it is as much of course for a court of equity to decree a specific performance, as it is for a court of law to give damages for the breach of the 412contract. Hall v. Warren, 9 Ves. R. 605. The party need not show that the land is of peculiar value, or that he could not be adequately compensated in damages for the loss of it. It is enough that he so considers, and prefers to have the land in specie. And that he does so is conclusively shown by his suit for specific performance. His right to bring such a suit in all cases is founded on the nature of the subject, and on the advantage of having a general rule and the difficulty and inconvenience of forming exceptions thereto. Generally an adequate remedy may be had at law for the breach of a contract concerning any other personalty than slaves; and therefore, as a general rule, a court of equity will not enforce the execution of such a contract. But sometimes an adequate remedy at law cannot be had for the breach of such a contract; and then, its specific execution will be enforced in equity. As, however, it would be presumed, from the general nature of such other personal property, that an adequate remedy may be had at law for the breach of a contract concerning it, the contrary ought to be made to appear in any case in which the specific execution of such a contract may be sought. How let us apply the test to the peculiar species of property under consideration. Are slaves, in their very nature, such property as that an adequate remedy at law cannot generally be had for a breach of a contract to sell and deliver them ? If they are not, then the same principle applies to them which applies to other personal property. But if they are, then the same, or nearly the same, principle applies to them which applies to real estate; and in a suit for specific execution it will be presumed, from the very nature of the subject, and without any allegation to that effect, that an adequate remedy cannot be had at law. I am of opinion that they are. Slaves are not only property but rational beings; and are generally acquired with 413reference to their moral and intellectual qualities./ Therefore damages at law, which are measured by the ordinary market value of the subject, will not generally afford adequate compensation for the breach of a contract for the sale of slaves. There is at least as much reason for enforcing the specific execution of a contract for the sale of slaves, as of a contract for the sale of real estate. The only difference between the two cases seems to be this, that while in the latter specific execution will always be enforced if the contract be unobjectionable and the suit be brought in due time, it will not in the former, if it appear that the slaves were purchased as merchandise, without reference to their peculiar value to the purchaser, or that the plaintiff is a mere mortgagee or other incumbrancer : in which case, as the slaves are to be sold at all events, damages at law assessed according to their) market value, would be adequate compensation. Thus stands the case on principle, as it seems to me. Let us now see how it is affected by any decisions in this and other southern states. And first, in regard to the latter. In South Carolina the subject has received fuller consideration than in any other state; and the law is now firmly settled in precise accordance with what I have stated. There is some apparent contradiction in the earlier cases, as might naturally be expected in the application of principle to a new subject. The line between real and personal estate in regard to the specific execution of contracts had been so long drawn, and was so well marked in the English books, that the courts were at first inclined to apply the same rule to slaves as to other personal estate. Accordingly, Farley v. Farley, 1 McCord’s Ch. R. 506, was decided on that principle. But in Sarter & wife v. Gordon, adm’r, 2 Hill’s Ch. R. 121, it was laid down as a general rule that a bill will lie for the specific delivery 414of slaves as for the specific performance of a contract for the sale of land. In Horry v. Glover, Id. 515, the same rule is laid down, and many forcible observations are made to show the injustice, uncertainty and inconvenience of any other rule. It is also stated as an exception to the rule, that if a purchaser contract for slaves generally, with no view to any particular individuals, or as merchandise, to sell again, the remedy is at law. In Young v. Burton, 1 McMul. Equ. R. 255, the subject was fully considered by the Court of errors, and the cases of Sarter v. Gordon and Horry v. Glover were entirely approved. In reference to those cases the court saj, that although they were attended with the peculiar, or rather common circumstance that the slaves in controversy were family slaves, it was the intention of the court to lay down and establish a general rule. And in reference to Farley v. Farley, and the other early cases on the subject, they say, that those cases were decided without reference to that distinction which obviously exists between slaves and other chattels, and were based on a servile adherence to the English rule, and a total disregard to the principle on which it was founded. The whole opinion of the court in that case is very able, and I think conclusively demonstrates the correctness of the principle it affirms. There is nothing in conflict with it in any subsequent case. There has been, so far as I have seen, no subsequent case on the subject in the Court of errors. There have been several in the Court of appeals in equity; but they all recognize and follow Young v. Burton, which is regarded as finally settling the law on the subject in that state. Ellis v. Commander, 1 Strobh. Equ. R. 188; Bryan v. Robert, Id. 334; Sims v. Shelton, 2 Id. 221. The same doctrine prevails in North Carolina. Williams v. Howard, 3 Murph. R. 74. Also in Tennessee. Loftin v. Espy, 4 Yerg. R. 84; Henderson v. Vaulx & wife, 10 Id. 30. 415Also in Mississippi. Murphy v. Clark, 1 Smeades & Marsh. 221; Butler v. Hicks, 11 Id. 78; Hull v. Clark, 14 Id. 187. In Georgia a different doctrine prevails; and it is held, in conformity with the English rule in regard to chattels, that to give a Court of equity jurisdiction to enforce a specific delivery of slaves, it is necessary to charge and prove peculiar circumstances ; as that they are family servants, a carpenter, blacksmith, wagoner, hostler, &c. Dudley v. Mattery, 4 Georgia R. 52, 65. Also, it would seem, in Alabama; Savery v. Spence, 13 Alab. R. 561; though I have not seen the case itself, the volume containing it being out of place in the library. The foregoing are all the decisions of our sister states, within my knowledge, which appear to have a material bearing on the subject. There may be others: But I think it may be safely concluded that the decided preponderance of authority to be derived from that source is in favor of the general jurisdiction of equity to enforce the specific execution of a contract to sell or deliver slaves. I will now refer to such of our own decisions as seem to me to affect the question. They are all cases in which the question was, whether a court of equity would enjoin the sale of one man’s slaves under an execution against another man’s goods. In Wilson v. Butler, 3 Munf. 559, the affirmative of the question was held; the court being of opinion that the remedies of the owner at law are not in exclusion of a proceeding in equity, having for its object the retention of the property in specie. The case was expressly placed on the same ground, in regard to equitable jurisdiction, with a suit for specific performance; thus admitting, as it seems to me, that in such a suit to enforce the delivery of slaves, the jurisdiction of equity exists. Scott v. Halliday, 5 Id. 103, and Sampson v. Bryce, Id. 175, were cases of the same kind, and decided in the same way. In Bowyer v. Creigh, 3 Rand. 41625, the plaintiff was an incumbrancer merely, and it was held that he had an ample remedy at law, and therefore no right to come into equity. What is said by Judge Carr in delivering the opinion of the court, on the general question of the jurisdiction of equity in such cases, is obiter dictum, and in conflict with subsequent decisions, which will be presently noticed. In Allen v. Freeland, Id. 170, which was decided before, though reported after Bowyer v. Creigh, the court was unanimously of opinion that the appellant claimed the slaves in controversy under a fraudulent sale, and therefore affirmed the decree dissolving his injunction. Three of the judges intimate their opinions on the question of jurisdiction in such cases. Judge Carr’s conforms with the views expressed by him in Bowyer v. Creigh, and takes the ground that peculiar value must be shown to give the court jurisdiction. Judge Green inclined to think that slaves ought prima, facie to be considered as of peculiar value to their owners, and not properly a subject for adequate compensation in damages, as land is considered to be to a purchaser; but that this presumption may be repelled, as in the case of a person purchasing slaves for the avowed purpose of selling them again. And he inclined to think it was repelled by the circumstances of that case; though he said it was not necessary to decide the case on that ground. Judge Brooke, after commenting on the peculiar nature and value of the property, said that in all such cases this court had exercised a restraining power, except a case in which, whatever may be the decision of it, the property is to be sold and the only controversy is as to the proceeds of sale; and he therefore thought the injunction was properly awarded; though upon the merits he concurred with the rest of the court in affirming the decree. In Randolph v. Randolph, 6 Rand. 194, the question, whether slaves are prima facie of such peculiar value as to give a court of 417equity jurisdiction to restrain a wrongful sale of them under execution, was fairly presented for decision: And four out of the five judges concurred in opinion that they are. Judge Green said, “ This prima facie presumption may however be repelled by circumstances. As if the slaves were necessarily to be sold, (as in the case of their being pledged for the payment of debts,) and the question is between a creditor claiming under a specific lien, and one claiming under execution; or, if they were in the hands of the owner as a subject of traffic; in such cases the injury done to the owner by seizing and selling them, under an execution against another, would be precisely and accurately measured by their market value.” Judge Cabell said, “It should be regarded as a general rule, that the courts of chancery are bound to interpose whenever the slaves of one man are about to be sold to pay the debts of another. The exceptions to this general rule, whatever they may be, are to be brought forward and established in each particular case by those who claim the benefit of them.” The other two concurring judges were Brooke and Coalter. Judge Carr delivered a dissenting opinion, in which he adhered to his former views. In Sims v. Harrison, 4 Leigh 346, the case of Randolph v. Randolph was approved; and was declared as having determined, that in every case in which the owner of slaves wrongfully taken under execution applies to a court of equity to inhibit the sale of them, the court ought to award an injunction, and if the case be made out to give relief, though it be neither alleged in the bill, nor proved that the slaves have any peculiar value. The only remaining case, I believe, is Kelly v. Scott, 5 Gratt. 479, which follows the principle settled in the two cases last cited. The result of these decisions, it seems to me, is to maintain the general jurisdiction of equity to enforce the specific execution of a con418tract to sell or deliver slaves. There is at least as much reason for enforcing the specific delivery of slaves according to contract, as for protecting them from a wrongful sale under execution after their delivery. The reason in each case is, that the legal remedy is inadequate. But it is less so in the latter than the former case. In the latter, the party would generally have his choice of several remedies at law, as detinue or trover for the recovery of the property or its value, or an action on the indemnifying bond provided for by law in such cases. While in the former, his only legal remedy 'would be an action for damages. It can make no difference in principle, that in the latter he is already owner of the slaves, while in the former he has only contracted for the ownership. It is true that in the latter he may have formed an attachment to the slaves from long connection with them ; but that connection may have existed only for a day. A purchaser of slaves for his own use, looks to their qualities, and generally buys such only as will suit him. In each case, peculiar value will alike be presumed. I am therefore of opinion, both upon principle and authority, that it may be laid down as a general rule, that a court of equity has jurisdiction to enforce the specific execution of a contract for the sale or delivery of slaves, though it be neither alleged in the bill nor proved that they have any peculiar value. The exceptions to this rule, whatever they may be, (as was said by Judge Cabell in Randolph v. Randolph,) are to be brought forward and established in each particular case, by those who claiiii the benefit of them. It is unnecessary to define them in this case, as it falls within none of them. I am also of opinion that the appellee has not an adequate remedy at law, because of the uncertain and contingent interest contracted for. His remedy at 419law is an action upon the covenant of the appellants to secure to him the services of the slaves in controversy during the lifetime of the female appellant. There is no safe or certain rule whereby the damages could be measured in such an action; and they could only be conjectured by the jury. If there were no other remedy, that, from necessity, would have to be resorted to, and the best attainable result arrived at, by the aid of tables of longevity or otherwise. After all, such result would probably be wide of the true mark. At least it must be admitted that such a remedy is inadequate; and that is sufficient reason for a suit in equity to obtain the very thing contracted for, which will do exact justice to both parties. If the covenant be construed to be for the use of the slaves during the widowhood of the female appellant, (which was the extent of her interest therein, and all that can be recovered of her in a suit for specific performance,) then it would be still more difficult to estimate the damages in an action at law, and there would be greater reason for a suit in equity. For the authorities on this branch of the case, see the notes to Cudder v. Rutter, in Leading Cases in Equity, 65 Law Libr. p. 529, 532-537; Batten on Contracts 234, 67 Law Libr. 138-144. If the appellee could recover the slaves by an action of detinue, he would have an ample remedy at law and could not come into equity for relief. Armstrong v. Huntons, 1 Rob. R. 323, and oases therein cited. But he cannot maintain that action, at least for both of the slaves. The legal title was not vested in him by the covenant, which is merely executory. That he obtained, and for a short time held, possession of the girl, cannot take the case out of the jurisdiction of equity. He never obtained possession of the boy; and was soon dispossessed of the girl by the appellants, who now hold both against him. Even if 420he could maintain detinue for the girl, (which, from peculiar terms of the contract, may be doubtful,) cannot for the boy; and may therefore sue in equity ^01’ The covenant is joint, and a court of equity having jurisdiction of the subject may give complete relief. The jurisdiction of a court of equity being maintainable in this case on the ground of specific performance, and the party having a remedy at law though inadequate, the application, as in every such case, is addressed to the sound discretion of the court, 'which will enforce the contract if no good cause be shown or appear to the contrary. It was'insisted, in behalf of the appellants, that the contract in this case ought not to be enforced for several reasons. The first of which is, want of consideration. The appellee contends that the contract was founded both on valuable and meritorious consideration, and that either is sufficient to authorize the specific enforcement of a contract. The valuable consideration relied on is, the surrender of the lease. The appellants do not deny that this would be a valuable and adequate consideration, supposing that the female appellant had authority to make it — a question which will be presently considered ; but they deny that the contract was founded on that consideration, and aver that the lease was voluntarily surrendered. The lease was for the term of five years, and was surrendered at the end of one year. The surrender and the contract for the services of the two slaves in controversy bear date on the same day, and were executed at the same time. The inference from this fact, in the absence of any evidence to the contrary, is almost irresistible that the two instruments were dependent upon and in consideration of each other. The inference is supported and not opposed by other evidence. At the same time with the execution of the said surrender and contract two 421other instruments were executed by the parties or some of them; one of the said instruments being the obligation of the appellant Mordecai A. Summers for the purchase money of the appellee’s interest in the real estate of Samuel Summers; and the other, an agreement between the said M. A. Summers and the appellee in regard to the crop on the demised premises. The latter recites that M. A. Summers, (who was evidently acting for his mother,) had bought out the appellee’s lease, which was then surrendered. This shows that the surrender was not voluntary, and no other consideration appears than the cotemporaneous contract for the services of the two slaves. The contract itself recites that it was executed “ for various considerations.” Being under seal, it would be an estoppel at law to a denial of the consideration ; and though not an estoppel in equity, it is yet prima facie evidence of the fact it recites against the parties thereto. In addition to all this, Bowyer the attesting witness to all these instruments, and who was present at their execution, being asked what were the various considerations mentioned in the covenant, said in his deposition, “ The consideration mentioned, as well as I can recollect, was in part the surrender of the lease agreement, and I supposed from the fact of said Bean’s wife being the daughter of Mrs. Summers.” And being asked by the appellants whether he could state positively that a surrender of the lease was part consideration of the covenant, said, “I was under that impression, though not expressly mentioned at the time, and that the land contract I think was also a part of the consideration.” Upon the whole, I think it manifestly appears that these acts and instruments were all parcels of one family arrangement; and mutually dependent upon, and in consideration of each other; and that the appellee would not have surrendered the lease but for the execution of the co422venant. I am therefore of opinion that the covenant was founded on valuable and adequate consideration: Which renders it unnecessary to consider the question, whether it is founded on meritorious consideration; or such as would authorize a court of equity to decree its specific performance. Another reason assigned for not enforcing the specific execution of the contract is, that it would be a breach of trust; and that a court of equity will not aid any person in obtaining the performance of an agreement, which, if executed, would be a breach of the trust reposed in the other party. Batten 221, 67 Law Libr. 132. The supposed trust is created by the 7th clause of the will of Samuel Summers. It was contended in behalf of the appellee that this clause creates no trust.; or at least none that can be enforced; and only indicates the motive of the testator for giving the residuum of his estate to his wife during her widowhood; and Wallace v. Dold's ex'ors, 3 Leigh 258, and Stinson, ex'or, v. Day & wife, 1 Rob. R. 435, were relied on to sustain this view ; while Markham v. Guerrant, 4 Leigh 279; Perkins' trustee v. Dickinson, 3 Gratt. 335; Nickell v. Handly, 10 Gratt. 336, and 1 Jarm. on Wills 334-5, were relied on by the counsel for the appellant to sustain the contrary view. But I think it will be unnecessary to decide this question; being of opinion that another position taken on behalf of the appellee is sustainable, to wit, that even if the supposed trust exists, it would not be violated by the specific enforcement of the contract. The testator certainly intended to give his wife a considerable personal interest in the residuum of his estate during her widowhood — more than a child’s part, for life, to which he limits her interest in the event of her marrying again. And he certainly intended to give her during that period, if not the uncontrolled disposition, at least a very large discretion in the management of the sub423ject — as large as possible, consistently with the declared purposes of the supposed trust. It does not appear that the execution of the lease was a violation of the trust; but rather that it was reasonably supposed to be a convenient mode of executing the trust. The trustee was not bound to keep the property together, and cultivate the land herself; but might, if it was the interest of the parties concerned to do so, rent out the land and hire out the negroes. She might have leased out the trust subject for a term of years, even to a stranger. She leased it for five years to the appellee, her son in law, whose wife was one of the four children who -were living with her, and one of the objects of the supposed trust. In consideration whereof, he stipulated to pay all her debts, to support the family, to pay for the schooling of the two younger children, ahd provide them with books; in fine, to fulfill all the purposes of the trust during his term, and at the end of it to restore the subject in as good or better condition than when he received it. He also stipulated to pay to M. A. Summers, another and the oldest of the said four children, one-half of all the profits arising from the subject, as long as he continued “ taking an interest in the family.” It is not pretended that the consideration thus stipulated for, would not have been an ample rent for the property; and supposing the stipulations to be faithfully performed, it is impossible to regard the arrangement as a breach of trust. On the contrary, it seemed to be the best mode of effectuating the trust. All the family continued to live together in the mansion-house of the testator; the property was kept together, and under the management of the son in law; and, if there should be any profits, after paying the expenses of the operation and supporting the family, they were to be equally divided between the son and son in law. It turned out, how- • ever, that some disagreement arose between the par424ties; and they found it necessary to make a different arrangement. The consequence was, that .about a year the execution of the lease it was surrendered, the appellee sold his wife’s interest in the real estate to ^ie aPPe^an^ Summers, and the appellants executed the covenant .in regard to the two slaves in controversy. The question now is, Was the execution of that covenant a breach of the supposed trust ? If the trustee had a right to make the lease, she had a right to accept its surrender, and to pay a reasonable consideration therefor out of the trust subject, if required by the interest of the beneficiaries. It does not appear that the use of the two slaves for her life or widowhood, was an unreasonable consideration to pay for the surrender of the lease. But whether it was or not, the covenant was not a breach of trust, if the remaining trust subject, retained in the hands of the trustee, is ample for all the purposes of the trust; for the use during her widowhood of all beyond that, certainly belongs to her. It is not pretended that the remaining trust subject is not ample for those purposes. It would be strange, indeed, if she had so little individual interest in the subject, and so little power over it, that she could not part with the use during her widowhood of a boy and girl, 11 and 13 years of age, when she retained, subject to the purposes of the trust, all the other personal estate, including nine slaves and all the real estate. And that to.o- when her son, one of the beneficiaries, joined in the act of alienation, and the husband of another was the alienee; thus leaving only two of the beneficiaries who could have any cause to complain, and they, only if the subject retained should be inadequate to their support. It is not pretended that, if there had been no other consideration for the covenant than to make an advancement out of the personal estate to the wife of the appellee, the two slaves in controvei’sy would have been an excessive advance425ment, or such a one as it was not altogether proper to make, under the circumstances. She was one of the children for whom a comfortable home was provided by the trust, if trust it was. And when she married and left the maternal roof, it was nothing more than meet and right, and seems to be consonant with the purposes of the trust, that her mother, if she chose to do so, should make her a fair and reasonable advancement out of the trust subject; taking care to do no injustice to the remaining beneficiaries. In no view of the case, therefore, can the covenant be regarded as a violation of the supposed trust. Another reason assigned for not decreeing the execution of the covenant is, that it was extorted from the appellants by the use of harsh and unjust means. The only foundation for this objection in the record is the evidence of Middleton, who testifies that the appellee said he had told the appellant Mrs. Summers, that he would rent out the farm and take the negroes off if she would not do something for him. This must have occurred while he held the lease; and the only tendency of the evidence is, to show that the covenant was executed in consideration, in part at least, of the surrender of the lease. The evidence is inconsistent with the answer of Mrs. Summers, who says the lease was voluntarily surrendered, and that the means by which the covenant was obtained were used after the surrender of the lease; although the surrender and covenant bearing date on the same day, and it is proved were executed at the same time. It is not pretended that any other means were then used than the cotemporaneous execution of both instruments; and it appears that none other were, from the evidence of the attesting witness. This objection therefore is unsustained. I have noticed all the reasons assigned for not enforcing the specific execution of the covenant; and 426considering them insufficient, I think the appellee is entitled to have that mode of relief. Before closing this opinion it is necessary to notice an objection taken to the decree for want of parties. It was contended that the persons entitled in remainder to the slaves in controversy on the death or marriage of the appellant Mrs. Summers, are proper parties to this suit. I do not think so. The estate in remainder is not in controversy in this suit, and cannot be affected by the result of it. The rights of the remaindermen will be the same, whether the particular estate be held by the appellants or the appellee, and are amply protected by law in either case. A court of equity will interpose for their protection whenever they are endangered by the act of the particular tenant, in attempting or threatening to remove the subject out of the state or otherwise. But, consistently with those rights, the particular tenant has the same right of enjoyment of his éstate that any other has, including the right of alienation. Otherwise, it would always be necessary for remaindermen to join the particular tenant in an act of alienation of his estate. I think the decree ought to be affirmed. Allen, P. and Daniel and Lee, Js. concurred in the opinion of Moncure J. Samuels, J. dissented. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481638/	Allen, P. On the 29th day of April 1858 the auditor of public accounts notified the plaintiff in error, James Monteith, as sheriff of Stafford county, and the other plaintiffs in error as his sureties, that instructions would be given to the attorney general to move against them for the balance of the land, property and free negro taxes of 1857, due from James Monteith, sheriff of Stafford county; also for damages, &c. The plaintiffs in error appeared, and objected to the legality of the motion, and moved to dismiss it: 1st, because it did not appear from the notice on what bond the motion was made; 2d, that if made on the bond executed on the 12th of January 1857, the said bond was illegally taken, because the same was not executed within the time limited by law for the taking thereof. The motion was overruled, an exception taken, and in the bill of exceptions the facts, as agreed upon the trial, were set out. From these it appeared that the attorney general exhibited an account, which charged Monteith, sheriff of said county, “ to balance of land, property, free 174negro and September license taxes of 1857, $7850 63, interest at 12 per cent, from ISth September 1858.” Also, an affidavit of service of the notice on all the plaintiffs in error. One of the parties to whom the notice was directed, was dead, as appeared from the affidavit. It further appeared, that James Monteith was elected sheriff of said county in May 1854, and executed his official bond on the 10th of July following. That on the 14th day of July 1856 he gave another bond, in pursuance of the act of March 15th, 1856, continuing the term of office to which he was elected in May 1854, until the 1st of January 1857; that in May 1856 he was re-elected sheriff of said county for a regular term of two years, commencing the 1st of January 1857; and that no other than said bond of the 14th of July 1856 was given by him after his reelection in May 1856 until the 12th of January 1857, on which day he executed the bond of that date, which was signed by the plaintiffs in error and the security since deceased. The condition of this bond recites, that said James Monteith hath been elected sheriff of the county of Stafford for the term of two years, commencing from the 1st of January 1857. The bond appears to have been acknowledged in open court, and ordered to be recorded. The parties also agreed that there was a balance of land, property, free negro and license taxes for the year 1857, unpaid and due by said Monteith, amounting to the sum of seven thousand three hundred and fifty dollars and sixty-one cents. It was further agreed, that there should be no formal pleadings, but that the plaintiffs in error might avail themselves of all legal defences to the commonwealth’s motion. On these facts the court entered judgment, that the commonwealth should recover against the plaintiffs in error, seven thousand three hundred and fifty dollars 175and sixty-one cents, the balance of the land, property and free negro taxes of 1857, due from said Monteith, sheriff as aforesaid, with interest, damages and costs. The first objection, that the notice did not show on what bond the motion was made, was properly over’ruled. The notice is of a motion against the sheriff and others, his sureties, for certain taxes due from the said sheriff for 1857. lío particular bond is described, but it was incumbent on the commonwealth to show at the trial that the said sheriff, with the persons named as sureties, had duly executed a bond for the faithful discharge of the duties of his office for that year. The main question upon this branch of the case is, whether the bond of the 12th of January 1857 was a valid obligation. The constitution, art. vi, sec. 30, provides, that the voters of each county shall elect a sheriff, who shall hold office for the term of two years; and the 23d section of the same article directs that all officers, whether elected or appointed, shall continue to discharge the duties of their respective offices after their terms of service have expired, until their successors are qualified. And art. v, § 38, provides, that the manner of conducting elections and making returns of elections, of determining contested elections, and of filling vacancies in office in cases not specially provided for in the constitution, shall be prescribed by law. And the general assembly may declare the cases in which any office shall be deemed vacant, where no provision is made for that purpose in the constitution. To carry out in part these constitutional regulations, the legislature, by an act passed April the 22d, 1852, Sess. Acts, p. 64, ch. 71, directed that the voters of each county should, on the fourth Thursday in May, elect a sheriff, whose term of office, by the 18th section of said act, was to commence on the first day of 176July next succeeding the election, and to continue for two years. By the 7th section, the officer conducting the election at the court-house, within five days from the commencement of the election, was to examine the poll, ascertain the result, and declare the person to whom the greatest number of votes were given, to be elected. By the 8th section, the officer conducting the election is to make true return of the sheriff elected; which shall be handed to the clerk of the County or Corporation court, to be filed in his office. The 9th section provides, that the return shall be subject to the enquiry, determination and judgment of the County court, upon complaint made in the mode designated of undue election or false return; prescribes how contested elections shall be proceeded in, and that the court, in judging of said elections, is to proceed on the merits thereof, and determine finally concerning the same, according to the constitution and laws. By the 10th section, the court is to proceed, at the first session after the complaint of an undue election or false return is made, to determine said contest without a jury, unless good cause be shown for a continuance. By the 14th section, whenever a vacancy shall occur in said office, the County court shall order a writ of election to supply the said vacancy. And by the 19th section, it is enacted that before entering upon the discharge of his duty, the person elected shall take the oaths of office prescribed by the Code, and give such official bond as is required of him; that he shall take such oaths and give such bond in the proper court within sixty days after his election; and if he fails so to do, his office shall be deemed vacant. But his qualification, unless he be elected to fill a vacancy, shall not be deemed to take effect before the first day of July next after his election. The. act of March 15th, 1856, changing the time at which the term of office shall commence, made no 177alteration as to the time of the election or the period thereafter within which bond was to be given. In this case, the bond upon which the parties were notified not having been executed until the 12th of January 1857, more than sixty days after the election, a question arises whether there was then any authority to take it, or whether the obligors can be permitted to allege that the same was invalid. Upon the provisions of the constitution and laws referred to, the attorney general insists that until the Oounty court has actually adjudged or determined that the title to the office of sheriff, derived from the election of the voters, has been forfeited by the failure to qualify and give the official bond, he is still, to all intents, in office, and may rightfully qualify; and if he does so, his title to the office cannot be questioned in any proceeding thereafter. The law in this respect adopts the terms of the constitution, which empowers the general assembly to declare the cases in which any office shall be deemed vacant; and there is much force in the argument that the word “deemed” here should be taken in the sense of adjudged or determined by that authority which is to determine whether there has been an undue election or false return, upon proper complaint made, and which is required to order a new writ of election when a vacancy occurs in the office. It can hardly be supposed that the legislature intended to make the omission to give bond within sixty days after the election, work an absolute forfeiture of the title in every supposable case. The title to the office is derived from the election by the voters. The declaration of the officer conducting the election and his certificate are merely evidences of the fact of an election, and do not affect the validity of the title conferred by such election. If the officer conducting the election, and whose duty it is, within five days from the commencement of the election, to examine the 178poll, ascertain the result, and declare the person for whom the greatest number of votes have been given, to be duly elected, should neglect or refuse to perform this duty within the sixty days, his default should not operate to forfeit the title of the person elected to the office. So, if an election should be contested, the court may, for good cause shown, continue the controversy from term to term. If so continued, the controversy would generally continue beyond the sixty days. In such case, if the contest should be determined in favor of the party returned as elected, his omission to give the bond within sixty days after the election, would not, as it seems to me, forfeit his title. In these and perhaps other instances it would seem that j ustice to the party elected requires that the law should be so construed as to allow some extension of the time beyond the sixty days. The legislature, however, in the clause under consideration, has used this word “deemed” twice, and in the last instance, certainly in the sense of to look upon, regard, hold, take. The clause declares that if he fail to take the oaths and give the bond within sixty days after his election, his office shall be deemed vacant, but his qualification shall not be deemed to take effect before the 1st of July next after the election. No adjudication or determination was contemplated by the use of the word in the last member of the sentence. The act passed March 30th, 1858, Sess. Acts, p. 17, ch. 20, entitled an act providing for general elections, &c., uses the same terms, and in reference to other officers. The 56th section thereof, for instance, provides that the office of judge shall be deemed vacant not only when he dies, resigns, or is removed from office, but also when he fails to qualify within thirty days next after he receives his commission ; thus seeming to treat the failure to qualify within the thirty days, as creating a vacancy to the same extent as when 179the vacancy is caused by death, resignation or removal from office. The succeeding section provides, that when there shall be such vacancy in the office, the governor shall make known the fact, by proclamation, within ten days after the fact shall come to his knowledge, &c. — the words “ such vacancy” referring to a vacancy produced by any of the causes enumerated in the preceding section. Under these various provisions of the constitution and laws, questions of great importance may arise as to the proper construction of this term, as used in the constitution, and adopted in the laws to carry the constitution into effect. The case under consideration, it seems to me, may be correctly decided on other grounds upon which I prefer to place it, as it was argued before the vacancy on the bench was filled. Was not Monteith, after he gave bond and entered upon the discharge of the duties of the office, sheriff de facto ? If he were not in all respects an officer de jure, because of the failure to qualify and give the bond in the time prescribed, was he a mere usurper, undertaking to act without any pretence or color of right? This cannot be maintained upon the facts in this record. He had been regularly elected; from that election he derived his title to the office; no commission was necessary to perfect it; the law required none; and in practice no commission issues. The subsequent steps of the officer conducting the election are only intended to authenticate the fact of such election, and the qualification and bond do not confer the office, but are preliminaries to his entering upon the discharge of the duties of the office to which he has been elected. Asserting such title to the office, he executed and acknowledged the bond required by law, before the tribunal authorized to take the official bond of sheriffs. The condition of the bond so executed recites that he hath been elected sheriff of the 180county of Stafford for the term of two years, commencing from the 1st of-January 1857; and binds him to the faithful discharge of the duties of his office aforesaid, according to law: Thus showing that he claimed to act under the title conferred on him by election, and gave bond to execute the duties of the . office to which he asserted a legal right. It was held in the case of The King v. Lisle, Andrews’ R. 164 (S. C. 2 Stra. R. 1090), that in order to constitute a mayor de facto, it is necessary that there should be some color of an election. In The Town of Plymouth v. Painter, 17 Conn. R. 585, a person eligible to the office of grand juror, was in October duly chosen a grand juror for the following year. He refused to take the oath prescribed, and was fined according to law for such refusal. He paid the fine, and in the month of May afterwards took the oath and exercised the functions of a grand juror, by making a presentment and prosecuting it. In a suit between third parties, in which the validity of his official acts came in question, it was held that he was an officer de facto, and his acts as such were valid. It was insisted there, if a person chosen does not accept and qualify, the office becomes vacant; but the court held, that although it might not be easy in all cases to determine what ought to be considered as constituting a colorable right to an office, so as to ascertain whether one is a mere usurper, there was a fair color of right in the person acting as grand juror to exercise that office, whether he was legally entitled or not. He. was plainly more than a mere usurper; he was legally appointed; was eligible, and claiming a right to act under his appointment, took the oath prescribed. These, if nothing had intervened, would have been sufficient to confer a complete-title to the office; and even if his previous refusal to take the oath disqualified him from doing so afterwards, this effect was not 181so palpable as to deprive him of a fair color of right to exercise the office. There was an observance of all the legal forms, and this clearly constituted a colorable title or apparent right. In the case of The People v. Collins, 7 John. R. 549, a person was duly elected a commissioner of the highway for the ensuing year. The law provided that the commissioner, before he entered on the discharge of the duties of his office, and within fifteen days after his election, should take and subscribe the oath of office before some justice of the peace, who, within eight days thereafter, should certify the oath and deliver it to the town clerk; and that if he shall not take and subscribe such oath and deliver such certificate, such neglect shall be deemed a refusal to serve in such office; and the town may proceed to choose another. The commissioner chosen had not taken the oath, and filed the certificate according to the act. The commissioner having laid out a survey of a road, the town clerk refused to record it. Upon an application for a mandamus to compel him to record the survey, it was argued that if the person elected does not take the oath within fifteen days, it is a refusal to accept, and the office becomes vacant, so that a new election may be made, and that no quo warranto was necessary, because the act considers the office as vacant, and provides for filling it. But the court held, that if he acted without qualifying, he was liable to a penalty, or the town might choose new commissioners; but if the town did not, the subsequent acts were valid, so far as the rights of third persons and the public were concerned. He was commissioner de facto, since he came to the office by color of title. In Fowler v. Beebee, 9 Mass. R. 231, it was objected that the sheriff whose deputy executed the writ, was not sheriff de jure, he having been appointed and commissioned some months before the law erecting the 182county for which he was appointed, went into operation. The plea was overruled, because he was sheriff de facto, and his acts and those of his deputies were valid as to third persons. Upon an information against the same officers, it was decided in 10 Mass. R. 290, that their appointments were made without constitutional and legal authority. The principle of these and the like cases, say the court in Wilcox v. Smith, 5 Wend. R. 231, is this, that a person coming into office by color of election or appointment, is an officer de facto, although it be conceded that his election or appointment was invalid; or I may add, although by neglecting or refusing to qualify, the law treats the office as so far vacant as to provide for filling it by a new appointment. And this is a sufficient answer to the argument, that if a sheriff coming into office under color of an illegal election, is to be treated as an officer de facto, a mere stranger, if permitted to qualify, might intrude himself into the office. Such a person would be a mere usurper, and his acts void. There being but one mode of acquiring the title to the office, to wit, by election, where it appeared that no such claim of title is preferred, the act of qualification would confer no right, for no title is thereby acquired; and the court or tribunal permitting it would be acting not under authority of law, but without law, and the act would be not voidable, but wholly void. The provision in the constitution, that officers shall continue to discharge the duties of their respective offices until their successors are qualified, does not affect the question in the present case. He had been elected sheriff in 1854, and continued in office, by virtue of said election, or by executing a new bond, as provided for by the act of March 15th, 1856, postponing the commencement of the term from the 1st of July to the 1st of January next after the election. 183By asserting his title to office under his last election, and giving bond, he admitted he was not in office under his previous election. There could be but one sheriff, and by assuming office under color of the last election, the office was full, and filled by him, either de jura or de facto, under his last election. Nor, as it seems to me, would the case have been varied, if a stranger had preceded him. The return of the election is to be made to the clerk of the county, to be filed in his office. The returns of the election are subject to the enquiry, determination and judgment of the County court, where there is a complaint made in the mode prescribed. It hears and determines contested elections ; it passes upon the sufficiency of the sureties offered; it receives and orders to be recorded the official bond. It must ascertain whether a vacancy exists before it can order a writ of election to supply it. Even if the law declaring that the office should be deemed vacant upon a failure to give bond within sixty days, be mandatory and not directory, and it was the duty of the court to have ordered a new writ, still it was not done. On the contrary, they recognized the title preferred; and so recognizing it, though it be conceded they erred, they were acting within the scope of their authority, and their act is not void. It must be respected; and the person so admitted into office, upon title claimed to be derived from regular election, and, as in this case, admitted to have been asserted under such election, can only be ousted by a quo warranto, the proper proceeding to try the validity of the title to an office. Town of Plymouth v. Painter, 17 Conn. R. 585. It would be oppressive on the preceding sheriff and his sureties, if they were required to ascertain at their peril whether his successor had been regularly inducted into office by the officers or courts to whom this duty was confided by law. The duty of the preceding sheriff is at an end when a suc184cessor claiming to be duly elected is inducted into the office, through the agency of the proper officers and tribunals charged with this duty. In Harris v. Jays, Cro. Eliz. 699, it was conceded the court, that if one being created bishop, the former bishop not being deprived or removed, admits one to a benefice, the act is good and not avoidable, for that the law favors one in a reputed authority. There was in fact a bishop de jure, yet respect was paid to the act of another, who was inducted into office claiming under the color of a proper appointment. 16 Vin. Abr. tit. Offices, G. 4; O'Brian v. Knivan, Cro. Jac. 552. Treating him as sheriff de facto, his acts are valid as respects the rights of third persons who have an interest in them, and as concerns the public in order to prevent a failure of justice. Such is the case of public officers, who are such de facto, acting under color of office, by an election not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in case of sheriffs, constables, &c. 2 Kent 345 (295 mar.), and the cases before referred to; and Jones v. Gibson, 1 N. Hamp. R. 266; The Margate Pier v. Hannam, 5 Eng. C. L. R. 278. If then the sheriff is in office as sheriff de facto, it is not for him to deny the validity of his title, or to say that he is not sheriff de jure, or that the court had no authority to take his bond. When the court recognized the validity of his title, whether they erred or not, they were acting within their jurisdiction in requiring the bond; for the law makes it the duty of the court to take such bond from the sheriffs elected. The title by election so recognized subsists until the party is ousted ; and while it does exist, the court may rightfully require the bond. Whenever it is conceded that he is sheriff de facto, it is also conceded that the 185office is full. He cannot deny that he is sheriff de jure; and conceding him to be in office, the law makes it the duty of the court to require bond. In this case, there is no question that the bond is in proper form, taken by the proper tribunal, and shows that it was given by him as sheriff for a specified term for which he was elected. It would be most unjust to the public, and to individuals who must rely on this bond as their security for the due performance of the duties of his office, to permit him now to controvert the truth of his own assertions. Nor can I perceive any better ground upon which the securities can stand. If the bond is valid as to him, it is equally so as to them. The fact of election is proved by the recital in the condition, and admitted in the agreement of facts. And the recital shows the bond was taken and received by virtue of such title; and this, it seems to me, they are estopped from denying, even if the agreement of facts did not show the election. The cases referred to, and relied upon in the argument, do not establish any principle at variance with the proposition above maintained. In the United States v. Kirkpatrick, 9 Wheat. R. 720, the validity of the bond was not in question. The law authorized the president, in the recess of the senate, to make appointments, by granting commissions which should expire at the end of the next session. Bond with surety was given under this commission. Afterwards, a new appointment, by aud with the consent of the senate, was made. The court held that the two commissions could not be considered as one continuing appointment; the acceptance of the last commission was a virtual superseding and surrender of the former; and that the liability of the sureties was confined to the duration of the first commission. In the case under consideration, the sureties are lia186ble for the discharge of the duties of the office for the term for .which the bond recites he was elected, and thereafter until a successor qualifies. In Branch v. Commonwealth, 2 Call. 570, the condition, of the bond was for the collection of taxes imposed by an act of assembly recited in the condition of the bond. This law had expired. No taxes were collectable under it, and the liability of the sureties could not be extended beyond their undertaking, to taxes collected under a subsequent law. No question as to the validity of the bond or the effect of a recital as estopping the parties, was decided. The sureties stood upon the letter of the bond. In Stuart v. Lee, governor, 8 Call 421, the law directed that the bond should be payable to the justices, and that the penalty should be one thousand pounds. The bond was taken, payable to the governor, in the penalty of ten thousand pounds. The suit was brought in the name of the governor, at the relation of the party injured. It was a suit under an act of assembly authorized to be brought on certain bonds given under statutes. The court held, that as the statute required a bond in the penalty of one thousand pounds, payable to the justices, this was not such a bond as the act required; and being sued on as a bond taken under the act, the action could not be maintained. In the case under consideration, the bond is taken in a proper penalty, and payable to the proper party, and so conforms to the law. In The Commonwealth v. Jackson's ex'or, 1 Leigh 485, it appeared that there was no law authorizing the sergeant of the Hustings court of Williamsburg to collect public taxes, or the court to appoint a collector or take a bond from him. The court held, that such bond was not valid and obligatory on the surety. No reasons are assigned; but the bond was taken not only without .authority of law, but against the policy of 187law; it was an unauthorized interference of the court with the collection of public revenue; a duty confided by law to officers designated by the law. In our case, the County court is the tribunal to which the law confides the duty of taking the bond, and the bond is in fui'therance of public policy. The cases of Frazier v. Frazier's ex’ors, 2 Leigh 642, and Roberts v. Colvin, 3 Gratt. 358, merely decide that the parties could not be charged beyond the stipulations of their contsact. The bonds did not conform to law, and did not extend to the liability asserted. In none of these cases did the question of estoppel arise. In the case of Cutler v. Dickinson, 8 Pick. R. 386, an administration bond given to a judge of probate, was offered in evidence, and the coux-t held that the obligors were estopped by the recital in the bond to deny the appoixxtment of the administrator; and in Allen v. Luckett, 3 J. J. Marsh. R. 165; Stockton v. Turner, 7 Id. 192; Kellar v. Beeler, 4 Id. 655; the parties were estopped from denying that there was such an injunction, judgment or decree as these bonds recited, although in all these cases the matter recited ought regularly to appear of record; and in Franklin's adm'r v. Depriest, 13 Gratt. 257, the official bond of an executor was made payable to four justices, one of whom was not a member of the court at the time. It was held that the sureties were estopped from averring that he was not a member of the court, as by their bond they acknowledged that the four persons to whom it was made payable, were justices of the County court then sitting. Upon these authorities, it seems to me that the sureties as well as the principal would be estopped from denying the title by which the sheriff claimed his office. They acknowledged in the condition that he had been elected sheriff for said county for the tenn of 188two years, commencing from the 1st of January 1857, and bound themselves for his faithful discharge of the duties of Ms office aforesaid: the office of course to which he then had title by virtue of his election for a term of two years just commencing. Upon the whole, I regard the bond as valid, and that the motion to dismiss was properly overruled. But it seems to me there is error growing out of the variance between the notice and judgment and the proof, which must lead to a reversal, and a remanding of the case for a new trial. It was agreed that there should be no formal pleadings, but that the defendants might avail themselves of all legal' defences to the motion. The parties agreed the facts, and the question was referred to the court whether any, and if any, what judgment should be rendered. The parties were notified that a motion would be made against them for the balance of the land, property and free negro taxes of 1857, &c., without specifying any amount. The account filed shows a balance of land, property, free negro and September license taxes of 1857, amounting to seven thousand three hundred and fifty dollars and sixty-one cents. By the facts agreed, it appears that there was a balance of land, property, free negro and license taxes for the year 1857, unpaid and due by the sheriff, amounting to seven thousand three hundred and fifty dollars and sixty-one cents; and the court rendered judgment for that sum, the balance of the land, property and free negro taxes of 1857, due from said sheriff, with interest, damages and costs. By the facts agreed, it would seem that the balance was made up of license taxes as well as of land, property and free negro taxes; but there is nothing to show what proportion of such balance was license taxes. It is most likely, as was suggested in argument, that the payments made, when applied to the license taxes, discharged them, and that there may be *189that balance of the other taxes due for the year 1857; and that if the subject had been adverted to on the trial, it could have been shown that such was the state of the case. There is, however, nothing in the record to enable the court to correct the error. As the notice did not claim any license taxes, and the judgment is pursuant thereto, it would not be a bar to another proceeding for the license taxes, and the facts agreed show a fatal variance between the notice and judgment and the proof. I think on this account the judgment must be reversed, and the cause remanded for a new trial. The other judges concurred in the opinion of Allen, P. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481639/	Allen, P. The first question presented in this case, arises on the third bill of exceptions taken by the plaintiff in error at the trial. Prom that it appears that certain certificates, purporting to be signed by J. E. Heath, auditor, were permitted to go in evidence to the jury, without proof of their execution, or of the official character of J. E. Heath, as tending to prove that the tract of one thousand four hundred acres was delinquent for the years and the amount therein set forth, and that the same had not been paid at the date thereof. The act of April 1, 1831, Sup. E. C. p. 348, § 7, makes such certificate evidence of the delinquency and forfeiture as against the parties therein named. And the act of March 15, 1838, Sess. Acts, p. 16, § 7, makes it the duty of the auditor to cause to be made out a list of every tract of land in the counties west of the Alleghany mountains, forfeited to or vested in the Literary fund for the nonpayment of taxes charged thereon, and which shall not have been redeemed; and to transmit such lists to the commissioner for the sale of delinquent lands. It being thus made the duty of the auditor to make out and furnish said lists and certificates in his official character, his attestation of the certificate in the usual mode of certifying official eopies of documents under his control, must be deemed sufficient evidence of the execution of such document, and of the official character of the officer; as much so as the attestation of a clerk to an official copy from his office, is deemed and taken as evidence of the execution of the paper, and of the character of the officer, in the absence of any suggestion to the contrary. Upon general principles, and without reference to any particular statute, the certificate of the auditor of a fact appearing from the books under his control, and upon whom the law imposes the duty of examining such books, and giving a certificate of the facts thereby appearing, as a guide 196for other officers in the performance of duties imposed on them, would be competent as evidence of such fact. Baker v. Preston, Gilm. 235. And there being no particular mode of authentication or seal of office prescribed, the signature of the officer in his official character must prove itself and authenticate the instrument. In Taylor v. Burdett, 11 Leigh 334, it was decided, that as in case of sickness or absence of the auditor, the chief clerk in the office is required to perform the duties of the office, a certifícate being signed by an individual as chief clerk and acting auditor, it must he presumed he was acting by reason of the sickness or absence of his principal. No objection seems to have been made to the certificate for want of au~. thentication or proof of execution, nor does if appear that any such proof was offered. The question arose upon a motion to exclude from the jury the patent of the plaintiff, under the 17th section of the act of 1830-31, before referred to, until the plaintiff should show that he had his lands duly entered and charged with taxes, and had paid the same. The court was to determine the fact before admitting the patent to be read in evidence to the jury ; and as it could only ascertain the fact by legal evidence, the question of the admissibility of such certificate without further proof of authentication, arose as soon as it was offered to satisfy the court of. this preliminary fact. By the tíode of Virginia, ch. 176, § 4, p. 660, it is enacted that the certificate of the first auditor of the fact and time of the return of any real estate as delinquent, shall he prima facie evidence of what is stated in such certificate; and such certificate sealed, or sealed and signed, or signed alone, shall be admitted as evidence without any proof of the seal or signature, or of the official character of the person whose name is signed to it. The act of March 31, 1851, Sess. Acts, p. 33, § 13, extends the provision to the 197auditor’s certificate of the payment or non-payment at any time of taxes on forfeited or delinquent lands, &c., but does not alter or affect the section of the Code as to the effect and admissibility of the certificate of the auditor of the fact and time of the return of any real estate as delinquent. That is the character of the certificates here, and the proof of the signature and official character of the officer is dispensed with. The provision, though enacted since the date of the certificate, is general, and permits a certificate to be admitted in evidence whenever offered without proof of execution or of the official character of the officer. Such provision, though retrospective, is not objectionable; it violates no right, and makes no change in the evidence of the fact affecting the right. The fact of delinquency, as appearing on the books in the auditor’s office, creates the forfeiture; the official certificate is by law made evidence of the fact; and how that is to be authenticated is mere matter of practice, which may be regarded as may be most convenient in prescribing proceedings in court. After the evidence was concluded, the defendant’s counsel moved the court to instruct the jury, that taking the evidence of the plaintiff to prove all that it tended to prove, yet that the evidence so offered on behalf of the plaintiffs, when considered in connection with the evidence offered by the defendant, does not prove and is not such a subsisting valid and legal title as entitled the plaintiffs to recover in this action. Grave objections might be alleged against such a course of proceeding. The court is asked to substitute itself to the place of the jury; to exercise the functions of the jury in determining upon the weight and credit of the testimony, and deducing from it all such proper inferences as the jury might have deduced. I should not have deemed it erroneous, if the court had declined to give such an instruction, and 198had put the party to his demurrer to the evidence. The instruction however was given; the evidence is set out in the bill of exceptions; and as there is no conflict in the testimony, no injustice can be done to piaintifF in error by viewing the testimony, as if there had been a demurrer to the evidence, giving to them the benefit of all proper inferences and presumptions, and disregarding any conflicting testimony offered by the defendant in error. The first question that arises upon the evidence so certified, relates to the forfeiture of the lands claimed by the plaintiffs, for the non-payment of taxes charged thereon. A grant issued to Thomas Usher, jr. and Abraham Usher on the 24th of July 1788, for one thousand four hundred acres of land, which it was admitted embraced the land in controversy; and it was further admitted, that the lessors of the plaintiff are the heirs of the said patentees. It appeared that the •land had not been entered on the commissioner’s books for Wood county from 1800 to 1817, both inclusive, in the names of the patentees, or their heirs, or of any person claiming under them. The first entry on the books of the commissioner of the revenue for said county, was made in the names of the patentees in the year 1818; and the heirs of said patentees had not hitherto caused said lands to be entered on said books in their names. It appears from the certificates of the auditor that no payment had been made in the redemption of said land since 1818, and that the Iknd was returned as delinquent for the taxes charged thereon from 1819 to 1831, inclusive, and for the years 1833, 1836 and 1837. By the act of April 1st, 1831, Sup. R. C. p. 345, § 2, lands returned delinquent for 1820 or any previous year, if not redeemed before the 1st of January 1832, were forfeited ; and lands returned delinquent for any 199.year subsequent to 1820 and previous to 1831, were forfeited if not redeemed before the 1st of November 1833. By the acts of December 16, 1831, and of lOfch, 1832, further time for redemption upon all such lands was given until the 1st of April 1834. The period for redemption was extended by the act of March 11,1834, to the 1st of October 1834. The act of February 27,1835, § 1, gave further time, until the 1st of July 1836, for the redemption of such lands returned delinquent, and which became vested in the Literary fund on the 1st of October 1834. The act of March 30, 1S37, extended the time for the redemption of such forfeited lands until the 15th January 1838; and the act of March 15, 1838, extended the time to the 1st day of July 1838, when the period for l’edemption expired. The forfeiture of such lands returned as delinquent became complete on the 1st of October 1834. The subsequent acts treated them not as lands returned as delinquent merely, but as lands forfeited ; and although further time to redeem was given, the forfeitures which had accrued by prior laws were not released, except in such cases where the owner availed himself of the privilege to redeem. Staats v. Board, 10 Gratt. 400. The land in question, therefore, never having been redeemed, became actually forfeited and vested in the Literary fund on the 1st of October 1S34. The proof certified shows that the patentees were dead when the land was entered in their names in the year 1818. It is unnecessary to consider whether under the act, 2 Rev. Code of 1819, p. 15, § 13, 16 and 30, this was not the regular course until the heirs caused a transfer to be made on the commissioner’s books to their names, according to law. More especially, as it seems that payment in redemption of said lands for the taxes prior to 1818, had been made in the names of the patentees. But be this as it may, either the lands were properly entered, and being returned delinquent, were forfeited for the non-payment 200of taxes, vesting in the Literary fund such estate as was vested in the person in whose name it was returned delinquent, and in the heirs, devisees or purchasers claiming under such person at the time such lands were forfeited according to the act of April 1, 1831, Sup. R. C. p. 346, § 4; or if not properly entered, then they became forfeited for the failure to enter according to the act of February 27, 1835, § 2; which forfeiture became absolute by the failure to redeem before the 1st of November 1836, according to the act of March 23, 1836, as no actual possession of the owner or proprietor or of his tenant is shown to have existed on the 27th February 1835, the time of the passage of the act. And it further sufficiently appears, that the amount of taxes, exclusive of damages, exceeded the sum which was relinquished by the act of 1832 or subsequent laws, if any such enquiry could be raised until the lands were actually entered on the books of the commissioner of the revenue, and the amount ascertained. I think, however, the entry in the name of the patentees concludes the heirs and purchasers claiming under them, and they were forfeited for the delinquency in failing to pay the taxes charged thereon.' But the result is the same under any aspect of the case as presented by the facts certified. The defendant showed no title in himself; and it has been insisted, that according to the cases of Middleton v. Johns, 4 Gratt. 139, and Tapscott v. Cobbs, 11 Gratt. 172, the defendant showing no title, should not be permitted to set up an outstanding title to prove that the plaintiff has no title. The testimony in the case shows acts of possession at different times by some of the plaintiffs, and by their agent and tenants. The last act of possession proved is, that one of the lessors of the plaintiff about the 1st of June 1835 moved from the east to the county of Wood,- and settled upon the one -thousand four hundred acre tract, remained until February 1836, 201when he left the land; and that he claimed the land as the Usher land; that the place where he so settled was a different portion of the one thousand four hundred acre tract, from that in controversy; and that the improvement where he settled was afterwards held by a third person adversely to the plaintiffs’ title. It does not appear that there was any privity between the lessors of the plaintiff and the defendant, or that there was any obtrusion on the actual possession of the plaintiffs in error. The land being forfeited and actually vested in the Literary fund, the possession of the plaintiffs after such forfeiture gave them no rights as against the commonwealth. For any thing that appears, the possession was abandoned in February 1836. It does not appear when or how the defendant entered. But being in possession, and nothing more appearing, he may retain it, and cannot be deprived of the enjoyment of the property by one who is proved not to have any right to the land in controversy. It appears from the Code, p. 560, note to § 14, that a proposition of the revisors to change the rule which permitted a defendant in possession to defeat a recovery by showing an older title than that of the plaintiffs in a third party under whom the defendant does not claim, was rejected by the legislature. The case under consideration must be governed by the general rule as recognized in Moody v. McKim, 5 Munf. 374, and the recent case of Atkins v. Lewis, 14 Gratt. 80, there being no proof to bring it within the exception acted upon in Middleton v. Johns, 4 Gratt. 129, and Tapscott v. Cobbs, 11 Gratt. 172. I think the judgment should be affirmed. The other judges concurred in the opinion of ' Allen, P. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481640/	Lee, J. Two questions occur in this case, first, whether the records of the cases of Rawson v. Dawson and Rawson v. Hitchcox mentioned in the plaintiff’s first bill of exceptions were properly excluded from the jury, and second, whether the deed from Chapman as attorney in fact for Susan Mitchell to the plaintiff of the 15th of August 1848 was properly rejected when offered to prove the transfer of the legal title to the land therein described to the plaintiff. Of these in the order stated. It is a well settled rule of evidence that a verdict and judgment in an action at law cannot be received in evidence upon the trial of an action between others not parties to the first, nor standing in privity with those who were, for the purpose of proving any fact upon which such verdict and judgment were founded and which being essential to their rendition, is to be regarded as established by them. The party in the second action had no opportunity of cross examining the witnesses in the first, nor of confronting them with others by whom the facts deposed to by them might have been effectually disproved. 1 Greenleaf Ev. § 522, et seq.; Dutchess of Kingston's Case, 20 How. St. Tr. 38, and n. 1. Moreover, although the witnesses in the first cause might all have been competent to give evidence in the second, yet it might have 205been otherwise, and the verdict and judgment may have been founded upon the testimony of the party himself who offers the record in the second cause or some other witness who would be equally incompetent. But this enquiry the court cannot stop to make. It would be opening a door to subjects and questions entirely apart from the true issue before the jury, and might lead into a wide field of irrelevant enquiry and discussion. Because therefore of the potential vice in the record as an instrument of evidence in the second cause the court has no alternative but to exclude it. Where the fact of such verdict and judgment having been rendered is proper and relevant evidence, as they can only be proved by the record, it may be admitted for that purpose, but when so admitted it cannot be used as evidence to prove any fact or allegation however material or traversable, upon which they must be supposed to have been rendered. Greenleaf Ev. § 538, 539, 527; 1 Stark. Ev. 213. To this general rule there are some exceptions, as in the class of cases known as proceedings in rem, such as judgments of condemnation of property as forfeited, a prize in the exchequer or admiralty courts, and adjudications upon the personal relations of a party such as marriage, divorce, settlement and the like. 1 Greenleaf Ev. § 525, 541 and n. § 544 and n, § 545. Another exception it is said has been made in the case of verdicts and judgments upon subjects of a public nature, such as matters of reputation, customs and the like. 1 Greenleaf, § 526. Whether the latter class of exceptions can have any place in this state at this day, it is deemed not very material to enquire. For the verdicts and judgments offered in this cause can be brought within the range of neither of these classes. They were not cases in any sense in the nature of proceedings in rem, nor were they upon subjects of a public nature within the meaning of the exception con206tended for. They were strictly suits inter partes, eoncerning private rights only; and they must fall within class of cases, the verdicts and judgments in which, are evidence of the facts on which they were founded, between those who were parties, or who stand in privity with those who were. The purpose for which these records were offered was to prove the boundaries of the ten thousand acre survey made for Hugh Lenox which the land claimed' by the plaintiff was said to adjoin; and it was sought to do this by showing that in those causes, that survey had been located by the verdicts in the same manner in which the plaintiff sought to locate it in this action, and thus to make them evidence of the boundaries claimed as established by the findings of the juries in the two causes produced. This was in direct contravention of the rule of evidence just adverted to and violative of all the principles on which it is founded. Nor could these records have been admitted upon the principle which admits, in certain cases, evidence of hearsay, reputation, tradition. It is true the principle of the admissibility of such testimony in cases of a public nature has been extended by our courts to questions of private boundary; but it is difficult to perceive how this can render admissible the verdicts and judgments in cases between others, although the same boundary may have been the subject of dispute. Such verdicts and judgments may have been founded upon the hearsay or tradition given in evidence, or upon evidence of a totally different character. The identity of the boundary as claimed on the ground with that described in the muniments of title relied on, may have been -established by the conformity of natural objects actually found with those called for. It may have been made out by artificial monuments shown to exist as marked trees of the kind called for, the annulations on which were found to agree with 207the years elapsed since the date of the survey relied on. It may have been deduced from a connection with one or more adjoining surveys the location and boundaries of which were sufficiently proven or undisputed. Or it may have been determined from several of these different sources of evidence, or all, combined. Again. The proofs of hearsay or tradition, or whatever they were, were from the mouths of witnesses who might or might not be competent to give testimony in the particular case: but the party had no opportunity to show their incompetency to testify against him, or to cross examine them or to meet their statements by opposing proofs. . Now, as we have seen, the court will not enter upon enquiries as to the nature of the proofs in the former case or the competency of the witnesses who then deposed to give evidence in the principal case. To attempt it would only lead to indefinite delays and breed inextricable confusion. That the former verdicts and judgments may have been obtained under such circumstances as should preclude them from being evidence in the principal case and that the court cannot undertake to analyze the proceeding of which they were the result, renders their rejection a matter of inevitable consequence. In the case in judgment the records which were offered in evidence were in cases between totally different parties, nor is any privity shown between any of them and any party in this cause. They show nothing of the nature of the proofs exhibited, nor do they disclose who were the witnesses examined. There is no savor of antiquity about them if that would have helped the argument, for they were rendered within the year before the trial of this case. The same sources of proof which were turned to so good account in those cases were, it may be supposed, equally accessible to the parties in this. If the witnesses in them were competent to give evidence in 208this case, they might haye been examined, and the jury left to draw their own inferences from their testimony without being influenced by the finding of another jury upon the same testimony. If they were not examined no reason has been shown for the omission even if the court would go into that enquiry. If they would not have been competent, that itself would be a conclusive reason for excluding the verdicts founded upon their testimony. The rules of evidence have to a certain extent been relaxed on questions of boundary, but it is deemed unwise and inexpedient to extend the encroachment upon well settled and wholesome principles further than the courts have already gone. That the monuments of boundaries owing to the perishable materials of which they were made, may gradually disappear, has led to the admission of traditionary evidence concerning them, but it can furnish no sufficient reason for breaking down the well established barrier which restricts the effect of a verdict and judgment as evidence of the facts in issue in the cause, to those who were parties or stood in privity with those who were. The second question relates to the exclusion of the deed from Chapman as attorney in fact for Mrs. Mitchell. If he had due authority as such, the deed should have been permitted to go to the jury, as it was in regular and proper form. If he had not, then Mrs. Mitchell was not bound, her title did not and could not pass by it, and as it was offered for no other purpose than to prove a transfer of her title to the plaintiff, it was properly excluded. To show that Chapman was authorized to execute a deed for Mrs. Mitchell, the letter of attorney from John Mitchell of the 9th of June 3846 was first read in evidence to the jury. By the letter of attorney from Mrs. Mitchell to John Mitchell, the latter had the power to appoint such further agents and attorneys as 209he might deem necessary to carry into effect the power granted to him. The question then is was this power to appoint agents and attorneys duly executed as the law then stood by the letter of attorney to Chapman. The power given to John Mitchell to appoint an agent who would be authorized to convey the legal title vested in Mrs. Mitchell, must of necessity have been executed by a deed, for no agent can bind his principal by deed unless he be so authorized by an instrument of equal solemnity. And as the law was then understood, to bind the principal every deed should be executed for and in the name of his principal, though it was not material whether the attorney sign the name of his principal with a seal annexed, stating it to be done by him as attorney for the principal, or whether he sign his own name with a seal annexed, stating it to be done for the principal. But if the deed do not purport to be the deed of the principal and be signed and' sealed by the attorney neither in the name of his principal nor in his own name as Ms attorney it is not the deed of the principal. And in executing the power conferred, the attorney should conform to the terms and nature of his authority, and do that which it was the intention and legal effect of the power he should be authorized to do in a legal and proper manner. Otherwise the act will be ineffectual to bind the principal. Now the letter of attorney to Chapman does not purport to be the act of Mrs. Mitchell or for her or in her name. It purports to be the act of John Mitchell in his own name and on his own behalf. He appoints Chapman “his attorney,” to sell &c. “for his advantage and profit,” to make seal and deliver deeds “as Ms deeds,” to receive moneys coming “to him” on account of sales “for him and in his name,” and “for him and in his name” to make seal and deliver acquittances. Nor is it signed with the name of Mrs. 210Mitchell stated to be by her attorney nor is his name stated to be for his principal. It is signed by him in his own name as if the instrument were executed in his own right and on his own behalf. Such an execution of the power could not bind Mrs. Mitchell nor invest Chapman with authority to transfer the legal title to the land. If John Mitchell had conveyed the land by a deed executed in the form adopted for this power, such a deed prior to the provision of our present Code, would not have passed the legal title. And a power executed by him under his authority to appoint other agents for his principal should be executed for or in the name of the principal just as should a direct deed of conveyance from himself. Whether a conveyance or a power to some other to convey it was but the execution of his power by deed, and that deed to be effectual must be executed in the manner required by the rules of law. What might be the construction of such an instrument executed since our present Code took effect it is unnecessary to enquire as the paper in question was executed in 1846; but it cannot be sustained on the authority of Shanks v. Lancaster, 5 Gratt. 110, or of Bryan v. Stump, 8 Gratt. 241, as it is a different instrument from those in question in those cases and executed in a different manner. Prior to the Code at least, the question'was not simply what the grantor intended to do, but whether the intent to execute the power was carried out in a legal and proper manner. In every case of a deed executed by an attorney it might be supposed that he intended to conform to his power and satisfy its requirements; but if he have failed to execute it in the manner required by the rules of law, it must be ineffectual, for his intention could not remedy the defective mode in which he attempted to carry his intention into execution. I refer on this subject to Sergeant Moore’s Rep. Trim 6 Eliz. 211No. 191, p. 70; Coombe’s Case, 9 Rep. 75; Frontin v. Small, 1 Str. R. 705; S. C. 2 Ld. Raym. R. 1418; White v. Cuyler, 6 T. R. 176; Wilks v. Back, 2 East. R. 142; 5 Bouv. Bac. Ab. “Leases,” I. 10, p. 571; Bogart v. De Bussy, 6 John. R. 94; Fowler v. Shearer, 7 Mass. R. 14; Elwell v. Shaw, 16 Mass. R. 42; Jones' dev. v. Carter, 4 Hen. & Munf. 184; Clarke's lessee v. Courtney, &fc. 5 Peters’ R. 318, 349; Martin v. Flowers, 8 Leigh 158. In the two cases last cited, the deeds were held inoperative because although purporting to be made by the parties as attorneys for their principals, they were yet executed by the attorneys in their own names and not in those of their principals. That a spirit of self-reliance and directness of purpose, as suggested by counsel in argument, will prompt the people of this age and country to disregard the formalities of conveyancing and the rules of law by which they are prescribed, can constitute no sufficient reason nor furnish any adequate authority to the courts to change the law or overthrow plain intelligible and well settled legal principles. That is the province of the legislature, not of the judiciary. For the latter to undertake to mould the law so as to be adapted to the loose and careless modes of conducting business transactions which are said to prevail would be but to inaugurate uncertainty and confusion in the administration of justice, and lead to evils which though not at once foreseen and appreciated, might prove far greater and more to be deplored than the hardship which may occur in individual cases from an adherence to the settled rules of law, but which at last must be traced to the parties’ own improvidence and want of reasonable care and precaution. The result is that the letter of attorney from John Mitchell to Chapman being ineffectual to constitute the latter the attorney for Mrs. Mitchell, the deed which he undertook to make for her did not transfer 212the legal title to the plaintiff, and as it was offered for no other purpose than to prove such transfer, it was properly rejected by the court. I think the Circuit court did not err in its ruling upon either of the questions raised, and am of opinion to affirm the judgment. The other judges concurred in the opinion of Lee, J. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481641/	Lee, J. Various questions have been elaborately discussed by the counsel in this case, two only of which, however, do I propose to consider. These are: First, whether the defendants in error vrho were the plaintiffs in the court below, have made out a case entitling them to recover without showing the legal title which they claim to have derived under the sale made by the commissioner of delinquent and forfeited lands and the deed made to them by Commissioner Brown. Second, whether such sale and deed did invest them with the legal title to the land in controversy so that they can recover on the strength of such legal title alone. And, first, as to the right to recover without showing a legal title. If the plaiutiffs holding peaceable possession of the land had been entered upon and ousted of such possession by the defendants having neither title to nor authority to enter upon the premises, according to a recent decision of this court they could have maintained ejectment upon their possession alone without showing a legal title. Tapscott v. Cobbs, 11 Gratt. 172. Or if the defendants were the 'tenants of the plaintiffs or the latter had the right to treat the former as such, then as they repudiated such tenancy and claimed to hold adversely, the plaintiffs might have recovered upon this ground without the necessity of showing a legal title, because being tenants the defendants could not dispute their landlord’s title. Willison v. Watkins, 3 Peters’ R. 43; Emerick v. Tavener, 9 Gratt. 220; Adams Eject. 3 n. 57 n. 247 n. 5, (ed. 1830); 2 Greenl. Ev. § 305, and authorities cited in n. 1. That the defendants entered as trespassers cannot 219be said with any propriety. They entered under authority of the decree of the 17th of June 1840 made in conformity to that of the Court of appeals of the 18th of April 1S40. By those decrees, the decree for the sale of the land at which Huston, under whom the plaintiffs claimed, had purchased was reversed and annulled; and it was not left an open question whether the purchaser would be disturbed by the reversal of the decree of sale, for the decree went on to set aside all the proceedings had in the original cause including the sale, in terms, and appointed a commissioner to reconvey to the heirs of George Clendenin the land which had been so sold. And this deed was after-wards regularly executed by the commissioner. It is true these plaintiffs were not themselves parties to the cause, but Huston’s heirs, and their immediate vendor Pitman, were, and they must stand on the footing of pendente lite purchasers and be bound by the decree. Thus the defendants obtained their possession under a Iona fide claim of title and the authority of the decree of the court which restored to them all the rights of which they had been divested by the sale under the former decree. But it is insisted that the plaintiffs had the right to treat the defendants as their tenants because the attornments made to them by Bader were unlawful and void, and that therefore they could not contest the plaintiffs’ title until they had first restored the possession. The general rule that a tenant may not dispute the title of him by whom he has been let into possession cannot be questioned; but there is this modification, which is well established, that he may always show that his landlord’s title has expired or been extinguished since the lease, or that he has sold his interest in the premises, or that it is alienated from him by judgment and operation of law. Syburn's lessee v. 220Slade, 4 T. R. 681; Colemere's lessee v. Whitroe, 1 Dowl. & Ryl. N. P. Cases, 1 (16 Eng. C. L. R. 409); Van Schaick’s lessee v. Davis, 5 Cow. R. 123; Lowden's lessee v. Watson, 2 Stark. R. 230; Russel's lessee v. Rowland, 6 Wend. R. 666, 670; Adams Eject. 247 & n. 6. So if these parties could have been considered as tenants, they would have had the right under this modification of the rule to show that since the lease to Rader the title of the plaintiffs under which they got into possession had been extinguished by the decree of the Court of appeals and that of the Circuit court made in conformity to it. But they did not admit themselves to be tenants of the plaintiffs, nor had the latter the right to treat them as such. They always claimed to hold adversely, and although they came into possession by means of the attornments of the plaintiffs’ tenant Rader, yet those attornments were made under such circumstances that the liabilities of tenants were not created by them. They were made after and in consequence of the decrees by which these parties had been fully restored to all their rights in the land and the title of the plaintiffs under the previous decree and sale, had been extinguished. They had the right to enter and take possession if they could do so peaceably. The recoverer after judgment may enter without execution where the demand is certain. Thus after judgment in a common recovery the demandant may enter or take out execution at his election. Shelley’s Case, 1 Rep. 93, 106; Mary Portington's Case, 10 Rep. 35. The patron who recovers in guare impedit may present without a writ to the bishop. Rud v. Bishop of Lincoln, Hutton’s R. 66. And after a recovery in ejectment the lessor of the plaintiff may enter without the sheriff, for his assistance is but to preserve the peace. Siderf. R. part 2, p. 156. Withers v. Harris, 7 Mod. R. 64, 69; Badger v. Lloyd, Holt’s R. 199. And being thus entitled to enter, he cannot 221be considered as a trespasser for asserting that right unless his entry be attended with such acts of violence as will subject him to a criminal prosecution. Taylor v. Cole, 3 T. R. 292. Such an entry after judgment in ejectment works no disseisin of the freehold, nor can the true owner ever elect to make the person then in possession, a disseisor. He could not bring an assize of novel disseisin at common law; the entry is not injuste et sine judicio, but under authority of a court of justice and lawful, and therefore not liable to punishment by fine as every disseisin was. Taylor ex dem. Atkyns v. Horde (1757), 1 Burr. B. 60, 113, 114; Doe ex dem. Atkyns v. Horde (1777) 2 Cowp. R. 689, 701. Being thus entitled to enter and take possession, no reason is perceived why they might not acquire it by the attornment of the tenant in possession. It was the duty both of his landlord and himself to surrender it in conformity to the decrees, and the taking of the attornments was not in fraud of the rights of the plaintiffs, nor did it violate any law. For the act of assembly (1 Rev. Code 1819, p. 370, § 33), following the act of 11 Geo. 2, ch. 19, § 11, while it declared that the attornment of a tenant to any stranger should be void, unless with the consent of the landlord, expressly excepted such attornment made pursuant to or in consequence of a judgment of a court of law, or the order or decree of a court of equity. The attornment here was plainly in consequence of these decrees and was thus within the exceptions made in the act. But it may be said that although this be true in respect of the title which the plaintiffs claimed under the purchase from Pitman, yet that after this purchase and after they had placed Bader in possession to hold as their tenant, they acquired an independent paramount title under the sale by the commissioner of forfeited lands and the deed made to them by Brown, which was not affected by the decrees in the chancery 222case; and that when they became invested with this title, immediately their tenant Rader held under them in respect of it also, and that as to it, his attornment was void. It may be true that as between the plaintiffs and Rader, the latter might be regarded upon the accession of the new title as holding under it also; but I am not prepared to agree that this would deprive the defendants of the benefit of the decrees. If the possession had been vacant, they were entitled notwithstanding the plaintiffs had acquired an independent title pending the chancery suit to enter upon the premises and take possession. If they had come with a writ of possession, the new title would have been no answer to the sheriff’s demand; and as when they did come the tenant in possession surrendered it to them and they entered upon it, I conceive they were in upon their own title and not as tenants, and that in either case the plaintiffs would have been put to their action upon their new title. The rule too forbidding the tenant to dispute his landlords’ title would on the terms on which it is usually propounded, seem to relate to the original title under which he had been let into possession. See Adams Eject. 247; 1 Greenl. Ev. § 24, 25; 2 Ibid. § 305. And it may be questioned how far these plaintiffs claiming under the purchase from Pitman and standing in privity with Clendenin’s heirs could be allowed to set up against them a title acquired by forfeiture for non-payment of taxes. It might be urged with great force that it was their duty to protect the title against such forfeiture and that their purchase at the tax sale should enure to the benefit of those ascertained to be the true owners. But it is unnecessary to pursue these enquiries for in the most favorable view to the pretensions of the plaintiffs, we are only brought to The second question above stated, which relates to 223the effect of the sale of the land as forfeited under the order of the Nicholas court and the deed made by Commissioner Brown in transferring the commonwealth’s interest and vesting in the grantees the legal title to the land described in the deed. The sale was under an order made at the April term 1839, which after reciting that John Gf. Stephenson commissioner of delinquent and forfeited lands, had that day made a report of the forfeited lands in the county of Nicholas, directed him in general terms to make sale of said lands upon the terms prescribed by law. Stephenson afterwards reported that he had sold sundry tracts of land in obedience to said order, and amongst others “ a tract of 3000 acres in the name of John Cantril,” which was purchased by Hazael Williams and Thomas McOlqary at the price of sixty-five dollars and twenty-five cents, that being the amount of the taxes with the damages due thereon. At the April term 1840 this sale was confirmed. On the 9th of September 1841 Stephenson was removed from office, and John Brown appointed commissioner of delinquent and forfeited lands in his place; and subsequently Stephenson having never conveyed the land to the purchasers whilst he continued in office, Brown undertook to convey it by deed dated the 27th of May 1843. At the time of the execution of this deed there was another commissioner of delinquent and forfeited lands for the county of Nicholas, one Alexander Brown, who had been appointed at the April term 1841, and he had given bond and duly qualified as such, but he did not unite with John Brown in making it. And it is objected that the commissioners took a joint authority under the act, and that neither could act separately or without the concurrence of the other. This objection, I think, cannot avail to affect the validity of this deed. It is true in some of the coun224•several one to be exercised by each commissioner, who is afterwards throughout the act spoken of in the singular, and there is nothing whatever in any of its provisions to indicate that it was to be exercised by the commissioners, where more than one, conjointly. And it would have retarded rather than promoted the ob-' ject which the legislature plainly had in view, to make the power joint instead of several. I am however of opinion that it has not been shown that Brown had any legal authority to execute this deed. He was not the commissioner who sold the land and who was authorized to receive the purchase money, nor has any order of the court been produced directing him to make the conveyance. That he had been appointed a commissioner of forfeited land to supply the vacancy occasioned by the removal of Commissioner Stephenson did not of itself import an authority to make deeds for lands sold by his predecessor. By the act of 1837 it was the duty of the court in all cases to direct the deed to be made, and no deed could be made without such order; by the act of 1838, § 9, provisión is made authorizing the commissioner by whom a sale is made to receive any purchase money before it is due, deducting the interest thereon from the time when paid ties in which more than one commissioner of forfeited f and delinquent .lands was appointed, it is understood that they have construed their authority to be joint and not several, and have acted conjointly in all their proceedings. Such however, I think is not the true construction of the act by which the appointment of such commissioners was directed. The object of the law in authorizing several commissioners in one county, was to speed the sales of forfeited lands in the large counties in which from the number of forfeitures, they could not be investigated and reported to the court and the numerous tracts sold by a single commissioner in a reasonable time. The power conferred was a f 225to the time when the same would become due and payable according to the terms of sale, and thereupon the purchaser became entitled to his deed for the land so purchased and paid for, upon application to the commissioner. But the commissioner thus authorized to convey without the order of the court was he who made the sale and received the money. The words are “ upon application to the said commissioner,” referring to the one who had made the sale and received the money. No other would be authorized to collect or receive the purchase money of lands sold, without an order of the court, nor could the successor of a commissioner who had died or been removed from office know personally or undertake to recite that the money had been paid in advance to his predecessor. In such a case the proper course is for the purchaser to apply to the court and upon proving that the purchase money has been duly paid by reference to the report of sale if it showed it or by extrinsic evidence if it did not, to ask an order directing some other commissioner to make the deed. In Walton v. Hale, 9 Gratt. 194, the president of this court says “ the commissioner to make sales under the delinquent land laws * * has no interest in the subject of sale. He acts like a commissioner to make sales under a decree of the Chancery court and is clothed with a mere naked authority.” It was therefore held that the deed of such a commissioner could avail nothing where his authority to make it did not appear, as in that case where the commissioner had undertaken to make the deed to a person other than a purchaser at his sale. In Rockbold v. Barnes, 3 Rand. 473, which was the case of a sheriff’s sale of delinquent land, the deed purported to be made by the deputy sheriff, and it was held that to make it evidence of transfer of title it should be proven that the principal was sheriff and 226that the party who undertook to convey was his deputy. In Wilsons v. Bell's lessee, 7 Leigh 22, which was a similar case, the sale had been made by the sheriff, but the deed reciting such sale was made and acknowledged by the deputy as his own act, though • it purported to be the deed of the principal. The deed was rejected as evidence of title, and the judgment was affirmed. In that case the opinion is expressed that where in such a case the sale is made by the sheriff, the deed cannot be made by the deputy and vice versa; and Tucker, P. refers to the terms of the act as fortifying “the-natural supposition that he who makes the sale is to make the title.” In Flanagan v. Grimmet, 10 Gratt. 427, Allen, P. refers to a case decided by this court, Keezee v. Leece (not reported), in which where the sale had been made by a deputy but the deed executed by the sheriff, the objection to the deed was overruled and it was suffered to go to the jury, and this court affirmed the judgment. But if in that case the correctness of the distinction implied in the opinions of the judges in Wilsons v. Bell's lessee (above cited) between the sheriff and his deputy, was doubted or disaffirmed, certainly I think, it will not be questioned if predicated of a sheriff and his successor in office or of a commissioner of forfeited lands and his successor. The deed executed by Commissioner Brown, it is true, recites that it was made in pursuance of an order of the court made on the 9th of September 1841 directing the acting commissioner to convey the land to the grantees. No such order is produced, and the mere recital of authority in such a deed would not be evidence against others asserting an adverse claim. Carver v. Jackson, 4 Peters’ R. 83; Wiley v. Givens, 6 Gratt. 277; Walton v. Hale, 9 Gratt. 194. The presumption I think is that there was in fact no such order, but that the order of the 9th of September 2271841, appointing Brown successor of Stephenson was construed (erroneously I think) as importing a direction to make deeds for lands sold but not conveyed by Ms predecessor. I think the deed was ineffectual for want of a sufficient authority in Brown to make it; but there is another objection which is perhaps equally fatal. The report of the sale made by Commissioner Stephenson merely describes the land as “ one tract of 3000 acres in the name of John Cantril * * lying ©a waters of Gauley river and Beaver creek,” and the order confirming the sale describes it' as “ 3000 acres sold in the name of John Cantril.” The order for the sale is a general order directing the sale of the lands forfeited within the county of Nicholas according to the report of the commissioner made on that day. But this report is not produced, why, the record does not disclose, though it was stated in the course ©f the argument that it had been lost; and we cannot know that it ever was reported as forfeited except so far as we may infer it from the fact that it was reported as having been sold as such and the confirmation of that report. But what was the description given of it in the report of forfeiture, if such there was, we are not informed, nor can we undertake to say from the record of the proceeding as we have it, that the “ 3000 acres in the name of John Cantril on the waters of G-auley river and Beaver creek,” is the same three thousand acres granted to George Clendenio, or that it was the survey on which George Rader lived on Stroud’s creek, nor does it inform ns what John Cantril had to do with the three thousand acres granted to George Clendenin. Whether he claimed the whole tract or an undivided interest in it on behalf of his wife who it was proved on the trial of this cause (though it does not appear in the proceeding for the sale) was one of the heirs of George Clendenin, we 228are unable to learn, nor whether thé entire tract was reported as forfeited or his undivided interest only. We cannot suppose that it was reported as forfeited as omitted land because not entered in the name of George Clendenin or of his heirs, because it is treated as forfeited for non-payment of taxes charged to John Cantril, and also because it is clearly proven that at the date of the act of 1835 the land was in the actual possession of parties claiming under the Clendenin title, and therefore not liable to forfeiture as omitted land. All these difficulties Commissioner Brown undertakes to resolve. He identifies the “ 3000 acres in the name of John Cantril on waters of Gauley river and Beaver creek,” with the tract granted to George Clendenin on the north side of Gauley river, including Stroud’s improvement and the several branches of Stroud’s creek and a branch of Beaver creek, referring to the patent for the boundaries; and he ascertains that the whole interest in this tract had been forfeited in the name of John Cantril; and accordingly undertakes to convey it to the purchasers at the sale made by Stephenson. In doing this, even if he had had authority to make a deed, I conceive that he went out of the chart prescribed to him by the record and transcended his authority in undertaking to identify the land sold by Stephenson by elements of description furnished by himself outside of the record. On both the grounds stated I think the d,eed of Brown was invalid to convey title to the land in controversy, or at least that its validity is not shown by the record before us, and that the Circuit court should have given the second instruction asked for by the defendants, and should have also sustained the motion to set aside the-verdict and grant a new trial. I am of opinion, therefore, to reverse the judgment and remand the cause for a new trial, upon which the parties may, if they can, supply the defects in the re229cord on which they rely; and as the other questions that have been raised may not arise upon such future trial, I forbear at this time to express any opinion upon them. The other judges concurred in the opinion of Tee, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481594/	Lee, J. I concur in the results of the opinion delivered by Judge Daniel and in much of the reasoning by which he is brought to his conclusions. I do not think it necessary however in this case to review the decision of this court in the case of Pryor v. Kuhn, 12 Gratt. 615, or to determine what must be the frame of the exception or certificate which shall enable this court to review the action of a Circuit court in a case in which the parties have waived a jury and submitted the whole matter of law and fact to the judgment of the court. For if in such a case the same rule be adopted which has obtained in cases where there is a general verdict and a motion for a new trial upon the ground that the verdict is contrary to the evidence, and the exception or certificate in general, be required to set out the facts and not the evidence merely, the same modification should be also 432adopted which has prevailed in the latter case; and if in a given case the evidence only and not the facts has been certified, yet if this court looking to the documentary evidence and the jiarol evidence of the party prevailing only, rejecting that of the party excepting, can see enough to enable it to say that the judgment of the court below is erroneous and to render judgment for the party excepting, I think it is its duty to reverse the judgment and to render judgment for the plaintiff in error. And as I think that in this case rejecting all the parol evidence offered by the plaintiffs and taking the documentary evidence and the parol evidence of the defendants alone, the proof is abundant to show the plaintiffs’ right to recover and also what should be the amount of their recovery, I consider it unnecessary to consider the frame of the bill of exceptions because in any view the reversal of the judgment and final judgment for the plaintiffs in error are inevitable. There is another question discussed by Judge Daniel which I think not necessary to be decided in this case. It is as to the nature and character of the circumstances attending a sale and purchase of goods which shall so vitiate the same as to enable the vendor to avoid the transaction on the ground of fraud in the vendee and reclaim the property. For although there may have been such fraud in the conduct and representations of the vendee inducing the vendor to part with the goods as will enable the latter to avoid the . transaction and reclaim the property from the vendee, yet if the goods have gone into his possession as upoii a sale in the regular course of business, and have since come to the hands of a purchaser from the vendee without notice of the fraud, such purchaser will not be affected by the vice in the former sale; and as in this case the plaintiffs regresenting_the creditors pro-j vided for by the .deed of the 19th of November 1851,, 433J under the terms and conditions of that ¿leed, are tojie regarded as purchasers of the goods for valuCjand no notice to them or to the creditors of any fraud in the purchase of the goods by Graff is proved or alleged, they cannot be affected by the alleged vice in the transaction between Graff and the defendants. Upon this question therefore I decline to express any opinion. Daniel, J. In this case the parties, after making up the issue, availed themselves of the provisions of the 9th section of chapter 162 of the Code, and by consent entered of record, “ agreed to waive a trial of the issue by a jury, and to submit the same to the court, who was to determine upon all matters of law and fact, and to give judgment accordingly.” And the court having found the issue for the defendants and given judgment accordingly, the plaintiffs excepted to the judgment, and moved the court to set aside the judgment and enter the same for the plaintiffs, or to award them a new trial on the ground that this judgment was contrary to the law and the evidence. But the court adhering to its judgment, and refusing to grant a new trial, the plaintiffs again excepted, and prayed the court to certify all the evidence; which the court accordingly did. In this state of things the question has been raised here as to what ought to be the character of the certificate to be made by the court when the trial has been had, and the judgment rendered, under the provisions of the section just mentioned, viz: Whether it ought to be a certificate of the evidence or of the facts. In the view I have taken of the case, the decision of this question is not essential in enquiring whether the circuit court was correct in its judgment. For if we wholly disregard all the evidence adduced by the plaintiffs except the deed, and give full credit and weight to all the evidence adduced by the defendants, certain 434propositions of law are presented by the case so made, decision of which will show either the error or of the judgment. In other words, all the elements material to determine the question of the right of the plaintiffs to recover, appear as fully from an inspection of their documentary evidence, the deed and the parol evidence of the defendants, as they do on looking also into the parol evidence of the plaintiffs. If the plaintiffs are entitled to recover at all, they must, in the view I have taken of the case, recover by force of the deed of trust, or of the transaction with Myerson, proved by himself on his examination as a witness by the defendants, and possession of the goods in controversy, acquired under the circumstances detailed in depositions taken by the defendants. No fact is deducible from the parol testimony of the plaintiffs, (which is not also found in that of the defendants,) furnishing any additional support to the grounds of their claim above indicated. In opposition to these grounds, the defendants say that Graff the grantor in the deed acquired the goods by a purchase from them, which was made under such circumstances of fraud, on his part, as gave them a right, on the discovery of the fraud, to cancel the sale, assert their original ownership, -and reclaim the goods. And they also assail the title of the plaintiffs as 'defective, for reasons which will be hereafter noticed. It is proved that the goods were purchased of the defendants; and it becomes necessary at the very threshold of the case to enquire whether Graff by virtue of said purchase acquired a title to the goods which he could pass to third persons. That fraud, practiced by the vendee in the procurement of the sale, may so far vitiate it as to confer on the vendor a right, on the discovery of the fraud, before the rights of innocent third parties have inter-435veiled, to avoid the sale and demand restitution of the property, is a proposition well established by decisions in England and in this country. 2 Rob. Pr. 499, cases there cited. There is, however, much conflict of authority as to the nature of the circumstances, the character of the elements, essential to the constitution of such fraud. Where the fraud to be enquired into is of the character alleged in this case, numerous decisions may be found, in which it has been held that the insolvency of the vendee, at the time of the sale, known to himself and not disclosed to the vendor, accompanied by a design on the vendee’s part not to pay for the property, is sufficient to constitute the fraud, whilst in some of the more recent cases it has been held that conscious insolvency, though not disclosed, and an intention not to pay, on the part of the buyer, at the time of the contract, are not of themselves sufficient to vacate a sale, on the score of fraud: But that in order to justify the rescission of the sale, it is essential to be shown that the dishonest purpose of the buyer was consummated by some artifice, contrivance or false representations, intended and calculated to deceive. I do not deem it necessary to decide in which of these two lines of conflicting authorities the best exposition of the law is to be found, inasmuch as the application to this evidence, of the rules most favorable to the rights of the vendee, will, I think, result in showing that the sale was procured by fraud. The embarrassed pecuniary condition of Graff; his practice before and after and about the time of the sale, of purchasing goods in the northern cities on credit for the Wheeling market, and after they reached Wheeling, having the goods immediately sent to Pitts-burg and Steubenville, and probably other places, to be sold at auction for cash — first effacing his own name from the boxes in which they were contained, and marking in the place thereof the name of an irre436sponsible person; his purchasing from other merchants, about the time of his purchase from the defendants, large quantities of goods, constituting in the aggregate an amount of stock wholly disproportioned to the ordinary and legitimate demands of the business in which he was engaged; his getting the same kinds of goods from different- merchants, (or as, in the language of one of the witnesses, the duplicating of his goods,) without any apparent motive connected with the style, quality or price of the goods, are circumstances which, taken in connection with the representations made by him to one of the defendants at the time of the sale, in respect to the floimshing state and prospects of his business, and the proof of his real pecuniary condition at the time and shortly after, wTould have well warranted a jury in finding that the defendants were defrauded in the sale. And if they had pursued the goods and reclaimed them (as it seems some other merchant from whom he bought goods about the same time, did) before there was any intervention of the rights of third persons, I know of no legal impediment that could have been placed in the way of their obtaining restitution. It is, however, well settled in England, that fraud in a sale does not absolutely avoid the contract, but only renders it voidable at the option of the party defrauded; that though the fraud gives a right to rescind, the property, in the subject matter, passes in the first instance to the vendee. And that an innocent purchaser from the vendee may acquire an indisputable title to the property. Stevenson v. Newnham, 16 Eng. L. & Eq. R. 408. And such was the decision of this court in the case of Williams v. Given, 6 Gratt. 268. There is some contrariety in the decisions of other states as to whether a deed of trust, by the vendee, for the security of pre-existing debts simply, places the assignees in any better position to dispute the 437claim of the cheated vendor than the fraudulent vendee had, at the date of such, assignment. In most of the cases, however, I think it will be found that the question turned on the further question, whether the trustees or creditors ought to be treated as purchasers for value; and that when the latter question has been decided in favor of the assignees, they have been generally protected against the claim of the original vendor. And I think it has been the constant course of the courts in this state to regard the creditors in a deed of trust, made by their debtor, bona Jiie for their indemr! nity, in the light of purchasers for value. The judgment which has been obtained by the defendants cannot be vindicated, therefore, unless it can be shown that the conveyance under which the plaintiffs claim labors under some defect or vice which prevents its operating, or destroys its validity, as a deed of trust. And in anticipation of such a difficulty in the way of their success, the defendants have contended here that the goods in controversy are not embraced in the deed, and that they are not brought within its operation by force of the transaction between the plaintiffs and Myerson. They also assail the deed because of certain provisions which it contains, which, they say, if not by the laws of Virginia, at least by the laws of Ohio, in which state the goods were at the date of the coiiveyance, render it fraudulent and void, and therefore inoperative against their claim. I shall proceed to examine each of these positions in the order in which they have been mentioned. It is conceded that the goods in controversy do not pass by the first clause of the deed, which conveys only certain property, rights and interests therein, specifically mentioned and described. But in the clause next to the last it is provided, that “ if through accident, or forgetfulness, or inadvertence,” the said Marx Graff may have omitted to mention any claim 438or property, the same shall be understood as being conveyed to the trustees, as, fully as if specifically mentioned. It is perhaps difficult to believe that so ■large and valuable ■ a portion of his property as these goods constituted, (supposing them his,) could have been omitted by Graff, through “ accident, forgetfulness or inadvertence;” and it is thence argued that they should not be held to be embraced in and conveyed by the deed. Such a construction would, however, it seems to me, be plainly at war with the leading intent of the parties and the obvious scheme of the deed, to be derived from an inspection of the instrument taken as a whole. For in the commencement of the deed the grantor, after reciting his indebtedness to “ various firms and individuals, expressly states his desire, by the execution of the deed,” to provide a fund for the payment of his said liabilities, and for this purpose to devote all the property of every kind, which he possesses, or is entitled to possess, to the creation of such fund. He then proceeds to convey all his stock of goods in Wheeling, all his h'ousehold and kitchen furniture, all his bonds, notes, accounts and evidences of debt, and also an unexpired lease of his dwelling and store-house. And then, after setting out the trusts upon which the property is conveyed, he makes provision, in the manner already mentioned, for any of his property which may have been omitted. It is I think manifest, from an examination of the whole instrument, that the scheme proposed was a dedication by the grantor of his entire property of every description to the payment of his debts, on the condition that his creditors should release him from any balance that might remain due to them after receiving respectively their pro rata shares of the proceeds of his estate. Expressions in the deed of an equivocal character should receive such a construction as will support 439rather than one which might defeat the scheme. And under such a rule of interpretation there is, I think, no serious difficulty in holding that the words in question were designed not to control or limit the operation of the other words in the clause, but simply to indicate some of the cases through which the grantor may have failed to mention, specifically, property that might thereafter be found to have belonged to him at the date of the deed; and that the true meaning and effect of the whole clause was so to extend the deed as to make it embrace all of the grantor’s property, whether specifically mentioned or not, and thus to carry out fully the purpose declared in the recital. The determination therefore of the question whether these goods are conveyed by the deed, must properly be the result of the simple enquiry, whether at the date of the deed the grantor had any property in or right to them, which he could convey, uninfluenced by any speculation as to how or why, or whether through “ accident, forgetfulness or inadvertence,” or otherwise, there was a failure to mention them in the first clause of the deed. The purchase of the goods by Graff has been already examined and commented on, -and there is no evidence tending to show that he had divested himself of the property therein, so acquired, at any time previous to the date of the deed, unless he parted with them by force of the transaction of September 1851, between him and Myersou, disclosed in the. deposition of the latter, on his examination by the defendants. But if, as argued here, the legal effect of that transaction was so to devest Graff of title to the goods, and to vest Myerson with it, as that a conveyance of the goods thereafter to his creditors by Graff, would not pass them, I do not see how the claim of the plaintiffs is in any regard impaired thereby. For it is, I think, obvious that the same rule of law which, in 440the view of the case taken by the defendants, would give to the transaction the force of depriving G-raff of the right thereafter to assign or convey the goods, would at the same time give effect to the transfer and assignment of the note, which was given by Myerson on receiving the goods. Graff acquired, by the color-able sale or arrangement between him and Myerson, a title to the debt evidenced by the note, in all respects equal, in force and extent, to the title vested in Myerson to the goods. The deed, as we have seen, assigns, with specific mention, all of the grantor’s bonds, notes, &c.; and confers on the trustees not only the power to collect them by suit or otherwise, but also full authority to compromise and compound disputed or doubtful claims, and to take such sum of money for the same or receive any other thing in lieu or exchange therefor as they might deem for the interest of all concerned. And as by the arrangement by the trustees with Myerson-, the latter, on the terms of getting back his note, surrendered, or (to use his own language) disclaimed all right or claim to the goods, and delivered to the trustees the ware-house receipt which he had obtained for the same, the goods were, it seems to me, as fully covered by the deed as if there had never been any arrangement between Graff and Myerson respecting them, and they had been specifically mentioned in the first clause of the deed. No question under the recording acts, or as to notice whether actual or constructive, by the defendants of the rights of the plaintiffs, arise in the case, inasmuch as it is shown that the plaintiffs had obtained the actual possession of a part of the goods, and the virtual possession of the whole, before the occurrence of any active interference with their rights by the defendants ; it being proved by Doyle, on his examination by the defendants, that Wickham had delivered up to him the ware-house receipt, (which embraced 441also twenty other boxes of goods,) had commenced hauling the goods to the river to be transported to Wheeling; and had carried about half of them to the wharf when he was arrested in his proceedings, and the goods were ordered back to the ware-house by the sheriff. The plaintiffs having thus shown a complete and perfected title to the goods, it remains to be considered whether the deed under which they claim is void because of the provisions in it objected to by the defendants. It appears, from the report of the decision of the Supreme court of Ohio in the case of Atkinson & Rollins v. Jordan Ellis, &c. 5 Ohio R. 294, which was given in evidence by the defendants on the trial, to have been decided by that court, that an assignment of effects by an insolvent debtor to trustees for the benefit of preferred creditors, with a clause that those who do not within a time specified release the debtor on account of what may be received from the proceeds of the assignment, is void as against other creditors : And that the effects assigned may by proper process be subjected in the hands of the assignee. And it must be conceded that the provisions of the deed under consideration would seem to fall fully within the principles declared by the court in announcing their decision. It does not appear from the report of the case, however, where the creditors or debtors resided, where the deed was made, or where the property was at the date of the deed; but the fair inference is, that the controversy was between citizens of that state, in respect to the operation of a deed made in that state, and purporting to convey property there situated; inasmuch as there is no reference in the opinion of the court to any question of conflict of law which would show that the forum, the domicil, the place of the contract, and the situs of the property, were not all the same. 442The defendants also , gave in evidence an act of the genei’al assembly of Ohio, passed in 1838, by the 3d section of which it is declared, that “ all assignments property in trust to trustees in contemplation of insolvency, with the design to prefer one or more ereditors to the exclusion of others, shall be held to enure to the benefit of all the creditors in proportion to their respective demands; and such trusts shall be subject to the control of chancery as in other cases; and the court, if need be, may require security of the trustees for the faithful execution of the trusts, or remove them and appoint others, as justice may require.” It is to be observed that the act does not in terms avoid the assignments therein mentioned, but only declares that they shall enure for the benefit of all the creditors. And the provision in respect to the control of the trustees, by requiring security of them, &c. would seem to favor the view of the plaintiffs’ counsel, that the effect of the statute is not to invalidate the legal title of the trustees, but simply to provide for and insure an equitable distribution' of the fund. I do not deem it necessary, however, that we should construe this statute, or determine the effect which it ought to have on the previous decision of the Supreme court of Ohio, already mentioned; inasmuch as I have been unable to perceive how such decisions or statutes of that state can be made to bear on the controversy. For it is well settled, as a general rule, that a transfer of moveable property, good by the laws of the owner’s domicil, is valid wherever else the property may be situate. It is true that this rule is liable to exceptions; one of which is, that where the transfer is opposed to the laws of the country where it is sought to be enforced, the courts of such country are not bound to give it effect against the conflicting rights of its own citizens. Black v. Zacharie & Co. 3 How. U. S. R. 483, 514; Story on Conflict of Laws, § 383 to 390, inclusive; 4431 Rob. Pr. (1854) 156. In the cases of Burlock v. Taylor, 16 Pick. R. 335, and Ingraham v. Geyer, 13 Mass. R. 146, cited by the last mentioned author, may be found appropriate illustrations as well of the rule as of the exception. In the last mentioned case an assignment of his effects by a debtor in Pennsylvania in trust for such of his creditors as should within a specified time release all 'their demands against him, the surplus to be distributed pro rata among his other creditors, and the remainder, if any, to be paid over to the assignor, was holden to be void as against a creditor, a citizen of Massachusetts, who. had acquired a lien after the assignment. The court said that such an assignment, if, made within the state of Massachusetts by parties residing there, and with a view to be there executed, could not have been supported, chiefly on the ground of its excluding such creditors as would not give a discharge of their debts; and that though such an assignment might be good in Pennsylvania, there was no comity which would require the court to give it validity against the rights of the citizens of Massachusetts. But in the first mentioned case, an assignment in New York, which was valid by the laws of that state, was sustained against the subsequent attachment of a citizen of New Yorlc of property in Massachusetts belonging to the debtor, although such assignments were, under the laws of Massachusetts, invalid. If this suit, therefore, had been brought in Ohio, there is nothing to show that the courts in that state would have been j ustified in departing from the general rule. None of her citizens are parties to the controversy, and no decision or law of Maryland, in which state the goods were bought, and in which the defendants reside, has been given in evidence to show that bona fide purchasers from the vendee are not protected from the claim of the vendor to rescind the sale of the goods for fraud in its procurement, or that par444ties standing in the attitude of the plaintiffs, do not occupy the position of bona fide purchasers. In such a state of things an Ohio court, having no motive to make an exception to the general rule, would have yielded to it, and would have adjudged the question as to the validity of the deed of trust by reference to the laws of Virginia, where the deed was made. Let this be as it may, however, the plaintiffs, in the prosecution of their rights, have not found it necessary to invoke the aid of the courts of Ohio. They have instituted their suit in Virginia; and it would involve an entire departure from all rule on the subject, to hold that a court of Virginia, in passing on a deed of trust made in this state, upon trusts to be performed here, the grantor and the trustees being all citizens 'of Virginia, is to be controlled, not by its own laws and decisions, but by the laws of another state, merely because the property in controversy was at the date of the deed in such other state, and because the trustees perfected their legal title to the property, by reducing it to their possession within the limits of said last mentioned state. And it is well settled in Virginia, that clauses, such as the one objected to, in deeds of trust conveying all of the debtor’s property for the security and satisfaction of his creditors, do not invalidate the deeds. Skipwith v. Cunningham, 8 Leigh 272; Phippen v. Durham, 8 Gratt. 457. The title of the plaintiffs is, therefore, as it seems to me, free from any vice or defect, and was complete when the tort complained of was committed by the defendants. And I think that the Circuit court erred in rendering a judgment for the defendants, and that said judgment should be reversed. The enquiry now arises as to the judgment to be rendered by this court. If the proceedings are to be regulated by the rules prevailing in writs of error and supersedeas founded on exceptions taken to an erroneous. refusal of the court 445below to set aside a general verdict on the ground of its being contrary to the law and the evidence, all we can do, after reversing the judgment, is to send cause back for a new trial. If, on the other hand, we are to be governed by the rules prevailing in cases of appeals from erroneous judgments on the merits, rendered in cases of mills, wills, roads, and of motions, where the courts below have acted as judges of both law and fact, it is our duty to render a judgment in behalf of the plaintiffs for such sum as they have shown themselves entitled to. The latter of the two views is that which was contemplated by the revisors, and by them presented to the legislature in their report. In their note to the section under which the proceedings and judgment in question were had, they say, “ This privilege (in the first part of the section) is given in the case of a will offered for probat by the law at present; and in all cases of motion the whole case of law and fact may be and generally is determined by the court. There are many cases in which the parties would prefer, for the purpose of saving expense and avoiding delay, that the court should decide the whole case. The right of exception to the judgment of the court will be preserved ; it will merely be to the judgment of the court, instead of being, when the trial is by jury, to the admissibility of evidence, or to instructions given or refused, or to the decision on a motion for a new trial. One great advantage when the parties waive the trial by jury, will be, that when the court above reverses the judgment of the court below, either for matter of law or fact, there will be no necessity to send the case .back for a new trial.” Rep. of Rev. 816. . In the case of Pryor v. Kuhn, 12 Gratt. 615, decided at the last session of the court in Lewisburg, the character of the certificate to be made by the judges of the Circuit courts in cases of exceptions to their judg446ments under this section, was discussed and considered by ke cour^ ’ anc^ I concurred in the opinion of the of the court holding that the bills of excep^ons ™ suc^ cases should so far conform to the practice regulating exceptions to the action of the courts below in overruling motions for new trials, as to eon-a statement by the judge, not of the evidence, but of the facts proved on the trial. In that case, however, the evidence was conflicting and contradictory, and the majority of the court, as also the judge who dissented on the question of practice in respect to the certificate, all concurred in the opinion that under the application of either rule of practice the case could not be reversed. There was, therefore, nothing in the state of the case making it necessary to decide the question which arises in this as to the nature of the judgments to be rendered here in reversing judgments of the Circuit court obtained under this section ; and this is therefore the first occasion on which the precise question has been distinctly presented to the consideration of the court for its decision. A single view of the difference between the two proceedings, where in the one case the judgment of the court follows as the legal consequence of the verdict of a jury, and where in the other it is the decision of the court on its own view, as well of the facts as the law, has sufficed to convince me that it is our duty to render a final judgment for the plaintiffs instead of remanding the cause for further proceedings. There is, properly speaking, no such thing as an appeal from the verdict of a jury. Though the court which presides at the trial of a case before a jury, has a right, for certain causes, to set their verdict aside, it cannot give a decisive expression of its views of the merits of the controversy, in the shape of a judgment, until there is a verdict on which to found such judgment. However manifest may be the error of the jury, and 447however satisfactory and complete the elements out of which to make the verdict which in the opinion of the court ought to have been made by the jury, all the court can do is to set aside the verdict and award a new trial before another jury. And when an appeal is taken from an erroneous judgment of a court refusing to award a new trial, as the appellate court, after reversing, is to render the judgment which the inferior court ought to have rendered, it can, necessarily, give no further judgment than to award the new trial. But when the parties waive a trial by the jury, and agree that the court may act as judge both of the law and the fact, the court is vested with the power and charged with the duty of making a complete decision by its judgment. If upon appeal from such judgment the appellate court perceives error in it and reverses it, there is no necessity for, or propriety in, sending the cause back in order that the error may be corrected in the court below. To award a new trial before a jury is to render a judgment which the inferior court could not have rendered without violating the agreement of the parties that the matter should be determined by the court without the intervention of a jury. And to remand it that the court below may make up and pronounce a new judgment, such judgment as in the opinion of the appellate court it ought to have given before, is simply to require of the inferior court to do what the law makes it the duty of the appellate court to do itself. I have already expressed the opinion and endeavored to show that the plaintiffs have proved their case by their deed and the defendants’ evidence, and that the case therefore would come within well recognized exceptions, even on the concession that in cases of this kind the general rule, applicable to bills of exceptions to judgments refusing new trials, requiring the facts to be certified, should prevail. It is not, 448therefore, essential to the decision of the case that an opinion should be expressed as to the practice which govern the Circuit courts in making their cerbifieates. The question is, however, as I conceive, closely connected with the character of the judgment to be rendered by the appellate court, a question which it has become necessary for me, in the view I have taken of the case, to consider. And as the examination of the last mentioned question has resulted in satisfying me that the opinion, in respect to the first, which I entertained and united with the majority of the court in Pryor v. Kuhn, in expressing, is erroneous, I deem it proper to avail myself of the occasion to declare the change of opinion. The reference to the comments of the revisors on the section of the Code under consideration, already cited, to which my attention was for the first time called on reading the opinion of the dissenting judge (Moncure) in the case just mentioned, (which owing to the late period of the session at which the case was decided, was not reduced to writing till after the close of the session,) and the more special enquiry which I have been led by such reference and the demands of the present case, to make as to the purpose and object contemplated in the enactment of said section, have convinced me that it was the design of the legislature to conform the course of the court below in such cases, as well in passing on the case as in furnishing to the defeated party the means of testing the correctness of its judgment in an appellate court, as also the action of the latter court in reviewing the judgment — all— to the practice prevailing in cases of wills, mills, roads, and motions on the merits generally, and not to that which has been adopted in cases of motions to set aside verdicts and grant new trials. That the judgment of the appellate court when it reverses, is to be thus regulated, I have already attempted to 449show, and there seems to be a want of consistency in holding that the proceedings in the previous stages are to be governed by a different practice. When the parties expressly waive the trial by jury and agree that the court shall act upon and determine the case as judge both of the law and the fact, what grounds have we for supposing that the legislature, in providing the privilege, or the parties in accepting it, did not mean that their rights in the case should thenceforward be regulated and determined in all respects, by the rules governing in other cases where the court acts as judge both of law and fact? What is there in the terms of the section to show the propriety of placing the defeated party in the predicament of one whose pretensions have been condemned by the verdict of a jury as well as the judgment of the court below, when there has not only been no verdict, but it has been expressly dispensed with by the assent of his adversary, entered of record ? Whilst the course of this court has been uniform in discountenancing the practice of the courts below in certifying the evidence instead of the facts on motions for new trial, it has been just as uniform in allowing such certificates in cases where the court below has rendered judgment on the law and the facts without a jury. In the vast number of appeals which have come up to this court from judgments in controversies respecting the probat of wills, the establishment of roads and mills, in motions on forthcoming bonds, and against sheriffs and their deputies and sureties, and in motions by corporation's against delinquent shareholders, and in many other classes of cases where the judgments have been rendered by the courts below on the whole case, I have seen none in which this court has refused to look into the bill of exceptions, simply because of its containing a statement of the evidence. ° The difference of practice prevailing in the two classes of cases was 450well known to the legislature, and the inference seems to my mind a necessary one, that in providing for dispensing with the jury and submitting the case to the judge, they would have said otherwise, if they did not mean to subject the proceedings to the rules governing in all other cases where the court is allowed or required to act as judge both of law and fact. This view, it seems to me, derives support from the consideration that the legislature were, at the very period of the enactment of the section under review, engaged in greatly extending the remedy by motion. Without adverting to other instances, it is sufficient to notice a striking illustration of the change of policy in this regard, apparent in the fifth section of chapter 167, in which it will be seen that any person entitled to recover money by action on any contract, may, on motion before any court which would have jurisdiction in an action, obtain judgment after sixty days’ notice, &c. It is true that in the seventh section it is provided that on a motion where an issue of fact is joined and either party desire it, or where in the opinion of the court it is proper, a jury shall be impanneled, &c. What is the character of the proceedings in the particulars we are considering, in cases arising under this law, where neither party shall call for a jury? Is a defeated party in such case to occupy the attitude of one seeking to set aside a verdict? Is he to ask the court to set aside its judgment and grant him a new trial ? And if refused, is he bound to procure a certificate of the facts; or did the legislature mean that . the proceedings should be of the same character with the proceedings that the practice of the courts has sanctioned in other motions on the law and facts? What warrant have we for saying to a party appealing from a judgment of the court below, rendered under this law, upon a bill of exceptions setting out the evidence, that we will not enquire into the alleged injus451tice, because he has not procured such a certificate of the facts as has been heretofore required only in cases of unsuccessful motions to set aside verdicts? The answer seems to my mind obvious. If the legislature had designed to except the proceedings, in any particular, from the operation of the well known practice prevailing in other cases of motions in which the whole case is decided by the court, on the law and the evidence, they would have used some express declaration to indicate such purpose. If in the case of a motion neither party desires a jury, or if in an action the parties waive a jury and submit the whole case to the court, in either case it would seem to me fair to infer, in the absence of all declaration by the legislature to the contrary, that they intended the practice in motions on the merits to govern. And in such cases, if the defeated party excepts to the judgment and spreads out the evidence in his bill of exceptions, he does all that it is incumbent on him to do in order to prepare the case for the appellate court. Where the case turns on the credibility of witnesses, or, as it did in Pryor v. Kuhn, on the weight of conflicting and contradictory evidence, an appeal to the court can be of no avail to the defeated party. For in such case, acting on the rule announced in Dudleys v. Dudleys, 3 Leigh 436, 445, and constantly adhered to, this court will presume that the inferior court that saw and heard the witnesses, has decided correctly. But in cases where the reversal of the action of the court below does not involve this court in the necessity of deciding on the credibility or weight of evidence impeached or contradicted in the inferior court, I should not feel warranted in refusing relief on the score that the defeated party brought up, in his bill of exceptions, the evidence of the witnesses instead of a certificate of the facts. I still think that the decision in Pryor v. Kuhn was right; but, in expressing the opinion that the practice 452in cases of this kind should be regulated by the rules governing bills of exceptions to judgments of the courts below, refusing to set aside the verdicts of juries, I think we mistook the intention of the legislature. I have deemed it my duty to take this the earliest occasion to state the change of opinion which my mind has undergone on the subject, and to set out some of the reasons that have induced that change. I forbear making any further statement of the arguments which might be advanced in support of my conclusions, as I should have to extend this opinion to an unreasonable length, and to present views which have been already clearly and fully stated in the opinion of Judge Moncure, before mentioned. The amount for which the judgment of this court ought to be given, remains to be briefly considered. It appears from the testimony that the goods in question were appraised in Baltimore on the 5th of December 1851, by experienced merchants, at the sum of three thousand two hundred and ninety-four dollars and twenty-four cents. And the evidence clearly shows that the goods would have probably sold for more at Steubenville. There is some conflict in the testimony of the defendants’ witnesses as to the sum which should be added to the value of the goods in Baltimore in December, in order to show their probable value in Steubenville on the 20th of November previous, the date of the conversion. Some of the witnesses fixing such further sum at ten per cent, on the value aforesaid, ascertained in Baltimore; and others at a higher rate. I think that the former is that best established; say three hundred and twenty-nine dollars and forty-two cents. The aggregate of these two sums, viz: three thousand six hundred and twenty-three dollars and sixty-four cents, to carry interest from the 20th day of November 1851, the date of the conversion, furnishes, I think, the true measure *453of the recovery to which the plaintiffs should be adjudged entitled in this case. Moncure, J. concurred in the opinion of Daniel, J.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481596/	Daniel, J. The full delivery of the salt in controversy by Neville or his agents, to Howery, the person authorized by Arnold to receive it, is clearly established by the testimony of Howery. Possession of the salt was acquired, and its removal from the demised premises into the boat of Arnold, effected in an open and public manner; Howery, according to his statement, having been engaged three days in loading the boat with it. The inference is irresistible that it was delivered by Neville, in pursuance of the written agreement between him and Arnold of the 22d of July 1846. 459This agreement was thus completely executed, so far as the salt in question was concerned, and nothing remained to be done in order to perfect the transfer of full ownership in it. It is true that in this agreement there is full recognition by Arnold of the relation of landlord and tenant subsisting between Lewis and Neville, and an express exception out of the contract by the latter to deliver Arnold all the salt he should make during the year, of so much as might become due to Lewis on account of his rent. And if, therefore, such a transaction as that which occurred between Lewis and Howery, had occurred between Lewis and Arnold, and the conduct of the latter had been in all regards the same with that of Howery, I am not prepared to say that there would not have been much show of force in the position taken by the counsel of Lewis here. In such a supposed state of things the inference would have been strong, that Arnold, whatever might be his strict legal rights in the controversy, had acquiesced in the claim of Lewis; and in such a case there might have been an apparent injustice in allowing him afterwards to visit Lewis with a loss that might not have occurred but for his seeming acquiescence. But I can see no ground for holding that Arnold is to be held bound by the conduct of Howery. The agency of the latter was of the most special and limited character. He was the mere servant or hireling of Arnold, charged with the simple duty of receiving the salt, loading the boat with it and carrying it down the river to market for Arnold. He was clothed with no powers which could make his admissions, express or implied, of the justice of Lewis5 claim, binding on Arnold. If, therefore, from his statement that he left the boat in consequence of what was said by the sheriff as he was on the eve of starting with his boat, it is to be inferred that he believed in the statements made by Lewis and the sheriff, and acknow460ledged their right to take the salt for rent, it is difficult to perceive by what rule of law it is to be maintained that such inference can be brought to bear on the rights of Arnold. Let it be that Howery had full faith in the declaration of Lewis, that “he had a landlord’s warrant or would get one to take the salt for rent,” and in the announcement made by the sheriff on his arrival soon thereafter, that “ he had a landlord’s warrant, or notice, or something of the kindand that in leaving the boat he designed a surrender of his charge to the challenge of what he supposed to be a rightful claim and a lawful authority, still it is obvious that such conduct cannot stand in a controversy between Lewis and Arnold, as the substitute for proof, by Lewis, of the justice of his claim, nor dispense with the exhibition by him of the process by means of which he threatened to enforce it. There is nothing in the exception or proviso to the agreement between Arnold and Neville, from which to infer a duty on the part of the former to see, on every occasion of receiving salt from the furnace, that a sufficiency of salt was left to discharge the rent to be paid by Neville. The whole effect of the reservation was to give Neville the right to retain, out of the whole quantity made during the year, a sufficiency for that purpose. There is no proof of any specific amount of rent due to Lewis; no proof that he or the sheriff' was armed with any legal authority to make a levy on the salt; no proof that the salt in controversy had been set apart by Neville for the purpose of satisfying the rent, nor that a sufficiency to pay the rent was not left on the leased premises; no proof of collusion between Neville and Arnold in fraud of the rights of Lewis. But we are called on to infer all that is essential to show a superior right in Lewis, from the exhibition of the lease between him and his 461tenant, the agreement between Arnold and Neville showing that the former had notice of the terms of the lease, and from the fact that Lewis took possession of the salt with the assertion of a lawful right to take it to satisfy his demands as landlord. We should have to reverse all the rules applicable to demurrers to evidence before we could allow a defense constructed out of such elements alone, to stand in the way of the plaintiff’s recovery. The Circuit court therefore did not err, as it seems to me, in rendering a judgment on the verdict for the plaintiff. It is contended, however, that the judgment was wrong in allowing interest on the damages, conditionally assessed by the jury, from the date of the verdict. By the 14th section of chapter 177 of the Code of 1S49, p. 673, it is declared that the jury in any action founded on contract may allow interest on the principal due, or any part thereof, and fix the period at which such interest is to commence. And in any action for a cause arising thereafter, whether from contract or from tort, the jury may allow interest on the sum found by the verdict, or any part thereof, and fix the period at which the said interest shall commence. And if a verdict be rendered thereafter, which does not allow interest, the sum thereby found shall bear interest from its date, whether the cause of action arose theretofore or shall arise thereafter; and judgment shall be entered accordingly. It is conceded by the counsel of the plaintiff in error, that the terms of the last clause of this section are sufficiently broad to cover the case; and he also concedes that the judgment is, in the particular in question, in conformity with the judgment rendered by this court in the case of Hepburn v. Dundas, supra 219. He contends, however, that the terms of said clause, if sought to be applied to verdicts rendered in actions pending at the date of the act, must be controlled by 462the provisions of the 18th section of chapter 16, p. 101, and the first and second sections of chapter 216, p. 800, the last chapter of the Code. He calls attention to the fact that in the petition for the appeal in the case just mentioned, no such question is presented, and also to the further fact that in the written opinion of the court no reference is made to these provisions ; and he insists that under such circumstances the question should not be regarded as concluded by the decision made in that case. The provisions of the section to which the counsel first refers us are, that no new law shall be construed to repeal a former law as to any offence committed against the former law, nor as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offence or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect; save only that the proceedings thereafter had shall conform, so far as practicable, to the law in force at the time of such proceedings. And by the first and second sections of the last chapter of the Code it is declared, that all the provisions of the preceding chapter shall be in force upon and after the first day of July next (after the passage of the act;) and that all acts and parts of acts of a general nature in force at the time of the passage of the act, shall be repealed from and after the said first day of July next, with such limitations and exceptions as are already in the previous provisions of the Code, or in the said chapter thereafter expressed; and that such repeal is not to affect any offence or act committed or done or any penalty or forfeiture incurred, or any right established, accrued or accruing before the said first day of July, on any prosecution, suit or proceeding pending on that day, 463except that the proceedings thereafter had shall conform, so far as practicable, to the provisions of the act. There is no conceivable reason why the legislature should have made any distinction in the particular under consideration, as affecting the parties thereto, between actions pending and actions thereafter to be brought on causes of action already existing; inasmuch as it is obvious that this new incident to, or consequence of, the verdict could be as effectually avoided by a defendant in the one case as in the other. The true point of objection (if any) to the clause in question is, that it attaches to a cause of action already existing, a consequence which under the former law did not belong to it, the defendant not being compellable by any former law in case of a verdict for damages assessed in actions for tort, to pay interest thereon from the date of the verdict. But I do not think that in this respect the clause stands in any respect opposed to the spirit of these general regulations. No one who has inflicted injury by the commission of a tort can be properly said to have an established right to withhold for any space of time the measure of reparation ascertained by the verdict of a jury to be due to the injured party. The justice of requiring the prompt payment of the sum which may be assessed by a jury in such case, and of allowing the party injured to receive, and of compelling the party withholding to pay, a fair compensation for retaining it, is just as clear as it is to make a similar requisition of one who is found to be the debtor of another by contract. And when it is entirely within the power of the wrongdoer wholly to avoid the new consequence which the clause in question attaches to the verdict, (as it is, by the prompt discharge of the damages,) I cannot see how the law can be said to be objectionable as being of a retrospective character. It is to be observed further that the act existing at 464the date of the Code in respect to the allowance of interest by the jury, embraced only actions founded on and directed that the jury should, after ascertaining the principal sum due, fix the period at which interest should commence, if interest should be allowed by them ; and that judgment should be rendered accordingly, carrying on the interest till the judgment should be satisfied. This provision though repealed, by the general repeal of all acts then in force, in the last chapter of the Code, is, as we have seen, in effect substituted by the first clause of the 14th section of chapter 177. In respect to actions founded on tort, there was, at the date of the passage of the Code, no act of assembly either directing or forbidding the jury to allow interest on the damages, or prescribing whether interest should or should not go on the damages assessed by the jury in such cases, where the verdicts did not allow interest. These matters were regulated by the common law. In respect to them there was, therefore, no act of assembly to be repealed: And consequently, the clause in question does not come within the terms of the last chapter of the Code declaring the repeal of “ all acts and parts of acts” of a general nature. So far as the said clause declares a new rule in conflict with the common law, it does so in terms definite and precise, leaving nothing for a general rule of construction to operate upon. It ascertains clearly the right to the interest as an incident to every verdict to be thereafter rendered, which does not allow interest, whether the cause of action arose theretofore or shall arise thereafter; makes no distinction between suits pending or thereafter to be brought; fixes the date of the verdict as the period from which the interest is to run, and declares that judgment shall be rendered accordingly. It neither needs nor admits of a reference to any general provision to explain or declare on what 465rights it was designed to operate, or what suits it was designed to affect. It carries with it its own construction. And to bring the general regulations in question, understood as they are by the counsel of the plaintiff in error, to bear upon it, would be to make the law contradict itself in some of its most important provisions; provisions in which it has used language of the most positive and unequivocal character. On the operation and effect of such a law it is plain these general regulations can, from the very nature of the subject and the objects contemplated, have no control. There is, however, a plain mistake or error in the verdict and judgment, to the prejudice of the plaintiff in error, to the extent of thirty-three dollars and forty-nine cents; the amount of damages claimed in the declaration being eight hundred dollars, whilst the verdict and judgment have been rendered for eight hundred and thirty-three dollars and forty-nine cents. By the sixth section of chapter 181 of the Code of 1849, it is made the duty of the Court of appeals in . cases of this kind to amend the judgment in such particular, and then to affirm the judgment, if there be no other error. Under the former law, § 110, ch. 128, Bev. Code, it was the duty of this court in such case to reverse the judgment of the court below on account of the error, and then to proceed to give such judgment as the court below ought to have given. And here again the counsel for the plaintiff in error insists that under the requirements of the general provisions of the Code already commented on, we ought to conform our judgment to the requirements of the former law. The want of any applicability of these provisions, and the absence of all right in the plaintiff in error to ask their application, is, if any thing, more obvious in this enquiry than they were in the one just disposed of. 466If the writ of error had been pending when the Code took effect, there would be a show of propriety in contending that the plaintiff should not by the new law be burdened with the costs of correcting an error which, as the law stood when he sued out the writ, he had a right, an inchoate right, to have corrected at the costs of his adversary. But his position is just the reverse of that supposed. The writ of error, his (the plaintiff’s in error) own suit, has been instituted since the Code took effect. Not only so ; but the cause of action on which it is founded, viz: the error committed in the verdict and judgment rendered in the Circuit court, did not arise till after the new law came into operation. The new law does not sanction this error, nor give to the plaintiff in the original action, which was pending when the new law took effect, a right to recover of the plaintiff in error larger damages than he had a right to recover by the former law. So far from it, whilst it repeals (as is true) the former laws regulating the correction of such errors, it at the same time substitutes in their place new provisions equally efficacious; and in fact gives to the plaintiff in error an additional means of obtaining relief, viz: by motion to the Circuit court. By pursuing that remedy, instead of the one selected, he might have saved himself as well as his adversary the expense and delay that have been encountered in this court. Having refused to avail himself of the cheaper remedy, he ought not to be heard to complain of the rule which requires him to pay the expenses of the more costly one of which he has chosen to avail himself. No precedent can be found going to the length ■of condemning, as retrospective, laws which merely ■change the remedies for existing rights. And it would be carrying the doctrine of the inviolability of vested rights to an extent far beyond the real purpose of any *467constitutional provision, and the true object and scope of the general regulations in question, to hold that a party to a pending suit has such an established right to the then existing remedy for the correction of errors, as that an error which may be committed thereafter in the progress of the suit, cannot be made the subject of a new law regulating the costs of the proceedings to correct the error in the appellate court. It is not necessary to consider the questions which were raised in the Circuit court by the demurrer to the first counts in the declaration, inasmuch as the evidence obviously applies only to the case stated in the last count, which, it is conceded, is in all respects good. There is, I think, no error in the judgment, except that which was committed in rendering judgment for a sum exceeding that laid in the declaration. This error ought to be corrected, and the judgment of the Circuit court then affirmed. The other judges concurred in the opinion of Daniel, J. Judgment amended and affirmed, with costs and damages.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481597/	Lee, J. If it could he considered an open question whether a party claiming a perfect legal title under a grant from the commonwealth can maintain a caveat against one seeking to obtain a new grant for the same land, under the provisions of our act of assembly, I should have little difficulty in holding that the remedy is inappropriate to such a case, thinking as I do that the argument to show that it is a proceeding for the discussion of equitable rights merely and not intended to draw an equitable right into comparison with an alleged perfect legal title, has never been answered and is in truth conclusive. But under the influence of the cases of Preston v. Harvey, 3 Call 495; Tanner's adm’r v. Saddler, 2 Hen. & Munf. 370; and Hardman v. Boardman, 4 Leigh 377; in all of which the caveat was sustained on the basis of a complete legal title in the caveator, either actually shown or presumed in his favor, and of the settled and long continued practice during a period within which there have been two revisáis of our statute law without any change upon this subject, I must regard it as no longer a debatable matter and hold it as now fully settled that a party may well enforce a complete legal title by caveat against another seeking to obtain a new grant for the same land however inexpedient it may be in many cases in which he has the actual possession also to forego the advantage of his position as defendant and take that of an assailant in exercising his right so to do. The act of 1819 provides that a caveat on the ground 474of better right in the caveator shall express therein the nature of the right on which the plaintiff claims the land. 1 Rev. Code, ch. 86, § 38, p. 330. The present Code contains the same provision. Code of Virginia, ch. 112, § 24, p. 483. The object is to apprise the caveatee of the grounds on which the caveator claims the better right that he may come prepared to controvert it. Harper, &c. v. Baugh, &c. 9 Gratt. 508. And it has been held in Kentucky upon the construction of a similar provision in their Code, that the plaintiff can only rely on the grounds of better right set forth in his caveat. Justices of Allen County v. Allen, 2 A. K. Marsh. 30. The caveators in this case contented themselves with saying in their caveat that they claimed to hold the land by an older and better title. The nature of their right is in no manner expressed except that they claim as devisees of James Kyle deceased and, in part, as trustees of Sarah McDowell. This is plainly no compliance with the requirement of the statute and the caveat is defective upon its face. But if the caveatees desired to take advantage "of this defect, it was their duty to make the objection at a proper stage of the proceeding by a motion either to dismiss the caveat or to require the plaintiffs to file a specification of the alleged better right on which his claim is founded. After the jury have been sworn to find the facts, the objection would come too late and it cannot therefore be the subject of consideration here. These points being disposed of, we come to the questions upon the merits. And the first of these is as to the admissibility of the survey from the surveyor’s book of Augusta county bearing date on the 20th of November 1749, as evidence for the caveators. The caveatees in stating their case had said that they should insist upon the evidence, as it would appear, that no actual survey of the land described in the grant to Wood under whom the caveators claimed had 475ever been made; and to repel such a presumption, the Circuit court permitted the caveators to read the survey to the jury. That the official survey upon a grant has issued under the provisions of our act of May 1779 may be used as presumptive testimony before the jury with a view to identify the calls of the patent subject to be repelled by other evidence of identity either derived from the grant or extrinsic thereto, has I believe never been questioned. Even the original entry may be used for that purpose. Camden v. Haskill, 3 Rand. 462. And so other surveys made by the same surveyor about the same time or recently thereafter and upon which grants have issued from the commonwealth, are proper evidence upon the question as to the locality or boundary of a coterminous or neighboring tract although such grantees may be strangers to the parties to the controversy. Overton's heirs v. Davisson, 1 Gratt. 211. The same reasons would apply with equal force in the case of a grant under the colonial government. In June 1666, and again in October of the same year, the grand assembly declared that the grants of lands within the colony appertained only to the governor and council. 2 Hen. St. 253. In October 1705 (4 Anne) an act was passed providing the mode of obtaining grants for lands upon importation rights as well as for lands generally. It authorized a party not possessing any importation right, to pay to her majesty’s receiver general at the rate of five shillings for every fifty acres he desired to take up and upon certificate of such payment, any sworn surveyor to whom it should be produced was authorized and required to survey the quantity paid for and to make return of such survey into the secretary’s office to the end that a patent might issue thereupon. 3 Hen. St. 305, et. seq. And the form in which the patent was to issue was provided in the act. Ibid. p. 308. By the act of 476174S, § 46, surveys of lands intended to be patented were required to be made by a sworn surveyor duly for that purpose and the breadth of every surVey was required to be at least one-third of p;S length except where the courses were interrupted by rivers, creeks, impassable mountains and swamps or the lines of other lands previously taken up. 5 Hen. St. 424. It appears that James Wood paid to the receiver general the sum of fourteen pounds entitling him to have surveyed twenty-eight hundred acres of land ; and on the 20th of November 1749 he procured the surveyor of Augusta county to survey the same for him : and upon that survey manifestly the patent issued to him in 17-56. For although the patent does not describe the survey by its date as does a grant under our act of 1779, nor indeed refers in terms to any survey, yet as the description of the land imports that a survey was made and as in the due course of obtaining a grant, a survey was necessary, the presumption is that one was made; and as this survey exactly agrees with the grant in the general and locative calls for the land described and in all the courses and distances of its lines of boundary, the conclusion is irresistible that it was the survey on which the grant was founded. That the surveyor’s certificate does not embody the courses and distances of the lines and that they are only appended in the form of a plat of the survey, is a matter merely formal: they are as much a part of the description as if set out in hose verba in the body of the certificate. I think it clear the Circuit court properly permitted the survey to be read in evidence to the jury. Next is the question as to the competency of the witness Kenny. And upon this there can be no doubt. He had purchased a portion of the land embraced by the grant to Wood of parties claiming under that grant and he claimed that the Wood survey should be located 477in the same manner as the caveators claimed in this proceeding. But the land claimed by the caveators was no part of that which he had purchased nor was there any privity between them which could render the judgment in this case evidence for or against him in any other action. True, he admitted that lie felt an interest in the “ establishment” of the Wood survey as claimed by the caveators, but this was an interest in the question, and not in the event of the suit; going to his credibility, but not to his competency, lie was therefore properly held to be a competent witness. Richardson v. Carey, 2 Rand. 87; Masters v. Varner’s ex'ors, 5 Gratt. 168. But although Kenny was clearly a competent witness, I do not perceive on what just ground the court overruled the objection to his answer to the second interrogatory. It gave but the unsworn statements of Code that two certain corners designated were corners of the Wood survey. It is true Code was living on the same land at the time, and he had left the countiy many years before the trial and was at that time no doubt dead. Nor is it denied that upon questions of boundary in Virginia, not only general reputation, but also hearsay evidence as to particular facts may under certain circumstances be properly received as evidence. Thus the declarations of a deceased person as to a particular corner tree or boundary may be given in evidence provided such person had peculiar means of knowing the fact. Harriman v. Brown, 8 Leigh 697. In Kentucky the rule would seem to be different. For although evidence of reputation or common tradition will be admitted as to an ancient boundary, (Smith v. Norvells, 2 Litt. R. 159,) yet evidence of hearsay as to particular facts to prove such boundary will be excluded unless perhaps in cases where the name of a water course or some other object which commenced by parol be necessary to be estáb478listed. Cherry v. Boyd, Litt. Sel. Cas. p. 8. But although as stated in the opinion of the court in Boardman v. Reed, 6 Peters’ R. 328, and approved in Harriman v. Brown, (above cited,) from the perishable character of the land marks in this country, evidence of hearsay as to particular facts may under proper restrictions be received upon a question of ancient boundary, yet such evidence should be carefully watched because from its very character it may in many or most cases be utterly impossible to meet or disprove it. There must always be some peril in departure from the broad general rules of evidence, and it should not be carried farther than required by the absolute necessities of the case. I think the rule is laid down sufficiently broadly in Harriman v. Brown and I am not disposed to extend it in the least beyond the very terms in which it is there expressed. In this case Cock the person whose statements were allowed to be proven, was neither surveyor nor chain carrier at the making of the original survey, nor was he the owner of the tract or of any adjoining tract calling for the same boundaries. He had never been engaged as a processioner of the land nor was his situation such in reference thereto as to render it his duty or interest to make diligent enquiry and obtain accurate information as to the facts. It is said he was living on the land at the time, but in what character is not stated. It is not said that he was there as tenant under the Wood title or as a claimant for himself under any title. For aught that is shown in regard to his occupation, it may have been that of a mere squatter. Certainly nothing is shown from which it is to be inferred that Code had that peculiar means of knowing the facts which would impress upon his unsworn statements the character of evidence in a subsequent controversy between others to whom he was entirely a stranger about the title to the land. 479That his living within the bounds of the survey gave him the opportunity to see trees marked as corners of some survey, found accidentally or otherwise, would surely not be sufficient unless some duty or interest can be traced to him by which he would have been prompted to make diligent enquiry and to obtain accurate information within the meaning of the rule as propounded in Harriman v. Brown. I think the Circuit court should have excluded the answer to the second interrogatory as it properly did those to the thirteenth, fifteenth and sixteenth interrogatories to the same witness. I think the Circuit court erred also in permitting the grants to Frisbie and Jones to go to the jury as evidence upon the question of the identity of the Wood survey. In Overton's heirs vs. Davisson, 1 Graft. 211, it was held that in a controversy concerning boundary or locality of land granted by the commonwealth pursuant to a survey, another survey made by the same surveyor about the same time or recently thereafter, of a coterminous or neighboring tract, upon which also a grant had issued whether to a party to the controversy or to a stranger, is proper evidence upon the question of identity unless plainly irrelevant; and accordingly it was decided that the Circuit court had erred in rejecting the surveys for Thomas and Lewis which the demandants had offered in evidence. Those surveys were dated on the 28th and 29th days of April 1785, respectively. The date of the survey on which the grant to Overton was founded does not appear in the report of the case, but the grant was dated on the 23d of May 1786, and all three surveys were doubtless made nearly about the same time and by the same surveyor. In this case, the survey for Frisbie was made on the 31st of October 1795, nearly forty-six years after the Wood survey, and the survey for Jones was made on the 15th of March 1809 nearly sixty years after the 480Wood survey. The surveys for Frisbie and Jones were ma(ie % the surveyor of Grayson doubtless a different from the surveyor of Augusta in 1749. They cou}¿ no£ therefore come within the rule of Overton v. Davisson. They were clearly res inter alios, and I am aware of no principle on which their admissibility as evidence in this case can be sustained. Any call which they might contain for “ Wood’s line” without further explanation, would be at best the mere declaration of a party having no peculiar means of knowing the fact and whom neither duty nor interest would so far as is shown, have prompted to make the necessary enquiry with a view to obtain accurate information. It would be but his supposition where the line was, having nothing of the only elements which could render it evidence in a controversy between third persons. And it is exactly one of those calls which we are told are often mere matters of conjecture and always liable to be mistaken. Harriman v. Brown, 8 Leigh 697, 705, per Tucker, president. We come next to the instructions given by the court to the jury. In telling the jury that if they should be satisfied particular corners of the B^ood survey had been established by the evidence the lines must be so run as to go to those corners notwithstanding it might involve a variation in both course and distance, the court certainly committed no error. It was only the familiar proposition that natural objects or other proven corners will control course and distance. But I do not perceive clearly what was intended by the addition made to this instruction “that in making said variation there ought to be a fair allowance made in each line and course, if necessary.” The idea would seem to be that if variations of course and distance were found necessary for the purpose indicated, there should be something in the nature of an average established 481by assigning to .each line a just proportion of such variation. This certainly cannot be correct. The course and distance of a line cannot be determined upon any such principle. The true principle is that the course and distance called for in the grant must govern in respect of each line except so far as they may be controlled by calls for natural objects or artificial monuments proven to have been made or adopted for the survey itself, and in fixing those of any one line no reference can legitimately be had to the variation from the patent calls that may be found necessary in determining the course and distance of any other line according to natural or other controlling objects found upon the ground. I think the Circuit court also erred in instructing the jury that if they were satisfied certain corners specified were established by the evidence as corners of the Wood survey and that the surveyor had laid down upon his plat the intermediate courses correctly, it was all that was necessary to be done, because it was in that (the western) portion of the Wood survey, the caveatees’ survey embracing the land they claimed title to was found to lie, and that it was not necessary for them to ascertain whether the courses of the intermediate lines on the other or eastern portion of the Wood survey were correctly designated or otherwise because the title and boundaries of that portion of the survey were not in controversy in that case. It was not sufficient that the jury should have been satisfied that the courses of the intermediate lines around the western part of the survey had been laid down correctly, because the true length of each of those lines was quite as important as the course, and this was to be determined not by making a fanciful allowance in order to preserve a general average of variation but by the patent call for distance unless the same were controlled by a call for some natural object or some artifi482cial monument sufficiently established, in which case the distance should be shortened or lengthened accordingly. And although the land covered by the caveatees’ entry lay in the western part of the Wood survey and within the compass of the intermediate lines running around that portion from what is called the “ burnt corner” to the “ beginning corner” and a line connecting those two corners, yet it by no means follows that the title to the residue of the Wood survey and its boundaries were not also drawn into controversy. A survey upon which a grant has issued is an entire thing, and if its identity be contested, the title to the whole and all its boundaries become more or less matter of dispute. It may very well happen and in many cases must be that the locality of the boundary lines of a survey in a particular part depends upon the calls in an opposite and extreme portion of the survey; and although there may be intermediate calls, yet if there should be any repugnancy between them or any of them, it would be for the jury to say which are to be observed and which to be disregarded upon the principle that those which are more certain and important shall control those which are less so. I think therefore the court unduly restricted by its instruction, the enquiry which the jury had to make ; and that in answer to their enquiry they should have been told, that it was their duty to consider the evidence offered as to all of the corners and lines of the survey: that where a corner was established to their satisfaction, the lines appearing to radiate from such corner should be so drawm as to converge at the same, and course and distance should both be changed so far as necessary for that purpose; and where no corner was found the patent calls for course and distance must be their guide and must supply such lines as were not established by the proofs on the ground ; 483that any conflict that might be found among the different calls was to be reconciled by them upon the principle above indicated and in this manner that they should give location to the entire survey, and determine for themselves whether it embraced the whole or any part of the land within the survey of the caveatees. I proceed to consider briefly the facts of the case as ascertained by the finding of the jury. The caveators claimed under the grant to James Wood dated the 16th of August 1756. To connect themselves with this grant they introduced the will of Col. Wood, dated the 8th of September 1746 and admitted to probate in the County court of Frederick in February 1760, by which he devised all his estate real and personal to his wife Mrs. Mary Wood subject to certain pecuniary charges in favor of children: they then produced a deed from Mrs. Wood by which she conveyed (in 1791) parcel of this land by metes and bounds containing seventeen hundred and eighteen acres, to Robert Wood a sou of Col. James Wood, and also another deed of the same date by which she conveyed the residue of said land by metes and bounds supposed to contain one thousand and eighty-two acres to Mrs. Susannah Wood widow of Dr. John Wood another son of Col. Wood, for life and after her death, to Fanrose and Stanhope Wood two sons of Dr. Wood: Robert Wood in his lifetime sold and conveyed a portion of the land conveyed to him by his mother to one John Kenny, and after his death by deed dated the 16th of April 1833, his widow and heirs conveyed the residue to James Kyle under whose will the caveators claimed as devisees: Stanhope Wood by deed dated the 9th of August 1821, conveyed one moiety of the land conveyed to him and his brother Fanrose Wood by Mrs. Wood in 1791 to the same James Kyle, and Fanrose Wood by deed of the 16th of May 1823 re484leased his interest in the moiety so conveyed. The will of James Kyle was then found by which he devised his estate to the caveators subject to a provision in favor of his wife. The juiy also find that the land in controversy is embraced by the conveyances and wills under which the caveators claimed title, and that after the purchase of the same by James Kyle the taxes on the land had been l-egularly paid. The foregoing is in substance all the facts found by the jury and no other facts appear to have been agreed by the parties. Now at the date of the will of James Wood and until the act of 1787, it is clear that after acquired lands would not pass by a devise in the most general terms of all of a testator’s lands, tenements and estate whatsoever of which he was or at the time of his decease might be possessed. Brunker v. Cook, 11 Mod. R. 121; S. C. on appeal, 1 Bro. P. C. 19; 1 Wms. Saund. 277, n. (e.); 3 Lorn. Dig. 19. And as the grant did not issue, nor was even the survey made until some years after the date of the will, and no interest shown in Wood of any kind either legal or equitable, at that date, the land did not and could not pass by the devise to Mrs. Wood, but upon the death of the testator descended to his oldest son as his heir at law, the Vii'ginia statute of descents not having been enacted till 1785. But although the caveators failed to connect themselves with the grant to Wood through his will, still such a succession might be shown to the right which descended to the heir at law as would be sufficient to maintain this proceeding. Or if the better right cannot be deduced by descent from the patentee, yet the possession of those claiming under the deeds from Mrs. Wood might have been under such circumstances as would itself invest the caveators with such a title or such an interest in the premises as would authorize them to interpose and prevent the 485emanation of a grant to the caveatees. But upon these subjects the finding of the jury is wholly silent. It is not found who was the heir at law of James Wood nor what may have been the course of descent from him nor whether any interest in this land was vested in those or any of them under whom the caveators claim. It is not found how many sons James Wood bad, nor which of them survived him, nor which was the oldest. Nor is any thing found as to the possession of the land; whether the same was ever taken by any one claiming under the Wood grant, and if so, when taken and how long continued. It may be there has been such possession under claim of title as would itself suffice to vest a perfect legal title in the caveators, or with the other circumstances shown in the case would authorize the jury to presume an abandonment of his claim or some family arrangement amounting to a conveyance or release of the right of the heir of James Wood whoever he may have been, to those under whom the caveators now claim. I think the finding of the jury is so defective that the court could not understanding^ and safely undertake upon the facts which are found to adjudicate upon the rights of the parties, and that therefore the appellants are not entitled to have final judgment pronounced here in their favor, but that the cause should be sent back to the Circuit court for a more full and perfect finding of the facts upon which the rights of the parties may essentially depend. See Cropper v. Carlton, 6 Munf. 277; McNeel v. Herold, 11 Graft. 309. I am of opinion to reverse the judgment and remand the cause for a new trial. The other judges concurred in the opinion of Lee, J. 486The judgment of the court is as follows : The court, for reasons stated in a written opinion filed with the record, is of opinion that the said Circuit C0lu,j. ¿y no£ err jn permitting the copy of the survey dated the 20th of November 1749 mentioned in the first bill of exceptions to be read as evidence to the jury nor in admitting as evidence the deposition of William Kenny mentioned in the second bill of exceptions, the court being of opinion that the said William Kenny was not shown to be incompetent as a witness in this cause. But the court is of opinion that the Circuit court did err in permitting the answer to the second interrogatory to the said Kenny upon his examination in chief to be read as evidence this court being of opinion that the statements and declarations of John Cock which were given in that answer were not evidence against the caveatees, and that the same should have been excluded from the jury as well as the answers to the thirteenth, fifteenth and sixteenth interrogatories which were properly excluded by the court. And the court is of opinion that the objection to the said second interrogatory and the answer thereto should have been sustained. And the court is further of opinion that the Circuit court erred in permitting the patents to Frisbie and Jones mentioned in the third bill of exceptions to be read as evidence to the jury, this court being of opinion that the said grants were not evidence against the said caveatees upon the question of the identity of the Wood survey or any other matter in issue between the parties in this cause. And the court is further of opinion that in so much of the instructions given by the court to the jury mentioned in the fourth bill of exceptions as informed them that if they should be satisfied that particular corners of the Wood survey were established by the testimony, the lines must be run so as to go to said corners al487though so to run them might require a variation both in course and distance, there is no error, but that the rest and residue of said instructions was erroneous, this court being of opinion that in lieu thereof and in answer to the question propounded by the jury, the court should have instructed them that it was their duty to consider the evidence offered as to all of the corners and lines of the survey; that if there should appear to be any irreconcilable conflict or repugnancy between the different calls or any of them, they were to hold to and be governed by those which were most certain and important rejecting those if any which were less so: that if any corner or corners should be established to their satisfaction, the lines radiating therefrom were to be so run as to converge at the same upon the ground and that course and distance should both be changed so far as necessary to make them so converge; that where no corner could be found, the patent calls for course and distance must be their guide and must supply such lines as could not be established by the proofs of such corner or of the lines themselves intersecting thereat; and that in this manner they were to give location to the entire survey and to determine for themselves whether it covered the land embraced by the caveatees’ survey or any part thereof. And the court is further of opinion that the finding of the facts by the jury sworn in the cause was imperfect and insufficient and that the court could not understandingly and safely undertake to pronounce final judgment thereupon between the parties; that the same does not ascertain who was the oldest son and heir at law of the said James Wood or whether there was any succession on the part of those under whom the caveators claimed title to the rights of such heir at law, and if any what was the character of such succession and to whom it applied; nor does it find that there was any family arrangement between said *488parties either proven in fact or to be presumed from the long continued claim of those under whom the caveators claimed and the acquiescence of those who may have been entitled by descent from the said James-Wood and the other circumstances of the case; nor does it find whether possession was ever taken and held under the Wood title and if so, when taken, by whom, and how long continued. The court is therefore of opinion that final judgment ought not now to be pronounced upon the finding aforesaid, but that the same ought to be set aside and a new trial had upon the principles herein before declared. Therefore reversed &c. and cause remanded for a new trial upon which if the same questions shall arise as those upon which the opinion of this court has been herein before expressed, the rulings and opinions of the Circuit court shall conform to the views and principles above declared. Which is ordered &c.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481598/	Moncure, J. delivered the opinion of the court: It is certainly true, as a general rule, that a contract 490founded on an act forbidden by a statute under a penalty is void, although it be not expressly declared be so; and that no action lies to enforce it. - It is also true, that if such void contract be by deed, the Par^es fherefc° are not thereby estopped from showing the illegality of the act which makes the contract ygpp numerous authorities cited by the counsel for the defendant in error abundantly sustain the verity of these propositions. The main question arising in this case is, Whether a conveyance of a pretensed title comes under the general rule, and was made void by the operation of the act passed December 6, 1786, entitled “an act against conveying or taking pretensed titles?” 1 Rev. Code 1819, ch. 103, p. 375. That act does not declare the conveyance void, but prohibits it under the penalty of forfeiture, both by the vendor and vendee, of the value of the land conveyed ; one moiety to the commonwealth and the other to him who will sue as well for himself as for the commonwealth; unless the vendor, or those under whom he claims, shall have been in possession of the same, or of the reversion or remainder thereof, one whole year next before; though it provides that any person lawfully possessed of land, or the reversion or remainder thereof, may take, or bargain to take, the pretensed title of any other person, so far, and so far only as it may confirm his former estate. Not long after the passage of the act, and as early as 1802, its construction and effect were considered by this court in the case of Duval v. Bibb, 3 Call 362; and the court were of opinion that the act imposed a penalty, but did not avoid a conveyance. That such was the opinion of the court, does not appear from the case itself; but the fact is so stated by Judge Roane in Tabb v. Baird, Id. 476, 481, decided in the following year. Judge Carrington, in the last case, also declared that the act merely creates a penalty, and does not affect the right. The same opinion has 491been expressed by some of the judges in several subsequent cases; as by Brooke, P. in Allen v. Smith, 1 Leigh 231, 254, and by Tucker, P. in Williams v. Snidow, 4 Id. 16, 17. Ho judge, so far as I have seen, has ever expressed a contrary opinion. The law is so laid down in our text books. 2 Tuck. Com. book 2, р. 215; 2 Lom. Dig. p. 10 ; and has been so uniformly and universally regarded in Virginia. It has been approved by the legislature, as is shown by the fact that no law has ever since been passed to the contrary, although there have been two general revisions of the laws since this opinion has been thus authoritatively promulgated. In the latter of these revisions, that of 1849, the propriety of this opinion was strongly indicated, not only by the omission of the act of 1786, but by the adoption in the Code, ch. 116, § 5, p. 500, of a provision, that “ any interest in or claim to real estate may be disposed of by deed or will.” After all these judicial and legislative recognitions of this opinion, and after it has so long and universally been regarded and followed as a correct exposition of the act of 1786, it is now too late and would be attended with wide spread evil, to i-everse it; and it must therefore be regarded as the settled law of the land: especially as its propriety is now for the first time questioned, after the act itself has been repealed, and one of an opposite nature adopted in the Code. But even if the subject were res integra, we think the opinion would be reasonable. The act of 1786 is substantially a re-enactment of the statute, 32 Hen. 8, с. 9, § 2 and 3. That statute was passed for a different age and country, and never suited the state of things existing here. It is justly characterized by an eminent law writer as a “ severe statute,” even without reference to any effect it might have in avoiding .the contract of the parties. 4 Kent’s Com. 447. And President Pendleton speaks of it in the same way in 492delivering the resolution of the court in Duxal v. Bibb. Its literal import has been much restricted by subsequent decisions, even in England; one of which is the case of Partridge v. Strange, Plowd. R. 77, in which the subject was very fully argued and considered in the Court of common pleas a few years after the statute was passed. It has been held that the statute, does not extend to a conveyance of an equitable title or estate; Lord Eldon in Wood, v. Griffith, 1 Swanst. R. 43, 55 ; Allen v. Smith, 1 Leigh 231; nor to judicial or official sales ; Frizzle v. Veach, 1 Dana’s R. 216, 2 Id. 325; Jarrett v. Tomlinson, 3 Watts & Serg. 114; nor to mortgages or other securities. The state of things which occasioned the passage of the statute has long since ceased even in England, where it has in effect been repealed by 8 and 9 Viet. c. 106, § 6, which authorizes the alienation of rights of entry and other rights of action before inalienable. Reports of revisors, p. 602, § 5, and note t- It was no doubt embodied in our original Code out of abundant caution, in copying such of the old English statutes as were supposed to be applicable to our country. But it remained almost a dead letter upon the statute book until it was repealed, and a wholly different provision adopted in its stead in the present Code. We therefore consider it a reasonable construction of the statute which limits its effect to the penalty thereby expressly denounced, and leaves the conveyance to have such legal effect as it would, have at common law. That legal effect is that a conveyance of land in the adverse possession of another is void as to that other and all persons claiming under him, but valid between the parties. The law is so laid down in 2 Kent’s Com. 448; where it is said that this is the language of the old authorities, even as to a deed founded on champerty or maintenance. See these authorities cited in note (a,) and the eas.es there cited from 9 John. R. 55, and 9 Wend. R. 516. See also the case of Livingston v. 493Proseus, 2 Hill’s (N. Y.) R. 526. The law may have been differently expounded in some of the states; but it will be found that in some of them, as in and Tennessee, a conveyance of land in the adverse occupany of a stranger to the contract, is expressly declared by law to be void. Chamberlin v. Steuart, 7 Dana’s R. 36 ; Wintersides v. Martin, 7 Yerg. R. 384. And it will probably also be found, that whenever a conveyance of land has been held to be void because it was of a pretensed title, the land was, at the time of the conveyance, in the adverse possession of a stranger. The conveyance in this case not being void, it follows, as a necessary consequence, that the bonds given for the money which was the consideration of the conveyance, are not void. If the statute avoids any thing, it is the conveyance which it expressly prohibits, and not the bonds for the purchase money which it does not so prohibit. If the conveyance is valid, a fortiori are the bonds. It would be to the last degree unreasonable and unjust if the purchaser, who is generally at least as guilty as the vendor and often more so, and on whom the statute imposes the same penalty that it does on the vendor, should have and hold the land conveyed without paying any thing for it. This would be not to vindicate the law and effectuate its policy, but to give a premium to the chief offender, and to encourage dishonesty and fraud. It is not pretended in this case that there has been any failure of consideration ; that the purchasers did not get precisely what they contracted for, and in consideration of which, they bound themselves to pay the money; but they place their defense upon the ground that they and their vendors have violated the statute against conveying and taking pretensed titles. The answer is, “ The law you have violated leaves the conveyance to have its legal effect. You have got what you bargained for, and every principle of law as well as honesty requires you to pay what you agreed to pay for it.” *494The view which has been taken of the case renders it unnecessary to decide any other question arising It was maintained by the counsel for the plaintiff in error, that as the statute did not declare ^ie conveyance of the land, much less the bonds for ^ie Purc^ase money, void, the obligors in the bonds .could not defend themselves against their enforcement upon the ground that, ex cequo et bono, they did not owe them; but only upon the ground that it would be against the policy of the law to enforce them, and that in pari delicto potior est conditio defendentis: that if any such policy ever existed, it ceased by the repeal of the statute and the adoption of a new and different provision on the subject in the Code: that the pleas in which the defense was set up in this case, not having been filed until after the Code took effect, then showed no good cause for not enforcing the payment of the bonds: that it was competent for the legislature to authorize such enforcement; and a law to that effect, operating on the remedy and not upon the right, would not interfere with vested rights, nor impair the obligation of a contract, but on the contrary tend to enforce the contract: And that a law to that effect, is to be found in the provision adopted in the Code in lieu of the former statute against conveying or taking pretensed titles. We think there is great strength in this position; but whether it be sustainable or not, is a question which we need not now decide. We are of opinion, for the reasons stated, that the Circuit court erred in not sustaining instead of overruling the demurrer to the pleas numbered 2, 3, 4 and 5 ; and that the judgment must therefore be reversed.with costs, the demurrer sustained and the cause remanded to the Circuit court, to be tried upon the issue joined on the plea of payment. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481599/	Allen, P. It appears from the pleadings and proofs in this cause, that the father of the appellee departed ' this life intestate about fourteen years before the institution of this suit; that he owned at the time of his death a house and lot in the village of Mount Sidney, Augusta county, and an out lot containing about eleven acres, adjoining the village. He left four children, (all infants,) one of whom died under age. The appellee was the eldest child; and when he attained his full age on the 24th of November 1851, he was the owner of an undivided one-third of said property, subject to the dower interest of his mother. The estate was a vested interest, two-thirds a present, and one-third an interest in reversion; the whole was in the occupation and possession of his mother, to whom dower had not been assigned. Immediately after arriving at full age, the appellee offered his interest in the property for sale to sundry individuals. In less than two months after he attained his majority, he made sale of it to the appellant for one hundred and sixty dollars, of which one hundred dollars was to be paid down, and sixty dollars to be paid in nine months, in paper. On the 16th day of January 1852 the appellee conveyed the property to the appellant: on the tenth of March thereafter his mother died with pulmonary consumption, after a confinement to her bed of about a month. The appellee instituted this suit on the 20th of March 1852 to set aside the sale, and to annul the deed, upon two grounds : First, of actual fraud, circumvention and imposition on the part of the appellant; and second, of constructive fraud, supposed to be imputed by the policy of the law to such a bargain, growing out of the mere inadequacy of price. The evidence shows 497that the appellee had not actually resided with his mother for several years before he attained full age; and that for some years he had been doing business for self, uncontrolled by his mother, or any other person. But as he was a frequent visitor at her house, he had better opportunities than the appellant of informing himself of the condition of her health. There is no allegation in the bill, or anything in the proof to show, that the appellee was not fully acquainted with his rights and the extent of his interest in the property when he contracted to sell it. He seems to have been a young man of at least ordinary intelligence, and as he had been doing business on his own account for some years, he must have had some experience in dealing. At the time of the sale he was indebted in a sum not exceeding fifty dollars, but no portion thereof was due to the appellant; and it is not proved that there was any relation of confidence between the parties. The proposition to sell appears to have been made by the appellee to the' appellant, and this after he had been offering his interest in the property for sale to others. Upon the facts in the record the court below held, and as I think correctly, that there was not the least reason for imputing any actual fraud to the appellant in this transaction. In view of the facts that the property was undivided; that dower had not been assigned; that the widow, from the death of her first husband, had been, and at the time of the sale was, in the actual possession of the whole thereof, the court below seems to have considered that the interest sold by the appellee was merely reversionary. So regarding it, the question is presented for the first time in this court for direct adjudication, How far it is incumbent on the party dealing with the seller of such an expectant interest to establish, not only that there was no actual 498fraud, but that he had agreed to pay a fair and adefiua^e consideration ? In reference to expectant heirs, and those sustaining character, the doctrine seems now to be fully established in England that they are entitled, for mere inadequacy of price, to have the contact rescinded upon the terms of refunding the money and interest received. In Edwards v. Burt, 15 Eng. Law & Equ. R. 434, decided in 1852, the Lord Chancellor observes, that “ it is unnecessary to canvass or discuss the principles on this subject, for the rule on it was finally and distinctly established by the house of lords in the case of Lord Aldborough v. Frye; and that case following several of the previous authorities, clearly establishes that the pui’chaser of a reversionary interest, or, at all events, the purchaser of such an interest from an expectant heir, or from a person standing in the situation of an expectant heir, (and the plaintiff Mrs. E. clearly sustained that character,) is bound, if the transaction is impeached within a reasonable time, to satisfy the court that he gave the fair market value for what he purchased.” In that case property had been bequeathed to the mother of Mrs. E. for life, with remainder to Mrs. E. for life. At the time of the sale, the mother was seventy-four years of age, and Mrs. E. was thirty-eight. So situated she clearly sustained, according to this opinion, the character of one standing in the situation of an expectant heir. After this recent and unequivocal recognition of the rule as finally established, it is unnecessary to review the long series of cases upon this subject. They will be found, and the substance of them set out and commented upon in the note to the case of Lord Chesterfield v. Janssen, in White & Tudor’s Selection of Leading Cases in Equity, p. 344, 393. See also Davis v. Duke of Marlborough, 2 Swanst. R. 113, 147, n. a. 499Contracts with persons, sustaining the character of expectant heirs, entered into during the lifetime of the parent or relation standing in loco parentis, for the purchase of interests dependent upon the bounty of such parent or relation, may be obnoxious to the imputation of fraud on the rights and interests of the parent or relation. In Chesterfield v. Janssen, 2 Ves. sen. 125, 156, Lord Hardwicke said, “A fraud may be collected or inferred in the consideration of this court, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons not parties to the fraudulent agreement.” Under this head he enumerates marriage brocage contracts, in which neither of the contracting parties are deceived, but they tend to deceive others; contracts to return a part of the portion of the wife; contracts by some creditors, to secure a larger portion of their debts, before they will unite in a deed of composition with other creditors ; and in the same class he mentions catching bargains with heirs, reversioners and expectants, in the lifetime of the father, &c. • “ The father, ancestor, or relation from whom was the expectation of the estate, is kept ignorant, and is so misled and seduced to leave his estate, not to his heir or family, but to a set of artful persons who have divided the spoil beforehand.” In conformity with this rule, it was held in Boynton v. Hubbard, 7 Mass. R. 112, that a contract made by an heir to convey, on the death of the ancestor living the heir, a certain undivided part of what should come to the heir by descent, devise or distribution, was a fraud upon the ancestor. This deceit, says Parsons, C. J. is relieved against as a public mischief, as being a deceit on the father or other relation, who is thus influenced to leave his fortune to be divided amongst a set of common adventurers, and because it is destructive of all well regulated control or authority 500of persons over their children or others having expecNations from them. The rule, when limited and restricted to the sale of eXpectancies of the above description, may "be sustained by principles applicable alike to all well regulated communities. It is the policy of every well constituted society to protect against fraud, and to suppress vice. Contracts with young heirs for mere expectancies dependent upon the bounty of the relation, tend to encourage both. They are most generally entered into for. the purpose of ministering to some secret, vicious indulgence. A deceit is practiced on the owner and disposer of the property, and the necessity of concealment subjects the expectant heir, generally young and inexperienced, to oppressive sacrifices. In the note to Davis v. Duke of Marlborough, 2 Swanst. R. 113, 147, the annotator states that the principle laid down in some of the cases as that on which the doctrine is in part founded, would seem, to comprehend every person dealing for a reversionary interest ; yet he raises the question, Whether, in order to constitute a title to relief, the reversioner must not combine the character of heir? He remarks, that the reversionary interests, the sale of which has been rescinded from mere inadequacy of price, were expectant on the decease of a parent or other lineal ancestor in every instance, except in a few cases which he enumerates, in all of which the sales have been made while the vendors were in distress, and so the transactions were affected with actual fraud. The doctrine of imposing upon a purchaser from a reversioner who does not sustain the character of an expectant heir, the heavy burden of showing, in all cases and at all times, that he has paid a full and adequate consideration, has not always been acqui501esced in as correct. In some of the earlier cases an opposite rule has been acted on. Thus, in Nicols v. Gould, 2 Ves. sen. 422, Lord Hardwicke refused to set aside the purchase of a reversion at an under value, there being no fraud. He observed, “ there is no proof of any fraud, or imposition on the vendor; nothing but suspicion; and therefore it is too much to set aside the purchase merely on the value.” In Griffith v. Spratley, 1 Cox’s Cas. 383, the subject of sale consisted in part of a reversion. Lord Chief Baron Eyre remarked, “ that the case had been much rested upon this, that the satisfaction received was so inadequate in value that it was impossible to resist the inference of fraud which arises from such inadequacy; or if possible, to make inadequacy itself a distinct principle of relief in equity. But that he knew of no such principle, and the common law knows of none such; that he would never agree that inadequacy of consideration is in itself a principle upon which a party may be relieved from a contract he has wittingly and willingly entered into. But it may be a strong evidence of fraud when the transaction is such as to be inconsistent with the sober manner of a man’s conducting his affairs.” In Wood v. Abrey, 3 Madd. R. 417, the vice chancellor, Sir Jno. Leach, in reply to the argument, that the party was entitled to relief on the ground of the purchase being of a reversion, unless the purchaser could show that the consideration was adequate, observed, “ That the policy of this rule as to reversions may be well doubted, and if the cases were looked into it might be found, that the rule was originally referred only to expectant heirs, and not to reversioners.” ■ In Shelly v. Nash, 3 Madd. R. 232, the same judge questions the principle and the policy of the rule, arguing to show that sellers of reversions were not necessarily in the power of those with whom they contract; and that persons who sell their rever502sions from the pressure of distress, are thrown by the ru^e ir1^0 ^le hands of those who are likely to take advantage of their situation; for no person can secure]y <jea\| with them. Sir Wm. Grant, in Peacock v. Evans, 16 Ves. R. 512, says, that the tendency of this doctrine is to render all bargains with such persons very insecure, if not impracticable. And again, in Gowland v. De Faria, 17 Ves. R. 20, the same judge speaks of the rule requiring such a purchaser to show that a full and adequate consideration was paid as imposing a heavy burden upon him ; but that his"case is an exception to the general rule, that for mere inadequacy of value a contract is not to be set aside. In Jeremy’s Equ. Jurisdiction 398, the writer draws a distinction between contracts with expectant heirs, and contracts with the actual owner in remainder or reversion; and conceiving that contracts of the latter class are not necessarily of a nature to excite suspicion, he classes them with bargains to be set aside on account of fraud, and not merely on the ground of inadequacy of price. The rule, therefore, if distinctly settled in England, as being applicable to contracts with reversioners who do not combine the character of expectant heirs, has only been so established within a recent period, and not without serious doubts as tp, its propriety. The authorities referred to show that it could not be regarded as a settled principle of equity jurisprudence at the date of American independence. The subject was alluded to in the case of McKinney v. Pinckard, 2 Leigh 149. The case was, however, decided on other grounds ; the judge who delivered the opinion of the court, remarking that it was not necessary in that case to decide whether every seller of an expectant interest is to be treated as an expectant heir; 503and therefore he gave no opinion on that point. The question has not been adverted to in any other case, and is therefore one of the first impression in Virginia. There would seem to be no greater reason for restricting the right of the owner of a reversion or vested remainder than of property in his actual possession. A reversion is an interest of value. It has its market price; it may be subjected to the claims of creditors ; and the owner himself may make a valid sale at public auction, according to all the authorities. Yet, according to the doctrine of the recent English cases, every person entitled to such reversion or remainder is treated as an expectant heir, and in the language of Lord Thur-low in Gwynne v. Heaton, 1 Bro. C. C. 1, 9, “ There is a policy in justice, protecting the person who has the expectancy,’and reducing him to the situation of an infant, against the effects of his own conduct.” It becomes, therefore, important to enquire into the principle upon which this doctrine, as applied to reversions and vested remainders, is supposed to rest, and to ascertain how far the policy on which it is founded is applicable to the condition of this country. If the doctrine grows out of a policy hostile to our system of government, and incompatible with the habits of our people, there can be no propriety, when not controlled by binding authority, in our following the more recent English cases. The case of Twistleton v. Griffith, 1 P. Wms. R. 310, contains the first enunciation of a policy which at length has prevailed in the English courts. In that instance a vendor thirty-four years of age, married and the father of a family, was the owner of a remainder in tail after his father’s death, who was old, and died two years after the sale. Lord Yorthington denied relief, yet upon a rehearing before Lord Jeffries, relief was granted ; the chancellor declaring such bargains tended to the destruction of heirs sent to town 504for education, and to the destruction of families. That he saw no inconvenience in the objection, that at this an heir could not sell his reversion. This might force an beir g0 borne and submit to his father, or bite the bridle and endure some hardships; and in the mean time he might grow wiser and be reclaimed. This, which seems to be the leading case, wTas one in which the reversioner occupied the position of heir, his father the owner of the life estate, being regarded as the head of the family. In the next case, Cole v. Gibbons, 3 P. Wms. R. 290, where the policy of the rule was expounded, the plaintiff claimed a reversion by a bequest of his uncle : Lord Talbot said the cases of heirs were not in point; and because no heir was concerned, and he afterwards confirmed the sale, relief was denied. But the chancellor said, that as to the cases of expectant heirs, it was the policy of the nation to prevent a growing mischief to ancient families, that of seducing the heir apparent from a dependence on his ancestor, who would probably have supported him, and by feeding his extravagancies, tempting him in his father’s lifetime, to sell the reversion of the estate which was settled upon him, for as much as it tended to the ruin of families. Throughout the whole series of cases the policy announced in the two foregoing cases, of maintaining a due subordination to the head of the family and preventing the breaking up of family estates, seems to be the main foundation to the doctrine. Any person having a reversionary interest to dispose of, has, irrespective of his age, come to be classed with an expectant heir, and in the language of Lord Thurlow above quoted, reduced to the situation of an infant against the effect of his own conduct. This no doubt has arisen, in a great degree, from the situation of real property in England. Owing to their practice of strict 505settlements and the laws of entail, the parent or ancestor is generally a life tenant, and the expectant heir, a reversioner. Thus combining both characters, courts for reasons of policy have applied principles adopted to protect the young and inexperienced expectant heir to the owners of reversions and remainders. The reasons of policy which have influenced the English courts, have but little application to this country. That due subordination to the head of the family upon which such stress is laid, and which the courts seek to enforce long after the heir has arrived at years of discretion, grows,out of the division of ranks which prevails in that country. The political and social pre-eminence of the governing class must be maintained ; and deference to the head of the family in all the relations of life, is one of the means by which a distinction of classes and gradation in society is kept up and preserved. The same consideration has operated to prevent the breaking up of estates. Titular rank, without wealth or position, soon ceases to command the respect of the community. To keep property in a particular line, restrictions are imposed upon the free alienation of real estate through the operation of their system of primogeniture, entails, and strict settlements; one of the consequences of which is to combine in almost every instance the character of reversioner with expectant heir; and hence the courts have assumed the extraordinary power to continue such reversioner in a state of pupilage long after he has arrived at years of discretion. No such reasons exist for the recognition of such a doctrine here. The authority of the parent whilst the child is disabled to contract for himself, should be enforced by law; for the best security for the morality of the citizen is to be found by preserving unimpaired the family relations. But when legal control ceases the young man is called upon by the habits of our 506people, and his duty to the public, to act for himself in all the most important relations of life, uninfluenced an abject deference to the opinions of others occupyjng no higher position in society than himself. Proper reverence is due at all times to the parent from the child; but when the latter has arrived at years of discretion, that respect becomes a moral obligation, which courts are not called upon to enforce. It will be more readily and cheerfully fulfilled when left to the free will of the child and the silent influence of a healthy public opinion, unaffected by legal restrictions upon his dominion over his property. The policy of' our country favors the free alienation of property, is adverse to large accumulations descending in a particular line, and by abolishing entail and primogeniture, encourages an equal distribution amongst all standing in the same relation to the common ancestor. As one of the consequences of our system, it is rarely the case that the reversioner combines the character of expectant heir. Such combination, we have seen, is the rule in England, which has led the eourts to confound the reversioner with expectant heir, and to apply the same doctrine to both. In Virginia such combination is the exception. It is not often that the child under the control of the parent or ancestor, has a vested interest in his estate. Reversions usually arise after the death of the parent intestate, and most generally grow out of assignment of dower to the widow; and most remainders are created by the will of the parent making provision for his widow for life. A young man on attaining full age, frequently finds himself the actual owner of a vested remainder or reversion expectant on a life estate, and constituting the most valuable property belonging to him. A sale in such eases, in the dawn of manhood, for a moderate consideration, is most generally for the interest of the owner. Judiciously in507vested, or well improved in a country where the field for enterprise is so wide and inviting, it may lay the foundation of a fortune far exceeding the value of the whole fee simple when the life estate terminates. By the English rule the owner of a reversion or vested remainder cannot derive benefit from his property by negotiating a private sale. He must either sell at public auction or hold on to the dry reversion until perhaps the decline of life. Unable to deal with it as with his other property, he is thrown into the hands of the speculator, who will indemnify himself for the hazard he runs in being called upon at some future day to show, by the vague opinion of witnesses, (whose testimony of former value will be insensibly influenced by the actual condition of things when they testify,) that the price was adequate at the time of the purchase. Whatever principle may be adopted in reference to contracts with expectant heirs, secretly selling the chance of a parent’s or some relation’s bounty; it seems to me that the actual adult owner of a vested interest in property, whether in reversion or remainder, should not be reduced to the condition of pupil-age from regard to any supposed rule of public policy, or for the purpose of extending to him any particular protection. Ho such rule of public policy exists in this country; and all attempts to fetter the action of the owner by restricting his power of alienation, operate injuriously to him. They lessen competition, and so depreciate the market price of his property. There is no valid reason for making this an exceptional case. The contracts of such reversioners or remaindermen, like all other contracts, if made by those competent to contract, if they are not gained by ill practice, nor made against the laws, should be kept. This court in several instances has repudiated the doctrine of imputing fraud as a matter of law. Davis 508v. Turner, 4 Gratt. 422; Hutchison v. Kelly, 1 Rob. R. 123; Bank of Alexandria v. Patton, 1 Rob. R. 499. the enquiry in reference to sales by reversioners Qr remain(jermeQ} should be whether in the particular case actual fraud existed. Inadequacy of price, youth, inexperience, indebtedness, distress, are circumstances to be looked to and weighed in determining whether the bargain in the particular instance is not so unconscionable as to demonstrate some gross imposition, circumvention, or undue influence; and so to justify relief on the ground of fraud. In the absence of such proof of actual fraud, I do not think it is incumbent on the purchaser of such an expectant interest to make good the bargain, by showing that a full and adequate consideration was paid. With respect to- the consideration in contracts of this kind; it was observed by Lord Hardwicke, in Nicols v. Gould, 2 Ves. sen. 422, “ That every purchase of this kind must be on the foot of great uncertainty as to the value.” And he asks, “ Will a court of equity, after the contingency has fallen out one way, enter into the consideration of the value ?” Or, as was said by the Chief Baron in Griffith v. Spratley, 1 Cox’s Cas. 383, “ The value of a thing is what it will produce, and it admits of no precise standard. One man may sell his property for less than another would. He may sell under the pressure of circumstances, which may make a smaller price more beneficial than a greater price would have been under different circumstances. If courts of equity were to unravel all these transactions, they would throw every thing into confusion, and set afloat the contracts of mankind.” In the case under consideration, many of the witnesses deposed that in their opinion the price agreed to be paid was adequate. The testimony on both sides shows that about one thousand two hundred dollars 509would have been the full market price for the whole fee simple, if sold upon the usual terms of credit. Deducting one-third, four hundred dollars, the value of the widow’s dower, and eight hundred dollars remain to be divided amongst the three heirs. A present interest of two hundred and sixty-six dollars and sixty-six and two-third cents to each, with a reversion in four hundred dollars, the one-third expectant on the widow’s life estate. This estimate, however, is made upon the market price of the property, supposing the whole fee simple could have been sold. But it was undivided, and from its nature probably not susceptible of equal division. The consent of the dowress would have been necessary to a sale of the whole, out and out. If she refused, and elected (as in all probability she would) to have her dower laid off, the assignment of dower in such a property would necessarily have materially impaired the market price of the residue. Under such circumstances, the value of the interest sold by the appellee is at best conjectural. And therefore we need not be surprised that many of the witnesses examined, looking to the mere money value of the interest sold, thought the price to be adequate. The most that can be said is, that perhaps at the time of the sale the price was a low one; and in the event which has happened, that the purchaser has made a good bargain. The inadequacy is very far from being so gross as to shock the moral sense; and it has uniformly been held, that inadequacy of consideration between persons who stand upon precisely an equal footing is in equity of no account,.unless from its grossness it is of itself evidence of fraud. As to the allegation that the appellant has withheld a portion of the hand payment, it might constitute an objection to the specific execution of the contract at the suit of the appellant, if the same had not been executed; but in this case the contract has been exe510cuted by the conveyance. And besides, the retention a P°riion of the hand payment is satisfactorily accounted for. The proof shows that it was withheld t[-,e consent 0f the appellee until some enquiry COuld be made into the condition of the intestate’s estate. Regarding the case as if the whole interest sold was reversionary, the most favorable aspect for the appellee under which it can be contemplated, he has, in my opinion, failed to make out a claim to relief either upon the law or the facts of the ease. In reality, however, the bulk of the property sold was a present interest in the undivided two-thirds. The reversionary interest embraced only the one-third to which the widow would be entitled for life. The doctrine of the English courts as to sales of reversionary interests did not apply to the most valuable portion of the property. Even if the English rule were recognized as obligatory,' it might still be questionable whether it should be extended to the purchase of such an interest, the larger portion of which was a present interest in the seller. But resting my judgment upon the broader ground before discussed, that the purchaser of such an expectant interest is not bound to show that the price given was adequate, when no fraud is imputed or proved, I do not deem it important to pursue this latter branch of the enquiry any farther. I think the decree was erroneous, and should be reversed, and the bill dismissed. But as the case was one of the first impression, I think it should be dismissed without costs. The other judges concurred in the results of the opinion of Allen, P. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481600/	Samuels, J. A plaintiff who comes into a court of .equity asking the new trial of an issue at law, on the ground of having discovered evidence after the trial, must show that he has not been guilty of laches in making the discovery ;.that the evidence is material to the issue; that it is not merely cumulative, or in addition to other evidence of like import heard at the trial. In the view I take of this part of the case, it is not necessary to consider any question other than the one whether the newly discovered evidence is cumulative, or whether it be such that no evidence of like substance was heard by the jury which tried the case. It was incumbent on the plaintiff to, make out his case in all its material parts; he should have shown what newly discovered evidence he proposed to offer on a new trial; also what evidence had been offered 517at the former trial, to the end that the court might see that the new evidence was not of the like substance and import with any portion of that already heard. The plaintiff in this case in his bill alleges that upon the former trial it wás proved, “ that the said bond of three thousand eight hundred and fifty dollars was an accommodation bond, and that said Harnsbarger knew it to be so, but there was a failure of proof satisfactory to the court or jury, as it would seem from, the result, to show that he gave less for it than 'its par value, which, if proven, would have made the transaction clearly usurious and void.” This is not an allegation that no proof as to the particular fact stated had been offered, but only that the proof was “not satisfactory to the court or jury.” This is not enough to justify the interference of the court; for in every instance in which the jury finds against a party who has offered proof to establish a fact or a series of connected facts to sustain the issue on his part, it is because the evidence is not satisfactory to the jury. The plaintiff seems to have been wholly intent upon proving in this case the usury alleged in defense, and to have omitted the plain duty, required by his case, of showing either that there was no proof at all, or no proof on which a jury might have acted, in regard to the fact he now seeks to prove by the newly discovered evidence. He has utterly failed to meet the exigency of his case, by showing that the evidence is not merely cumulative. In the argument here, the counsel on both sides relied upon the record in the suit at law, of which the evidence at the trial is made a part. I do not perceive that this record has been made part of the record in the chancery cause (now before us) whilst in the Circuit court; and it cannot therefore be properly looked into. If it were otherwise, I would say that proof of precisely the same import as that now proposed to be offered, was heard on the trial at law; and that the 518new evidence is merely cumulative. Thus I am of ojiinion no new trial of the issue on the plea of usury should be directed. The appellee seeks relief upon the further ground that his principal McCue in his lifetime had sold to Harnsbarger, the appellant’s intestate, a tract of land at the price of three thousand dollars, to be applied as a credit to the bond on which the judgment was obtained ; and that credit was not given for this price, but only for two thousand five hundred and twenty dollars, part thereof. Without stopping to comment upon the defects of the ajipellee’s proof of the fact alleged, or on the probable application of a portion of the price to another debt from McCue to Harnsbarger, it is enough to say that this is a defense which, if well founded, might have been made on the trial at law, and that no reason is shown for the failure to make it there. The appellee seeks relief upon the further ground that the contract by which McCue sold to Harnsbarger the tract of land already mentioned, was extortionate and unconscionable, and wrung from the fear and distress of the debtor by his grasping creditor. If this were all true as alleged, it is impossible to perceive how the appellee can found thereon any-claim to relief in this case. At a proper time and between proper parties it might have been a question fit to be investigated whether the contract of sale should be rescinded ; yet this would afford no relief to the appellee whose obligation existed before the sale; he could not claim to have a new and different contract established, and credit for a larger amount placed on the bond. The appellee seeks relief upon the further ground that by the contract for sale of land above mentioned, the sureties Kinney and Sowers were to be discharged from all liability; and further that Harnsbarger should indulge McCue for the balance of the debt as long as" Harnsbarger should live. These grounds for relief are 519not, nor is either of them, established by proof. It is shown that pending the negotiation for the sale Harnsbarger did say that if McCue would sell the land on certain terms, McCue should never be troubled for the balance due on the bond whilst his (Harnsbarger’s) head “was hot;” that Harnsbarger offered to take a new bond for the balance with McCue’s sons as sureties, but that it was not given ; that McCue was anxious to relieve his sureties; that the deed was executed, and two thousand five hundred and twenty dollars credited on the bond. There is no proof whatever as to any thing said or agreed upon when the contract was finally consummated, and in the final execution of the contract the parties were aided by others who were fully competent to put their agreement into an authentic form. In the absence of proof to the contrary, we must hold that the bond still retained by Harnsbarger, with the credit endorsed but in nowise changed beyond placing the credit on it, showed all that was agreed to be done in regard to the bond or the parties to it; that the written evidence of what was done contains every thing upon which the parties had agreed. The several grounds of relief above mentioned were not passed upon by the Circuit court. The decree of that court, it would seem, is founded upon the allegation in the amended bill, that Harnsbarger, on two occasions, without the consent of the surety, did agree to receive from McCue the principal a sum of money as interest on the bond in advance of the time at which the interest was payable; and that the interest on these several occasions was so prepaid and endorsed on the bond. The endorsements are found upon the bond giving credit for money paid for interest which was thereafter to accrue. The evidence of a witness proves that the money above mentioned was paid by him as the agent of McCue; that Harnsbarger did not require such prepayment, and that there was no ex520press contract for indulgence in consideration thereof; that McCue was in pecuniary embarrassment, and that forbearance on the part of Harnsbarger was very desirable ; that he had at times suffered the interest to fall in arrear, at which Harnsbarger was dissatisfied; that the prepayments were voluntary on the part of McCue, as well for the purpose of quieting Harnsbarger as of making amends for defaults in payment, of interest at other times; that these were the motives which prompted McCue to make the payments in advance, but Harnsbarger was not informed of those motives. Although it is not expressly stated in the decree of the Circuit court upon what ground the relief was granted, yet there is enough to show that it was upon the ground last stated. It must be conceded that the doctrine of equitable releases to sureties is too firmly settled in Virginia by the decisions of this court to be again drawn in question ; that an agreement for valuable consideration between a creditor and a principal debtor, whereby the creditor, without the consent of the surety, contracts to forbear for a definite time the collection of his debt, is, in equity, a release of the surety, cannot now be doubted. Yet when the attempt is made to bring a case of different facts within the principle of those decisions, we may well look into the principle itself to see whether its intrinsic justice and conformity with the general principles of equity require that it should be extended to a new class of cases. The decisions heretofore made have all proceeded upon the theory that by the contract for forbearance the surety would be subjected to liability for a longer time than that prescribed in his original obligation;' that his right of substitution to the rights and remedies of the creditor would be impaired in case he paid the debt; and especially because the surety is thereby prevented from resorting to ■& bill quia timet, or a notice to the 521creditor to collect the debt. An agreement between creditor and debtor for forbearance is no bar to an action at law, unless it be a covenant never to sue, which is equivalent to a release to the party with whom the covenant is made. Begarding the subject as the courts of law regard it, a contract for indulgence would not delay a suit for the debt, and the surety might avail himself of his remedies to enforce the collection thereof, and thus obtain exoneration from liability. Ward v. Johnson, 6 Munf. 6; Steptoe's adm'rs v. Harvey's ex'ors, 7 Leigh 501; Dovers v. Doss, 10 Gratt. 252. Courts of equity, however, do interfere in any case in which the creditor and principal debtor, without the assent of the surety, make a contract for a consideration, however small, to delay the collection of the debt for a time, however short, and as it seems, relieve the surety; and this without enquiring whether the obligation of the surety has been varied in any appreciable degree, or whether his remedies, for all practical purposes, have remained unimpaired. This doctrine is founded upon the hypothesis that the principal debtor might enjoin a suit brought in violation of the contract for indulgence, and thus specifically enforce that contract. If there be no surety, a contract for indulgence would be enforced in equity only in a case in which the general principles of the court require that such relief should be given; that is, in case adequate relief may not be had at law: yet, if a surety be bound, then the debtor is held to have the right, in all cases, to enjoin until the delay contracted for has been enjoyed; and the surety is thereby held to be discharged because of the change in his obligation, and the suspension of remedies whereby he might have sought exoneration. See 2 Bob. Prac. (old ed.) 134, and the cases there cited. The case before us differs from all others decided in 522this court, in this, that no promise for indulgence was expressly given or contracted for; that the debtor having been in default in paying the interest theretofore due, made these prepayments as in some sort a compensation for his former remissness; and further in the hope of propitiating the creditor to give future indulgence. From these facts the attempt is made to imply a contract that Harnsbarger should postpone the collection of the debt to the time when the principal of his debt should have earned the interest so paid in advance. I am of opinion that such implication is strained and unjust, and at variance with the facts as shown in evidence. In the argument here the counsel cited many cases decided in different courts on the question whether the isolated fact of prepayment of interest on a debt already due would of itself justify the implication of a contract for indulgence, whereby sureties would be entitled to a release in equity. Some of these cases are in conflict; others of them were decided upon the peculiar laws of the states in which they were made, and could afford no aid in the decision of a case in this state. Not regarding this as a case of that kind, I deem it unnecessary to consider the question. It is the duty of the court to declare the law upon the case as it stands, and not as it would be if some of the facts did not appear therein. It will be the time to decide this much controverted question when it shall arise in some case depending for its decision upon the solution thereof. I am of opinion to reverse the decree, to dissolve the injunction, and dismiss the bill. The other judges concurred in the result. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481601/	Allen, P. The sheriff of Randolph county having sold a tract of land in said county on the 24th of September 1850 for the nonpayment of taxes due 524thereon, the appellee became the purchaser, as appears by the list of sales returned by the sheriff, and received the sheriff his receipt for the price. The sale was ^ie entire tract; and on the 29th of June 1853 ^ie survey°r c°nnty made a report in pursuance ’ of the act found in the Code, ch. 37, § 15, p. 203 ; and the appellee moved the court to have it recorded. The motion was continued ; and at the July term the appellee renewed his motion to have the report admitted to record. Certain persons appeared and resisted the motion; and the court being of opinion there was objection to the recording of the report, entered an order that the same be not recorded. The appellee excepted to the opinion and decision of the court, spreading the facts proved on the record; and afterwards presented his petition to the Circuit court of said county referring to and making the record and proceedings of the County court on the motion to record the surveyor’s report, part of his petition, and-asking for a mandamus to compel the County court to record the report. A rule in the nature of a mandamus nisi was awarded; to which the County court made return, declining to order the surveyor’s report to be recorded, for causes assigned. The first, that the deputy sheriff who sold the land was at the time of the sale interested in the purchase; there being an agreement between him and the purchaser that he should have half of the land purchased, and that the purchase was made in pursuance of such agreement. Second, that the report was made by the surveyor on information derived from said purchasers, and does not set out the owners of adjoining lands. And in the third place, that the land had been redeemed by a payment to the clerk of the county, by whom the return does not show, on the 19th of August 1S52 ; and also by a tender to the appellee on the 31st 525of October 1853, by the agent of parties claiming to be the equitable owners of the land, of the amount paid by the appellee, with interest at the rate 10 per centum per annum, up to the time of the tender, The Circuit court deeming the return insufficient, awarded a peremptory mandamus ; from which decision the justices have appealed to this court. The principal questions presented by the record have been settled by the decision of this court in the case of Delaney v. Goddin, 12 Gratt. 266. That case was elaborately argued and maturely considered; and all the judges were of opinion that the authority of the County court was limited to the enquiry whether the report of the surveyor is in conformity with the provisions of the section under which it is made; and if free from objection in this respect, it becomes the imperative duty of the court to order the report to be recorded. And a majority of the court held, that in passing on .such question the County court is vested with no judicial power, but acts in a capacity purely ministerial; and that an error in refusing to order the report of the surveyor to be recorded, can only be corrected by mandamus. The objections growing out of the alleged complicity of the sheriff with the purchaser, or whether the taxes and damages and cost of survey, where a survey was made, were paid by a party authorized by law to redeem, to the proper party and within the proper time, are matters not appearing on the report or the list of sales, or any thing connected therewith. The proper determination of them would involve enquiries into matters of law and fact, which the County court, acting ministerially and in this ex parte proceeding, cannot, in conformity with the decision in the case referred to, enter into. The survey and report returned by the surveyor describes the land with great particularity, referring to numerous natural ob*526jects, and naming.many individuals through whose ^anc^s or near to whose lands or houses the lines of the in question passed. But he further certifies there are no lands owned known to adjoin the above naméd ^rac^' object of the report and survey is to give such description of the lands sold as will identify them. Specifying the metes ■ and bounds and the names of the owners of -adjoining tracts is the mode pointed out to identify them. The description given does identify the land by the lines as surveyed and the calls for all the other objects set out in the report. The survey is for the benefit of the purchaser, and can affect the rights of no other person. The materiality of a survey is apparent when made under the 14th section of the aet, which provides for a survey where but part of a tract is sold, and directs how it shall be made; but where the whole tract is sold, the only effect of the survey is to furnish the purchaser with such a description as may identify the land. The surveyor must report such facts as may serve to describe and identify it. He acts officially, and cannot report the names of the owners of adjoining tracts, if they are not known to him. Whether other tracts do adjoin or not, might involve enquiries as to the boundaries of those tracts and an attempt to try questions without having the parties before the court, and without the means of arriving at a correct conclusion. I think the report comes up to the requisitions of the statute, and gives such a description of the land sold as will identify the same, and it was the duty of the court to order it to be recorded. I think the judgment should be affirmed with thirty dollars damages and costs. The other judges concurred in the opinion of Allen, P. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481603/	Samuels, J. It is unnecessary to the proper decision of this case to determine whether Abraham Liston could make a submission to arbitration valid in law to bind his own wife and other femes covert in their rights to real property; or whether the submission before us can be held to embrace those rights; or whether an intelligible construction can be placed upon the submission; or whether the award made is within its terms. If all these questions should be decided in favor of the appellees, still the decree directing the specific performance of the award must be reversed because of misbehavior in the arbitrators. The record shows that in the absence of the appellants, and without their knowledge, the arbitrators received from the appellees, or some of them, or from some one on their behalf, a written paper to be used as evidence upon the questions involved in the submission. What the paper contained, or whether its contents were sworn to, the record does not show. One of the arbitrators proves that, having previously made up his opinion as to what the award should be, the contents of the paper had the effect of confirming him in that opinion. It has always been an object of great concern with the courts to keep the administration of justice free not only from partiality, but also from any suspicion thereof. It is due to all parties, whether asserting or defending their rights in courts of record, or before domestic tribunals of their own choice, that they should hear and know every thing alleged or proved in opposition to the rights claimed. If, however, evidence on behalf of one party may be secretly heard, his adversary is deprived of the right to explain or disprove what is alleged'to his prejudice. 539Many cases may lie found affirming the position laid down : there is no conflict of opinion in regard to the general principle itself, although there' may have been some in applying it to the facts of particular cases. The case of Graham's adm'r v. Pence, 6 Rand. 529, is sustained as well by the cases cited by Judge Can-, who delivered the opinion, as by many others. It may therefore be safely declared that an award cannot be sustained if made in favor of a party who has secretly offered evidence which has been received by the arbitrators whilst acting in their capacity as such. Nor will the case be withdrawn from the operation of the general rule by proof that the award would have been the same without such proof. The law in its jealousy will not permit an enquiry into the effect of the evidence so received; it tends to partiality and corruption, and nothing less than the complete vacation of the award will satisfy the law. There is no particular reason to impute improper motives to the arbitrators who made the award in question; they probably received the evidence in ignorance of the proprieties of their position. It is said in behalf of the appellees, that the paper alleged to have been executed by the appellants after the award was made, agreeing to keep the land and pay the sum of seven hundred dollars, is in itself such a contract as the court should cause to be enforced. I am of a different opinion, however. The arbitrators had decided that the appellants should either give up the land and receive seven hundred dollars from the appellees, or retain the land and pay seven hundred dollars to the appellees, and that the appellants should make their election in a limited time. The paper referred to was merely to show that, of the two alternatives offered by the award, the appellants elected to keep the land and pay the money; but it was in 540nowise intended as a new and original contract of sale. I am of opinion the decree should be reversed and the bill dismissed. The other judges concurred in the opinion of Samuels, J. Decree reversed and bill dismissed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481604/	Lee, J. I concur with the counsel in thinking that the most important and material question in this cause arises upon the demurrer to the declaration: and that is whether taking the declaration in its broadest sense and strongest import, and disregarding all matters of form and all technical defects and omissions which might be remedied or supplied, such a case is alleged as entitles the plaintiff in the action to 546recover against the defendant for the injury alleged to have been sustained. The declaration (as amended) consists of three counts. The first alleges that the defendant being a body corporate created by act of assembly, was clothed with certain rights and privileges and charged with certain duties pertaining to the navigation of the Kanawha river among which was the duty of keeping the river within the line of their improvements free from all obstructions to the navigation; -that this duty it had failed to perform; that it had suffered a large snag to be and remain in the river at a certain point specified as “ in the neighborhood of Seven mile rock about seven miles above the mouth of the river in Mason county and within the line of their improvement,” whereby the navigation of the river was obstructed ; and that by reason thereof the plaintiff in navigating the river with a boat loaded with salt struck and stove his boat upon the snag whereby both boat and cargo were wholly lost. The second count alleges that one of the duties of the company was to place buoys in the Kanawha river to indicate the entrance of the sluices, wing dams and jetties, and generally the courses of the channels, and also to cause beacons to be placed on the bars rocks and other obstructions to the navigation which though not within the channels or sluices yet from their positions or other causes were likely to endanger the safety of boats and vessels navigating the river but that the company in disregard of this duty had failed to place a beacon at or upon a large snag in the river about seven miles from the mouth at or near the Seven mile rock, which snag from its position in the river did endanger the safety of vessels and boats navigating the same and that by reason of such neglect, the plaintiff had stove a boat with which he was navigating the river upon the snag and both it 547and a large cargo of salt with which it was freighted were wholly lost. The third count alleges that it was the duty of the company to remove all depositions and obstructions in the channels and passages of the river which might impede the navigation, but that in disregard of this duty it had unlawfully permitted a large snag to be and remain in the river at the same point designated in the two previous counts being a portion of the line of the company’s improvement; by reason of which the navigation was greatly obstructed, so that a boat with which the plaintiff was navigating the river ran against and was stove upon the snag, and both it and its cargo were wholly lost. The act of assembly referred to in each of the counts of the declaration is the act entitled “ an act incorporating the stockholders of the James river and Kanawha company,” passed March 16, 1832. After a preamble reciting that the measures theretofore adopted by the general assembly for the purpose of connecting the tide water of James river with the navigable waters of the Ohio had been found inadequate to effect that object by such a line of transportation as the public interest required, the act provided for the op'ening of books for subscriptions to the capital stock of a new company in which the state was to take ten thousand shares; and when three-fifths of the stock should have been subscribed by persons other than the commonwealth and the required sum paid on each share, the company was to be incorporated by the name of “ The James River and Kanawha Company,” with the usual rights and incidents, and declared to be to every intent and purpose in law the successors of the then James river company. By the twentieth section, the whole interest of the commonwealth in the works and property of the James river company was transferred to the 548new company to be held for the use of the stockholders ; and the new company was declared to be thenceforward (after the period at which the transfer was to take effect) entitled to all the tolls rents and other emoluments, rights privileges and immunities enjoyed by the James river company subject however to the incumbrances limitations and restrictions in the act declared. By the twenty-second section the new company was charged with the duty of connecting the tide water of James river with the navigable water of the Ohio by one of three plans of improvement at their election, that is to say, either by a continuation of the lower James river canal to some point not lower than Lynchburg, a rail road from its western terminus to some convenient point on the Kanawha below the falls and an improvement of that river thence to the Ohio so as to make it suitable for steamboat navigation; or secondly by such a combination of the canal and a rail road from its western terminus to the Ohio; or thirdly by a continued rail road from Kichmond to the Ohio. By the twenty-sixth section it was provided that if the western termination of the rail road should be at any point on the Kanawha above its mouth, then the navigation of that river thence to the Ohio should be improved by locks and dams or otherwise so as at all seasons of the year to afford a safe and convenient navigation for steam boats of not less than one hundred tons burden. By the twenty-seventh section the company was required to commence its works within two years after the passing of the act and to finish them within twelve years after the first general meeting of the stockholders, on pain of forfeiting their charter and property which in that event were declared to be vested in the then existing James river company for the benefit of the commonwealth. By the act of the 5496th March 1833, the time within which the works were to be commenced was extended to the end of two years after the passage of that act and twelve years allowed for the completion of the works after the first general meeting of the stockholders. By the act of March 1, 1847, this time was extended to the 25th of May 1S59, and is therefore not yet expired. By the forty-sixth section of the act of 1832, the company was authorized upon the completion of the improvements upon the Kanawha river as therein directed, to demand and receive on articles transported by water on their line of improvement, in lieu of the tolls then authorized by law, such as the company might assess not exceeding certain rates per ton per mile specified in the act; and until the river should be rendered navigable in the manner prescribed from the terminus of the rail road to the mouth of the river, it was authorized to demand and receive such tolls as it might assess not exceeding those then allowed by law. Turning now to the provisions of the several acts concerning the James river company, it will be seen at once that a new and very different improvement of the Kanawha river was contemplated by the act of 1832 from that projected by the former. By the second section of the act entitled “ an act to amend the act entitled 4 an act for clearing and improving the navigation of James river,’ and for uniting the eastern and western waters by the James and Kanawha rivers,” passed February 17, 1820, the company was required to proceed to render the Kanawha from the falls to the Ohio navigable at all seasons for boats of three feet draught, according to the plan of the principal engineer in his report to the Board of public works made in January 1820. This improvement was plainly not intended by the legislature to he a complete and perfect improvement of the river, but to be in its charac550ter partial limited and sporadic. The plan of the engineer referred to proposed only to improve the navigation at different points specified along the river by opening sluices through certain shoals, deepening the channel in particular places, removing rocks at certain points and the like; and the particular places at which work is to be done are all plainly set down and an estimate made of the probable cost of the work necessary to be done at each. At all other places the natural state of the river is assumed to be sufficient to afford an ordinary navigation of three feet in depth. Under the provisions of that act, a continuous and connected improvement was not contemplated. The intended improvement was to consist of a succession of works at the different points named, the river elsewhere and between the different works of the company, being assumed to be an open navigable highway in regard to which no duty is imposed by the act upon that company. The act of February 24,1823, to make more effectual provision for carrying the former into effect, refers to the mode of improvement as contemplated by that act, and the plan of the engineer is thus made as much a part of both acts as if embodied in them at length, nor until the act of 1832 creating the James river and Kanawha company, was any change made or any different plan adopted for the improvement of the Kanawha. If this view of the nature of the improvement designed by the acts concerning the James river company needs any confirmation, it will be found in the amounts authorized to be borrowed for the purpose of completing the works with which it was charged, which would seem to be comparatively inconsiderable and such as would only suffice for works of a partial and limited character; and especially the very moderate sum which the improvements on the Kanawha were to cost according to the engineer’s estimates and 551which must have been in the contemplation of the legislature at the time; and in the character of the several tariffs prescribed for the tolls which were different times authorized to be collected by the former company. All of these as well that of the act of 1820, that in favor of the salt interest of the act of February 28, 1821, that of the act of March 1, 1828, and that of the act of February 27, 1829, unlike that prescribed by the act of 1832, were specific tolls fixed at an arbitrary rate having no refei’ence to the distance navigated; whilst the tolls authorized by the act of 1832 for the new improvement which was to afford a constant navigation for steam boats of an hundred tons burden, are all graduated by a scale of exact distance navigated, and not to exceed a given rate per ton per mile. By the terms of the act of 1832, the tolls authorized to be taken for the new improvement of the Kanawha river, were only to be collected when the improvements on the same should have been fully completed as by that act authorized and directed; and in the absence of any express provision in the act upon the subject, it would seem clear that the company could not be held liable for an injury to an individual occasioned by any neglect or breach of duty on its part in respect of the new and more perfect improvement of the river projected by the act until it had entitled itself to demand the tolls thereby provided upon the completion of its works, or had exercised the right to demand such tolls upon the assumption that the works had been completed. The right to demand the tolls and the liability for neglect of the duty upon the performance of which the tolls were authorized, are reciprocal and correlative: the tolls are the remuneration to the company for its expenditures on its works and the consideration and basis for any legal liability that may be cast upon it for any 552omission or neglect of duty in respect of the new works with which it was charged. Now there is no express provision in the act in regard to liability for neglect of duty in reference to the improved navigation of the Kanawha river. The subject of such liability is left by the act to the general principles applicable to the case and to the relations in which the company stands to the public and individuals. That the company may upon proper allegations be held liable for an injury to an individual navigating the Kanawha occasioned by neglect of its duty in reference to the new improvement with which it was charged after it shall have exercised the right to demand the tolls provided by the act (which is in effect an affirmation upon its part that it has completed its works according to the requirements of the act) I entertain no doubt. It is not a public corporation representing the public and administering public funds for the benefit of the public, but it is a joint stock company which has undertaken the construction of a work useful to the public certainly but intended for the private emolument of the stockholders in dividends of the profits. There can be no good reason why such a corporation should be exempt from liability for injuries occasioned by its neglect. It is a maxim of the common law that one specially injured by a breach of duty in another shall have his remedy by an action; and the case of a corporation should be no exception. It undertakes its corporate duties by its own consent and receives can equivalent for their performance. And it may be considered now well settled that such a corporation will be liable for damages specially occasioned to an individual by a breach or neglect of its corporate duties. Mayor of Lynn v. Turner, Cowp. R. 86; Yarborough v. Bank of England, 16 East’s R. 6; Townsend v. Susquehanna Turnpike Co. 6 John. R. 90; Riddle v. Proprietors of Locks and Canals on Merrimack River, 5537 Mass. R. 169 ; Chesnut Hill T. Co. v. Rutter, 4 Serg. & Rawle 6. That the state owned a large interest in the stock of the company will not vary the case. The act of incorporation declares that it may sue and be sued, may plead and be impleaded; and a mere interest taken by the commonwealth in the stock would not be sufficient to bring an action against the company for neglect of its corporate duty within the influence of the decision in the case of Sayre v. The Northwestern Turnpike Road, 10 Leigh 454, and the class of cases upon the authority of which that case is supposed to have been decided and which are referred to by Judge Allen in delivering his opinion in the case of Dunnington v. The Northwestern Turnpike Road, 6 Gratt. 160, 171. But in order to charge the company with the consequences of a neglect of duty in reference to the new and more perfect improvement projected by the act of 1832, a proper case showing that it was so responsible, and setting out the nature of the duty and the character of the supposed liability must be distinctly alleged. If it be not averred that the company had taken possession of the river under its charter and had completed its new works according to the requirements of the act, or had demanded and collected tolls according to the improved tariff authorized by its charter, enough at least should be averred to show that in point of time place and circumstances the company was chargeable with the consequences of neglect of duty in reference to the new improvement. Row of the three counts in the declaration the first is the only one which can be supposed to have any reference to the new duties imposed upon the company for the purpose of effecting the more perfect improvement of the navigation of the Kanawha designed by the act of 1832. The second and third counts although they speak of duties with which the company was 554charged by the act of 1832 in reference to the navigation of the Kanawha, yet are plainly founded upon the ninth and tenth sections of the act of the 27th of February 1829 prescribing certain duties to be performed by the James river company in reference to the navigation of the Kanawha contemplated by that and previous acts concerning that company, and which duties it is assumed devolved upon the James river and Kanawha company by the provisions of the act of 1S32 in anticipation of the more perfect improvement required by that act. But this first count only alleges in general terms the duty to remove obstructions within the line of its improvement and the failure to perform that duty, specifying the obstruction complained of. It does not specify whether the supposed duty related to the new improvement or to the previous navigation of the river confided to its charge. It does not aver that the company had elected the plan which makes the Kanawha river a part of its line of improvement nor that it had completed its works and taken possession of the entire water line by exercising or claiming to exercise the right to demand the improved tolls according to the act of 1832; it does not charge a failure to render the river navigable for steam boats of the specified tonnage, nor does it contain any other sufficient averments to charge the company as for a breach of corporate duty in its failure to provide the new and improved navigation required by the provisions of that act. I think it clear that the liability sought to be asserted in this case cannot be maintained upon the ground of any neglect or breach of duty on the part of the company in failing to provide the more perfect navigation required by the twenty-second and twenty-sixth sections of the act of 1832; and if it can be successfully asserted, it must be on the basis of its succession to the rights of property, privileges and 555franchises of the James river company and by consequence to the burdens and duties devolved upon that company by the laws then in force. Counsel have argued it is true that no liability to an action at the suit of a party injured even by its neglect of duty devolved upon this company in virtue of its succession to the former company’s rights and duties, because it succeeded as well to the privileges and immunities enjoyed by that company as to its rights and duties, and that one of those immunities was exemption from liability to be sued by an individual for neglect of duty, because as it is said, the James river company was but the agent of the commonwealth, administering public funds and holding only in trust for the commonwealth, and thus as being in effect the commonwealth itself for the purposes of the acts, was not liable to any such action. But I cannot assent to this reasoning. Even if it be conceded that the James river conqiany was not liable to an action upon the principle of the decision in Sayre v. The Northwestern Turnpike, it by no means follows that the present company would be entitled to the same exemption. The reason of that case cannot apply to this. The exemption from liability to be sued is a privilege peculiar and personal (so to speak) to the commonwealth and does not extend to her assignee any more than would her privilege not to be sued for land claimed by her extend to her grantee of the land. The transfer of the “privileges and immunities” of the James river company was not intended to place the James river and Kanawha company above the law and to leave individuals who might be specially injured by the neglect of its corporate duties without remedy or redress. It would be grievously unjust that such a corporation should be clothed with a privilege of this character only properly pertaining to the sovereign authority of the state, and there is no sufficient reason for supposing 556that the legislature ever intended to confer it upon this company. I think therefore whether the James river company would have been liable or not for neglect of its duties in reference to the “convenient navigation” of the Kanawha river contemplated by the act of 1820 and the subsequent acts concerning that company (a question upon which it is unnecessary to express any opinion) that the present company having taken upon itself the performance of those duties in consideration of the privileges conferred upon it and among the rest of the right to demand the tolls allowed to the Janies river company until the new improvement should be completed, will be liable for any breach or neglect of duty in reference to the navigation of the Kanawha which it was bound to keep up until the new works should be completed, to any one sustaining special damage thereby in the same manner as it will be liable for neglect of its corporate duty in reference to the more perfect improvement contemplated by the act of 1832 after it shall have placed itself in a condition to be subject to such responsibility. But to subject it to such liability the neglect of duty must be plainly and sufficiently alleged. It must be charged that the injury complained of was occasioned b,y some act or omission of the company for the consequences of which it was legally responsible. The enquiry then occurs what were the duties of the James river company required to be performed with a view to render the Kanawha river “ conveniently navigable” as contemplated in the preamble to the act of 1820. Now, as has been already stated, it is clear it was not made the duty of that company to provide a perfect and complete navigation of the Kanawha throughout its entire length from the falls to the Ohio. Before the act of 1S20 was passed it appears that the 557Board of public works had caused a survey to be made by the principal engineer of the James and Kanawha rivers and of the intermediate country with a view to the commercial communication which it was desired to establish between the eastern and western waters of the state. In January 1820 a detailed report was made by the engineer of the results of his exploration and examination, accompanied by his recommendation as to the plan and mode of improvement by which the desired communication might be effected, and his estimates as to the cost of the works and the amount of expenditure necessarily involved. Amongst the rest is the plan proposed by him for the improvement of the Kanawha river. Every mile from the falls to the mouth is examined, the state of the navigation, as found, reported and the mode and method of improving it specified particularly. The different points at which work is required and the kind of work at each point, are stated with great precision and particularity. Upon the intermediate portions of the river where no work is required to be done it assumed that in its natural state the river afforded a sufficient navigation for ordinary purposes, and estimates are furnished of the cost of the works that would in the opinion of the engineer suffice to secure a navigation of three feet at all times. The total amount of these estimates is twenty-nine thousand six hundred and fifty dollars. This report was adopted by the legislature as the basis of its legislation on the subject; and by the act of 1820, the James river company was directed to make its improvement of the Kanawha upon the plan thereby proposed. It is clear therefore that a limited and partial improvement only was contemplated by the legislature and not an entire connected improvement throughout the whole course of the river below the falls. Unlike the act of 1832 which required a navigation for steam boats of a 558certain tonnage to be provided by locks and dams or whatever other means might be found necessary, throughout the entire length of the river below the western terminus of the rail road (if the combined method of a rail road and a river navigation should be adopted) the act of 1820 only required the improvement of particular places in the river upon a prescribed plan. Thus it only contemplated such an improvement of the navigation as the execution of the detached works prescribed by the engineer’s report would afford. It was assumed that this mode of improvement would insure an ordinary navigation of three feet. But if this expectation should not be realized the company could not be held responsible. It was responsible that the required works should be constructed in conformity to the plan of the engineer, and that they should be kept in proper repair. For although there is no express provision in the act of 1S32 requiring the James river and Kanawha company to keep the works in repair, I think it is their duty so to do. They are entitled to collect tolls according to the rates of former laws until the improvement required by the act of 1832 shall be completed; and it is impossible to suppose that the legislature intended they might abandon all the old works suffer them to become entirely useless for want of repairs, and yet permit them to demand the tolls allowed for the improvement which in a proper state of repair they afforded to the navigation. I consider that to keep the works in a sufficient state of repair so as to afford such aid to the navigation as was intended by the act of 1820, is the condition of the right to demand the tolls, and that such demand amounts to an affirmation on the part of the company that they were in such a state of repair. I do not mean by this that a party could successfully resist the payment of tolls by alleging that the works were not kept in proper 559repair. What I mean is that the company would be liable for special inj ury occasioned to an individual by reason of its works not being kept in the condition required by law. Beyond this however, its liabilities cannot be carried. If the works were executed upon the prescribed plan, and kept in due repair, the company cannot be held liable for losses not attributable to any default or neglect on its part, but occasioned by defects or insufficiencies in the plan of improvement or which occurred outside of its works upon those portions of the river which were reported by the engineer as not requiring any improvement and which were therefore not placed by the act in charge of the company. To charge the company then with the consequences of an injury sustained by a party in navigating the river it must be distinctly averred that it was occasioned by some unlawful act of the company or its omission or neglect to do or provide something which the report of the engineer or the law required. It should at least be averred that the place at which the alleged injury occurred was one of those at which the company was required to do the necessary work for the improvement of the navigation and that the injury was occasioned by its default. How in this respect the first count is plainly defective. The allegation is that it was the duty of the company to keep the river free from obstructions within the line of its improvement which duty it failed to perform. This is not a sufficient allegation that the obstruction occurred in any part of the company’s works or at any place which the company was bound to keep clear of obstructions. The James river company had no line of improvement in the sense intended in the declaration. The phrase appears to be borrowed from the act of 1832 which treats the entire river below the western terminus of the rail road as 560occupied by the line of the company’s improvement, and graduates the tolls according to the distance navigated ; but it can have no application to the particular improvement in detached parcels and in different places required by the acts concerning the James river company. It is too vague and indefinite at best to fix the place intended within the limits of the company’s works or to designate it as one of those at which the company was charged with the duty of improving the natural navigation of the river. But this count not only fails to show that the place in question was one of those which the company was charged with the duty of improving, but in point of fact it shows very distinctly that it was not. The place of the injury is sufficiently identified as being “in the neighborhood of the Seven mile rock about seven miles above the mouth of the river.” Now if we turn to the engineer’s report we find that for fifteen miles above the mouth of the river he pronounces the navigation good in the natural state of the river and requiring no improvement of any kind whatever. TIis plan of improvement requires nothing whatever to be done below the seventy-ninth mile (computing from the Great falls) which terminates fifteen miles above the mouth of the river; and thus the place at which the injury is alleged to have been sustained was one at which no duty devolved upon the company in reference to the navigation of the river and for the sufficiency of which it was no more responsible than any other person whatever. I think it clear therefore that the first count wholly fails to make out any case to charge the company with the consequences of the injury and loss alleged to have been sustained. The third count is obnoxious to very much the same objection as the first. It does not sufficiently allege that the place at which the injury of which it 561complains occurred was one of those at which the company was required to make any improvement hy the report of the engineer or the acts which adopted it. The breach of duty of which it complains was in the failure of the company to remove depositions and obstructions in the passages sluices and channels of the river, which it is alleged it was its duty to remove in order that such passages sluices and channels might afford a free and unimpeded navigation. The count is evidently framed under the tenth section of the act of February 27, 1829, upon an entire misconception as I think of the true intent and meaning of that section. It proceeds upon the assumption that that section makes it the duty of the company to remove depositions and other obstructions in all the passages sluices and channels of the river, whether artificial or natural. Such is not the meaning of the section. It did not intend to require any new improvement or any work to be done at other places than those specified in the engineer’s report. It was not the purpose of the act to extend the company’s charge and responsibilities over those portions of the river which had been reported as affording a sufficiently good navigation in its then condition. The true object was to cause the works that had been constructed upon the engineer’s plan, to be repaired and reinstated in the condition in which it was contemplated they should be kept by the engineer’s report. The passages, sluices and channels spoken of were the artificial passages sluices and channels produced by the works of the company constructed upon the engineer’s plan and which it would seem had become obstructed by depositions of sand gravel and timber impeding the navigation through them, and not the natural channels of the river at other places. This is apparent from the terms of the section which require the obstructions to be removed so as to restore to the channels sluices and passages 562referred to, the width and depth of water produced in them by the works then recently constructed upon the river; and it is confirmed by the limited amount of the expenditure authorized for the purpose which was not to exceed one thousand dollars. I think therefore this third count equally fails to make a case of such neglect of duty on the part of the company as would charge it for the consequences of the injury complained of. The remaining count is the second which alleges the neglect of duty on the part of the company to consist in the failure to place a beacon or beacons at or upon the snag in the river which occasioned the injury. This count is evidently framed upon the ninth section of the act of February 27,1829, but as I think, under a misconception of the true meaning of that section. The bars rocks and other obstructions upon which it was made the duty of the James river company to place beacons were such as were of a fixed and permanent character then in the river or at the banks or in such other positions that they might endanger the navigation. They were such as formed part of the natural features of the river. It was not designed to require beacons to be placed upon a casual, temporary, movable impediment such as that specified in the declaration. A tree which having been adrift, had accidentally become stationary in the river forming whilst it remained in that position “ a snag” could not have been within the meaning of the legislature. It might be in a given place on one day and in a different on the next; and with the first rise of the water if not sooner, it would probably disappear entirely. Such an obstruction as this would not admit of the erection of a beacon upon it and is to be guarded against and avoided by the care and vigilance of those engaged in the navigation. This count therefore I think without any just foundation to sustain it. 563The views which I have thus expressed all go to the foundation of the action, and thus it becomes unnecessary to express an opinion upon any other of the questions raised and discussed by the counsel. The only remaining question is as to the disposition of the case if the demurrers to the declaration be sustained. If the defects were merely in the statement of the case and might be remedied by a proper amendment, then according to the settled practice of this court, the cause should be sent back to the Circuit court to give the party the opportunity to make such amendment. But such is not their character. They are defects in the very substance of the case itself, and such as cannot be helped by any amendment consistent with the allegations and proofs in the record before us. These all show that the party has and can have no cause of action against this company for the loss which he has sustained. I think therefore no useful purpose can be answered by sending the cause back and that it should be finally determined here. I am of opinion to reverse the judgment and render final judgment for the plaintiff in error. The other judges concurred in the opinion of Lee, J. Judgment reversed, the demurrer sustained, and final judgment thereon for the defendants.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481608/	Moncure, J. The first question arising in this case is, Did the Circuit court err in instructing the jury that a bargainee, under a deed from a bargainor who was out of possession, and against whom adverse possession was held, may, under the new Code, maintain ejectment in his own name? It is very clear that before the Code took effect, a bargainee of a party not in possession, actual or constructive, at the time of the execution of the deed, could not maintain ejectment in his own name, at least against the party at that time in the adverse possession of the land. His disability to maintain the action proceeded, not from the act against conveying or taking pretensed titles, 1 Rev. Code 375, but from the common law, whose maxim it was that nothing in action or entry could be granted over. A feoffment was void without livery of seisin ; and without possession there could be no livery of seisin. 4 Kent Com. 448; 2 Lorn. Dig. 8, 9. The statute of uses, 1 Rev. Code 370, § 29, did not remove the disability, because it only operated on a possession existing in the bargainor at the time of the execution of the deed, and transferred that possession to the use created or declared in favor of the bargainee. If no possession existed in the bargainor, of course none could be transferred to the bargainee. But the Code has changed the common law rule by 600declaring that “ any interest in or claim to real estate may be disposed of by deed or will.” Ch. 116, § 5, 500. That such a change was contemplated by the revjsorSj js manifest from their report, p. 602, § 5, and note.‡ They recommended the adoption of a section similar to 8 and 9 Viet. ch. 106, § 6; in which “aright of entry” is expressly named. Instead of adopting that section, which is complicated in its details, the legislature enacted the provision before quoted. Their object was to use brief and plain terms, which would be at least as extensive in their meaning as the terms used in the statute of Victoria. They could not have used more comprehensive terms than they did. A right of entry is certainly “ an interest in or claim to real estate,” and may therefore “ be disposed of by deed or will.” If it may be so disposed of, the grantee or devisee may bring the action in his own name. The right of action is incident to the right of entry, and comes along with it to the grantee or devisee : otherwise it would exist nowhere; for it cannot remain in the grantor or devisor, who has disposed of the right of entry, and has no longer any interest in or claim to the land which can give him any right of action. There can be no right without a remedy, nor a remedy without a right. These views are strongly sustained by the case of Taylor's devisees v. Rightmire, 8 Leigh 468, and the opinions of Carr, J. and Tucker, P. therein. It was held in that case that a writ of right may be maintained by a devisee upon the seisin of his testator, under the statute of wills, 1 Eev. Code, ch. 104, § 1, p. 375. The terms of that statute are certainly not stronger in favor of the right of action in the devisee, than the terms of the provision of the new Code, before referred to. I am therefore of opinion that the court did not err in giving the instruction in question. The second question is, Did the court err in in601structing the jury that the deed from John and S. G-. Adams, as executors of Richard Adams, was at law, on its face, a sufficient execution of the powers of sale and conveyance conferred upon them by the will of their testator ? The question was much discussed in the argument of this case, Whether the power conferred on the executors by the will was a naked power, or a power coupled with an interest ? In other words, Whether or not the executors were invested with a legal title to the estate? But in my view of the case, it is unnecessary to decide that question. It is true, that if trustees invested with the legal title to an estate convey it to another in plain violation of the trust, and even by a deed which on its face shows such violation, the title of the grantee is good at law, and resort must be had to a court of equity to set aside the deed. But it is also, I apprehend, equally true, that if the donee of a power make a sale and conveyance in pursuance of the power, the title of his grantee will be as good at law as if he had been invested with the legal title. The donor of the power being clothed with the legal title, and having empowered another to pass it from him in a certain way, the execution of the power in that way, as effectually invests the appointee with the title, as if it had been directly conveyed to him by the donor. The appointee takes the estate under the donor, and not under the appointor, who is a mere ministerial agent in passing the title. Thus we see the difference, and so far as concerns the present question the only difference, between the two cases of a conveyance by a trustee invested with a legal title, and a conveyance by a donee of a power conferred on him by the owner of the estate conveyed. In the former case, the trustee may pass the legal title as any other owner may. In the latter, the donee of the power can pass it only in the prescribed 602mode. But having passed it in that mode, he places graiAee on the same impregnable ground af law, is occupied by a grantee in the former case. jQ case, the title, though impregnable at law, is assailable in equity; and on the same or similar grounds : As where the trustee or appointor has committed a breach of trust or fraud in the execution of the trust or power, in which the grantee participated; or of which he had notice; or for which he may be otherwise responsible. An illusory appointment, if made in pursuance of the power, is good atlaw, and is assailable alone in equity on the ground of fraud. The obligation of a purchaser in certain cases to see to the application of the purchase money, is an obligation which does not affect his legal title, and can be enforced only in equity; whether the purchase be made from a trustee invested with the legal title or in pursuance of a mere power of sale. A bona fide purchaser without notice from one clothed with a mere power of sale, but who, in making the sale and conveyance, has pursued the terms of the power, is entitled to the same advantage and protection with such a purchaser from a trustee invested with the legal title. Having stated the principles of law which bear upon the question under consideration, in my view of it, let us now see how they apply to this case. The will certainly confers very extensive power and discretion upon the executors in regard to the whole estate, real and personal. By its first clause it empowers them to set apart so much of the testator’s property, not specifically bequeathed, as they may think sufficient to produce a clear annual income, by rent or interest, of two thousand dollars; which is directed to be distributed among certain legatees for life. And after giving the family burying ground to certain of his relations, and one thousand dollars to one of his 603nephews, it gives the balance of his estate to his nephews and nieces, (except the two therein before provided for.) It then proceeds in these words: “And for the purpose of making such division with greater facility, I hereby give to my executors, or such of them 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 beneficial for the whole.” And then follows a proviso in regard to the old mansion-house and lots thereto appurtenant. The executors are required to set apart a very large amount of property or money, sufficient to produce a clear annual income, by rent or interest, of two thousand dollars. ' To do this, it might have been, and probably was, necessary to sell a portion of the estate, real or personal; and whether necessary to do so or not, a purchaser from them would not be presumed to know, and if he acted bona fide, would be protected in his purchase. In the residuary clause full power is given to the executors to sell or otherwise dispose of the whole or any part of the iesiduum, in such time and manner, and on such credit as to them may seem most beneficial for the whole. It is scarcely possible to conceive broader terms in which a power of sale or disposition could be given. It is true this broad power is given “ for the purpose of making such divi- . sion with greater facility.” But surely this sentence was not inserted in the will to make the necessity of a sale for the purpose of a division, a condition precedan to the exercise of the power. If it had been, then, undoubtedly, no title could have been acquired under the power unless the condition precedent existed ; and the burden of proving its existence would devolve on the purchaser in order to maintain his title. This might be very inconvenient, if not impossible. But he who owns an estate may prescribe the terms 604on which alone it shall cease to be his; and they who deal ^01' acquisition must take care that all the preterms and conditions are strictly complied wjth. Upon this principle it has been held, that if a mere power be given to sell real estate for the payment of debts in case the personal estate should be deficient, the power does not arise unless the personal estate be actually'deficient; and that a purchaser must,' at his peril, ascertain the fact, notwithstanding that the purpose provided for be the payment of debts generally. Whereas a mere power to sell for payment of debts generally, without such a condition precedent, would not impose upon the purchaser the obligation of seeing to the application of the purchase money, much less invalidate his title at law in case the purchase money should be misapplied. 1 Lom. Dig. 246, marg.; Sug. Law Yen. 847. But a reason-' able construction must be put upon the will to ascertain whether the testator intended to make the necessity of a sale for the purpose of division, a condition precedent to the exercise of the power. We must not construe the will in reference to what has since transpired, but must go back to its date, put ourselves in the place of the testator, in the midst of all the circumstances which then surrounded him, and thus ascertain the meaning of his language. He must have intended to have his estate disposed of to the best advantage for the benefit of his residuary devisees. To have imposed upon every purchaser the burden of ascertaining the actual necessity for a sale, would have defeated the purpose of the power, or greatly-impaired the capacity of his executors for its beneficial execution. An intention to create such a clog, ought to be shown by plain words, and not left to be inferred from doubtful ones. As to the nature of these conditional powers, and their impolicy and inconvenience, see Hill on Trustees 478 ; 2 Sug. Pow. 503. The preliminary 605words in the clause conferring the power in this case were used merely to show the purpose for which it was conferred, and not to create a condition precedent to its exercise. A power of sale coupled with a trust is always conferred for some purpose; which is generally expressed on the face of the power: but such expression of purpose rarely creates a condition precedent to the exercise of the power. The power does not depend in this case on the necessity of a sale for the purpose of division — such a necessity is not mentioned in the will, and was not contemplated by the testator. The power was conferred “for the purpose of making such division with greater facility.” But whether, and to what extent, and in what manner, it would be proper to exercise it, was left to the sound discretion of the executors, subject alone to the control of the courts. The testator selected for the execution of the power and trust, his brothers and brother in law, in whom he reposed great confidence, and of whom he required no security as executors, except each for the other. They were the fathers of some, if not most, of the residuary devisees, and were doubtless men of high character and great responsibility. The estate entrusted to their care by the testator was of immense value; the penalty of each of the two executorial bonds which were given, being a million of dollars. He gave them full power to sell or otherwise dispose of the whole or any part of the property in such time and manner and on such credit as to them might seem most beneficial for the whole. Whether most beneficial for the whole or not, was referred alone to their discretion. The necessity, or even expediency, for.a sale of the whole for the purpose of making a division with greater facility, was hardly possible. And yet, full power is given to sell the whole or any part: as if to remove all restraint, and give assurance to purchasers that they might deal 606with the executors without doubt as to their capacity oonfer a good title. The trust was to be one of duration, and to be executed at different times. The beneficiaries were numerous, and many if not most 0f them were probably infants. The large subject directed to be set apart to produce the annual rent or interest of two thousand dollars, could only be divided among the residuary devisees, as or after those to whom that income was given, died. The old mansion-house, with certain lots thereto appurtenant, was directed to be assigned, at a valuation of twenty thousand dollars, to one nephew, and in ease of his death under the age of twenty-one years, to another nephew, as so mueh of his share of the whole estate. The testator seems not to have contemplated that a final division would be made among his residuary devisees until after they all arrived at the age of twenty-one years: though he no doubt intended that in the mean time partial divisions might be made among them and advancements made to them, in property or money, as occasion might require; to be accounted for in the final division. In view of all these circumstances I am of opinion that the power of sale, though conferred on the executors for a special purpose, was yet to be exercised at their discretion; that for the proper exercise of that discretion a bona fide purchaser from them for valuable consideration was not responsible ; and that a deed purporting to be a conveyance by them to such a purchaser in pursuance of the power, would at law, on its face, be a sufficient execution of the power. But the question is, Whether the deed under which the defendant in error claims in this case, has that effect ? There can be nothing on the face of that deed which can affect its validity, unless it be the words “ and for and in consideration of an exchange of land made with John Adams,” inserted therein. 607It was argued by the counsel for the plaintiff in error, that the deed shows on its face that it was executed in consideration of an exchange of land made with John Adams, one of the executors, individually, by the grantee Drew, and not for the purpose of making a division among the residuary legatees. It was argued on the other hand by the counsel for the defendant in error, that these words, taken in connection with the context, show that the exchange of land referred to was made with John Adams by the executors of Richard Adams, and not by Drew. I think the latter is the true construction. The deed refers to the will of Richard Adams, recites the power of sale therein contained, purports to be executed by the executors by virtue of the power vested in them, and contains covenants exclusively relating to the said testator’s estate; thus indicating that the exchange which was the consideration of the deed had been made by the executors in the execution, or supposed execution of their trust. The words before quoted consist with this view; and rather with it than the opposite. The executors, “ by virtue of the power vested in them, and for and in consideration of an exchange of land made with John Adams, and for the further consideration of one dollar by the said Drew to them in hand paid,” have granted, &c. That is, “ the executors, in consideration of an exchange of land made by them with John Adams,” &c. The substantial consideration, to wdt, the exchange, passed between John Adams and the executors. The nominal consideration, to wit, one dollar, was paid by Drew to the executors. Regarding this as the true construction of the words in question, Do they invalidate the deed at law ? I think not. The only ground on which it can be contended that they do, is that the executors had no power to make an exchange of land, especially with one of themselves. They had “full 608power to sell or otherwise dispose of the whole or any part, &c. as to them might seem most beneficial for whole,” &c. It might have seemed to them most jjenegcjai for the whole to make an exchange of land with John Adams, “for the purpose of making the division with greater facility.” We may well suppose that the estate consisting perhaps of many parcels of land in different parts of the city, it might have been highly beneficial to the parties concerned, and much facilitated a division among them, to have made an exchange of some of the land for other land which was more saleable, or which, by being attached to some other land belonging to the estate, rendered it more desirable, and more susceptible of easy division. In such a case, did not the testator intend to empower his executors to make the exchange? If not, what did he mean by giving them power, not only to sell, but otherwise to dispose of the whole or any part ? Might not an exchange be a convenient and beneficial mode of executing even the power of sale ? An owner of a large estate in detached parcels, in selling at different times to different persons, often finds it convenient and prudent to sell portions of it for other property more easily or advantageously convertible into money. An exchange, it is true, is not a usual mode of making partition or making a sale; but it might be proper; and it would be too much to say that the executors, in this case, had no power under any circumstances or to any extent, however small, to make one. It does not appear to what extent the exchange was made. The record only shows that John Adams thereby acquired a small lot of little value in Adams’ Valley; for which he may have given in exchange another lot of much greater value to the testator’s estate. Then, does the circumstance of its being made with one of th'emselves ipso facto render it void? I think not. A trustee cannot be a purchaser 609at his own sale. But then the purchase is only voidable, not void. It may be for the interest of the beneficiaries; who may therefore choose to let stand. They have an easy mode of avoiding it, if they elect to do so. But that is by a suit in equity, brought in proper time; and not by an objection to the title of the purchaser in a suit at law, especially after a great lapse of time, and after the title has passed to bona fide purchasers without notice of any such objection. 1 Sugd. Law Vend. ed. of 1851, p. 62, marg.; 2 Id. 887, and notes. An exchange stands on the same footing with a sale in this respect. I am therefore of opinion that the court did not err in refusing to give the second instruction asked for by the plaintiff in error, nor in giving the instruction Avhich it did in lieu thereof. Thirdly. Did the court err in refusing to give the third instruction asked for by the plaintiff in error, and saying that it was a matter entirely for the jury? The deed from Drew to Stevenson conveys “two small lots in Adams’ valley.” There is no patent ambiguity. A deed conveying all the land of the grantor in a certain county, is not void for uncertainty. Vanmeters' ex'ors v. Vanmeters, 3 Gratt. 148. Sor is a deed conveying all the estate both real and personal, to which the grantor is entitled. Mundy v. Vawter, Id. 518. Though notice of such a deed as the latter would not affect a subsequent purchaser from the grantor unless he had notice that the land purchased by him Avas embraced by the deed. Id. If Drew-had only two small lots in Adams’ Valley, then there Avas no latent ambiguity, and these two lots passed by the deed. But it is contended that if he owned the lot in controversy, he had three small lots in Adams’ Valley, and that the deed is therefore void for uncertainty ; or, at least, did not pass the lot in controversy. It is true that one of the lots owned by Drew in 610Adams’ Valley was composed of two small lots, one wJlich had belonged to Richard Adams, and the other to John Adams. But John Adams had acquired ^ former from the executors of Richard Adams, no ¿[oubt with the view of adding it to the latter, which was too small to be of much value; and afterwards sold the lot, composed of the two small parcels, to Drew. The two parcels were conveyed to Drew by different deeds,- because Richard Adams’- executors had made no deed to John Adams, (who was one of them;) and therefore Richard Adams’ executors made a deed directly to Drew for one parcel, while John Adams made a deed to him for the other. But the two deeds bear date on the same day, and are parts of the same transaction.. The two parcels, when they became the property of one owner, became but one lot;' which well answers the description of a small lot, fronting but sixty-two feet on Fifteenth street, and running back about one hundred feet in the form of a wedge. Drew owning this lot and another in Adams’ Valley, (which other had also at the same time been derived from John Adams,) shortly thereafter executed the deed to Stevenson, conveying “ two small lots in Adams’ Valley.” . That that deed embraced the parcel of land which had belonged to Richard Adams as aforesaid (and which is the land in controversy) is evident, not only from what has been already said, but from the intention plainly apparent on the face of the deed to convey all the property of the grantors. But even if it were doubtful whether one or both of the parcels aforesaid were intended to be conveyed, I would construe the deed most strongly against the grantor, and so as to give it effect, rather than that it should be void for uncertainty. Fourthly. I think the Circuit court did not err in refusing to give the fourth instruction asked for by the plaintiff in error, and giving the instruction which it did in lieu thereof. 611Fifthly. I think the court did not err in sustaining the objection of the defendant in error to the admissibility of the recorded -settlements of the accounts Richard Adams’ executors, which the plaintiff in error offered to produce in evidence. The deed being made by the executors to Drew in consideration of an exchange of land between the executors and John Adams, and not of money paid to them by Drew; of course the executorial accounts would show no credit to the estate for the price of the land conveyed. But the deed being at law upon its face, as I have already endeavored to show, a sufficient execution of the power of sale and conveyance conferred by the will of Richard Adams upon his executors; it follows, as I have also endeavored to show, that the title of Drew under that deed was good at law, and cannot there be impeached by any evidence of a breach of trust by the executors in not accounting for the price of the land conveyed. Therefore the settlements which were offered for that purpose were irrelevant and inadmissible evidence. Sixthly. For the same reason, I think the court did not err in giving the instruction asked for by the defendant in error, that the evidence of Drew, insofar as it affected or disclosed the consideration upon which the deed to him from Adams’ executors was founded, was not to be regarded by the jury. That evidence was introduced to show a breach of trust by the executors ; for which purpose, according to what has been said, it was inadmissible. But it tends to confirm the construction I have put upon the deed and to repel that construction, which would make the deed a breach of trust on its face. In any view of the evidence, it was properly excluded. Seventhly and lastly. Did the court err in overruling the motion of the plaintiff in error for a new trial on the ground that the verdict was against law and evidence? 612The objections taken to the rulings and opinions of the court during the trial, which are also relied on as for a new trial, having already been considered an(j ¿jSp0setj 0f; ^ unnecessary to notice them any further. The remaining ground relied on is that the verdict was contrary to the evidence. The bill of exceptions states the evidence of the witnesses examined on the trial, instead of the facts appearing to the court to have been proved by such evidence. This court cannot therefore, according to our well settled practice, take cognizance of the case and reverse the judgment, unless by rejecting all the parol evidence for the exceptor, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. The application of that test puts an end to the case. But looking at the whole evidence, I do not think that the judgment ought to be reversed on the ground that the verdict was against the evidence. The only objection taken to the verdict under this head is, that it is for the whole lot claimed in the declaration, while the evidence shows that the plaintiff in error was in possession of, and claimed title to, only a part of the lot, viz: the part conveyed to Drew by the executors of Richard Adams. The plea of not guilty put in issue the title to the whole lot, and gave no notice of an intention to claim only a part. The evidence showed that the defendant in error was entitled to the whole, and that the plaintiff in error was in possession of, and claimed title to a part. On this evidence the jury properly rendered a verdict for the premises in the declaration mentioned. Code, cb. 135, § 25, p. 561. At all events, if there be any error in this respect, it is not an error to the prejudice of the plaintiff in error, and therefore the judgment should not be reversed on that ground. I am of opinion that there is no error in the judgment, and that it ought to be affirmed. 613Samuels, J. In my opinion the will of Eichard Adams conferred on his executors a mere power over his real estate; that it gave them (amongst other things) power to set apart so much of the real estate as they might think sufficient to produce a clear annual rent of two thousand dollars, for payment of annuities for the lives of the annuitants; that if the executors thought proper to exercise this power, by setting apart real estate for this purpose, then the direction to the executors to pay the rent for the lives of the annuitants, must be held, by implication of law, to confer an estate of equal duration upon the executors; that as the interest of the annuitants respectively expired, the residuary devisees would succeed to their portions. That in this mode, to this extent and for this purpose only would the executors acquire any interest in the testator’s real estate j not by devise directly from him, but by virtue of the power conferred on them. I am further of opinion that the consideration mentioned in the deed of bargain and sale from Adams’ executors to Drew, must be held to move from the bargainee. This consideration is of two parts, to wit: “ an exchange of land with John Adams,” “and for the further consideration of one dollar by the said Drew to them in hand paid,” &c. The parts of this consideration seem to have taken different directions ; one having gone to John Adams alone in his own right; the other to the executors as such. If the executors, as such, had made an exchange with John Adams acting in his own right, it is difficult to perceive why the fact should be mentioned in their deed to Drew, or how it could be regarded as a consideration paid by him; yet without doubt the substantial consideration was the exchange, and not the nominal sum of one dollar. Holding then that the deed was intended to perfect *614an exchange between John Adams and Drew, I can-Holding then that the deed was intended to perfect an exchange between John Adams and Drew, I can-no^ aiQ7 authority to make it in the power con-by the will, large as it is. I am of opinion, therefore, that the judgment should be reversed, for the reason that the Circuit court erred in refusing to instruct the jury that the deed was invalid. I concur in the opinion of Judge Moncure on the other questions presented by the record. Allen, P. and Lee, J. concurred in the opinion of Moncure, J.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481610/	Lee, J. Two questions occur in this case first, whether Mrs. Byrd under the deed and contract of the 29th of June 1828 has any lien express or implied, upon the estate of Coke, or any portion of it, for the amount of the annuity secured to her by that contract; second, as to the effect of the failure to record the deed of trust of the 21st of June 1848 until after the death of Coke, the grantor, upon the lien thereby created as against the general creditors of Coke. Of these in the order stated. There is no just foundation for any claim to an express charge. There is a reservation of what is termed “ a mortgage or lien” upon the land conveyed in favor of Rebecca Innis for five hundred pounds, but nothing said of a lien for the annuity. The only terms in the deed which can furnish any semblance of a charge are those in which it is covenanted that in the event of Coke’s death, his estate should pay Mrs. Byrd three hundred dollars during her life for her board &c. Such terms or terms of similar import, mutatis mutandis, might in a will in favor of securing payment of just debts, perhaps, be held to constitute a charge, but in a contract of this character they cannot have this effect. They are but the words of a party intending to create a debt to be paid after his death in the form of an annuity for life to the other in the event she survived him. It was of course to be paid out of his estate as any other mere personal liability ; but it will 621not constitute nor was it intended to constitute any charge in the nature of a specific lien. Considering that if a lien upon any thing it would be a lien upon the whole estate of the grantor real and personal, involving embarrassment and inconvenience in disposing of even the most inconsiderable article amounting to almost a disability to enjoy his property, an intention so to bind it should not be imputed unless plainly expressed. The terms used should be construed as a covenant for his representatives, — one on his own behalf being inappropriate, — and as binding his estate only in the sense in which any personal covenant binds that of the covenantor. If there is any lien under this contract, it can only be that implied charge, the creature of the court of equity, familiarly known as “ the vendor’s lien.” The doctrine in regard to this lien although of comparatively modern origin, may now be regarded as well established in the English chancery; and although it has been adopted in several of the states in this country, as also in the circuit courts and Supreme court of the United States, yet in others of the states it has been questioned and unsettled or wholly repudiated. In Pennsylvania it has no existence; Kauffelt v. Bower, 7 Serg. & Rawle 64, 74: So in North Carolina; Womble v. Battle, 3 Ired. Eq. R. 182 : So in South Carolina; Wragg's representatives v. The Comptroller General and others, 2 Dessaus. R. 509: so in Maine; Philbrook v. Delano, 29 Maine R. 410; and in Massachusetts, per Story, J: in Gilman v. Brown, 1 Mason’s R. 191. In Delaware and Connecticut, the doctrine is questioned and unsettled. Budd v. Busti, &c. 1 Harring. R. 69; Atwood v. Vincent, 17 Conn. R. 575. In Virginia the doctrine has been admitted and such a lien asserted against the vendee or purchaser with notice from him. Cole v. Scot, 2 Wash. 141; Graves v. McCall, 1 Call 414; Duval v. Bibb, 4 Hen. & Munf. 622113; Hatcher's adm’rs v. Handler's ex'ors, 1 Rand. 53; Tompkins v. Mitchell, 2 Rand. 428. But although thus recognized in Virginia the doctrine has not been favored. On the contrary it has been denounced as violative of the policy of our law which seeks as far as possible to discourage secret liens and require all to be made matters of record; and a settled disposition has been manifested to extend the doctrine no farther than it has already been carried. See the remarks of Judge Carr in Moore v. Holcombe, 3 Leigh 597, 600, 601; quoting with approbation those of Chief Justice Marshall in Bayley v. Greenleaf, 7 Wheat. R. 46, 51; and those of Judge Tucker in Brawley v. Catron, 8 Leigh 522, 527. That such a doctrine is inappropriate in a state in which every debt may be at once made a lien by a judgment and in which the real estate of a decedent is made assets for the payment of his debts cannot well be denied; and the legislature of this state very clearly evinced the opinion which it entertained upon this point when at the recent revisal it adopted the policy of those states in which this lien had been repudiated by abolishing it formally by statutory enactment. Code of Virginia, ch. 119, § 1, p. 510. From the English cases it would seem to be deduced that in general this lien is presumed to exist and that it will follow the subject into the hands of a purchaser with notice from the vendee. Hughes v. Kearney, 1 Sch. & Lef. 132; Mackreth v. Symmons, 15 Ves. R. 329, and the cases cited and reviewed by Lord Eldon; Saunders v. Leslie, 2 Ball & Beat. 509; Winter v. Anson, 3 Russ. 488, (3 Cond. Eng. Ch. R. 495;) Grant v. Mills, 2 Ves. & Beame 306. Nor will the mere taking of a note or covenant for the payment of the purchase money suffice to extinguish the lien. Gibbons v. Baddall, 2 Equ. Cas. Abr. 682, n. (b.); ex parte Peake, 1 Madd. R. 344; Cary’s Ch. R. 25, cited 6233 Sug. Vend. [192], [193] ; Winter v. Anson, uli sup.; Hughes v. Kearney, ubi sup.; Teed v. Carruthers, 2 Younge & Coll. 31, 21 Eng. Ch. R. 31. Nor will it make any difference that the purchase money claimed is in the form of an annuity and not a gross sum. Blackburn v. Gregson, 1 Bro. C. C. 420 ; Tardiffe v. Scrugan, cited 1 Bro. C. C. 423. So in case of a covenant for payment of purchase money in weekly sums, the vendor was held entitled to the lien, by Wigram V. C. in.Matthew v. Bowler, 6 Hare’s R. 110, (31 Eng. Ch. R. 110.) It is true that Lord Camden’s decision in Tardiffe v. Scrugan would appear to have been criticised and questioned by Lord Eldon in Mackreth v. Symmons; and in Clarke v. Royle, 3 Simons’ R. 499, 502, the vice chancellor (Sir Lancelot Shadwell) is reported to have said that it appeared to him that Lord Eldon had in Mackreth v. Symmons expressly overruled Lord Camden’s decision in Tardiffe v. Scrugan; and Tucker, P. in Brawley v. Catron, 8 Leigh 522, 530, speaks of the latter case as overruled. He says “ it certainly was.” However in Buckland v. Pocknell, 13 Simons’ R. 406, 412, (36 Eng. Ch. R. 406,) Sir L. Shadwell alluding to what he had been reported as having said in Clarke v. Royle, observed that if that had been said in those very terms, it was said too strongly ; because although Lord Eldon was not satisfied with the decision in Tardiffe v. Scrugan in all its parts, yet it could not be said that he had overruled it. The decision too is supported by that of Matthew v. Bowler above cited and the case of Winter v. Lord Anson; and is fully sustained by the opinion of Sir Edward Sugden who thinks that it is still an authority and that in such a case the lien will be raised. 3 Sug. Vend. ch. 18, § 32, 38, p. 127, 131, (ed. of 1843.) But in every case whether of an entire gross sum or a sum payable in installments or in the form of an 624annuity for lives, the question of lien depends on the particular circumstances; and although generally speaking the lien exists, yet it may be waived or repelled by the character of the case. “ The rule” says Judge Story “ is manifestly founded on a supposed conformity with the intention of the parties upon which the law raises an implied contract; and therefore it is not inflexible but ceases to act where the circumstances of the case do not justify such a conclusion.” Gilman v. Brown, 1 Mason’s R. 191. What are the circumstances which shall decide whether lien or no lien is a matter of some difficulty and obscurity, and many doubts and nice distinctions will be found in the authorities. As the lien is generally presumed, it would seem that the burden is upon the purchaser to show that it was waived. Hughes v. Kearney, above cited; Mackreth v. Symmons, 15 Ves. R. 329 ; Garson v. Green, 1 John. Ch. R. 308. But this the purchaser may do not only by showing an express agreement to that effect, but also by the reasonable inference and implication from the circumstances. Low it would seem settled that the mere taking a bond, promissory note, bill of exchange or a simple covenant of the vendee himself will not repel the lien because as said by Lord Eldon it may have been given not to supersede the lien but for the purpose of ascertaining the debt and countervailing the receipt endorsed upon the conveyance. But it is equally clear that where a distinct and independent security is taken either of other property or the responsibility of a third person the party having carved out his own security the law will not come to his aid by creating another and the equitable lien will be gone. Bond v. Kent, 2 Vern. R. 281; Fawell v. Heelis, Amb. R. 724; Nairn v. Prowse, 6 Ves. R. 752; Cole v. Scot, 2 Wash. 141; Fish v. Howland, 1 Paige’s R. 20; Wilson v. Graham's ex'or, 5 Munf. 297 ; Gilman v. Brown, 1 Mason’s R. 191; 625S. C. 4 Wheat. R. 255. In such cases the waiver of the lien is placed upon the ground of intention deduced from the party’s taking a special security. See 3 Sugd. Vend. 191; 4 Kent’s Comm. 153. So where although the responsibility of a third person be not taken, if it appear that the note bond or covenant was substituted for the consideration money and was in fact the thing bargained for, the lien will not exist. There it may be inferred that credit was given exclusively to the person on whom the security was taken. Thus in Clarke v. Royle, 3 Sim. R. 499, (5 Cond. Eng. Ch. R. 218;) the conveyance was in consideration of the vendee entering into covenants therein contained for an annuity to the vendor and three thousand pounds to certain persons in the event of the vendee’s marrying. The vice chancellor distinguished the case from Tardiffe v. Scrugan. lie considered that the deed plainly marked out that the consideration on the one side was the conveyance of the estate and on the other the entering into the covenants. He said that to declare a lien in such a case would be to go further than any of the cases that had been previously decided upon the subject of lien on purchased estates and to do that which appeared to be contrary to the intention of the parties. He accordingly pronounced against the lien. This case is cited as authority and with apparent approbation by Tucker, P. in Brawley v. Catron, 8 Leigh 522, 530; aud although the vice chancellor said that he considered it decided by the case of Winter v. Lord Anson, 1 Sim. & Stu. 434, (1 Cond. Eng. Ch. R. 221), in apparent ignorance of the fact that the opinion of Sir J. Leach in that case had been overruled by Lord Chancellor Lyndhurst (3 Russ. R. 488, 3 Cond. Eng. Ch. R. 495), yet its weight as authority is not on that account lessened: because the difference between Sir J. Leach and Lord Lyndhurst was not in the principle 626applicable to the case but as to the exact, state of the case. The former when he decided against the lieu (for he had at first decided in favor of it) thought that the case was in principle the same as if the conveyance had stated the real contract of the parties; and that by the effect of that contract, the vendor agreed to part with his estate on consideration of the bond for the future payment of the price and that upon the execution of such bond the estate passed to the vendee in equity as well as at law. Lord Lyndhurst however-held that the lien was not affected by the circumstance that the period of-payment was dependent on the life of the vendor. He did not think it afforded such evidence of intention to rely on the personal credit of the vendee as would waive the lien. The fault in the reasoning of Sir John Leach, as stated by Sugden (3 Sug. Vend. 187. § 6) was that he placed the case on grounds that did not exist. He assumed that it was a case in which in effect the conveyance was in consideration of a covenant in a deed to pay the price at the future period. But though the conveyance was in pursuance of the agreement (which however was to take a bond and not a covenant) it did not otherwise refer to it and was expressed to be made not in consideration of the agreement but in consideration of the purchase money. In Clarke v. Royle however the very case was presented which was erroneously assumed to exist in Winter v. Lord Anson. The conveyance was in fact in consideration of covenants entered into by the same deed for payment of the price. “ There is a marked difference,” says Sir Edward Sugden, “ between a conveyance as for money paid with a separate security for the price whether by covenant bond or note, and a conveyance expressed to be in consideration of covenants which the purchaser enters into by the deed itself.” “It may be considered against the bearing of such a security for the pur627chase money to raise another upon the estate itself by implication from the very transaction.” He concludes therefore that Clarke v. Royle is not shaken by Lord Lyndhurst's decision in Winter v. Lord Anson. The principle of the case of Clarke v. Royle was applied in the case of Parrott v. Sweetland, 3 Mylne & Keene 655, (10 Cond. Eng. Ch. R. 348.) There a receipt was endorsed on the conveyance for the bond of the vendee conditioned for the payment of three thousand pounds to one Orlebar with whom the vendor was about to be united in marriage, and expressed to be the full consideration to be given by the vendee. Sir John Leach, master of the rolls, held that it was a case of substitution for the price and not security, and pronounced against the heir. The cause was reheard before the V. C., Sir L. Shadwell and Mr. Justice Bosanquet, sitting as lords commissioners, and the decree of the master of the rolls was affirmed. So in Buckland v. Pocknell, 13 Sim. R. 406, (36 Eng. Ch. R. 406,) which was the case of a conveyance in consideration of certain annuities granted by the vendee and which he covenanted to pay, the vendee also being bound to pay off a mortgage debt to which the estate was subject: held by Sir L. Shadwell, V. C. referring to Parrott v. Sweetland, that there was no lien for the annuity. And the same principle may be traced in other cases. How the case before us seems plainly to fall within the class of which Clarke v. Royle is the leading case. It differs from that case in no material particular. Here the consideration of the conveyance is the sum of five thousand three hundred and sixty-five dollars, and the covenants of Coke to maintain Mrs. Byrd during her life, for the payment of the annuity, in case she should survive him, of three hundred dollars if she chose to board out of his family, or if she should continue in his family after his death, of one hundred and 628fifty dollars; and in the latter case, that she was to have a room and furniture &c. and in either case a maid servant to wait upon her. These covenants of the vendee, and the conveyance to him were by the same deed, and upon the principle of the above cases, the covenants were the thing contracted for, and no lien can be held to exist. If we look still further and more closely into the instruments executed by these parties to deduce from them what their meaning must have been, according to the principle laid down by Lord Lyndhurst in Winter v. Lord Anson and to the view of Judge Story in Gilman v. Brown, we must be brought to the same conclusion. Here is a conveyance by the grantor of her whole interest in a large plantation with all the live stock of every kind upon it, and all the farming implements used in its cultivation, the crops on hand and those then growing, the household and kitchen furniture at the mansion-house, just as it stood and a carriage and harness : also all the grantor’s interest in the slaves of her husband, and her interest in the estate real and personal, as heir and distributee of three of her daughters who had died after their father: also fourteen slaves which were the separate property of the grantor. All this property is conveyed to the grantee forever free and quit of any claim of the grantor and with covenants to assure full and perfect title, unencumbered, against the grantor and her heirs forever subject only to a mortgage on the land in favor of one Rebecca Innis for the sum of five hundred pounds, to the interest upon which during her lifetime the grantor was entitled under the will of R. Innis, but her claim to which she renounced in favor of the grantee, by a covenant in the deed. The considerations of this conveyance have been already stated. Such a contract would seem to repel the idea of 629lien. If one were intended, why not alluded to when the lien in favor of R. Innis is specially reserved? The consideration is in gross for both real and personal property and no discrimination is made between the proportions due for each severally. Now there is no implied equitable lien for the purchase money of personal property sold in favor of the vendor. James v. Bird’s adm’r, 8 Leigh 510; McNeil v. Bird’s adm’r, not reported but cited in the foregoing case: and I am aware of no case in which such a lien has been declared on a sale of both real and personal property for a gross sum. That the court of chancery will enforce specific performance of such a contract or that a rent may be reserved issuing out of both on a demise of real and personal property will not help the argument. The question is what may reasonably bo supposed to have been the intention of the parties, and those principles do not serve to illustrate it. The great inconvenience and embarrassments that would follow if a lien should exist in this case tend strongly to show it could not have been intended. If a lien upon any thing, it would be a lien upon all the property sold, thus disabling the vendee from disposing of a slave or any other article except subject to this doubtful uncertain contingent lien in favor of Mrs. Byrd. For there is a contingency as to the amount depending on her continuing to reside in the family or choosing to reside elsewhere. And as to part, the use of a room and furniture and the services of a maid servant, if the covenant be broken as to these, the compensation is not in a specific sum due but in damages to be assessed by a jury. To maintain the lien here would be to encounter all the objections stated by Tucker, P. in Brawley v. Catron, 8 Leigh 522, if indeed they be not stronger in this case than in that. It is no ans-wer to say that the lien declared is for the arrears of the annuity. It cannot thus be separated 630from the rest of the subject but must share the fate of the whole; and if no lien for the whole consideration there is none for the annuity. Upon the whole, I feel no doubt that Mrs. Byrd was content with the personal security of Coke and that at the time of executing the instrument, neither partjr contemplated or thought of a lien. And to set it up here would be to carry the doctrine further than it has ever yet gone, which in view of the expressions of eminent judges against the policy of such a lien and the marked sense of the legislature in its total abolition by statutory enactment, I certainly am not prepared to do. We come next to the effect of the failure to record the deed of trust until after the death of Coke. That such a deed though unrecorded is yet good and valid as between the parties is clear from the terms of the law which have no application to such a case and was decided at an early day under a former registry law. Turner v. Stip, 1 Wash. 319; Currie v. Donald, 2 Wash. 58. A general creditor therefore coming in the lifetime of the mortgagor can assert no claim to satisfaction of his debt out of the mortgaged subject to the prejudice of the mortgagee. But it is argued that upon the death of the mortgagor in this case, the general creditors acquired such rights under the provisions of the statute making the real estate of a decedent liable to his debts or under the charge in the will of Coke for payment of his debts, as entitles them to displace the mortgagee and deprive him of the benefit of the lien for which he had contracted. The first enquiry then is what is the interest which is thus made liable by the statute to the debts of a decedent ? The act provides that all real estate of any person who might thereafter die as to which he might die intestate or which though he die testate shall not 631have been by his will charged with or devised subject to the payment of debts or which might remain after satisfying the debts so charged or subject to which it was so devised, shall be assets for the payment of the decedent’s debts in the order in which the personal estate is to be applied. Code Va. ch. 131, § 3, p. 545. The estate then thus made subject is the estate of the debtor not that which he may have previously conveyed to another, nor (except subject to the charge) that on which he has created a lien for the payment of a particular debt. In the latter case creditors coming in under the statute must take the subject in the same plight and condition in which the debtor left it. Their rights in the subject cannot be enlarged and improved beyond those of the debtor to the prejudice of the' creditor who has taken the lien though he may have failed to record it. The creditor who seeks ’to assail it must come with some lien by judgment or otherwise giving him a right to charge the property specifically. That the right given by the statute constitutes no such lien, I think, is clear. The law makes real estate assets, merely, to be disposed of as personal assets ; and a creditor has no lien upon the assets. He has a right to have the -whole applied in a due course of administration, but nothing in the nature of a specific lien. Nugent v. Gifford, 1 Atk. R. 462; Mead v. Lord Orrery, 3 Atk. R. 235; per Lord Eldon, McLeod v. Drummond, 17 Ves. R. 153. See remarks of Sir Wm. Grant in Mitford v. Mitford, 9 Ves. R. 87, 100; Glason v. Morris, 10 John. R. 525, 540. See also Black v. Scott, 2 Brock. R. 325. That the general creditors take only the estate of the debtor and in the plight and condition in which he left it, is deducible from the general tenor of the act and also from the terms of the seventh section which expressly declares that the provisions of that chapter should not affect any lien by judgment or 632otherwise acquii’ed in the lifetime of the decedent. And there is no sufficient reason for excluding an unrecorded moi'tgage from the protection afforded by this section. It is still a lien on the mortgaged subject which a court of equity will respect and enforce, assuming the debt to be fair and honest, and there can be no reason why the general creditors having no claim to charge the subject specifically, but only the estate left by the debtor, generally, should be entitled to claim any thing more than the debtor himself had, to wit, the equity of redemption after satisfying the mortgage debt. To permit them to deprive a creditor having an equity at least equal to theirs and certainly prior in point of time of the benefit of the lien for which he had contracted would be required neither by any principle of justice nor by the policy on which the law is founded. If therefore Coke had died intestate, it is difficult to perceive on what grounds the general creditors coming in after his death under the statute could be entitled to displace the creditors claiming under the deed of trust of the 21st of June 1848 or to subject to their debts any thing beyond the equity of redemption. The mortgage being good against the grantor and his heirs, nothing , could descend to the heir but the equity of redemption; and if he and the mortgagee were to unite in a sale of the mortgaged premises, the creditors could not make him liable at law beyond the value of such equitable interest. The act makes him answerable for the value of the assets descended, but no more, and all that descended was the mei'e equity of redemption. And equity certainly would not carry the liability further. The case of a fraudulent conveyance will not illustrate the question here. It may be true that in that case, the descent would not be broken and the whole property would be liable. For when the deed is adjudged void for 633fraud the party has nothing to fall back upon. Very different is the case of a deed defective merely for want of having been duly recorded. Though the transfer of the legal title be arrested, the creditor has the equity of a just debt and of the stipulation with the debtor for the security of the trust deed to rely upon; and this a court of equity administering equities according to its own principles will duly respect and enforce against general creditors having no specific lien by judgment or otherwise. The parties come into the court of equity asking its aid to subject the property and they must abide by the rules and principles of that court. And although a fraudulent alienee would be treated as a mere trustee for the benefit of the creditors entitled, a creditor holding under an unrecorded mortgage to secure a bona fide debt would stand on a different footing. His equity would be at least equal to that of the creditors competing with him and he moreover stipulated for a security which they did not. But the claim of the creditors in this case does not rest upon the right given by statute to subject the real estate of a decedent to the payment of his debts. Coke by his will which was made on the 30th of December 1849 charged his whole estate with the payment of all his debts; and it was not therefore within the terms of the third section of chapter 131, subjecting real estate to the payment of the decedent’s debts. For that section is expressly confined to the real estate as to which the party died intestate or which though he may have left a will, shall not have been charged by the will or devised subject to the payment of debts, or if so charged or devised, to what might remain after satisfaction of the debts so provided for. The devise then being for payment of debts was clearly good under the act in force at the date of the will; 634and although generally wherever real estate is by statute made liable for payment of debts it would appear to constitute legal assets as held in Goodchild v. Ferrett, 5 Beavan’s R. 398; 2 Spence Equ. Jur. 319; yet where a testator by his will charges his real estate with his debts, the real estate so charged will be equitable assets notwithstanding the statute would have rendered it liable if there had been no such charge. Charlton v. Wright, 12 Simon’s R. 274; 2 Spence Equ. Jur. 312. But in the administration of assets of a decedent whether legal or equitable, the courts of equity recognize and enforce ají antecedent liens claims and charges, in rem, resting upon the property according to their priorities whether they are legal or equitable. 2 Lom. Dig. 119 ; Fremoult v. Dedire, 1 P. Wms. 429; Finch v. Winchelsea, 1 P. Wms. 277; 1 Sto. Eq. Jur. § 553, and cases cited in the note. And as the mortgage though unrecorded is valid against the grantor and his heirs, it constitutes such a lien as will be respected by the court of equity in administering the assets of the decedent. The statute of wills authorizes every person to dispose by will of any estate to which he shall be entitled at his death and which if not so disposed of would devolve upon his heir &c. Code of Virginia, ch. 122, § 2, p. 516 ; and if there were no further provision on the subject, the effect of this would be to enable the devisee to take the land devised discharged from any liability to the general creditors of the testator. Hence the statute in England upon the subject of fraudulent devises and the similar provisions of our Code. But to what estate shall it be said a party was entitled at his death and what shall devolve upon his heir if not disposed of by will? Certainly not lands which the testator had conveyed to another by deed binding upon him and his heirs, in his lifetime; 635or if the conveyance were not absolute but in the nature of a mortgage to secure a debt, nothing more than the equity of redemption. In the former case, his title has passed from him absolutely; in the latter it is only to be reinstated by himself or those claiming under him by payment of the amount due. By the devise, the testator will only be understood to intend to charge what he lawfully might charge and it will not be construed so as to pass more than he himself was entitled to. Hor can the devisee take more. He is not a purchaser for value, and can stand on no better footing than a voluntary grantee. The devise is the voluntary act of the debtor implying no contract or stipulation with the creditors whose debts are thus provided for. And the maxim non det qui non habet must apply. In this case, Coke’s will was made before the present Code took effect, and the case therefore falls within the influence of that of 1819, Code of Va. ch. 122, § 22. By the Code of 1819 whilst it avoided fraudulent devises, devises for payment of debts were expressly saved: and the creditors here must claim as devisees whose rights are protected by the fourth section of the act of December 18, 1789 (1 R. C. 1819, p. 392). So claiming, they can only take what Coke could devise, and this is the equity of redemption in the subject covered by the deed of trust. What they must claim is an equitable interest only and the relief they must seek is through the administration of equitable assets. Black v. Scott, 2 Brock. R. 325 ; 1 Sto. Eq. Jur. § 550, 552, 553; Miller Eq. Mort. 126, (42 Law Lib. [126]; Newton v. Bennett, 1 Bro. C. C. 135; Silk v. Prime, Ibid. 138, n; Baily v. Ekins, 7 Ves. R. 319; Rutger's ex'ors v. Leroy, 4 John. Ch. R. 651; Nimmo's ex'or v. Commonwealth, 4 Hen. & Munf. 57. And this being the footing on which they must stand, 636they cannot successfully ask the aid of a court of equity to take from a creditor having at least an equal equity with them and who has moreover stipulated for and obtained a specific lien upon the real estate of the common debtor, the preference thus intended to be secured to him. From what has been said it may be deduced that after the death of a mortgagor it is not necessary to record the mortgage to protect the lien against general creditors. In this case in point of fact the deed of trust was recorded after the death of Coke, and there is nothing in the language of the act prohibiting the recording of a deed after the death of the grantor or restricting the right to'record to the lifetime of the grantor. When the execution of the deed is authenticated in the manner required by the law it is the duty of the court or clerk to admit it to record without enquiry whether the grantor be in life or otherwise. Nor is any good reason perceived why such recording will not suffice to bring the case within the terms of the law, and render the deed good against creditors from that time. And it may be urged that as the creditors had acquired no specific lien by judgment or otherwise in the lifetime of the grantor and as they took none either under the devise in the will or the act rendering real estate assets for payment of debts, they could not successfully assail the lien secured by the deed of trust. I do not dwell upon this view however because as I think the creditors acquired nothing in the nature of a specific lien either under the will of Coke or the statute making real estate assets, and as after Coke’s death they could acquire no lien upon his real estate, I conceive that recording the deed of trust after his death was wholly unnecessary as to them. It remains to consider in this connection, the effect 637of the 11th section of chapter 118 of the Code. This section provides that the words “ creditors” and “purchasers” where used in that chapter and in chapter 119, shall extend to and embrace all creditors and purchasers, who but for the deed or writing, would have had title to the property conveyed or a right to subject it to their debts. And it is insisted that creditors claiming under a devise for payment of debts or under the statute subjecting real estate, are within this description. I do not think this the correct construction of the section. It was not designed to make any change in the kind or character of the debts which would entitle creditors to assail an unrecorded deed, but to define the class of creditors as to whom if their debts were of the kind and character authorizing them to call it in question, an unrecorded deed would be void. This is apparent from the context, for the section declares that the words “creditors” and “purchasers” where they occur, are not to be restricted to the protection of creditors of and purchasers “from the grantor,” but are to embrace all who but for the deed would have had title to the subject or a right to subject it to their debts. It was intended to settle by statutory provision the question so much controverted in the cases of Pierce v. Turner, 5 Cranch’s R. 154; Land v. Jeffries, 5 Rand. 211; and Thomas v. Gaines, 1 Gratt. 347 ; and which was decided in the last named ease in conformity to the decision in Anderson v. Anderson, 2 Call 198; and overruling Pierce v. Turner and the opinions of Judges Carr Coalter and Brooke in Land v. Jeffries; but it made no change in the well settled rule which required a creditor who would assail an unrecorded deed to show that he had some lien by judgment or otherwise entitling him to charge the subject conveyed, specifically. I think the Circuit court erred in its opinion upon 638both of the questions which I have thus considered, and am of opinion to reverse the decree. Allen, P. and Moncure, J. concurred in the opinion of Lee, J. Daniel and Samuels, Js. concurred in Judge Lee’s opinion as to Mrs. Byrd’s heirs; but they dissented as to the validity of the deed of trust. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481611/	Samuels, J. It is the right of every party concerned in interest in property, when about to be sold at public auction, to have it offered for sale under such circumstances as afford an opportunity for fair competition amongst all who may be disposed to buy. Doubts about the identity or title of the subject to be «old may prevent prudent men from offering to buy, 641and are therefore enough to justify any one charged with the duty of making a sale, in postponing the sale until such doubts may be removed and the danger of sacrifice be avoided. See Rossett v. Fisher, 11 Gratt. 492; Goare v. Beuhring, 6 Leigh 585; 1 Lom. Dig. 425 top, 323 marg. Without going into an enumeration of the many causes for which public sales have been set aside, yet we see that many of them are founded on the principle that fair competition has been prevented, and sacrifice may have been incurred to the prejudice of those interested, This principle rules in cases of sales by auctioneers, executors, administrators, trustees, commissioners, and all others having authority to sell. 2 Rob. Prac. 65, old edition. Although the irregular action of the person making the sale may not always avoid it, still wherever the sale itself is allowed to stand, the delinquent in duty must make compensation to the party injured. In the case before us a sale of land was made by a commissioner acting under a decree of the Circuit court of Nelson county. It was the right of the appellees as well as of the appellant, the parties interested, to have the benefit of fair competition. Yet the sale was made on the 3d of December 1853, a day which was so inclement because of rain, that several persons who wished to attend were prevented by the weather from doing so. There is a conflict of evidence on the question, Whether the inclemency of the day was such as ought to prevent any one who might wish to do so from attending ? There is no conflict however as to the fact that some persons did stay away who had intended to be there, some of whom wished to buy the land or a part of it. There is moreover no conflict of evidence as to the fact that the appellant was the sole bidder; that the commissioner, the crier and one other, were the only persons drawn to the place in expecta642tion of a sale; that the appellant who became the buyer, and her brother lived at the place. The case before us differs from Fairfax v. Muse’s ex’ors, 4 Munf. 124, in this, that in that case there were five bidders present, including the plaintiff's agent and the defendant : in our case but one bidder was present. In our case, besides the commissioner and crier, there was but one other person in attendance, because of the expected sale, and that other had no intention to buy. In the case in 4th Munford, the report states that a “ considerable number” were there. In our case persons who wished to attend were prevented by the weather from doing so. In the case in 4th Munford it is not shown that any one staid away because of the cloudy and rainy day, who desired to be at the place of sale. The marked difference in the facts of the cases in my judgment requires a difference in their decision. Seeing that the duty of the commissioner was plainly violated; that the sale reported in effect was one by private contract, the court should not go into an enquiry upon the conflicting evidence whether the price was a fair one. It was said in the argument here that if the sale under consideration could be set aside at all, that it could only be done by opening the biddings by the offer of a substantial advance upon the price reported; that this practice of the English chancery courts should be followed here in cases like this; and that the exceptions to the commissioner’s report in this case for this reason should be disregarded. This objection I think is not well taken. The commissioner is the officer of the court, and acts under its supervision. His errors, when brought to the notice of the court, or appearing on the face of his proceedings, may be corrected. Such has hitherto been the practice in Virginia without question as to its propriety; its convenience and *643justice are manifest, and it should not be disturbed. In Fairfax v. Muse's ex'ors, above cited, the Chancery court, in a summary way, revised the action of its commissioners, and confirmed it; and this court upon appeal affirmed the decision of the Chancery court. I am of opinion to affirm the decree. The other judges concurred in the opinion of Samuels, J. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481612/	Lee, J. The question in these cases is whether in an action under our statute against the representative of one who was jointly bound in an obligation with another who survives, and upon an issue to the merits going to the validity of the obligation and the right of the plaintiff to recover upon it, the surviving obligor is a competent witness for the defendant. Isbell was the principal debtor and Brown, and Dunn whose testimony was offered, were jointly bound with him as sureties. In the case first named, then, that of Johnson v. Brown's adm'r, the witness Dunn has a direct and immediate interest to defeat the recovery against Brown's estate, because by so doing he prevents any demand against himself on the part of Brown's estate 647for contribution of his share of the amount recovered: and if this interest be not released or in some way overcome, he would upon general principles be clearly incompetent. Moreover, if he were in any way relieved from the debt and interest, still he would be liable to contribution for the costs, because the statute gives contribution for the party’s share of the whole amount for which the judgment or decree is rendered, which of course includes the costs. Code of Ya. ch. 146, § 8, p. 58S. And such a liability would render the witness incompetent. Hall v. Cecil, 6 Bing. R. 181; Jones v. Raine, 4 Rand. 386. That the statute gives the remedy only in case the principal be insolvent will not vary the case. By procuring a verdict and judgment for the cosurety, the witness puts an end to all question upon this subject, and that verdict and judgment will be evidence for or against him in any proceeding of the cosurety for contribution. But it is said the interest of the witness is greater against the cosurety than in his favor because by procuring a verdict and judgment for him, he makes himself liable for the whole amount of the joint obligation, whilst the effect of a verdict and judgment against him would be to subject him to contribution for a moiety, only. This might be so, if the liability in the former case were as immediate and direct as that in the latter. But it is not so. The liability in the former case arises out of the party’s executing the joint obligation and the relation in which he stands to the obligee, whereas in the latter case the liability to contribution grows out of the judgment or decree against the cosurety itself by the terms of the statute. And to counterbalance or outweigh an interest in the witness in one way by an equal or greater in the opposite, the latter must be also direct and immediate. For where the one is direct and the other contingent, the former must prevail. Gooda-cre v. 648Breame, Peake’s N. P. Cases 232; Hall v. Cecil, 6 Bing. 181, (19 Eng. C. L. R. 47.) Now the interest depending upon the liability of the witness to be sued for the whole, if the action failed as to his cosurety is an uncertain and contingent interest and not immediate and direct. As said by the judges in Slegg v. Phillips, 4 Adolph. & El. 852, (31 Eng. C. L. R. 203,) the recovery might depend on many contingencies ; and the witness comes to prove the note a nullity, a defense which might be equally available for himself; and thus as said by Lord Denman, G. J. “ it is not in the defendant’s mouth to say” that the witness would be benefited by the recovery against the defendant. Under the English practice for want of a statute making the representative of one who was jointly bound with another liable to an action at law, the precise question in these cases could not occur, as the remedy at law lies only against the survivor. But a very similar question has occurred in cases where the parties were bound jointly and severally, and also in cases of partners where one has been sued without the other being joined; and it has been held in such cases that a party thus bound jointly or jointly and severally, with the defendant, was not a competent witness in his behalf. Thus in Russell v. Blake, 2 Mann. & Grang. 374, (40 Eng. C. L. R. 418,) which was an action against one of the makers of a joint and several promissory note, another of the makers was offered as a witness for the defendant; and it was admitted both by the counsel and the court that he would be incompetent except for the act 3 & 4 W. 4, ch. 42, which however it was held did remove the objection to his competency. In a previous case against one of the makers of such note the same question had been made and had been decided against the competency of the witness who was another of the makers, without re649ference to the statute of W. 4, although it had passed iu the year previous to the trial: but it seems not to have been adverted to either at the bar or by tlie court. Slegg v. Phillips, 4 Adolph. & Ellis 852, (31 Eng. C. L. R. 203.) So in cases of partners, one who is proved or admitted to be a partner of the defendant but who has not been sued, cannot be examined as a witness on the part of the defendant. Goodacre v. Breame, Peake’s N. P. Cases 232; Young v. Bairner, 1 Esp. R. 103; Cheyne v. Koops, 4 Esp. R. 110; Hall v. Cecil, 6 Bing. R. 181, (19 Eng. C. L. R. 47.) So in an action against the acceptor of a bill drawn for the accommodation of the drawer, held the drawer was not a competent witness for the defendant. Jones v. Brooke, 4 Taunt. R. 464. In these, cases the witness was rejected because of the interest which he was supposed to have by reason of his liability over, and such liability for costs only was deemed sufficient to exclude him. And in Slegg v. Phillips, the same argument was pressed that was made here, that the witness had a greater interest to procure a verdict and judgment against the defendant than one in his favor; but that interest was held to be uncertain and contingent and not to counterbalance the direct interest to avoid contribution. In this view, therefore, according to the authorities, I think Dmn was not a competent witness for the defendant in the case of Johnson, v. Brown's adm'r: and as to the case of Johnson v. Isbell's ex'or, I think it was a sufficient reason for rejecting his deposition that it was not taken in that case but in the other; and that Johnson had the opportunity to cross-examine the witness when it was taken does not remove the objection. For it could not have been used by Johnson against Isbell's ex'or, and therefore for want of mutuality could not be used by the latter against the former: as a man who cannot be prejudiced by a deposition, 650or proceeding in a suit shall never receive any advantage from it. Gilb. Ev. 55 ; 1 Stark. (Phil. ed. 1830,) p. 264; Hard. 472 ; Paynes v. Coles, 1 Munf. 373, 394; Chapmans v. Chapman, Id. 393, 403. But there is another and broader ground, common to both cases, upon which the objection to the testimony may be rested: and this is that the witness Dunn by procuring a verdict and judgment for the defendant was in effect protecting himself against a suit for the same cause of action. For the obligation of these parties having been in its inception, joint, to enable the plaintiff to recover there must be a continuing subsisting liability on the part of the joint obligors and the representatives of those who were dead. For wherever several are bound jointly, if the right of actio,n be gone or suspended as to any one for a cause not personal to him (as in case of his infancy, or bankruptcy or death,) the joint liability being at an end, the others may avail themselves of this suspension or discharge whether produced by the act of the party or by operation of law at the instance and by the act of the creditor. Thus in a case in which judgment had been recovered against two persons as partners, and suit was subsequently brought on the same cause against them and two others as after discovered partners, held that the joint contract of all was merged in the judgment. Robertson v. Smith, 18 John. R. 459. So a judgment on a promissory note against one, was held to bar a subsequent action against him and another alleged to be a dormant partner. Ward v. Johnson, 13 Mass. R. 148. And the same doctrine is asserted in the cases of Smith v. Blade, 9 Serg. & Rawle 142, and Willings v. Consequa, 1 Pet. C. C. R. 301. The case of Sheehy v. Mandeville, 6 Cranch’s R. 253, which would seem to countenance a contrary doctrine has yet not been deemed an authority controlling these cases. See the remarks of Judge Stanard in Ward v. Motter, 2 651Rob. R. 536, 566. So a judgment against one joint trespasser is a bar to an action against the others. Wilkes v. Jackson, 2 Hen. & Munf. 355. So where the creditor takes the specialty of one partner for the debt, held that the action against an after discovered dormant partner was extinguished by the specialty. Ward v. Motter, 2 Rob. R. 536. To a similar effect is Pudsey's Case, cited 2 Leon. 110, and Tom v. Goodrich, 2 John. R. 213. And if a verdict and judgment for the plaintiff against one of several who are jointly bound may be admitted in evidence in an action against another as a bar, it would seem to be a necessary corollary (if the deduction be not a fortiori) that a verdict and judgment against the plaintiff in the former action upon an issue going to the merits and ascertaining that the plaintiff never had any cause of action against that defendant, would be admissible as a bar to a subsequent action against another so jointly bound. For the joint obligation would clearly be at an end as to the former, and therefore as we have seen, as to all the others. See opinion of Washington, J. in Willings v. Consequa, 1 Pet. C. C. R. 301. That this would be so where all the parties jointly bound are in life will not perhaps be questioned, and I think our statute making the representative of a deceased party liable to an action at law will not change the rule. The act it is true provides that such representative may be charged in the same manner as if those jointly bound had been bound severally as well as jointly. This was however for the purpose of the remedy merely because the action against the representative must be a several action as the judgment is de bonis &c.; but it does not convert the obligation into a joint and several one for other purposes. If three or more be jointly bound and one die, the action against the survivors must be against-all. If one only be sued he may plead the nonjoinder of the other 652survivors or take advantage of the variance; and the principle which holds all who were bound by joint obligation discharged when the joint contract is put an end to as to any one by some matter not personal to him still has its effect. The object of the statute is to save the necessity of a resort to a suit in equity, but not to take away from any party any legal defense which he might otherwise make to the action excepting from the representative of the deceased party the legal discharge upon his death leaving others jointly bound still surviving. As to the supposed release which is relied on, I think it only necessary to say, that if it was a good release, it would not meet the objection of the witness’s liability to contribution: but in point of fact, it is no release nor could it be pleaded as such by Dunn himself in bar of an action against him. To be available as such, the release must be express and not merely a constructive release. 7 Bac. Abr. (Bouv. ed.) “ Obligations” D, p. 254. This was a mere covenant on the part of Johnson, that at a future period after j udgment should have been recovered against all the parties, he would relieve Dunn from the payment of the same, thus expressly negativing the idea of any bar to an action even against Dunn. On the whole I think the court did not err in excluding the evidence in- either case and am of opinion to affirm the judgments. The other judges concurred in the opinion of Lee, J. Judgments affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481614/	Allen, P. Prior to the Code of 1849, summary-remedies were given by various statutes for the re659eovery of claims due to the commonwealth, and for many claims due to individuals by motion on ten days’ notice. The revisors seeing that these proceedings had worked well, proposed to extend the remedy by motion on notice to all cases in which a person was entitled to recover money by action on contract. The motive for such extension was to simplify and shorten pleadings and other proceedings. To obviate the objection that judgments for debts generally, should not be rendered so promptly, as in those cases wherein by the existing laws judgments were allowed by motion, they suggested that the notice of a motion for a judgment for such debts should be longer, and that as it required two or three months to get an action on the docket, two or three months’ notice of such a motion could be required. In accordance with these views they reported a section allowing such motions. The plan recommended underwent some modifications in the legislature, and as modified is found in the Code, ch. 167, § 5, p. 640, to be taken in connection with some other provisions of the Code bearing upon the subject and necessary to be looked to for the purpose of ascertaining the intention of the legislature. The section referred to allows “ any person entitled to recover money by action on any contract, by motion before any court which would have jurisdiction in an action otherwise than under the 2d section of the 169th chapter, p. 641 of the Code, to obtain judgment for such money after sixty days’ notice, which notice shall be returned to the clerk’s office of such court forty days before the motion is heard. A motion under this section which is docketed under the 1st section of chapter 177, p. 670, shall not be discontinued by reason of no order of continuance being entered in it from one day to another, or from term to term.” The 1st section of chapter 177 directs that before every term of the General court or a Circuit court and every 660quarterly term of a County and Corporation court, the clerk shall make out a docket of the following eases pending, to wit: First, cases of the commonwealth; and secondly, motions and actions in the order in ■ which the notices of the motions were filed, or in which the proceedings at rules in the actions were terminated, docketing together as new cases, those not on the docket at the previous term. He shall under the control of the court set the cases to certain days, and the docket shall be called, and the cases on it tried or disposed of for the term in that order. The provision as to making out the docket is substantially the same as that contained in the 1 Rev. Code 1S19, p. 507, § 76, varied so far as was nécessary to provide for motions. The law then as now provided that the docket was to be made out before the term, and it followed that no cause could be put on the docket in which there was an office judgment, unless such office judgment had been obtained before the term; and where the office judgment was obtained on the same day the term commenced, the cause could not be put upon the docket at that term. White v. Archer, 2 Va. Cas. 201; Green v. Skipwith, 1 Rand. 460. In regard to cases of that description, where there is an office judgment, it was not pretended in argument that the case could be placed on the docket unless the office judgment was obtained before the term. This results as well from the provision requiring the docket to be made out before the term as from the law giving the defendant until the next term after the office judgment was confirmed, to set it aside. The provision requiring the docket to be made out before the tenn applies as well to motions as to actions: the phraseology used is the same as to both; they are treated as cases pending, because they have been matured for their position on the trial docket before the term, by the service and filing of 661the notice in the time prescribed, where the proceeding is by motion; by the confirmation of the eonditional judgment at rules where the proceeding is action at the common law. The object had in view was, as suggested by the revisors, to simplify and shorten pleadings and other proceedings; and this was to be effected by substituting the notice for the writ and pleading in the common law action. It was not the intention of the legislature, as it is disclosed by the various provisions recited above, to empower parties to mature cases during the continuance of the term. The revisors had adverted to the time required, two or three months, to get an action on the docket; and referred it to the legislature to determine how long the defendant should have notice of a motion, as I understand their suggestion, to accomplish the same object, of getting the motion on the docket. The legislature, from analogy to the time usually required to get an action on the docket, fixed the time of the notice at sixty days, to be filed forty days before the motion is heard. By this construction the symmetry of the system is preserved. The law is general; applicable to all the circuit courts and the quarterly terms of the county and corporation courts. The circuit courts are held semiannually, and where the proceeding is by action, it must be matured for a place on the docket before the term; and it is apparent the legislature did not contemplate that when the proceeding was by notice, it could be commenced and matured during the term. The circumstance could occur only in regard to the courts of the city of Richmond; and there is nothing indicating an intention to afford suitors in that court an advantage over those in the other circuit courts. That it was not intended to place notices of this kind on the footing of the usual ten days’ notice, is manifest from the fact that the notice was to be given sixty 662days and filed forty days; that it was to be docketed before the term, and that in the county and corporation courts, the notices provided for by § 5 of ch. 167, and actions, are made cognizable only at the quarterly terms. Code, ch. 157, § 4, p. 610. In the last particular the section reported by the revisors gave jurisdiction to the county and corporation courts at the monthly terms. It was changed in the legislature; and from the terms used in the law referring to this new proceeding for the recovery of debts generally, then first provided for, and making it and actions at law cognizable only at a quarterly term, the intention is manifested to maintain the agreement between these two modes of proceeding as to the time of docketing and trial. Great inconvenience would follow from any other construction. The clerk before the term is to make out the docket of the cases pending, and set them to certain days, and the cases are to be tried or disposed of for the term in that order, unless for good cause the court should take up any out of term. A certain time is allowed before the term to get the case on the docket that the defendant may prepare for a trial; and it is set to a certain day on the docket, that he may know when to summon his witnesses. But if a case may be matured during the term, there is no provision for placing it on the docket; and there would be no propriety in hearing it on the day named, so as to interrupt the regular calling of the docket, and so to give a preference over cases entitled from their place on the docket to a priority. The case would have to be called on the day named, and continued to some day at the end of the days set, or the defendant would be required with his witnesses to be constantly in court to be ready whenever at some leisure iuteryal the case should be called up for trial. The legislature, I think, never contemplated such a proceeding; and an examination of the various pro*663visions contained in the Code has satisfied me that the only object was to simplify the pleadings; but that a proceeding of the kind authorized by ^ 5 of ch. 167, must be in a condition to be docketed before the term to authorize the court at that term to give judgment. When so docketed it is a case in court; and by the last clause of the section shall not be discontinued by reason of no order of continuance being entered in it from one day to another or from term to term. The object of this clause, like the other provisions of these laws, is to keep up the analogy between the two modes of proceeding. The docketing supersedes the necessity of calling and continuing the motion, and it remains like actions at law, a case in court to be called, and disposed of in the regular calling of the docket. I think the court erred in overruling the motion of the defendant to remove the motion from the docket, as set forth in the first bill of exceptions taken by the defendant, and in proceeding to hear and render judgment on said motion, being founded on a notice bearing date on a day after the commencement of the term at which the motion was heard and judgment was rendered. The judgment should be reversed, and the cause remanded for the notice to be docketed and cause proceeded in. The other judges concurred in the opinion of Allen, P. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481616/	Samuels, J. This case grows out of a contest 675about the succession to the estate of Jesse Ballow deceased; the appellees, who were complainants and are of the next of kin, allege an intestacy; the appellants, defendants below, claim under an alleged will. It is averred in the original bill, that the paper called the will of Jesse Ballow, had been propounded for probat, in the County court of Cumberland county, by William T. Ballow and Jane Booker, two of the legatees named therein, and that probat thereof was refused by that court: That the will was at a subsequent day again offered for probat in the Circuit superior court of law and chancery for Cumberland county, by which court the paper was admitted to probat; and that the property of the decedent had been sold by the persons named as executors in the will. This bill prays for an issue devisavit vel non, and for general relief. The amended bill avers substantially the same facts with more minuteness of detail, and prays for an account of the.estate, and for general relief; waiving every thing in the original bill inconsistent with the amended bill. It may be conceded that a bill praying an issue devisavit vel non ought properly to ask for nothing else; yet if it should go into a statement of facts which show that the issue is not necessary, but that other relief would be appropriate, I am of opinion the court should not dismiss the bill for multifariousness, but should retain it for a hearing upon the merits. In this case, upon the facts stated in the original bill, and repeated in the amended bill, under the prayer for general relief in each, the Circuit court was warranted in hearing the case on its merits. It appears in the record of the proceedings of the County court in the matter of Jesse Ballow’s will, which is made part of this record, that the will was propounded for probat by parties claiming interest under it; that a contest was had about its validity; 676and that the court rejected it because of Jesse Ballow’s incompetency to make a will. From this sentence and judgment no appeal was taken, nor any writ of error or supersedeas sued out. At a later day the same paper -was propounded for probat by the parties claiming interest under it in the Circuit superior court of law and chancery for Cumberland county, by which court the paper was admitted to probat. The record of the Circuit court, (made part of this record) shows that the proceeding was had therein in the exercise of its original jurisdiction, as distinct from its appellate jurisdiction. It moreover appears that the Circuit court acted with full knowledge of the previous sentence and judgment of the County court. Thus the question is presented, whether the sentence of a court of competent jurisdiction rejecting a will, is conclusive upon all courts of concurrent original j urisdiction ; and whether a court of concurrent original jurisdiction, which has also appellate jurisdiction, may, in the exercise of original as distinct from appellate jurisdiction, annul such sentence, not by reversing it, but by pronouncing an inconsistent sentence ? In considering these questions, I shall regard the will as disposing of both real and personal estate; not deeming it material to enquire whether the decedent owned any real estate, and if he did, whether the paper propounded, if good as a will, disposed of such estate. .At an early period of the law there was a wide difference in the mode of proving a will of real estate and one of personal estate. Whenever the existence of the former was drawn in question, it was necessary to prove it. There was no tribunal with authority to stamp it in advance with verity; and it was therefore necessary to prove it according to the law of evi677dence as often as occasion required; nor did such. proof have any effect beyond the particular case in which it was heard. The law in regard to a will personal estate was widely different. Such will was governed by the ecclesiastical law; and that law provided tribunals which had exclusive cognizance of all questions touching the factum of such will. A sen-fence of one of these tribunals admitting it to probat, was conclusive on all parties and others, and upon all courts, until revoked or reversed according to the practice of those courts.- So a sentence declaring the nullity of an alleged will was in like manner conclusive until revoked or reversed according to the same practice. See 4 Burns’ Ecclesiastical Law 176, Probat. It would be difficult if not impracticable to ascertain when and by what authority jurisdiction in the matter of probat of wills of either kind was first conferred on the temporal courts in Virginia. We may suppose, however, that it was first done by the colonial council acting under authority of royal charters and instructions from the crown. Whether jurisdiction over both classes of wills was conferred at the same time or at different times, it would be useless to enquire, even if enquiry would be likely to lead to any result. At an early day we find that the General court at Janies City had jurisdiction over the probat of wills of both classes; and soon thereafter, we find this jurisdiction conferred also upon the county courts. See Hen. Stat. at Large 302, act 9 ; 2 Id. p. 359, act 11; p. 391, act 8 ; 4 Id. p. 12, chap. 2 ; 5 Id. p. 231, chap. 6; p. 454, chap, 5» As the effect of a sentence rendered by a court of probat of wills of personalty, was well defined and well known, it is but reasonable to infer that when wills of realty were required to undergo the same 678ordeal, they should in all things stand upon the same footing as wills of personalty, except insofar as otherwise provided. That this result would have followed, the general assembly obviously thought, and therefore provided the means of securing to the heir at law a more deliberate and careful trial before his inheritance should be taken from him by a will. See statutes above cited. There is, however, nowhei’e to be found in the early legislation on the subject, any provision whereby a devisee or legatee might again pi’opound a will which had been once rejected by a court of probat. Possibly the general assembly may have supposed that the powers of a court of probat as originally constituted, would extend over the new subject brought under its jurisdiction, and that a sentence of nullity might be revoked by the court which pronounced it. Or they may have intended to give the heir at law and next of kin the benefit of a sentence against the propounders, who, in their own time, after such preparation as they thought proper to make, offered a will for probat which they could not sustain. It is useless in this case to consider whether a repropounding might have been had before the County court of Cumberland, as it was not attempted. This court has decided, very frequently, that if a court of competent j urisdiction shall admit a will to probat as a Will of lands, which appears upon its face, or upon the record of the probat, not to have been duly executed as a will of lands, still the sentence is binding upon all concenied in interest, and upon all courts as long as the sentence remains in force. That such is the law is regarded as well settled. See Bagwell v. Elliott & wife, 2 Rand. 190, Judge Green’s opinion ; West v. West's ex'ors, 3 Rand. 373, 386; Nalle v. Fenwick, 4 Rand. 585; Vaughan v. Green's lessee, 1 Leigh 287 ; Street's heirs v. Street, 11 Leigh 498 ; Par679ker's ex'ors v. Brown's ex'ors et als. 6 Gratt. 554; Robinsons v. Allen and others, 11 Gratt. 785. It seems to be equally true that the sentence of such court rejecting a will, even if duly executed, must be conclusive until reversed. To hold otherwise would be to hold that the conclusiveness of a judgment is not to be determined by looking to the jurisdiction of the court in which it was rendered, but by looking to the fact whether the sentence is for or against the will; if for the will, it is binding; if against it, then it is open for enquiry. This, however, is not admissible in regard to any judgment, and least of all in regard to judgments in matters of probat. We have the authority of most respectable legal opinions, in addition to the judicial sanction of this court, for maintaining that the conclusiveness of a sentence in a matter of probat, is not limited to a case in which the will is admitted to probat, but that it extends also to cases in which wills have been rejected. See 3 Lom'. Dig. p. 86, new ed. In Bagwell v. Elliott, 2 Rand. 190, 200, Judge Green says, “if a will offered for probat was contested and rejected, this might be used thereafter as the decision of a competent judicial tribunal, and would condemn it forever.” In Coalter v. Bryan, 1 Gratt. 18, 76, 77, 78, Judge Baldwin expresses the opinion that the sentence of a probat court whilst in force is binding upon all persons and courts, whether the will be of realty, or personalty, or both, and this whether the will be admitted or rejected. The case of Wills v. Spraggins, 3 Gratt. 555, cannot be regarded as having the authority of a binding precedent. There were four judges upon the bench, one of whom dissented. Another put his concurrence in the judgment upon the ground that looking into the record of the first judgment he was of opinion it was rightly rendered, and therefore the judgment over680ruling the attempt to obtain a different decision should be affirmed. Another concurred in the results of the opinion delivered. Thus, the reasons for the opinion can be regarded as those of only the judge who delivered it. Yet we must give to those reasons, so far as applicable to the facts of this case, their just weight, and, in my judgment, they show conclusively that the sentence of the probat court rejecting the will before us, being not reversed, is binding upon all persons and upon all courts in which the question comes up collaterally. The case of Schultz v. Schultz, 10 Gratt. 358, decides that the sentence of a probat court, when acting within its jurisdiction, rejecting a will when offered for probat, is conclusive against the exercise of original probat jurisdiction in the same court, and it would seem a fortiori against such jurisdiction in another court. It was said in the argument here, that this court must have regarded the second sentence in Schultz v. Schultz as having some effect, otherwise it would not have reversed it;. that it would, have been absurd to reverse a mere nullity. The answer to this argument is obvious; the proper parties were before the court; the subject within its jurisdiction : the court could therefore do nothing but affirm or reverse. The court below decided that the unreversed sentence rejecting the will of 1S28 was not binding, and overruled the defense founded thereon; it further decided to take cognizance under its original jurisdiction of the matter passed on by the first sentence, and rendered a different sentence, the first not having been reversed. It was the duty of this court to correct all errors in the record, and to pronounce such sentence as the court below should have pronounced. In the judgment of this court it was error to disregard the sentence of rejection then in full force; to overrule the 681defense of the contestant founded on that sentence; to take cognizance of the case as it stood; to pronounce an original sentence in a matter over which no probat court could any longer exercise original jurisdiction. To correct these errors it was necessary to reverse the sentence; for if the appeal had been merely dismissed as improvidently allowed as the counsel suggest, the judgment of the court below would have remained untouched. The contestant had shown a valid defense against the last sentence, yet the defense was erroneously overruled, and judgment rendered. It was the right of the appellant to have it removed out of her way at once, and not to have it left as the means of getting up further litigation involving a question as to the comparative force of the conflicting sentences. This case, in my judgment, is a conclusive authority to show that the sentence of a court of probat of competent jurisdiction rejecting a will when propounded for probat is conclusive whilst it remains in force. The two judges who dissented' in the case did not differ from the majority in regard to the general principle; but upon the ground that in the particular case the reasons of the judge below — placing his judgment upon the want of jurisdiction and not upon the merits, should be looked to; and that therefore the rejection was not final and peremptory. The cases in this court in regard to grants of administration, although not bearing directly upon the question here, yet seem to illustrate the general principle that the judgment of a court of general jurisdiction over the subject is conclusive until it is avoided, or expires by its own limitation; and this although the facts of the particular case were not such as to give the court jurisdiction over that case. Fisher v. Bassett, 9 Leigh 119; Burnley’s rep. v. Duke, 2 Rob. R. 102. 682Considerations of public policy require that all questions of succession to property should be authoritatively settled. Courts of probat are therefore organized to pass on such questions when arising under wills; and a judgment by-such court is conclusive whilst it remains in force, and the succession is governed accordingly. A judgment of this nature is classed amongst those which in legal nomenclature-» are called “judgments in rem.” Until reversed, it binds not only the immediate parties to the proceeding in j which it is had, but all other persons, and all courts. 3 Lom. Dig. 86, new ed.; 1 Starkie on Evi. 228; Coalter's ex'or v. Bryan, 1 Gratt. 18; Wills v. Spraggins, 3 Gratt. 555 ; Schultz v. Schultz, 10 Gratt. 358. In my opinion, the Circuit court correctly decided that Jesse Ballow was dead intestate, and that his next of kin were entitled to an account of his estate at the hands of parties claiming under color of a will, who had taken possession of the estate. I am of opinion to affirm the decree. The other judges concurred in the opinion of Samuels, J. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481617/	Daniel, J. The first assignment of error raises the question as to the validity of the deed of trust of April 6th, 1850, made for the benefit of William McArthur & Co. 691The 20th section of the act of 29th March 1837, concerning limited partnerships, declares that every sale, assignment or transfer of any property or of such partnership made by such partnership, when insolvent or in contemplation of insolvency, or after or in contemplation of the insolvency of any partner, with the intent of giving a preference to any creditor of such partnership or insolvent partner, over other creditors of such partnership, and every judgment confessed, lien created, or security given by such partnership, under the like circumstances, and with the like intent, shall be void as against the creditors of such partnership. Sess. Acts 1836-7, p. 41. And the questions which we have to consider under this section are, Was the firm of Penman, Thompson & Penman insolvent at the date of the execution of the deed? Or did they make the deed in contemplation of insolvency ? And in either event, was the deed made with an intent to give to McArthur & Co. a preference over other creditors of the partnership ? As preliminary, however, to the examination of the first of these questions, we have to ascertain the sense in which the term “insolvent” has been here used by the legislature. On the part of the appellants it is contended that the legislature were looking to insolvency in the technical sense of the term, or open and notorious inability to pay; and in support of this view we have been referred to the cases of United States v. Hooe, 1 Cranch’s R. 73, and Prince v. Bartlett, 8 Id. 431, in which the Supreme court of the United States have so defined the term in construing certain acts of congress fixing the priority of the United States over other creditors, of its debtors, claiming under conveyances, assignments, &c. made by the latter. On the other hand, the counsel for the appellee contends that the statute is analogous to a bankrupt law; 692and that in construing it we should rather be guided by decisions ascertaining the meaning of the word as employed in such laws; and refers to the case of Bayly v. Schofield, 1 Maule & Selw. 338, and to an anonymous case reported in a note to Moss v. Smith, 1 Camp. Cas. 352. In the former of which the term “insolvency” as used in the bankrupt law of England in respect to a trader, was held to mean that he was not in a situation to make his payments as usual; and it was said that it would not follow that he was not insolvent because he might ultimately have a surplus upon the winding up of his affairs. And in the latter of which Lord Ellenborough held that the “insolvency” mentioned in the statute must mean a general inability in the bankrupt to meet his engagements. I have examined these cases, but I have been unable to perceive that any of them furnish a rule to guide us in the decision of this. No such resemblance is shown between the statute under consideration and the law of congress on the one hand, or the English bankrupt law on the other, on which the decisions referred to were founded, as to justify the supposition that the legislature, in using the term in question, had a reference to the sense given to it in any one of said decisions. Showing however as they do that the word has received various and widely different interpretations, dependent on the character and object of the laws in which it is found, these decisions do serve the purpose of negativing or of tending to negative the conclusion that there is any well ascertained, generally received technical meaning so attached to the word as to require the courts to adopt it rather than its primary meaning, or some other sense to be gathered from the circumstances and connection in which the word is used. In England limited partnerships; of the kind sanctioned by our act of 1837, (unless they have been 693very recently introduced,) are unknown. Hence in the examination of such questions we are without the aid usually derived from a reference to the English reporters. Our act is, I believe, taken from that of New York, which was passed in 1822, and which, it is stated in a recent work on the subject, (Troubat on Limited Partnerships, p. 48,) was borrowed from the Commercial Code of Prance. Such partnerships are now authorized by statutes similar to our own, in most of the states of the Union. But the counsel have not cited, and I have been unable to find, any case in which the precise question before us has been decided. In the Code of 1849, p. 583, the legislature have used the term in its ordinary or primary sense, or have rather put such sense in the place of the term itself, by declaring, in the 10th section of the chapter on partnerships, &c. (which comprises substantially the provisions of the 20th and 21st sections of the act of 1837,) that “no sale, &c. of the property of-any sucli partnership shall be valid if made at a time when it has not sufficient property or effects to pay all its debts, for the purpose of giving a preference to one or more of its creditors over any other creditor.” One of the objects and designs of such provision is to secure in case of the failure of the partnership a fro rata distribution of its property among all its creditors. To declare that open and notorious bankruptcy is the true and only test of insolvency, would, as was argued by the counsel for the appellees, defeat in most cases the design of the law, inasmuch as the desire of a firm in failing circumstances to sustain itself as also to prefer its special friends, would generally result in sales and assignments of most of its property, made to insure those ends, before such bankruptcy would occur. To say on the other hand that the firm shall be held to be insolvent whenever from any cause it may fail to meet its engagements in the 694usual course of business, would seem to be harsh, and might tend greatly to discourage the formation of such partnerships. In a country like ours, where so much of its commercial business and trading enterprise are based on borrowed capital, and where sudden and unexpected expansions and contractions of the currency are matters of frequent occurrence, it may often happen that the most prudent firm, by the unexpected failure of some of its debtors to meet their payments, or other like causes, may find itself unprovided with available means to meet its own bills and notes as they mature, though possessed of assets amply sufficient to satisfy, ultimately, all its debts and liabilities, A law declaring it incompetent in a partnership so situated, to discharge its more pressing engagements by sales or assignments of portions of its property aud credits to certain creditors, to pay or secure their demands, might, and most probably would, often occasion the stoppage and winding up of such concerns at times when the safety of the creditors would demand no such sacrifice. The leading design and policy of the acts of 1887 and 1849 would seem to be essentially the same; and I have been unable to discover any good reason for supposing that the legislature, in declaring in the former, certain assignments made by such partnerships “ when insolvent,” to be void, intended any thing more or less than that which they have plainly manifested in the latter, by the declaration that such assignments shall not be valid “ if made by the partnership at a time when it has not sufficient property or effects to pay all its debts.” Taking the insufficiency of its property to pay its debts to be the true test of the insolvency of the partnership, I do not think that any serious doubt can be entertained as to the’insolvency of the firm in this case at the date of the deed. The commissioner’s 695report (from the consideration doubtless that it was not excepted to) has not been made a part of the transcript of the record, and I have not thought necessary to compile from the pleadings, exhibits and depositions a statement of the precise amount of the indebtedness of the concern. It is sufficient for the purpose in view to observe that the record shows the amount of the debts at the date of the deed to have been little, if any, less than the sum of forty thousand dollars. The sale of the property conveyed was made so soon after the execution of the deed, as, when taken in connection with other circumstances and proofs, to negative the conclusion that there was any very material depreciation in the value of the property between the two events. The sale is shown to have been well attended and fairly conducted. And we have the opinions of witnesses whose capacity, business experience and knowledge of the value of such property, entitle their judgments to the greatest weight, that the property was well sold, and brought its full value. The entire proceeds of the sales are shown to be some twenty-two thousand dollars — a little more than half the aggregate of all the debts. The deed was made at a time when the concern was confessedly greatly embarrassed. It contains a sweeping conveyance of the whole of the partnership property. It is made to secure the large debt of twelve thousand dollars — a debt nearly large enough (as the result has shown) to absorb the entire residue of the proceeds of the property, after discharging prior liens. Most if not all of the items of which the debt was composed, were then due. By the terms of the deed a sale is to be made whenever there shall be a failure to pay any part of the debt due or to become due, and McArthur & Co. shall require a sale to be made. It is said,.it is true, that there was an expectation that McArthur & Co. would make further advances, by the aid of 696which and other means the firm could hope to relieve itself ultimately from its embarrassments, and proceed successfully with its enterprise; and the deed recites the desire and intention of the grantors to provide not only for the payment of the existing debt, but also for any further advances or acceptances which McArthur & Co. might make; and, on providing for the application of the proceeds in the event of a sale, directs the payment to McArthur & Co. of all debts due to them, or for which they are bound, or may be bound when the sale is made. There is, however, I think, no pro'of of any assurance or promise by McArthur & Co. upon which a prudent firm could have reasonably built the expectation of further acceptances or advances by them. In this state of things, it is difficult to suppose that the parties did not contemplate as a probable result the events which speedily ensued the execution of the deed, viz : the stoppage and failure of the concern. I am satisfied that the deed was not only made at a time when there was an insufficiency of property to pay the debts of the firm, but was also made with the expectation of a winding up of the concern, at no remote period; with a deficiency of assets to pay' its engagements ; and so in contemplation of insolvency. The deed, as has been already stated, conveys all the property of the partnership; and it provides for the payment of the debt of McArthur & Co. and for the payment of that debt alone. From these facts, and what has been already established in respect to the character and design of the deed, the further conclusion follows naturally, that the deed was made with the intent to give to McArthur & Co. a preference over other creditors; and that the judge of the Circuit court properly decreed the deed to be void as to them. That the Circuit court also decided correctly in declaring that the judgments confessed by the firm in favor of 697certain of their creditors subsequently to the exeeution of the deed of the 6th April 1860, were also void as to the other creditors, is, I think, equally clear. The twentieth section of the act, as we have seen, embraces in terms “ every judgment confessed” “ under the like circumstances, and with the like intent;” and the judgments in question were not only confessed after the execution of the deed and when the firm was notoriously insolvent, but were confessed under an agreement ascertaining the order in which they should rank in the distribution of the assets. The twenty-second section of the act declares that every special partner who shall violate any provision of the twentieth and twenty-first sections, or who shall concur in or assent to any such violation by the partnership, or by any individual partner, shall be liable as a general partner. The execution of the deed was suggested by McArthur, and he is a party to it. That he ivas at one time liable as a general partner is therefore obvious. The twenty-third section provides that in case of the insolvency or bankruptcy of the partnership, no special partner shall under any circumstances be allowed to claim as a creditor until the claims of all the other creditors of the firm shall be satisfied; and it was contended in the court below that inasmuch as the debt of twelve thousand dollars Avas due to a firm of which McArthur was a partner, such debt could not participate in the distribution of the assets of the concern of Penman, Thompson & Penman. The Circuit court very properly held, I think, that the section did not intend to exclude from such participation debts due to concerns of which the special partner might be a member. A debt due to McArthur & Co. is not a debt due to McArthur individually. The rights of McCrery, the other partner of the concern of McArthur & Co. stand obviously out of and beyond the reach of 698the terms and spirit of the section. Whilst McArthur’s interest as a member of the concern of McArthur & Co. in the ratable proportion of the assets assignable to the debt due that concern, might, when ascertained, be reached by the creditors of the concern of Penman, Thompson & Penman, McCrery’s interest therein, upon every principle of equity, occupied the same common ground with debts due to any other creditors having-no connection with McArthur. Upon the general principles governing the jurisdiction of courts of equity, and upon the reasoning of the chancellor in Innes v. Lansing, 7 Paige’s R. 583, I think the jurisdiction taken by the Circuit court in this case is clear. We have had no controversy here, and the record discloses no evidence of any in the court below, between those judgment creditors, if any, who may have obtained their judgments in invitum, and those who obtained theirs by confession. Theje being thus no question in the case in respect to legal priorities, except such as have been shown to be void as to creditors, I do not perceive that there was any difficulty in the way of the court’s proceeding, as it has done, to decree a ratable distribution of the assets of the firm among all the creditors. And as the court had jurisdiction of the case for the purpose of protecting and distributing the assets, it had, in my opinion, a right to go on and give complete relief, and, to that end, to render such personal decrees as the rights and liabilities of the parties required. And if McArthur still remained liable as a general partner, I can see no objection to a decree against him to enforce that liability. The case of Haggerty v. Taylor, 10 Paige’s R. 261, cited by the counsel of the appellant, in his written note, does not seem to me to conflict with this view; as, in that case, it was held that the complainants had shown no right to any share of the assets which they were seeking to sub699ject. In that case the complainants were seeking to participate in the funds of a limited partnership which was to terminate at a particular period, on account a debt contracted after such period with the general partners, who, without complying with the requisites of the act in respect to notice of a renewal or continuance of the partnership, had undertaken to con-, tinue the business. The court held that the creditors of the firm, previous to the period fixed for the expiration of the partnership, were entitled to a preference, and should be paid ratably out of the property which then belonged to the limited partnership, and refused to appoint a receiver at the instance of the complainants. And as to any personal responsibility which the complainants had a right to assert against the defendants on account of transactions subsequent to the termination of the original partnership, they were remitted to their remedy at law. The distinction between the two cases is obvious. In Haggerty v. Taylor, the only relief to which the plaintiffs were entitled, if any, was one of a legal nature; whilst in the one before us the plaintiffs succeeded in establishing a right to the jurisdiction of the court on equitable grounds: And having done so the question for the court was whether it should go on and end the controversy, or put tlie parties to the expense and delay of numerous suits at law to fix a personal responsibility growing out of the same transaction, and to be established by the very proofs on which was founded the equitable relief sought by the plaintiffs and given by the court. A doubt, however, has been suggested whether the judgment creditors, by proceeding at law against the other partners alone, have not thereby lost the right which they at one time had (as has been shown) to hold McArthur liable as a general partner. In order to solve this doubt, a further reference to the pro700visions of the act is necessary. The second section declares that such [limited] partnerships may consist one or more persons who shall be called the genera\| par£nerg) an(j wj10 ]je jointly and severally ^ound as partners now are by law, and of one or more persons who shall contribute in actual cash payments a specific sum or capital to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the fund so contributed by them. By the third section the general partners only are authorized to transact business and sign for the partnership, and to bind the same. In the fourteenth section it is declared that suits in relation to the business of the partnership may be brought and conducted by and against the general partners in the same manner as if there were no special partners; and the special partners shall be liable to and suable by the firm for debts contracted with it in the same manner as if they were not partners. The eighth section, however, it will be seen, after providing that no such partnership shall be deemed to have been formed until the certificate and affidavit in respect to the nature of the business of the firm, &c. réquired in previous .sections, shall have been made and recorded, declares that, if any false statement be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as - general partners. And we have already seen in case of a concurrence by the special partner in the violation of the twentieth and twenty-first sections by the execution of the assignments, &c. therein prohibited, he is made liable as a general partner by the twenty-third section. Without stopping to note the many points in which the relation borne by the members of such an association towards their associates and the public varies from that which exists in an ordinary partnership, it is suf701ficient for our purpose to observe some of the more important differences which distinguish the two kinds of partnership in respect to the remedies given to creditors. In the case of an ordinary partnership, a creditor is required to sue all the members of the firm in respect to any claim against the concern. And if he omits any one of the members, he may be met and defeated of his action by a plea in abatement. In the case of a limited partnership, he is expressly authorized to proceed against the general partners alone, in relation to any business of the partnership, in the same manner as if there was no special partner. And it is only when it is sought to make the latter liable personally on account of some violation of the statute which renders him liable as a general partner, that the creditor has any right to proceed against him. In all cases where the creditor takes a judgment against one or more of the members of a general partnership, omitting others, he loses thereby all recourse at law against the latter, even though they be dormant partners, and unknown at the time to the creditor. The joint contract is held to be merged in the judgment as to the members against whom it is obtained; and being so merged, is equally barred as to the others, since no joint suit can be maintained upon it. Collyer on Part. 659, and cases cited in notes; Ward v. Motter, 2 Rob. R. 536. On the other hand, it is obvious that there may be cases growing out of limited partnerships, in which it would be absurd to hold that a judgment against the general partners could be pleaded as a merger of the liability of the special partner. For it may often happen that the general partners may violate the provisions of the twentieth section by the execution of conveyances and assignments therein prohibited after judgments obtained against them. In a suit brought 702to make the special partner liable for his concurrence in such violation, the repugnancy to all legal reasoning, in allowing a previous judgment against the general partners to merge and bar the liability of the special partner, is too manifest to require comment. So again, a falsehood in the certificate of partnership in respect to the capital contributed by the special partner, may never come to light till after a creditor proceeding under the fourteenth section has obtained his judgment against the general partners. To declare that the judgment should bar a suit against the special partner, would not only be obviously unjust but in conflict with the terms of the eighth section, declaring all the persons interested in the partnership liable in such case as general partners. Yet in the case of a general partnership, (as has been already stated,) consisting of ostensible and dormant partners, a judgment against the ostensible partners completely bars all recovery at law against the dormant partners, though unknown to the plaintiff until after his judgment was obtained. I deem it unnecessary to pursue the contrast further, as the points of variance already exhibited are sufficient to show that the technical rules, which so often embarrass and sometimes defeat the creditor in prosecuting at law his demands against the members of general partnerships, especially in cases where there are dormant partners, can have little application in regulating the remedies given by the statute against the members of a limited partnership. In a case like the one before us, where the act, by the assent to which by the special partner, his liability as a general partner was incurred before the creditors had obtained their judgments, I do not doubt that the creditors might have united all of the partners in their several suits. The general partners were bound as such as well by their contracts as by their violation of the 703statute; and as the special partner by his concurrence in the execution of the prohibited conveyance, had also made himself liable as a general partner, no jection could, have been made to joint actions against all the partners. But it by no means follows that the creditors were compelled to bring such actions. In a suit by a creditor against the general partners alone on the contract, it would have been an anomalous plea in abatement by them, wherein they should have alleged that since the execution of the contract they had united in an illegal effort with another, who was not made a party to the suit, to deprive the creditor of the benefit of his contract by the assignment of their effects to pay exclusively the debt due to another creditor. It is obvious that the remedy upon the contract cannot be merged in the cause of action arising out of the wrongful act of the partners. And it seems to me that the question, -whether in such case the creditor, by instituting his action against the general partners alone, and upon the contract, had elected to waive his remedy against the special partner for the violation of the act, would turn not upon the doctrine of technical merger, but upon the proofs in respect to his real intentions. The only case in which the analogy to be drawn from the law in respect to the remedies against general partnerships would seem to apply, would be when the creditor should, by the frame of his pleadings, show that he was proceeding on a cause of action arising out of the violation of the statute, and for which all the partners were liable; and should yet take a judgment against the general partners alone. If, however, there be doubt as to whether if sued at law McArthur might not have pleaded the judgments against the general partners as a merger of the demand against him, it requires, I think, no extension of the principles recognized by this court in the cases of 704Sale v. Dishman’s ex’or, 3 Leigh 548, Galt’s ex’or v. Calland’s ex’or, 7 Leigh 594; Weaver v. Tapscott, 9 Leigh 424, and Niday v. Harvey & Co. 9 Gratt. 454, to hold that-such plea cannot avail in a court of equity. And the consideration that the creditors might possibly have encountered embarrassment and difficulty in the pursuit of the demand at law, serves but to furnish an additional argument why the .Circuit court, instead of exposing them to such hazards, should have proceeded, as it has done, to give complete relief. Having disposed of those questions, which from their novelty and difficulty seemed to me to call for more especial notice and remark by the court, the length to which I have found it necessary to extend my opinion in doing so, induces me to forbear any further observation in respect to the other questions raised in the pleadings, than that, after having given to the whole record a careful examination, I have been unable to discover any error in the decrees of the court. I think the decree should be affirmed. The other judges concurred in the opinion of Daniel, J. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481619/	Daniel, J. The action by which a father recovers for the seduction of his daughter is founded not on the relation of parent and child, but on the relation 728actual or constructive of master and servant. The loss of service which he has sustained or is supposed to have sustained in consequence of the debauchment of his servant, is the ground on which his legal right to damages rests at the common law; though- when this prerequisite to the maintenance of the suit is established, the damages which he is allowed to recover are not measured by the value of the services which have been lost or are supposed to have been lost to him, but find their standard rather in the magnitude of the wrong which has been done to his feelings as a father. Where the daughter is a minor at the time of the seduction, the rules which have been adopted by the courts in this country in respect to the nature of the facts and circumstances necessary to prove the relation of master and servant, and the loss of .service to the father, vary in some important particulars from those which have hitherto prevailed in England. Where, however, the daughter is above the age of twenty-one years, there is no difference between the English and American cases as to the necessity of the father’s showing generally, in order to maintain his suit, that the daughter was living with him or was in his service at the time of the seduction; though-any acts of service, however slight, have been held sufficient. Nickles v. Stryker, 10 Johns. R. 115; 2 Rob. Pr. 559, (new ed.); Postlethwaite v. Burke, 3 Burr. R. 1878; Bennett v. Allcott, 2 T. R. 166. An exception to this rule was however allowed in the case of Speight v. Oliviera, 3 Eng. C. L. R. 445, where the defendant, under the false pretense of hiring the plaintiff’s daughter as a servant, induced her to leave her father’s house where she was rendering service in domestic matters, and afterwards seduced her whilst she was remaining in his the defendant’s house. In that case, though the daughter was twenty-three years of age, the father 729was allowed to recover upon the ground that the absence of the daughter from her father’s house and the interruption in her services were occasioned by the fraud and contrivance of the seducer. In the case before us it appears from the evidence, as set out in the bill of exceptions, that the daughter of the defendant in error, at the time of the alleged seduction, was between twenty-three and twenty-four years old ; that her general home was at the house of her father, but that she sometimes took service in the houses of families in the neighborhood, returning, at the end of the terms of such service, to her father’s house; and that she was, at the time of the said alleged seduction, residing not with her father, but in the neighborhood, in the house of the plaintiff in error, under a contract, made by her with him, after she had attained the age of twenty-one years 5 by the terms of which contract she was to render him service in his house for the space of twelve months for a price to be paid her for her use ; and that before her pregnancy became known to others, and before the end of the year for which she had contracted to live with the plaintiff in error, she left his house and service, and after living a short time at the house of another person, returned to the house of her father, where she. was delivered of a child before the institution of the suit. If we apply to this statement of the case the rules of the common law already mentioned, it is obvious that there is no ground on which to rest the refusal of the Circuit court to instruct the jury that the action could not be maintained. The daughter was of full age, living away from her father’s house, under a contract made by her and for her own exclusive benefit, after she had attained her majority, when she had a right to make her own contracts. There is an absence of any evidence going to 730show that improper means were used to induce her to enter into the contract, or that the plaintiff in error • entertained any improper designs towards her when he engaged her services. It does not even appear that she was in the father’s service, or that she owed him any service, or was living with him at the time when the contract was made. The fact that she returned to her father’s house, and was there delivered of a child before the institution of the suit, does not make out a case. There is no evidence that the father paid or became in any manner liable to pay the expenses of her lying in. And indeed had there been such evidence, it would not have furnished under the circumstances a ground for the action. It is suggested, however, in the petition for the supersedeas, (and I presume properly,) that the judge of the Circuit court, in refusing to give the instruction, was governed by what he supposed to be a change in the law, effected by a provision of the Code of 1849, declaring that “ an action for seduction may be maintained without any allegation or proof of the loss of the service of the female by reason of the defendant’s wrongful act.’,’ The defendant in error has not been represented by .counsel here ; and I regret that in a case of such interest turning upon a statute, the construction of which is now for the first time made the subject for the consideration of this court, and to which such important effects have been attributed by the judge below, we have to proceed to a decision without the aid of the views which controlled his judgment. On the part of the plaintiff in error the.ground is taken in the petition for a supersedeas, that in an action for seduction at the common law, it is necessary to aver and prove not only the relation of master and servant, but also the fact of the loss of service; and it was urged as well in an oral as in a written argument pre731sented by his-counsel, that the only design contemplated by the section in question is to dispense simply with what is familiarly known in pleading as the “ per quod serviliwm amisit,” and the proof to sustain its averments; and consequently, that it is just as essential now as it was before the enactment of the Code, to aver and prove the relation of master and servant; or the right (at least) of the plaintiff to the services of the female alleged to be seduced. In support of this view, it was said that such was evidently the design of the revisors in recommending the enactment of the section as shown in their report; and it was argued that as the legislature adopted the section without alteration, it was fair to infer they had the same design in passing it. At page 734 of their report, in a note to this section, the revisors say, “ The foundation of the action by a father to recover damages against the wrong-doer for the seduction of his daughter, has been uniformly placed not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest. It has therefore been held in England that the loss of service must be alleged in the declaration and proved at the trial, or the plaintiff must fail. ‘It is (says Chief Justice Tindal in Grinnell v. Wells, 7 Mann. & Gran. 1033, 49 Eng. C. L. R. 1033,) the invasion of the legal right of the master to the services of his son, that gives him the right of action for beating his servant; and it is the invasion of the same legal right and no other, which gives the father the right of action against the seducer of his daughter.’ Yet in Revill v. Satterfit, 1 Holt’s R. 442, 3 Eng. C. L. R. 153, it was conceded by Hullock, sergeant, for the defendant, that in most cases of this sort the condition of service was regarded as a mere conveyance to the 732action. It was the form through which the injury was presented to the court; and having obtained its admission upon legal principles, it brought along with it as parts of itself all the circumstances of the case. And Chief Justice Tindal, in the case referred to, says, ‘ The damages recoverable by the father when he brings the action, are confessedly not limited to the actual expenditure of his money, but may be given according to the circumstances of aggravation in the particular case.’ It is obvious, then, that the ground of action is technical and the loss of service in a great degree a fiction ; since the most trifling and valueless acts of' service have been admitted as sufficient. In some cases indeed the action is placed upon the right to claim the services. In Hewitt v. Prime, 21 Wend. R. 79, Nelson, C. J. delivering the opinion of the Supreme court of New York, says, ‘The old idea of loss of menial services, which lay at the foundation of the action, has gradually given way to more enlightened and refined views of the domestic relations. These are, that the services of the child are not alone regarded as of value to the parent. As one of the fruits of more cultivated times, the value of the society and attentions of a virtuous daughter is properly appreciated; and the loss sustained by the parent from the corruption of her mind and the defilement of her person by the guilty seducer is considered ground for damages.’ The action being fully sustained in his judgment by proof of the act of seduction in the particular case, other circumstances come in by way of aggravating the damages. There being such opposite opinions as to what is necessary to afford a legal ground for the action, and the rule established in New York placing the action upon that which a jury look to in estimating the damages, we think it best that the same rule should be adopted in Virginia.” If after looking to the note of the revisors any 733doubt remains as to the end which they had in view in proposing the enactment, that doubt may, I think, be removed by noticing somewhat more particularly the cases to which they refer. In the first case, Grinnell v. Wells, the declaration alleged that the daughter of the plaintiff was a poor person, who maintained herself by her labor and personal services, and was unable to maintain herself except by her labor and personal services; that she was under the age of twenty-one years, and that by means of the seduction and her consequent pregnancy and sickness she became unable to work or to maintain herself, and that her father being of sufficient ability to maintain her, was forced and obliged to maintain her at his own charges, and incurred and paid divers expenses in maintaining, nursing and taking care of her during her sickness, &c. It will be perceived that there was a failure to allege any loss of service to the plaintiff; and after a verdict in his favor for two hundred pounds, there was a motion in arrest of judgment, which was sustained. Tindal, C. J. after stating the character of the declaration, said that the right of the father to recover damages for the seduction of his daughter had been uniformly placed, not upon the seduction itself, but upon the loss of the service of the daughter. And in support of the propriety of the rule stated that the action rested on the same principle that governed the action of a master for the beating of his servant; and cited a passage from the opinion of the court in the case of Robprt Mary, in which it was said, “ If my servant be beaten, the master shall not have an action for this beating, unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself for every small battery shall have an action; and the reason of the difference is, that the master has not any damage by the personal beating of 734liis servant but by reason of a per quod; viz: per quod servitium' amisit; so that the original act is not the cause of his action, but consequent upon it, viz: the loss of the service is the cause of his action.” And in concluding his opinion in support of the motion, he observes that if the liability of the father under the statute of Elizabeth to support his child when unable to support herself, would form a ground of action per se independently of loss of service, the anomaly would follow, that as the father is only liable under the statute when he is of sufficient ability to do so, and as the damages recoverable by the father where he brings the action are confessedly not limited to the actual expenditure of his money, but may be given according to the circumstances of aggravation in the particular case, the right of action to recover compensation would be confined to persons of ability to maintain the daughter, and would be denied to the poorer classes of the community. In the case of Revill v. Satterfit, the second ease referred to by the revisors, the daughter of the plaintiff had been at service in the family of the defendant’s uncle. Some suspicion having attached to her intercourse with the defendant, she had been removed to another situation, from which she returned to her father’s house. Here she had been in the habit of receiving the defendant and of sitting up with him at late hours of the night after the family had retired to rest. Another daughter of the plaintiff proved the acknowledgment of the defendant that he had seduced her sister, and that he was the father of a child which she had borne. The girl who had been seduced was not introduced as a witness. The counsel for the defendant contended that the case of the plaintiff left so bare of evidence, should be dealt with upon the strict legal principles on which the action was founded; and that the damages should not exceed 735the value of the services actually lost. He admitted that in most cases of this sort the condition of service was regarded as a mere conveyance to the action. It was the form through which the injury was presented to the court; and having obtained its admission upon legal principles, it brought along with it as parts of itself, all the circumstances of the case. But when the object of seduction was not herself produced, the strongest suspicion attached to the quality of the injury. He contended therefore that the jury ought not to estimate the damages upon the ordinary principles which obtained in cases of the kind. Mr. Baron Wood said that the plaintiff had his right of action for loss of the services of his daughter; a loss which he alleged he had sustained by the seduction of the defendant. It was not necessary to produce the daughter, though the withholding of her was open to observation. In strictness, the action being founded on the loss of service, the damages ought to have reference to the extent of the service. But that an injury of the kind was always complicated with circumstances; and it was difficult to separate one part from the other; and held that it was not necessary to produce the girl as a witness. In the case of Hewitt v. Prime, the suit was brought by the plaintiff for the seduction of his daughter of the age of seventeen, whilst she was a member of his family. And the suit was brought after the daughter was discovered to be pregnant, but before the birth of the child. Such being the state of facts proved on the trial, the counsel for the defendant moved the court to instruct the jury that to sustain the action it was necessary that the plaintiff should have proved loss, expense or damage before suit brought, in consequence of the seduction. But the judge charged the j ury that the daughter being in her minority, a member of the family of her father, no loss, expense or 736damage prior to the suit need -be shown. And there being a verdict for the plaintiff, the question was, Whether there should not be a new trial on account of the charge given by the judge at the trial? It will be seen that in this last case cited by the revisors, there'was no question raised as to the relation of master and servant. The daughter was a minor living with her father, a member of his family; and the motion to give such instructions as were asked, implied the concession that nothing was wanting to make out the case but proof of some actual loss of the services of the daughter, resulting from the wrongful act. Upon this view of the character of the cases to which the revisors refer, and the grounds on which they were decided, it does not seem to me that there can be any serious doubt as to the design which they contemplated in recommending that the rule established in Hewitt v. Prime should by a provision of the Code be adopted as the rule in Virginia. The rule in Hewitt v. Prime goes to the extent of dispensing with proof of actual loss of the services of the daughter, but no further. And I do not think that the recommendation of the revisors shows a purpose to accomplish anything more by the enactment of the statute which they reported to the legislature for its adoption. See 2 Rob. Pr. 562, (new ed.) Showing plainly that such is the view of Mr. Conway Robinson, one of the re-visors, taken in the recent edition of his Practice. It must be conceded, however, that the term employed in the act, loss of service, is sometimes used in a sense which would embrace as well the actual loss of service or inability of the female to render service, as the right of the plaintiff to such service; and if it is apparent from the language of the act, that the term is used in that sense, it would be our duty, I apprehend, so to construe it, though in doing so we should be led 737to results beyond those which we might infer were in the contemplation of the legislature, from the fact of their having passed the law as it came from the revisors. The loss of service is the gist of the action, and it may be said, not incorrectly, and in the reports is, frequently, said that a plaintiff has failed to maintain his action, because he has failed to show that he has sustained any loss of service, in cases where the sickness and confinement of the female and birth of her child consequent upon the seduction, show her inability to render service; and the only defect is that the plaintiff has failed to show the relation of master and servant, or his right to the services. Yet, in pleading and in practice there are three constituents of the action, the presence of all of which is essential to its maintenance, viz: the relation of master on the part of the plaintiff to the female, her seduction, and the actual loss of her services as a consequence. This actual loss of service, though frequently spoken of in the text books and in the opinions of judges as a mere fiction or form, had rarely if ever been dispensed with either in England or in this country prior to the decision in Hewitt v. Prime. From the case of Grinnell v. Wells, decided in 1844, we have seen that it is still, or was, at the time of the enactment of the Code, indispensable to the maintenance of the action in England. And in the cases of Martin v. Payne, 9 John. R. 387, Clark v. Fitch, 2 Wend. R. 459, Hornketh v. Barr, 8 Serg. & Rawle 38, which, in opposition to the decision in Dean v. Peel, 5 East’s R. 45, have established in this country the rule, that whilst the daughter is under twenty-one, she will, for the purposes of the action, be regarded as the servant of the father, though not living with him, but away from him, in the family and service of another, except where the father has renounced and abandoned her totally, and devested 738himself of all right to reclaim her services. In each of these cases the disability of the daughter to perform services, resulting from the act of seduction, was shown; and the legal right of the father to have damages for loss of service, was placed on the ground that the daughter was his servant de jure though not defacto at the time of the injury; and being his servant de jure, the defendant had done an act which deprived the father of his daughter’s services — services which he might have exacted and she might have rendered but for that injury. It is also worthy to be observed, that in the case of Hewitt v. Prime, Nelson, C. J. in taking the ground that proof of the actual loss of the daughter’s services was not essential, after assigning the reasons stated in the poi'tion of his opinion quoted by the revisors, thought it well to fortify his position by the further argument that the value of her services would be necessarihj diminished by the defilement of her person and corruption of her mind. Prom this view of the state of the law on the subject when the legislature came to pass the act, it will be seen that an important change in the law would still be effected, and the terms of the act satisfied, by giving to the words in question the restricted meaning contended for by the plaintiff in error. That this is the true construction, is made still more apparent when we observe the obvious difficulty if not impossibility of giving any effect to that construction which would dispense as well with the necessity of proof of right to the services of the female as of proof of the actual loss of such services. The statute does not in terms confer the right to bring the action on the father or any one else ; and as at the common law neither he nor any other person can maintain the action without showing his right to the services of the female who has been wronged, if the statute is to be 739construed as dispensing with the proof of such right, we should have the anomaly of an action maintainable without any ascertainment of the person or persons to bring it. And if by a strained inference we might otherwise intend that inasmuch as the action is one more generally used to enable a father to recover exemplary damages for the seduction of his daughter than for any other purpose, the legislature designed by the passage of the act to enable him to recover in cases in which at the common law he would be defeated by want of proof to establish the relation of master, or the right to the services of the daughter, we should still have to encounter objections of a character so serious as to forbid such a construction. For, as was argued by the counsel of the plaintiff in error, the statute does not take away the right of any one to maintain the action who before had it at the common law. And if the statute be construed to give to the father, as such, the right to sue in every case of the seduction of his daughter, the necessary consequence would follow that the defendant might be exposed to two or more recoveries of exemplary damages for the same act. As under such a construction neither loss of service nor right to the services is necessary to the maintenance of the action, no reason is perceived why the father might not maintain the action for the seduction of a married daughter, whose husband had already recovered damages for the injury done to him. Indeed it is now held that exemplary damages may always be allowed in this kind of action, in the discretion of the jury. Ingersoll v. Jones, 5 Barb. Sup. Ct. R. 665. If, therefore, in a case of the seduction of a daughter who has attained her majority, and who has passed from the control and protection of the father, and is at service with another person, we allow the father to maintain his suit, a defendant may be subjected to the double recovery of exemplary da740mages, in direct violation,, of the spirit of the rule by which the right of the master to recover such damages is maintained. For in the case just cited the distinction is taken between the case of an action by the master for the beating of his servant and that of an action for the seduction of his servant, in respect to the damages; and it is said that in the case of the assault and battery the servant has an action himself, and may recover exemplary damages; and that to allow such damages to the master would therefore subject the defendant to their payment twice; whilst for the seduction, the servant has no action. And really I do not perceive any satisfactory answer to the argument of counsel, that if after the daughter has been fully emancipated from all parental control; after the father has parted with all legal interest in her services — all legal right to the comforts of her society and attentions — he may still maintain such a suit — the mother would also be entitled to a like action. And so in respect to the brothers and sisters. In such a state of things the father’s right to the action could only rest on the injury done to his feelings: And no reason is seen why the right of the other members of the family to have their action would not be just as clear. There is no reason for supposing that the mother would be less deeply affected than the father by the loss of a daughter’s virtue and the destruction of the peace and happiness of the domestic circle consequent upon it. A brother might feel just as acutely the wound inflicted on the honor of the family; whilst an unmarried sister just entering upon society, sharing as fully, in all other respects, in the common grief, might have her, sufferings enhanced by the dread of uncharitable doubts and suspicions in respect to her own purity and innocence. This view of the consequences which seem to me to result from that construction on which the judg741meat of the Circuit court is supposed to be founded, coupled with the considerations already adverted to, have led me to the conclusion that the construction contended for by.the plaintiff in error is the true one. Under the latter construction, cases of an appa rently aggravated character may in some instances go unredressed: And from the amount of damages given by the jury, we infer that in their belief and in the opinion of the Circuit court, who has rendered a judgment in conformity with the verdict, this is a case of that kind. We may regret that we can find no legal ground on which to sustain the action of the court and jury; but I do not think that we are at liberty to break through the forms of the law to reach what we may regard a case of hardship. So long as a daughter is a minor, subject to the father’s control; indeed after she has attained her majority, so long as she lives with him and he has any legal right to command her services, her society and attentions, he has, under the construction I would give to the act, a right to bring his action for her seduction, and to found his claim for damages on the wrongful act, without any proof showing that there has been a failure or inability in the daughter to render him services in consequence of such act. But further than this I do not think the law has yet gone. When the daughter has arrived to years of discretion, has left the paternal roof, has emancipated herself from all legal control on the part of the father, and become in all regards the mistress of her own conduct and actions, I think the law gives the father no action for her seduction. And as some apology for this supposed defect in the law, it is perhaps worthy of consideration, whether a reason for the failure of the lawgivers to allow an action in such case may not be found in the belief on their part that if in such a state of things the well established virtuous habits and cha*742racter of the daughter, her own well matured sentiments of female purity and honor, and the discreet conduct and modest deportment which are their outward evidences, do not protect her against the arts of the seducer, no great additional 'safeguard to female virtue, no important additional security for the preservation of the public morals, would be afforded by a law conferring on the father or any one else a right to maintain a suit for her seduction. Upon the whole, I think that the Circuit court ought to have rendered a judgment sustaining the demurrer to the first count in the declaration, and ought to have given the instructions asked; and that because of the error in these particulars the judgment should be reversed, the verdict set aside, the demurrer to the first count in the declaration sustained, and the cause remanded for a new trial. The other judges concurred in the opinion of Daniel, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481620/	Lee, J. The pleas tendered by the plaintiff in error appear to be five in number and they were all rejected by the court; and the question here is were they all properly so rejected. The fifth plea consists of a specification of items and the several amounts thereof, which the party claimed, with a general averment that the defendant in error was indebted to him in the same by way of offset. The items claimed are however' all of an equitable character going to the consideration of the bond sued on, and could not constitute the subject of an offset under the general law of offsets, and the plea fails sufficiently to aver the elements which would constitute a good equitable offset under our statute, nor is it verified by affidavit as the statute requires. It was therefore properly objected to by the court. The fourth plea avers (by reference to the first) that the bond sued on, was given for the third and last installment of the purchase money of two tracts of land sold by the defendant in error to the plaintiff’, a complete title to which was to be made upon the payment of that installment. It then avers that the plaintiff in error had performed all parts of the contract on his part and had offered to pay the amount of the bond on the defendant’s conveying the property by a sufficient legal title, which he had failed to do ; by reason whereof the consideration of the bond had failed to the extent of two hundred and fifty dollars, for which failure he claimed compensation to that amount. It is somewhat difficult to determine the exact gist of the plea or the precise scope which the pleader intended to give it. It is not a plea in bar of the action because of the failure of the defendant in error to comply with a precedent or concurrent condition on 745the performance of which or the offer to perform it, only, he would be entitled to his action. Nor is it the plea of a vendee of lands who waives his right to the specific execution of the contract at the hands of a court of equity and goes for complete reimbursement in the form of damages for the vendor’s breach of the contract. For whilst it alleges the purchase of lands at a price of which the bond for five hundred dollars sued on was but the third and last installment, it claims only the sum of two hundred and fifty dollars as compensation for the breach of the contract. It must be regarded therefore that the party is claiming both the right to have the contract executed specifically by a conveyance of the title and also by this plea, compensation for the breach of the contract in the failure to make it. This I apprehend he cannot do. He cannot hold to both rights of action to wit, the one in equity for the conveyance of the title, and the other at law for damages for the breach of the contract in the failure to make it. It has been held upon the construction of this statute that in an action on a bond for the purchase money of land a plea of failure of consideration upon equitable grounds requiring a rescission of the contract and a reinvestment of the obligee with the interest sold to the obligor, is inadmissible. Shiflett &c. v. The Orange Humane Society, 7 Gratt. 297. And, e converso, I think it equally clear that in such an action a plea of failure of consideration by the party’s refusal or neglect to make a title according to his contract and showing that the vendee was entitled to a specific performance of the contract without a plain election to waive such relief and to go for entire damages for breach of the contract, would not be authorized by the statute. The party must make his election; and if he will claim the right to specific execution, he cannot also come with his action or plea under this statute for damages 746generally, for breach of the contract to make the title. Whether in a case in which special damage has been sustained by reason of the vendor’s failure to make the title in due time according to his contract, the vendee may claim compensation in this form, it is not necessary to decide in this case, as nothing of that kind is alleged in this plea, the claim being for compensation, generally, for the vendor’s breach of contract in failing to make the title. I think this plea was not authorized by the statute and was properly rejected. The first second and third pleas allege the contract for the sale of the two tracts of land and that the bond sued on was given for the third and last installment of the'purchase money, and they aver a partial failure of consideration in the following particulars: the first, that the vendor had never delivered possession of a portion of one of the tenements sold; the second, that he did not deliver possession of either of the tenements sold for two months after the time at which by the contract he was to deliver possession, and the third, that he did not deliver them in the plight and condition in which they were at the time of the sale and in which by the contract he was bound to deliver them, but delivered them in a damaged condition from injuries done or permitted in the mean time to the tenements and freehold. Now possession of the whole subject sold and at the time and in the condition stipulated for in the contract, may fairly and legitimately be considered part and parcel of the consideration moving from the vendee, and if the vendor fail to make good his undertaking in these respects, there can be no reason why the vendee should not be entitled to compensation for the loss thereby occasioned. He does not get all which he stipulated for and for which he promised to pay the agreed price. The diminution in the value of the subject by reason 747of the vendor’s short comings should therefore in some form be made good to the vendee, and I can perceive no good reason why compensation should not be in this form by an equitable plea of offset under our statute. Indeed it seems a very appropriate mode by which the diminution in the value of the thing purchased may be compensated by a correspondent diminution of the price to be paid. There is nothing in the terms of the statute to restrict the plea of equitable setoff to contracts in relation to personalty. The terms of the act are general, “ in any action on a contract,” and it includes contracts by deed as well as by parol, and there can be no reason for excluding all contracts relating to the sale and purchase of real property from the operation. In a case indeed as we have seen where the equitable grounds relied on would require a rescission of the contract and a reinvestment of the vendor with the interest alleged to have been sold, a plea of failure of consideration under this statute could not be relied on. And upon the terms of the statute which authorize the plea in case of a breach of warranty of the title or soundness of personal property, it may be argued that such a plea is inferentially excluded in case of a breach of warranty of the title to real estate. In Pence, &c. v. Huston's ex'ors, 6 Gratt. 304, this question was raised, but was not decided because the court thought that the matter of the plea showed that the defendant would have been entitled to relief either at law or in equity and constituted a substantial defense to the action. And as the plaintiff instead of objecting to the filing of the plea or demurring, had taken issue upon it and there had been a verdict for the defendant the question whether the defense was authorized by the statute did not arise, the defect, if any, being cured by the act of jeofails. But in this case, the claim is for compensation for a partial fail ure 748of consideration only, and the matters shown in the pleas make no case for a rescission of the contract: in fact they proceed on the assumption that the contract has been in part executed, and in part is yet to be executed, and for a part as to which it has not been and cannot now be specifically executed, compensation is to be made. That the vendee claims to have specific execution by a conveyance of the title constitutes no objection. This is in perfect consistence with the claim for compensation for the failure in those particulars as to which specific performance cannot be had. The vendor is bound to make good his contract in all its parts, and if in any he cannot now perform it specifically, he must make compensation. It will not do for him to say that if he makes the title and the vendee accepts his conveyance the latter thereby waives his claim to compensation for the failure to deliver possession at the time and in the condition stipulated for. In practice it has not been unusual where a vendee comes with a bill for specific execution for the court of chancery to decree the title and also to go on and give an account of rents and profits and for waste done to the inheritance during the time for which the possession was improperly withheld as well as compensation for deficiency in quantity upon the principles of that court, upon the ground that having possession of the subject it will give complete relief and save the necessity of further litigation. And if the correctness of this practice may be successfully questioned (as to which I express no opinion) certainly the vendee may maintain his action at law against the vendor for damages for his breach of the contract; and in either view, where he is sued upon the contract on his part, he may assert his claim against the vendor by plea in the nature of a setoff under the statute. The object of the statute is to save litigation by enabling the parties to settle all the matters in contro*749versy in one suit, and to effectuate this purpose, it should where necessary receive a liberal construction. No objection can be raised in this case upon the idea that the statute does not authorize the plea in the case of a breach of warranty of the title to real property, as the claim is founded on an executory contract of sale stipulating for the possession of the premises at a certain time and in a certain condition as well as for the conveyance of the legal title, and the alleged breach relates to the possession only and not in any manner to the title. I think therefore the three first pleas set out in the bill of exceptions although in some respects defective in point of form are yet good in substance and should have been received by the court; and am of opinion to reverse the judgment and remand the cause with directions to permit them to be filed. The other judges concurred in the opinion of Lee, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481623/	Samuels, J. The plaintiff was indicted in the Circuit court of Patrick county, for having “ feloniously and maliciously set fire to and burned three houses, to wit, an unoccupied dwelling-house, kitchen and smoke-houses and some fodder, being the property of Spencer T. Nowlin.” 764Upon the trial evidence was given tending to prove that the building described as a dwelling-house had been built for and used as a dwelling-house and for no other purpose, (except as a place of deposit for some fodder for a short time,) until about ten months before it was burnt; that the owner had been in the habit of renting it out, and had a short time before it was burnt rented it as a dwelling, and ordered it to be cleaned out for the tenant, who had not taken possession. The plaintiff on the trial moved the court to instruct the jury, if they believed him guilty, that upon the facts above stated his offense did not come within the second section of chapter 192 of the Code of 1849; which instruction the court refused to give : and thereupon the plaintiff filed his bill of exceptions number one. The jury having found the plaintiff guilty on the 21st of April 1855, the attorney for the plaintiff on the 24th of April moved .the court to set aside the verdict as being contrary to evidence. On the 26th of April the court overruled the motion to set aside the verdict, and rendered judgment thereon. The entries upon the record made on the 24th and 26th days of April respectively, show that the plaintiff appeared by attorney, and there is nothing in the record to show that he was present in court in his proper person on either of those days. The plaintiff filed his bill of exceptions number two to the opinion of the court overruling his motion to set aside the verdict; and in this exception is set forth all the facts proved at the trial. No question is made, or can be made, upon this part of the record, except that the building alleged to be a dwelling-house, was not such, within the true intent of the statute. The facts bearing on this question are the same as those set out in the first bill, and further, that the buildings burnt were the property of Nowlin; that they were 765one mile distant from his residence, and that they were burnt by the plaintiff in the day time. I am of opinion the Circuit court erred in deciding that the building described as a dwelling-house, was such within the meaning of the seeond section of chapter 192 of the Code of Virginia. It was one mile distant from Nowlin’s residence, and no one lived or slept therein; nor had it been occupied as a dwelling for about ten months previous to its destruction. If it had been within the curtilage of Nowlin’s dwelling-house, but not adjoining thereto, nor under the same roof, it would have been excepted out of the second section by the third section. It must therefore be held that if the section standing alone would embrace the ease, (as it would not I conceive,) yet it falls within the exception in the third section. The facts that a building has once been used as a dwelling-house and is intended for the same use in future, do not of themselves make the building a dwelling-house within the meaning of the criminal statutes of Virginia. The safety of the inmates and their property afford a good reason for denouncing heavier penalties against crimes perpetrated against dwelling-houses, and which might endanger both, than against offenses which endanger property only. Thus, arson of a dwelling-house, and of certain other specified buildings, has been regarded as a crime of deeper dye than burning-other buildings, and has accordingly been visited with punishment commensurate with the greater enormity. The statute, chapter 192 of the Code, intended to preserve this distinction, by prescribing a greater degree of punishment in ease of conviction for burning a dwelling-house than for burning other houses, unless they be of the class enumerated in the first and second sections of the statute. The house alleged in this case to have been a “ dwelling-house,” does not answer the legal definition of such building, as well settled by *766many adjudged cases. See Lyon's Case, 1 Leach 185 ; Fuller's Case, 1 Leach 186; Haws' Case, 2 Leach 701; Silk's Case, 2 Leach 876. I am, therefore, of opinion that the Circuit court erred in refusing the instruction prayed for: and from this refusal the jury must have been led to suppose that the case came within the second section of the statute, and may have been thereby induced to find a verdict different from that which they would otherwise have found. The record, made up as it now stands, shows that on the 24th of April when a motion was made to set aside the verdict of the jury, and again on the 26th of April, when the motion was overruled and judgment rendered, the plaintiff appeared by attorney; and there is nothing to show that he was personally present in coui't on either day. This is probably the result of mere inadvertence in making up the record, yet this court must look only to the record as it is. That this is error is shown by Sperry's Case, 9 Leigh 623. It is the right of any one, when prosecuted on a capital or criminal charge, “to be confronted with the accusers and witnesses;” and it is within the scope of this right that he be present not only when the jury are hearing his case, but at any subsequent stage when any thing may be done in the prosecution by which he is to be affected. The other judges concurred in the opinion of Samuels, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481624/	Samuels, J. Franklin Slaughter was presented by the grand jury in the Corporation court of Fredericksburg, for having opened and kept (within the jurisdiction of that court) an office, and transacting business as agent, without a license therefor, of the Protection insurance company of Hartford, incorporated and au769thorized by the state of Connecticut. Issue was made up on the plea of not guilty, and a trial had, upon which the facts alleged in the presentment were proved, and the further fact that the members of the company are citizens of Connecticut. A verdict was found for the commonwealth assessing the fine at forty dollars. Several motions were made by the plaintiff in error for a new trial, and. in arrest of judgment. These motions were severally overruled and judgment rendered on the verdict. The record was carried by writ of error to the Circuit court of Spotsylvania, by which court the judgment of the Corporation court was affirmed. The record is brought here by writ of error to the judgment of the Circuit court. Whether the presentment should have been adjudged sufficient upon a demurrer, it is not material here to enquire, as the demurrer filed when the plaintiff in error first appeared, was afterwards withdrawn. After verdict a motion in arrest of judgment for defects in the presentment, can be sustained only in case it be so uncertain that judgment “ according to the very right of the case,” cannot be given thereon. Although there is no distinct averment in the presentment that the Protection insurance company is an insurance company, and we are left to infer the fact that it is such from its name, yet the offense is “ charged therein witli sufficient certainty for judgment to be given thereon according to the very right of the case.” The defect in the presentment, if it be a defect, is cured by the verdict; and the motion in arrest of judgment for this defect could not be sustained. Code of Virginia, ch. 207, § 12, p. 770. The question made in the Circuit court and in this court in regard to the constitutionality of the statute, Code of Virginia, ch. 38, § 25, p. 210, under which this prosecution is had, is presented by the motion for a new trial, and that in arrest of judgment. It is in770sisted that the judgment should be reversed, for that the plaintiff in error was merely an agent for the Protection insurance company of Hartford, incorporated or authorized by the law of the state of Connecticut; that the individual corporators of that company are citizens of that state; that as such citizens, under the constitution of the United States, article 4, § 2, clause 1, they are “ entitled to all privileges and immunities of citizens in the several states;” that in a case like this they have the privileges and immunities of citizens of Virginia: that as citizens of Virginia have the privilege to make- contracts in Virginia for the insurance of others, with an immunity from taxation for making such contracts, that these citizens of Connecticut have the same privilege and immunity; and that the statute above cited, imposing terms upon the agents and subagents of the company, which are not imposed upon citizens of Virginia, is a violation of that portion of the federal constitution above cited. It is somewhat difficult to perceive how the plaintiff in error can raise this question in his case. He points out no discrimination between his privileges and immunities and those of all other citizens of Virginia engaged in his pursuit. It is not shown that he. is a citizen of a state other than Virginia; the restrictions prescribed by the statute are imposed alike upon all in his condition. The defense, however, is not founded upon any alleged violation of the plaintiff’s personal privileges or immunities, nor upon any violation of privileges and immunities pertaining to his immediate principal, the Protection insurance ■ company of Hartford; but upon an alleged violation of privileges and immunities guaranteed to those citizens of Connecticut, the corporators in that company. This defense has its basis upon an error in confounding things, which are essentially different, in holding these individual citizens, with their privileges and im771munities as such, to be identical with the company in which they are corporators. The privileges and immunities guaranteed to them are annexed to their status of citizenship. They are personal, and may not be assigned or imparted by them, or any of them, to any other person, natural or artificial. If it were otherwise, and these citizens could impart their right to others, the limitation of the guaranty to “ citizens” would be without practical effect; the right might be imparted to classes, and for purposes in contravention of our policy and laws; and thus our welfare or even our safety be endangered. It must be conceded by all, that these citizens of Connecticut can have no greater “ privileges and immunities” than those which an equal number of our own citizens might enjoy. It must be further conceded by every one in Virginia, that fifty or a hundred (whatever number) citizens of Virginia could not without a charter associate themselves together, and usurp the franchise of a corporation; adopt a corporate name or seal; nor establish a perpetual succession, nor exempt their members from personal liability for contracts of the association; nor to any extent affect or repeal the laws regulating the succession to property, real or personal. In fine, it must be conceded, that our citizens, in any number, of their own motion, and in virtue of their mere citizenship, could do no corporate act whatever. Regarding citizens of Connecticut and of Virginia respectively as having equal privileges and immunities in this respect, we must hold that mere citizenship in Connecticut confers no corporate franchise in Virginia. It is said however, in effect, that the charter in Connecticut confers the corporate existence, and also the faculty of trading as a corporation; and that the federal constitution guarantees to the corporators the right to trade in Virginia as our own citizens may 772trade. The reply is obvious, that we do not recognize the authority of Connecticut to confer on her own citizens privileges or immunities in Virginia, which we have not given to our own citizens within the state. Our own citizens, without a charter from our own authorities, can do no corporate act within the state. Those of Connecticut can be in no better position. The general assembly of Virginia alone has authority to say how far the general rules of property and the general law of liability for contracts shall be varied in favor of corporations. They have heretofore, by general laws and by private acts of incorporation, exercised that power, and will, without doubt, continue to exercise it with reference to the welfare of our own people exclusively. They have not (if they could) conferred on another state unlimited discretion to charter companies to -transact business in Virginia. It is a grave exercise of sovereign power to create artificial persons in our midst not amenable to our laws; to vary the general laws by conferring corporate existence, capacity and power. The authorities of Connecticut could not confer such faculties and functions on citizens of Virginia, to be exercised in Virginia; by parity of reason, if no more, they cannot confer them on citizens of Connecticut, to be exercised here. The plaintiff’s theory rests upon the assumption that because private individuals may engage in particular pursuits, that therefore artificial persons called corporations, created and existing elsewhere, may engage in the same pursuits; that the right to exercise their natural faculties in lawful pursuits, is identical with the right to engage in the same pursuits with the aid of a new organization with other and different faculties from those pertaining to the same individuals. If we carry out the pretensions of the plaintiff to their legitimate results, we must hold that the autho773rity of another state may create a corporation within that state, but to use its corporate power within this state in any pursuit permitted to our own citizens: and that the only mode by which we can expel the intruder will be to forbid our own citizens to engage in that pursuit. It seems to me that the chain of reasoning, by which corporate powers beyond the limits of the state conferring them are to be deduced from private individual rights of citizens, is utterly defective. I have no doubt of the power of the general assembly of Virginia to forbid foreign corporations from engaging in any pursuit within the state; and, of consequence, to grant permission to engage therein only upon terms; and that the statute, Code of Virginia, ch. 38, $ 25, p. 210, is clearly within the scope of their legitimate powers. The question as to the nature and extent of the privileges and immunities secured to citizens of the several states by the federal constitution, has from time to time been the subject of consideration in the federal and state courts. In several of the cases the claim to privilege and immunity was asserted under circumstances very like those of our case; but in no one of them was the claim allowed. In the cases of The Commonwealth v. Milton, and City of Lexington, v. Same, 12 B. Monr. R. 212, the Court of appeals of Kentucky decided that a statute of that state imposing a tax upon insurance companies chartered in other states but doing business in Kentucky, was valid, although insurance companies chartered in Kentucky were not subjected to the same tax. In these cases the defendant relied upon the federal constitution, article 4, § 2, as does the plaintiff in our case; yet upon full consideration, it was held that the legislatui’e have authority to enact the statute. In Tatem v. Wright el al. 3 Zabriskie’s R. 429, the 774Supreme court of New Jersey affirmed the validity of a statute imposing a tax upon the agents of foreign insurance companies from other states doing business in New Jersey. They overruled the claim of privilege and immunity founded on the section of the federal constitution above cited; and they decided that a corporation aggregate was not a citizen, or entitled to the privileges of a citizen, except perhaps for the purpose of giving jurisdiction to the federal courts. In Corfield v. Coryell, 4 Wash. C. C. R. 371, the subject was under consideration; and the opinion of the court, pronounced by Judge Washington, contains an enumeration of the privileges and immunities secured by the federal constitution, but the franchise of corporation is not embraced therein. In Virginia they may be regarded as set forth in our bill of rights and constitution. In the Bank of Augusta v. Earle, 13 Peters’ R. 519, the question was argued, and the right of the bank, a corporation chartered in Georgia, to make a contract in the line of its business, in Alabama, was affirmed. It was so held, because the comity of the state of Alabama permitted the contract to be made within her borders. If there had been a statute in that state forbidding the bank to do business within that state, or allowing it to do so only upon terms, the Supreme court would have given full effect to such statute. It is not necessary in the case before us to express any opinion on the conflict between the decision of this court in Bank of Marietta v. Pindall, 2 Rand. 465, and that of the Supíneme court in the Bank of Augusta v. Earle. The principle of either case seems to require the affirmance of the judgment. The plaintiff’s counsel, in the argument here, alleged that the statute is in violation of the constitution of Virginia; that as the constitution, article 4, clause 22, 775prescribes that “taxation shall be equal and uniform throughout the commonwealth, and all property, other than slaves, shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by lawand as clause 25 of the 4th article authorizes the general assembly to levy a tax on “incomes, salaries and licenses,” that such tax must also be “ equal and uniform.” The provisions of the 22d and 23d clauses were inserted with the intention of preventing onerous taxes upon slaves. As that species of property was chiefly held in the eastern portion of the commonwealth, and as the power of laying taxes would in a short time pass into the hands of the western portion, it was foreseen that the western portion, if the tax laying power should not be restricted, might discriminate in the levy of taxes to the prejudice of the owners of slaves. These clauses were therefore inserted in the constitution as a compromise, a guaranty for such equality of taxation as therein prescribed. A tax on the value of all property, other than slaves; as to slaves a tax equal to and not exceeding the tax assessed on three hundred dollars worth of land was imposed on every one over the age of twelve years. The provisions of the clauses, taken in connection with the history of the times, leave no doubt that they were inserted as an adjustment of the supposed antagonism of eastern and western interests. The language, however, is broad enough to embrace all subjects of assessable value except slaves, and such is the construction put upon it by the general assembly. It is proposed, however, in the argument here, to extend the equality and uniformity prescribed by clause 22 to the subjects of taxation enumerated in clause 25. If it be conceded for the purposes of this case, that the rule of uniformity and equality must apply to both classes of subjects, yet it can only be so applied as far as practb 776cable; property of assessable value may readily be brought under the rule; so of incomes and salaries; • but the very large class of licenses, whence is derived a large revenue, cannot be assessed; licenses are necessarily obtained before engaging in the licensed pursuit ; "it would be idle to speculate in advance as to the value of the privilege. To fix arbitrarily a specific tax for all licenses would be grossly unequal and far from uniform ; to tax the merchant who may have fifty thousand dollars profitably invested in his business, and an inn keeper with a tenth part of that capital paying poorly in his business, the same specific sum, would be against the true meaning of the constitution. The requisitions of the constitution may be carried out by a uniform tax on. licenses to persons following the same pursuit, under the same conditions and circumstances; a difference therein will justify a discrimination in the tax. The case before us is an apt instance of business pursued under a difference of circumstances, to justify such discrimination. Our domestic insurance companies are taxed upon their capital, or upon their dividends; a license tax cannot therefore be exacted of them. Constitution of Virginia, art. 4, clause 25. The Protection insurance company of Hartford is not and cannot be taxed upon its capital or dividends, they being beyond the reach of our laws. Our insurance companies are exempt from license tax because, and only because they pay a large tax in a different mode. The Protection insurance company of Hartford, insisting on equality and uniformity, claims an exemption from the license tax, although it does not pay that other tax in that other form, or any other tax whatever. Holding then that the general assembly of Virginia had authority to enact the statute, Code of Virginia, ch. 38, § 25, p. 210, I am of opinion that the defense founded upon its alleged unconstitutionality, is without merit. 777As I have said in regard to the other branch of the defense, I may say in regard to this, that it is difficult to perceive how the plaintiff can make it in his case; there is no discrimination against him; he and all others in his business are subjected to precisely the same tax; he must be understood as maintaining the rights claimed for his principal. I am of opinion to affirm the judgment. The other judges concurred in the opinion of Samuels, J. Judgment affirmed	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481625/	SAMUELS, J. Franklin Slaughter was presented by the grand jury in the Corporation court of Fredericksburg, for having opened and kept (within the jurisdiction of that court) an office, and transacting business as agent, without a license therefor, of the Protection insurance company of Hartford, incorporated and authorized by the state of Connecticut. Issue was made up on the plea of not guilty; and a trial had, upon which the facts alleged in the presentment were proved, and the further fact that the members of the company are citizens of Connecticut. A verdict was found for the commonwealth assessing the fine at forty dollars. Several motions were made by the plaintiff in error for a new trial, and in arrest of judgment. These motions were severally overruled and judgment rendered on the verdict. The record was carried by writ of error to the Circuit court of Spotsylvania, by which court the judgment of the Corporation court was affirmed. The record is brought here by writ of error to the judgment of the Circuit court. Whether the presentment should have been adjudged sufficient upon a demurrer, it is not material here to enquire, as the demurrer filed when the plaintiff in error first appeared, was afterwards withdrawn. After verdict a motion in arrest of judgment for defects in the presentment, can be sustained only in case it be so uncertain that judgment “according to the very right of the case,” cannot be given thereon. Although there is no distinct averment in the presentment that Ihe Protection insurance company is an insurance company, and we are left to infer the fact that it is such from its name, yet the offense is “charged therein with sufficient certainty for judgment to be given thereon according to the very right of the case.” The defect in the presentment, if it be a defect, is cured by the verdict; and the motion in arrest of judgment for this defect could not be sustained. Code of Virginia, ch. 207, § 12, p. 770. The question made in the Circuit court and in this court in regard to the constitutionality of the statute, Code of Virginia, 294ch. 38, § 25, p. 210, under which this prosecution is had, is presented by the motion for a new trial, and that in arrest of judgment. It is insisted ®that the judgment should be reversed, for that the plaintiff in error was merely an ag-ent for the Protection insurance company of Hartford, incorporated or authorized by the law of-the state of Connecticut; that the individual corporators of that company are citizens of that state; that as such citizens, under the constitution of the United States, article 4, 8 2, clause 1, they are “entitled to all privileges and immunities of citizens in the several states;” that in a case like this they have the privileges and immunities of citizens of Virginia; that as citizens of Virginia have the privilege to make contracts in Virginia for the insurance of others, with an immunity'from taxation for making such contracts, that these citizens of Connecticut have the same privilege and immunity; and that the statute above cited, imposing terms upon the agents and subagents of the company, which are not imposed upon citizens of Virginia, is a violation of that portion of the federal constitution above cited. It is somewhat difficult to perceive how the plaintiff in error can raise this question in his case. He points out no discrimination between his privileges and immunities and those of all other citizens of Virginia engaged in his pursuit. It is not shown that he is a citizen of a state other than Virginia; the restrictions prescribed by the statute are imposed alike upon all in his condition. The defense, however, is not founded upon any alleged violation of the plaintiff’s personal privileges or immunities, nor upon any violation of privileges and immunities pertaining to his immediate principal, the Protection insurance company of Hartford; but upon an alleged violation of privileges and immunities guaranteed to those citizens of Connecticut, the corporators in that company. This defense has its basis upon an error in confounding things, which are essentially different, in holding these individual citizens, with, their privileges andimmunities as such, to be identical with the company in which they are corporators. The privileges and immunities guaranteed to them are annexed to their status of citizenship. They are personal, and may not be assigned or imparted by them, or any of them, to any other person, natural or artificial. If it were otherwise, and these citizens could impart their right to others, the limitation of the guaranty to “citizens” would be without practical effect; the right 'might be imparted to classes, and for purposes in ■ contravention óf our policy' and laws; and thus our welfare or even our safety be endangered. It must be conceded by all, that these citizens of Connecticut can have no greater “privileges and immunities” than those, which an equal number of our own citizens' might enjoy. It must be further conceded by every one in Virginia, that fifty or a hundred (whatever number) citizens of Virginia could not without a charter associate themselves together, and usurp the franchise of a corporation; adopt a corporate name or seal; nor establish a perpetual succession, nor exempt their members from personal liability' for contracts of the association ; nor to any extent affect or repeal the laws regulating the succession to property, real or personal. In fine, it must be conceded, that our citizens, in any number, of their own motion, and in virtue of their mere citizenship, could do no corporate act whatever. Regarding citizens of Connecticut and of Virginia respectively as having equal privileges and immunities in this respect, we must hold that mere citizenship in Connecticut confers no corporate franchise in Virginia. It is said however, in effect, that the charter in Connecticut confers the corporate existence, and also the faculty' of trading as a corporation; and that the federal constitution guarantees to the corporators the right to trade in Virginia as our own citizens may trade. The reply is obvious, that we do not recognize the authority of Connecticut to confer on her own citizens privileges or immunities in Virginia, which we have not given to our own citizens within the state. Our own citizens, without a charter from our own authorities, can do no corporate act within the state. Those of Connecticut can be in no better position. The general assembly of Virginia alone has authority to say how far the general rules of property and the general law of liability for contracts shall be varied in favor of corporations. They have heretofore, by general laws ’ and by private acts of incorporation, exercised that power, and will, without doubt, continue to exercise it with reference to the welfare of our own people exclusively. They have not (if they could) conferred on another state unlimited discretion to charter companies to transact business in Virginia. It is a grave exercise of sovereign power to create artificial persons in. our midst not amenable to our laws; to vary' the general laws by conferring corporate existence, capacity and power. The authorities of Connecticut could not confer such faculties and functions on citizens of Virginia, to be exercised in Virginia; by' parity of reason, if no more, they cannot confer them on citizens of Connecticut, to be exercised here. The plaintiff’s theory rests upon the assumption that because private individuals may engage in particular pursuits, that therefore artificial persons called corporations, created and existing elsewhere, may engage in the same pursuits.; that the right to exercise their natural faculties in lawful pursuits, is identical with the right to engage in the same pursuits with the aid of a new organization with other and different faculties from those pertaining to the same individuals. If we carry out the pretensions of the plaintiff to their legitimate results, we must hold that the authority 'of 295another state may create a corporation within that state, but to use its corporate power within this state in any pursuit permitted to our own citizens: and that the only mode by which we can expel the intruder will be to forbid our own citizens to engage in that pursuit. It seems to me that the chain of reasoning, by which corporate powers beyond the limits of the state conferring them are to be deduced from private individual rights of citizens, is utterly defective. I have no doubt of the power of the general assembly of Virginia to forbid foreign corporations from engaging in any pursuit within the state; and, of consequence, to grant x>er" mission to engage therein only upon terms ; and that the statute, Code of Virginia, ch. 38, $ 25, p. 210, is clearly within the scope of their legitimate powers. The question as to the nature and extent of the privileges and immunities secured to citizens of the several states by the federal constitution, has from time to time been the subject of consideration in the federal and state courts. In several of the cases the claim to privilege and immunity was asserted under circumstances very like those of our case; but in no one of them was the claim allowed. In the cases of The Commonwealth v. Milton, and City of Lexington v. Same, 12 B. Monr. R. 212, the Court of appeals of Kentucky decided that a statute of that state imposing a tax upon insurance companies chartered in other states but doing business in Kentucky, was valid, although insurance companies chartered in Kentucky were not subjected to the same tax. In these cases the defendant relied upon the federal constitution, article 4, § 2, as does the plaintiff in our case; yet upon full consideration, it was held that the legislature have authority to enact the statute. In Tatem v. Wright et al., 3 Zabriskie’s R. 429, the x’Sux)reme court of Sew Jersey affirmed the validity of a statute imposing a tax ux>on the agents of foreign insurance companies from other states doing business in New Jersey. They overruled the claim of privilege and immunity founded on the section of the federal constitution above cited; and they decided that a corporation aggregate was not a citizen, or entitled to the privileges of a citizen, excex>t perhaps for the purpose of giving jurisdiction to the federal courts. In Corfield v. Coryell, 4 Wash. C. C. R. 371, the subject was under consideration; and the opinion of the court, pronounced by Judge Washington, contains an enumeration of the privileges and immunities secured by the federal constitution, but the franchise of coloration is not embraced therein. In Virginia they may be regarded as set forth in our bill of rights and constitution. In the Bank of Augusta v. Earle, 13 Peters’ R. 519, the question was argued, and the right of the bank, a corporation chartered in Georgia, to make a contract in the line of its business, in Alabama, was affirmed. It was so held, because the comity of the state of Alabama x>ermitted the contract to be made within her borders. If there had been a statute in that state forbidding the bank to do business within that state, or allowing it to do so only upon terms, the Supreme court would have given full effect to such statute. It is not necessary in the case before ns to express any opinion on the conflict between the decision of this court in Bank of Marietta v. Pindall, 2 Rand. 465, and that of the Supreme court in the Bank of Augusta v. Earle. The principle of either case seems to require the affirmance of the judgment. The plaintiff’s counsel, in the argument here, alleged that the statute is in violation of the constitution of Virginia; that as the constitution, article 4, clause 22, ^'prescribes that “taxation shall be equal and uniform throughout the commonwealth, and all property, other than slaves, shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed bylaw;” and as clause 25 of the 4th article authorizes the general assembly to levy a tax on “incomes, salaries and licenses,” that such tax must also be “equal and uniform.” The provisions of the 22d and 23d clauses were inserted with the intention of preventing onerous taxes upon slaves. As that species of property was chiefly held in the eastern portion of the commonwealth, and as the power of laying taxes would in a short time pass into the hands of the western portion, it was foreseen that the western portion, if the tax laying power should not be restricted, might discriminate in the levy of taxes to the prejudice of the owners of slaves. These clauses were therefore inserted in the constitution as a compromise, a guaranty for such equality of taxation as therein prescribed. A tax on the value of all property, other than slaves; as to slaves a tax equal to arid not exceeding the tax assessed on three hundred dollars worth of land was imposed on every one over the age of twelve years. The provisions of the clauses, taken in connection with the history of the times, leave no doubt that they were inserted as an adjustment of the supposed antagonism of eastern and western interests. The language, however, is broad enough to embrace all subjects of assessable value except slaves, and such is the construction put upon it by the general assembly. It is proposed, however, in the argument here, to extend the equality and uniformity prescribed by clause 22 to the subjects of taxation enumerated in clause 25. If it be conceded for the \|>urposes of this case, that the rule of uniformity and equality must apply to both classes of subjects, yet it can only be so applied as far as practicable; property of assessable value may readily be brought under the rule; so of incomes and salaries ; but the very large class of licenses, whence is derived a large revenue, cannot be assessed; licenses are necessarily ob296tained before engaging in the licensed pursuit; it would be idle to speculate ■ in advance as to the value of the privilege. To fix arbitrarily a specific tax for all licenses would be grossly unequal and far from uniform; to tax the merchant who may have fifty thousand dollars profitably invested in his business, and an inn keeper with a tenth part of that capital paying poorly in his business, the same specific sum, would be against the true meaning of the constitution. The requisitions of the constitution may be carried out by a uniform tax on licenses to persons following the same pursuit, under the same conditions and circumstances; a difference therein will justify a discrimination in the tax. The case before us is an apt instance of business pursued under a difference of circumstances, to justify such discrimination. Our domestic insurance companies are taxed upon their capital, or upon their dividends; a license tax cannot therefore be exacted of them. Constitution of Virginia, art. 4, clause 25. The Protection insurance company of Hartford is not and cannot be taxed upon its capital or dividends, they being beyond the reach of our laws. Our insurance companies are exempt from license tax because, and only because they pay a large tax in a different mode. The Protection insurance company of Hartford, insisting on equality and uniformity, claims an exemption from the license tax, although it does not pay that other tax in that other form, or any other tax whatever. Holding then that the general assembly of Virginia had authority to enact the statute, Code of Virginia, ch. 38, § 25, p. 210, I am of opinion that the defense founded upon its alleged unconstitutionality, is without merit. As I have said in regard to the other branch of the defense, I may say in regard to this, that it is difficult to perceive how the plaintiff can make it in his case ; there is no discrimination against him; he and all others in his business are subjected to precisely the same tax; he must be understood as maintaining the rights claimed for his principal. I am of opinion to affirm the judgment. The other judges concurred in the opinion of Samuels, J. Judgment affirmed. CORPORATIONS (PRIVATE). I. Definitions and Distinctions. II. Creation of Corporations. III. Incidents of Incorporation. A. Generally. B. The Charter. C. The By-Laws. D. Power of Courts and Legislature over Private Corporations. E. The Term “Person” as applied to Corporations. F. Powers of Corporations. G. Eminent Domain. H. Liability of Corporations. IV. Stock and Stockholders. A. The Contract of Subscription, B. Liability of Stockholders. C. Bight of Stockholders to Sue or Defend on Behalf of Corporation. D. Dividends. E. Corporate Meetings. V. Officers and Ag'ents of Private Corporations. A. Generally. B. Particular Officers. C. Compensation of Officers. VI. Consolidation and Succession. A. Consolidation. B. Succession. VII. Dissolution of Corporations. A. Causes. B. Effect. C. Suits to Wind up Affairs of a Corporation. D. Receivers. VIII. Pleading and Practice. A. Suits Must Be Brought in Corporate Name. B. Locality of Suits against a Corporation. C. Service of Process. D. Order of Publication. E. Sheriff’s Return. F. Suits by and against Corporations. IX. Foreign Corporations. A. No Legal Existence Outside of State Creating Them. B. Suits by and against. C. Taxation. D. Effect of War. Cross References. Banks and Banking, appended to Bank v. Marshall, 25 Gratt. 378. Building and Loan Associations, appended to White, v. Mech. Build. Fund Ass’n, 22 Gratt. 233. Insurance, Fire and Marine, appended to Mutual, etc., Soc. v. Holt, 29 Gratt. 612. Insurance, Life and Accident, appended to McLean v. Piedmont, etc., Life Ins. Co., 29 Gratt. 361. I. DEFINITIONS AND DISTINCTIONS. A Corporation. — A corporation is “a body composed of one or more individuals, and possessed of a franchise, by virtue of which it subsists as a body politic, under a special designation, and by .the policy of the law is vested with the capacity of perpetual succession, and of acting in several particulars however numerous the association, as a single individual." 1 Minor’s Inst. (3rd Ed.) 529. “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. Among the most important are immortality, and, if the expression may be allowed, individuality. By these means a perpetual succession of individuals is capable of acting for the promotion of the particular object like one immortal being.” Marshall, O. J., in Dartmouth College v. Woodward, 4 Wheat. 636, cited in Railroad Co. v. Transportation Co., 25 W. Va. 324. A corporation is an inanimate artificial being having no power to act except through living agents. Frazier v. Va. Mil. Inst., 81 Va. 59. A Franchise. — A franchise is a special right or 297privilege conferred on individuals 1)3" grant, actual or presumed, from the government and which otherwise they could not exercise. The property acquired is not the franchise, but the franchise consists in the incorporeal right. Roper v. McWhorter, 77 Va. 214; Tuckahoe Canal Co. v. Tuckahoe R. Co , 11 Leigh 76. Public and Private Corporations Distinguished. -Corporations are generally divided into two classes, based on the character of their business. Corresponding to the private person is the private corporation, created for private purposes or ior the pecuniary gam of its members; and of course they do not cease to be private corporations, simply because the legislature supposed, as it always does, that their creation would indirectly promote the public interest. On the other hand public corporations correspond to public officers in the division of natural persons. They are created generally for governmental purposes; or they may be created for business purposes and will still be public corporations, if the whole interest in the corporation belongs to the state. Railroad Co. v. Transportation Co., 25 W. Va. 324. Quasi-Public Corporations. — There is also a third class of corporations corresponding to quasi public officers, called quart public corporations, viz. owners of ferries, common carriers, innkeepers, etc., 3Vho are chartered to conduct a business in which the public hasran interest; and hence are subject to the control of the legislature as to their maximum charges, etc. Railroad Co. v. Transportation Co., 25 W. Va. 324. H. CREATION OF CORPORATIONS. Status before Incorporation' -Conveyance to a Future Corporation. — After the corporators had signed an agreement to become a corporation, but before the charter had been obtained, a deed conveying land to such corporation by name was signed and acknowledged by the grantor, and delivered to a third party, with directions to retain it until the corporation obtained its charter and organized, and then to deliver it to the corporation; and, after the charter had been received, and the corporation organized under it. such third person delivered the deed to, and it was accepted by, the corporation. Ifeld, the said deed operated as a valid conveyance of said land to the corporation from the date of the delivery of said deed to it. Spring Garden Bank v. Hulings Lumber Co., 32 W. Va. 357, 9 S. E. Rep. 243. Contracts Made in Behalf of a Future Corporation.— While a corporation cannot ratify contracts made in Us name or behalf before it has acquired life, it may exercise its power to make contracts when it comes into existence by accepting or adopting such contracts. Richardson v. Graham, 45 W. Va. 134, 30 S. E. Rep. 92. No Particular Form of Words Necessary. — No particular form of words is necessary to the creation of a corporation, but it may result from implication and intendment. It is the grant of certain powers and privileges and the imposition of the necessary restrictions, which constitute the main elements of a corporation and as it is always a question of intention, the formal words, “erect, establish, incorporate.” etc., are not deemed essential; so an act of assembly authorizing a foreign corporation to extend their road into West Virginia makes such foreign corporation a West Virginia corporation. Goshorn v. Board, 1 W. Va. 307. A Pipo Line Company an Internal Improvement Company — Might Formerly Be Created by Special Act in West Virginia. — A pipe line company, whose object is the transpon tation of petroleum and other oils, is an internal improvement company and might hare been created by a special act of the legislature under Art. XI, § 5, Constitution of West Virginia, and the power of eminent domain might have been conferred upon it. W. Va. Transp. Co. v. Volcanic O. & C. Co., 5 W. Va. 382. Now no corporation can be created by special act in West Virginia but only by general law. Art. XI, sec. 1, Constitution of 1872. Present Statute Relating to Court Charters. — For the provisions of the present statute for obtaining a charter by a corporation, see Code Va. (1887) sec. 1145; Code W. Va. (1891) ch. 51 Same Effect as When Conferred by the Legislature. Franchises and corporate rights granted indirectly by the state through instrumentalities provided by general laws for such purposes, are the same in effect, as if the power conferring such franchises and rights had been exercised directly by the state itself. Mason v. Harper’s Ferry Bridge Co., 17 W. Va. 396. No Fee Required Now in Virginia.- -There is now no law in Virginia requiring a fee to be paid on every charter before it becomes operative. Combined Saw & Planer Co. v. Flournoy, 88 Va. 1029. 14 S. E. Rep. 976. When Legal Existence of Corporation Chartered by the Courts Begins. — When a charter has been granted by a circuit court, pursuant to section 1145 of the Code, and lodged with the secretary of the commonwealth for recordation (the tax thereon having been paid when a taxis required), the corporation so chartered has a legal existence, and may sue and be sued as a corporation. In the absence of any provision in the order granting the charter requiring the minimum capital to be subscribed, the stockholders are not liable as partners although the minimum capital has not been subscribed. The subscription of the minimum capital is not a condition precedent to the existence of the corporation. Coalter v. Bargamin. 6 Va. Law Reg. 757. Necessity for Filing Certificate of Incorporation.-Where the statute law of a state requires the filing of the original certificate of incorporation, such filing is a condition precedent to the creation of the corporation and until this has been done, it has no existence, and that fact may be taken advantage of collaterally whenever the fact of incorporation is called in question. Childs v. Hurd, 32 W. Va. 66, 9 S. E. Rep. 362. Presumption That Incorporation Was Regular. —- Where the law requires that notice shall be given of a meeting to organize a corporation, if it appears by the books of the corporation that such a meeting was held with the requisite numbpr of stockholders present, it will be presumed that the proper notice was given. Grays v. Turnpike Co., 4 Rand. 578. Where the law requires the presence at the first meeting of a corporation, of “the number of persons entitled to a majority of all the votes which could be given on all the shares” and the books showed merely the presence “of a majority of shareholders” it will be presumed that the meaning was the same. Grays v. Turnpike Co., 4 Rand. 578. De Facto Corporations. — Where the defendant is sued by its corporate name and issues its policies signed by the president and treasurer, that fact 298alone will justify the inference that defendant is a de facto corporation. Bon Aqua Imp. Co. v. Insurance Co., 34 W. Va. 764, 12 S. E. Rep. 771. Liability, — The principle to be deduced from our statute and the authorities, is, that a private business corporation, acting, and carrying on its corporate business in its corporate name, after its legal existence has ended by the expiration of its charter, must be held to be a corporation defacto; and that as such, so long as it in fact so carries on its business, and contracts or incurs liabilities with, or to third persons dealing with it as a de facto corporation, it may sue and be sued-at law, either in actions ex contracto or ex delicto, and it cannot defeat such action by alleging that its charter had expired before the cause of action arose. Its directors and stockholders by failing to wind up its business when the charter expires, as it is their duty to do under our statute, cannot relieve the corporation from liability for acts done in its name,- and during its actual existence as a defacto corporation. In order to relieve it from liability the corporation must have ceased to exist both in law and in fact. And consequently, when- it is sued as a corporation, a plea averring simply that it has ceased to exist in law, or as a legal corporation, will be insufficient, but it must aver also that it had ceased to exist in fact at the time the alleged cause of action arose. Miller v. Newburg, etc., Coal Co., 31 W. Va. 836; 8 S. E. Rep. 600. HI. INCIDENTS OF INCORPORATION. , A. GENERALLY. Corporation a Distinct Entity. — It -is well settled that from the very nature of a private business corporation, the stockholders are- not the private and joint owners of its property, etc.; the corporation is the real though artificial person substituted for the natural persons who procured its creation and have pecuniary interests in it. It must purchase, hold, grant, sell and convey the corporate property, do business, sue and be sued, plead and be impleaded for corporate purposes by its corporate name. Park v. Petroleum Co., 25 W. Va. 108; Barksdale v. Finney, 14 Gratt. 338. Its Property Taxable in Name oí Corporation. — Property belonging to'a corporation is vested in the shareholders in their corporate capacity and not' as individuals, and is consequently taxable in the name of the company. B. & O. R. Co. v. Supervisors, 3 W. Va. 319. B. THE CHARTER. AH Persons Dealing with Corporation, Bound with Notice. — Persons dealing with a corporation are bound with notice of whatever is contained in the law of its organization and they must be presumed to be informed as to the restrictions or conditions annexed to the grant of power, by the law under which the corporation is authorized to act. Silliman v. R. Co., 27 Gratt. 119; Bocock v. Alleghany C. & I. Co., 82 Va. 913, 1 S. E. Rep. 325; Haden v. F. & M. Fire Ass’n Co., 80 Va. 683; Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599; Bockover v. Life Ass’n, 77 Va. 85; Whitehurst v. Whitehurst, 83 Va. 155, 1 S. E. Rep. 801; Building Ass’n v. Snyder, 98 Va. 710, 37 S. E. Rep. 298; Campbell v. Building Ass’n, 98 Va. 729, 37 S. E. Rep. 350, 6 Va. Law Reg. 632. In Case of Court Charters, from the Time of Filing.— After the charter of a corporation has been lodged for record in the office of the secretary of the commonwealth-anyone dealing with such corporation is bound with notice of its provisions. Real Estate Co. v. Claiborne, 97 Va. 734, 34 S. E. Rep. 900. Acquiescence in Change of Charter. — And if a stockholder pays any installment on his stock or participates in a stockholders’ meeting, he is estopped to deny knowledge of the terms and provisions of the charter, however much it may vary from his contract of subscription. Real Estate Co. v. Claiborne, 97 Va. 734, 34 S. E. Rep. 900. The General Law Forms Part of the Charter. — A general law does not need to be copied into the charter, but forms an essential part of it and all parties are bound by its terms whether copied into the charter or found only in the statute book. Knights of Pythias v. Weller, 93 Va. 605, 25 S. E. Rep. 891. Also Provisions Hade in Pursuance of Authority of the Legislature. — Where the act of incorporation is. a bare grant of existence to the corporation, to be effectuated by the provisions imposed on it by the governing bodies of the cities and counties named therein respectively, such provisions will constitute-an organic part of the charter of such corporation. Richmond, etc., Ry. Co. v. Brown, 97 Va. 26, 32 S. E. Rep. 775. - Construction of Charter. Construed Strictly against the Corporation. — It is a well-settled rule of construction of grants by the legislature to corporations, whether public or private, that only such powers and rights can be exercised under them, as are clearly comprehended within the words of the actor derived therefrom by necessary implication, regard being had to the objects of the grant; any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public. Roper v. McWhorter, 77 Va. 214. “The grant of privileges and exemptions to a corporation is strictly construed against the corporation, and in favor of the public. Nothing passes but what is granted in clear and explicit terms. And neither the right of taxation nor any other-power of sovereignty which the community have an-interest in preserving, undiminished, will be held by the court to be surrendered, unless the intention to surrender is manifested by words too plain to be mistaken.” Chief Justice Taney in Ohio Life Ins. Co. v. Debolt, 16 Howard 416, cited with approval in B. & O. R. Co. v. Supervisors, 3 W. Va. 319. Effect of Acceptance of New Charter. — When a new charter is granted to and accepted by a corporation the former charter is not thereby wholly superseded, but only in those respects in which it is inconsistent with the new charter. B. & O. R. Co. v. Supervisors, 3 W. Va. 319. C. THE BY-LAWS. Stockholders Bound with Notice. — A stockholder is bound, at his peril, to take notice of the by-laws of the corporation, ‘of which he is a member. Real Estate Co. v. Claiborne, 97 Va. 739, 34 S. E. Rep. 900; Campbell v. Ass’n, 98 Va. 729, 37 S. E. Rep. 350, 6 Va. Law Reg. 632. Absence When They Were Adopted Immaterial.— Where the charter of a corporation allows a majority to alter and amend the rules and regulations as they may judge necessary, all members of the corporation will be bound by such subsequent change, confirmed by Act of Assembly, though not present at the meeting adopting it. Currie v. Mut. Ass’n Soc., 4 H. & M. 315. General Power to flake By-Laws. — The power to make reasonable by-laws, consistent with its charter inheres in every corporation. One who becomes a 299member, subjects himself not only to regulations then existing, but to those afterwards enacted within the scope of such power. The corporation cannot by a subsequent by-law destroy the contract o£ membership or change the essential character of an antecedent agreement between a member and the corporation; but a by-law more or less affecting the remedy of shareholders may be passed and existing members will be bound by it, so far, at least, as they consented to the exercise of such a power when they became members. Building Ass'n v. Snyder, 98 Va. 710, 37 S. E. Rep. 298. Limitations, — A corporation has not the power, by laws of its-own enactment, to disturb or devest rights which it has created, or to impair the obligation of its contracts, or to change its responsibility to its members, or to draw them into new and distinct relations; and all by-laws attempting to do this are inoperative and void. Savage v. People’s Building, etc., Ass’n, 45 W. Va. 275, 81 S. E. Rep. 991. Must Not Be Contrary to Existing Laws. - A by-law in contravention of the laws of Congress is void. Feckheimer v. Bank, 79 Va. 80. D. POWER OF COURTS AND LEGISLATURE OVER PRIVATE CORPORATIONS. — Neither the courts nor the legislature can control the conduct or actions of a private corporation when acting within the scope of the powers conferred npon it by its charters, any more than they can control the conduct of a private person in his business. To this rule there are some exceptions arising from the character of the business, for which see “Quasi-Public Corporations,” infra. Railroad Co. v. Transportation Co., 25 W. Va. 324. Where the charter of a water company provides that the water rates shall be uniform throughout the town for the same class of service, but allows a charge of $9 per hydrant, and also allows a maximum charge of 5 cents per hundred gallons thereby impliedly authorizing a charge by measurement, the plaintiff cannot enjoin the water company from charging by measurement as long as the company keeps within its charter and does not discriminate between consumers in the same circumstances. Exchange, etc., Co. v. Roanoke Gas & Water Co., 90 Va. 83, 17 S. E. Rep. 789. May Compel Payment of Employees in Lawful Honey. --The act of March 7.1891, prohibiting corporations, etc., from paying their employees in other than lawful money, also the act of March 9, 1891, touching the weighing of coal, are not in violation of the Constitution of the United States or of West Virginia. Coal Co. v. State, 36 W. Va. 802, 15 S. E. Rep. 1000. Charter a Contract. — The charter of a strictly private corporation is almost universally admitted to be a contract and the legislature cannot, without the corporation's consent, alter its charter in a material respect, since it would be impairing the obligation of the contract, and consequently unconstitutional. Railroad Co. v. Transportation Co., 25 W. Va. 324. A Perry Franchise Private Property. — A ferry franchise is private property within the meaning of the constitution, which declares that private property shall not be taken or damaned for public use without Í ust compensation. Mason v. Harper’s FerryBridge Co., 17 W. Va. 396. Grant of a Charier Not Exclusive.- The grant of a charter to one corporation is not held to be exclusive and to prevent the chartering of rival companies, but whenever exclusive rights are intended express provisions must be introduced. Monopoly is not a matter of inference; it must rest its pretensions upon express grant. It is a restriction upon common right and legislative power, hence cannot be implied. Tuckahoe Canal Co. v. Tuckahoe R. Co., 11 Leigh 43, 36 Am. Dec. 374 ; Roper v. McWhorter, 77 Va. 214. Reserved Power of Modification or Repeal. May Repeal but Cannot Modify without Consent of Corporation. — “The power of the legislature to‘repeal. alter or modify the charter of any bank at its pleasure,' must be held to be limited to this extent. It may certainly repeal the charter of any bank, but it cannot compel a bank to accept an amendment or modification of its charter. Nor is any such amendment or modification of its charter binding npon the bank without ‘its acceptance. Banks are private corporations, created by a charter, or act of incorporation from the government. which is in the nature of a contract, and therefore, in order to complete the creation of such corporations, something more than the mere grant of a charter is required ; that is, in order to give to the charter the full force and effect of an executed contract, it must be accepted. It is clear that the government cannot enforce the acceptance of a charter upon a private corporation without its consent. These well-settled principles are everywhere recog - nized as applicable to the original charters of incorporation ; and upon principle and authority they apply with equal force to any amendment or modification of the charter as well as to the original charter. Though the legislature may have the reserved power to amend or modify a charter of incorporation, it can no more force the corporation to accept such amendment or modification, than it could have forced upon them the acceptance of the original charter without their consent. Under the reservation they can repeal or destroy the charter, without any consent on the part of the corporators, but as long as they remain in existence as a corporate body, they necessarily have the power to reject an amendment or modification of their charter. The power reserved by the legislature gives the right certainly to repeal or destroy, but so far as the right to modify or alter is concerned, it is nothing more than the ordinary case of a stipulation that one of the parties to a contract may vaiy its terms with the consent of the other contracting party. These principles grow out of the nature of charters or acts of incorporation, which are regarded in the nature of contracts. The amendment or modification must be made by the parties' to the contract, the legislature on the one hand, and the corporation on the other, the former expressing its intention, by means of a legislative act, and the latter assenting thereto by a vote of the majority of the stockholders, according to the provisions of its charter, or by other acts showing its acceptance. “The reservation of the right to alter, amend or repeal the act by which the corporation is created, maybe prudent and salutary; but it seems to be a necessary implication, that if the legislature should undertake to make what in their opinion is a legitimate alteration or amendment, the corporation has the power to reject or accept it, whatever may be the consequences. One consequence undoubtedly is, that the corporation cannot conduct its operations in defiance of the power that created it: and if it does not accept the modification or amendment proposed, must discontinue its operations as a corporate body. But such amendment or modification 300cannot be forced upon the corporation without its consent.” Christian, J., in Yeaton v. Bank of Old Dominion, 21 Gratt. 593; Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. Rep. 877. The act of March 1st, 1867. entitled "An act to authorize the J ames River & Kanawha Company to borrow money;” though, when accepted by the company, it created a contract between the company and the state, did not create a contract between the company and the holders of the state bonds therein mentioned; and though the company executed a mortgage on its property to secure the money authorized to be borrowed by said act, yet, if the company has not borrowed the money or made use of the bonds intended to be secured by the mortgage, it cannot be held to have accepted the terms of the act or become liable under its proviso. Stuart v. James River, etc., Co., 24 Gratt. 294. Not Necessary to an immaterial Change. — A limited power to borrow money conferred on a building association by a new charter, is not such a radical departure from the original design and business of the company as would necessitate the assent of each member of the company in order that he may be bound by it. Bosang v. B. & L. Ass’n, 96 Va. 119, 30 S. E. Rep. 440. A Branch Bank Cannot Accept Modification for Mother Bank. — a branch bank, having no separate charter has no power to accept a modification of the charter of the mother bank. Yeaton v. Bank of Old Dominion, 21 Gratt. 593. Cannot Disturb Existing Contracts. — Under the reserved right "to repeal, alter or modify” the legislature may alter the charters of banks or take them away altogether, but it cannot disturb contracts lawfully made under such charters, or disturb rights already legally vested under the old charters. Anderson, J., dissenting. Bank of Old Dominion v. McVeigh, 20 Gratt. 457. May Be Exercised Either by General or Special Law. Under a power of modification or repeal reserved in the charter, the charter may be modified by a general law as well as by special act, so as to make shareholders personally liable, and those who become, or continue shareholders, must be understood as consenting to it. Anderson v. Com., 18 Gratt. 295; Robinson v. Gardiner, 18 Gratt. 509; Va. Devel. Co. v. Crozer Iron Co., 90 Va, 126, 17 S. E. Rep. 806. Distinction in Case of Quasi-Public Corporation.— But a quasi-public corporation having accepted a franchise in which the public has an interest, is subject to the control of the legislature as to its charges, etc., in the exercise of the police power, and a provision in their charter fixing a maximum charge, is not a contract, but amounts to nothing more than a license which may at any time be changed by the sovereign power from the state. Railroad Co. v. Transportation Co., 25 W. Va. 324. May Take Away Exclusive Privileges. — The right to establish ferries and toll bridges is in the legislature and that body can at any time, by a repeal of the general law, take away all the exclusive privileges of proprietors theretofore existing; but it has not done so in West Virginia. Mason v. Bridge Co., 17 W. Va. 396. When Mandamus Will Lie to a Corporation to Compel a Transfer of Stock. — Where a by-law requires that the transfer of shares be made on the books of the bank and the right to a transfer is established, if the bank refuses to open its books and allow the transfer, a court of equity will compel the bank to transfer not only the shares but the accrued dividends, since it is a case for specific performance and damages would be inadequate. Feckheimer v. Bank, 79 Va. 80. To Compel Performance of Its Corporate Duties.- ■ Mandamus will lie to a corporation to compel it to perform the duties imposed upon it by its charter, viz. issuing a transfer when required to do so by its charter. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S. E. Rep. 775. Sunday Laws Applicable to Corporations Engaged in interstate Commerce. — In Norfolk & West. R. Co. v. Com., 88 Va. 95, 13 S. E. Rep. 340, the statute, Code Va. 13801, prohibiting the running of trains on Sunday, with certain specified exceptions, was held void as in conflict with the United States constitution, as an improper regulation of interstate commerce, whether intended to be so or not, in a matter of national concern, and that it made no difference that Congress had not acted in the matter; and it could not be justified as an exercise of the police power. Long, J., dissenting. But in Norfolk & West. R. Co. v. Com., 93 Va. 761,24 S. E. Rep. 837, this same statute was upheld as constitutional, as being a valid exercise of the police power, and, though in this case the train consisted only of empty coal cars, hence was held not to be engaged in interstate commerce, yet the court expressly disapproved of the decision in Norfolk & West. R. Co. v. Com., supra, saying, “A state may, in order to secure and protect the lives and health of its citizens, or to preserve good order and the public morals, legislate for such purposes, In good faith and without discrimination against interstate or foreign commerce, without violating the commerce clause of the United States constitution although such legislation may sometimes touch in its exercise the line separating the respective domains of national and state authority, and to some extent affect foreign and Interstate commerce." State v. Railroad, 24 W. Va. 783. B. THE TERM “PERSON” AS APPLIED TO CORPORATIONS. — "The term ‘person’ used in law, is unquestionably sufficiently comprehensive to embrace corporations; and it must be held to embrace them, unless there is something in the law showing the legislative, intent to restrict its application." Cabell, J., in Stribbling v. Bank of the Valley, 5 Rand. 132; Crafford v. Supervisors, 87 Va. 110, 12 S. E. Rep. 147; State v. B. & O. R. Co., 15 W. Va. 362. “Corporations are to be deemed and taken as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in a statute.” Allen, J., in B. & O. R. Co. v. Gallahue, 12 Gratt. 655; W. U. Tel. Co. v. Richmond, 26 Gratt. 1; Quesenberry v. Ass’n, 44 W. Va. 512, 30 S. E. Rep. 73; Bank v. Distilling Co., 41 W. Va. 530, 23 S. E. Rep. 793. See Code Va. 1887, § 5, subsec. 13; Code W. Va., ch. 13, sec. 17, clause 9. Especially Is this true of statutes imposing a tax in which the word "persons” embraces corporations unless excluded by express terms or necessary implication. Miller v. Com., 27 Gratt. 110. "For civil purposes, corporations are in law deemed persons. The only doubt has been whether that word would be so construed as to embrace them within the purview of penal statutes, and in the case of U. S. v. Amedy, 11 Wheat. 393, the court decided that under the act of Congress making it felony to destroy a vessel with the intent to prejudice any person or persons that had underwritten such vessel corporations were comprehended.” Allen, J., in U. S. Bank v. Merchant’s Bank, 1 Rob. 573. But see Miller v. Com., 27 Gratt. 110. 301Corporations are in law for civil purposes deemed persons; they have power to plead, be impleaded, grant or receive by their corporate names and to do all other acts within the purview oí their corporate power, which natural persons can do. B. & O. R. Co. v. Gallahue, 12 Gratt. 655. A corporation is a "person” so as to come within the purview of the act, 11?. G. 1819, p. 174. directing the method oí proceeding against absent debtors in courts of equity so that a suit may be maintained against a foreign corporation where it has estate within the commonwealth. Bank of U. S. v. Merchants' Bank. 1 Rob. 573. Stanard and Brooks. JX, dissenting. B. & O. R. Co. v. Gallahue, 12 Gratt. 655. Liable as Garnishee. — A corporation is liable as garnishee under the attachment laws, being included in the word "person" used in the statute. B. & O. R. Co. v. Gallahue. 12 Gratt. 655. Subject to the Usury Laws. — Corporations generally are within the usury laws; being included under the designation of "person.” The fact that a bank is allowed to take a traction of a per cent, more than the generallaw allows does not amount to a general repeal of the usury law as to that bank, but is only a protection against the usury law up to the specilied limit. Stribbling v. Bank, 5 Rand. 132; Crabtree v. Ass'n, 95 Va. 670, 29 S. E. Rep. 741, 4 Va. Law Reg. 12, and note. Effect of Rule of Ejusdem Generis. — But, in Lynchburg v. R. Co., 80 Va. 237. it was held that a section of the charter of the city of Lynchburg which granted authority to impose a license tax upon persons engaged in certain enumerated callings and “upon anj* other person or employment, 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 corporation, “which is neither a person nor employment'in the ordinary acceptation of these words.” Hinton, J. The decision was based on the rule of ejusdem generis. F. POWERS OP CORPORATIONS. Corporation Must Exercise Its Powers Collectively, Not Individually. — Where authority is conferred on a corporation aggregate by statute to make contracts, neither a majority of the members, nor all of them acting separately have the power to bind the corporation; one of the principal objects being'the concurrent counsel and deliberation of the members acting together; and of course, if they cannot 'jfiake a binding' contract acting separately, they cannot, individually, ratify what has been done, so as to bind the corporation. A corporation can only act as a body or by its authorized agents. Penn. Lightning Rod Co. v. Board of Education, 20 W. Va. 360. Implied Powers.--"Corporations aggregate are artificial beings created tor specific and limited objects, public or private, in order to conduct and continue in succession the interests pertaining to those objects. by the exercise collectively of appropriate, legitimate means, such as natural persons may employ individually. . The difference between the powers of corporations and individuals is to be found mainly in the limited objects of the former, and the necessity of their acting in a concrete character. It is essential to corporations, as well as individuals, that they should have the capacity to sue and be sued, to make contracts, to acquire and alienate property. Without these powers the purposes of their institution could not be accomplished. But they have not, like individuals, an unlimited discretion in the application of these powers. They may not exercise them ior purposes foreign to their creation. A bank of discount and deposit cannot engage in manufacturing or agricultural pursuits; an insurance or mining company cannot discount bills or notes, or circulate their paper an money: a road or navigation company cannot speculate in lands or stocks. But all such corporations have the right to secure and collect debts due to them, and consequently to obtain deeds of trust or mortgages therefor upon property real or personal, or to commute them by taking in payment assignments of chases in action, or conveyances of lands or goods. The authority to use such means is to be determined by the lawfulness of the end which they are employed to accomplish. “It is true that the capacity of corporations at common law to purchase and hold lands and chattel» is laid down broadly in the books, though I am not aware of any case in which the question was made whether this power was unlimited. However this may be. I think it clear that our statutory corporations cannot take and hold real estate for purposes wholly foreign to their creation.” Rivanna Nav. Co. v. Dawsons, 3 Gratt. 20; The Banks v. Poitiaux. 3 Rand. 136; Wroten v. Armat, 31 Gratt. 228. Whilst no powers will be implied except those only which are incident to the very existence of the corporation or so necessary to the enjoyment of some special grant that without the implied power such right would fail, yet it is an established principle that corporations may exercise all the powers within the fair intent and purpose of their creation which are reasonably proper to give effect to powers expressly granted. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866. Implied Powers flay Be Curtailed by the Provisions of the Charter.--lt is, moreover, unquestionable that the general incidental power of a corporation, whether derived from the common or the statute law, may be curtailed by the provisions of its legislative charter, either expressly or by necessary implication. Thus the charter may in terms prohibit the corporation from purchasing lands or goods for any purpose whatever, or for any but a particular specified purpose; or the prohibition may be implied from an insertion, by way of enactment, of the general incidental power to purchase, with a proviso limiting it to a given purpose. But a general prohibition would not be inferred from a mere partial enactment of the incidental common-law power; as, for example, from a clause authorizing a bank, insurance or manufacturing company to purchase land for the erection of its necessary buildings. Such a clause, whether with or without limitation as to quantity or value, would not exclude the incidental power to take mortgages or other securities on real or personal estate, for debts due the corporation, or assignments or conveyances of chattels or lands in commutation therefor. The incidental capacity of a corporate body to acquire property for its chartered objects, is for the most part salutary, and the entire prohibition of it would often be productive of great inconvenience. Nothing is easier, whenever sound policy may require the denial of this otherwise inherent power, than a plain manifestation of such legislative intent in the charter of incorporation; and it ought not to be lightly inferred, but made manifest by express terms or necessary implication. Rivanna Nav. Co. v. Dawsons, 3 Gratt. 19; Wroten v. Armat. 31 Gratt. 228. 302Powers of Corporations Depend upon the True Construction of Their Charters. — whatever the implied powers of corporations aggregate may be at common law and the modes hy which those powers are to he carried into operation, corporations, either private or public, created by statute, must depend, both for their powers and the mode of exercising them upon the true construction of the statute creating them; they are precisely what the statute has made them, they derive all their powers from the statute, and are capable of exercising their powers only in the maimer prescribed or authorized hy it. Penn. Lightning Rod Co. v. Board of Education, 20 W. Va. 360; B. & O. R. Co. v. Supervisors, 3 W. Va. 319; Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. Subject to the Police Power of the State. — A corporation, where it is not otherwise provided in its charter expressly or by clear implication, in the use of its property, the exercise of its powers and the transaction of its business, stands upon the same footing as natural persons and is subject to the same control under the police powers of the state or a municipal corporation. Under this police power a city ordinance forbidding a railroad to propel cars through certain crowded streets of'a city by steam, was upheld as not impairing the obligation of the contract of incorporation. Richmond, Fred’g & Pot. R. Co. v. City of Richmond, 26 Gratt. 83. Power of Corporation to Contract — Necessity for Seal. Old Rule — New Rule. — In ancient times corporations aggregate could do nothing except hy deed under their corporate seal. But this rule cannot now he supported as a general proposition. A corporation, like a natural person can grant’or convey land only hy deed but it is now firmly established that a corporation may he bound by promises express or implied, resulting from the acts of its authorized agents, although such authority be conferred only hy virtue of a corporate vote unaccompanied by the corporate seal. Penn. Lightning Rod Co. v. Board of Education, 20 W. Va. 360. A corporation may make a contract without the use of a seal in all cases where this may he done by an individual. Grubbs v. Insurance Co., 94 Va. 589, 27 S. E. Rep. 464; Kelly v. Board, 75 Va. 263; Banks v. Poitiaux, 3 Rand. 136, 15 Am. Dec. 706; Legrand v. Hampden-Sidney College, 5 Munf. 324. Realty Passes Only by Deed. — When the charter of a corporation declares its stock to be personal estate, but that its real estate should only be conveyed as other real estate, such real estate will not pass except hy deed duly executed. Barksdale v. Finney, 14 Gratt. 338. Seal nust Be Affixed by Authority of Corporation, and Be Intended for a Seal. — The mere presence'of what purports to he- the seal of a corporation impressed upon a contract that would he a valid and binding contract, though not under seal, will have no effect on its apparent character without- proof that the seal is the seal of the corporation and was affixed by its authority and that it was the intention of the parties that it should he a sealed instrument. Grubbs v. Insurance Co., 94 Va. 589, 27 S. E. Rep. 464, 3 Va. Law Reg. 279, and note. Private Seal of PresidentNot Sufficient. — To constitute a valid deed of a corporation, the corporate seal must he affixed, the private seal of the president is not sufficient; but such an instrument purporting to he a deed of trust of the corporation though invalid as the “deed” of the corporation, is valid as a mortgage of the personal property of the corporation, which it purports to convey. Rauch v. Oil Co., 8 W. Va. 36. Sufficient Authority to Execute Deed. — When a corporation, at a meeting of stockholders, authorizes the officers of the corporation to execute a deed under the direction of the executive committee, that is sufficient authority to the president to execute the deed under the direction of said committee. Merchants’ Bank v. Goddin, 76 Va. 503. Presumption That Seal Was Affixed by Proper Authority. — The rule is well settled thatif a contract purports to he sealed with the seal of the corporation and it is proved to be signed and executed by the proper agents, the presumption is that the seal was regularly affixed by the proper authority; and a contract under seal, executed by an agent within, the scope of his appointed power, will he held valid and binding upon the corporation until evidence to the contrary has been introduced, and the presumption of authority to affix to the instrument the seal of the corporation willnot he overcome by the mere fact that no vote of the directors authorizing it is shown, since it is often-the case that large powers are executed by corporate officers with the tacit approval of the corporation, and if the stockholder has notice of the contract and acquiesces hy failing to make any inquiry as to its validity, he is estopped to question its validity afterwards. Fidelity Ins. T. & S. D. Co. v. Shenandoah Val. R. Co., 32 W. Va. 244, 9 S. E. Rep. 180. The President a Proper Person to Execute the Deed. —A deed of a corporation, executed by the president under the seal of the corporation, is a valid deed. Merchants’ Bank v. Goddin, 76 Va. 503. Where the deed of a corporation was signed hy the corporation, by its president, with the corporate seal affixed and the certificate of the notary stated that "Thos. L. Rosser, president, whose name is signed to the writing hereto annexed,” acknowledged the same before him in his county, this was held a sufficient execution of the deed by the corporation. Banner v. Rosser, 96 Va. 238, 31 S. E. Rep. 67. Sea! Hust in Any Case Be Acknowledged. — The seal of a corporation, even though an actual seal, must he acknowledged in the body of the instrument. Salt Co. v. Norfolk, etc., Co., 95 Va. 461, 28 S. E. Rep. 567, 3 Va. Law Reg. 722, and note. Sufficient Acknowledgment of Seal. — it is a sufficient acknowledgment of a corporate seal in the body of an instrument, if the instrument is there acknowledged to be a bond, inferentially an instrument under seal. Dinwiddie Co. v. Stuart, 28 Gratt 526. Act Validating Deeds of a Corporation Must Not interfere with Vested Rights. — The Act approved March 1, 1894 (Acts 1893-4, p. 580) validating deeds in favor of a corporation, which were acknowledged before a notary, who was an officer or stockholder of the corporation at the time, is unconstitutional in so far as it impairs the lien of judgments recovered and docketed prior to the approval of such act. Merchants’ Bank v. Ballou, 98 Va. 112, 32 S. E. Rep. 481. Defective Certificate of Acknowledgment of a Deed.— A certificate of acknowledgment of a deed conveying real estate by a corporation, which fails to show that the officer or agent executing it was sworn, and deposed to the facts contained in the certificate, as required by sec. 5, ch. 73, Code, is fatally defective, and does not entitle such deed to be recorded. Abney v. Ohio Lumber & Mining Co., 45 W. Va. 446, 32 S. E. Rep. 256. 303Defence of Usury Not Available to Corporation.- The j Act of March 22, 1873. Code Va. 1887. sec. 2825, im>ro-1 hunting the defence of usury to corporations is not In violation of the federal constitution or that of Virginia and is retroactive in its operation, even though suit has been brought on such a contract before its passage. Danville v. Pace, 25 Gratt. 1. Relation of Corporation to Stockholder Not a Fiduciary One.- — An individual stockholder is not, by reason of being a stockholder, a part owner of the property of the corporation, or entitled to act for it as its agent; but he stands as a stranger towards it and may sue it and. be sued by it and deal with it at arm's length. Kanawha Coal Co. v. Ballard & Welch Coal Co . 43 W. Va. 721. 29 S. E. Rep. 514. flay Contract with Its Members.- An incorporated company is. in a legal point of view, wholly distinct from the persons composing it and may make any contract with one of its members or stockholders that it might make with a stranger. Biggs v. Elliston Dev. Co., 93 Va. 494, 25 S. E. Rep. 113. flay Secure Debts to Shareholder. — A corporation may contract debts to its individual corporators and is as much bound to pay or secure such debts as debts due to strangers, and the fact that a deed is given to secure such debts does not render it fraudulent unless some fraudulent intent is shown. Burr v. McDonald. 3 Gratt. 215: Hope v. Salt Co., 25 W. Va. 789. Ultra Vires Contracts. When Corporation May Set up Defence of “Ultra Vires.” — When want of power is apparent upon comparing the act done with the terms of the charter, the party dealing with the corporation is presumed to have knowledge of the defect, and the defense of •ultra ■tires is available against him. But .such a defense would not be permitted to prevail against a party who cannot be presumed to have had any knowledge of the want of authority to make the contract. Hence, if the question of authority depends nor merely upon the law under which the corporation acts, but upon the existence of certain extrinsic facts resting peculiarly within the knowledge of the corporate officers, then the corporation would be estopped from denying that which, by assuming to make the contract, it had virtually affirmed. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73, 16 S. E. Rep. 505. Where there is nothing on the face of the paper indicating that a corporation has exceeded its corporate powers in the execution of a mortgage, it will not be allowed to plead “ultra vires'' in 'a suit to enforce it. The stockholders only can object, not the corporation itself. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73. 16 S. E. Rep. 501. Who May Contest Ultra VSrss Acts. - The corporation can contest an ultra vires act of its directory, also the attorney general may restrain a corporate excess which tends to the public injury. But the president and directors, avS such, have no authority to sue in behalf of the corporation. Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. Rights of a Minority of Shareholders. — in order to give standing in a court of equity to a small minority of shareholders, contesting, as ultra vires, an act ox the directors, it must appear that they have exhausted all the means within their reach to obtain redress of their grievance within the corporation itself and that they were stockholders at the time of the transaction complained of or that the shares have devolved on them since, by operation of law. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73, 16 S. E. Rep. 501. Contracts Fairly within the Objects of Incorporation Not “Ultra Vires.” — A contract by a railway company to deliver a certain number of bales of cotton in a certain place at a specified time is not ultra vires a railroad corporation, being incident to and for the benefit of their business as common carriers, and not forbidden by their charter. The court, citing 1 Wood Ry. Law, pp. 179, 480, said: “There is no question but that, under the head of its implied powers, a corporation, especially a railroad corporation, may, in order to increase its business, enter into many contracts and undertakings which are not strictly within its express powers, if they are not expressly prohibited and are essential to promote the business of the corporations, or add materially to the convenience of its prosecution.” R. Co. v. Compress Co., 83 Va. 272, 2 S. E. Rep. 139. Where the charter of a corporation authorizes a bond issue, an application of the proceeds to pay off the floating debts of the corporation is not ultra vires. Addison v. Lewis, 75 Va. 701. Jurisdiction of Equity to Annul Such Contracts.— Equity has jurisdiction to declare null and void an order of the board of directors of a corporation that is ultra vires and obstructs its rights to property, though thatorder be void. Ravenswood, etc., R. Co. v. Woodyard, 46 W. Va. 558. 33 S. E. Rep. 285. Corporation a Necessary Party. — in a suit to annul an act of a corporation as ultra vires, the corporation is a necessary party. Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. Power oí Corporations to Acquire Land. Charters Merely Directory.--“it seems to me. that the charters limiting the amount of land that a corporation may acquire are merely directory. They impose no penalty in terms. They do not declare the purchase by or conveyance to the banks to be void, nor vest the title in the commonwealth or any other than the banks in consequence of such purchase and conveyance. The legal title passed to the banks by the conveyance to them, and their conveyance would effectually transfer that title to any other. If, in making the purchase of the land in question, the banks violated their charters, the corporation might, for that cause, be dissolved by a proceeding at the suit of the commonwealth: and even in that case, it seems the better opinion that the property, if not previously conveyed away would revert, upon the dissolution of the corporation, to the grantor and not to the commonwealth. But any conveyance made by the corporation, before its dissolution would be effectual to pass its title. The banks therefore have a title which they can convey to the appellee and which would, in his hands, be indefeasible. It would seem extremely inconvenient ill a contractor wilh one of these banks could for the purpose of avoiding his contract, institute the inquiry whether the bank had violated its charter.” Green, in The Banks v. Poitiaux, 3 Rand. 136; Fayette Land Co. v. L. & N. R. Co., 93 Va. 274, 24 S. E. Rep. 1016: Litchfield v. Preston, 98 Va. 530, 37 S. E. Rep. 6, 6 Va. Law Reg. 397, and note; Wroten v. Armat, 31 Gratt. 228. It seems that where the corporation is trying to enforce a sale by it of lauds already acquired contrary to its charter, specific performance will be enforced, but not where the corporation is trying to enforce a sale to itself in violation of its charter. Banks v. Poitiaux, 3 Rand. 136, and dictum in Fayette 304Land Co. v. Louisville, etc., R. Co., 93 Va. 274, 24 S. E. Rep. 1016. Such Charters Construed Liberally. — Under an act of assembly, authorizing a hank to hold as much real property as may be requisite for its immediate accommodation, in relation to the convenient transaction of its business, and no more, the bank may purchase more ground than is necessary for the erection of a banking house, build fire-proof houses on the vacant land, for the greater security of the banking house, and sell them to third persons. Banks v. Poitiaux, 3 Rand. 136. See also, Davis v. Lee Camp (Va.), 18 S. E. Rep. 839. Statute of ilortmain Not in Force in Virginia. — The statute of mortmain has never been adopted into the law of Virginia, and there is no proceeding authorized by the common or statute law of Virginia under which lands acquired by a corporation in violation of its charter can be forfeited to the state. Fayette Land Co. v. Louisville & Nashville R. Co., 93 Va. 274, 24 S. E. Rep. 1016; Rivanna Nav. Co. v. Dawsons, 3 Gratt. 19. Incapacity to Take Not Inferred from Inhibition to Hold. — An incapacity to take will not be inferred from an inhibition to hold, though the policy of the latter be to prevent the accumulation by the corporation of a specified description of property, if the purpose of the conveyance be a sale of the property by the corporation, and the application of the proceeds to the objects contemplated by the charter. Rivanna Nav. Co. v. Dawsons, 3 Gratt. 19; Banks v. Poitiaux, 3 Rand. 136. Prohibition to Take Land as SecurityDoes Not Avoid the Security. — A prohibition on a bank to take a deed of trust or mortgage to secure loans will not render the security void, for such a provision is made for the benefit of the government and not of the borrower and the government alone can take advantage of it or not at its pleasure. Wroten v. Armat, 31 Gratt. 228. Power to Alienate Its Franchise, Must Be Authorized by Its Charter, Private Corporations. — A private corporation, unless authorized by charter to do so, cannot lease or dispose of its franchise or its property needful in the performance of its obligations to the state, without legislative consent.' Dictum in Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. Such authority is now given by statute in Virginia, in case of a foreclosure and sale under a deed of trust or mortgage, or under a decree of court, of all the works and property of an internal improvement company. Code Va. 1887, §§ 1233-4, 1236, Acts 1891-2, p. 623; 1 Va. Law Reg. 546. Quasi°PubIic Corporations. — in Roper v. McWhorter, 77 Va. 214, a ferry was held to be a quasi-public franchise, in the proper exercise of which the public was interested, hence could not be transferred without express legislative authority. A quasi-public corporation has the power to mortgage its property for the furtherances of the objects of its creation, when authorized by the legislature. Enders v. Board of Public Works, 1 Gratt. 364. Cannot Thus Exempt Itself from Liability. — A railroad corporation cannot, without distinct legislative authority, by lease or any other contract, turn over to another company its road and the use of its franchises, and thereby exempt itself from responsibility for the conduct and management of the road. Ricketts v. R. Co., 33 W. Va. 433, 10 S. E. Rep. 801, 25 Am. St. Rep. 901; Fisher v. R. Co., 39 W. Va. 366, 19 S. E. Rep. 578; Naglee v. R. Co., 83 Va. 707, 3 S. E. Rep. 369, 5 Am. St. Rep. 308. Power to Subscribe to Stock in Another Corporation May Take Such Stock as. Security. — The taking of stocks and/bonds of another corporation merely as collateral security for advances made to such corporation does not come within the prohibition of the Code of W. Va., prohibiting one corporation from subscribing to or purchasing the stocks, bonds or other securities of another corporation except in payment of a bona fide debt County Court v. R. Co., 35 Fed. Rep. 161. May Be Authorized by Law. — A law authorizing a bank to subscribe toülhe stock of a joint stock company is valid. Goddin v. Crump, 8 Leigh 120. Hay Accept Devise or Bequest of Its Own Stock. — A corporation has the power to accept a devise or bequest of its own stock whether such is declared by its charter to be realty or personalty. Rivanna Nav. Co. v. Dawsons, 3 Gratt. 19. Power to Accept Bequests. — Corporations have the legal capacity to take charitable bequests, when, and to the extent, authorized b3r their charters. Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep. 302; University v. Tucker, 31 W. Va. 621, 8 S. E. Rep. 410; Roy v. Rowzie, 25 Gratt. 599. Parol Evidence Admissible to Show Identity of Cor« poration. — Roy v. Rowzie, 25 Gratt. 599; Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep 302. Corporation May Act as Trustee. — The old rule that a corporation could not be a trustee has been long rejected and now the well-established doctrine is that corporations of every description may take and hold estates as trustees for purposes not foreign to the objects of their creation and existence and they may be compelled by the courts to carry the trusts iuto execution. Prot. Epis. Ed. Soc. v. Churchman’s Reps., 80 Va. 718. Power to Form a Partnership with a Natural Person. —The authorities are conflicting as to whether a corporation can form a partnership with an individual; but it is believed that the weight of authority is against such power. A dictum in Wilson v. Carter Oil Co., 46 W. Va. 469, 33 S. E. Rep. 249. Where a corporation and an individual have, assumed to enter into a partnership, and jointly transacted business together, they may recover, by reason of their j oint interest, upon obligations made to them in their partnership name, irrespective of their partnership rights and duties as between themselves, or the power of such corporation to execute the powers incident to a partnership. Wilson v. Carter Oil Co., 46 W. Va. 469, 33 S. E. Rep. 249. Power to Borrow Money. — A private manufacturing company may borrow money to carry on its operations. Burr v. McDonald, 3 Gratt. 215; Pyles v. Riverside Furniture Co., 30 W. Va. 123, 2 S. E. Rep. 909. Certification of Mortgage Bonds by Trustee. — Where certain first mortgage bonds have been deposited as security for general mortgage bonds, it is not necessary for them to be certified by the trustee, and if it were, it is such a power coupled with a trust that, a court of equity will compel its execution. Atwood v. R. Co., 85 Va. 966, 9 S. E. Rep. 748. Power to Make an Assignment for the Benefit of Creditors. — A corporation has the power to make a deed of assignment to trustees for the benefit of creditors. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866; Planters' Bank v. Whittle, 78 Va. 737; Burr v. McDonald, 3 Gratt. 215; Lamb v. Cecil, 25 W. Va. 288. A bank has the power to make an assignment of its assets for the benefit of its creditors independ305entl.v of the Act of Feb. 1860. Farmers’ Bank v. Willis. 7 W. Va. 31. manner of Making Assignment - -A corporation may execute a deed of assignment by any agent duly atithoj ized and a, deed .prepared according to the directions of the corporation and approved by the company in general meeting is valid. Burr v. McDonald. 3 Gratt. 215. Passes Unpaid Subscriptions - Construct ion. — A deed of assignment to trustees for the benefit of creditors. of all the property of a corporation, passes all unpaid subscriptions to the trustee, with the right to collect, the same, when a call has been duly made, by suit in his own name, as well under the statute, Code 1873, ch. Ill, sec. 17, as in the exercise ox the original powers of a court of equity. Such a deed is to be construed by the law of the domicil of the corporation. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866. Effect of Sale under Deed of Trust, - In Wash. Alex. & Georg. R. Co. v. Alex. & Wash. R. Co., 10 Gratt. 624, Dorman, J.. was of opinion that ch. 61, §§ 28, 29. Code Va. 1860, providing that a sale under a deed of trust or mortgage of a corporation’s property, passed subsequently acquired property as well, that the corporation was ipso .facto dissolved and the purchaser became a corporation, did not apply to the sale by a trustee of a mere equity, conveying no legal title. See Code Va. 1887, §§ 1233, 1234, 1236; Acts 1891-3. p. 623. Power to Create Preferences. In Virginia. — A deed by a private manufacturing corporation incorporated in 1833, in trust to pay its debts, which gives preferences in favor of some of its stockholders who had been sureties for the corporation, was valid, the Act of Feb. 13, 1837. Sess. Acts, ch. 84, § 17, prohibiting such preferences by mining and manufacturing corporations not applying. Burr v. McDonald. 3 Gratt. 215. Prior to the act of 1837 there was no law prohibiting preferences by any insolvent private corporation. Pyles v. Riverside Furn. Co., 30 W. Va. 123, 2 S. E. . Rep. 909. See also. Planters’ Bank v. Whittle, 78 Va. 737. For present statute, see Code Va. 1887, § 1149. In West Virginia.- -The law in West Virginia was the same as in Virginia until 1863, when the provisions of the Act of 1837 were omitted from a general reenactment of the law governing corpora lions, so that trust deeds preferring creditors executed in 1883. 1883 and 1881 were valid, since there was nothing, at that time, in the policy of the West Virginia statutes. against snc.h preterences. Pyles v. Riverside Furn. Co., 30 W. Va. 123, 2 S. E. Rep. 909. Butin Hulings v. Hillings Lumber Co.. 38 W. Va. 351, 18 S. E. Rep. 621, the court said that the policy of the West Virginia statutes was changed adversely to such preferences by ch. 74, sec. 2, Code W. Va. Now Enure Ratably to the Benefit of All Existing Creditors. — A deed of trust executed by a corporation, if not executed to secure a debt contracted, or money borrowed at the time of the creation of the lien, will enure ratably to all the creditors existing at the time of the creation of the lien. Code Va. 1873, ch. 57, \| 63: Code Va. 1887, § 1149; Clinch River Veneer Co. v. Kurth. 90 Va. 737, 19 S. E. Rep. 878; Haskin Wood-Vulcanizing Co. v. Cleveland Ship Building Co.. 94 Va. 439, 26 S. E. Rep. 878, 3 Va. Law Reg. 108, and note. Hardy v. Mfg. Co., 80 Va. 404. A Confession of Judgment Is a Voluntary Preference within the Statute. — A confession of judgment by a corporation chartered by a court, for an antecedent debt, is such an Illegal voluntary preference as comes within the purview of sec. 1149. Code Va. 1887; hence will enure ratably to the benefit of all credit, ors whose debts existed at the time. Rnai/r, j, saying oKiur that such a corporation might suffer a judgment, where it had no defense. Tatev. Building Ass’n, 97 Va. 74, 33 S. E. Rep. 383. Statute Applies io the Creation of a Lien, Not to the Payment of Imiobtadness. -An assignment of bonds of a corporation at their face value in discharge of the company’s indebtedness and not as security for the indebtedness of the company is not the creation of a lien so as to come within the language of the statute providing that “Any lien or incumbrance created by any company on its works or property lor the purpose of giving a preference to one or more creditors of the company over any other creditor or creditors, except to secure a debt contracted or money borrowed at the time of the creation of the lien or encumbrance shall enure ratably to the-benefit of all the creditors of the company.” Code Va. 1873, ch. 57, § 63; Code Va. 1887, § 1149: Planters" Bank v. Whittle, 78 Va. 737. Priority of Lien to Those Furnishing Supplies, etc. - Sections 2485, 2486, providing that employees and persons furnishing supplies to railroads, mining and manufacturing companies shall have liens superior to mortgages, deeds of trust, etc., executed since March 21, 1877, is not in conflict with the 14th amendment to the United States Constitution, as being special and class legislation, and pig iron furnished to a rolling mill is included among such “supplies.” The supply liens are given precedence over all mortgages, etc., executed since March 31,1887, not merely over those executed between that date and May 1, 1888. Va. Devel. Co. v. Grosser Iron Co., 90 Va. 126, 17 S. E. Rep. 806. The Capital Stock a Trust Fund for the Benefit of Creditors. — The capital stock of a corporation is a trust fund for the benefit of creditors: for the same reason, the entire assets are also, and the directors are the trustees for the creditors of the corporation. Lamb v. Laughlin, 25 W. Va. 300; Lamb v. Pannell, 28 W. Va. 603; Sweeney v. Refining Co., 30 W. Va. 443, 4 S. E. Rep. 431; Newcomb v. Brooks, 16 W. Va. 63; Hardy v. Manufacturing Co., 80 Va. 404. Especially, the Unpaid Subscriptions, — “Corporate property and assets, especially the unpaid subscriptions, constitute a trust fund, specially set apart for the payment of corporate debts, upon the faith of which those debts were contracted, and it will be pursued and subjected to the satisfaction of the corporate liabilities. When, as in this case, a joint stock company makes an assignment for the benefit, of its creditors, all the property and assets of the company, embraced in the deed, pass thereby to the trustees for the purposes of the trust, as pro videdbythe instrument; and the effect of'the assignment is to divest the company of the right to collect and apply such assets, and to vest that authority in the trustees. Though the company does not, and cannot, assign its right of franchise to make the calls necessary to enable the trustees to pay off the debts, and it remains its duty to make such call, yet if it neglects or stubbornly refuses to discharge that duty, and a court of equity is. called on to administer the trust, a,nd it appears that the trustees named in the deed have proved inefficient, or are not, for reasons satisfactory to the court, the proper persons to execute the trust, such court will remove them and appoint another or others in their place, and confer upon the trustee or trustees substituted, all the powers and authority necessary to the prompt and faithful execution of 306the trust; which authority is not only conferred upon the court by our statute, but is necessarily incident to the exercise of its ordinary powers touching the administration of trusts. In short, the application of these principles exemplifies the fact that corporations, as well as natural persons, must pay their debts.” Lewis v. Glenn, 84 Va. 981, 6 S. E. Rep. 866. G. EMINENT DOMAIN. — See monographic note on “Eminent Domain.” May Be Delegated to Private Corporations. — The right of eminent domain appertains to every independent government, .and may be delegated to private corporations, to'be exercised by them in the execution ot works, in which the public is interested. B. & O. R. Co. v. P. W. & K. R. Co., 17 W. Va. 841; W. Va. Trans. Co. v. Vol. O. & C. Co., 5 W. Va. 382. Must Condemn the Fee Simple. — Corporations except a turnpike company condemning land under Code Va. 1873, ch. 56, sec. 11, Code Va. 1887, § 1079, must take and pay for the fee simple and not merely an easement, and such provision is not unconstitutional. Roanoke v. Berkowitz, 80 Va. 616. Corporation Must Pay Money into Court, Where the Title is Disputed. — A corporation can only acquire a clear title to land condemned for its purposes by paying the damages into court, so that parties in interest may be convened before the court. Robinson v. Crenshaw, 84 Va. 348, 5 S. E. Rep. 222. Telegraph and Telephone Poles an Additional Servitude. — Placing of poles on a public highway constitutes an additional servitude, and the act Feb. 10, 1880, Code Va. 1887, §§ 1287-1290 authorizing telegraph and telephone companies to erect their poles along the public roads, etc., does not authorize them to do so without compensating the owners of the fee, since the public have only the easement of right of way and such taking without compensation would violate the constitutional prohibition against taking private property without compensation. W. U. Tel. Co. v. Williams, 86 Va. 696, 11 S. E. Rep. 106. Property of a Corporation Equally Subject to the Right of Eminent Domain. — The property of a corporation is as much subject to the right of eminent domain as that of a natural person, whether consisting of the land itself or a mere right of way and if the charter of a railroad company authorizes it to cross the right of way of a canal company, it may do so .provided they do not obstruct the traffic of the canal, on payment of a just compensation, condemning -the land as the property of the canal company if they own it; but if they have only aright of way, condemning it as the property of the original owner subject to the right of way of the canal company. Tuckahoe Canal Co. v. Tuckahoe R. Co., 11 Leigh 43. There is nothing so sacred in the title of a railroad company to property, that it cannot be taken under the exercise of the right of eminent domain. Property belonging to a railroad company and not in actual use necessary to the proper exercise of the franchise thei'eof may be taken for the purposes of another railroad under the general railroad law of the state. An express legislative enactment is generally required in order to take such property in use by a railroad company, except where the proposed appropriation would not d estroy or greatly injure the franchise of the company, or render it difficult to prosecute the object thereof. B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 812, 852. H. LIABILITY OF CORPORATIONS. Civilly. Corporations Liable Civilly for the Torts of Their Agents, Committed within the Scope of Their Employment. — it was at first doubted whether a corporation was in any case liable in a civil suit for the torts of its agents, especially whether an action of trespass would lie against a corporation. But modern authorities all agree, that corporations are liable for torts committed by their agents in the discharge, of the business of their employment and within the proper range of such employment and that too whether the tortbe one, the responsibility forwhich is to be enforced by an action on the case or by trespass. State v. B. & O. R. Co., 15 W. Va. 362; Norfolk v. West. R. Co. v. Neely, 91 Va. 539, 22 S. E. Rep. 367. Leaseor Hortgage Works No Exemption, — A corporation cannot exempt itself from liability by leasing its property and the use of its franchises to another, without the authority of the legislature. Ricketts v. Railroad, 33 W. Va. 433, 10 S. E. Rep. 801, 25 Am. St. Rep. 901. Nor does a voluntary conveyance by deed of trust of its property and franchises, without the authority of the legislature, work such an exemption. Naglee v. Railroad Co.. 83 Va. 707, 3 S. E. Rep. 369. Even When Torts Are Wilful and Malicious. — Although there has long been doubt on the question, and there is still conflict, the better opinion now is that a corporation is liable not only for the unintentional torts of its agents when done within the scope of their employment, but also for their wilful or malicious torts under the same circumstances. State v. B. & O. R. Co., 15 W. Va. 362. Liability for Punitive Damages. — In West Virginia, a corporation is not liable to punitive damages even for the wanton and malicious acts of its agents, in the absence of evidence tending to show that his conduct was either authorized or approved by the corporation or that the agent was incompetent or of known bad character. Ricketts v. Ches., etc., R. Co., 33 W. Va. 433, 10 S. E. Rep. 801, 25 Am. St. Rep. 901. See also, dictum in Norfolk, etc., R. Co. v. Lipscomb, 90 Va. 137, 17 S. E. Rep. 809. This question has never arisen directly in Virginia, but in Norfolk & West. R. Co. v. Anderson, 90 Va. 1, 17 S. E. Rep. 757, the corporation was held liable for punitive damages, but on the ground that the corporation subsequently ratified the act of its agent. Unintentional Tort of Agent. — But where the unlawful act of the agent is not wilful or malicious but the result of a mistake, punitive damages cannot be exacted from the corporation. Norfolk & West. R. Co. v. Lipscomb, 90 Va. 137, 17 S. E. 809. When Not Liable for Non-Feasance. — A corporation chartered for. the improvement of a miver and authorized to charge toils thereon, if it has not charged tolls, is not liable for damages resulting from failure to improve the river. James River & Kanawha Co. v. Early, 13 Gratt. 541. Criminally. . in Virginia Cannot Be indicted by Its Corporate Name. —A corporation such as the President, Directors and Company of Swift Run Gap Turnpike Co. cannot be impleaded criminaliter by its artificial name for committing a nuisance in obstructing a common public highway by digging it up and placing stone in it. Com. v. President, etc., of S. R. G. Turnpike Co., 2 Va. Cas. 362. in West Virginia Corporation Liable Criminally for the Acts of Misfeasance as Well as Non-Feasance.— 307Although formerly a matter of doubt, it may now be regarded as settled that a corporation mav be indicted for a failure to perform certain public duties which the law or its charter has imposed upon them. A distinction was formerly made between acts of non-feasance, or failure to perform such duties, and acts of misfeasance by the agents of a corporation, in the former the corporation was held liable, m the latter, some courts held it not to beso; but this distinction is no longer recognized by the weight of authority, quern. P., in State v. B. & O. R. CO., 15 W. Va. 362. Where Evil Intention Constitutes an Element of the Offence. —1“in view of the fact that since these decisions have been rendered, the courts have shown a tendency to extend the liability of corporations in civil actions for the misfeasance of their agents, and as it seems now well settled that they may be held liable in suits for libel, and perhaps malicious prosecution^ and for assaults and batteries committed by their agents in the performance of their duties, and in view of the further fact that they may in such suits, it is said, he subjected to exemplary or punitive damages, I hesitate to accede to the statement that they cannot be held liable to an indictment for any offences which derive their criminality from evil intention. The very basis of an action of libel, or for a malicious prosecution, is the evil intent, the malice of the party against whom such a suit is brought; and I cannot now well see how it is possible to hold that a corporation may be sued for a libel, and punitive damages recovered, and at the same time hold that such corporation could not be indicted for such libel. The suits of libel and malicious prosecution are in their nature very like to criminal proceedings; and if they lie against a corporation, it would seem to follow, that there are cases for which indictments may lie against a corporation where the evil intention constitutes an element in the offence. And if a corporation is, as has been said, liable civilly for an assault and battery committed through its servants, it is perhaps going too far to say that a corporation esm in no case be liable criminally for any offence against the person under any circumstances." Green, P„ in State v. B. & O. R. Co., 15 W. Va. 362. ; May Be Indicted fox a Nuisance. — If a railroad company, under authority from a county court giving it license to build its road upon, along, or across public highways upon the express condition that it shall restore such highways to their former state, or to such istate. as not unnecessarily to have impaired their usefulness, takes possession of a part of a public highway and constructs its road upon it, but fails to restore the highway to such state a.s is ■required by law, it is guilty of maintaining a nuisance, and may be indicted under section 45, ch. 43, of the Code, notwithstanding it has such authority ivoin the county court. State v. Monongahela R. R. Co., 37 w. Va. 108, 16 S. E. Rep. 519. Liable for Contempt. -A corporation is liable to a fine for a contempt, by motion. B. & O. R. Co. v. Wheeling, 13 Gratt. 40. flay Be Indicted for “Sabbath Breaking." — A corporation may be indicted for “Sabbath breaking” under Code W. Va., oh. 149, §$ 16 and 17; State v. B. & O. R. Co.. 15 W. Va. 362. Proof Necessary in Indictment. — “But while in a civil suit for a tort, even when done wilfully, perhaps no other proof may be necessary in any case than that the act was done by its agents, yet to hold such proof sufficient to sustain an indictment against a corporation for the misfeasance of its agents in every case would be to disregard the maxim, that the accused is always presumed to be innocent : and clear proof of gui'll on the part of the accused must be produced, before a conviction can properly be had. The act of misfeasance may, in a particular case, be of such a character, that though done by an authorized agent within the scope of his general employment and for the benefit of the corporation, yet it may give rise to but a suspicion that it has been directed or approved by the corporation. And if the act be of such character, independent proof must in such case be produced of the approval of the corporation, before it can be found guilty in a criminal proceeding. In such case it would clearly not be necessary to prove that the corporation by a distinct act,,such as a vote of its directors, either directed the act to be done or subsequently approved of its being done. Nor if this was required, it would amount to an absolute exemption of a corporation from all liability criminally for the wrongs of its agents : for criminal acts are never so formally directed or approved. Still in such a case the approval of the corporation must be satisfactorily proven, but such approval may be shown satisfactorily otherwise than by proving such direct act of approval. The criminal act being in such a case done by an authorized agent acting within the scope of his authority, the mere doing of the act, even though done wilfully, sufficiently shows, we incline to think, the assent and approval of the corporation, to make them liable in a civil suit; and it gives rise to a suspicion in a criminal proceeding against the corporation, which, if corroborated by evidence that similar acts havebeen done by the agents of the corporation repeatedly, would be sufficient proof of their approval to justify a conviction. It is but a reasonable inference that acts which are habitually done by the authorized agents of a corporation are done with their approval ; and this is indeed almost the only manner in which the approval by the corporation of the ; acts of its agents can ever be proven. The tacit appropriation by a corporation of the benefits of the acts of its agents, repeatedly occurring, is lull and satisfactory proof of the assent of the corporation to the doing of such acts.” Green, P., in State v. B. & O. R. Co., 15 W. Va. 362. Liability of a Quasi-Public Corporation.--A corporation^ liable to be sued in assumpsit under the authority of its charter for work done and materials furnished even though the governor and other officers are members, as mere trustees for the state, having no personal interest in it. and the object of the corporation is to effect a public improvement at the public expense. The court distinguished this case from that of Sayre v. Turnpike Co., 10 Leigh 454, holding that case only authority for the proposition that a quasi-public corporation like the above is not liable fora remote and consequential injury. Dunnington v. Pres., etc., Turnpike Road. 6 Gratt. 160. iV. STOCK AND STOCKHOLDERS. See monographic note on “Stock and Stockholders” appended to Osborne v. Osborne. 24 Gratt. 392. A. THE CONTRACT OP SUBSCRIPTION. When Binding. — The contract of subscription becomes mutual and binding when the subscription is made and accepted, but no right of action accrues 308until a valid call has been made. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866. Character of Subscription a Question for the Jury.— Whether the contract of defendant was a contract to take stock in an existing corporation or merely an agreement to subscribe to a corporation to be subsequently formed, is a question for the jury. Exposition v. Ocheltree, 44 W. Va. 626, 30 S. E. Rep. 78. Ratification of Subscription Contract. — A stockholder who votes in a corporate meeting and pays an assessment on his stock, is estopped to deny the existence of the corporation when sued on his subscription ; and though the capital stock be reduced after his subscription, by voting he acknowledges himself a shareholder and is presumed to consent to such change, being bound with notice of it as a shareholder. Greenbrier Ind. Exp. v. Squires, 40 W. Va. 307, 21 S. E. Rep. 1015. Proof of Subscription. Name on Book of Corporation. — Where the name of an individual appears upon the stock book of a corporation as a stockholder, the presumption is that he is the owner of the stock appearing in his name : and such book is proper evidence to go to the jury to show that he was asubscrlber to the capital stock of such corporation. South Branch Ry. Co. v. Long, 43 W, Va. 181, 27 S. E. Rep. 297. See also, Exposition v. Ocheltree, 44 W. Va. 626, 30 S. E. Rep. 78; Grays v. Turnpike Co., 4 Rand. 578. A Certificate Not Necessary. — The certificate is merely evidence, but not the only evidence of ownership of stock. He is a stockholder, who has subscribed and paid for shares of stock In a corporation. Crumlish v. Shen. Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 90. Must Be in Subscriber’s Handwriting. — The fact that defendants’ names appear on the books of the company, if not in their handwriting, Is no proof of a written contract to take stock and the statute of limitation to the suit on a verbal contract is a good defence, after the lapse of three years. Savings Bank v. Land Co., 96 Va. 352, 31 S. E. Rep. 511. Failure to Make Required Cash Payment No Defence. —A subscriber to stock in a corporation cannot es-scape his liability to pay his subscription on the ground that he did not make the required cash payment at the time he subscribed. P. W. & K. R. Co. v. Applegate, 21 W. Va. 172. Subscription Contract Not Avoided to Injury of Creditors by Fact That a Lottery Constituted the Inducement. — In a suit by the receiver of a court to collect an assessment on unpaid subscriptions to an insolvent corporation, for the benefit of creditors, who credited the corporation on the faith of such subscriptions, without knowledge of their vice, such subscriptions being lawful on their face, share holders will not be allowed to set up the defénce that the inducement to. said subscriptions was the distribution by lot of lots of unequal value. Cardwell v. Kelley, 95 Va. 570, 28 S. E. Rep. 953. Subscriptions Need Not Necessarily Be in Cash. — Subscriptions to stock in a corporation need not, in the absence of statutory provisions requiring it, be paid in cash, but any property which the corporation is authorized to purchase, or which is necessary for the purpose of its legitimate business may be received In payment. Richardson v. Graham, 45 W. Va. 134, 30 S. E. Rep. 92. Act Transferring Suits to Enforce Stock Subscriptions from Courts of Equity to Courts of Law, Constitutional. — The Act of Dec. 22, 1897, giving courts of law jurisdiction of all suits for the recovery of unpaid stock subscriptions, is not unconstitutional 'as taking away a vested right to a remedy in equity, and it cannot be claimed that equity still has jurisdiction of such suits on the ground th at the remedy at law is inadequate. Shickell v. Improvement Co. (Va.), 37 S. E. Rep. 813. Evidence of Insolvency in Making Assessments. — A return of “no effects" on an execution against shareholders in a suit to 'collect an assessment, is prima facie evidence of their insolvency, and a further-assessment may be laid on. such as have paid the first, without .inquiring as to what real estate or other property Is owned by the delinquent stockholder, since thht would unduly delay creditors in obtaining their debts. Martin v. Salem Land Co., 97 Va. 349, 33 S. E. Rep. 600. Sale of Stock Hay Be Delayed until Default in Payment of Ali the Installments. — Internal improvement companies, which have the right to sell the stock of shareholders for delinquencies in the payment of installments called for by them, are not obliged to sell at the first failure to pay an installment, but may wait until delinquencies have occurred on them all, and may sell the stock, and hold the stockholder liable for the amount of any loss that may result to the company, with interest on the installments from the time they severally fell due. Brockenbrough v. James River, etc., Co., 1 Pat. & H. 94. Statutory Remedy Merely Cumulative. — The remedy given by statute to make sale and transfer of the shares of a defaulting stockholder is simply' cumulative and does not deprive the corporation of its-right of action or relieve the stockholder from his obligation of payment. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866; Grays v. Turnpike Co., 4 Rand. 578. Distinction between Guaranteed and Preferred Stock. —Where a contract calls for the payment of eight per cent, preferred stock by a corporation at its par value, it is error to decree the payment of that amount of guaranteed stock in lieu thereof since the corporation was not required to guarantee the payment of the eight per cent. Dickinson v. Ches., etc., R. Co., 7 W. Va. 390. Liability of Vendor of Stock. — Where buyer and seller of stock in a joint stock company have both regarded and treated the stock as paid up and non-assessable, the seller is liable to the buyer for future assessments lawfully made on the stock, although the contract of sale stipulates that he is to be relieved from all liability as endorser or otherwise, for the debts of the company. Such assessment is not a debt or liability for the company, but a debt or liability of the stockholder to the company. Stuart v. Peyton, 97 Va. 796, 34 S. E. Rep. 696. Measure of Damages for Failure to Deliver Stock.— Where defendant sold plaintiffs certain shares of stock at a certain price,' but the company denied that defendant owned any shares, if the plaintiff sues without unreasonable delay, he is entitled to recover the highest price of the stock in market at any time after demand and refusal. Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225. B. LIABILITY OP STOCKHOLDERS. No Liability on Stockholder at Common Law beyond His Subscription. — It is a well-settled rule of the common law. that in the absence of any constitutional provision or (statute law to the contrary there is no liability upon the stockholders of a corporation to pay its debts or liabilities beyond his subscription. Nimick v. Iron Works, 25 W. Va. 184. 309Nature of Commoti-Law Liability. — “The liability of the stockholder, to the extent of his liability under the charter, is not simply as such, but it is a personal liability as surety for the company. It is virtually and in effect a liability upon a contract, and the mutual agreement of the parties; not indeed, in form an express personal contract, but an agreement of equally binding obligation, consequent upon and resulting from the acts and admissions or implied assent of the parties.” lacy, 3.. in Hardy v. M'f'g Co., 80 Va. 404. Payment by a Stockholder Extinguishes a Debt of the Corporation. — Where a stockholder satisfies a lien on property of the corporation and takes an assignment of the lien to himself, such lieu is extinguished and the stockholder cannot revive it by an assignment to a third party. Hardy v. Norfolk M’f’g Co., 80 Va. 404. Statutes Imposing Further Liability to Be Strictly Construed. — All such constitutional or statutory provisions which impose a personal liability upon the .stockholders for the payment of the corporate debts are to be strictly construed. Nimick v. Iron Co., 25 W. Va. 184. Enforced by Bill in Equity— Proper Parties.^ -Such liability must be enforced by a bill in equity to which the corporation, the stockholders and creditors are necessary parties, since the liability of the stockholders is not primary, but seconáanr, and conditional on the insufficiency of the corporate assets and cannot be determined without ascertaining who are the solvent stockholders, the amount of stock held by each, the amount of all debts due by the corporation to its several creditors, and the amount of the available corporate assets. Nimick v. Iron Co., 25 W. Va. 184. See Crumlish v. Railroad, 28 W. Va. 623. Enforced in Courts of State Imposing It- -Changed by Statute in West Virginia. — Such liability must be enforced in the courts of the state imposing it and through the remedy provided by the laws of that state, Woods, J.. saying: “Dwelling in the place of its creation, all contracts made with the corporation must, by legal intendment, be made subject to the laws of its creation, and all persons contracting with it must be presumed to contract with reference to the remedies provided them by the state creating the corporation, and if these remedies are not as convenient and eificient as they might possibly have been made, they can have no rightful claim by law or comity to supplement such inefficient remedies by invoking the aid of the courts of a foreign state. They have contracted with reference to the advantages afforded them by the laws of the state under which the corporation was created, and no injustice is done them when they are obliged to be content with the remedies which the laws of the same state afford. for the protection of their property and. the enforcement of the rights thereby granted to them.” Nimick v. Iron Works, 25 W. Va. 184. The doctrine of this case has been superseded by §§ 58, 59, ch. 53, Code W. Va. which gives the circuit courts jurisdiction of such suit. Swing v. Furniture Co., 45 W. Va. 283, 31 S. E. Rep. 925; Swing v. Vencer & Panel Co., 45 W. Va. 288, 31 S. E. Rep. 926. C. RIGHT OF STOCKHOLDERS TO SHE OR DEFEND ON BEHALF OF CORPORATION. When Corporation Is a Going Concern. — Stockholders cannot sue in behalf oí a corporation in a court of law: but in a court of equity the rule is different. There, though redress should be obtained if possible through its regularly appointed agents, if it is shown that the directors or managing officers have refused to act and redress has been vainly sought within the corporation, a bill by the stockholders themselves wil] be entertained. Crumlish v. R. Co., 28 W. Va. 623; Moore v. Schoppert, 22 W. Va. 290. In order to entitle a stockholder to institute and maintain a suit in equity to redress a corporate injury committed infra viras, against a solvent corporation in the full exercise of its franchises, and carrying on its corporate business, it must appear not only that the directors are either disabled by their misconduct to sue, or that they have wrongfully refused to do so upon a proper demand ; but where the matter will admit of the necessary delay, and it is practicable to call upon the stockholders to act, this must also be done. Until it is shown that every reasonable effort to obtain redress through the regularly constituted agents and controlling power of the corporation has proved un* availing, a stockholder cannot sue in his own name alone, nor on behalf of himself and other stockholders. Nor do sections 57 and 58, ch. 53, Code W. Va. have any application to such a suit. Rathbone v. Parkersburg Gas Co., 31 W. Va. 798, 8 S. E. Rep. 570. What Allegations Are Insufficient. —Where the bill does not allege that the corporation is either insolvent or has abandoned its corporate business, or that any of its officers have done any act ultra vires, but merely that the president and manager of the company’s business has abused his trust and that a majority of the directors and stockholders are under his influence and refuse to remove him, alleging that the said directors and stockholders are near kinsmen of said president: that some of them reside at a distance and permit him to select their proxies, that they refused to permit a committee a.ppointed to investigate the books of the company to employ an expert to assist them, that, at a meeting for the election of a board of directors, some of them withdrew and broke up the meeting and that they afterwards gave notice for a meeting to elect five directors, ignoring the fact that three directors had been elected at the former meeting ; such facts, taken singly or all together do not of themselves necessarily establish that the directors and stockholders have acted either fraudulently or in wilful disregard of their duties or that they have manifestly abused the discretionary power vested in them or that a majority of them have by their miscon duct disabled themselves to act or that they have been legally called upon to act and refused to do so, so as to entitle stockholders to file a bill in their own name. Rathbone v. Gas Co., 31 W. Va. 798, 8 S. E. Rep. 570. Right of Stockholders to Defend a Suit against Corporation.- -A corporation must defend a suit brought against it, in its corporate name, and a stockholder will not be permitted to defend, and his answer will be stricken out. But if the officers and agents of the corporation refuse to defend the suit, in its name the court may in equity allow such defence to be made by the stockholders. Park v. Oil Co., 26 W. Va. 486. A stockholder of a corporation cannot be regarded as answering for the corporation itself. In a special case, however, where there is an allegationthat, the directors fraudulently refused to attend to the interest of the corporation, a court of equity will, in its discretion, allow a stockholder to become a party defendant, for the purpose of protecting, from un founded and illegal claims against the company. 310his own interest and the interest of such other stockholders as choose to join him in the defence. Kanawha Coal Co. v. Ballard & Welch Coal Co., 43 W. Va. 721, 29 S. E. Rep. 514. When Corporation Has Ceased Business. — When, however, it is shown that the corporation has ceased to exist either in law or in fact or that it has abandoned its corporate business and neglected to maintain its corporate existence by the election of officers, nothing more can be required of the stockholder or creditor in order to entitle him to sue for the protection of his rights in such corporation, than that he should show the condition of such corporation and its management. Crumlish v. Railroad Co., 28 W. Va. 623; Finney v. Bennett, 27 Gratt. 365; Code W. Va. ch. 53, § 58. When Corporation Not Even a Necessary Party. — And when such a suit is brought by the stockholders of a foreign corporation to compel a domestic corporation to account for certain assets of the said foreign corporation in its possession, the domestic courts have jurisdiction and the foreign corporation is not even a necessary party. The court distinguished this case from that of Nimick v. Iron Works, 25 W. Va. 184, where the object was to enforce a statutory liability imposed by the state of Ohio, on stockholders of an Ohio corporation resident in West Virginia. The court held that such liability being conditional on failure of assets could not be enforced by the West Virginia courts, since they had not jurisdiction over the Ohio corporation, to determine the amount of its assets. But in the principal case the liability ' of the domestic corporation is absolute and unconditional. Crumlish v. Railroad Co., 28 W. Va. 623. Multifariousness of Bill. — A bill filed by a stockholder of a dissolved corporation in his own behalf and that of other stockholders against a domestic corporation, primarily to compel it to hand over assets of the dissolved corporation in its hands and, secondarily, to ask that the creditors of the dissolved corporation may be convened and the assets distributed among its creditors and shareholders, is not open to the objection of multifariousness. Crumlish v. Railroad Co., 28 W. Va. 623. Barred by Laches. — While a minority of the stockholders of a corporation may maintain a bill in equity, in behalf of themselves and other stockholders, for fraud, conspiracy, or ultra vires acts, against a corporation, its officers, or others who participated therein, when the minority stockholders have been injured by said act, they must act promptly, and not wait an unreasonable time. If-they postpone their complaint for an unreasonable time, they forfeit their right to equitable relief. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73, 16 S. 33. Rep. 501. Where a stockholder has notice or the means at hand of becoming acquainted with the contracts made by the corporation in which he is, a stockholder, a court of equity will not allow him to remain quiet an unreasonable length of time, with a view of ascertaining whether the contract will result in profit to him; and then repudiate the contract if it has resulted in loss. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73, 16 S. E. Rep. 501. Acquiescence by Failure to Attend Meetings. — And if the minority of stockholders fail to attend meetings, they will be held to acquiesce in whatever is done by the majority, and are barred of relief in equity. Boyce v. Montauk Gas Coal Co., 37 W. Va. 73, 16 S. E. Rep. 501. Parties to the Suit. — Where, in a suit in equity by a shareholder to protect his equitable interest in the affairs of a corporation, all the parties in interest, stockholders, directors and president are before the court, it is unnecessary to make the corporation a formal party. Kyle v. Wagner, 45 W. Va. 349, 32 S. E. Rep. 213. D. DIVIDENDS. — Th e board of directors may from time to time declare dividends of so much of the net profits as they may deem it prudent to divide. If any stockholder be indebted to the corporation, his dividend, or so much thereof as may be necessary, may be applied to the payment of the debt; if the same be then due and payable. Code W; Va. 1891, ch. 53, § 39; Donnally v. Hearndon, 41 W. Va. 519, 23 S. E. Rep. 646. Stock Dividends. — A stock dividend is not in the ordinary sense of the word, a dividend, the latter being the distribution of profits to stockholders as income from their investment. A stock dividend is merely an increase in the number of shares, the increased number representing exactly the same property that was represented by the smaller number of shares. Hence where two parties agree to exchange shares in two corporations, retaining the dividends declared for a certain month, and one corporation declares a stock dividend, such dividend goes with the stock and cannot be retained as a true dividend. Kaufman v. Woolen Mills, 93 Va. 673, 25 S. E. Rep. 1003, 2 Va. Law Reg. 669, and note. E. CORPORATE MEETINGS. — Whereby the charter a general meeting of the company is to be held at least once annually, other meetings may be held as often as the interests of the corporation require it. Burr v. McDonald, 3 Gratt. 215. AU flembers Must Have Reasonable Notice of Meetings. — No function existing in a number of persons, such as the stockholders of a corporation, can be rightfully exercised in the absence of any of the members composing such body, unless they have had reasonable notice and an opportunity to be present, otherwise all proceedings had at such ‘a meeting are invalid. Reilly v. Oglebay, 25 W. Va. 36. V. OFFICERS AND AGENTS OF PRIVATE CORPORATIONS. See monographic note on “Officers and Agents of Private Corporations” appended to Richmond Enquirer Co. v. Robinson, 24 Gratt. 548; also, note on “Agencies” appended to Silliman v. Fred., etc., R. Co., 27 Gratt. 119. A. GENERALLY. Contracts between Corporation and Its Officers Not Void but Voidable. — Contracts between a corporation and its officers are not void per se, but merely voidable at the option of the corporation or its receiver within a reasonable time. Such reasonable time as applied to executory contracts would be before they become executed. A partly executed contract can be avoided "before its final execution, but the executing party must be placed in statu quo, in the absence of fraud or mala ñdes. Griffith v. Lumber Co., 46 W. Va. 56, 33 S. E. Rep. 125. Ratification of Agent’s Contract. — Whether a contract by an agent of a corporation be beyond his authority or not, the corporation may ratify, and such ratification, once made, is final. Newport News, etc., Devel. Co. v. Newport News St. Ry. Co., 97 Va. 19, 32 S. E. Rep. 789. Negligence of Officer Imputed to Corporation. — The negligence of an officer of a corporation in allowing 311a judgment to be rendered against the corporation as garnishee, when the debt had been i>reviously avSvSigned to another party and notice thereof had been given to another officer, will preclude the corporation from relief in equity against the j ndgment. Richmond Enquirer v. Robinson, 24 Gratt. 548. riisconduci of Officers. — It may be stated as a general rule that there is no wrong or frand, which the directors or officers and agents of a corporation may commit that cannot be redressed by appropriate and adequate remedies. From the fiduciary relation which the director of a corporation holds to the corporation itself and to its shareholders and creditors, and from the fact that they are held to strict good faith in the management of the corporate concerns, it follows that they are liable either to the corporation, or.‘ in a proper case, to the shareholders or creditors, for a fraudulent breach of trust or misappropriation of corporate fnnds. whereby a loss or injury results to the corporate assets. Kathbone v. Gas Co., 31 W. Va. 798, 8 S. E. Rep. 570. The Promoters. Occupy a Fiduciary Relation. — The promoters of a corporation stand in a fiduciary relation to the corporation, and cannot make a profit out of their transactions in behalf of the corporation, unless with the full knowledge and consent of the corporation. Central Land Co. v. Obenchain, 92 Va. 130, 22 S. E. Rep. 876. Promoters Entitled to a Fair and Open Profit.— Where a promoter of a corporation holds an option on land and in soliciting subscription^;, proposes in writing, which is shown to each subscriber, a certain price at which he will sell it to the corporation, and after the corporation was organized, it agreed to purchase on those terms, such promoter is entitled to any profit arising from such sale. Richardson v. Graham, 45 W, Va. 134, 30 S. E. Rep. 92. B. PARTICULAR OFFICERS. The Directors. The Representatives of the Corporation.™ The directors of a corporation are, as to all purposes of dealing with others, the corporation itself and when convened as a board they are the primary possessors of all the powers possessed by the corporation. What they do as the representatives of the corporation, the corporation itself is deemed to do. Hulings v. Hulings Lumber Co., 38 W. Va. 351, 18 S. E. Rep. 620. Until the appointment of a receiver and the awarding of the injunction the management of the affairs of the company remains in the hands of the directors. Planters’ Bank v. Whittle, 78 Va. 737. Must Act as a Body. — The directors of a corporation cannot separately and individually give consent to, or make a contract to bind the corporation. They can act only as a board, their power being not joint and several, but joint. Limer v. Traders' Co., 44 W. Va. 175, 28 S. E. Rep. 730; Smith v. Cornelius, 41 W. Va. 59, 23 S. E. Rep. 599. Power of Directors to Make an Assignment. — Directors have no authority to make an assignment of the entire assets of a corporation without the assent of the stockholders, such assignment amounting to dissolution, and the statutory mode of dissolution, ch. 53, sections 56 and 57. Code W. Va. being exclusive. Kyle v. Wagner. 45 W. Va. 349, 33 S. E. Rep. 213. Power to Bind the Corporation. — Money borrowed by the directors and expended in the prosecution of the enterprise constitutes a valid debt; in spite of a resolution of the stockholders in regular meeting 1 that “No further assessment should be made except by authority of the shareholders.” Shickell v. Improvement Co. (Va.), 37 S. E. Rep. 813. Power to Fix Capital Stock under maximum Amount. —Under section 23, ch. 53, Code W. Va. the increase of the capital stock of a corporation is entirely in the control of the board of directors and tlic only limitation upon their power in this respect is that the maximum capital be not exceeded. Exposition v. Ocheltree, 44 W. Va. 626, 30 S. E. Rep. 78. When Contract between Directors and Corporation Upheld. — Though the directors or other agents of a corporation occupy a fiduciary relation, whether called trustees or not, still if the transaction amounts merely to a loan of money to the corporation on its own terms, and they obtain no unfair advantage, such transaction will be upheld, especially where the corporation ratifies the transaction by receiving the benefit of it. In any case, if the corporation or creditors claiming through it, wish to avoid such transaction they must restore the consideration received. Atwood v. Railroad Co., 85 Va. 966, 9 S. E. Rep. 748. When Stockholders Occupy Position of Directors.— The general rule is that directors of a corporation cannot purchase the corporate property, but stockholders of a corporation, managed by a board of directors may; but where there is no such board, and the stockholders perform their duties, they occupy the same position as directors and are subject to the same incapacity to purchase the corporate property and any such purchase is voidable at the pleasure of any shareholder, though the price be fair and adequate. Reilly v. Oglebay, 25 W. Va. 36. The President. Power to Bind the Corporation. — The president of a railroad company has authority to make contracts for the necessary labor for the company, by virtue of his office, in all cases where the authority oí the president is not restricted by special legislation or by regulations of the company known to the other contracting party. Railroad Co. v. Snead. 19 Gratt. 354. When Parol Evidence Admissible to Show 'Who Is Bound. — Where a due bill is signed by the president of a railroad, simply with his own name, parol evidence is admissible to ascertain whether it is an acknowledgment of his individual debt or that of the railroad company. Railroad Co. v. Snead. 19 Gratt. 354. Mere Addition of “President” Not Sufficient. - The mere addition of the word “president” to the signature of the president of a corporation on negotiable paper does not bind the corporation. Scotty. Baker, 3 W. Va. 285; Rand v. Hale, 3 W. Va. 495. Ratification by Corporation. — Whether the president of a land company is authorized or not to make a contract for the purchase of land, if the company ratify the contract by adopting the purchase and capitalizing it and offering it for sale, the company will be bound. W. Salem Land Co. v. Mont. Land Co., 89 Va. 192, 15 S. E. Rep. 524. When President or Director a Trustee. — -A president or director of a corporation stands as a trustee for it as to its property committed to his hands for the purposes of the corporation. Ravenswood. etc., R. Co. v. Woodyard, 46 W. Va. 558, 33 S. E. Rep. 285. The Treasurer. Has Power to Draw Checks, but Not to Endorse Nego* fiable Paper. — The authority to draw checks may be said to be inherent in the office of treasurer unless 312taken away or restrained, but the power to bind the company by endorsing negotiable notes is not, tbe law requires clear-proof of the authority of an agent to endorse negotiable paper. As to what is not sufficient, see Davis v. Investment Co., 89 Va. 290, 15 S. E. Rep. 547. Admissions of Officers. — in an action for libel against a corporation, the admission of the general manager of the corporation made weeks after the publication of the supposed libel, constitutes no part of the res (¡estos and cannot be given in evidence against the corporation. Reusch v. Cold Storage Co., 1 Va. Law Reg. 286. Compensation of Officers. — Although not necessary to the decision of the case, Brannon, J., said in Crumlish v. Cent. Imp. Co., 38 W. Va. 390,18 S. E. Rep. 456, “The law raises no implied promise to pay compensation to the directors, president or vice president of a private corporation in the absence of a provision in the by-laws or an order of the directors. And if the treasurer, secretary or other executive officer be a stockholder or director, no such promise is raised by law in his favor; but if not, tben the law does raise such a promise and presumes that compensation was intended from’the fact of such appointment.” Ravenswood, etc., R. Co. v. Woodyard, 46 W. Va. 558, 53 S. E. Rep. 285. An Order of the board of directors of a corporation allowing compensation to the president, passed when he was present and perhaps voted is prima facie, fraudulent and void. Code W. Va., ch. 53, § 52 ; Ravenswood, etc., R. Co. v. Woodyard, 46 W. Va. 558, 33 S. E. Rep. 285; Sweeney v. Refining Co., 30 W. Va. 443, 4 S. E. Rep. 431. The board of directors of a corporation cannot allow compensation to the president or any director for his services without previous authority granted by the stockholders. Code W. Va., ch. 53, § 53. And such an order of the board would be ultra vires and may be repudiated by the corporation. Ravenswood, etc., R. Co. v. Woodyard, 46 W. Va. 558, 33 S. E. Rep. 285. Conflict of Laws. — Under the law of Pennsylvania, the president of a private corporation created by that state cannot recover from the corporation upon a Quantum meruit for official services there rendered, in the absence of any by-law or resolution of the directors allowing compensation. Nor can one who is treasurer and secretary of the corporation, and a stockholder and director, recover on a Quantum meruit for his official services without such by-law or resolution. The law of that state raises no promise on the part of the corporation in such cases, and the question whether, in such cases, there is an implied promise, depends on the law of that state. Crumfish v. Central Imp. Co., 38 W. Va. 390, 18 S. E. Rep. 456. Subsequent Ratification of Allowance. — Though section 1119, Code Va., providing “There shall be no compensation for services rendered by the president or any director unless it be allowed by the stockholders,” is mandatory, subsequent ratification by the stockholders of payments of salary to the president of a corporation by authority of the board of directors, is equivalent to previous authorization, but one or the other is indispensable. Buchanan, J., dissenting. Shickell v. Imp. Co. (Va.), 37 S. E. Rep. 813. VI. CONSOLIDATION AND SUCCESSION. A. CONSOLIDATION OP CORPORATIONS — “A consolidation not only renders the property and works of the old company, which pass to the company with which it is consolidated, subject to the liabilities of the old company, but also makes the new, or surviving company responsible for them. Where two railroad companies unite, or become consolidated under the authority of law, the presumption is, until the contrary appears, that the united or consolidated company has all the powers and privileges, and is subject to all tbe restrictions and liabilities, of those out of which it is created. The corporation which is created by such consolidation, or the surviving corporation, where another or others are merged into it or consolidated with it, is ordinarily deemed the same as each of the corporations which formed it for the purpose of answering for the liabilities of the old corporation, and may be sued under its new name, or under tbe name of the surviving company, for their debts as if no change had been made in the name, or in the organization of the original corporations. There has been some question whether the consolidated company could be sued in an action at law for the liabilities of the companies composing it, or whether the proceeding must be in equity. But the better view seems to be tbat when a consolidation has been authorized and made, it confers all tbe rights, property, and franchises of the old company upon the new or consolidated company, and subjects it to all the liabilities1 of the old companies; and an action at law may be brought against the new or consolidated company for the debts or torts of the old companies. The question is not whether the consolidation compels a creditor to accept the defendant corporation as a new debtor against bis will, or a person who has been injured to resort to a stranger for satisfaction, but whether it empowers the creditor or the person injured to resort, if he desires to do so, in the first instance, to the corporation which by the terms of the consolidation is made liable to him. The privity, some cases say, necessary to support this action, is created by the statute authorizing the consolidation and the purchase and conveyance made under it. Other authorities place the right to bring such action on the ground that the effect of the consolidation is, as to the liabilities of tbe old company, not to dissolve the corporation which is the immediate debtor, but to continue its existence in the consolidated corporation.” Buchanan, J., in Langhorne v. Richmond R. Co., 91 Va. 369, 22 S. E. Rep. 159. Either Liable but Not Both Jointly. — Where one corporation has been consolidated with another, a party injured by the original company has his option to sue either the original company which committed the injury or the new company with which such company has been consolidated, but he cannot sue both iu the same action at law. Langhorne v. Richmond R. Co., 91 Va. 369, 22 S. E. Rep. 159. Necessary Allegations. — The plaintiff in such case must allege generally the authority of the old companies to consolidate, the act of consolidation and under what name. He must also state a good cause of action against the original corporation and the new one with which it has been consolidated. Langhorne v. R. Co., 91 Va. 369, 22 S. E. Rep. 159. B. SUCCESSION OF CORPORATIONS. Liability of Successor Corporation for Contracts of Former Corporation. — Where a railroad company buys the property of another insolvent railroad, it succeeds to its property, rights and easements and becomes responsible for its liabilities under 313any agreement entered into by the former company for the acquisition of land, especially where it lias estopped itself by vouching such agreement to defeat an action of ejectment. Steenrod v. Railroad, 27 W. Va. 1. Change of Name - Liability to Suit. — Where one corporation is a mere continuation of a former corporation with additional franchises, under a new name, it is liable tobe sued on contracts made with the old corporation, and whether such is the case is a mixed question of law and fact to be submitted to the jury. Wilson v. C. & O. R. Co., 21 Gratt. 654. Anderson. J., said obU.tr in the above case that when a corporation changes its name after the mating of a contract it must be sned by its new name. When Former Corporation Not a Necessary Party.— And in such a case where the former corporation is wholly insolvent and has “passed out of existence,’' ■it need not be made a party to a suit for specific performance of such an agreement against the successor corporation. Steenrod v. Railroad, 27 W. Va. 1. Liable to the Extent of Property Received. — Where by authority of the legislature a corporation has accepted a transfer of the entire stock of another corporation and has taken possession and held the \| property of the old corporation after the expiration of the time limit of its charter, itplaces itself in the position of a successor to the latter corporation, liable. to the extent of the property received, to the debts, and entitled to all the rights of the latter. Barksdale v. Finney. 14 Gratt. 338. And Only to That Extent. — When a new corporation, with different stockholders, is formed it cannot be sued by the creditors or held liable for the debts of the old corporation, except upon some •special ground, such as haying received assets of the old corporation without giving value therefor. Donnally v. Hearndon, 41 W. Va. 519, 23 S. E. Rep. 646. Liability Mast Be Enforced in Equity. — Where one corporation by legislative authority takes charge of the property and franchise of another, the first corporation cannot be garnisheed by a creditor of the second corporation ; his remedy is in equity. Swann v. Summers, 10 W. Va. 115. Assumption of Obligation Must Be Alleged, When Liability Is Based on Contract. — In a suit brought against a corporation which has assumed the obligations of a defunct corporation, failure to allege that the new corporation has assumed said obligations when the proof shows the obligation sued on to be that of the defunct corporation, is a variance, and plaintiffs evidence will be struck out. Knights of Pythias v. Weller, 93 Va. 605, 25 S. E. Rep. 891. Effect of Acquisition of Entire Capital Stock. Does Not Give Lega! Title to the Property of Corporation. — A conveyance of all the capital stock of a corporation to a purchaser gives to such purchaser only an equitable interest in the property to carry on business under the act of incorporation and in the corporate name, and the corporation is still the legal owner of the same. Park v. Petroleum Co., 25 W. Va. 108. Corporation Succeeding a Partnership.- Where a debt is due a partnership and the partners are alterwards incorporated, the debt becomes a debt of the corporation and they may sue for it in the corporate name in a court of equity. Griffin v. Macaulay, 7 Gratt. 476. VII. DISSOLUTION OF CORPORATIONS. A. CAUSES. Forfeiture of Charter. i Franchise Continúes Till Forfeiture Claimed by State. —The charter of a corporation does not expire by reason of acts of omission or commission on the part of the corporation, even where they constitute a sufficient ground for declaring a forfeiture; but the franchise continues in full force until a forfeiture is claimed by the state granting it, and this can be done only in a proper legal proceeding by which the canse of forfeiture is ascertained and dissolution adjudged. Moore v. Schoppert, 22 W. Va. 283. Quo Warranto the Proper Remedy. — An information in the nature of a quo warranto is the proper rented y by which to try and decide whether the charter of a corporation ought to be nullified and vacated, or to prevent the company from receiving tolls. The fact that the commonwealth is a stockholder is no bar to such a proceeding. The superior court of law for the county in which the president and directors reside has jurisdiction in such a proceeding, no matter where the acts of forfeiture complained of were committed. Com. v. Pres. & Directors of James River Co., 2 Va. Gas. 190. Causes of Forfeiture Cannot Be Taken Advantage of Collaterally. — Although a corporation by failure to perform its duties has made itself liable to forfeiture, of its franchises, such grounds of forfeiture cannot be taken advantage of by injunction or otherwise in a court of equity to resist the payment of tolls, etc., or for any other purpose, except where a public nuisance results and in the case of charitable trusts; the only remedy is in a court of law by the writ of quo warranto instituted by the state, the court saying, “The act of incorporation is not a contract between the corporate body on the one hand and individuals whose rights and interests may be affected by the exercise of its powers, on the other, but it is a con-pact between the corporation and the government from which they derive their powers. Individuals cannot therefore take it upon themselves, in the assertion of their private rights, to insist on breaches of the contract of the corporation, as a ground for resisting or denying the exercise of a corporate power.” Pixley v. Roanoke Nav. Co., 75 Va. 320. A cause of forfeiture cannot be taken advantage of, or enforced against a private corporation, collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose, against the corporation, so that it may have an opportunity to answer; and the state can alone institute such a proceeding, since it may waive a broken condition of a compact with it as well as an individual. Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. Rep. 227; Childs v. Hurd, 32 W. Va. 66, 9 S. E. Rep. 362; B. & O. R. Co. v. Supervisors, 3 W. Va. 319. Non-Payment of License Tax. - -And this is as true of the non-payment of a license tax to the state, as it is of any other cause of forfeiture, the law, in this respect, not having been altered by Code W. Va. 1881, ch. 32, § 88. Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. Rep. 227. Failure to Appoint Officers, etc. — Forfeiture of the charter for failure to appoint officers or other acts of non-nser. cannot be enquired into collaterally, unless there is evidence that the charter has been ascertained to be forfeited by the sentence of the proper court in a proper proceeding for the purpose. Crump v. U. S. Mining Co., 7 Gratt. 352; B. & O. R. Co. v. Supervisors, 3 W. Va. 319, 314Express Provisions for Forfeiture in Charter, No In= quisition Necessary. — Where the charter of a railroad authorizes the company to issue bonds and secure them by a mortgage, but also provides that if the road is not completed to a certain point by a certain day, it shall forfeit to the state its corporate franchises and rights together with the roadbed and all other property, the two clauses are to be taken together and on the failure to complete the road in the specified time its property is forfeited to the state free from the incumbrance of the mortgage, it appearing that the holders of the bonds were the officers of the road and that none of the proceeds had been expended on the road, and consequently they were neither purchasers for value or without notice. Such forfeiture, the state having elected to enter for the forfeiture, is absolute and no inquisition or judicial proceedings of any kind are required to consummate it. Silliman v. R. Co., 27 Gratt 119. Expiration of Charter .Period of Existence Ipso Facto Dissolves the Corporation. — if the charter or governing statute of the corporation, fixes a definite period of time at which its corporate life shall expire, when that period is reached, the corporation is ipso facto dissolved without any direct action to that end either on the part of the state or of its members; and it has no further power to adopt by-laws. Knights of Pythias v. Weller, 93 Va. 605, 25 S. E. Rep. 891. A Mere Discontinuance of Business Does Not Effect a Dissolution. — A mere cessation or discontinuance by a corporation, of its corporate business, will not operate as a dissolution. Law v. Rich (W. Va.), 35 S. E. Rep. 858. Insolvency Does Not, Per Se, Work Dissolution.— Insolvency, peí' se, does not work a dissolution of a corporation, nor invalidate an assignment of its effects for the benefit of creditors. Shen. Valley R. Co. v. Griffith, 76 Va. 913; Weigand v. Supply Co., 44 W. Va. 133, 28 S. E. Rep. 803. Resolution by Majority of Stockholders Works a Dissolution. — A resolution by the stockholders of a joint stock company to discontinue its business under § 56, ch. 58, Code W. Va. 1891, operates as a voluntary surrender of the corporate franchise and a dissolution of the corporation. Law v. Rich (W. Va.), 35 S. E. Rep. 858. Statutory Methods in West Virginia. — Not less than one-third in interest of the stockholders of a corporation have a right under § 57, ch. 53, Code W. Va. 1891, to file their bill in equity, and on showing sufficient cause the court will dissolve the corporation. Weigand v. Supply Co., 44 W. Va. 133, 28 S. E. Rep. 803. In such a suit the corporation is a necessary party. Hurst v. Coe, 30 W. Va. 158, 3 S. E. Rep. 564. /lore Than One-Third of the Stockholders Hay Join in the Bill but in Any Case Sufficient Cause Must Be Shown. — But in such suit the court cannot make a decree of dissolution unless cause be shown, even though a majority in interest are plaintiffs and they had an absolute right to dissolve the corporation by their majority vote ata general meeting of the corporation. Co'deW. Va.,ch.53,§56. Butthe'merefact that a majority in interest are plaintiffs and had another remedy does not deprive the circuit court of its jurisdiction, on sufficient cause being shown, from decreeing a dissolution. Hurst v. Coe, 30 W. Va. 158, 3 S. E. Rep. 561. B. EFFECT OF DISSOLUTION ON PROPERTY AND SUITS OF THE CORPORATION. All Suits Abate. — At common law, upon the death or dissolution of a corporation, its real estate reverted to the grantors and donors and the personal property escheated to the king, while the debts due to and from it were thereby extinguished and all actions pending for or against it at the time, abated. Board v. Livesay, 6 W. Va. 44; Miller v. Coal Co., 31 W. Va. 836, 8 S. E. Rep. 600, Rider v. Nelson & Albemarle Union Factory, 7 Leigh 354; May v. State Bank of N. C., 2 Rob. 56. Exception Where Corporation Had Assigned Its Rights before Dissolution. — Where the charter of a corporation expired pending an appeal but the corporation had made an assignment of its rights in the subject in controversy, the court, if satisfied of the fact of the assignment, may permit the case to proceed without notice of the dissolution of the corporation. Bank of Alexandria v. Patton, 1 Rob. 499; May v. State Bank of N. C., 2 Rob. 56. A Judgment Raises a Conclusive Presumption of a Continued Existence of Corporation at Time of Judg= ment. — But if an original judgment be rendered in favor of a corporation, as it could not be regularly rendered unless the existence of the corporation continued, the necessary intendment is that the continued existence of the corporation was either proved or admitted and if execution be sued out the defendant is estopped to deny the existence of the corporation at the time of the judgment, and proof of the extinction of the corporation before the judgment is inadmissible. No such estoppel exists, when, by an assignment before extinction, proof of the expiration of the charter is excluded, and no such intendment arises. May v. State Bank of N. C., 2 Rob. 56. In Case of Dissolution after Judgment and before Ex= ecution No Execution Can Issue. — And if, after judgment in favor of a corporation, the corporation becomes extinct by the expiration of the term of its existence, no execution can be sued out or if sued out is liable to be quashed. Dictum in May v. State Bank of N. C., 2 Rob. 56. nodern Rule as to Dissolution, May Still Sue and Be Sued in Respect of Its Corporate Assets. — But this rule, so far as-modern business and commercial corporations are concerned, has become practically obsolete. Its unjust operation upon the rights of creditors and stockholders has been generally prevented by statute and in equity the assets of such a corporation, which represent not the donation of the prince or its pious founder, but the contributions of its stockholders, are held, independently of statute, to constitute a trust fund, into whosesoever hands they may come, for the benefit of creditors and stockholders. Very soon after Rider v. Factory, 7 Leigh 154, was decided, and according to a suggestion of the court in that case the act of 1836-7 was passed by the general assembly of Virginia, Code Va. 1887, § 1163, which act was incorporated into the Code W. Va. ch. 53, § 59, providing in substance that wh en a corporation shall expire or be dissolved, its assets shall, under the direction of the board of directors then in'office or such receiver as maybe-appointed, be subject to the payment of the liabilities, and the surplus, if any, be distributed among the stockholders. And suits may be brought or defended and all other lawful acts done in the corporate name in like manner as before dissolution. Miller v. Coal Co., 31 W. Va. 836, 8 S. E. Rep. 600; Greenbrier Lumber Co. v. Ward, 30 W. Va. 43, 3 S. E. Rep. 227; Donnally v. Hearndon. 41 W. Va. 519, 23 S. E. Rep. 646, and such suits do not have to be 315carried on under the direction of such director or receiver. Hall v. Bank of Va., 14 W. Va. 584. Assets, after Dissolution, a Trust Fund for Creditors. —After a corporation has ceased to exist or has abandoned its business, its assets become a trust i und for the paym enl of creditors and stockholders, creditors first and the residue if any, to the stockholders, who are simply deferred creditors. Crumlish v. R. Co., 28 W. Va. 623. Functions of Directors Suspended. — When the stockholders have taken the necessary steps to effect the dissolution of the company, and are trying to liquidate its indebtedness with the least loss to themselves, the functions of the directors are, in effect, suspended; they cannot purchase for the company the stock of one of its shareholders, with the company’s property, thereby diminishing its assets, both the directors and the said shareholders being aware of the facts. The directors can make no disposition of the corporate property which will not enure to the equal benefit of all the shareholders. Augsburg Land, etc., Co. v. Pepper, 95 Va. 92, 27 S. E. Rep. 807. Effect of Dissolution on Contracts of Corporation. Executory Contracts Ayoided. — Where an insolvent corporation is forced into liquidation and dissolution, all its executory contracts perish with it, for this is an implied condition of their execution. Such, however, is not the law where a solvent corporation is voluntarily dissolved. By its own act it cannot relieve itself from its contracts, but its assets will be held liable for breaches thereof. Griffith v. Lumber Co., 46 W. Va. 56, 33 S. E. Rep. 125. O. SUITS TO WIND UP THE AFFAIRS OF A CORPORATION. Jurisdiction of Equity. — Equity has no inherent jurisdiction to dissolve a corporation; its powers in that respect are wholly derived from statute. Law v. Rich (W. Va.), 35 S. E. Rep. 858. Equity Has Exclusive Jurisdiction. A Creditor Cannot Obtain a Preference by Levying ail Attachment. — There can be no suit against a defunct domestic corporation, except one in equity as provided in sections 57 and 59,ch. 53, Code W. Va. to wind up its affairs for the benefit of creditors and stockholders. No creditor can, by levying an attachment. obtain priority over other creditors. Stiles v. Oil & Coal Co. (W. Va.), 35 S. E. Rep. 986. Proper Parties. Rule in Virginia. Stockholders Not Proper Parties. — Under Code Va. 1887, § 1103, the corporation, though dissolved or expired, is the proper party defendant in a creditor’s suit against the corporation, and the stockholders are notproper parties. The fact that there has been an assignment of the corporate assets to trustees only alters the case so far as to make the trustees necessary parties. Hamilton v. Glenn, 85 Va. 901, 9 S. E. Rep. 129. The stockholders individually are neither necessary nor proper parlies to suit to wind up th e affairs of a corporation, but they are bound by the decree, and where they never appealed from the decree they cannot question its validity in a collateral proceeding. Lewis v. Glenn. 84 Va. 947, 6 S. E. Rep. 866. Where no relief is sought against the shareholders, they are sufficiently represented by the corporation. Bristol Iron & Steel Co. v. Thomas. 93 Va. 396. 25 S. E. Rep. 110. But where relief is sought against the shareholders themselves, they should be made parties. Martin v. B. Salem Land Co., 94 Va. 28. 26 S. E. Rep. 591; Cason v. Seldner, 77 Va. 293. Rule in West Virginia. Stockholders Necessary and Proper Parties. —In a suit in equity under section 59, ch. 53, Code W. Va., by a creditor to assert a debt against a defunct domestic corporation and to wind up its affairs, the stockholders are necessary parties and the decree must both ascertain the debts against the corporation and the shares of the stockholders in the surplus. Stiles v. Oil & Coal Co. (W. Va.). 35 S. E. Rep. 986. See also, Styles v. Laurel Fork Oil. etc.. Co., 45 W. Va. 374, 82 S. E. Rep. 227. A Return of “No Effects” on an Execution Justifies a Resort to Equity. — Where a creditor of a corporation has obtained judgment against it, upon which execution has been issued and returned no property found, he has the right to sue in equity for the benefit of himself and all other creditors who will join in the suit to subject the assets of the corporation, including the unpaid subscriptions of its stockholders, as far as may be necessary, to the payment of its debts. It is in the nature of a creditor’s bill, and by it the equitable assets of the corporation can be reached. Martin v. South Salem Land Co., 2 Va. Law Reg. 743, 94 Va. 28, 26 S. E. Rep. 591. Simple Contract Creditor fias a Right to Bring 5iscls Suit.= -A simple contract creditor, who has not reduced his claim to judgment, and has no lien, can yet sue a corporation in equity and have its assets administered and applied to the payment of its debts. Nunnally v. Strauss, 94 Va. 255, 26 S. E. Rep. 880, Buchanan, J., and Keith, P., dissenting: Finney v. Bennett. 27 Gratt. 365. Res Judicata in Such Suits. — in a suit involving, among other things, a debt between two corporations, a decree is rendered for a certain sum in favor of the one against the other, ascertaining the amount of the liability on the basis of the amount of paid-up stock of the creditor company. That decree in res judicata and. estoppel between the companies as to the amount of recovery, and also as between the creditor company and its stockholders, and also between such stockholders as regards the amount of the recovery, but not as to the amount of paid-up stock in settling the rights of stockholders in the distribution of the fund arising from the debt so recovered. Crumlish v. Shenandoah Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 91. Statutes, When Constitutional — A statute, whose whole object is to provide a convenient and judicious mode for winding up an insolvent corporation and distributing its assets equitably amongst those entitled thereto, violates no contract and impairs no right of the corporators and should be upheld in Virginia as it certainly would be by the state enacting it. Bockover v. Life Ass’n, 77 Va. 85. Creditors’ Bills. — The road and franchises of a railroad company are liable, on a creditor’s bill, to the payment of judgments recovered against the company, and where the amount of the judgment is small and the rental value of the road large, the road and franchises should be leased for as short a period as is practicable, but the creditors have a right to have them leased, even though the proceeds be far in excess of the judgment, if the lease cannot be made for a shorter period. It is proper to make smother railroad in possession of the road in suit, a party to the suit, to ascertain its interest in said road and on failure of that company to respond or show what its interest is, a decree for leasing the road is proper. Winchester, etc., R. Co. v. Colfelt, 27 Gratt 777. 316Powers of Creditors and Majority of Stockholders over Assets of Insolvent Corporation. — Where a corporation has hut one asset, namely, a decree for a certain sum against a railroad company, and a decree for the sale of its road, etc., to satisfy the same, after first satisfying prior liens and charges to a large amount, the creditors and the owners of a greater part of the stock may, if they see fit, give to outside parties, out of the amount decreed to them, a bonus, for a guaranty that at the commissioner’s sale, the railroad, etc., shall he made to bring at least enough to pay their claim, as well as the prior liens and charges. And, if such bonus is made to appear to have been that, without which neither creditors nor stockholders would have received anything, then the'court will charge the fund thus brought into the cause with the payment of such bonus, and, after the payment of the creditors, distribute the surplus, if any, among the stockholders according to thfeir respective interests. Crumlish v. Shen. Val. R. Co., 40 W. Va. 627, 22 S. E. Rep. 91. Rights of Creditors. — The makers of notes, delivered to a corporation on conditions which have not been complied with, cannot be held liable to creditors of the corporation whose debts were not contracted on the'faith of such notes, and who aid not know of their existence until after their debts were contracted. Catt v. Olivier, 6 Va. Law Reg. 465. D. RECEIVERS. When Appointed. — Where a corporation 'is insolvent and Is largely indebted, which indebtedness is secured by a lien, which its creditors have a right to resort to; if it appears that the property of the corporation is being dissipated, it is proper for a court on the application of such creditors to appoint a receiver to take charge of the property of the corporation. The court, quoting the Am. & Eng. Enc. Law, said, “In order to obtain the appointment of a receiver, the plaintiff must show — First, either that he has a clear right to the property itself, or that he has some lien upon it, or that the property constitutes a special fund to which he has ' a riebt to resort for the satisfaction of the claim; and secondly, that the possession of the property by the defendant was obtained by fraud, or that the property itself or the income arising from it is in danger of loss, from the neglect, waste, misconduct, or insolvency of the defendant.” Kanawha Coal Co. v. Ballard, etc., Coal Co., 43 W. Va. 721, 29 S. E. Rep. 514; Donnally v. Hearndon, 41 W. Va. 519, 23 S. E. Rep. 646. Duty of Receiver as to Executory Contracts of Corporation. A receiver is not bound to carry out* an executory contract of a corporation, but he may disregard it. The power to adopt or reject it is restricted to the receiver; it is not reciprocal. But if he adopts it under order of court and afterwards abandons it under a further order, the other party is entitled to compensation for what he has actually done in fulfillment of the contract, subj ect to deduction for what he, on his part, has received. Griffith v. Lumber Co., 46 W. Va. 56, 33 S. E. Rep. 125. VII. PLEADING AND PRACTICE. A. SUITS MUST BE BROUGHT AND DEFENDED IN CORPORATE NAME. — A corporation must sue and he sued in its corporate name. Krell Piano Co. v. Kent, 39 W. Va. 294, 19 S. E. Rep. 409; Culpeper Agri., etc., Soc. v. Digges, 6 Rand. 164; Porter v. Nekervis, 4 Rand. 359; Stewart v. Thornton, 75 Va. 215; Hart v. Balt., etc., R. Co., 6 W. Va. 336; Hechmer v. Gilligan, 28 W. Va. 752; Mason v. Bank, 12 Leigh 84; Legrand v. Hampton-Sidney College, 5 Munf. 324. And the same rule prevails in courts of equity. Stewart v. Thornton, 75 Va. 215. Misnomer of Corporation. — Though misnomer of a corporation is only matter of abatement, where it is plaintiff, yet where it is defendant, it is matter in bar. Bank of Va. v. Craig, 6 Leigh 399. But where suit is brought against a branch bank instead of the mother hank, which, alone, is incorporated, this is not a mere misnomer, which must he pleaded in abatement; but is a bar to any recovery and though a verdict he founded upon the general issue pleaded, the error is not cured by the statute of jeofails. Mason v. Farmers’ Bank, 12 Leigh 84. Modern Rule. Identification of Corporation Sufficient. — The name of a corporation is not the only means of identity. If some words be added, omitted, or changed In the spelling, in the true name of the corporation, this is not a fatal variance, if there he enough to distinguish it from other corporations, and to show that the corporation suing or being sued was the one intended. First Nat. Bank v. Huntington Distilling Co., 41 W. Va. 530, 23 S. E. Rep. 792. Leave to Amend Will Be Given. — A corporation may he known by several names as well as a natural person and a recovery may be had against it in its true name provided its identity be averred in pleading and apparent in proof. Where there is a variance as to the name, opportunity to amend will he allowed so as to put in issue the identity of the two corporations. Langhorne v. Rd. City R. Co., 91 Va. 364, 22 S. E. Rep. 357. Not Pleadable in Abatement. — The misnomer of a corporation cannot he taken advantage of by plea In abatement; but where formerly pleadable In abatement, the declaration and summons may, on the motion of eitherparty, on affldavitof therightname, be amended by inserting the same therein. Code W. Va., ch. 125, § 14; First Nat. Bank v. Huntington Distilling Co., 41 W. Va. 530, 23 S. E. Rep. 792. Abbreviated Name Used in Charter May Be Used, at Least No Objection Can Be Hade in the Appellate Court for the First Time. — Where a corporation is formally called in the charter, the “President, Directors & Co. of the Farmers’ Bank of Va.," but elsewhere in the charter and generally, merely the “Farmers’ Bank of Va.,” and it is sued in the latter name and no objection is made in the lower court, it cannot be successfully objected to in the court of appeals. Farmers’ Bank v. Willis, 7 W. Va. 31. Change of Name, Pendente Lite, Immaterial. — A mere change of name, pendente lite, of a defendant corporation, without any change of membership or composition, will not defeat an action against the corporation. Welfley v. Shen. I., L., M. & M. Co., 83 Va. 768, 3 S. E. Rep. 376. Misnomer of Corporation in Contracts. — “But contracts may he made by or with them, by a mistaken name if the mistake be only in syllabis et verbis and not in sensu et re ipsa." So a bond executed to the “President and Managers of the Culpeper Agricultural and Manufacturing Society” may be sued on by the “Culpeper Agricultural and Manufacturing Society,” that being the legal style of the corporation. Culpeper Agricultural, etc., Society v. Digges, 6 Rand. 165. Contracts under an Assumed Name. — 'Wilere a corporation does business under an assumed name for its own convenience and a party contracts with it under that assumed name, having constructive 317notice of its true name, such contract can be enforced by either party. Marinet Co. v. Archibald, 37 W. Va. 778, 17 S. E. Rep. 299. B. LOCALITY OF SUITS AGAINST A CORPORATION. — A corporation holding land in different counties, if so empowered, by its charter, may be sued in any county wherein such land may be, though its principal office is located or its chief officer resides elsewhere. The cause of action growing out of its contracts, acts, negligences or omissions, may arise in a different county or corporation and suit may be brought where the cause of action arose without reference to the residence of the defendant corporation. B. & O. R. Co. v. Gallahue, 12 Gratt. 655. Principal Office of Chesapeake and Ohio Railroad Company in West Virginia. — Since the charter of the C. & O. R. Co. provides that, if the company deems it inexpedient to establish its principal office in the state of West Virginia, its place of business at or nearest Charleston, shall for all purposes be deemed to be the principal office in said state; actions against said railroad company should be brought in the circuit court of Kanawha county. The fact that said company is doing business in other counties of said state will not confer jurisdiction on the courts of such counties, when the cause of action arose outside of the state; unless the president or other chief officer reside in such county. Code, ch. 123, § 1; Ballard v. C. & O. R. Co., 42 W. Va. 1, 24 S. E. Rep. 602. What Amounts to a New Cause of Action so as to Confer Jurisdiction. — An action against a corporation bn a contract for commissions on sales of stock, made at home office, should be brought in the jurisdiction of the home office, and the fact that plaintiff received a telegram from the corporation in a different jurisdiction, telling him that he would have to divide commissions on further stock with another agent who had an option on it, is a mere modification of the former contract and confers xio jurisdiction on the courts of that place on the ground that a new cause of action arose there. Ferguson v. Grottoes Co., 92 Va. 316, 23 S. E. Rep. 761. To Whom Process HitstBe Directed. — if the foundation of the jurisdiction is that the cause of action or some part thereof arose in Lynchburg, the process can only be directed to an officer of that city. Dictum in Guarantee Co. v. Nat. Bank, 95 Va. 480, 28 S. E. Rep. 909; Code Va., § 3220. C. SERVICE OF PROCESS. On Whom —Under Act 1883-4, p. 701, Code Va. 1887, § 3225, service of process on any corporation, other than a bank of circulation or a town, where the president is a nonresident, may be on any agent of the corporation, 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 the agent. Norf. & West. R. Co. v. Cottrell, 83 Va. 512, 3 S. E. Rep. 123. Service on Depot or Station Agent of Railroad Com^ pany Good. — In an action against a railroad company the summons may be served upon a depot or station agent in the actual employment of the company residing in the county or township wherein the action is brought and the return of an officer showing that such process has thus been served is sufficient. Code W. Va., ch. 52, §20; Douglass v. Kan. & Mich. R. Co., 44 W. Va. 267, 28 S. E. Rep. 705. Where.--Service of process on the president or other officer must be in the county or corporation in the state in which he resides. The clause providing for personal service of process on a nonresident, as a substitute for an order publication, Code Va. 187, ch. 166, § 15, Code 1887, § 3232, refers only to natural persons who are nonresident defendants and has no application to nonresident defendant corporations. A judgment based on such service is void for want of jurisdiction. Dillard v. Cent. Va. Iron Co., 82 Va. 734, 1 S. E. Rep. 124; Frazier v. Railroad Co., 40 Va. 324, 21 S. E. Rep. 723; Taylor v. Ohio, etc., R. Co., 35 W. Va. 328. 13 S. E. Rep. 1009. When.---When it appears that process to commence a suit has been served on an agent of the company, less than ten days before the return day. Code Va., § 3327, the proper mode to take advantage of it is by motion to quash the sheriff’s return and not by motion to dismiss the suit. Norfolk, etc., R. Co. v. Carter, 91 Va. 587, 33 S. E. Rep. 517. Service on Attorney Adversely Interested Voidable. —Service of process upon the president and attorney of' a corporation who is also the attorney in adverse interest is not void but voidable on motion in time, English, J., dissenting and holding such service absolutely void. Blowpipe Co. v. Spencer, 46 W. Va. 590, 33 S. E. Rep. 342. Service on the Quondam Officer of a Defunct Corporation Good. — Service of process on the quondam president of a defunct corporation is good; the method by publication provided by Code Va. 1887, § 1103, is merely cumulative and does not exclude the methods applicable to an existing corporation. Richmond, etc., R. Co. v. New York, etc., R. Co,, 95 Va. 386, 28 S. E. Rep. 573. Service of Process on Officer Who Has Been Notified of His Election Is Good. — One who has been notified of his appointment as director, must be presumed to have accepted it unless he expressly declines it; service of process on such a person, therefore, is valid, especially where he makes no disclaimer. The fact that he does not notify the corporation fis immaterial. Danville, etc., R. Co. v. Brown, 90 Va. 340, 18 S. E. Rep. 278. Disclaimer by Officers Immaterial. — Where process is duly served on officers of a corporation, such service is valid, though they disclaim the right to answer officially. Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866. A Judgment without Service of Process Void — Rem= edy. — A j udgment pronounced by a justice, without service of process upon, or notice to the defendant, is void. But as such judgment may be set aside, even when rendered upon the verdict of a jury, by the circuit court upon a writ of certiorari, the defendant in the judgxnent cannot obtain relief against it in a court of equity. Kanawha & O. Ry. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924. Presumption Thai Process Was Duly Served.Where it does not appear from the record whether process was duly served, or order of publication duly published and posted, or not, except from the decree, which declares that “process was duly served” or “order of publication was duly executed as to the defendants,” it will be presumed that it was so served or executed. Bat when the record shows the process or order of publication, and shows clearly that process was not served or order of publication executed as to any particular defendant, such declaration in the decree will not raise such presumption as to such defendant. Styles v. Laurel Fork Oil & Coal Co., 45 W. Va. 374, 32 S. E. Rep. 227. Acceptance of Process flust Show Character in Which Process Was Received. — An acceptance of process 318reading “Service accepted, Alf. Paul,” is bad, as not showing the character in which he received service, i. e., as attorney appointed to accept service. Adkins v. Ins. Co., 45 W. Va. 384, 32 S. E. Rep. 194. D.. ORDER OF PUBLICATION. ■ Must Follow the Statute. — An order of publication in a suit against a corporation, along with other defendants, must follow the statute and state, on affidavit, that such defendant is a corporation and that no person can be found in the county, upon whom process can be legally served and require it to appear within one month and do what is necessary to protect its interests. Styles v. Oil & Coal Co., 45 W. Va. 374, 32 S. E. Rep. 227. Local Attorney of Corporation a Proper Person to Hake It. — The affidavit of a corporation in an order of publication against “parties unknown” must, of necessity, be by an agent, and it is proper for the local attorney of the corporation to make it, who resides in the place where the cause of action arose and on that account is more likely to be conversant with the facts than some officer of the corporation residing elsewhere. Fayette Land Co. v. Louisville, etc., R. Co., 93 Va. 274, 24 S. E. Rep. 1016. On summoning corporations by publication, see article, 2 Va. Law Reg. 545. É. SHERIFF’S RETURN. Hast Show Service on Attorney Appointed to Re= ceive It. — A return of service of- a summons in an action against a foreign corporation upon an attorney, must show that he is the attorney appointed by the corporation to accept such service, otherwise it is defective and judgment on it is void, but the return may be amended. The return must state all the facts necessary to make it good, so that the court may judge of the sufficiency of the service, and where it departs from the statute, everything is inferred against it that such departure warrants. Adkins v. Ins. Co., 45 W. Va. 384, 32 S. E. Rep. 194. Return of Service on “Lawful Attorney” Prima Facie Good. — Where the return of the sheriff, shows that the writ was served on the “lawful attorney” of a nonresident insurance corporation, this is “prima facie” service on the attorney required to be appointed.by such foreign insurance company by Code W. Va., ch. 34, § 15. Wagon Co. v. Peterson, 27 W. Va. 314. riust Show Service on Such Attorney in the County Where fie Resides. — The return of service of process on the attorney appointed by a corporation for accepting service of process or on any officer or agent authorized by law to accept it, by Code W. Va., § 7, ch. 124, must show that such service was had in the county in which such attorney, etc., resides, sec. 38, ch. 50. Otherwise judgment rendered on such invalid service is void for want of jurisdiction, where there is no appearance. Frazier v. R. Co., 40 W. Va. 224, 21 S. E. Rep. 723. This applies as well to process issuing from a justice’s court as to that from any other court. Kanawha, etc., R. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924; Taylor v. Ohio River R. Co., 35 W. Va. 328, 13 S. E. Rep. 1009. But a court of equity will not enjoin such a judgment since there is adequate remedy at law by writ of Certiorari. Kanawha, etc., R. Co. v. Ryan, 31 W. Va. 364, 6 S. E. Rep. 924. Hast Show Service Ten Days before Return Day.— Where the sheriff’s return fails to state that process was served at least ten days before the return day of such process, where that is necessarir, a judgment by default, founded on such process, is wholly void, it may be attacked in a collateral suit by third persons, it neither binds nor bars anything and all acts performed under it and all claims flowing out of it are void. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S. E, Rep. 285. Amendment of Return. — Return of service of a summons from a justice’s court, defective in failing to show that service on a corporation’s agent was-made in the county of his residence, may be amended, either before the justice or in the circuit court upon appeal. Hopkins v. B. & O. R. Co., 42 W. Va. 535, 26 S. E. Rep. 187; Assurance Co. v. Everhart, 88 Va. 952, 14 S. E. Rep. 836. Lapse of Time No Bar to Amendment. — The return of a sheriff to a summons may be amended thirteen years after judgment by default has been rendered in the action, so as to show that the county in which service was had on the defendant corporation, by giving one of the directors a copy of the summons, was the county in which he resided, and the judgment will be validated by such amendment It ¡is immaterial that subsequent mortgagees of the corporation may be injured by the amendment, it not being shown that they were aware of the irregularity in the judgment, which was duly docketed, when they took their mortgages, and if they were, they would nevertheless acquire their liens subject to the judgment plaintiff’s right to have the record perfected. Shenandoah Val. R. Co. v. Ashby, 86 Va. 232, 9 S. E. Rep. 1003. F. SUITS BY AND AGAINST CORPORATIONS. Prejudice against Corporations Not a Proper Question to Put to a Juror. — In an action against a corporation, a juror cannot be asked on his voir dire whether he is prejudiced against corporations. Atlantic, etc., R. Co. v. Reiger, 95 Va. 418, 28 S. E. Rep. 590. No Averment of Incorporation Necessary, Only Proof of It at the Trial, by Old Rule. — A corporation need not set forth in its declaration how they are a -corporation, but must prove it at the trial; and this rule applies to motio?is as well as to suits by a corporation. Grays v. Turnpike Co., 4 Rand. 578; Anderson v. Kanawha Coal Co., 12 W. Va. 526; Rees v. Conococheague Bank, 5 Rand. 326; Taylor v. Bank of Alexandria, 5 Leigh 471; Jackson v. Bank of Marietta, 9 Leigh 240; Quarrier v. Insurance Co., 10 W. Va. 507; Lithgow v. Com., 2 Va. Cas. 297. And the same rule holds where a corporation is sued, nor do the provisions of.sections 1 and 18, ch. 61, Code W. Va. 1860, “that an action for excessive charges cannot be maintained against anyone but an incorporated railroad company affect the case. Hart v. B. & O. R. Co., 6 W. Va. 336. Same Rule in Criminal Proceedings against Corpora» tions. — In criminal prosecutions against corporations, the fact of the incorporation of defendant does not have to be proven unless such fact is put in issue as provided in section 41, ch. 125, Code. State v. Thacker Coal & Coke Co. (W. Va.), 38 S. E. Rep. 539, See also, Lithgow v. Com., 2 Va. Cas. 297. Now Not Even Necessary to Prove It at the Trial un= less Denied under Oath. — In a suit against a corporation it is not necessary to aver in the declaration, that it is a corporation, nor is it necessary to prove at the trial that the defendant is a corporation, unless with the plea there is filed an affidavit denying the fact. The court will take notice of the fact ex officio. Code Va. 1887, sec. 3280; B. & O. R. Co. v. Sherman, 30 Gratt. 602; Gillett v. American Stove, etc., Co., 29 Gratt. 565; Douglass v. K. & M. R. Co., 44 W. Va. 267, 28 S. E. Rep. 705. And the plea of “nul 319riel corporation'’ unaccompanied by an affidavit deriving the corporate, existence of the plaintiff, does not put the plaintiff to the proof of its corporate existence. Crews v. Farmers’ Bank, 31 Gratt. 348. Never Necessory trader a Plea of Conditions Per» formed. — But. while under a special plea that the I>1 aintiff was not a corporation or under the general issue, as non est factum, not guilty, and non assumpsit, it was necessary to prove plaintiff’s existence as a corporation, under a idea of conditions performed, it never was necessary, since by such a plea, the defendant admits the obligee of the bond had an existence as a corporation. Central Land Co. v. Calhoun. 16 W. Va. 361. Affidavit Must Deny Corporate Existence at Time of Contract Sued on. — The affidavit denying the fact of incorporation, which is necessary to pnt such fact in issue. Code Va. 1887. § 3280, must deny the corporate existence at the time of the contract s'ued on; it is not sufficient merely to deny it at the time of the institution of the suit. Richmond, etc., R. Co. v. New York, etc.. R. Co., 95 Va. 386, 28 S. E. Rep. 573. Evidence of Incorporation. Books of Corporation the Best Evidence. — The books of a corporation are the best evidence of due incorporation and ought to be admitted and all fair presumptions will be made in favor of the regularity of incorporation. Grays v. Turnpike Co., 4 Rand. 578. Records and Parol Evidence.- The organization of a corporation may be proved by its records and parol proof, without the production of its list of subscribers. Crump v. U. S. Mining Co., 7 Gratt. 352. Its Deed trader Seal Evidence of Incorporation.--A deed of the corporation, signed with its na.me by the secretary and under the seal of the corporation, duly acknowledged and admitted to record and reciting that "it is a corporation framed under the laws of the state of New York” is prima facie evidence of incorporation. Anderson v. Kanawha Coal Co., 12 W. Va. 526. Certificate of Incorporation. - -Where the certificate of incorporation discloses no error on its face and is in accordance with the provisions of Code W. Va.. ch. 54. sections 6. 7, 8, 9, 10, ch. 53, § 62. it is sufficient evidence of the existence of the corporation, and, haring conducted business as a corporation, the validity of its incorporation cannot be attacked by proving aliunde, the certificate that certain prerequisites of the law had not been in good faith complied with. Laflin & Rand Powder Co. v. Sinsheimer. 24 Am. Rep. 522. Certified Copy of Certificate of incorporation. — A certified copy of the certificate of incorporation, duly authenticated is sufficient evidence of the fact of incorporation Manufacturing Co. v. Bennett, 28 W. Va. 16. Not Inferred from fjcrely Doing Business as :■ Cor» porallon. — The fact of incorporation cannot be inferred from the mere doing basiiless as if incorporated. Jackson v. Bank of Marietta, 9 Leigh 240. Ex Parte Affidavit Not Sufficient. — Where the only proof of incorporation is the ene parte, affidavit of a witness, which is excepted to by opposing counsel, -such proof is insufficient and the bill should be dismissed. Bowyer v. Giles, etc., Turnpike Co., 9 Gratt. 109. Estoppel to Deny incorporation. — A i)ariy who has contracted with a corporation, as such, cannot afterwards raise the objection, that, at the time he entered into such contract, the corporation was not legally incorporated, if such corporation could constitutionally exist. Manufacturing Co. v. Bennett. 28 W. Va. 16; Marmet Co. v. Archibald, 37 W. Va. 778. 17 S. E. Rep. 299; Bon Aqua Imp. Co. v. Insurance Co., 34 W. Va. 764, 12 S. E. Rep. 771. Where one party has admitted the due incorporation of the other in the facts agreed in the case, he will not be allowed in that case to question the existence of such fact. Nat. Building & Loan Ass’n v. Ashworth, 91 Va. 706. 22 S. E. Rep. 521. When Court WiHl Notice Incorporation Ex Officio. Banks. — Where the charier of a corporation in a public act. e. ithe charter of a bank, it is not necessary for (he corporation in bringing an action to prove its incorporation. Northwestern Bank v. Machir. 18 W. Va. 271; Hays v. Northwestern Bank, 9 Gratt. 127; Stribbling v. Bank, 5 Rand. 132. Extension of Such Charters — And the court will take judicial cognizance, not only of the original charter of a bank; but likewise of acceptance by the bank of an extension of its charter. Farmers’ Bank v. Willis, 7 W. Va. 31. Railroads. — The acts of the Legislature conferring corporate powers on the B. ft O. R. Go. are public acts and will be noticed by the court ex officio. Hart v. B. & O. R. Co., 6 W. Va. 336; State v. B. & O. R. Co., 15 W. Va. 362. Charters of Private Corporations Created under Gen» era! Law and Printed with Public Acts. — Though the court expressly declined to decide the question, as not necessary to the decision in that case, Bon Aqua Imp. Co. v. Insurance Co., 34 W. Va. 764, 12 S. E. Rep. 771, they plainly indicated that, if the case arose, they wouia hold that the courts would take judicial notice of private corporations created under general law, whose certificates were printed with the public acts of the Legislature, in accordance -with sec. 19, ch. 54, Code W. Va. 1891. But an Act Creating a Rolling Mill, Private. — An act of the Legislature chartering a rolling mill is a private act, hence the provision of sec. 4203 of the Code, excluding from the operation of the Code aay act passed between the 15th of March, 1887, and the 1st of May, 1888, does not apply, this provision referring merely to public acts. Va. Devel. Co. v. Crozer Iron Co., 90 Va. 126, 17 S. E. Rep. 806. Inability of Corporation to flake an Affidavit. — In a suit against a corporation, a replication to a plea of the statute of limitations by the corporation, to the effect that the plaintiff could not truly make the affidavit prescribed by sec. 27, ch. 106, Code W. Va. 1868 is bad. since a plaintiff is excused from making such an affidavit in a suit against a corporation, the. corporation on its part being unable to make an affidavit. Stuart v. Greenbrier Co , 16 W. Va. 95. The same is true where a corporation is plaintiff. Bank v. Handley, 14 W. Va. 823. Answer of Corporation Must Be under Common Seal, Effect. — A corporation cannot lie sworn and therefore must putin its answer under its common seal only. If the plaintiff wishes to have a sworn answer, he must make some of the officers or members of the corporation parties. The answer of a corporation not being verified by affidavit, is no evidence for the defendant, though responsive to the bill; but it puls the allegation to which it responds in issue and imposes on the plaintiff the burden of proving it. This is its effect on a motion to dissolve an injunction, as well as on the hearing of the cause. B. & O. R. Co. v. Wheeling, 13 Gratt. 40; B. & O. R. Co. v. Gallahue, 12 Gratt. 655; Jeter v. Railroad Co., 35 W. Va. 433, 14 S. E. Rep. 146. 320Bill of Discovery against Corporation Alone, Host Be Dismissed. — Since corporations cannot answer under oath, hut only under their corporate séal, a hill of discovery against a corporation alone must be dismissed. The proper method is to make such officers or shareholders as are personally cognizant of the facts wanted, parties defendant along with the corporation. Roanoke St. R. Co. v. Hicks, 96 Va. 516, 32 S. E. Rep. 295; Jeter v. Railroad Co., 35 W. Va. 433, 14 S. E. Rep. 146. Pleading of Corporation Should Be Verified by Affidavit of Someone Conversant with the Facts. — A pleading of a corporation should be verified by the affidavit of the president or some other officer conversant with the facts, the affidavit of the attorney at law of the corporation is not sufficient, Brannon, P., saying: “What would he know of the indebtedness, unless he should show that he was personally cognizant of the facts? Doubtless there are instances, in which an attorney may make affidavit for a corporation; but this is an instance where the affidavit calls for personal knowledge of the facts» the account between the parties, if any instance does.” In such affidavit the affiant must state the facts» as of his own knowledge, and not as hearsay. Quesenberry v. B. & L. Ass’n, 44 W. Va. 512, 30 S. E. Rep. 73. In Pleas to the Jurisdiction, Corporations Must Appear by Its President, Not in Person or by Attorney. —A corporation cannot, in pleas to the jurisdiction, appear either in person or by attorney, but must appear by its president. Quarrier v. Insurance Co., 10 W. Va. 507. Form of Plea. — A plea to the jurisdiction by a corporation should conclude “whether the court can or will take further cognizance of the action aforesaid” not “that the plaintiff’s aforesaid action may abate and be dismissed.” The affidavit also should b^positive and not “as affiant verily believes.” Further, the necessary facts should be alleged to have existed when the action was brought, not merely when the plea was filed. The language of the plea in these respects should have been “That the cause of action, if any such cause there was, did not, nor did any part thereof, arise in said county of Kanawha, and the principal office of the said corporation was not, and the president, who is its chief officer, did not, reside in that county at the time said action was brought, but its office and his residence were at the time and ever since have been, and now are in the county of Ohio, and in the last named county, there arose the cause of action and evérypart thereof, if any such cause there was.” Quarrier v. Insurance Co., 10 W. Va. 507; Guarantee Co. v. Nat. Bank, 95 Va. 480, 28 S. E. Rep. 909. One Party to a Contract Not Disqualified to Testify because Other Party Is a Corporation. — A corporation must of necessity contract through its agents, and is incapable of testifying except through the mouth of its agents. Its incapacity to testify does not, however, operate to exclude the testimony of a party with whom it has made a contract or had a transaction, which is the subject of a suit between them, because it is not incapacitated to testify by reason of death, insanity, infamy, or other legal cause, the causes specified by the statute, whose existence shall disqualify the other party as a witness in his own favor, unless he be first called to testify in favor of the party who is incapable of testifying by reason of some one of the causes so specified. Mutual Life Ins. Co. v. Oliver, 95 Va. 445, 28 S. E. Rep. 594; Kelly v. Board, 75 Va. 263. Death of Other Party Does Not Disqualify Agent of the Corporation. — The agent of a corporation is not disqualified to testify by the death of the other party to a transaction, the original parties to which were the corporation and the said party. Unless the agent is one of the “original parties” to the contract, he is not incompetent ; the test of competency being not the fact to which such party is called to testify, but the contract or other transaction, which is the subject of investigation. Mutual Life Ins. Co. v. Oliver, 95 Va. 445, 28 S. E. Rep. 594; First Nat. Bank v. Terry, 99 Va. —, 6 Va. Law Reg. 770. BX. FOREIGN CORPORATIONS. A. NO LEGAL EXISTENCE OUTSIDE OF STATE; CREATING THEM. — A corporation exists only in. contemplation of law, and by force of law, and cam have no legal existence beyond the bounds of the state or sovereignty by which it is created. Rece v. Newport News & M. V. Co., 32 W. Va. 164, 9 S. E. Rep. 214. Not “Citizens” within the Language of the Federal Constitution. Power of Legislature to Exclude Them. — The clause of the federal constitution, art. 4, § 2, declaring that the citizens of each state are entitled to all the privileges and immunities of citizens of the several states, does not apply to corporations. Samuels, J.,. in Slaughter v. Com,, 13 Gratt. 767, said: “I have no doubt of the power of^ the general assembly of Virginia to forbid foreign corporations from engaging in any pursuit within the state ; and, of consequence, to grant permission Tto engage therein only upon terms; and that a statute imposing a fine for doing business without’ a license. Code Va. 1849, ch. 38, § 25, is clearly within the scope of their legitimate powers.” If Admitted, It May Exercise All Its Charter Powers Unless in Contravention of the Laws or Policy of the-State. — When a state permits a foreigner to come into its territory for the purpose of carrying on its business it must be presumed to have consented that that company should exercise all of the powers conferred by its charter and the general laws, appertaining thereto, unless prohibited from doing so by the direct enactments of the state or by some rule of public policy to be deduced from the general, course of legislation. Bockover v. Life Ass’n, 77 Va. 85. Statutory Provisions for Admission. Foreign Corporations, to Sustain an Action, Need. Not Allege Compliance with Such Statute. Defendant flust Plead and Prove Such Non-CompIi«ance. — it is not necessary for a foreign corporation, in order to sustain its action, to set forth in its complaint that it has complied with the laws of the state which entitled it to do business therein, but this defense, if available, is a matter to be pleaded and proved by the defendant. Nickels v. Build. & Loan Ass’n, 93 Va. 380, 25 S. E. Rep. 8. And Heilust State in What Respect the Plaintiff Has Failed. — If the fact relied on by the appellee is that, the appellant corporation has not complied with the requirements of the law, requiring a foreign corporation to have an office in the state, Code Va. 1887, § 1104, it is essential that the appellee allege in his bill in -what particular the appellant has failed. Nat. Build. & Loan Ass’n v. Ashworth, 91 Va. 706, 22 S. E. Rep. 521; 1 Va. Law Reg. 519. Effect of Compliance. Still Nonresidents within the Meaning of the Attachment Laws. — Whilst a corporation may by its. 321agents transact business anywhere, unless prohibited by its charter or by local laws, it can have no residence or citizenship, except where it is located by the authority of its charter. Hence a foreign corporation by complying with the requirements of the Va. statute, Code 1873, ch. 36. § 19, Code 1887, ch. 53, for doing business in the state of Virginia by making a deposit and appointing a resident agent, etc., is not a resident of Virginia within the meaning of the foreign attachment laws and the propert3r of such corporation is liable to attachment as a nonresident. Cowardin v. Ins. Co., 32 Gratt. 445. The appointment by a foreign corporation of an attorney in West Virginia to accept service of process. Code W. Va.. ch. 54, sec. 24, does not make it a domestic corporation: it is still liable to attachment as a foreign corporation. Quesenberry v. Ass’n, 44 W. Va. 512, 30 S. E. Rep. 73; Savage v. Ass'n, 45 W. Va. 273, 31 S. E. Rep. 991. A statute merely enabling a foreign corporation to hold properly or do business in this state and have the same powers, rights and privileges and be subject to the same regulations, restrictions and liabilities, as domestic corporations, Code W. Va., ch. 54, § 30, does not make it a domestic corporation, and it may be proceeded against by attachment as a foreign corporation. Savage v. Ass’n, 45 W. Va. 275, 31 S. E. Rep. 991; Quesenberry v. Ass’n, 44 W. Va. 512, 30 S. E. Rep. 73. But Cannot Be Required to Ciive Security for Costs.— A foreign corporation which has complied with the requirements of sec. 24, ch. 54, Code W. Va., as to appointing a resident agent is not to be considered a nonresident, so as tobe required to giye security for costs as plaintiff. Marmet Co. v. Archibald, 37 W. Va. 778, 17 S. E. Rep. 299. Are Residents for the Purpose Being Sued. — But by compliance with the terms of such statute a foreign corporation is to be considered, for the purpose of being sued, as domiciled in Virginia and is entitled to rely on the statute of limitations just as if it had been chartered by the legislature of Virginia. Insurance Co. v. Duerson, 28 Gratt. 630; Cowardin v. Insurance Co., 32 Gratt. 445, approved in Hall v. Bank of Va., 14 W. Va. 584; Abell v. Insurance Co., 18 W. Va 400. But where afterwards such corporation ceases to do business in the state and neglects to appoint an agent and otherwise fulfill the requirements of the statute, this is a withdrawal from the .state and an obstruction of the plaintiff and such period is not to be counted in the running of the statute of limitations, in accordance with sec. 18, ch. 104, Code of W. Va. Abell v. Insurance Co., 18 W. Va. 400. Corporations Existing When Constitution of West Virginia Adopted in i860. — Under the 8th section of art. 11 of the constitution of West Virginia providing that the common law and laws of Virginia at the time of the constitution, not repugnant thereto, shall be and continue the law of West Virginia until altered or repealed by the Legislature. the charter of a bank incorporated in Virginia, having branches in West Virginia is continued in full force, unless repugnant to the constitution, as a domestic corporation of West Virginia and cannot be proceeded against as a foreign corporation by attachment or otherwise. Nor is the case of Parker v. Donnally, 4 W. Va. 648, even impliedly in conflict with this doctrine. Farmers’ Bank v. Gettinger, 4 W. Va. 305. But during the war all power of a Virginia corporation to do business in West Virginia was suspended and it was proper to proceed against it by attachment as a foreign corporation. Hall v. Bank of Va., 14 W. Va. 584. Effect on Contracts of Non-Compliance.--A contract made by a foreign corporation before it has complied with the statutory prerequisites to the right to do business in another state will not on that account be held absolutely void, unless the statute expressly so declares; and, if the statute imposes a penalty upon the corporation for failing to comply with such prerequisites, such penalty will be deemed exclusive of all others. Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566, 11 S. E. Rep. 37; Building Ass’n v. Snyder, 98 Va. 710, 37 S. E. Rep.. 298; 1 Va. Law Reg. 524, and note. B. SUITS BY AND AGAINST. Power of a Foreign Corporation io Sue in Virginia Courts.--A foreign corporation may sue in our courts upon a contract with them, valid according' to the laws of the country in which the contract was made, unless contrary to the policy of the laws of Virginia. Rees v. Conococheague Bank, 5 Rand. 326; Bank of Marietta v. Pindall, 2 Rand. 465; Taylor v. Bank of Alexandria, 5 Leigh 471; Freeman’s Bank v. Ruckman, 16 Gratt. 126. But no foreign bank can sue on a primary contract made in Virginia by discounting notes or otherwise. Bank of Marietta v. Pindall, 2 Rand. 465. Power of Receiver, etc., of Foreign Corporation to Sue in Virginia Courts. — The law is now settled by an irresistible preponderance of authority that a receiver, trustee, or assignee of a foreign corporation, with general powers over the property of such corporation, has the right, by virtue of the comity existing between the various states of this Union, to sue for any debt, claim, or properly owing to or belonging to such corporation. Swing v. Bentley & Gerwig Furniture Co., 45 W. Va. 283, 31 S. E. Rep. 925. Power of Local Courts over Foreign Corporations. Will Not Interfere with Their Internal Management.— It seems to be well settled that the domestic courts, will not interfere with the management of the internal affairs of a foreign corporation. The reasons for such a rule are apparent. Courts other than those of the state creating it, and in which it has its habitat, have no visitorial powers over such corporation, nor any authority to remove its officers, or to punish them for misconduct committed in the state which created it, or to enforce a forfeiture of Us charter. Neither have they the power to compel obedience to their orders, or to enforce their decrees. Taylor v. Mutual, etc., Life Ass’n, 97 Va. 67, 33 S. E. Rep. 385. A Virginia court will not enjoin a foreign corporation from forfeiting the policy of insurance of a citizen of Virginia nor require it to exhibit its books, papers, etc., since it has no means of enforcing such decrees. Nor can a court under such circumstances proceed to construe the contract and thus render the matter “res judicata,” since it has no jurisdiction of it. Taylor v. Mutual, etc., Life Ass’n. 97 Va. 60, 33 S. E. Rep. 385. But They Will Protect a Local Stockholder’s Individual Rights. — Where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president, or other officer, and is the act of the corporation, whether acting in stockholders’ meeting or through its agents, the board of directors, then such action is the management of the internal affairs of the corporation, and in the case of a foreign corporation our courts will not take juris322diction. Where, however, the act of the foreign corporation complained, of affects the complainant’s individual rights only, then our courts will take jurisdiction whenever the cause of action arises here. Taylor v. Mutual, etc., Life Ass’n, 97 Va. 68, 33 S. E. Rep. 385. How Jurisdiction of Foreign Corporation Hay Be Acquired.“-Jurisdiction over' a foreign corporation hy the domestic courts can only he acquired in one of three ways. By the cause of action or part thereof having arisen in the state, Code Va., § 3215; hy being sued with another wb o is a resident thereof, 8 8214, par. 1, or hy having estate or debts owing to it within the state, § 8214, par. 4. Guarantee Co. v. Nat. Bank, 95 Va. 480, 28 S. E. Rep. 909. Suit nay Be Brought in Any County Where Corporation Has Estate or Debts Due it. — A suit against a foreign corporation may be brought in any county wherein it has estate or debts due. It is a nonresident under clause 3, § 1-, ch. 123, Code W. Va. Quesenberry v. B. & L. Ass’n, 44 W. Va. 512, 30 S. E. Rep. 73. Under the act, 1 R. C. 1819, p. 474, ch. 123, directing 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 defendant out of this commonwealth, where there are persons within -the same who have in their hands effects of, or are indebted 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. Bank of U. S. v. Merchants’ Bank. 1 Rob. 573. In West Virginia Suit Hay Be Brought in Any County Where the Corporation Does Business. — A foreign corporation is liable to suit or garnishment in any county of West Virginia wherein it does business and has an agent upon whom process may be legally served according to sec. 7, ch. 124, Code W. Va. 1891, although the course of action arose without the state. Code W. Va., ch. 123, sec. 1; Mahany v. Kephart, 15 W. Va. 609. Legislature May Authorize Suit “In Personam” if Process Can Be Legally Served on Foreign Corporation. —It is within the power of a state legislature to authorize a suit against a foreign corporation in personam as well as in rem. Hence a foreign corporation doing business in West Virginia may be sued in any particular county of said state by clause 2, sec. 1, ch. 123, Code W. Va. 1891. provided service of process can be lawfully had by sec. 7, ch. 124. Humphreys v. Newport News, etc., R. Co., 33 W. Va. 135, 10 S. E. Rep. 39. When Local Courts Will Render a Personal Decree. Actual Service of Process or Appearance Necessary. —Apersonal decree for speciflcperformance may he rendered against a foreign corporation when actual service of process has been made within the state under the provisions of the Code W. Va., ch. 124, sec. 7. Shafer v. O’Brien, 31 W. Va. 601, 8 S. E. Rep. 298; Crumlish v. R. Co., 28 W. Va. 623. In Gilchrist v. Land Co., 21W. Va. 115, the court was forced to follow the construction of the New York courts in holding that no personal decree could be rendered against foreign corporations unless it had appeared, but the doctrine of Shafer v. O’Brien, 31 W. Va. 601, 8 S. E. Rep. 298, is that of the West Virginia courts. Not Necessary fora Decree in Rem. — It is not denied that a corporation, like an individual, cannot he bound personally, unless it appears or is, by proper summons within its jurisdiction, brought before the court; hut it cannot he questioned, that a court may, withourt personal service, take jurisdiction of the property of a nonresident person or foreign corporation, and its decree, to the extent that it takes possession and disposes of the property within its jurisdiction, will he binding upon all parties affected or interested whether resident or nonresident. Crumlish v. Railroad Co., 28 W. Va. 623; Dillard v. Cent. Va. Iron Co., 82 Va. 734, 1 S. E. Rep. 124. Cannot Be Compelled to Answer. — A foreign corporation cannot he compelled to file an answer. B. & O. R. Co. v. Wheeling, 13 Gratt. 40. Suit to Settle the Affairs of a Foreign Corporation flay Be Brought in Circuit Court in West Virginia.— The doctrine of Nimick v. Iron Works, 25 W. Va. 184, that a general suit to settle the affairs of a foreign corporation must he brought in the state of its domicile, has been superseded by sec. 58, 59; ch. 53, Code W. Va., which gives the circuit court jurisdiction of such suits. Swing v. Furniture Co., 45 W. Va. 283, 31 S. E. Rep. 925; Swing v. Veneer & Panel Co., 45 W. Va. 288, 31 S. E. Rep. 926. Removal of Suits to Federal Courts. A Corporation Is a Citizen of the State Creating It.— Where a corporation is created hy the laws of a state, the legal presumption is that all its members are citizens of the state hy which it was created ; and in a suit hy or against it, it is conclusively presumed to be a citizen of such state. Rece v. Newport News & M. V. Co., 32 W. Va. 164, 9 S. E. Rep. 214. See full discussion in Hall v. Bank of Va., 14 W. Va. 584. Citizenship of Stockholders Immaterial. — Where the plaintiff and defendant corporation are both corporations of Virginia the owners of the stock, though nonresidents, are not entitled to have the cause removed to the federal courts. Wash. Alex. & Georg. R. Co. v. Alex. & Wash. R. Co., 19 Gratt. 592. Corporations Created by Two or More States. Distinct Corporations, Citizens of Each State. — While a corporation, hy the same name, may be chartered by two states, clothed with the same capacities and powers, and intended to accomplish the same objects, and be exercising the same powers and duties in both states,'yet it will, in law, he two distinct corporations, — one in each state, — with only such corporate powers in each state as are conferred hy its creation in that state. Rece v. Newport News & M. V. Co., 32 W. Va. 164, 9 S. E. Rep. 212. A railroad extending through two or more states and incorporated by the laws of each is not a joint corporation of the two states hut a separate corporation in each state subj ect only to the laws of each state within the respective jurisdictions, however those laws may conflict as to the opération of the' road, and one state cannot impose any restrictions or limitations upon the exercise of corporate powers in the other. Atwood v. R. Co., 85 Va. 966, 9 S. E. Rep. 748. Such a corporation is a citizen of each state in respect of its rights of suing and being sued in the federal courts, i. e. it cannot sue or he sued in such courts hy a citizen of any state in which it is incorporated. And at all events a corporation which is chartered in West Virginia and has accepted its Charter by actually doing business there, must, in a suit in the West Virginia courts, he regarded as a domestic corporation resident in West Virginia. Hall v. Bank of Va., 14 W. Va. 584. 323A Corporation Recfoartcred or Licensed to 5>© BurE ness in More Than One State. ---A railroad corporation maj have an existence for the purpose of suing and being sued by the citizens thereof in more than one state, if ciiartered or licensed to build its road and do business in more than one. So the 1?. & O. It. Co. ih a domestic corporation in West Virginia and as Mic,h is liable to be sued there and when sued there by a citizen of that state, in a state court such suit cannot be removed into the federa] courts and those courts have no jurisdiction in such a case. B. & O. R. Co. v. P. W. & Ky. R. Co., 17 W. Va. 812; Goshorn v. Board, 1 W. Fa. 307. The B. & G\ It. Go. under the charter granted by The legislature of Virginia re-enacting the Maryland charter and conferring the same rights and privileges, is a Virginia corporation and liable to be sued in Virginia. B. & O. R. Co. v. Gallahue, 12 Gratt. 655. Necessary Allegations of Citizenship, “-in a petition for the removal of a cause to the federal courts on the ground that defendant is a foreign corporation, it is necessary to allege not only that it is a citizen of another state bat also that it is not a resident of Virginia, since a foreign corporation may become a resident oi any state for the purposes of suit. Guarantee Co. v. Nat. Bank, 93 Va. 480, 28 S. E. Rep. 909. When Me tie a for Removal Gust Be Made. — Amotion for removal to a federal court on account of diversity of citizenship is not made too late when made after a trial before a justice, a justice’s court not being a “state court” within the language of the act of Congress. Rathbone Oil Tract Co. v. Rauch, 5 W. Va. 79. Foreign Corporation Leasing Railroad iia Virginia Liafoie to Suit in Virginia Courts. — Where a railroad which was incorporated in. another state leases a railroad lying in Virginia and operates the same as owner thereof and an injury occurs on said railroad, the person having the right of action for such iuj ury may sue the railroad in the courts of Virginia, and such company has no right to remove the suit to the federal courts. B. & O. R. Co. v. Wightman, 29 Gratt. 481; B. & O. R. Co. V. Noell, 32 Gratt. 394. Ho also where a corporation is rechartered in West: Virginia or receives a license to extend its system 1 into West Virginia. B. & O. R. Co. v. F. W. & Ky. R. Co., 17 W. Va. 812. hi West Virginia an Agreement Not to Remove Suits to Federa" Courts as Condition of Admission within the Hiato Is Void. — So much of section 30. oil. 54, of Code of West Virginia, as declares that foreign railroad corporations, doing business in West Virginia shall, in all suits and legal proceedings, be held and treated as domestic corporations of West Virginia, and requires any such corporation to file an agreement to that effect, is, so far as it attempts to deprive such corporation of the right to remo ye to the federal courts suits brought by or against it in the courts of West Virginia, in cases in which it would otherwise be entitled to such right, inoperative and void; and such foreign corporation may exercise such right in any proper case, notwithstanding i¿ has executed and filed such agreement in pursuance of the provisions of said statute. Rece v. Newport News & M. V. Co., 32 W. Va. 164, 9 S. E. Rep. 212. Cmiaoi Contract as to Jurisdiction of Suits. — A provision endorsed on the certificates of stock issued by a foreign corporation, that any action brought against said corporation toy its stockholders shall be brought in. a certain county of the state of its domicil, is void, as jurisdiction cannot be taken away by consent. Savage v. B. & L. Ass’n, 45 W. Va. 275, 31 S. E. Rep. 991. C. TAXATION OF FOREIGN CORPORATIONS, STATE MAY TAX THEM, IF IT DOES NOT DISCRIMINATE AGAINST NONRESIDENTS. — It is competent for a state to impose a tax upon individuals or corporations within its territory; ana such tax, if it does not discriminate, against nonresidents or the products of other states, may be upon the property, or franchises, or the business, of the individual or corporation; and its validity is not at all affected by the consideration that the party is engaged in foreign as well as domestic trade and traffic. West. U. Tel. Co. v. City of Richmond, 26 Gratt. 26. It May Be ift the Forna of a License Tex.- — "The council of the city of Richmond has authority, under the charter of the city, to impose a license tax upon a foreign telegraph company having an agency in the city and doing business therein. And there is nothing in the constitutions and laws of Virginia or of the United States which forbids such a tax. if it is equal and just in its provisions. Though the ordinance of the city speaks only of persons or firms doing business in the city, yet, as it imposes a tax in terms on telegraph companies, it is obviously intended to include incorporated companies as well as individuals. Corporations are to be deemed and taken as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in a statute.” Western Union Telegraph Co. v. City of Richmond, 26 Gratt. 1. A statute imposing a license tax on foreign corporations and not on those created by Virginia is not in contravention of the Virginia constitution, art. X, sec. 1. providing that taxation shall be equal and uniform, since, that does not apply to taxes on licenses, whose values are too unequal to be taxed uniformly. Slaughter v. Coin., 13 Gratt. 767. When Residents within Meaning of Revenue Laws. - A foreign corporation, which has a place of business in Virginia where it sells its machines and has paid the required state tax, is a resident merchant in the meaning of the revenue laws of Virginia. Webber v. Com., 33 Gratt. 898. Agencies of Use Federal Government. State May Tax Their Property font Not the Insira~ mcntalities of the Government in Their Possession. - The cases recognize a distinction between taxation oí the property belonging to a private corporation employed by the government, and taxation of the instrumentalities or means of the government in the possession of such corporation. The state may tax a banking institution; but it cannot tax the currency or the government’s bonds belonging to such bank. It rnay tax the railroad, but not the mail or the munitions or other property of the government. It may tax the contractor with the government, though not the contract. Western Union Telegraph Co. v. City of Richmond. 26 Gratt. 2. Provided Congress Has Not Exempted TLem from State Taxation. — Corporations, which derive their existence and exercise their franchises under authority of state laws, but are employed by the national government for certain duties and services, may be exempted by Congress from any state taxation which will really prevent or impede such services, yet in the. absence of legislation by Congress to indicate that such exemption is deemed essential to the performance of governmental services, it cannot be claimed on the mere ground that the corporation is employed as an agency of *324the government. And the tax may he either upon the property or business of the corporation. Western Union Tel. Co. v. City of Richmond, 26 Gratt. 2. Manufacturing; a Patented Article Gives No Exemption. — The fact that a foreign corporation is manufacturing a patented article does not entitle it to sell them in Virginia without complying with the requirements of the state revenue laws. Webber v. Com., 33 Gratt. 898. D. EFFECT OF WAR ON POWERS OF FOREIGN CORPORATIONS. — A corporation chartered under the laws of Virginia before the late civil ivar and having its office and place of business, its officers and directory in the city of Richmond, if not actually dissolved, at least was, so far as to suspend, its power to make assessments on property outside the jurisdiction of the Confederate government during the war, as being against the policy of the law. Mut.. etc., Soc. of Va. v. Board, 4 W. Va. 343. See also, Hall v. Bank of Va., 14 W. Va. 484.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481626/	Samuels, J. An indictment containing two counts, was found against Noah J. Burner, in the Circuit court of Shenandoah county. The first count alleged, “ that Noah J. Burner, on the first day of August 1854, at 779his house in Powell’s Fort in the county aforesaid, did. keep an ordinary without obtaining a license to do so, contrary to the form of the statute in such case made and provided,” &c. The second count differs from the first only in alleging the keeping of the ordinary to have been on the second day of August 1 854, and from that time to the first day of September 1854. A separate demurrer was filed by the plaintiff in error to each count in the indictment, in which the attorney for the commonwealth joined; the plea of not guilty was also filed and issue made up thereon. The Circuit court overruled the demurrer to the first count, and sustained that to the second count. On the trial of the issue upon the first count the jury found the plaintiff guilty and assessed a fine of thirty dollars; and the court rendered a judgment for the fine. In the progress of the trial several exceptions were taken by the plaintiff to several opinions of the court; and the case is brought to this court to correct errors alleged to exist in the record. The prosecution was had under the several provisions of the statutes, ch. 38, § 4, 9; and ch. 96, § 1 of the Code of Virginia. It may be doubted whether the difference between the two counts in the indictment be such as to recjuire a different judgment upon the demurrers to them respectively ; the continuando in the second count could not have the effect of making the offense charged therein different from that charged in the first count; it should be regarded as mere surplusage, and did not vitiate, if the count would have been good without it. Code, ch. 207, § 11, p. 770. The commonwealth, however, was not prejudiced by the error herein, if it be error, as any conviction which could be had under the second count, may be had as well under the first count. I was strongly inclined to doubt the sufficiency of 780either count. It seemed to me that the specific facts famishing, for compensation, lodging or diet to a boarding in his house, or provender for a horse feeding in his stable or on his land, (except a drove of live stock and persons attending it,) and selling by retail wine or ardent spirits, or a mixture thereof, to be drunk in or at the place of sale, or such of these things as would constitute the keeping an ordinary, should be alleged to have been done by the plaintiff without license; that the facts themselves and not the conclusion of law upon them should have been alleged. A majority of the court, however, is of a different opinion, and hold that the indictment in the language of the statute creating the offense is sufficient, under many decisions of the late General court, and of the English courts. I therefore waive my doubts, and concur in holding that the demurrer to the first count was properly overruled. Upon the trial of the issue the commonwealth offered evidence tending to prove that the plaintiff, at the time and place alleged in the indictment, had sold spirits to-be drunk there; and for compensation had furnished diet for persons and provender for horses without having a license to keep an ordinary. The plaintiff in error gave in evidence a license from the County court of Shenandoah to keep a house of private entertainment at the place and time in the indictment alleged. Five several instructions from the court to the jury were prayed for by the plaintiff in error. Of these the first, second, third and fourth in substance propound the same proposition of law, to wit, that if the plaintiff had a license to keep a house of private entertainment, he could not be convicted for keeping an unlicensed ordinary, by proving the sale by him of spirits to be drunk at the house of private entertain-' ment, the place of sale, in addition to the furnishing, 781for compensation, diet, lodging and provender at that place. These instructions, I think, propound the law correctly. The statute, Code, ch. 96, § 1, declares who shall be deemed the keeper of an ordinary. To make up this character a person must for compensation furnish either diet or lodging to a person boarding in his house, or provender for a horse feeding in his stable or on his land; and also sell by retail wine or ardent spirits or a mixture thereof, to be drunk in or at the place of sale. The second section of the statute, ch. 96, declares who shall be deemed the keeper of a house of private entertainment. If he for a time not exceeding one month, if within, or not exceeding a week, if without a city or town, furnish for compensation lodging or diet to one boarding in his house, or provender for a horse feeding in his stable or on his land, except as aforesaid, he shall, if he be not the keeper of an ordinary, according to the preceding section, be deemed to keep a house of private entertainment, unless the place of furnishing the same, when without a city or town, be-more than eight hundred yards from a public road or highway. Thus it is seen the subjects of diet, or lodging or provender are common to both definitions. One or more of these subjects must be united to the sale of wine, &c. to be drunk, &c. to make an ordinary. It is of the essence of an ordinary that they be combined. If, however, a party have a license to furnish diet, lodging and provender as keeper of a house of private entertainment, he cannot be indicted for doing those things, or any of them : he is justified by law. Thus it seems that as to one part of the offense he cannot be found guilty; and the remaining part of the offense, the sale of wine, &c. to be drunk, &c. if proved, will not sustain an indictment for keeping an ordinary; but it will be an offense punishable under § 18, ch. 38 of the 782Code. The law makers seemed to have intended to fix a gradation of offenses, and to graduate the punishment accordingly; the sale of wine, &c. without license, to be drunk at the place of, or elsewhere, is punished by a fine of thirty dollars; § 18 ; that of keeping unlicensed private entertainment by a fine not exceeding fifty dollars; § 9; that of keeping an unlicensed ordinary, which includes the less offense last above mentioned and also the sale of wine, &c. to be drunk, &c. by a fine not less than thirty nor more than one hundred dollars. I am thus led to the conclusion that if the plaintiff had the license to keep the house of private entertainment, that in going beyond his license and selling wine, &c. to be drunk, &c. he did not incur the guilt of keeping an unlicensed ordinary. It was said by the attorney general in the argument here, that as the first four instructions moved for by the plaintiff in error were in substance the same, and as the first and third were given as prayed for, the Circuit court was justified in refusing the second and fourth, because they had already been substantially given; and it would be an idle repetition to give them again. If the Circuit court had placed its refusal upon this ground, and had so informed the jury, there would have been no error of which complaint could be made. The court, however, by a simple refusal without more, left the jury to draw the obvious inference that the instructions refused did not state the law correctly; thus putting the jury in a condition to be misled by the rulings of the court. It is against the theory of trial by jury to confide to their sagacity the duty of extracting the law from contradictory rulings of the court. However the case may stand in regard to any conflict of decisions on the plaintiff’s instructions, there can be no doubt that the one given at the instance of 783the commonweath’s attorney, is in conflict with those given at the instance of the plaintiff. This instruction propounds the law to be that the furnishing diet, &c. and the sale of wine, &c. without an ordinary license, of themselves make the offense of keeping an unlicensed ordinary ; thus denying all effect whatever to the license to keep private entertainment in mitigating the offense: and this although the unlicensed furnishing diet did not take place. This instruction moreover mistakes the law to be that a sale of wine, &c. of itself, without regard to the place at which it is to be drunk, may form part of the offense of keeping an unlicensed ordinary; the statute in terms prescribes that such sale must be made to be drunk at the place of sale, or it does not enter into the definition of an ordinary. I am of opinion to reverse the judgment, and award a new trial, upon which ■ the Circuit court shall conform to the law as herein declared. The other judges concurred. The judgment was as follows: It seems to the court here, that the plaintiff should not have been convicted of keeping an ordinary without license, without proof of such and so many of the acts as would make him the keeper of an ordinary under the statute, Code, ch. 96, § 1. That if he had a license to keep a house of private entertainment at the time and place in the indictment alleged, he was authorized by law to furnish for compensation the diet, lodging and provender, as mentioned in § 2 of the same statute; and as the unlicensed furnishing of these things, or one or more of them, must concur with the unlicensed sale of liquors named in the first section, to complete the offense of keeping an unlicensed ordinary, the plaintiff could not be convicted 784thereof, if he had a license to keep a house of private entertainment. Thus it seems to the court here, that the Circuit court erred in refusing to give the second and fourth instructions prayed for by the plaintiff, and that this error is not cured or obviated by the court’s giving the first and third instructions, of the same substance as the second and fourth, without informing the jury that the second and fourth instructions were refused for reasons other than error therein. It further seems to the court here, that the Circuit court erred in giving the instruction moved for by the attorney for the commonwealth, as well because it is in conflict with the law as herein declared, as because it assumes that the unlicensed sale of liquor, without regard to the place where it is to be drunk, may enter into the offense of keeping an ordinary without license. Without deciding any other question made in the case, it is considered by the court that the judgment aforesaid be reversed and annulled; and it is ordered that the verdict of the jury be set aside, and the cause remanded to the Circuit court of Shenandoah county for a new trial to be had, upon which, if the evidence shall be substantially the same as that on the first trial, and the plaintiff shall again ask for the first, second, third and fourth instructions moved for on the first trial, the court directs that they be given; and that the instruction moved for by the commonwealth’s attorney be refused.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481627/	Lee, J. According to the English practice a criminal information at the crown office is only allowed to be filed upon motion and a rule to show cause grounded upon a proper and legal affidavit: and this affidavit should be full and explicit, should disclose all the material facts of the case and contain all matters necessary to criminate the defendant. 5 Bac. Abr. (Bouv. ed.) “ Informations,” (D) p. 180; 1 Chit. C. L. 857 ; Arch. C. P. 73, 74. Our act of assembly expressly requires the leave of the court on a rule to show cause; but by our practice a previous presentment by the grand jury often comes in place of the affidavit required by the English rule. Where however it is thus sought to be made the ground of the rule to show cause, it must like the affidavit, contain enough to show that an offense has been committed. No matter material to render the act imputed to the defendant unlawful can be omitted, and the supposed offense must be described with at least reasonable certainty. If it be defective in these respects, the presentment cannot avail for any legal purpose whatever. The presentment in this case charges the defendant with playing at cards for money on a Sabbath at or near Old Shop meeting-house in the county of Prince George within six months previous thereto contrary to law: but it does not allege that Old Shop meetinghouse was a public place at the time of such playing. It may or may not have been such public place at that 787time. The name of the place does not ex vi termini import that it was at all times a public place. Although whilst the public might be assembled there for religious worship or other purpose or whilst so assembling or afterwards dispersing, it might well be a public place within the meaning of the statute, yet at all other times it might be a strictly private place, the playing at which would not be a violation of the law. Thus a matter most material to show that an offense had been committed, was omitted and the presentment was therefore radically defective. Hord’s Case, 4 Leigh 674; Roberts’ Case, 10 Leigh 686. Nor will the words “ contrary to law” supply the omission. These terms in an indictment serve to preclude all legal cause of excuse for the act imputed, but never to enlarge or extend the force and effect of those employed to describe it so as to make the act unlawful when it is not so by the description itself. In Roberts’ Case, ubi sup. the charge was for “unlawfully” playing cards at a grocery, yet the presentment was held to be defective. The presentment is also objectionable for uncertainty. If Old Shop meeting-house were ex vi termini, a public place playing near it would not necessarily be a violation of the statute unless at a place so near that it too was rendered a public place by reason of its proximity. The very place of the playing should therefore be averred to be a public place, and as it is laid in this presentment to have been in the alternative “ at or near,” it would seem on that account to be uncertain and defective. That the defendant subsequently upon the filing of the information appeared and pleaded not guilty, upon which a trial was had and a verdict rendered against him will not preclude him from objecting to the presentment now. In Chalmers’ Case, 2 Va. Cas. 76, and Wells’ Case, Ibid. 333, the right to object to the pre788sentment on which the information was founded was held to be taken away by such plea and verdict upon the information: but it does not appear that the defendant in either of those cases made the objection at the proper time upon the rule to show cause. In Wells’ Case he did not appear at all upon the rule to show cause though duly summoned. In this case the defendant did appear upon the rule and showed for cause that the presentment did not charge any offense against him and moved the court to refuse leave to file an information. His objection was however overruled, the rule made absolute and leave given to file the information. After that all he could do was to defend himself upon the information as best he might. I think the Circuit court erred in making the rule absolute and giving leave to file the information. And in this view it is rendered unnecessary to decide the question raised upon the facts proved at the trial. I am of opinion to reverse the judgment set aside the verdict and quash the information, to discharge the rule to show cause and quash the presentment. The other judges concurred in the opinion of Lee, J. Judgment reversed, all the proceedings to the presentment set aside, and quashed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481628/	Daniel, J. In the description of many of the offenses at the common law certain technical expressions are required to be used; as in indictments for 790murder, burglary, mayhem, and other felonies which it is not necessary to enumerate. In such cases no other words, howsoever descriptive of the offense, will be allowed to stand in the indictment as the substitutes for the precise language to which usage and precedent have attached the peculiar and exclusive office of describing the offense. The like nicety and particularity is also required in indictments for offenses under various statutes; and the precedents are numerous in which very slight departures from the terms in which the offenses are described in such statutes, have been held to vitiate the indictments. In the case of United States v. Gooding, 12 Wheat. R. 460, however,- Judge Story, in delivering the opinion of the Supreme court, says, that such instances have not resulted in the establishment of any general rule; but that on the contrary, the course has been to leave every class of cases to be decided very much upon its own peculiar circumstances. And in United States v. Bachelder, 2 Gallis. R. 15, the court say that there is no general rule which requires more than that the offense be set forth with substantial accuracy and certainty to a reasonable intendment. We have also the authority of the case of The King v. Stevens, 5 East’s R. 244, for holding, that, whilst every indictment or information ought to contain a complete description of such facts and circumstances as constitute the offense, there is no rule, except in particular cases, where precise technical expressions are required to be used, which compels the courts, in construing the language of indictments, to reject the aid of such references to the context and the relation and dependence of the words, as are properly resorted to and found useful in ascertaining the true 'aim and meaning of other pleadings; and that, where a word, used in an indictment, is capable of different meanings, if it is sufficiently marked by the context or 791other means in what sense the party framing the charge intended to use it, it does not clash with the rules of construction applied to criminal proceedings, to construe it in that sense. A proper application of these views to the case before use will, I think, result in showing the correctness of the judgment of the Corporation court, and the consequent error in that of the Circuit court. The brief charge in the indictment is, that the defendant “unlawfully did sell music not manufactured by the seller within this state, without having a license therefor according to law.” There is no law which forbids the sale of music in terms. But by the 30th section of the act of 1852-3, concerning the assessment and collection of the public revenue, it is declared that no person shall, without obtaining a license as a merchant, sell at any store or place in this state any goods, wares, merchandise or other articles, except such as may have been manufactured by the seller in this state, or been produced or raised by him, &c.: And it is under this law that the indictment has been preferred, and the verdict and judgment had against the defendant. In this state of things, the enquiries, which would seem to present themselves, are: Is “ music” in any well established sense, embraced.by the words “goods, wares or merchandise.” And if so, does it appear with certainty that the indictment speaks of it in that sense? If so then the indictment in effect charges the sale of goods, wares or merchandise, and specifies the particular class or kind in the sale of which the statute has been violated. That there is such an acceptation of the word, is a matter of public knowledge and general information. The word is used in that sense in the daily advertisements, and the kind of merchandise it imports is to be found exhibited for sale in the store of nearly every bookseller or stationer 792in the country. It is said, however, that the word is ambiguous; that it has several other meanings; and that without an averment in the indictment of its being goods, wares or merchandise, the sense in which the word was used is not fixed with certainty; that one learned in the science, or skilled in the arts of a musician may impart instructions therein, or make exhibition of his skill, or grant the license to perform his musical works or compositions, for a price, and that in each of these senses he may be said to “ sell music;” and that for none of these acts could he be held amenable as for a violation of the statute; and that, consequently, though the defendant were to admit the truth of every allegation in the indictment, (as he does in the motion to arrest the judgment,) he would not as a legal necessity admit that he had done an illegal act. The obvious answer to this- argument of the defendant’s counsel is, that in none of the instances supposed by him, is there a sale in the sense in which that word is most usually received; which is, to indicate the exchange of some material article of property for money; and that the words in the indictment, “ not manufactured by the seller within the state,” do not admit of any other than the most awkward connection with the word “music” in any of the senses in which the counsel supposes it legally possible it may have been used; whilst they are very proper to be used in reference to “ goods, wares and merchandise.” It is true that the phrase, “ not manufactured by the seller within this state,” is not used in the indictment for the purpose of explaining the preceding portion of the charge. Its special office is that of setting forth a further distinct element of the offense. If, however, from its nature and position, it necessarily reflects on an ambiguous word, the sense in which the 793latter must have been used, I know of no rule which constrains us to reject the explanation, and to refuse to accept the word in the sense which will give force and validity to the indictment. If the acceptation of the word “ music,” as importing a kind or class of goods, wares and merchandise, were not a matter of common understanding, it might have been necessary to aver in the indictment that it was goods, wares and merchandise, or to have given some such description of its properties as would necessarily show that to be the-fact. But as such an application of the word is well understood, the law does not recognize the necessity of such averment or description, either to certify the court that the indictment contains a criminal charge, or to notify the defendant of its precise nature. The necessity of such an averment is not only disowned by the general principles to be deduced from the cases already cited, but is expressly denied by a decision of the Supreme court of Mississippi in a case very similar in its features to the one under consideration. I refer to the case of The State of Mississippi v. Borroum, 23 Miss. R. 477, in which the indictment was for buying from a slave “ seventy-five pounds of cotton,” under an act making it a misdemeanor to buy from a slave without the permission of his master, &e. any corn, fodder, hay, meal, &c. or “ other produce or commodity.” Cotton is not one of the commodities enumerated in the statute, and the indictment did not contain any averment that cotton was “ a product or commodity.” Yet the indictment was held sufficient. The obvious reasons on which that decision was founded, apply with equal force here. The court is presumed to know the sense or senses in which a word is ordinarily used, and is not bound, when met by an ambiguous word in an indictment, to reject that meaning which is made obvious by the context, and to con*794tend for some other use of the word that every man of ordinary information in the community, untrammeled by rules of construction, would discard as absurd. Neither the court or the defendant could have misunderstood the sense in which the word in question was intended to be used in the indictment. Under these circumstances, to declare the indictment insufficient would be to revive an unreasonable strictness, and to pay to mere form the scrupulous deference that is shown in some of the early decisions, and is still observed in certain classes of cases before mentioned, but which the courts in modern times have on various occasions properly shown a determination to extend to no case or class of cases in which such observance is not exacted by the strictest analogy. I think that the judgment of the Circuit court ought to be reversed, and that of the Corporation court affirmed. The other judges concurred. The judgment of the Circuit court reversed, and that of the Corporation court affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481629/	Lee, J. By the Code of Virginia (ch. 157, § 2, 797p. 616,) authority is given to the County courts to change from time to time, the days for the commencement of the terms thereof, all the justices of the county having been first summoned and a majority concurring in such change. The object of the provision requiring the summons is to give notice of the proposed change and to enable all the justices to be present and give their voices if they will, upon the question. If then without having been previously summoned, all the justices shall yet be actually present at the time a change is proposed and thus have the opportunity of being heard, and the requisite majority shall be found to concur in the measure, the object and spirit of the law will be fully satisfied and all questions as to the regularity or the fact of previous summons must be at an end and it will be in vain afterwards to say that the order is without effect because the justices had not been formally summoned previously to attend the court for the purpose of considering the subject. I think therefore there is nothing in the objection that the term at which the judgment occurred commenced upon a day not authorized by the law. The other objection going to the constitution of the court at which the indictment against the plaintiff in error was found by the grand jury and of that at which the plea was entered is one of a much more serious and difficult character. The constitution provides (art. 6, § 25,) that there shall be in each county of the commonwealth a county court which shall be held monthly by not less than three nor more than five justices except where the law shall require the presence of a greater number. By § 22 of the act passed April 22, 1852 (Sess. Acts p. 65,) it is provided that there shall be in each county in four of the months of. every year, a quarterly term of every county court, and in every other month a 798monthly term thereof, to be held at the times and the jurisdiction, so far as consistent with the con- and that act, then prescribed by law. The section then proceeds to declare that the number ■ of justices necessary to constitute a court of oyer and terminer a court of examination and courts in all criminal prosecutions shall be the same as then prescribed by law: in all civil cases and in matters of county police and in all other cases, except criminal, the presiding justice and two other justices, or in the absence of the presiding justice any three justices, to constitute a court, except where more than four are necessary under the laws then in force. By the Code (ch. 212, § 2, p. 787,) a court of oyer and terminer must consist of five justices at the least, and an examining court (ch. 205, § 4, p. 765,) of the same number: and by the general county court law of the Code (ch. 157, § 1, p. 615,) it is declared that the County court in each county shall be held by the justices of the county or any four or more of them, except where otherwise expressly provided. So that at the passage of the act of April 22,1852, the number of justices necessary to constitute a court in a criminal prosecution other than cases for a court of oyer and terminer or of examination was four at the least. Does an indictment for an assault and battery or other misdemeanor constitute a criminal prosecution? Notwithstanding in some of the sections of the Code the term “criminal cases” may seem to be used in the sense of felonies only, in this there can be no doubt it is used to embrace both felonies and misdemeanors. The section itself refers to and recognizes the usual classification of causes inter partes, into civil and criminal cases, the latter of which embraces all prosecutions for offenses against the laws of whatever grade. And in the Code it will be seen, chapter 199 which is entitled “ General provisions concerning crimes and punishments” embraces alike mis799demeanors and felonies. The same is to be said of chapter 201, entitled “ For preventing the commission of crimes” and of chapter 211, entitled “General visions as to proceedings in criminal cases.” Indeed throughout the body of the criminal code commencing with title 54, headed “ Crimes and punishments” misdemeanors and felonies are alike contemplated as the ^subjects of criminal proceedings and by ch. 199, § 1, all offenses against the laws are declared to be the former or the latter. In § 22 the term “ criminal prosecution” is expressly used in a sense embracing all offenses of both classes. Its language is “In a criminal prosecution other than for perjury, &c.;” yet perjury with a single exception (when committed on a trial for felony) is but a misdemeanor. By § 37 of ch. 208, provision is made for the adjournment of questions of law in “acriminal case” to the General court; and it was never questioned that it embraced misdemeanors as well as felonies. And in ch. 210, § 11, provision is made where there is a conviction in a “criminal case” before a justice of the peace, which must be of course for a misdemeanor. Other sections will be found of similar import. And it will be observed this § 22 speaks of courts of oyer and terminer, courts of examination and courts in all criminal prosecutions : and as the county courts have no j urisdietion of felonies except as courts of oyer and terminer and of examination, to satisfy the terms employed, misdemeanors must be deemed to be intended. It follows then that in a prosecution for a misdemeanor, the court to be legally constituted must consist of four justices at the least. Nor is there any thing to restrict the necessity of the presence of four justices to the final trial of the cause. In many misdemeanors the court upon conviction, may, and in some, must impose corporal punishment by confinement in the county jail and in 800others by stripes. In certain cases still further penalties are incurred. Such being the grave character of many misdemeanors, and moreover as no writ of error lies for the commonwealth except in prosecutions for breach of the revenue laws, it may be supposed it was' the purpose and policy of the law to secure in all criminal prosecutions the collective intelligence and information of four justices at least as affording a surer guaranty of a correct decision and the attainment of the ends of justice than that of a less number. And this reason would apply with equal force to other stages of the prosecution as to the final trial. For a case might be as effectually disposed of at a previous stage upon a motion to quash or a demurrer, or the tender of a plea, as at the trial before a jury. So upon the impanneling of a grand jury and in directing the subjects and the mode of its investigations and in receiving its presentments, important questions might arise upon which a party not yet charged with an offense would not be entitled to be heard. The reason and spirit of the law therefore would seem to require the presence of at least four justices when a grand jury is impanneled and the prosecution is commenced as well as upon the final trial of the case, whilst there is certainly nothing in its terms to render a less number sufficient. The language is “ courts in all criminal prosecutions shall be &c.” not “ courts for tile trial of criminal cases.” I think therefore the objection that the record upon its face shows there were but three justices present when a grand jury was impanneled and when an indictment was found, is fatal under the law as it stands, and that the only remaining question is whether it has been waived in this case or the benefit of it otherwise lost to the party by his pleading to issue and failing to raise it until after a verdict against him. If the objection but imported some imperfection or defect of 801form iu the indictment, or went merely to the qualification of the grand jurors or any one of them or any other matter of abatement it would be of course too late after verdict to attempt to raise it. But it is not of this character. It goes to the constitution of the court in which the prosecution was commenced by the finding of the indictment and in effect to the very fact of there being any indictment against the party. For if the court as constituted had no authority to impannel a grand jury and no jurisdiction either to commence or determine a prosecution by trial, the indictment must be of necessity a nullity. From its nature therefore it is an objection which is not waived by any pleading and which is not cured by any thing that afterwards transpired. In Cawood’s Case, 2 Va. Cas. 527, the clerk had omitted to record the fact of the finding of the indictment, which had however in fact been endorsed by the foreman “ a true bill” and presented in court with other bills. In the record of the proceedings had it was thus recited: “ Benjamin Cawood who stands indicted for murder, was led to the bar in custody &c. and thereof arraigned and yleaded not guilty to the indictment &c.” Another order spoke of the prisoner as “ accused of murder” and made provision for a jury “/or the trial” of the prisoner. An ineffectual trial was had and in the entry of the same the prisoner was spoken of again as standing indicted for murder. The jury having failed to agree, the prisoner petitioned for a change of venue which was granted. Yet held that the omission to record the finding of the indictment was fatal and could not be supplied by the paper itself nor the endorsement thereon nor by the subsequent recitals; and that the prisoner’s plea of not guilty or the subsequent proceedings did not cure the defect. I think the reason for not holding the defect to be cured in the present case is at least as strong as in the case just cited; and 802regarding the objection as going to the foundation of the whole proceeding, the authority and jurisdiction of the court itself in which the prosecution was commenced, I think it was not and could not be cured by the subsequent proceedings and might be taken advantage of at any time either before verdict or after. I am of opinion to reverse the judgment of the Circuit court and that of the County court and to render judgment for the plaintiff in error. The other judges concurred in the opinion of Lee, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481630/	Moncure, J. delivered the opinion of the court: This case presents for decision the question, whether the goods, of the larceny of which the prisoner was convicted, were taken by him against the will or without the consent of the owner. Larceny, at common law, is the taking and carrying 806away of the personal goods of another, against his will or without his consent, and with a felonious intent. There must be a taking or severance of the goods from the possession of the owner on the ground that larceny includes a trespass. If there be no trespass in taking goods, there can be no larceny in carrying them away. 2 Russ. 95; 1 Hawk. c. 33, § 2. But the possession of the owner may be actual or constructive. If it appear that although there is a delivéry by the owner, yet the legal possession still remains exclusively in him, larceny may be committed exactly as if no such delivery had been made. Thus, if a person to whom goods are delivered has the bare charge, custody or use of them, and the legal possession remains in the owner, such person may commit larceny by a fraudulent conversion of the goods to his own use. 2 Russ. 106; 1 Hale 506; 1 Hawk. c. 33, § 6; Arch. Crim. Pl. edition of 1846, p. 192. The most familiar application of the rule -is, to the case of servants, whose possession of their master’s goods by his delivery or permission is the possession of the master himself; 2 Russ. 197; 2 East P. C. 564, 682, 683; Walker v. Commonwealth, 8 Leigh 743; and to the case of a guest at an inn, who may be guilty of larceny in taking a piece of plate or other thing set before him for his accommodation; for he hath not the possession delivered to him, but merely the use. 2 Russ. 107; Arch. 192; 1 Hale 506; 1 Hawk. c. 33, § 1. “ The distinction, (Says Russell,) between a bare charge or special use of goods, and a general bailment of them, seems to be sufficiently intelligible; and it seems consistent with principle, that in the former case the legal possession should be considered as remaining in the owner; and in the latter as having passed to the bailee; and that therefore in the former case larceny may be committed of them by the person to whom they have been delivered, and that in the 807latter it may not, .unless there be a determination of the privity of contract: but it is in the application of this doctrine to particular cases that the distinctions seem to become obscure.” 2 Russ. 108. How does the doctrine apply to the facts of this case? Were the goods delivered to the prisoner on a bailment; or merely for special use,'and without changing the legal possession of the owner ? If the prisoner had fraudulently converted to his own use a piece of plate, or other thing delivered to him for his accommodation as a guest in the tavern of the pi’osecutor, we have seen that he would have been guilty of larceny. If he had so converted to his own use a book handed to him to read for his amusement while he continued to be such guest, there can be no doubt he would have been guilty of larceny. Why does not the same principle apply to this case, in which the prisoner fraudulently converted to his own use a gun delivered to him “to shoot some robins” for his amusement while he continued to be such guest ? Is it because the gun was not to be used in the house? The rule under consideration does not require the property to be used in the house of the owner. Suppose the prosecutor had accompanied the prisoner when he went over the road to shoot the robins, and the gun had been converted in the presence of the prosecutor: Or, suppose the gun had been handed to the prisoner to shoot some robins in full view of the house, and that, instead of shooting them, he had walked off with the gun and converted it to his own use: Would he not, in either case, have been guilty of larceny? But the rule does not require that the property should be converted in the presence or the sight of the owner. Nor indeed does it require that the relation of master and servant, or landlord and guest, should exist between the owner of the property and the person converting it. No writer has 808laid down the rule under any such restriction. As down by all the writers, it only requires that the converting the property should be entitled merely to a charge or special use, and not the legal possession of it. In the familiar cases of master and servant, and landlord and guest, the rule generally, if not always, applies; because generally, if not always, a servant or guest has a mere charge or special use of the property of the master or landlord. These cases are therefore stated by writers as instances of the application of the rule; but as instances only, and not as limitations or restrictions of the rule. The question in every case is, Whether, under all the circumstances, a bare charge or special use, or a legal possession under a bailment exists? There is rarely any difficulty in solving the question when the relation of master and servant, or landlord and guest subsists between the parties at the time of the conversion, or where the property is delivered to be used in the presence of the owner. In cases of this kind, the property being resumable by the owner every moment, his dominion over it is as perfect as before; and the person to whom it is delivered has at most no more than a bare limited use or charge and not the legal possession of it. 2 Euss. 108. The same principle seems to be generally applicable wherever property, whether it be a gun or any thing else, held by a ¡person, whether he be an inn keeper or not, for.the, use and accommodation of his family, is. delivered to member or visitor of the family to be temporarily used by him as such, whether in the presence of the owner or not. A difficulty sometimes arises in the application of the rule to other cases. Generally, though not always, where property is delivered to a person' who is not a servant or guest of the owner, or a member or visitor of his family, and to be used elsewhere than in the 809ownei-’s presence, a bailment, and not a mere change or special use, is created. There is no difficulty, we think, in the application of the rule to this case. The relation of landlord and guest subsisted between the prosecutor and prisoner, who were strangers to each other at the time of the conversion. The relation was expected to be of very short duration, and to terminate during the same evening, or at least the next morning. The occasion for delivering the gun was very sudden; and was induced by the return of the prosecutor’s son- from shooting some birds within a short distance of the house. The object of it was to afford the prisoner some amusement during the evening while the prosecutor was absent in his field. It was not intended that the use should continue longer than the prisoner continued to be a guest; nor expected that the gun would be carried far from the house, and perhaps not off the land of the prosecutor. It was offered to the prisoner “ to shoot some robins;” and he took the gun, bird bag and powder flask, and went over the road; and prosecutor heard him shoot once or twice before he left the house on his return to ! the field. Under these circumstances, we think the prisoner had a mere special use of the property, and not a legal possession of it; that the owner’s legal " possession was unbroken by such special use; that the property was in his legal possession when it was fraudulently carried away by the prisoner; and that the prisoner took it against the will or without the consent of the owner. He was therefore properly convicted of larceny. Being of opinion that the delivery of the property by the prosecutor to the prisoner did not amount to a bailment, it is of course unnecessary to consider whether the evidence was sufficient to warrant the jury in finding.that the felonious intent existed at the time of such delivery; or whether, if such delivery 810had amounted to a bailment, and the felonious intent had not existed at the time of the delivery, but had arisen afterwards, the prisoner would have been guilty of larceny under the Code, ch. 192, § 21, p. 730. We are of opinioiTTEat there is no error in the judgment, and that it be affirmed. Daniel, J. The certificate of facts shows that the delivery of the property, of the theft whereof the-prisoner has been convicted, was made to him by the owner. In order, therefore, to vindicate the judgment of the Circuit court, it must, I apprehend, be shown, either that the delivery was fraudulently procured by the prisoner with a felonious intent, at the time, to convert the property to his own use, or that the purposes and uses with and for which the delivery was made, were of a nature so restricted and special as to leave the legal possession of‘ the property, notwithstanding the delifei'y, still exclusively in the owner, and to place the prisoner, on his subsequent conversion of the property, in the same predicament as if he had then acquired the possession, against the consent of the owner, and with a felonious design. It must be conceded that the conduct of the prisoner is well calculated to produce the impression that he came to Sweeney’s with some bad design. It does not seem uncharitable to found, on the various false statements which he made to Sweeney about himself, his business, his plans, and his relationship and connexion with others, and his subsequent conduct in the conversion of the property of Sweeney, the suspicion that he was on the look-out for a favorable opportunity to practice some fraud on Sweeney, or perhaps to perpetrate a larceny of some of his goods. It must, however, I think, be also conceded that the conduct of the prisoner, in making these false- statements, is not irreconcilable with the idea that he designed and 811wished thereby merely to produce upon Sweeney’s mind favorable impressions as to his character and standing, without any purpose of ulterior fraud or wrong to him or others. It is obvious that the testimony does not disclose the resort to any trick, device, stratagem or artifice by the prisoner, which from its very nature held out an immediate inducement or motive to Sweeney to lend the gun, or indeed to trust the prisoner with the possession of any of his goods. Indeed, it does not appear that the prisoner gave any intimation, by word or deed, that he desired the use of the gun. He was the mere recipient of an unsolicited act of courtesy or kindness gratuitously proffered by the owner of the property. And unless it can be maintained that every man who resorts to falsehood for the purpose of creating or maintaining with another a character for respectability, trustworthiness or responsibility, may be treated as a thief when he converts to his own use property which may have been entrusted to him on the faith of such character, I do not see how we can hold that the delivery of the property was in this case procured by fraud. The conduct of the prisoner preceding the delivery of the property is reconcilable with too many hypotheses — the pointings of his falsehoods seem to me too indeterminate and vague — the delivery of the property appears too remotely connected with the means supposed to have been used by him to effect it — to justify us in deducing the loan of the gun or license to use it as the legal consequence of the prisoner’s fraud. The verdict of the jury, it is true, especially in respect to what it must be taken to say relative to the prisoner’s motives and designs, is entitled to great weight. Still, after allowing to the verdict the fullest weight authorized by the practice now prevailing in this court, I have been unable to discover, in the cer812tificate of facts, any sufficient warrant for the prisoner’s conviction, so far as it rests on the first ground here taken in its support. Can it be sustained on the second ground ? There can, I apprehend, be no doubt that when the delivery of goods is fairly obtained on hire or loan, no subsequent wrongful conversion of them pending the contract will amount to larceny. There are, it is true, many cases in the English courts holding that when the purpose of the hiring or loan for which the delivery was made had ended, felony might be committed by a conversion of the goods. This doctrine, so far as it eould be invoked here, was, however, fully considered by the judges in the case of Rex v. Banks, 1 Russ. & Ry. Cr. Cases 441, and decided to be wrong. It appeared that the prisoner had borrowed a horse for the purpose, as he said, of carrying a child to a surgeon. Whether he carried the child thither did not appear; but the day following, after the purpose for which he borrowed the horse was over, he took the horse in a different direction, and sold it. The jury (it is stated) thought the prisoner had no felonious intention when he took the horse; but as it was borrowed for a special purpose, and that purpose was over, when the prisoner took the horse to the place where he sold it, the judge presiding at the trial submitted it to the consideration of the judges whether the subsequent disposing of the horse, when the purpose for which it was borrowed was no longer in view, did not in law include in it a felonious taking. Upon consideration, the judges were of opinion that the doctrine on the subject asserted in previous cases was not correct. They held that if the prisoner had not a felonious intention when he originally took the horse, his subsequent withholding and disposing of it did not 813constitute a new felonious taking, or make him guilty of felony; and that consequently the conviction could not be supported. I have seen no subsequent decision, in which the authority of this case has been questioned: And in the 2d vol. of Russell on Crimes, p. 57, the author, after citing the case, declares upon the force of it, that! it is now settled, that when the owner parts with the possession of goods for a special purpose, and the bailee, when that purpose is executed, neglects to return, and afterwards disposes of them, if such bailee had not a felonious intention when he originally took the goods, a subsequent withholding and disposing pf them will not constitute a new felonious taking, nor make him guilty of felony. So again, at page 21 of his second volume, the author says that there were decisions to the effect that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside unparted with in the first proprietor. And that if a watchmaker steal a watch delivered him to clean; or if a person steal goods in a chest delivered to him with the key for safe custody; or clothes delivered for the purpose of being washed : In all these instances he says the goods taken have been thought to remain in the possession of the proprietor, and the taking of them away held to be felony. But (he adds) unless in these cases the privity of contract under which the goods were delivered, appeared by some means to have been determined, it seems difficult to distinguish them from the cases of a goldsmith to whom plate is delivered to work or to weigh; a tailor to whom cloth is delivered that he may make clothes with it; and a friend who is entrusted with property to keep for the owner’s use; in which cases an embezzlement or conversion of the goods by the party to whom they are delivered, has 814been said not to amount to felony. In these latter cases, (he continues,) as well as in the former, the delivery of the goods is made only for a special purpose? yet it seems that the possession of them has not been considered as remaining with the owner, but as having passed to the party by a lawful delivery without fraud, and therefore not the subject of a subsequent felonious taking. It is argued here, however, that as the prisoner was the guest of Sweeney at the time when he acquired possession of the gun, though he took it not only by the consent but at the instance of Sweeney, he does-not stand on the same footing as if no such relation between the parties existed. It is argued that, because of such relation, and the character of the license given to him, he is to be treated as having the bare custody of the gun, and that the exclusive legal possession must still, notwithstanding such custody, be held to have remained with Sweeney. As the main stress of the effort to sustain the conviction was laid on this ground, I have made it the subject of the fullest examination and consideration in my power. But I have been unable to discover in the authorities to which I have had access, any sufficient warrant for such distinction. It is true, in Hale’s Pleas of the Crown, vol. 1, p. 505, it is said that he that hath the care of another’s goods hath not the possession of them, and therefore may by his felonious embezzling of them be guilty of felony; as the butler that hath the charge of the master’s plate, the shep-. herd that hath the charge of his master’s sheep. ' The like law for him that takes a piece of plate set before him to drink in a tavern, &c. for he hath only a liberty to use, not a possession by delivery. So in East’s Crown Law, vol. 2, p. 682, after citing instances in which-the delivery had been held to con- - fer the bare charge or custody, as distinguished from 815the possession, the author says, the same rule applies to him who has a bare special use of goods; as in the case of a guest in the owner’s house: for none of these persons have properly speaking the possession. The proposition is stated in like terms in other elementary works. I can perceive nothing in these declarations and illustrations of general principles, from which to infer that there is any thing in the relation between a transient guest and the inn keeper, with whom- he is staying, which places the guest on a footing of criminal responsibility, in respect to the goods of the inn keeper, different from that which would be occupied by any other person to whom goods might be delivered for a momentary purpose to be accomplished in the house, or in the presence of the owner. Thus Í apprehend, in the case of the piece of plate, if instead of being placed before the guest to drink, it were handed to a mere stranger to admire its style or workmanship, and then hand it back to the owner, the carrying it away by the stranger with a felonious intent would be as clearly a larceny as if the same act were done by the guest. So I suppose if an artisan or mechanic should go into a room of an inn, by the direction or permission of the owner to repair the furniture, and he should avail himself of the opportunity feloniously to carry away the furniture, the measure of his guilt would be the same with that of the guest who should wrongfully convert any article of the landlord’s furniture put in his room for his temporary use. And so again, in the familiar case (so often mentioned in the books) of one invited to try the paces of a horse in the presence of the owner, and going off with the horse, I apprehend that it would make no difference whether the wrong-doer were the guest of the owner or a mere stranger. In either case, there would be a larceny of the horse. 816The true reason, I apprehend, why the guest, in the cases just mentioned, would be held guilty of larceny, is drawn not from the nature of any relation between him and the inn keeper, but from the consideration that the property used by him is expected to remain I in the house or presence of the owner, and so within his constant and immediate control^ This will, I think, be fully seen by a further reference to the paragraph in East, from which the citation, in respect to the wrongful conversion by a guest in the owner’s house, has been made. So (in the very next sentence he proceeds) if a weaver or silk throwster deliver yarn or silk to be wrought by journeymen in his house, and they carry it away with intent to steal it, it is felony; for the entire property remains then only in •the owner, and the possession of the workman is the possession of the owner. But if the yarn had been delivered to a weaver out of the house, and he having the lawful possession, had afterwards embezzled it, this would not be felony; because by the delivery he had a special property and not a bare charge; in the same manner as one who is entrusted with the care of a thing for another to keep. It is worthy of consideration (he continues) whether the above mentioned distinction concerning the legal possession remaining in the owner, after a delivery in fact to another, does not extend to all cases where the thing so delivered for a special purpose is intended to remain in the presence of the owner. For in such case, the owner cannot be said to give any credit to, or to repose any confidence in, the party in whose hands it is so in fact placed; and the thing being intended to be returned to the owner again, and resumable by him every moment, his dominion over it is as perfect as before; and the person to whom it is so delivered has at most no more than a bare limited use or charge, and not the legal possession of it. This fiction, (he adds,) such as it is, 817is generally admitted to exist in the case of servants, and even in the case of other persons having a special use of goods in the owner’s house: the best reason for which is the presumed presence and superintendence of the owner. And it does not seem more unreasonable to regard goods in the actual presence of the owner, out of his house, as being in his legal possession, though put into another’s hands for a particular purpose, than if such goods were delivered to another for the like purpose in the owner’s house during his absence. The same author shows, I think, conclusively, that this fiction of the supposed superintendence and consequent exclusive legal possession, by the owner, of goods entrusted to another for a special use, can have no application (except in the case of servants) when, by the terms of the delivery, the goods are to be used neither in the house nor presence of the owner. For at p. 564, after stating that the rule holds universally in the case of servants whose possession of their master’s goods by their delivery or permission is the possession of the master himself, he adds, that supposing the maxim well founded, it leads to an important difference between the case of servants and others: for if there be a delivery of goods by a master to his servant for a particular purpose, and he embezzle them, it amounts to felony, although there be no evidence of a prior felonious intent at the time he received the goods; because even after the delivery to him the” goods continued in the legal possession of the master and not of the servant; and therefore the act of converting them fraudulently is in law a tortious taking from the possession of the master. But it is otherwise in the case of a legal delivery to any other than a servant; for then unless such delivery were procured by fraud and the jury find a previous felonious intent to convert the goods, existing at the 818time of the delivery, a subsequent conversion is not felony; unless (he further adds) in those cases (which he says will be subsequently pointed out) where the privity of contract is determined. The last expression in the way of exception cannot impair the force of the general proposition asserted by the author, inasmuch as it will be found, on looking to the cases referred to by him in respect to the determination of the privity of contract, that they belong to a class of cases which,’ so far as they could apply here, have been overruled by the decision in Rex v. Banks, already cited. There are several English decisions, (some of which were cited at the bar,) in respect to the conversion of cattle by parties employed to drive them to market, which may seem at first view to be in conflict with the general principle asserted by East. But in those cases and in cases of a like kind, where convictions have been sustained, it will be found that the judges (when they have assigned the reasons for their opinion) have generally if not invariably declared that they regarded the accused as having acquired the charge or custody of the property as servants. If, however, some of these cases may still be considered as having established exceptions to the general principle, it cannot, I apprehend, be affirmed of any of them, that they have gone to the extent of placing the possession of one to whom property has been loaned, on the footing of the charge or custody by a servant of his master’s goods, or that they assert any doctrine from which to deduce that a transaction, which would otherwise be defined as a bailment, becomes a mere charge, by the consideration that the party to whom the property is delivered, is the visitor or guest of the owner. But if it were so that the relation in which the prisoner stood to Sweeney could affect the case, it would,' 819I apprehend, have still to be shown that the delivery and use of the gun was incidental or accessory to that relation. Of this there is no proof. It does not pear that it was the custom of Sweeney to furnish his guests with guns for their amusement, or that he held out to the public any expectation that he would do so. The transaction is one which might have taken place between Sweeney and any one of his neighbors (not a guest) as naturally as between him and the prisoner. And if it had, could we have hesitated to say that there was a bailment of the gun by loan ? The gun was delivered, not that something might be done to it, or with it, for the benefit of the owner, but to be used by the prisoner for his own amusement. There was nothing said from which it can be inferred that it was to be used merely in the presence of Sweeney or within his hearing or call or upon his farm. The prisoner, without any violation of the terms or spirit of the license given him, might, in pursuit of his game, have gone to any place from which he could return before the expiration of the time when his return might be reasonably expected. And he might thus have lawfully placed himself and the property in his possession during such time entirely beyond the control or supervision of Sweeney. And there is nothing in the record from which we can infer he did not. During such period the dominion of Sweeney over his property was to a certain extent, by his own consent, necessarily suspended by his want of the present power either to resume the possession, or to demand it, and place the prisoner in the position of a wrong-doer on his refusal to return it. The transaction seems to me, therefore, to have all the features of a loan. As such, it invested the prisoner with a legal possession. In the subsequent conversion of the property he was guilty of no trespass, and consequently of no felony. *820It may be that the prisoner’s conduct, considered morally, is in little or no degree less deserving of punishment than if he had acquired the possession of the property by fraud or stealth; still I have been unable to see (as the proofs stand) on what established rule of criminal law he can be treated as guilty of larceny. And having as I conceive no warrant to stretch or fashion the law to meet the supposed or real moral exigencies of the case, I cannot concur in a judgment affirming his conviction. I am of the opinion that the prisoner is entitled to a new trial. Judgment affirmed, for the reasons stated in the opinion of Moncure, J.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481632/	Moncure, J. It is a rule of the common law, that during the term wherein any judicial act is done the record remains in the breast of the judges of the court and in their remembrance, and therefore the roll is alterable during that term as the judges shall direct; but when that term is past, then the record is in the roll and admits of no alteration, averment or proof to the contrary. 3 Tho. Co. Lit. 323, 1 Rob. Pr. 638 (old). The consequence of this rule, until altered by statute as herein after mentioned, was that no execution could be issued on a judgment until the end of the term at which it was rendered; at least, unless directed by the court to be issued at an earlier period, for special cause. By the act of 1 Rev. Code 1819, p. 508, § 79, it was enacted, that “ all judgments by default obtained in the office for want of appearance or plea, in which no writ of enquiry shall be awarded, and which shall not be set aside on some day of the next succeeding term; and all non-suits and dismissions obtained in the office, and not so set aside, shall be considered as final judgments of the last day of the term; and executions may issue thereupon accordingly.” However long the term might last, such office judgments did not become final until the last day thereof; and no executions could issue thereon, even by the express order of the court, until the end of the term. Such was the state of the law on the 6th day of March 1834, when an act was passed reciting, that “ whereas the protracted session of the Circuit superior court of Henrico, on account of the chancery business thereof, subjects parties who have obtained judgments on the common law side of the said court, to considerable inconvenience, from the delay of issuing executions on their said judgments until the close of the court,” and enacting, “that it shall be lawful for the judge of the said court, by an order to be entered 67on the records of said court, on the sixteenth juridical day after the said court shall have commenced its session for the trial of civil causes, at each term thereof, to direct that executions may issue on judgments rendered on or before the said sixteenth day of said term, and that all office judgments, non-suits or dismissions obtained in the office and not set aside, on or before the sixteenth day of the said term, shall be considered as final judgments of the said sixteenth day, and executions may issue thereupon accordingly: provided, that nothing herein contained shall deprive the court of the right heretofore exercised, of directing executions to issue at an earlier period, for special cause.” Sess. Acts 1S33-4, p. 69, ch. 46, <§> 2. On the 15th day of March 1836, an aet was passed containing a similar provision in regard to the Circuit superior court of law and chancery for the county of Spotsylvania, except that it adopts the fifteenth instead of the sixteenth juridical day of the term. Acts 1835-6, p. 36, ch. 50, § 3. By section 10 of that act, a change was made of the said act of March 6th, 1834, substituting the twenty-fourth for the sixteenth day of the term in regard to the county of Henrico. Thus stood the law when the present Code was enacted, which applies to this case, and contains the following provisions on the subject: P. 652, ch. 171, § 44. “ Every judgment entered in the office in a case wherein there is no order for an enquiry of damages, and every non-suit or dismission entered therein shall, if not previously set aside, become a final judgment, if the case be in the General or a Circuit court, of the last day of the next term, or the fifteenth day thereof (whichever shall happen first); and if it be in a County or Corporation court, of the last day of the next quarterly term, and have the same effect by lien or otherwise as a judgment rendered in the court at such term,” &c. 68§ 45. “ If a defendant against whom judgment is entered in the office shall, before it becomes final, appear and plead to issue, it shall be set aside, unless an order for enquiry of damages has been executed; in which case it shall not be set aside without good cause. Any such issue may be tried at the same term, unless the defendant show good cause for a continuance.” P. 674, ch. 177, § 21. “ Any court, after the fifteenth day of its term, may make a general order allowing executions to issue on judgments and decrees, after ten days from their date, although the term at which they are rendered be not ended. For special cause it may, in any particular case, except the same from such order, or allow an execution thereon at an earlier period.” Under these provisions of the Code, the fifteenth day of a term of a Circuit court which consists of more than fifteen days, is, in effect, the last day of the term as to cases on the office judgment docket in which there is no order for an enquiry of damages, and in which the office judgment shall not have been set aside on or before that day. The office judgment in such cases becomes as final, to all intents and purposes, on that day, as if it were in fact the last day of the term. The court has no more power over it on a subsequent day of the term than at a subsequent term, and a motion to set it aside would be just as much coram non judice in the one case as the other. It has all the properties of a final judgment. An execution may forthwith be issued upon it, without any order of court, general or special, for that purpose. It can be corrected, set aside or reversed, only by proceedings in error in the same or a higher court. If the defendant has been taken by surprise, and has just ground for relief against the judgment, he can obtain it only in a court of equity. That this is the true construction of the law, is 69plainly indicated both by its letter and its spirit. The law expressly declares, that every judgment entered in the office, &c. shall “become a final judgment of the last day of the next term, or the fifteenth day thereof, whichever shall happen first;” thus putting the two days upon precisely the same footing in regard to office judgments which become final on one or the other. And it further expressly declares, that such judgment shall “have the same effect, by lien or otherwise, as a judgment rendered in the court at such term.” The act of March 6, 1834, in which, as we have seen, the provisions of the Code on the same subject have their origin, expressly declared that office judgments, &c. not set .aside on or before the sixteenth day of the term, “shall be considered as final judgments of the said sixteenth day, and executions may issue thereupon accordingly.” Thus using the same language which had been used in 1 Rev. Code 1819, p. 508, § 79, which declared that office judgments, &c. not set aside during the term, “ shall be considered as final judgments of the last day of the term, and executions may issue thereupon accordingly.” It would be difficult to place a different construction upon the same words occurring in these two laws in pari materia. There can be no doubt about the construction of the act of 1819, and it would seem there ought to be none about the construction of that of 1834, or of the provisions of the Code. Again : The preamble of the act of 1834 sheds light upon the meaning of the legislature, and supports the above construction. It recites the mischief designed to be remedied by that act, to wit, the great inconvenience to which parties were subjected by the protracted session of the Circuit superior court of Henrico, on account of the chancery business thereof, from the delay of issuing executions on their judgments until the close of the court. 70This construction not only conforms to the letter and spirit of the law, but is reasonable and convenient also. The first fifteen days of a term of a Circuit court consisting of a greater number of days, certainly afford ample time for setting aside office judgments upon plain bonds or notes in writing, and much more than is generally afforded for that purpose, as the terms of the Circuit courts are rai’ely of so great length. They are usually longer in some counties and corporations; and especially in the city of Richmond, where, as appears from this record, a term is sometimes of more than three months’ duration. Would it be reasonable or convenient that an office judgment, which becomes final on the fifteenth day of the term, and on which an execution may immediately thereafter be issued, should be liable to be set aside on motion at any time during the term, however long it may be continued ? Is it not much more reasonable and convenient that the defendant in such case should be concluded of all relief against the judgment, except by a proceeding in error or in equity ? In the former case, the plaintiff might be unjustly deprived of the lien of his judgment and execution, without any indemnity whatever; whereas in the latter, the lien of the judgment, so far as he may be entitled to it, is preserved to him, and he is generally indemnified against ultimate loss, by a supersedeas or an injunction bond. This case affords a striking illustration of the inconvenience and injury which might result from the former course. Here the office judgment became final on the 27th of November 1855. The execution issued on the 22d of December, and went into the sheriff’s hands on the 18th of January, and was levied: And not until the 8th day of March following, more than three months after the final judgment, was a motion made to set it aside, on the ground of surprise! 71But it is said that the legislature, in making office judgments final on the fifteenth day of a term if not set aside on or before that day, only intended to place them upon the same footing with judgments rendered in court \| and that as the latter may be set aside on motion, for good cause shown, on any subsequent day of the term at which they are rendered, so may the former. If this were true, it would only show an incongruity in the law. But the legislature has guarded against such an incongruity, by providing that any court, after the fifteenth day of its term, may make a general order allowing executions to issue on judgments and decrees after ten days from their date, although the term at which they are tendered be not ended. Code, p. 674, § 21. The effect of this provision, and the general order which may be made in pursuance of it, is to make all judgments rendered in court final whenever execution is capable of being issued thereon, although the term at which they were rendered be not ended. A capacity to issue execution on a judgment at law implies its finality, unless there be something to repel the implication in the terms of the law which gives the capacity. There is nothing to repel it in the terms of the law in question. Judgments rendered in court, which thus become final after ten days from their date, then possess all the attributes of finality, and stand on the same footing with office judgments after they become final on the fifteenth day of the term, as aforesaid. In neither case has the court, as a court of original jurisdiction, any power over its judgments after they have thus become final. I am therefore of opinion that the Circuit court had no power to make the order of the 8th day of March 1856, setting aside the office judgment made final in this case on the 27th day of November 1855, and that the said order is void. 72But it may be said that if the order be void, there can be no occasion to reverse it, and at all events, that the order being interlocutory and not final, the supersedeas thereto has been prematurely and improvidently awarded, and must therefore be dismissed. There might be some force in this objection, if the order had merely been to set aside the judgment. But it proceeded further, and quashed the execution: And though the court had no power, as a court of original jurisdiction, over the judgment, it had such power over the execution. A court must see to the execution of its judgments, and may order an execution to be issued, or quash one which has been issued. This is its judicial power, which of course it must exercise properly, and its orders in the exercise thereof are subject to the revision of an appellate court. The order to quash the execution in this case, being within the judicial power of the court, is an obstruction which the plaintiffs are entitled to have removed out of their way, in order that they may have execution of their judgment. And they are not bound to wait for that purpose until the case upon the order to set aside the judgment is finally disposed of in the court below. The order quashing the execution is a final order, and the supersedeas thereto was not prematurely awarded. This court therefore has jurisdiction of the case. And the order to set aside the judgment and quash the execution being one entire order, and the quashing of the execution being in consequence of the order to set aside the judgment, this court can properly, I think, revise and reverse the entire order, notwithstanding the interlocutory character of a part of it which is void. The view which I have taken of the case renders it unnecessary .if not improper to express an opinion upon the question, whether the defendant in error made out such a case in the court below as would have entitled him to have the judgment set aside if that court had *73had jurisdiction to make the order for that purpose. If he is'entitled to be relieved against the judgment on the grounds relied on by him in the court below, he can obtain such relief only in a court of equity. I am therefore of opinion that the said order of the 8th of March 1856 is erroneous, and ought to be reversed with costs, and that the motion of the said defendant in error ought to be dismissed with costs. The other judges concurred in the opinion of Moncure, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481634/	Lee, J. The jurisdiction of this court in this case is, I think, clear and unquestionable. Assuming that the matter in controversy is merely pecuniary, it is not confined to the amount claimed by the appellee but embraces also the amounts claimed by the Building fund company and for which as. they allege they are entitled to priority of payment out of the proceeds of the subject. These alone exceed the sum necessary to give the jurisdiction. There is as little doubt, I think, of the jurisdiction of the court of equity in the matter of the bill. Its jurisdiction is denied by the counsel for the appellant upon his construction of our act creating the “ mechanic’s lien,” Code, ch. 119, § 2, p. 510; and if his construction were correct, there would be grave doubt of the right of a party claiming as assignee of such a contract as that which is the foundation of the appellee’s demand, to come into equity to obtain payment of such of the installments as had become due merely upon the ground that he was assignee. But I do not think the construction contended for is correct. The act first declares that there shall be a lien for the money agreed to be paid upon a contract for erecting or repairing any building, &c. from the time that the same is duly admitted to record, and then provides that “ the said lien shall not be in force more than six months from the time when the money or the last installment of the money, to be paid under such contract, shall become payable, unless a suit in equity to enforce the lien shall have been commenced within 94the said six months.” The object of this provision was to prescribe a limitation to suits to enforce such a lien by specifying a period after which they might not be brought but not one before which they might not be commenced. It intended to give the mechanic the right to assert the lien for all the installments whenever due (where the contract price was payable in installments) provided he commenced his suit before the expiration of the six months after the last installment became due, but not to prevent him from proceeding for previous installments before the last became payable. His right to sue for these depends on general principles and is not restricted by the act; and no one has ever questioned that a party who has a debt due by bond payable in installments and secured by a lien on real estate may maintain covenant, or file his bill to enforce his lien as soon as any one installment becomes payable, whatever may be the doubt as to the. right to maintain debt until all of the installments shall have become due: ' And where such a bill has been filed and other installments shall become due pending the suit, the uniform practice, never questioned so fivr as I know, has been to decree payment of all the installments that shall have fallen due up to the time of the decree, and if there be any to becomb due thereafter to provide that the party may come in on the foot of the decree to obtain satisfaction of the same out of the surplus proceeds, if any there should prove to be. To this practice I can see no well founded objection. It would be useless and occasion unnecessary costs and delay to require the party to commence a new suit or even file a supplemental bill whenever another installment shall fall due; and the defendant in making his defence as to the first installment may if he please make it to any or all of the others or may obtain leave to do so in proper time afterwards. 95I have examined the.cases cited by the counsel on this point but have seen in them no reason to doubt the correctness of my construction of the statute. The cases apparently most resembling this case are those of Kinney v. Hudnut, 2 Scamm. R. 472; Pryor v. White, 16 B. Mon. R. 605; Bartlett v. Kingan, 7 Harris Penn. R. 341; McClallan v. Smith, 11 Cush. R. 238; and Jones v. Alexander, 10 Smedes & Marsh. R. 627. But they were upon statutes differing in some respects from ours, and they do not touch the particular point made here. The case of Kinney v. Hudnut merely decides that under the statute of Illinois, there can be no cause of action until the contract is completed and payment is due. In that case there was no special contract as to the time when the work was to be paid for. In Bartlett v. Kingan, the claim was for work done and bricks furnished on an entire contract for the erection of a house, and it was held that under the Pennsylvania statute, the six months’ limitation commenced to run from the completion of the contract, and that the party was in time if his claim was filed within that period after the last quantity of bricks was furnished and laid. Here the demand was for an entire sum due in whole upon the completion of the contract. In Pryor v. White, it appears that under the Kentucky statute the lien is to be enforced by bill filed within one year from the completion of the work, and that the party in that case had taken notes for the work some of which would not fall due until after the year: and it was held that as he had thus by his voluntary act placed himself in a position which rendered him unable to bring a suit to enforce the lien as to them within the year, he was to be regarded as having virtually waived it. Jones v. Alexander was a case under the Mississippi statute which required the suit to be brought within twelve months from the time the money was to be paid in order to secure the 96lien. The plaintiff had furnished lumber to the de» fendant for a house in 1844, the proper time of pay-for which was the 1st of January 1846; and in 'May 1845 he had taken the defendant’s note for the amoun£ payable one day after date, but the petition to enforce the lien was not filed until April 1846. ' It was held that the party could not deviate from the original contract and extend the time when according to it the lien would attach, and as the petition had not been filed within twelve months from the time when payment was to be made, it could not be maintained. In McClallan v. Smith, which was a case under the Massachusetts statute, the contract was to do the work during the season ensuing its date, which was the 30th of May 1845; the contractor did part of-the work in 1845 but did not complete it until May 1846, and the property having been conveyed to others, he sought to enforce his lien against them. It was held that although he would have been entitled to compensation for the work he did during the season of 1S45, because his failure to complete the building was occasioned not by his default but by that of the owner in furnishing materials, and to have his lien enforced to that extent if he had commenced his suit in due time; yet as he had not filed his petition within six months from the time when the amount due for the work done in 1845 would have been payable according to an equitable adjustment under the contract, his lien was lost and the land discharged of the incumbrance : the court being of opinion that the work done after the season in 1845 was to be regarded as done under a subsequent parol agreement, which did not continue the former lien nor create a new one. Thus it will be perceived, as I think, that these cases all differ in their distinctive features from our case and give but little aid in settling the true construction of our act. Nor have I seen any sufficient 97reason for applying a different rule to the lien which st creates from that which obtains in other cases of liens for money payable in installments. I think the party could come into equity to enforce the lieu as soon as either installment became due, and that when he did so, the court could properly make provision for the others. In this view it is unnecessary to enter into the doctrine of assignments for the purpose of determining how far without such lien, the appellee could have maintained himself in that court upon the footing of his assignment alone. But the counsel for the appellants goes still further and insists that there never was a lien at all because the contract was not acknowledged by laege and admitted to record for the purpose of creating a lien, nor did he know that such would be the effect. Or if it must be held that there is a lien, that it is not assignable and consequently the appellee has no footing in court to enforce it for bis benefit. Nothing is said in the act about the intention with which the contract is admitted to record, nor is any certificate required of the purpose for which it may be acknowledged or recorded. The appellee, it appears, who was to advance the money refused to do so unless the contract was recorded, and to overcome this difficulty, laege went to the clerk’s office and acknowledged it for that purpose. No fraud or imposition is alleged to have been practiced upon him, and his ignorance of the legal consequences of recording the contract cannot prevent the lien from having effect. Otherwise it would be a fraud upon the appellee who has advanced his money upon the faith of the rights thereby acquired. I think it clear therefore that the party must be deemed when he acknowledged the contract and assented to its being recorded, to have known that it would create a lien or at least that 98he was content to abide by all the legal effects and legitimate consequences of its being so recorded. Nor do I think that the position taken by the coungej ^at such a lien is not assignable can be maintained. By the act of 1819 it is declared that assignments of all bonds bills and promissory notes and other writings obligatory whatsoever, shall be valid; and that an assignee of any such, may thereupon maintain any action in his own name which the original obligee or payee might have brought. 1 Rev. Code 1819, p. 484, § 5. In the Code of 1849, the declaration that such assignments shall be valid is omitted, and it is simply provided that the assignee of any bond, note, or writing not negotiable, may maintain thereupon any action in his own name which the original obligee or payee might have brought; the revisors, I presume, supposing that to give the action to the assignee in his own name sufficiently affirmed the validity of the assignment without any express declaration to that effect. Code, ch. 144, $ 14, p. 583. Now I see no reason why the assignee in this case could not maintain an action at law in his own name upon this contract. It seems to me to be fully embraced by the terms of description both in the Code of 1819 and that of 1849. But if this may be questioned, no reason is shown why it may not be regarded as assignable for value in equity. It is said and authorities have been cited to show, that such a statute is to be construed strictly, and it is contended that it is intended exclusively for the beneiit of the builder and material-man. No case has been cited affirming that a contract under such a statute cannot be assigned. There is nothing in public policy or in the language or the policy of our act to forbid it; and if the statute be exclusively for the benefit of the builder and material-man it would certainly impair the value of his lien to declare 99it uon-assignabie. It might prejudice him by depriving him of credit which he might otherwise obtain to prosecute his undertaking, and thus also operate a disadvantage to the owner. Whilst the latter can in respect be injured by the assignment, because the assignee takes the obligation subject to the same equity to which it was subject in the hands of the obligee and must allow all just discounts not only against himself but against the assignor before notice of the assignment. I can perceive no reason for distinguishing between contracts of this character and other choses in action ex contractu in respect of the right to assign them. And it cannot be doubted that when the assignee takes the contract, he acquires with it the lien as a necessary incident. I proceed next to consider the complaint made of the amount for which the decree was rendered. By the contract the work about the bouse was to be executed in a workmanlike manner, whilst the proofs in the cause tend strongly to show that it was in fact executed in a very defective and unworkmanlike manner. It is proven that the doors were very much cracked (one of the witnesses says “ cracked to pieces”) and that they were too small from shrinking, were made of green or wet timber and that numerous holes were found in them; that the staircase had given way and the steps had sunk from a half to three-fourths of an inch below the skirting; that the wash-boards had left the floors or the floors had sunk from half an inch to an inch; that the mantles were badly executed and much shrunken; that the plastering was not well done, that the weather-boarding was very much split and shrunken for want of a sufficient lap and that the piazza in the rear was badly and improperly constructed. All the witnesses examined upon the subject agreed that the materials must have been green 100or unseasoned and that the work was not done in a workmanlike manner but was very defective; and they think it was worth much less than was to be paid for it if executed in the manner required by the con¿racj;o jt is true it was provided that the work when completed was to be valued by referees and the price was to be fixed by their valuation. But such a valuation would of necessity be based upon the condition in which the work appeared at the time it should be made, and it could not have been intended to deprive the party of the right to compensation for material defects in the work that were not discoverable at the time of the valuation but only became apparent after-wards. And as numerous and marked defects were subsequently disclosed the award of the referees as to the value of the work in its apparent condition at the time should not be held conclusive. It appears that the valuation was made by the referees immediately after the completion of the house in February 1853; the work was then just finished, freshly painted and plastered ; every thing appeared right except perhaps the defective manner of the construction of the piazza in the rear, and it was not until after the materials used had become seasoned during the ensuing summer and fall that their defective character was exposed in the numerous flaws and defects which became strikingly apparent in various parts of the building, and thus invited attention as well to the materials themselves as to the manner in which they had been wrought. If the price of the work had been fixed in the contract and the party had paid it immediately on its completion, or if he had been sued and judgment recovered for the amount before the faulty and defective workmanship had discovered itself, it will scarcely be said that he would have been thereby deprived of the benefit of his contract for work done in a workman101like manner, and of compensation for material defects which were subsequently disclosed. Nor can I think that the measurement and valuation made by the referees should under the circumstances of this case, have any greater effect. The case of Kidwell v. The Balt. & Ohio R. R. Co. 11 Gratt. 676, has been cited by the counsel for the appellee upon this point; but it will be found I think upon examination to decide nothing incompatible with the conclusion I have arrived at in this case. That was a bill filed to obtain compensation for extra work and deficiencies in estimates of the value of work done, upon certain contracts for the construction of bridges on the line of the company’s road. These contracts provided for monthly estimates to be made of the quantity character and value of the work by an engineer designated, and when the work should be fully completed and accepted by the engineer, for a final estimate of the same, when the balance appearing to be due was to be paid to the contractor upon his executing a release of all demands against the company. There was a further provision that these estimates should be conclusive between the parties unless altered by the principal engineer to whom power was reserved to review the same and make alterations if he should choose to exercise it. The complaint on this branch of the cáse was that the estimates had all been made upon an improper and erroneous construction of the contracts, to the great prejudice of the contractor, and that he should not be bound by them on that account and also because of fraud and mistake imputed to the officers in effecting the contracts and making the estimates. The court held that neither fraud nor a mistake was made out in proof, and that in the absence of both, the final estimate of the engineer was conclusive between the parties. It vías also held that whatever might be the true construction 102of the contracts yet as the estimates had been made upon a particular construction of which the contractor fully informed at the time and had received the ‘monthly estimates based upon it without objection, }ie must be held to have acquiesced in that construction and to be bound by it; and that if he might have refused to abide by the final estimate, yet having made no objection to the engineer’s proceeding to make it, and having attended upon him for that purpose and submitted his charges for the work done, he was concluded by the engineer’s action. In this case the very matters sought to be controverted had been formally and directly submitted to and adjudicated by the referee, all the elements which should enter into his estimate were perfectly known at the time and the contractor by his acts and declarations, had acquiesced' in the principles upon which he had attained his results. I can perceive nothing in this decision which touches the particular question in the case in judgment. It is contended on behalf of the Building fund company that they were entitled to priority of payment out of the proceeds of the sale of the property, both as to the one hundred and twenty dollar's advanced to laege before the building contract was recorded, and the four hundred and sixty-one dollars advanced and paid to the appellee afterwards; and on behalf of both the appellants it is insisted that the Circuit court should have so adjudicated before it directed a sale of the property. The counsel for the appellee does not contest the priority claimed for the one hundred and twenty dollars, and he contends that upon the face of the commissioner’s report and the decree of which it is the basis, this is impliedly conceded and should be regarded as sufficiently recognized: but he does contest the priority claimed as to the four hundred and sixty-one dollars paid after the building contract was re103corded, and he argues that as the money arising from the sale was not disposed of by the decree but directed to be deposited in bank to the credit of the cause, court could afterwards decide upon the priorities thus no one would be prejudiced» It is a well settled rule that where there are conflicting claims to priority of payment out of the proceeds of land about to be sold to satisfy the liens upon it, the court in order to prevent the danger of sacrificing the property by discouraging the creditors from bidding as they probably might if their right to satisfaction of their debts and the order in which they were to be paid out of the property, were previously ascertained, should declare the order of payment before it decrees the sale to be made. Cole's adm'r v. McRae, 6 Rand. 644; Buchanan v. Clark, &c., 10 Gratt. 164. It is therefore not sufficient that the court should direct the fund to be paid into court and should declare the priorities afterwards. The purpose for which it is done requires that it should precede the sale. I do not see any thing in the report of the commissioner or the decree of the court confirming it which amounts to a declaration or recognition of the priority of the Building fund company even as to the one hundred and twenty dollars. The report simply states the facts, and the decree, after confirming the report, directs that if the balance stated to be due the appellee be not paid within ninety days with interest and costs, the property should be sold and the proceeds after paying the costs and expenses of the sale, paid into bank to the credit of the cause. Nothing is said in it in relation to either claim of the Building fund company, and the failure to adjudicate as to the order of payment is, I think, a material error in the decree. As to the Building fund company’s right to priority as to the one hundred and twenty dollars, no objection 104is made, nor can its right to such priority as to the four hundred and sixty-one dollars, be successfully contested. When the company advanced the one hundred and twenty dollars to Iaege for and on account of the redemption of a share held by him in the stock of the company, they took from him a deed of trust upon the property to secure the payment of that sum as well as of any other sum or sums they might thereafter advance on account of the redemption of other shares. This arrangement was fully within the terms of the charter and the by-laws of the company, and was the mode in which the main object of the association was carried into effect, and it was well known to Martin, Warthen and the appellee at the time the contract for building the house was executed and when the same was assigned to the appellee. The deed of trust was duly admitted to record before the contract for building was entered into, and when it was made and assigned to the appellee, it was perfectly well known to all these parties that the principal part of the funds to be paid for the work was to come from the Building fund company and to be advanced by it on the security of the deed of trust which they had taken; and accordingly they required Iaege by the contract to give good security for the excess of the cost of the building above the five hundred dollars expected from the company. And when the money was paid to the appellee, he knew that it was paid by the company on the security of the deed of trust, and with the understanding on their part that they were to be indemnified in preference to any other claimant, and it was accepted and received by him in payment for materials furnished and work done upon the very property without objection and without protest as to the justness of the expectation with which it was paid. To permit the appellee now to repudiate his 105recognition of the priority of the company’s claim would operate a virtual fraud upon them and would be most uniust and inequitable. I think therefore the Building fund company is entitled to priority in payment of the proceeds of the property as well of the four hundred and sixty-one dollars advanced in redemption of stock as of the one hundred and twenty dollars advanced in that way at the time the deed of trust was executed. There are two other points which perhaps should be briefly noticed. An exception was taken to the paper offered as evidence of the measurement and valuation of the work by the referees because it purported to be a copy and not the original. This exception is without date and it does not appear when it was in fact taken. But the paper was filed as an exhibit with the bill and although the answers are very full and elaborate no objection is taken to the paper on that account nor is any call made in them for the original. The paper was also received by the commissioner as evidence, there was no call made for the production of the original before him nor does he report that any objection was made to the paper because it was but a copy. The exception therefore either came too late or must be regarded as having been waived by the parties, and it was properly disregarded by the Circuit court. The remaining point relates to the contingent dower interest of the wife of the appellant Iaege in the property. It is said that this was not affected by the mechanic’s lien, and that the court therefore should not have sold the entire estate, but only the interest of Iaege. That the mechanic’s lien does not override the dower interest of the wife is very clear, and if any authority to the point were needed, it would be found in Shaeffer v. Weed, 3 Gilm. 511. But Mrs. Iaege had united with her husband in the deed of trust for the 106benefit of the Building fund company, and if a sale takes place it must be to raise the amount due the as well as that due to the appellee. It would be proper therefore that the property should be sold ou£ anc¡ 011£; ]jU£ as £[ie wjfe jias a contingent dower interest in the equity of redemption and being a party to the cause, is to be bound by the decree, the court should make a proper provision to compensate that interest out of the surplus proceeds of sale, if any, after satisfying the amounts due the Building fund company before any part of the same shall be paid over to the appellee. I am of opinion to reverse the decree and remand the cause for further proceedings. The other judges concurred in the opinion of Lee, J. The decree was as follows: The court is of opinion that the Circuit court did not err in maintaining the jurisdiction of the court of equity to grant the relief prayed for by the bill, nor in disregarding the exception to the copy of the measurement and valuation of the referees filed as an exhibit with the bill, nor in holding the appellee entitled to a decree for all of the installments of the price of the work although part thereof only became due pending the cause. But the court is of opinion that before decreeing a sale of the property, the Circuit court should have directed an enquiry by a commissioner into the alleged defects in the work done in the execution of said contract which were disclosed and became apparent after the valuation made by the referees, and should have ascertained what would be a just compensation to the appellant laege for such defects, and should have caused the same when so ascertained to be accounted for out of the balance due the appellee if sufficient to satisfy the same, before any amount should be decreed to him on said contract. 107And the court is further of opinion that before decreeing a sale of the property, the Circuit court should have adjudicated the priority of payment out of the proceeds thereof as between the appellee and the Building fund company, and should have declared the said company entitled to such priority both as to the one hundred dollars balance of what was paid before, as well as to the four hundred and sixty-one dollars paid after the said building contract was admitted to record. And the court is further of opinion that it was proper the said property should have been decreed to be sold out and out, but that inasmuch as the wife of the said laege is entitled to a dower interest in the equity of redemption after satisfying the purposes of the deed of trust, and as she is a party to the cause the court should make a suitable provision for the preservation of such dower interest out of the surplus proceeds of sale after satisfying the demands of the Building fund company, before any part thereof should be paid over to the appellee. Wherefore the court is of opinion that there is error in said decree. Therefore reversed with costs and remanded with instructions further to proceed in the same according to the principles herein before declared. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481690/	Jotnes, J. delivered the opinion of the court: The court is of opinion, that the said Circuit Court erred in rendering a decree in favor of the appellee Hagan, without first causing issues to be tried by a jury as hereinafter directed. Therefore it is decreed and ordered, that the said decree be reversed and annulled, and that the appellee Hagan pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court proceeding to pronounce such decree as the said Circuit Court ought to have pronounced, it is further decreed and ordered, that a jury be empanelled at the bar of the said Circuit Court, on the chancery side thereof, to try the following issues: I. Whether the deed in the proceedings mentioned from George W. Mettert to John Hagan was or was not obtained by fraud. 2. Whether, in case the said deed was so obtained by fraud, the same was subsequently confirmed by the said Mettert by his answer to the bill of Mrs. Kyle, or other*234wise, the said Mettert intending thereby to ratify and give effect to the said deed, being fully aware of his right to avoid the same, and being competent to bind himself, and free from all coercion, restraint or undue influence. 3. In case the said deed was so obtained by fraud, and was not so subsequently confirmed, what was the value in money of the consideration, if any, paid or delivered by the said Hagan to the said Mettert for the interest of said Mettert conveyed by said deed. Upon the trial of which issues the said Hagan shall be entitled to open and conclude. And the court is of opinion, that if it shall be ascertained that the said deed was not obtained by fraud; or, having' been obtained by fraud, was subsequently confirmed as aforesaid, then the same should be held valid without regard to the value of the consideration paid or delivered therefor. And the court is further of opinion, that though, according to the strict rules of pleading, the said deed could.not be annulled and set aside without a bill or cross-bill filed for that purpose by said Mettert’s administrator, the answer of said Mettert’s administrator may, for that purpose, be treated as a cross-bill, so as to enable the court to do complete justice in this cause; and that if it shall be ascertained that the said deed was obtained by fraud, and was not subsequently confirmed as aforesaid, the same should be set aside and annulled, upon the payment to the said Hagan of the value of the consideration paid or delivered therefor by him, with interest thereon, for the re-payment whereof the said deed should be held as a security. And the cause is remanded to the said Circuit Court for further proceedings to be had therein in conformity with the foregoing opinion and decree. Which is ordered to be certified, &c. ’ Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481691/	Moncure, P., after stating the case, proceeded as follows : Pour errors are assigned in the judgment, but as the last two are in effect but repetitions of the first and second respectively, or at all events may be disposed of in disposing of them, the latter only need be noticed. They are: 1st. The execution upon the first judgment expired before the day named in the bond for the delivery of the property; the sheriff, therefore, could not legally receive it on that day, and the bond was consequently void, and no judgment could legally be rendered upon it. 2dly. The court, having rendered one judgment upon the bond, could not set aside that judgment without notice to the defendants, nor could it quash the execution without such notice. In regard to the first error assigned, it will not be necessary to say much. The sheriff could legally receive the property on the day of sale named in the forthcoming bond, though that day was after the return day of the execution, and the bond was not, therefore, void. The execution of a writ of fieri facias is an entire thing, and having been commenced but not completed by the sheriff to whom it is directed before the return day, it is his duty to complete the execution afterwards. 1 Rob. Pr. old ed. 529, 580, 582; Dix v. Evans, 3 Munf. 308; Wheaton v. 239Sexton’s lessee, 4 Wheat. R. 503 ; 2 Tuck. Com. 362, 370. He may sell after the return day of the writ, even after he is out of office, and without a writ of venditioni exponas. Sewell on Sheriff 253, and cases cited in note (x); 46 Law _ . mi • _ , . , Library 194. The writ commands him to cause the money therein mentioned to be made of the goods and chatties of the defendant. It is his duty, if the money he not paid, to levy the writ on the goods and chattels of the defendant, or so much thereof as may be necessary, and sell them for its satisfaction. He cannot levy the writ after the return day, but he may do so at any time on or before that day after it comes to his hands for execution. Code ch. 170, § 2, p. 706. It often happens that, after making a levy, he has not time to make a sale before the return day. No such sale can be made without at least ten days previous notice. Code ch. 49, § 37, p. 286. And if the goods and chattels levied on be slaves, mules, work-oxen or horses, they are required by the next section (38, p. 287,) to be sold at the courthouse of the county or corporation, and on the first day of the term of the court thereof next succeeding that at which they may be advertised, except where the parties shall, at or before the time for advertising the same, in writing, authorize the officer to dispense with the provisions of this section; in which case the sale shall be according to the preceding section. Thus the day of sale may be a month or more after the return day of the writ. And if the defendant give a forthcoming bond, as he generally may, under the Code ch. 189, § 1, p. 780, the condition of it is for the forthcoming of the property at the day and place of sale, whether that day be before or after the return day of the writ. In either case, he has a right to perform the condition of his bond by having the property forthcoming accordingly, and the sheriff is bound to receive it. In regard to the second error assigned. The first judg240ment rendered on the forthcoming bond was clearly erroneous, having been rendered before the day named in the notice, without the consent of the defendants, or any appearance by or for them. They might have had it reversed by a proceeding in error commenced at any time within the term of limitation prescribed by law in such cases. As they had that right, and might avail themselves of it, the plaintiff could not rely upon the judgment, though apparently in his favor, unless the defendants would release all errors in it, in which case the plaintiff would have no cause to complain of it, and would of course be satisfied. The defendants did not release such errors, and the plaintiff had no reason to believe that they would do so. He was, therefore, aggrieved by the judgment which stood in his wray; and he had a right to have it set aside and •removed out of his way by a proceeding in error instituded by himself. The judgment being by default, the court which rendered it had jurisdiction to set it aside, and to do so on motion, under the Code ch. 181, § 5. If the judgment was properly set aside, the execution thereon of course fell with it, and would have so fallen without an express order to quash the execution. Of course the court might make such an order, and the Code ch. 187, § 23, p. 776, expressly affirms the right of the court on motion to do so, if such affirmation were necessary. The .court, therefore, had jurisdiction to make the order of the 1st day of August, 1867, setting aside the said judgment and quashing the execution thereon. To be sure the statute requires notice to be given to the adverse party, as well in a proceeding to reverse a judgment under ch. 181, § 5, as in a proceeding to quash an execution under ch. 187, § 23; but the notice required in either case is reasonable notice only, and not notice for a certain period of time. It appears, in this case, that the defendants had notice of the motion to set aside the judgment 241and quash the execution, having appeared by their attorney upon that motion; and it does not appear that it was not reasonable notice, nor that any objection was made to it because it was not reasonable, or on any other ground. Had it been objected to because it was not reasonable, doubtless an opportunity would have been afforded the defendants, if necessary, by a continuance of the motion, or by requiring a new notice, to make any defence they might have had to the motion. But it is difficult to conceive what defence they could have made to it; and the assertion of such a defence would seem of necessity to involve a release of errors in the judgment. Had they offered to give such a release, the plaintiff, as was well said by his counsel in the argument of this case, would no doubt have asked the court to overrule his own motion. The defendants had their choice, to release the errors in the first judgment and let it stand, and thus defeat the motion for another judgment, at least against the defendants J. P. Ballard and J. B. Watkins, against whom only the first judgment was rendered; orto let that judgment be set aside, and make their defence, if they had any, on the motion for another judgment, of which motion they had due legal notice. They did let the first judgment be set aside, or at least they do not appear to have made any defence against the motion to set it aside, and it was accordingly set aside “for reasons appearing to the court,” though it is stated in the order that the parties appeared by their attorneys. But the defendants made no defence to the motion for another judgment, except upon the ground that the former judgment had been rendered, though it had been set aside as aforesaid. They made no other defence, doubtless because they had no other to make; but wished to avail themselves of the proceedings which had occurred in regard to the former judgment, not 242because it is a valid judgment and ought to stand, but merely for the purpose of delay. I have not reviewed in detail the many authorities cited and commented upon by the learned counsel for the defendant in error, because I thought it unnecessary to do so for the decision of this case. They seem to sustain the positions in support of which they were cited. As—1st. That the notice for the second motion was good and valid, notwithstanding the existence of an invalid and illegal judgment previously entered on the same bond. 1 Chit. Pl. 7th Am. ed. pp. 523-4; Green v. Watts, 1 Ld. Ray. R. 274; Knight’s case, 2 Id. 1014; S. C. 1 Salk. 329; Croswell v. Byrnes, 9 John. R. 287, 290; Dyer 32a, pl. 5, 6; Jenk. Cent. 74 pl. 40; 4 Leigh 58; Archer v. Ward, 9 Gratt. 622. 2dly. That a writ of error “may be brought by the plaintiff to reverse his own judgment, if erroneous or given for a less sum than he has a right to demand in order to enable him to bring another action.” 2 Wms. Saund. 101f, citing Johnson v. Jebb, 3 Burr. R. 1772. 3dly. That if the plaintiffs in error have sustained no injury by the want of notice, and could not possibly have sustained any, they certainly are not entitled to reverse upon that ground the order setting aside the judg-ment and quashing the execution. Preston v. Harvey, 2 Hen. & Mun. 55; 64, 5; 66, 7; Pitman v. Breckinridge, &c., 3 Gratt. 127 ; Crawford v. Morris, 5 Id. 90; Hughes v. Stickney, 13 Wend. R. 280; and, 4thly. That the defendants in the Circuit Court, by appearing (as their own bill of exceptions shows they did) in opposition to the motion to set aside the erroneous judgment and quash the execution upon it, without making any objection to that motion upon the ground of failure to give them notice of it, must be held to have waived the notice, and cannot now be heard to make the objection. Ayres v. Lewellin, 3 Leigh 609; Poling v. Johnson, 2 Rob. R. 285; Pul*243liam, &c. v. Aler, 15 Gratt. 54; Muire v. Falconer, &c., 10 Id. 12. In the foregoing opinion I have not adverted to the fact that the order setting aside the first judgment was made during the same term of the court, because having been made after the 15th day of the term, and after an order had been made awarding an execution on the judgment, it might be contended that the term, in effect, was ended as to that judgment when the order was made to set it aside, according to the decision of this court in Enders’ ex’ors v. Burch, 15 Gratt. 64. Nor have I noticed what was said in the argument against the correctness of that decision. I have not deemed it necessary to do so, because, conceding that the order setting aside the first judgment was made at a different term of the court, I still think it was properly made. I am of opinion that there is no error in the judgment, and that it be affirmed. The other judges concurred in the opinion of Mon-cure, P. Judgment arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481693/	Joynes, J. The first ground taken in the petition is that the 93d section of the assessment act of 1866, on which this case depends, was not intended by the Legislature to apply to express companies incorporated by this State. I do not think this position can be maintained. The language is general, and without restriction. It purports 297to embrace “ every express company. ’ The 14th section of the act imposing taxes, passed at the same session, imposes a tax of one per cent, on the gross earnings of “ every express company,” to be ascertained and paid in the mode prescribed by the 93d section of the assessment act; section 15 imposes a tax on the dividends of “ savings banks and insurance companies incorporated by this State;” section 16 imposes a tax on “foreign insurance companies;” section 17 imposes a tax on banks “incorporated by this State.” The 93d section of the assessment act, like the. 14th section of the act imposing taxes, applies to “every express company;” the 94th applies to savings banks and insurance companies “ incorporated by this State;” and the 95th applies to insurance companies “not incorporated by this State.” Thus it appears that when a distinction was intended between companies incorporated by this State and other companies of like kind, either in respect to the mode of taxation, or in respect to the mode of assessment and collection, the distinction was made in express terms. The 14th section of the act imposing taxes, and the 93d section of the assessment act, refer to each other, and are parts of the same system. Every express company is taxed by the former, and every such company so taxed is required by the latter to make reports to the Auditor of its gross earnings, and to pay the tax, at the time and in the mode prescribed. Every such company is made liable to a penalty for failure to report its earnings and to pay the tax. And the stockholders of every such company are made personally liable for‘the tax and for the penalty. We have no more authority for supposing that the Legislature intended to exempt any express company from any one of these provisions, more than from any other one. All were to be taxed, and the taxes of all were to be collected in the same way. We cannot interpolate excep298fi°ns founded on inference and conjecture, where the intention of the Legislature is expressed in clear and unambiguous terms. If the National Express Company was not embraced by # A r J , the 93d section of the assessment act, I do not see how it could be held to be embraced by the 14th section of the act imposing taxes. If it was not embraced by the latter section, then, if taxed at all, it must have been taxed on its capital under section 58 of the assessment act, as contended in the argument. The result of this would be, to subject an infant enterprise, established under authority of this State, and doing little business, to much more onerous taxation than was imposed on others which had been long established. It would he taxed on its entire capital wherever employed, while they would be taxed only on their earnings from business done in this State. If this company was embraced by section 14 of the act imposing taxes, and was not embraced by section 93 of the assessment act, then a tax was imposed, and no means were provided for ascertaining its amount or enforcing its payment. It has been strongly urged upon us, that to hold that the National Express Company was embraced by the 93d section of the assessment act, would impute to the Legislature a singular inconstancy of purpose, since it had only two months before granted a charter to that company, in which no personal liability was imposed on the stockholders, amending a former charter, by which such a liability was imposed. And it was contended that no good reason can be assigned why such a discrimination should have been made between the stockholders of a domestic express company and those of other domestic corporations. It is enough to say, in reply to these suggestions, that such was the pleasure of the. Legislature. Stet pro ratione voluntas. At most, these suggestions could only weigh in turning the scale, if the intention was doubtful. 299But I do not see the force of either suggestion. The act incorporating the National Express Company was passed on the 12th December, just one week after the commencement of the session, and no doubt long before the assessment bill had been considered, or even prepared. The policy of holding the stockholders of such companies personally liable for the taxes imposed on them, had, as we were told in the argument, prevailed under an act passed by the Legislature which sat in Richmond in 1863, and which continued unrepealed to the end of the war; and the Legislature reserved the right to alter the charter at pleasure. When it came to pass the assessment act, it applied to this express company, and to all others, the policy that had previously prevailed. There was one obvious reason for providing a special security for the taxes of such companies. They do their business by means of railroads and steamboats belonging to others, having very little visible property of their own. The expediency of such. a provision seems to be illustrated by the present case. It was further contended that the imposition of such a personal liability on the stockholders, when the legal effect of the charter was to exempt them from any personal liability for debts of the company, was a violation of the contract between the stockholders and the State. By the last clause of the charter, it was made subject to modification or repeal, at the pleasure of the General Assembly. Sess. Acts 1865-6, p. 381. The stockholders, by accepting the charter, assented to that reservation as a constituent part of their contract. Crease v. Babcock, 23 Pick. R. 334; Durfee v. Old Colony and Fall River R. R. Co., 5 Allen’s R. 230. And it has been expressly held, that the Legislature may, by virtue of such a reservation, provide by a subsequent statute, that stockholders shall be personally liable for all debts of the corporation 300incurred after its passage. Stanley v. Stanley, 26 Maine R. 191; Sherman v. Smith, 1 Black’s U. S. R., 587. Stockholders who become such, or continue to be such, after such a liability has been imposed, must be understood . . . . . as agreeing to incur it. In this case, the act imposing the personal liability was passed on the 15th day of February, 1866, and the first payment of taxes for which the plaintiff in error was held liable, became due on the 15th day.of March, 1866. In the case in 26 Maine, the objection was taken, as it was in this case, that the reserved power of amendment must be exercised by a special act for that purpose, and that the liability of the stockholders could not be altered by a general law; but it did not prevail. In the case in 1 Black, the personal liability was imposed by the constitution of the State, and by a general law applicable to all banks. I do not think that the provision in question is obnoxious to the objection, that it virtually amends the act incorporating the National Express Company, and violates the provision on the subject of amendments contained in section 16, article IY, of the constitution. That section is as follows: “ No law shall embrace more than one object, which shall be expressed in its title; nor shall any law be revived or amended by reference to its title; but the act revived or the section amended shall be re-enacted and published at length.” In this case, no section or provision of the act of incorporation was amended. A new provision was made, imposing a liability, as to which that act. was silent. The new provision operated to overrule the legal effect of the former law, but it changed none of its terms; it did not “amend” it in the sense of this provision of the constitution. A subsequent statute may be inconsistent with part of a former statute, and so operate as a repeal of that part by implication; or it may not be wholly inconsistent with any part of the former law, so as 301to repeal it, but it may operate to modify tbe construction and effect of the former law. In all such cases, the subsequent law has the effect of an amendment of the former law, but such cases are not affected by this provision of the constitution. It was contended, that the personal liability attached to such only as were stockholders at the time the liability of the company .was incurred; and that there is no evidence to show that the plaintiff in error was a stockholder when the taxes for which he was held liable were incurred, or when they became payable. And it was insisted, that for this defect of proof, there should have been a final judgment for the defendant, on the authority of Webb v. McNeill, 3 Munf. 184 ; Brown v. Ferguson, 4 Leigh 37; and Watson v. Robertson, Ib. 236. The ninety-third section does not define what stockholders are to be held liable. On the one hand it may be said, that the effect of the law is to treat the members of the company, pro hac vice, as partners, so that only those should be held liable who .were stockholders when the taxes were incurred or became payable. On the other hand, it may be said, that such a construction would lead to great inconvenience and injustice, by holding a stockholder responsible after he has parted with his stock, and consequently with all power to have the debts paid or to protect himself by his influence in the management of the company; that purchasers of stock should be held to take it cum onere, and that the language of the statute is satisfied by holding those liable who are stockholders when the proceedings are commenced. Such provisions have given rise to much conflict of opinion in other States. Angelí & Ames on Corp. sec. 616, and cases cited. It is not necessary, however, to decide in this case what particular class of stockholders are liable under the act in question. The letter of the plaintiff in error admitted 302that he was a stockholder, and alleged that he had paid all the requisitions that had been made upon him, so that he had probably been such for a considerable period. When he became a stockholder, and when he ceased to be such, were matters which lay peculiarly within his own knowledge, as to which the means of proof were open to him, while they were not equally open to the Commonwealth. If the plaintiff intended to dispute his liability for any part of the taxes, on the ground that he was not a stockholder at the time they were incurred or became payable, he ought to have proved that fact. Having failed to do so, we are authorized to hold that he was a stockholder throughout the whole period for which the taxes were due. It was also contended that the proof of the Commonmonwealth was defective, because it did not show that the taxes demanded of the plaintiff in error had not been paid by the Company. Authorities were cited to show, that where a duty is enjoined under a penalty, it will be presumed, in the absence of all evidence, that it has been performed, and that a party who claims a right founded upon an omission to perform such duty, must overcome this legal presumption by proving that the duty has not been performed, although this involves the proof of a negative. The doctrine and authorities on this subject may be found in 1 Starkie Evid. 588-590, ed. of 1860. This objection' proceeds upon an assumption that the ninety-third' section does not make the stockholders liable primarily and equally with the Company for the payment of the taxes due-from the Company. If it does make them so liable, it puts them on the footing of debtors, ‘and not of mere guarantors, and it was only necessary for the Commonwealth, in this proceeding, to prove the amount of tax with which the Company was chargeable. For that proof, without more, established a liability on the plaintiff in *303error as a stockholder for the payment of that amount, and it was incumbent on him to discharge himself from that liability by proof. 1 Starkie Evid. 589. The ninety-third section does not, in terms, declare whether the stockholders are to be liable primarily and equally with the Company, or whether their liability is to be merely secondary. I am inclined to think that it was the intention of the Legislature to make them liable primarily and equally with the Company, and my brethren entertain no doubt upon this point. Harger v. McCullough, 2 Denio R. 119. It is not important, however, to decide this question. For we are all of opinion that it may fairly be inferred from the evidence of the witness Poitiaux, that the taxes had not been paid by the Company. There was, therefore, no such defect of proof as the argument I have been considering assumes. I think that the judgment is right, and ought to be affirmed. The other judges concurred in the opinion of Joynes, J. Judgment aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481694/	Joynes, J. Upon the face of the contract of September 1, 1864, there is no ambiguity. It recites that there are in existence two leases, which will expire on the 31st day of December, 1864—one dated November 11, 1854, the other dated April 1, 1861—and provides for a renewal of these leases for a term of five years, upon certain specified terms. But when we come to apply this contract to the subject matter, it appears that on the 20th November, 1861, a paper was executed containing a lease of the Swann pit until the 31st day of December, 1864, which paper refers to the lease of April 1, 1861, and describes itself as “ an addition and supplement ” to the lease of April 1, 1861; and declares that it “ shall be taken and considered as a part thereof.” A question then arises, whether the parties intended, by the contract of September 1,1864, to renew the lease of April 1, 1861, as it originally stood, so as to exclude the Swann pit, or to renew that lease along with the “addition and supplement” of November 20, 1861, “as a part thereof,” so as to embrace the Swann pit. This presented a case of latent ambiguity, for the removal of which it was competent to show by parol evidence, what was the actual intention of the parties. The lease of November 20, 1861, was called part of that of April, 1881, so as to subject it, without the necessity of repetition, to the same conditions; but it was still actually distinct from it, inasmuch as it related to different property, was made at a different time, reserved a distinct rent, and was, in some respects, subject to different conditions. The only parol evidence in this case was the deposition of Morrissett, the lessor. He testified that the appellants expended a considerable sum in cleaning out and drifting the Swann pit, though they raised no coal from it; that they tried their best to raise coal from that pit, but failed, “ because the coal was not there to raise.” He further said 310that he understood that the purpose of the appellants was to keep other persons from renting and working the Swann pit. Though not so stated in terms, this witnéss seems to have had reference to what was done by the appellants during the original term, and to the motives which induced them to obtain the original lease of the Swann pit. It cannot be supposed that they would allow the whole term of the original lease to expire without ascertaining whether or not coal could be found in that pit; and after ascertaining that no coal was there, they would have had no motive to keep other persons from renting and working it. This evidence, given by the lessor himself, affords strong ground to believe that the parties did not intend to embrace the Swann pit in the contract of September 1, 1864. The appellants had no motive to renew the lease of that pit; the former lease had been a dead loss to them of the rent and of the money expended in cleaning out and drifting the pit. A renewal of the lease must have entailed a like loss; and these facts were well known to the lessor. The appellants excepted to the report of the Commissioner charging them with rent of the Swann pit under the contract of renewal, and supported the exception by an affidavit. This affidavit stated, among other things set forth by the appellants in a petition, that the appellants “ never intended to renew the lease of that pit, and never imagined that they had done so; that in fact, long before the first lease expired, they withdrew their machinery, abandoned the possession of the pit, and never afterwards interfered with it in any manner whatever; and though they remained lessees until the first lease expired, and liable, as such, for the rent, yet after the expiration of that lease, they never asserted or claimed any title or interest in the Swann pit; never exercised any control over it, or had any 311sort of possession of it; neither were they aware, until the report of Commissioner Evans was made, that any person regarded them as tenants of the Swann pit, or responsible for rent in any way or to any extent. And all these allegations they are prepared to sustain by proofs, if the opportunity be afforded them to do so.” The appellants, in their petition, asked that the report of the Commissioner might be corrected by excluding the rent charged for the Swann pit, and that, if necessary, the report might' be recommitted for that purpose, with leave to the petitioners to adduce proof of the allegations made in their petition. The Circuit Court overruled the exception and confirmed the report, being “ of opinion that, according to the true intent of the contracting parties, the lease of the Swann pit was incorporated with and made a part of the original lease of April 1, 1861, and that the whole lease was renewed, including the Swann pit, as part of the demised premises, by the lease of September 1, 1864.” It would seem from this, that the court decided the case upon the construction of the several leases, and without reference to the parol evidence. For the reasons already given, I think the case must be decided upon the parol evidence, and that it is at least doubtful, from the evidence in the record, whether the parties' did intend to embrace the Swann pit in the contract of renewal. But it is evident that the parties did not go fully into the parol evidence bearing on this question. It is alleged by the appellants, in their petition, that they did not do so themselves, and they cannot complain if an opportunity is given to the other parties to adduce further evidence. I am, therefore, of opinion that the Circuit Court, instead of overruling the exception of the appellants, should have recommitted the report, with instructions to the Commissioner to enquire whether it was the actual intention of the parties to embrace or to exclude the Swann *312pit in the renewed lease, and with leave to all parties to take further evidence on that subject. I think the decree should be reversed. The other judges concurred in the opinion of Joynes, J. Degree appirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481695/	MoNCURE, P. delivered the opinion of the court : This is a supersedeas to a judgment of the District Court holden at Fredericksburg, reversing a judgment of the Circuit Court of Fauquier quashing a forthcoming bond and the execution under which it was given, upon the ground that the execution was issued contrary to the first section of the act commonly called the stay law, passed March 2, 1866, entitled “ an act to stay the collection of debts for a limited period.” Acts 1865-6, p. "180. The first section enacts, that no execution, &c., shall be issued, except in the cases thereinafter provided for, until the 1st day of January, 1868. The second section declares, that the foregoing section shall not apply to any case in which the debt or liability sought to be enforced was contracted or incurred since the 2d day of April, 1865, &c. The third section provides, that “ no security or undertaking of any sort, the consideration of which is a debt contracted or liability incurred prior to the second day of April, 1865, shall, though executed or assumed after that day, be considered as a debt contracted, or liability incurred, after that day, within the meaning of this act. And when a part of the consideration of any security or undertaking of any sort is a debt contracted, or a liability incurred, prior to the 2d day of April, 1865, such security or undertaking, though executed or assumed on or after that day, shall, as to so much of the money due thereon, be considered as a debt contracted or liability incurred before that day, within the meaning of this act.” The only question we are called upon to decide in this case is, whether it comes within the true intent and meaning of the said third section? 3STo question is raised as'to the constitutionality of the stay law. On the contrary, the defendant in error, by his counsel, requested that no such question should be decided in the case. We will, therefore, proceed to consider and dispose of the case without reference to that question. 315The facts of the case are set out in a bill of exceptions taken by the defendant in error Rixey to the judgment of the Circuit Court quashing the execution and forthcoming bond as aforesaid. Those facts are substantially as folio W3: That in the year 1864 an agreement was made between the plaintiff in error C. H. Utterbach and one Silas H. Turner that the said Turner should purchase tobacco, for which said Utterbach was to furnish the money, and the profits arising therefrom was to be divided between them. Thereafter Turner purchased from Rixey, without communicating to him his arrangement with Utterbach, a lot of tobacco which went into the hands of Utterbach. Turner having paid to Rixey all that was due him on account of said tobacco except the sum of $2,700, “which was payable in Southern State funds (bankable)and being anxious to pay the same, procured from said Utterbach an order drawn by him in April, 1864, on Delaplane, of Richmond, payable to Turner, for $2,700 “ in Southern State funds (bankable)which order he placed in the hands of Rixey, who was going to Richmond, to collect and apply the proceeds, if collected, to the debt of Turner to Rixey. The order was protested by Delaplane; and thereupon Rixey offered to re-deliver the same to Turner; but at the request of Turner, Rixey retained possesssion of the order as collateral security for the amount due upon the purchase of tobacco. Rixey was not aware of Utterbach’s transactions with Turner,'further than the information afforded by the order on Delaplane, and had no communication with Utterbach until about the 20th of October, 1865, when he was sought by Utterbach, who who proposed to settle with him the order on Delaplane by paying a smaller sum in United States currency. Just before this, Turner had offered to pay Rixey his said debt in United States currency at the rate of twenty-two per 316cent., which offer.was declined. Utterbaeh, in his said interview, offered to pay him twenty-three per cent, in such currency, which was supposed to be less than its mar- ^ value ; which offer Rixey accepted, in consideration of the payment to be then received, and which was agreed to be taken, and was taken, in the form of a note drawn by said Utterbaeh, dated October 20, 1865, for six hundred and seventy-six dollars and eighty-nine cents, with interest from date, payable sixty days after date to said Rixey or order, negotiable and payable at the First National Bank at Alexannria, Virginia, and endorsed by Charles Bragg and R. E. Utterbaeh. The drawer of said negotiable note, the said C. H. Utterbaeh, assured the said Rixey and Charles Bragg, one of the endorsers, that it would certainly be paid at maturity, and the said note would not have been accepted but for that assurance. The said Mixey, upon the giving of said negotiable note, and in consideration thereof, thereupon released and discharged the said Turner from all liability to him on account of the purchase of said tobacco, and delivered up the order on Melaplane to said Utterbaeh. The said negotiable note was not paid at maturity, though deposited at the said bank for collection, but was duly protested for non-payment, and due notice of such non-payment and protest was given to the drawer and endorsers.' After the protest of the note, and while it was in the hands of a third party, to whom Rixey had delivered it, Utterbaeh the drawer repeatedly promised in writing to pay it, his last promise in writing to pay it being on the 4th to pay it on the 6th day of August, 1866. The judgment on which the execution was issued, which was quashed in this case, was obtained on the said negotiable note by Rixey the payee, against Utterbaeh the drawer thereof. The first section of the act before referred to, standing alone, clearly embraces this case. The second as clearly 317excepts it from the operation of the first; this being a case in which the debt or liability sought to be enforced was contracted or incurred since the 2d day of April, 1865, and the only question is, whether the third section takes the case out of the operation of the second, and restores it to the operation of the first; that is, whether the negotiable note dated October 20, 1865, on wrhich the judgment was obtained, which was the foundation of the execution and forthcoming bond that were quashed, is a security or undertaking, the consideration of which was a debt contracted or liability incurred prior to the second day of April, 1885, within the meaning of the said third section ? This section is certainly very broad in its terms: “No security or undertaking of any sort, the consideration of which is a debt contracted,” &c.; though not broader than the second section, which declares that “the foregoing section (that is the first) shall not apply to any ease in which the debt or liability sought to be enforced was contracted,” &c. But surely it was not designed by the Legislature to include in the operation of the third section every security and undertaking made since the 2d day of April, 1865, founded in any manner or to any extent whatever, directly or indirectly, on the consideration arising from a debt contracted or a liability incurred prior to that day. Surely the Legislature did not intend to attach to all debts contracted before that day such an indelible stain as that they could not, by any combination with other elements, be made a sufficient consideration for a debt contracted after that day to bring it within the operation of the second section of the act. Then where is the line to be drawn between securities and undertakings executed or assumed after the 2d day of April, 1865, in consequence of a debt contracted or liability incurred prior to that day, which are within the saving of the second section, and such 318securities and undertakings which are not within the saving of that section ? Without undertaking to draw the precise line so as to ascertain what cases lie on one side and what on the other side of it, we think we may safely say, that wherever the creditor gives up a substantial part of the old debt, or the liability of a person bound to him for its payment, in consideration of the new security for the payment of the debt or any part of it, such new security comes within the saving of the second section, and may be enforced according to its terms, notwithstanding the stay law. In this case, it cannot be said that the consideration of the new security is the old debt within the meaning of the third section. “The consideration,” within that meaning, is where the old debt forms the whole consideration of the new security, and does not embrace a consideration compounded of the old debt and other elements of value. Where the old debt is the sole consideration of the new security, it is regarded by the act as the same debt, although the security is changed; and that, too, although the creditor may have been benefited by the change, as where he gets additional security. But where a substantial part of the debt is given up, or the liability of some person bound for the old debt is released, in consideration of the new security, there has been such a novation of the debt as brings it within the saving of the second section. If this were not so, the stay law would deprive a debtor of the power of making any composition with his creditors for his relief from debt, or for the release of any of his sureties. A creditor being stayed by the law in the enforcement of his debt, might be willing to give up a part of it, and even give up the liability of a surety, provided he could get a new security of the debtor for the payment of a certain sum at a certain time. If the law denies to the debtor the right to give such a security which the cred319itor may enforce, does him an injury instead of a benefit. He may surely waive a benefit which the law intended to provide for him, especially if by so doing he can secure what he esteems to be a greater benefit. Whenever a creditor gives up a substantial part of the debt, or releases a person who may be bound for it, in consideration of a new security given for the payment of a certain sum at a certain time, it may fairly be inferred to be the intention of both parties that payment shall be made at that time, notwithstanding the stay law. There is nothing in the latter part of the third section which is inconsistent with this view. The meaning of that provision is, that where a security or undertaking is executed or assumed after the 2d day of April, 1865, for a sum of money composed, among other things, of a debt contracted or liability incurred prior to that day, such security or undertaking shall, as to so much of the money due thereon, be considered as a debt contracted or liability incurred before that day, within the meaning of the act. The several portions of the sum of money for whfch the security is executed or the undertaking assumed in that case being wholly independent of one another, no alteration is thereby effected in the nature of the former debt within the meaning of the act. But this is very different from a case in which a part of the former debt is given up or the liability of another person therefor is released in consideration of the new security. And now let us apply the principle which we have laid down to the facts of this case. About the 20th of October, 1865, Turner and Utterbach were indebted to Rixey in the value of $2,700 in “ Southern State funds (bankable)” as of the month of April, 1861, in the city of Richmond, that being the amount of the order which in the latter month and year was drawn by Utterbach on Delaplane in favor of Turner, and by him passed to Rixey, to 320collected and applied to a debt of the same amount ^en due to him by Utterbach and Turner, but which order was protested by Delaplane as aforesaid. Being so indebted, Turner offered to pay the debt to Rixey in United States currency at twenty-two per cent., which offer was declined. The fair inference from this statement is, that this offer was to make the payment in cash. So that Rixey might at that time have received payment of the debt of Turner in United States currency, at the rate of twenty-two per cent., but declined to do so, no doubt because he thought the rate was too low. Shortly thereafter, Utterbach sought an interview with Rixey, and “ offered to pay him twenty-three per cent, in such currency, which was supposed to be less than its market value; which offer the said Rixey accepted, in consideration of the payment to he then received, and which was agreed to be taken, and was taken, in the form of the negotiable note aforesaid, and which said negotiable note the said Utterbach assured the said Rixey and Charles Bragg0 one of the endorsers, would be certainly paid at maturity. Said note would not have been accepted but for said assurance. Said Rixey, upon the giving of said negotiable note, and in consideration thereof, thereupon released and discharged the said Turner from all liability to him on account of the purchase of said tobacco, and delivered up the said Delaplane’s order to said Utterbach.” Row here it appears that Rixey, on or about the 20th of October, 1865, might have received in cash the amount of his debt in United States currency at twenty-two per cent., but declined doing so; and at or about the same time, accepted an offer of twenty-three per cent. in such currency, which was supposed to he less than its market value. Supposed by whom ? The fair inference is, by both parties, or generally. There is nothing in the record to show what was the value of “ Southern State 321funds (bankable)” in April, 18C4, or even what was the precise nature of the funds referred to, though the presumption is they were Southern bank notes, receivable at bank in payments or on deposit. Nor can the court iudi1 J 1 J cially know what was the value of such funds. Less than the amount of the debt may have been offered and accepted in satisfaction thereof, in consideration of its immediate payment, notwithstanding the stay law enacted by the Legislature at Alexandria on the 23d of January, 1865—• Acts of Assembly, p. 7, ch. 7—which was then in force; “ which offer the said Rixey accepted,” as the bill of exception states, “in consideration of the payment to be then received.” So that the payment was considered in effect as a cash payment. “And which,” as the bill of exceptions proceeds to state, “was agreed to be taken (and was taken) in the form of the negotiable note aforesaid, and which said negotiable note the said Utterbach assured the said Rixey and Charles Bragg, one of the endorsers, would be certainly paid at maturity.” The transaction, then, was the same in effect as if the money had been actually paid to Rixey, and by him immediately loaned to Utterbach upon his negotiable note at sixty days, endorsed by Bragg, which Utterbach assured Rixey and Bragg would certainly be paid at maturity. It is fair to presume from the evidence, that Rixey did not get a cent more by taking the note than he would have accepted in cash. The note was, in effect, a new transaction and a new debt, though created in consequence of the old one. But something of still more importance yet remains to be stated to give this character to the note. Not only is it stated in the bill of exceptions that the “note would not have been accepted but for said assurance,” but it is further stated, “that said Rixey, upon the giving of said negotiable note, and in consideration thereof, thereupon released and discharged the said Turner 322from all liability to bim on account of tbe purchase of said tobacco, and delivered up the said Delaplane order to said Utterbach.” In other words, Rixey, in consideration of the negotiable note, and the assurance which was . „ . . . given oi its certain payment at maturity, released and discharged his original debtor, who had just before offered to pay him in cash only one per cent, less of the original debt than the amount of the said note, and delivered up the order which he had been holding as collateral security, and which operated as an equitable assignment of so much of what might have been due, if anything, by Delaplane to Utterbach. Upon the principle before laid down, the case clearly comes within the operation of the second and not of the third section of the act of March 2, 18#6, aforesaid. We are, therefore, of opinion to affirm the judgment of the District Court. Judgment oe the District Court oe Appeals aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481696/	Rives, J. There seems to be some uncertainty and ’ . . imperfection in the record as to the state of pleadings in this case. The first entry of 21st November, 18G6, is, “ that the defendants demurred generally to the plaintiff’s declaration; and the plaintiff joined in said demurrers.” If this stood alone, there would appear to have been only a general demurrer to the whole declaration; and that the plural “ demurrers” was used by mistake for the singular. But when we look further into the proceedings, we find that there has been some omission or inaccuracy which devolves upon us the duty of giving a consistent interpretation to the whole. I think the materials for doing “so will be found in the entry of May 15th, 1867, by which the pleadings were adjusted by the court. The statement is, “ that the defendants’ demurrer to the plaintiff’s declaration being argued, it seemed to the court that the second, third, fourth and fifth counts of the said declaration were sufficient in law for the plaintiff to have and maintain his action against the defendants; whereupon the court overruled the said demurrer as to said counts; and that the first count of said declaration and the matters therein contained were insufficient in law for the plaintiff to have and maintain his action on that count. It was therefore considered by the court that the demurrer to said first count be sustained; and no ground being assigned for the general demurrer to the declaration, the court overruled said demurrer.” This action of the court can only consist with the hypothesis of a demurrer to the whole declaration, and demurrers to the several counts thereof. The uncertainty, therefore, of the first entry is corrected by this latter one ; and when both are taken and construed together, we are warranted in viewing the case as if in 332addition to the demurrer to the whole declaration, the counts were severally demurred to, so as to give effect and meaning to the plural designation employed in said first entrif’ which would have been inapplicable if there had been a demurrer to the whole declaration alone. Hence, I infer from the whole record that the appellants are entitled to the benefit, if any, of their several objections to the counts of the declaration, as if the record had shown demurrers to them in terms. The first two grounds of demurrer may be considered together—the first alleging that the performance should have been alleged in the terms of the contract as set forth, namely, that the timber and not lumber was piled openly with sticks, &c.; and the second, that in the third, fourth and fifth counts the delivery was averred in the language of the contract as of “ lumber sawed from merchantable pine timber,” without the epithet used in the second count of “ merchantable.” It is obvious that these exceptions militate against each other. While the first complains of any averment save in' the literal terms of the contract, the second requires a departure from the words, and a construction of the contract in the meaning and interest of the defendants. This seems to me to involve a total misconception of the objects of pleading and the duty of the pleader. In the averment of performance or breach the plaintiff has a right to conform to the legal effect and substance of the instrument he declares upon; and necessarily takes the hazard of any departure therefrom. The demurrer raises the question and devolves upon the court the construction of the instrument of which profert is made. There can, of course, be no error in counting on the delivery of the lumber in the language of the contract; can there be any in substituting “ lumber” for “ timber ” in reference to the obligation to pile ? If the latter term is assumed to mean the unsawed log or beam, it would 333stultify the parties to the contract, as there is neither sense nor object in piling such; and the first rule of legal construction is reasonableness; but if the context plainly demonstrate the terms to be interchangeable in that application, there is still less semblance of propriety in the objection. These mere technicalities, therefore, were properly overruled. A third ground of demurrer is, that the breach should have been confined to the non-delivery of the note, and should not have embraced along with that the non-payment of the money, for which the note should have been given. The whole force of this objection is avoided by two considerations : First—Upon the hypothesis of the defendants, that the non-delivery of the note was the sole gravamen of the action, the averment of non-payment was surplusage; and, secondly, that an agreement to give a note to pay at a stipulated time created, by force of a necessary legal intendment, an obligation to pay at that time, if there were a failure to give the note. I do not, therefore, discern any defects in the counts in this particular. The fourth objection rests on the pretension, that the deduction of costs of transportation was a condition precedent to the action; but this is not so; it is a matter of plea or defence, or abatement of the plaintiff’s demand. The right of action was complete on delivery; and it was not incumbent on him to aver a set-off, to which the defendants in a certain event might be entitled; nor in this case could the payment of freight have been alleged, because the refusal to receive carried with it a denial of the freight. Fifthly, it is claimed that the fifth count is faulty, in averring a refusal to receive as a breach of this contract. An obligation to deliver, implies the correlative duty to receive; and the pleader was well justified to vary his alle334gations according to legal intendments, and to rely on this version of the contract. The sixth and last objection to the declaration is, that the demand of the negotiable note is laid on the same day that the delivery was averred, namely, on the 23d July ; whereas it is contended that the defendants had the whole of that day for the making of their note. The doctrine, thus invoked, doe3 not apply to this case. It is one of mutual contracts, contemporaneous in performance, and falling under the fifth rule laid down by Mr. Sergeant Williams, in his note to Pordage v. Cole, 1 Wms. Saund. R. 310. Such is the case of all sales. Delivery is predicated of payment; and payment, of delivery, leaving it uncertain which party is to do the first act. Here, upon the delivery or offer to deliver, the plaintiff was entitled at the same moment to the note of the defendants. It is not, therefore, a question at all analogous to the one made at the bar, whether, in the computation of time, a day was to be reckoned inclusively or exclusively ; the making of the note was contemporaneous in the understanding of the parties with the act of delivery; and both were properly laid on the same day. The delivery might have been refused without the note ; as well as the note refused without the delivery. I have thus reviewed all the grounds of demurrer, and given my reasons for approving the action of the court below in overruling them. This brings us to the substance and merits of this controversy. The questions arise upon the instructions refused, and the instruction given by the court. A comparison of the former with the latter, shows that there are but two enquiries submitted to us : first, as to the interpretation of the contract respecting the lumber to be delivered; and secondly, as to the proof of usage, or its admissibility in governing its fulfilment. I. In order to arrive at a just and reasonable interpre335tation of this contract, we must look at the situation and conduct of the parties, and the subject-matter of their contract. The plaintiff was the owner of certain lands, and proposed to sell all of the merchantable fine timber upon them ; the defendants were lumber-dealers in the city of Richmond, and agreed to buy this timber, to be sawed into lumber of dimensions to be ordered, under certain restrictions as to length and width, and as to time and mode of seasoning. There seems to have been no preliminary survey to inspect and ascertain the character of the growing timber, as would have been proper and necessary, if it had been the subject of the sale. But such was not the bargain; lumber was the object of the defendants, and the subject-matter of the contract. With the sale of the timber, the plaintiff coupled the further undertaking to have it sawed according to orders; and when dried in a particular mode, to deliver in the city of Richmond. What was the design of stipulating that the timber should be merchantable, if the same quality was not to attach to the lumber into which it was to be converted ? What is the meaning of merchantable timber, if it be not timber that will make merchantable lumber ? The application of this epithet to the timber, doubtless superseded with the contracting parties the propriety of its repetition in regard to the lumber, because it is not reasonable to suppose that the parties could have contemplated anything but merchantable lumber as the product of merchantable timber; or could have imagined any other test of merchantable timber except its capacity to make merchantable lumber. The ambiguity of this contract in this particular, is also removed by the dealings of the parties under it. The plaintiff caused the lumber, as delivered, to be measured, and certified by the measurer as merchantable. These certificates of measurement and quality were transmitted by the plaintiff, and recognized by him as due to the defend336ants. They may, therefore, he considered as his practical interpretation of his obligation for the lumber; and authoritatively explain whatever of ambiguity confuses the terms of the bargain. . It might seem that the language of the court’s instruction should not have misled the jury. They would have been well warranted in construing the instruction as requiring the lumber to be merchantable, inasmuch as it was required to be sawed from merchantable timber; but inasmuch as the court had refused the defendants’ instruction on this particular point, there was ground of misconception, and the language of the instruction was not precise and definite enough. I think, therefore, this instruction was,- under the circumstances, too restricted, and should in terms have required the lumber to be also merchantable. II. In regard to the second point of our enquiry—the control of usage over this contract—it is not clear what foundation was laid for the introduction of such proof, or to what precise matter it was addressed. The term “ merchantable ” is not one that the law can define; and the sense in which it was used must he left to the determination of the jury. For that purpose, they are to consider the circumstances under which the contract was entered into, the situations and business of the parties, and the usage of the lumber trade, that prevailed in the city of Richmond at the date of the contract, as the means of ascertaining the intentions of the parties. In the fulfilment of orders like those contemplated by the parties in this case, it must often happen that the dimensions of the lumber furnished, in length, width and thickness, do not precisely correspond with those specified in the orders. As a general pi’inciple, usage cannot he allowed to control the execution of the orders, or justify a departure 337from them; hut an exception may arise upon proofs— namely, if it should appear that there was an established usage, showing what should be deemed a substantial and sufficient compliance with such orders, it might be proved to ascertain the sense in which the orders were understood by the parties—whether they were to be presumed as contracting in reference to such usage, and whether an exact, mathematical compliance was intended; or if not, what approximation to it would satisfy the contract. For this purpose, too, the usage to be referred to, is that which prevailed in Richmond at the date of the contract, for that alone must be supposed to have been in the contemplation of the parties. I am, therefore, of opinion, the judgment of the court below should be reversed, and the case sent back for another trial, in conformity with the principles indicated. The other judges concurred in the opinion of Rives, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481697/	Moncure, P. stated the case, and then proceeded: I have been thus full in my statement of the testimony in the case in order that the questions arising in it may be the better understood, and I will now proceed to consider those questions, which are presented, as I have already said, by two bills of exceptions taken by the defendant to opinions given by the court during the progress of the trial. I will first notice the second bill of exceptions, which was taken to the opinion and action of the court in giving certain instructions of its own, instead of others asked for by the parties respectively. It will be unnecessary to take any notice of the instructions asked for by the plaintiff, as fie took no exception, and the case was decided in his favor; but I will notice in detail the instructions asked for by the defendant, and those which were given by the court. The instructions asked for by the defendant are four in number. The first asserts, that it was necessary to join Mrs. Williamson in the suit as a co-defendant with her husband. But it was certainly not necessary. The contract was made by the husband in his own name, though for the benefit of his wife. She, being a married woman, could not herself make a contract binding upon her at law, nor could she make such a contract through the agency of her husband or anybody else. He was put in possession of the land, and has ever since continued to hold it, and was the proper, and only proper, person to be made a defendant in the action. The second instruction asked for by the defendant is in these words: ie That notwithstanding the stipulation in the contract with regard to said Williamson’s obtaining, at the then next term'of the Circuit Court of Campbell or city of 490Lynchburg, a decree authorizing him to appropriate the-trust property of his wife, derived from Mrs. Tabb, to the payment of said purchase money for said land, it was competent for the vendor to waive a literal compliance with said stipulation; and such waiver, if made, left the contract to stand as though the stipulation had not been inserted; and further, that the acceptance of the sum of $275 on the 9th January, 1862, as shown by exhibit O D; the demand from time to time thereafter made of the said Williamson for the instalments of purchase money due up to the bringing of the plaintiff’s first chancery suit in August, 1862, as all detailed by the witness A. M. Trible Esq., if the jury believe his statements in relation thereto to be true; the bringing of the said suit by the plaintiff in August, 1862, claiming a specific performance of the contract, &c.; and his second suit for restraining waste in November, 1862; and the prosecution of both suits down to the present time; constituted a waiver of said stipulation, and was a continued assent and claim made by the plaintiff as vendor to hold the contract binding on the defendant as vendee and as a sale of the land; that under these circumstances, and while seeking to enforce the contract as a sale, the defendant, as trustee for his wife, was by its terms entitled to possession of the land, and the plaintiff has no right to disturb that possession by this proceeding.” This instruction asserts, in point of fact, that at the .time of the institution of the action, the defendant was in possession of the land in controversy by consent of the •plaintiff under an executory contract of sale between them, which was then in full force and operation; and affirms, in point of law, that under these circumstances, the defendant, as trustee for his wife, was entitled to possession of the land,'and the plaintiff has no right to disturb that possession by this proceeding. 491If the assertion of fact thus made had been true, the legal proposition thus affirmed as the consequence thereof would have been erroneous. A vendor of land, while the contract of sale remains executory, and before a deed is made to the purchaser, continues to be invested with the legal title, and (unless the provision in the Code ch. 135, § 20, applies to the case, as it does not to this), may recover possession by an action at law, at least after making a demand of the possession, even though the vendee may be entitled in equity to a specific execution of the contract, and to have the action at law in the meantime enjoined. If it be said that there can be no such recovery at law without a previous demand of possession, it is a sufficient answer to say, that the absence of such a demand is not embraced as a term in the legal proposition affirmed, though there is abundant evidence in the record proving, or strongly tending to prove, that such a demand was made. But the fact asserted as the foundation of this legal proposition is untrue. The fact asserted is, that a literal compliance with the stipulation in the contract in regard to said Williamson’s obtaining, at the then next term of the Circuit Court of Campbell or city of Lynchburg, a decree authorizing him to appropriate the trust property of his wife, derived from Mrs. Tabb, to the payment of said purchase money for said land, was waived by the plaintiff, which waiver left the contract to stand as though the stipulation had not been inserted. It affirms that it was competent for the vendor to make such a waiver, and that the acts detailed in the instruction constituted a waiver of said stipulation, and amounted to a continued assent and claim of the plaintiff as vendor to hold the contract binding on the defendant as vendee, and as a sale of the land. It is not pretended that there was any written waiver of 492the said stipulation, or any other waiver than what is imported by the acts detailed in the instruction. Even if there had been a parol agreement, however express, for such a waiver, it would have been of no effect at law, and could have been enforced in equity only on the ground of part performance. But do the acts detailed constitute such a waiver, and amount to a continued assent and claim of the plaintiff as vendor, to hold the contract binding on the defendant as vendee and as a sale of the land ? I think not. By the express terms of the contract, the sale was conditional only, the condition being that the defendant should obtain at the next term of the Circuit Court of Campbell county, or of the city of Lynchburg, which term's it seems were in May and June, 1860, a decree authorizing him so to change and invest the fund in his hands as trustee aforesaid, as to guaranty and carry into full and legal, effect the agreement on his part; and it was agreed between the parties, that should the defendant fail to obtain such a decree at the time aforesaid, then and in that event the defendant should occupy and use the property as tenant of the plaintiff, trustee as aforesaid, for the period of one year, from the 1st day of May, 1860, and the cash payment of $260 was to be retained as rent for that year. The defendant having failed to perform the condition, he became tenant of the plaintiff for a single year; at the expiration of which, to wit, on the 1st of May, 1861, the plaintiff was entitled to the possession of the land and to recover it in an action of unlawful detainer. Although the plaintiff was so entitled, .yet Mrs. Buckner, the beneficiary for life under the deed by which the land had been conveyed to him as trustee, was still anxious that the sale should be made, notwithstanding the breach of the condition by the defendant; and the latter was just as anxious to make the purchase. In consequence of this mutual 493anxiety, the defendant was permitted, for a while after the condition was broken by him, to retain possession of the land, and the negotiations between her and the defendant in regard to the payment of the deferred instalments of the purchase money, referred to in the deposition of her attorney Mr. Trible, and the other transactions mentioned in the instruction took place. While this mutual anxiety existed, to wit, on the 9th of January, 1862, the bonds for the sum of §275 referred to in the instruction were received by Mrs. Buckner from the defendant, and a receipt was accordingly given therefor. But it was plainly not intended by Mrs. Buckner, or her counsel Mr. Trible, by this transaction, or any other which the record discloses, to waive the forfeiture of the contract, even if she had had the power to do so—which she had not; the contract having been made by her trustee, who only had the power to sell the land. Mr. Trible, in his deposition, says: “ I told him (the defendant) repeatedly that the contract on his part had been forfeited, because he had failed to obtain a decree at the time specified in the contract, but at the same time urged him still to obtain the decree, and that I had no doubt Mrs. Buckner would be satisfied. Nothing having been done, however, I said to him, some time before the June term of the Circuit Court at Lynch-burg for 1862, that Mrs. Buckner would not wait any longer than that court for the decree to be obtained, and Williamson promised to see his attorney Mr. Mosby, and have the decree at that court, if possible.” It was not obtained at that court, and never has been obtained. It does not appear that after that time any application was ever made by Mrs. Buckner or her attorney to the defendant for any part of the purchase money. The two chancery suits brought by the plaintiff, one of them in August and the other in November, 1862, and referred to in the instruction, do not, either in themselves 494or in connection with the other matters referred to in the instruction, constitute any waiver of the stipulation aforesaid. The defendant having forfeited his contract by not obtaining a decree at the time specified, and having taken no step to obtain such a decree thereafter, though he continued to hold and enjoy the land, the plaintiff, to bring the matter to a close, filed the bill in August, 1862, which is called in the instruction a bill for specific performance. He was willing, it seems, even at that late period, to make the sale if the purchase money could be secured to him. But he wanted either the land or the money, or security for payment of the money, and he therefore prayed for alternative relief accordingly. It is manifest that the plaintiff did not intend, by the said bill or otherwise, to waive the benefit of any stipulation contained in the contract. It was expressly provided in the contract that it' was not to be binding on the plaintiff until the defendant obtained a decree as aforesaid, and the said bill charges, that the defendant has utterly failed to comply with any part of said contract, except the payment of the $>260, although the plaintiff complied with his part by putting the defendant in possession of the premises, but still holds possession of the same, refusing to comply with the terms of'the said contract, or restore the possession of the land to the plaintiif. ' And the bill further represents, that the defendant “is himself insolvent, and cannot make or secure said payments, and he is doubtful whether a court of equity would authorize the appropriation of the property which he holds in trust, or its hires and profits, to the purchase of the said tract of land.” The most that can be said is, that while the plaintiff had made but one contract with the defendant in regard to the sale of the said land, which had been forfeited as aforesaid, yet the plaintiff was willing, even down to the time of the filing of the said bill, to sell and convey the said land to the defend495ant at the price to be secured and paid as mentioned in the contract. But he knew that the defendant, being insolvent, was himself wholly unable to make or secure the payments, and he did not believe that a court of equity would then make such a decree as the contract required. The chief, if not the only, object of the suit, therefore, was to recover possession of the land. That the defendant himself so regarded the object of the suit is shown by the paper marked B 0, signed by him, and dated 17th October, 1862, in which he says : “A suit having been instituted by J. G. Paxton trustee, for the recovery of Oakland, the estate bought by me of said Paxton, I have to state, that I am prepared to pay,” &c. “ If this be not satisfactory to the parties, that is, to Mrs. B. E. M. Buckner, for whose benefit the sale was made, rather than a suit should be prosecuted for the recovery of the possession, I agree to surrender the possession of the said estate at the end of the present year.” Shortly after the date of that paper, Mrs. Buckner announced to the defendant her determination to take back the land, in accordance with the proposition contained in the said paper; but he then declined to give it up, saying that, by the terms of the original contract, he had the right at any time to pay the whole amount of the purchase money for the land, and that he had determined to do so. Yery soon after this conversation, the second suit in chancery referred to in the said instruction was instituted, being the suit to restrain waste. In the bill in that suit, the plaintiff refers to his former suit as having been brought to declare the contract void, and compel the restoration of the possession of said tract of land; states that the said paper marked B 0 was executed to avoid the further prosecution of that suit; charges that his said cestui que trust is unwilling to reinstate said contract in any form or shape; and claims the 496surrender of the land on the 1st of January, as stipulated in the said paper. It does not appear that any answers were ever filed, or anything else was ever done in these suits, except that Mr. Trible’s deposition seems to have been taken in one of them, and except that the first of them was dismissed on the day of the trial of this action, but before it commenced. It appears that always, since October, 1862, Mrs. Buckner has been unwilling that the land should be sold to the defendant, and has claimed to have it restored to her. In November of that year it was actually advertised in the newspapers, in the name ef the plaintiff as trustee, for sale at public auction in the city of Lynch-burg, on the 15th of December following; but being threatened with an injunction by the counsel of Mrs. Williamson, the trustee declined to make the sale, and after-wards, to wit, on the 2d of January, 1863, he instituted this action. I think the court properly refused to instruct the jury that the transactions detailed in the instruction “ constituted a waiver of said stipulation, and was a continued assent and claim made by the plaintiff as vendor, to hold the contract binding on the defendant as vendee, and as a sale of the land; that under these circumstances, and while seeking to enforce the contract as a sale, the defendant, as trustee for his wife, was by its term3 entitled to possession of the land, and the plaintiff has no right to disturb that possession by this proceeding.” The defendant’s third instruction is in effect the same with the sixth instruction given by the court. The fourth and last instruction asked for by him is in these words: “ That if the jury believe the contract A No. 1 was forfeited by the failure of said Williamson to comply literally with the stipulation as to obtaining the decree aforesaid, subjecting his wife’s trust estate to the 497payment of the purchase money of the land in eontrotroversy, and that such forfeiture was not waived by the plaintiff; then the plaintiff, by allowing him to hold the premises over after the 1st of May, 1861, and accepting rent from said Williamson therefor, constituted him (on the terms of stipulated rent from 1st May, 1860, to 1st May, 1861,) a tenant from year to year, commencing on the 1st May, 1861; and the defendant having held for the year commencing 1st May, 1861, and ending 1st May, 1862, and then again having held over from the 1st May, 1862, was entitled as such tenant to hold for the year following, to wit, till 1st May, 1863, and so from year to year until the tenancy should be ended by notice given according to law; and that no such notice having been given, the defendant, at the bringing of this proceeding, (in January, 1863,) was lawfully in possession of the land, and the plaintiff not entitled to recover the possession thereby.” The substance of this instruction is, that if there was a forfeiture of the contract of sale, and the forfeiture was not waived, the plaintiff, by allowing the defendant to hold over after the 1st of May, 1861, and accepting rent from him, made him a tenant from year to year until the tenancy should be determined by a notice to quit; and no such notice having been given before the action was brought,'he was not entitled to recover. It is true that if a tenant for a fixed term holds over after the expiration of the term, with the consent of the lessor, he is regarded as a tenant from year to year on all the terms of the original lease which are applicable to such a tenancy. The law favors such a tenancy, and infers it from such a holding over, in the absence of evidence to the contrary. And if that principle applied to this case, as supposed by the instruction, the conclusion to which it comes would have been proper. 498But there are several defects in the premises, which prevent the application of that principle to the case, and the conclusion, therefore, falls w'ith its foundation. The instruction assumes as matter of fact, without referring the question to the jury, that the plaintiff allowed the defendant to hold the premises over after the 1st of May, 1861, and also accepted rent from him therefor. Now if the evidence on these questions of fact can he considered as conflicting—which is the most favorable view to be taken of it for the defendant—still the court would have erred in assuming the facts, and instead thereof ought to have based its instruction on the hypothesis of the truth of the facts, which would thus have been referred to the jury. It may be doubtful whether the evidence as to these facts is even conflicting, and whether it is not altogether in favor of the plaintiff. There is no evidence which expressly or directly shows, or tends to show, that the plaintiff did allow the defendant to hold over, much less accept rent of him after the 1st of May, 1861, unless it can be said that the bills in chancery filed by him as before mentioned can have that effect. But they rather repudiate than show a tenancy from year to year. They show a wrongful possession under a violated contract of sale, and their main object, or that of the first of them, is to recover possession of the land. As to what is called an acceptance of rent after the 1st of May, 1861, that was the act of Mrs. Buckner, and not of the plaintiff. She signed the receipt for it in her own name, not professing to act as his agent, and there is no proof that she was. It is argued that she was tenant for life of the trust subject, and had a right to receive the rent. She certainly had not a right to sell the trust subject, nor to interfere with the sale of it by the trustee, who had such right. When he, in the exercise of his undoubted power, made a contract of sale, and put the purchaser in possession under 499it, how could she, by any unauthorized dealing with the purchaser, entitle him to hold the land against his vendor after forfeiting his right to the possession by violating the contract of sale ? Can such a vendee deny the title of his vendor, and set up an adverse claim acquired while he was in possession under the vendor ? It is said that it may be inferred, from the relation of the parties and the facts of the case, that she was the vendor’s agent. Even if this were so, which is not admitted, still the inference could only be made as matter of fact, and not as matter of law. All the evidence on which this instruction is founded (with the exception, perhaps, of the bills aforesaid) is furnished by the testimony of Trible and the papers filed with his deposition, the execution of which was obtained by him; and he testifies, that he neyer had any authority from the plaintiff to modify or renew the contract, or to receive any part of the purchase money mentioned therein, and that all the interviews mentioned by him as having been had with the defendant were had by him as the agent of Mrs. Buchner, and sometimes without any previous conversation with her in regard to the subject matter thereof. But there is still another and greater defect in this instruction. It asserts that the plaintiff, by allowing the defendant to hold the premises over after the 1st of May, 1861, and accepting rent from him therefor, constituted him a tenant from year to year, and entitled him to continue to hold as such tenant until the tenancy was determined by a notice to quit; that is, by six months’ notice to quit. Now it is a mere presumption of law, in the absence of evidence to the contrary, that a tenant who holds over after the expiration of his term by permission of the lessor is a tenant from year to year. But this presumption may 500be repelled by evidence, which may show that the holding over, though by permission as aforesaid, is not as tenant from year to year, but in some other character, or for some other purpose. And such clearly is the case here. Palpably, it was never intended that the relation of landlord and tenant should exist between the plaintiff and defendant, except as a mere incident to the contract of conditional sale. The defendant was insolvent, and the plaintiff would never have sold or rented land to him, much less a trust estate, upon his own responsibility merely. Hence it was that, when he made with him the contract of conditional sale and put him in possession, he took care to require the payment down of so much of the purchase money as would be equivalent to one year’s rent, and to require the decree to be obtained within that year to sanction the purchase for the benefit of the cestui que trusts of the defendant, and to appropriate so much of the trust fund as was necessary for the security and payment of the deferred instalments of the purchase money. If such decree should not be obtained at the stipulated period, then the defendant was to be the tenant of the plaintiff for a single year for the rent already paid him. The defendant, having failed to comply with the express condition of the sale, forfeited the contract, and was bound by its terms to surrender possession at the end of the year of his tenancy. If, instead of doing so, he held over by sufferance of the plaintiff, who still hoped and urged that he would soon obtain the decree, can it be inferred therefrom that such holding over by the defendant was as tenant from year to year ? Both parties were then anxious that the-sale should be made. The plaintiff wished to sell, and the defendant wished to purchase. The defendant, no doubt bona fide, intended very soon to obtain the decree; and the plaintiff, trusting in him, suffered the land to remain in his posses501sion, to give him an opportunity in the meantime of obtaining the decree—the plaintiff knowing or believing that he could at any time resume the possession. This possession of the defendant having continued until January, 1862, bonds to the amount of $275 were then delivered by him to Mrs. Buckner, who gave her receipt therefor, stating that when collected they were “ to be applied to the payment of rent due by said Williamson for Oakland for the year ending 1st May, 1862, should the agreement for the sale of the said property, &c., not be carried out; if said agreement is executed and carried out, then to be held by me as so much money received in payment of said property.” Now if the plaintiff can be held responsible for that receipt, it cannot have the effect of making the defendant a tenant from year to year, but at most can only make him tenant for a year ending May 1st, 1862. The defendant having occupied the property by sufferance for the greater part of that year, it was just that he should pay a year’s rent for it, on condition that he was permitted to hold it till the end of the year. But it would be very unjust to give to this transaction the effect of making the defendant a tenant from year to year. Certainly no such effect was in the contemplation of the parties. The plaintiff never recognized his defendant as his tenant except upon the terms of paying down the rent; and then only for the term for which the rent was paid. The defendant was as much a wrong-doer in holding over after the 1st of May, 1862, as he was in holding over after the 1st of May, 1861; and to infer from such holding over a tenancy from year to year, would be to infer a right from a wrong. The foregoing reasons satisfy me that the court did not err in refusing to give the defendant’s fourth instruction. And now let us consider the instructions which were given by the court. 502The first three of these instructions are unexceptionable, and it is unnecessary to notice them any further. The fourth is in these words: “ That if, from the testimony, the jury should believe the contract for the sale became void by reason of the failure of the defendant to do what, according to the foregoing instructions he was required by said contract to do, and that therefore he became the tenant of the plaintiff, his tenancy expiring the 1st day of May, 1861; that the plaintiff had the right to maintain this action against the defendant at any time within three years after the said 1st of May, 1861, without giving notice to the defendant to quit, notwithstanding the said defendant continued in possession of the premises for more than one year, unless subsequently to said 1st of May, 1861, and before the bringing of this suit, the said tenancy became a tenancy from year to year; and that even if the payment of rent was made by the defendant to the plaintiff on the 9th of January, 1862, instead of to Mrs. Buckner, under the circumstances, according to the terms set forth in the receipt marked XX, signed by Mrs. Buckner, such payment of rent, under such circumstances, and according to such terms, was not such a payment and receipt of rent as to make the said tenancy a tenancy from year to year, so as to require notice from the plaintiff to the defendant to quit before he could maintain this action, and according to the legal import of said receipt said tenancy ceased the 1st day of May, 1862, and that after that time the plaintiff’s right of action accrued.” The proposition asserted by this instruction is, that the contract of sale and breach of the condition only made the defendant a tenant for a single year, expiring on the 1st of May, 1861, and his holding over thereafter did not of itself make him a tenant from year to year; that if the payment of the rent for the next year, made to Mrs. Buckner on the 9th of January, 1862, according to the receipt 503given by her on that day as aforesaid, can be considered as a payment'to the plaintiff, it only made the defendant a tenant for another single year, ending on the 1st of May, 1862, and his holding over thereafter did not of itself make him a tenant from year to year, so as to require notice from the plaintiff to the defendant to quit, and that after that time the plaintiff’s right of action accrued. I can see no error in this instruction, construing it as we ought and as the jury must have done, in connection with the context and the res gestee. The defence on which the defendant mainly relied to defeat the plaintiff’s action was, that he was a tenant from year to year when the action was brought, and had not received the six months’ previous notice to quit, to which such a tenant is entitled, and to that defence the fourth instruction asked for by him directly pointed. He made no point in his instructions, as his counsel did in arguing before this court, that before a vendor can maintain an action for possession against his vendee, the latter’s right of possession must in general be determined by a demand and refusal. He did maintain before the court and jury, as his second instruction shows, that, according to the facts of the case, the contract of sale was a subsisting, executory contract, under which he was entitled to possession; but that defence did not involve the question of notice to quit, or of demand and refusal. Therefore the court, refusing to give the instructions asked for by the parties, and undertaking to cover the same ground by its own instructions, propounded the fourth in the series as a substitute for the defendant’s fourth. Both have reference to a tenancy from year to year and the notice to quit, which is incident to such a tenancy, and neither has any reference to the relation of vendor and vendee, or the question as to the necessity of a demand and refusal, to determine the vendee’s right of possession. The defendant’s instruction maintains, that 504he is a tenant from year to year, and not having received any notice to quit, no right of action ever accrued to the plaintiff. The court’s instruction takes the ground, that the defendant was not a tenant from year to year, but only for a single year, ending either on the 1st of May, 1881, or 1st of May, 1862, and that, after that time, the plaintiff’s right of action accrued, without any notice to quit. But the plaintiff’s counsel in this court argues, that the court’s instruction, in effect, also decides that if the relation of the parties was that of vendor and vendee, instead of that of landlord and tenant, the plaintiff may maintain his action without any proof of a previous demand and refusal. As this question more directly arises under the seventh instruction given by the court, I will defer any other remarks upon it until I come to that subject. As I have .already said, I think there is no error in this instruction. The fifth and sixth instructions given are unexceptionable. The seventh and last is in these words: “ That the filing by the plaintiff of the bills Ho. 1 and Ho. 2, which were in evidence before the jury, do not affect the plaintiff’s right to recovery in this case.” These bills were not offered in evidence to show that the plaintiff was prosecuting two remedies at the same time for the same cause of suit, the one in equity and the other at law, and therefore that the remedy last commenced, to wit, the action at law, cannot be maintained. Such a defence could only have been made, in the action at law, by a plea in abatement, if at all; and there was no such plea. Besides, the first bill was dismissed before the trial was commenced, which would have rendered such a defence unavailable, if it would otherwise have been available, under the general issue. But it seems that such a defence could not have been made at all at law, even if the causes of suit had been the same, and the suit in equity had been 505pending at the time of trial; and that the proper mode of making the objection would have been by a rule in the chancery suit to put the plaintiff to his election between the two suits. The object of the defendant in offering these bills in evidence was to show, that at the time the action was brought he was lawfully in possession of the land in controversy as vendee of the plaintiff, who was then prosecuting a suit in chancery for the specific execution of the contract of sale. And the defendant contended, that being thus lawfully in possession, there could be no recovery against him in this action, which is founded on the right of the plaintiff to such possession, and that before such an action can be maintained against him, his right of possession, or rather his lawful possession, must be determined by a demand and refusal or otherwise. The authorities cited by the learned counsel for the plaintiff in error (defendant in the court below) seem fully to sustain his legal proposition, that one who is put in possession upon an agreement for the purchase of land can not be ousted by ejectment before his lawful possession is determined by demand of possession or otherwise. Right v. Beard, 13 East’s R. 210; Doe v. Jackson, 1 Barn. & Cres. 448, 8 Eng. C. L. R. 126. The action of unlawful detainer stands on the same footing in this respect with the action of ejectment, and is alike founded on the plaintiff’s right of possession at the time of the institution of the action, except that where the plaintiff was turned, out of possession by the forcible or unlawful entry of the defendant, he may regain the possession by an action for the forcible or unlawful entry without regard to the question of title or right of possession. Code 608, ch. 184. But the record is full of evidence to show, and especially do the bills show, that when the action was brought the defendant was wrongfully in possession of the land, 506and had been for a long time previously thereto, and that the plaintiff was then entitled to the possession. They show, that if any demand and refusal were necessary to determine any right of possession of the defendant, there liad been such demand and refusal. The bills themselves were such a demand, and the failure of the defendant to comply with this demand was such a refusal. The fact is, the defendant never had any right of possession, except for a single year, under the contract of sale, or for the next year under the arrangement made with Mrs. Buckner by the assignment of bonds in January, 1862, if the plaintiff can be considered as bound by that arrangement. The utmost effect which that arrangement could have had was, to set up by parol the contract of sale for another year upon the payment or security of what was equivalent to a fair rent for that year. And when the condition of this parol arrangement was broken by a failure of the defendant to obtain a decree within the year, and when that year was ended, the defendant had no longer any right, or semblance of right, to the possession of the land, and the plaintiff, without any previous demand or refusal, had a right of action to recover such possession. There is no evidence in the record tending to show that, after the arrangement aforesaid in January, 1862, there was ever any contract, in writing or by parol, or any understanding or transaction, between the plaintiff and defendant, or Mrs. Buckner and the defendant, which could give to the defendant any right, or color of right, to the possession of the land after the expiration of the tenancy for the second year as aforesaid. That the plaintiff did not bring his action immediately thereafter, nor until the January following, and that the defendant in the meantime actually occupied the land against the will or by the mere sufferance of the plaintiff, can make no difference. A wrong, however long continued, can never mature into a right, 507except under the statute of limitations, or the presumptions .arising from lapse of time, which do not apply to this case. In this state of things these bills are filed, which, so far from admitting any right of possession in the defendant, show that he is wrongfully in possession, and seek to recover it of him. The first bill showed that he wrongfully withheld the land, and the second showed that he was committing waste upon it. That the defendant himself regarded the first bill as having been instituted for the recovery of the land, I have already fully shown. The plaintiff, being wearied out with the matter, filed his bill to have it ended. He was willing, it seems, even then to receive the money, or security for it, but did not believe it would or could be paid or secured, and therefore demanded the land. It does not appear that the defendant, though duly served with process to answer this bill, took any notice of it. And at all events, it cannot amount to any admission of his right to the possession of the land. The second bill expressly declares, that the plaintiff “ is unwilling tp reinstate said contract in any form or shape, but claims the surrender of the land on the 1st of January” following, which was before the institution of the action. I am, therefore, of opinion, that the court did not err in instructing the jury that the filing of 'these bills “ does not affect the plaintiff’s right to recover in this case.” The only remaining question in the case arises on the first bill of exceptions, and is as to the admissibility of the receipt therein mentioned; being the receipt of A. Alexander “for account Mrs. K.. E. Buckner, November 9th, 1861,” for §34.77, eight months interest on §869.20, the second instalment of the purchase money of said land. There is no evidence whatever in the record to connect the plaintiff with this receipt, nor is there any evidence in the record that Mr. Alexander was authorized, even by *508Mrs. Buckner, to give it. But the question is of no consequence, and could not affect the result of the case. I am of opinion, that there is no error in the judgment, and that it be affirmed. Joynes, J. concurred in the opinion of Moncure,, P. Judgment aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481698/	Moncure, P. This case involves the construction of the will of the late Judge Thomson F. Mason, of Alexandria. He died on the 21st of December, 1838, and his will bears date on the 14th day of that month. He left a large estate, real and personal, which was somewhat .involved in debt, and a large family, consisting of a wife about thirty-seven years of age, and nine children, of whom five 551were daughters and four were sons, all of whom were infants, and sorue of whom were of very tender years. He had great confidence in the discretion, good management and affection of his wife, as his will plainly shows, and his confidence was not misplaced, as abundantly appears from the record. Making his will under these circumstances and with these surroundings, we would naturally expect him to give her an ample portion of his estate, at least during her life or widowhood, and to invest her with extensive power and discretion in appropriating the remainder of the estate to the benefit of their children. When we come to read the will, this natural expectation will not be disappointed. By the first clause, he subjects his estate to the payment of his debts. The rest of the will, down to the concluding clause, “ In witness whereof,” &c., being all of it material to the decision of the questions involved in this case, is as follows : “ Secondly. I devise all my estate, real and personal, in possession, remainder or reversion, or in expectancy, to my beloved wife, B. 0. M.,/for her maintenance and support, and for the maintenance and support of our children during her life and widowhood; jin the event of her marriage', she is to be restricted to her dower and distributary share, as in case of intestacy. “Thirdly. I authorize my wife, during her widowhood, by deed or will, to dispose of all or any part of my estate, to our children or to any of them, at such times and in s'uch proportions as she may think just and prudent; and if she marry or die without having exercised this power, then the estate remaining undisposed of shall be divided amongst my children, by assigning to the males double the amount of the shares assigned to the females: Provided, that if my wife should die after having exercised her powers of appointment in favor of one or more of our chil552dren, without having fully exercised it as to all my estate, the child or children so advanced shall, on the partition of my estate before directed, be held accountable for, and be charged with, the advancement received. The power of appointment given to my wife shall be construed to extend to the descendants of any of our children who may die before her; and in the division before directed, the descendants of any deceased child or children shall be considered as entitled to the same share the parent or parents, if living at the time of such division, would be entitled to. “ Fourthly. I authorize my wife to sell, dispose of and convey all or any part of my estate for the payment of my debts or the advancement of the interests of my family, and to make such investments of the money or property she may receive as she may think most advisable; such investments, however, to be in all respects subject to the provisions hereinbefore contained for the disposal of my estate. “ Fifth. I direct that no appraisement be made of my estate. “ Sixth, I constitute my beloved wife, Betsey 0. Mason, sole executrix of this my will and guardian of my children, and direct that no security shall be required of her in either capacity. “ For any aid or assistance which my wife may require in the management of my estate, I recommend her to my brother, Richard 0. Mason, and my most excellent friends, Benjamin King and Bernard ITooe; and if she shall find occasion for legal advice or information, I recommend her to consult my friends, Robert J. Taylor and Richard II. Henderson.” The first question involved in this ease arises under the second clause of the will. The widow, who never married after the death of her husband, applied the income and profits of the estate, so far as was necessary, not only to 553the maintenance and support of herself, hut also to the maintenance and support of all her children, so long as they remained with her and in her family respectively, without any charge for the same, and without any complaint whatever on the part of any of them. The female appellant, after her father’s death and until her marriage, a period of about nine years, lived with her mother, and was maintained and supported by her as aforesaid, and for some time after the marriage both of the appellants lived with the said mother, and were maintained and supported in the same way, and without any charge therefor. But the appellants having long since left the family and become foris-familiated, as it .is called, claim to be entitled to receive a portion of the income and profits of the estate for their maintenance and support since they left the family, and during the life or widowhood of her mother. In other words, they claim that the second clause of the will creates a trust for the maintenance and support of the widow and children of the testator during her life or widowhood, which trust they, the appellants, are entitled to enforce for their benefit in a court of equity. While, on the other hand, the widow claims that the said clause creates no trust which can be enforced in equity, but gives her the estate during her life or widowhood to do with as she pleases, though the nature of the gift, as expressed by the testator, was the maintenance and support, not only of herself, but also of their children. The question, therefore, is, which of these two conflicting constructions is the true one ? Does the second clause of the will create a trust for the maintenance and support of the children as well as the widow, which the appellants are entitled to have enforced in equity for their benefit, or does it give an an interest only to the widow, referring to the subject of maintenance and support merely as a motive for the gift ? I am of opinion that the latter is the true construction. 554An intention to give the whole estate to the wife during her life or widowhood, to do with the income and profits as she pleases, confiding in her that she would do what might be proper in regard to the maintenance and support of her children as well as herself, but not giving them any interest in the subject which they could enforce against her, is a reasonable intention, and such a one as might well have been entertained by the testator. There is no presumption, therefore, arising from considerations of hardship or injustice to the children, that such an intention did not exist. And whether it did or not, must be ascertained by reading the will in the 'light of surrounding circumstances. In the first place, let us examine the second clause by itself, without reference to the context and the surrounding circumstances. “I devise all my estate kc. to my beloved wife.” Here is an express devise, in the broadest possible terms, to his beloved wife only. The clause then immediately goes on to express the purpose and motive of the devise; “ for her maintenance and support, and for the maintenance and support of our children.” He thus says to his children: “ I have not forgotten you, or left you unprovided for. I have not given you any present interest in my estate, because I know not what will be the extent of your several wants; but I have left it all to your mother, to afford her ample means of supplying your wants, which her affection for you will prompt her to do, and which I confide in her doing.” But the gift of the whole estate to her is limited “ during her life or widowhood.” He knew that he could safely confide in her doing what was right in regard to their children so long as she might remain his widow, but apprehended that she might not have it in her power to do so if she married again. He knew that if he gave his estate to his wife during her life, and she should marry again, it would then become 555vested in her husband, and thus be placed beyond her power. Therefore, he limits the devise to her widowhood, and the clause concludes: “In the event of her marriage, she is to be restricted to her dower and distributary share, 0,s in case of intestacy.” Now here, it seems to me, is incontestible evidence that the testator intended to give his wife the entire income and profits of his estate, to do with as she pleased during her widowhood, although he believed that whatever surplus might remain after providing for her own maintenance and support would, as far as might be necessary or proper, be applied to the maintenance and support of their children. If he intended, as the appellants contend, to give the estate to his wife during her life or widowhood in trust for the maintenance and support of herself and their children, then in what proportion is the income of the trust subject to be apportioned among the beneficiaries ? It may be said, that they are all to be maintained and supported, and as unequal sums may be required for the maintenance and support of each, according to their several ages and necessities, the income would not be apportionable equally, but according to what was necessary for the maintenance and support of the parties respectively. This might be the case while the children were young, or remained together in the same family, although the apportionment, even to that extent, would be difiicult and liable to objection and complaint. But after the children grew up and separated from the family, supposing the trust still to continue as contended for, there would seem to be no good reason for applying any other rule of apportionment to the case than that of equality. The trust, supposing it to be a trust, being precisely for the same purpose, “ the maintenance and support ” of all the parties, wife and children, the share of each when they all became adult and separately settled in life, if not before, would be the same. Indeed, the cousnel for the 556appellants, while claiming for the female appellant full maintenance and support out of the estate during the life or widowhood of her mother, insists that, according to the true construction of .the will, her mother is entitled to no more than her maintenance and support out of the estate, however large may bo its annual incom e. According to that view, the surplus of the income, whatever it might be, if any, over and above the amount necessary to maintain and support the wife and children, would accumulate for the ultimate benefit of the children. Then, upon the construction contended for by the appellants, the wife would get during her life or widowhood only a share of the income of the estate, and if it were an equal share with each of her children, as there were nine children living at the testator’s death, he must have intended, according to that construction, to give her only one-tenth of the income of his estate during her life'or widowhood, instead of one-third of the real estate and slaves during her life, and one-third of his other personal estate absolutely, to which she was entitled by law. But surely he did not intend to do this, as is conclusively shown by the very terms of the clause in question. He certainly intended to give her more by his will than the law would have given her, for he says: “ In the event of her marriage, she is to be restricted to her dower and distributary share, as in case of intestacy. What, then, must he have intended to give her by his will? Clearly the whole income of his estate during her life or widowhood. How could he have intended to give her less ? And if less, how much ? Bid he intend to leave his nine children, all of them infants, and some of them of very tender years, unprovided for during that period ? Certainly not. He knew that they needed care, support and education, and he was not an unnatural father. But he thought the best mode of providing for them during that period was, to 557entrust them to her mother, and give her the whole income of his estate “for her maintenance and support, and for the maintenance and support” of their children. He could not foresee what or how much each one of them would need, and he did not wish to limit or restrict his wife in the disposition of the subject according to her will and pleasure and her sense of propriety; but only indicated in his will the motive of the gift, and what was expected of the donee in regard to their children. It is difficult, if not impossible, to believe that he could have intended to make his wife accountable to his children for shares of the income of the estate during her widowhood, and even to entitle them, after having been maintained, supported and educated out of it during their infancy, and grown up, left the maternal roof and settled separately in life, to require a settlement of an account of the income and payment to them of distributive shares of it. He could not have intended to expose her in her declining years to so much trouble and annoyance. Having been called away by death at a comparatively early age, and leaving behind him a wife and nine young children, he thought he could do no better than to leave his wife in his place, in regard to his estate and the maintenance and support of herself and children, during her life or widowhood. His conclusion in this respect was not unreasonable. But however unreasonable it may have been, if it was his intention, as I think it clearly was, it must be carried into effect. As was said by Judge Brooke, in his dissenting opinion in Harrisons v. Harrison’s adm’x, 2 Gratt. 16, which is as remarkable for its good sense as for its brevity: “ If a testator has complete dominion over his property, and can throw it into the sea if he so will, I can see no reason why he may not give it absolutely to his wife. That the testator so intended in this case, I think there can be no doubt, if language can express ideas. That he did not intend 558she should give it to a stranger, I admit. The answer to that suggestion is, that he did not believe she would give it to any but their children. Such was his confidence in her affection for them, that he intended to place her in the situation he himself occupied as to his property and children : to give her the control of both. The will is very short, and I think too plain for criticism. It may be an imprudent will; but we cannot make wills, but construe them according to the language in w’hich they are expressed. Qujus est dare ejus est disponere.” The appellant’s counsel relies upon the fourth clause of the will as tending to show that the testator intended, by the second clause, to create a trust for the benefit of his wife and children. And he argues, that the fourth clause authorizes his wife to sell any part of his estate for the maintenance and support of his family. So that, according to his view, not only the income of the estate under the second clause, but the estate itself under the fourth clause, is charged with the maintenance and support of the wife and children during her life or widowhood. Now I do not so read and understand the will. The fourth clause, in my view, was merely intended to authorize the wife to sell any part of the estate for the payment of the testator’s debts or the advancement of the interests of his family. But it was not intended that the proceeds of sale might be consumed in the use of-the family. On the contrary, the clause, after giving authority to make the sale, proceeds to direct an investment of the proceeds, thus: “ And to make such investments of the money or property she may receive as she may thi,nk most advisable, such investments, however, to be in all respects subject to the provisions herein before contained for the disposal of my estate.” I have thus far been considering the second clause by itself, referring only incidentally to other parts of the will, 559and I think it sufficiently indicates that it was not intended to create a trust for the benefit of the children, but only to make a provision for the wife during her widowhood, and to declare the motive which induced such a provision. It will be found that the rest of the will fully confirms this construction. By the third clause the testator gives to his wife extraordinary power and discretion in regard to his estate and his children, thus showing his unbounded confidence in her, so long at least as she might remain his widow. “ I authorize my wife during her widowhood, ly deed or will, to dispose of all or any part of my estate to our children, or to any of them, at such times and in such proportions as she may think just and prudentCan it be supposed that he would have given her this extraordinary and uncontrolled power and discretion in regard to the disposition of the capital of his estate, if he intended to impose any limit on her power and discretion in disposing of the income of his estate given to her during her widowhood ? The same may be said of the .power and discretion given her by the fourth clause of the will, already noticed—the power to sell the whole or any part of the estate, and invest the proceeds as she may think most advisable. The unbounded confidence of the testator in his wife is further shown by the fifth clause of his will, which directs that no appraisement he made of his estate; and by the sixth, which constitutes her sole executrix of his will and guardian of his children, and directs that no security shall be required of her in either capacity. For any aid or assistance she might require in the management of his estate, he recommends her to his brother Richard 0. Mason, and his most excellent friends Benjamin King and Bernard Hooe, and if she should find occasion for legal advice or information, he recommends her to consult his friends Robert J. Taylor and Richard H. Henderson. 560Thus stands the matter, looking to the second clause of the will and the context. Now if we look also at the surrounding circumstances, our construction will be still further confirmed. Those circumstances, or most of them, have already been incidentally referred to. They are, the extent and nature of the testator’s estate; the age of his wife; the confidence he reposed in her; and her worthiness of it in every respect; the number and ages of his children—nine in number—all of them infants, some of them of very tender years, and five of them daughters. He looked to her, as she says in her answer, “ for the devotion of her life to the service of their children.” Under these circumstances he made his will, and reading it by the light which they afford, can there be a remaining doubt in regard to its meaning ? I certainly have none. Being thus satisfied as to what was the true intention of the testator expressed in the second clause of his will, I am relieved from the necessity of reviewing the many cases which were cited in the argument, as they all concur in affirming or conceding this cardinal rule of construction, that ’the intention of the testator as expressed in his will, if it be lawful, must prevail; and that to ascertain that intention, if it be at all doubtful, we may look to the whole will, and the surrounding circumstances under which it was executed. If a case could be produced precisely, or substantially like the present in all respects, it would have more or less weight in the decision of this case, and might even amount to a binding authority. But as it is extremely rare to find two cases alike in all respects, little or no aid can be derived by a court in construing a will from prior decisions construing other wills. It is not enough that the same words in substance, or even literally, have been construed in other cases. It often happens that the same identical words require very different constructions in different cases, according to the context and 561the peculiar circumstances of each case. All the cases which have a material hearing on the subject now under consideration—I mean the English cases—including, I believe, all that were cited in the argument of this case, are collected and commented upon in the last London edition, published in 1861, of Mr. Jarman’s invaluable work on Wills, vol. 1, pp. 356-374. Of all the cases which I have seen, the one which s,eems to throw most light on this, and to set forth most clearly the principle which I think applies to this case and must govern its decision, is the case of Thorpe v. Owen, decided by that great Judge, Vice-Chancellor Wigram, and reported in 2 Hare, 24 Eng. Ch. R. 608. The case was twice argued before him, and he delivered two opinions in it; the second after long and anxious consideration, and with a view of putting an end to the controversy. In calling for a second argument, he said: “ My object is that my decision may be satisfactory to the parties, and that, so far as possible, they may be relieved from the necessity and expense of discussing this question elsewhere; ” that is, in an appellate court. His decision seems to have been satisfactory to the parties, as no appeal appears to have been taken from it. And I have seen no case in which it has been questioned, while I have seen many in which it has been referred to and relied upon. The counsel on both sides in this case cited and relied upon it, though, of course, for diiferent purposes; and neither of them doubted its soundness. The words of the will in that case were: “ I desire everything to remain in its present position during the lifetime of my wife for her use and benefit; and after her decease I devise,” &c. “ I giye the above devise to my wife, that she may support herself and her children according to her discretion, and for that purpose.” It was held that the widow took an absolute interest for life in the real and personal estate. Now I consider this decision important in the present case, 562not because of any substantial agreement in the words of the will in the two cases, for, as I have already said, that is a circumstance in itself not very material; but because of the importance of the principles and distinctions laid down by the Yiee-Chancellor, and of the pertinency of many of his remarks to this case. “ The cases,” he said, “ should be considered under two heads: first, those in which the court has read the will as giving an absolute interest to the legatees, and as expressing also the testator’s motive for the gift; and secondly, those cases in which the court has read the will as declaring a trust upon the fund, or part of the fund, in the hands of the legatee. A legacy to A, the better to enable him to pay his debts, expresses the motive for the testator’s bounty, but certainly creates no trust which the creditors of A could enforce in this court; and again, a legacy to A, the better to enable him to maintain, or educate and provide for his family, must, in the abstract, be subject to a like construction : it is a legacy to the individual, with the motive only pointed out. This is very clearly, and, in my opinion, very correctly laid down by the Yice-Chaneellor in the late case of Benson v. Whittam, (5 Sim. R. 22); and the cases of Andrews v. Partington, (2 Cox 223), Brown v. Casamajor, (4 Ves. Jr. R. 498), and Hammond v. Neame, (1 Swanst. R. 35), illustrate the same principle. At the same time, a legacy to a parent upon trust, to be by him applied, or in trust, for the maintenance and education of his children, will certainly give the children a right, in a court of equity, to enforce their natural claims against the parent in respect of the fund on which the trust is declared.” “It is, I am aware, difficult to reconcile all the decisions or cases of this nature; but although those decisions may not appear reconcilable with each other, I am satisfied that the learned judges by whom they have been pronounced did not mean to disregard the distinction 563I have noticed, or in any way to break in upon it. The difference has arisen in the different modes of applying admitted principles. In Raikes v. Ward, (1 Hare R. 445), and Crockett v. Crockett, (Id. 451), I thought, and still think, a trust was declared, as well as a motive expressed; and I am satisfied that neither Lord Cottenham, in Woods v. Woods, (1 Myl. & Cr. R. 401), nor Lord Langdale, in Wetherell v. Wilson, (1 Keen R. 80), intended to negative the distinction to which I have adverted.” The foregoing and other observations were made by the Vice-Chancellor in the first opinion delivered by him. In the second, he made the following: “ I am satisfied that, however long this case may be under consideration, there would still be some doubt upon it with reference to the authorities. I cannot, however, doubt the principle laid down by the Vice-Chancellor in Benson v. Whittam, (5 Sim. R. 22); it is plain to common sense that the law must be as it is there explained. If you give property to persons to accomplish an object, increasing their funds so that they might be the better able to do it—that is, in point of fact, a gift to them, and there is no trust which others can enforce. And I think those cases of Bushnell v. Parsons, (Prec. Chan. 218), Hammond v. Neame, (1 Swanst. R. 35), Bunell v. Bunell, (Amb. R. 660), Andrews v. Partington, (2 Cox 223), and others, are all cases in support of the same proposition, and recognizing the principle with great clearness. A great number of these cases might be cited, but I will not go through them; the principle cannot be at all doubted, although Judges may differ as to the mode of applying it. I think it equally clear, if property be given to a parent upon trust to maintain herself and her children, that although she takes a beneficial interest, and though to some extent there is an uncertainty as to the quantum she is bound to apply, it is impossible for me to hold that the cases do not 564decide that the court will find the means of measuring the extent of the children’s interest. The only question here is, under which of the two principles I am to say that this case falls. At the same time I agree with the argument, that if the expression that the gift is to support the children, extends to the support of the children throughout the whole of their lives, in the various situations that may arise, the impossibility, I may almost say, of measuring the gift to each child by any rule to be laid down by a court of justice, is—in a case where there is no trust excluding the mother from taking whatever she is not obliged to part with—a strong argument- against holding that the expression? which refer to the children were meapt to create a trust binding on her.” “ I considered this case very much in private before I called for the second argument, and the conclusion to which I have come is, that the words of this will import a gift to the mother for life, and that afterwards the personal estate is to go to the testator’s children, and the real estate to his heirs at law. The testator adds to the gift an explanation, which appears to me merely to express what actuated his mind in the gift. He trusts to the affection of the mother towards her children, and says : ‘ I have given to her this large provision, in order that she may be able to support her children during her life.’ The gift is to her, and the support is to be administered according to her discretion.” “ I confess I have the less regret in coming to this conclusion, because, so far as respects the maintenance of the children during their minority, there appears to be no practical reason for deciding the case one way rather than the other; all such children having, in fact, been maintained by the widow. With regard to the other. children, the difficulty of applying the fund in many cases which may arise, or be suggested, is such that I can hardly see any way of effecting it. The best legal conclusion, I think, is this: The 565testator has given the property to his wife- absolutely, during her life. In order that the children may not suppose that they had been overlooked during that time, the testator tells them his reason for giving the property to the mother. I think, therefore, that the construction of the will is, that the widow takes the property absolutely for her life.” Having quoted thus freely from the opinions of the Vice-Chancellor in the case just referred to, I will not prolong this opinion by reviewing other cases in detail, as I deem it wholly unnecessary to do so. The Vice-Chancellor said, as we have seen, that “ the cases should be considered under two heads: first, those in which the court has read the will as giving an absolute interest to the legatees, and as expressing also the testator’s motive for the gift; and secondly, those in which the court has read the will as declaring a trust upon the fund, or part of the fund, in the hands of the legatee.” Now I consider this case as plainly falling under the first head, and if it does, then there is an end of the question. Whether it does or not, depends upon the intention of the testator expressed by the words of his will read in the light of surrounding circumstances, all of which I have considered. The cases arising under the second head, that is, where a trust is declared, and which, in 1 Jarm. on Wills, supra, p. 368, are sub-divided into two heads: first, those in which the purpose is so peremptorily expressed as to constitute a perfect trust; and secondly, those in which the will leaves entirely in the discretion of the primary donee the quantum of benefit to be communicated to the other persons, provided that such discretion is honestly exercised, have no bearing upon the case in my view of it, and I therefore will not notice them. Many of the cases referred to in the argument fall under this head. Besides the English cases referred to, some of our own 566decisions were cited and relied on by tbe counsel on both sides, viz., the case of Harrisons v. Harrison's adm’x, 2 Gratt. 1, on the side of the appellant, and the cases of Wallace & wife v. Dold’s ex’ors, &c., 3 Leigh 258, and Stinson, ex’or, &c. v. Day & wife, 1 Rob. R. 435, on the side of the appellees. But it is unnecessary to notice these cases any further, as they are not in conflict with the foregoing opinion, and two of them at least strongly confirm it. The only other question involved in this case arises under the third clause of the will; and- that is, as to the interest of the children in the capital of the estate, and the nature and extent of the wife’s power of appointment over it. And first, as to the wife’s power of appointment over it. The words of the third clause are : “ I authorize my wife during her widowhood, by deed or will, to dispose of all or any part of my estate to our children, or to any of them, at such times and in such proportions as she may think just and prudent; and if she marry or die without having exercised this power, then the estate remaining undisposed of shall be divided amongst my children, by assigning to the males double the amount of the shares assigned to the females : Provided, that if my wife should die after having exercised her power of appointment in favor of one or more of our children, without having fully exercised it as to all my estate, the child or children so advanced shall, on the partition of my estate before directed, be held accountable for, and be charged with, the advancement received. The power of appointment given to my wife shall be construed to extend to the descendants of any of our children who may die before her, and in the division before directed, the descendants of any deceased child or children shall be considered as entitled to the same share the parent or parents, if living at the time of such division, would be entitled to.” 567I think there is no uncertainty or obscurity as to the intention of the testator in this clause, hut that it is as plainly expressed as language can well do it, notwithstanding the very ingenious argument made upon the subject by the learned counsel of the appellant. I think that the power of appointment given by the testator to his wife during her widowhood is subject only to’ this limitation as to the objects in whose favor it may be made; that it must be made in favor of one or more of the children of the testator, or of the descendants of any of them who may die before her, and that it extends over his whole estate and every part of it. She may appoint all or any part of the estate to all or any number of • such children and descendants, “ at such time and in such proportions as she may think just and prudent;” for so the will expressly declares. She may, therefore, if she shall think it “just and prudent” to do so, appoint all the estate to any number of such children and descendants, less than the whole, and even to any one of them. I think the words, “ as she may think just and prudent,” refer to the whole preceding part of the same sentence for their antecedent, and not to the immediately preceding words, “ at such times and in such proportions,” only. This was certainly very great power and wide discretion to give to the wife; but the testator had a right to give it, and I think plainly did so. If this be true, there is then an end of this matter, without any inquiry as to the reason for his doing so and the prudence of the act. That would have been an important inquiry if there had been any room for doubt as to his meaning. He no doubt believed that he could safely entrust his wife and the mother of his children with this power and discretion, and that she would exercise them faithfully and wisely. He declared in his will how he wished his estate divided in default of such appointment by his wife in whole or in part, but he did not know 568what might afterwards arise to make a different mode of division more just and prudent, and therefore he did not make that mode peremptory, but made it subject to the exercise of the power of appointment given to his wife as she might think to be just and prudent under all the circumstances. He did not intend to do injustice to any of his children. He did not intend to exclude any of them from a participation in his bounty. They were all equally near and dear to him, and so they were to their mother. He did not believe it possible that she would do injustice to any of them. At all events, he was willing to trust her, and preferred to run the risk of her possibly doing such injustice rather than prescribe a peremptory mode of division in the then state of his family. He could not know what changes would take place in their condition during the life of his wife, who has already survived him about thirty years. Some of his children might be so fortunate, in the course of events, as not to need any part of his estate, while others, less fortunate, might stand greatly in need of it; which seems actually to be the case. Men may well differ in opinion as to the prudence of conferring such a power under the circumstances, but certainly the doing so, if unreasonable at all, is not so unreasonable as to require us, if anything could require us, to wrest the words of the will from what we consider their plain and natural meaning. / The doctrine of illusory appointments does not apply to this case, but only to a case in which the appointment is to be made among persons of a certain class, so as to entitlejsach one of the class to a substantial portion of the subject./ And now as to the interest of the children in the capital of the estate. On this question I think there can be no doubt or difficulty. The estate is given to the wife during her life or widowhood, with remainder to the children, to be divided among them by assigning to the males 569double tbe amount of tbe shares assigned to the females, considering the descendants of any deceased child or children as entitled to the same share the parent or parents, if living at the time of such division, would be entitled to; but such remainder is subject to be divested by the exercise of the power of appointment given to the wife to the extent to which such power may be so exercised. In the event of only a partial exercise of the power, leaving a portion of the estate unappointed and subject to division, the parties who may have received advancements under such exercise of the power will not be entitled to participate in the division without accounting for their advancements respectively as of their value at the times they were received, in the manner in which advancements are accounted for under the statute of descents and distributions. (Code of 1860, ch. 123, § 15, p. 580.) But such parties respectively may elect not to participate in such division; but to retain and hold their advancements in full of their shares of the estate. I have now, I believe, considered and disposed of all tbe questions arising in this case, and am of opinion that the decree of the Circuit Court should be reversed, and a decree entered declaring the true construction of the will to be as before mentioned. I think the widow and executrix is bound to keep a correct account of the estate of her testator, and of all appointments or advancements made by her under the will, and to exhibit the same to any of the parties who may be interested therein and desire to see them. It does not appear that she has been guilty of any default in this respect, nor that she has in any way mismanaged the estate or abused the power conferred upon her. On the contrary, she seems to have honestly and laboriously endeavored to manage the estate to the best advantage, and make the most of it for the benfit of her children. It may be well, however, since this 570suit has been brought, to reserve liberty to the parties, or any of them, to apply from time to time to the court hereafter by motion or petition in the cause, for a decree for the settlement of such an account, and for any other relief to which they may then show themselves entitled in the premises. I think the costs of the suit in the Circuit Court, both of the plaintiffs and defendants, should be paid out of the testator’s estate, but that the appellees should recover their costs in this court, as they are the parties substantially prevailing. The other judges concurred in the opinion of Mon-cure, P. The decree was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the testator, Thomson F. Mason, by the second clause of his will, gave his estate to his wrife absolutely during her life or widowhood, and not in trust, “ for her maintenance and support, and for the maintenance and support” of their children; and that those words, in regard to maintenance and support, were merely used by him to indicate the motive of the gift; so that she is not bound to account to anybody for the income of the estate during her life or widowhood, or any part of it. The court is further of opinion, that the power of appointment given by the testator to his wife during her widowhood by the third clause of his will, is subject only to this limitation, as to the objects in whose favor it may be made; that it must be made in favor of one or more of the children of the testator, or of the descendants of any of them who may die before her, and that it extends over his whole estate and every part of it. She may appoint all or any part of the estate, to all or any number of such 571children and descendants, “ at such times and in such proportions as she may think just and prudent;” for so the ■will expressly declares. She may therefore, if she shall think it “just and prudent” to do so, appoint all the estate to any number of such children and descendants less than the whole, and even to any one of them. The words, “ as she may think just and prudent,” refer to the whole preceding part of the same sentence for their antecedent, and not to the immediately preceding words, “ at such times and in such proportions,” only. The doctrine of illusory appointments does not apply to this case, but only to a case in which the appointment is to be made among persons of a certain class, so as to entitle each one of the class to a substantial portion of the subject. The court is further of opinion, that by the third clause of the will, the remainder of the estate, not disposed of by the second clause, is given to the children of the testator, to be divided among them by assigning to the males double the amount of the shares assigned to the females, considering the descendants of any deceased child or children as entitled to the same share the parent or parents, if living at the time of such division, would be entitled to; but such remainder is subject to be divested by the exercise of the power of appointment given to the wife, to the extent to which such power may be so exercised. In the event of only a partial exercise of the power, leaving a portion of the estate unappointed and subject to division, the parties who may have received advancements under such exercise of the power, will not be entitled to participate in the division, without accounting for their advancements respectively as of their value- at the time they were received, in the manner in which advancements are accounted for under the statute of descents and distributions. (Code of 1860, ch. 123, § 15, p. 580.) But such parties respectively may elect not to participate in such 572division, but to retain and hold their advancements in full of their shares of the estate. The court is further of opinion, that the widow and executrix is bound to keep a correct account of the estate of the testator, (but not of the income or profits to which she is entitled as aforesaid,) and of all appointments or advancements made by her under the will, and to exhibit the same to any of the parties who may be interested therein and desire to see them. And though it does not appear that she has been guilty of any default in this respect, nor that she has in any way mismanaged the estate or abused the power conferred upon her, but, on the contrary, that she has faithfully endeavored to manage the estate to the best advantage, and make the most of it for the benefit of her children; yet it seems to be proper, since this suit has been brought, to reserve in the decree to be made therein, liberty to the parties, or any of them, to apply from time to time to the court hereafter, by motion or ¡petition in the cause, for an order or decree for the settlement of such an account, and for any other relief to which they may then show themselves entitled in the premises. The court is further of opinion, that the costs of both parties, plaintiffs and defendants, in the court below, ought to be paid out of the estate of the testator, as the suit was occasioned by a doubt arising as to the true construction of the will, in the solution of which doubt they all were interested. The court is therefore of opinion, that the- said decrees of the said District and Circuit Courts are both erroneous. And it is decreed and ordered that the same be reversed and annulled, and that the appellants do pay unto the appellees as the parties substantially prevailing, their costs by them about their defence in this behalf in this court and the said District court expended. And this court pro*573ceeding to pronounce such decree as the said Circuit court ought to have pronounced, it is declared that the right of the parties, and the true construction of the second and third clauses of the said will, are as above set forth ; and it is further decreed and .ordered, that the costs of both parties, plaintiffs and defendants, in the said Circuit court, be paid out of the estate of the said testator in the hands of his said executrix. And liberty is reserved to the parties, or any of them, to apply from time to time to the said court hereafter, by motion or petition in this cause, for the settlement of an account and further relief, as hereinbefore mentioned. Which is ordered to be certified to the said District court, the clerk of which is ordered forthwith to certify this decree to the said Circuit court. Decree reversed in favor of the appellee.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481699/	Joynes, J. 'The only question in this case relates to the construction of the following clause in the will of Sally W. Griffith: “ All my landed estate in the county of Westmoreland, in the State of Virginia, to be equally divided 577between my nephew E. Colville Griffith, and the children of Dr. W. W- Hoxton and Eliza L. Hoxton, namely: Llewellyn G. Hoxton, Sally G. Hoxton, William Hoxton, Mary S. Hoxton and Winslow S. Hoxton.” Mrs. Hoxton was the sister of E. Colville Griffith, and both she and her husband were deád at the date of the will. E. Col-ville Griffith died after the date of the will, and before the death of the testatrix; and by the last clause of the will, which made provision for that event, the property given to E. Colville Griffith passed to his children, Frederick, Eleanor and David, who filed the bill in this case. The bill claimed, that the land in 'Westmoreland was to be divided per stirpes, the plaintiffs taking one moiety, and the children of Mrs. Hoxton, who were made defendants, taking the other moiety. The defendants contended, that the land was to be divided among the original parties per capita, the plaintiffs, among them, taking one-sixth part, and each of the five children of Mrs. Hoxton taking one-sixth part. The Circuit Court held, that the division should be made per capita, as contended by the defendants. The District Court reversed the decree of the Circuit Court, and held, that the division should be made per stirpes, as contended by the plaintiffs. Where a bequest' is made to several persons, in general terms indicating that they aré to take equally as tenants in common, each individual will of course take the same share; in other words, the legatees will take per capita. The same rule applies where a bequest is to one who is living, and to the children of another who is dead, whatever may be the relations of the parties to each other, or however the statute of distributions might operate upon those relations in case of intestacy. Thus, where property is given “ to my brother A, and to the children of my brother B,” A takes a share only equal to that of each of the children of B. So where the gift is to A’s and B’s 578children, or to the children of A and the children of B, the children take as individuals, per capita. The substance of this rule of construction is, that, in the absence of explanation, the children in such a case are presumed to be referred to as individuals, and not as a class, and that the relations existing between the parties, and the operation which the statute would have upon those relations in case of intestacy, are not sufficient to control this presumption. The general rule is well established, and has been fully recognized by the decisions of this court. Brewer & ux v. Opie, 1 Call 212; Crow v. Crow, 1 Leigh 74; McMasters v. McMasters' ex'ors, 10 Gratt. 275. But this rule is not inflexible, and it will yield to the cardinal rule of construction which requires that effect shall be given to the intention of the testator, to be collected from the whole will. If, therefore, an intention can be collected from the will that the children of the deceased parent are to take as a class, that intention will prevail. The general rule above referred to rests, indeed, upon a very slender foundation, and Jarman says that it “ will yield to a very faint glimpse of a contrary intention in the context.” 2 Jarman on Wills, Ed. 1861, 182. “ Thus,” he adds, “ the mere fact that the annual income, until the distribution of the capital, is applicable per stirpes, has been held to constitute a sufficient ground for presuming that a like principle was to govern the gift of the capital.” The foregoing remark of Jarman is illustrated and confirmed by cases in this country. In Hamlett v. Hamlett’s ex'or, 12 Leigh 350, the testator gave the residue of his estate to be “ equally divided among James Hamlett, Mary Jeffress, Patsy Wilson, Haney Jeffress, Harcissa Jeffress, [all of whom were children of the testator,] the children of my son George Hamlett and Lucy his wife, the children of my daughter Elizabeth Arnett, the children of my son Bedford Hamlett, deceased, and the children of my 579daughter Obedience.” The court held, that the property must be divided per stirpes, each family of grand-children taking one-ninth part. In Gilliam v. Underwood, 3 Jones Eq. R. 100, the testator gave the residue of his estate to be “equally divided between my daughter Lucy, my son John’s children, and my son Berry Underwood.” The court held, that John’s children took as a class one third part of the residue, because in another part of the will they had a legacy given to them as a class. The court acted on a like ground in Lockhart v. Lockhart, 3 Jones Eq. R. 205. In Alden v. Beall, 11 Gill & John. R. 123, the testator gave the residue of his estate as follows: “ The residue of my estate, real and personal, to be equally divided between the children of my sister Ann Latimer, and their heirs forever, and the children of my sister Penelope Beall, and their heirs forever.” The court held, on the construction of this clause alone, without aid from the context, that the residue should be divided equally between the two families. In Lackland’s heirs v. Downing’s ex’or, 11 B. Mon. R. 32, the testator gave the residue of his estate in the following terms: “All the residue” “I desire may be equally divided after my death between my brother John Downing, my two sisters, Elizabeth Cannon and Nancy Gibson, and the children of sister Nelly Lack-land, to them and their children forever, it being my desire that the portions allotted to my brother John and my two sisters and the children of my deceased sister shall be made as nearly equal as possible, both in kind and amount.” The court held, on the construction of this clause alone, that the residue was to be divided per stirpes; the children of Nelly Lackland taking together, as a class, one-fourth part. In Fissel’s Appeal, 27 Pennsyl. R. 55, the testatrix directed her real and personal estate to be “ equally divided between the children of my brother John, deceased, the children or heirs of my sister Rosanna, 580deceased, and the children or heirs of my sister Juliana, deceased, and my brother John, or his heirs or legal representatives.” It was held, that the children referred to took per stirpes, and not per capita. E. Colville Griffith and Mrs. Hoxton were related to the testatrix in the same degree. They had both lived with her during their minority, and, as alleged in the bill and admitted in the answer, “ they were regarded by her with like affection.” We naturally expect, therefore, to find that, in the disposition of her property, she has sought to effect equality between these equal objects of her affection, bestowing upon the children of Mrs. Hoxton what was intended for her. And I think that the will contains satisfactory evidence that, in the clause on which this case depends, the children of Mrs. Hoxton, though enumerated as individuals, were designed to take as a class, representing their mother. The will provides, in the clause next to the last, that “ should any of the children of Doctor and Eliza Hoxton die without heirs, the property left them shall be divided among the survivors.” The next and last clause provides, that if the testatrix shall survive E. Colville Griffith, “ the property left him shall be divided between his three children, Frederick, Eleanor and David.” These clauses indicate clearly the purpose of the testatrix to distinguish the objects of her bounty into two classes—the children of her deceased niece being one class, and her nephew (or, in case of his death, his children,) being the other. Under the latter clause, on the death of E. Colville Griffith in the lifetime of the testatrix, his children, who are substituted in his place, are not to take equally with the Hoxtons, who stand in equal degree with them, but they are to divide among themselves the share of their father. They are treated as a class representing their father, and taking among them what was intended for him, if he had 581lived to take it. It is reasonable to presume that she intended to treat both families alike, and that she regarded the Hoxtons likewise as a class, taking what their mother would have taken if alive. All ambiguous expressions should be construed in conformity with this presumption. By the former of the two clauses just quoted, the testatrix provides, in general terms, for the death of any of the Hoxton’s “ without heirs.” This provision seems to have had reference to the death of any of the members of this family in the lifetime of the testatrix, as the next provision has reference expressly to the death of E. Colville Griffith in her lifetime. If so, the effect of it is, that by the death of any of the Hoxtons in the lifetime of the testatrix, the share of E. Colville Griffith would not be increased; he would still take his share, whatever it was, and the surviving Hoxtons would take what was intended for that family. If equality between her nephew, on the one hand, and the family of her niece on the other, was the purpose of the testatrix, this provision was a natural and reasonable one, and preserved this equality. If individual equality between E. Colville Griffith and the several children of Mrs. Hoxton was the object, then this provision was unreasonable and unjust. It violated- the rule of equality among the individuals, in case of the death of any of the Hoxtons, by giving the share of the deceased to the surviving Hoxtons, in exclusion of E. Colville Griffith. Another clause of the will provides, that if a claim of the testatrix on the government for certain property destroyed should be recovered, it should be equally divided between E. Colville Griffith and the “ surviving children” of Mrs. Hoxton. In the next preceding clause, the “ children” of Mrs. Hoxton are spoken of in general terms, and are enumerated by name. The word “ surviving ” seems to have had reference to the time at which the claim should be recovered. If so, the provision is consistent with the 582rule of equality, if equality between classes or families was intended. If equality among individuals was intended, this provision is capricious and unjust, because it makes the share of E. Colville Griffith depend upon the number of the Hoxtons who may be surviving when the claim is recovered. I am of opinion to affirm the decree of the District Court. The other judges concurred in the opinion of Joynes, J„ Decree oe the Distrit Court aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481700/	Rives, J. These cases present for consideration, in two aspects, the constitutionality of the act of Assembly, passed 18th February, 1867, extending the limits of the city of Richmond. In the first, the plaintiffs in error, as resi606dents, voters, tax-payers and property-holders in the county of Henrico, and creditors of the same, complain that this act violates their constitutional rights in these several capacities hy the withdrawal of population and the resources of taxation from the county, the disturbance of their rights of representation, the augmentation of their county levies, and the diminution of county receipts. In the second, the plaintiffs in error are within the annexed territory, and as such object to the competency of the Assembly, by this act, to disturb their electoral privileges and relations, and to subject them to the increased burthens of the city government. It is agreed by the counsel here, that the effect of this act is to annex to the city about fifteen hundred acres of territory that had been already laid off, built up and densely populated as suburbs of the city, and to take within these new limits a population of about fourteen thousand. The new boundary also cuts off from the city and adds to the county about one acre. There was no vote taken at any time in these separate communities upon the question of annexation; so that, from all that appears in this case, it may be assumed as done in invitos. These, therefore, are the principal and material results of this act of Assembly, and the facts of this case. The act, the constitutionality of which is questioned in these cases, was passed February 13, 1867, and is entitled “ an act to extend and define the boundaries of the city of Richmond.” Sess. Acts 1866-7, p. 635. The first and second sections prescribe the new boundaries of the city, as extended, without any mention of the parts of Henrico thereby annexed to the city, or of the small part exscinded from the city and added to the county. For such facts, as already stated, we have the authority only of the agreed statement of the counsel here. The third section exempts the inhabitants of the annexed territory for the period of 607five years from liability for tbe anterior city debt, or its interest; the fourth appropriates the taxes of such inhabtants, for three years, to the improvement, protection and police of their district; t\\Q fifth empowers the sheriff and other collectors of the county of .Henrico to collect public dues or officers’ fees unpaid at the commencement of the act; the sixth provides for the collection by the authorities of Henrico county, within the annexed territory, of the county levy for the year 1867, and exempts the persons and property therein from city taxes for that year; the seventh directs the City Council to provide for the representation in that body of the inhabitants thus added to the city; finally, the eighth section, which is the commencing clause of the act, gives it effect from the 1st July, Í867. This is literally the whole of the act. The questions growing out of it, now presented for our consideration, may be resolved into three classes: first, those affecting the political state of the inhabitants of the county transferred to the city; secondly, the allegations of permanency and unchangeableness of the counties and cities named in the constitution; and thirdly, those relating to the power of the Assembly, by any process of annexation, to render the citizen liable to other and greater taxes than those incident to the local administration under which, it is assumed, he was permanently placed by the constitution. Great latitude has been allowed to the discussion of these questions ; the counsel for the plaintiff in error has been twice heard at great length; and his views pressed with an earnestness that attested the strength of his convictions. We are also told that the same arguments were addressed to both branches of the General Assembly; so that this act was not passed without controversy, nor without the fullest consideration of its merits. The magnitude of the interests involved, the nature of the rights affected, and the natural excitement 608interested speculations on the subject, have imposed Up0n us the duties of careful deliberation and patient investigation. If we do not experience the difficulties and doubts that have been expressed upon this subject, it does not arise from inattention to the arguments, adduced, or the authorities cited. We have given to these full consideration. We do not propose to review them at length, or in- detail; but a concise statement of the results at which we have arrived, and our reasons therefor, will suffice to show that they have not been pretermitted in our examination of these cases. 1. Our first enquiry is into the effect of this act upon the right of voting and of representation pertaining under the constitution to the inhabitants of the annexed territory. It has been seen that the act is wholly silent upon this subject. If, therefore, their rights and duties in this respect are at all disturbed, it is due to this silence, and not to any enactment of the law. But can such an effect legitimately ensue from such a cause? We find opposed to it, the practice of the General Assembly—see note to Code of 1860, p. 89, where instances are given, in the formation of new counties under the constitution of 1851, of acts failing to prescribe how the people should vote; and where, as a consequence thereof, they were left to vote with the counties from which they were taken. If it be conceded, as perhaps it ought to be, that voting and representation are rights territorially ordained and adjusted by the constitution, and as such, cannot be altered by the Assembly, it would be a violent presumption to infer from the silence of the act, that it designed to interfere with these rights. The reasonable inference is directly contrary. They were left where the constitution placed them; there was no necessity to indicate by law, upon such an event, where the people were to vote, or how they were to be represented. The constitution was the only 609rule upon that head; and however or wherever the boundaries of the city might be extended, the citizens of Henrico on the one hand, and of Richmond on the other, were to vote and to be represented as the constitution appointed. Instead of making, as we are plainly required to do, all reasonable presumptions and fair inferences to sustain the constitutionality of a law, we should disregard the obvious import of the act, and the respect we owe a co-ordinate branch of the government, by attributing to this silence an implied direction, in derogation of the constitution, to vote and be represented along with the new communities thus created. A decent respect for the Assembly, that passed this act upon full advisement, forbids us to suppose that they thereby intended to incorporate with the city and county respectively the added inhabitants, for the purposes of voting and representation, as well as municipal government. The latter was the object of the law; the former, apart from it and beyond it. What reason can be given that the political status of these citizens should not remain the same after as before the act? True, their municipal government was changed; citizens of Henrico ceased to be such, and became citizens of Richmond to that end alone, and vice versa; but constitutional limits still remained for the exercise of constitutional rights, and the enjoyment of constitutional privileges. If it could be said that this act did anything to obstruct these rights, or in any way render them impracticable, the case would he different; but inasmuch as these people can, without difficulty or uncertainty, vote and be represented as the constitution ordains, it is fair to say that their rights in this respect are not disturbed by this act, hut, as in other cases, remain the same. I cannot believe that this act would have been assailed in this particular, if it were not for the authority of adjudged cases in Massachusetts and New York, that are earnestly claimed to be decisive upon 610Ais point. Accustomed, as we are, to pay great respect to the decisions of courts of sister States, we of course incur the obligation of making proper discriminations, and avoiding the too common danger of a wrong application of the rulings. Keeping in view this obvious duty, let us first examine the case of Warren and others v. The Mayor and Aldermen of Charlestown, 2 Gray’s R. 84. In this case, the act for the annexation of Charlestown to Boston was held to be unconstitutional, because it undertook to erect the territory of Charlestown until the next decennial census, into a representative district, which is neither a town nor a city, and contains no adequate provisions to secure to the inhabitants' of Charlestown their rights to elect representatives and senators in the general court and representatives in Congress. This act, while it merged the city of Charlestown into the city of Boston, purported to reserve the electoral rights- of the former, as if the law had not been passed ; but this reservation was alleged to be futile, because no provision was or could be made under the constitution to give it validity. Chief Justice Shaw, in his opinion, p. 99, stated the principal ground on which the constitutionality of the act was assailed, to be “ that the main scope and object of the act is to annex the city of Charlestown, with its territory, property and inhabitants, to the city of Boston; and to annul the charter of the city of Charlestown; whereas Boston and Charlestown are now separate municipal corporations, constitute several representative districts for the election of separate representatives to the general court, belong to distinct counties, constitute parts of distinct representative districts for the choice of representatives in the Congress of the United States, and yet no adequate provision is made, in the act in question, for the exercise and security of the political and constitutional rights of the citizens of Charlestown, after the merger, which, by 611the act, is to take effect immediately on the issue and pub■lication of the certificate of the Secretary of the Commonwealth that the act has been accepted.” This objection was sustained, and for reasons peculiar to Massachusetts, and inapplicable to us. They were predicated of the peculiar provisions of "the Massachusetts constitution upon the subject of representation. Representation was declared to be a corporate right attached to the town as a corporation, and not to any inhabitants or territory, and can only be exercised in a corporate capacity. 7 Mass. R. 526; 15 Mass. R. 537; and 3 Pick. R. 519. To this corporate right of representation was annexed the corporate privilege of determining whether the town will send any, and how many representatives. Under the constitution, the representative must be an inhabitant of the town for which he is chosen; the voter must vote in the town within which he resides; the town may be fined for neglect to send representatives, &c., &c. All these requirements of the constitution, it will be seen, were distinctly contravened by the annihilation of the city of Charlestown, and its merger in the city of Boston. The inhabitants of the city of Boston could not decide for the extinct city of Charlestown, how many representatives the latter should send to the general court; nor be fined for neglect of the .latter to send any ; nor'could it„be held that a resident of Boston was a voter in Charlestown, or eligible as a representative therefor. It seems to me, therefore, to have been properly ruled in this case, that while the rights of voting and representation were nominally reserved as they formerly stood, they were in truth abrogated, or, at least, incapable of being enforced according to the constitution. The opinion of the Judges, 6 Cush. R. 578, was distinctly approved, whereby it was declared competent by the Legislature to change the boundaries of towns for general muni612cipal purposes, provided the territory thus set off from one town to another, or the different portions of territory of which any new town was composed, should, by proper provisions in the act, until the next decennial census and apportionment of representatives, be and remain a part of the town from which they were respectively taken, for the purpose of electing representatives. A further objection to the constitutionality of the act arose from its failure to provide any means by which the inhabitants of Charlestown, after the annexation, could participate at all in the election of representatives to Congress. Charlestown was in District No. 7, and the city of Boston divided, with six wards in one district, and six in another. The difficulty attributable to this failure or silence of the law is thus stated by Chief Justice Shaw, p. 105 : “ After the annexation,- the inhabitants of the territory, now Charlestown, although it might still be considered as part of District No. 7, would have no right and no power to vote in that district, because the town of Charlestown, as an organized body, with its officers, would no longer exist to call meetings and receive and certify votes ; and no authority is conferred on the mayor and aider-men of Boston, or any other officer, to perform these duties. They could not vote with Boston, because Boston, as a municipal corporation, does not form a representative district, and its twelve wards are distributed and appropriated in other districts. No provision is made for the uniting of the two Charlestown wards with any corporation or organized body for electing members of Congress; the inhabitants, therefore, for the time being, and for an indefinite term of time, would in this respect be wholly disfranchised. It is no answer to say, that this is a defect which may be amended by the Legislature; it would depend wholly on the will of a future Legislature whether to 613amend it or not, whereas the act within itself should make provisions for all the changes which it effects in the rights and condition of the inhabitants.” The case of Kinney v. City of Syracuse, 30 Barb. R. 349, is, in like manner, founded on a special provision of the constitution of New York, declaring that the Assembly districts, when once fixed and determined by the Board of Supervisors, shall remain unaltered until the next decennial enumeration. In consequence thereof, it was held, that the annexation of a part of the city of Syracuse to the adjoining town of Dewitt, whereby two Assembly districts were altered without any provision being made in respect to the political status of the inhabitants of the exscinded and annexed territory, or defining their rights in reference to the Assembly districts, or the manner in which they should participate in the election of representatives from the several districts, was unconstitutional and void. Judge Bacon, in delivering the opinion of the court, admitted that the power to create towns or to change their boundaries is legislative in its character, and, irrespective of any provision which would control or circumscribe it, must rest in the discretion of the Legislature as to the time and manner of its exercise; but held that this power was, in this instance, restricted by the precise constitutional provision already quoted. I have thus stated at some length the grounds and principles of these decisions, that it might be apparent how inapplicable they are to the case at bar. The cases are wholly dissimilar. The Massachusetts case, which was the leading one, rests on the practical inadequacy of the provisions made by the law for the fulfilment of the constitutional rights nominally saved by it, and its total failure to secure the means or appoint the mode of electing representatives to Congress in the districts thus confounded; and the New York case on an express prohibition of the 614constitution. But no such difficulties, obstructions or prohibitions exist here. It cannot be said, that the voters' of Henrico are prevented by this act of annexation from participating in the same elections, and having the same rights of representation as appertained to them before. The silence of the act is as potential to leave them in possession of these rights as a special and express enactment that it was not thereby designed to change the constitutional arrangements for voting, representation and courts. Had such an express enactment been made in this statute, no exception, I presume, would have been made to its constitutionality on this score; but, I confidently submit, its silence is of equivalent import and force, because the inference is irresistible, that these rights, not being amenable to legislation, were left to exist under the constitution as they did, more especially as under our polity no new provisions of law were required to meet and adjust these changes of boundaries and municipalities. But does not the history of the times furnish an explanation and excuse for the silence of the act in this respect ? The State had not as yet been recognized by the authorities of the United States since the overthrow of the Confederacy, to which it had attached itself. A general expectation existed of the necessity of a speedy change of its constitution; and before the passage of this act, the agitation commenced in Congress, which resulted in the passage of the act of Congress of March 2, 1867, “to provide for the more efficient government of the rebel States.” This act proceeded'upon the recital that “no legal governments ” existed in these States, Virginia included, and as a means of “preserving peace and good order in said States until loyal and republican State governments can be legally established,” erected them into military districts, and subordinated the existing governments to military authority. The fifth section of this act 615contemplated the formation of new constitutions for these States, and ordained the mode and conditions of framing and ratifying them. The Governor of this State imme- . ,,. , » n ,, diately communicated this act to the Assembly, which, after the expiration of its constitutional term, had just been recalled, and urged them to provide for the call of a convention in conformity therewith. A bill to this end passed the Senate, but its further progress was arrested by the act of Congress of the 23d March, 1867, which, by establishing all the agencies necessary to the call of this convention under the superintendence and management of the military commanders, wholly superseded the functions of such a bill. From this contemporaneous history, it is reasonable to infer that the General Assembly then regarded the existing government of the State as provisional and temporary, and did not recognize (as it otherwise might have done under a greater prospect of permanency) the necessity or propriety of making express provision for the short period preceding a new organization of the State. The absence, therefore, of these provisions is sufficiently accounted for by the remarkable circumstances under which the Assembly was legislating; and it seems to me to militate against the deference we are accustomed to pay to our law-makers, to construe such an omission, under such circumstances, into a violation of their constitutional obligations. I conclude, therefore, that this first and most serious constitutional objection is not tenable. II. We are next to consider, whether the counties and eities of the Commonwealth, as is strenuously contended, are such component and structural parts of the body politic as to be incapable of alteration for municipal purposes by the General Assembly ? This remarkable attribute of permanency is predicated chiefly, if not solely, of the fact that they are named in the constitution, and thereby so 616incorporated, as it is urged, in its fabric as to be incapajqe q£ legislative change in name or boundaries. The statement of this pretension 'would seem to be sufficient . . . ^ .... to mark its extravagance, ir not to carry with it its own ® J refutation. The counsel who advanced it was confronted ^ his own authorities (cited, however, for a different purpose,) from 6 Cush. 575, 578; 2 Gray 84, and 30 Barb. 349. These cases conceded an inherent legislative power to change, for municipal purposes, the boundaries of towns, either by the erection of new ones out of parts of others, or by setting off to one portions of another; but the main point of them consisted in this, namely, that such changes could not be made so as to affect the constitutional rights of suffrage and representation by rendering tbeir observance or enforcement impracticable. The principle is freely admitted by counsel for the appellants, that the plenary grant of legislative power embraces this control over the division and limits of counties, unless, indeed, the mention of them in the constitution so made them parts thereof as to make their continued and unchangeable existence vitally necessary to its integrity. Let us, therefore, examine the constitution to see how and for what purpose the counties and cities are named therein, and what foundation exists for the proposition that they are integral parts of the governmental fabric, and therefore as permanent and unchangeable as the constitution itself. In the fourth article, the legislative power of the Commonwealth is vested in a General Assembly, consisting of a Senate and House of Delegates. There is no limitation upon this grant; and it will be important to another part of our inquiry to remember that it is ample enough to carry with it such legislative control over persons and property, for the purposes of general and local government, as is asserted and exercised by the sovereignty of a State. The third section of this article simply declares, that the 617“ House of Delegates shall be elected biennially by the voters of the cities of Norfolk and Richmond, and the several counties on the fourth Thursday in May.” The phrase, “distributed and, apportioned,” employed in the correlative passage of the constitution of 1851 is omitted here; but I presume there is no significance in this, for the representatives are not the less clearly “ distributed and apportioned” thereby among the said cities and counties. The fourth section arranges the counties and cities into classes : first, those to elect three delegates; secondly, those to elect two delegates; thirdly, those to elect one delegate; and fourthly, those to compose election districts, and as such to elect one delegate. Again, these counties and cities appear in the fifth section as arranged in thirty-four districts for the election of senators, wherein the county of Henrico, with Louisa and Hanover, forms the sixth district, and the city of Richmond the tenth. The sixth section directs in the year 1870, and in every tenth year thereafter, a re-apportionment of representation among the cities and counties, from “are enumeration of the inhabitants of the State.” In article six, respecting the judiciary department, the cities and counties are again enumerated and arranged into judicial circuits and districts. These are the only instances in which the counties and cities are enumerated in the constitution; and the enquiry recurs, whether this enumeration can have the magical effect of exempting them from all legislative change. To determine this, we must settle in our minds the purpose for which these existing territorial divisions were referred to, and the sense in which they were employed by the constitution. Unlike the towns of Massachusetts, our counties possess no corporate right of representation; their well known bounds and population afforded to the framers of the constitution the readiest, if not the only, mode of 618designating the apportionment of representation in the two Houses of Assembly, and appointing the jurisdiction of circuit and district courts. Nor was it a representation of territory ; but rather of the persons and property comprised in these local departments. If this were not manifest from the republican theory of representation, it would be inferable from requiring future apportionments to proceed from “ an enumeration of the inhabitants.” It is presumed that the framers of the constitution, having before them the census returns of the various counties and cities, could not, without the greatest inconvenience and a resort to a future cumbrous machinery, ignore these divisions, and fail to adopt them as the basis for the construction of the legislative and judicial departments. That they did so, resulted, in my view, from convenience and the fitness of things, rather than from the imputed design to fix these divisions unalterably in the framework of the government. While representatives were nominally appointed for these counties and cities, it was merely meant thereby to indicate that the people residing within these defined boundaries should severally choose such representatives ; and their rights in this respect would be as certain and as defined, no matter what changes might be made by law in their names, shapes or boundaries. It is the city of Richmond and the county of Henrico, as they existed at the formation of the constitution, that must be looked to in the ascertainment of these electoral rights; and no matter how their names or limits may be altered, such changes cannot be allowed to interfere with constitutional rights which are fixed by and referred to these divisions as they were designated in the constitution, and just as easily and conveniently settled as if no such changes had occurred in their names or limits. It is conceded by the ingenious counsel who has pressed apon us these subtle refinements upon the letter of the 619constitution, that towns might he erected within the existing boundaries of counties, because such boundaries would not thereby be altered or affected; and as a consequence thereof, I presume he would not question the competency of the Assembly to create, out of the population and territory of Henrico, wherever it thought proper, a new town, and provide for it a municipal government. Hence, if these suburbs, so far as they were included within the county of Henrico, had been incorporated as an independent municipality, these constitutional cavils would not apply; nevertheless, the same public evils, the same social mischiefs, the same individual grievances, would ensue. But now that the Assembly has concluded, and as it seems to me with great good judgment, that by extending over these settlements the corporate authority of the city of Richmond, the needed organization of these suburban communities might be had at less cost and inconvenience, and more conformably to the obvious proprieties of the situation, it would not comport, in my view, with that broad and liberal spirit of enquiry which should control judicial interpretations of the constitution, to decry the latter measure as unconstitutional, and sustain the former as constitutional. It would be, in my opinion, to attribute to county lines and divisions a constitutional fixity, which, however ingeniously advocated, they do not in fact possess by prescription, reason, authority or precedent. The practice of the Assembly, under the constitution of 1851, in the change of county lines and the formation of new counties, (to numerous instances of which we have been referred in the argument,) taken in connection with the constitutional restriction upon the formation of new counties, strikingly corroborates the views I have presented against this broad and novel challenge of the legislative power, under the constitution, to change, in any 620particular, even in name, what the counsel is pleased to term constitutional counties and cities, because of their names appearing in that instrument. As to county districts or citv wards, and the elecJ tion of local officers therein, the former are subject to changes by the General Assembly, under the 26th clause of the 4th article, under the head of “ County Courts ; ” so that there is no difficulty nor inconvenience in the re-adjustment or transfer of them, and in the matter of new regulations for municipal government, and local elections in pursuance of law. III. The third and last enquiry is into the alleged grievances of the plaintiffs in error, resulting from the withdrawal of population, territory and taxable wealth from the county of Henrico, and the subjection of the annexed inhabitants to liabilities for the city debt and the city taxes, which they would have escaped without this act of annexation. The resources of the county are greatly depleted by this measure, so that its remaining citizens and creditors may well object to the loss of the accustomed contributions; and the abstracted citizens may revolt at the prospect of city burthens. But provided the General Assembly has the right thus to change and shift these municipalities, as I have endeavored to show, these consequences, however grievous, are addressed to the legislative will and discretion, and cannot legitimately undergo judicial supervision, or challenge judicial redress. Some violation of the constitution, State or Federal,.must lurk in these results, in order to place the measure without the category of those that may be characterized as the abuse rather than the transgression of power. Accordingly, it is urged that this measure is violative of the obligation of contracts, and, in the form of public contributions, takes, without consent, private property for public purposes, with621out just compensation. It is also contended that it is by means of a voluntary removal only, as contra-distinguished. from a legislative act, that a citizen previously without the city, can be brought within its authority and subjected to its charges. But it should be remembered that the expediency, if not the necessity, of this incorporation has grown out of the voluntary acts of this suburban tion in making these thick settlements, and projecting them upon the prolongation of the streets, so as to make them conform to the plan of the city. It is not doubted, however, that these exterior settlements were, in no small measure, dictated by the expectation of escaping city taxes, at the same time that the facilities of doing business, the chances of lucrative employment, and other advantages in the city, were secured to the inhabitants by their position on its outskirts. Yet, they must be presumed to know, that their establishment of an actual town might eventually expose them to the liability of being put under a municipal charter, at the pleasure of the General Assembly. No one has ever yet doubted the supreme authority of that body to grant charters to towns. It is an attribute of that sovereignty which, in its unrestricted functions of taxation and legislation, regulates the affairs of the people, and carries on their government, local and general, under the constitution; and whatever irregularities may arise from the grant of such charters, they are to be taken as the incidents of this governmental will, and rest in the discretion of the Assembly, without appeal to the courts or other arbiter. The necessity or propriety of granting such charters implies the power to defray local expenditures out of local contributions to be levied by the corporation, although such local impositions are in addition to the State taxes. It would not do to throw the local charges of such incorporated communities upon the gen622era^ treasury of the whole people; therefore, the provision t]lat tke taxation of the State shall be “ equal and uniform throughout the Commonwealth,” absolutely requires that these local charges should fall exclusively upon the local 6 . . ... . communities; and the compensation and justification for it must be sought in the chartered privileges, and the uncontrollable discretion of the Assembly. Had it pleased the Assembly to grant an independent charter to this exterior town, it is admitted by the appellants’ counsel that no constitutional exceptions could have been taken to the measure, although the grievances now complained of would doubtless have been aggravated by such a separate corporate existence. How, then, shall the extension of the charter of the interior town over the exterior one, which, in the progress of time and the pursuit of private interests, had grown up on its borders, be deemed unconstitutional, while all the city privileges of police, gas, water, &c., were obtainable at far less cost and inconvenience ? It seems to me, therefore, that if any wrong has been done to the appellants by this extension of the city limits, it has not been owing to any violation of the constitution, but to the lack of discretion and precaution on the part, of the Assembly, upon which we have neither the right nor the disposition to sit in judgment, nor the materials, in this case, to form or express an opinion. I am indebted to the remarkable familiarity of my brother Joynes with adjudged cases in this country, as well as abroad, for a reference to a most apposite case, before the Court of Appeals of Kentucky. It is the case of Cheaney v. Hooser, 9 B. Monr. R. 330, which brought up for consideration all these and other constitutional exceptions to the extension of the limits of the town of Hopkinsville. The opinion of the court was delivered by Chief Justice Marshall, of that State, and is so elaborate, 623exhaustive and conclusive, that I may be well permitted to close my investigations by a reference to that authority, and the luminous reasoning of the court. The decrees of the court below are, therefore, affirmed. The other judges, concurred in the opinion of Rives, J. Decrees aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481701/	Joynes, J. The first ground of error assigned in the petition is, that the court allowed the plaintiff to give secondary evidence of the will and codicil of L&uisa Hunter, deceased, under which he claimed the land in controversy, when no sufficient ground had been laid for the introduction of such evidence. The proof was, that the original paper containing the will and codicil of Mrs. Hunter was deposited, in 1864, with the clerk of the Circuit Court of the city of Richmond ; that the witness had inquired of said clerk at his office for said original paper; that said clerk, at the request of the witness, made search for the said paper, and reported that it had been lost out of his possession, and destroyed at the time of the fire in Richmond in April, 6341865. The plaintiff then offered to prove, that in November, 1864, he had the said original paper admitted to probate in the Circuit Court of Richmond as the will and codicil of Louisa Hunter, deceased'; and that it was duly proved and admitted to record; promising to follow this up with proof respecting the loss and destruction of the record of probate corresponding to that already offered respecting the loss and destruction of the original paper. The defendant objected to all the evidence thus offered; but the objection was overruled, and the evidence admitted. There is some confusion and want of certainty in the record in respect to the secondary evidence introduced. The copy first offered in evidence was one made several years before Mrs. Hunter’s death by the plaintiff, from the original will and codicil placed in his hands by her. No objection appears to have been made to this evidence at the time it was offered. Then follows, in the bill of exceptions, a duly certified record from the Orphans’ Court of the county of Washington, D, C., of the probate in that court of a duly authenticated copy of the record of the original probate in the Circuit Court of the city of Richmond. It is no where stated that this record, or the copy of the will contained in it, was offered, in evidence. I presume this was an oversight in preparing the bill of exceptions. When the plaintiff had introduced the evidence already stated, respecting the inquiry at the office of the clerk of the Circuit Court of Richmond for the original will, the record says, that he “ then offered to read to the jury, as evidence of the contents of the said original paper, the said copy hereinbefore inserted.” This seems to have referred to the copy made by the plaintiff from the original will, and which appears to have been already introduced and read to the jury. There does not appear, therefore, to have been any specific objection to the admission of the record of the Orphans’ Court of 635Washington. But there was a general objection to the admission of any secondary evidence, and if the objection was Well founded, the secondary evidence previously introduced should have been excluded, though admitted without objection at the time. It is objected, that the loss of the original paper and of the record of probate could properly have been proved, only by the clerk himself, and that the evidence of what the clerk stated to the witness was only hearsay, and therefore inadmissible. In Cowen & Hill’s notes to Phillip’s Evid. vol. 4, p. 1223, the following passages occur in reference to the admission of secondary evidence. I omit the citations of cases: “ The rigor of the old common law rule has been relaxed in this respect, and the non production of instruments is now excused for reasons more general and less specific, upon grounds more broad and liberal, than was [were] formerly admitted. In general, the party should give all the evidence reasonably in his power to prove the loss. He is not bound, however, to furnish the strongest possible assurance of the fact. If any suspicion hangs over the instrument, or that it is designedly withheld, a rigid enquiry should be made into the reasons of its non production. But when there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original. In practice, where there is no ground of suspicion that the paper is intentionally suppressed, nor any discernible motive for deception, the courts are extremely liberal in regard to secondary evidence. The rule must be so applied as to promote the ends of justice and guard against fraud and imposition. If the circumstances justify a well-grounded belief that the original paper is kept back 'by design, no secondary evidence ought to be admitted; but where no such suspicion attaches, and the paper is of that description that no doubt can arise as to 636the proof of its contents, there can he no danger in admitting secondary evidence. Ordinary diligence in ordinary cases is enough. Where the proof of loss adduced establishes the fact with reasonable certainty, nothing more is required. Evidence, which induces a fair presumption of loss is enough. No other than circumstantial evidence of loss can generally be expected; it will, therefore, usually suffice that the paper has been sought for, where it might be supposed likely to be found, or was usually kept, and that the search was fruitless.” The same general doctrine is laid down in other cases of subsequent date to those cited by Cowen & Hill, of which I will cite only two. In United States v. Sutter, 21 How. U. S. R. 170, the Supreme Court holds this language: “We agree that the rule of law which requires the best evidence within the power or control of the party to be produced, should not be relaxed, and that the court should be satisfied that the better evidence has not been wilfully destroyed nor voluntarily withheld. But the rule on the subject does not exact that the loss or destruction of the documents of evidence should be proved beyond all possibility of a mistake. It only demands that a moral certainty should exist that the court has had every opportunity for examining and deciding the cause upon the evidence 'within the power or ability of the litigants.” In Brigham & al. v. Coburn, 10 Gray’s R. 329, the plaintiffs claimed as assignees of one Bass, an insolvent debtor. The original deed of assignment was not produced, and to authorize the introduction of secondary evidence, the affidavit of one of the plaintiffs was filed, which stated that he had made diligent search for the deed of assignment, and could not find it, and that it was not, to his knowledge, recorded in the registry of deeds. The court held that secondary evidence of the deed was properly admitted. The court said: “We cannot perceive that the afiidavit, from the statement of its contents in the 637exceptions, did not'raise a reasonable and legal presumption of the loss of the deed, according to the established rules of evidence. The question what is due enquiry for a deed or other document, in order to admit secondary evidence of it, must be decided upon the particular circumstances of the case in which that question arises.” Miller v. Miller, 1 Hodges R. 187; 2 Phil. Ev. (N. Y. ed; 1849) 229, 230. “ In ordinary cases,” says Mr. Earon Alderson, “ you do not make search as for stolen goods. The court must be reasonably satisfied that due diligence has been used; it is not necessary to negative every possibility—it is enough to negative every reasonable probability, of anything being kept back.” McGahey, v. Alston, 2 Mees. & Melsb. R. 206. Upon the evidence in this case, it is impossible to entertain a suspicion that anything has been suppressed or withheld, or that the copies which were given in evidence are not true copies of the original will and codicil. Enquiry was made of the clerk, at his office, for the original will and codicil, and also for the record of the probate. It is fair to presume that these enquiries were made for the purpose of obtaining a copy in the regular and usual way. And certainly nothing could be more satisfactory to the mind, if legally admissible, than the record of the Orphans’ Court of Washington. The papers admitted to record in that court were duly authenticated by the clerk of the Circuit Court of Richmond, where they were admitted to probate, as copies from the records of his court. The Register of Wills certifies, in due form, a copy of the papers thus authenticated by the clerk of the Circuit Court. The copy sent from Richmond is filed in the Orphans’ Court, and cannot, therefore, be obtained. An authenticated copy of it is the next best thing, and carries as full conviction to the mind of its authenticity, as would a copy from the clerk of the ^Circuit Court of Richmond. 638The court will not, therefore, according to the authorities which have been cited, require that the loss or destruction of the original papers, and of the probate of them, shall be “ proved beyond all possibility of mistake; ” it is only necessary that the evidence in relation to the loss should produce “ a moral certainty that the court has had every opportunity for examining and deciding the cause, upon the best evidence within the power or control of the litigants.” This “moral certainty ” is produced in this case by the evidence as to the application to the clerk of the Circuit Court of Richmond. It was his official duty to preserve the original papers and the record of their probate, and to furnish copies when applied for. The evidence is not merely that the clerk declared that the paper and record had been lost or destroyed at the time of the great fire; but at the request of the witness he made search for them, and reported, then and there, as the result of the search, that they had been lost. The search seems to have been made in the presence of the witness. At any rate, it was made, and the result reported, and the declaration of the clerk accompanies, and formed part of, an official act. We must presume, in the absence of any evidence to raise a suspicion of the contrary, that a declaration thus made was true. It was not only the duty of the clerk, but his interest also, to find the paper and record, and to furnish a copy, if they were in existence. The testimony of the clerk as to the particulars of his search, and as to the facts connected with the fire, would have gone a step further to exclude the possibility of a mistake, and might properly have been insisted on, if there had been room to suspect that anything had been “kept back ” by design, or that the copies actually produced were not genuine. In the case cited from 10 Gray’s R. 329, the affidavit of the other plaintiff would in like manner, have gone a step further to exclude the possibility of 639mistake as to the loss of the deed; but there being no ground of suspicion, the court did not require it. In Waller v. School District, 22 Conn. R. 326, the court said: “ The only ground of complaint is, that the plaintiff’s son was not called to testify as to the loss. His testimony would have rendered the evidence more satisfactory, and ought to have been required, had there been any reason to believe there was any collusion between him and the defendants. ■ But nothing of that kind appears.” I conclude, therefore, that a sufficient ground was laid in this case for the introduction of secondary evidence. The plaintiff was under no obligation to avail himself of the provisions of the act of February 21, 1866, to establish the lost record. The provisions of that act are only cumulative. Smith v. Carter, 3 Rand. 167; Newcomb v. Drummond, 4 Leigh 57. The next ground of error assigned, is the admission of the record of the county court of Alexandria of a probate of a copy of the bill certified from the Orphans’ Court of Washington. The ground of the objection is, that the county court had no jurisdiction to admit the copy to probate, because the original will had already been admitted to probate in Richmond, and that the case is not embraced by the provision of ch. 123, section 26, of the Code; and that as the defect of jurisdiction appears on the face of the proceedings of the county court, its act was void and not voidable merely. But conceding this to be so, I think that the admission of this evidence affords no ground for reversing the judgment. If, according to the doctrine in England, there are no degrees in secondary evidence, then this evidence was admissible on the same ground as the other secondary evidence. But even if that is not so, it is obvious that the admission of this evidence could do the defendant no injury. The record of the Orphans’ Court of Washington 640was already before tbe jury, which was the best secondary evidence attainable, and the record of the county court only brought this record of the Orphans’ Court before the jury a second time. The same views apply to the objection made to the admission of the copy of the original will made by the plaintiff, upon the assumption made by the defendant that two witnesses were necessary to authenticate that copy. The next ground of error assigned is, the admission in evidence of the certificate of redemption. The objection is, that the land was redeemed by McPherson, who was a stranger to the land, and had no right to redeem it under the act of Congress. . Before this certificate of redemption was offered by the plaintiff, the defendant had introduced the record of a suit in chancery in the Supreme Court of the District of Columbia, instituted for the purpose of appointing another trustee under the bill of Mrs. Hunter, in the place and stead of the plaintiff, and in which the court made a decree appointing McPherson as trustee. It is conceded, in the petition, that the court of the District of Columbia had no authority to remove the plaintiff from his trust in respect to the land in Yirginia, or to constitute McPherson trustee in respect to said land. The seventh section of the act of Congress, passed June 7, 1862, as amended by the act of February 3, 1863, provides that when land has been sold by the Commissioners, “ the owner of said lots of ground, or any loyal person of the United States, having any valid lien on, or interest in the land, may, at any time within sixty days after said sale, appear before the said Board of Tax Commissioners, in his or her own proper person, and, if a citizen, upon taking an oath to support the Constitution of the United States, and paying the amount of said tax and penalty,” &c. * “ may redeem said lots of ,land from said sale, and any purchaser under the same having 641paid moneys, treasury notes, or other certificates of indebtedness of the United States, shall, upon such redemption being made, be entitled to have the same, with the interest accruing after said sale, returned to him by the said Commissioners, upon surrendering up the certificate of sale. And provided further, that if the owner of said lots of ground shall be a minor, a non-resident alien, a loyal citizen, beyond seas, a person of unsound mind, or under a legal disability, the guardian, trustee, or other person having charge of the person or estate of such person, may redeem the same at any time within two years after the sale thereof, and in the manner above provided, and with like effect.” This provision distinguishes those who are entitled to redeem into two classes, one of which is required to redeem within sixty days after the sale, and the other of which is allowed to redeem within two years. The owner, of either class, must appear before the Commissioners in proper person, and, if a citizen, must take an oath to support the Constitution of the United States. The first class embraces persons who are resident and sui juris, and whom Congress designed to hold to a strict responsibility for their acts and defaults, and as to whom it restricted the privilege of redemption within narrow limits. The other class embraces persons under disability, non-resident aliens and loyal citizens beyond seas, who could not justly be held to the same strict responsibility, and to whom Congresá designed to extend the privilege of redemption on more liberal terms. The persons described in this second class are such that their lands, in consequence of their non-residence or disability, would generally be in the “ charge ” of some other person. Hence the act, in terms, gives the privilege of redeeming, within two years, to “ the guardian, trustee, or other person having charge of the person or estate ” of the owner. But 642the plain intention of the act was to secure the privilege of redemption to the owner, to whom no fault could he imputed, and for whose benefit the redemption was to be made. Suppose the land of a non-resident alien, or of a loyal citizen beyond seas, is not in the charge of any agent or other person—might not the owner redeem through the agency of a friend, deputed for that purpose only? Or, might he not, upon coming home -within the t-wo years, redeem in proper person ? Or suppose a minor has no guardian, and neither he or his estate is, in any legal sense, or actually, in the charge of any other person, as may well be the case if he manages his own affairs and controls his own actions—is he to lose the privilege secured for his benefit, because the literal terms of the act cannot be complied with 1 It seems to me that this would be putting too strict a construction upon the act of Congress. It would destroy the sense and object of the law, in order to satisfy its letter. The rule is, that laws allowing redemption are to be construed liberally. Blackwell on Tax Titles, Ed. 1864, 432. I think, therefore, that Mrs. Featherstonhaugh and Mrs. Young, the beneficial'owners of the land, had the right to redeem in their proper persons, and that they must be understood to have done so in this case. The Commissioners appear to have so understood it, for they ’administered to those ladies the additional oath required by the act of March 3, 1865, sect. 7, w'hich is to be taken by every “ owner ” who redeems. The certificate describes them as the owners, though it describes McPherson as the trustee. There is some ambiguity in the certificate as to whether these ladies took the oath to support the Constitution of the United States. It does not appear that they did not take this oath, as well as the other; and the language being ambiguous, we may presume that they, as well as McPherson, took this oath, in order to sustain the cer643íificate, ut res magis vale at quam per eat.” If they did not, why was not the additional oath, required by the act of March 3, 1365, administered to McPherson, as well as to them ? But perhaps the true construction of the certificate is, that McPherson alone took the oath to support the Constitution of the United States, and that Mrs. Eeatherstonhaugh and Mrs. Young alone took the other oath required by the act of March 3, 1865. That would be in accordance with a strict and literal construction of the acts of Congress. The act of 1862, and the amendment of 1863, require that the person who redeems as guardian, trustee, or person having charge of the property or person of the owner, shall take the oath to support the Constitution. The act of March 3, 1805, provides that “no owner” shall redeem without taking the additional oath prescribed by that act. Assuming this to be the true construction of these acts, .the question is, whether the redemption was invalid for want of proper authority in McPherson. He was not, strictly and legally, the trustee of these ladies in respect to the land to be redeemed, because the jurisdiction of the court which appointed him did not extend over that land. But no doubt both he and they thought he was the trustee in respect to these lands, as undoubtedly he was their trustee in respect to other property. He may, too, for aught that appears, have been acting under this impression, and been actually in “ charge ” of all the trust property. In making the redemption, he acted for these ladies, and with them, and professedly as their trustee. He was not an intruder or volunteer. And the Commissioners, whose duty it was to ascertain his relation to the property, recognized him as a person who had a right to redeem. Every substantial purpose of the act of Congress was, therefore, fully satisfied; and considering that an act allowing 644redemption is to be construed liberally, so as to promote the beneficent intention of the legislature, and not strictly, I think we are fully authorized to hold that the redemption in this case was valid and effectual, as a redemption by McPherson. It seems that the same construction was put upon this provision of the act of Congress by the Supreme Court of Tennessee, in the case of Galbraith v. McFarland, 3 Cald. R. 267, and by the Court of Appeals of South Carolina, in Pope v. Chaffin, noticed in Amer. Law Review, April, 1868, p. 578. The next error assigned is the refusal of the court to give the instructions moved by the defendant. The first instruction proceeds on the assumption that the devise was void under the 6th section of the act of Congress passed July 17, 1862, entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” This section declares, that if any person engaged in armed rebellion against the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly made by the President, cease to aid, countenance, and abet such rebellion and return to his allegiance, all the estate of such person shall be subject to seizure, and it shall be the duty of the President to seize the same as before provided in the act; and that “ all sales, transfers, or conveyances of any such property, after the expiration of said sixty days from the date of said warning and proclamation, shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.” The 5th section of this act provides that “ to insure the speedy termination of the present rebellion, it shall be the duty of the Presi645dent of the United States to cause the seizure of all the estate and property, money, stocks, effects and credits” of the persons thereinafter named, “ and to apply and use the same and the proceeds thereof for the support of the army of the United States.” After enumerating the several classes of persons whose property is thus liable to seizure, the section concludes as follows : “ And all sales, transfers, or conveyances of any such property shall be null and void, and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section.” The 7th and 8th sections make provision for the condemnation and sale of the property thus liable to seizure under the 5th and 6th sections. It is obvious from the provisions of this act, that it was designed as a war measure, and the 5th section expressly declares that the seizure of property which it authorizes is provided “ to insure the speedy termination of the present rebellion.” The act proposed to aid this object by the seizure and confiscation of the property of certain classes of persons described, and of all others who should disregard the proclamation of the President provided for in the 6th section. The provisions of the 5th and 6th sections making void all sales, conveyances, and transfers of property declared liable to seizure and confiscation, must be construed with reference to the objects and general provisions of the act. They were necessary to prevent these objects and provisions from being defeated by the sale, conveyance, or transfer of property, before seizure, by persons embraced in the described classes. The object was to provide, that no sale, conveyance, or transfer should interfere with the seizure and sale provided for by that act. This construction satisfies the terms of law, the and is consistent with its policy. To carry its operation to 646the extent contended for by the counsel for the defendant, is not necessary to accomplish the objects of the act; is not necessary to satisfy the fair meaning of the language; and imputes to Congress a purpose for which no good reason can be assigned, and which can hardly be sustained upon any construction of its powers. If the construction contended for is right, then the other provision that no person embraced in the described classes shall be allowed to maintain a suit for the possession or use of any property made liable to seizure, must be held to be a perpetual bar, until the act is repealed, to a recovery in any such suit. The court properly refused to give this instruction. The second instruction asked for declared, that if the jury should believe from the evidence that the plaintiff was removed from the office of trustee, and McPherson substituted as trustee in his stead, by a decree of the Supreme Court of the District of Columbia, then the plaintiff was not entitled to recover. The court was justified in refusing this instruction, on the ground that it proposed to submit to the jury, as a question of fact, what was properly a question of law for the court. Whether the plaintiff was removed or McPherson substituted as trustee, in respect to the land in controversy in this suit, depended upon the construction and legal effect of the decree of the Supreme Court. This instruction proceeds on the assumption, that it was competent for the court of the District, by the mere force of its decree, to operate upon the title to land in Yirginia, so as to divest it out of Nutt arid to vest it in McPherson. This cannot be maintained, and the instruction was properly refused for that reason. See 1 Rob. New Pract. 336-343; Story Confl. § § 544, 545; Watkins v. Holman, 16 Peters R. 25; McLawrin v. Salmons, 11 B. Mon. R. 96. The petition treats this instruction as involving the 647question, whether Nutt made or could make a valid disclaimer by parol of the estate devised to him by Mrs. Hunter. But certainly it involves no such question. That question may be raised under the exception to the refusal of the court to grant a new trial, though no error has been assigned on that ground. The bill in the case in the Supreme Court of the District alleged that Nutt, the plaintiff, declined to accept the trusts conferred upon him by the will of Mrs. Hunter, and asked the appointment of another person to execute the trusts in his stead. Nutt, in his answer, admitted that he had declined to accept the said trusts. It is insisted that this answer is proof of a parol disclaimer by Nutt of the title to the land in controversy, and that the effect of such disclaimer was to divest the title out of him. Whether an estate of freehold in land can be effectually disclaimed by parol, so as to divest the title of the-devisee, has not been settled by the decisions of this court. In Bryan v. Hyre, 1 Rob. R. 94, it was conceded that the question did not arise. The case cannot be regarded, therefore, as settling the question against the validity of such a disclaimer, though the opinion of Judge Allen is said by the report, in general terms, to have been concurred in by the other judges who sat in the case. .It is not necessary to determine that question in this ease. If we assume it to be true, as contended for, that a freehold estate in land may be disclaimed by parol, the question remains whether such disclaimer is proved in this case, in respect to the land in controversy. That depends on Nutt’s intention. His answer does not specify the, particular trusts which he had declined. A large amount of property, real and personal, had been devised and bequeathed to him in trust, all of which seems to have been in the District of Columbia, except the sixty acres of land in controversy in this suit. The bill to which the 648answer was made was filed in the District, in a court which had no jurisdiction over the land in Virginia. It was for the jury to say, upon the answer and all the other evidence, whether Nutt had made a disclaimer of title to the land involved in this suit. The fact that he subsequently instituted this suit, was a fact which they might consider in making up their opinion on this question. The verdict finds, in effect, that Nutt had made no such disclaimer in respect to this land. We cannot say that the verdict should be set aside on that ground. This view is sufficient to dispose of the question of a parol disclaimer, without adverting to any other. The next instruction asked for affirms that the writ of unlawful detainer is not an appropriate remedy in this case. The reason assigned in the petition is, that the title alone is involved. This instruction too was properly refused. The Code, ch. 134, section 1, gives the remedy of unlawful detainer where there has been an unlawful entry upon land, or where the entry having been lawful, the tenant detains possession of land after his right has expired, without the consent of him who is entitled to the possession, and where such unlawful possession has not continued for three years. The controversy in such a case, though it determines only the right of possession, may turn altogether upon the validity of' the title under which the defendant claims to hold the possession. The only remaining instruction asked for affirms, that to entitle the plaintiff to recover, he must show that the certificate of redemption was forwarded by the commissioners to the Secretary of the Treasury, and that the purchase money was refunded to the defendant by a draft on the Treasury of the United States. This proposition is based on the 7th section of the act of March 3, 1865, which provides, “that in any case in which lands shall be redeemed after sale made by the hoard of commissioners, 649and after the money received by them on the sale of such lands has been paid into the treasury, by the owner complying with all the provisions of the law relating to redemption necessary to be complied with on his part, the said board shall certify to the Secretary of the Treasury the fact that such lands have been redeemed, the amount of the purchase money paid by the purchaser, and when said purchase money was paid, together with such other circumstances as the Secretary, by general regulations or special instructions, shall require; and the Secretary, on being satisfied that the lands have been duly redeemed, shall repay, by draft drawn on the Treasury of the United States, the said purchaser the principal and interest of said purchase money; and the purchaser shall forthwith deliver possession to the owner so redeeming as aforesaid.” This provision was designed for the benefit of the purchaser, so as to enable him to obtain the repayment of the money, after it had been paid by the commissioners into the treasury. The act of February 3, 1863, already quoted, made provision for the commissioners returning the purchase money where it remained in their hands at the time of the redemption. But the validity of the redemption did not depend upon the return of the purchase money. And so in cases where the money is paid into the treasury, it is not necessary for the party claiming under a redemption, to show that the money has been refunded to the purchaser. If the refusal of the Secretary to refund the purchase money would entitle the purchaser to withhold the land, that would be matter of defence to be proved by him. But the law does not make the Secretary a judge to determine the validity of the redemption, as between the former owner and the purchaser. He is only to revise the certificate of redemption for the purpose of deciding whether the money shall be withdrawn from the treasury. If the owner has made 650redemption in the manner required by law, his title is complete, even though the Secretary should refuse to do justice to the purchaser by refunding the purchase money. Upon the whole, I think there is no error in the judgment, and that it ought to be affirmed. The other judges concurred in the opinion of Joynes, J. Judgment appirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481702/	Jovnes, J. The note on which this action is founded was executed on the 8th day of November, 1861, for the payment of $ 1,714.66, three years after date. It was given on account of the purchase money of land, sold for one-fourth cash, and the residue in one, two and three years. The cash payment was made by a check on the Farmers’ Bank, and the first two notes were paid in Confederate notes ; but it is stated in the facts agreed, that there was no agreement at the time of the sale that the notes should be paid in that currency. The question to be decided is, whether the third note was payable in Confederate notes. The act of March 3, 1866, provides, that in any action founded on any contract, express or implied, made and entered into between the 1st day of January, 1862, and the 10th day of April, 1865, it shall be lawful for either party to show, by parol or other relevant evidence, what was the true understanding and agreement of the parties, either expressed or to be implied, as to the kind of currency in which it was to be fulfilled or performed, or in 705reference to which, as a standard of value, it was made and entered into. This case does not come within the provisions of that act, because the note was made before the 1st day of January, 1862. It is doubtful, to say the least, whether parol evidence of the actual understanding and agreement of the parties as to the kind of currency in which a contract is to be fulfilled, which is expressed to he payable in “ dollars” generally, would be admissible independently of the provisions of that act. The word “dollars” has a definite signification fixed by law, and it is laid down that “when the words have a' known legal meaning, such, for example, as measures of quantity fixed by statute, parol evidence that the parties intended to use them in a sense different from their legal meaning, though it was still the customary and popular meaning, is not admissible.” 1 Greenleaf Ev. § 280. See also Smith v. Walker, 1 Call 24; Commonwealth v. Beaumarchais, 3 Call 107. We need not decide whether such evidence could have been received in this case, because it is expressly stated in the facts agreed that there was no such actual agreement. It is contended, however, that the law will imply an agreement, under the circumstances of this case, to accept Confederate money in payment of the note on which the action is founded. The argument is, that the note having been made after the establishment of the Confederate States, must be considered as made with reference to the actual currency of those States, and that as Confederate notes were the actual currency in those States at the time the note became payable, it was payable in that currency. It must be remembered, however, that Confederate notes were never made a legal tender. They were never the lawful money of the country, but only a substitute for money, like bank notes. Gold and silver were the lawful money of the Confederate States at the time this note was 706made, and also at the time it became payable, according to the provisions of the act of the Congress of the United States, expressly adopted by the Congress of the Confederate States. The principle of public law relied on by the counsel for the appellant, and quoted from Story Confl. § 242, presumes, in'the absence of evidence to the contrary, that every contract is made with reference to the lawful currency of the country in which it is entered into. It does not presume it to be made with reference to any substitute for such currency which may happen to circulate. A contract made in Richmond before the war, for the payment of so many dollars, would not have been deemed payable in bank notes, though bank notes were then the common, and practically the exclusive, currency. And so in this case, if we apply to the Confederate States the principle relied on, the note must be deemed payable in specie, which was the lawful money of the Confederate States at the time it became payable. There was no law of the Confederate States, or of the State of Yirginia, controlling or affecting this legal presumption until the act of Assembly passed October 14, 1863. That act provided, that all contracts made and entered into on or after the 20th day of October, 1863, should be deemed payable in such currency as should, at the time of their becoming payable, be receivable in payments to the State of Yirginia, unless that intendment should be expressly excluded. This act indicates the sense of the Legislature that there was no such presumption independently of its provision. The act of March 3,1866, provided that, as to all contracts made after the 1st day of January, 1862, an enquiry might be made to ascertain what sort of currency was really contemplated by the parties. That act was wholly unnecessary, if, as now contended, every contract made in the Confederate States, must be deemed payable in the actual currency at the time of its becoming payable. *707Nor does the fact that the plaintiff accepted payment of the first two notes in Confederate money preclude him from insisting upon lawful money for the note now in question. Upon an enquiry into the actual intention and understanding of the parties, the fact that the plaintiff accepted Confederate money for the two first notes would be a circumstance having some tendency to show that there was an understanding that all the notes should be payable in that currency. But it would not be sufficient of itself to overcome the legal presumption in a case arising before the 20th day of October, 1863. A man before the war might forego his legal right to demand specie on any one or more of a series of notes, by accepting payment in bank notes, and even in depreciated bank notes, without affecting in any manner his right to demand specie on any other of such notes. And, in this case, it is expressly stated that there was no agreement at the time of the sale that the notes should be payable in Confederate money. We are not at liberty, therefore, to make any inference of such an agreement as matter of fact. The recent decision of this court in Dearing's adm'r v. Rucker, has no bearing on this case. The bond in that case was executed after the 1st day of January, 1862, and the facts stated satisfied the court that, “ according to the true understanding and agreement of the parties,” it was to be paid in Confederate notes. There is no error in the judgment, and it must be affirmed. The other judges concurred in the opinion of Joynes, J. Judgment abbirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481703/	Rayes, J. The verdict of the jury in this case is founded on the theory that the appellee’s bond was a Confederate contract, payable in Confederate money, and to he scaled as of its date, 29th January, 1863, when such money bore to specie the relation of three to one. This led to the finding of §1,666.66, with interest from the said date. A new trial was asked for, on the ground that this verdict was contrary to law and the evidence. It was refused, and a bill of exception taken, setting forth a very meagre state of facts proven on the trial. These facts consisted of the production of the bond; a demand of payment, acknowledged on the 25th June, 1865; the loan of §5,000 in Confederate treasury notes, as the consideration of this bond; and the value of such notes at the time of the loan, ascertained to he the said sum of §1,666.66 in gold. The legal construction, therefore, which we are now required to put upon this instrument, receives no aid from extrinsic evidence, and depends wholly upon its terms, with such lights as we may derive from the situation of the parties, the subject-matter of the contract, and contemporaneous events in the history of the times. Remarkable as this contract is, in its most distinctive feature, it is admitted on both sides, that the parties contracted on equal terms, and were men of uncommon intelligence and business capacity; so that no inequality what711soever in their relative situations has been insisted on or pretended as a ground to impeach the contract, or ask relief from its literal enforcement. They were both citizens of Virginia, and possessing equal means of information as to the past and present future of events bearing upon their contract, and likely, according to their respective beliefs and speculations, to influence, in the same or different ways, this agreement. Contracts are usually referable, for their construction, to the law's of the country where made. Parties must be taken to contract in reference to them; and hence, the lex loci aontraetus is a prevailing canon of interpretation. In order, however, to test the applicability of this doctrine to our present enquiry, we must look to the situation of the parties, a3 affected by the remarkable political events that were then transpiring, and which might be naturally expected to enter into their consideration, and influence in some degree their agreement. To this end, it is not necessary to enter at all into the vexed theories and controversies which engendered and attended the late war; we have only to seek for the facts of history, about which there is and can be no dispute. A contrariety of opinion exists as to the nature, the incidents and consequences of this struggle; but however differently viewed, it may be practically characterized, without offence to any of the opposing theories, as a revolution attempted, whether rightfully or wrongfully, by the seceding States. It was so organized by these communities, and endued with the attributes and prerogatives of a separate government, as to extort for the Confederacy, from foreign nations and the United States, the recognition of belligerant rights as belonging to it; and from the Federal judiciary, its acknowledgment as a de facto government. But still, during the pendency of the war, and while its result was confessedly uncertain, it seems to me 712scarcely correct to say that the citizens of the Confederate States had so completely thrown off the old, and established the new government, as to refer all their contracts to interpretation by the laws of the latter, as if its existence was undisputed. I can well understand how, in a long-established government, contracting parties, in the absence of any stipulation to the contrary, are ordinarily to be considered as contracting with reference to the laws of that government, and submitting their contracts to be interpreted by such laws. But what is there in this rule to confine the parties here, involved as citizens in a doubtful war, to an interpretation of their language by the laws of their existing government, and actually to inhibit them from contracting in respect to a new order of things ? It was impossible not to foresee the probability of change in the currency; whether it should be by the substitution of another by the Confederate government when established, or by the return of Federal money through the restoration of Federal authority, was a consideration that might have fairly entered into the transactions of men. It would certainly curtail the freedom of such transactions to lay down the inflexible rule that parties in such a state of society cannot, on grounds of policy, be allowed to contract for payment in anything but their existing currency, and that nothing but a clear stipulation to the contrary can take their contract without this rule. I do not at all dispute the authority of the English cases cited by the appellee’s counsel. On the contrary, I think them founded on strong reasons, and proceeding from the laudable determination of the courts of that country to construe contracts so as to effectuate the intentions of the parties. But I confidently submit, the case is a very different one here. I shall follow the principle of these adjudications in seeking for the intentions of the parties to this bond when they used the terms “ current 713funds,” and to that end can not overlook the fact that they were treating ££flagrante hello” I cannot be stopped on the threshold of this enquiry by the inexorable rule, contended for by the appellee’s counsel, that these words must be taken, by necessary implication of law, as importing Confederate currency alone. This would be, in my opinion, to disregard the true reason of these authorities, and to deny to our citizeps at that time, under all the contingencies and uncertainties of their condition, that absolute freedom of contracting in view of all possible eventualities, which the principles of our common law secure to all, in spite of the changes of government. Political changes and the conflict of arms do not affect nor abrogate private contracts where they do not contravene public policy nor positive enactments. The business of life must go on; and- unless the law upheld the contracts of men under such circumstances, not only at the time, but after the restoration of peace and a new order of civil polity, society would be disordered, and courts superseded in their most important functions. I cannot, therefore, agree with the able counsel for the appellees, that the parties here are precluded, by the reason, policy and intendment of the law, from affixing to the words ££ current funds” any other meaning than that of funds current at the date of the contract, and, consequently, ££ Confederate currency” On the contrary, I do not think these words, in the connection in which they are used, will bear this interpretation. I have two reasons for this opinion. The first proceeds from the well known condition of the currency at the time. It was greatly depreciated; and its depreciation was progressive, though with occasional and immaterial fluctuations. The question of the currency was most generally viewed apart from the fortunes of the Confederacy ; and the success of the latter was by no means assumed as guaranteeing the former. The assertion of 714the appellee’s counsel, namely, that while entertaining absolute faith in.the triumph of the Confederacy, he was doubtful of the ultimate redemption at par of the Confederate treasury notes, describes truly the prevalent opinion in this State. In view of the practices of the Confederate Congress and the fate of other revolutionary paper issues, such as our Continental money, French assignats, &c., it would have been strange if there had not been a very general mistrust of the Confederate notes, in quarters even where no doubt ever intruded of the final establishment of the government that emitted them. The fact of such mistrust is conclusively proven by the depreciation of these notes after the brilliant successes of the Confederate arms in the fall campaign of 1862, just preceding this contract. I, therefore, deem this state of the currency, and of public opinion respecting it, as a material fact influencing the parties to this contract in designating “ current funds ” as the medium of payment, and declining to leave that important stipulation to reference or construction through their silence. My second reason for objecting to this interpretation of these words, arises out of the context. It is a promise “ to pay, on demand, three months after notice to pay, the sum of five thousand dollars, without interest, in current funds.” This obviously imports that the funds were to be current at the time of payment. We cannot suppose that the time of payment should be made to abide exclusively the pleasure of the obligee, if it were not for the privilege thereby secured to him of awaiting and select-' ing a currency he might prefer to the existing currency. Whether that should be the currency of the Confederacy during the war, or after its cessation, or the currency of the United States upon the restoration of its authority over this State and its citizens, depended on contingencies, if not on the actual contemplation of the parties, at least in the scope of their contract. We cannot suppose that 715either the one or other of these parties, or, indeed, both, failed to consider the chances of the obligee being compelled to recall this loan, though at a sacrifice, before the termination of hostilities, or of his being enabled to await the advent of a sounder currency, in the event either of the establishment of the Confederacy, or its overthrow by the Federal arms. It will not do to say that such contingencies never entered into the calculations, or influenced the agreement of the parties; it is enough to know that the terms of the contract, whether so designed or not, are broad enough to cover them. The stipulation is express, that the obligee “ shall not he required to receive the money, except at his pleasure.” Why this remarkable provision ? What purpose was it intended to subserve ? I can conceive of no motive or speculation that led to it but this, namely, that inasmuch as the currency was then depreciated, and likely to undergo a further depreciation, the obligee might be thereby protected from the tender of a more worthless currency, and should have the option, without limitation as to time, to call for his money in a currency that might better suit him. The compensation for this privilege, on the obligor’s behalf, was an exemption from interest till after the demand of payment. The treaty of the parties may be explained in this wise: Mr. Hewton wants the use of these Confederate notes for some purpose or other not stated in this record j and in proposing to take them of Mr. Boulware, agrees, in view of their progressive depreciation, to protect him against loss from that source, and give him the benefit of any future improvement of the currency, by a stipulation that this money should be upon call for an indefinite period, to be fixed at the sole pleasure and will of Mr. Boulware. At the same time, and as a return for this large concession, he requires of Mr. Boulware that the obligor should not account for interest until after formal demand, nor be 716bound to pay until after three months notice of such demand. This seems to me to portray accurately the character of the negotiation that led to this bargain; and serves to elucidate the contract in which it resulted. Hence, the agreement of Mr. Newton is to pay the $55,000 without interest, at the call of Mr. Boulware, in such funds as might be current at the time of payment. In the event that has happened, this seems to be improvident; but in another event, this might not have been so. If from the ravages of war his creditor had been so reduced, or from other causes so inclined, as to call for payment in the fall of 186-1, then Mr. Newton would have realized a profit upon the adventure, proportioned to the sacrifice of the principal occasioned by the actual and lamentable depreciation of the currency at that time. The imputed hardship of the bargain in this respect, might, for aught we know, have been obviated by the use to which Mr. Newton applied this money. If he discharged therewith a specie debt, as was sometimes, though rarely done at that date, or purchased property at the same standard, he could in no event be injured. But whether this was done or not is matter of conjecture, merely employed by way of illustration. Let the bargain, however, be as imprudent and hard as it may be, if it is thus clearly written, and properly construed, there can be no relief against it in this form of action, and under these pleadings. If assailed as an unconscionable bargain, it must be in another forum. An action of covenant has been brought on this agreement, and a question arises, What shall be the measure of damages ? The statement in the bill of exceptions shows, that the consideration of this undertaking consisted in Confederate treasury notes of the nominal amount of $>5,000. These notes, from their depreciation, did not fulfil the proposed function of a representative of money; hence the Legislature, in order to prevent hardships and 717effectuate justice in private dealings in this fluctuating currency, resorted to sealing; and this court, as in case of depreciated bank notes, has treated these notes as a com-modify in trade. "While the common understanding and the literal form of the transaction justified the court below in describing it as a loan in Confederate treasury notes of f>5,000, we must look beyond the mode of expression into the actual substance of the contract. Had the contract contemplated the re-payment of that sum in the same currency in which it was received, then it would indeed have been substantially a loan; but I have endeavored to show that such was not the understanding of the parties, and that for the use of these notes the covenantor bound himself to pay the stipulated sum at a future and undefined time, in a currency that might be either better or worse, at the election of the covenantee. Hence, I take it that the price of this commodity was agreed, and that the only measure of damages for non-performance is that agreed price, namely, .\|5,000 in “funds current” at the time of payment. Erom the view I have thus taken, I conclude that this is a contraet of hazard. In the contingency of a demand of payment by the obligee when “ current funds” were more worthless than at the date of the 'contract, much of the principal would have been lost. Of course it is not to be supposed that the creditor would make the demand and give his notice at such a time, unless driven to it by inexorable want. But who can undertake to say, in view of the disasters that wrecked property and wealth to such an amazing extent, that this payment, however reduced by the state of the currency, might not have been necessary to the appellant before that currency totally expired by the .overthrow of the Confederacy,.? Besides, the debtor had on his side the weight of all those considerations which might have impelled to a call for this money, as a pruden718tial step to escape the greater loss and the vexatious delay-likely to attend the precarious credit, the deranged finances and the inflated currencies of the hostile governments. I am sustained in these views by the case of Brachan v. Griffin, 3 Call 375. In that case Griffin agreed, in consideration of ¿625,000 paper money, to be paid him by Willis in the years 1780 and 1781, to pay the latter ¿62,500 in specie in 1790. Griffin brought his bill in chancery for relief against Brachan the assignee, upon special circumstances that need not be here stated. He failed, and the contract was held obligatory. Judge Eleming said, that “ the contract in this case was founded upon speculation on both sides. Griffin thought the present use of the money would be advantageous to him; and Willis, that it would be more beneficial to receive the specie at a distant day. The contract seems to have been fully understood by the parties, and to have been fairly entered into upon both sides.” Judge Carrington adopted the same view, and said: “ This was a mere speculation upon the paper currency of the country. Griffin attached a value to the present use of a considerable sum of it; Willis calculated that it would be better to part with it and receive specie for it at a more distant period. Both of them acted fairly in making the contract, and there is nothing to taint or impeach it, if it has been complied with by Willis.” The language thus quoted from these judges in their decision of that case is strictly applicable to this. The engagement of Newton to pay in “ current funds” instead of specie does not make a difference between the eases so far as the principle of the adjudication is concerned, because of the maxim, that “ that is certain which may be made so.” Both of these contracts, therefore, may be properly termed “ speculations upon the paper currency of the country.” The only remaining question in this case, that of usury, 719is virtually disposed of by the interpretation already placed upon this contract. It has not been deemed a loan in the strict sense of that word; and the contingency has been pointed out that put in risk the principal itself. Interest is expressly forborne ; but that! would not suffice, if, as a shift to avoid the terms of the statute, there was an agreement to pay at a future period for a present loan an aggregate sum exceeding the principal and interest of the sum borrowed. But wherever the re-payment of the principal as well as the interest is made to depend upon the happening of contingent events, and may thus be jeopardized, a reservation of a larger sum than the interest, is accounted a compensation for the risk thus incurred and is not deemed usury. This principle is as old as the case of Roberts v. Tremayne, Cro. Jac. 507, where it was laid down: “If I lend ¿6100 to have ¿6120 at the year’s end, upon a casualty, if the casualty goes to the interest only, and not to the principal, it is usury, for he is sure to have his principal again, come what will come; but if the interest and principal were both in hazard, it is not then usury.” This ancient authority was impugned by counsel in the case of Smith v. Nicholas, &c., 8 Leigh 330, but was amply vindicated upon authority and reason by Judge Tucker, who delivered the opinion of the court in that case, which vacated as usurious a contract whereby the lender, besides his principal, contracts to receive, in lieu of interest, something which may be worth more than six per cent. per annum, though it may perhaps be worth less, as the dividends on bank stock. He quotes with approbation the remark of Judge Pendleton in Gibson v. Fristoe, &c., 1 Call 54,—“ but if the principal, or any considerable part, be put in risque, it is not usury because the excess in the premium is a consideration for that risqueand distinctly puts his decision on the ground “ that where the interest only is at hazard, the statute is infringed by a 720contract for more than legal interest.” Upon this same foundation rests the doctrine of maritime losses upon bottomry and respondentia, of such universal use and importanee in commerce. Here no interest accrues till after demand, and it is bnly in case the demand be not complied with that any can be due. The contingency or casualty in this case, therefore, affects only the principal; and because that may be worth more or less when called for in “ current funds” than the aggregate sum of principal and interest on the original sum advanced is the cause which attests the risk of this trade, and frees it from the charge of usury. The finding of the jury, therefore, against this plea is justified by two reasons: first, because the transaction is not to be treated as a loan, but as an agreement to pay for a commodity; and secondly, because, in the language of Justice Bridgman, in Soome v. Gleen, Sid. R. 27, it was “ a plain and square bargain, by which the principal was hazarded.” Though it may be inferrible that the appellee might have acquiesced in the finding of the jury against him on this plea of usury, he is clearly entitled to avail of the appeal of his adversary to correct any error therein to his prejudice. The whole record is before us, and if it discloses an error that should enure to the advantage of the appellee, we are bound, I presume, to correct it. I have, therefore, examined the question arising under this plea with the same care I should have done if it had been made the subject of appeal by Mr. Newton. I have thus endeavored to state plainly and succinctly my views of this contract, and the questions raised upon it. I am sensible of the importance of avoiding any grounds of misapprehension and mistake. It would be scarcely proper at this time to anticipate and prejudge a question that may hereafter arise out of the obligation to pay in ucurrent funds”—the synonym at this time of *721“ legal tenders ” or national bank notes, which are now quotable at a common rate of depreciation—and out of the inability of the court to render any other judgment but one sounding in dollars and cents, and of course entitling the party to lawful money. This is a grave question, which may not arise, and should not be decided except in a proper case and upon the fullest consideration. My investigation of this case has not been unattended by doubts and difficulties; but they have given way upon the anxious and careful deliberation I have given to this important inquiry. I have not felt the necessity of calling to my aid the rule that requires that all instruments should be construed “ contra proferentem.” Though the value of this rule has been decried, it seems to me to rest on sound reason; for it is to be presumed “that men will take care of themselves, and consequently that he who gives, and chooses the words by which he gives, ought to be held to a strict interpretation of them rather than he who only accepts.” 2 Parsons on Contracts 507; Meyer v. Isaac, 6 Mees. & Welsb. R. 605. Had my hesitation been greater, and my doubts more serious, the balance might have been turned by this rule against the sole covenantor ; but my mind was impelled in that direction by other principles of interpretation that I have already sufficiently indicated. The construction which I have thus reached obliges me to conclude that the judgment below should be reversed, and a new trial had in conformity with the principles herein declared. The other judges concurred in the opinion of Hives, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481704/	Moncure, P. This is a supersedeas to a judgment of the District Court at Williamsburg, affirming a judgment of the Court of Hustings for the city of Richmond, rendered on a motion on a forthcoming bond given under a distress warrant for rent. On the hearing of the motion in the Court of Hustings, the defendants in that court, who are the plaintiffs in error here, offered evidence tending to prove that the plaintiff in that court, who is the defendant in error here, was, before and at the time of the making and delivery of the said bond, indebted to the said defendants ; or, which is the same thing, to the National Express and Transportation Company, a body politic and corporate, upon whose goods, chattels and effects the warrant of distress in the condition of the said writing obligatory named was levied, in a sum greater than the penalty of the said bond, to wit, in the sum of $5,000; it having been agreed between the said plaintiff and the said defendants that any such debt might be urged by way of offset to the said bond, if evidence of such debt should be admissible; and the plaintiff thereupon objecting to the admissibility of the said evidence, the court rejected it, upon the ground that the defence of such offset was inadmissible in a motion upon a forthcoming bond taken under a warrant of distress. To this ruling of the court a bill of exceptions was taken, which presents the only question we have to decide 724in this case. That question, as already shown, is, Whether an offset, or a set-off, as it is more commonly called, is a good defence to a motion on a forthcoming bond taken under a distress warrant ? A forthcoming bond was for the first time authorized by law to be taken under a distress warrant at the Revision of 1849. So much of the law as is material to this case is contained in the Code, ch. 189, “ of forthcoming bonds,” §§ 1, 2, 3, 4 and 5, and is as follows: 1. The sheriff or other officer levying a writ of fieri facias, or distress warrant, may take from the debtor a bond with sufficient surety, payable to the creditor, reciting the service of such writ or warrant, and the amount due thereon, (including his fee for taking the bond, commission and other lawful charges, if any,) with condition that the property shall be forthcoming at the day and place of sale. Whereupon such property may be permitted to remain in the possession and at the risk of the debtor. 2. If the condition of such bond be not performed, the officer unless payment be made of the amount due on the execution or warrant, (including his fee, commission and charges as aforesaid,) shall, within thirty days after the bond is forfeited, return it, with the execution or warrant, to such court, or the clerk’s office of such court, as is prescribed by the 27th section of chapter 49. The clerk shall endorse on the bond the date of its return; and against such of the obligors therein as may be alive when it is forfeited and so returned, it shall have the force of a judgment. Rut no execution shall issue thereon under this section. 3. The obligors in such forfeited bond shall be liable for the money therein mentioned, with interest thereon from the date of the bond till paid, and the cost; the obligee or his personal representative shall be entitled to recover the same by action or motion. 7254. In an action or motion on such bond, when it is taken under a distress warrant, the defendant may make defence on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal. 5. If any such bond be at any time quashed, the obligee, besides his remedy against the officer, may have such execution on his judgment, or issue such distress warrant as would have been lawful if such bond had not been taken. In a note of the Revisors to chap. 148, § 7, of their report, p. 735, they say, in reference to the abolition of the action of Replevin, (which they recommend,) and of the remedies which they propose to substitute in its place, as follows: a The act of 1822-3, p. 31, ch. 29, § 3, after reciting that doubts exist whether the action of replevin, as provided for by the common law of England, is not still in force in this State, declared that the action should be construed to exist in no other cases than should arise under and by virtue of the act in 1 R. C., p. 446, ch. 113, concerning rents. If it is to exist in no other cases, we think it better to abolish it altogether, and to attain its objects by other means. In the case of an attachment, the defendant from whom rent or money is claimed, or a third party claiming the property attached, can assert his rights before the court to which the attachment is returnable. In the case of a distress, we have in a subsequent chapter (concerning interpleader and the settlement of the right to property distrained or levied upon), placed a third party claiming property distrained, upon the same footing as if he claimed property taken under execution. The only other case to w’hich the writ of replevin is now applicable in Virginia, is that of a tenant illegally distrained upon. We propose that a tenant be permitted to give a forthcoming bond when his goods are distrained for rent,.-' in like manner as a debtor may give such bond when"his. 726goods are taken under execution; and that on a motion on a forthcoming bond taken under a warrant of distress, the tenant be allowed to controvert the legality of the distress. Thus all the purposes for which the writ of replevin is now resorted to in Virginia, will be attained by other remedies with which counsel in this State are more familiar.” “If the action of replevin were retained, we think it would be better to extend it as a means of retaining specific property, to other cases than those of distress and attachment for rent.” “ Seeing, however, that it has been the pleasure of the General Assembly to narrow its range to a few cases, and that in those cases it is a remedy attended with a good deal of inconvenience, we have thought that it would probably suit counsel in this State and the community best to drop it altogether, and to adopt in lieu of it the other remedies mentioned in this note.” Thus it appears, that the defence which a tenant may make to an action or motion on a forthcoming bond taken under a distress warrant, was intended by the Legislature to be a substitute for his common law remedy by the action of replevin, which was abolished by the Code. It seems to be material, therefore, to enquire, in the first place, whether the defence of set-off could be made in that action. It seems to be well settled in England, that a set-off cannot be pleaded to an avowry for rent. Babington on Set-off, p. 8, 6 Law Library; 2 Pothier on Obligations by Evans, p. 115; Sapsford v. Fletcher, 4 T. R. 511. In that case Lord Kenyon, Oh. J., said: “It is much to be lamented that it should have been so decided; however, for the sake of certainty in the law, we must submit to those decisions till the Legislature alter the law.” On the other hand, it was at least as well settled in this State, that a set-off was a good defence to an avowry for rent in an action of replevin; as the cases cited by the 727counsel for the plaintiffs in error plainly show. Turberville v. Self, 2 Wash. 71, decided in 1795; same case, 4 Call 580; Nicholson, &c., v. Hancock, &c., 4 Hen. & Mun. 491, decided by Chancellor Taylor in 1809; and Murray, &c., v. Pennington, 3 Gratt. 91. Turberville v. Self was an important case, and was argued by Washington and Marshall on opposite sides. It is imperfectly reported in 2 Wash.; but is fully reported in 4 Call, from Mr. Marshall’s notes. The latter report was not published until 1833; which accounts for its not having been referred to by Chancellor Taylor in Nicholson, &c., v. Hancock, &c., supra, nor in 1 Rob. Pr., old ed., p. 420. The language of the English statutes of set-off, 2 & 8 Geo. 2, is different from that of ours. “ Where there are mutual debts between the plaintiff and defendant, &c., one debt may be set against the other,” &e., is the language of those statutes; Bab. on Bet-off, 2; while that of our act of December 29, 1806, which was in force until the Revisal of 1849, was, e< when any suit shall be commenced and prosecuted, &e., for any debt due by judgment, bond, bill, or otherwise, the defendant shall have liberty, upon trial thereof, to make all the discount he can against such debt; and upon proof thereof, the same shall be allowed in court.” 1 R. C. 1819, p. 487. The language of the law, as it stands in our Codes of 1849 and 1860, is substantially the same, or, at least, has the same meaning: “ In a suit for any debt, the defendant may, at the trial, prove, and have allowed against such debt, any payment or set-off which is so described in his plea, or in an account filed therewith, as to give the plaintiff notice of its nature, but not otherwise.” Code, ch. 172, § 4. The difference between the language of the statute of set-off in other States and that of ours may perhaps sufficiently account for the apparent conflict of some of the judicial decisions of those other States with our decisions before 728referred to. In this way, the eases cited by the counsel for the defendant in error, of McMahon v. Tyson, 23 Geo. R. 43; Sketoe v. Ellis, 14 Ill. R. 75; and Rae v. Halbert, &c., 17 Ib. 572; may be explained. For example: the statute of set-off in Illinois provides, that a. defendant “in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff, may set up the same, and have them allowed Mm upon the trial.” In the case last cited, it was held that a judgment is not a contract within the meaning of this statute; the court being of opinion that the words “ action,” contract,” and “ agreement,” in the statute, were used in their ordinary sense, and not with the intention of embracing every imaginable litigation, upon every cause of action. Id. 580. Now it happens that in our act of 1806, “debt due by judgment” is expressly enumerated as one of the causes of action to which the right of set-off applies; and in the Code the words are, “ In a suit for any debt,” which, of course, embraces a debt due by judgment. The reason on which the English decisions, that a set-off is not a good defence to an avowry for rent in an action of replevin, were founded is, “that the statutes make mention only of mutual debts; therefore the demand, as-well of the plaintiff as of the defendant, must be a debt; and a set-off is not allowed in actions for torts, as upon the case, trespass, replevin, or detinue.” Bab. on Set-off, p. 8. In other words, the action of replevin was regarded in this respect as an action ex delicto, as it certainly is in form, and so not within the terms of the statutes. Our courts, on the other hand, regarded the action, after the defendant’s avowry for rent, as, in substance, an action ex-contractu, by the defendant against the plaintiff, for the rent; and as therefore coming within the true intent and meaning, if not the literal terms also, of the act. Lord 729Kenyon, as we have seen, regretted that the English courts had not placed the same construction on their statutes. There is another very material respect in which the construction of the English statutes and ours has been different ; and that is, that in England it has been held that the set-offs relied on as a defence, must have been due to the defendant at the commencement of the action; Id. p. 9; while with us, “ discounts are allowed up to the time of the trial; but not so as .to destroy the plaintiff’s action and entitle the defendant to costs. If, therefore, after suit brought, the defendant buys bonds due by the plaintiff, though he may discount them on the trial, there will be a judgment for costs against him.” 2 Tuck. Com., book 3, p. 108, and cases cited. This course of decision in this State shows, that the statute of set-off has been liberally construed, with a view to the furtherance of its obvious policy, which is to prevent multiplicity of suits, and, as far as conveniently can be done, to effectuate in one action complete justice between the parties. Before the revision of 1849, our statute provided that “ the plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law, or of fact, as he shall think necessary for his defence.” 1 R. C. 1819, p. 510, § 88. Thus showing that the Legislature regarded the action of replevin, though commencing as an action ex delicto, in form, as becoming, in effect, after the avowry, an action ex contractu, brought by the defendant against the plaintiff for the recovery of the rent claimed in the avowry. When the action Iff replevin was afterwards abolished by the Code of 1849, the language of the above provision was changed to suit the case, and made to read thus: “ The defendant in any action may plead as many several matters, whether of law or fact, as he shall think necessary.” Code, ch. 171, § 23. Such was the nature of the action of replevin, and such 730the rights of the plaintiff therein, according to the decisions of our courts, when it was abolished by the Legislature at the revision of 1849, and another remedy substituted in its place, which was professedly intended to be, not only a simpler and easier remedy than the old one, but at least as beneficial, especially to the tenant. It was to attain, said the revisors, by means more familiar to counsel in this State, “ all the purposes for which the writ of replevin ” was then resorted to in Virginia. Now the writ of replevin was then resorted to for two principal objects; first, to retain possession of the goods distrained for rent until it could be judicially ascertained whether any rent was due, and if so, how much; and secondly, to afford an opportunity of making all the defences which the tenant was entitled to make against the landlord’s demand for rent; one of which defences, as we have seen, was, to set-off against that demand any debt due by the landlord to the tenant: The tenant had had no day in court, and the object of the writ was to give him a day in court, and enable him, in the meantime, to retain possession of his property distrained by his landlord. Let us now look again at the remedy provided by the Legislature, on the recommendation of the revisors, in lieu of the'1 writ of replevin. It is by giving a forthcoming bond, on which a judgment can be obtained only “ by action or motion.” By giving this bond, the tenant certainly attains the first object which was formerly attained by the writ of replevin: that is, he acquires the right to retain possession of the property distrained; and he also attains the other object formerly attained by that writ: that is, he acquires the right of making, in the action or motion on the bond, all the defences which he could formerly have made in the action of replevin, including the defence of set-off. That he acquires the right to make that defence would seem to me to result from the terms of the new law 731without reference to what was said by the revisors, and even without reference to the decisions of our courts before referred to, in regard to the action of replevin. There was a difficulty in applying the defence of set-off to that action as being in form an action ex delicto, which difficulty does not exist in regard to an “ action or motion ” on the forthcoming bond; and pven according to the doctrine of the English courts, I cannot see why “set-off” would not be a good defence to such an action or motion. But certainly I think it is, when we also take into view the decisions of our courts and recommendation of the revisors aforesaid. Such would be my construction of the Code, chapter 189, if it had not contained the fourth section. And I do not think that section restricts, if it does not enlarge, the tenant’s right of defence. The words of that section, as before stated, are: “ In an action or motion on such bond, when it is taken under a distress warrant, the defendants may make defence on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal.” It was properly conceded in the argument, that that section was not intended to embrace all the defences which may be made to such an action or motion; but that other defences, such as “ non est factum,” “conditions performed,” &c., may still be made. Why then, also, may not the defence of set-off, supposing it not-to be embraced in the terms of the fourth section above mentioned, still be"made? It was argued, that common law defences not embraced in those terms still may be made, but not statutory defences; and that the fourth section was intended to give the only statutory defences which could be made in such a case. But why so ? There is nothing exclusive in the language of the fourth section. It affirmatively declares that certain defences may be made, and not that certain other defences may not, or no other defence may, be made. Why, then, 732may not the defence of set-off, given by the Code, ch. 172, § 4, be made in the case ? The case comes within the literal terms of that section, and also within its spirit and policy. It was well settled that set-off was a good defence in the action of replevin, and the new remedy adopted by the Code in lieu of that action, was recommended by the revisors because, while it was a simpler remedy than that action, it at the same time would be as effectual, in all respects, as was that action. It seems, therefore, to follow, as matter of necessity, that the right to make this defence must be found either in the fourth section of chapter 189, before mentioned, or somewhere else in the Code. If it be not in the said fourth section of chapter 189, concerning “forthcoming bonds,” I find it in the fourth section of chapter 172, concerning “payment and set-off,” before referred to. If it could be found no where else in the Code than in the fourth section of chapter 189, then I would find it there; and I think the words of that section are sufficiently broad to embrace it, if it be necessary to do so in order to effectuate the manifest intention of the Legislature. That such was the manifest intention of the Legislature is, I think, beyond all controversy. It is almost impossible to suppose that the Legislature intended to take away from a tenant this ‘ well-settled right of defence which he had, and to compel him to pay the full amount of his rent to his landlord, though the latter might be indebted to him in a larger amount. The tendency of legislation has been altogether the other way. If the Legislature had intended to take away this well-settled right, they would have done so plainly, and not by mere implication. Instead of that, they have used language in perfect consistence with the continuance of the right, and which was recommended by the revisors as effectual to secure all the benefits which could have been derived from the action of replevin, including, of course, the right 733of set-off. Then I say again, that if it were necessary to effectuate this manifest intention of the Legislature, I would find the right to make the defence of set-off in the fourth section of chapter 189 : “ In an action or motion on such bond, &c., the defendants may make defence on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal.” May it not well be said, that the rent is not due in whole or in part when the landlord owes to the tenant a debt exceeding or falling short of the amount of the rent, and such a debt as would, beyond all question, be a good set-off against the rent in an action therefor? It is argued that these words, “for rent not due in whole or in part,” apply to “payments,” but not to “set-offs;” and that a set-off is not a payment. Strictly speaking, this may be so. Undoubtedly there is a difference in our law between a payment and a set-off; differing in this respect from the civil law which made a set-off a payment eo instanti that it became a set-off. “It is evidently a principle of natural reason and justice,” says Evans in his Appendix No. 13 to Pothier on Obligations, 2 vol. p. 112, “ that when two parties are mutually indebted, the balance only shall be paid, and that one of the parties shall not be compelled to pay the debt which he has incurred, and be left to sue for that to which he is entitled. This principle forms an essential part of the civil law, and the effect of such mutual debts in destroying each other is distinguished by the term compensation; the extinction or reduction of one debt ensues immediately and by operation of law upon the other being contracted, as is shown by the chapter to which this appendix refers.” Our law gives to the defendant an election to make his counter claim a set-off against that of the plaintiff, or bring his separate action for it. When he elects to make it a set-off, he gives to it, in most respects, the effect of a payment, and it just as effectually bars and extinguishes 734the plaintiff’s demand as would a payment of the same amount. Of course he cannot, by pleading set-off, take away the jurisdiction of the court in which the suit is brought, as he might by pleading and proving payment, because non constat, when the plaintiff brought his suit, that the defendant would elect to plead his set-off. Our statute treats of payment and set-off together, and places them upon the same ground in prescribing the mode of relying upon them as matters of defence. “ In a suit for any debt, the defendant may at the trial prove, and have allowed against such debt, any payment or set-off which is so described in his plea, or in any account filed therewith, as to give the plaintiff notice of its nature, but not otherwise.” Code of 1860, p. 716; § 4; and to the same effect is 1 it. C. 1819, p. 510, § 87. But it is argued that there is something in the nature of a forthcoming bond which is incompatible with the right to make such a defence as that of set-off; that the law declares, that when the bond is forfeited and returned as therein mentioned, it shall have the force of a judgment; and that no defence can be made to a motion on the bond which cannot be made to a scire facias on the judgment, except where the statute otherwise plainly authorizes. Whatever may be the force of this argument, I think I have shown that the statute does plainly authorize this defence, and therefore it may be made according to the concession of the argument. But I think too much effect is giyen in the argument to the words, “ shall have the force of a judgment.’,’ Even in regard to a forthcoming bond taken under an execution, it had the force and effect of a judgment only submodo, even under the old law which existed before the Code took effect. In Lipscomb’s adm’r v. Davis’s adm’r, 4 Leigh 326, it was held that the statute of limitations, 1 Rev. Co. ch. 128, § 5, whereby the remedy on a judgment by debt or scire facias is lim735ited to ten years, is no bar to a motion on a forth coming bond of more than ten years’ standing. Tucker, P., in bis opinion in that case, in which the other judges concurred, said: “ Admitting, however, that the bond has, to some intents, the force of a judgment as soon as it is filed, I think it obvious that it has not all the effect of a judgment, until there has been an award of execution. No execution can be sued on it, at the mere will of the party; the authority of the court must first be obtained by motion.” “ Moreover, it cannot be obtained by scire facias, but the motion and the action of debt are the only remedies. Then, again, though the statute gives to the bond the force of a judgment, still it looks upon it, until execution has been awarded, in a far different light.” The Judge then proceeds to show in what respects the bond differs from a judgment, and the effect of such difference; and concludes his opinion thus: “ Upon the whole, I am well satisfied that this provision of the statute of limitations does not apply to a forthcoming bond before the award of execution. But when upon motion, execution is awarded, it acquires all the characteristics of a judgment, and from that moment is within the statute. The party can never after elect to consider it as a common law bond; he has fixed its character as a judgment; he can now take out execution at his pleasure. If he fails to do so within the year, he is driven to his scire facias; and if his failure continues for ten years, he is barred forever.” Now this decision was made under the old law, contained in 1 R. C. 1819, p. 530, § 16, as amended by the act of February 23, 1822, Sup. R. C. 270, which authorized, first the clerk, and then the court, to award execution on the bond; whereas, by the Code, ch. 189, § 2, which gives to the bond the force of a judgment, it is expressly declared that “no execution shall issue thereon under this section;” but by the next section, 3, it is declared that “ the obligee, or 736his personal representative, shall be entitled to recover ” the money mentioned in the bond, with interest and costs, “ hy action or motion.” But whatever may be the defences which may be made to a motion on a forthcoming bond taken under an execution, the question is very different in regard to defences which may be made to a motion on a forthcoming bond taken under a distress warrant. The Legislature found it convenient to adopt the forthcoming bond as the means of affording a substitute for the action of replevin; but they did not intend thereby to adopt, in regard to such a bond, all the consequences which flowed from a forthcoming bond taken under an execution; or rather, they did not intend to place the two bonds on the same footing in all respects. The radical difference between the two cases consists in this : that when a forthcoming bond is taken under an execution, it is a part of the process of the execution of the judgment, and partakes of all the finality which belongs to the judgment. When the bond falls, the execution on which it was taken falls with it, and the judgment stands in full force, subject to the right of the plaintiff to sue out a new execution thereon. The plaintiff having obtained his judgment, the defendant can not obstruct its execution by making defences which he might have made, but neglected to make, before the judgment which concludes him was obtained. But in the case of a forthcoming bond, taken under a distress warrant, there has been no judgment. The tenant has had no day in court; and when the bond is quashed, the landlord falls back upon no judgment, but upon his mere claim for rent, for which he may sue or distrain, as before. This is a palpable distinction between the two cases,-and to that distinction we must look in determining upon the rights of defence which may be made to an action or motion on the bond in either case. There is no magic in 737the words, “ forthcoming bond,” which can take away or prevent the defence of set-off in this case. They well enough define the meaning and object of the instrument to which they are applied, but rve must take care not to be misled by them. The difliculty arises from the use which has been made of them in regard to executions on judgments, and the force of a judgment which has always been given to them by law when forfeited and returned, because they then stand in the place of the judgments i 1 satisfaction of which they were taken. And the present law continues to say in regard to all forthcoming bonds, whether taken under an execution or under a distress warrant, that when forfeited and returned as therein mentioned, “they shall-have the force of a judgment.” We have seen in what a limited sense these words were used, even in regard to a bond taken on an execution under the former law; and they must have been used in a still more limited sense in the present law, especially in regard to a bond taken under a distress warrant. They were no doubt used in the latter case to give to the landlord the additional security (for the amount of rent due him) of the lien of a judgment on the real estate of the obligors; but certainly not to take away from the tenant a just defence, to which he was before entitled, against the claim of the landlord. These views afford a sufficient answer to the eases of the Bank of the United States v. Patton, &c., 5 How. Miss. R. 200; and Kelly v. Lank, &c., 7 B. Mon. R. 220, cited by the learned counsel for the defendant in error. Those cases arose under the forthcoming bond law of Mississippi, which is similar to our former law on the subject. For the foregoing reasons, I am opinion that “set-off” is an admissible defence in a motion upon a forthcoming bond taken under a warrant of distress; that the Hustings Court erred in excluding the evidence offered in that court tending to prove such a set-off as is mentioned in the *738bill of exceptions; that tbe judgment of the said Hustings Court, and also the judgment of the said District Court affirming it, are both erroneous; that the said judgments be reversed, with costs; and that the cause be remanded to the said Hustings Court for a new trial to be had therein, according to the principles above declared. The other judges concurred in the opinion of Mon-cure, P. The judgment of the court is as follows : The court is of opinion, for reasons stated in writing and filed with the record, that the defence of set-off is admissible in a motion upon a forthcoming bond taken under a warrant of distress; that the said Hustings Court erred in excluding the evidence offered in that court tending to prove such 'a set-off as is mentioned in the bill of exceptions; and that the said judgment of the said Hustings Court, and also the said judgment of the said District Court affirming it, are both erroneous. Therefore it is considered, that both of the said judgments be reversed and annulled, and that the plaintiffs recover against the defendant their costs by them expended in the prosecution of their writs of supersedeas in this court and the said District Court respectively. And it is ordered, that this cause be remanded to the said Hustings Court for a new trial to be had therein of the motion on the said forthcoming bond; on which new trial the defence aforesaid, if again offered to be made, and the evidence aforesaid, if again offered to be introduced, are to be admitted. Which is ordered to be certified to the said District Court, and by the clerk thereof to the said Hustings Court.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481705/	Rives, J. This is a bill by judgment creditors of the husband, to set aside as fraudulent a settlement upon his wife. Its allegations are that the husband was wholly insolvent, and that the consideration for the deed of 8th October, 1861, whereby the land therein described was conveyed to a trustee fpr the separate use of the wife, moved from him alone, and that the deed was the product of a fraudulent agreement between himself and wife to defraud his creditors, and that the husband was in truth the owner of the land conveyed. These charges of fraud are distinctly denied in the answers of both husband and wife. The husband in his answer denies his insolvency; and as proof of his ability as well as intention to provide for his creditors, exhibits his trust deed of 29th August, 1860, by which he dedicated his property, estimated at $2,600, to their satisfaction. He then proceeds affirmatively to state how the settlement came to be made, namely: that the purchase money to the extent of two thousand dollars was derived from the sale of his wife’s undivided interest in her father’s estate to one Thomas J. Roach; and in corroboration thereof, exhibits the will of 'her father to establish her interest, and also the deed of himself and wife, of 1st November, 1860, conveying this interest to said Roach, and acknowledging the receipt of two thousand dollars therefor. He accounts for the balance of the purchase money to procure the deed to the wife, by stating it was derived from the products of the land. This is the state of the pleadings. No proofs wexe taken. The court thereupon proceeded to decree, upon default of payment within ninety days, the sale of the land in question. The question is, therefore, made, whether this decree was not premature, and whether there should not' have been a reference to a master to ascertain whether, and to what extent, a good consideration_existed for the settle744ment aforesaid; whether there should not have been some account required of the trust fund, so as to fix the amount due; and, finally, whether there should not have been an enquiry, under the ninth section of chapter 186 of the Code, p. 771, into the sufficiency of the rents and profits of said real estate to satisfy these creditors in five ye'ars. It is contended, with much ingenuity, that the deed to Roach imports a conversion to the husband, and extinguishes by the wife’s privity her interest in the fund.’ This is perhaps so on the face of the instrument; but inasmuch as it discloses the sale of the wife’s contingent interest, it is open in equity to proof that the husband was permitted to receive the fund arising therefrom upon an express trust for the settlement thereof upon the wife. That there was such understanding is rendered probable by the fact that the husband, having by his deed of 29th August, 1860, disposed of all his property for the benefit of his creditors, could scarcely have procured his wife’s assent to the sale of her contingent interest in her father’s estate, and to his receipt of the proceeds, without some agreement on his part to invest it for her separate use. The fraud was responsively denied; it was not proven; and this affirmative statement of the origin and character of this settlement was prima facie corroborated by the exhibits and the facts and dates of the transaction. It was erroneous, therefore, to assume the fraud as established, and to pretermit a reference to the master to report the facts of such alleged settlement. Judgment creditors are not to be delayed in the enforcement of their liens, unless in conformity with the principles and practices of the court, to which they resort. If the want of a settlement of the trust subject, devoted by the debtor to these creditors, was the only ground for delaying the sale prayed for, it might, perhaps, be disregarded; but when, on another account, a reference was 745necessary, and no further delay would be incurred, it was proper to direct the trustee to be made a party, and to require him to render his account before the same master to whom the other enquiry had been directed. In respect to the third and last enquiry suggested, it will be seen, the language of the Code is very clear. After declaring, that “ the lien of a judgment may always be enforced in a court of equity,” it does not authorize such court to decree a sale of real estate, or any part thereof, unless “ it appear to such court that the rents and profits of the real estate, subject to the lien, will not satisfy the judgment in five years.” This enactment was doubtless designed to clear up the difficulties arising under our decisions of Haley v. Williams, 1 Leigh 140; Blow v. Maynard, 2 Id. 29; Tennent’s heirs v. Patton, 6 Id. 196; McClung v. Beirne, 10 Id. 394; and McNew v. Smith, 5 Id. 84, cited by the counsel for the defendants in error; and to fix the grounds and extent of equitable jurisdiction in the enforcement of judgment liens. These cases- left it in doubt what were the precise limits of the discretion to be exercised in decreeing satisfaction out of the rents and profits; so that it -was peculiarly fit for the Assembly to step in and regulate the matter by positive enactment. This it has done in language clear enough to comprehend all imaginable cases; nor does it seem to me there is any ground to suppose from the report of the revisors, as was ingeniously contended for, that the case of original equitable jurisdiction to set aside a fraudulent conveyance was not designed to be embraced by these terms. But under the authority of Manns v. Flinn’s adm’r, 10 Leigh 93, it is contended that it is now too late to raise this objection in this court; or rather to treat it as a ground of reversal. That was the case of an interlocutor¶ 746decree where the party having ample opportunity to apply to the court to alter the decree in that particular, and failing to do so, could not object to an affirmance, whereby the cause was remanded, with direction to alter the decree and direct satisfaction out of the rents and profits, if such alteration be asked, and if the debt can be satisfied out of the rents and profits within a reasonable time. Here, however, for reasons already assigned, this is not a case of affirmance, and there being a necessity for reversing the decree on distinct grounds of error, the principle of this decision .does not apply; and the appellant has an excuse for not raising this question below, because the contro-’ versy was directed wholly to the liability of this land, to the liens that were asserted by the bill. For these reasons, I am of opinion the decree in this cause should be reversed, and the cause remanded with a view to the enquiries I have indicated. The other judges concurred in the opinion of Rives, J. Joynes J. read the decree of the court as follows: The court is of opinion, that before proceeding to declare the conveyance of the tract of land in the proceedings mentioned from Robert A. Lancaster and wife to Wellington Goddin, in trust for the separate use of the appellant, to be null and void as to the creditors of the appellee Henry R. Cronie, the said Circuit Court should have directed an enquiry by a commissioner to ascertain whether or not the appellant united with her husband, the said Henry R. Cronie, in the deed of November, 1, I860, conveying the contingent interest of the appellant under the will of her father to Thomas J. Roach, upon an agreement that the money paid by the said Roach to the said Henry R. Cronie as the consideration of said deed, or any 747part thereof, should he invested and secured by the said Henry R. Cronie for the separate use and benefit of the appellant; and if so, whether the said sum, or any part thereof, or an equivalent for it, was applied by said Henry R. Cronie, in pursuance of such agreement, towards the payment of the purchase money of the tract of land aforesaid conveyed by the said Lancaster and wife in trust for the appellant as aforesaid; the court being further of opinion, that if there was such an agreement in reference to the money received by said Henry R. Cronie under the said deed of November 1,1860, and if the said money, or any part thereof, was, in pursuance of said agreement, applied by said Cronie towards the payment of the purchase money of the said tract of land, then to the extent of the sum so applied, the trust in favor of the appellant created by the deed aforesaid from said Lancaster and wife, is valid against the creditors of said Henry R. Cronie. And the court is further of opinion, that inasmuch as some of the creditors of Henry R. Cronie, whose claims are reported by the commissioner, are provided for by the deed of trust of August 29, 1860, in the proceedings mentioned, it would be contrary to equity to allow them to disturb the settlement made upon the appellant by the said deed of November 1, 1860, until they have exhausted the fund thus provided for the payment of their debts; and it would also be contrary to equity, in case the tract of land aforesaid should not sell for enough to pay all the debts, to allow the creditors thus provided for to participate with other creditors in the proceeds of the sale of such land in proportion to the full amount of their debts, leaving them to resort to the fund provided by the deed of August 29, 1860, for the payment of the residue of their said debts. The court is, therefore, of opinion, that the 748said 'Circuit Court should have required the plaintiffs in that court to amend their bill and make E. Moncure, the trustee in the said deed of trust of August 29, 1860, a party defendant, and should have proceeded to take an account of the said trust fund, and to apply the same to the debts provided for by the said deed, so as to ascertain the balances, if any, remaining due upon the said debts. And the court is further of opinion, that the said Circuit Court should not have proceeded to decree a sale of the said tract of land, without first ascertaining by evidence, or by an enquiry by a commissioner, in pursuance of the provision of ch. 186, § 9 of the Code of 1860, that the debts chargeable upon the said land could not be satisfied by the rents and profits thereof in five years. The court is, therefore, of opinion, that the said decree of November 8, 1867, and the previous decree of May 4, 1867, are erroneous. Wherefore it is decreed and ordered that the said decrees be reversed and annulled so far as they are hereinbefore declared to be erroneous, and that the same be affirmed in all other respects; and that the appellees, except Henry R. Cronie and Wellington Goddin, and except William R. W. Garrett, executor of Lewis W. Garrett, deceased, out of their own estate, and the said Wrilliam R. W. Garrett, executor of Lewis W. Garrett, deceased, out of the assets of his testator in his hands, pay to the next friend of the- appellant his costs by him expended in the prosecution of the appeal aforesaid here. And the cause is remanded to the said Circuit Court for' further proceedings to be had therein, in conformity with this opinion and decree. And it is further ordered, that the costs hereby decreed to be paid to the appellants shall, after the same shall have been paid, upon the application of any of the parties who shall have paid the same or any part thereof, be apportioned and distributed by the said *749Circuit Court among the several parties liable for the same under this decree, in proportion to the amount of their respective debts as reported by the commissioner, so that each of said parties shall, as among themselves, hear only his ratable proportion thereof; which is ordered to be certified, &c. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481707/	Moncure, P. This is an action of assumpsit brought by the defendants in error, Weeden, Johnson & Co., merchants of Baltimore, against the plaintiffs in error, S. M. & M. Rosenbaum, merchants of Richmond, to recover damages alleged to have been sustained by the former in consequence of the refusal and failure of the latter to accept and receive certain goods bargained and sold, and, according to the contract of sale, tendered to them by the former. The declaration contains three special counts, and also a general count on an account stated. There was a demurrer to the declaration and each count of it, which was after-wards withdrawn, and the general issue was joined and tried, on which a verdict and judgment were rendered in favor of the plaintiffs in the court below for $1,360.89, with interest thereon from the 18th day of April, 1866, till paid. On the trial of the cause, the defendants in the court below moved the court to give three instructions to the jury; the first of which was accordingly given, but the second and third were refused; and a bill of exceptions was taken to the opinion of the court refusing them. The only questions wo have to decide in this case are, Whether the court erred in refusing to give the second and third instructions aforesaid respectively ? 787The evidence introduced on the trial is set out in the bill of exceptions, and tended to prove, in substance, that on the 15th of January, 1866, Mr. Orabbe, one of the firm of the vendors, who resided and did business in Baltimore as jobbers and wholesale dealers in drygoods, being on a trip to the South, called at the store of the vendees in Richmond, and contracted to sell them ten bales of cotton goods called “Lanarks,” an article well known to the trade, at a certain price, and to he of a certain width, if they could be procured in Baltimore. Mr. Crabbe immediately communicated the fact of the sale to his partners in Baltimore, who purchased the goods, and on the 17th of the same month shipped them to the vendees in Richmond, and sent them also a letter and an account, which are set out in the bill of exceptions. The goods arrived in Richmond on the 10th of the same month—January, 1866. On the next day, the 20th, the vendees wrote to the vendors in regard to the goods, which had been received by the former. The letter is not in the record, not having been offered in evidence on the trial; but it appears from the reply of the vendors to that letter, that the vendees objected to the goods on the ground that they were not the article they had contracted to purchase; that they had contracted to purchase cotton goods, called “Warrens,” whereas the goods sent were “Lanarks.” The said reply of the vendors bears date on the 22d of the same month, and is in the record. In it the vendors say that Mr. Crabbe’s order was to send “Lanarks,” and that it would not do to substitute any other brand; that they could hardly think that Mr. C. intended to sell, or the vendees could have expected to buy, “Warrens” at the prices named; that Mr. C. was in North Carolina., and would be in Richmond in a few days, and they preferred waiting for him to see the vendees, as he was familiar with the terms of sale. On the 29th of the same month, the vendees again 788wrote to the vendors; but the letter is not in the record. Its purport, however, appears from the reply to it which is in the record, and bears date on the next day, to wit, the 80 th of January, 1806. In that reply the vendors say: “Yours of the 29th to hand, in which you say that Mr. Crabbe has not called to settle the matter of the Lanarks sheetings, and that you wish us to write you by return mail, whether you should ship them to us or store them at our expense. We beg to say, in reply, that Mr. Crabbe must decide whether or not you ordered the Lañarles. If you did order that make of goods, we shall not take them back to account. If he sold you Warrens, or any other make than Lanarks, we will cheerfully take them back. Mr. C. writes us that he will be in Richmond this week, and we must ask of you to await his decision in the matter.” A few days after the date of that reply, to wit, on the 3d of February, Mr. C. returned from North Carolina to Richmond, and had an interview with the vendees, the particulars of which are not stated, but the result was unsatisfactory ; as it appears that shortly thereafter eight of the ten bales of the said goods were returned to the vendors; the other two (which, according to the evidence offered by the vendees, had been opened and found to be wet, and not of the description of goods contracted to be purchased by them,) having been retained and paid for by them, without prejudice to their defence in this suit. On the 10th of February, the vendors wrote to the vendees as follows : “ The Pow'hatan Steamboat Company delivered to us to-day eight bales brown cotton, which we presume are from you. We received these goods under protest, and so notified the captain of the steamer that brought the goods. We hereby notify you that we received these goods under protest, and hold them subject to your order. We have paid the freight and charged to you. We hold your letter stating, as one of your excuses for returning 789these goods, that they were damaged. "We do not see that those returned are damaged, and have once more to say to you, that Mr. Crabbe’s affidavit that you bought these goods warrants us in stating that we shall hold you to your contract.” The goods having, it seems, been contracted to be sold on a credit of thirty days, the vendors, on the 15th of February, 1866, drew on the vendees at sight for $2,706.88, the price of the eight bales returned, with expenses added, but the draft was protested for nonpayment. In the latter part of the same month of February, one of the vendees met one of the vendors in New York, and promised to call at the store of the latter in Baltimore and settle the claim for the price of the cottons. On the 5th of April following, a written notice, signed by the vendors, was addressed to and served on the vendees, to the following effect: “We hereby give you notice, that whereas, there are eight bales of brown muslins now in our warehouse in this city (Baltimore) belonging to you, which you have been notified to remove upon payment of our claims against said goods, amounting to $2,749.75, as per our account rendered, and which you have failed to do; wTe shall, unless said claim is paid before the 16th day of this month, April, 1866, proceed to cause the said eight bales of muslins to be sold on that day, at public auction, at the auction house of Bex, Higgins & Oo., in this city, on your account and at your risk and charges, and shall look to you for any deficiency arising from said sale.” The goods were not sold on the day named in the notice, because it was not the regular sale day of the auction-house, and it was thought better by the vendors, for all parties, to postpone the sale to the regular sale day, which was the 18th, on which day the goods were sold at auction fairly, and brought the net sum of $1,240.03, which, in the opinion of the witness, was as much as they would have brought on the 16th. The market for such goods had been con790tinually falling, from the day of the first sale in January, to the sale at auction on the 18th of April. ISlo notice was given to the vendees of the change of the day of sale from the 16th to the 18th, though the sale was advertised as to each day in the Baltimore Sim, by Rex, Higgins & Co., the auctioneers; but the names of the parties concerned were not mentioned in the advertisements, which described the goods, and stated that they would be sold for cash, on account of whom it might concern. The 2d and 3d instructions, which were asked for by the vendees and refused by the court, are as follows: 2d. If, from the evidence, the jury shall believe that notice w’as given by the plaintiffs to the defendants, that the goods would be sold on account of the defendants, on the 16th of the month, and they were not sold on that day, but without further notice to the defendants was sold on the 18th of the month, then the plaintiffs are not entitled to recover. 3d. If the plaintiffs delayed the resale of the goods for an unreasonable time, upon a falling market, and then sold them, they are not entitled to recover. If a vendee of goods refuse to accept them when tendered according to the contract of sale, the vendor may elect to rescind the contract and keep or dispose of the goods for his own use, or to let it remain in full force and hold the vendee liable for the price of the goods and all damages arising from his breach of the contract. If he elect to let the contract remain in full force, he may either bring his action for the price of the goods when it is due and payable, or he may sell the goods, apply the net proceeds of sale to the credit of the vendee on account of the money due by him, and bring an action against him to recover the balance. That the vendor may resell the goods in such a case is now well settled, though his general right to do so was for a long time doubted. It has 791been frequently the case that a condition was annexed to a sale, that the goods should be resold at the risk of the purchaser if he failed to comply with the terms of sale. In every such case, of course, the right of resale, and the liability of the first purchaser to make good the loss, existed. In cases of contracts entered into by the East India Company at their sales, it is usual, we are told, to introduce an express clause authorizing a resale by the vendor in the event of the purchaser’s default, and charging him with the loss, if any, and the expenses; and it appears to have been the opinion of Lord Ellenborough that the law did not impliedly confer this power of reselling. But it has since been established, that where the price is unpaid, such power exists, even in the absence of any express stipulation ; and that the purchaser is responsible for any loss which may occur, although he did not consent to the resale. Chitty on Contracts 381, marg. See also the cases cited in note (2.) The power, in the absence of contract, seems at first to have been placed upon the ground, that where the goods are perishable, the vendor is not bound to let them perish in his hands, and thus lose his security. But this ground very much restricted the rule, and it has since been made general. The case of Maclean v. Dunn, decided by the Court of Common Pleas in 1828, and reported in 4 Bing. 722, 15 Eng. C. L. R. 129, clearly recognized the general rule. “It is admitted,” said Best C. J. in that case, “that perishable articles may be resold. It is difiicult to say what may be esteemed perishable articles, and what not; but if articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another. It is a practice, therefore, founded on good sense, to make a resale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some ovidence 792of the law, and we ought not to oppose it, except on the authority of decided cases.” “It is most convenient that when a party refuses to take goods he has purchased, they should he resold, and that he should be liable to the loss, if any, upon the resale. The goods may become worse the longer they are kept; and, at all events, there is the risk of the price becoming lower.” The course of the English decisions on this subject, with the exception of the more recent cases, may be seen by referring to Blackburn on the Contract of Sale, from p. 329 to the end, where these decisions, down to the period of the publication of that valuable work, are collected. The work may be found in McKinley & Lescure’s Law Library, vol, 10, for a reference to which I am indebted to my brother Joynes. The same doctrine is laid down in our own elementary works on the subject. Chancellor Kent thus states it: “ If the buyer unreasonably refuses to accept of the article sold, the seller is not obliged to let it perish on his hands, and run the risk of the solvency of the buyer. The usage on the neglect or refusal of the buyer to come in a reasonable time after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales.” 2 Kent’s Com. 504, marg. Indeed, the doctrine seems to have been settled in this country at a much earlier period than in England. In Sands, &c., v. Taylor, &c., 5 John. R. 395, decided by the Supreme Court of New York in 1810, which is our leading case on the subject, and has ever since been followed in our American courts, the doctrine was recognized in its fullest extent. It is not strange that the authority of that case should be so great, when it is sustained, not only by the reasons rendered by the court in deciding it, but by the fact that Kent Ch. J., and Spencer, Thompson, Yates and Yan Ness, Judges, composed the court, and were unanimous in making the decision. 793If the vendor elect to sell the goods and hold the vendee liable for the loss, he ought, of course, to notify the vendee that such is his election, in order that the vendee may know what the consequence of his continued default may be, and may, if he can and chooses to do so, avert it by performing his contract and receiving the goods; or at least may endeavor to mitigate his loss by paying some attention to the resale of the goods. Considering the contract of sale as still in force, the goods belong to the vendee, subject to the lien of the vendor for the price which is due to him. In selling the goods, therefore, for the payment of the price, he acts as the vendee’s agent, and ought to sell them to the best advantage, so as to obtain the best price he can. Sands, &c., v. Taylor, &c., supra. Generally he ought to sell them at auction, because, generally, they will sell to most advantage in that way. But he need not always sell them in that way, and it would be improper for him to do so if it happened that they would sell to greater advantage in some other way. Crooks v. Moore, 1 Sandford’s Superior Court R. 297, is an important case on this subject, and the reasons assigned by the court are very strong. The resale in that case was of iron, and it was a private one, made through a broker in metals. It was contended that it should have been made at auction. “As to this point,” the court said, “we are not aware that there is any rule of law which requires resales to be made at auction, and in no other mode. We believe the more sensible rule to be, that the seller must dispose of the goods in good faith, in the mode best calculated to produce their value. If the usual mode of selling the particular goods in the market where they are offered be at public auction, he ought, unquestionably, to dispose of them in that manner. If, however, large dealers in the article in question never send such goods to auction, and they will sell to more advantage through a broker, it is 794equally liis duty to offer them in the market through a broker’s agency.” Id. 303. While it is the duty of the vendor to notify the vendee of his intention to resell the goods at the latter’s risk, it is not settled that he is bound to notify the vendee of the day and place of-sale, even though it be at auction. There are certainly expressions to that effect in some of the recent cases. McEachron v. Randles, 34 Barb. R. 301. But they do not seem to be sustained by authority, and there are decisions the other way. In Gashell v. Morris, 7 Watts & Serg. R. 22, which was a case of a resale by a sheriff of property sold under execution, and an action brought by him to recover the loss upon the resale, one of the errors assigned was, that the defendant below received no notice that a second sale of the property was to take place, nor of the time and,place thereof. “But the record shows,” said the court, “that evidence was given to the court and jury, showing that he was required and notified by the sheriff, the plaintiff below, to pay the purchase money according to the terms of the sale, or otherwise the property would be resold at his risk. This notice, if any "of the sort was requisite, was sufficient to put him on the lookout, so as to guard against the consequences of a resale, which could only be done by his paying the purchase money without delay. It was certainly not the duty of the sheriff to notify the defendant below of the time and place at which the resale would be made; it was sufficient, if not more than he was bound to do, to let the defendant know that unless he paid the purchase money after it became payable according to his undertaking, a resale would be made at his risk; and this, as appears by the evidence, was done.” It is, of course, prudent and safe for the vendor to give notice to the vendee of the time and place of sale, if it is to be at auction, because the vendee will then have an opportunity of attending the sale and taking care of his own in795terest; and if he neglect to do so, it will be his own fault. He will have less, if he can have any, cause to complain of a sacrifice at such resale, if it be fairly made, and he had due notice of the time and place of making it. But upon principle there can be no necessity for such notice to be given by the vendor, in order that he may maintain an action against the vendee for not complying with the terms of the original sale. He has a right to maintain such action for such non-compliance merely, and is at least entitled to nominal damages. The quantum of damages which he really sustains and is entitled to recover, is the difference between the contract price of the goods and the price which they produced at the resale, supposing such resale to have been fairly made, or if not so made, then the price which they would have produced at such resale if it had been so made, after deducting from such price, in either case, all expenses incurred by the vendor in taking care of the goods and selling them. In none of the elementary books on the subject that I have seen, is it laid down that notice to the vendee of the time and place of sale is necessary. In some of the reported cases it appears that such notice was in fact given; and that, no doubt, is the usual, as it is the more prudent, course. In one of them, Crooks v. Moore, supra, such notice was given, but the sale was not made till several days after the day named in the notice; and yet no objection was made by the vendee on that account, although the change was made without his consent or concurrence. No averment of such notice is made in the declaration in such cases. 4 Rob. Pr. 802. The vendor is not bound to sell the goods at all, but may do so or not at his election. He may, if he chooses, continue to hold them at the risk and as the goods of the vendee, and recover the price of them in an action for goods bargained and sold. If he elect to sell them, he is not bound to make such election immediately after the vendee’s default. 796but may do so at any time while the default continues. He has a lien on the goods so long as they remain in his possession and the default continues, but lie is not bound to enforce that lien. It is for Ids benefit and not that of the vendee, whose remedy is to perform the terms of sale and take possession of the goods. “He,” the vendor, says Parsons, “may consider them as his own, if there has been no delivery; or he may consider them as the vendee’s, and sell them, with due precaution, to satisfy his lien on them for the price, and then he may sue and recover only for the unpaid balance of the price; or he may consider them as the property of the vendee, subject to his call or order, and then he recovers the whole of the price which the vendee should pay. As the action, in either case, proceeds upon the breach of the contract by the vendee, it seems reasonable that this election should be given to the vendor, and no part of it to the vendee.” 3 Parsons on Contracts 209. How let us apply the foregoing principles, or such of them as may be applicable, to the case we have in hand. The first question arises on the second instruction asked for by the defendants, and refused by the court, which asserts, that if notice was given to them that the goods would be sold on their account on the 16th of the month, and they were not sold on that day; but, without further notice to the defendants, were sold on the 18th of the month, then the plaintiffs are not entitled to recover. If it be a true principle of law, as before stated, that no notice of the time and place of sale was necessary to maintain the action, then of course the instruction wras properly refused. If it had been proved that the defendants sustained any injury from the change of the day, it might have been material matter on the question of damages, and it might have been the duty of the court to instruct the jury to that effect, if such an instruction had 797been asked for. And even in that case the plaintiffs would have been entitled to recover something. But no such proof was offered. The defendants seem to have given themselves no concern about the sale, and did not attend, so far as appears from the record, on the day and at the place of sale named in the notice, which was served upon them more than ten days before the day of sale. The plaintiffs, being thus left to judge for themselves and the defendants, adjourned the sale from the lGtli to the 18th of the month, because the latter was the regular auction sale day of the auctioneers who made the,sale, and the plaintiffs thought it would be better for all parties that the sale should be made on that day. No notice was given to the defendants of such postponement. The time was probably too short, as they lived in Richmond, and the sale was to be in Baltimore. And as they did not attend at the time and place named in the notice which was given, it may wrell have been inferred that they did not desire notice of the postponement, and would disregard it if given. Notice of the sale on the latter, as well as the former, day was inserted in the Baltimore Sun. The goods were sold at auction fairly on the 18th, and brought as much, in the opinion of the witness of the plaintiffs, as they would have brought if they had been sold on the IGth. On that question, the defendants offered no testimony on the trial. There can be no doubt, I think, of the propriety of refusing to give the second instruction. The next and only remaining question arises on the third instruction asked for by the defendants and refused by the court, that is : “ If the plaintiffs delayed the re-sale of the goods for an unreasonable time, upon a falling market, and then sold them, they are not entitled to recover.” The plaintiffs, as we have seen, had a right of election to sell these goods or not, and could elect to sell them at any time while they remained in their hands, and the 798default of the defendants continued. And this right was not at all affected by the fact that the goods, during all the time they remained in their hands, were falling in their market value. They still had a lien upon the goods which they could enforce or not, at their election. The defendants’ plain remedy, as before mentioned, was to comply with the terms of sale, and take away the goods. There could be no room, then, for saying that the plaintiffs delayed the re-sale for an unreasonable time upon a falling market, since they might elect to sell at any time and in any state of the market.. The plaintiffs promptly, on the return of the goods by the defendants, gave them notice that they would hold the goods subject to their order, and would hold them to their contract. The plaintiffs continued so to hold the goods until the 5th of April, when they elected to sell them, and gave notice to the defendants to that effect. Their hope was that there W’ould bo no necessity for a sale, but that the defendants would pay the purchase money and take their goods. On the 15th of February the plaintiffs drew on the defendants at sight for the amount due, but the draft was returned protested. In the latter part of February, one of the defendants promised one of the plaintiffs to call at the store of the latter and settle their claim for the price of the cottons. Nothing further having been done by the defendants towards a settlement of the claim, the plaintiffs on the 5th of April elected to re-sell the goods, and look to the defendants for any deficiency arising from such resale; and accordingly, on that day, gave them the notice to that effect, which has been before mentioned. Certainly there was no unnecessary delay in making the sale after the plaintiffs elected to make it. Only eleven days notice was given of the sale, which was not unreasonably long, considering the residence of the respective parties, and especially considering the opportunity which was intended 799to be afforded to tbe defendants to prevent the sale by paying the claim before the sale, which they were admonished by the notice to do, and thus avoid the consequences. But even if it could be said that the plaintiffs delayed the re-sale of the goods for an unreasonable time upon a falling market, and if there were any evidence in the case tending to show such unreasonable delay, still it could not properly be said that they were not entitled to recover. They would certainly be entitled to recover something, and would at least be entitled to recover the difference between the contract price of the goods and the price they would have produced on a re-sale properly made. So that, in any view, the court did not err in refusing to give the instruction. It is argued, however, that the court should not have refused to give the instructions, even if they were wrong in the form in which they were asked, but should have modified them, so as to make them right according to the court’s view’ of the law, and then given them. A court is bound to give any instruction asked for by either party, which correctly expounds the law upon any evidence before the jury. But if such instruction does not correctly expound the law, the court, as a general rule, may refuse to give it, and is not bound to modify it or give any other instruction in its place. This principle is founded on good reasons and is sustained by much authority. A party cannot, by asking for an erroneous instruction, devolve upon the court the duty of charging the jury on the law of the case. An instruction, as asked for, may be so equivocal, that to give or refuse it might mislead the jury; and thus it might have all the effect of an erroneous instruction. In such a case, it w’ould be proper for the court to modify the instruction so as to make it plain. Baltimore & Ohio R. R. Co. v. Polly, Woods & Co., 14 Gratt. 448, 466. I do not think there is anything in 800Peshine v. Shepperson, 17 Gratt. 472, (the only case cited on this subject by the learned counsel for the plaintiffs in error,) which is in conflict with this principle. On the contrary, the rule laid down in that case substantially accords with that laid down in the case in 14 Gratt. supra. See McDowell’s ex'or v. Crawford, 11 Gratt. 377, 402-406. But the evidence in this case would not have warranted the court in giving any other instruction to the jury which could properly have led to a different result. I am, therefore, for\ffirming the judgment. The other judges concurred in the opinion of Mon-cure, P. Judgment aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481708/	Joxnes J. This is an action of debt upon a single bill brought by William Churn against John H. Powell, Jackson B. Powell, George S. Powell and A. J. Ward. The bond, as written, purports to be the bond of John H. Powell as principal, and of the other parties and Robert W° Powell as securities. It was not executed by Robert W. Powell, a vacant space and seal being left for his name between those of Jackson B. Powell and George S. Powell. John H. Powell suffered judgment by default. The other defendants craved oyer of the writing in the declaration mentioned, and pleaded jointly three pleas, upon each of which the plaintiffs took issue. The first plea alleges that the said writing was made and signed by the said defendants, and by them delivered as an escrow (not stating to whom it was so delivered) “on the express condition, and none other, that Robert W. Powell, whose name is in the body of the said writing, should sign and seal it as his own act and deed, and should become bound jointly and equally with them, the said J. B. Powell, G. S. Powell and A. J. Ward as securities,” &c., for the sum, &c.; “ and if the said Robert W. Powell should refuse or fail to sign, seal and deliver the said writing as joint coobligor of the said defendants, the same was not to bind the said defendants, but was to be held null and void and of no effect.” The plea then avers that the said Robert W. Powell did not so sign, seal and deliver the said writing, whereby the same became discharged, annulled and vacated, and so is not the deed of the defendants; conclud804ing to the country. The second plea is like the first, substantially, except that it alleges that the said writing was delivered by the said defendants to William Churn, the obligee therein, as an escrow, on condition, &c. The third plea is a general plea of non est factum. On the trial the defendants moved the court to give an instruction to the jury, .which was refused; and the defendants excepted. The bill of exceptions certifies that the defendant Ward wrote the bond in the declaration mentioned, at the request of John H. Powell, the principal ; “ that at the time of writing the said bond, the said Ward executed it upon condition that all the other securities named therein should also execute it, but the plaintiff Churn was not present at the time, nor was it proved that said Churn was informed when the said paper was handed to him, or at any other time, that the said Ward had executed it upon any condition; and the said Churn proved that he never was so informed. It. was also proved that the defendant G„ S. Powell executed the said paper at a different time and place, and that at the time he did so, he declared that he executed it upon condition that Robert W. Powell, whose name is mentioned in the body of the bond, should also execute it; but there was no proof that this was ever communicated to the plaintiff Churn, or that he was present when G. S. Powell executed said paper; and it was proved by said Churn that he was not informed of any such condition.” Thereupon the counsel for the defendants moved the court to instruct the jur’y as follows: “If the jury believe from the evidence, that the defendants A. J. Ward and G. S. Powell executed the bond filed with the declaration in this case, upon condition that Robert W. Powell, whose name is inserted in the body of it, should also execute it as surety for John H. Powell, the principal obligor mentioned in said bond, then and in that case the jury are bound to find the issues for the defend805ants.” The court said it would give the instruction with the addition, “provided that the plaintiff was informed that these defendants0 had executed the bond upon that condition;” to which addition the defendants objected; and the court refused to give the instruction asked otherwise than with that addition; to which refusal to give the instruction as asked the defendants excepted. It does not appear that any instruction was given. The only question, therefore, on this bill of exceptions is, whether the court properly refused to give the instruction askedofor. The law in relation to escrows is thus stated in the Touchstone, p. 57: “ The delivery of a deed as an escrow is said to be when one doth make and seal a deed and deliver it unto a stranger, until certain conditions be performed, and then to be delivered to him to whom the deed is made, to take effect as his deed. And so a man may deliver a deed, and such delivery is good. But in this case two cautions must be heeded: 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself to whom it is made.” The author then proceeds to explain what are the “ apt and proper ” words for such a delivery. But at the present day, no particular form of words is necessary, nor is it necessary that the condition should be declared in express words at the time of the delivery. It is only necessary that it should distinctly appear, from all the facts and circumstances attending the execution and delivery, that the instrument was not to take effect as a deed until a certain condition should be performed. Murray v. Earl of Stair, 2 Barn. & Cres. 82, (9 Eng. C. L. R. 33;) Parke B. in Bowker v. Burdekin, 11 Mees. & Welsb. R. 127; 2 Washb. Real Prop. 585. In reference to the second “caution,” the author adds: “Eor if I seal my deed and deliver it to the party himself 806to whom it is made, as an escrow, upon certain conditions, &c., in this case, let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently, and the party is not bound to perform the conditions; for in traditionibus chartarum, non quod dictum est, sed quod factum est inspicitur.” The same law is laid down by Lord Coke in his first Institute, 36a, and more at large in Thorowgood’s Case, 9 Rep. 137, where the contrary decision in Hawksland v. Gatchel, Cro. Eliz. 835, is said to have been made ex improviso. And it has been often held in this country that a deed cannot be delivered as an escrow to the party to whom it is made, and that such a delivery will enure as an absolute delivery, whatever may have been the intention. Fireman’s Ins. Co. v. McMillan, 29 Alab. R. 147, and cases there cited. A doctrine which thus overrules and disregards the intention of the parties is strict and technical to the last degree. Preston does not appear to have considered it as the law at his day. Eor, in his edition of the Touchstone, immediately after the passage just quoted from that work, he adds the following: “At this day, the jury would be directed to draw their conclusion from all the circumstances.” The obvious meaning is, that the jury would be directed to ascertain from all the’circumstances—words as well as acts—whether it was the real intention that the delivery should be absolute or conditional. In Hudson v. Revett, 5 Bingh. R. 368, (15 Eng. C. L. R. 467,) Chief Justice Best, after quoting from Comyn Big. Eaits, A 3, the doctrine which I have quoted from the Touchstone, makes these remarks: “ The authorities referred to in the text in support of this position are at least conflicting; but in the next division (A 4) it appears that this position about delivery as an escrow is merely a technical subtlety; for the learned author says: ‘If it be delivered to the 807party as an escrow, to be his deed on the performance of a condition, it is not his deed till the condition is performed, though the party happens to have it before the condition is performed.’ This he lays down on his own authority, without referring to any case ; and I am warranted in saying, that we cannot have a better authority than that learned writer.” The doctrine laid down in the Touchstone and by Lord Coke has been said to apply only to deeds conveying title, and not to bonds, (Campbell J. in People v. Bostwick, 32 N. Y. R. 445,) though I do not remember to have seen it stated elsewhere with that limitation. In Hicks v. Goode, 12 Leigh 479, Judge Cabell made some comments on this doctrine and on the reasons assigned for it, and expressed the opinion that it rests on technical and unsatisfactory grounds. He did not controvert its existence, however, as a rule of law; nor is it necessary for me to do so in the present case. I mean to express no opinion on the subject. But the court held, in Hicks v. Goode, that this doctrine is applicable only to the case of deeds which are, on their face, complete contracts, requiring nothing but delivery to .make them perfect according to the intention of the parties; and that it is not applicable to deeds which, on their face, import that something more is to be done besides delivery to make them complete and perfect contracts according to the intention of the parties. And accordingly it was held, in that case, that this doctrine was not applicable to a bond which was drawn as the joint bond of two parties named in it, with two seals affixed, but which was executed by only one of them. It does not distinctly appear whether Judge Allen did or did not concur with the other judges on this point. But even if he did not concur, the point was decided by a majority of the whole court, and the decision is, therefore, a binding au808thority. And this decision is sustained by numerous cases, which either decide or concede, that where an instrument indicates on its face that others were to execute it besides those who did execute it, it may be shown by evidence that the delivery, though made to the grantee or obligee, was conditional upon the execution of the instrument by the other parties, and not absolute. Cutter v. Whittemore, 10 Mass. R. 442; Chandler v. Temple, 4 Cush. R. 285; Parker v. Bradley, 2 Hill R. N. Y. 584; Brackett v. Barney, 28 N. Y. R. 333; Grim v. School Directors, &c. 51 Penn. R. 219: Fletcher v. Austin, 11 Verm. R. 447. See also Bowker v. Burdekin, supra; Cumberlege v. Lawson, 1 Com. Bench N. S. 709 (87 Eng. C. L. R.); Evans v. Bremridge, 35 Eng. L. & Eq. R. 397. The question then arises, whether the fact that a deed or bond in the hands of the grantee or obligee indicates, on its face, that it was intended that others should execute it besides those who did execute it, is sufficient of itself to raise a presumption that it was delivered upon a condition that the parties who executed it should not be bound until it should be executed by the other parties named in it. Judge Cabell, in the case of Hicks v. Goode, intimates an opinion that the face of the paper in such a case would be evidence of a conditional delivery, and that the defendants might perhaps avail themselves of the objection by demurrer to the declaration. He waived a decision of the question, however, because it did not arise in the case. I do not think that the opinion thus intimated is well founded. The, face of the paper in such a case affords evidence of the most satisfactory character, of an original intention or expectation that it was to be executed by all the parties named in it. The original intention, however, may not have been adhered to. A party who has executed the paper may waive its execution by some or all of the other parties. He may do this, although the instrument was 809drawn as the joint bond of the parties named in it, and not as their joint and several bond. Where the instrument, fully executed as to one or more of the parties, is found in the hands of the obligee, I think it should be presumed, in the absence of all other evidence on the subject, that it was duly delivered as the deed of those who have executed it. It is a well-settled principle, that where a deed is found in the possession of the party to whom it is made, it will be presumed to have been duly delivered to him. Vanhook v. Barnett, 4 Dev. R. 268; Fireman’s Ins. Co. v. McMillan, supra; and eases cited. Such a presumption is consistent with the face of the paper, even where it imports an original intention that others should execute it. To make this presumption in such a case does no injustice to those who have executed the paper. They may still show how the fact really is. They may also protect themselves against any inconvenience that may arise from such a presumption, in the first instance, by taking care to keep the instrument out of the hands of the grantee or obligee until it is fully consummated according to their intention. The obligee or grantee, on the other hand, has full notice from the face of the paper of the original intention of those who signed it, and he can not complain if they are allowed to prove that this original intention was not relinquished in the delivery. He should either refuse to accept the paper in its existing shape, or be prepared to repel the defence of a conditional delivery. It has accordingly been held, in numerous cases, that where an instrument which shows on its face that it was to be executed by other persons besides those who have executed it, is found in the hands of the party to whom it is made, it will be” presumed, in the absence of evidence, to have been duly delivered as the deed of those whose names are signed to it. Cox v. Thomas’ adm’r, 9 Gratt. 312 ; Bowker v. Burdekin, supra; the cases above cited from 81010 Mass. R. 442; 4 Cush. R. 285; 2 Hill R. 584, and 51 Penn. R. 219; Williams v. Springs, 7 Iredell Law R. 384; Governor v. Kellett, 11 Georgia R. 286; in which last case the subject is fully discussed. It appears, from the hill of exceptions, that the defendants Ward and G. S. Powell, when they respectively signed the bond, declared that they did so upon the condition that they should not be bound unless Robert W. Powell should also sign it. Nothing is said in the bill of exceptions about delivery, but it is fair to infer that each of them, at the time he signed the bond, delivered it upon the condition stated. But it does not appear, nor is there anything from which it can be inferred, to whom either of them delivered the bond, or how it came to the possession of the obligee. W7hen a bond is delivered as an escrow to a person who is no party to it, to take effect as a bond upon the happening of some event or the performance of some condition, it cannot possibly take effect until such event happens, or such condition is performed. The party to whom the bond is entrusted by such conditional delivery has no authority to make a delivery of it to the obligee, except the event happens or the condition is performed; and when the obligee accepts a delivery from him he must see to it that he pursues his authority. If, therefore, the person to whom a bond is thus entrusted delivers it to the obligee before the event happens or the condition is performed on which he was to deliver it, it will not take effect. And it matters not that the obligee had no knowledge of the condition which the party attached to the delivery of the escrow. The condition is valid, whether known to the obligee or not. It is a question of power in the person who delivers the bond to the obligee, and not a question of good faith in the obligee in accepting the delivery. The condition imposes a limit upon the authority of the person 811to whom the bond is entrusted, and a delivery by him to the obligee, in violation of the condition, is a delivery without authority, and'has no effect. 2 Wash. Real Prop. 585, § 44; Berry v. Anderson, 22 Indiana R. 36; Black v. Shreve, 2 Beasley R. 455; Smith & ux. v. South Royalton Bank, 32 Verm. R. 341. In the last of these cases the subject is fully discussed, on principle and authority.o But suppose a bond, instead of being delivered by a party who signs it to one who is a stranger to it, as in the case just supposed, is delivered by him to one of his coobligors—for example, to the principal—upon condition that he shall not be bound except in a certain event, or upon a certain condition, are the same principles to be applied to such a case as to a case in which a conditional delivery is made to a third person, who is an entire stranger to the instrument; in other words, can a bond be delivered as an escrow or upon a condition to the principal or any other co-obligor ? Upon this subject different views have been entertained. In some cases it has been held, that delivery upon a condition may be made to a co-obligor, and that the instrument, though delivered by him, will not take effect until the condition was performed. Pawling v. United States, 4 Cranch R. 218; Lovett v. Adams, 3 Wend. R. 380; Reid v. Bibb, 5 Alab. R. 281; State Bank v. Evans, 3 Green R. 155; Fletcher v. Austin, 11 Verm. R. 447; People v. Bostwick, 32 New York R. 445. In other cases it has been held, that a paper cannot be delivered upon a condition to one of the co-obligors, and that if a party delivers an instrument to one of his coobligors to become his bond upon a condition, and the person to whom it is so entrusted delivers it to the obligee before the condition is performed, the party will be bound, unless the obligor had notice of the condition, and that the delivery was unauthorized. Millett v. Parker, 2 Met. 812Ky. R. 608; State v. Peck, 53 Maine R. 284; Deardorff v. Foreman, 24 Ind. R. 481. It is not necessary to consider this question in respect to instruments which are apparently, on their face, complete and perfect, according to the intention of the parties. It is only necessary to consider it in reference to instruments such as that in the present case, which indicate on their face that they are not complete, and that it was intended that other signatures should be affixed. The cases cited from 63 Maine and 24 Indiana confine the principle which they maintain to instruments which, on their face, are apparently complete and perfect, according to the intention of the parties. If the principle of those cases is a sound one in respect to such instruments, as to which I am not called upon to express an opinion, I am of opinion that it cannot be applied to an instrument which, upon its face, indicates that it is not complete, according to the intention of the parties, and that other persons were intended to execute it. Such was the ease in Pawling v. United States. The face of such a paper puts the obligee on his guard. He ought to enquire when such a paper is offered to him, and to satisfy himself that the original intention of the parties, as indicated on the face of it, has been relinquished. If he fails to make such enquiry, and accepts the paper from the principal obligor, or from any one of the co-obligors, he has no right to complain if he is met by a plea, from another of the obligors, that he. signed and delivered the paper upon the condition indicated on its face. There is all the more reason for such enquiry when the paper is presented by the principal obligor, for he has a manifest interest to deliver the paper without the other names, which he may not be able to obtain. A contrary rule would put it in the power of a principal obligor, or of one of the obligors who may be disposed to favor him, to commit the grossest frauds upon 813the other obligors. It would make it necessary, in every case, to employ a third person to obtain the signatures, or for all the obligors to execute the paper at one and the same time. The principle which is often stated, that when one of two innocent persons must suffer by the act of a third, the one who has put it in the power of such third person to occasion the loss, ought to bear it, has no just application to such a case, because, if there be no other reason, the obligee is put upon his guard by the face of the paper. When the instrument is delivered directly to the obligee, the delivery cannot be regarded as conditional in respect to the party who makes it, unless the condition is made known to the obligee. .Although the face of the paper indicates that it was intended originally that other persons should sign it, the obligee has a right to infer from the unconditional delivery, that the original intention has been relinquished by the party who makes the delivery. If the delivery is upon a condition made known to the obligee, his assent to it will be presumed from the acceptance of the instrument, and he will not be allowed to repudiate the condition thus assented to, and to treat the delivery as absolute and unconditional. In Millett v. Parker, above cited, it„was held that the same principle must be applied where the delivery is made by any one of the obligors, because all the obligors together constitute one party, and the obligee the other. But the rights of the obligors are several and distinct, and neither is bound except so far as he has consented to be. Neither is bound without a delivery of the instrument, and one obligor has no right to deliver it for another without his authority. And besides, if an obligee who receives an instrument from one of the obligors, which is apparently complete and perfect, has a right to presume that all the obligors have authorized its delivery, he has not the same right to make that presump814tion when the instrument, on its face, is incomplete and imperfect. It was further said in Millett v. Parker, that a bond cannot be delivered to a co-obligor as an escrow, because, while it remains in the hands of the obligors, or any one of them, it imposes no obligation whatever, whereas an escrow is so far binding on the party who has delivered it as such, that he cannot revoke it, and the obligee is entitled to it when the condition is complied with. But this assumes, as a ground of decision, that a bond, while it remains in the hands of either of the obligors, can have no operation whatever; which is the very point of controversy. While the bond remains in the hands of the obligors, or any of them, without any delivery, it has and can have no effect. But a bond may be valid though the obligor has never parted with the possession of it, if such be his intention, and he has done that which, in law, amounts to a delivery. Smith on Contracts (Rawle’s Ed.) 11 and cases cited. And the question is, whether one obligor may not deliver a bond to another obligor, on a condition that it shall take effect only in a certain event. . It follows from these principles, that if the court had instructed the jury that if they believed, from the evidence, that the defendants, Gr. S. Powell and A. J. Ward, delivered the bond to a third person not a party to it, or to one of the other obligors, on condition that it should not take effect as their bond unless executed by Robert W. Powell, such condition would not affect the rights of the plaintiff unless it was known to him when he received the bond, the instruction would have been erroneous. And it would have been equally erroneous to instruct the jury that such a condition would not affect the rights of the plaintiff unless known to him, in case the jury should believe, from the evidence, that the bond was delivered by the said Gr. S. Powell and A. J. Ward, upon the condition 815mentioned, without saying to whom delivered. For an instruction in that general form would have been applicable to the case of a conditional delivery to a stranger or to one of the co-obligors. Such being the principles applicable to the case, I come now to consider the instruction asked by the defendants. It will be observed that the language used is “ executed on condition,” and not “ delivered on condition.” If the latter expression had been employed, the instruction, so far, at least, as relates to the defendants, Geo. S. Powell and A. J. Ward, would have been in strict conformity to the principles which govern the case. In what sense, then, were the words, “ executed on condition,” employed in the instruction ? In one sense a bond may be said to be executed when it is signed, while in another sense the execution embraces both signing and delivery. The pleas, as we have seen, allege that the bond was “ delivered on condition.” Construing the instruction with reference to the issues made up on these pleas, and to which the instruction was intended to apply, the language of the instruction ought probably to be understood as referring not only to the signing of the paper, but to the delivery, which was a part of the execution. And so it seems to have been understood by the court below, which only proposed to modify the instruction, by adding that the condition, in order to affect the rights of the plaintiff, must have been known to him. But if this was not the obvious meaning of the instruction, the jury, bearing in mind the issues which they were trying, might well have placed that construction upon it, and the refusal to give it was calculated to mislead the jury. And especially was the refusal to give the instruction calculated to mislead the jury, from the explanation which the court gave of the grounds of the refusal, which showed that the court did not consider it objectionable, because it referred only to the signing of 816the paper, and not to its delivery. If, therefore, the language of the instruction was equivocal, the court should not have refused it, but should have given it with such an explanation of its meaning as to ensure its being understood by the jury in the proper sense, unless it was liable to objection on the other ground to be hereafter considered. Balt. & Ohio R. R. Co. v. Polly Woods Co., 14 Gratt. 447; Peshine v. Shepperson, 17 Gratt. 472; Rosenbaums v. Weeden & Co., supra, 785. But it is contended, that the instruction was properly refused, on the ground that it proposed to say to the jury that, in the case supposed, they must find for “ the defendants,” meaning all the defendants, whereas, there was no evidence of a conditional delivery by Jackson B. Powell; and, under the statute, the verdict and judgment might be against him, though in favor of the other defendants. This objection cannot be sustained. The bond purports to be the joint bond of all the parties. The presumption from the face of it is, that Jackson B. Powell intended to be bound along with the other parties by whom it was executed, and not severally. There was no evidence, as far as this bill of exceptions shows, to counteract this presumption. In this state of the case, there was no ground on which the jury would have been justified in finding a separate verdict against Jackson B. Powell. It is, there■fore, unnecessary to consider the construction and effect of the provisions of the Code (ch. 172, § 49, and ch. 177, § 19,) referred to by the counsel for the defendant in error. Besides, if it was necessary to take that view, we might be justified in construing the words, “ the defendants,” as referring only to the defendants mentioned in the instruction and in the bill of exceptions, namely, George S. Powell and A. J. Ward. I am of opinion to reverse the judgment of the District Court. 817The other judges concurred in the opinion of Joynes, J. The following is the judgment: The court is of opinion for reasons stated in writing &c., that if the bond in the declaration mentioned was delivered by the plaintiffs in error George S. Powell and A. J. Ward, either to a third person, not a party to the said bond, or to the principal, or any other obligor, upon condition that the same should not take effect as their bond unless the same should be executed by Robert W. Powell, whose name is recited therein as a co-obligor, then the said plaintiffs in error are not bound by the said bond, the said condition not having been complied with; and that it is not necessary to give effect to the said condition that the same should have been known to the defendant in error when the said bond was delivered to him. And the court is further of opinion, that if the said bond was delivered to the defendant in error on a condition that it should not be binding on the-said plaintiffs in error unless the same should be signed by said Robert W. Powell, and the said condition was known to the said defendant in error, then the said plaintiffs in error are entitled to insist upon the benefit of said condition, and the said defendant in error is not entitled to recover on the said bond. The court is further of opinion, that if the word “exe-' cuted” in the instruction asked for by the said plaintiffs in error on the trial, was used and understood in the sense of “delivered,” as seems to the court to be probable,then the said instruction should have been given to the jury as asked, and without the addition proposed by the court. But if the meaning of the said instruction in this respect was equivocal, the jury might well have understood that the word “ executed ” was used in the said instruction in the sense of “ delivered,” and the court erred in refusing *818the instruction, because such refusal was calculated to mislead the jury, and the court, instead of refusing the said instruction, should have amended it so as to ensure its being understood by the jury in the proper sense, and to have given it to the jury as so amended. Therefore erroneous and reversed with costs, &e., remanded for new trial in conformity with the principles above declared. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481709/	Rives, J. It is essential to the proper consideration of these causes to acquire precise ideas of the state of the pleadings, the force of the proofs, and the real nature of the transactions to which they relate. A common principle underlies them; and though a slight diversity of circumstances may distinguish them, it will be found, on examination, to constitute no ground for practical distinction in the disposition to be made of them. The pleadings are the same in all the cases. They are actions of debt by the payees of promissory notes against the makers. The defence is usury. The contract of indebtedness declared on, is a plain and complete promissory note, and has no other parties to it upon the record but the maker and payee. The action is founded on this privity of contract; the right of recovery grows out of the note alone; the defence is predicated of the invalidity of the note; and the record admits no “lis mota” except between the immediate parties to this written contract. If, therefore, the rights or interests of any third party are affected by this litigation, it must be outside of the pleadings, and arise out of the proofs. Let us then examine these latter critically, and see if they establish any fact calculated to impart to the pleadings, and. the issue made by them, any effect different from that which legally and properly attaches to them. The 878facts are prefaced in the bills of exceptions taken to the instructions refused, and the instructions, given by the court on the trial. The chief distinctive feature consists in the fact that these notes were originally payable to -, and that the blanks were not filled until the discouni,> and then with the names of the respective payees: That in the first of these cases, the names were inserted by the witness, who was acting as the agent of the makers ... , . . , ,- m r£Usin& ™°ney UP°R the notes, m the second, by the °^er^ the payee, and in the third, by one of the payees, is wholly immaterial; for clearly it is to be taken as done in every case with the assent of the payees, and stands on the same ground as if the payees had inserted their own names with their own hands in these respective blanks. It is a fact common to all these cases that the discount upon the notes was usurious. In the case of Enders, Sutton & Co., the statement of the witness B. W. Green is, “that the notes sued on were given to him by Joseph Brummei & Co. to raise money upon, the names of the payees being left blank; that the witness inserted the names of the plaintiffs as the payees in the said notes; he did not remember at what time he did so, but infers that he did so when he passed the said notes to the plaintiffs, as it was done in his (the witness’) handwriting; that the witness passed the said notes to the plaintiffs; that the plaintiffs were in the habit of taking the notes of the said Joseph Brummei & Co. from the said witness at a greater rate of discount than six per cent, per annumf &c. It will be seen that this statement does not explicitly disclose for whom the money was raised upon these notes—whether for Brummei & Co., or for the witness Green; but as no claim or title is asserted by the latter as the holder or owner of these notes, the inference is irresistible that he was acting as the agent or friend of Brummei & Co. in this negotiation. As this evidence is 879certified by way of showing the relevancy of the instructions asked, we are warranted in having recourse to the language of these instructions to relieve ourselves of this ambiguity. Accordingly, we find in the second instruction this recital: “ That said Green, acting on behalf of the defendants, sold the said notes to the plaintiffs.” The terms, also, of the court’s instruction, import the existence of this agency : “ If the jury believe, from the evidence, that the notes declared on in this cause were made by the defendants for the purpose of being sold, leaving the names of the payees blank, and were given by them to B. W. Green to be sold,” &c.; thus distinctly implying, as it "seems to me, that the notes were to be sold for the benefit of the defendants, and by Green as their agent. It seems to me, therefore, to result from this certificate of facts, that Green was acting as the agent of Brummel & Co. in raising money upon these notes for their benefit; and that there is no pretence for considering him as the holder or owner of this note and the seller thereof for his own use. There is none of this doubt about Hill’s case. Green becomes Hill’s agent for the procurement of this note, and pays the proceeds to Brummel & Co. The statement is, “ that the said Hill met the said Green on the street, and asked him if he had any of Brummel & Co.’s notes; that he wanted to buy one; that Green replied that he could get one, and then went to Brummel & Co.’s office and got the said note for him; and that he never passed any other note of said defendants to the said Hill. Being asked who filled up the blank for the name of the payee, witness said he passed it to Hill without the blank being filled, but that he thought it was filled up by Mr. Johnson, who was in Hill’s employment. Witness further stated that he paid the proceeds of the note to the defendants, after it was thus taken by Hill, and that the deduction was over one per cent, per month.” In this case, then, if the maxim, 880“ qui facet per alium, facit per se,” be not obsolete, the dealing was virtually between Hill and Brummel & Co; Green was the agent of Hill in the transaction, and not of Brummel & Co., as in the preceding case. In the last case, Gray’s sons purchased the note at a usurious discount of a broker, being blank as to payee, and filled the blank with their own names, upon an assurance by the broker that “ the note had been given by the defendants for wheat, which they had purchased from a person who wanted to leave town, and who had left it there to be sold.” Let us now enquire how we are to regard these diversities in the mode of acquiring these notes, and whether they demand the application of different principles in their decision. It must be conceded that the defence of usury is perhaps clearer in Hill’s case than in the others, because there the dealing or negotiation is directly between the payee by his agent, and the makers. But in my view, all these diversities are merged and obliterated by the legal consequences of the act of the payees in filling the blanks ■with their names. But before proceeding to develope and sustain this idea, I must now take up the third branch of my enquiry, namely, as to the real nature of these transactions in raising money upon notes blank as to payee. The elementary definition of a promissory note requires certainty as to the payee. 1 Parsons on Notes and Bills, chap. 111, § 1, p. 30. This rule is strictly adhered to. In Gibson v. Minet, 1 H. Bl. 569, Eyre, Ch. J., said: “If I put in writing these words, ‘I promise to pay ¿6500 on demand, value received,’ without saying to whom, it is waste paper. If I direct another to pay ¿6500 at some day after date for value received, and do not say to whom, it is waste paper.” These notes, when discounted through the agency of Green on behalf of Brummel & Co. in the first case, of Hill in the second, and through the agency 881of the broker in the third, being blank as to the payee, were incomplete and waste paper till filled with the names of payees. It is not doubted that it is competent to the drawer of a bill or the maker of a note to emit it with such a blank, the effect of which would be to authorize any bona fide holder to insert his own name. Thus, in Cruchley v. Clarence, 2 Maule & Sel. R. 90, Lord Ellen-borough C. J. said: “ As the defendant has chosen to send the bill into the world in this form, the world ought not to be deceived by his acts. The defendant, by leaving the blank, undertook to be answerable for it when filled up in the shape of a bill.” Le Blanc J. treated it “as if the defendant had made the bill payable to bearer;” and Bayley J. said: “ The issuing the bill in blank, without the name of the payee, was an authority to a bona fide holder to insert the name.” To the same effect is the case of Crutchly v. Mann, 5 Taunt. R. 529, where it was held, that a bill made payable to the order of-,' may be filled up by any bearer who can show that he came regularly to the possession of it, with his own name. But until the blank is filled up, the instrument is invalid. Seay v. The Bank of Tennessee, 3 Sneed’s R. 558. In other words, it is an inchoate instrument, whose ultimate validity must depend on its passing to some person legally entitled to insert his own name in the blank. As contended for in argument, it is somewhat analagous to a note payable to maker’s own order before his endorsement thereof. After it is endorsed and put into circulation by the maker, it becomes, in effect, a note payable to bearer; but before that is done, and while retained by the maker, it has no vitality, and is nothing more than waste paper. There seemed to be an incongruity in the idea of a note payable to one’s own order ; hence in Brown v. De Winton, 6 C. B. 336, 60 Eng. C. L. 335, the judge, delivering the opinion of the court in that case, doubted “ whether, if a man 882makes a note payable to his own order, he can, with propriety of language, be said to have made a promissory note at all. No man can make a contract with himself; there ought to be two parties to a contract; and in case of . ° , , a promissory note, there ought to be a promisor and promisee-” Proceeding further, however, in the analysis of such a note, he concluded that “ an instrument so drawn is an incomplete instrument, being in the nature of a con- . . ditional engagement, in case he should afterwards endorse 0 ° 7 note) t0 pay it to the person to whom, by such endorsement, he should direct it to be paid. Such an instrument is of no legal or binding effect, until something further is done to give it validity. It is another question what is the nature of such an instrument after it has been endorsed and put into circulation. As no particular form of words is essential to form a valid promissory note, such an instrument, if endorsed to G. S. or order, imports a promise to pay G. S. or order the money therein mentioned. And if the maker of such a note endorses it in blank and circulates it, he must, we think, be considered as engaging to pay the amount to any person who may be the lawful holder of it for value; that is, in effect, to the bearer.” Assuming, then, the correctness of this analogy, and the pertinency of this authority, I am justified in treating these notes, while the blanks are not yet filled, as “ incomplete instruments, in the nature of conditional engagements to pay them, when filled up, to those who shall become bona fide holders of them, and so entitled to insert their names, but as of “ no legal or binding effect ” till consummated by the indication of a certain payee, and the completion thereby of the note itself. The filling the blanks is that “ something further which must be done to give these notes validity.” But who now shall be regarded as authorized to fill these blanks with his name? Ho one but a bona fide holder ; not a finder, who gives no consid883©ration; nor a thief, whose possession is felonious; nor, by parity of reasoning, a person whose mala fides consists in his violation of law. Having thus sought to ascertain and fix the character and legal import of these notes when put upon the market, I now recur to that prominent fact which, as I have already said, appears to me to render of no significance the difference of circumstances attending the acquisition of these notes. That fact is the act of the parties in constituting themselves the payees, and thus dealing diieetly, without any remove, with the makers. They must be held to be bound by the legal consequences of this act. Their ignorance of such consequences, if it existed, will not'and cannot avoid them. Besides, it is difficult to suppose that men of business, practically informed of the jealous care with which the courts seek to suppress every form or shift of usurious dealings, could have misinterpreted the effect of inserting their names into these blanks. They must have known and felt that they were thereby perfecting a written obligation previously of no binding effect, and making themselves parties in such way to the contract as to subject themselves to the liabilities of a direct negotiation with the maker or borrower, and thus forfeiting all opportunity of varying the written contract by parol proof inconsistent with its obvious import or effect. They must have known that a pretended purchase of the maker of his own note would be but a very poor and insufficient disguise to shield them from the imputation of usury. .Why, then, did they place themselves in this attitude, and accept the position by this form of writing of close and immediate privity wich the needy borrowers? They ought to have said to Green and the broker: “ It would be a very poor and flimsy device to pretend to buy these notes of the makers; the law construes it as a .loan of money on the note, and it is immaterial whether the note precedes, 884or, as is more usual, follows the advance of money; and, therefore, it will not do for us to put our names in these blanks and thus deal with the makers in these transactions; give vitality to this blank paper by getting some other person to consummate it as payee, or send it after the alleged purchaser of wheat for his name; and then' we can buy it as a perfected note and the legitimate subject of a sale; but, before this be done, for us to assume the relation of payee to the makers would prevent us from taking the notes except at full value.” Such, it seems to me, would be the conduct and language in these cases of men at all conversant with business, and with the conditions of permissible trade in paper, or what is familiarly termed shaving. This particular aspect of this enquiry is illustrated by the character of the pleadings, which to this end I specially set forth and distinguished at the threshold of this investigation. Under these pleadings, and the issue to which they lead, there arose but one question, and that W'as, what was the consideration paid for these notes. It would have sufficed for the defence to put but one solitary question to the witness Green, and that was to ascertain the amount of the discount. If that was usurious, the controversy was closed, and the case stood forth as a naked and indisputable one of usury. The plaintiffs would have been estopped from the proof of facts variant from the contract declared on; and the court would have been bound by the pleadings and the proofs to declare the note void for the usury. Had the case then been brought to this court upon such a record of pleadings and proofs, I cannot doubt that such a judgment would have met a unanimous concurrence here. Is the case at all changed by proof that the note was blank and incomplete till the plaintiffs gave it life by the insertion of their names ? It can only be because the_ note was marketable and pur885ehaseable when in the hands of the makers’ agents, whether private or public; and I have endeavored to show, by the analyses of the pleadings, proofs and the transaction itself, that it was not the subject of a sale, and that by accepting and filling it up as payees the plaintiffs below chose to take it for the money advanced or loaned. It will not be contested that there is no one here but the payees, who affect to be the first and the only holders. The makers could not have been holders; and Green, as the agent of the makers with Enders, Sutton & Co., and in Hill’s case, if not the agent of Hill, as I suppose him to have been, at least the intermediary between Hill and the makers, did not pretend to be a holder for himself. The broker, in Gray’s sons’ case, asserted no title as holder, but rather his agency for an unnamed holder for value on a sale of wheat. In all these cases, then the plaintiffs below were the first holders. But, unfortunately, there is an ineradicable vice in their title. They were not, as the law requires them to be, Iona fide holders.' The note sprung from a usurious dealing. In its original form it was a blank piece of paper; and to adopt the forcible language of Judge Roane in Taylor v. Bruce, Gilm. 88-9, I may add that, “as an effective note, it was coeval with and only ushered into existence by the usurious contract, and was only delivered to the appellees as an evidence of that contract.” Now in regard to questions of this character, they fall within the province of the court for determination. What shall be deemed usury, is a question to be determined by the court. Whether a transaction is a loan or a purchase, is an inference of law, which the party is not competent to swear to. Roane J. Gilm. p. 83. In Whitworth v. Adams, 5 Rand. 333, Judge Carr, p. 340, said: “In a special verdict the jury need not find the usury; they find the facts, and the law infers the usury; and cited Chester886field v. Janssen, 2 Ves. R. 147; Gibson v. Fristoe, 2 Call 62; and Marsh v. Martindale, 3 Bos. & Pull. R. 153. In a still later case of Brockenborough's ex’ors v. Spindle's adm’rs, 17 Gratt. 21, the same principle is again announced with gr.eat clearness and distinctness. Having the facts, therefore, certified in this case, our province and duty is to declare whether they constitute usury. We are not precluded from our judgment on the facts by the very common subterfuge of avoiding a treaty for a loan, and cloaking it under the guise of a sale; we must tear away the veil thrown over the transaction, and look through the forms under which the parties carried on their forbidden dealings, to detect their real nature. In the performance of this task for myself, I have reached the conclusion that these notes are void for the usury that tainted them in their inception. It might have been otherwise, had the appellees observed the precaution of putting others in their place as payees, and taking and holding as endorsees of such third parties in the absence of any corrupt bargaining with the makers, and any guilty knowledge on their part of this illicit mode of raising money on one’s own notes for one’s own benefit. I am at a loss to' discover in the proofs any foundation for the pretension of the appellees to claim under endorsement. There was none such; it is wholly factitious; their title rests exclusively on delivery from the makers or their agents, and their election to take not as endorsees, but as payees. I was, therefore, surprised at the pains taken by the appellant’s counsel to divest his adversaries of these Protean shapes. Whether I regard the “pleadings or the transaction itself, there seems to me no just pretence for saying that the title of the appellees is, in any respect or upon any hypothesis, different from that of mere payees. Any such claim would be, it must be confessed, extremely shadowy and unsubstantial! as no human wit could discern from the proofs of 887these causes, the person or persons, of whom they were the endorsees. But it is said that my decision of these causes militates against the cases of Taylor, adm’r of Holloway v. Bruce, Gilm. 42, and of Whitworth & Yancy v. Adams, 5 Rand. 333, and that we are constrained by the authority of these cases, to sustain the rulings of the court below. To this, I cannot assent. I accept the authority of those cases; and hold that their reasonings are in entire accordance with my positions. They fortify rather than oppose my views. In fact, I beg leave now to resort to them as armories from which I can draw the most effective weapons in my defence. Our first enquiry, then, must be directed to the precise character of these cases. In the first? the makers of an accommodation note with good endorsers, placed it in the hands of a" broker for sale; and its purchase at a usurious discount in the absence of proof that the purchaser knew these facts, namely—the invalidity of the paper as between the parties and the agency of the broker—was adjudged to be free of usury. The second was the case of an accommodation note, given to the payees for their accommodation, endorsed by them, and then placed in the hands of a broker for sale, and sold by him at a usurious discount; it was held that such purchase was not usury, the purchaser not .knowing that it was accommodation paper or for whose benefit it ivas sold. It is observable that these cases are very unlike the present. Those notes were certainly complete in form ; and the purchaser’s title- was that of endorsee. Here the notes were incomplete, and the plaintiffs sued as payees. True, the dissenting judges in those cases treated those accommodation notes as between the original parties as without consideration and invalid, and as in that sense inchoate and dependent for final validity upon delivery to a bona fide holder for value. But if this view was not sustained in 888the judgment of the court, it hy no means follows that the notes now under our consideration, Hank as to payees, and therefore dissimilar from those, may not justly be characterized as incomplete and conditional, and not, therefore, in that form, the subject of sale or traffic. This palpable distinction obviates the pertinency of those authorities to the questions we are now considering. But I claim that the opinions of the judges who concurred in the judgment of the court in those cases, fully concede and establish every position for which I now contend. To show this, I submit the following quotations from those opinions. In Taylor, &c., v. Bruce, Judge Coalter (p. 60-1,) said : “ It is true that the defendant admits in his answer that he received the notes at a discount, which would be usury, if the transaction had taken place in consequence of .a personal interview between him and t}ie makers, as is alleged in the bill, whether a loan of money had been mentioned or not; there being no difference between the execution of a note before the money is advanced, and the pretended sale of that note by the maker at a usurious discount, and the execution of such note afterwards in order to secure the money advanced with usurious interest. The former would be clearly a shift to evade the statute. It would be no answer for the party to say, that there being nothing said about a loan, he considered it a fair purchase of a note in market. He must know, in the case'supposed, that the note was given for no other consideration but that of the money advanced,” &c. In Whitworth, &c., v. Adams, Judge Cabell used language which seems to me to corroborate the views I have taken, and to concede all the positions for which I contend. He admits (p. 411) that “if the purchase had been made directly from the principal, it would be clear usury, because the note being merely for accommodation, was 889not, as between the parties to it, the evidence of any subsisting debt. It was consequently, as to them, not an available note, nor could any action as between them be maintained upon it. It has no legal existence till it is negotiated for value. And if it be negotiated directly for 'the party for whose accommodation it was made, to a person acquainted with the facts of the case, on a contract to receive for it less than its nominal amount discounting the legal interest, it would not differ in any substantial respect from the present advance of money on a contract that, in consideration of the advance, the person receiving it should give his obligation to the party making the advance to pay him at a future day, a sum greater than the sum received and legal interest. This last transaction would be a direct loan at illegal interest; and as the negotiation of the note, under the circumstances supposed, does not differ from it, the law. infers that the party really intended a usurious loan, and resorted to a sale of the note as a shift or device to conceal it. He is advancing his money to the very man whose bill or note he gets ; and the bill or note had no legal obligation whatever until he received it. The substance and nature of such a transaction is nothing more than a loan, at more than legal interest; and the bill or note is a security for it.” If, now, it be true, as I have contended, that these notes had no legal obligation till the payees received them and inserted their names in the blanks, and that such payees are thereby shut up and bound to a direct privity of dealing with the makers, I am justified in invoking the opinions just quoted to aid me in stripping from these transactions the thin disguise of a sale. I can say with Judge Coalter that “the appellees must have known that the notes were given for no other consideration but that of the money advanced;” and with Judge Cabell, “that they were advancing their money to the very firm whose notes 890they got; and that the notes had no legal obligation until they received them: hence the substance and nature of the transaction was nothing more than a loan at more than legal interest, and the note a security for it.” When shall it be said that these notes were issued? not surely when in the possession of the makers or their agent to raise money upon them, and while they were loosely floating in the market as blank notes awaiting completion in the act of transfer or negotiation; hut rather in the language of Bayley J. in Downes v. Richardson, 7 Eng. C. L. R. 227, “they were issued as soon as there was some person who could make a valid claim upon them;” and this was only when the appellees filled the blanks with their names and thereby took upon themselves the relation, rights and liabilities of payees. While the makers, their agents or strangers held this paper in its blank form, it imposed no obligation; it was a mere preparation to raise money; hut when its character was stamped upon it by its completion or the filling of the blanks, then it partook of the nature of the contract out of which it arose, and if that was usurious, it became void in its inception. And where a note is not available till discounted, and is discounted at a sum greater than the legal interest, it is usurious and void. Powell v. Waters, 8 Cow. R. 669. Parsons, in his treatise on Mercantile Law, ch. xiv, § iv, p. 265, proposes a test for the determination of questions like the present, which would dispose of these cases in accordance with my views, upon a principle plain and easily applicable. To prevent misapprehension, I' quote the whole passage: “There are, perhaps, no questions in relation to interest and usury of more importance than those which arise from the sale of notes or other securities. In the first place, there is no doubt whatever that the owner of a note has as good right to sell it for the most he can get, as he would have to sell any goods or wares which he 891owned. There is here no question of usury, because there is no loan of money, nor forbearance of a debt. But on the other hand, it is quite as certain that no one has a right to make his own note and sell that for what he can get; for this, while in appearance the sale of a note, is in fact the giving of a note for money. It is a loan and a borrowing and nothing else. And if the apparent sale be for such a price that the seller pays more than legal interest, or, in other words, if the note bears interest and is sold for less than its face, or is not on interest and more than interest is discounted, it is a usurious transaction. Supposing these two rules to be settled, the question in each case is, under which of them does it come, or to which of them does it draw nearest? “We are not aware of any general principle so likely to be of use in determining these questions as this: If the seller of a note acquired it by purchase, or if it is his for money advanced or lent by him to its full amount, he may sell it for what he can get; but if he be the maker of the note or agent of the maker, and receives for the note less than its face after a lawful discount, it is a usurious loan. In other words, the first holder of a note (and the maker of a note is not, and cannot be, its first holder) must pay the face of the note or its full amount. And after paying this, he may sell it, and any subsequent purchaser may sell it as merchandise.” Applying this test to the cases at bar, the first holders, and none can be such, as I have endeavored to show, but the payees in these cases, must give full value, and thus meet the condition of Iona fides. If this were not so, a strange incongruity would arise. Usury by the first holder vacates and destroys the title of any subsequent holder; the note itself being usurious, is void by the statute in the hands of an innocent holder without notice; it cannot, therefore, be valid in the hands of the payee and void in 892the hands of his endorsee; if void in the hands of the latter, it is for a stronger reason void in the hands of the former. It is, therefore,-most justly held, that the holder entitled to fill the blank in notes like the present, must be a Iona fide holder; a holder for full value,'and untainted by usury, so that he may then sell it, like any other commodity, for what he can get; and that the best practical test for determining such questions will be found 'in the general principle thus laid down by Parsons. It was a boast of Ld. Mansfield in Floyer v. Edwards, Cowp. R. 112, that “where the real truth is a loan of money, the wit of man cannot find a shift to take it out of the statute.” The same jealous care to uphold and vindicate this statute, which was evinced by this remark, ran through the early decisions of the courts in the administration of this statute. But it is curious to observe how it has been impaired by the commercial spirit of the age, and has yielded steadily to the popular theory that money is, like any merchandise, worth what it will bring and no more, and that its value should be left to fix itself in a free market. But still while the statute exists, and demands enforcement from the courts, I accept the authority of these decisions as founded in justice and wisdom, and am not disposed to relax any of the rules against these extortionate and illicit practices. It is, perhaps, an idle attempt to withstand these judicial expedients to unfetter the traffic in money; they have already removed many of the restraints from the usurer; and I must confess my inability to discern any effective ones that will be left, when the needy can put .upon the market their notes blank as to payees, and raise money upon them by sale to any one, at usurious rates, who will put his name in the blank and take the relation of payee. It will be a vain thing to say that a man cannot sell his own note, when the only thing required of him to effect this object will be to send it out 893blank as to payee, and let a friend, agent or stranger sell it in this form to any one, who will put his name in the blank, or else, as in Hill’s case, quietly await a messenger from the usurer to put in circulation this new and popular form of security. If such anomalous paper is taking the place of regular business paper, as has been stated in the argument of the counsel for the appellees, it cannot be too soon extirpated and supplanted by sounder, less factitious and less suspicious securities. It is, therefore, I feel peculiar sensibility and regret that I lack the concurrence of my brothers to stamp the reprobation of this court upon these practices; to denounce these notes in their blank form as incapable of sale to the first holder or payee; and thus to inhibit the growing traffic in them which must eventually make shipwreck of the great cardinal principle forbidding the sale by the maker of his own note. In conclusion, I cannot find more impressive utterance for my opinion of these cases than to adopt the language of Judge Roane in Taylor, &c., v. Bruce. It is far more applicable to this case than to that. Had he then foreseen the further step that would be taken in these cases to remove the restraints against usury, he could not have applied to it more descriptive language, or used stronger remonstrance. He said, “We have undoubtedly gone far enough in sanctioning the sales of the consummated notes of others, bona fide held by the seller, at a usurious rate of discount. I will not, however, go further and permit a man to sell, not his own note, for a note pre-supposes a real payee as well as a drawer, but his own blank paper at an illegal rate of discount. I will not by this means disrobe the consideration, on which it is granted, of its usurious taint, and repeal, pro tanto, the act of usury.” For these reasons, I dissent from the affirmance of the judgments in these cases. 894Joynes, J.. The case of Whitworth v. Adams, 5 Rand. 333, must be considered as settling the law of Virginia on the subject of usury in the purchase and sale of negotiable paper. It was the decision of a majority of a full court, after a most thorough discussion and examination of the subject by each of the judges. Though contrary to decisions in many, if not most, of the States, it was in accordance with the decision of two judges in a court of three in Taylor v. Bruce, Gilm. 42; and for more than forty years it has been acquiesced in by the Legislature, and been regarded by the courts and the community as establishing the law. I shall not, therefore, enter into any discussion of the principles involved in that ca.se. Indeed, the authority of that case has not been questioned in the argument. Whitworth & Yancey made their negotiable note payable to "Wilson & Orr, for the accommodation of the payees, who put it into the hands of Belcher, a broker, for sale on their account. Belcher sold the note to Johnson at a discount of three per cent, a month. Johnson, at the time he discounted the note, did not know that it was made for accommodation, nor for whose benefit it was sold. The note had, of course, no binding force in the hands of Wilson & Orr, for whose accommodation it was made, nor in those of Belcher, their agent. It was then but an inchoate instrument, which could only become valid and binding by passing into the hands of a hona fide holder for value. It was conceded by the dissenting judges that a consummated and hona fide note given for value—a business note— might be sold at any price without violating the statute against usury. But it was contended that as this note was not valid and binding in the hands of Wilson & Orr, or of Belcher, the same principles did not apply; that there was nothing that could be sold; and that the trans895action was, in substance and effect, a loan to Wilson & Orr of the sum paid by Johnson for the note, upon their obligation, by the endorsement, to pay the sum expressed on the face of the note, and was, therefore, usurious. But the court held, that as Johnson did not know that the note was made for accommodation, or that it was sold for the benefit of a party whose name was upon it, he was to be regarded as a bona fide purchaser from Belcher, the holder and apparent owner of the note, who did not endorse it, and that the transaction was, therefore, substantially the same as the purchase of a business note, and not usurious. The argument that has been urged upon us with so much earnestness in this case, is substantially the same that was urged by the dissenting judges in Whitworth v. Adams and in Taylor v. Bruce. It was overruled then, and it must be overruled now, unless it can be shown that there is some substantial ground of distinction between this case and those. It is contended that this case is to be distinguished, on the ground that the note in Whitworth v. Adams, as well as that in Taylor v. Bruce, was regularly filled up with the name of a payee, and endorsed by him; so that it had all the appearance of a complete and valid instrument; whereas the notes in this case were blank as to the name of the payee, and were, therefore, incomplete and imperfect on their face. In order to determine the weight due to this suggestion, it is necessary to consider the legal character and effect of a negotiable note, which is blank as to the name of the payee. This is settled by authority in England and in the United States, and is well understood among commercial men. The question as to the effect of such an instrument came before the court of K. B. in the year 1813, in the case of Cruchley v. Clarence, 2 Maule & Sel. R. 90, which is the leading case. That was an action against the 896drawer of a bill of exchange payable to- the order of -(the name of the payee being left blank). It was endorsed to the plaintiff by one Vashon, and the plaintiff inserted his own name as payee. It was objected that the plaintiff had no right to insert his name as payee, and the case was distinguished from Russel v. Langstaffe, Dougl. R. 514, because in that case the bill was filled up by one of the original parties. But the court overruled the objection, and held that the plaintiff was entitled to recover. Lord Ellenborough, 0. J.: “ As the defendant has chosen to send the hill into the world in this form, the world ought not to be deceived by his acts. The defendant, by leaving the blank, undertook to be answerable for it when filled up in the shape of a bill.” Le Blanc, J.: “It is the same thing as if the defendant had made the bill payable to bearer.” Bayley, J.: “ The issuing of the bill in blank, without the name of the payee, ivas an authority to a bona fide holder to insert the name.” Though the bill in this case was endorsed to the plaintiff, the title to it did not pass by the endorsement, because the name of the endorser was not in the bill. It passed by the delivery. In the following year the same question came before the court of 0. B. in an action against the acceptor of the same bill. Crutchly v. Mann, 5 Taunt R. 529, (1 Eng. C. L. R. 179.) It was objected that the authority given to the person to whom the bill .was first delivered, to insert his name as payee, was not transferable from hand to hand. But the court held that the plaintiff had a right to insert his name as payee, and was entitled to recover. Upon the authority of these eases' it is laid down in all the treatises, that any bona fide holder of a bill or note which is blank as to the name of the payee, may insert his own name, and thus acquire all the rights of payee. The same doctrine has often been affirmed in this country. In Ives v. Farmers’ Bank, 2 Allen R. 236, the 897defendant signed a printed form of a note, and which, as signed, read as follows : $1,585.90. Brooklyn, September 20, 1858. after date, promise to pay to the order of Dec. 23, dollars at value received. Geo. R. Ives. The paper in this form was delivered to one Yale, and the defendant alleged that it was delivered to him only as a memorandum, and not to be used as a note. But Yale filled it up so as to make it a note for the sum of $1,585.90, payable to the order of himself three months after date, at the Atlantic Bank, New York, and endorsed it to the plaintiff, who discounted it for his benefit. The court held, upon the authority of the cases just cited, that the paper, as signed by Ives, was a promissory note, importing a complete and valid contract, and that evidence was not admissible to show that it was intended to be only a memorandum, as that would be to vary by parol the meaning of a written instrument. The court, after referring to the cases above cited, and stating the opinion just mentioned as to the character and effect of the paper, said : “ If it had been passed to the bank by Yale in the condition in which he received it, it would, therefore, have been a complete note, except the name of a payee, and the bank w'ould have been authorized to fill the blank with any name that they had chosen; and as they took it in good faith, it can make no difference in the rights of any party that the blank was filled by Yale, in order to add his own liability as an endorser.” White v. Verm. & Mass. R. R. Co., 21 Howard U. S. R. 575, was an action upon coupon bonds issued by the railroad company payable in blank, no payee being inserted. They were issued in Massachusetts to a citizen of that State, and passed through several intervening 898holders to the plaintiff, a citizen of New Hampshire, who inserted his name as payee, and brought suit on the bonds in the Circuit Court of the United States. It was objected, that as the bonds were issued to a citizen of Massachusetts, and as they were not negotiable, or if negotiable, were not payable to bearer, the plaintiff could not sue in the Federal Court. But the court held, that it was “ the intention of the company, by issuing the bonds in blank, to make them negotiable and payable to the holder as bearer, and that the holder might fill up the blank with his own name, or make them payable to himself or bearer, or to order. In other words, the company intended by the blank to leave the holder his option as to the form or character of negotiability, without restriction.” * * “ Until the plaintiff chose to fill up the blank, he is to be regarded as holding the bonds as bearer, and he held them in this character until made payable to himself or order. At that time he was a citizen of New Hampshire, and, therefore, competent to bring the suit in the court below. In this last case the bond passed from hand to hand by delivery while blank as to the payee, as the bill did in Cruchley v. Clarence, and as the court said the note might have done in Ives v. Farmers' Bank. The instrument, in all these cases, was regarded as payable to bearer, as long as it remained blank. So in Wookey v. Pole, 4 Barn. & Ald. 6 R., (6 Eng. C. L. R. 323,) it was held, that an Exchequer bill payable to-or order was, until filled up, payable to bearer; and that, while in that condition, it passed by delivery. This construction is made in order to give effect to the intention of the party who sets the paper afloat with a blank for the name of the payee. And upon the same ground, a bill or note payable to the order of a fictitious payee, is regarded as payable to bearer. Gibson & al. v. Minet & al. 1 H. Bl. R. 569. In Rex v. Randall, Russ. & Ry. C. C. 195, it was held 899that a bill blank’ as to the pajee did not answer the description of a bill of exchange in an indictment. But however that may be, the cases above cited abundantly establish that a party to such a bill is liable upon it as if it was filled up. It has been held, too, that while a bill or note is blank as to the payee, the holder cannot sue upon it as bearer, but that he must insert his name as payee. Greenhow v. Boyle, 7 Blackf. R. 56; Seay v. Bank of Tennessee, 8 Sneed R. 558. But these cases fully recog-, nize the doctrine of the case of Crutchley v. Clarence. They only hold that the insertion of the name of the plaintiff, so that the paper may, on its face, import a contract with him, is necessary to enable him to sue upon it. In Rees v. Conococheague Bank, 5 Rand 326, it was contended that the plaintiff could not recover under an endorsement in blank, without writing over it an assignment to himself. But the argument was overruled, and the court held, that the election of the plaintiff to treat the endorsement as a transfer to himself, is proved as well by suing on the note in his own name, as by writing an assignmep.t to himself over the endorsement. If, however, the insertion of the name of the payee is necessary to enable the plaintiff to sue upon such a note, it is only a matter of form, and may be made at the trial, as was conceded by the court in the case cited from 3 Sneed. These cases establish two propositions: 1. That a negotiable note blank as to the name of the payee, imports a contract by the maker of the note to pay the sum expressed in it, which may be transferred like other negotiable paper. 2. That the transfer of such a note may be made by delivery, as if it was, in express terms, payable to bearer. And this corresponds with the common usage and understanding among merchants. Notes are often taken in blank as to the name of the payee, in order to enable the holder to pass them off without incurring lia900bility by endorsing them, and without inflicting the injury upon tlieir credit which would result from endorsing them “without recourse.” The same object may be effected, and frequently is, by making the note payable to the order 0f the maker. A note blank as to the payee being thus a form of paper legitimately and frequently used in the usual and regular course of business, how can we say that the face of such a note indicates that it was made for accommodation, or that it ought to excite suspicion and enquiry in respect to the consideration? And as notes in that form are transferable by delivery, why might not Enders, Sutton & Co., when they found such notes in the hands of Green, regard them as notes given for value and belonging to him, and purchase them accordingly, as if they had been filled up payable to bearer, or filled up to a payee and endorsed by him in blank? On what ground can we hold that a purchaser of such a note takes it at his peril, which would not equally apply to a note regularly filled up with the name of a payee? In Wookey v. Pole, above cited, the fact that the Exchequer bill was blank as to the payee was not held to put the banker upon enquiry as to the title of the party from whom he received it; the title of the banker was put upon the same principle as if the bill had been filled up payable to bearer. The case of Aude v. Dixon, 6 Exch. R. 869, has been cited to show that when a party takes a note which is blank as to the name of the payee, he takes it at his peril, and cannot claim the protection which the law gives to the Iona fide holder of a note that is complete and perfect on its face. That was an action against William Dixon as the maker of a promissory note. It was proved that Richard Dixon, the brother of the defendant, being desirous of borrowing ¿£100 on the security of a promissory note, applied to the defendant to become one of his securities, 901which he agreed to do on the representation of his brother that one Robinson would become his co-surety, and that the defendant should not be responsible unless Robinson joined in the note. On the faith of that representation, the defendant signed the following blank instrument, leaving a space for Robinson as the first signature: “- December, 1848. On demand we do hereby jointly and severally promise to pay to Mr.--, or order, ¿6100. As witness our hands. William Dixon.” Robinson refused to sign the paper, and Richard Dixon took it in its imDerfeet state to the plaintiff, who advanced the money upon it, upon Richard Dixon’s representation that he had authority to deal with it. The blanks were filled up by inserting “26” before “December,” and the name of the plaintiff as payee. It was held that the plaintiff could not recover, on the ground that Richard Dixon had only a limited authority to make the paper a binding instrument as to the defendant; that is, on the condition that Robinson would sign it as co-security. Parke B., delivering the opinion in which Alderson B. and Platt B. concurred, said, “ A party who takes such an incomplete instrument cannot recover upon it, unless the person from whom he received it had a real authority to deal with it. There was no such authority in this case, and unless the circumstances show that the defendant conducted himself in such a way as to lead the plaintiff to believe that the defendant’s brother had authority, he can take no better title than the defendant’s brother could give. The maxim of law is, ‘nemo plus juris in alium transferre protest quam ipse habet.’ It is a fallacy to say that the plaintiff is a bona fide holder for value; he has taken a piece of blank paper, not a promissory note. He could only take it as a note under the authority of the defendant’s brother, and he had no authority; consequently the instrument is void as against the defendant.” During 902the argument, Parke B. said: “ Suppose Richard Dixon had authority to fill up the instrument with ¿8100, and he inserted ¿8200, would the defendant be liable ? In the case of Rex v. Hart, 1 Mood. C. C. 486, all the judges were unanimously of opinion, that where a blank acceptance is delivered to a person with authority to fill it up with a particular sum, and he inserts a larger sum, he is guilty of forgery.” It is apparent from this statement, that Aude v. Dixon was wholly unlike the present case. The defendant in that case never intended to be bound to any body by the instrument as it stood; he only intended to be bound along with Robinson. The negotiation of the paper and the insertion of the name of the plaintiff as payee were, therefore, without authority. The facp of the paper showed what was, at least, the original intention of the defendant, and the court held him bound to enquire whether that intention bad been changed. In the case of anote blank only as to the name of the payee, the face of the paper indicates that the maker intends to be bound to any person who may be the holder, and an authority is implied to any bona fide holder to fill it up with his name as payee. In the latter ease, the paper on its face imports a contract binding on the party whose name is signed to it; in the former, it imports no such contract, in the view' which was taken by the court in Aude v. Dixon. Some of the grounds assigned for the decision in Aude v. Dixon have a bearing on this case, but they are inconsistent with well settled principles. Thus it was said that the plaintiff could not be a bona fide holder because he took a blank piece of paper and not a promissory note. That is inconsistent with numerous cases, which hold that where a signature is affixed to a blank paper, with authority to write a promissory note over it, a party who takes it bona fide and for value after it is filled up, will have all 903the rights of a bona fide holder, though he knows that the paper was blank when signed and filled up afterwards. Fant v. Miller & Mayhew, 17 Gratt. 47, 80, and cases cited; Story Prom. Notes, section 122. It was also said that if a person signs a blank with authority to fill it up as a note for ¿£100, and it is filled up as a note for ¿£200, he will not be liable. This is contrary to numerous cases in England and in this country. Montague v. Perkins, 22 Eng. L. & Eq. R. 516; Barker v. Sterne, 9 Exch. R. 684; Putnam v. Sullivan & al., 4 Mass. R. 45; Fullerton v. Sturges, 4 Ohio R. (N. S.) 529; Fanning v. Farmers and Merchants Bank of Memphis, 8 Sm. & Mar. R. 139; Van Duzer v. Howe, 21 N. York R. 531; 1 Parsons Notes and Bills, 111-115. And in such a case the title of the bona fide holder will not be affected by the agreement as to the amount for which the note was to be filled up, and of which he had no notice, although he knew the fact that the signature was affixed to a mere blank. 4 Mass. R. 45; 4 Ohio R. (N. S.) 529 ; 8 Sm. & Mar. R. 139. And so the doctrine that the filling up of a note over a blank signature for a larger sum than that authorized, is a forgery, is contrary to the decision in Putnam v. Sullivan & al. supra. I think, therefore, that I am warranted in saying, that so far as Aude v. Dixon contains anything that can be regarded as adverse to the views I have advanced in this case, it is entitled to no weight as authority. It is proper to notice in this connection the case of Hatch v. Searles, 31 Eng. L. & Eq. R. 219, which may be supposed to furnish some support to Aude v. Dixon. That was the case of a claim presented in an administrator’s suit by the endorsee of a bill of exchange against the acceptor’s estate. The reporter in his head note to the case states the ground of the decision to be, that as the holder of the bill, who was an endorsee, was aware, when 904he took the hill, that the acceptance had been given in blank, he must be taken to have had as full knowledge of all the circumstances of the origin of the bill, and of the want of title in his endorser, as he might have acquired if he had made proper enquiry. If the decision involved this principle, it is inconsistent with the cases before cited. But it is remarkable that if the Lords Justices rested their decision on this principle, neither of them mentions it in his opinion. The case was decided on the ground that the circumstances under which the holder of the bill received it, were such as ought to have excited suspicion and led to enquiry. But the fact that the acceptance was in blank, was not mentioned as one of those circumstances. It was further contended in the argument, that as Enders, Sutton & Co. have chosen to insert their names in the notes as payees, so as to indicate a transaction directly between themselves and the makers, and have, in their declaration, described themselves as payees, they cannot be allowed to repel the defence of usury, by showing that, in point of fact, they had no transaction with the makers, but obtained the notes by transfer from a previous holder. It was said by counsel that the plaintiffs attack in the character of payees, and defend in the character of endorsees, and that the law will not allow them thus to assume inconsistent positions. There is no force in this objection. The question is, whether the transaction under consideration was a loan of money at an illegal rate of interest, or a lawful purchase of notes at a discount. To ascertain this, we must look at the real facts of the transaction, and not at its mere form. If a transaction amounts, in substance and effect, to a loan of money at more than legal interest, the consequences cannot be evaded by any form it may be made to assume. If, on the other hand, there was really no loan of money, but only a lawful purchase of notes at a dis905count, the mere form of the transaction will not involve the party in the penalties of usury, which, in point of fact, he has not been guilty of. Moreover, the law does not hold that the true relations between the parties to a negotiable instrument are conclusively indicated by its form. Thus, if it appears on the face of the bill or note, sued on that the plaintiff was the immediate promissor of the defendant, it is admissible for the plaintiff to show by evidence aliunde that he was not such immediate promissor in point of fact, hut that the paper came to him through other hands, and thus ex' elude evidence that might otherwise be given to impeach the consideration. 1 Pars. Notes and Bills, 180-183; Leading Cases on Pleading, notes to Peacock v. Rhodes & al. This principle is recognized in Nelson v. Cowing, 6 Hill R. 336. In Pindar v. Barlow, 31 Verm. R. 529, the note was given by the defendant for the price of intoxicating liquors sold to him by one Meech, who had no license to sell liquor. Meech took the note payable Lo the plaintiff, because he intended to transfer it to him in payment of a debt which he owed him; which he did two days after its date; the plaintiff not knowing that the note was given for intoxicating liquor. The defendant insisted that the note was void in the hands of the plaintiff under the statute of Vermont. It was held that a note given for the price of intoxicating liquor was void, under the statute, in the hands of the original party, but not in the hands of a Iona fide holder for value. And it was held that as the plaintiff, in point of fact, received the note by transfer from Meech, he was entitled to recover, though the note was payable, on its face, to him or bearer. I am of opinion, therefore, that no reason has been shown why the principles of Whitworth v. Adams should not be applied to this case. The case of 906Williams v. Reynolds, 10 Maryland R. 57, which was cited to show that those principles should not be applied to the purchase of a note blank as to the payee, has no such bearing. That case was decided in conformity with the doctrine of the New York cases, which were repudiated in Whitworth v. Adams. It has been strenuously insisted that Enders, Sutton & Co. were not authorized to insert their names in the notes as payees, because they were not bona fide holders. If they acquired the notes through a usurious transaction, they were not bona fide holders. But the purchaser of a note from one whose name is not upon it, at any discount, however great, is not, of itself, usurious. Such a purchaser, if he does not violate the usury law, may be a bona fide holder, as well as if he had bought the note at its face value. To say that Enders, Sutton & Co. acquired these notes through a usurious transaction, is to assume the very point in controversy. No other ground has been alleged to impeach their title as bona fide holders. It has been urged that if we sustain the present transaction, we shall give our sanction to an easy device by which a man may sell his own note, and evade the statute of usury. I reply that this objection applies, as do most of. the arguments urged in this case, to the case of Whitworth v. Adams. Under the decision in that case a man may make a note payable to his owm order, and endorse it and sell it through a third person at any price, without involving a violation of the usury law, provided the purchaser does not know that the note is sold for the benefit of the maker. So a man may make his note to a friend who endorses it for his accommodation, and sell it in the same way. The present case only illustrates another mode of doing substantially the same thing. The blame, if any 907is due, must rest upon the case of Whitworth v. Adams, which I do not feel at liberty to overrule, for the reasons already mentioned. The instruction of the court in this case was in strict accordance with Whitworth v. Adams. The instructions moved by the defendants and refused by the court, were inconsistent with that case, and were, therefore, properly refused. I am of opinion that the judgment of the District Court should be affirmed. Brummel & Co. v. James Gray’s Sons. This case depends on the same legal principles as Brummel & Co. v. Enders, Sutton & Co., just decided. It differs in the facts in this, that the evidence in this case was that one of the plaintiffs purchased the note from a broker, who told him that it had been given by the defendants for wheat sold to them by a person who wished to leave town, and left it wdth the broker for sale. The jury have found that the purchaser did not know that this representation was untrue, and there does not appear from the evidence certified, to have been anything to excite his suspicion that it was not so, unless the mere fact that the note was blank as to the name of the payee was sufficient of itself to put him upon enquiry, notwithstanding the representation. Such a principle would destroy the circulation of such notes altogether. The judgment should be affirmed. Brummel & Co. v. Hill’s Ex’or. This case depends on the same principles as the other two cases just decided. It differs on the facts in these particulars: 1. That Hill applied to Green to know if he had any of Brummel’s notes, saying that he wanted to buy one; that Green said that he could get one, and did 908so. 2. That Green owed Hill a note, the amount of "which was allowed by Green to Hill as part of the proceeds of the note sold to him ; and that Green promised to endorse the note if requested. The first of these facts may be supposed to indicate that Hill expected .to get a note that was made for sale, but the others have a tendency to show that he understood that the note he was buying was the property of Green. But the jury have found that Hill did not know that the note was made to be sold for the benefit of the makers. The judgment should be affirmed. Moncure, P. concurred in the opinion of Joynes, J. Judgments aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481710/	JOYNES, J. On the 9th day of September 1861, Spiro Zetelle, then a resident of Richmond, being about to go to Europe, to remain there for an indefinite time, executed a power of attorney by which he constituted Gustavus A. Myers and Frederic J. Cridland his agents and attorneys in fact. The powers conferred by this instrument were of the most ample ..character. Besides the enumeration of many particular powers, there is this general clause, “to do, transact, execute, and perform, all prop.er, legal, equitable, needful, and requisite acts, matters, and things, relative to my affairs, business, and concerns, of all and every kind whatsoever, in the city of Richmond aforesaid, none excepted or reserved.” There is also this general clause, designed to comprehend any thing that might possibly have been omitted: “It being meant and intended by me to authorize and empower, and I do hereby authorize and empower my said attorneys, or either of them, to do every matter and thing for me, in any right and capacity whatsoever, which can possibly be devised and lawfully done, although the same may be omitted to be herein particularly set forth.” At the time this power was executed, Zetelle owned a house and lot in Richmond, which was in the occupation of a tenant, and some furniture and personal effects, and had debts due to him to the amount of several thousand dollars, falling due at different times, from November 1, 1861, to November 1, 1865. On the same day (September 9,1861) Zetelle and wife executed a deed, whereby they conveyed the said house and lot to the said Myers and Cridland, upon trust, and with power to lease the same for such term, and for such rent as they, or either of them, might deem most advantageous, to cause to be made all necessary repairs, and to pay all necessary and proper charges, taxes, premiums of insurance, assessments, and dues accruing on the said property. And upon further trust, at such time, in such manner, and upon such terms as the said trustees, or either of them, should think most beneficial, to make sale of the said property, and to collect all sums of money arising from such rents and sale. And upon further trust, from time to time, as they should come to their hands, to pay over to said Zetelle, his representative or assigns, all sums of money that may come to'their, or either of their, hands, after deducting a commission of five per cent. One object, certainly, for the execution of this deed, was to enable Myers and Cridland to pass the title of Mrs. Zetelle, by their conveyance of the house and lot in case of a sale. Whether there was any other object it is not necessary now to say. That may be a question hereafter. Myers and Cridland made sale of the real estate in March 1862, and received the proceeds of sale. After the close of the war in 1865, Zetelle returned to Richmond, and in February 1867, filed the bill in this case, charging Myers and Cridland with a breach of trust in failing to remit to him the money arising from the sale of the house and lot under the deed, and from rents received by them before the sale. The deed and power of attorney are both exhibited with the bill. It is alleged that the plaintiff has sued the defendants at law in reference to their proceedings under the power of attorney, and the declaration and bill of particulars in that action are in the record. The plaintiff in that action seeks to charge the defendants with the amount of the several debts and the value of the personal effects, as having been received by them, and not accounted for. The bill alleges, that after the plaintiff returned to Richmond, he applied to Myers (Cridland having removed to another State), for an account of the agency and trust; that Myers informed him that the money arising from the sales and collections made by himself and Cridland had been invested in Confederate bonds, (except a small sum which remained in Confederate notes), so that the whole had been entirely lost; and that he exhibited an account of the transactions of himself and Cridland ; which account he indignantly rejected. This account is exhibited with the bill. Cridland was proceeded against as a nonresident. Myers filed an answer, in which he embodied a demurrer to the bill, and among other things, insisted that the power of attorney covered the money which came 40to the hands of Cridland and himself under the deed of trust, so that the action at law would embrace the claim set up in his suit. He therefore submitted a motion that the plaintiff should be put to his election whether he would proceed in this suit or in the action at law, alleging that -both were for the same subject matter and cause of action. The motion was overruled ; and upon the' final hearing on the pleadings and evidence, the bill was dismissed with costs. It is a general rule, that an action at law cannot be maintained against a trustee to recover money due from him in that character. Pardoe v. Price, 16 Mees. & Welsb. R. 457. If, however, the trustee has appropriated a certain sum as payable to the cestuis que trust, as for example, by the settlement of an account showing a balance due him, or otherwise admits that he holds it to be paid to the cestuis que trust, or for his use, an action at law for money had and received will lie, because the character of the relation between the parties in respect to the money is changed. The ^trustee no longer holds the money as trustee, properly so called, but he holds it as a receiver for the use of the cestuis que trust. Edwards v. Lowndes, 1 El. & Bl. R. 81, (27 Eng. Com. L. R.). It was contended here by the counsel for the defendants, that the money which came into their hands as trustees under the deed, had been carried into their account as agents, and was no longer held by them as trustees, properly so called, and so might be the subject of an action at law, in like manner as the money received immediately under the power of attorney. Indeed, it was contended that after the money had been, as thus alleged, transferred from the hands of the defendants as trustees to their hands as agents, the only remedy of the plaintiff was at law ; so that this suit should be dismissed for want of jurisdiction. But as we shall presently see, the transactions of the defendants as agents under the power of attorney, are a proper subject for the jurisdiction of equity, as well as their transactions under the deed of trust; so that if the money received by the defendants under the deed did, as contended for, pass into their hands as agents, and become thereby the subject'of an action at law, it did not cease to be the subject of equitable jurisdiction. It is not necessary, however, to decide whether the trust fund became thus, along with the fund arising under the power, the subject of an action at law, so as to entitle the plaintiff, at his option, to sue for the entire subject at law or in equity. Eor this is not a case for applying the ordinary rule, by which a plaintiff, who is asserting the same demand at law and in equity, is put to his election. Whatever it may have been competent for him to do, the plaintiff is not, in point of fact, asserting the same demand in both suits. We may, however, reach substantially the same result in another way. The deed of trust and power of attorney were executed at the same time, and for the purpose of effecting the same general object, namely, the management and disposition of the plaintiff’s property and business during his absence from the country. , They constituted in fact but one general agency ; the power of attorney embracing all the property, and the deed of trust embracing the real estate only ; for the purpose of investing the agents with an authority which was not, and could not have been, conferred by the power of attorney, namely, the authority to pass the interest of Mrs. Zetelle. Whether the deed of trust devolved any duty upon the trustees in respect to the money they were to receive under it, which was not devolved upon them by the power of attorney in respect to other money, is immaterial to the present purpose. And accordingly, the plaintiff in his' bill treats these instruments as designed for a common purpose, and to create one general agency for the management of his affairs ; and the defendant so regarded them, as appears from their blending all their transactions in one common account. It is a' rule, founded on the principle of preventing unnecessary and vexatious litigation, that a plaintiff shall not be allowed to split up a single cause of action, so as to make it the subject of several suits. On this g-round, a court of equity will not allow a bill to be brought for part of a matter only, when the whole is the proper subject of one suit. Thus, it will not permit a party to bring a bill for part of one entire account, but will compel him to unite the whole in one suit; for otherwise he might split it up into various suits, and thus promote the most oppressive litigation. Story Eq. PI. 287. If, therefore, the transactions under the power of attorney were proper for the jurisdiction of a court of equity, they ought to have been united in this suit with the transactions under the deed of trust, as they all pertained to the same general and common agency. And that course would be attended with this practical advantage in addition : that it would avoid having the same questions between the same parties, and in reference to the same general subject matter, litigated before different forums, which might come to different conclusions on the same facts. It is important, therefore, to enquire, whether the transactions of the defendants under the power of attorney were proper for the jurisdiction of a court of equity. In Mackenzie v. Johnston & al., 4 Madd. R. 373, the bill was filed for an account of certain earthenware which the plaintiff had delivered to the defendants, who were the owners of a vessel, to be shipped by them to Bombay and sold. The defendants demurred, and it was contended that equity had no jurisdiction of the case. The Vice Chancellor (Sir John Leach) overruled the demurrer. He said: “The defendants here were agents for the sale of the property of the plaintiff; and wherever such a relation exists, a bill will lie for an account. The plaintiff can only learn from the discovery of the defendants how they have acted in the execution of their trust, and it would be most unreasonable that he should pay them for 41that discovery, if it turned out that they had abused his confidence. Yet such must be the case, if a bill for relief will not lie.” The agency in that case, as in the one now before us, was of a fiduciary character, involving trust and confidence, and making it necessary for the agents to keep accounts and preserve vouchers. The jurisdiction, thus for the first time in the year 1819, distinctly asserted over this class of cases, has been fully established by subsequent cases in England. Thus, in Hemmings v. Pugh, 9 Jurist. N. S. 1124, decided in 1863, Vice Chancellor Stuart said : “I take it to lie thelawof this court, where the agency partakes of a fiduciary '^'character, that the jurisdiction of this court attaches, and that the court will ordain a decree for an account, although all the items of it may be on one side, and although there may be no mutual dealings between the parties.” The jurisdiction was declined in that case, because although there was an agency, it did not have any fiduciary character. In Phillips v. Phillips, 9 Hare R. 471, S. C. 12 Eng. L. & Eq. 259, Vice Chancellor Turner was of opinion that a bill would not lie in every case by a principal against his agent, and that the equity would not entertain a bill for an account except in a case of mutual accounts ; which he understood to mean, not merely where one of two parties has received money and paid it on account of the other, but where each of two parties has received and paid money on account of the other. This objection had been urged by counsel and overruled in Mackenzie v. Johnston. And the same objection was made and overruled in Makepeace v. Rogers, 11 Jurist. N. S. 215, decided in 1865. In that case a land owner filed a bill against the agent and manager of his estates, for an account of all moneys received, and of all expenses paid by such agent, and for payment of the balance that might be found to be due. The defendant filed a demurrer, which was overruled by Vice Chancellor Stuart. He said, in the course of his opinion, “I conceive that where-ever the relation between the person who seeks an account, and the person against whom he seeks it, partakes of a fiduciary character, a trust is reposed by the plaintiff in the defendant, and that that trust is not the same as is represented to exist in the ordinary employment of an agent, such as a builder or other tradesman. The fiduciary character of the employment imposes upon the person employed ¡the duty of keeping accounts and of preserving vouchers ; and according to the old law, which I trust will continue to be the law of this court, a bill for an account in equity may be filed and sustained.” The Vice Chancellor disapproved of the opinion of Chief Baron Alexander, in King v. Rossett. 2 Young & Jev. 33, that before a court of equity will interfere upon a bill filed by a principal against his agent for an account, it must be shown that the accounts are so complicated that they cannot be properly investigated at law. The decree of the Vice Chancellor was affirmed by the Lords Justices of the Court of Appeals. 11 Jurist. N. S. 314. Lord Justice Knight Bruce said, that there was no authority for saying that there must be demands on both sides; and that an account might be obtained without any charge of fraud or misrepresentation. Lord Justice Turner said, that there was no authority to show that a bill would not lie at any time by a principal against an agent for an account. He said there was nothing to the contrary in the decision of Phillips v. Phillips (above cited), and that he regretted that any thing he had said in deciding that case should have misled any one. There are many other cases in the English courts bearingupon the jurisdiction of courts of equity in cases of account, which show that the extent and grounds of that jurisdiction have been the subject of much diversity of decision. See Haynes’ Outlines, 236-254 ; Dabbs v. Nugent, 11 Jurist. N. S. 943. It is not necessary to consider them, for the cases which have been cited, and which rest on the most satisfactory grounds, fully establish the jurisdiction of equity in the case of such an agency as that created by the power of attorney in the present case. It was the contrary, therefore, to the principles which govern the proceedings of courts of equity, to embrace in this suit only such of the transactions under the general agency as took place under the deed of trust; while those under the power were made the subject of an action at law. The bill was liable to the demurrer filed by Myers for thus embracing only part of the subject matter, the whole of which should have been embraced in it. And the objection was sufficiently raised, too, by the motion to put the plaintiff to his election. The Circuit court should not, therefore, have overruled that motion, thus leaving the plaintiff at liberty to proceed in both suits. Instead of that, the Circuit court should have made an order requiring the plaintiff to make his election, within a time specified, whether he would amend his bill in this case so as to embrace therein the transaction under the power of attorney, as well as those under the deed of trust, and dismiss his action at law ; or whether he would prosecute his action at law, and in the event of his electing to prosecute his action at law, or failing to make any election, the bill in this case should have been dismissed with costs. This would have been the same, in effect, as to sustain the demurrer, with leave to the plaintiff to amend the bill and make his election. The appellee, having obtained a decision of the Circuit court in his favor, on the merits, has not insisted here, as he did there, that the plaintiff should not have been allowed to prosecute both suits, and of course the objection is one that could not be made by the appellant. But we are satisfied that the justice of the case requires that that objection should be sustained, and we therefore put our decision on that ground, without intimating any opinion on the merits. If we should decide the case upon the merits, a 42serious question might arise in the action at law, whether it could be proceeded in, inasmuch as this suit, involving part of the entire cause of action, had been decided on the merits. It is a general rule, that a judgment in an action for any part of an entire cause of action, is a bar to another action founded on any other part of the same entire cause of action. Hite v. Hong, 6 Rand. 457. The decree must therefore be reversed, and the cause remanded.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481711/	The other judges concurred in the opinion of JOYNRS, J. The decree was as follows : The court is of opinion, for reasons, &c. that the power of attorney and deed of trust in the bill mentioned were designed to effect one general and common object, namely, to entrust the defendants with the control, management and disposition of the property and affairs of the plaintiff, in the manner set forth therein, during his contemplated absence from the country. The court is further of opinion, that the transactions of the said defendant under the authority conferred by the said power of attorney, as well as their transactions under the authority conferred by the deed of trust, were proper subjects for the cognizance and jurisdiction of a court of equity ; and that it was not competent for the plaintiff to proceed against the defendants in this suit in respect to the transactions under the deed of trust, and in the action at law in the bill mentione.d in respect to the transactions under the power of attorney. The court is further of opinion, that instead of overruling the motion of the defendant Myers to put the plaintiff to his election whether he would prosecute this suit or the said action at law, the said Circuit court should have made an order requiring the said plaintiff to make his election within a time specified, whether he would amend his bill in this case so as to embrace therein the transactions under the power of attorney, as well as those under the deed of trust, and dismiss his said action at law, or whether he would prosecute his action at law ; and that in the event of his electing to prosecute his said actions at law, or failing to make any election, the *said Circuit court should have dismissed the bill in this case with costs; and that the said decree is therefore erroneous. Wherefore, it is ■ adjudged, ordered and decreed, that the said decree be reversed and annulled, and that the appellant pay to the appellees as the parties subtantially prevailing, their costs by them expended in this court; the appellees being regarded as the party substantially prevailing, because the decree of the Circuit court is reversed for an error committed by the appellant. And it is ordered that the cause be remanded to the said Circuit court for further proceedings, in conformity to the foregoing opinion and decree. Which is ordered to be certified, &c.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481712/	MONCURF, P. This is an appeal from a decree of the Circuit court of the city of Richmond in three suits, the styles of which were “Mayo v. Carrington,” “Coutts v. Mayo.” and “Coutts’ adm’r v. Mayo,” the printed record of which contains S50 pages. The difficulty of deciding it is necessarily very great, and is much increased by the obscurity arising from lapse of time, the extraordinary laches of most of the parties concerned, and the death of all the original actors in the transactions which gave rise to the suits. The subject of controversy is what is familiarly known by the name of the “Sandy bar which was at one time, as its name imports, a mere sand bar, valuable in itself only for the sand it afforded, yet so valuable, even for that, as to afford an annual rent of $450. And there was then appurtenant to it a fishery, which was so valuable as to yield, for a short time at least, an annual rent of $1,000. But the fishery soon diminished in value, and has long since become utterly valueless. If this bar was then worth any thing for any other purpose than the sand and the fishery, in the estimation either of the parties concerned or the public, it was only in its connection, if it had any connection, with “Coutts’s ferry,” to which it was in close proximity, and which was then held by the same owner. That ferry was across James river, between Richmond and Manchester, and just below “Mayo’s bridge.” It was therefore, naturally, a subject of interest to the proprietor of that bridge, which has always belonged to the ^appellants and their ancestors. But the ferry has long since gone down and ceased to have any existence. The sandy bar, which in the origin of the transactions aforesaid was thus of limited value, has long been increasing in value by reason of improvements, public and private, and is now, it seems, very valuable. It is situated on James river, nearly opposite the centre of the city, is lot No. 341 in the plan of Byrd’s addition to the city, and the Richmond dock occupies a part of it. Many buildings have been erected upon it, which now yield a large amount of rent. These changes have had the effect of waking up the parties concerned from their long sleep, and stimulating them to enquire into their rights. Not being able to settle those rights themselves, they have invoked the aid of the courts for that purpose, and it now devolves on this court to decide the questions of controversy between them. Difficult as that duty is, we must address ourselves to. the work and perform it as well as we can. After all, we can hardly expect to effectuate perfect justice in the case. The representatives, real or personal, of four persons long since deceased, are conflicting claimants of the subject in controversy, or an interest therein. First, George M. Carrington ; secondly, Fdward C. Mayo ; thirdly, Jane Coutts; and fourthly, Patrick Coutts. We will consider the claims of these in their order. And, First, George M. Carrington. He and his representatives and assigns have been in the possession and enjoyment of the subject ever since the year 1833, claiming to be entitled to a term for years therein which will expire on the 10th day of February 1876 ; and also claiming a right to set off against the rent, accrued and accruing, or hereafter to accrue during all that time, so much as may be necessary of the debt due by Patrick Coutts to James Winston, claimed to be secured by the deed of trust from said Coutts to Coleman and Otis of the 8th of November 1819, and to charge the balance temaining, or which may remain, 44unpaid of that debt, after crediting the rents aforesaid, on the subject itself, upon the ground that' the said debt, with the said right of set off, was sold and assigned to said Carrington along with the said term, and that the annual rent is insufficient to keep down the annual interest upon the balance due on account of the said debt. We will now examine his chain of title, link by link, and see whether, and to what extent, it is sufficient to sustain his claim. Patrick Coutts is the source from whom all-the conflicting claims in this case arise, and it will therefore be unnecessary to trace the title beyond, that source. It may be proper to say, however, that he derived it under a marriage settlement between his father and mother, Reuben and Jane Coutts, dated the 10th day of September 1799, which created a charge upon all the property conveyed by that settlement, to secure an annuity for life of five hundred dollars to said Jane Coutts, who lived until some time in 1831. But as there is no claim in this case on account of tha.t annuity, no further notice need be taken of it. The links then in the claim of Carrington’s title under Patrick Coutts are as follows: 1st. The lease dated the 16th day of March 1815, from Patrick Coutts, McCraw, surviving trustee in the marriage settlement aforesaid, and Jane Coutts to James and Pleasant Winston, demising to them the said Winstons, the said “Sandy bar,” “with liberty to use and to carry away, sell or otherwise dispose of, so much sand of or from the said sandy bar as they the said James and Pleasant Winston,” &c. “may or shall find it convenient or necessary to use, take,, carry away, sell or otherwise dispose of, with the exception of so much sand as the aforesaid Patrick Coutts, his executors,” &c. “may find necessary or expedient for his or their own proper use,” &c. : “To have and to hold the said sandy bar (except as before excepted), as to the full and free use of sand from the same as aforesaid and none other, unto the said James and Pleasant Winston,” &c., “from the first day of April next ensuing the date hereof, for and during and to the full end and term of 20 years, yielding and paying therefor unto the said McCraw as trustee for the uses expressed in said trust,” &c., “the yearly rent or sum of $450,” &c., “in the following manner,” &c. The lease contains a proviso for re-entry for non-payment of rent, or if no sufficient distress should be found on the premises, and also a provision for the surrender of the lease by the lessees upon giving to the said “McCraw, trustee as aforesaid, or to the said Patrick Coutts, his heirs or assigns, six months previous notice in writing of such intention.” The only remaining clauses of the lease which it is material to notice are the following : “And it is hereby understood, covenanted and agreed,” &c. “that the only interest or right intended by these presents to be demised,” &c. “is the full and perfect liberty to use, take, carry away, sell or dispose of, and enjoy the sand of the said premises, together with the fish house now erecting on the said sandy bar in the manner and time hereinafter covenanted and agreed upon, in as full and ample a manner as the said lessees might lawfully enjoy the same, according to the true intent and meaning of these presents (excepting as before excepted) to the exclusion of every interest whatever and particularly all interest and right in or to the ferry and the aforesaid fishery, each and both of which the said McCraw, trustee as aforesaid, hereby wholly reserves from the operation of the lease.” “And also that it shall and may be lawful to and for the said J. & P. Winston, their” &c., “to occupy, possess and enjoy the fish house erecting upon the said sandy bar (as soon as the same shall be finished) during ‘“the following months of each and every year of the aforesaid term of 20 years, and for and during no other time,” viz. “June, July, August, Sep.tember, October, November, December, January and February.”—“And should they the said J. and P. Winston, their” &c., “be disposed to erect or put any other additional buildings thereon, it shall and may be lawful to and for them, or either of them, their” &c., “to erect or put a house or houses on any part of the said sandy bar, or in any way to improve the said premises by watling or any other ways or means whatever, so as to enable them the said J. & P. Winston, their” &c., “to catch or procure as much sand as possible. And should the said J. & P. Winston, their” &c., “surrender the premises as aforesaid, at any time before the expiration of the term of 20 years before mentioned,” “then and in that case the said P. Coutts, his heirs,” &c., “shall and will well and truly pay or cause to be paid to them the said J. & P. Winston, their” &c., one-half of the value of any house or houses and the appurtenances to the same,” which may have been so erected, and be upon the premises at the time of such surrender, to be ascertained in the manner prescribed in the lease. It was contended that this lease was in effect only a license to the lessee and his assigns to get sand from the demised premises during the term, and that only such privileges, by making improvements or otherwise, were intended to be conferred on the lessee, &c., as were convenient to the business of getting sand. The literal terms of the lease seem to support that view. But if that had been the only intention of the parties, it would have been much more aptly expressed by giving a mere license to enter and take sand, instead of conveying the estate during the term. If such a mere license had been given, the estate would have remained in the lessor, subject only to the license. Whereas the estate is conveyed to the lessee during the term, with liberty to the lessees (which they would not have had if it had not been expressly given) to use and carry away, sell or otherwise dispose of the sand at pleasure, with the exception of so much thereof as Patrick Coutts, or his assigns, might find necessary or convenient for his or their own proper use, the right to take and remove which is expressly reserved in the lease— 45an exception and reservation which would have been wholly unnecessary if the only purpose of the parties had been to confer a license to take and carry away sand. The peculiar terms of the lease which gave ri.se to the objection we are now considering, were no doubt occasioned in this way. The sandy bar was of no value at that time except for these purposes, 1st, for getting sand, 2dly, for the fishery which was appurtenant thereto, and 3dly, on account of the ferry, which was in some way connected therewith. The fishery and the ferry were considered very valuable, and the lessors were very anxious to guard them as much as possible against any claim or interruption on the part of the lessees or their assigns. The sandy bar is therefore leased only for the first of the three x>urposes aforesaid, for which alone it was deemed to be of any value, and not for the 2d or 3d, which are expressly reserved and excluded from the operation of the lease. Although the improvements which the lessees are authorized by the lease to make, seem to refer only to the business of getting sand, no doubt because it was supposed that there could be no inducement for making any other, yet it cannot be supposed that the lessees were intended tobe restricted in any manner in the making of any improvements which would not interfere with the fishery or the ferry. There could have been no motive for such a restriction, for every permanent improvement put upon the property, not interfering with the fishery or the ferry, would benefit the lessors as well as the lessees. The lessors certainly had no right to enter upon the demised premises during the term for the purpose of making improvements, except in connection with the fishery or the ferry. The only right of entry which they had, except for the purposes of the fishery or the ferry, was the right reserved to Patrick Coutts and his assigns, to enter and take sand for their own use, and the right to re-enter for nonpayment of the rent, or because there is no sufficient distress on the premises. Who then had the right of improving the property when occasion required, or inducements were held out to its improvement, if the lessees or their assigns had not ? They therefore had that right. The next link in the chain of Carrington’s title is, 2nd. The lease, dated the 10th day of February 1816, from the same lessors to the same lessees, demising the fishery aforesaid and its appurtenances for the term of sixty years for the yearly rent of $1,000, and extending the lease of the sandy bar (except as aforesaid) as to the full and free use of sand from the same as aforesaid, and none other, from the first day of April 1835, the termination of the former lease, for the term of 40 years, 10 months and 9 days (so as to make the extended lease of the sandy bar terminate on the same day with the term thereby granted in the fishery as aforesaid), for the yearly rent of $450. This lease contains a similar provision in regard to re-entry, and also in regard to surrender of the lease, as is contained in the said lease of the 16th day of March 1815, and authorizes a surrender of the lease so far as the same relates to the fishery, without surrendering the lease so far as relates to the use of sand from the same. It also provides that if the lessees or their assigns should be disposed to ei'ect or put any additional buildings further and other than are mentioned and provided for in the said former lease, it shall be lawful for them to erect or put a house or houses on any part of the said sandy bar, or in any way to improve 'x'said premises. This provision seems to be regarded as an enlargement of the power of improvement given by the former lease ; and it no doubt is so, to this extent, at least, that the former lease is only of the sandy bar, excluding the fishery, whereas this lease is of both; and as the former lease contemplated the making of such improvements as would be useful in the operation of getting sand, this lease contemplated also the making of such as would be useful in conducting the fishery. But perhaps the provision in each case ought to be construed with what immediately follows ; and that is, a covenant on the part of Patrick Coutts, his heirs and assigns, to pay to the lessees or their assigns one-half of the value of such improvements, in case of a surrender of the property before the expiration of the term. In case of such a surrender, it was no doubt considered reasonable, that the tenants should be compensated for one-half of the permanent improvements made by them in the prosecution of the business for which the property was leased ; while it might have been considered very unreasonable to compel the lessor, his heirs or assigns, to pay one-half of the value of any improvements which the lessees or their assigns might choose to put upon the property, though wholly unconnected with the purpose for which the property was leased. The limitation, if any, on the power of the lessees or their assigns to improve the property, was only intended, in that view, to limit the liability of the lessor or his assigns for one-half of the value of such improvements in case of a surrender as aforesaid. It could hardly have been intended, in either lease, to deny to the lessees or their assigns the right to make any improvements they might please on the property, at their own expense and without any recourse whatever against the lessor or his assigns for indemnity in whole or in part, whether the lease was terminated by a surrender or by lapse of time, at least unless such improvements interfered with the fishery or the ferry. 3. A deed from Pleasant to James Winston, dated in 1816, assigning the former’s right under the aforesaid lease of the 16th day of March 1815. The day and month of the execution of this deed are blank, but it was recorded on the 18th day of October 1816, a nd was probably executed after the lease of the 10th of February 1816, especially as that lease is to both James and Pleasant Winston, which it would hardly have been if Pleasant had previously assigned his interest under the former lease to James. The assignment 46was no doubt intended to be of the right of Pleasant to the sandy bar under both leases, as we cannot suppose that he intended to part with his interest in an existing lease for 20 years, and retain his interest under a lease of the same subject which is not to commence until the end of that term. At all events, it does not appear that he has ever claimed any interest in the subject since the execution of that assignment, and it is not pretended that he has had any. His entire interest must therefore be considered as having been assigned to James Winston. ■ 4. A deed of trust dated the 8th day of November 1819, from Patrick Coutts to Coleman and Otis for the benefit of James Winston, conveying, besides other property, “all the right, title, and interest, reversion or reversions, remainder or remainders, of the said Coutts in the property called the sandy bar and fishery, and otherwise described in the plan of the city by lot No. 341.” The deed recites, that Winston, at the request of Coutts, had endorsed for him three negotiable notes of specified amounts, all dated the first of November, and payable at the Farmers Bank of Virginia, two of them at nine months, and the other at twelve months, after date, and that Coutts was “willing and desirous of securing the payment of the said notes by the conveyance of property in trust for that purpose.” The deed then proceeds to convey the property ; after which the trusts are declared to be, that if the said Coutts shall fail to pay either or all of the said notes when they are due, it may be lawful for the said trustees, or either of them, or the survivor of them, his ex’órs or adm’rs, to sell the whole of the property conveyed, “at the request of said Winston, his ex’or or adm’r, and convey the same to the purchasers, and out of the proceeds of such sale, shall pay and satisfy the notes aforesaid, together with all costs, interest and expenses attending the execution of the trust.” “And upon the further trust and confidence, that after full payment or satisfaction of the notes aforesaid shall have been made, any surplus of the proceeds of such sale or sales as aforesaid, which may remain in the hands of the trustees, or either of them, or the ex’or or adm’r of either, shall be applied to the payment of any debt and interest which may at the time be due from the said Coutts to the said Winston, and any surplus to be paid to the said Coutts.” There never was any sale made under this deed of trust. Default was made in the payment of all the negotiable notes secured by it. At the request of Winston, the endorser, Otis, the surviving trustee, advertised a sale to be made under the deed on the 6th day of December 1823, more than three years after the last of the said notes had become payable. But the day before the sale was to have been made, to wit, the 5th of December, Coutts paid the whole amount of the said three notes with Edward C. Mayo’s check. And the holders of the notes, by John Forbes, their attorney, thereupon surrendered the notes and instruments of protest to said Coutts, and released all liens, trust deeds, &c., for their security. But there never was any release of the deed of trust by the trustees, or either of them, or the representatives of either, or by Winston. 5. A surrender was made of the lease of the 10th of February 1861, so far as related to the fishery, in conformity with the provisions of that deed, and in pursuance of a notice from “James Winston, assignee of Jas. & P. Winston,” to Patrick Coutts, executed on the latter June 21st, 1820, to take effect at the expiration of six months from that day. In consequence of that surrender, since 1820 James Winston and his assigns have not held the fishery nor been accountable for the rent thereof. 6. A deed of trust from James Winston to Charles J. Macmurdo and George Winston, dated on the 21st day of November 1820, conveying certain property therein mentioned, including “the interest of every kind, by lease, deed of trust or otherwise, which the said Winston has in the sandy, bar property in the said city,” and all other property of said Winston, except a bond and note mentioned in the deed. 7. The decrees and other proceedings in the suit of “Pugh v. Winston,” brought by a judgment creditor of James Winston to impeach the said deed of trust of the 21st day of November 1820, to Macmurdo and Winston, as fraudulent and void in regard to the creditors of said James Winston. The said deed was accordingly adj udged to be fraudulent and void, and on the 16th day of November 1832, Samuel T. Pulliam was appointed commissioner to sell all the real estate conveyed by the deed, with the exception of a certain specified portion. The said commissioner, after making a sale under that decree, made a report, in which is contained the following statement: “The interest of James Winston in the sandy bar property, the commissioner did not offer for sale, doubting whether it was intended by the decree that he should do so. The interest spoken of he understands to be, a lease on that property, which will expire some time in the year 1835. It is represented that .Winston holds the property under a lease from Coutts at an annual rent, and Mayo has acquired the title of Coutts. Mayo states, that Winston pays him no rent, on the ground that Coutts is indebted to him more than the amount of rent that will become due during the lease. If the court should direct a sale of the sandy bar property, the sale thereof would no doubt be promoted by giving to the purchaser of the leasehold estate the same right of setting off against the rent the debt due by Coutts to Winston, that Winston now has.” On the 1st day of July 1833, another decree was made in the suit, reciting substantially the above mentioned statement of the commissioner, and directing him to sell at public auction to the highest bidder, upon a credit of one year (after advertising the time, place and terms of sale as directed by the decree), “all the interest of every kind which the said Winston, at the date of the deed of trust before specified,” to wit, the deed 47to Macmurdo and Winston, “had in the sandy bar property in the city of Richmond, whether such interest be by lease, deed of trust or otherwise, together with a right on the part of the purchaser of setting off against the rent that will accrue after such purchase under the lease, so much of the debt due by Coutts to Winston as will be equal to the rent that may so accrue.” The commissioner afterwards reported that on the 16th day of August 1833, he made a sale in strict pursuance.of the directions of said decree, after advertising the time and place of sale as therein directed, when George M. Carrington being the highest bidder, became the purchaser at the price of nine thousand two hundred and forty-five dollars, who had executed his bond for that sum payable at the end of one year from the day of sale, with securities. The report contains this further statement: “This commissionef heretofore reported that he understood the interest of Winston in the sandy bar property to be by lease which would expire in 183S. This is true ; but there existed another lease, unknown to the commissioner at that time, which will not expire until the end of 40 years from the expiration of the first. The existence of this last lease was known of at the sale above reported.” On the 23rd day of November 1833, the sale was confirmed by the court and a conveyance directed to be made to the purchaser. And accordingly, on the 18th day of August 1834, the purchase money having been paid, a deed was executed by said Samuel T. Pulliam, commissioner as aforesaid, conveying the property to George M. Carrington, describing it in manner aforesaid, that is, “all the interest of every kind which the defendant James Winston at the date of the deed of trust of the 21st day of November 1820 (from said Janies Winston to Charles J. Macmurdo and George Winston), had in the sandy bar property in the city of Richmond, whether such interest be by lease, deed of trust or otherwise, together with a right on the part of the said George M. Carrington, of setting off against the rent that will accrue after his purchase under the lease, so much of the debt due by Coutts to Winston as will be equal to the rent that may so accrue.” The said deed was duly recorded. Under the foregoing chain of title, Carrington, his representatives and assigns, have ever since been in the possession, use and enjoyment of the property according to the terms of the sale and conveyance to him as aforesaid, claiming to be entitled so to hold, and to continue so to hold it, until the expiration of the term of 60 years created by the said lease of the 10th day of February 1816, to wit, until the 10th day of February 1876. Is the claim well founded? Several objections were made to the claim in the course of the argument, and especially by the counsel of Mayo’s representatives, which will now be noticed. The objection taken on account of the limited right supposed to be conferred by the leases, to wit, the mere right to get sand and make such improvements as related thereto, has already been sufficiently answered. Another objection is, that the leases have been long since forfeited by non-payment of rent, and indeed were so forfeited by James Winston long before the sale to Carrington. It is a sufficient answer to this objection to say that no such forfeiture has ever been enforced or attempted to be enforced, even if there had been any just ground for enforcing it. The deed expressly reserves a right of re-entry for non-payment of rent, and yet no such re-entry ever has been made or attempted to be made. In the lease to Mayo of the 12th day of November 1823, leasing to him the ferry and other property, including the sandy bar, for ten years at an annual rent of one thousand dollars, it was stated that the lease of the sandy bar to the Winstons had been forfeited, but it was provided that if Mayo should use all due diligence to obtain possession of the said sandy bar and fail therein, or if having obtained possession, he should be evicted therefrom, then and in either such case the said Mayo should be entitled to a deduction at the rate of $200 per annum from the said rentpf $1,000. Mayo, not having obtained such possession, received the benefit of the said deduction from his rent. His lease extended down to the time of Carrington’s purchase. If the forfeiture had been enforced during that period, it would have been for the benefit of Mayo, by the express terms of the lease to him. Not only had Mayo a right during his term to enforce the forfeiture, if any, but a right to do so was also reserved to Scott, trustee of Reuben Coutts, who joined in the lease, though the exercise of said right by him was to enure to the benefit of Mayo. Thus there was the strongest inducement at that time to ^enforce the forfeiture, if any, and yet no attempt was made to enforce it. The presumption is irresistible that there was no sich forfeiture. At all events there was no re-entry or statutory proceeding equivalent thereto, without which a forfeiture cannot be enforced. It is therefore now quite too late, and was too late in 1846 when Mayo’s suit was brought, to say there was a forfeiture. Another objection is, that the debts from Coutts to Winston was secured by the deed of trust to Coleman and Otis of the 8th of November 1819, only on condition that a sale was made under that deed to satisfy the three negotiable notes, called “the Micks debt,” for the security of which it was executed, and that those notes having been paid without making a sale under the deed, it therefore cannot operate as a security of the debt to Winston. The Circuit court was of opinion that this deed of trust was an unconditional security as well of the Winston debt as of the “Micks debt,” while the counsel for Carrington’s representatives seemed to think that it became an absolute security of the Winston debt only from the time of default in the payment of the negotiable notes, or one of them, upon which default a sale could be made at the instance of Winston, according to the terms 48of the deed. Much may be said to sustain the view of the Circuit court. The deed is not a mere power of sale. Nor is it a mortgage with condition to be void on the punctual payment of the notes, in which case the estate, upon such punctual payment, would be, ipso facto, revested in the mortgagor. But it is a deed of trust for the benefit only of James Winston, who is one of the parties to the deed. He is the endorser of the three negotiable notes, the holders of which are not named, probably because the notes had not been negotiated at the date of the deed. It recites that the grantor is desirous of securing the payment of those notes by the conveyance of property in trust for that purpose, and he therefore proceeds to make the conveyance. The debt to Winston is not mentioned in the recital of the deed, nor until direction is given for the disposition of the proceeds of sale, when provision is made for the payment of the debt to Winston out of the surplus, after satisfying the negotiable notes. An estate in fee in the trust subject being conveyed by the deed to the trustees in trust for the benefit, of Winston, a party to the deed, it may well be doubted whether a court of equity would compel or permit the trustees to release the property to the grantor without payment of the debt to Winston expressly provided for in the deed.' The trustees hold the legal title for the benefit of Winston. It is in effect his legal title,’ and the maxim that he who asks equity must do equity, might require the payment of that debt as a condition for affording equitable relief to the grantor. But it is unnecessary to decide that question, as the effect in this case is precisely the same if the said deed became an absolute security of the debt to Winston only from the time of default in the payment of the negotiable notes or any of them. We think it became such a security at least from that time, if it was not before. All the notes became due within 12 months after date of the deed, which was the 8th of November 1819, and all were protested for non-payment. In November 1820, and even before, Winston had a right to require the trustees to execute the trust by a sale of the subject and application of the proceeds according to the directions of the deed, which included the payment of the debt to him. His right to have this debt paid out of the trust subject could not be thereafter defeated by payment only of the Micks debt. There might have been some reason for affording the debtor an opportunity to defeat the deed as a security for the Winston debt, by .punctual payment of the negotiable notes ; but there would have been none in reserving to him the right of doing so at any time after default in such payment and before an actual sale under the deed. It would have been worth little or nothing as a security of that debt if it could have been thus defeated by the debtor at any time before an actual sale. A debtor in insolvent circumstances would be strongly tempted to defeat it, by a fraudulent combination with an unsecured creditor, or some other person. In this case, not only were the negotiable notes protested for ndn-payment, but the debtor remained in default for more than three years ; during all which time he was in insolvent circumstances, and he actually took the oath of insolvency. It was not until after the trustee in the deed, at the instance of Winston,.the endorser of the notes, had advertised a sale of the trust subject, or part of it, and the very day before the sale was to have been made, that the notes were paid by the debtor ; and then they were paid by some arrangement made by him with Mayo. But the deed of trust was not released. There was executed, at the time of payment of the notes, a very full release of them, and of the lien of the deed of trust so far as it secured them, but executed only by the holdders of the notes by their attorney. No release at all was executed by Winston, nor by the trustee in the deed. Why was not such a release executed, at least by the trustee, if the deed was then considered as satisfied? No such release has ever been executed, nor was ever required or claimed, so far as the record shows, until Mayo’s suit was instituted in 1846, 27 years after the date of the deed. We therefore think the deed continued to be a security of the Winston debt after, and notwithstanding, the payment of the protested negotiable notes. Another objection is, that Winston and his assigns had no right to set off so much of his debt as was necessary against the' annual rent of the sandy bar as it accrued, in payment and satisfaction of said rent. The sandy bar, as we have seen, was a part, and only a part, but what portion we do not know, of the trust subject created by the marriage settlement between Reuben and Jane Coutts, beforé referred to. At the time of the execution of the leases in 1815 and 1816 as aforesaid, it was bound for a proportional part, we know not how much, of the annuity of $500 secured to Jane Coutts for life by that settlement. Subject only to that charge, it belonged absolutely to Patrick Coutts, a son of Reuben and Jane. McCraw, the trustee, and Jane Coutts, the annuitant, joined Patrick Coutts in' the execution of the leases, and the rent was made payable to the trustee, for the purpose, no doubt, of •securing the payment of that portion of the annuity for which Patrick Coutts’s part of the trust subject was bound. In every other respect the rent belonged, as the property belonged, to Patrick Coutts, and at the death of Jane Coutts, which happened in 1831, the rent belonged, as the property belonged, absolutely to him free of any charge or trust whatever. During the existence of the trust the trustee might have required the rent to be paid to him in pursuance of the literal terms of the leases, for the purpose, but only for the purpose, aforesaid. That purpose being satisfied, the residue of the rent belonged to Patrick Coutts : and so much of his debt to Winston as was necessary to pay so much of the rent as thus belonged to Patrick Coutts might well have been set off against it as it accrued ; and a court of equity would I have enforced the right, especially as Patrick 49Coutts was insolvent. See Coutts v. Walker, 2 Leigh 268. After the death of Mrs. Coutts in 1831, which was several years before the sale to Carrington, when the whole rent belonged to Patrick Coutts or his assigns, there could be no doubt as to the right of set-off. But even before her death, and while the trust existed, the whole rent, by the permission of Jane Coutts and her trustee, ^practically enured to the benefit of Patrick Coutts, who received and applied it to his own use. There were many transactions between Patrick and Jane Coutts, and we do not know how their accounts stood in the end. Scott who was appointed trustee in McCraw’s place in 1823, and continued to act as such until 1829, proves that Mrs. Coutts’ annuity was paid during that period; and he had in his own hands the means of such payment, for in November 1823 he leased the ferry and other portions of the trust subject to Mayo for ten years at a rent of $800 per annum, which he received while he was trustee. Winston then might well have retained the rent which accrued, even during the life of Jane Coutts, as to every body at least but herself to the extent of her rights, and as to her with her consent, on account and in part payment of his debt. He did so retain it after 1820, without any objection or complaint so far as the record shows, and the transaction being thus so long since settled, it was too late in 1846, when Mayo filed his bill, to make the objection for the first time. We therefore think this objection cannot be sustained. Another objection is, that this supposed right of set-off or retainer of the annual rent on account of the debt to Winston, was incapable of being sold, and was improperly decreed to be sold in Pugh v. Winston ; that neither the parties to these suits who are now claiming against Carrington, nor those under whom they claim, were parties to that, or bound by the decree therein made ; and that therefore Carrington acquired no such right of set-off or retainer under the said decree, and the sale and conveyance made to him in pursuance thereof. By the deed of the 21st of November 1820, James Winston conveyed to Macmurdo and Winston the interest of every kind, by lease, deed of trust or otherwise, which he had in the sandy bar, “and all other property of every kind and description whatsoever, belonging or appertaining to the said James Winston, with all the privileges, rents, profits and advantages of every kind thereto belonging excepting only a certain bond and note not affecting the matter under consideration. In Pugh v. Winston this deed was set aside as to the creditors of Winston, and all the property thereby conveyed was subjected to the payment of his debts. It became the duty of the court by its decrees in that case, so to dispose of the trust subject as to realize the largest possible fund for the benefit of the creditors. All the rights of Winston in regard to the sandy bar, the debt of Coutts, and the right of setoff and retainer aforesaid as they existed at the date of the said deed, constituted a part of the trust subject so to be disposed of. The commissioner appointed to sell the real estate reported that he did not offer for sale the interest of Winston in the sandy bar, doubting whether it was intended by the decree that he should do so; that Mayo stated that Winston paid him no rent, on the ground that Coutts was indebted to him more than the amount of rent that would become due during the lease ; and that if the court should direct a sale of the sandy bar property, the sale thereof would no doubt be promoted by giving to the purchaser of the leasehold estate the same right of setting off against the rent, the debt due by Coutts to Winston that Winston then had. The court accordingly decreed a sale of “all the interest of every kind, which the said Winston at the date of the deed of trust before specified, had in the sandy bar property, whether such interest be by lease, deed of trust or otherwise, together with a right on the part of the purchaser of setting off against the rent that will accrue after such purchase under the lease, so much of the debt due by Coutts to Winston as will be equal to the rent that may so accrue.” And in strict conformity with this ^decree, a sale was made and a conveyance executed to Carrington, the purchaser at the sale, as has already been stated. That this part of the trust subject was thus disposed of to the best possible advantage, there can be no doubt. The price at which it was sold greatly exceeded what was expected by the commissioner and the counsel in the case. He was astonished at it, and supposed, from the great price at which the property was sold, that the competing bidders, Mayo and Carrington, knew toiore about the property than he did. He vv-ould not have thought the property sacrificed if it had brought only one-tenth of what it sold for. The court therefore did right in decreeing and confirming the sale in manner aforesaid. But even if the court had done wrong in that respect, Winston and his creditors, who were parties to the suit of Pugh v. Winston, alone could have complained of it, and they did not complain, but acquiesced in what was done, as well they might. Mayo, surely, has no right to complain, (supposing all the other objections we have been previously considering to have been rightly disposed of); for he had no interest in the question as to the manner of selling the trust subject. But besides, he impliedly acquiesced in the sale and gave it his sanction, by what he said to the commissioner before the sale, by his presence and conduct at it, and by his conduct afterwards. Once, twice or thrice prior to the sale, he requested the commissioner not to make it in his absence. He attended the sale, and was the highest bidder for the property next to Carrington—having bid within four dollars of the price of $9,245, at which it was sold to Carrington. He made no objection at or before the time of sale to the manner in which that sale was decreed to be made. Indeed, it would seem to have been at his suggestion that the sale was made in that manner. At all events, his statement to 50the commissioner, referred to in the latter’s report, was the occasion of so making the sale. He doubtless expected to become the purchaser at the sale, and to acquire a perfect title to the property in that way. But he was probably as much surprised as was the commissioner at the high price which was bid for it, and was thus deterred from becoming the purchaser. He set up no claim against the purchaser for rent or otherwise after the sale, until the institution of his suit in 1846, a period of thirteen years ; and then it was quite too late to make the objection, even if it could ever have been made. Then, Carrington became entitled by' the sale and conveyance made to him, as aforesaid, to all the interest described in the conveyance, as has been before mentioned. The leasehold interest of Winston in the sandy bar, the debt due by Coutts to Winston secured by deed of trust on the former’s interest in the sandy bar, and the right of set off against the rent as it accrued, of so much of the said debt as was necessary for the payment o'f the said rent, as set forth in the conveyance, thereby became the interest and property of George M. Carrington. He had a right, at his election, to continue to hold the property until the termination of the lease thereon, setting off so much of the said debt as was necessary for the payment of the rent as it accrued, or to enforce the execution of the deed of trust on the interest of Patrick Coutts in said property for the security of the said debt, provided the balance due thereon could be ascertained. But can that balance now be ascertained ; and if not, what then is the right of Carrington’s representatives ? We think that the balance cannot now be ascertained. There is no question in this cause about which there has been more controversy than this question, What was the amount of the debt due by Coutts to Winston, secured by the deed of the 8th of November 1819 to Coleman and Otis and conveyed by the deed of the 21st of November 1820 to Macmurdo and Winston? That matter might have been easily ascertained about the time of the date of the last mentioned deed or in a reasonable time thereafter. Probably it- might have been easily ■ascertained on, or in a reasonable time after, the 1st of December 1823, the date of the deed to Mayo. But no person took any step to have the account settled (although it was known to all concerned that the amount of the debt was Unascertained, and that Winston claimed and was exercising the right of paying his rent as it accrued by setting off against it so much of the said debt as was sufficient for the purpose), until the 26th of October 1829, when Edward Henshaw, who had just been appointed trustee to execute the trusts of the marriage settlement of September 10, 1799, brought a suit in the late Superior Court of Chancery holden in Richmond, against Winston and others, for an account of rents due by him for the sandy bar, &c. On the 25th of June 1830, a decree was made for the settlement of an account of said rents before a commissioner of the court. Accordingly, during the same year, commissioner Baker proceeded to settle the account, both parties appearing before him and furnishing materials for the settlement. In August 1835, he returned a report showing that on the 1st of December 1823, the date of the deed to Mayo, there was due by P. Coutts to Winston, after crediting all the 'rents which had accrued previously' to that day, a balance of $13,425 61, with interest on $11,804 69, part thereof, from that day until paid. There was an exception to the report by Samuel Taylor, Esq., counsel for the plaintiff, and a special statement was made by the commissioners in comformity with the views taken in the exceptions, according to which the balance due was only $45 91. In June 1841 the death of the plaintiff was suggested. In August 1843, on the "^motion of the defendants a scire facias was awarded to revive the suit against the plaintiff’s representatives, and it was after-wards revived accordingly. In March 1845, Carrington presented a petition in thecaseand prayed to be made a defendant. In March 1846 the petition was allowed to be filed, and was filed accordingly, and it was ordered that unless the plaintiff should, within 60 days, amend his bill, and make Carrington a defendant, it should stand dismissed with costs. The time for amending the bill was afterwards enlarged on the motion of the plaintiff; but he still failing to make the amendment, on the 23d of February 1848 the order of dismission was made absolute. And thus ended in 1848, this effort, commenced in 1829, to ascertain the true state of accounts between Winston and Coutts. The effort was no doubt abandoned, because while the precise balance due on account of the debt to Winston was not ascertained, it was yet ascertained to the satisfaction of the plaintiff and his able counsel that there was at least a sufficient balance due to absorb the rent which would accrue during the' term. The attempt made to obtain a settlement in that suit was made under much more favorable circumstances than now exist for that purpose. The suit was brought just nine years after the date of the deed to Macmurdo and Winston, and just six years after the date of the deed to Mayo, when the transactions were comparatively recent, when Winston and Mayo were living, and when Winston and the trustee Henshaw, who was represented by able counsel, attended before a skillful commissioner and furnished materials for settling the account. It was during the pendency of that suit, and probably after the commissioner had stated the account, though before he returned his report, to wit, on the 15th of August 1833, that the sale was made in Pugh v. Winston, at which Carrington became the purchaser as aforesaid. It is probable that both Mayo aud Carrington, who were bidders at that sale, were then fully aware of the proceedings which had taken place in Henshaw v. Winston, and believed that the balance due on the debt of Coutts to Winston would be more than sufficient to absorb all the rent that 51would accrue on the lease during the term. Under these circumstances the sale was made, and Carrington outbidding Mayo became the purchaser. If Carrington was not satisfied to retain the rents which were to accrue during the term in satisfaction of the debt to Winston, but intended to endeavor to ascertain the balance due on that debt, and enforce the execution of the deed of trust to Coleman and Otis for its payment, it was his duty immediately after his purchase to make an effort to have a settlement. The effort even then would doubtless have been abortive. But if it would have been successful, he has lost the benefit of it by his laches in not having made it; and the most he or his representatives can now claim on account of the said debt, is the right to retain the rents in satisfaction thereof as aforesaid. In July 18S3, Jane New Coutts, only child and heir at law of Patrick Coutts, filed her answer in the case of Mayo v. Carrington, and filed therewith as exhibit E, a paper stated to be in the handwriting of Edward Henshaw, and to have been found among papers which he in his lifetime had placed in the hands of his counsel, who had handed them over to the respondents’ counsel a few weeks before he prepared the said answer ; and also stated to be a copy of an original in'the handwriting of James Winston, and then in the possession of the plaintiff Mayo, who was required in the answer to produce the said original, and accordingly did produce it. This is the first appearance which that document, or any reference to it, makes in the record. It purports, and was after-wards proved to be, a proposition made by Winston to Samuel McCraw, P. Coutts and Mrs. Jane Coutts in regard to the debt and the items thereof due by Coutts to Winston at the time of making said proposition. If the debt stated in that proposition was all the debt due by Coutts to Winston secured by the said deed of trust to Coleman and Otis, then it was greatly less than what was claimed to be due by Winston, and shown to be due by Baker’s report in Henshaw’s suit as aforesaid. But the proposition is not dated, nor is there any date to any of the items therein contained. There was much contrariety of speculation in the argument as to the time when this proposition was made. Winston himself, who was twice examined as a witness, was unable to fix the time certainly, though he thought it was before the execution of a deed by him to Coutts, dated November 6, 1817. The Circuit court was of opinion by inference, from circumstances stated, thatthesaid proposition was made about the middle of the year 1821, and that it ascertained the true amount of the principal of the debt secured by the said deed of trust. The court decreed a settlement of the account according to that view. To the report of the commissioner made under that decree, Carrington’s administrator excepted, and his counsel maintained the exception by a forcible argument tending to show that the said proposition did not embrace the entire debt secured by said deed, and he concluded his argument by insisting that “the account settled by commissioner Baker in the suit of Henshaw v. Winston which was commenced when the transactions were comparatively recent, and the evidence in the possession of the parties and not lost,, as it now is, by the lapse of time, should be regarded and treated as the nearest approximation to justice between the parties now attainable.” Perhaps, if it were necessary or proper now to undertake to ascertain the balance due on account of the said debt, we would take the same view which was taken by the Circuit court. But we think that under the circumstances a correct account cannot now be settled, and it is therefore not proper to attempt such a settlement. It seems, however, that if one were made according to the view of the Circuit court, it would not' materially affect the result to which our views of the case will conduct us. Then it only remains on this branch of the case to state the result to which our views conduct us in regard to the right of Carrington’s representatives in and to the sandy bar. We think they are entitled to hold the property, with all the improvements thereon, for their own use until the expiration of the terms created by said leases, to wit, until the 10th day of February 1876, and no longer ; they paying all the taxes assessed on the said property and its improvements during that period, and retaining the annual rent, after deducting therefrom such portion of the annual taxes as may be properly chargeable to the landlord or owner of the reversion, on account and in payment of the said debts of Coutts to Winston, the benefit of which was included in the sale and conveyance to Carrington, as aforesaid. But the said Carrington’s representatives can receive the benefit of only so much of the said debt as may be sufficient to pay and satisfy all the rents until the end of the term as aforesaid (the amount due upon said debt being in our opinion amply sufficient for the purpose), and cannot recover any balance which may possibly be due on account of said debt, it being now impossible to ascertain such balance. In regard to the taxes which have accrued, or may accrue upon the property, only a small portion of them, if any, would be properly chargeable to the owner of the reversion. At the time of Carrington’s purchase, and for several years thereafter, the annual tax on the property was very trifling—only a few cents ; but afterwards it gradually increased, and became at length considerable, in consequence, chiefly if not entirely, of improvements put upon the property by Carrington, the increased rent produced by which he and his assigns have been receiving, and for the tax on which improvements he and they would at any rate be chargeable. The small portion of the tax for which the owner of the reversion may be chargeable ought to be deducted from the annual rent before said rent is retained and applied as aforesaid. It is the right and duty 52of a tenant to pay the taxes on the demised premises, and he may deduct the amount from the rent when the landlord is chargeable with them. In this case Carrington purchased the property “with a right of setting off against the rent,” &c.; that is, against so much of the rent as he would otherwise have to pay to the landlord, being the amount of the rent after deducting, the amount of the tax which might be chargeable to the landlord. To the extent of that tax, it was itself a set-off, and he required no other except as to the balance of the rent. Having considered and disposed of the claims of the representatives of George M. Carrington, and ascertained that they are entitled to hold the subject in controversy for their use until the 10th day of February 1875, we come next to enquire, to whom will it belong from and after that day—which brings us to the consideration of the claims of the three remaining conflicting claimants. IVe will have to consider them very much together, as the grounds on which they severally rest are closely connected with each other, and were attended, in some respects, with the same circumstances. These are, Secondly. The claim of the representatives of Edward C. Mayo. This claim is founded on a deed dated and duly recorded on the 1st of December 1823, from Patrick Coutts to said Mayo, conveying in fee simple the sandy bar, described as lot No. 341 in the plan of said city ; also the ferry called Coutts’s ferry, with the ferry lot on the south side of James river, known in the plan of the town of Manchester by the No. 312; also four other lots in said town known as numbers 306, 307, 308 and 309. The sandy bar was conveyed expressly, subject to the deed of trust of “the 8th day of November 1819, to Benjamin W. Coleman and Asa Otis, for the benefit of James Winston,” The deed contains a covenant of general warranty. The only consideration mentioned in the deed is, “the sum of one dollar.” But Mayo claimed in his bill that the real consideration of the deed was the sum of $3,906 96, the amount of the three negotiable notes secured by the said deed of trust, which amount was paid by his checks on the 5th of December 1823. The acquittance was given to Coutts as if he had paid the money, but has ever since been held by Mayo, who actually paid it. Under this deed Mayo claimed to be entitled to the sandy bar, subject only to the rights which still existed, if any, under the leases aforesaid, and instituted the suit of “Mayo v. Carrington,” on the 15th day of August 1846, for the purpose of asserting and enforcing his claim. And his representatives would be entitled under the said deed to the said property from and after the said 10th day of February 1876, but for the conflicting claims of the representatives of Jane and Patrick Coutts respectively. We must now therefore proceed to state those claims, and enquire whether, and to what extent, they or either of them are well founded, and will defeat or affect the claim of Mayo. Thirdly. The claim of the representative of Jane Coutts. She claimed that the deed of the 1st of December 1823, from Patrick Coutts to Mayo, was executed in consideration of the sum of ten thousand dollars, payable by installments, according to a contract in writing made between the parties about the time of the execution of said deed, the benefit of which contract was assigned to her by Patrick Coutts a few days after it was made, to wit, on the 12th of December 1823. And she brought the suit, the present style of which is “Coutts’ adm’r v. Mayo,” for the purpose of recovering her claim by enforcing the “vendor’s lien” upon the property for the payment of the purchase money. The period of the institution of her said suit is not certainly known, as the papers in it have been lost; but it was probably some time in the year 1826. She exhibited with her bill the contract aforesaid, which is in the form of a proposition by Mayo to. Patrick Coutts, accepted by the latter, and assigned by him to her, and is in the following words and figures: “I will pay P. C., his ex’or, adm’r, or assigns, for his -reversionary right in the sandy bar, ferry and ferry lot, and lots Nos. 306, 307, 308, and 309, the sum of $10,000, as follows, to wit, $500 on executing the deed, $500 in six months thereafter, and $1,000 per annum for 9 years thereafter. K. C. M.” Endorsed.—“I will take for the reversionary right the within sum of ten thousand dollars, as per statement within. Pat. Coutts. Dec’r 6th, 1823. Handed me by Samuel Carlisle. I assign the within proposal to Jane Coutts, of E. C. M. Pat. Coutts.” Dec’r 12th, 1823. The representative of Jane Coutts claims that the whole amount of the said sum of ten thousand dollars, with interest, yet remains due and unpaid. But before we say any thing more about this claim, we will state and consider the only remaining one, which is, Fourthly. The claim of the representatives of Patrick Coutts, who are his only child and heir at law, Jane New Coutts, and his widow Sophia Coutts, he having died intestate in 1829. They claim that the deed from P. Coutts to E- C. Mayo, of the 23d of December 1823, is fraudulent and void ; that it was executed without any consideration, or for a consideration grossly inadequate, at a time when P. Coutts was greatly embarrassed, and known to be so by the said Mayo ; that if the said Mayo did, as he pretended, pay the said sum of $3,906 66 for the property, yet that was a price grossly inadequate, and so known to be by said Mayo at the time ; and that the utmost which the said Mayo or his representatives can claim, under his said deed, is to be reimbursed the money which he paid, with interest, after accounting for any rent due by him on his lease of the 12th of November 1823 aforesaid. This claim was asserted, for the first time, in the answer of Jane New Coutts, sworn to on 24th March 531851, (she not having, as she says, attained the age of 21 years until December 1850,) but not filed until July 2d, 1853, in the suit of “Mayo v. Carrington.” It was also asserted in a bill filed by her in March 1854, which was the commencement of the suit, the present style of which is “Coutts v. Mayo,” as aforesaid. While we think that the views of the learned counsel who argued before us in support of this claim were very strongly presented, we are yet of opinion that according to the authorities, it cannot be said that the deed of the 1st of December 1823 aforesaid, is void for inadequacy of consideration; and that, whether the consideration was as represented by Mayo, or as claimed by the representative of Jane Coutts as aforesaid. There is no evidence whatever of any actual fraud in obtaining the deed. There was no confidential relation existing between the parties. Coutts was not under the power of Mayo., They dealt at arm’s length, so far as the record shows. True, Coutts was in very embarrassed circumstances, and had taken the oath of insolvency. But that circumstance, even in connection with mere inadequacy of price, has never been held sufficient to avoid a deed. Inadequacy of price, to have that effect by itself, must be so great as to shock the moral sense. It is upon the ground of fraud—actual fraud—that the deed is avoided in such cases; and the evidence must be sufficient to prove the fraud. Inadequacy of price is always the badge of fraud. But to be in itself sufficient evidence of fraud, it must of necessity be very great. In this case it was said the sale was of a reversionary or expectant interest, and that in such cases the purchaser must make good the bargain, by proving that the consideration was adequate. And the later English authorities on this subject are relied on. But the case of Cribbins v. Markwood, 13 Graft. 495. has settled the law on this subject in this State. It was there held that the English doctrine in relation to the sale of expectant interests, so far as it relates to vested interests, is not law in this State. Here the sale was not of a mere expectancy, but of a vested, through a reversionary interest. The authorities on this subject, English and American, are collected in 1 Heading Cases in Equity 428, and seq. marg., being the leading case of Chesterfield v. Jansen, and the cases collected in the notes. It would be difficult at this late day to ascertain what would have been an adequate price for the property conveyed by the deed at the time of its date. But it cannot be said that the price given, or agreed to be given, was so grossly inadequate as to be in itself sufficient evidence of fraud to make the deed void. There is greater force, however, in the argument of the 'x'counsel for Jane New Coutts, that if the payment of the sum of $3,906 96 in discharge of the “Micks’ debt,” was the only consideration for the execution of the deed as alleged by Mayo in his bill, then the said deed must have been intended, and ought only to operate, as a security for the repayment of that sum. Indeed it would be difficult, if not impossible, for Mayo’s representatives, under all circumstances of the case, to escape that result, if it should be held that he did contract to purchase the property on the terms mentioned in the proposition aforesaid. With these remarks, the claim of the representatives of Patrick Coutts may be dismissed from further consideration, and we will now recur to the claim of the representative of Jane Coutts, who is the only remaining competitor with the representative of Mayo. To the claim of the representative of Jane Coutts several objections were taken in argument by the counsel of the representatives of Mayo, which we will now proceed to notice. 1st. It is objected that the subject of controversy in her suit is different from the subject of controversy in Mayo v. Carrington : the two suits have no just connection, and they ought not to have been heard together. The suits were not consolidated, but only heard together. The object of Mayo’s suit was to have his right to the sandy bar, under the said deed of the 1st of December 1823, 'and the state of facts set out in his bill, declared and established; to have the deed from Patrick Coutts to Bouldin and Roper for the benefit of Jane Coutts, dated on the 28th of Eebruary 1821, and conveying the sandy bar and other property, set aside on the ground of fraud ; to obtain a conveyance of the title to sandy bar from Otis, surviving trustee in the deed from Patrick Coutts to Coleman and Otis of the 8th of November 1819; and other specific relief, and for general relief. The object of Jane Coutts’ suit was, to set up the contract aforesaid between Patrick Coutts and Mayo for the sale and purchase of the sandy bar ; to assert her claim for the purchase money as assignee of the said Patrick Coutts; and to establish and enforce the vendors’ lien upon the said property or interest of Mayo therein, under the said deed of the 1st of December 1823, for the payment of the said purchase money and interest. We think the subjects of controversy in the two suits were connected, and that they were properly heard together. 2dly. It is objected that all the papers in her suit have been destroyed, most of them long since ; and that when the decree appealed from was pronounced, there was no record upon which a decree could be made in that suit, or upon the subject of controversy therein. It seems singularly to have happened, that the papers in that suit have twice been lost or destroyed, so that when the said decree was pronounced, there was not a single paper in the record of the three suits which belonged particularly to Jane Coutts’s suit. There is in the record an official copy of only one of the papers which so belonged to that suit; though that paper was certainly a very important one, being the original contract under which she claimed, and which has already been set out in this opinion. We were at first inclined to think that the difficulty of making a decree upon the subject of contro54versy in that suit, arising from the destruction of papers, was insuperable ; but on further consideration we think otherwise. The original bill in Jane Coutts’ suit seems to have been filed about the 6th of October 1826, that being the date of an item in Robert G. Scott’s account as trustee for Jane Coutts charging a fee in that suit. She died in 1831. She. had several successive adm’rs, and in 1857, the papers in her suit having been lost, Allen, her adm’r de bonis non, pursuant to the statute in such case provided, filed an amended and supplemental bill to have the benefit of the said suit, and asking that the same might be proceeded in to a final decree against the ex’or and heirs at law, or devisees, of Mayo; and filed with the said bill an affidavit of the loss of said original papers. Shortly thereafter, and in the same year, Allen, adm’r as aforesaid, filed a further answer in the suit of Mayo v. Carrington, referring to the fact of his having filed the said bill, exhibiting a copy thereof as part of the answer (though no such copy is now in the record), and setting up the same claim which was asserted in the said bill as matter of defence in the said answer, and praying that the two suits might be heard together. On the 16th of July 1858, the said two suits,- and the suit of Jane New Coutts, were accordirgly heard together, and a decree was made therein. The decree recites that the suit of Jane Coutts’s adm’r came “on to be heard on the statement of proceedings filed with the supplemental and amended bill of Joseph Allen, adm’r as aforesaid, and the said bill of the said Allen, the answer of the defendant James Winston to the original bill in the said cause,-and the answer of”, the executor, and legatees, and devisees, of said Mayo, to the said supplemental and amended bill, replications to said answers, upon the bi,ll taken for confessed as to the other defendants, “and upon the depositions and exhibits filed; ” and among other things it was decreed, “that it be referred to a commissioner of the court to enquire, what were the true terms of the purchase by the said Edward C. Mayo from Patrick Coutts of the property conveyed by the said Coutts to the said Mayo by his deed of the 1st of December 1823, and when and in what manner the said Mayo has complied with the terms of his said purchase.” Commissioner Cary executed this order of reference upon notice to all the parties, and in the presence of their counsel, who argued the case before him ; and upon full consideration he was of opinion, and accordingly reported to the court, “that the true terms of the purchase aforesaid were that Mayo was to pay Coutts the sum of $10,-000; $500 in cash, $500 in six months, and the balance in installments of $1,000 per annum for nine years thereafter, and that Mayo, in part compliance with the terms of sale, advanced or paid the sum of $3,906 96 as of the 5th of December 1823, for which he should be credited.” To this report both parties, that is, the representative of Jane Coutts and the representatives of E. C. Mayo, by counsel excepted, setting out fully the grounds of exception. On the 18th of February 1860, the three suits were again heard together, and another decree was made therein. This decree recites that the causes came on to be again heard upon the papers formerly read, upon the report of commissioner Cary and the exceptions thereto, “and also upon such of the original papers of the suit instituted by Jane Coutts in her lifetime against the administrator of Patrick Coutts, E. C. Mayo and others, as have been found since the former hearing.” And the report and exceptions were recommitted to the commissioner, who was directed to re-examine the said report in reference to the matters excepted to, and especially in reference to the enquiry aforesaid as to what were the true terms of the purchase by E. C. Mayo from Patrick Coutts. On the 26th of November 1861, commissioner Evans was substituted for commissioner Cary to execute the last mentioned decree. Commissioner Evans promptly commenced that duty, but soon had to suspend it, inconsequence of the disturbed condition of the country, until the end of the war, when he resumed and completed it, and returned his report, dated September 2, 1867. In this report he says : “No additional-evidence in regard to the terms of the purchase by Mayo from Pat. Coutts, or in regard to the manner the said Mayo complied with - the terms of said purchase, has been produced before me ; and while the'conclusion to which I have come is not entirely satisfactor3r to my own mind, after a most thorough examination of all the papers in those causes, including the various reports of commissioners, the exceptions thereto and the arguments of counsel upon said exceptions, the best opi lion to which I have arrived is, that the true terms of the purchase by the said E. C. Mayo from P. Coutts of the property conveyed by said Coutts to said Mayo by the deed of December 1, 1823, were that Mayo was to pay Coutts $10,000,” &c. as stated in. the report of commissioner Cary. And he also agreed with that commissioner in opinion, that Mayo should be credited on account of said purchase money with $3,906 96 as of the 5th of December 1823. To this report exceptions were filed by the parties by counsel, which state and argue fully their respective grounds of objection to the report. On the 26th of February 1868, the three suits were again heard together, and the decree was pronounced from which this appeal was taken. This decree recites that the causes came on to be further heard together, “upon such of the papers formerly read as have been preserved from the destruction of the fire of the 3d of April 1865, and upon the report of commissioner” Evans, and the exceptions thereto, and documents returned therewith. The court was of opinion that the true consideration for the conveyance from Patrick Coutts to Edward C. Mayo of the 1st of December 1823, was the sum of $10,000, payable as aforesaid ; and that the sum of $3,906 96 shown to have been paid by the said Mayo, on the 5th of December 1823, ought to have been regarded as having been paid by him 55in part discharge of said sum of $10,000 ; and that the residue of the said purchase money, with interest, after applying the said credit, is due to the x'personal representative of Jane Coutts by virtue of the-assignment from Patrick Coutts to her which was filed as an exhibit in the suit instituted by her for the recovery thereof. And accordingly, the commissioner was directed to state an account showing what amount of purchase money and interest was due according to the principles aforesaid. The foregoing is a statement of the material proceedings which have occurred in the case on this subject since the filing of the supplemental and amended bill by the personal representative of Jane Coutts as aforesaid ; and it is made thus 'full as being the best means of showing whether there was a sufficient foundation in the record for pronouncing a decree on the subject of controversy in that suit when the decree appealed from was rendered. The only difficulty in the question arises from the fact, that not only were the original papers in the suit lost as aforesaid, but all the papers which were before the court when the decree of the 16th of July 1858 was rendered, and such of the original papers of the suit as were afterwards found and were also before the court when the decree of the 18th of February 1860 was rendered, have since also been lost or destroyed, but when or how, does not appear, unless they were destroyed “by the fire of the 3rd of April 1865,” referred to in the decree of the 26th of February 1868. At all events, none of them were before the court when that decree was rendered, which recites, as before stated, that the said three causes then came on to be heard upon such of the papers formerly read as had been preserved from the destruction of the said fire. There can be little doubt but that there were sufficient pleadings and proofs in the said suit before the court when the decree of the 16th of July 1858 was rendered, to warrant the court in making that decree. An inquiry was then directed to be made by a commissioner of the court, who accordingly made the enquiry in the presence and upon the argument of the counsel of the parties, and returned to the court a full report, to which all the parties excepted, setting out fully all the objections they then had to the report. This report and these exceptions, together with all the pleadings and proofs aforesaid, were before the court when the decree of the 18th of February 1860 was rendered, and also some of the original papers of the suit, which had been found since the former hearing. And they certainly warranted the court in making that decree ; whereby the said report, with the exceptions, was recommitted to the commissioner, with directions to re-examine the report in reference to the matters excepted to, and especially in reference to the enquiry aforesaid. Commissioner Evans, who executed the last mentioned decree, and who on the 26th of November 1861 was substituted for that purpose to the place of commissioner Cary, who had executed the former decree» promptly proceeded in the same year, to wit, on the'14th of December 1861, to the performance of his duties, when all the papers in the three causes were laid before him, and the parties attended by counsel. The said counsel also attended several other days, till the disturbed condition of the country suspended further proceedings till the end of the war, when he resumed his duties and made his report as aforesaid, “after a most thorough examination of all the papers in these causes, including the various reports of commissioners, the exceptions thereto, and the arguments of counsel upon said exceptions.” It is probablé that none of the papers which were before the court when the decrees of the 16th of July 1858, and the 18th of February 1860, were rendered, had been lost when commissioner Evans commenced the performance of his duties, but that all were before him and were fully examined by him. He says in his report that “all the papers’ ’ were before him and were thoroughly examined by him, and does not speak of the loss of any paper, much less of any inconvenience or difficulty which he felt in conse-' quence of such loss. The loss had occurred when the decree of the 26th of February 1868, being the decree appealed from, was rendered. But there were then before the court, the decrees of the 16th of July 1858, and the 18th of February 1860, made before the said loss and with all the papers before the court; also the reports of commissioner Cary and commissioner Evans, who thoroughly examined all the papers ; also the exceptions of the parties bv counsel to these reports ; all these proceedings thus before the court when the decree appealed from was rendered, were parts of the record of the suit of James Coutts’s representative, and were the most material, if not the only material parts of that record. If not a paper had been lost, it is not probable that any other part of the record would have been used or referred to on the last hearing of the causes except what was actually before the court. At least it is not probable that there would have been any necessity for such use or reference. All that was material was no doubt embodied in the decrees, reports and exceptions aforesaid. We are therefore of opinion, that notwithstanding the loss of papers as aforesaid, there was enough left in the record of the suit of Coutts’s adm’r v. Mayo, when the decree appealed from was rendered, to enable the court then to make a decree upon the subject of controversy therein. But if there was, 3dly. It is objected that there was no such contract between Mayo and Patrick Coutts as is contended for in the suit of Coutts’s adm’r v. Mayo. The sandy bar with other property was, as we have seen, conveyed by P. Coutts to E. C. Mayo, .by deed 'dated and recorded December 1,1823, for the nominal consideration of one dollar. Mayo claimed in his bill, filed in 1846, that the true and only consideration was the sum of $3,906 96, paid by his check on the 5th of December 561823 in discharge of the “Micks’ debts” due by P. Coutts and secured by the deed of trust to Coleman and Otis. On the other hand Jane Coutts claimed in her bill, filed probably in 1826. that the true .consideration was the sum of $10,000 payable by installments as mentioned in a written proposition made by E. C. Mayo to P. Coutts and accepted by the latter, to whom it was handed on the 6th of December 1823 by Samuel Carlisle, a witness to the deed from Coutts to Mayo, and assigned on the 12th of December 1823 by the said Patrick to the said Jane Coutts. These are the conflicting pretensions of these two claimants, and the question is, Which of them is well founded ? It is a well ascertained fact in the cause that the said proposition was made by E. C. Mayo to P. Coutts and was accepted by the latter on or about the 1st of December 1823. Mayo admitted in his answer to a bill filed by Diddep, a creditor of Coutts, that the initial signature, E. C. M., to the proposition, was his signature; though he further stated in the said answer that he had no recollection of such a proposal, and denied that he made it as the consideration of the deed. He also asserted that no acceptance of it was ever signified to him so as to make it obligatory. This admission, at least establishes, beyond all cavil, the fact, that he made the proposition. And we are not obliged, in order to give it that effect, to concede the truth of the statements made by Mayo as aforesaid in connection with that admission. The whole answer is evidence to be sure, but not conclusive, and we may. believe one part and disbelieve another. We cannot but believe him when he says, in effect, that he made the próposition; in other words' that the signature thereto is his. This is an all-important fact, if it be not in itself conclusive of the present enquiry. It is incredible that P. Coutts would have sold the property for $3906 96, to be paid to a creditor in discharge of an incumbrance upon it, when at the same time the vendee offered to pay him $10,000 for the same property ! The conclusion therefore, is irresistible, that the sum of $10,000 and not the sum of $3906 96, was the true consideration of the said conveyance. The only plausible alternative to this conclusion seems to be that the conveyance was intended to operate only as a security for the repayment of the said sum of $3906 96, with interest thereon. What inducement had P. Coutts to sell the property in consideration only of the payment of one of the incumbrances upon it ? What was he to gain by that operation ? He was utterly insolvent, and had the year before taken the oath of insolvency. His property was incumbered by deeds of trust and judgments far beyond its value. He was in want of money, and was willing to resort to almost any shift to get it. We can see the strongest motive for his selling his interest for $10,000, to be paid to his mother, who had a deed of trust on the property, while we can see none whatever in his selling his interest in consideration of the payment of one of the incumbrances. It is said that the deed of trust to Coleman and Otis, under which the sandy bar was advertised for sale, included other property, viz : a vessel and four slaves, and that P. Coutts wished to retain possession of this latter property. But there is no evidence, and it is extremely improbable, that any of that property remained in his possession at that time—four years after the date of the deed. His necessities and the pressure of his creditors had doubtless long before deprived him of it. If it had remained in his possession it would doubtless have been advertised for sale under the deed of trust instead of the uncertain, and at' that time unsaleable interest in the sandy bar. The slaves, at least, would have been much more saleable. There are, certainly apparent .difficulties in the way of this conclusion which cannot be well explained at this remote period from the date of the transactions; and conflicting theories have been conjectured on the subject. Why was not the consideration expressed in the deed if it was $10,000, is one of the questions that have been asked. Because it was not desired to make public the amount for which the interest was sold, is a plausible answer. P. Coutts was heavily involved in debt, and his creditors were on the alert. After Jane Coutts filed her bill in 1826 to' enforce the execution of the contract, Diddep, a judgment creditor of Patrick Coutts, filed his bill, in which he sought to recover his judgment out of the purchase money. But the samé question may be put in reference to the sum of $3906 96 if that were the true consideration. Why was not that consideration expressed in the deed ? There could have been no reason for suppressing that as being paid to creditors secured by deed of trust; the publication of the fact of payment could give him no trouble. Why was the contract left to stand upon the mere proposition and acceptance if it was a concluded contract, is another question that has been asked. Why were not notes or bonds executed for the different installments of the purchase money ? Why was not the cash payment, which was to have been made on the execution of the deed, in fact made? These are plausible questions, but they present no real difficulty. P. Coutts was not a man of business, and conducted his affairs very loosely. He seems to have regarded the written proposition of Mayo accepted by himself and handed to him by Carlisle, a subscribing witness to the deed, as binding an obligation on Mayo as he could possibly have ; and he 'therefore, in a few days, ^assigned it to his mother, who had a deed of trust on the property, then no doubt supposing that the matter was all arranged, and that nothing remained tobe done but to receive the money as it fell due. The proposition, it will be observed, is very formal and specific, and must have been drawn by a master hand. Though it deals in contractions and initials, it yet contains all the terms of a perfect contract. The acceptance, too, is very formally drawn, and could hardly have been drawn by P. Coutts. Mayo was a man of business, and one would suppose must have known that 57it would have been more regular and business like to have executed bonds or notes for the purchase money. But he had no special interest in that matter, having a recorded deed for the property. That the cash payment of the purchase money was not made, may be accounted for by the fact that the deed to Bouldin and Roper was an incumbrance on the property, which was also otherwise incumbered, and Mayo did not wish to make a payment without being secured. He was extremely anxious to get the title and have control of the property, especially the ferry, but not so anxious to run any risk in the payment of the purchase money. If the sum of $3906 96 paid by him was a part payment of the purchase money, then the cash payment was in fact made, and several of the other installments were paid in advance. It is said that Mayo had no notice of the acceptance of his proposition by P. Coutts, and that without such notice there could have been no contract between them. The legal proposition is true, but is the fact true on which it is founded ? We think not. Can it be possible that Mayo was not informed of the acceptance of his proposition, either by P. Coutts, or by Carlisle, who handed it to P. Coutts ? Would Mayo have been content to remain in ignorance upon so important a question ? He sent the proposition to P. Coutts, it was never returned to him ; he received the full benefit of the contract,' and neither P. Coutts nor his mother, to whom he assigned it, has ever set up any claim to purchase money under any other contract. If, therefore, the contract was not perfected merely because Mayo was not informed of the acceptance of his proposition, it would follow that he made no purchase, and that his deed can operate only as a security of the money paid him in discharge of the three notes aforesaid, with interest. We therefore think there was a valid contract between the parties, such as the proposition and acceptance aforesaid import. But if there was. 4thly. It is objected, that there is no proof in the record of the assignment of the contract by Patrick to Jane Coutts. We think there is sufficient proof of such assignment in the deposition of R. G. Scott; and at all events, it has never been denied by P. Coutts or his representative, who has been a party to all the suits in which the subject has been involved. But supposing the assignment to be proved, 5thly. It is objected, that such assignment was a discharge of the equitable lien of the vendor for the purchase money, which, therefore, cannot be set up by the assignee. Upon the question, whether the vendor’s implied equitable lien for purchase money would pass by an assignment of the debt, the authorities are ■ conflicting. Some of the cases decide that an assignment of the debt, even without recourse, carries with it this lien, like any other lien; but the majority of the cases, if not the weight of authority, seems to be decidedly the other way; at least unless it appears that the assignor intended to assign the lien as well as the debt; in which case it seems that both would pass to the assignee, even though the assignment were without recourse to the assignor. When, however, the assignment is not without recourse, the weight of ^authority is that the lien continues in full force notwithstanding the assignment, and passes thereby to the assignee. Without citing the numerous cases on this subject, it is sufficient to refer to the case of Mackreth v. Symmons, 1 Leading Cases in Equity 235 marg., and the notes of the English and American editors, where all the cases down to a very late period are collected. In this case the assignment was not without recourse, and there can be no doubt but that the assignor intended to pass to the assignee all the lien which he had for the security of the debt. We therefore think that the assignment in this case did not discharge the equitable lien of the vendor, and that the same may be set up by the assignee, if indeed there be any occasion for setting it up. At the time of the sale to Mayo, the property was incumbered by a deed of trust from P. Coutts to Bouldin and Roper for the benefit of Jane Coutts and and Samuel McCraw, dated on the 28th of Eebruary 1821; and duly recorded. The first object of this deed was, to secure the payment of a large debt specially mentioned, for which Jane Coutts had become bound for P. Coutts. The next object was to secure the payment of all sums of money for which she might ultimately become liable in consequence of any engagement theretofore made by her as security of P. Coutts, by becoming his bail or otherwise. And after providing fully for her indemnity, the deed next provides for the payment of any balance which might be found due to McCraw on his account as trustee in the marriage settlement aforesaid. McCraw was dead at the time of the sale to Mayo, and it does not appear that he or his representatives ever set up any claim under the deed. It was then an incumbrance exclusively or nearly so, for the benefit of J. Coutts, and must have been so regarded by Mayo, who no doubt had actual notice of it. It is not to be presumed that he would have made so heavy a purchase, of a man so much embarrassed, without referring to the records to see what liens were upon his property. He does not pretend in his bill, filed in 1846, that he had not such notice, although he impeaches that deed as having been executed to defraud creditors, and therefore void; and although he expressly denies notice of the fact that P. Coutts had taken the oath of insolvency in ol822. There can be no doubt but that Mayo did not intend to pay the purchase money which he proposed to pay as aforesaid, without being protected against that deed. It is probable, therefore, that it was well understood between him and P. Coutts, that the contract for the purchase money should be assigned to Jane Coutts, and that the assignment which was actually made to her on the 12th of December 1823, just six days after the proposition was handed by Carlisle to P. Coutts, was made with the knowledge of Mayo. In this view of the case, Jane Coutts 58was in effect the vendor to Mayo, and at all events was entitled to the vendor's lien for the purchase money, if indeed she had not a still higher and firmer lien by virtue of the deed of trust to Bouldin and Roper. There is no evidence before the court to impeach that deed, and if there were, Mayo, cannot thereby be released from his obligation to pay the purchase money according to his contract. The deed to him has never been set aside or avoided in whole or in part at the suit of any creditor of P. Coutts ; nor has he ever been compelled to pay to any such creditor one cent of the purchase money. But supposing that the vendor’s lien was not discharged by the assignment, 6thly. It is objected, that such a lien, or indeed any equitable lien or claim, cannot be set up and enforced by a voluntary assignee, and that Jane Coutts is such an assignee. In the first place we think that in this case she cannot be regarded as a voluntary assignee. She had many pecuniary transactions with P. Coutts and became bound as his security in many cases. She had a deed of trust on his property for her indemnity. In this state of things the property or a portion of it included in her deed is sold to Mayo, and the contract for the purchase money assigned to her, no doubt with the' knowledge of Mayo, and for the purpose of obtaining her assent to the sale. But suppose the assignment to. have been voluntary, is it true that she cannot enforce the vendor’s lien, or any equitable claim on-that account? We think it is not. An executory or imperfect gift will not be enforced either at law or in equity unless a trust be created, which a court of equity will always enforce, though that court will never aid in creating a voluntary trust. But if the gift be perfect and executed, the title passes from the donor to the donee, whether the property be legal or equitable, in possession or in action. This subject was fully considered by this court in Henry v. Graves, 16 Gratt. 244, where many authorities are referred to, and especially the more recent cases. After, reviewing them the court arrived at the following conclusion : “It may b'e stated as the result of all the authorities ; that a voluntary gift valid in law or equity may be made of any property, real or personal, legal or equitable, in possession, reversion 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 what4 is necessary to the completion of a gift, depends on the nature of the subject and the circumstances 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.” Id. 254. The case of Meek v. Kettle well, 1 Hare’s R. 464, 23 Eng. Ch. R., decided by Vice Chancellor Wigran, in 1842, affirmed by the Lord Chancellor, and relied on by the learned counsel for the appellants in this case, is fully stated in the opinion of this court in Henry v. Graves, supra : as also are the subsequent cases of Kehewich v. Manning, 12 Eng. L. & Eq. R. 120, decided in 1852, and Voylcs v. Hughes, 23 Id. 271, decided in 1853-4 ; in which subsequent cases that of Meek v. Kettlewell is very much shaken if not overruled, and is left to stand, if at all, only on the ground that in that case the interest conveyed was a mere expectancy. The language of Knight Bruce, Lord Justice, in Kehewich v. Manning, is very strong. In a very recent case, Richardson v. Richardson, 3 Law Rep. Eq. Cases 686, decided by Wood, V. C. in 1867, the doctrine of the case of Kehewich. v. Manning was followed and fully approved. The good sense of that decision, says the V. C., “lies in this, that the real distinction should be made between an agreement to do Something when called upon, something distinctly expressed to be future in the instrument, and an instrument which affects to pass everything independently of the legal estate. It was held in Kehewich v. Manning that such an instrument operates as an out and out assignment, disposing of the whole of the assignor’s equitable interest, and that such a declaration of trust is as good a form as any that can. be devised. The expression used by the Lords Justices is this : A declaration of trust is not confined to any express form of words, but, may be indicated by the character of the instrument.” According to these authorities it seems perfectly clear that even if Jane Coutts was a purely voluntary assignee of the contract between Mayo and P. Coutts, she had a right to bring a suit in equity thereon in her own name. The assignment to her was perfect, nothing remained to be done by P. Coutts to give it validity, and her suit was not against him but against Mayo the debtor. But, 7thly. It is objected, that her claim is barred by laches, lapse of time and the statute of limitations. It is not barred by the statute of limitations. It seems that the suit was' brought in 1826, though it was said in the argument that it was brought in 1829 ; but there appears to be nothing in the record to support that statement. In either case, it was brought before all the installments had become payable, and in the former case it was brought within five years after the first installment had become payable. If the sum of $3,906 96 cts. paid by Mayo in discharge of the three negotiable notes aforesaid be a proper credit on account of the purchase money, then several of the earlier installments were paid in advance, and little or nothing was due when the suit was brought. So that, regarding the suit as analogous to an action at law for the money, the statute would not be a bar to any part of the claim. But the suit cannot be so regarded. It is a suit for the specific execution of a contract, or to enforce an equitable lien, and the statute does not apply to it. Then is it barred by laches and lapse of time? It was brought in due time—indeed, very promptly. But it is objected that there has been great laches 59in its prosecution, and that equity requires diligence, not only in bringing, but in prosecuting suits. This is certainly true, as a general rule, and there is no more favored rule of a court of chancery than that which exacts diligence of its suitors. But there are many extenuating circumstances in this case in regard to this suitor. She had a suit of great difficulty to prosecute, and had to encounter not only the strenuous resistance of her alleged debtor, but the conflicting claims of judgment creditors of Patrick Coutts; at least one of whom, Diddep, brought a suit in chancery to set aside the deed of trust to Bouldin and Roper for her benefit, or to recover the amount of his judgment out of the purchase money due to her by Mayo, upon the ground that the said deed was fraudulent and void as to creditors. She died in 1831, a few years only after her suit was brought. She has been represented by several successive administrators, but it does not appear what steps were taken by them to carry on the suit. The unaccountable loss of papers, which has twice happened in the suit, has left us no trace of its prosecution from the period of her death until 1857, when an amended and supplemental bill was filed in the case by Joseph Allen her adm’r de bonis non with the will annexed. Her prior adm’rs in succession may, for aught we know, have prosecuted the suit with reasonable diligence, under the circumstances, though it would seem from the great lapse of time that they probably did not. Mayo was the principal defendant to that suit, and no doubt answered the bill. Diddep’s suit involved’the same controversy, and Mayo answered the bill in that suit. Possibly it was considered sufficient to prosecute one only of these suits, and let the other await the result. And as Diddep claimed both against Mayo and Jane Coutts, it may have been thought best to fight the battle in that suit. We do not know what has become of Diddep’s suit, which seems to have disappeared from the docket. Mrs. Coutts’ suit still remains, notwithstanding the accidents which have occurred by death and loss of papers as aforesaid. Mayo might at any time have had a rule to speed in that case, if he desired to speed it, but it does not appear that he ever obtained such a rule. At all events he never had the case dismissed, although he long survived Jane Coutts, and did not die until a recent period. In his bill, filed in 1846, he strangely ignores her suit, while he assaults, totis viribus, the deed of trust to Bouldin and Roper for her benefit— a deed which he might easily have gotten out of his way by paying the money due her, according to his contract. But this objection of laches comes with an ill grace from Mayo, who slept so long upon his own rights. Perhaps no party in these causes has been guilty of greater laches than Mayo, and it would be difficult for him to maintain his suit against such an objection without the aid which he derives from the claim of Jane Coutts. Under all the circumstances of the case we think the objection to her suit on the ground of laches and lapse of time ought not to be sustained. And now there is but one remaining question to be considered, and that is raised by Jane Coutts’ representative, who contends that the Circuit court erred in allowing credit to Mayo for the sum of $3906 96, paid by him on the 5th of December 1823, in discharge of the three negotiable notes secured by the deed of trust to Coleman and Otis , and insists that a decree should have been rendered for the whole amount of the ten thousand dollars with interest. Upon this question we have had great difficulty, and there is certainly great force in the argument against the propriety of allowing the credit. But our conclusion on the subject after the best consideration we have been able to give it is, that the credit ought to be allowed. We cannot account for the delay in claiming any installments of the purchase money, even the $500 which were to be paid on the execution of the deed, except upon the hypothesis that the said sum of $3606 96 was an advance payment on account of the purchase money. That well accounts for the delay of several years which occurred before the institution of the suit of Jane Coutts. There is a difficulty, on the other hand, in this; that the deed to Mayo conveys the property subject to the deed of trust to Coleman and Otis, and it is plausibly insisted that the conveyance was subject to both debts secured by the deed ; that is, the three negotiable notes called the Mick’s debt and the debt to Winston. But a sufficient answ-er to this seems to be that the Mick’s debt must be considered as having been paid eo instant! wfit'h the execution of the deed to Mayo. The first step contemplated to be taken in the arrangement between Patrick Coutts and Mayo was, the payment of that debt, which was necessary to stop the sale. The execution of the deed and the delivery of the check to Coutts by Mayo were probably contemporaneous acts, or intended to be so. It is not probable therefore that the property would have b een conveyed subject to a debt which was discharged at the very instant of the conveyance. It is more probable that in executing the conveyance that debt was regarded as paid, and the debt to Winston was the only debt referred to in making the conveyance subject to the deed of trust to Coleman and Otis. The Mick’s debt, and the deed of trust so far as it secured that debt, were released by the attorney of the creditor on the 5th of December, when the debt was paid by Mayo’s check. All these acts were no doubt regarded as contemporaneous, and the parties could hardly have intended to recognize the continued existence of that debt. In regard to the four lots in Manchester, Nos. 306, 307, 308, and 309, for which credit is claimed by Mayo’s representatives, upon the ground that they had been sold under a deed of trust from P. Coutts to Coleman and Woolfolk before they were included in the deed to Mayo of the 1st of December 1823, it is probable that they were of little or no value, as they were sold only at fibre dollars each at the said sale, and there is no evidence of their value in the record. No further notice, therefore, will be taken of them. If the sale by P. Coutts to Mayo was with the un60derstanding between them, as seems-to have been the case, that the contract for the purchase money, subject only to the credit aforesaid, should'be assigned to Jane Coutts, to prevent any claim by her against the property under the deed of trust to Bouldin and Roper; then Mayo would have no claim against her, or the balance of the purchase money assigned to her,- on account of any defect in the title to the said lots, but his only remedy would be against P. Coutts on the covenant of warranty. We therefore concur in opinion with commissioners Cary and Evans and the Circuit court, that the true consideration of the said deed to Mayo of the 1st of December 1823, was the said sum of ten thousand dollars, with interest on the several installments aforesaid as they became due as aforesaid, and that the said sum of $390696 should be applied as a credit thereon as of the 5th day of December 1823. We are of opinion that the amount of said purchase money and interest, subject only to the said credit, is still due and payable to the present representative of Jane Coutts, who was assignee of Patrick Coutts as aforesaid, and there is a lien therefor on the reversionary interest of said Mayo in said property ; and there ought to be a decree for an account to ascertain the balance due of said purchase money after applying said credit, and for the payment of the same with interest by the personal representative of said Mayo, and if not paid in a reasonable time thereafter, then there ought to be a decree for the sale of the said reversionary interest, or so much thereof as may be necessary for the payment of said balance and interest. The result is, that so much of the decrees in the said three suits as is in conflict with the foregoing opinion, must be reversed, and the residue affirmed, and the causes remanded to the Circuit court for further proceedings therein'in conformity with the said opinion. The other judges concurred in the opinion of Moncure, P. Reversed in part and affirmed in part.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481713/	MONCURE, P., delivered the opinion of the court: The court is of opinion, that under the will of Caleb Stone, which was recorded in 1810, his daughter Sally, who died witho'ut ever having married or had any children, was entitled only to a life estate in the land and slave arid future increase of the slave loaned to her by the 10th and 11th clauses of the will. The 10th clause must be read thus: “10th. I lend to my daughter Sally, 140 acres of land to be possessed by her during her natural life and the natural life or widowerhood of any husband she may have; and at her death and the death or after marriage of her husband, then to be equally divided among her children, if she has any, and if she has none then to be divided among all my children.” By the 11th clause the slave Phoebe and her future increase are loaned to the said Sally, on the same terms and conditions with the land. If Sally Stone had left a husband her estate would have been enlarged and extended to the death or after marriage of her husband, when it would have determined. In other words she was entitled under the will to a vested estate for her life, and to a contingent estate in remainder at and from the period of her death until the death or after marriage of any husband she might have who should survive her. But as she had no husband, the contingency never happened and her estate therefore ended at her death. The language of the will is very plain, and to a mind unaccustomed to legal technicalities and difficulties, it would seem to be strange that there could be any doubt about the meaning of the testator. The difficulty arises from the word “children,” which is twice used in the 10th clause. And the question is asked, could the testator have intended to give the property over only to children, to the exclusion of the descendants of any deceased child or children? Erom the improbability of such an intention it is argued that he must have used the word “children” as a word of limitation and not of purchase, and that the 10th clause must be construed as if it had been a gift to Sally Stone and the heirs of her body; which would have created an estate tail in the realty, which the statute would have converted into an estate in fee simple, and an absolute estate in the personalty. Now it is very probable that if the testator had been asked when he gave instructions for his will, whether he intended by the use of the word “children” to exclude the descendants which might be living of any child that might be dead, supposing the will to have that effect, he would have answered “No, ” and would have directed such words to be used as would plainly express his intention. But whatever may be our conjecture on that subject, we cannot give effect to any supposed intention which is not expressed by the words of the will. The most we could say in such a case is, Voluit, sed non dixit. We sit here not to make wills for testators but to expound them. And we must give effect to every will as it is written by the testator, provided it be legal, however strange and capricious it may seem to have been. Here is an express loan to his daughter Sally during her natural life. This is plain language, and standing by itself it cannot be misunderstood. What is there in the will to change its natural meaning? Only the word “children,” which twice follows it in the same clause. Now this word children is just as plain as the loan for life previously given. Its meaning is, issue in the first degree, and it can generally have no other meaning unless there be other words in the will to give it such other meaning, except the rule in Wild’s case applies, which is founded on peculiar reasons. A testator may use words in any sense he pleases, however different that sense may be from their natural meaning; and therefore he may use the word “children” to embrace grandchildren, or other descendants, or issue indefinitely; but then it must appear from his will, at least generally, that such was his intention. We say generally because there may be .cases in which the word “children” in a will would be construed to mean “grandchildren,” although there might be nothing in the will to show such a meaning; as when the gift is-to children, and the proof de hors the will, is that the testator had not, and in the nature of things could not have, children, but had grandchildren ; then the grandchildren would take under the will ut res magis valeat quam pereat; and so in the like cases. But this is not such a case. There is nothing in the will nor de hors the will in this case, to change the natural and ordinary meaning of the words used, and we must therefore give effect to them according to that meaning. We therefore think that the word children in this will is a word of purchase and not of limitation, whether the devise over to children be void for remoteness or not; from which it follows that the estate ex125pressly limited to the testator’s daughter Sally during her natural life, &c., in the former part of the 10th clause, is not enlarged into an estate in tail in the land, nor into an absolute estate in the slave and her increase, by the word “children” in the latter part of the clause. It is sufficient and only proper for us to decide in this case that Sally Stone had only a life estate in the property aforesaid, without deciding who were entitled to it at her death. We therefore do not intend to decide the latter question. The solution of that question belongs to the court in the suits which it appears are depending for the division of the land and slaves, or distribution of the proceeds of the sale thereof, among the persons entitled thereto. To those suits the appellants can be made parties, if they claim to be entitled to participate in such division or distribution. The view we have taken of this case renders it unnecessary for us to examine the many authorities referred to by the learned counsel who argued it. But wishing the profession to have the benefit of their arguments, which displayed extraordinary legal research, we request the reporter to publish full notes of them in his report of this case. It follows, from what we have said, that the decree *of the Circuit court must be affirmed; but without prejudice to any interest which the said Sally Stone, or her representatives, may have in the said property, or any part thereof, otherwise than under the loan to her as aforesaid. The decree was as follows: That Sally Stone was entitled only to an estate for her life in the land and slave Phoebe and her increase under the loan made to her by the tenth and eleventh clauses of the will of her father Caleb Stone, and that there is no error in the said decree. Therefore, without expressing any opinion on the question as to what persons were entitled to the said property at her death, and without prejudice to any interest which she or her representatives may have in the said property or any part thereof otherwise than under the loan to her as aforesaid, or to any claim which the said representatives or the appellants may assert to any such interest by becoming parties to the suit instituted and still pending, as appears from the bill, for the sale of the said property and distribution of the proceeds, or otherwise, it is decreed and ordered that the said decree be affirmed, and that the appellants do pay unto the appellees thirty dollars damages, and also their costs by them about their defence in this behalf expended. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481714/	RIVRS, J. The first enquiry in this case, is into the character of the negotiable note, which was purchased by the appellant of William A. Wyatt in March 1863. If that note is to be taken according to the understanding of the parties as payable in Confederate notes, then it is subject to be scaled under the act of March 3, 1866. If, however, it expresses a specie debt, it can only be discharged in that constitutional currency, 128dollar for dollar, and admits of no reduction unless by the operation of the legal tender law of congress. In this latter case, the judgment must be for the dollars expressed on its face. There can be no intermediate ground; and I am free to say that if in this investigation I should come to the conclusion that the note in question, belongs to this latter class of demands, I would sanction no compromise of so clear a right, but concede a recovery to the full nominal amount. It is, ^therefore noticeable that the holder of this note while resisting its payment in Confederate notes as of the date of its maturity, acknowledges in his answer that either one of two settlements would be acceptable to him; namely, the value of the Confederate currency at the date of the note, or the value of the property, as represented by the note. The bill sets out a Confederate contract, solvable in Confederate notes. The averment is plain and distinct that “the notes were to be paid in ‘Confederate currency’ and none other, when they should mature.” This is denied by the appellant in his answer sub modo only. He limits himself to a restricted disclaimer of “any understanding or agreement on his part to receive payment thereof at maturitj’- in Confederate treasury notes, however much depreciated they might be.” He nowhere denies his obligation generally to receive this currency; but leaves it to be inferred that if it had not depreciated, and for a stronger reason, if it had appreciated, he would not have made the objection. His claim, therefore, rests not upon the fact that the note was not truly payable in Confederate currency, but rather upon the grievous depreciation of that currency at the maturity of the note. When we take, in connection with this qualified denial, the fact already mentioned, that the answer advances no other claim, nor asserts any other right, but “to receive either what the money represented by the note was worth in gold at the time of the purchase, or the value of the property as represented by the note, ’ ’ we cannot escape the conclusion that there is nothing in the answer of the appellant that denies the character given to this note by the bill, or disputes the receivability of Confederate notes. His pretension is simply, that he should not bear the loss of this depreciation, but should receive either the worth of this currency at the execution of the note, or else, the proportionate value of the real estate represented by this particular instalment of the purchase money therefor. The answer of the other defendant in this cause, Wm. A. Wyatt, is stronger upon this point. After setting out with the same restricted denial of an agreement “to receive payment in Confederate currency, however depreciated it might be,” this respondent goes further and asserts “the right to claim legal currency in discharge thereof. ’ ’ But the respondent is confronted with his own deposition in this cause, wherein he acknowledges that he had previously given another answer, which contained this distinct declaration that “the sale was ma'de wholly with reference to Confederate currency. The cash payment was in Confederate currency, and this respondent expected the credit payments to be made in like currency, or such other as might be in circulation at the maturity of the notes.” This testimony discloses the respondent’s ignorance of the legal force of the answer filed, and sufficiently proves the understanding for Confederate currenc3r. Thus stands the case upon the pleadings. But when we look into the circumstances attending the contract, and recall the historical fact that at that time Confederate money was the only circulation, we cannot doubt that all the parties contemplated a payment in that currency. The price of the land is proven by Cauthorn to have been a Confederate price; the cash pa3rment was Confederate, and the second instalment was received without objection in the same currency at a time when it had sunk to the ratio of six and a half for one. As between the original parties to this contract—Wyatt and Crouch—there can be no difficulty in declaring these notes to be pa3’pable in Confederate notes. Did the note purchased by Dohman lose this character, or wear any other aspect in its transfer to him? Though negotiable, and for that cause protected in the hands of a holder for value against all equities between the original parties to it, it was not thereby transmuted into a specie debt. There is no pretence for alleging that it was ever purchased or held as such; on the contrary, I have already endeavored to show from Dohman’s answer that he set up no such claim, but actually submits to a scale of it as of its date or its value, as shown by the share of land for which it purported to have been given. The consideration which he gave for it consisted of Confederate notes, which from the time of its execution had so fallen as to require then four and a half for one. He, therefore, knew its character when he negotiated it. Upon this point this case is decidedly stronger than that of Dearing’s adm’x v. Rucker, 18 Gratt. 426. There, the consideration of the bond was in part an antecedent specie debt; yet inasmuch as a check by which at one time the demand was liquidated, would have been payable in Confederate currency, and there was a novation of the debt by a loan, the court, while divided on the main question, concurred in treating the bond, which like the negotiable note here, merely called for dollars and cents, as clearly payable in Confederate currency. The president of the court, who dissented from the rule laid down in that case for the application of the scale, nevertheless agreed with the court as to the character of the bond in this particular, and regarded it, notwithstanding the absence of all reference to Confederate notes, as payable in them. The bond bore date the 14th June 1862, and referring to it, the president took this broad ground, that “Confederate notes being the principal, if not the only currency of the 129country during the period aforesaid, it is fair to presume, in the absence of evidence to the contrary, that any contract made during that period was intended to be performed in that kind of currency, or was made with reference thereto as a standard of value.” I fully concur in the reasonableness of this presumption ordinarily, and applying it to the case at bar, I cannot conceive how any one can doubt that this note, whether in the hands of the original payee, or a purchaser for value, is to be taken and treated as pajrable in Confederate notes, if current at its maturity. An effort was made in the argument to liken this case to that of Omohundro v. Crump, 18 Graft. 703, where the bond was held to be payable in the legal money of the country. But the transactions are of different dates, and are deemed, under the circumstances, to have reference to different currencies. The bond of Omohundro bore date on the 8th day of November 1861, before Confederate paper money had filled the channels of circulation. The table of value of Confederate currency, admitted by consent in this case, as evidence, commences with January 1862, showing conclusively that before that time this currency had either not so entered into circulation or been depreciated as to admit of such quotations in the market. Besides the act of March 3, 1866, for scaling Confederate debts, applied to no contracts entered into before the 1st of January 1862. The cases, therefore, are wholly dissimilar, and governed by different principles. Upon precedent, then, as well as reason, I think, we have satisfactorily ascertained that the note in question was payable at its maturity in Confederate paper money, if not then extinct as a circulating medium. It is material at this point to enquire whether there was any default on the part of the maker when it fell due. He is in a court of equity seeking a release of his land from the lien of this note; and if he is culpable or guilty of any default in its payment, he might be required to account for the value of the land at the time of the purchase under the- authority of White v. Atkinson, 2 Wash. 94. The reasoning of all the judges in that case shows that if it had been a specie contract, performance of it would have been decreed upon the pa3'ment of the purchase money, as agreed, with interest; but in view of the fact- that it was made on the fluctuating basis of a depreciating currency, it was held that the purchaser under such circumstances should be required by the court of equity, whose aid he was seeking, to do equity, which was deemed to be, in that case, to pay the value of the land at the time of the contract, instead of the value of the money agreed upon. There the purchaser did not punctually pay, nor offer to pay, the purchase money according to his undertaking. Here, however, the facts are quite different. Bet us first look into the bill and the appellant’s answer, and see how far the facts are conceded in the pleadings. The bill alleges that the complainant applied to Bohman in July 1863 to pay off and discharge the said note before its maturity; ‘ ‘but the said Bohman declined" to receive the money in advance on the ground that he had no use for the money, and would rather wait until it became due.” The fact of such application is not material, except as displaying the animus of the parties, because there was no sort of obligation on the holder to receive payment till due. How is this allegation, however, met in the answer? Certainly not by a denial; but rather by an admission of ah interview with the complainant about that time, when he was “asked if he did not want the money for the note, or some words to that effect, to which respondent replied, in substance, that the note was not due, and he did not want any money;” the respondent restricts his denial to the phrase, ‘he would rather wait until it became due ;’ so that the averment of the bill of the fact of this application is substantially uncontradicted b31' the answer. But the material averment of the bill is, that “when the note was approaching its maturity, the complainant, being sick at the time, sent to the said Bohman, by his daughter, the full amount of said note in Confederate States treasury notes, and she, with the money in her hand, tendered him the sum due by said note,” which was refused on “the ground that the currency had depreciated since he bought the note.” The version given by the answer is somewhat variant; the respondent states that “about the 19th of July 1864 the complainant came with a lady, whom this respondent understood to be his wife, to the residence of this respondent and offered to pay the amount of the note of $1,624 in Confederate treasury notes. This respondent refused to receive them, because such notes were 'then depreciated enormousl}' below the value of gold. No money was produced, and no tender actually made to this respondent, but if it had been, he would have refused it for the reason above stated.” This fact then stands confessed by the pleadings, namely, that about the maturity of the note the holder was waited upon by the maker or his. agent, and was offered the amount of the note in the currency, for which as we have seen it called. But whether this offer was so made as to constitute any actual tender, is the only point in issue? This I -think is determined by the testimon3r of Mrs. "Walker, who made it. Her statement is, that when she called upon Mr. Bohman to pay this note, she informed him of her business, and “proposed to pay the money and get the note; that she had $1800 with her, held it in her hand, and showed it to him, and offered to pay him the amount of the note, but he declined it, saying he would not receive Confederate money, that he had paid gold and silver for the no'fe, and would not receive anything else. ’ ’ It will be conceded that the legal incidents of a valid tender are the actual 130production and proffer of the precise sum due, so as to relieve the creditor of anything on his part to be done to reap the full fruition of his contract. But these may be dispensed with, either expressly or impliedly, by the creditor. The doctrine is a reasonable one. It is accommodated to the circumstances of each case, so as to give to the respective parties the natural and intended benefits of their acts. Thus, if it be objected in this case that, according to the pretensions of Toll-man, there was no actual production of the money, we may well exclaim what was the necessity of it, when his refusal was in no wise predicated of its non-production, but was such as to waive by the strongest implication the necessity of producing it; and again, if the objection be that the tender was for more than the whole debt, the question recurs, whether the creditor by not objecting for the want of change, but for a different and collateral cause, did not thereby abandon this objection. Thus, in the case of Bevans v. Rees, 5 Mees. & Welsh. R. 305, Tord Abinger said: ‘ ‘I am not disposed to lay down general propositions, unless where it is necessary to the decision of the case; but I am prepared to say, that if the creditor knows the amount due to him, and is offered a larger sum, and without any objection on the. ground of want of change, makes quite a collateral objection,.that will be a good tender.” I conclude, therefore, that the tender in this case was a good one, and that if, instead of retaining the sum, the debtor had taken instant measures to set it aside, or bring it into court for the creditor, it would have availed to stop interest. At any rate, the debtor has made no default, and in coming into equity for relief, need not be subjected to terms, and is well entitled to ask to stand upon the literal terms of his agreement, even upon the ruling in White v. Atkinson. But the complainant in this case specially invokes the relief authorized by the 4th section of the act of'March 3, 1866. This section contemplates and provides for two classes of “bona fide and actual tenders in Confederate States treasury notes;” one of tenders at the maturity of the claim, and the other of tenders after the maturity of the claim. In both a court of equity is authorized to grant relief, subject, however, to two conditions: first, that it shall not appear “that the creditor was justified in refusing to accept the amount tendered in consequence of a substantial and decided depreciation of said currency after the time at which payment ought to have been made, and before the time at which the tender was made; and secondly, that it shall not otherwise appear to be inequitable to grant such relief.” The first of these conditions is pregnant of meaning and instruction upon the application of the scale in this case, It bases an exception upon the fact of a signal depreciation between the time of maturity and the time of tender, leading irresistibly to the conclusion, that payment or tender of payment is regular, legitimate and unobjectionable at the former period. It virtually appoints the maturity of the claim as the time for ascertaining the value of the Confederate notes, or “other equal or better currency” to be tendered or received in discharge of it. We should, therefore, violate the plain meaning of this provision under which we are called upon in this case to act, if we were to yield to the appellant’s demand to scale his claim as of the date of its execution rather than of its maturity. But it is supposed and urged that this 4th section should be controlled or modified in .this respect so as to be reconciled to the 2nd section of the same act, which, it is said, applies the scale at the date of the contract. But this assumption is incorrect. There is no such restriction in this section. It existed in the act of 1781 before the adoption of the constitution of the U. S. A new duty grew out of that constitution and was.devolved upon the assembly of 1866; and that was, so to frame their laws for the adjustment of Confederate liabilities as not to violate the constitutional provision against laws impairing the obligation of contracts. In obedience to this requirement the assembly of 1866 departed from the precedent of 1781', and instead of confining the scale to the time of the contract, as did the act of 1781, took care to provide the alternative of “such other time as may to the court seem right in the particular case,” so that the court might at all times, further and'effectuate the understanding of the parties, and avoid any violation of their contract. It has been supposed that the fifth section of the act of 1781 assimilated that act to the present one so far as the designation of the time to apply the scale, is concerned; but it is manifestly a larger discretion given the court “to award such judgment as to them shall appear just and equitable,” without pointing specially as this latter act does, to the period of scaling. Upon this question of legislative intent, some light may be obtained by reverting to an antecedent law upon the subject of the currency. I refer to the act of October 14, 1863, ordaining the currency in which contracts on or after the 20th of October 1863, shall be deemed to be payable. It designates it as “the currency, which, at the time the contract becomes payable, shall be receivable in payments to the State, &c. ” It is, therefore, another and instructive instance, in which the legislature adopts “the time the contract becomes payable” as the proper juncture to fix the liabilities of the parties. But after. all, the function of courts is restricted to the proper interpretation and due execution of contracts. They have no authority to modify or alter the contracts that may be submitted to them for construction or execution. When the true understanding of the parties, has been arrived at it becomes in itself a law to the court, and demands a scrupulous fulfilment. The legislature, also, is incompetent to control or vary contracts, and any law having that 131effect, is simply void. Our enquiry in this case must, therefore, be directed to ascertain in what way the contract between the maker and holder of this note, is to be executed under existing circumstances, in conformity with its true obligation, and with legal principles. They were both dealing in an unstable and precarious currency. It was inconvertible, and its payment, indefinite in point of time, was contingent upon the ratification of a treaty of peace between the Confederate States and the United States. We have only to revive our recollections by consulting the table that has been given in evidence, to renew our appalling sense of its rapid and progressive depreciation. We can more sensibly feel and test this by working out results by this table. Suppose hohman, in the choice offered him, had taken the first note of $1,537, he would only have given for it in gold $341, and would have realized at its maturity only $160, showing a loss upon the operation in the course of five months of $181. So, when he chose the second note, he paid for it in real value only about $383 11. Such experience banished credit from business and pecuniary transactions during the Confederacy, and made cash, a necessity in all dealings. Wherever credit was given, unless it was long enough to survive this currency, it necessarily entailed loss and often most grievous loss. Hence when the outcry of hardship is raised against the courts in the execution of these Confederate contracts, it is not due to their judgments, but rather to the evils inseparable from such a deplorable state of the currency. It is not in the power or within the province of courts to avert or redress ills proceeding from such a revolutionary state of society, trade and currency. If the appellant’s pretension is sustained, and this note is to be scaled as of its date, then he makes a profit of near $700, receiving $1,082 for what cost him in real value, but $383, at the time of his purchase; his claim, therefore, is two-fold; to escape what he denounces through his counsel here as an atrocious wrong, and reap a profit of a kind he could never have contemplated. But if he may thus obtain a profit without the scope and intent of his bargain, may not his adversary enjoy a gain which results to him as the fruit of his bargain? In any event, there must be a loss on one side and a gain on the other, and it is the province of' the court to fix it according to the understanding of the parties and the legal effect of their dealings. Hazard and speculation, after a certain period, entered of necessity into all dealings with this paper iftoney. I will not say that there might not have been some folks of small commerce in life or business, who regarded it and dealt with it as with stable and real values; but they were the exceptions from which no rule for judicial guidance can be safely or properly drawn. It is not, therefore, a matter of presumption to impute risk to Confederate credits at a marked stage of this depreciation; it was necessarily in the contemplation of the parties, at least, by intendment of law, if, in some rare cases, it were not so in fact. How else shall we account for the signal and notorious fact, that credit, from having universally prevailed, gave way during the Confederacy to cash in all business transactions? It was plainly because credit in such a currency, was unsafe and impracticable. When we come, therefore, after the expiration of this currency, to pronounce upon debts payable therein at future dates, we must necessarily determine who, according to the fair intent of the parties and the principles of law,—creditor or debtor,—is to bear the loss incident to this depreciating medium. It will be readily conceded that it would be competent for the parties to provide for such contingency in their agreement; but in the absence of such provision we must look into the nature of the contract and the rights of the parties to discern where this liability properly rests. In case of a deferred payment, it is but a reasonable inference that the debtor, in thus stipulating for credit, had a motive for it, and expected a benefit from it. We may not know or be able to conjecture the motive or the benefit; but he is not the less entitled to gratify the one or enjoy the other. Nay, more; if he has no special design in the indulgence, for which he bargains, and it be the mere result of a vague or visionary caprice, he acquires all the incidental advantages that attend upon this delay, whether contemplated or not, and they cannot be wrested from him without a violation of his contract. When one engages to pay, at a future day, the notes of a depreciated and depreciating currency, who can rightfully undertake to say that the obligor did not count, as he reasonably might have done, upon a greater facility of payment from the greater cheapness of the paper, and the consequent advance of prices at that day? Or how can he be denied such advantages if they really occur, although he may not have reckoned or foreseen them? Whatever may be his bargain, he is entitled to its legitimate fruits. So, on the other hand, if the creditor gets, on the agreed day, the commodity for which he contracted, though fallen in value since the date of the contract, he suffers no wrong, though it prove a loss, for the simple and obvious reason that he gets all he bargained for; and in case of default, his measure of recovery is the value of the commodity at the time of delivery, and not at the date of the contract. This reasoning is strikingly exemplified by the facts of this case. The appellee, Crouch, got two years’ time on his purchase. This indulgence was, of course, a material and valuable ingredient in his contract. The medium of payment became so cheapened, that at the end of one year he sought to discharge both of the deferred instalments, and failing at that time to 132retire his last note, he was prompt and particular in offering to meet it at maturity. Can it be denied that he faithfully did all he agreed to do? The only justification attempted *for the rejection of this tender, was the great depreciation of the paper; but there seems to me to be no mode of sustaining this plea, except by interpolating in the contract a condition that does not pertain to it; namely, to be payable in Confederate notes, provided they had not fallen in value since the contract. It is needless to say that the whole spirit of the law, which inflexibly upholds the sanctity of contracts, would revolt against such a change of the agreement, and such a dangerous precedent as it would be of the deliberate infraction of the terms of the parties. The obligation of the creditor to assume the risk of depreciation in such a case, inheres, ex justitia, in his agreement to receive at a future day depreciating paper money. He was bound to contemplate the probability of a further decline, and if he did not guard against it it was his fault, and he must take the consequences. That this contingency was in the mind of the appellant, is probable from his selection of the last note. He, doubtless, thought that safest, as it had the greater chance of surviving the war, and of being realized in a better or improved currency. Should he thus bargain for this benefit, and now refuse to bear the adverse chance which has befallen him? It is never a hardship to be required to abide one’s bargain; there may be an individual loss in it; but it becomes a solemn pledge to the public of the cost at which the law protects the interest of trade, the honor of pecuniar}' dealings, and the sanctity of contracts. This appeal was, doubtless, allowed to give us an opportunity of reviewing the case of Dearing’s adm’x v. Rucker, in which there was a division of opinion. I have accordingly reconsidered that case in its bearing upon this, with a full and honest purpose to change my opinion, if, upon a patient review of it, I became aware of its error. I have not, therefore, gone over the grounds or authorities that were so well taken and ^expounded by my brother Joynes in that case, but have only pursued with brevity the course of reasoning that led me to concur in his opinion, and now conducts me to a reaffirmance of it. o For these reasons, I am of opinion that there is no error in the decree of the court below, which may not be amended here. As already intimated, interest should be allowed on the sum decreed, from the date of the tender, the 19th of July 1864.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481715/	JOYNES, J. I concur with Judge Rives in thinking— 1. That the evidence proves, that “according to the true understanding and agreement of the parties,” the note in this case was payable in Confederate treasury notes, and that this evidence was admissible against Eohman, the endorsee. 2. That the evidence proves that Crouch made a sufficient tender to Eohman of the Confederate notes payable on said note, within the meaning of the fourth section of the act of March 3, 1866. 3. That Crouch not being therefore in default, the court has no authority to impose any equitable conditions upon him beyond the payment of the sum due on the note. 4. That the tender was not sufficient to stop interest, because- it does not appear that the money was kept in readiness to be paid whenever it might be called for. Gyles v. Hall, 2 P. Wms. p. 378; Shumaker v. Nichols, 6 Gratt. 592; Gammon v. Stone, 1 Ves. sen. R. 339. And, therefore, 5. That the decree should be amended so as to make the interest run from the maturity of the note, and that so amended it should be affirmed. If there had been no tender, I think the court should have imposed equitable terms on the plaintiff. White v. Atkinson, 2 Wash. 94, establishes that when a contract for the purchase of land is made in a currency *which is already greatly depreciated, and which is constantly undergoing still further depreciation, specific execution will not be decreed in favor of a vendee who is in default, upon his merely paying the purchase money and interest according to his contract. The same principle applies equally in a bill to redeem an incumbrance. I incline to think, however, that all that Eohman could have insisted on would have been that Crouch should have been required to pay him the value of the Confederate money he paid Wyatt for the note—that would have saved Eohman from loss; while to give him the full value of the land, which was not his, would be to give him more than he parted with; and thus to exceed the demands of equity. It is true that, as a general rule, when a mortgagee assigns the mortgage for a consideration which is less than the sum due upon the mortgage, the assignee is entitled to the benefit of his bargain, and the mortgagor will not be allowed to redeem upon paying to the assignee what the mortgage cost him; he must pay all that is due on it. Phillips v. Vaughan, 1 Vern. R. 336; Williams v. Springfield, ib. 476. That rule is obviously just, where the only condition of redemption is the payment of what the mortgagor owes under his contract. But I doubt whether that rule can justly be applied to an exceptional case where, as in White v. Atkinson, the court requires more than the payment of the agreed purchase money. It requires more, in order to do justice to the defendant, and justice is done to him when he is paid for all he ever parted with, and is thus protected against loss.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481716/	MONCURE, P-, dissented. Decree amended so as to give interest from the maturity of the note, and affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481717/	JOYNRS, J. This is an action of assumpsit by Snead and Smith against the Richmond, Rredericksburg & Potomac Railroad Company, to recover for certain work and labor performed by the slaves of the plaintiffs. The declaration contains only the common counts. And the principal question is, whether the money claimed by the plaintiffs is due from the railroad company or from Rdwin Robinson, who was president of the company at the time the work was done. The jury found a verdict for the plaintiffs; and the court overruled a motion of the defendants for a new trial. The bill of exceptions certifies the facts found on the trial. Such was the obvious intention of the certificate, and I perceive no inconsistency between any of the “facts” certified. It is not enough, however, that a bill should purport, by its terms, to certify “the facts proved,” if such is really not the substance of what is certified. Vaiden’s case, 12 Gratt. 717. The plaintiffs gave in evidence the following paper, the body and signature of which were proved to be in the handwriting of Robinson, the president of the company, and which was given by him to one of the plaintiffs upon a settlement for the work, which is the ground of the present claim : “Richmond, May 31, 1856. $484. Due Joseph H. Snead and Benjamin R. Smith four hundred and eighty-four dollars, in full, of labor performed on cottage lot of the railroad company, the same payable on demand, with interest from date. Rd. Robinson.” It does not distinctly appear, from the terms of this paper, whether it was designed to acknowledge a debt due by Robinson, who signed the paper in his own name, or by the company, whose officer and agent he was, and upon whose lot the work is stated to have been done. The language is ambiguous and consistent with either view, and parol evidence of the consideration, and of the origin of the paper, is admitted to explain its meaning in this respect. Early v. Wilkinson, 9 Gratt. 68, 1 Am. Lead. Cas. 606, 3d ed., notes to Rathbone v. Budling; Nash v. Towne, 5 Wall. U. S. R. 689. That would be so, even if the action were founded on the paper itself. It is so a fortiori where the action, as in this case, is founded on the original consideration. It was proved on the part of the plaintiffs, among other things, that they removed to Ashland, where the cottage lot is located, in the fall of 1854; that Robinson, who was the president of the railroad company, applied to the plaintiff Snead to hire the hands of the plaintiffs, and agreed to give him $1 25 a day for each of them; that during the months of November and December 1854, the hands worked under the direction of one Thompson, who was a section master upon the railroad of the defendants; that in January 1855, the hands of the plaintiff were turned over to the control and management of the plaintiff Smith, who made all the contracts for work done by them and 134kept the accounts; that they were seen at work under the direction of Thompson, the section master, sometimes upon the railroad of the defendants and sometimes upon the cottage lot, the property of defendants; that some of the first work done by the hands of the plaintiffs were paid for by the defendants; and that between 1852 and 1856 one Taylor was employed by said Robinson to do work upon the cottage lot of the defendants, for which work he was paid by defendants. It was further proved by the plaintiffs, that in the spring of 1856, the plaintiff Smith being about to remove from Ashland to the county of Buenburg, the plaintiff Snead advised him to go down to Richmond and settle the accounts with the defendants; that Smith went down accordingly, and when he returned told Snead that he had taken a note with interest, but that in consequence of the action of Thompson he had been compelled to lose about $100. These, are all the material facts proved by the plaintiffs, except one or two, to be mentioned hereafter. The defendants gave in evidence certain proceedings of the board of directors of the railroad company, and other documents connected therewith, from which the following facts appear: In the year 1836, the railroad company purchased, for the purpose of procuring timber and wood for the use of the railroad, a tract of over 400 acres of land, on which Ashland is now situated. A cottage was subsequently built upon this land, but the date of its erection does not appear, though it seems to have been erected prior to November 1852. In November 1852 the board of directors passed a resolution authorizing the president to convey a title upon'payment of the purchase money, to such persons as had purchased or might purchase any portion of the lands of the company in the neighborhood of +he cottage. This building was erected at the expense of the railroad company. In July 1857 the board passed a resolution reciting that the president had, under the authority conferred by the resolution of November 1852, disposed of 43 acres and a fraction, of the land, comprising lots No. 22, 23 and 24, to himself and others associated with him in the improvement known as the Hotel property, and that upon said lot No. 24, a building known as the Cottage building had been located at the expense of the company, the cost of which, with such other improvements as had been made in like manner, was to be refunded' by the said purchasers, and directing a conveyance of the said property to Edwin Robinson and his associates, upon payment of the cost of such improvements and interest, to be ascertained by the treasurer and superintendent. In September 1857 a resolution was adopted appointing one arbitrator to act with another to be selected by the Ashland Hotel Company, for the purpose of ascertaining the expenses which had been incurred by the company in the erection of the cottage and other buildings, and in the improvement of the adjoining grounds. In April 1858 the arbitrators made their report, in which they stated that the railroad company furnished all the materials and executed all the work for the cottage building, except the painting, plastering, a portion of the window blinds, and the gas fixtures; that in respect to the gravelled walk and the decorations of the lawn, the gravel, and most of the labor of spreading it, were furnished by the railroad companjq and that the cutting down of the trees and wood on the lawn, and the grubbing and shrubbing of the lawn were done by the railroad company, and that the balance of the work, such as grubbing, ploughing and grass seeding, were done by the hotel company. They assessed the cost of the improvements as follows: The cottage, as far as completed by the railroad company, . . . $2,150 00 Bathing house and kitchen, . 350 00 Gravelled walk and work on lawn, 100 00 $2,600 00 At the same time the board passed a resolution confirming the report of the appraisers, and reciting that it had been agreed between the Railroad Company and the Ashland Hotel and Mineral Well Company, that the latter company should pay the amount assessed by the said report, and that the property upon which the said cottage and other improvements were located should thereupon be conveyed to said hotel company, and that a deed had been executed and tendered in accordance with said agreement, and directing the treasurer of the railroad company, before the delivery of the said deed, to require of the hotel company their obligation, payable on demand for $4,407 50, with interest, with Edwin Robinson as security, who should execute his individual bond for the same sum, and payable in like manner, and deposit with the treasurer one hundred shares of the stock of said company, with a power of sale as a further security. It was further proved by the defendants that, for several years prior to 1856, Edwin Robinson claimed the hotel and cottage lots as his own, and had expended large sums in the improvement of them; that he built a hotel upon the hotel lot, which he kept by an agent; that the improvements put upon the property by Robinson were very-extensive, the cost of them in 1856, at which time they had all been completed, being some $50,000 or $60,000; that he had built and paid for two cottages on the cottage lot, and had also paid for certain additions to the ball room, which was on the said lot j and for certain repairs to the fencing and other job work on the said lot, all • before 1856; that the cottage lot was used by Robinson in conjunction with the hotel lot, the ball room, billiard saloon and bowling alley being on the cottage lot; that Edwin Robinson was the principal if not the only stockholder in the Ashland Hotel and Mineral Well Company; that 135after the appraisement aforesaid, the property above mentioned was conveyed to said company; that Robinson about 1855 and 1856 was hard run for money, but that his credit was good, and he could always borrow large sums. It was proved, on the part of the plaintiffs, in addition to the facts already mentioned, that, prior to the fall of 1860, Rdwin Robinson had failed, and left the State of Virginia; that he as a man of integrity, and that the plaintiff Snead had, from time to time, lent him money, for some of which he still held his bonds; that payment of the debt claimed in this action was not claimed of the defendants before the fall of 1860 (when the action was commenced), because the plaintiffs were not in want of money, and the debt bore interest, and was considered a good investment. It was further proved by the treasurer of the defendants, that while Robinson was president he did sometimes execute notes for the defendants; that these notes were in printed forms, in which the company promised to pay, and were signed by Robinson as president; that the usual mode of certifying work done for the company, was for the superintendent to certify what was done and its value, and to accompany the certificate with an order on the treasurer to pay it, which was the course required by the regulations of the company; and that the witness had never known the president to give such certificate for work done for the company. The defendants further proved that about twelve years before the trial (which was in March 1868), a witness who met the , plaintiff Snead at Ashland, heard him say, that he was very busy doing some work for Mr. Robinson on the cottage lot. These are all the material facts of the case. The original contract of hiring was made with the plaintiff Snead by Robinson, who was then the president of the railroad company. Both he and the company were then probably engaged in doing work upon the cottage lot, though it does not appear when Robinson commenced his improvements upon that particular lot. The terms of the contract, except as to the price, do not appear; as far as appears nothing was said about the particular work for which the negroes were hired, or as to the party who was to pay the hire. The contract was made some time in the fall of 1854, and the slaves worked in the months of November and December of that year. What particular work they did in those months does not appear; but it does appear that the work, whatever it was, was done under the direction of Thompson, who was a section master of the defendants. The necessary inference is, that it was work done for the defendants; for it cannot be presumed that the agent of the defendants would have the direction of the hands engaged in working for any party other than the defendants. Whether there was a new contract after January 1, 1855, when the control of the slaves and the making of the contracts for their labor, were turned over to the plaintiff Smith, does not appear. But the slaves still worked as before, under the direction of Thompson, who was still a section master of the defendants. They so worked, sometimes on the railroad of the defendants, and sometimes on the cottage lot. And it does not appear that these slaves worked at any time upon the cottage lot, except under the direction of said Thompson. The inference must be, for the reason already assigned, that all the work done by them on the said lot, was done for the defendants, and that they were in their service. They were, therefore, employed sometimes upon the cottage lot, and sometimes upon the railroad, as occasion required, but always under the direction of Thompson. And accordingly the plaintiffs understood that their contract was with the railroad company. Snead advised Smith to go to Richmond to settle his accounts with the company. Smith went to Richmond and had the settlement, and when he came back told Snead that he had taken a note with interest, but that in consequence of the action of Thompson he had been compelled to lose about $100. Robinson was then in good credit. Why should Snead then treat the claim to be settled as one against the company, if it was really against Robinson? And what had Thompson to do with the claim, except as the agent of the defendants, under whose direction the slaves had worked in their service? It further appears, that the payment of the note was not sooner demanded of the defendants, only because it bore interest, and was regarded as a good investment. But that is not all, for it appears that some of the first work done by the plaintiffs’ slaves was paid for by the defendants. This was an admission that the slaves were in their service, and, in the absence of notice to the company, gave the plaintiffs a right to look to the defendants for the payment of the subsequent hires, at least to the extent of all the work done upon their property. It is true that Robinson was, at the same time, doing work at his own expense, upon the cottage lot; but it does not appear that the slaves of the plaintiffs did any work on that lot, or elsewhere, under his direction, or under the direction of any agent or servant of his. The improvements put upon the cottage lot by him may have been more extensive and costly than those put upon it by the defendants, but it appears that those of the defendants amounted to $2,600, at least. And while Robinson claimed the lot under an executory agreement with himself as president of the company, with the terms of which he had not yet complied, and which had not yet been assented to by the board of directors, the title was confessedly in the defendants, and so remained until after April 13, 1858. 136It is insisted, however, that the appraisement of the arbitrators shows that of the $2,600 assessed by them as expended by the railroad company upon the improvement of the cottage lot, only $100, was for such labor as would probably be performed by slaves. But this proves nothing against the plaintiffs. They were not privy to that appraisement, and are not bound by it. The slaves may have performed labor in connection with the cottage, bathing house and kitchen, and which was, therefore, embraced in the first two items of $2,150, and $350, or it may have been the intention of Robinson to charge himself with the payment-of the note held by the plaintiffs, although the work was done for and on the credit of the company, and he may, therefore, have given no account of it to the arbitrators. But, however all this may-have been, and whatever Robinson may have done or intended, without the knowledge and assent of the plaintiffs, the work, as we have seen, was done upon a lot belonging to the defendants; it was done under the direction of an agent and servant of the defendants, while they were engaged in making improvements on the said lot; the plaintiffs understood and believed that their contract was with the defendants, and, therefore, gave credit to them alone; and they were justified in thus giving credit to the defendants, by the fact that the defendants had paid -them for part of the labor of the same slaves, and had not notified them that they would be liable no longer, even for work done on their property. ' The authority of Robinson as president of the railroad company, to make contracts for the necessary labor for the company, was incident to his office, and has not been disputed. So he might furnish evidence of the amount payable under the contract, either before or after the performance of the service, and put that evidence, in his discretion, into the form of a due-bill or promissory note. Such incidental powers exist by law and general usage, and exist in all cases where the authority of the president is not restricted by special legislation, or by regulations of the company known to the other contracting party. And it is obvious from the testimony of the treasurer, that there was then no regulation of the company restricting the power of Robinson to execute promissory notes for the company.- The argument, however, is, that as Robinson usually gave notes of the company-on printed forms, and signed them as president, it is to be presumed that the paper given to the plaintiffs, which is not on a printed form, and not signed as president, was not intended to bind the company. It is not proved that he never gave an acknowledgment of debt, or made any other paper binding the company, except on a printed form, and with the addition of president to his signature. But if that had been proved, it would only have been a cirpqni§tance to be weighed by the jury, in determining the question in this case, namely, whether the work for the price of which the action is brought, was done for the defendants, and so as to make them liable to pay for it. Upon the whole, I am of opinion that the verdict of the jury is fully sustained by the facts proved. It is not necessary therefore to say anything in reference to.the case of Slaughter’s adm’t v. Tutt, 12 Leigh 147, which was cited in the argument by the counsel for the railroad company, to Show that as the facts *pro’v'ed> and not the evidence merely, has been certified, we ought to draw our own conclusions from them, uninfluenced by the opinion of the jury or of the Circuit court. That cáse, however, admits, that when the facts proved do not establish the fact necessary' to a just conclusion, but such further fact is to be inferred from the facts proved, and the facts proved leave it uncertain whether such further fact can or cannot be fairly inferred, respect ought to be paid by the appellate court to the verdict and judgment in the court below; and I apprehend that respect should thus be paid to the verdict, and judgment below, in every case where the ultimate facts upon which the legal conclusion in the case must rest, are to be deduced by balancing the different facts proved, and by weighing and comparing the inferences to be drawn from them. In such a case, this court should not reverse the judgment upon the verdict, unless it be a case of “plain deviation.” I am of opinion, therefore, to affirm the judgment. RIVEJS, J., concurred in the opinion of Joynes, J. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481718/	MONCURE, P., delivered the opinion of the court. After stating the case he proceeded as follows: The errors in the decree assigned in the petition for the appeal are, 1st. Because the bank was the agent of the plaintiff, authorized by law to receive payment of the said notes, and if the plaintiff has any remedy, it is against the bank. And 2dly. If the petitioners are liable, it can only be after the remedy against the bank, and then, if necessary, that against Gwathmey and Fisher are exhausted. In the argument it was also contended that the remedy against the trustee A. D. Williams must be exhausted before the appellants or the land held by them can be made liable. We will now proce'ed to consider these assignments of error. 1st, That the bank was the agent of the plaintiff, authorized by law to receive payment of the said notes, and if the plaintiff has any remedy it is against the bank. It was proved in the cause by Robert A. Payne, that on.the 14th of September 1863, he, as receiving teller of the bank, received the amount of the two protested notes aforesaid, in Confederate currency, from A. D. Williams, trustee, and placed the amount to the credit of B. E. Rogers on the books of the bank; that it was the usage of the Farmers Bank of Virginia in which the witness was employed, and he believes of all the banks, that if notes deposited in bank for collection were not paid at maturity, they were noted or protested and handed over to the note clerk, and there they remained until the maker or endorser called and paid them, or the holder withdrew them. If the holder did not withdraw them and gave no instructions to the contrary, it was the usage of the banks to receive payment of such notes at any time when payment was offered. This usage was long and well established and as generally known to customers of the banks and persons having business with them. Confederate currency, so far as the knowledge of the witness extended, was universally received by the banks in Richmond during the war, in payment of notes held by said banks, either for their own benefit or for collection; and he thinks this usage of the banks was so general and so widely known, as to be familiar with their customers and those having business with or through them. He did not know that the notes were well secured by deed of trust on real estate in Sydney ample to secure their payment in good money. A bank at which a negotiable note is payable, and at which it is deposited for collection, is of course the ag'ent of the holder or depositor to receive the money' if paid at such bank at the maturity of the note, and, though not then paid, has no doubt implied authority to receive the money at any time thereafter and while the note remains at the bank. It very often happens that such a note is taken up at bank shortly after the protest thereof, and with a view to save the credit of the debtor; and it therefore very often happens that a protested note is suffered by the owner to remain at bank some time after protest, with a hope that it maj' be thus taken up. It does not often happen that a protested note is left very long at bank, especially when the debtor can be made to pay it, or the creditor has a deed of trust or other security, which he can enforce for its payment. There is then no motive for leaving the note at bank, but a strong one for taking it away. Still, however long, and with whatever motive, a protested note may be permitted by the owner to remain at bank, it may, as a general rule, be safely paid to the bank by the debtor, provided he has no notice that the bank in fact has no authority to receive the money. In regard to notes deposited at a bank for collection during the war, when Confederate money was the only currency, they might, properly, have been paid in such money, at least without notice that other money was demanded. To have made such a deposit without such a notice, could have been for no other purpose and with no other expectation than to get Confederate money. In regard to notes payable at bank before the war, deposited for collection, and protested for non-payment, but neglected to be withdrawn from bank by the owner, residing in this State, it might be very questionable whether, after the lapse of two or three years, the bank would have authority to receive payment of such notes in a currency which came into existence after the protest of the note, and which, at the time of such payment, had depreciated in value as 12 to 1 compared with specie, in which payment might legally have been demanded; or whether the debtor, having notice of the facts, could make a valid payment of the note in such a currency and under such circumstances. It might not be reasonable to infer an authority to receive payment in such a currency under such circumstances, from the mere omission to withdraw the notes from the bank. But however that may be, the case we have under consideration is a very different case from any that has been stated. Here 143B. R. Rogers, the payee and the owner of the notes in question, was a non-resident of Virginia and a resident of the State of Kentucky when the notes were drawn, and when the deed of trust was executed for their security, and he has ever since resided in the State of Kentucky. The fact that he resided there is expressly stated in the deed of trust, which was duly recorded, and was no doubt notorious to all the parties concerned. The notes were deposited by him for collection at bank long before the war; one of them became due, and was protested in November 1860, nearly six months before the war, and the other became due, and was protested in May 1861, just after the war commenced; at that time Confederate money had not become the currency of this country. The notes could not well, if possibly, have been withdrawn from the bank by B. R. Rogers after the protest of the last note and before the end of the war. Kentucky, where he lived, was one of the United States, and he was separated from Richmond “by a line of bayonets.” There were certainly instances, and perhaps many of them, in which that line was crossed; and the record shows that two of his brothers and several of his nephews, residing in the same county with him, visited Richmond during the war; though it does not appear that he had any knowledge of the visit. At all events, there was so much difficulty and so much danger in the communication between the two places, which was expressly prohibited bjr the law of the government under which he lived, that he cannot be held accountable for not having withdrawn these notes from bank after the war commenced ; nor can any inference be fairly drawn from that fact, that he “authorized the bank to receive, and the debtor to pay, the amount of these protested notes in September 1863, in a currency depreciated to the degree of 12 to 1, as compared with specie, when the notes were payable in specie, and were secured by a deed of trust on real estate, exceeding in value the amount of the notes. What motive could B. R. Rogers have been supposed to have for making such a sacrifice? A. D. Williams knew when he took up the notes that they did not belong to the bank, but belonged to B. R. Rogers, a non-resident of the State and of the Confederate States, by whom they had been deposited before the war only for collection. He knew they were perfectly secured by a deed of trust on real estate. His only object in taking up the notes was to obtain a release of that deed of trust. It was a means to an end. The equity of redemption, in the property conveyed by that deed, was included in the subsequent deed of trust to him under which he had made a 'Sale of the very property bound by the prior deed, and he wished to free the property from that incumbrance, so as to be able to make a good title to the purchasers from him. He made his sale on the 17th of April 1863, just five months before he took up the notes, when the deed of trust for the benefit of Rogers was on record and in full force. Instead of going to the bank and taking up the notes by the payment of the amount in Confederate money, he ought to have gone to the trustees in the said deed of trust, and learned of them the terms on which he could obtain a release. He did go to the trustees, but after he had taken up the notes, and then he carried with him a deed already drawn for execution by them, which, of course, they refused to execute without authority from the creditor. We therefore concur in the opinion of the Circuit court, that the bank had no authority to receive payment of the notes in depreciated Confederate currency; that A. D. Williams had no right to make such a payment ; that the said payment was not a valid one; that the notes still belong to B. R. Rogers, notwithstanding such payment, and that the deed of trust for his benefit is still a subsisting security, in full force and effect. And this disposes of the first assignment of error, except the latter branch of it; “that” if the plaintiff has any remedy it is against the bank. Certainly the bank is liable to somebody for the value of the Confederate money which it received, and B. R. Rogers might, if he chose, elect to enforce that liability, though not perhaps without giving up his right to the notes, and under the deed of trust. The ground he takes is, that the bank had no authority to receive the payment, and that it was a void act. By seeking to enforce it, he might make it a valid act. At all events, he is not bound to proceed against the bank, whatever may be its liability. The unlawful act of the bank and of A. D. Williams cannot deprive B. R. Rogers of his plain and simple remedy under his deed of trust, and involve him in a troublesome and expensive pursuit of a bankrupt corporation. 2dly. It is insisted by the appellants that if the property held by them as aforesaid be liable to satisfy the demand of Rogers, it can only be after the remedies therefor against the bank, A. D. Williams, Gwathmey and Risher, respectively, are exhausted. We have already disposed of the supposed remedy Ragainst the bank, and shown that it can interpose no obstruction to the right of Rogers to proceed directly against the property subject to his deed of trust. And the other supposed remedies, to wit, against A. I). Williams, Gwathmey and Risher, may be disposed of in the same way. Rogers came into court, claiming that his debt was still due and his deed of trust for its security in full force, notwithstanding what had occurred as aforesaid, and asking that the trusts of the deed might be executed for his benefit. We think that his claim is well founded, and his right to what he asks for is the legitimate consequence. If the protested notes had not been taken up by A. D. Williams as aforesaid, Rogers would have had no difficulty in having the trusts of his deed executed, without coming into court for that purpose. But an obstacle was thrown 144in his way bjr the intromission of A. D. Williams, and he had to come into court to remove that obstacle. Having removed it, he stands at least on as high ground as if it had never been thrown in his way. He did not ask for a personal decree against his debtor Green, or any body else, but only for the enforcement of the deed of trust by a sale of the property thereby conveyed, or so much of it as might be necessary for the payment of the debt. It was proper for him to make the terre tenants of the property, or portions wf it, claiming title thereto under alienations subsequent to the said deed of trust, defendants to his suit, as they had an interest in the subject in controversy ; and it was proper for the court, in decreeing a sale of the property to satisfy the debt, to direct it to be sold in such order as would best consist with the rights of all the parties and the justice of the case. The trust creditor had a right to have the trust property sold for the payment of the trust debt, notwithstanding the subsequent alienations ; but he had not a right to have it sold in any certain order, not affecting the security of the debt. The order of selling it, provided it be without prejudice to the rights of the trust creditor, is therefore subject to the equitable control of the court. But the plaintiff cannot be required to take a personal decree against any of the defendants. He cannot be delayed or embarrassed by the prosecution of any of their rights 'or remedies ínter se. He has put no such matters in issue by his bill. If they are proper subjects for adjudication in this cause, it is by a decree between the co-defendants, and not by a decree in favor of the plaintiff against any of them. There is nothing in the decrees which have been rendered by the court, and which are only interlocutory, that can prevent the Circuit court from rendering any decrees between the co-defendants which it may be proper to render in the cause; and indeed the said court in the decree appealed from, seems to have contemplated a future decree between the co-defendants by expressly reserving the questions raised by the exceptions to the commissioner’s report, for future consideration and decision. We therefore think that the decree appealed from is correct and ought to be affirmed, at least upon the merits. We are not satisfied, however, that the order prescribed by the report of the commissioner and the decree of the court for the sale of the lots held-by William A, Alley, S. D. Risher and M. M. Lipscomb, trustee for his wife Adeline T. Lipscomb, respectively, is correct, although there is no exception to the report in that respect. That order is, that the lots held by said Alley shall be sold before the lots respectively held by said S. D. Risher and M. M. Lipscomb, trustee; no doubt upon the ground that the lots held by Alley were conveyed to him, after the lots held by S. D. Risher and Lipscomb, trustee, respectively, were conveyed to B. W. Green, by A. D. Williams, trustee, under the deed of the 21st of \| Rebruary 1861; and that the inverse order of the subsequent alienations of incumbered property is the true order in which the property ought to be sold to satisfy the incumbrance. The principle is right, as has often been held by this court. Conrad v. Harrison, &c., 3 Leigh 532; McClung v. Beirne, 10 Id. 394; Rodgers v. McCluer’s adm’r, &c., 4 Gratt. 81; and Henkle’s ex’x, &c. v. Allstadt, &c., Id. 284; by which cases the prior case of Beverley v. Brooke, 2 Leigh 425 has been overruled. But the application of the principle to this case seems not to be correct. It appears that the lots held by Alley and those held by S. D. Risher and Lipscomb, trustee, respectively; were sold at the same time, or on the same day, by A. D. Williams, trustee, that is, on the 17th day of April 1863; and that the said holders claim the said lots respectively, directly or indirectly, under purchasers who purchased them at that sale and on that day. If this be so, then it would seem that these holders stand on an equality, and the lots held by them should bear the burden of Roger’s incumbrance ratably, that is, in proportion to the prices at which they were respectively sold at the sale made by A. D. Williams, as aforesaid. That these lots were conveyed by A. D. Williams to the purchasers at his sale, or their assigns, at different times, makes no difference. The rule of equality was fixed by the sale, and was not affected by the order of the conveyances, subsequently made by the vendor. 4 Gratt. 81, supra. We think that so much of the decree as directs a sale of the said lots held by said Alley, Risher and Lipscomb, trustee as aforesaid, in the order mentioned in the report of commissioner Pleasants, ought to be reversed, and the said report ought to be recommitted to the commissioner, with instructions to make further enquiry, and report as to the order in which the said lots ought to be sold, if necessary, according to the principles set forth in the foregoing opinion. In all other respects we think the decree ought to be affirmed, and with costs to the appellee Rogers, as the party substantially prevailing. The decree was as follows: The court is of opinion, for reasons stated in writing, and filed with the record, that the president, directors and company of the Rarmers Bank of Virginia had no au,thority to receive payment of the two protested negotiable notes in the proceedings mentioned in depreciated Confederate currency ; that the payment made of said notes in such currency by A. D. Williams in September 1863, as stated in his deposition, was a void payment; that the said notes are still due and unpaid, and belong to the appellee, B. R. Rogers; that the deed of trust of the 24th day of May 1859, from Benjamin W. Green to John G. Williams and Mortimer M. Young, is still a subsisting security, in full force and effect, for the payment of the said notes, except as to that portion of the property conveyed by said deed of trust, which was released b3r the 145deed of the 28th of August 1860, in the proceedings mentioned; that the said B. F. Rogers is entitled to have the said deed of trust enforced for the payment of said notes, with all interest and costs of protest due thereo'n, by a sale, if necessary, of the property conveyed by the said deed of trust, or so much thereof as may be sufficient for the purpose, except as aforesaid; that he is entitled to a decree for such a sale without being first required to have any recourse against the president, directors and company of the Farmers Bank of Virginia, B. W. Green, A. D. Williams, S. D. Fisher, G. N. Gwathmey, or any other person; that if these parties, or any of them, can be made liable in this suit, as to which this court expresses no opinion, it must be by a decree between co-defendants, which decree, if proper, it will be competent for the Circuit court to make hereafter, as the decrees already made are interlocutory only, and that there is no error in the said decrees already made, at least upon the merits; but the court is of opinion that there is error in so much of the decree of the 11th day of March 1868 as prescribes the order of priority, in which the lots of land held by the purchasers respectively are to be sold for the satisfaction of the said debt due to B. F. Rogers. It appears that these lots were sold on the same day, to wit, the 17th day of April 1863,.by A. D. Williams, trustee, though his conveyances of them were made afterwards and at different dates; and that the said holders respectively claim the said lots, directly or indirectly, under purchasers who bought them at that sale and on that day. The court is therefore of opinion, that if it be not necessary to sell the whole of the land conveyed' by the said deed of trust of the 24th day of May 18S9, not released by the said deed of the 28th of August 1860, for the purpose of satisfying the said deed of trust, then the balance of the said debt due to B. F. Rogers, which may remain unsatisfied after applying to its payment the nett proceeds of the sale of the two lots still held by the said A. D. Williams, trustee, and directed to be first sold, ought to be raised ratably out of the lots now held by the said purchasers respectively, to wit: William A. Alley, Martin M. Bipscomb, trustee for his wife Adeline T. Bipscomb and S. D. Fisher, in proportion to the amounts of the purchase money for which those lots were respectively sold at the sale made by the said A. D. Williams, trustee, on the 17th day of April 1863 as aforesaid. Therefore it is decreed and ordered, that so much of the said decree of the 11th day of March 1868, as is above declared to be erroneous, be reversed and annulled, and the residue thereof, and the decree of the 20th day of November 1867 affirmed; and that the appellee, B. F. Rogers, as the party substantially prevailing, do recover of the appellants his costs by him about his ^defence in this behalf expended. And it is ordered that the cause be remanded to the said Circuit court for further proceedings to be had therein in conformity with the foregoing opinion; which is ordered to be certified to the said Circuit court. Decree reversed in part, but confirmed on the merits, with costs to the appellees.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481719/	RIVES, J. It does not seem material to consider or settle the question of pleading raised by the demurrers to the original and amended declarations in this case. The common counts in indebitatus assumpsit, which were sustained, would have sufficed to sustain a recovery under the authority of Bank of U. S. v. Jackson’s adm’x, 9 Leigh 221. The contract was one. of privitjr between these parties, and sprung out of the payment of money by one to the other. Had the case been submitted to a jury, it would have conduced to a clearer development of the issue, if the plaintiff had been allowed to count specially, as he did in his amended declaration, upon the particular facts of his demand. The practice of relying on these general counts, was disapproved and discouraged at an early date in the case of Wood v. Luttrel et al., ex’ors of Carr, 1 Call 232, 240, by Judge Pendleton, who used this just and emphatic language: “I cannot forbear to mention that I do not like this new practice of general counts much, as they tend to surprise the other party without giving him the opportunity of preparing for a full defence. ” Butin this case the parties waived their right to have a jury for the trial of this cause, and agreed that the whole matter, of law and fact, should be heard and determined by the court. Inasmuch, therefore, as the court held and was well justified in holding, that a recovery, if at all, might be had under the common counts; and proceeded to hear and determine the case upon its merits under these counts, we are relieved of the necessity of adjusting the pleadings with any technical nicety. There was, perhaps, no other reason for sustaining the demurrer to the amended declaration, save that it did not, in the opinion of the court, set out a legal cause of action; a conclusion also reached in the judgment given for the defendants upon the facts. We are therefore remitted to the enquiry whether the contract in this case was capable of being asserted in a court of law. The parties to this contract were all alike residents of the Confederate States. In February 1863, the plaintiff in error purchased of the defendants three several drafts of the Farmers Bank of Virginia upon the New Orleans Canal and Banking Company, bearing date the 26th August 1862, for the sum of two thousand dollars each. Prior to the date of these drafts, the city of New Orleans had been taken by the forces of the United States, and so “occupied and controlled” by them as to be excepted out of the terms of the president’s proclamation of 16th August 1861, that had declared Bouisiana, along with other southern States, in a state of insurrection against the United St The taking of the city was followed by the president’s proclamation of 12th May 1862, raising the blockade of its port from and after the 1st day of June 1862; and the decisions of the Supreme court have fixed the 6th of May 1862 as the period of the full and final restoration of the city to the jurisdiction and authority of the United States. These facts disclose a case of a contract of endorsement between citizens within the insurrectionary districts, during the pendency of hostilities, of a bill drawn by a bank in Virginia upon a bank in New Orleans, that was then claimed and recognized as within the rightful territory of the United States. This statement is sufficient to reveal, in its true light and bearing, the important question upon which we have to pass in this case. In another part of this investigation, I may have to recapitulate other circumstances relevant to other topics of this discussion ; but for present purposes, I have stated all that is necessary to possess us of the points made in this case. Now it is alleged that the purchase of this bill was illegal and void on two grounds: First, that it was a trading, condemned and avoided by the laws of nations in case of international wars, which, for the purposes of this argument, are assumed to rest upon the same principle and reason as our late internal war; and secondly, that it was prohibited and annulled by the act of congress of July 13, 1861, interdicting “all commercial intercourse” between the inhabitants of the insurrectionary ^districts and the citizens of the rest of the United States. These positions are plainly contradictory; the one referring the claim to the decision of international law, and the other to the decision of municipal law. They cannot both stand together: a choice must be made between 148them. If the case rests on international law, the municipal is excluded; and e con-verso, if within the pale of the municipal, it is without that of the international. Hence, our first enquiry should be, whether the contract relied on in this case is affected by, or within, the purview of the law of nations touching dealings between alien enemies; and herein we have to consider at the outset the assumption already alluded to; namelj', that our late civil strife was attended with all the legal incidents and consequences' of a war inter gentes. In calling this an assumption, I do not mean to treat with any disrespect the argument of the counsel for the appellees; but I rather indicate thereby the strong and decided sense I entertain of what I humbly submit it can be satisfactorily shown to be. I understand the position to be, that there is no distinction upon reason or authority, between public war of whatever sort and international war, in the vacating of contracts between individual citizens of belligerent countries flagrante bello. That we may more critically examine and determine the soundness of this position, let us first acquire a precise and definite idea of this important tenet of the law of nations. Its indispensable attribute is, that it should be a contract between “alien enemies,” because the doctrine is founded on the principle, that a declaration of war puts not only the adverse governments in their political capacity at war, but renders all the subjects of the one the enemies of the subjects of the other. Vat-tel, bk. 3, c. 5, ? 70; also note to Clemontson v. Blessig, 11 Exch. R. 135. Hence, “no valid contract can be made, nor any promise arise, by implication of law from any transaction with an enemy,” says Justice Clifford, in Hanger v. Abbott, 6 Wall. U. S. R. 534. These conditions are all fulfilled in the case of foreign wars between independent nations, because it can be aptly said of them, that a state of war is. contradictory of a state of commerce, and that there cannot be war for arms and peace for commerce. Considerations of public safety, imperiouslj1' forbid all contracts between alien enemies ; so that after the termination of the war, during which they were made, the illegality of the transaction may be set up as a valid defence against an action founded upon any such contract. But are such conditions found in a war waged between citizens of a common country'; and is this doctrine at all applicable to the status or the dealings of fellow-citizens embroiled in a civil war? Under our complex system of State and Federal governments, the constitution of the United States is not overthrown by the insurrection of any portion of the people, however formidably arrayed or efficiently organized under all the facilities of revolt arising out of their separate organizations into States, under all the forms and with all the powers necessary to command the resources and services of their inhabitants. Whatever may have been the theory, on which this rebellion was. projected and justified, it has confessedly yielded to the grand arbitrament of arms; and we need not now be disquieted or hárassed by any doubt that the constitution of the United States reigned supreme over all the States and all the citizens during the whole of this deplorable conflict and since, with such exceptions only as are due to the clash of arms and the necessities of State. We shall in vain look through the whole range of decisions of the Supreme court for the slightest intimation that this rebellion had affected the supremacy of the constitution; or released the revolted States or their citizens, from its authoritj- or their allegiance to it. It is true that the war was of such dimensions, and was so organized, under the auspices of the revolted States, into a new and separate Confederacy that the government of the United States was compelled to waive some of its strict and theoretical rights over the insurgents. It would have been idle to send out with its armies, a.s was done in the case of the whiskey insurrection in Pennsylvania, civil officers, to whom captured insurgents might be turned over for arrest, trial, conviction and punishment. It was the dictate of necessity and policy to recognize the Confederate States as a government de facto; to concede belligerent rights to them; to acknowledge a state of internal war; to treat captives, both on land and sea, as prisoners of war, and provide for their exchange; to declare a blockade of the ports'in the insurrectionary districts; and assert under the law of nations the rights of capture and prize jure belli. These concessions were properly made to mitigate the rigors of this fratricidal war, and conduct more effectually and humanely to the suppression of the revolt. They were conceived in the spirit of the exalted teachings of the most enlightened and accredited publicists. Vattel, bk. 3, ch. 18, ¡¿ 294, recommends that “the common laws of war—those maxims of humanity, moderation and honor, which we have already detailed in -the course of this work—ought to be observed by both parties in every civil war. For the same reasons, which render the observance of those maxims a matter of obligation between State and State, it becomes equally, and even more necessary, in the unhappy circumstance of two incensed parties lacerating their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations, and all other conventions made with his enemies, they will no longer rely on his word; should he burn and ravage, they will follow his example; the war will become cruel, horrible, and every daj’- more destructive to the nation.” While therefore in the pursuance of these wise and humane maxims, the government of the United States departed from the theory strictissimi juris in its constitutional 149suppression of this insurrection, there was never in any authoritative quarter an admission that the insurgents, by reason of being acknowledged as quasi enemies to the extent of these concessions, were not amenable to the constitution and the laws. This did not in fact involve any contrariety in the status thus ascribed to them; and when such was alleged in the Prize cases, 2 Black. U. S. R. 635, 670, Justice Grier, with no little warmth, denounced it as “the anomalous doctrine, which this court are now, for the first time, desired to pronounce, to wit: that insurgents who have arisen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war, because it is an insurrection.” But if by the intendment of law the constitution of the United States pervaded the whole land, notwithstanding the insurrection, and was in theory the supreme law to insurgents as well as loyal citizens, the municipal law went along with it, and governed contracts. To term the citizens of the Confederate States enemies, is far from being tantamount to calling them “alien enemies.” We are told, 2 Black. U. S. R. 274, that “the word ‘enemy’ is a technical phrase peculiar to prize courts, and depends upon principles of public policy, as distinguished from the common law ; and besides, that citizens of the Confederacy, while traitors, for having cast off their allegiance and made war on their government, are none the less ‘enemies.’ ” All this is conclusive to show that the counts have never for one moment lost sight of, or relinquished, the principle of the nullity of the attempted withdrawal of the southern States, and the supremacy of the constitution and the laws in spite of it. Upon what principle and reason then shall we be required in this case to take rebellious subjects out of the pale of a constitution, which they have failed to overthrow, and submit their dealings and contracts to international rather than municipal law? It would seem to be enough to reply, that the correct theory of our disastrous conflict does not admit of the idea that the parties to it were foreign and independent nations, and the citizens of the one “alien enemies” respectively of those of the other. Upon principles of reason therefore, distinguishing the case of our late war from that of a war inter gentes, I conclude that this case does not come under the interdict of international law against contracts between “alien enemies.” But we are told that we are not left to the conclusions of reason upon this subject, but are shut up to the decisions of the Supreme court of the United States, that are alleged to apply this doctrine for the vacation of contracts between opposing belligerents pending the war to our late war, as fully as if it had been an international war. This assertion cannot rest upon anything more than analogy ; but, even thus qualified, it excites my unfeigned surprise. I shall therefore take up all these cases in their order that have been referred to, and ascertain whether they are susceptible of being used as authority for a position, which I have endeavored to show is contrary to reason. The first reference is to the Prize cases, 2 Black. U. S. R. 635. The chief controversy in those cases was as to the right of the president, in the absence of any act of congress declaring or recognizing a state of war, to proclaim a blockade of the ports in possession of the States in rebellion. There was a difference of opinion among the judges on this point; but all conceded the right to exist after the act of 13th July 1861, authorizing the president to interdict all trade and intercourse between the inhabitants of the States in insurrection and the rest of the United States. The court, however, was of opinion that the right to institute this blockade, pertained to the president jure belli, and, therefore, upheld the authority and legality of his proclamation of blockade of 19th of April 1861, although prior to any congressional recognition of the war. Another proposition was also laid down in these cases, namely, that property of persons within the Confederacy was to be deemed enemy’s property without reference to the individual status of the owner, and, therefore, lawful prize. These were cases affecting the rights of the United States as sovereign, and of captors claiming under its laws, where, as I have already shown, the government had chosen to follow the law of nations rather than exercise its municipal right to close its ports. Thus, in the case of The Circassian, 2 Wall. U. S. R. 135, the chief justice observed that “the government of the United States, involved in civil war, claimed the right to close, against all commerce, its own ports seized by the rebels, as a just and proper exercise of power for the suppression of attempted revolution. It insisted, and yet insists, that no one could justly complain if that power should be decisively and peremptorily exerted. In deference, however, to the views of the principal commercial nations this right was waived and a commercial blockade established. ’ ’ This declaration of one who was a member of President Lincoln’s cabinet, is an authoritative disclosure of the motive for exchanging the municipal right, for the belligerent right under the law of nations. But this falls far short of the pretension that has been founded on these cases. It in fact receives no countenance from them. But resort is had to certain 'incidental remarks of Justice Nelson, who gave the dissenting opinion in these cases. He is depicting the consequences of war, and enumerates among them the invalidity of contracts flagrante bello. The statement of the doctrine was perfectly true in the connection in which he made it; but the doctrine was in nowise involved in the adjudication of those cases; 150and cannot now be wrested front the context, and made to apply to the quite different question we are now making, without an inexcusable perversion of his “obiter dicta.” And yet this is all the analogy between those cases and the one at bar. Next comes the case of Mrs. Alexander’s cotton, 2 Wall. U. S. R. 404. This cotton was captured on land, by a naval force of the United States in the spring of 1864, and was libelled as prize of war; but it was held not to be “maritime prize,” and to be embraced by the act of congress of March 12th, 1863 (12Stat. at Targe 591), providing for the collection of abandoned property, &c.—whereby such property captured during the rebellion should be turned over to the Treasury Department to be sold and the proceeds deposited in the national treasury, so that any person asserting ownership of it might prefer his claim in the court of claims under the said act; and on making proof to the satisfaction of that tribunal that he had never given aid or comfort to the rebellion, have a return of the net proceeds decreed to him. In this case as in the Prize cases, the proposition was again reiterated that “the court could not look into the personal character and dispositions of individual inhabitants of enemy territory.”—“We must be governed,” says the Chief Justice, “by the principle of public law, so often announced from this bench as applicable alike to civil and international wars, that all the people of each State or district in insurrection against the United States, must be regarded as enemies, until by the action of the legislature and the exe.cutive, or otherwise, that relation is thoroughly and permanently changed.” But this language, broad and comprehensive as it is, must be confined for purposes of interpretation to the case in hand; and that was one between the rights of the government on the one hand, and those of a citizen on the other hand. It did not relate to controversies between individuals on the opposite sides, or tend to admit or tolerate the plea of ‘alien enemy’ in suits between such parties after the cessation of the war. Nothing breeds more confusion of ideas than to seize on a particular expression, tear it from its context, and then insist on the universality of its meaning, and its application to cases not in the mind of the writer, because of its capacity literally to embrace them. Without proper discriminations, we must continually fall into serious errors in weighing and interpreting judicial decisions; and it is through the lack of such precaution, as it seems to me, the notion prevails that this and the Prize cases attribute to civil wars as well as to international wars this faculty of annulling contracts between- belligerent individuals. The Ouachita Cotton case, 6 Wall. U. S. R. 521, to which we were next referred, does not relate to the question we are now considering. It was wholly under the municipal law, and involved the construction of the act of congress of July 13th, 1861, and the subsequent proclamation of President Lincoln in pursuance of it, under which it was held, that purchases of cotton from the rebel Confederacy, by citizens or corporations of New Orleans, and libelled during the war, were void. These measures were regarded as “restoring New Orleans after its occupation by the military forces on the 6th of May 1862, so completely to the national authority as to clothe its citizens with the same rights of property, and subject them to the same inhibitions and disabilities as to commercial intercourse with the territory ^declared to be in • insurrection as the inhabitants of the loyal States.” This, I presume, might also have been the case had these belligerents been foreign and independent nations in this predicament towards each other, under the authority of The Hoop and The Bella Guidita, 1 C. Rob. Adm. 196 and 207, and United States v. Rice, 4 Wheat. R. 246; so that Justice Swayne, apart from the act of congress and the proclamation of the president, justly regarded it as “the result of well-settled principles of public law. ’ ’ The last case that has been cited for the appellees on this point is Hanger v. Abbott, 6 Wall. U. S. R. 534. It was there decided that the war had the effect of suspending the statute of limitations in the States, so that the time during which the courts in the lately rebellious States were closed to citizens of the loyal States, is, in suits brought by them since, to be excluded from the computation of the time prescribed by such statute, though exception for such cause, be not provided for in the statute. This doctrine is deduced from, and justified by, the principle, that while war does not annul an antecedent debt, it suspends the remedy therefor, so that the right and the remedy are both revived by peace; but this would be nugatory should the war last for the period of limitation, and there be nothing to stop the running of the statute. To give efficacy therefore to the principle, that the return of peace brings with it both “the right and the remedy,” it is necessary that the statute should be suspended for the war; or else, as it is here said, “the citizens of a State may pay their debts by entering into an insurrection or rebellion against the government of the Union, if they are able to close the courts, and to successfully resist the laws, until the bar of the statute becomes complete. ” This is, in truth, a precedent for removing obstacles from the path of the creditor after the war; and I do not see how it can be tortured into an authority for annulling all‘ war debts and contracts sued on after peace. It is true in this case, as in the Prize cases, much is said upon the general consequences of war in the prohibition of all trading, negotiation, communication and intercourse between the citizens of one of the belligerents with those of the other, without the permission of the government; but it has only a remote and incidental bearing upon the-point in issue, is, in truth, a mere preface to the discussion of it, and in no respect enters into the body of the 151judgment. While, therefore, I do not dissent from these declarations, but, on the contrary, accept them as a part of the law of nations, I do humbly protest against the effort to make them authority in reference to a civil war or any other public war, except a war inter gentes. I have thus carefully canvassed and sifted these authorities, and have not been able to find anything in them that assimilates civil to international war in its avoiding trading and contracts during its pendency. Had such an incident belonged to civil war, why is it that no instance of it can be found, after the most diligent search in the records of judicial proceedings, during such wars? and where was the necessity of the act of congress, if in our intestine warfare the public law of nations applied to it, and effected the same end? But all this is mere negation. Positive and direct authority exists against this pretension of the appellees, and that in a decision of the Supreme court. In it, I have found the very basis, and staple of the arguments I have been advancing. I allude to the case of Mauran v. Insurance Company, 6 Wall. U. S. R, 1. It arose upon a policy of insurance upon a ship afterwards captured by a Confederate vessel; which policy' had a marginal warranty, “free from loss or expense by' capture. ” To determine whether this loss arose from “assailing thieves” or “pirates, ” for which the insurer was bound to pay ; or from a capture, the risks of which the assured took upon himself by his warranty, made it necessary for the court to ascertain and define the character of the Confederate States government. It accordingly did so, and declared it to be a government de facto. Justice Nelson, whose language in the Prize cases was quoted by the counsel for the appellees, delivered the opinion of the court in this case, and laid down their theory of our late struggle in the following striking passages : ‘ ‘We agree that all the proceedings of these eleven States, either severally or in conjunction, by means of which, the existing governments were overthrown and new governments erected in their stead, were wholly illegal and void; and that they remained after the attempted separation and change of government, in judgment of law, as completely under all their constitutional obligations as before. The constitution of the United States, which is the fundamental law of each and all of them, not only afforded no countenance or authority for those proceedings, but they were, in every part of them, in express disregard and violation of it. Still, it cannot be denied but that by the use of these unlawful and unconstitutional means, a government in fact was erected greater in territory than many of the old governments in Europe, complete in the organization of all its parts, containing within its limits more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled dimensions, and during all which time, the exercise of many belligerent rights were either conceded to it or were acquiesced in by the supreme government; such as the treatment of captives, both on land and sea, as prisoners of war; the exchange of prisoners; their vessels recognized as prizes of war and dealt with accordingly; their property seized on land referred to the judicial tribunals for adjudication ; their ports blockaded and the blockade maintained by' a suitable force and duly notified to neutrals, the same as in open and public war. We do not enquire whether these were rights conceded to the enemy by the laws of war among civilized nations; or were dictated by humanity to mitigate the vindictive passions growing out of a civil conflict. ’ ’ Again in White v. Cannon, 6 Wall. U. S. R. 443, it is said that “the objection that the judgment of the Supreme court of Bouisiana is to be treated as void, because rendered some days after the passage of the ordinance of secession of that State, is not tenable. That ordinance was an absolute nullity, and of itself alone, neither affected the jurisdiction of that court or its relation to the appellate power of this court.” If then we accept these opinions of the Supreme court as the law of the land, I do not see, how the contracts of the citizens of a common country, though harassed by civil war, are to fall under the ban of international law as to contracts between alien enemies in time of war. To impute the doctrines of ‘alien enemy’ to the relations of a people under the same constitution of government in the eye of the law, though engaged in an insurrectionary war, would be in flagrant opposition to these decisions, which we are bound to respect and follow. That the understanding of the country', also conforms to the state of the law, as thus expounded, we have striking proof and an impressive example in the general acquiescence in the nullity of the sequestration or confiscation laws of the Confederate. States. A greater hardship and loss cannot well be conceived; and yet I have not heard of the first case in this State, of an attempt to resist at law the repayment of a debt or the restoration of property, which had been sequestrated or confiscated under this law of the Confederate States. And yet if this pretension of applying international law to the case, be correct, this law stands justified by the strict rights of war; and is really valid, ^though not approved by the practice and rules of later times. But it seems the question was made before the Circuit court of the United States at Raleigh, in which the chief justice reviewed the very points that have been made in the argument here; and fully sustained the views I have taken. The pamphlet containing his opinion—Shortridge et al. v. Macon—’s before us. He was met there, as we are here, by the assertion that the decisions of the Supreme court, already cited, declared the principle that all the doctrines of international law as to war inter gentes 152were applicable to the powers and rights of the two governments, and the dealings of the respective citizens of each, with those of the other; so that a state of civil war, like a state of international war, would validate acts of confiscation, and also stop interest on debts thus deemed to be foreign. But he distinctly disclaimed and repelled this interpretation of these cases, and gave judgment for the debt, interest, as well as principal. After a succinct recapitulation of the points settled by the Supreme court, he adds with emphasis: “But there is'nothing in that opinion which gives countenance to the doctrine which counsel endeavor to deduce from it; that the insurgent States, by the act of rebellion, and by levying war against the nation, became foreign States, and their inhabitants alien enemies.” I have thus taken much pains to ascertain if this pretension of the appellees could derive any support from the decisions of the Supreme court. It seemed to me,'under the circumstances, a strange quarter to seek for it; for if it can be found there, it must be allowed that this august tribunal has gone far towards rehabilitating the doctrine of secession, and giving life to the Confederacy in its ashes. And for what ends of justice, I demand to know, are we required to vamp up this obsolete theory of a separate and independent existence of the late Confederacy? The parties to this controversy were citizens of this Confederacy; and contracting under that faith, what merit have the appellees in this defence? It must be allowed that this defence is curiously constructed; it consists in part of the law of nations, and in part of the municipal law; of the former, so far as the incapacities growing out of international war, are concerned; and of the latter, when it becomes necessary to invoke it for the re-annexation of New Orleans, a part of-the Confederate territory, to the United States. Upon the theory of a separate Confederate nationality, no act of mere military occupation, nor law of the congress of the United States, could avail to withdraw this city from its sovereign so as to make its inhabitants, for purposes of contract, alien enemies to other subjects of the same sovereign; although under the doctrines of The Hoop & Bella Guidita, already cited, it might not be allowable for the latter to ship supplies to the former. If required, then, to stand exclusively upon their theqry of an international war, unassisted by the laws of congress, the appellees, and all the other parties, in interest, to this controversy, including the Canal and Banking Company of New Orleans, would be inhabitants and citizens of one common country; and there could be no pretext for imputing the relations' of alienage or hostility to any. But, to make out this defence, another ingredient is wanted; and that is found in the laws of congress and the proclamation of the president of the United States, whereby New Orleans is transferred from the dominion of the Confederacy to that of the United States. Such a mixed and incongruous plea, therefore, does not challenge my particular regard, nor offer any peculiar temptation to be seduced into the avowal of doctrines, that might prove hazardous to the business of life in times of civil commotion. Ror my part, I feel it' to be a duty within my province, to protect, as far as practicable, the contracts of men from being affected by internal disturbances, so that the stream of commerce may not be impeded or diverted, nor the faith of contracts dissolved by intestine wars. If I have not erred in the positions I have so far advanced, I have succeeded in excluding this case from the pale of the law of nations. I am therefore relieved from the necessity of saying anything as to the numerous authorities that were cited on this head; I read them all with an interest and attention due to the gravity of the doctrine, and its able and satisfactory exposition in these cases, but, in my view, they have no legitimate application to this case. Uet us now turn to the only remaining branch of our enquiry, and see whether this action is defeated by the law of congress. It may seem hard to subject a contract between confederates during the war to an act of congress, of which it is reasonable to suppose they might not have had cognizance ; but such a consequence necessarily attends the overthrow of the usurped governments. The act in question (July 13th, 1861,) authorized the president by proclamation to declare the inhabitants of any State, or part thereof, to be in a state of insurrection against the United States, whereupon “all commercial intercourse by and between the same, and the citizens thereof, and the citizens of the rest of the United States, shall cease and be unlawful, as long as such condition of hostility shall continue.” This act was followed on the 16th August 1861 by the proclamation of the president, declaring, among other things, “that all commercial intercourse, &c., is unlawful, and shall remain unlawful until such insurrection shall cease, or has been suppressed.” The effect of these two measures was to suspend intercourse during the continuance of hostilities. I shall not stop to enquire what was the character of “the commercial intercourse” thus prohibited, whether it was aimed at the negotiations of trade as within the -mischief, or merely at the locomotive commerce, as more palpably indicated by the context, which is restricted to “all goods and chattels, wares and merchandise.” T am willing to concede in view of judicial decisions upon the cognate doctrine in the law of nations, that the interdict was levelled at all contracts that might tempt to the violation of this prohibitory policy. But it is indispensable to discriminate between the edict of international law and the terms of this statute. The former, we have seen, annulled all contracts within the prohibited class, so 153that no action could be maintained upon them after the termination of the war; not so, however, with this act of congress; it is merely suspensory. Had congress thought proper to follow the law of nations in this respect, it could and would have done so; but a tender and considerate deference, doubtless, to the peculiarities of the conflict, it chose a milder course, and merely suspended the right and the remedy during hostilities. It did not simply declare “commercial intercourse” unlawful, and stop there, leaving it to be inferred, as an intendment of law, that every act of such intercourse was therefore void, and incapable of supporting an action after the war. But the prohibition is made to depend upon “the condition of hostility,” so that when the latter ceases, the former is removed, and a contract, unlawful in its inception, ceases to be so upon the return of peace. This, I take it, is the plain and unambiguous meaning of the act. This bill was purchased by the appellant in February 1863, when New Orleans, where it was payable, had reverted to the United States. Grant that this transaction was unlawful at that time, the illegality was temporary and contingent, for both the law and the proclamation declared that it should cease with the suppression of the insurrection. No step need to have been taken before that time to fix the liabilities of the parties to the bill. Had there been an understanding that this negotiation should await the termination of the war, it would have been as innocent as an assignment for value of the obligation of a debtor within the Federal lines. But there is no proof in this case of any purpose on the part of Billgerry to present or collect this check across the lines of contending armies. On the contrary, his conduct bespeaks a different purpose. He quietly remains at his home till the advancing wave of conquest passes over him and opens communication for him with New Orleans. He then duly presents his bill, and upon non-payment has it protested, and attempts to give notice thereof in the accustomed mode. But his right of action was still in abeyance, because his endorsers were separated from him by a line of bayonets. This continued to be the case till the insurrection was finally broken and suppressed by the surrender of Bee. Then his rights and remedies awoke from their state of suspended animation, and were endued with as much power and life as if the municipal law had never suspended them. It seems to me that this is a just and accurate interpretation of the terms and spirit of the law, and fully sustains the present cause of action. The undertaking or agreement of the appellees, as endorsers, however, was collateral and contingent. To hold them responsible, due and reasonable diligence must be shown in giving them notice of the dishonor; so that they might enjoy every conceivable opportunity and facility of securing themselves from loss. The j question of due diligence, is one of law; and is well 'settled by a numerous train of authorities. The party, whose duty it is to give this notice is bound to due and reasonable diligence; but it is not required of him to see that the notice is brought home to the party. If it is given in the usual way and in reasonable time, it is sufficient to excuse the party, on whom it rests, ^though it may never be received. 1 Am. B. Cas., p. 396, and note. But an omission to give this notice may be excused by circumstances rendering it impossible to do so. But the excuse is contemporaneous with the obstacle ; so that upon the removal of the latter, the duty revives. The pendency of war is an adequate excuse. 1 Pars, on Cont. 278; Hopkirk v. Page, 2 Brock. 20. Here, then, there was no duty to give notice till the war ended. It is not, therefore, material to enquire into the validity of the notice that was mailed along with the protest in October 1863, when there was no mail communication with Virginia. It was perhaps futile and supererogatory. But was this notice given in the usual way and in due time after this impediment was removed? The proof is that about two weeks after the surrender of Bee’s army, the appellant wrote a letter to Branch & Sons from New Orleans, informing them of the protest of the bills; and it was just at that time, as is proven by a special agent of the post-office department, that mail communication was first opened from within the United States lines to Richmond or Petersburg. This, therefore, brings the appellant within the rule that charges his endorsers and fixes their liability to him on their collateral undertaking for the honor of the bills which they sold him. On the whole, therefore, it seems to me that the demurrer to the amended declaration should have been overruled, and judgment given for the plaintiff’s demand. JOYNFS, J. The counsel for the defendants have contended in the argument: 1. That the contracts arising out of the endorsement and delivery of the checks by the defendants to the plaintiff were illegal and void, so that no action could be founded upon them. 2. That if these contracts were legal and valid, there has been no sufficient presentment and demand of payment of the checks. And 3. That if the presentment and demand were sufficient, there has been no sufficient notice of dishonor. Premising that a check is a bill of exchange, though subject to some peculiar rules, which need not be now adverted to, and that every endorsement of a bill is equivalent to the drawing of a new bill, I proceed to consider the first and principal question. It is a general principle of law, that war operates as an interdiction of all commercial and other pacific intercourse and communication with the public enemy; and it follows as a corollary from this principle, 154that every species of private contract made with subjects of the enemy during war is unlawful. “The rule thus deduced,” says Wheaton, “is applicable to insurance on enemy’s property and trade; to the drawing and negotiating of bills of exchange between subjects of the powers at war; to the remission of funds in money or bills to the enemy’s country; to commercial partnerships entered into between the subjects of the two countries. after the declaration of war, or existing previous to the declaration, which last are dissolved by the mere force and act of the war itself, although as to other contracts [existing before the war] it only suspends the remedy.” Wheat. Elements, by Lawrence 556. So Kent says: “The insurance of enemy’s property is an illegal contract, because it is a species of trade and intercourse with the enemy. The drawing of a bill of exchange by an alien ■enemy on a subject of the adverse country, is an illegal and void contract, because it is a communication and contract. The purchase of bills on the enemy’s country, ■or the remission and deposit of funds there, is a dangerous and illegal act, because it may be cherishing the resources and relieving the wants of the enemy. The remission of funds in money or bills to subjects of the enemy is ^unlawful. The inhibition reaches to every communication, direct or circuitous. All endeavors at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice .has succeeded to legalize the trade without the express permission of the government. Every relaxation of the rule tends to corrupt the allegiance of the subject, and prevents the war from fulfilling its end. The only exception to this strict and rigorous rule of international jurisprudence is the case of ransom bills, and they are contracts of necessity, founded on a state of war, and engendered by its violence. 1 Kent 67-8. The same great jurist uses this language in Griswold v. Waddington, 16 John. R. 438. ‘ ‘There is no authority in law, whether that law be national, maritime or municipal, for any kind of private, voluntary, unlicensed business communication or intercourse with an enemy. It is all noxious, and in a greater or less degree is all criminal. Every attempt at drawing distinctions has failed; all kind of intercourse, except that which is hostile, or created by the mere exigency of the war and necessity of the case, is illegal. The law has put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without the special permission of the government. There is wisdom and policy, patriotism and safety in this principle, and every relaxation of it tends to corrupt the allegiance of the subject, and prolong the calamities of war. ’ ’ “The idea that any remission of money may be lawfully made to an enemy, is repugnant to the very rights of war, which require the subjects of one country to seize the effects of the subjects of the other. The property so remitted, if in cash or anj' tangible subject, would become a just cause of the seizure while on its passage. An alien enemy has no right of action during war, and he cannot sue, because it would be drawing ^resources out of the country, how then can it be lawful to make remittances to him? The law that forbids intercourse and trade must equally forbid remittances and payment.” See Halleck Int. Law, 356 et seq. ; note to Clementson v. Blessig & als., 11 Exch. R. 135; S. C. 32 Eng. L. & Eq. R. 544. In Willison v. Pattison & al., 7 Taunt. R. 439 ( 2 Eng. C. L. R. 176); S. C. 1 J. B. Moore 133 (which latter report of it I will cite, as it is much fuller a.nd better every way than the other), was an action of assumpsit on three bills of exchange accepted by the defendants and endorsed to the plaintiff. They both were drawn at Dunkirk in Erance by Michelon, a subject of Erance, resident there, payable to his own order three months after date upon the defendants, British subjects, resident in London, who were the holders of certain cambrics, shipped to them by Varlet of Dunkirk, and by him assigned to Michelon. The bills were accepted, payable when the cambrics should be sold, which were subsequently done. The bills were endorsed by Michelon, the drawer, to the plaintiff, an English born subject, then and still a resident of Dunkirk. At the time these bills were drawn, endorsed and accepted, Erance and England were at open war with each other. The action was brought after the return of peace, and the court held that it could not be maintained. Gibbs, C. J., thus states the propositions maintained by the respective counsel in the argument. “My brother Best has contended that all communication with an alien enemy, during war, must be prohibited, as the policy of law thereby secures this State from all dangers to be apprehended from a foreign country, and that in order to prevent all communication with a foreign enemy, he has insisted, that if subjects of a foreign State draw bills on persons in this country, and seek to enforce payment thereon, the mischief is incurred. He has further insisted that this was a direct trading. This, however, my brother Lews has denied, and contended that the mere drawing or endorsing bills is not such a communication, with an enemy as is contravened b3r the general policy of law.” And the Chief Justice, in giving the reasons of his judgment, said: 1 ‘It is illegal for an alien, in an enemy’s country, during war, to draw a bill on a subject resident in this, and then sue him here for the amount of such bill, on the restoration of peace. It gives rise to a communication between subjects of both countries, which ought to be avoided. The drawing and accepting these bills are in themselves illegal.” Park, J., after quoting the rule ex natura belli commercia inter hostes cessare non est dubitandum, adds: “Although the evidence of trading is not con-155elusive, it is still a trading.” * * * “Though the plaintiff might be in ignorance of the circumstances attending these bills, still he receives them from the drawer, and must, therefore, be fully aware that they were a species of contract, originating with an alien enemy.” Burrough, J., said: “It was the object of the drawer in the present case, wrho was an alien, to obtain money from the acceptors, who were residents in this country. The drawer having assigned [consigned?] the cambrics to the acceptor for sale, is entitled to the money arising on the bills. Can it be contended, that if the cambrics had been sold, Michelon could have maintained an action for money had and received? If not he could by no device obtain it from this country. If, therefore, the action for money had and received could not be maintained by Michelon, being an alien enemy, can he possibly transfer his interest to another, which interest will ultimately revert to his benefit. In Willison v. Pattison there was an actual communication had and a contract directly made, between subjects of the hostile powers, inasmuch as the bill was sent over from France to England for acceptance, and was accepted. But it is not necessary that any such actual communication should take place, in order to vitiate the contract of the drawer or endorser of a bill. When a man draws a bill upon another and negotiates it, he, in substance and fact, dispatches a communication to him, directing him to pay the money to the owner of the bill. The drawing and negotiation of the bill have a direct tendency to bring about actual intercourse and communication, because the bill cannot otherwise perform its office. And, upon general principles, any contract is unlawful, which has a tendency to promote and encourage the doing of an act which the law condemns and forbids, whether, in any particular case, the act be really done or not. Upon this ground the vice attaches to the drawing and negotiation of the bill. The other ground of decision stated by Burrough, J., namely, that the bill is an attempt by the drawer to transfer to another a right to demand and receive monej' which he could not lawfully demand himself, leads to the same result. Obviously, if the drawer may lawfully draw for his funds in the hands of the drawee, the drawee may lawfully pay the drafts, or remit the funds. But, as we have seen, the payment or remittance of money by a subject or citizen of one belligerent to a subject or citizen of the other, during war, is unlawful. Griswold v. Waddington, supra. But it was contended, with great earnestness and ability, by the counsel for the plaintiff, that the rights of the parties in this case must be determined with reference to the municipal law alone; that the late conflict between the United States and the Confederate States was not a war in the legal sense, and did not produce the effects of a war upon the rights and relations of citizens ; that on the part of the Confederate States it was nothing more than an insurrection or rebellion against the lawful authority of the United States, and on the part of the United States was only an exertion of force to suppress the insurrection; and that the principles of international law, applicable to a war inter gentes, cannot properly be resorted to for the determination of any question between citizens arising out of that conflict or affected by it. It was further argued, that the only restriction upon intercourse during the war was that imposed by the act of congress of July 13, 1861, and the proclamation of August 16, 1861, which was merely a suspension for a time of the right of free intercourse guaranteed by the constitution; and that the existence of the conflict between the government and the insurgents, and the suspension of intercourse during its existence, did not deprive any citizen of the right to draw a bill of exchange upon another citizen, or any other citizen of the right to purchase such a bill, even though the drawer and drawee were on opposite sides of the conflict, such acts not involving any actual locomotive intercourse, which would alone violate the prohibition against intercourse; and that, in order to defeat a recovery in this case, it was incumbent on the defendants to establish that there has been a violation of that prohibition. I shall not enter upon a discussion of the theory-and principles of the constitution of the United States, or of the respective rights and powers of the Federal and State governments, for the purpose of determining the political and constitutional character and consequences of the late unhappy conflict. Fortunately, such a discussion is not necessary. The principles of law which are to be applied to the solution of the question now before us, seems to me to have been fully settled bjr the Supreme court of the United States. I do not think it necessary to cite the decisions of any inferior tribunal, and shall cite only a few cases in the Supreme court. The subject of the late war first came before the Supreme court in The Prize Cases, 2 Black. U. S. R. 63S, decided at December term 1862. These cases involved the validity of certain captures for breach of the blockade established by president Eincoln in April 1861, at a time when no legislation had been had by congress in reference to the war. Four vessels were involved, two of which belonged to neutrals, and two to citizens of Richmond, Virginia. Two questions were discussed and decided by the court: 1. Had the president a right to institute a blockade of ports in the possession of persons in armed rebellion against the government, on the principles of international law? 2. Was the property of persons domiciled or residing within the States in rebellion, a proper subject of capture on the sea as “enemies’ property?” The court, after observing that the right of prize and capture depended on the jus 156belli, proceeded to enquire whether, at the time the blockade was instituted, a state of war existed between the United States and the insurgents. If these relations, existing under the-constitution, between the government and the insurgents, had the effect of rendering it impossible that a conflict between them could be a war, in the legal sense, and of restricting the government to the use of means provided by the municipal law for the suppression of an insurrection, then the blockade was not lawfully instituted. In order, therefore, to determine the validity of the blockade, it was necessary to determine what was the legal character of the relations existing between the parties to the conflict. The following extracts -from the opinion will exhibit the views of the court: “The parties belligerent in a public war are independent nations. But ib is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign States. 'A war may exist when one of the belligerents claims sovereign rights as against the other. ” “A civil war,” says Vattel, “breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each' other as enemies, and acknowledge no common judge. These two parties therefore must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.” “The true test of the existence of civil war, as found in the writings of the sages of the common law, may be thus summarily stated. When the regular course of justice is interrupted by revolt, rebellion or insurrection, so that "the courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land.” “It .is not the less a civil war with belligerent parties in hostile array, because it may be called an insurrection by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order .to constitute it a party belligerent in a war according to the law of nations. ’ ’ “The law of nations is also called the law of nature, it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this court are now for the first time desired to pronounce, to wit, that insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are traitors, and [that] a war levied on the government by traitors, in order to dismember and destroy it, is not a war, because it is an insurrection.” Pursuing these views, and others which need not be adverted to, the court held that there existed between the government of the United States and the insurgents a state of civil war, in the sense of the international law, which brought with it the common incidents of war, and among them the right to institute a blockade. The views of the court upon the second question will appear from the following extracts: “The appellants contend that the term ‘enemy’ is properly applicable to those only who are subjects or citizens of a foreign State, at war with our own.”- * * * “They contend also that insurrection is the act of individuals, and not of a government or sovereignty; that the individuals engaged are subjects of law; that confiscation of their property can be effected only under a municipal law; that by the law of the land, such confiscation cannot talie place without the conviction of the owner of some offence; and finally, that the secession ordinances are nullities, and ineffectual to release any citizen from his allegiance to the national government, and consequently that the constitution and laws of the United States are still operative over persons in all the States for punishment as well as protection.” The court proceeded to show, that the cairn of sovereignty on the part of the United States, did not prevent the exercise of belligerent rights- or the existence of belligerent relations, and added: “All persons who reside within [the insurgent] territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their government, and are none the less enemies because they are traitors.” The four dissenting judges held, that war, in the legal sense, did not exist at the time the blockade was instituted, because it had not been declared by congress. They held that prior to the act of congress of July 13, 1861f the president could only exercise the powers given to him by the municipal law, his operations being limited to the suppression of an insurrection, but that congress could bring into operation the war power, and thus change the nature and character of the contest; and that, after such action by congress, instead of being carried on under the municipal law, it would be carried on under the law of nations and the acts of congress as war measures, with all the rights of war; p. 592. They not only held that such a contest, after the action of congress, would give to the government the rights of war under the international law, but that it would likewise be attended with the consequences of war in respect to the rights and relations of citizens; pp. 688, 693. On p. 687, the conse157quence of a state of war, according to the international law, are stated. They are referred to as consequences which must result from regarding the pending conflict as a civil war. The Judge says: “The people of the two countries become immediately the enemies of each other; all intercourse, commercial or otherwise, unlawful; all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemies’ property, the drawing of bills of exchange, or the purchase [of bills] on the enemy’s country; the remission of bills or money to it, are illegal and void. Existing partnerships between citizens or subjects of the two countries are dissolved, and, in fine, interdiction of trade and intercourse direct or indirect is absolute and complete, by the mere force and effect of war itself.” The only point upon which the minority differed from the majority was, in respect to the time at which the conflict assumed the character of a war, in the legal sense. The 'majority held, that the conflict had become a war by the mere course of events, and without any action by congress, while the minority held, that the action of congress was indispensable to give it that character. But there was no difference of opinion in respect to the legal consequences resulting from the state of war, whenever the conflict assumed that character. In The Venice, 2 Wall. U. S. R. 2S8, the court says: 1 ‘While these transactions were in progress, the war was flagrant. The States of Uouisiana and Mississippi were wholly under rebel dominion, and all the people of each State were enemies of the United States. The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government, and of all the citizens or subjects of the other, applies equally to civil and to international wars. ’ ’ This relation of mutual enmity is one of the fundamental conditions of a state of war. It is part of a system of rules for the government of men in a state of war, which is founded in necessity, and which has been established by common consent throughout the world. That system, as we have seen, subjects individuals to restraints and disabilities in respect to their acts and contracts, which are unknown in time of peace. The relation of the citizens of the several States under the constitution, is that of friends; the relation between citizens on opposite sides in the late war, was that of enemies. The relations under the constitution were suspended, and superseded for the time, by new relations under the laws of war. And so the rights and privileges existing under the constitution in respect to intercourse and contracts, were displaced and superseded, for the time, by the restraints and disabilities which resulted from the state of war. In The Hampton, S Wall. U. S. R. 372, the vessel was captured in a creek in the State of Virginia, and was libelled and condemned as prize of war, upon the principles of the international law. Brinkley, a loyal citizen, appeared and claimed the vessel as mortgagee. The bona fides of the mortgage were not disputed, nor was it disputed that he was a loyal citizen. The precise offence for which the vessel was libelled is not stated in the report, but it was conceded that the vessel might have been condemned under the act of July 13, 1861. The offence, therefore, was one embraced by that act, which provides that goods, &c., coming from or going to a State in insurrection, by land or water, along with the vessel, &c., in which they are, shall be forfeited. It was held that the vessel was properly condemned under the international law, which was not superseded by the act of congress, and that notwithstanding the loyalty of the mortgagee, and the fairness of his debt, his right was forfeited upon the principles of international law, though it would have been saved if the condemnation had taken place under the act of congress. This case, therefore, decides, 1, That intercourse during the late war, was unlawful upon the principles of international law, and independently of the act of congress: And 2, That the effect of the international law was to override and extinguish the claim of a loyal citizen, under a bona fide mortgage. In The William Ragaley, 5 Wall. U. S. R. 377, Bragden, who claimed á share of the vessel and cargo, was a loyal citizen, resident in Indiana. At the breaking out of the war he was a member of a mercantile partnership in Mobile, which owned the vessel and cargo. He never aided the rebellion ; never, after the rebellion began, exercised any control or ownership over the ^'vessel or cargo; and had no connection with or knowledge of the unlawful voyage which occasioned the capture. In consequence of his loyalty to the United States, his interest in the partnership effects, had been confiscated by the Confederate government. His claim was rejected. The court held, among other things, that the effect of the war was to dissolve the partnership existing between the claimant and the parties in Mobile, and that it was his duty promptly to dispose of and withdraw his interest, and that by his failure to do so, his interest became liable to be treated as enemy’s property. These propositions were based exclusively on the principles applicable to international laws. The court further recognized the principle, applicable to war inter gentes, that an ex-ecutory contract with a citizen or subject of the enemy, if it cannot be performed except in the way of commercial intercourse with the enemy, is ipso facto dissolved, as equally applicable to the late civil war. In Hanger v. Abbott, 6 Wall. U. S. R. 532, the principle of law applicable to a state of war inter gentes were applied to the late civil war, to determine whether the statute of limitations of Arkansas ran, during the war, against a cause of action held 158at the commencement of the war, by citizens of New Hampshire against a citizen of Arkansas. In the opinion of the court, the ordinary consequences of a war inter gentes; the prohibition of intercourse; the dissolution of partnerships; the prohibition of contracts made during the war, and the suspension or dissolution of contracts made before the war; the right to confiscate debts due to citizens or subjects of the enemy; the suspension of the remedy for the recovery of debts, and the restoration of the remedy upon the return of peace,; were fully stated, and were recognized as equally applicable to the late civil war. It was accordingly held, that the act of limitations did not run during the war. And this decision was placed exclusively upon the principles of international law applicable to a state of war ínter gentes. These decisions of the Supreme court settle beyond question that the late conflict between the United States and the Confederate States was a war, in the legal sense, with all the incidents and consequences of a war, as they are known to the international law;. that accordingly all the citizens on one side were enemies of all the citizens on the other, and that all commercial or other pacific intercourse or communication between them, unless specially authorized, was unlawful, to the same extent and for the same reasons as in a war inter gentes, and that in order to determine how the contracts of individual citizens were affected by the late war, recourse must be had to the general principles applicable to a state of war, as they are found in the international code. This doctrine by no means involves a recognition of the Confederate States as a political sovereignty. The concession by the government of belligerent rights to the Confederate States, and the application by the courts of the general laws of war, to the determination of questions arising out of the conflict, only recognize the existence of a conflict of such magnitude, and with such an array of strength, that it could not be dealt with otherwise than as a war; they involve no concession of political rights to the association of States which carried on the conflict. Nor does the fact that Louisiana was one of the Confederate States, and that the city of New Orleans was to the last claimed by the Confederate States as belonging to them, afford any ground for refusing to apply the law of war to this case. The checks were drawn and endorsed after the city of New Orleans had passed under the permanent dominion and control of the United States. Its relation to the Confederate States, which were only a government de facto, and whose authority was therefore dependent upon the exercise of power, and not upon the existence of right, were thus broken up and destroyed. From that time we must regard New Orleans as belonging to the Federal side of the conflict, and its citizens as enemies of the citizens of the other belligerent. 6 Wallace S21, and cases cited. Nor does it make any difference that the • plaintiff and defendants were all of them citizens of the Confederate States, if, as claimed by the defendants, the contract between them was in violation of the common law of the civilized world. I do not think it necessary to consider whether, as contended by the counsel for the plaintiff, the act of congress of July 13, 1861, and the proclamations of the president in pursuance of it, prohibiting commercial intercourse, were a law to the parties to this suit at the date of their contract, all of whom were then citizens and residents of the Confederate States. If they were, it would not follow, as contended by the counsel, that actual locomotive intercourse was necessary in order to affect the contract between these parties. Such actual locomotive intercourse, accomplished or attempted, would, doubtless, be necessary, as under the general law of war, to subject property to forfeiture. But the prohibition of intercourse, thus made by congress, must be construed with reference to the object it was designed to effect, and so enforced as to accomplish the policy on which it was founded. It was obviously dictated by the same policy, and designed to effect the same ends, as the like prohibition in the international law, and any contract which would be regarded as a violation of the one, ought to be regarded as a violation of the other. But even if this act of congress did not operate as a law to the parties to this suit, at the date of their contract, I apprehend that no court of the United States, or of a State, should lend its aid for the enforcement of a contract made in violation of the policy of that act. This court must deal with this case just as a court of the United States would deal with it.* 159The argument that Billgerry had a right, which was guaranteed to him by the constitution, to go to New Orleans at his pleasure, which was only suspended by the war, seems to me to have no force. The suspension was accompanied by an absolute interdict of all commercial intercourse in the meantime, and a consequent disability to enforce any contract made during the war, which tended to produce a violation of that interdict. The interdict was as absolute while it lasted, and as fatal to all contracts in violation of its policy, as if it had been perpetual, or as if there had been no such general right of intercourse under the constitution. It was argued too, that Billgerry might have intended to keep these checks, until it should become lawful to present them for payment, and that the court ought rather to presume a lawful than an unlawful intent. 1 doubt whether a party who makes a contract during war, which, upon its face, and according to the usual intent and import of such contracts, is a violation of the policy of non-intercourse, ought to be allowed to say that he did not design any such violation. It would be difficult to determine whether such an averment was founded in truth, and to permit such defences to be alleged, would cripple the efficiency of the rule, which, we are told, admits no exceptions (6 Wallace R. 535), and which declares “a strict and rigorous” policy, which no artifice is permitted to evade. But what are the facts? Billgerry parted with his money to Branch & Sons, in February 1863. He would necessarily lose interest until he could collect the money on the checks. He has been examined as a witness, as have also the only two of the defendants who were cognizant of the transaction. Neither of them testifies that there was any understanding or expectation that the presentment of the checks would be withheld, much less any contract that they should be withheld, until it should be lawful to present them. On the contrarj', John R. Branch, who conducted the transaction with Billgerry, shows his understanding and expectation, When he says, that he ‘‘judgedBilgerry to be a blockade runner.” And not only does Billgerry nowhere say that there was any understanding with Branch, or any intention on his own part, that presentment would be delayed, but he admits, that after he bought the checks, he tried to find somebody by whom he could send them to New Orleans for collection, but could not. The checks indeed seem to have remained in Virginia from August, 1862, when they were drawn, to February 1863, when they were sold to Billgerry. But that fact throws no light on the contract between Billgerry and Branch & Sons. It may be accounted for by supposing, that nobody had been found, in that interval, who wanted funds on New Orleans, -or who would pay enough for them. When we remember how much activity and enterprise were displayed during the war, in “running the blockade,” and the large profits that were made by it, we should require pretty strong proof to convince us, that a party who drew a sight draft on a point where Federal money was to be had, contemplated that it would be withheld from presentment for an indefinite period of the war, or that a party who laid out a large sum in the purchases of such a draft, intended so to withhold it. _ It follows, from these views, that, upon the evidence, the judgment was properly rendered for the defendants. They also show that the demurrers to the special counts were properly sustained. Each of those counts sets out the drawing of a check by a bank in Richmond upon a bank in New Orleans, and the endorsement of the check by the defendants to the plaintiff, at periods when we know that the war was flagrant, and all commercial and other intercourse beteen Richmond and New Orleans were unlawful. But even if the contract could be held valid, there is another ground which is fatal to the case of the plaintiff, both upon the pleadings and the evidence. In order to charge the defendants as endorsers, it was necessary that the checks should be presented to the Canal bank and payment thereof demanded, and, in case of dishonor, that due notice thereof should be given to the defendants. The only presentment and demand set out in the pleadings or proved by the evidence, were made on the 27th day of October 1863, when all commercial intercourse between Vicksburg, where the plaintiff resided, and New Orleans, where the checks were payable, was unlawful. By the proclamation of the president, dated August 16, 1861, prohibiting intercourse with the States in rebellion, an exception was made of “such parts of States as may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgents.” This exception is set out in the amended declaration, and was relied on in the argument as authorizing Billgerry to go to New Orleans after the fall of Vicksburg. But this exception was repealed by the proclamation of April 2, 1863. That proclamation declared the same States to be in insurrection, and revoked all the exceptions made in the former proclamation, but again made certain local exceptions, of which “the port of New Orleans” was one. This proclamation declares “that all commercial intercourse not licensed and conducted as is provided in said act, between the said States and the inhabitants thereof, with the exceptions aforesaid, is unlawful, and will remain unlawful until such insurrection shall cease, or has been suppressed, and notice thereof has been given by proclamation.” Vicksburg was not excepted from the operation of this proclamation, so that commercial intercourse, except with the license of the president, between Vicksburg and New Orleans was unlawful at the time at which presentment of these checks was made. The license given to Billgerry 160by the military authorities was a nullit3T. The Ouachita Cotton, 6 Wall. U. S. R. 521. The demand of payment therefore which was made, was one which the plaintiff could not lawfully make, and which the Canal Bank could not lawfully comply with. A demand to charg-e the endorsers should have been one which the bank might lawfully have complied with. In respect to the question of notice of dishonor very little need be said. To give any effect to the notice deposited in the postoffi.ce in New Orleans in October 1863, it should at least have been shown that the law, or a general usage, required that the letter containing the notice should be preserved by the postmaster until the restoration of intercourse, and then forwarded to its destination. In the absence of such proof, the deposit of a notice in the postoffice at New Orleans, addressed to Petersburg in the midst of the war, was of no avail. It is not necessary to express an opinion as to whether the evidence is sufficient to prove that due notice was given to the defendants after the close of the war. Upon the whole, I am of opinion that the judgment ought to be affirmed. MONCURE, P., concurred in the opinion of Joynes, J. Judgment affirmed. Substantially the same cuestión involved in this case was decided by Chief Justice Chase in the Circuit court at Richmond, June 1868, in the case of Moon & Bro. v. Foster & Moon, of which I have obtained an authentic account since this opinion was delivered. The action was brought to recover the amount of certain negotiable notes. The defendants pleaded payment, and accord and satisfaction, and to sustain their defence, gave in evidence a draft drawn by the Bank of North Carolina atits branch in Winslow, in that State, on the branch of the Bank of Virginia at Portsmouth, bearing date the 10th day of December 1862, which draft, it was contended, was delivered by the defendants to the plaintiffs, and accepted by them in payment of the debt. At the date of the draft, Portsmouth was in the permanent occupation and control of the forces of the United States; but the condition of Winslow, in that respect, was a subject of dispute. The Chief Justice instructed the jury, “that if they should find that Winslow was not, at the time of the making and issuing of the draft, in the occupation or control of the national forces, then the draft in controversy being an act of prohibited commercial intercourse, was not valid negotiable paper.” Whether Winslow was so occupied or controlled he left to the jury.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481721/	The other judges concurred in the opinion of Joynes, J. The decree in the first two causes was as follows: The court is of opinion, for reasons stated in writing, and filed with the record, that the said Circuit court, instead of proceeding to make a decree upon the merits of the said first mentioned cause of Corbin v. Mills’ ex’ors & als., should have required the plaintiff to amend his bill, so as to make Charles Y. Morris and Thomas Bradford, and the purchasers of the Leigh street lot, parties defendant; and after the said parties had been brought before the court, should have allowed all the parties to take new evidence, and should, if the state of evidence made it proper, have directed an enquiry by a commissioner to ascertain w'hat was the true value of the Leigh street lot at the time of the sale thereof by the executors, and what was the average value of said property, in fee simple, in ordinary times, before the commencement of the late war; and also to ascertain what was the value of Confederate treasury notes, as compared with specie, at the several dates at which the executors received from Charles Y. Morris and Thomas Bradford payments in said notes on account of the principal money due from them respectively to the testator at the time of his death; and to what extent said treasury notes were at said several times available, according to the common usages of business in ^Richmond, for the payment of debts payable in specie, and well secured on real estate, or for the purchase of property or otherwise. The court is further of opinion that, according to the true construction of the fourth clause of the will of Nicholas Mills, deceased, the bequest therein of the several sums of $1,080, $450 and $540 per annum to Sarah Ann Robinson for life, were not specific legacies of the interest, payable on certain debts, but were demonstrative legacies; that is to say, they were general legacies, payable out of the general assets, but with an appropriation of certain subjects as the primary fund for their satisfaction ; and that the bequest of the several sums of $18,000, $7,500 and $9,000, after the death of said Sarah Ann Robinson, were in like manner demonstrative and not specific legacies. The court is further of opinion that the bequest, after the death of the said Sarah Ann Robinson, of $5,000 in Virginia State stock is a general legacy of bonds or certificates of debt of the State of Virginia, of the nominal amount of $5,000 on their face, and that the bequest of $300 per annum to said Sarah Ann Robinson for life, is a bequest of the interest payable on said $5,000 of bonds or certificates, and that in case of any failure of the State to pay interest on said bonds or certificates, the said annual sum of $300 is not to be made up out of the general assets. The court is further of opinion that the children of Sarah Ann Robinson, who were living at the death of the testator, took immediate vested interests in remainder, after the death of the said Sarah Ann Robinson, in the property mentioned in said clause; and that the share thereof, which so vested in Nannie M. Robinson, who intermarried with Edward T. Robinson, passed on her death to her said husband surviving, as her administrator. Therefore, it is decreed and ordered, that the decree in each of these causes be reversed and annulled, and that the appellants, in the first of the said causes, do pay unto the appellees therein, respectively, their costs by them expended in the cause; and that the executors of Nicholas Mills, deceased, out of the assets in their hands, pay to the appellant in the second cause his costs expended in the prosecution of the appeal here. And it is ordered that these causes be remanded to the said 'Circuit court for further proceedings, in accordance to the foregoing opinion and decree. The decree in the third cause was as follows : The court is of opinion that, while the court will take judicial notice of the fact, that on the thirtieth dajr of April 1863, the date of the transaction which is the subject of controversy in this cause, the treasury notes of the United States, and also the treasury notes of the Confederate States, were greatly depreciated in value, as compared with specie, it is not competent for the court to take judicial notice of the rate of depreciation of either currency at any particular time, nor of the extent to which, at any particular time, the treasury notes of the Confederate States were available, according to the common usages of business, for the payment of debts contracted before the war and payable in specie, or in current money of the United States, or for the purchase of property or otherwise. The court is further of opinion, that inasmuch as the record in this cause contains no evidence upon these points, or either of them, it does not contain sufficient materials to enable the court to make a proper decision upon the questions in controversy. The court is therefore of opinion that the said Circuit court, instead of proceeding to make a decree upon the merits of the controversy in the existing state of the record, should have directed an enquiry by a commissioner, to ascertain what was, on the thirtieth day of April 1863, the value, as compared with specie, of the treasury notes 174of the United States, and also of the treasury notes of *the Confederate States, and to what extent, at that time, the treasury notes of the Confederate States were, according to the common usages of business in Richmond, available for the payment of debts contracted before the war and payable in specie or in current money of the United States, and well secured on real estate, or for the purchase of property or otherwise, with leave to any of the parties to file additional evidence, as they may be advised, upon any matter involved in the cause, and that the' said decree is therefore erroneous. Therefore, it is decreed and ordered that the said decree be reversed and annulled, and that the appellees, the executors of Nicholas Mills, dec’d, out of the assets in their hands, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And the cause is remanded to the said Circuit court for further proceedings to be had therein, in conformity with the foregoing opinion and decree. Decrees reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481722/	WIBBOUGHBY, J. Tne statute of Virginia prescribes (Acts of 1866-7, chapter 75,) that “every deed of trust convej'ing real estate or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable '^consideration without notice, until and except from the time that it is duly committed to record in the county or corporation wherein the 200property embraced in such contract or deed may be.” This statute must control the decision of this case; for although the deed in controversy was executed in New York by parties residing there, there being no evidence of any difference between the law of New York and our own, the law is presumed to be the same as here. If this is a deed .of trust contemplated by the statute, conve3ring the goods and chattels attached by creditors, it is, by the terms of such statute, void as to such creditors, until the time it is duly admitted to record as prescribed.■ The first question suggested is, whether the deed in this case is one contemplated by the statute. It differs from many deeds of trust, in the fact, that it required the trustees to take possession forthwith of the property conveyed. One object of requiring deeds of trust to be recorded, no doubt, is to preclude the danger that otherwise might exist, that third persons might be led to trust and deal with the party in possession as if he were the real owner, when, in fact, there is a deed in existence showing that he was not. But I think we cannot say, especially where a statute is so broad and imperative as this, that it is the only object. It applies to all creditors, whether they have notice or not; 4 Rand. 208; and whether the credit was obtained on the fact of such possession or not. It is true, that in most of the States it has been held that possession of goods thus transferred is equivalent to a record of the deed; but this may be, because either that their statutes permit this to be so, or because such possession gives notice to creditors as well as others of such transfer; neither of which reasons is applicable here. It is urged that an assignment might have been made of these goods and chattels by writing without seal; that if it had been so made it would not have been required to be recorded because not a deed, and there can be no reason why the mere addition of a seal should render it necessary to have it recorded. Whether it would be required that an assignment without seal should be recorded it seems to me hardly necessary to enquire. The case before us is that of a deed. That and that only is the foundation of the appellant’s claim. The statute says that a deed, to have effect against creditors, must be recorded. If the parties had elected to make a mere assignment instead of a deed, we might have had a different question. I do not see how the argument can have any force, except to show that no deed of trust conveying goods and chattels need, be recorded, notwithstanding the statute, for the same thing may be accomplished by a mere assignment of goods and chattels, or a transfer without seal, as by a deed, in almost any case. In Clark v. Ward & others, 12 Gratt. 440, a deed similar to this was executed, which was recorded; but a. question was made as to the sufficiency of the acknowledgment to allow it to be recorded. The trustees had taken possession of the goods, had held possession for several months, and had partially executed their trust, when an attachment was levied upon them. This court, without passing upon the question of the sufficiency of the certificate, held—“As it appeared from the evidence, that the execution of said deed was accompanied, or in good faith soon followed, by a delivery of the personal property in said deed mentioned, there was a complete and valid transfer of said property to the trustees, and that the recording of the deed was in no wise essential to the protection of said property against the demands of creditors who had not ’'acquired liens upon the same before the said transfer was consummated.” It is easy to imagine cases in which it would work manifest injustice, and be against the policy of the statute, to insist upon its interpretation according to its strict letter. This is so with almost any statute. It may be supposed that a storehouse full of different articles, may have been, under such a deed, taken possession of by the trustees, and have been sold to a great many different purchasers, and have passed through the hands of several bona fide purchasers, and have been scattered far and wide; that such trustees have fully completed their trust, and years have elapsed since the execution of the deed, the creditors all the time making no opposition to their proceedings. Such a case might show us the propriety of construing such a statute according to its spirit and policy rather than to insist upon its strict letter. But the fact that under such circumstances a deed might not be required, I do not think would compel us to hold that where no actual possession had taken place, when there is no possession except what might be regarded a technical possession gained by a delivery of this very deed, where nothing whatever had been done under it, and the rights of no third party could be affected thereby, in the face of this statute no record would 'be required. Now, in the case of Clark v. Ward, although the circumstances were not as extreme as the case supposed, yet the reasons for varying from the letter of the statute were much stronger than in the case at bar. I do not think that it, as a precedent, requires us to deviate from the letter in this case. It cannot be denied that the principle of such decision as there stated, logically carried out, without reference to the facts of the case before the court very strongly supports the position of the appellants; but the fact that the court went beyond the letter to a certain extent, does not, I think, require us to go a good deal farther than they did in the same direction. There is a limit beyond which, even elastic substances ought not to be extended; and it seems to me a statute so 201inflexible as this, was sufficiently extended in that case. Suppose that it be admitted that actual possession and other circumstances sufficient to show a sale and delivery of the goods assigned, will be sufficient as against creditors. And perhaps it may be that the principle of the case of Clark v. Ward, was, that circumstances such as possession and a partial action on the part of the trustee with the acquiescence of the assignor were sufficient to consummate a transfer of the title which ought not to be avoided because there was also a void deed; yet, even this would not sustain the claim of the appellants in this case. There is nothing on which to stand except this deed. Even the technical possession which they may claim is founded upon this deed and upon this alone. Nor can I see upon what principle it can be held, that because the trustee is required to take possession forthwith, the deed need not be recorded. It would have been the duty of the trustee to take immediate possession if this provision had not been inserted. If these views be correct, it may be admitted that there was no negligence on the part of the trustee in taking possession, and that he had sufficient excuse for not taking actual possession. The want of diligence on his part might have been a circumstance to show a fraud as against creditors; but it is not on the ground of fraud that this deed is sought to be impeached. The circumstances of this case, no doubt, do show sufficient diligence on his part, and a sufficient excuse for his not taking actual possession forthwith, and the utmost good faith on the part of all the parties to the deed. Were these the questions in the case, they would very likely be decided in his favor. But the question is, should this deed, to be valid as against the creditors, have been recorded? Even if it be admitted that he had the technical possession by a delivery of the deed to him, whilst such a possession might do away with the prima facie presumption of fraud, it would not help him upon this question. All these circumstances would not make a case nearly as strong as those of Clark v. Ward, upon which such reliance is placed by the appellants. The cases of Wilt v. Franklin, 1 Binn. R. 502; Gibson v. Stevens, 8 How. U. S. R. 384; and other cases to the samé effect, cited by the counsel for appellants, present the questions rather of diligence and good faith, and were decided upon the ground that there was sufficient evidence of both in those cases to do away with the presumption of fraud. As this is not the question before us, I do not think that those cases are applicable to this enquiry. Another view of this case was very ingeniously taken and very elaborately argued by the counsel for appellants. It was urged that the goods having been consigned to commission merchants under a contract on their part to sell the same and account to the consignors for the proceeds, such consignors had an election either to demand that the consignees fulfil such contract and render such account, or to consider the goods as their own subject to the lien of the consignees for advances, commission, &c. ; that if they elected the former, they had merely a chose in action against such consignees, which does not come within the definition of goods and chattels according to the statute; and that the creditors had no right, by a levy of an attachment upon these goods, to deprive the consignors or their trustee of such right of election. There is no evidence in the case that any such right of election, if it existed, had been exercised before the levy of the attachment, or at least that it had been determined to consider the claims upon the consignees as merely a chose in action. On the contrary, the evidence tends to show that this was not the case. The affidavit of Thomas Potts is, that such consignees had on hand the said property “belonging to Halsted & Putnam,” the consignors. But it was claimed that the petitioner had the right, which had passed to him by the assignment or deed, to make such election even after the levy of the attachment, and that he could not be deprived of such right of election by such attachment. Now without passing upon the question whether a chose in action comes within the meaning of the terms goods and chattels, according to the statute, let us examine the situation of the property levied upon by the attachment, which certainly were goods and chattels, and the relation of the parties to the property. So far as they were concerned, the deed not having been recorded, no title passed by such deed as against the creditors, to the trustee, at the time of the attachment. Whatever title the grantors had to these goods and chattels still remained in them; and the nature of such title depended upon the understanding or contract between them and the compission merchants. Now what is the general understanding when goods are consigned to commission merchants, to be sold and an account to be rendered of the proceeds? Is it not plainly that no title passes so long as they remain in the hands of such merchants? Such merchants act as agents with power to sell the goods and transfer the title of the owner. Even if this relation is such that they are bound to make such sale, this does not transfer to them the legal title to the goods. Nobody would think of undertaking to hold such goods as the property of the commission merchants while in this condition. I think it very plain, therefore, that at the time of the levy of the attachment the legal title to these goods was, so far as the creditor is concerned, in the consignor. It seems to me too very doubtful whether under such circumstances the consignors had a right to elect to consider the goods as belonging to the consignees 202without their consent, and to be in a position to claim that they account for the proceeds whether there is a sale or not. Even if'they had such right, it is very clear that the title to the goods would not pass, nor could • an action be maintained until such an election was made known to the commission merchants. And I think it equally clear, that before an action could be maintained, the merchants, after such election should be made known to them, have a reasonable time to make sale of the goods and account for the proceeds. But again: suppose, for the sake of the argument, that at the time of the levy of the attachment, the consignors had the peculiar position contended for. They then have the right, of course, to have the title of the goods in them of their own volition, even if it is not in them; and thereupon, upon paying the advances and commissions which may be a lien upon the property to take it into their possession. Even this right would amount, to say the least of it, to a special or qualified property in the goods, which I think, is clearly the subject of attachment. The officer acquires the right to transmit, first, the property he seizes, and has just such property in the goods as the debtor had. If the debtors had the right of election, then the officer seizes upon and acquires this right, and stands in their places, and can assert the right to elect to consider the goods as his property, .and to sell them subject to the lien, as he has done. In no possible aspect, it seems to me, can these goods be considered to be in such a situation as to deprive creditors of the right of levying upon them by attachment; and I cannot see upon what principle it can be held, that because thereby the debtors may be deprived of some privileges that they may claim to have had concerning such property, this should deprive *the creditors of such right. The judgment of the court below should therefore be affirmed. DORMAN, J., concurred in affirming the judgment. Judgment affirmed:	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481723/	DORMAN, J., delivered the opinion of the court: On the application of James H. Devaughn, one of the heirs of William Devaughn, and one of the appellees in this cause, the County court of Alexandria county, under the ninth section of chapter 110, of the Code of 1860, appointed commissioners to assign to the appellant, her dower in the estate of which her husband, William Devaughn, died seized. Under this order of appointment, the commissioners set off to the appellant as such widow, four houses and lots in the city of ^Alexandria, which four houses and lots constituted exactly one third part of the appraised value of the whole estate, of which William Devaughn was seized at his death. To this report and assignment of dower by the commissioners, the appellant excepted in 204the said County court, on the grounds presented on page twelve of the printed record; which exceptions, at a subsequent term, the said court overruled, and confirmed the commissioner’s report and ordered it to be recorded. From this order of the County court, the appellant took an appeal to the Circuit court of Alexandria county, on the grounds stated on the third page of the printed record. After hearing the cause, the said Circuit court reversed and annulled in part, the order of the County court, and proceeded to make another assignment in part, giving the widow the mansion house in lieu of two houses and lots assigned to her by the commissioners under the order of the County court. From this judgment of the said Circuit court, the appellees took their appeal to the District court for the fifth district; which judgment of the Circuit court' the District court reversed and annulled, and affirmed the judgment of the County court, and the assignment of dower made by the commissioners under its order. By appeal from this judgment of the District court, the case is brought to this court, and, in the printed statement, the following grounds of appeal and error are assigned: First. The order of the County court was not the judgment of a court of competent jurisdiction. Second. The order of the County court, appointing the commissioners and the report of the commissioners are defective on their face and therefore invalid. Third. The County court erred in not assigning the widow the mansion house. In determining the validity of the first ground of alleged error, it becomes necessary to enquire into the '^jurisdiction of the County courts in this State. In examining the judiciary system of Virginia, it at once becomes apparent, that from its earliest history, the County court was an especial favorite of the people, and their legislators invested it with the most extensive powers. In the minds of the people, it early became identified with their highest interests. It was ' esteemed a sort of palladium of their liberties; a tower of safety for the deposit of their most sacred rights; and was endeared to them by association with the proudest names in their history, names familiar to' them, and in honoring whom the nation exalted itself. Hence, as early as 1792, an act passed the general assembly, “reducing into one, the several acts concerning the County and other inferior courts of this Commonwealth.” The extent of the powers thus conferred is fully presented in that act, the fifth section of which, reads: “The justices of any such court, or any four of them as aforesaid, shall and may take cognizance of, and are hereby declared to have power, authority and jurisdiction, to hear and determine all causes whatsoever now depending, or which shall hereafter be brought in any of the said courts at the common law or in chancery, within their respective counties or corporations, and all such other matters, as by any particular statute is, or shall be made cognizable therein;” and in the seventh section, the act further provides : ‘ ‘The said courts shall be held at their several respective places, in every' year, except as hereinafter excepted, for the trial of all presentments, criminal prosecutions, suits at common law and in chancery, when the sum exceeds twenty dollars or eight hundred pounds of tobacco, now depending, or which shall hereafter be brought in any of said courts.” In section five of the above named act, criminals of a specified class are exempted from trial before these courts. In the several Codes of 1819, 1849 and 1860, even down to the acts of 1866-7, this same extended jurisdiction is continued and confirmed to the County' courts in all civil causes. So partial has the Virginia legislation been to this County court system, as to have made it the general depository, the fountain head of power, from which, from time to time, they have diverted some streams into other seemingly' less favored channels. And it is a noticeable fact, that in the last acts of 1866-7 the general assembly conferred upon the Circuit courts concurrent jurisdiction with the County and Corporation courts, “in all cases in chancery and all actions at law. ’ ’ From these numerous acts, thus continued from its existence as a State, it is apparent that the County courts of this State are courts of the most general jurisdiction in1 all civil causes; inferior only because their judgments can be reviewed by an appellate tribunal, and in no sense courts of special and limited powers, and wholly differing from the County courts of most of the States. From the earliest time to the present, they have been invested with the most extensive powers, such as are elsewhere conferred upon courts of Common pleas, Circuit and Chancery courts. See Harvey v. Tyler, 2 Wall. U. S. R. 328. I<n courts of general jurisdiction,, the rule of law is, “that every presumption, not inconsistent with the record, is to be indulged in favor of the jurisdiction.” But by the counsel of the appellant, it is urged that “the authority of the County court in this case is special 'and summary, and being ex parte, every fact essential to the exercise of its jurisdiction must appear' affirmatively upon the record.” The statute authorizes the assignment of dower to the widow by the heir, or by application to the court in which the will is admitted to record, to have the same assigned by .commissioners. The Countycourt has general jurisdiction over the probate of wills, and admits them to record. Though the power to appoint these commissioners for the assignment of dower was conferred by statute, yet the rule of law is still applicable. In the case of Harvey v. Taylor, the court declare, “in all those cases where the new powers thus conferred are to be brought into action, in the usual form of common law or chancery proceedings, we apprehend there can be little 205doubt that the same presumptions, as to the jurisdiction of the court and the conclusiveness of its action, will be made, as in cases falling more strictly within the usual powers of the court.” In the case of Voorhees v. The Bank of the United States, 10 Pet. U. S. R. 449, the validity of a sale of certain property in Ohio, under a foreign attachment was questioned, on the ground, that the record of the court, in which the attachment proceedings were, did not show, that the steps required by the statute prior to a sale, were taken. In that case the defendant was a non-resident. His land was levied on, condemned and sold, as far as it appeared by the record in the cause, without an affidavit, without notice by publication, without his being called at three different terms of the court, and without waiting twelve months from the execution of the writ before the sale; all of which were required by the statute authorizing the proceedings. In the absence of jurisdiction over the person of the defendant, the record did not show, that these important provisions for the protection of his rights were performed. Counsel contended, that all these requisitions of the statute must not only have been carried out before the court had power to order a sale of the property, attached, but that the record must show their performance. In reply to this position the court said, “The provisions of the law do not prescribe, what shall be deemed evidence that such acts have been done; or direct that their performance shall appear upon the record.” They proceed to state, “We do not think it necessary to examine in the attachment suit, for evidence that the acts alleged to have been omitted appear therein to have been done. Assuming the contrary to be the case, the merits of the present controversy, are narrowed to the single question, whether the omission invalidates the sale. The several courts of Common pleas of Ohio, at the time of these proceedings, were courts of general jurisdiction ; to which was added by the act of 1805, the power to issue writs of attachment, and order a sale of the property attached, on certain conditions; no objection, therefore, can be made to their jurisdiction over the case, the cause of action, or the property attached.” The court adds this general proposition: “There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears.” In the case of Grignon’s lessee v. Astor et als., 2 How. U. S. R. 319, the validity of a sale of land, under an order of the County court of Michigan, by an administrator for the payment of debts, was called in question. The court says, “After the court has passed upon the representation of the administrator, the law presumes, that it was accompanied by the certificate of the judge of probate, as that was requisite to the action of the court; their order of sale is evidence of that or any fact which was necessary to give them power to make it; and the same remark applies to the order to give notice to the parties. This is a familiar principle in ordinary adversary actions.”— “And the principle is of more universal application in proceedings in rem, after a final decree by a court of competent jurisdiction over the subject matter.”—“These principles are settled as to all courts of record, which have an original general jurisdiction over any particular subjects: they are not courts of special or limited jurisdiction ; they are not inferior courts in the technical sense of the term, because an appeal lies from their decisions. ’ ’ “These principles have been applied by this court to sales made under the decisions of Orphans courts; where they have power to judge of a matter of fact, they are not required to enter on record the evidence on which they decided that fact.” Such has been the uniform current of adjudications in the Supreme court of the United States, and, it is believed, those of most of the States have maintained the same doctrine. If such is the law of this State, it certainly determines the point taken by this exception. In the case of Fisher v. Bassett et al., 9 Leigh 119, Judge Tucker says: “The County court is a court of record, and its judgments or sentences cannot be questioned, collaterally, in other actions, provided it has jurisdiction of the cause. ’ ’ “And this is to be understood as having reference to jurisdiction of the subject matter; for though it may be, that the facts do not give jurisdiction over the particular cause, yet, if the jurisdiction extends over that class of cases, the judgments cannot be questioned, for then the question of jurisdiction enters into and becomes an essential part of the judgment of the court.” Judge Parker, in the same case, says: ‘ ‘The distinction between the acts of a court having jurisdiction over the subject matter under some circumstances, and those of one which, in no possible state of things can take jurisdiction over the subject, is a sound and sufficiently intelligible one to guide our judgments in the present case. If, under any circumstances, the Hustings court could grant administration to Scott, it had jurisdiction of the subject and must judge of those circumstances.” These opinions .of Judges Tucker and Parker are referred to by the court in a case, reported in 10th Grattan, and there approved and confirmed. In the statement of errors, we are referred, by the counsel for the appellant, to the case of Stevens v. Stevens, 3 Dana’s Ken. R. 371, as sustaining this exception. In reference to that case, it is sufficient to remark, that the rule of law, applicable to the County courts of Kentucky and to those of this State,, is totally different. It has been seen, that the latter are courts upon which have been conferred the most general powers, possessing all those usually given to courts of Common pleas, Circuit and Chancery courts. Whereas, the former have no general juris206diction, and merely a limited and special one. See 2 Wall. U. S. R. 328, 341; and all the authorities herein cited, show that adjudications as to courts of a general jurisdiction, are not applicable to courts possessed of only a special and limited one. As to the second ground of error assigned in the printed statement, so far as this exception relates to the defective order of the County court and the report of the commissioners, the adjudications above cited would seem to furnish a sufficient answer, even conceding the interpretation of that order claimed by the counsel for the appellant. On the strength of those authorities, it must be presumed, in the absence of all proof, that the real estate appraised and embraced in the report of the commissioners, was all the real estate of which William Devaughn died seized, and in which the widow was entitled to dower. It no where appears to have been otherwise. Till that is shown, the action of the County court must be held correct. In the exceptions filed in the court and which were overruled, there is not even a suggestion of there being other property, either within or beyond the limits of the county of Alexandria, of which the appellant was dowable. That there was none seems to have been admitted. It is certainly a fact, upon which the judgment of the court must have passed in appointing commissioners and confirming their report. By the counsel for the appellant, in his statement it is further urged under.this head that the commissioners assigned the dower in reference to fee simple value, and in entire disregard of the annual rental or productive value. That an. assignment of dower should be made in reference to the annual profits, no less than to the fee simple value, is a proposition well settled by repeated adjudications from the earliest times in this country and in England, and the rule has its foundation in the plainest principles of right and justice. The support of the widow in her station is the main purpose of the law, for which an income is requisite. Often the infant heirs need a like support. And the intent of the law manifestly is, that this division between the widow and heirs shall be based upon annual profits as well as value. It would be a dereliction in duty to act otherwise. How has this well settled and righteous principle of law application to the case at bar? Though alleged in the statement of the appellant’s counsel, it no where is shown or appears that the commissioners did disregard either the annual profits or the fee simple value in the assignment reported by them. In the exceptions to the report of the commissioners, filed by the appellant in the County court, this charge against the commissioners is not made or suggested, where, had it been made, the wrong, if done, could have been corrected. In the cases cited in his statement by the appellant’s counsel, it was agreed, or otherwise established, that the assignments of dower in those cases were made without reference to the annual profits, and were therefore unequal and oppressive on the widow or the heir. Here no such inequality is admitted or proved to exist; on the contrary, the reverse must be-presumed from the whole x'ecord and the judgment of the court. The thix'd and last ground of error presented in. the printed statement is, that “the County court erred in not assigning to the widow the mansion house.’’ Unless injustice will thereby be done to the heirs, it is usual to assign to the widow the home or residence of the deceased. In this practice, there is a manifest propriety, which commends itself to all. Why, in this case, the residence was not thus assigned to the appellant, does not appear. We are, however, authorized to conclude that there was a reason deemed by the commissioners and the court satisfactory. While such is the general practice in assigning to the widow her dower rights, we find no law by which she can claim the mansion house in all cases as a right; nor any adjudication,, unless given by statute, annulling an assignment of dower, otherwise proper and equitable, for the failure alone to .give to the widow the mansion house of the deceased. The reason for assigning as dower the mansion house in a city, is believed to be less potent than in the country, where this practice had its origin. In Park on Dower, page 254, the law is believed to be accurately stated thus: “that the heir is not compellable to assign unto his mother in dower the capital messuage which was his father’s or any part thereof, although she be dowable of the same. But he may assign unto her other lands and tenements of which she is dowable, in allowance of the capital messuage. See also Tucker’s Commentaries, Book 2, chap. 6, page 64. In the case of Jiggets v. Jiggets, cited by the counsel of the appellant from the 40 Miss. R. 718, it is asserted that prima facie it is her legal right. But on examining that case, it is found merely .to determine the principle, that if the mansion house be thus set off to the widow, when no injustice is done the heirs, there is no error in thus giving it to her. Certainly this decision furnishes no authority for annulling and setting aside an assignment, otherwise just and equitable to the widow and the heirs. But it would seem that the statute law of this State furnishes the law, and must determine our decision. After enacting in the first section of chapter 110 of the Code of 1860, “that the widow shall be endowed of one-third of all the real estate, whereof her husband, or any other for his use, was, at any time during the coverture, seized of an estate of inheritance, it proceeds, in the eighth section of the same chapter, to further provide, that “until her dower is assigned, the widow shall be entitled to demand of the heirs or devisees one-third part of the issues and profits of the other real estate, which was 207devised or descended to them, of which she is dowable; and in the meantime may hold, occupy and enjoy the mansion house and curtilage without charge.” Note.—After the opinion in this case was delivered and filed, the attention of the court, in a subsequent case, was called to the opinion in manuscript of Judge Joynes, in Ballard et al. v. Thomas & Ammon, in which the jurisdiction of County courts is determined. Had that case been before us, that portion of the foregoing opinion relating to the powers of the County courts would have been less elaborately presented, being res adjudicata. After dower is assigned to the wTidow, this statute seems clearly to exclude any right on her part to the exclusive use of the mansion house of her husband, unless the same be set off to her as a portion of her dower, and also all right on her part to have the same assigned to her as dower. Entertaining these views of the law applicable to this case, no error is found in the judgment of the District court, and the same must be affirmed with costs to the appellees. Order affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481724/	WIEBOTTGHBY, J., delivered the opinion of the court. The facts appearing to be material to the decision of the questions in this case appear to be in substance as follows: The appellants, as executors of the will of Eendall Griffin, deceased, sold at auction May 3d, 1866, certain real estate situated in Richmond, known as the Wall street hotel, to the appellee, who bid therefor the sum of $9,900. The appellee claiming to have been excited by stimulants, on reflection and examination of his condition, became immediately dissatisfied with his purchase, and asked to be released. This being refused, he employed counsel to examine the title, who, on said examination, discovered the following apparent defects: First. The property had originally belonged to one Wm. Cook, and from him descended to his heirs, and as one of said heirs, Martha E. Shore appeared to be the owner of one-sixth of the lot; and no record of an3* conveyance could be found from her to the testator. Second, John W. Shore, another heir of one-sixth, appeared by the records to have executed two deeds of trust to a trustee to secure the payment of certain debts to the testator, and subsequently conveyed the same interest to the testator in satisfaction of said debts; but the trustee had not joined in the conveyance, thus leaving the legal title to such other sixth in said trustee. Third. The will itself was claimed to be somewhat ambiguous in its terms, leaving 212the power of the executors to sell somewhat in doubt. In answer to these objections, it is claimed that the testator held the property adversely from 1846, for fifteen years, and thus had a perfect title, which could not be disturbed. It appeared that he improved the whole lot in 1846. On the 3d of November 1849, Martha E}. Shore seems, by writing filed in the cause, to have admitted that these improvements were made with her consent. Up to that time, at least, it appears that the possession of the testator was as a tenant in common with Martha E). Shore. By deed of May 20, 1848, said Martha 13. Shore had conveyed this one-sixth to a trustee, to secure the payment of $300 to the testator; and by deed of June 22, 1849, she had made a similar deed of trust to secure another sum of $300 to said testator. By deed of November 3, 1849, the same date of the writing relating to her consent to improvements, she conveyed other property absolutely to said testator; but no record could be found of an absolute deed of conveyance of this one-sixth. The appellee, on receiving notice of these apparent defects, notified the appellant that, in consequence thereof, he should not perform the contract; and thereupon a bill for specific performance was filed on the 21st of May 1866, accompanied by a tender of a deed of the propertj' by the executors. On the 27th of November 1866, a deposition of Joseph M. Marvin, the husband of said Martha 13. Shore, was taken, and he testified that a conveyance was made of this one-sixth interest to Mr. Griffin in the spring or summer of 1850. In his deposition he speaks of two notes of $300 each, and says they were settled by her selling her interest in the Wall street property to Mr. Griffin; and also her interest in all other property to which she had a right in Virginia. With this evidence before him, the commissioner, on the 20th of May 1867, reports that “it seems that the conveyance of which he speaks, from Martha EJ. Shore, was the deed of November 3, 1849, which does not embrace her interest in the Wall street hotel; and no other conveyance from her has been shown.” Rrom this it would appear that the commissioner, notwithstanding the evidence of Marvin, that such deed was made in 1850, believed from,the facts that “no such deed could be found, and that some other deeds were made a short time before that; he was mistaken as to the absolute conveyance having been made. I think that an inspection of the whole record will show that this conclusion of the commissioner was not an unreasonable one; but, on the contrary, would very naturally have been inferred. He also reports, that it does not clearly appear that Griffin had possession under color of title; nor that his possession was adverse or not the possession of his co-tenants ; nor that it was against parties who were under no disabilities; nor that it was sufficient in length of time, since the statute of limitations had commenced to run. This report was confirmed, and a decree rendered August 10, 1867, dismissing the bill. In November 1867, the executor of Rendall Griffin accidentally discovered a fee bill for recording a deed among the papers of Mr. Griffin, which led to a further search among the records; and thereupon an absolute deed of convejTance of the interest of Martha EJ. Shore in this property was found to have been made on the 28th of May 1850 to said Griffin. The failure to discover this deed appears to have arisen from the fact, that it was not found in the general index of the records. The appellant immediately filed a bill of review, setting up these facts, and again claiming a specific performance. There is evidence in the case, showing that in March 1865 the residence of the testator was destroyed by fire, and with it a majority of his business papers were consumed. The appellee resisted this bill of review, upon the ^ground that there was laches by the appellant, and that during the delay which had taken place since the sale, the property had greatly depreciated in value, and his own circumstances had also so greatly changed as to render it impossible for him to comply with the terms of the contract. I think the weight of the testimony is that the property had materially diminished in value during this time. I do not consider it necessary in determining the questions in this case, to consider at length only the second apparent defect in the title; the want of evidence that the one-sixth interest of Martha E). Shore had been conveyed to the testator E'endall Griffin; as this appears to have been the principal and most material objection to the title. When the first decree was rendered, this defect did not appear to have been supplied, and the title was to that extent in doubt, notwithstanding the evidence of Marvin, as he might so easily have been mistaken, unless the facts of the case show that' the testator had held possession adversely long enough to have perfected his title, notwithstanding this apparent defect. This question of adverse possession seems to have been the principal reliance of the appellant in opposition to the commissioner’s report and to the first decree. Now, in the first place, the commissioner has reported that there is no evidence of adverse possession. At that time the conveyance of Martha E}. Shore did not appear and could not be found. I am unable to discover from an inspection of the record, that at that time there was any evidence that the testator claimed the possession of this one-sixth interest under color of title. True he was in the actual possession, but as a co-tenant with Martha E). Shore, as appears certainly as late as November 3rd, 1849, and, as to all that then appeared, so 213continued. At that time although other property was conveyed by her to Griffin this was not. So far as the evidence showed at the time of the first decree, except the very unsatisfactory deposition of Marvin, because of his liability to be mistaken under the circumstances, I cannot find that Griffin claimed to hold under color of title. Adverse possession does not depend upon matters of record. As against an older undisputed title such adverse possession must be shown positively by the party setting it up, and it may be and often is quite a disputed question. The claim of title by adverse possession is rendered much more doubtful by the fact, that in the legislature which assembled at Wheeling, by the act of July 26, 1861, entitled “an act staying the collection of certain debts, it is provided that the time during which this act is in force shall not be computed in anj” case in which the statute of limitation, may come in question;” and this provision is again found in the act of February 8, 1862, relating to the same subjects; and in the acts of the Alexandria legislature of January 30, 1863, and January 23, 1865, to which may be added the act of March 2, 1866 chap. 77; though if this stood alone there might be doubts of its application to this case, as it is claimed that before that time the period of limitation had expired and rights had already vested; and also the acts of the body sitting at Richmond, claiming to be the general assembly of Virginia, of March 14, 1862, and February 23d, 1864, upon the same subject. It is not for the purposes of this case necessary perhaps to decide upon the force and effect of these several acts, but they are proper to be considered, as at least casting a reasonable doubt upon the claim of the appellant to have had full title to the property in question by virtue of adverse possession for the period required by the statute of limitations. This then, is, I think, quite plain: First. That it was at least then quite doubtful, whether Martha 33. Shore had conveyed her interest to the testator. Second. That it was at least quite doubtful whether her original title had been overcome by an adverse possession of the testator. This being so, the title of the testator was, at the time of the first decree, in a sta.te of at least reasonable doubt. It had been held so by competent and careful counsel after a thorough examination. The commissioner had so twice reported it; and the court below agreed with them upon this point, and I do not feel warranted in saying from the evidence, that such doubt was without reasonable foundation; and nothing occurred to change or clear up this doubt up to the time of filing the bill of review, ISTovember 30th, 1868. It does not seem to me necessary to decide whether as a matter of fact he was entitled to the property by reason of adverse possession. Indeed he does not now rest the title upon adverse possession, but upon an absolute conveyance. But this did not then appear. If this conveyance is to be regarded as an ouster by the testator of his co-tenant, this ouster was not then shown. If the adverse possession depended upon this ouster, there was then no satisfactory evidence of this fact. The question then, was not -whether there was a deed, or whether there was adverse possession, but were these facts shown to the satisfaction of the court or to the reasonable satisfaction of the appellee; and as the evidence then stood, I do not think it was; and whatever may tie said as to the actual facts as they now appear, they were then at least matters of reasonable doubt, and so continued until November 30th, 1868, the time of filing the bill for review. In addition to this doubt, it may be said that the power of the executors to sell at the time he sold, is not beyond all reasonable question according to the terms of the will; nor would it have been impossible that there could have been something more than a 'bare legal title in the trustee of the deed of trust executed by John W. Shore; for it ■was not impossible that the debt secured thereby, had been assigned to some other person before the conveyance of John W. Shore to Fendall Griffin absolutely; in which case, such assignee would have an equitable interest in that portion to the amount of his claim. While this reasonable doubt as to the title to a material part of the property -was in existence and could not be removed, I do not think the purchaser was compelled to comply with the terms of purchase. In the advertisement of sale, there was no intimation but that the title was perfectly clear. The bid must have been supposed to have been made with such an understanding. In Garnett v. Macon, 2 Brock. R. 185, 244, Ch. J. Marshall says: ‘ ‘In a contract for the purchase of a fee simple estate, if no incumbrance be communicated to the purchaser or be known to him to exist, he must suppose himself to purchase an unincumbered estate; and a court of equity will not interpose its extraordinary power of compelling a specific performance, unless the person demanding it can himself do all that it is incumbent on him to do.” On the same page, he says: “Both on principle and authority, I think it very clear, that a specific performance will not be decreed on the application of the vendor unless his ability to make such title as he has agreed to make, be unquestionable. See, also, Marlow v. Smith, 2 P. Wms. R. 198. In that case, the court say: “If there is the least doubt of the title (which was made to appear by the opinion of Sergeant Hooper and Mr. Webb), it would, by no means, be proper for the Court of chancery to compel the party to accept the title.” In Pincke v. Curteis, 4 Bro. Ch. R. 329, the solicitor general who was asking a specific performance, says: If there be a solemn doubt, I agree that the court will not compel the 214purchaser to take it.” See, also, Rooke v. Kidd, 5 Ves. R. 647; Stapylton v. Scott, 16 Ves. R. 272. In Sloper v. Fish, 2 Ves. & Bea. R. 145, it was a doubtful question whether the deed was absolute or had been delivered as an escrow only. In Jervoise v. The Duke of Northumberland, 1 Jac. & Walk. R. 540, there was an uncertainty as to the nature of the estate. In Lowes v. Lush, 14 Ves. R. 547, it was a question of doubt whether the sale had been anticipated by an act of bankruptcy. In all these cases, the question seems to have been, not what was the actual fact, but was there reasonable doubt about it; and in such cases, specific performance was not enforced. I would not hold that in a case where such doubt appears to be frivolous, or is set up as a mere pretext, when upon examination, there appears to be no foundation for such doubt, the contract would not be enforced; but only in a case of reasonable doubt either as to law or fact; and in this, I think, I am fully supported by all the authorities upon the 'subject. But it is contended that such doubt might have been removed by a proper examination of the records. It is a fact that search was made by the appellee, and no deed of conveyance was found in the general index. The law requires that an index shall be made by the clerk of all deeds recorded; and I think if a deed is not found there, a party is authorized to presume that no such deed exists, or is recorded. I think that the index, in the contemplation of the legislature, in requiring it, was a general index, and not merely an index to each book. Besides, it does not appear that the deed was referred to in any index. The counsel says he examined the title, and searched the records of the Hustings court and the County court of Henrico, and he does not find this conveyance. It ought to be presumed that he made a proper search. He is shown to be competent and careful. This appears by the opinion he gave; and he did all I think that could be reasonably expected of him as counsel for the vendee. He pointed out the apparent defects, and called upon the vendor to obviate these defects. But I think it may be said that it is the duty of the vendor, especially if he seeks a specific performance, and if apparent defects in the title are pointed out, to remove such defects, and to show that they are not so, and remove the doubts arising thereon. If, as he contends, this might have been done by a proper and lawful search, that is so much more reason why he should have done it. If he is unable to do it, it is not necessai'3r to say that it is his laches or negligence, but it is his misfortune. If his private papers have been burned, that is his loss. If other papers of his cannot be found, that is his misfortune. He must be not only prompt, willing and eager, but he must be able to do all on his part. He must not only have a good title, but he must show that he has such title, especially in a case of doubt, and where apparent defects are pointed out; and he must also show it beyond all reasonable doubt. In Lloyd v. Collett, 4 Bro. Ch. R. 469, a purchaser, who had made a deposit on his purchase, was allowed to withdraw it, and abandon the purchase, because the, vendor had neglected to give him an abstract of his title from August 18, 1792, to March 25, 1793 ; and in the meantime there had been a material depreciation in the value of the property. See, also, Fordyce v. Ford, Id. 494; Seton v. Slade, 3 Lead. Cases in Equity 377. There is a very good reason why it should be incumbent upon the vendor to remove doubts, and furnish the evidence of his title. He must be supposed to have the means for so doing; at least much more so than the vendee, He must be supposed to know his own title, and the sources of it, while a vendee could not be supposed to know anything of it. This must have been peculiarly so in England, when they had no registry acts, and the muniments of title were to be found only in the possession of the vendor. Nor do I see why in this State, where we have these registry acts, the rule should be changed. It is true the records facilitate the enquiry very much, but they are not absolute evidence of title. A conveyance may be perfectly good, though not recorded, except as to creditors and bona fide purchasers. Besides, the title often rests upon matters in pais, which the records do not disclose. But as to these matters, the vendor must be presumed to be better informed than the vendee; and therefore I see no sufficient reason for adopting a different rule in this country from that which appears in the English reports. I will not say’ that it was the duty of the vendor in this case to furnish the evidence of his title, but that it was his misfortune that he could not do so. See, also, 4 Graft. 253. This course of reasoning leads us to hold, that at the time of the first decree in this case, and with the facts then appearing, the vendee ought not to have been required to take the title as it then appeared; and the decree dismissing the bill was proper, and there were no circumstances changing this state of things until the filing of the bill of review in November 1868. Then it appeared that a conveyance had actually been made by Martha E. Shore of her interest to the testator in May 1850, and then such deed was found to be upon the record though it had not been indexed. Then for the .first time the doubt upon that subject is fully removed. But in the meantime, as I have already said, the weight of evidence shows there was a material depreciation in the value of the property. The decree shows also that his own circumstances had in the meantime changed so as to render it impossible for him to perform the contract; though _ as his own testimony upon this last point is quite contradictory, I do not give it much weight. 215It is true that time is not, as a general rule, regarded as of the essence of a contract in equity unless it is so made. But if by the lapse of time during the default of either party, circumstances have happened which materially change the value of the contract as to the other party not in default, then time is of the essence of the contract. Garnett v. Macon; Floyd v. Collett; and Seton v. Slade; above cited; Story’s Eq. Jur., sec. 776, and cases there cited. Suppose that in the meantime the property had greatly risen in value. Is it to be supposed that the vendor would have filed this bill of review? Or if the vendee had in such case then asked for specific performance on his part would not the vendor have resisted it? I do not give anjr weight to the fact that the vendee at the time of making his bid was excited by stimulants. This is no excuse for refusing to comply with the terms of sale. It is no doubt true also that he was eager and anxious to find excuses for his non-performance. But this would not preclude him from taking advantage of any valid and lawful objection, if such could be found; and it seems to me that they were found in this case. On the whole, I cannot come to any other conclusion, than that under the circumstances of this case, the decree of the Circuit court was right and should therefore be affirmed. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481725/	WIGGOUGHBY, J. The two leading questions presented for our decision are: Rirst. Ought.the case, under the circumstance thereof, to have been removed on the petitions, or either of them, for such removal to the United States Circuit court? Second. Was the sale made by the trustee, Joseph B. Stewart, valid; and did it operate to extinguish the Alexandria and Washington Railroad Company, and divest it of its corporate rights and privileges? It would seem to me, without reference to the validity or invalidity of such sale, and without now passing upon the question of its right to be regarded as a corporation, consistent with legal principles to regard for the purposes of the decision of the points before us, the Washington, Alexandria and Georgetown Railroad Company as a company capable of being sued, and of exercising certain powers. This company certainly insists on being so regarded; it has acted as such with a full board of officers and directors; and as such, has issued stock, bonds and notes to a very large amount; it has been so recognized by the public; and transactions of great extent have taken place upon the faith of the existence of such company, and it was recognized as such by the act of assembly of January 23, 1864, by which large powers and privileges were granted to it “as a lawfully existing company. ” The question regarding the petitions for removal seems to me to require our first consideration. I will designate the two companies as the old and the new companies. The bill, as at first presented, was brought by the old company against the new company, Hay, Stewart, Benjamin and Joseph Thornton, Davison, and the persons interested in the several deeds of trust. Hay, in his answer, expressly waives all right to remove such cause as to himself, and Joseph Thornton and Davison protested against such removal. The first petition was made by the new company. That this was properly overruled, it seems to me, there can be no question. The old and the new companies were both residents and citizens of the State of Virginia; and I think it is equally plain that Stewart alone, under the law as it then existed, could not properly ask for a removal of such cause. It has been settled that a suit could not be removed when a part of the plaintiffs or defendants are citizens of the State where the suit is brought, and a part of some other State (Wilson v. Blodget, 4 McLean’s R. 363; Northern Indiana Railroad Company, 3 Blatchf. R. 82), and in order to remove such cause to the United States court, all the defendants must join in the petition for such removal. (See 2 Sumner 339.) ' The motion to remove in December 1866 was also properly overruled. The provision of the act of congress of July 1866, upon which the petitioner then relied, provided for a removal, in cases of citizenship of different States, on the petition of a defendant, “if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties to the cause.” That this was not such a case is perfectly manifest from the slightest inspection of the pleadings and proceedings. Congress passed an act March 2, 1867, providing that where there was a controversy between citizens of different States, either party, plaintiff or defendant, might, on filing an affidavit in the State court that he has reason to, and does, believe that from prejudice or local influence he will not obtain justice in such State court, file his petition for such removal, and it was made the duty of the State court then to proceed no farther in the cause, but the cause should be removed. This affidavit was made by Coleman and others, and also an affidavit that orders of the military authorities were involved, in May 1868. As to the validity of military orders being involved, it is perfectly manifest from all the pleadings, and from the answers of these parties, filed at the same time, that there is not the slightest foundation for removing the cause on that ground. No such questions are raised in any form whatever. This last mentioned act of congress, standing alone, might be regarded as sufficiently comprehensive to include this application. But a little consideration, I think, must show us that it was not intended by this to change the practice of the courts, and to override the decision of such courts, which had been repeatedly and uniformly made since the Judiciary Act of 1789, or to change the law of 1866, providing for such removal in a case where there could be a final determination of the controversy, so far as it concerned the applicant, without the presence of the other defendants. The act of 1866 is not repealed, nor are the provisions of this act at all repugnant to it. The act of 1867 merely extends the privilege of removal to the plaintiff, as well as to the defendant, on making the required affidavit. In Fox’s adm’rs v. The Commonwealth, 16 Gratt. 1, Judge Moncure says, in deliv219ering the opinion of the court: ‘ ‘The law does not favor a repeal by implication unless the repugnance be quite plain, and then only to the extent of such repugnance. ’ ’ Again he says: ‘ ‘It is, therefore, an established rule of law that all acts ‘in par<a materia’ are to be taken together as if they were one law; and they are directed to be compared in the construction of statutes because they are considered as framed upon one system, and having one object in view. And the rule equally applies, though some of the statutes may have expired or are not referred to in the others.” The provision of the act of 1866, limiting the application to a case where the party can have the suit determined, so far as it concerns him, without the presence of the other parties on the same side, is an eminently wise and just one. It would be manifestly unjust that one defendant out of a large number, should have the right to take a case from a court where all of the other parties wish it to be, without very strong and peculiar reasons. It is very easy to see how this might often work infinite mischief and confusion; and few cases can be found which would better illustrate this than this case. This has been seen and acted upon by all courts without exception and also by congress certainly up to the passage of this act; and with this view, and looking at the great mischief that otherwise would ensue, I cannot believe, without explicit words to that effect, that it was intended to repeal the act of 1866; and, therefore, both must be taken together in construing the real intention of congress. I do not at all call in question the constitutionality of these acts; but construe them all together, as I think we are bound to do. (See American Raw Register, January, 1870.) 'There are other reasons why, in this particular case, the removal should not have been made. The substantial parties in this controversy are the old company on the one side, and the new one on the other. These are both certainly citizens of Virginia. The individuals named derive all their rights in this cause through one or the other of these companies. As individuals, they are citizens of different States; but as members of the several companies, they are not. The La Fayette In. Co. v. French and others, 18 How. U. S. R. 404. These petitioners come in simply as stockholders in the new company; and while they allege that there can be a final determination of the controversy, so far as it concerns them, without the presence of the other defendants, parties in the cause, the petition itself, as well as their answers, show that this cannot be true. The new company, of which they were stockholders, was in court defending the case, and in such case they could not, as individuals, control the cause. (See Angelí and Ames on Corporations, sec. 407, and cases there cited.) The power of stockholders to bring proceedings against the company for violation of the duty of such company is not denied; but I do not think that this was the way to come into court on such grounds. They had the power, holding, as they claim, the majority of the stock, to remove their officers and directors, if they were acting improperly, and put in their place those who would do their duty. Chap. 57, secs. 8 and 12, Code of 1860.) These parties were allowed, at the discretion of the court, to be made defendants upon their petition representing that they had interests which would be affected. But at the same time a decree was made adjudicating the principles of the cause. True, they complained of this, but their answers did not set forth any new facts which could throw any additional light upon the principles of such adjudication; and having just come in as defendants with others, under such circumstances, why should the decision of this question be delayed? The court says: “With a view to the speedy determination of the cause, it is deemed proper to make this adjudication.” Nor do I see that this case is one in which the parties who have not united in this last application for removal are mere formal or nominal parties, or parties without interest, in which cases the real and substantial parties have been held to have the right to remove the cause to the United States court. (See Wood v. Davis, 18 How. U. S. R. 467). The action of the court below in making the decree adjudging the principles of the cause, at the November term 1867, has been so severly commented upon, that it seems proper to examine this action a little more critically.. The defendants, Coleman and others, then made a simple petition as stockholders of the new company, asserting that it was a legal corporation, and asking to be made parties, as they were interested in the decision of the case. They allege, it is true, they can successfully defeat the claims of the old company and establish the validity of the new company. Their petition is not sworn to, nor any new facts alleged. The court, deeming their petition reasonable, allowed them to be made parties, and required the complainants to amend their bill so as to make them parties. It is evident, however, that the court did not intend to allow them to be made more than formal parties, and for the purpose only of establishing such equities as they might be able to show; for it seemed manifest that if the new company were adjudged void, still they, as individuals, had equitable claims upon the road. Rrom the very position they occupied and placed themselves in, they could do nothing more than this in either event. If the new company were adjudged a valid one, then this new company being properly in court, they, as mere stockholders of that company as such, had no standing in court. But if on the other hand, the new company should be adjudged invalid, as it was, they then had nothing but equitable interests, which could 220be preserved in no other way than as they were provided for in this very decree. I do not see, therefore, how their rights were prejudiced. In fact, I do not see how the cause could properly proceed as to them until their precise position should be ascertained and adjudged; for as I have before said,- if they were stockholders of a valid corporation, they had no standing in court; if individuals only, they had merely equitable interests, and could not then contest the validity of the old company. The same decree that admitted them as defendants adjudged the validity of the old company. The purpose of admitting them as defendants was thus manifestly only to allow them to establish such equitable interests as they might be able to establish; and the bill was required to be amended only for that purpose, and they were allowed to file their answers only for that purpose. They complained that they were not allowed to take testimony, and that they had not then filed their answers. But they have since, and before the final decree, filed their answers, find the right to take testimony for the purpose for which it was alone proper that they should take testimony, has not been denied, but, on the contrary, is expressly provided for in the decree from which the appeal was taken. It may be remarked that the answers filed by them do not set forth any facts additional to those which were before the court, which could have affected the decision of the question which was theq adjudicated. While, then, there seems to be an apparent inconsistency in allowing them to be made parties, and making the decree which was made before the filing of their answers and the production of their testimony, a critical examination of the situation of the parties, and the real substance of the decree, and the intention of the court, show's, I think, that it acted with entire propriety. The petition for removal was not made until the next term of the court, after there had been a decree in effect adjudicating the principles of the cause, and which even then might have been regarded as sufficiently final for the purposes of an appeal to an appellate court. After their cáse is really decided, and this, too, without objection to the jurisdiction of the court, then they ask to have this cause removed, so that they can try the same question again in another forum. To allow the removal of the cause under such circumstances would give them the chances of two courts, if the first decided against them, or, in other words, would be substantially allowing an appeal from a State to a United States court. ■ Under the act of 1867, the application must be made before final hearing. The substantial final hearing had been made, and though the parties call themselves defendants, and put in what they call answers, such answers are substantial^ nothing but petitions, or in the nature of cross-bills, setting up equitable interests, which they claim should be protected. At least, they could not be otherwise regarded by the court after the decree which it had made at a previous term, fully adjudicating the principles of the cause. ■ In view of these considerations, I am very clear that there was no error in denying the motion for removal of the cause to the Circuit court of the United States. There is another view which may be presented, which, if correct, is conclusive, so far as this court is concerned, upon this question. The appeal to this court is not made by these petitioners. It is made by the new company. It was not the new company which presented this last petition for removal. It did not make the motion in the court below. In fact, then, I very much doubt whether this question is properly before .us. If there was an error in refusing the petition for removal, it was an error by which the petitioners, not the company," were aggrieved. In this case, it seems to me the petitioners should have taken the appeal, in order to have the error by which they were aggrieved corrected. I very much doubt whether one defendant can allege as ground of error that a co-defendant is aggrieved by a decision of the court below. The co-defendant should make known his complaint for himself. Ror all that the record shows, these petitioners may now acquiesce in the decision of the court below. This view may be applicable also to some of the other grievances which it is claimed these petitioners have suffered by the. final decree of the court below. The conclusion we have come to necessarily brings us to the consideration of the next question, the validity of the sale. The deed of trust, upon which the sale was founded, contains- this provision: “And it is mutually agreed, that in case of the death, incapacity, or resignation of the party of the second part, or of his successors in this trust, then the office of trustee filled by him shall become vacant, and such vacancy shall be filled by an appointment to be made by any court of record in the county of Alexandria, on the application of the parties of the first part, or the holders of three-fifths of said bonds: Provided, however, in the last case, notice of the application of the parties making such request be given to the president or one of the directors of said company; and all the rights, power and authority hereby conferred on the original trustee, shall then and there devolve upon and be invested in his successor or successors so appointed. It also provides that in case at any time six months’ interest becomes due and unpaid, the trustee “shall, upon the request in writing of the holders of at least three-fifths interest' of said bonds, ’ ’ cause the property to be sold at public auction, after giving at least sixty days’ notice of the sale by publication in certain newspapers therein named, and shall have authority thereupon to convey the said property to the purchaser. 221This is a contract, the authority to make which is not disputed; and upon this depends the authority of proceedings in relation to the sale, but of course is to be construed with reference to the laws of the State then in force. The manner of serving this notice must then be supposed to be according to the law relating to such service. This notice is agreed to be the process upon which the jurisdiction of a court of record to appoint a trustee depends. But we are met at the threshold of this enquiry into the validity of the order of the court, by the proposition, that as the court was one of general jurisdiction, its judgment cannot be assailed only upon the ground of want of jurisdiction, and the presumption is, that all the steps necessary to give it jurisdiction were taken by the court. It should be borne in mind that this is not a proceeding in which this judgment is collaterally assailed, but is a bill in equity, filed for the specific purpose of setting aside this judgment and attacking it directly. The bill sets out facts for the very purpose of showing that the court did not have jurisdiction. Although the distinctions made in different cases as to when the record of a court may or may not be contradicted, are very subtle, and somewhat difficult to reconcile, I do not think that any case can be found in which it is held that such record may not be assailed in a direct proceeding for that purpose in equity, by showing fraud, or especially by showing that the court did not in fact have jurisdiction. However this may be, I am sure that the defendant may be allowed to show that he had no notice, and that there was no process bringing him into court, by filing a bill in equity for this specific purpose, and by actually showing such want of jurisdiction. Any other construction of law would be the most apparent injustice, for there could be no other remedy. An appeal would not correct it, for on an appeal the party would be bound by the record as it is. A judgment of a court bej'ond its jurisdiction is plainly void; and to render a judgment in personam it must have jurisdiction of the person. If it be a judgment in rem, it must have jurisdiction of the thing. Rvery lawyer knows, for example, that a judgment in a case of attachment, if there is not also a service upon the person, is only a judgment against the property. Such a judgment does not authorize a levy of an execution upon other property, nor is it even evidence of a judgment against the person. This is not a proceeding in rem. In such cases courts acquire jurisdiction only by seizure of the thing, and even then, in most, if not all cases, notice is given in some vTay to parties interested, by publication or otherwise, and especially if it is agreed that jurisdiction shall attach only by giving a notice. See Penobscot Railroad Company v. Weeks, 52 Maine R. 456; Hollingsworth v. Barbour, 4 Pet. U. S. R. 466; Harris v. Hardeman, 14 How. U. S. R. 334; Webster v. Reid, 11 How. U. S. R. 437. In Harris v. Hardeman, the court says: “In all judgments by default, whatever may affect their competency or regularity —every proceeding, indeed, from the writ and endorsements thereon, down to the judgment itself inclusive—is part of the record, and open to examination. Applying this principle to the present case, on the examination of the affidavit of Joseph Davison, we find that the record itself shows that there was no notice. This would make it void upon its face. I can see no escape from this conclusion, and I do not see how it can be seriously questioned. In the case of Vorhees v. The Bank of the United States, 10 Pet. U. S. R. 449, the court say : “There is no principle of law better settled than that every proceeding of a court of competent jurisdiction shall be presumed to have been rightly done till the contrary appear.” This is a case strongly relied on by the appellants, and is perhaps one of the strongest cases on record upholding the validity of judgments of a court. But this was a case in ejectment, and a judgment of a court showing a sale by attachment was put in as defence; and in such a case the court say, though the record does not show the proper steps to have been taken, or even that the steps necessary to give jurisdiction were taken, it must be presumed that they were taken, and the facts could not be controverted in this collateral manner. The cases of Harvey v. Tyler, 2 Wall. U. S. R. 328; Florentine v. Barton, 2 Wall. U. S. R. 210; and Comstock v. Crawford, 3 Wall. U. S. R. 304, so strongly relied upon by the appellants, were all actions of ejectment, and the records were all sought to be set aside, by showing facts aliunde; and the court held that this could not be done. The case of Devaughn v. Devaughn, supra, decided by us at the present term, was a decision upon an appeal from a judgment of the County court, in which it was claimed that the record did not show affirmatively that it had jurisdiction; and we held only that it was to be presumed that the steps necessary to give jurisdiction were taken, and that the presumption must be that the court had evidence sufficient to justify the order which was made. But it is easy to see the difference between these cases and the one under consideration. Besides, in these cases the records did not disclose the want of jurisdiction on their face. But it is urged by the appellants that they had a sufficient excuse for not giving a notice, from the fact that the persons entitled to such notice had all left the country, had gone beyond the Federal lines into the lines of a public enemy; that they had abandoned the property, and were traitors to the United States government, and engaged in war upon that government, and that it was impossible to give them notice ; and the law does not require impossibilities. This presents a strong appeal to all those who were loyally disposed to the United States, especially when presented, as it is 222in the answer, in the fiercest language and in the most glowing terms. Still, we must not be misled by such an appeal, and must subject it to the test of legal principles. These facts were certainly not shown to the County court. Nothing of them appears in the affidavits upon which the order was founded. If they could be regarded as an excuse for not bringing the person within the jurisdiction of the court, such excuse was certainly not made the basis of such jurisdiction, and it seems to me rather late to offer such excuse before ánother court to bolster up a jurisdiction which otherwise would fail. But suppose all this were true, and then shown to the court, it cannot really be seriously contended that if the parties were the greatest criminals on earth, if they had left their property without any one to attend to it, that therefore they can be deprived of their rights or their property, except by the law of the land, or, in the language of the constitution, “by due process of law.” Certainly this does not give to individual citizens the right to deprive them of such rights or property. Nor can I see how it matters whether such property were valuable or nearly worthless, or whether it had been properly or improperly managed. But was it a sufficient excuse for not serving a notice that the persons entitled to such notice could not be found? When a condition precedent becomes impossible of performance, a person may be excused . from performing it; but it does not therefore always follow that because it is impossible the right or privilege depending upon such condition precedent can be maintained, not even if this is made so by the acts of the other party entitled to such condition precedent. Where a court has no jurisdiction of a person, it does not follow that because a party has done all that he could do to bring such person within such jurisdiction, and has failed, that therefore the court can proceed without obtaining jurisdiction. I cannot say, however, that in this case this impossibility was caused by the act of the party entirely. He went south, it is true voluntarily, but he went expecting to return soon; but he could not return. This was a misfortune for him; and it was also a misfortune, perhaps, for those whose rights were affected by his not being able to return, But it was a misfortune, which resulted for the most part, at least, from the war in which the nation was unfortunately engaged, and by reason of which, thousands of others, in common with the parties to this cause, unavoidably suffered, and for which courts and the usual legal proceedings could not afford an adequate remedy. But it does not seem to me that the parties asking for the appointment of a trustee did, in fact, all that they might have done. The president of the old company still had a residence in Alexandria. The deposition of E. S. Boynton, a witness for defendant, shows that he had residence with his family until April 1861, and he himself resided there until May, leaving his house and furniture in charge of said Boynton, and declaring that he expected to return in sixty or ninety days. We can readilj’- infer, from the facts of history within judicial cognizance, why he could not have returned if he had wished. I cannot discover from the records how there is any proper evidence of his having engaged in arms against the government, for the answer stating such fact could not have been given upon any knowledge by the affiant, and this is not to be presumed; nor is there any sufficient evidence showing that he did not, at all times, intend to return to his place of residence. In fact, the affidavit of Davison, upon which the order of the court was made, does not state that he had no residence in Alexandria, and is defective on that ground. This, at least, should be shown positively in any aspect of the case. I cannot see what excuse can be rendered for not serving the notice by leaving a copy at his residence as the statute prescribes. Besides all this, the deed of trust itself shows that Benox, who was an officer and director of the company, and the trustee in the deed of trust, was a non-resident. Notice to him could certainly be given by publication in accordance with the statute. Why could not this have been done? It was said that he received notice as trustee. But this would not prevent notice to him as director. What excuse can be offered for not notifying him by publication? This would have brought them within the provisions of the deed of trust. If the facts, as alleged in the answer, were all true, and it appeared that the road and all the property were abandoned, and it was absolutely impossible to give any notice to anybody, and in the meantime creditors had no other means of saving their rights, while such a state of facts might be urged with great force for a court of equity to assert jurisdiction for the protection of all parties interested, upon all these facts being brought before such court, I think it very clear that a single creditor, without regard to the rights of others, without showing the court this state of facts, cannot, upon a single affidavit or petition, ask a court to make an order to protect his rights, and without really taking into its own hands the property itself for the benefit of all parties, owners as well as creditors. Cases have- been produced to us to show that a corporation by abandonment and nonuser of its franchises forfeits those franchises. Suppose this to be so; I cannot see how it would help these appellants. To whom would such franchise be forfeited? Evidently to the sovereignty from which they emanated. This would not allow individuals to seize upon them. They could not take advantage of such forfeiture. The new company could not derive its existence from such a source. It is objected that the application for the order was not made by a person authorized to do so by the holders of three-fifths 223of the bonds. I very much doubt whether the evidence fully establishes that any other than the person named, Benjamin Thornton, was the holder at the precise time. It is very evident that Charles M. Wilkes was the holder, and entitled to hold within a very few days thereafter and sometime before the sale, whether he was the owner or not, and entitled, as such holder, to determine whether he would allow them to be converted into cash or to remain on interest at 7 per cent., or whether they should become extinguished in his hands by the conversion of the security into cash to go into the hands of a trustee not required to give security, and with whose appointment he has had nothing to do, and whom he might not be able to compel to pay to him the money to which he was entitled. Suppose, however, that we are wrong in coming to the conclusion that this order appointing the trustee should be set aside, the admitted facts of this case show verjr plainly, I think, that the sale should be set aside on the ground of facts occurring after such order. Suppose that Stewart were the proper trustee, invested with all the power of the original trustee. He has simply a naked power to sell. His authority is based only upon the deed of trust, and he must pursue the provisions of the deed strictly. He must be able to ^'justify his act, not by any presumption or inference, but positively and necessarily. The divesting of the franchises and property of a railroad companj1" is not to be permitted upon a doubtfully exercised power of a mere naked trustee. The first step taken is, to say the least of it, a very doubtful one. Sale can be made only on the request, in writing, of the holders of at least three-fifths of the bonds. Now the request in writing was, as specified by Davison, as agent and attorney in fact of the owners of more than three-fifth of the bonds. This is liable to two objections : first, there was no writing then produced from even the owners of the bonds. There was a writing from Davison, but this was not founded upon a writing from the owner. There is not, to this day, written evidence that the owner then, at that time, had ever authorized this demand; second, even if Davison was the agent of the owners, this does not necessarily imply that he was the agent of the holder. An owner may, and often does, divest himself for a time of the possession and right to hold his property; and for all that appears in this written notice, this may have been done. More than this: the reasonable probability from the evidence is, that this was actually done at the time of giving this notice. While this fact may not appear to be sufficiently established to set aside an order of court it does appear sufficiently to throw great doubt upon the power of the trustee to proceed to the sale. Certainly, at the time of the sale, Thornton was not in a position to deliver up the bonds or to require the delivery. But let us look further at the subsequent conduct of this trustee and the circumstances of the sale. A trustee is the agent of both parties. He is especially of the party constituting him such trustee. His duty is to be perfectly fair in all his conduct and ^especially to see that the interests of the party who has conferred upon him this power are protected to the fullest extent. His action has, 'therefore, been held to be especially the subject of enquiry bjr a court of equity; Gibson’s heirs v. Jones, 5 Leigh 370; and as such it is his duty to do all that can reasonably be done to effect the most advantageous sale possible. It has, therefore, been the common practice of our courts to require that in all such sales, if there are prior liens, either contested or doubtful, or not precisely ascertained, such liens shall be ascertained, so that they may be made known to the purchaser. Cole’s adm’r v. McRae, 6 Rand. 644; Rossett v. Fisher and others, 11 Gratt. 492; 15 Gratt. 83 and 103. Otherwise, how is it possible that there could be anything like a fair sale of the property? Now, what were the facts in this case? The affairs of the road were confessedly, and in fact charged to be by the defendants themselves in a most complicated condition. There were numerous judgments and two deeds of trust. Most of the judgments, it is true, were in fact subsequent to the deed of trust. But the fact should have been well ascertained as to which were prior and which were subsequent. There were a large number of liabilities of the company, and as the defendants themselves allege, persons owning these liabilities were making them known even at the sale. The question of the validity of the two prior deeds of trust was openly made at the sale. The trustee of the deed of trust for $60,000 was present at the sale asserting its validity, while Stewart says in his deposition, “I at the same time saw fit openly to dispute the validity of both the deeds of trust of the corporation of Washington, and Rowle, Snowden & Co. as valid liens upon the road;” and the record shows that there is at this time a contest in the courts concerning the validity of this first deed of trust. Now, under such circumstances, was it possible that there could be anything like a reasonable sale? How could a purchaser have any knowledge of what he was buying? The Code provides (ch. 61, sec. 29) that when a purchase is made of the works and property of a corporation, the purchaser shall not be entitled to the debts due to the first company, nor be liable for any debts of or claims against the company “which may not be expressly assumed in the contract of purchase.” The defendants contend that by this sale a new company was formed. If this be so, ought not the contract of purchase to show whether the debts and liabilities of the old company were assumed? Ought there not to have been at the sale an understanding whether it was sold subject to the debts and 224liabilities of the old company or not? If not then the purchaser should know it, for it would make a material difference in his bid. Certainly this ought not to be left to the mere will of the purchaser, after he has made his bid. The matter ought to have been clearly and plainly understood at the sale, and I think it would have been proper, if not necessary, that the advertisement of the sale should have stated how the sale would be made. It should, at least, have been made known generally, as well as to the purchaser, Hay, whether the sale was subject to the debts and liabilities of the old company or not. Again, the record discloses that Stewart, who all the time .professed to act in the capacity of attorney for the purchaser, Hay, had already in his hands more than sufficient money, the property of the company, to pay all that was then due upon the bonds. This fact Hay must be presumed to have known, and to have purchased .with this knowledge. That the interest of the seller was not properly attended to is further seen by the fact that the United States government had possession of the road during all this time, and it was a well known fact that possession could not then be delivered: and no one could tell when it would be, or what claims the government would have upon it when so delivered. It was impossible that, under such circumstances, a sale could be made otherwise than at a ruinous sacrifice.- The position of Stewart was, to say the least of it, a peculiar one. He was, if properly appointed, the trustee to make the sale, and as such, in duty bound to effect the best possible sale, and the attorney-at-law and in fact of Hay, the purchaser-, and as such interested to procure the sale on the lowest possible-terms. More than this, he had. made an agreement in writing with Davison, in which he stipulates what he will do, “on behalf of himself and constituents,” in case the road be purchased by himself or constituents; showing that he was then' contemplating a purchase by himself, as well as by his principal and client. Can he be said to have been perfectly impartial and disinterested? , Is it possible that a trustee for sale can at the same time be attorney at law and in fact for the purchaser, and acting in his interests? Stewart, in fact, did immediately become interested in the purchase. He had also previously been appointed, by writing, the attorney for Davison, the agent of the bondholders, and as such was to receive from him a large contingent fee in case of a sale of the road; he to use all diligence in the closing out and perfecting the interest of said bondholders in and to said road. (What interest had the bondholders in the road, except to receive the money which might be realized from the sale?) On this writing there was endorsed by Joseph Thornton, May 3, 1862, “There will go to Mr. Stewart $35,000 of stock out of the $142,000 set over to me, his $35,000 being subject to a pro rata deduction in making up the $50,000, or whatever may be used of that amount, which is set apart. ’ ’ This $50,000, it otherwise appears, to be set apart for procuring a charter from congress. It is true that Stewart testifies that no agreement was effected with Davison and Thornton before the sale. But these papers appear to have been executed; and he himself testifies that the probabilities and feasibilities of forming a new company were much discussed, and, as he says, “in the event that either Thornton or Davison became the purchaser, the question of who would take an interest, and how, was much figured over as a thing entirely prospective, and it was agreed, if I saw fit to do so, I could be one of the parties forming the new company. ’ ’ These facts show, I think, that Stewart was at least so far interested in the purchase as to render it impossible for him to act as trustee with that propriety which a court of equity requires. It further appears that no money was ever paid to the holder of the bonds from the proceeds of the sale, but they were still, by the permission of said trustee, and at the request of Joseph Thornton, allowed to remain in the bank of Riggs & Co., at Washington, as the basis of a loan to Benjamin Thornton from one Wilkes, of something over two thousand pounds, and a portion of the proceeds were used in re-organizing the new company. A company was immediately organized, of which Stewart was the secretary and a large stockholder, and stock was issued to the amount of $300,000. This fact tends strongly to show that the object of the sale was not so much to satisfy the amount due upon the bonds, and in accordance with the real wish of the older of the bonds, as it was to get the title of the old company into the hands of these parties, who were devising a plan by means of which they could form a new company, and which had been much “figured over” by all these parties, including the trustee. By special act of assembly, this new com- ’ pany was soon after authorized to issue stock to the amount of $500,000, besides bonds to the amount of $200,000, and notes to the amount of $100,000. Stock has been issued 'to a large amount in excess of the amount authorized, as the decree states, and bonds, &c., have also been issued, and out of this money has been raised and in part expended for the benefit of the road; so that it will be seen that other parties have equities in the road which should be provided for. This history of the transactions connected with the sale must show, I think, that even if the order appointing Stewart was perfectly valid, yet the sale was conducted in such a manner, and shows such a state of actual fraud, that it cannot be sustained by a court of equity. It is urged upon us with great earnestness and force, that even if such order were void, 225and the sale was an illegal and fraudulent one, yet that the company, taking no steps for a period of four j'ears, and allowing the stockholders of the new company to invest large sums of money on the faith of the validity of such sale, without being cognizant of such fraud, the old company should be considered as having acquiesced in such sale, and should now be estopped from contesting such validitjr as against them. There are cases which show that acquiescence in sales made by order of a court of competent jurisdiction for a long period, shall be regarded as a waiver of the right to contest the validity of such sales. In extreme cases, where there has been long acquiescence, sales made by order of the court have been sustained on the ground that judicial sales ought to receive the highest possible sanction, and should be regarded as giving the utmost possible protection to the purchaser. But, in the first place, the acquiescence which is shown in this case is not of such a character as I think should be regarded as an estoppel. The parties who alone could object for the old company were in such a situation that, so far as they were concerned, it was for nearly the whole period a forced acquiescence. True, they had gone into the lines of public enemies against the United States, and had gone voluntarily; but whatever may be said of the wrongful nature of said acts, yet they were in such a situation that it cannot be said that, during this period, they voluntarily acquiesced in the disposition of their property. Besides, up to August 1865, the government was in actual and exclusive possession and control of all this property; and while it was so, I do not think any party could be justified in claiming to act in entire ignorance of all claims that might be brought against it. I cannot give any countenance to the claim that the government held, as a tenant of Hay under a contract made by him, as a mere creditor and with no claim upon the road, except such as might have been satisfied by the payment of $5,000. Again, so far as the sale was concerned, It was not a judicial one. The court had nothing whatever to do with the sale. The court simply substituted one trustee in the place of another. The court did not direct the sale. The sale was not professed tb have been made by any other authority than that of a trustee, with no power to guarantee the title, who did not profess to guarantee the title, and the purchaser was bound to make enquiry and to fully investigate the sources of his authority, and if he neglected to do so, it was his own negligence. And such a sale is not at all like one where a purchaser has an order of a court of competent jurisdiction, and which he is authorized to presume to be correct. Again, a corporation cannot be created by mere acquiescence. This can be done only by positive act of legislation, or bjr some power authorized by some legislative act. Still, under the circumstances of this case, the new company ought to have reimbursed to it the money 'which it has actually expended for the benefit of the road, which ought to go to its stockholders. A very large portion of the money invested by the stockholders seems to have been upon representations for which the old company could be in no wise responsible, and it certainly could not be regarded as having acquiesced in them. Much of it has been upon false and spurious certificates of stock, issued by the new company; but the remedy of those who have thus been deceived is upon those whom they have trusted. Their case is an extremely hard one, and appeals strongly to our sympathies, and so far as they can be lawfully protected they should be. They claim that a very large amount (several hundred thousand dollars) has been expended for the benefit of the road, and provision should be made for the repayment of so much of this as they can establish; and this can be done under the decree as it now stands, and such further orders as may be made by the court upon a consideration of the evidence which may be produced. The new company procured a special act to be passed by the Alexandria legislature, February 5th, 1863, declaring this sale to be a valid one. This act was in plain violation of the constitution, and therefore void. It was an assumption of judicial power by the legislature. Art. II, constitution of Virginia, declared “the legislative, executive and judicial departments shall be separate and distinct, so that neither shall execute the powers properly belonging to either of the others. Art. IV, section 35, provides that the general assembly shall not, bjr special legislation, grant relief in a case of which the courts or other tribunals may have jurisdiction. Besides, it attempts to divest antecedently vested rights, and also to impair the obligation of the contracts between the parties. (See Taylor v. Stearns & als., 18 Gratt. 244, 274.) I can see no necessity for giving a construction to the statute relating to the sale of the works and property of a corporation, and the powers and privileges of the purchaser at such sale. (Sections 28 and 29, ch. 61 of Code of 1860.) This is a matter rather for the new company and those connected therewith to settle among themselves, and suits are now pending, as I am informed, to determine the questions between them. The decree of the court below very properly provides for an investigation into the equitable interests of the several parties to this controversy, and for security for their protection, and I see no reason why it should not be fully affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482014/	Staples, J., delivered the opinion of the court. The court is of opinion it was not necessary to aver in the declaration that payment of the execution was demanded of the defendant, John J. Grandstaff, in his county before the commencement of the action. The statute provides that an officer receiving money under an execution, when the creditor resides in a different county, shall not be liable to have any judgment rendered against him or his sureties for the non-payment of the mone}7 until a demand of payment shall be made of such officer in his county or corporation. Code of 1813, eh. 183, § 37. If the declaration had averred the non-residence of the plaintiffs, it might be contended, with some reason, it should also aver a demand of payment. But the declaration does not show where the plaintiffs resided. For aught that appears to the contrary they resided in the same county with the sheriff'. It will be so intended unless the evidence shows the fact to be otherwise. If it appears on the trial that the plaintiff's and the sheriff are residents of different counties, it will devolve -on the 15former to prove the demand in accordance with the provisions of the statute. The court is therefore of opinion that this ground of error is not.well taken.- Obannon v. Saunders, 24 Gratt. 138. The court is further of opinion that a sheriff or other officer has no authority to receive payment under an execution after the return day thereof, unless the execution has been previously levied. Such payment would not bind the creditor, nor would it impose any liability upon the sureties of the sheriff on his official bond. Although the sheriff may be responsible in his private capacity for money so received, no responsibility would attach to him in his official character on that account. 1 Rob. Prac. 532; Chapman v. Harrison, 4 Rand. 336; Herman on Executions, 464, 336; Obannon v. Saunders, 24 Gratt. 138. This was the settled doctrine prior to the revisal of 1849. The provisions then .adopted gave to the writ of fieri fácias an absolute lien upon the debtor’s personal estate, not limited to the time during which the execution was to run, but continuing until the right to levy a new execution ceases or is suspended by a forthcoming bond being given and forfeited, or by a supersedeas or other legal process, subject, however, to certain exceptions which do not apply to the present case, and need not now be considered. Charron & Co. v. Boswell & als., 18 Gratt. 216, and cases there cited; Code of 1860, ch. 189, §§ 3,4. These provisions do not enlarge the powers of the sheriff with respect to executions, and were not so intended. They simply extend the lien for the benefit of the creditor. The authority of an officer to collect money in discharge of the execution does not result from the lien, but is a consequence of the right to sell the debtor’s property under the execution. So long as the right to sell continues, the right to receive payment remains, but no longer. If the officer levies before the return day of the writ, he may sell, notwithstanding the return day has 16passed; and, as a necessary consequence, he may receive payment without selling. But if he fails to levy before return day, his authority to sell afterwards ceases, and with it the right to receive payment in discharge of ^-e ma^’ course> receive payment at anytime before the return day without a levy. Tested by this principle, the first count in the declara^011 must held ° deficient in proper averments. It alleges that while the execution was in the hands of the deputy and a lien on the property of the debtor, the latter paid the deputy the whole amount of the debt in discharge of the execution. It does not, however, aver that the payment was made before the return day, or indeed when it was made; nor does it aver that the execution had ever been levied; so that every fact stated in the declaration may be true, and yet no liability may attach to the sheriff and his sureties by reason of the payment made to the deputy. The court is therefore of opinion that the demurrer to the first count ought to have been sustained. The court is further of opinion that, although a sheriff is liable to a fine, at the discretion of the proper court, for his failure to make due return of an execution, he is also liable to an action on his official bond by the party injured by such failure. The fine is in the nature of a punishment for a personal offence, and is not considered as'any satisfaction for the damage sustained by the creditor in being unjustly kept out of his money by the default of the sheriff or his deputy. When the fine is paid by the sureties of the sheriff, in any subsequent proceeding against them to enforce the j udgment !or decree upon which the execution issued, they will be entitled to a credit, upon the judgment .or decree for the amount of the fine, or fines, so paid. Code of 1873, ch. 49, § 28, page 475. See also McDonald v. Burwell, adm'r, 4 Rand. 317; Pardee v. Robertson, 6 Hill’s R. 550. 17The fifth count of the declaration is founded upon an alleged breach of duty in failing to make due return of an execution in the hands of the deputy. This count, although not so specific in its averments as it might have been, is substantially sufficient upon general demurrer. The circuit court did not, therefore, err in overruling the demurrer to that count, nor in overruling the demurrer to the remaining counts in the declaration. The court is further of opinion that the circuit court did not err in overruling defendants’ objection to the witness, James M. Bradford, introduced by the plaintiffs, as set out in the first bill of exceptions, nor in overruling defendants’ objection to the testimony of the same witness, as set out in the second bill of exceptions. Although the witness was the judgment debtor, and, was offered to prove, among other things, a payment made by him to the defendants’ deputy, he was not so directly interested in the result of the suit, or in the verdict and judgment to be rendered, as to render him incompetent to testify in the cause. His testimony was clearly admissible at that stage of the trial, to prove the payment, because the plaintiffs might adduce evidence tending to show the levy before the return day of the execution. If they failed to do so, it was competent for the defendants to move to exclude all that the witness said with respect to the payment made by him. The evidence set out in the third bill of exceptions was offered to show that the debtor, a few days after the payment, had directed that it should be applied to the plaintiffs’ execution, and that the officer made no objection. This evidence was properly left to the jury to determine whether the officer had acquiesced in the direction of the debtor, and whether, under the circumstances, the officer could properly apply any part of the money to other claims in his hands against the debtor. 18The court is further of opinion that the circuit court did not err in refusing to admit in evidence the execution set out in the fourth bill of exceptions. The return thereon showed it had been satisfied as far back as the 8th November, 1861. It was issued long after the plaintiffs’ execution. It had, therefore, no apparent relevancy to the matter in controversy, and its only effect was to con-fuse the jury by multiplying collateral issues. The bill of exceptions does not show what was the amended return defendants proposed to make on the execution. Whatever it was, the application to amend ought to have been made to the county court from which the execution issued, and not to the circuit court in which the case was then being tried. . The court is further of opinion that the circuit court erred in refusing to permit 13. F. Murray, the deputy sheriff, to testify as a witness in behalf of the defendants. The action was against the sheriff and his sureties for the default of this deputy in failing to pay over money collected under an execution. Second, for failing to levy and make due return of the execution. The witness was excluded upon the ground of interest in the result of the trial, arising out of his liability over to his principal, and because some of the sureties upon the official bond of the sheriff being dead, the plaintiffs could not testify under the statute. The language of the section of the statute relied on is as follows: And where, one of the original parties to the contract or other transaction, lohich is the subject of investigation, is dead or insane, or incompetent to testify by reason of infamy or other legal cause, the other party shall not be.permitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, &e. In the case of Grigsby v. Simpson, assignee, decided by this court and reported in the April number, 1877, of 19the Virginia Law Journal, pp. 280, 232 (28 Gratt. 348), this court, Judge Christian delivering the opinion, held that the test of competency under the section just is the cause of action in issue and on trial, not the fact to which the party is called to testify. If the cause of action was a matter transacted with a person who has deceased, the other partg to that transaction is not admitted at all, and cannot testify to any fact in the case, otherwise he is admitted as a witness. The object of the statute is to put the parties (to the contract or other transaction) on the terms of equality, so that when the lips of oue of them are closed by death, or other cause, the adverse party shall not be heard. The case of Mason v. Wood et als., 27 Gratt. 783, is not at all in conflict with this view. There the witness was called on to testify as to matters occurring after the death of one of the obligors, and of which the latter of course knew nothing; but this court held the witness incompetent Judge Anderson, delivering the opinion of the court, said that under the statute there was no limitation of the incompetency as to the subject matter of the testimony. The witness could not be heard at all as to any fact. The reason was the obligor, who had died, was a party to the contract which was the subject of investigation. In this case the transaction which was the subject of investigation was the alleged default of the deputy sheriff. All the parties to that transaction were living and competent’to testify in the cause. The sureties of the sheriff were liable on their bond for the default of the principal and his deputy, but they were not parties to the transaction which was the subject of investigation. They are neither within the letter nor spirit of the statute. Without, therefore, enquiring into the operation and effect of the release executed by the sheri, theft’ court is of opinion 20that the deputy is a competent witness for the defendants . ... 111 ™is case. The court is further of opinion that the circuit court committed no error in refusing the application set forth ’n the seventh bill of exceptions, or in permitting the witness to testify as stated in the eighth bill of exceptions. The court is further of opinion that the circuit court did not err in giving the first, third and fourth instructions asked for by the plaintiffs. The second instruction affirms the erroneous proposition already adverted to in connection with the first count of the declaration, and that is, that a payment made to the sheriff is valid to bind him and his sureties upon the official bond, although made after the return day of the execution, and although the execution was not levied upon the property of the debtor. This subject has been already discussed, and need not be further considered. Tor the reasons heretofore stated, this instruction is erroneous, and ought not to have been given. .And for the same reason the circuit court erred in refusing to give defendants’ third instruction. The court is further of opinion that the circuit court did not err in refusing to give the defendants’ fourth instruction. It is the duty of an officer receiving money to apply it in satisfaction of the oldest execution in his hands. But in this case it did not necessarily follow that because the sheriff may have had older executions in his hands than the plaintiffs’, it was his duty to apply to them the money received from the debtor in 1862. The plaintiffs had offered testimony tending to show that a .short time after the payment was made the debtor requested the deputy to apply the money to the plaintiffs’ execution; to which the deputy made no answer. This evidence was properly left to the jury, upon the question of the application of the payment with the consent of Ihe deputy. The court could not, therefore, give the 21defendants’ fourth instruction without a manifest disregard of this evidence. The court is further of opinion that the circuit court did not err in giving to the jury the instruciou substituted by the court for the defendants’ fifth instruction. Both instructions, the defendants’ and that given by the court, informed the jury that an officer receiving money under an execution, but residing in a different county from the creditor, is not liable to have a judgment, rendered against him or his sureties, for the non-payment thereof, until a demand of payment is made of such officer in his county or corporation, by’ the creditor or his attorney, or some'person having a written order from the creditor; and in this case if the jury believed from the evidence that the plaintiffs resided out of the county (the sheriff’s), and that no such demand for the said money was made, they cannot find for the plaintiffs as for money collected. To this the court made the following addition: “But the jury, in investigating the alleged breach of the condition of the bond for a failure to return the execution of the ‘plaintiffs against defendants,’ may consider whether from the evidence the fact that no demand was made (if such was the fact) resulted from ignorance of the collection of the money, growing out of the failure to return the said execution.” This addition was; perhaps, calculated, in some degree, to confuse the jury. When the creditor proceeds against the sheriff for money collected under an execution, a demand of payment in the sheriff’s county is absolutely essential if the parties reside in different counties. In such case it does not matter whether the execution is 'or is not returned, or whether the creditor is or is not ignorant of the collection of the money. But when the creditor is also suing for a failure to make due return of the execution, as in the fifth count, no demand of payment 22is necessary previous to a judgment for such breach. The gist °i’ the action is the failure to return the execution. circuit court might, therefore, have told the jury that so far as the action was for the failure to make return of the execution, no demand of payment was required. It wag not necessary to encumber the instruction with the ” qualification in regard to the ignorance of the plaintiffs. qualification, however, was not prejudicial to the defendants, and affords no just ground of complaint on their part. The court is further of opinion that the circuit court committed no error in refusing the seventh, eighth and ninth instructions asked for by the defendants. But for the errors already stated, the verdict and judgment must be set aside, and the cause remanded to the circuit court for a new trial, in conformity with the views herein expressed. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in overruling the demurrer to the first countin the declaration, and in refusing to permit B. F. Murray, the deputy sheriff, to testify as a witness in behalf of the plaintiffs in error, and in giving to the jury the second instruction of the defendant in error, and in refusing to give the third instruction of the plaintiff’s in error, and that there is no other error in said record. It is therefore considered by the court that for the errors aforesaid the said judgment of the circuit court.be reversed and annulled, and that the defendants in error do pay to the plaintiffs in error their costs by them incurred in the prosecution of their writ of error and supersedeas aforesaid here. And. this court proceeding to render such judgment as the said circuit court ought to have rendered, it is considered by the 23court that the verdict of the jury he set aside, and a new trial awarded; that the demurrer to the first count in the declaration be sustained, and leave given to the plaintiffs to amend their declaration, if they shall so desire, and upon any new trial to be had the said circuit court to conform to the judgment. And the cause is remanded to the said circuit court for further proceedings in conformity with the views herein expressed. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482015/	Staples, J. The questions presented by the demurrer to the declaration may be more satisfactorily disposed of in passing Upon the instructions and the motion for a new trial. Two of the instructions were given on the motion of the defendant, and of course there is no complaint with respect to them. The third was given by the court in answer to a question propounded by the jury. In order properly to understand the heaping of this instruction, it will be necessary to recur briefly to the facts upon which it was based. It seems that one of the charges preferred by the defendant, as mayor, against the plaintiff. as chief of police, and upon which the removal of the latter was partly founded, was, that the plaintiff “ had continued to act as agent for Dr. W. O. Owen, contrary to the express written and verbal order of the defendant, as mayor.” When this charge was under investigation before the defendant, the plaintiff was examined on oath by the defendant, and admitted that he “was agent of Dr. Owen, to collect his medical accounts and keep his. books;” hut he also proved that he had not neglected any of his duties as chief of police by reason of his being such 27ascent, and that he had not been occupied more than five minutes of his time any day in a year in attending to Dr. Owen’s business;- nor was there any evidence that he had ever neglected any of his duties as chief of police in consequence of such employment. The plaintiff also proved that he had been told by James W. Cobbs, the former mayor, John W. Carroll, president of the council, and Janees Garland, judge of the hustings court, members of the former police board, that he might act as such agent for Dr. Owen when it did not interfere with his official duties as chief of police, and that he had a like permission from two of the present hoard of police commissioners. It further appeared that while under Examination before the mayor the plaintiff said that he had acted, and would continue to act, as agent of Dr. Owen, notwithstanding the order of the mayor. These matters, as they occurred before the mayor, were proved during the progress of the trial in the court below. The jury having retired to consult of their verdict, came into court and enquired of the court whether or no the mayor had a right to prevent the plaintiff from acting as agent of Dr. Owen. To this, the following answer was made by the judge in writing: “If the chief of police had a license by an order or permission from the board of police commissioners to act as collector or agent of Dr. Owen, or if by so acting his official duties as such chief of police were or could in nowise be interfered with, and his efficiency as a public officer in nowise impaired thereby, then the mayor had no right to inhibit him from so acting as collector or agent. But on the other hand, if he had no such license or permission from the police board, and his so acting did in any wise interfere with his duties as chief of police, or render him in any way less efficient as a public officer, then the mayor had a right to inhibit him from so acting, if he in good faith 28believed that the public interest would be promoted by so prohibiting him.” The main objection to this instruction is based upon the idea that the mayor is the chief executive officer of the city of Lynchburg, and as such has the supervision and control of the chief of police; that the propriety of his orders to that officer, or to any other subordinate, cannot be called in question in any other tribunal; that this rule is essential to the enforcement of discipline and the preservation of order; that the judge of the circuit court ought so to have told the jury, and that his answer in the form in which it was given was calculated to lead the jury to the erroneous conclusion that they had the right to pass upon the propriety of the order in question. Without undertaking now to concede or to controvert the soundness of this proposition, I think it is sufficient to say that the learned judge of the circuit court, on the motion of the defendant’s counsel, and in the very language selected by him, had already fully stated the law applicable to this branch of the case. He had declared that the gist of the action is want of probable cause; and although the jury should believe the defendant was hostile to the plaintiff', and was actuated by malice, still, unless each one of the charges of the defendant was unsupported by any evidence tending to prove it, or the charge was in itself so frivolous that the defendant did not and could not reasonably regard it as a real offence, they must find for the defendant; provided the matter so charged related to the official duty of the plaintiff', and was a misconduct in office or a neglect of official duty, or such as the defendant might reasonably believe, and did honestly believe, w-as such misconduct or neglect of official duty. And the judge further told the jury, that if they believed from the evidence that any one of the specifications on which the defendant found the plaintiff' guilty 29was a misconduct in office or neglect of official duty, proved to the reasonable satisfaction of the defendant, and being so proved, was, in his opinion, just cause for the removal of the'plaintiff from office, they must find for the defendant. How, if these instructions, instead of preceding, had followed the answer given by the judge to the enquiry made by the jury, it is impossible there could have been any ground for misapprehension. The court gave the defendant all he asked. It laid down the law in his favor in the most liberal manner; and we must suppose the jury had the intelligence to comprehend and to remember what was said in the first as in the last instruction. Taking them all together, how are they to be construed? Plainly, as declaring that, although the jury might believe the plaintiff was not guilty of any neglect of duty in collecting Dr. Owen’s accounts, and although the defendant had no right to prohibit him from so acting, and although the defendant may have removed the plaintiff for a violation of his orders in that particular, the defendant could not be held liable if the conduct of the plaintiff was such as the defendant might reasonably believe, and did honestly believe, was a neglect of duty. In other words, however erroneous may have been the orders of the defendant, and however malicious his motives, he is exempt from all liability if the alleged mis•conduct or neglect of official duty was proved to his reasonable satisfaction,' and being so proved, was, in his opinion, just cause for the removal of the plaintiff from office. It is rarely that a case occurs in which the law is so fully and favorably expounded for one of the parties upon a question of this character. Under such instructions it might well be supposed that the jury would have found a verdict for the defendant, and it is very probable they would have so found, but 30that the plaintiff produced evidence tending to show that before any of the charges were preferred against him the defendant had determined to remove him from office, under color of his authority as mayor, in consequence of personal enmity and dislike, whether there was any cause for removal or not; and he also offered to show that the said charges were false and malicious, but was stopped by the court upon objections made by the defendant. Under all these circumstances, it is plain that the defendant did not and could not sustain any injury by the instruction given in answer to the question propounded by the jury. It is equally apparent, for the same reasons, that the court did not err in overruling the motion for a new trial. But there is another and more satisfactory reason which applies equally to the demurrer, to the instruction, and to the motion for a new trial; and that is, that the defendant, as mayor, had no power under the constitution and laws to remove the plaintiff from his office of chief of police. This question has been very ably argued by counsel, and has received the careful consideration of the court. The provision of the constitution under which this power is claimed as belonging to the mayor is found in section 20, article d, of that instrument. (Code of 1873, page 88.) It provides that the mayor shall see that the duties of the various city officers are faithfully performed. He shall have power to investigate their acts, have access to all books and documents in their offices, and may examine them and their subordinates on oath. He shall have power to suspend or remove such officers, whether they be elected or appointed, for misconduct in office or neglect of duty, to be specified in the order of suspension or removal. On the other hand, the amended charter of the city of Lynchburg (found in Acts of 1871-72, page 118), provides for a police department, to be under the control 31and management of police commissioners, consisting of the mayor, the president of the city council, and the judge of the corporation court. It is made their duty to appoint the chief of police, through whom they may promulgate all rules and regulations and orders to the whole police force of the city. The said chief of police holds his office during the term of two years, or until said board, for malfeasance or misfeasance, shall remove him; but in case of misconduct on his part, he may be removed by the votes of two-thirds of the city council. The mayor, at any time upon charges being preferred, or upon finding said chief of police to have been guilty of misconduct, shall have power to suspend him from office until the board of commissioners shall convene and take action in the matter; such suspension, however, not to last longer than ten dayp without affording the party an opportunity of being heard in his defence; and upon hearing the proofs a majority of the commissioners may discharge or restore him. See sec. 36, paragraphs 1, 2, 3 and 4, pages 128-9. It will be perceived there is an apparent conflict between these provisions of the Lynchburg charter and the clause of the constitution already cited. For if the chief of police be a city officer within the meaning of the constitution, he is subject to removal by the mayor only, and the provision of the charter taking the power from him and vesting it in the police board is null and void. This court has been repeatedly called on to pronounce legislative enactments void upon the ground of their repugnancy to the constitution, and it has always declined to do'so unless this repugnancy is, in its judgment, beyond all reasonable doubt. It has always proceeded upon the idea that the opposition between the constitution and the law is such that the judge feels a clear and strong conviction of their incompatibility with each other. "Whenever a statute can be so construed and applied as 32.to avoid conflict with the constitution such construction will be adopted. In the language of Mr. Justice Wash-“It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the constitution is proved beyond all reasonable doubt.” Ogden v. Saunders, 12 Wheat. R. 213, 270; Cooley’s Const. Limitations, page 182, 183. In the present case this rule of construction deserves special consideration, because the same provisions in regard to the appointment, control and removal of the chief of police are found in the charters of the cities of Richmond and Eorf'olk, and perhaps other cities, and the effect of an adverse decision by this court will be to annul important and salutary laws carefully framed for the government and security of the chief cities and towns of the commonwealth. Are we to declare these charters null and void? Are we to overthrow institutions deemed by the legislature and the people of the cities of the greatest value? I think not, unless upon very convincing reasons. It must be borne in mind that cities and towns are mere territorial divisions of the state, endowed with corporate powers to aid in the administration of public affairs. They are instrumentalities of the government acting under delegated powers, subject to the control of the legislature, except so far as may be otherwise expressly provided by the constitution. Although the mayor is invested with the power of removing city officers, it will not be denied, I imagine, that the legislature may establish an office and appoint the incumbent, who, although exercising his jurisdiction exclusively in the city limits, is not yet a city officer within the true intent and meaning of the constitution. This distinction is recognized in the clause of the consti33tulion already cited relating to the powers of the mayor. It is there declared that all city, town and village officers, whoso election or appointment is not provided lor by this constitution, shall be elected by the electors of said cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the general assembly shall designate. “All oilier officers, whose election or appointment is not provided for by this constitution, and all other officers whose offices may hereafter be created by law, shall be elected by the people, or appointed as the general assembly may direct.” Thus recognizing a distinction between those who are technically “city officers” and others whose jurisdiction and functions may be limited to cities, and yet are not considered “ city officers.” In the former case the appointment is always made by the electors of the city, or some authority of the city. In the latter case it is made in such mode as the general assembly may direct. Indeed it would be a most remarkable condition of things that the legislature, by the mere act of creating a municipal corporation, thereby divests itself of all jurisdiction and control of every officer elected or appointed for such corporation. Who, then, are the “ city officers,” in the true and literal sense of the term ? It is not easy to define them in all cases; but there ■ are many such provided for in the charter of the city of Lynchburg, and in the charters of other cities. Among those are, perhaps, city engineers and surveyors, officers having superintendence and control of streets, parks, water-works, gas-works, hospitals, sewers, cemeteries, city inspectors, and no doubt many others well known in large cities. Their duties and functions relate exclusively to the local affairs of the city, and the city alone is interested in their conduct and administration. On the other hand, there are many officers, such as 34city7 judge, sergeant, clerk, commonwealth’s attornej’, treasurer, sheriff, high constable, and the like, some of whom are recognized by the constitution, while others are not. All these are generally mentioned as city officers, and they are even so designated in the constitution ; hut no one has ever contended that either of them is in any manner subject to the control and removal of the mayor. The reason is, that while they are elected or appointed for the city, and while their jurisdiction is confined to the local limits, their duties and functions, in a measure, concern the whole state. They are state agencies or instrumentalities operating to some extent through the medium of city charters in the preservation of the public peace and good government. However elected or appointed, however paid, they are as much state officers as constables, justices of the peace and commonwealth’s attorneys, whose jurisdiction is confined to particular counties. That the chief of police is within the influence of the same principle is apparent from the most cursory reflection. Under the charter of the city of Lynchburg—and the same is'true elsewhere—he has generally the power to do whatever may he necessary to preserve the good order and peace of the city. It is his duty at all times to see that the police force preserves the public peace, to prevent the commission of crime, and arrest offenders, and protect the rights of persons and property. (Sec. 36, §§ 1, 2, 3, 4, page 128, Acts of 1871 and 2; Police Regulations, § 14.) Among the thousands of citizens and strangers that enter a great city in the course of a year, in pursuit of business or pleasure, there is not one that is not interested to a greater or less degree in this officer, not only as a conservator of the peace generally, but in the special protection he affords against violence and wrong. When the mob rages in the streets, when the incendiary and the assassin are at work, they do not 35offend against the city, but against the state. When they are detected and arrested it is by the chief of police and his subordinates, under the authority of the state laws aud as an office^ of the state; and when they are tried and convicted, it is by officers representing the state and her sovereign power. This distinction has been recognized and enforced in a number of well considered cases, and by able commentators. It is important, says Judge Dillon, to hear in mind the distinction between state officers—that is, officers whose duties concern the state at large or the general public, although exercised within defined territorial limits, •and municipal officers whose functions relate exclusively to the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern, while the enforcement of municipal by-laws, the establishment of gas-works, of water-works, the construction of sewers, and the like, are matters which pertain to the municipality, as distinguished from the state at large. And it has been several times determined that the legislature may, unless specially restrained in the constitution, take from a municipal corporation its charter powers respecting the police and their appointment, and by statute itself directly provide for permanent police for the corporation, under the control of a board of police not appointed or elected by the corporate authorities, hut consisting of commissioners appointed by the legislature.. Baltimore City v. Board of Police, 15 Maryland R. 376; People v. Mahaney, 13 Mich. R. 481; People v. Draper, 15 New York R. 532, where the act to establish the Metropolitan police district was held constitutional; Police Commissioner v. City of Louisville, 3 Bush. Kentucky R. 597; Diamond v. Cain, 21 La. Ann. R. 309; State of Louisiana v. Levi, Id. 538. The cases concur in holding that the police officers are 36in fact state offices’s, and not municipal, although a particular city or town be taxed to pay them. 1 Dillon on Municipal Corporations, §§ 33, 34; § 773 and note 1, where the foregoing view's are expressed. In Buttrick v. City of Lowell, 1 Allen’s R. 172, it wras held that a city is not liable for an assault committed by its police officers, even though it was done in an attempt to enforce an ordinance of the city. Bigelow, Chief Justice. delivering the opinion of the whole court, said: “Police officers can in no sense be l'egarded as agents or officers of the city. Their duties are of a public nature, their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection' and arrest of offenders, the preservation .of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted, are derived from the lawr, and not from the city or town under which they hold their appointment.” In the case of the People v. Hurlbut, 24 Mich. R. 44, the question was as to the constitutionality of a statute creating a board of public works for the city of Detroit, appointed by the legislature, and having cha3’ge of the city buildings, with authority to make contracts on behalf of the city, and to do many other things of a legislative character which generally belong to the common councils of cities alone. The whole subject was discussed by Chief Justice Campbell and Judge Cooly, in opinions evincing profound research and ability. Chief Justice Campbell drew a distinction between the police 'act under which a board of police commissioners was appointed for the cities, and the act then under consideration, wdiich was known as the public works acts. He said: “ The general purposes of the police act were such 37as appertain directly to the suppression of crime and the administration of justice. There is therefore no constitutional reason for holding it to be other than a regulation of matters pertaining to the general policy of the state and subject to state management. The police board is clearly an agency of the state government, and not of the municipality, whereas the purposes of the public works act ívere directly1' and evidently local and municipal.” 81-83. Judge Cooley said in the course of his opinion: “Tor those classes of officers whose duties are general, such as the judges, the officers of militia, the superintendent of police, of quarantine, and of ports, by whatever name called, provision has, to a greater or less extent, been made by state appointment. But these are more properly state than local officers; they perform duties for the state íd localities, as collectors for the general government, and a local authority for their appointment does not make them local officers when the nature of their duties is essentially general. In the case before us the offices in question involve the custody, care, management ¡.nd control of the pavements, sewers, water-works, and public buildings of the city, and the duties ai;e purely local.” In Cobb v. City of Portland, 55 Maine R. 381, the same question was presented, and was decided in the same way. Dickerson, J., delivering the unanimous opinion of the court, said : “ But the plaintiff was not agent or servant of the city of Portland, nor w7as the policeman whom he arrested. Both were acting under the authority ■of the state, as the conservators of the public peace, the peace of the state, not the peace of the city of Portland alone. It is true they derived their authority immediately from the city of Portland, but that was done by the legislature as a matter of convenience.” 38While engaged in the service stated (preserving the peace), they represented the authority and dignity of the state, and not that of the city of Portland. The cases of Fisher v. Boston, 104 Mass. R. 87; Cobb v. City of Portland, 55 Maine R. 381; The, People v. Draper, 25 Barb. R. 341, 374; Mayor of Baltimore v. State Board of Police, 15 Maryl. It. 376, are in entire accord with the decisions already cited. See also 2 Dillon, sec. 773, and notes, and numerous cases there cited. The distinction recognized in all of them is between officers whose duties are exclusively of a local nature and' officers appointed for a particular locality, but yet whose duties are of a public or generaL nature. When they are' of the latter character they are state officers, whether the legislature itself makes the appointment or delegates its authority to the municipality. The state, as a political society, is interested in the suppression of crime and in the preservation of peace and good order, and in protecting the rights of persons and property. Ro duty is more general and all-pervading than this. It extends alike to towns and cities as .to the country. It looks to the preservation of order and security in the state, at elections, and at all public places; the protection of citizens, strangers, travellers at railway stations, at steamboat landings; the enforcement of the laws against intemperance, gambling, lotteries, violations, of the Sabbath, and, in fine, the suppression of all those disorders which affect the peace and dignity of the state and the security of the citizen. The instrumentalities by which these objects are effected, however appointed, by whatever name called, are agencies of the state, and not of the municipalities for which they are appointed or elected. The whole machinery of civil and criminal justice, says a learned judge, has been so generally confided to local agencies, it is not strange if it has sometimes been 39considered as of local concern. But there is a clear distinction in principle between what concerns the state and that which does not concern more than one locality. These are the principles established b}’ the cases already cited. Against them not a decision, not even the dictum of a writer has been produced, except a single observation contained in the opinion of this court, in Burch, Mayor, v. Hardwicke (the same parties now before the court, reported in 23 Gratt. 51), where Judge Bouldin seems to concede that the power of removing the chief of police is vested in the mayor. It is, however, but just to say that the question received but little consideration by this court' in that case; nor was there anything in the case itself requiring a decision of the point. The real contention was, whether the writ of prohibition would lie in the case. Judge Bouldin laid down the rule as well established, that the writ of prohibition is a proceeding between courts bearing the relation of supreme and inferior, and that it does not lie from a court to an executive officer. The case ivas disposed of upon that ground alone, and all that was said outside of it was an obiter dictum of the court. That decision, therefore, does not preclude us from determining the present case according to our best convictions. If the view already taken be correct, it is plain that the defendant, in removing the plaintiff from his office of chief of police, exceeded his powers. This being so, it is quite immaterial to enquire whether the instruction of the circuit judge be strictly correct. Plainly the defendant could not be prejudiced by it; for if it be conceded that the plaintiff was not justified in disobeying the order given him, the defendant exceeded his powers in removing him on that ground. All that the defendant could do was to suspend the plaintiff until the matter could be investigated by the board of police commissioners. It is no part of our duty to enquire into the motives of 40the legislature in creating a board of police for the cit}7 of Lynchburg, or any other city, and in clothing it With the absolute control of the chief of police. The legislature may have supposed that the mayor being elected by toe popular vote, might be under strong temptation to use the police force tor the purpose of securing his own promotion and success. It is not to be denied that in a large and populous city such a body of men, dependent upon the will of one man, may become a political engine of mischief in times of high political and party excitement. On the other hand, a board of police composted of the mayor, the president of the common council, and the judge of the hustings court, would be equally as efficient as the mayor in the control of the police department, especially when the latter is invested with the power of suspension for a disobedience of order's or other misconduct. Three of the largest cities of the state have been acting under the same system for several years, and no complaint has been made of the want of discipline, insubordination and good government in either of them. In such case nothing would justify the interference of the courts except the clearest conviction that the constitution had been violated. Another question argued before this court is, whether the mayor of a city, in exercising the power of removal of a subordinate, can in any case be held liable for damages, however malicious or corrupt may have been his motives. Upon this question a great number of authorities have been cited on both sides. Some of these maintain the doctrine that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, or however malicious the motive which produced it; and this rule extends to judges, from the highest to the lowest, and all public officers, whatever name they may bear, in the exercise of judicial powers. 41On tlie other hand, there are numerous authorities which hold that this exemption from civil liability is confined exclusively to those judges of general jurisdiction whose proceedings are matters of record, and has no application to inferior judges and others whose acts are not verified by record evidence. Whatever may he the conflict of judicial opinion on this point, all the authorities are agreed that when the judge or other officer has no jurisdiction over the subject matter, and when the act of which complaint is made is maliciously or corruptly done, he is liable in damages to the party aggrieved by his conduct. This whole question is discussed in a very able opinion of Mr. Justice Field, in Bradley v. Fisher, 13 Wall. U. S. R. 335. I do not deem it necessary to refer to any other authority upon this point. In the present case it is clear that the defendant exceeded his jurisdiction in removing the plaintiff; and it must he assumed that he was prompted by malice in doing so, for the plaintiff offered to prove the fact, but was prevented by the objection of the defendant; and the defendant cannot now7 he heard to deny the existence of malice on his part. There is no doubt but that the defendant believed that the power of removal was vested in him by the constitution, and for an innocent mistake iu assuming that power, under all the circumstances, no jury or court would he inclined to hold him responsible in damages. It is only when the power is used for the gratification of personal hostility and dislike, that the question assumes an entirely different aspect, and in that aspect alone it is now presented to this court. It has been suggested, however, that the action is based upon an actual removal of the plaintiff' from his office by the d fendant; and according to the present view7, the proceeding of the defendant wras a mere nullity, and the 42plaintiff was still the incumbent of the office. It is suffi cient to say that the plaintiff', as a matter of fact, was removed from his office and denied the privilege of exercising its functions by the defendant; and however illegally it may have been done, it was a power exercised under co lor of the office of mayor, and it does not lie in the mouth of the defendant to evade liability for his acts upon the ground that he exceeded his powers and jurisdiction. The plaintiff attempted to restrain the defendant from removing him from his office by judicial process; but was denied relief upon the ground that the courts had no power to award a writ of prohibition against an officer exercising merely executive functions. After this the plaintiff', instead of continuing an angry and unseemly contest with the defendant, perhaps to the injury of the city of Lynchburg, might well acquiesce in his ejection from the office, and resort to the courts for redress of any wrong he had sustained. The defendant has certainly no cause to complain that this course has been pursued. As all the testimony is not before us, it is impossible to say that the damages are excessive. This may be said, however, that the case was tried by an intelligent and impartial jury, before an able and impartial judge, all of whose rulings were of the most favorable character for the defendant. It is scarcely necessary to add that the circuit court did not err in overuling the motion for the new trial, either upon the merits of the case generally, or upon the special grounds upon which the motion was based in the lower court. My opinion, therefore, is to affirm the judgment. Moncure, P., and Anderson and Lurks, J’s, concurred in the opinion of Staples, J. Christian, J., dissented. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482016/	Anderson, J. Luther Pixley, one of the appellees, on the 9th day of June, 1874, executed his deed of homestead, setting apart certain personal property which he valued at-$8l6, and claiming the residue of what he was entitled to under the homestead law out of his hotel situate in Clarksville, which he valued at $3,000, which deed was afterwards, on the 11th of June, admitted to record. Afterwards, on the 1st of August, 1874, the said Luther Pixley and Hannie, his wife, united in a deed conveying in trust to W. E. Homes, trustee, to secure a debt due from the said Luther Pixley to W. T. White by bond for $2,888.97, with interest thereon from the 1st of September, 1874, till paid, and also “ a further amount to said White, not now recollected,” the said hotel in the town of Clarksville, with all of the real estate thereto attached; also all of his personal property “ except what is known as the poor debtor’s exemption under the laws of 1860.” 45The personal property is specified, and embraces all that is contained in his homestead deed, and likewise all of the real estate. At the September term, 1874, of the Mecklenburg circuit court, T. R. Owen obtained a judgment against George A. Reardon and Luther Pixley for $612.50, with interest and costs, and subsequently brought his bill in chancery to set aside the said deed of trust as usurious and fraudulent, and to subject the property conveyed by it to the satisfaction of his- judgment, making Pixley and wife, Homes and White parties defendant. Pixley, White and Homes answered severally, and each of them denied the allegations of fraud and usury. Afterwards the deposition of Pixley was taken by the plaintiff Owen to contradict his answer, but it is unsupported by any other witness, and is contradicted by the depositions of Homes and White, the former of whom does not appear to have any interest. The allegations of fraud and usury are not sustained by the proofs in the cause, nor by the decree of the court, and there is no appeal from the decree on that ground. But a petition was filed in the cause by Luther Pixley, settingup his homestead deed aforesaid, and-claiming the full benefit of it, both against Owen’s judgment and W. T. White’s deed of trust. And the court held by its decree of the 6th of December, 1876, that the deed of homestead is entitled to precedence over the said deed of trust, and that the deed of trust preceding in date is entitled to priority over the judgment in favor of plaintiff. Prom so much of said decree as gave precedence to the homestead deed over the deed of trust, this appeal was taken by W. T. White and W. E. Homes, the trustee, and it presents the question for the decision of this court: Can property which has been set apart by a householder and head of a family, by his deed of homestead, duly recorded, be subjected by his subsequent deed of 46ti’ust, his wife uniting therein, to the payment of his debts ? In other words, is property, after it has been so set apart, exempted by the constitution of this state from sale under the deed of trust? This question can only be determined by7 a right understanding of Aidicle XI of that instrument. To construe this article ai’ight, it will not do to assume that the framers of the constitution had an object in view in the homestead provision, or ought to have had, which the language they employ does not impart, and then to supply temis to attain the supposed or desired object. Thus.whilst it plainly appears that it was their purpose to enable the householdei’ or head of a family-to set apart and hold such portion of his property as does not exceed $2,000 in value, exempt from execution or other legal pi’ocess, if there is no language employed conveying the idea that it should be so held by him as to be thei'eafter exempt from sale or incumbrance by his own act, we cannot assume that such was the intention of the framers of the constitution, even though we should think it was proper and 3’easonable to have imposed such a restriction upon his 3’ight to dispose of his propei'ty by7 his own act, or because we can see no good reason why the constitution should autho3’ize the householder to exempt his property from execution, and allow him the unrestricted right of disposing of it by his own act. They may have had reasons for the distinction which were satisfactory to themselves, though not satisfactoi’y to us. We cannot be responsible for the reasons which influenced the framers of the constitution; nor is it incumbent on us to show that in pi'oposing one object, as for instance the exemption of the debtor’s property, or a pait of it, from sale under execution or other legal process, that the other object, to leave the owner unrestricted in his right to dispose of it by his own act, was not inconsistent or unreasonable. But whilst I hold these to be sound principles of con47struction, I do not think that there is anything unreasonable or inconsistent in the object and intention of the framers of this article to authorize the householder or head of a family to set apart and hold his property, or a part of it, exempt from sale under execution or other process, and at the same time to leave him the unrestricted I’ight of disposing of it by. his own act. .Let us now, by an inspection of the article, ascertain from its language what was the intention of its framers. Though it may be a labor barren of interest and attractiveness, yet it seems to be necessary. Section 1 provides that every householder or head of a family shall he entitled to hold his property, to be selected by him, not exceeding the value of $2,000, in addition to what is exempted by the poor laws, “ exempt from levy, seizure, garnisheeing, or sale under auy execution, order or other process.” It does not declare that his property shall he exempt, absolutely as by the laws known as “the poor laws.” But he shall be entitled, not required, to hold it exempt If he chooses he may hold it exempt. He cannot be compelled to do it. There is no power vested in his wife or children, or other member of his family, to require him to hold it exempt. He shall be entitled to hold exempt. Hot his wife or children shall be “entitled,” but he personally. It is a discretion or privilege wholly conferred on him. And it does not entitle him to hold it exempt in general, but only from sale under any execution, order or other process. It evidently has reference to sales by judicial procedure, or under legal process, as contradistinguished from sales by his own act, as by mortgage, deed of trust, pledge, or other security created by Ms own act. This is made plain by section 3, where it is expressly declared that “nothing contained in this article (in no section of it, nor in all the sections taken together) in this ■article, shall be construed to interfere with the sale of the 48property aforesaid, or any part thereof, by virtue of any mortgage, deed of trust, pledge or other security thereon.” it is contended that this third section means only sales made under mortgages, &c., which were executed prior to the setting apart of the property by deed of homestead; or if subsequent, not for antecedent debts. My answer is, there is no such restriction or qualification in the language of the instrument, and no language employ ed which implies such an intention as either by the framers of the constitution. The language is general, “avy mortgage, deed of trust, &c.,” which embraces all mortgages or other securities, whether given before or after the deed of homestead, and whether given for antecedent or subsequent debts. And it is further objected that the section does not apply to property which has been set apart by deed of homestead, so as to inhibit an interferance with its sale under deed of mortgage, &c. The language is, “of the property aforesaid, or any portion thereof.” In section 2, next preceding, it is provided that “the foregoing section (section 1) shall not be construed as subjecting the property hereby exempted, or any portion thereof, to any lien by reason of any execution levied on property which has been subsequently restored to the defendant,” or to other lieu described in the section. The property herein mentioned, which shall not be subjected to the liens described in the section, is unquestionably the same property which is referred to in the third section as the “ property aforesaid.” The property, which is not to be subjected to the liens mentioned in section 2, is “ the property hereby exempted,” which can only be the property which has been selected and set apart by the householder by his deed of homestead, for until that is done it is not exempted. And this is the property which, as declared in the third section, that nothing in the homestead article shall be construed to interfere with the sale of, under mortgage, deed of trust, &c. 49But if the provision is not made with reference to the property exempted by the homestead, to what property ■of the householder can it apply ? If it should be said that it applies to the property which by the first section he is entitled to hold exemptfrom execution, that cannot beknown as exempted property, and is not, in fact, exempted properly until it is set apart by the deed of homestead, and after being so set apart and exempted, it may be sold under any mortgage, deed of trust, pledge or other security, whether given before or after it is so set apart by the owner; for the language is broad enough to embrace both descriptions, and there is no exception or qualification. And I think it will be seen in the further investigation of the subject that this interpretation is consistent with the whole scope of the homestead article, and with all its parts. I find nothing contained in this article which shows an intention to divest the householder and head of a family of his property, and of the unrestricted right to dispose of it as he chooses—nothing, which °by express terms or by implication, divests him of his title, and vests it in his wife and children, severally or jointly with himself. If it could be construed to divest him of his property and to vest it in others, it would operate to vest in persons, if he had no wife or children, who bore to him no such relation—to any who might constitute his family, though not even of his kindred. Such can hardly be conceived to have been the intention. It is plain that the whole purpose and intent of the article was to enable the owner of the property, if he desired, for the benefit of his family, to hold so much of it exempt from execution or other legal process as did not exceed in value $2,000. There is not a sentence or syllable in the whole article which indicates a purpose to deprive the owner of the property of his jus disponendi, or to hold it exempt 50from seizure and sale, except under execution, order or other judicial process. Hor is there in the deed of homestead which he is authorized to make by the act of assembly pursuantto the fifth section of this article of the constitution. It is not an alienation of his property. It does not divest him of his title and vest it in others. It is merely designed to set apart—to designate the portion of his property which he claims to hold under the homestead provision of the constitution, exempt from seizure and sale under any execution, order, or other legal process, and to give, notice of it to the world. • But it is contended that although the title does not pass by his deed of homestead from himself to others,, it is a covenant on his part to hold it for himself and others, and. that he cannot afterwards alien or encumber it. There is no express trust. If it can be implied, what is the object and purpose of the trust ? It cannot exceed the powers vested in the householder by the constitution ; that is, to hold it exempt only from execution or other legal process. He is not required to hold it for the uses of the trust, exempt from sale under mortgage, deed of trust, pledge or other security, to which he may choose in the exercise of his jus disponendi to subject it. The sale or encumbrance of the property by the owner himself, after he has executed the deed of homestead, is not incompatible with such a declaration of trust. His agreement to hold it exempt from levy, seizure and sale under execution for the benefit of himself and family, as he. is authorized to do by the constitution, does not forbid his making sale of it, or encumbering it. Such an inhibition might not be for the benefit of his family. It might be seriously to its disadvantage. The right to alien or encumber might be necessary to give him credit, or the means of providing for his family’s subsistence, whilst a sale under execution or other process would take it away from his family without yielding anything in return 51to contribute to its support. The effect might be the same of a sale under mortgage to satisfy antecedent debts. .Hut that would be no worse than a sale under mortgage which was executed prior to his deed of homestead. And it is conceded that he could not hold his homestead exempt from sale under prior mortgage. The framers of the constitution seem to have considered that there were grounds for a distinction between sales under execution or other legal process and sales made under mortgage or deed of trust, or other securities created by the act of the party. Hence they authorized the owner of the property to hold it exempt in the one case whilst they did not in the other. And now, if after the execution of the deed of homestead, the householder must be regarded as holding the property in trust for the benefit of himself and family, it is only that it may be exempt from sale under execution, or other process (for no other exemption is authorized by the constitution) and does not and was not intended to interfere with his right to alien or encumber the same. The fifth section does not vest the homestead in his family. It only authorizes the legislature to prescribe in what manner and on what conditions he may set apart and hold for the benefit of himself and family a portion of his property exempt from execution or other legal process. This section was designed to provide for carrying into execution the homestead provision, which the legislature has done by chapter 183, Code of 1873, page 1168: After authorizing every householder and head of a family, almost in the precise language of the constitution, to hold a portion of his property not exceeding in value $2,000, to be selected by him, exempt from execution or other process—which evidently means judicial or legal process—it provides in section 3, that nothing in this act shall be construed to interfere with the sale of said property, or any portion thereof, by virtue of any mort52gage, deed of trust, pledge, or other security thereon. “ Other security ” means, of course, security of a like character; that is, such as is created by his own act. This provision of the act is in exact conformity with the constitution. But the legislature has gone beyond the requirements of the constitution, it seems to me, in restricting the rights of the owner of the property, by section 7 of this act, where it provides that a homestead so set apart “shall not be mortgaged, encumbered or aliened by the owner, if a married man, except by the'joint deed of himself and wife, executed and acknowledged after the manner of conveyance of lands of a married woman,” &c. This provision seems to be designed to protect the wife against alienations or encumbrances by the husband without her consent, whilst such purpose is not contained within the article of the constitution, but only to entitle the husband- to afford that protection against sales under execution or other process of his property, or so much of it as was necessary for the use of his family. But, as in this case, the wife united with her husband in the deed of trust, it is unnecessary to decide this question. It is also provided in said third section that “in all cases where a debtor or contractor shall declare in the body of the bond, note or other evidence of the debt or' contract, that he waives as to such debt or contract the exemptions from liability of the property which he may be entitled to hold exempt under the provisions of this act, the said property, whether previously set apart or not, shall then be liable to be subjected for such debt or contract, under legal process, in like manner and to the same extent as other estate of the said debtor or contractor,” &c. If a mere waiver by the householder of his right to exemption, after he had set apai’t the property which he claimed in his deed of homestead, would render the property so set apart subject to the payment of his debt, the 53conveyance of said property by mortgage or deed of trust for the payment of the said debt, would effectually subject it to the payment of the debt. For it is in effect, and to all intents and purposes, a waiver of his right to exemption. The constitutionality of this clause of the said third section of the act aforesaid was brought in question in re Joseph Solomon, 2 Hughe’s R. p. 164, and was held to be constitutional. It is true that the waiver in that case was made prior to the deed of homestead, and the decision was only in reference to the validity of the waiver prior to the setting apart the property claimed as the homestead; yet Chief Justice Waite, in considering the question as to the constitutionality of this provision of the act, makes no distinction between prior and subsequent waivers. And his reasoning tends to sustain the waiver, whether made before or after the homestead deed. And the reasoning of this court in the recent decision.of Reed v. The Union Bank of Winchester, 29 Gratt. 719, Judge Christian, delivering-the opinion, fully sustains the views which I have taken of the constitutional provision in relation to the homestead. Judge Christian says, speaking for the whole court: “ Thejus disponendi is one of the most valuable incidents of property. "Without it property is of little or no value. The value which this right gives to property is a benefit to the family as well as to the head of the family. In the impovished condition of this state the great majority of householders and heads of families do not own over $2,000 worth of property. If this could not be the basis of credit; if the head of the family is prevented by the fact that he cannot waive his homestead from obtaining credit, his family must of course suffer by it. So far from being a benefit to his family, it would seem to me a positive disadvantage to allow him to hold \|2,000 worth of property upon which 54he could never raise a dollar for the support of his family, • • • or the education of his children. The true interest and benefit to the family is, I think, to utilize the pro: perty exempted and to make it the basis of credit. This reasoning is as appropriate and as persuasive to enforce the right of the householder to dispose of his property, after it has been, set apart, as before.” These conclusions have been drawn from the homestead article of the constitution itself, seeking only to arrive at the intention and design of the instrument and its framers from the language they employed. And if it be said that the design and purpose are different from what w7as supposed to have been intended by the framers of the constitution, our only reply is, ita lex scripta est, and that must be our guide. It is not the province of the courts to make constitutions and laws, but to expound and enforce them as they are written. I have deemed it unnecessary to go outside of Virginia to consider the decisions upon the homestead provisions of other states, or to reconcile them with the foregoing views, there being essential differences in our homestead law and that of several of the states, as shown by Judge Christian, supra, to which I beg to refer. Upon the whole I am of opinion to reverse the decree of the circuit court so far as it gives precedence to the homestead deed over the deed of trust, and to affirm it so far as it is not inconsistent with this opinion. Staples, J., was of opinion that a conveyance of or encumbrance upon the homestead by the husband, his wife uniting therein, is effectual to divest the title to the homestead, and as that was done in the present case by the deed of trust, the property is liable to the claim of the trust creditor. Whether the husband may alien or encumber the homestead without the concurrence of the 55wife, is a question which does ¡not arise in this case. He did not desire, therefore, to be understood as expressing any opinion upon that question. Moncure, P., concurred in the opinion of Staples, J. Christian, J., concurred in the opinion of Anderson, J.- The decree was as follows: Upon thepnotion of the appellant, by his counsel, it is ordered that so much of the decree entered in this cause on the 22d day of March, 1878, as remands the cause to the circuit court of Mecklenburg county, be set aside; and this court proceeding to render such decree as ought to have been rendered by the said circuit court, it is decreed and ordered that the plaintiff’s bill be dismissed with costs. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482017/	Staples, J. This is a controversy concerning the probate of a paper purporting to be the last will of Mrs. Ann P. Hatcher. The parties in the court below waived a trial by jury and submitted the whole matter to the 58determination of the judge, who, after hearing all the evidence, was of opinion that “the paper writing in question is not the last will oí Ann P. Hatcher,” and refused to admit the same to probate. From that order an appeal was taken to this court. The only question in the case we have to determine is, whether the will was subscribed by the witnesses in the presence of the testatrix in the manner required hy the statute. Upon this question there is some conflict in the testimony, and if the learned judge of the circuit court had based his decision upon the credit given by him to the -witness against the will rather than to those in its favor, this court, upon familiar principles, would not undertake to reverse that decision, unless, indeed, in case of a plain and palpable mistake or error. It is obvious, however, that the learned judge proceeded upon no such ground. His written opinion, which is part of the record, shows that, according to his view, it is necessary to a valid will that every fact relating to the execution of the instrument and the sanity of the testatrix, shall be proved by the two subscribing witnesses. After citing the statute and a decision of Chancellor Walworth, in Scribner v. Crane, 2 Paige R. 147, he proceeds as follows: “Judge Brooke, in the case of Dudleys v. Dudleys, 3 Leigh, 436, reiterated in Clarke and others v. Dunnavant, 10 Leigh, 13, 29, says: ‘that however full the testimony of one witness may be to prove a will, our statute requires two witnesses to the facts -which are necessary to be proved.’ Let us, then, apply these principles to the case before us.” The learned judge then comments upon the evidence of the two subscribing witnesses—first of Dr. Grymes, and then of Clarke. He declares that they are at points; that Clarke says that he never at any time heard Mrs. Hatcher acknowledge the will; that he did not see her sign or make her mark as a signature; she did not speak while he (Clarke) was 59in the room, nor is it pretended that she ever spoke after-wards ; and, to use his own language, she was in a “ dying condition,” and her eyes set in death. The learned judge then asks: “Is it necessary, then, that two witnesses should certify to their knowledge of the mental capacity of the testatrix at the time the paper is completed; that it was executed by her freely and understandingly, with a full knowledge of its contents ? Surely Clarke could not so testify.” After these explicit avowals, I cannot see how it is possible to avoid the conclusion that the learned judge was of opinion that the two subscribing witnesses must prove the proper execution of the will and the capacity of the testatrix; and .his rejection of the will was based upon the absence of such proof in this case. This view is strongly confirmed by the fact that, although there is other testimony in the record besides that of the two subscribing witnesses, bearing directly upon the question of the due execution of the will and the capacity of the testatrix, no allusion is made to that testimony. It is impossible for this court to say what would have been the decision of the circuit j udge had he felt himself at liberty to consider the evidence of the other witnesses, or had he been of opinion that a will may be proved by one of the subscribing witnesses only. It is fair to presume that if he had believed that Mrs. Hatcher was unconscious at the time of Clarke’s attestation, or had he believed upon the whole evidence that the will was not duly executed, that he would have so declared, instead of confining his view to the testimony of the two subscribing witnesses as affected by the particular rule of law announced by him. At all events, a careful reading of the opinion would satisfy every one that the judge of the circuit court refused the probate, not because he believed the statement of Clarke in preference to the other evidence, 60but because he held to the idea that the will must be proved, as also the capacity of the testatrix, by the two subsciibing witnesses. I have thus dwelt upon this point because it is necessary to understand precisely the ground upon which the will was rejected in the court below. Hor all will agree that if that decision was based, not upon the weight and credibility of all the evidence, but upon an erroneous principle announced, with respect to the number of witnesses required to establish a particular fact, the parties have a right to insist that the case shall be reviewed in this court. The farthest this coui’t has gone is to declaré that the decision of the ti’ying court for or against the will, is to conclude all mere questions of fact depending upon the credit to be given to the witnesses. Jesse et als. v. Parker's adm'rs, 6 Gratt. 57. The question then arises, Is the construction of the statute correctly give3i by the learned judge of the circuit court? The opinion of Judge Brooke, in Clarke et als. v. Dunnavant, from which the extract is given, was not concurred in by the two other judges who sat in that case. Judge Parker said: “ The law regulating devises requires reasonable proof that every statutory provision has been complied with, but it does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by two or more credible witnesses, nor that frail memory shall change its nature and perform impossibilities.” And this was the view taken by Judge Tu.cker. '' ■ In Pollock and wife v. Glassell, 2 Gratt. 439, 462, Judge Baldwin said: “The statute does not prescribe the number of witnesses by whom a will shall be proved, but the number only by whom it shall be attested. Any one of the subscribing witnesses may prove the execution of the will and its due attestation by himself and the others, and if his testimony be satisfaetoiy, it is sufficient. If this vrere otherwise, then the proof of a duly attested 61will might be defeated by the death or forgetfulness of some of the other witnesses.” In this part of the opinion I understand all the judges as concurring, including Judge Brooke, In Jesse v. Parker's adm'rs et als. 6 Gratt. 57-64, Judge Allen, delivering the opinion of the whole court, said that, “ Although there must be satisfactory proof that every statutory provision has been complied with, in order to establish a will, the law does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by a specific number of witnesses. If such proof were to be required from each subscribing witness, validity of wills would be made to depend upon the memory and good faith of a witness, and not upon reasonable proof .that all the requirements of the statute had, in fact, been complied with.” The authorities elsewhere are equally explicit in support of the same doctrine, as may be seen by reference to the cases cited in Judge Baldwin's opinion, and in Tarrant v. Ware, 25 New York, 425; Nelson v. Mc Giffert, 3 Barb. Ch. R. 158; Jauncey v. Thorne, 2 Barb. Ch. R. 40. The law would seem, therefore, to be too well settled to be called in question. It is now to be considered whether the will in this case was properly executed. I think it may be regarded as proved beyond controversy that the will was written at Mrs. Ilatcher’s request; that every word of it was dictated by her; that it is in conformity with her wishes; that it was subscribed by Dr. Grymes in her presence and at her request, and that she was at that time possessed of ' sound and disposing mind and memory. It may be assumed also, as fully established by the evidence, that Clarke, the other attesting witness, was present in the room when the will was written, when it was signed by the testatrix, acknowledged by her and at62tested by Dr.-Grymes; and was a witness to these acts as they were successively performed. In regard to these matters there can be no solid ground for dispute. The real difficulty in the case is in ascertaining whether Clarke subscribed the will “in the presence of Mrs. Hatcher.” "Was she at that time in a condition to know and understand that the paper he was attesting was the same she had caused to be written and had signed and acknowledged as her will ? "When she was told by her physician that she must die very soon, she said she wished Mr. Brooks, an attorney, sent for. She was told he could not get there. She again peremptorily said, I want Mr. Brooks sent for. Being told it was useless, he could not reach there in time, she called Mr. Cheatham and asked him to bring pen, ink and paper, which he did, and the will vras written as she dictated. She "was asked if that was the disposition she desired of her property ? She said yes; except she wished to leave Bettie Ferguson $1,500, and to Desdie Lester her gold watch. This clause being added, the wall was read over to her a second time. She said it was as she wished it. She was asked if she was ready to sign. She said no; she wanted to read it—called for her glasses and seemed to be reading it—then called for a pen. It was suggested that Mr. Cheatham would sign for her. She said no; she generally did that sort of business herself. She took the pen and her hand trembled; she then handed it to Cheat-ham, saying, you sign my name and I will make my mark; which was done. Dr. Grymes then said, do you wish me to sign it as a witness ? She said she did. And he then subscribed his name .in her presence. All will agree that up to this period Mrs. Hatcher displayed good sense, clearness of mind, and a resolute purpose, with regard to the disposition of her property. After Dr. Grymes had signed the will, Mr. Cheatham said to Clarke, who was in the room, you can also act as a 63witness. And there is no doubt that Clarke then expected to become a subscribing witness. He was, however, not then further called on. The reason was that none of those present supposed it to be necessary for two witnesses actually to subscribe the will. Immediately after these occurrences, Clarke was sent for a Mrs. Morris, a lady living a mile and a half distant, to assist in attending -to Mrs. Hatcher. During his absence it was ascertained, by a message from Mr. Lester, that two subscribing witnesses were necessary. It became the subject of conversation in the room in the presence of Mrs. Hatcher. To use the language of the witnesses, it was talked about that it was necessary for Clarke to sign. A messenger was at once dispatched for Clarke. When he returned and entered the room Dr. Grymes remarked it was necessary for him to sign, saying to Clarke, you were present and saw Mrs. Hatcher sign it, and heard her acknowledgment when I signed it ? He said yes, he was. He was told it was necessary to sign in the presence of Mrs. Hatcher. The will was taken from a chair and subscribed by Clarke within a few feet and directly in front of her. Dr. Grymes says he is satisfied she was then entirely conscious; that she could see, and knew what ■we were doing when he signed; that he had a conversation with her just before Clarke came in, and that she retained her consciousness for some time after the will was subscribed by Clarke. He took it for granted on calling for Clarke she wanted her will, which disposed of her property, properly attested, and if she disapproved of the attestation by Clarke she was in a condition to show her disapprobation if she chose. Clarke, on the other hand, says her eyes were set in death. He admits, however, “he did not know anything 'about her mind at the time.” “He had reason to think it was not good.” The reason he assigns is she did not 64say anything when he signed and when the will was read to her. He farther says that when Dr. Grymes and Mr. Cheatham. called upon him to sign, Mrs. Hatcher could hear—everybody could hear—and if she was conscious, she must have known they called upon him to sign the paper as her will; and she was in a position to see, as he was in front of her, only about three feet from her. The testimony of Clarke, it will thus be seen, does not show Mrs. Hatcher’s want of capacity or unconsciousness at the time. It merely suggests a doubt upon that subject. "Whatever weight it might otherwise have had in this case is impaired, if not wholly destroyed, by the circumstances surrounding him. In the first place, it is apparent, he is a very illiterate witness, whose mere opinion upon a question of testamentary capacity is of but little value. In the second place, by his act of subscribing the will, he solemnly attested the capacity of the testatrix, and when he undertakes to invalidate the will his testimony is to be received with suspicion. It was said, in Kinleside v. Harrison, 2 Phill. R. 449, that no fact stated by such a witness can be relied on when he is not corroborated by other witnesses. In the third place, it is certain that his testimony on the trial was directly at variance with his previous statements made shortly after the will was executed. He is proved to have said, on several occasions, that he agreed with Dr. Giymes in regard to the acknowledgement of the will by the testatrix, and also with regard to her condition when he subscribed the will. Either he had been tampered with or he had forgotton lohat had occurred at the time of the execution of the will. I do not accuse him of falsehood wilfully uttered; his conduct shows the wisdom of the rule which authorizes the material facts to be proved by one of the subscribing witnesses, or even by any other competent testi65mouy, and if it were otherwise the proof of a duly attested will might be defeated by the forgetfulness or perjury of some of them. On the other hand, Dr. Grymes was at the time, and had been for several years, Mrs. Hatcher’s family physician. He had been in constant attendance upon her during the three weeks’ illness preceding her death. He is proved to he a man of high character and unquestioned veracity. In every view his evidence is entitled to the highest consideration. In Burton v. Scott, 3 Rand. 399, 403, Judge Carr said: “ The opinion of a witness as to the sanity of a person, depends for its weight on the capacity of the witness to judge, and his opportunity. Physicians are considered as occupying a high grade on such questions, both because they are generally men of cultivated minds and observation, and because, from their education and pursuits, they are supposed to have turned their attention more particularly to such subjects, and therefore to be able to discriminate more accurately, especially a physician who has attended the patient through the disease which is supposed to have disabled his mind.” The evidence of T. M. Cheatham confirms that of Dr. Grymes in every particular. Throughout they fully concur in their statements and recollection of the occurrences at the time the will was signed and acknowledged bj7 Mrs. Hatcher, and when it was attested by Clarke. Speaking with reference to the latter occurrence, this witness says: “ I saw nothing to lead me to believe she was not conscious then. She had been talking just before he (Clarke) came; it was talked about the necessity of Clarke signing in her presence; don’t know whether she engaged in the discussion; my conclusion and impression were that she heard the discussion, and that Clarke was sent for with her approbation and according to her wishes.?’ 66It is very true that Mr. Cheatham is a devisee under the will, and that fact detracts somewhat from the force and value of his statements. .Hut his conduct throughout seems to have been characterized by good sense and absolute fairness. Ills testimony is remarkably clear and consistent, and bears the impress of truth. ¥e have, therefore, the evidence of two competent witnesses (one of them the family physician) in support of the capacity of the testatrix, and the formal execution of the will. We have proof of that capacity in the intelligent conversation of the testatrix but a few minutes before the attestation of Clarke, and all the presumptions in favor of its continuance. Against all this, we have the doubtful opinions of another witness in contradiction of his previous opinion, expressed soon after the will was executed. Here, then, is a will executed in conformity with all the requirements of the statute, signed and acknowledged in the presence of two witnesses, whose attestation was in the presence of the testatrix. If it is to be defeated it is solely upon a mere presumption that the testatrix was in an unconscious state at the time the last attesting witness subscribed his name. This presumption is based mainly on the fact that she did not speak at the time, or request the witness to attest the will. The cases are numerous in which wills have been established although the testator did not request the witness to sign—when the request was made by some one in his presence, and therefore, presumably with his consent. In the case of Inglesant v. Inglesant, 3 Law Reports, P. & D. 1872-75, p. 172, the testatrix was an old lady ninety years of age, whose will was executed in the house of a Mrs. Lee, and the question there, as here, was, whether the witness had attested the will at the request of the testatrix. Sir J. Hannen, in commenting upon the evidence, said: “ The peculiarity of this case is, that 67the two attesting witnesses agree in this, that the signature of the deceased was put to the will before one of them came into the room. Both agree that Mrs. Lee, in the presence of the testatrix, upon the second witness coming into the room, requested him to put his name under the name of the testatrix. Both also agree that the testatrix did not say anything or do any act in reference to the will after the two witnesses were there, and consequently the question turns upon this, "Whether the words used by Mrs. Lee can be taken to be the words of the testatrix.” After some discussion of the authorities, after citing and commenting upon the case of Faulds v. Jackson, decided by Lord Brougham, the learned judge proceeds to say, “That case, therefore, is, as hearly as can be, parallel with the present, and the only question is, Is there evidence which leads me to conclude that the words used by Mrs. Lee were heard by Mrs. Inglesant, the testatrix? If so, the case applies. As the evidence stands, I must adopt the view that the words were heard by the testatrix. Mrs. Greaves had just before been conversing with her, and no question has been put to any -witness to raise a doubt that the testatrix did hear the words used by Mrs. Lee. Moreover the execution was undoubtedly in furtherance of the wishes expressed hv the testatrix when she sent for the witness.” In Rutherford v. Rutherford, 1 Denio, R. 33, it was held that the jury might have found a sufficient request to one of the witnesses, where it was made by the draftsman of the will, in the presence of the testatrix. In Peck v. Cary, 27 New York R. 9-10, Denio, C. J., said: “Thereupon Morgan, the draftsman of the will, and who w'as attending to its execution, called upon three persons -who were within hearing, to come forward and witness the will, and they came. I think they should be held to have signed at the request of the testatrix.” See also Nelson v. McGiffert, 8 Barb. Ch. R. 163. 68In Smith v. Smith, 2 Lansing R. 266, the supreme court of New York said: “The witnesses signed, knowing what paper they were attesting. The testatrix was present when they signed, and made no objection. The person whom she had employed to draw the will requested the witness to sign, and the request being made in her presence, is, in law, her request.” See also Moore v. Moore, 2 Brad. Surrogate R. 261. Some of these are decisions by the highest courts of New York, where there is a statute expressly requiring that the witness must attest the will at the request of the testatrix. The authorities, I think, are almost uniform in holding that a r.equest made by a person in the presence of the testatrix will be held to be the request of the latter, if no objection is made; and an attestation thus made is presumed to be with the concurrence and wishes of the testatrix. See Williams on Ex’ors, top p. 117, marg. 99, and cases there cited. Rogers v. Diamond, 13 Ark. R. 475; Trustees, &c., of Auburn v. Calhoun, 25 New York R. 422. In. the present case it is true that the testatrix at no time requested Clarke to attest her will—neither did she request Dr. Grymes to do so until she was asked the question. It is very probable she did not know that a subscribing witness was necessary, and no doubt she supposed, as did the others, that the attestation of one was sufficient, until the subject was discussed in her presence. There is no doubt she heard Mr. Cheatham say to Clarke he could also act as a witness. There is no doubt she was well aware of the information received from Lester, that another witness was necessary, as it was the subject -of conversation about the time she is proved to have conversed with persons in the room. There is no doubt that when Clarke entered the room she heard Dr. Grymes and Mr. Cheatham request him to sign the will—she heard and she understood all this if she was conscious— 69and that she was conscious, I have already attempted to show from the testimony of unimpeached witnesses, and from the surrounding circumstances; that all the witnesses and friends so thought at the time, is evident from the fact that Clarke was requested to take his position directly in front of Mrs. Hatcher, so that she could plainly see him subscribe the will. An unfavorable inference is sought to be drawn from the remark made by Hr. Cry mes to Clarke, that Clarke was present when Mrs. Hatcher signed the will and heard her acknowledgment. It is said that Clarke was sent for and reminded of what had occurred in his presence, because it was well understood that Mrs. Hatcher was then in an unconscious state. The evidence shows that although Clarke did not actually sign his name, he was considered as a witness to the transaction—he was requested to witness the reading of the will., He was not then requested to sign because it was thought that one subscribing witness was sufficient; but when it was ascertained that two were necessary, it very naturally occurred to them, that as Clarke had witnessed the previous proceedings, including the reading, the ■ signature and acknowledgment, he was the proper person to attest them by the actual subscription of his name. This view is borne out by the evidence, and is consistent with the integrity of the witnesses. The other view supposes they are not only guilty of perjury, but that they conspired to use Clarke as an instrument to accomplish a gross and palpable fraud. Again, it is said that Cheatham, the chief legatee, was the draftsman of the will. That circumstance does not invalidate the will; it simply imposes upon the court the duty of increased vigilance in seeing that the will was fairly executed, and that it does in fact carry out the wishes of the testatrix with respect to her property. See Riddell v. Johnson,. 25 Gratt. 152. It is perfectly certain 70that this will is in conformity with the wishes of Mrs. Hatcher. It is the precise disposition she desired to make of her property. She had no children or descendants—her relations were very numerous, scattered over several states, the names and even residences of many of them, probably unknown to her—for most of whom she could have no sort of affection. Her property, divided among so many, cou’d be of little value to any one. Hothing was more natural than that she should prefer to give it to those who had been kind to her, and who were bound to her by the ties of affection, blood and long continued service and devotion. Very unexpectedly to herself and friends, she was suddenly taken dangerously ill. So soon as she was apprised of her condition, she manifested the most eager wish to make her will. She would not be denied or delayed, Ho one had suggested it; no one had even hinted at any special bequest; it was written as she dictated, without comment or remark. And when, as she supposed, the instrument ivas complete, she quietly composed herself to die. If her wishes are to be defeated by the courts, it will be upon an inference. Lord Mansfield once said that in such a case as this, the courts lay hold of a very light presumption. In Van Alst v. Hunter, 5 John. Ch. R. 169, Chancellor Kent, after quoting from Voet, in his Commentaries on the Pandects: “Licet enim non sani tantum sed et m agone mortis positi semimce ac balbutientc lingua voluntatem promentes, recta testamenta condant si modo mente ad huno valeant,” proceeds to say: “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of such an aged man ought 71to be regarded with great' tenderness, when it appears not to have been procured by fraudulent means, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated.” I think these just and noble sentiments fully apply to the case in hand, and I am for admitting the will to probate. Christian and 33urks, J's, concurred in the opinion of Staples, J. Anderson, J., doubted as to the consciousness of the testatrix at the time Clarke signed the paper, but waived his doubt, and concurred in the opinion of Staples, J. Moncure, P., dissented. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the paper writing bearing date the 16th of August, 1871, purporting to be the last will and testament of Ann P. Hatcher, offered for probate in the circuit court of Chesterfield county, is the last will and testament of the said Ann P. Hatcher, and the said circuit court erred in rejecting the same. Wherefore it is considered by the court, that for the error aforesaid the said sentence of the circuit court be reversed and annulled, and that the appellees pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And this court, proceeding to pronounce such sentence as the said circuit court ought to have pronounced, it is ordered that the said paper writing be established and recorded as the last will and testament of the said A.nn P. Hatcher. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482019/	Christian, J., delivered the opinion of the court. The court is of opinion that there is no error in the decree of the circuit court in declaring that the appellants “are not entitled to a general division of the estate of the testator at this time.” The will of the testator contains the following provision: “ I further will and desire that no general division of my estate shall take place until my youngest (then living) child, shall attain the age of twenty years, or at the death of my widow, or in the event of her marriage again.” isone of these contingencies, upon the happening of -which the testator indicated as the period when a general division of his estate should be made, or become necessary and proper, have yet occurred. Until at least one of these events happen, no general division of his estate can be made. The court is further of opinion that there is no error in said decree so far as it declares that the appellants, “Blanch C., Lillie W., and Judith E. Gates, cannot fol88low the fund which they claim in their cross-bill was invested in the Archer and Winfree tracts of land by testator in his life time.” The claim asserted by these three appellants, is, that they being entitled to one-third in fee, of the farm mentioned in the will known as Seguine, and that the farms known as the Archer and Winfree tracts, being purchased by the testator with the proceeds of the sale' of timber from the Seguine farm, that they have an interest in the said Archer and Winfree tracts to the extent of, one-third of the purchase money. The title to these two last named tracts was in the testator, and disposed of by him in his will, and these appellants cannot claim both under the will, and at the same time claim title to those two tracts of land, but would be put to their election. This would be manifestly to their great disadvantage, as, according to the report of the commissioner, their interest in the timber cut oft' the farm, Seguine, would be only the sum of about $200. But it is shown by the record that the piermanent improvements put on the farm known as Seguine, by the testator in his lifetime (one-third of which farm is the property of these appellants), far exceed in value the timber which was sold by the testator; these permanent improvements being estimated by the commissioner to whom the matter was referred, at upwards of nine thousand dollars. The court is therefore of opinion that there is no error in the decree of said circuit court in rejecting the claim set up by the appellants in their cross-bill. But the court is further of opinion that the decree of the said circuit court is erroneous, so far as it declares that “ the testator, W. B. Gates, disposed of the farm known as Seguine, by his will, and thereby put his children, Blanch C., Lillie W., and Judith F. Gates, to an election, either to confirm the will as to its disposition of one-third of Seguine, or to claim against the will, and in the latter 89event they are to compensate out of the property devised to them, from the said testator’s will, the other two children, Maria T., and William Beverly Gates, for what they (the said Maria T., and William Beverly Gates) would lose by said election to claim against the will.” This decree, in effect, declares that the testator (though entitled to but two-thirds of the farm known as Seguine—the appellants before named being entitled to one-third) had by his will disposed of the whole of it, instead of only that portion (two-thirds) to which he had title. The clause of the will upon which this decree is founded is as follows: “ Secondly, I wish my estate kept together and managed by my executors (hereinbefore named), as if I were living, to be used for the joint benefit and common good of my wife, Bettie Gates, and my children, Blanch C., Lillie W., Judith F., Maria T., and William Beverly Gates, so long as my widow remains unmarried. Should my executors, however, at any time believe that it would be to the interest and benefit of my wife and children to sell any part of the real or personal estate, they are hereby invested with full power to sell and convey any portion thereof, except the homestead known as Seguine, and the mills and appurtenances thereto attached.” The question to be determined is, whether by this clause (which is the only one referring to Seguine), the three oldest children of the testator, who own, as the record shows, one-third of Seguine, are put to an election ? The doctrine of election may be thus stated: That he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. If, therefore, a testator has affected to 90dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition; but if, on the contrary, he choose to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights. 1 Jai’man on Wills, 384 (marg.), and cases there cited. And it is immaterial whether the testator, in disposing of that which is not his own, is aware of his want of title, or proceeds upon the erroneous supposition that he is exercising a power of disposition which belongs to him; in either case, whoever claims in opposition to the will must relinquish what the will gives him. Ib. 387. But in order to raise a case of election, there must appear in the will itself a clear intention on the part of the testator to dispose of that which is not his own. See 1st Lead. Cas. Eq. (Noys v. Mordaunt); Hare & Wallace’s Notes, p. 284 (marg.), and numerous cases there cited. As was said by Lord Eldon, in Rancliffe v. Parkyan, 6 Dow, P. C. 149: “Prima facie it is'not to be supposed that a testator disposes of that which is not his own. It must be by demonstration plain, by necessary implication, meaning by that the utter improbability, that he could have meant otherwise, that the case (of election) is raised. It rests upon those contending for a case of election, to show that there is that manifest, plain demonstration and utter improbability.”- lie further says (p. 185): “It is difficult in any case to apply the doctrine of election, where the testator has some present interest in the estate disposed of,.though it may not be entirely his own.” See also Higginbotham v. Cornwell, 8 Gratt. 83; and Dixon v. Mc Cue, 14 Gratt. 540. These last were eases as to the necessity of a widow electing between her 91right of dower and the provisions of her husband’s will; but the principles therein declared are the same as those which govern the case before us. In the first case Judge Baldwin, delivering the opinion of the court, says: “ The conclusion against the claim of the widow ought to be as satisfactory as if it were expressed.” In the latter case, Judge Daniel, after commenting on the former case, and remarking that Judge Baldwin had stated the doctrine somewhat too strongly, says: “I think it fairly results from the authorities, that wherever the inference against the widow’s right is clear beyond reasonable doubt—wherever the implications against her are so strong that to defeat them resort must be had ■ to a forced, far-fetched or unreasonable construction of the will, a case is made to put her to her election.” Applying these principles to the will before us, it is plain that no case of election is raised. Here the testator had an interest to the extent of two-thirds in the farm known as Seguine. There is nothing on the face of the will, taking all its provisions, and construing it as a whole, which indicates clearly or by necessary implication, that the testator intended to dispose of any part of Seguine not his own, or that his disposition as to Seguine was not confined to the two-thirds which he owned in fee simple. It is to be particularly noticed that the testator nowhere in his will disposes of Seguine specifically. If disposed of at all it is by general words. Indeed, Seguine is not mentioned in the will at all, except in the secón d clause, in which the testator empowers his executors (if to the interest of his wife and children), to sell and convey any portion of the real and personal estate, “ except the homestead known as Seguine.” It cannot be said, upon any fair construction or necessaiy implication, that the testator, in using this language, or in directing a general division of his whole estate upon the death or marriage 92of his widow, or the arrival at the age of twenty years-of his youngest child, disposed of that part of Seguine which was not his own, but which belonged to his children. Indeed, it may be fairly presumed that the very consideration which influenced the testator to “ except the homestead known as Seguine” from the sale by his executors, was the fact that he knew that he was the owner of but two-thirds, while his children were the owners of the remaining third, At any rate, it is clear that no such plain and unequivocal intention on the part of the testator to give away that which is not his own is indicated, as constitutes, under all the authorities, a case of election. In Miller v. Thrugood, 33 Beavan, reported also in 42 Law Journal, 1864, Eq. p. 511, the doctrines on the subject of election are stated in language which has peculiar force in application to the case before us. Sir John Romilly says: “The eases upon the subject of election resolve themselves into this: If the testator has a partial interest in the particular property, and he disposes of the whole specifically, and then gives the owner of the other portion some interest under the will, a question of election arises, and the owner of the other portion must elect to take under or against the will. But if the testator does not dispose of the property specifically—if he uses general words, then no question of election arises, as the language he employs applies to his own interest in the property,, and does not imply an intention to dispose of any other property than his own. These principles are to be collected from the cases.” In the will before us there are no words disposing of Seguine specifically, but only general words disposing of the testator’s whole estate at a certain period, the only mention of Seguine being to except it from the provision of the will empowering his executors to sell his real estate, and that “ exception ” is entirely consistent with 93the intention of the testator to dispose of the interest only which he had in the property. The court is therefore Of opinion that the decree of the said circuit court, so far as it puts the appellants to an election, be reversed, and in all other respects be affirmed. The decree was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the said decree of the said circuit court, so far as it declares that “the testator, W. 13. Gates, disposed of the farm known as Seguine by his will, and thereby put his children, Blanch C., Lillie ~W., and Judith F. Gates, to an election, either to confirm the will as to one-tliird of Seguine, or to claim against the will,” is erroneous. It is therefore decreed and ordered that the said decree to this extent, be reversed and annulled, but in all other respects affirmed; and that the appellants recover against the appellees their costs by them expended in the prosecution of their appeal and supersedeas here. And this court now proceeding to render such decree as the said circuit court ought to have entered, it is adjudged, ordered and decreed, as the opinion of this court, that the testator, W. B. Gates, did not dispose of the whole of the farm known as Seguine, but only the two-thirds thereof to which he had title; and that, therefore, the appellants, Blanch 0., Lillie "W\, and Judith F. Gates, were not put to an election, either to confirm the will as to its disposition of one-third of Seguine, or to claim against the will, as declared by the decree of the circuit court of Chesterfield.. All of which is ordered to be certified to said circuit court. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482020/	Anderson, J., delivered the opinion of the court The doctrine has been well settled by several decisions of this court, that a fiduciary is not justified in receiving greatly depreciated currency in payment of a gold debt, or a debt which was equivalent to gold, unless it was necessary for the payment of debts or legacies, or unless other circumstances in relation to the safety of the debt or the condition of the estate made it expedient and proper. Hannah's adm'r v. Boyd & wife, 25 Gratt. 692, 701-2; Tosh v. Robertson, 27 Gratt. 270; Bedinger v. Wharton, Ib. 857. It has also been 96held that a fiduciary had no right to collect a specie debt in Coufederate money when greatly depreciated, for the purpose of investment. Campbell's ex'ors v. Campbell's ex'or, 22 Gratt. 649; Crickard’s ex'or v. Crickard’s legatees, 25 Gratt. 410. That it would be a devastavit and breach of trust in an executor. It is also the settled doctrine of this court that the debtor, or he who pays the money to the executor, in discharge of the obligation, knowing that it was not needed for the payment of debts or legacies, or that the safety of the debt did not require its collection, but that if received it would be for investment, and would involve the executor in a devastavit and breach of trust, will be held to be a participant in the devastavit and breach oj trust. Pinckard v. Woods, 8 Gratt. 140; Cocke & al. v. Minor als., 25 Gratt. 246; Jones' ex'or v. Clarke, Ib. 642; and Tosh v. Robertson, supra. The court is of opinion that the bond of Thomas M. JBonduraut, deceased, and Grandison Mosely, involved in this suit, was for a gold debt or its equivalent. It was executed to James M. Patteson, prior to the late war, for a tract of land in Buckingham county, known as Oaklawn. The tract of land was sold by the said Patteson to Thomas M. Farrow, in 1857, for $12,000, and the said Farrow executed his bond, with security therefor, on the 23d ©f January, 1858, payable six years after date, with interest from the 1st of January, 1858. The said Farrow, some time in 1860, sold the same tract of land to Thomas M. Bondurant, for a fraction less than $13,000; and by agreement between the parties, Bondurant executed his bond jointly with Grandison Mosely for $12,000, part thereof, to James M. Patteson, which he received in place of Farrow’s bond, which he surrendered to hirm The Bondurant bond was payable at the same time, the 23d of January, 1864. In 1862, James M. Patteson died, and by his will appointed his wife, 97"Willie Aim Patteson, his executrix, requesting that she ■should not be required to give security. He directed that his estate should be kept together until his child attained twenty-one years of age, for the purpose of raising and educating his children, unless his representatives should think it practicable to advance his children, as they became of age or married, not exceedingin any case their distributive shares of his estate respectively. He also authorized his three sons to qualify as his executors, as they respectively attained twenty-one years of age. It does not appear that either of them ever qualified. He left five children, all of whom were infants at his death. Thomas M. Eondurant also died the same year, and Thomas and Alexander J., his sons, and William P. Hall, qualified as his executors. In the month of December, 1863, Alexander J. Eondurant, as executor, paid the executrix the amout of said bond of $12,000, in Confederate money, dollar for dollar, and took up the bond. At that time Confederate money was so depreciated that twenty dollars of it was worth only one in gold, and the said executor discharged a gold debt of $12,000 in a currency which was worth only one-twentieth of its value, or $600. It appears that less than twelve months before, this same executor, when he paid to Mrs. Patteson, the executrix, the interest then due on said bond, proposed to pay hen in a short time the principal in Confederate money, when she informed him that she was unwilling to receive it, and had no use for it. Confederate money was then of much greater value, being in relation to gold as three to one, than it was in December following, when she received it. How can this be explained ? It is accounted for by= the evidence in the record. Shortly before the Confed98erate money was tendered to her by said executor, she had been informed by the Confederate assessor that she was required by the law then m force to receive payment of ante-bellum debts in Confederate money, or pay her taxes in gold or silver, and that unless she would take an oath or pledge her solemn word to receive payment of such debts in such currency, she would have to pay her taxes in gold or silver. She was unable to pay her taxes in gold and silver, and relying upon this representation, as she and her eldest son, George, who was then about seventeen years of age, understood it, she solemnly pledged her word to the assessor that she would receive payment of her ante-bellum debts in that currency. Soon afterwards her said son met the said executor in the road, who asked him if his mother would receive payment of the bond in question in Confederate currency ? To which George replied that, as she would have to receive it in that currency, or pay her taxes in gold or silver, which she was unable to do, he supposed she would receive it. And thereupon he sent a message by him to his mother, that he would be down in a few days to pay the money. This is proved by George Patteson, and there is no testimony in conflict with him, and although Mr. Bondurant says in his answer that he does not recollect of sending the message, the testimony of George is corroborated by the circumstances. He came down, he says, about the 11th of December. Mrs. Patteson and George both testify that it was the Saturday before the second Monday. Mr. Bondurant states affirmatively that he was there previously in November, but there, is no testimony to support it, and the testimony of both Mrs. Patteson and George is to the contrary. He is probably mistaken, and confounds the interview with George with an interview with his mother in November. It is probable he intended to call on Mrs. Patteson, and after meeting with George he deemed it 99unnecessary. There is some discrepancy in his statement in his answer of what occurred when he called, to pay the money and lift his testator’s bond, and the testimony of Mrs. Patteson and George; or at least his statement is not as full as theirs. It is doubtless an honest difference in recollection, so far as they differ, and is not material. It is evident that the executrix, in accepting payment in Confederate money so depreciated, acted under constraint. She did not freely and willingly receive it; but she took it because she felt that there was no help for her, that she was obliged to receive it, or submit to what she regarded as a greater evil. The executor denies that he had any complicity or connection with the statements and representations as laid to the door of "William P. Oliver. If these representations had been made by his contrivance, or at his suggestion, it would have been the perpetration of a gross fraud against the representative of James M. Patteson. There is no proof to sustain any such imputation. lie does not believe that William P. Oliver made any such statements. That he did, is proved by two witnesses. And he adds, if he did, he was ignorant' of it, and is in no manner responsible therefor. He says further, he does not know that he ever mentioned the $12,000 bond to Oliver, the assessor; if he ever did, it was alone in connection with the lists of his testator’s estate. He does not say that it was not mentioned to him by one of his co-executors, nor do they deny having mentioned it to him. He admits that on the rendition of the lists, they indicated a willingness, as executors and as individuals, to receive Confederate States treasury notes for their respective dues. If such a declaration -was required of them by the assessor, they might well conclude that it would be required of Mrs. Patteson. He does not say that he did not know she had pledged her word to the assessor that she would 100receive Confederate money in the payment of ante-bellum debts. He. must have had some information, or reason, which induced him to enquire of George Patteson if his “mother was ready to receive the money for the $12,000 bond,” when she had refused to receive it months before, when the currency was far less depreciated. At all events he learned from him-the reason why she would receive it, if at all, because the lodgment had been made on her mind by some means or other, that if she refused to receive it, she would have to pay her taxes in gold or silver. He learned the same from Mrs. Patteson when he paid her the Confederate money and demanded his testator’s bond. He knew that she did not receive it of her free will and accord, but under the impression of constraint and compulsion; that she regarded it as almost worthless; that she had no use for it; that she did not need it for the payment of debts or legacies, because her calculation was that she would have to invest it; for she asked his advice how she had best invest it, and he gave it to her. Hpon this presentation of the case by the record, it appears that for this gold debt of $12,000, due the estate of her testator, his children and distributees being infants, the executrix received from the executor of the obligor, Confederate money worth only about $600 in gold, when it was not necessary for her to collect it for the payment of debts or legacies, or for the safety of the debt, but for investment. The debt seems to have been at that time perfectly secure. The land was bound for it. It was also secured by Grandison Mosely being jointly- bound for it with the estate of Thomas M. Bondurant. There is nothing in the record to show that Mosely was not entirely solvent and good for the debt; and the estate of the principal obligor is shown to have been at that time very valuable, both as to the personalty and the realty; so valuable that his executors, before qualification, were 101required to execute a bond in the penalty of $400,000. The court is of opinion, therefore, upon the authorities above cited, that the executrix, in receiving payment the said debt in a currency of so little value, committed a devastavit and breach of trust. There is a class of cases in which this court has not held the payer of the money to an executor or administrator, to be a participant in the devastavit or breach of trust, upon the ground that he could not be presumed to know what was the condition of the estate, or that there might -not be uses for which it could be advantageously received and applied for the benefit of the estate, or that there might be a necessity on the executor to receive it for payment of debts or legacies. Tosh v. Robertson, supra. But in this case no such presumption can be raised in favor of the executor of the principal obligor, for it is shown that he was informed that the executrix had no use for'the money, and that if she received it she would have to seek out some mode of investment, and he required her to take it, though he was aware that she was very averse to it, and only yielded her objections under a wrong impression that if she did not, the estate would be subjected to greater evils. Under these circumstances, as disclosed by this record, Alexander J. Bondurant, executor of Thomas M. Bondurant, the principal obligor, must be held, not only to have participated in the devastavit and breach of trust, but to be responsible for it, and to be primarily liable therefor to the heirs and distributees of James M. Patteson, deceased, and that the estate of the principal obligor and the surety of Grandison Mosely are still liable on said bond, and that there should be a decree in favor of Willie Ann Patteson, executrix of James M. Patteson, against the executors of Thomas M. Bondurant, deceased, de bonis testatoris, for $12,000, the principal of said bond, with interest thereon at the rate of six per 102centum, per annum, from the 1st of January, 1864, till payment, subject to a credit as of the first of January, 1864, for $1,235.65, the value of the tobacco in which a portion of the Confederaté money received by the executrix was invested, and which she realized, being more than the scaled value as of that date of the whole of the Confederate money paid to her by the said executor; and that the said tract of land known as Oaldawn, for the purchase money of which said bond of $12,000 was given, shall be sold and the proceeds of sale be applied to the payment of the balance due on said debt; and if that shall prove insufficient to satisfy the same, the decree should authorize the executrix to sue out an execution of ji. fa. against the assets of the said Thomas M. Bondurant, deceased, in the hands of his executors to be administered for the residue of said debt; and if that should prove unavailing, that she be allowed to apply to the said circuit court for further assistance to obtain satisfaction, of what may remain of said debt, out of the estate of said Thomas M. Bondurant, deceased, and ultimately against the surety, Grandison Mosely, if the estate of said decedent should prove insufficient to satisfy the whole debt and costs, for what may remain to be satisfied. The court is of opinion, therefore, to reverse the decree of the circuit court of Buckingham, with costs, and to remand the cause for further proceedings to be had therein in conformity with this opinion. The decree was as follows: The court is of opinion, for reasons stated in writing • and filed with the record, that the executrix of James M. Patteson committed a devastavit and breach of trust in receiving Confederate money from Alexander J. Bondurant, executor of Thomas M. Bondurant, in De103«ember, 1868, when it was greatly depreciated, in payment of the bond of twelve thousand dollars, executed in 1860 by the said decedent jointly with Mosely as his surety, for the tract of land situate in Buckingham county, known as Oaklawn; and that under the circumstances of the case, the said Alexander J. Bondurant, as executor as aforesaid, must be held not only to be a participant in said devastavit and breach of trust, but should be held primarily liable therefor. It is, therefore, adjudged and decreed that the decree of the circuit court dismissing the plaintiffs’ bill be reversed and annulled, and that the executors of Thomas M. Bondurant, deceased, out of any assets of said decedent in their hands, do pay to the plaintiffs their costs expended in the prosecution of their appeal here. And the court, proceeding to render such decree as ought to have been rendered by the court below, it is ■decreed that Thomas L. Bondurant, Alexander J. Bondurant, and 'William P. Hall, executors of Thomas M. Bondurant, deceased, do pay to Willie Ann Patteson, executrix of James M. Patteson, out of any assets of the estate of said Thomas M. Bondurant in their hands to be administered, the sum of twelve thousand dollars, with interest thereon at the rate of six per centum per annum from the 1st day of January, 1864, till payment, subject to a credit for $1,235.65 as of the said 1st day of January, 1864, and the costs of this suit in the said circuit court. And unless the same be paid in a reasonable time, to be determined by said court, that a decree be entered therein for the sale of the tract of land in the bill and proceedings mentioned, known as Oaklawn, upon such terms as the said court may deem reasonable and just, to satisfy the same. And if the proceeds of such sale should be insufficient to satisfy the whole .of said debt with interest and costs, and there is no estate of said decedent out of which the residue thereof can.be 104satisfied, the said Willie Ann Patteson, executrix as- . . - . aforesaid, may apply to the said circuit court for a decree against Grandison Mosely, the surety of the said Thomas-M. Bondurant in the said bond for $12,000, for the unsatisfied residue thereof. And this cause is remanded to ccrar °f Buckingham county for further proceedings to be had therein, in conformity with this order' an(\| 0pjnj0n £iec\| with -fije record. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482021/	Burks, J., delivered the opinion of the court. 107This is an appeal from certain decrees and orders of the circuit court of Northampton county. The bill was filed by William J. Eobins in his own right and as Sole heir and distributee at law of J oseph W. Eobins, deceased, against Henry H. Ayres, Willis Thompson, and the wife of said Ayres, for the specific execution of a contract made on the 31st day of July, 1866, for the sale of a tract of land called Salt Grove, in Northampton, bordering on Cherrystone creek. The contract was in writing, signed and sealed by the parties, and a copy is filed as an exhibit and made a part of the bill. Ey the terms of the contract, William J. Eobins and Joseph W. Eobins, the vendors, described as “parties of the first part,” covenant, in substance, that they will, on or before the first day of January, 1867, convey the said tract of laud (the quantity and general boundaries of which are given), to the said Ayres and Thompson, the vendees, described as “parties of the second part,” at the proper costs and charges of the vendees, by such proper deed of conveyance as shall be tendered by them, and they (the vendors) will guarantee the title to the vendees by a clause of general warranty, and covenant that the land is free from all encumbrance. This covenant, on the part of the vendors, is followed by other covenants, which will be best understood by giving the language in which they are expressed in the contract: “And it is hereby expressly agreed between the parties, that the said parties of the first part may give such deed of conveyance, as aforesaid, and deliver possession of the premises on the first day of Januai-y, 1867, or at any day previously to the first day of January, 1867, at the option of the said parties of the first part, and that the said parties of the second part shall accept and receive the same accordingly. In consideration whereof, the said parties of the second part do hereby covenant 108and agree to and with the said parties of the first part, that they, the said parties of the second part, shall and will pay unto the parties of the first part, the sum of nine thousand dollars ($9,000), to be paid as follows: One hundred dollars ($100) to be paid in cash on the execution of these presents, five thousand dollars ($5,000) to be paid on the first day of January, 1867, if the said parties of the first part shall not have executed such deed of conveyance and delivered possession of the premises previously, and sooner if the said parties of the first part shall sooner execute such deed of conveyance and deliver possession as aforesaid, and upon such day as the said parties of the first part shall execute and deliver such deed, deliver such possession upon such deed being tendered as aforesaid, and the balance of said purchase money to be paid in two annual payments of equal amounts, to be secured by bonds and lien on the premises, the first payment to be made twelve months, and the other two years from the day of the said parties of the first part conveying said tract of land and delivering such possession as aforesaid, or being ready and willing so to do, and perform the covenants herein contained, on their part, with interest on said two deferred payments from date of such conveyance and possession. And it is hereby agreed between the parties that the graveyard, as now enclosed, is to be excepted out of such deed of conveyance and delivery of possession, and is to remain to the use of the said parties oí the first part and their heirs forever, free from the use and control of the said parties of the second part, and that the said parties of the first part, their heirs and assigns, may and shall have right of way to go to and from the said graveyard at all times at their will and pleasure. And the said parties of the first part hereby covenant with the said parties of the second part, that they, the said parties of the first part, shall and will, by or before the 109first day of May, 1867, remove, or cause to be removed, the stakes marking the oyster-plantings of Messrs. Stevenson & Dunn, so that the oyster-grounds now staked out and occupied by said Stevenson & Dunn, shall be left unencumbered by the latter, and remain to the use of the said parties of the second part.” The bill, admitting that the purchasers had made the cash payment promptly, and had also, in October, 1867, paid the sum of $4,900 in discharge of the instalment of $5,000, the latter sum being by agreement abated by $100, because of payment before delivery of possession, and further' admitting that the purchasers had made other payments at subsequent dates, alleges that they had wholly failed and refused to pay the third and last instalment of the purchase money and a part of the second, both of which instalments had been for some time due. It alleges that the purchasers were, under the contract, put into possession of the premises in December, 1867, (a short time after payment of the $4,900 as aforesaid), and admitting that no deed of conveyance had been made to the purchasers. alleges as a reason for it that the purchasers had never tendered any deed as by the contract they were bound to do, and that the vendors had always been ready and willing to execute such deed when tendered, and the surviving vendor was still ready and willing, as he had always been, to execute the deed when tendered. Besides these specific allegations, the bill alleges in general terms the performance of the contract on the part of the vendors, and readiness and willingness to perform the same, concluding with a prayer for general relief, and particularly for specific execution of the contract, and that the purchasers be required to pay the balance of purchase money remaining unpaid with interest, the complainant offering to convey the land to the purchasers by deed with general warranty and free of encumbrance, upon such deed being teh110derecl by the purchasers. The purchasers filed a general demurrer, and also a joint answer to the bill. In their answer they admit the contract filed with the bill and their possession of the land under it. In addition to the payments admitted in the hill, they claim to have made other payments, and that all of the purchase money for the land has beep paid, except a portion of the third and last instalments, amounting to about $1,500, principal money, which they aver they are not bound to pay, and do not intend to pay until required by the court to do so. They refer to the covenant of the vendors, “ that they would on or before the 1st day of May, 1867, remove, or cause to be removed, the stakes marking the oyster plantings of Stevenson and Dunn,” and aver that “it was chiefly on account of this last mentioned covenant that they agreed to pay the said plaintiff and the said Joseph "W. Robins the sum of $9,000; that it entered into the consideration of the contract, and was a part and parcel of the contract; that said contract was considered by them as a matter entire, and was executed by the parties to it as a whole.” They further aver, that this covenant has never been performed by the vendors, or either of them; that the oyster-planting grounds referred to in the covenant are still in the occupancy and under the control of the said Stevenson, thereby causing a loss and damage to the respondents equal in amount to the sum or sums claimed by the plaintiff to be due him, to-wit: about the sum of $1,500, in principal money. They further say that the said oyster-planting grounds are located in Cherrystone creek, adjacent to the land purchased by them, and that the privilege of using them was the great inducement for them to purchase the land, and without that privilege they -would not have purchased it. After thus averring non-performance of the covenant by the vendors and the damages consequent thereon, the 111respondents do not ask a rescisión of the contract on equitable terms; they do not offer to restore the land, accounting for rents and profits while they had possession, and to have their purchase money repaid to them; nor do they ask that the plaintiff be denied relief in equity and left to his legal remedies on the contract; but they rather submit to specific performance of the contrat, w'ith compensation to be allowed them. The language of the answer is, “that there is such a failure of consideration, defect in title, laches and non-performance of covenants, pertaining to said real estate and oyster-planting grounds, on the part of the parties of the first part to said contract, as to entitle them (the respondents) to an abatement of the purchase money, at least to the amount of the sum claimed by the said plaintiff to be due from them—that is to say, about $1,500 in principal money, and to relief in a court of equity.” They admit that they have never tendered a deed of conveyance, assigning as a reason that the vendors had never complied with the contract on their part, and they (the respondents) did not wish to do any act that would amount to a waiver of their rights. After depositions taken on both sides, the cause matured was brought to a hearing on the 11th day of July, 1871, when the court by its decree overruled the demurrer to the bill, ordered an account of the purchase money and payments, and directed a jury tó be empanelled to try the following issue: “ Whether the said William J. Eobins and Joseph W. Eobins, in the life-time of the latter, or the plaintiff since his death, ever removed or caused to be removed the stakes which on the 31st day of July, 18(16, marked the oyster plantings of Messrs. Stevenson and Dunn, both above and below low-water mark, so that the oyster grounds then staked out and occupied by said Stevenson and Dunn, adjacent to “Salt Grove,” were left unencumbered-by said Stevenson and 112Dunn, and if not, what damage have the defendants sustained by the failure of the said 'William J. Robins .and Joseph W. Robins, or either of them, so to do.” On the trial of this issue the jury found a verdict in these words: “We the jury find that the said William J. Robins and Joseph W. Robins, in the life-time of the latter, did not remove, nor has the plaintiff, William J. Robins, since the death of the said Joseph W. Robins, removed, or caused to be removed, the stakes which on the 31st day of July, 1866, marked the oyster plantings of Messrs. Stevenson and Dunn, below low-water mark; but that the defendants, Thompson and Ayres, purchased the oysters of Dunn, laid out upon the grounds occupied by him on the 31st day of July, 1866; and that the stakes marking the oyster plantings of said Stevenson above low-water mark were removed by said Stevenson. And we further find, that by the failure of the said William J. Robins and Joseph W. Robins so to remove the stakes marking the oyster plantings of said Stevenson below low-water mark, the defendants, Thompson and Ayres, have sustainad damage to the amount of two thousand, one hundred and thirty-seven dollars and fifty cents.” This verdict the court, on the motion of the plaintiff (Robins), set aside, on the ground that it was contrary to the law and the evidence, and ordered a new trial. Ro exception was taken to this ruling, but the defendants, Ayres and Thompson, at a subsequent term of the court, moved to revoke the order setting aside the verdict and directing a new trial, on the ground that the court had no authority to make such an order. The motion was ■overruled, and the defendants excepted. The second jury sworn to try the issue, aftér hearing the evidence, not being able to agree in a verdict, were discharged from rendering a verdict. On the third trial the jury rendered a verdict, which is substantially the same as th» verdict rendered at the 113first trial, with this important difference: that the amount of damages assessed by the last verdict was only $850, without interest, whereas the amount by the first verdict was $2,137.50. A motion by the defendants, Ayres and Thompson, to set aside this last verdict, on the ground that it was contrary to the law and the evidence, was overruled by the court, and they excepted. The bill of exceptions does not state either the evidence given or facts proved on the trial. The cause was last heard on the 17th day of April, 1874, when the court, by its decree, affirming the verdict of'the jury last rendered, ordered that the defendants, Ayres and Thompson, for $350, the amount of damages by the verdict found, should have credit on the balance of purchase money owing by them for land, as shown by a special statement reforming the report of the commissioner, who, under an order of the court, had taken an account of said purchase money and payments thereon. For this balance of purchase money, subject to said credit, the court decreed personally against Ayres and Thompson, and ordered that on payment by them of the amount decreed wdthin four months, the complainant, Robins, upon tender by said Ayres and Thompson of a proper deed of conveyance according to the terms of the contract, should execute the same, and unless such payment should be made within said four months, that the land be sold, by a commissioner appointed for the purpose, to satisfy the sum decreed as •aforesaid. The counsel for the appellants, Ayres and Thompson, have assigned various errors in the decrees and orders of the circuit court, which we now proceed to notice. The first is, that the demurrer to the complainant’s bill was improperly overruled. The demurrer is general for want of equity, and assigns as special cause, that the 114complainant has a plain, adequate and complete remedy at law. The allegations of the bill, admitted by the demurrer to be true, show the case of a vendor who has made a written contract for the sale of a tract of land at a stipulated price, payable in instalments; that he has good title, and is, and always has been ready to convey to the purchasers whenever they tender to him a deed of conveyance as required by the contract; that he has put the purchasers of the land in possession, as he agreed to do; that a portion of the purchase money remains unpaid, and he has a lien on the land for its payment; that he has performed the contract in all things required to be performed by him before becoming entitled to demand and receive the balance of the purchase money; that the purchasers refuse to pay the balance, and he prays that they be required to make payment, that the contract be decreed to be specifically executed, and for general relief. Such is the case made by the bill, and of course, on demurrer, we can look only to the bill. It would seem to be a plain case for the relief prayed. But it was argued with some earnestness, that the only object of the bill is to compel the payment of a sum of money, for the recovery of which the remedy at law is plain. Ho doubt the complainant might have brought his action at law. He had that remedy, but it was neither adequate nor complete, and it is for that reason that he is admitted into equity. Perhaps the most general, if not the most precise, description of a court of equity, in the English and American sense, is, says Mr. Justice Story, that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The reme4y must be plain; for if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if at law- it falls short of what the party is 115entitled to, that founds a jurisdiction in equity. And it must be complete; that is,it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the parti7 in a perfect manner, at the present time, and in the future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. 1 Story’s Eq. Juris. § 33. Noiv, an action at law by the vendor against the purchaser on an executory contract for sale to recover the purchase money due him, does fall short of what he is entitled to. It does not reach the whole mischief and secure the whole right of the vendor in a perfect manner. He may have his judgment in a court of law, and by execution pursue the personal property of the purchaser. lie can go no further. He is entitled under his contract to more perfect relief. He has not only the right to a personal judgment against the purchaser and to subject his personal estate, which he may do in a court of law, but he has the right to subject the land for which the purchase money is owing. He has a lien upon it, which a court of law does not recognize and cannot enforce, and which is recognized and can be enforced only in a court of equity. In the latter forum he is entitled to a personal decree, and at the same time and in the same suit to a further decree for the sale of the land, if the personal decree be not satisfied. This is executing the contract fully, according to the agreement and intention of the parties, and this only is giving adequate relief, doing complete justice in the case. Moreover, there is a peculiar reason why the vendor is admitted into a court of equity. The general rule is, that equity withholds aid by way of specific performance of contracts, unless the remedy is mutual between the parties; and it is the principle of mutuality, it is said, which has led to the practice of compelling specific 116performance of contracts for sale against the purchaser, when in fact the claim against him made by the bill is only the sum of money agreed to be paid. How, equity originally interfered to effect the performance of.contracts, in order to give the party the interest contracted for, and at the instance of the purchaser. Hut when once that jurisdiction was assumed, the principle of mutuality compelled equity to assist the vendor. 2 Lomax Dig. 56 (marg. page). Passing from the bill to the answer and proofs, including the verdict of the jury approved by the court, it is contended by the counsel for the appellants that the covenant of the purchasers to make payment of the last two'instalments of the purchase money, is dependent on the covenant of the vendors to remove or cause to be removed the stakes marking the oyster-planting of Stevenson & Dunn, and that the performance of the latter covenant was a condition precedent to the performance of the former; and inasmuch as it clearly appears that the vendors never performed their covenant, they were in no condition to require the purchasers to perform theirs, and it is assigned as error, that they were so required by the last decree of the circuit com’t. Certainly, a party seeking the aid of a court of equity to compel another to perform his contract, ought to show himself prompt and ready and willing to peform the contract on his part, and if performance by him is a condition precedent to the right to demand performance of the other, he ought to show such performance, or at least a tender of it. It is often very difficult to determine whether covenants are dependent or independent, and to arrive at just and satisfactory conclusions by applying the rules of construction" in such cases. There is, perhaps, no breach of the law, says Judge Daniel in Roach v. Dickinsons, 9 Gratt. 154, in which is to be found a larger number of decisions or a greater apparent conflict 117of authorities than that in which the effort has been made to define the dependence and independence of covenants, and to designate the class to which anj? given case in dispute is to be referred. The great effort, however, in the more recent decisions has been to discard, as far as possible, all rules of construction founded on nice and artificial reasoning, and to make the meaning and intention of the parties, collected from all the parts of the instrument rather than from a few technical expressions, the guide in determining the character and force of their respective undertakings. We think it quite clear that the covenants to execute the deed of conveyance when tendered and deliver possession of the premises, and the covenant to pay the first instalment of $5,000, are dependent and to be performed simultaneously. It was contemplated that these covenants should be performed on or before the 1st day of January, 1867, and it is provided that the last two instalments should be paid at one and two years, respectively, from the day the vendors made the deed and delivered possession, or were ready and willing to do so. The stakes were to be removed from the oyster plantings of Stevenson and Dunn “by or before the 1st day of May, 1867,” which would be prior to the time at which the second deferred instalment would become payable, if the covenant for the execution of the deed and delivery of possession were performed, or performance tendered within the time stipulated. This would seem to indicate an intention that the removal of the stakes was to be a condition precedent to the payment of the last two instalments of purchase money. This construction would seem, too, to be required by the language used in fixing the time for the payment of these two instalments—“the first payment to be made twelve months and the other payment two years from the day of the said parties of the first part conveying said land and delivering 118such possessioii as aforesaid, or being ready and willing so to do, and perform the covenants herein contained on their part,” &c. The last clause of the sentence is awkward in its relation to what immediately precedes it; but regarding it in the connection in which it is used, it would seem to be intended to require that the vendors should perform, or at least tender performance, of all the covenants contained in the contract to be performed on their part before payment of these last two instalments should be exacted. But taking this construction to be the correct one, the purchasers, in their dealings with the vendors, do not appear to have insisted on its enforcement, but rather to have waived it; for, although the stakes had not been removed within the time stipulated, nor indeed removed at all, they nevertheless proceeded to make payments from time to time on the last two instalments, so that on the 12th day of November, 1869, of the $4,000, aggregate of the two instalments, with the interest thereon, there remained unpaid only about $1,700 principal money. And in their answer to the bill, as before stated, they do not ask for a rescisión of the contract, but claim damages and indicate a willingness to accept performance with compensation. Hence the issue directed by the court, a proper mode of ascertaining the damages, aud to which proceeding, it does not appear, that any objection was made. See Nagle v. Newton, 22 Gratt. 814. But it is insisted that the damages allowed were inadequate, and that the circuit court erred in setting aside the first verdict, and also in refusing to set aside the last. As has been already stated, no exception was taken to the action of the court setting aside the first verdict, and the bill of exceptions taken to the refusal of the court to set aside the last, states neither the evidence given nor the facts proved on the trial. It is impossible, therefore, for this court to say that error was committed where none is shown. Fitzhugh's 119ex'or s v. Fitzhugh, 11 Gratt. 210. In the absence of any statement in the record, showing what evidence was before either jury, it is useless to speculate on the causes for the difference in the amount of damages allowed in the two verdicts. The learned judge who directed the issue and presided at both trials, was dissatisfied with the first verdict and approved the last. The presumption is that his rulings were right. There is nothing in the record to show that they were wrong. The depositions in the record were taken before the issue was directed. Whether they were read on the trial, and if read whether there was other evidence before the jury, and if so, what that evidence was, does not appear. The weight and force of the depositions, so far as they relate to the issue, may have been impaired, and for aught that appeal’s, entirely overcome by other evidence not in the record. Some of the witnesses, in their depositions, on their basis of calculation, put the damages of the defendants at high figures, while Stevenson, who is presumed to be better acquainted with the subject than any one else, says that he did not occupy one acre in twenty of the oyster-planting grounds adjacent to Salt Grove shore, and of the grounds not occupied by him, the defendants occupied three-fourths, the residue being unoccupied; that they might plant oysters for fifty years, and if they did not plant more on an average than they had for the last four years, they need not plant any two years the same ground, and there would be enough ground for them to do so adjacent to the Salt Grove shore, unoccupied by him. There is an assignment of error in the petition for appeal—which, however, was not much relied on in the argument—and that is, that the judge presiding at the first trial of the issue was without jurisdiction to set aside the verdict of the jury; that the trial was on the law side of the court, and a motion to set aside the verdict 120and for a new trial could only be piopeily made in the chancery cause after the verdict and proceedings on the trial had been duly certified from the law to the equity side of the court. This assignment of error would seem to be based on a misconception of the proceedings. The court, in its order made in the chancery suit, directing an issue, uses this language: “That a jury be empanelled at the bar of this court to try the following issue,” &c., and the decree reciting the verdict rendered by the jury, recites it as “ the verdict of the jury empanelled at the bar of this court,” &c. The orders and proceedings during the trials, as disclosed by the record, are such as might have been entered as well on the chancery order-book as on the law order-book, and it is to be inferred that they were entered on the former as a part of the proceedings in the chancery suit, as there is- in the record no certificate of the verdict and proceedings from the law side of the. court showing that the trials were had on that side. But practically it can make no difieren ce on which side of the court making the order an issue directed in a chancery suit is tried. It may be tried on either side, (Code of 1873, ch. 173, § 4,) and the proceedings would be the same and the orders the same, except that when the trial takes place on the law side, it would be more regular if the proceedings were certified to the court on the chancery side. Upon a bill filed under the 10th section of chapter 141 of the Code of 1860 (§ 12, ch. 137, Code of 1873), it is provided, that “the court shall cause an issue to be made and tried at its bar by a jury, whether or no the transaction be usurious.” The issue ordered under this section in the case of Brokenbrough's ex’ors v. Spindle’s adm'r, 17 Gratt. 21, to be tried at the bar of the court which made the order, was tried on the laxo side of the court, xühere a nexo ix'ial xoas granted and had, and the pro121ceedings were certified from the law to the chancery side. One of the questions raised in the case, was as to the regularity of the proceedings. J udge Moncure, in his opinion, concurred in by J udge Joynes, said: “ The statute seems to contemplate that all the proceedings, including the trial of the issue, are to be had in the chancery cause, instead of having the issue tried on the law side of the court, and the verdict and other proceedings on the trial certified from that to the chancery side of the court, according to the formality' observed in the case of an ordinary issue out of chancery. I can see no well-founded objection to the former course, and it seems to be recommended by its simplicity and directness. The latter, however, was pursued in this case. But the difference is only in form, and the substance and effect are the same. All the proceedings xoere conducted before the same court, and ought to be regarded as proceedings in one and the same suit.” Only one assignment of error remains to be noticed, and that is the refusal of the court on one of the trials of the issue, to permit certain questions to be answered by a witness, to which action of the court a bill of exceptions was taken. It is a sufficient answer to this assignment of error, that it does not appear by the record to which of the trials the bill of exceptions refers. It may as well refer to one as to another, so far as the record discloses. The verdict on the first trial was set aside, erroneously as the appellants contend; on the second the jury were discharged from rendering any verdict, and there is nothing to show that the bill refers to the last. It is worthy of notice, too, that no such assignment of error is made in the petition for appeal, prepared by the counsel, we presume, who represented the appellants in the court below, and was not the same counsel who argued the case here. The omission of this 122assignment in the petition may have been because the counsel knew that the bill of exceptions had reference to the first or second trial, and not to the last. If, however, it appeared that the ruling excepted to was on the last trial, we should still be of opinion that no error was committed in excluding the questions and answers. The court is of opinion there is no error in the decrees and orders complained of, and that they should be affirmed. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481726/	DORMAN, J. Concurring in the result reached in the above opinion, it seems proper to say that the concurrence is much more readily yielded from the views entertained on another point, presented by the record, which was elaborately argued by the counsel on both sides, but not considered in the opitiion of Judge Willoughby. It has been impossible to arrive at the conclusion, that in \| 28-29, chapter 61 of the Code of 1860, it was the intention of the legislature, that a sale by a trustee of a mere equity, conveying no legal title, was such a sale and conveyance of the property and rights of 1 the old company as to “pass to the purchaser at the sale not only the works and property of the company as they, were at the time of making the deed of trust or mortgage, but any works which the company may after that time and before the sale have constructed, and all other property of which it may be possessed at the time of the sale, other than debts due to it;” and also ipso facto to dissolve the company, and at the same time to constitute the purchaser forthwith a corporation, succeeding to all the privileges and franchises of the original ^'company. The comprehensive terms of the law seem to preclude the supposition, that anything short of the sale and transfer of the legal title, together with the property, privileges and franchises, can merge the old company in a new corporation under the statute. BURNHAM, P., dissented. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481727/	WIIyBOUGHBY, J. In this case, the prisoner being indicted for murder by the grand jury of the Circuit court, and being in custody of the court, before his trial, demanded to have his cause remanded to the County court of the county, in order that he might there have the privilege, when arraigned, of electing whether he would be tried there or in the Circuit court. This being refused, and he then being immediately tried and convicted, a writ of error was awarded upon the ground of the refusal of this demand. The question is, whether the Circuit court had, under such circumstances, jurisdiction to proceed with the trial, and is to be determined by a construction of the act of assembly of April 27th, 1867, entitled “an act to revise and amend the criminal procedure. ’ ’ Under the law as it stood previous to the act of April 27th, 1867, trials of felony of white persons were all to be had in the Circuit court, and by such act, the felony of all persons was to be tried in the Circuit court. The result of this was, that a very large portion of the time of Circuit courts was taken up by the trial of criminal causes, and in many counties often almost to the exclusion of civil business. Besides, such court holding in most of the counties but twice a year, the trial of felonies was liable to be long delayed to the great hardship of the accused, especially if he could not give bail, (and those cases were very frequent), and to the great expense of the Commonwealth by being obliged to provide for such accused persons who could not give the required security for their appearance. These were no doubt the principal reasons for the changes made in the act under consideration. The act therefore provides that “trials for felony shall be in a County or Corporation court, and may be, at any term thereof, except that a person to be tried for” certain enumerated offences, among which, is murder, “may, upon his arraignment in the County or Corporation court, demand to be tried in the Circuit court having jurisdiction of the said county or corporation. ” Witnesses are to be then recognized, and papers transmitted, &c. On page 929, of Acts of Assembly of 1866 and ’7, section IS, provides what course is to be taken “upon a presentment, indictment or information of a felony for which the party charged has not been arrested.” The next section, sec. 16, provides that “when a presentment is made or indictment found in a case other than that provided 228for in the preceding section, if it be in a Circuit court, a copy of such presentment or indictment and of all papers relating to the case, shall be certified by the clerk of the court of the county or corporation in which the offence is charged to have been committed.” If the prosecution be for a felony, process shall be awarded, which shall be a capias) &c. These sections, unless modified by some other section, would show, it seems to me, as plainly as language can show, that the Circuit court has no power to proceed originally with the trial of any criminal offence; and no power to try in any event, except as such cases may be removed to it from the County or Corporation court, according to the first section herein quoted. But the authority to try a case as this was tried is claimed to be founded upon the section next succeeding the one first herein quoted, page 932, sec. 2, which provides: “When an indictment is found or other accusation filed against a person for felony in a court wherein he may be tried, the accused, if he is in custody, or if he appear according to his recognizance, shall, unless good cause be shown for a continuance, be arraigned and tried at the same term.” The fact that he is in custody of a court in which he may be tried is made the basis of jurisdiction. According to this two things must concur: He must be in custody: The court must be one in which he may be tried. The mere fact of being in custody cannot alone determine in what court a prisoner is to be tried for felony: He must be in custody to be tried any where as a matter of course. The important enquiry then is, what is the court in which he may be tried. How are we to ascertain this? This section does not show or profess to show. We are then to enquire elsewhere. Now the court in which murder may be tried depends upon circumstances connected with the case. It may be in the County court, if the prisoner upon his arraignment so elects. It may be in the Circuit court, if the prisoner, upon his arraignment so elects. The important fact, then, is this election. If it is to be tried in the County court, the Circuit court is not one in which he may be tried. This is a privilege given to the prisoner. Such privilege ought not to be taken from him by a doubtful construction of another section. He is entitled to a liberal construction of such other section, and in- case of reasonable dóubt, he should be entitled to the benefit. The legislature having just before, in the preceding section, given him this privilege in the plainest terms, it must not be presumed that in the next breath, they meant to deprive him of it without any substantial reason therefor ; and it is difficult to see why the mere fact of his being in custody should constitute such a reason. Now, what is the leading idea of the clause in dispute? Has it not plainly reference more to the time of trial; that is, that there shall be an immediate trial and no continuance without good cause? Do not the qualifications of this clause refer to this leading idea, rather than to the question of jurisdiction? The words, if in custody, are there because such must be an obviously necessary fact which must exist in order to enable the court to proceed to an immediate trial in any court. The immediate trial is the controlling thought. All others are accessory to it. The language of this section is precisely the same as it stood before, except the insertion of the words “or other accusation filed.” (“Code of 1860, chap. 208, sec. 2.) Under the law, as it then stood, if a person was indicted for felony in the Circuit court, he had the right to be sent to the County court for examination; or if he chose, he might be immediately tried. He was then in a court in which it could be said he may be tried. More than this, he must be tried there. But did anybody ever argue, that because of this section he should be immediately tried without the privilege of going to the County court for examination? And yet, it might have been argued with the same propriety as now. It is argued that it is an absurdity to allow the prisoner to have his cause remanded to the County court only to allow him the privilege of having his cause certified back to the court from which he started. We have nothing to do with this if it be the law. But how can we say that this is the object of the accused. Perhaps it may be to have his cause tried in the County court. The law gives him the privilege of trying his cause there if he wishes it; and what is the absurdity of allowing him to avail himself of this privilege. Besides, I think that there can be said to be another reason for it; and that is that it carries out, or tends to carry out, one of the main objects of the change of trial from Circuit to County courts; and that is to relieve the Circuit court of all such trials possible. The 15th and 16th sections above quoted of the preceding chapter strengthen this view very much. According to the 15th section the court is instructed to take certain steps where a person is indicted for a felony and is not arrested. According to the 16th section, in all other cases (and a person who is arrested is another case), if in a Circuit court, the papers shall be certified to the County or Corporation court. Could there be a more positive command? It is argued that the old act is not expressly repealed, and that the object of this law is merely to enlarge the jurisdiction of the County court. I do not think that this view can be maintained. The language of this act is too explicit and too inconsistent with the former one to allow this interpretation. I think it quite plain that the act, as it now stands, was to take the place en229tirely of the former one; and that we are to look to this alone to determine in what courts cases of felony are to be tried. I can therefore come to no other conclusion than that the court below erred in refusing to allow the prisoner to have his case remanded to the County court for trial, and that therefore the judgment of the Circuit court must be reversed. BURNHAM, P. The accused was tried in the Circuit court of Northampton county, upon a charge of murder in the first degree, and being in custody, he was indicted, arraigned, convicted and sentenced in said court, in disregard of his motion, “to certify his case to the County court, in order that he might have his election as to which court he would be tried in.” This may be deemed substantially a claim for certification under the 16th section, chapter 207, of act of 1866-7. It is claimed by the accused, that “the County court was the only court having jurisdiction to try the case,” and in support of such theory', is cited the before mentioned act of assembly of Virginia, passed April 27, 1867, entitled “an act to revise and amend the criminal procedure,” and amending and re-enacting the several chapters of the Code of Virginia, edition of 1860, from 201 to 211 inclusive, except chapter 205. The 1st section of chapter 208, p. 931-2, provides, and is as follows: “Trials for felony shall be in a County or Corporation court, and may be at any term thereof, except that a person to be tried for rape, arson, malicious shooting, cutting, stabbing or wounding, with intent to maim, disfigure or kill; for forgery, or uttering as true, forged paper; for passing counterfeit money, or for a felony which maybe punishable with death; may, upon his arraignment in the County or Corporation court, demand to be tried in the Circuit court having jurisdiction o£ the said county or corporation; but no such demand shall be allowed in any Corporation or Hustings court held by a judge, and in which, by especial statute, capital felonies may now be tried. Upon such demand, the accused shall be remanded for trial in the said Circuit court, and all the material witnesses desired for the prosecution or the defence, shall be recognized for their attendance at such trial. ” The farther provisions of this section direct the acts to be done, in order to such removal of the cause, and of the custody of the accused, to the Circuit court, and are not important as affecting the points presented in this case. It may be observed that the first clause of the section above cited confers jurisdiction of felonies upon the County or Corporation courts, and does not exclude the jurisdiction of other courts over the same crime, but expressly allows persons charged with certain felonies, upon arraingment in the county court, to elect to be tried in a Circuit court; thus recognizing the continuance of jurisdiction in, and the full competency of, Circuit courts, to try persons charged with felonies. It does rot exclude the jurisdiction of other courts, beside the Circuit courts, but recognizes and names them as “Corporation or Hustings courts, held by' a judge.” The removal of cases provided for by this section, is to carry them from the County or Corporation court to the Circuit court, and does not authorize the remanding contrariwise. The 2d section of the same chapter is as follows: When an indictment is found, or “other accusation filed, against a person for felony, in a court wherein he may be tried, the accused, if in custody, or if he appear according to his recognizance, shall, unless good cause be shown for a continuance, be arraigned and tried at the same term.” The remaining part of this section is not material to the question under consideration. It thus appears that where a person charged with felony is in custody, or appears in a court wherein he may be tried, he shall, upon indictment found, be arraigned and tried “at the same term,” unless good cause be shown for a continuance. An immediate trial in the court, where the prisoner is under indictment, or appears in custody, is clearly guaranteed to him and the Commonwealth, and is to be avoided or prevented in but the way and for the cause named in the same section. The Circuit courts for many years had jurisdiction of cases of felony. They were presided over by gentlemen learned in the law, and of eminent ability and purity of character; and it is certainly not to be deemed the intent of the legislature to destroy by implication the safeguards to personal life and liberty thus provided, or a hearing before such court, simply in order to facilitate the trials of questions of financial interests only. Jurisdiction once existing, is removed only by positive provision ; and no legislative intent can be supposed against it that is not plainly expressed. It being conceded that the Circuit courts had power at the time of the passage of the act of 1866-7 to try all felonies, every presumption is in favor of the continuance of such jurisdiction. If it be not removed by legislative enactment, or if such power remain in them under laws not repealed, it is sufficient. It is urged, however, that the 16th section of chapter 207, p. 929, authorizes and requires the certifying and forwarding by the clerk of any indictment for felony found in the Circuit court; and that therefore the •accused was entitled, upon demand of the Circuit court, to be sent to the County court of the county “for his arraignment and election as to whether he would be tried in said County court or in the Circuit court of said county';” and that the refusal of the Circuit court so to direct was erroneous. There seems no room to dispute that the accused was in custody for murder in the first degree (a capital felony), at the time when the motion was made to certify, &c. ; nor that an indictment was legally and duly found and returned against him for said 230offence, and that the said cause was then pending in the Circuit court of Northampton county. The power of the grand jury of a Circuit court to find an indictment for felony is expressly recognized by section 16 before cited; and the 2d section of same chapter, p. 926, says, that-“no person shall be put upon trial for any felony unless an indictment shall have been first found by a grand jury of a court of competent jurisdiction,” &c. If a Circuit court is competent to find an indictment for felony, can there be any doubt of its competency to try it? It is believed the “act to revise and amend the criminal procedure,” before cited, does not remove original jurisdiction of cases of felony from the Circuit courts of the Commonwealth. The 16th section of chapter 207, before cited, directing the clerk of the said court to copy and certify the indictment and papers connected therewith in certain cases, applies onljr to cases other *than felonjr, and does not provide for the transfer of causes for trial, or the custody of the person, nor seem to contemplate such a contingency as possible ; and it is obviously qualified by the 2d section of chapter 207, p. 926-7, the 1st and 2d sections of chapter 208, .p. 931-2, and by the 4th section of chapter 211, p. 945; and its provisions should be considered, with such other parts of the act, as a general system, to be taken together and so interpreted. Thus construing the amendatory acts, it is clear that any felony might have been tried in the Circuit court having jurisdiction of the place at which the same was committed; and that although such courts might transfer certain felonies which are named, they were prohibited from transferring prosecutions for capital felonies, to the County or Corporation courts. Such prosecutions “pending in a Circuit court,” are directed by the statute to remain and be tried “therein,” without restriction of the word pending, to the time when such act should take effect, as is provided and allowed of other prosecutions in the earlier part of the same section. That this was the intent of the legislature, is shown by the words of the section. The first part and provision of l 5, Acts 1866-7, p. 945, explicitly indicates the time certain classes of causes may be removed, to the date “when such act shall take effect;” which, by the 6th section of same chapter, is stated to be July 1st thereafter; while the last and distinct portion of the same section, says: “Any prosecution for a capital felony pend-i ing in a Circuit court shall remain and be tried therein.” No restriction as to time of trial, or the date when pending. The prosecution for such crime, so pending in a court “in which the case maj' be tried,” by original jurisdiction or otherwise, and the accused being in custody, he is entitled to, and may be tried in, such Circuit court asa court of “competent jurisdiction ;” and the court is required then and there to try him. The ^magnitude of the offence for which trial is to be had, and the gravity of the consequences which may follow a conviction, all approve the humanity and wisdom of the legislature, who thus, it is believed, ensured a speedy trial before a court of the highest qualities, and secured, to the accused, under such circumstances, an early and exhaustive trial of his cause, by a court which had been approved by long years of experience as the safe custodian of right and the protector of the most momentous interests. This, too, without subjecting him to the delay, expense, anxiety and suffering, inseparably entailed, by having his cause certified and sent down to another court to await a convenient time to present a demand to be returned to the court from which he had just come, then again to await time for the hearing of his cause. In my opinion, which is expressed with great respect for the majorit3r of the court, from whom I dissent, the true and proper construction of said statute of 1866-7, and of the law theretofore existing, is, that the judgment of the court below should be approved and affirmed. DORMAN, J., concurred in the opinion of Willoughby, J. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481730/	DORMAN, J. The question raised in this case respecting the right of a prisoner to plead or not, upon his arraignment in the County court, when, under the statute, he makes a demand to have a trial in the Circuit court, and what is meant by arraignment in that clause of the statute, have, at this term, been already determined by this court, in its decision in the case of Whitehead v. The Commonwealth. The first ground of error alleged in the petition of the prisoner, is, that after the evidence was closed and the jury had retired to consult upon their verdict, differing as to the testimony of one of the witnesses, they came into court, requested to hear again the testimony of this witness, the court permitted a portion of the testimony of the witness, as taken down, to be read in the absence of the prisoner as well as the witness. Prom the record it appears, that sometime during the reading of the notes of this testimony, the prisoner was brought into court; and also, that the witness, being afterwards present, was re-examined, by consent of all parties. How much of the testimony as taken down was read, in the absence of the prisoner, does not appear. Prom the way it is mentioned, it must be presumed, that a considerable portion of it was thus read to the jury in the prisoner’s absence. No principle is supposed to be better settled, and, in all criminal trials of the grade of felony, more rigidly adhered to than that in all such trials, the prisoner has a rig'ht to be present in every stage from the arraignment to the rendition of the verdict. It is held to be a right of which he cannot be deprived, and which he cannot waive. So imperative is the rule of law, that no part of the trial can proceed without him. If witnesses are examined, he must have an opportunity to hear and know what they say. If notes of the testimony are, afterwards, read to the jury, it is no less his privilege and right to hear the reading of it. How much influence the reading of the testimony in this case may have had upon the minds of the jury, it is impossible to determine. It is not, however, a question, whether the effect of the reading of the testimony, in his absence, was unfavorable to him, or otherwise, or how far his case was affected by it, if at all. Under the established and safe practice in criminal proceedings, the reading of this testimony was irregular and in violation of the rights of the prisoner, who must be present at every part of the proceedings. In his absence, there can be no trial. The law provides for his presence. And every step taken in his absence is void and vitiates the whole proceeding. On this point all authorities agree. And no question can be raised, as to the extent of the injury done to the prisoner, or whether any injury resulted from his not being present. Circumstances might occur, were the practice to obtain, where great wrong would result. The possibility of wrong is sufficient to secure in all trials, involving life and liberty, the rigid enforcement of the law. Bishop on Criminal Procedure, § 687, says, “The prisoner cannot be deprived of his right to be present at all stages of the trial.” $ 688, he states, “In a case of felony or treason, the prisoner must be present during the whole of the trial, including the giving in of the evidence and the rendition of the verdict.” The reading the testimony of a witness, at the request of the jury, who differed about it, constituted a part of the trial, “the giving in of the evidence. ’ ’ It may have been the part of the trial which determined the character of the verdict, and the accused had a right to be present and know all that was said or done on his trial. In Andrews v. The State, 2 Sneed’s R. 550, the court declares, “In criminal cases of the grade of felony, where the life or liberty of the accused is in peril, he has the right to be present, and must be present during the trial and until the final judgment. ” This decision'was placed in part upon the bill of rights in Tennessee. But it is questionable, whether, in criminal trials under the general law regulating such trials, a party accused has not every privilege granted by that bill of rights. See, also, Witt’s case, 5 Coldw. R. 11; People v. Perkins, 1 Wend. R. 91; Rex v. Streek, 2 Carr & Payne’s R. 413. In Wade v. The State of Georgia, 12 Georgia R. 25, it is declared, “The court 239has no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto, in his absence. The defendant has not only the right to be confronted with his witnesses, but he has also the right to be present, and see and hear all the proceedings which are had against him on the trial before the court. It is said, the presumption must be, that the court read the testimony correctly, and read over all that was declared against the defendant; therefore he was not injured. The answer is, it was the legal right and privilege of the defendant, to have been present in court, when this proceeding was had before the jury, in relation to the testimony delivered against him; and he is to be considered as standing upon all his legal rights, waiving none of them. ” These are citations sufficient to show the strict adherence to the rule in all trials where the life and liberty of the accused is in jeopardy. The law is made for the protection of the citizen, and all are alike amenable to its penalties and entitled to its immunities. Whatever may be the turpitude of his offence, however great his criminality, every man has a right to an impartial trial according to law, and, till found guilty by his peers, that law presumes him innocent ; and gives him the right to be present, to see and know all that is said or done by the court affecting his case. From reason and authority it seems to be clear, that the court erred in permitting any part of the testimony taken down to be read over to the jury in the absence of the accused. The third ground of error alleged in the petition of the prisoner, is the admission of statements of the deceased as dying declarations. The law controlling the admission of this species of evidence is well settled. The only difficulty arises in its application to the facts of a particular case. So diverse are these facts, and so varied in all the circumstances attending each case, that embarrassment often arises in the proper application of the law to the facts shown to exist. The apparent conflict in the determinations on this point, proceed mainly from the imperfect understanding of these attending circumstances. It is difficult often to present them fully and correctly in a record of the case. Much, in every trial, must be left to judicial discretion, and the presumptions must be in favor of a right exercise of such discretion by the court. Yet, in the haste and excitement of a trial, errors may, and do occur, calling for correction by an appellate tribunal. These dying declarations are an anomaly in the reception of evidence, and are only admissible where all hope, not only of ultimate recovery, but of a prolonged continuance of life, has left the mind of the person making them. In Rex v. Hayward, 6 Car. & Payne R. 157, Chief Jrtstice Tindal thus expresses the rule: “Any hope of recovery, however slight, existing in the mind of the deceased at the time the declaration is made, would undoubtedly render the evidence of such declarations inadmissible.” See, also, 1 Wharton’s Am. Crim. Taw, $ 671. In Bull’s case, 14 Gratt. 620, it is thus laid down: “The rule of law is now well settled, that to render dying declarations admissible evidence, they must be shown to have been made when the declarant is under a sense of impending death, and without any expectation or hope of recovery.” In the evidence disclosed in this record, there is much which would bring these declarations of the deceased within the rule as above laid down. He seemed impressed with the belief, that he must soon die of the wound inflicted upon him. He generally so expressed himself. In preparation for death, he made his will; yet, after these declarations were made, he used an expression as to himself, which seemed to indicate, that all hope of recovery was not gone from his mind. When told by an attendant that he had had ‘ ‘a good nap, ’ ’ he replied, ‘ ‘yes, ’ ’ “who knows but I may get well. ” This certainly implies the existence in his mind of a possibility, if not a probability, of recovery. It would seem that at that time he was not “without any expectation or hope of recovery.” From all the attendant circumstances of this case, as presented in the record, the conclusion reached is, that these declarations were inadmissible. The fifth ground of error alleged in the petition of the prisoner is, that the court erred in its refusal to admit the testimony of the witness Dillon, respecting the statement of the deceased to him. This will be more clearly presented by quoting from the testimony. On page 99, the witness says: “Just about then, very unexpectedly to me, he made a remark, in which were these words: ‘ ‘I did not know he had cut me, ’ ’ and had coupled with these words the word “when,” or “where;” I am more inclined to think he said when; thus, “I did not know when he had cut me.” With some earnestness on my part I interposed and stopped him ; I told him I did not expect him to make a statement, nor did I wish him. I inferred from his manner that he intended to give me a statement of the affair, and I did not wish to hear it. I think he had given a complete sentence. ’ ’ In the way this sentence, or part of one, was uttered by the deceased, it plainly presents a portion, and probably only a very small portion, of the facts designed to be communicated when uttered. There is not from the record the slightest reason to conclude that, as it stands, this expression was intended to be the whole truth respecting the circumstances of the death of the deceased, or any considerable portion of them. Were it certain even the sentence was completed, it was manifestly only the commencement of a narrative, which was interrupted. The witness is not certain as to the expression itself. Whether the deceased said when, or where, may be important. The impropriety of the admission of 240this testimony would seem to be settled by adjudications of this State. In Vass’s case, 3 Gratt. 864, the court say: “If facts be stated, which are obviously designed by the party who states them to be connected with other facts which he is about to disclose, and to be qualified by them, so that the narration should form an entire and complete history of the whole transaction, and before the purposed disclosure is made it be interrupted, and the narrative remains unfinished, such particular declaration would not be admissible.” See, also, Finn’s case, 5 Rand. 701. From these adjudications upon the point, and from principle, the rejection of this testimony by the court on the trial must be held correct, and that the testimony ought not to have been received. The other grounds of alleged error in the petition of the prisoner are not held to be well taken, and the action of the court below upon them must be sustained. We do not intend, however, to decide that the law of self-defence, as declared bj’- the court, is so full as to embrace all the law in reference to this point. But as a new trial will be ordered, it is deemed unnecessary to dwell longer upon it. The judgment of the court must be reversed, and a new trial ordered. The other judges concurred in reversing the judgment. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481731/	MONCURE, J., delivered the opinion of the court: There are two persons now claiming to be mayor of the city of Richmond and acting as such; George Chahoon and Henry K. Ellyson; and these two cases of habeas corpus, instituted by persons arrested by the warrant of these two claimants respectively, have, by an amicable arrangement between them, been instituted for the purpose of obtaining the opinion of this court upon the question, which of them is lawful mayor of the city? This is a deeply interesting question, not only to the city of Richmond, but to the State at large; and its importance, and the necessitjr of an early decision of it, has induced the court to take up the cases for hearing at the earliest possible moment, in order that the question involved may be decided as soon as possible, consistently with a proper examination and consideration of it. We have fully heard the argument of able counsel on both sides of the question, and have given to it all the consideration of which we are capable. The result of our deliberations I will now proceed to announce: There cannot be two mayors of the city of Richmond at one and the same time. If Chahoon is mayor, Ellyson is not; or if Ellyson is mayor, Chahoon is not. Chahoon claims to be mayor by virtue of an appointment as such in 1868, by General Schofield, then military commander of the district of Virginia, acting under what are called the Reconstruction Acts. And he also claims that his authority is confirmed by the constitution of the State, and even by what is called the Enabling Act itself, which he admits is to that extent constitutional. But he insists that that act is unconstitutional so far as it essays to authorize and provide for the appointment of another person as mayor. On the other hand, Ellyson claims to be mayor by virtue of an appointment made in pursuance of that act. The whole question, therefore, resolves itself into this: Is the Enabling Act, or at least that part of it under which Ellyson received his appointment, unconstitutional? We confine ourselves to that part of the act, because it is the only part which necessarily comes under consideration in these cases. There is another part of the act, to wit: The provisos in the 2d section, which subject any judgment, decree or order made by the Court of Appeals at the term thereof, commencing on the 11th day of January 1870, to the supervision and control of the Court of Appeals organized under the constitution ; upon the question, as to the constitutionality of which, we understand this court will soon be called upon to decide ; and we wish, therefore, not to prejudge that question, even collaterally. This court, undoubtedly, has power to declare an act of the legislature to be unconstitutional and void; and it is the duty of the court to do so in a proper case. It is, however, a very delicate power, to be exercised very carefully; and before an act of the legislature is annulled as unconstitutional, the court should be well satisfied that it is so. Prima facie, every act of the legislature is constitutional, and the burden of clearly showing the contrary devolves on him who asserts it. If the question be doubtful, it will be solved in favor of the validity of the act. The members of the legislature and the governor are elected by the people, and are presumed to be both intelligent and patriotic. Before entering upon the discharge of their duties, they take an oath to support the constitution of the State and of the United States; and it is not to be presumed that they would unite in passing and approving an act without being well satisfied that it is constitutional. The preamble of the enabling act, which was approved March 5th, 1870, is in these words: “Whereas, grave doubts have arisen as to the right of the civil officers of the Commonwealth, the governor, attorney general, lieutenant governor, and members of the general assembly excepted, to continue to hold their offices, and to exercise the powers, perform the duties and eiijoy the privileges and emoluments appertaining to the same, and as to the legality of their acts as such officers, since the admission of the State as one of the co-equal States of the American Union; and whereas, the failure to recognize the official acts of such officers as legal, and their removal from office at this time, would cause great confusion and embarrassment throughout the State: Therefore,” Then follow the 13 sections of the act; the 1st of which, recognizes as legal, all such officers described in the preamble who are eligible to office under the existing constitution and laws of Virginia, and who qualified on or before the 26th day of January 1870 (the day on which the State was admitted to representation in congress); provided that all officers of whom bonds are required by law for the proper discharge of their respective duties, should give or renew their bonds with good security within the time and in the mode therein prescribed. The 2d section legalizes the acts heretofore done by such officers and otherwise lawful, subject to the proviso in regard to any judgment, decree or order made by the late Court of Appeals as before referred to. The 3d section relates to the filling of vacancies in the office of justice of the peace and constable now exist254ing, or which may hereafter accrue, before an election for such officer shall lie held under the constitution. The 4th section vacates the offices of circuit and county clerks at the first term of their respective courts hereafter held by judges' elected under the present constitution, and authorizes each one of such judges at the first term of his court to appoint a clerk for said court to continue in office until his successor shall be regularly elected and qualified; vacates the offices of attorneys for the Commonwealth and sheriffs at the first term of the County courts hereafter held by judges elected under the present constitution in their respective counties; and authorizes such judges then to "appoint attorneys for the Commonwealth and sheriffs for their respective counties, to continue in office until their successors are elected and qualified under the constitution; and provides for the execution of bond's according to law by the sheriffs and clerks appointed under this section. The remaining sections, except the last, which merely declares the act to be in force from its passage, more immediately concern the question now under consideration; and will, therefore, be set out in full. They are as follows: • “5. That for the more efficient government of the cities and towns of the Commonwealth, the governor of this State shall, as soon as practicable, appoint ■_as many councilmen or trustees for each city and town, now entitled to trustees or councilmen, as are now provided by law. “6. The councilmen and trustees, now exercising the functions of such offices, may continue in such offices till the councilmen and trustees appointed, as provided in the foregoing section, shall qualify, and no longer; and shall fill vacancies in their respective bodies occurring during their continuance in office. “7. In all cities and towns, the councilmen or trustees appointed by the governor, as hereinbefore prescribed, shall have authority, and are hereby required, to appoint all municipal officers, except judges and officers of the courts hereinafter provided for in their respective cities and towns, who shall have all the powers, and discharge all the duties now conferred and required by law upon such municipal officers. “8. All persons now exercising the functions of the aforesaid municipal offices may continue in such offices till their successors are appointed and qualified, as herein provided, and no longer. “9. The officers appointed, in pursuance of this act, shall continue in office until their successors, elected under the constitution of this State, are duly qualified. “10. Every person appointed, as herein prescribed, shall take the oaths of office required by law; shall give bond in such penalty and with such security as existing laws may provide for officers holding like offices, and shall receive such compensation as existing laws may provide in like cases. “11. The judges of the Corporation and Circuit courts, and Courts of probate, hereafter elected for the said towns and cities of the Commonwealth, shall appoint the officers of their respective courts, to continue in office until their successors are elected and qualified, as provided by law. The sheriffs, clerks and other officers required to give bond, appointed under this section, shall not enter upon the discharge of their respective duties until they shall have given bond according to law; and in case of the failure of any such officer to give such bond, within twenty days after his appointment, the said appointment shall be vacated, and the aforesaid court shall proceed to appoint his successor with like powers, and subject to like limitations, as herein provided. “12. This act shall not be construed so as to deprive the general assembly of the right to remove any and all officers at present holding offices in this State, or who may be hereafter appointed under the provisions of this act; or to adopt such other measures for filling vacancies in offices which now exist, or may hereafter occur, as to it may seem right and proper.” Under this act and in strict pursuance of the terms thereof, the governor appointed councilmen for the city of Richmond, who appointed Ellyson as mayor; and he accordingly- took the oaths required by law and proceeded to execute the duties of the office. At the time of his appointment and qualification, Chahoon was acting as mayor, under the appointment of Gen. Schofield, as before stated. Had the legislature constitutional power to pass this act, so far as it relates to the subject of the present enquirj"? The act may be unconstitutional, either because it is contrary to the constitution of the United States or the laws made in pursuance thereof, being the paramount and supreme law of the land; or because it is contrary to the constitution of the State of Virginia. The counsel for Chahoon contend that it is contrary to both—The counsel for Ellyson that it is contrary to neither. There is certainly nothing in the constitution itself of the United States to which this act can be opposed. Is there anything in any law of congress made in pursuance of the constitution of the United States to which it is opposed? If there be any such thing in any such law, it is in-the acts of congress commonly called the Reconstruction Acts, or in the act admitting the State to representation in congress. The Reconstruction Acts certainly subjected the State to the military authority of the United States. But they were limited in their operation; and it was expressly declared in the first of them, to wit, the act of March 2, 1867, to which the others are merely supplementary, that it should be inoperative in said State when and after the State shall be declared entitled to representation in congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law. 255The State was declared entitled to representation in congress by an act passed January 26, 1870, and her senators and representatives were thereupon admitted therefrom on their taking the oath prescribed by law. So that, by the very terms of the Reconstruction Acts, they have become inoperative in the State. They were enacted only for a purpose, which has been fully accomplished. We can see nothing in the Reconstruction Acts which can give to Chahoon, the appointee of the military commander, any right to continue to hold the office of mayor against Ellyson, the appointee under the Enabling Act of the State. The authority of the military commander of Virginia ceased when her representatives were admitted into congress, and when his authority ceased that of his appointees also ceased. It would be strange if, after the principal ceased to have any authority, his subordinate agents should continue to have ai - thority. Then as to the act admitting the State to representation in congress. This act provides “that before any member of the legislature of said State shall take or resume his seat, or any officer of said State shall enter upon the duties of his office, he shall take and subscribe,” &c., a certain oath therein set out. And further provides “that every such person who shall neglect for the period of 30 days next after the passage of this act, to take, subscribe and file such oath as aforesaid, shall be deemed and taken, to all intents and purposes, to have vacated his office.” It is argued that this act recognizes, and in effect declares, the right of persons who had received appointments to office from the military commander, and continued to perform the duties of such office until the passage of the act, to hold over until their successors are appointed and qualified; and that this is one of the fundamental conditions on which the State was admitted to representation in congress. We do not think so. Congress, in the passage of this act, had not in its mind the question, whether such persons would be entitled to hold over or not, and much less did it intend to give them authority to do so. Its manifest and only object was to require every member of the legislature before taking or resuming his seat, and every other officer of the State before entering upon the duties of his office, to take the oath prescribed by the act. It was properly left to the State to determine who were or should be her officers. It is true, the second proviso declares vacant the office of every such person who shall neglect for the period of 30 days, next after the passage of the act, to take, subscribe and file such oath; but this only imposes a penalty for the failure to comply with the previous provision. Certainly congress did not intend that any person who might have been appointed by the commander of a military district, to perform the duties of an office therein, should have any right under the constitution and laws of the United States to continue to perform those duties after the cessation of all military authority in such district, and after it was fully restored to its position as a sovereign State of the Union; did not intend that the legislature, the representative of the sovereignty of the State, subject only to a few constitutional restrictions, should not have power to enact a law appointing another agency than the one which had been used by the military commander to perform the duties of an office during the short interval between the period of the restoration of the State and the day fixed in the constitution for filling the office. These appointees of the military commander received their appointments with full knowledge that their authority might be terminated at any time, not only by the will of such commander, but by the cessation of militarj- power in the State, and her re-admission to all her sovereign rights. Chahoon received his appointment on the 4th of May 1868, and might have had to give it up the next day. He actually held it for nearly two years, during which the state of things existing when he received it continued; and he even continued to perform its duties and receive its emoluments after the state of things had ceased, and until another person was appointed under the authority of the State to take his place. Surely he can have no cause to complain that any right which he has under the constitution or laws of the United States has been violated. If he has a valid claim, it is under the constitution or laws of the State of Virginia. And this brings us to the next question: Is there any thing in the constitution of the State to which the Enabling Act, or so much of it as we now have under consideration, is opposed? It is supposed by the counsel of Chahoon to be opposed to the 25th section of the 6th article of the constitution, which declares, that “judges, and all other ^officers elected or appointed, shall continue to discharge the duties of their offices after their terms of service have expired until their successors have qualified. ’ ’ And it is contended that the persons who were performing the duties of the different offices of the State at the time of her admission to representation in congress, under appointments previously made by the military commander, are “officers,” in the meaning of that section, and entitled as such to hold their offices until their successors have qualified. We do not think so. We think the section was plainly intended to apply only to officers elected or appointed under the constitution, and for whose election or appointment it provides. It was literally copied, except in the omission of a single word, from a section in the constitution of 1864, commonly called the Alexandria constitution, which section was itself literallj* copied, with a like exception, from the constitution of 1851, in which constitutions it plainly had the 256same meaning; and it was considered necessary by the framers of those constitutions, notwithstanding the insertion of such a section, to provide expressly, as they did in the schedules thereto annexed, that all persons in office at the time of the adoption of said constitutions, except as therein otherwise expressly directed, should continue in office “until their successors are qualified, ” in the language of the constitution of' 1851, or “until their present terms expire,” in the language of the constitution of 1864. In the constitution of 1830, article 7, after providing for the case of the governor and privy councillors, further provides, that “all other persons in office, when this constitution shall be adopted, except as is herein otherwise expressly directed, shall continue in office till successors shall be appointed, or the law shall otherwise provide.” It was considered necessary by some of the ablest men in the distinguished body, which ^framed that constitution, to adopt such a provision, in order to authorize officers acting-under the old constitution, when it ceased to operate, to continue to act under the new, when its operations commenced; and the provision in the 7th article was accordingly adopted. The conventions which framed the constitutions of 1851 and 1864, followed, in this respect, the precedent of their illustrious predecessor. If the necessity of such a provision, in order to the continuance of the authority of the old officers, was a question of doubt when the constitution of 1831 was framed, and was solved on that occasion, by assuming that there was such a necessity, and acting upon the assumption by adopting the provision, surely after this precedent had been followed by two succeeding conventions, when the framers of the present constitution adopted that instrument, and carefully omitted such a provision, while they copied from the constitutions of 1851 and 1864, the section before referred to in regard to “judges and all other officers,” it may be fairly presumed that they did not intend to include in the word “officers,” used in that section, persons who were performing the duties of office at the time of the adoption of the constitution, especially when these persons were appointees or officers of a military provisional government. At all events, this is not so plain a question as to make an act of the legislature providing other agencies for the performance of these duties until the arrival of the period fixed by the constitution for the election or appointment of these officers, an unconstitutional and void act. The fact is, the section was plainly intended, in its very nature and by its very terms, to have only a prospective operation, and to be confined to officers elected or appointed under the constitutional machine after it had been set in motion. It provides for the case of officers “whose terms of service have expired;” that is, terms of service prescribed by the constitution, and not for the case of officers acting under a prior government, whose terms of service under their appointments may not have expired, or who may have been appointed to no term of service at all, but during the mere pleasure of a military commander. The case of Gawhorne, ex parte, 18 Gratt. 85, relied on by the counsel of Chahoon in support of their views on this branch of the subject, can give them, we think, no support whatever. Governor Pierpoint was elected to his office under the constitution of 1864, which was received and recognized as the constitution of the State after the war, and thenceforward continued to be our only constitution until it was superseded by the present constitution. While that constitution was in force, Governor Pier-point’s term of service under it expired; and the question arose, whether he was entitled to hold over under the aforesaid provision of the constitution; and that question depended alone upon the question, whether the “governor” was an “officer” in the meaning of that provision. To be sure we were then under a military government, and it may be said by some that during its existence the constitution of the State was suspended, and that Governor Pierpoint became a mere provisional officer. But certainly the counsel for Chahoon do not say that the constitution was suspended ; on the contrary, they maintain that there never has been any such interregnum. However that may be, certain it is, that the question came up in Gawhorne’s case, for decision by this court, whether, according to the true construction of that constitution, Governor Pierpoint was entitled to .hold over as aforesaid. As was then well understood, this question was brought up for the decision of this court with the knowledge and approbation of General Schofield, then military commander of the State, who was willing, in this respect, to conform to the constitution of the State and the construction which might be put upon it by this court. * Again, it is supposed that the act in question is contrary to the 20th section of the 6th article of the constitution. That section provides, among other things, “that there shall be chosen by the electors of every city a mayor,” &c. ; and it is contended that by reason of this clause, a mayor of a city can only be chosen by the electors of such city, and, therefore, the act in question, providing for such an appointment otherwise, is unconstitutional and void, though the appointment was only for the short interval to elapse before the time prescribed by the constitution for making the regular election under the article, to wit: the 4th Thursday in May next; or rather the time when the officers elected under that article are to enter upon their duties, to wit, the 1st day of July succeeding. We think that this clause also, was plainly intended to apply only to a mayor to be chosen under the constitution at and after the time therein prescribed for that purpose, and not to one appointed to perform the duties of mayor before one could be chosen 257and enter upon the duties of the office under the constitution. Certainly an appointee under and by virtue of the Enabling Act, could be no more objectionable on constitutional grounds, than an appointee of a military commander during the provisonal government, holding over after that government had ceased to exist. The provision in the constitution for an election required time for its execution. A day was fixed for that purpose by the constitution with a view to afford such time; and until that day arrived there can be no election under the constitution. Indeed there would scarcely be time to make the necessary preliminary arrangements and make an election earlier. Hence the necessity of either permitting Chahoon to go on to perform the duties of the office until an election can be made, or providing otherwise by law for the case. That provision has been made by the Enabling Act; and we think the constitutional competency of the legislature to make such a provision clearly existed. They might have pursued the other alternative, but they did think fit to do so. There are other provisions of the same section to which it is contended the act in question is opposed. But the same answer applies to and concludes the objection, that all these provisions apply to elections or appointments to be made under the constitution, which could have no effect before the 4th Thursday in May or the 1st day of July succeeding, and not to elections or appointments which might be provided for by law to fill up the short interval before that time. A great deal was said in the argument about the question whether there was a vacancy in the office or not, and the power of the legislature first to create and then to fill a vacancy; and it was contended by the counsel for Chahoon, that “however startling the assertion of such a power in the assembly may be, it is in fact the only ground upon which the constitutionality of the act under consideration can be sustained.” The same counsel say, that “the 22d section of the 5th article is the provision relied upon as granting this authority to the general assembly;” and they set out this section in their brief. But they contend that this section is prospective entirely in its operation, though they deny that the operation of the 25th section of the 6th article is entirely prospective. Now whatever may be the true construction of the 22d section of the 5th article, which we deem it unnecessary now to decide, we think the power of the legislature to pass the enabling act does not at all depend upon that section; and that all the discussion about, whether there was a vacancy or not in these offices, and whether the legislature has a right first to create and then to fill a vacancy, is wholly beside the question we now have to decide. Whatever power these officers may have had to continue to discharge the duties of their offices until otherwise provided by law, we are clearly of opinion that it was competent for the legislature to terminate their power, whether it was derived from common law principles, as was argued, or any otherwise, except under the constitution of the United States or of this State, under neither of which do we think they have any power. The State, upon her re-admission to representation in congress on the 26th of January 1870, came under the control of the legislature, whose duty it then was to complete the organization of the government under the constitution. At that time, the only officers which had been elected under the constitution were the governor, attorney general, lieutenant governor and members of the general assembly. All the other civil offices of the State, which existed prior to the constitution, were filled, if filled at all, only by persons who had previously held them, most of whom were military appointees. These persons continued to perform the duties of their offices after the re-admission of the State. But a very grave doubt arose whether they had any power to do so; and whether all their acts done under such supposed power would not be regarded as null and void. It was considered by some that these officers had no such power, because there was no provision in the constitution, or the schedule annexed thereto, as there had been on former occasions of the like kind, to authorize them to hold over; or because they were mere military appointees, whose power necessarily ceased with the military government, from which they derived their power; or because the framers of the constitution actually intended that their power should cease, and that thejT should not hold over by virtue of the original appointment. Now, whether these officers had power to hold over or not, all will admit that legislation was proper and ^necessary to clear up all doubt on the subject and place it on such a basis as would conduce to the welfare of the Commonwealth. The legislature so thought, and accordingly enacted the enabling act, the preamble of which, clearly and forcibly sets forth the motives and necessity for the act. The counsel for Chahoon admit, that to a certain extent, the legislature had power to pass this act, and it is wise and expedient, that is, to the extent that it confirms what had been previously done by these officers in the discharge of the duties of their offices, and to the extent that it confirms what might thereafter be done by them in the discharge of those duties during the period prescribed by the act. But the counsel deny that the legislature had power to provide for the appointment of any person to fill an office, the duties of which were at the time' performed by a person holding over, under an appointment of the military commander; and especially had not power to enact the sections of the enabling act herein before recited, in regard to the more efficient government of the cities and towns of the Commonwealth. 258An admission that the act is constitutional to the extent to which it is approved by the counsel of Chahoon, goes far to admit that it is constitutional so far as concerns the question we are now considering. But we clearly think that it is constitutional to that extent also. The legislature had a right to say to those persons who were performing the duties of civil offices under appointments made by military power or otherwise prior to the re-admission of the State: “We will sanction what you have done according to law, and will authorize you to continue to perform the duties of your offices until other persons are appointed and qualified to perform them. But we choose to appoint other persons to perform them until elections and appointments can be made under the constitution, and we therefore pass the enabling act for that purpose. ’ ’ It is contended that the schedule annexed to the constitution contains provisions, which show that its framers intended that a person who was performing the duties of mayor of a city at the time of the adoption of the constitution, should have authority to continue to perform them until a successor is appointed and qualified, at the time and in the mode prescribed by the constitution. But certainly this argument is founded on a very strained inference, and cannot be sufficient to show that the enabling act is unconstitutional. The preamble and first section of that schedule show the only purpose for which it was adopted, and that it was not intended to secure to incumbents then in office, any immunity in their offices, or power to continue to hold them for any length of time, against the expressed will of the legislature to the contrary. “That no inconvenience may arise from the changes in the constitution of this State, and in order to carry the same into complete operation, it is hereby declared, that” is the language of the preamble. Thus plainly showing that the convention was looking to public convenience, and not to the private interest of individuals in continuing to hold office; that it was acting in this matter, solely because there might be necessity for some such action before it could be taken by the legislature; and not because they intended to place this matter beyond the reach or control of the legislature. All the safeguards that were deemed necessary for the conservation of private rights were embodied in the constitution itself. The only office of a schedule is to provide for a transition from the old to the new government, and to obviate inconveniences which would otherwise arise from such transition. The convention acts in this matter as an ordinary legislature, and only because there is necessity for such action before a legislature can or will be convened under the constitution. To be sure if a convention, in framing the schedule, should plainly show an intention to place any of its provisions beyond the control of the legislature, such provisions being the act of the representatives of the sovereignty of the State without any constitutional restrictions, would be as effectual and binding as if they were embodied in the constitution itself. But unless such an intention plainly appears, the presumption is, that the provisions of the schedule are subject to future legislation. The language of the 1st section of the schedule is: “The common law and the statute laws now in force not repugnant to this constitution, shall remain in force until they expire by their own limitation, or are altered or repealed by the legislature. ’ ’ Thus expressly affirming the control of the legislature over the subject (though such an express affirmance was unnecessary). There seem to be two provisions of this schedule which are relied on by the counsel for Chahoon as tending to show, that the convention intended to continue the mayor in office until his successor is elected and qualified under the constitution. One of these two provisions is that contained in the 2d section, which declares, among other things, that “all rights of bodies corporate, and all charters of incorporation, shall continue.” And it is argued, that this provides for the continuance of the office of mayor and of the officer for the time being himself in the office, as rights of the body corporate, under its charter. But how long was this continuance to last? Always? Certainly not; for that would have been against an express provision of the constitution itself, which declares, that “there shall be chosen by the electors of every city a mayor.” Then the continuance was to be either for some specified period, or until otherwise provided by law. There is no specified period, unless it be the day named in the constitution in regard to the general election. But there is nothing in the schedule which confines the provision to that day, and the presumption is, for reasons before stated, that the provision is subject to the control of the legislature. There is no conceivable reason why the matter should be placed beyond such control. Municipal corporations in their police, which is in fact a part of the police of the State, are subject to the control of the legislature, like any other part of the civil government. The other of the two provisions, before referred to, is contained in the same section, and is that which declares, that “the several courts, except as herein otherwise provided, shall continue with the like powers and jurisdiction, both in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department of this constitution.” It is argued, that the mayor’s court is one of the courts contemplated by this provision, and was therefore intended to be continued; that the word “court” here embraces the judge of the court, who is the mayor; and that therefore it was intended to continue the mayor in office. It may be answered, if a mayor be necessary to hold one of the courts here intended to be continued, it is not necessary that any particular person should 259be such mayor; but the court may be held by any person whom the legislature may appoint to take the place of him who was the incumbent of the office when the constitution was adopted. But the true answer is, that while the convention may have intended, in the former part of the section, to continue the then acting mayor in office until otherwise provided by law, it did not intend to include the mayor’s court, much less the mayor himself, in the word “courts,” used in the latter part of the section. They are courts of record, which the mayor’s court is not. They are the courts, whose organization is provided for by the 6th article of the constitution concerning the “judiciary department,” or such of them as existed under the old constitution; that is, the Court of '^Appeals, Circuit courts, County courts, and Hustings courts. These courts were to continue, except, &c., 1 ‘with the like powers and jurisdiction, both in law and in equity, as if this constitution had not been adopted, and until the organization of the judicial department of this constitution.” An immediate organization of that department was contemplated by the constitution, which provided, that the judges should be chosen by the joint vote of the two houses of the general assembly; and though their terms of office -were not to commence until the 1st day of January next following their appointment, yet it was provided that they should “discharge the duties of their respective offices, from their first appointment and qualification, under this constitution, until their terms begin.” This was “the organization of the judicial department,” referred to in the schedule, and plainly it has no reference to a “mayor’s court,” which is nowhere mentioned in the constitution, nor to a mayor, who could not be chosen under the constitution earlier than the 4th Thursday in May, nor enter upon the duties of his office until the 1st day of July. In construing the constitution, and the schedule and election ordinance annexed, in the light of all the surrounding circumstances under which they were made, we think it obvious that the framers of the constitution, purposely omitted any provision that the persons then performing the duties of office in the State should continue to hold over, until their successors should be elected or appointed and qualified under the constitution; and that they intended that those offices, except where otherwise expressly provided in the constitution, should be immediately, or as soon as convenient, filled by the legislature; either directly, or in a mode to be prescribed by law. Almost all the offices were then held by men who were disqualified to hold office by the very terms of the constitution itself as originally framed. It was contemplated that there would be a very short interval between the adoption of the constitution and a session of the legislature under it, when all the offices could at once be filled. The convention closed its labors on the 17th day of April 1868; and by an election ordinance then enacted, it was declared that the constitution adopted by the convention, should be submitted for ratification on the 2nd day of June 1868, to the voters of the State; that an election should be held at the same time and places for members of the general assembly and for all State officers to be elected by the people under the constitution; that the officers elected should enter upon the duties of the offices for which they are chosen as soon as elected and qualified in compliance with the provisions of the constitution, and should hold their respective offices for the term of years prescribed by the constitution, counting from the 1st day of January next, and until their successors are elected and qualified. And that the general assembly elected under said ordinance should assemble at the capitol in the city of Richmond on the 24th of June 1868: And the commanding general was requested to enforce the said ordinance. Had all these things been done as contemplated, the legislature, which would doubtless have been composed of many if not most of the persons who composed the convention, would probably have filled at once, by a new election or appointment, all the remaining offices of tlae Commonwealth, and provided that the officers so elected or appointed should discharge the duties of their respective offices, ‘ ‘from their first appointment and qualification,” as provided in the constitution in regard to the judges, or “as soon as elected and qualified,” as provided in the election ordinance, in regard to members of the general assembly and all State officers to be elected by the people under the constitution. And thus the ship of state would have set out on her new voyage with an entirely new crew. If we be right in this view, then it follows, that not only is there nothing in that part of the enabling act now under consideration opposed to anything in the constitution, but it is in conformity with the intention of the framers of that instrument. We are therefore of opinion, that so much of the enabling act as authorizes the appointment of councilmen and mayors of the cities, is constitutional. As to the argument that the enabling act itself confirms the title of the incumbents in office; a sufficient answer is, that whatever right or title that act may give is expressly limited by its terms, and extends no longer than the period when the legislature might otherwise provide; and they did otherwise provide by the enabling act, in regard to the appointment of councilmen and mayors of the cities. And as to the argument founded on the supposed general principle of law, “that a change in the organic constitution of government does not vacate the old offices until successors are duly qualified;” the answer is, that even admitting this to be so, “successors are duly qualified,” within the meaning of this proposition, whenever per260sons appointed to fill the offices by the legislative power of the new government are duly qualified. The incumbents of office at the time of an organic change of government, continuing to hold over after such change (in the absence of a provision of the new constitution, or of an act of the legislature of the new góvernmént giving them such authority), hold by sufferance only and upon a principle of public necessity or convenience, not in virtue of any individual or private right. They cannot set up any claim against the legislature, which has ample power to put an end to their official authority at any time, and appoint others to take their places, subject only to any constitutional restrictions which may plainly appear to exist. We have now, we believe, noticed all the grounds taken in argument by the counsel of this case, unless it be the ground, that by reason of what are called “the fundamental conditions,” on which the State was admitted to representation in congress, we have only advanced from a provisional to a provincial State, and have not yet gotten back to our original position as one of the sovereign States of the Union. What may be the meaning and effect of those conditions, is a question which does not arise in this case, as we have endeavored to show that the right of the old incumbents to continue to hold their offices is not made one of those conditions. It may not, however, be out of place to say, that we regard Virginia as one of the sovereign States of the Union, and as the coequal in every respect of Massachusetts, New York, Pennsylvania, or any. of the Old Thirteen. We have delivered a very long opinion in these cases, not because we have had any doubt or difficulty in deciding them, but because of the great importance of the question involved, the ability and earnestness with which it has been discussed, and the excitement which it has- produced. If our 'decision shall have the effect of settling the question, and restoring peace and quiet to the city of Richmond, we will rejoice to have had an agency in bringing about so desirable an end. The result of our opinion is, that on the 17th day of March 1870, under and by virtue of the act of the general assembly, approved March Sth, 1870, commonly called “the Enabling Act,” Henry K. Ellyson became the lawful mayor of the city of Richmond, and has ever since been, and is yet, such mayor; that the petitioner, Archibald Dyer, was lawfully required by said Ellyson, as such mayor, to give bail, as mentioned in the petition of said Dyer, who is therefore lawfully in the custody oJE William E- Martin, as such bail; that George Chahoon has not been mayor of said city since *the said Ellyson became lawful mayor as aforesaid, and had no author^ to issue the warrant of commitment, mentioned in the petition of John Henry Bell, whose imprisonment is therefore unlawful; and that the said petitioner, Dyer, must be remanded to the custody of his said bail, and the said petitioner, Bell, must be discharged from imprisonment. The judgment is as follows: This day came again the parties by their counsel, and the court having maturely considered the petitions, writs of habeas corpus, and returns thereon, an agreed statement of facts filed, and the arguments of counsel in these cases, is of opinion, for reasons stated in writing, and filed with the papers, that so much of the act of the general assembly approved March Sth, 1870, commonly called the Enabling Act, as provides for the appointment of councilmen or trustees, and mayors and other officers of cities and towns, is constitutional; that on the 17th day of March 1870, by a due appointment and qualification under the said act, Henry K. Ellyson became the lawful mayor of the city of Richmond, and has ever since been, and is yet, such mayor; that he had authority as such to require the petitioner, Archibald Dyer, to give bail, as mentioned in the petition of" said Dyer, who is therefore lawfully in the custody of William E. Martin as such bail; and that George Chahoon has not been mayor of said city since the said Ellyson became lawful mayor as aforesaid, and had no authority to issue the warrant of commitment mentioned in the petition of John Henry Bell, who is therefore detained without lawful authority. It is therefore ordered that the said Archibald Dyer be remanded to the custody of his said bail, and that the said John Henry Bell be discharged from imprisonment.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481732/	MONCURE, P-, after stating the case, proceeded: The errors assigned in the petition for an appeal to the District court, which were the errors relied on by the counsel for the appellant, in the argument of the case before this court, are:—1st, that the trustees in the deed of the 31st day of May 1843, should be made parties to the suit; 2ndly, that an abatement of the purchase money should be made for the alleged deficiency of one acre in the quantity of the land; 3rdly, that the shares of the infant defendants should be properly invested and secured; and 4thly, that the appellant was improperly subjected to the payment of costs, as he was not in default. I will proceed to consider these supposed errors in the order above stated; and First, that the trustees aforesaid should be made parties to the suit. Whether they should be parties to the suit, or rather should have been parties to the suit at the time of its institution or not, depends upon whether they had then any legal title to the land. And that question depends upon another;' which is, whether, by our statute of uses, the legal title was transferred from them to the children of Anna D. Tatum, the plaintiffs and defendants in this suit at the time of her death in October 1865, or at the time of her husband, Theophilus Tatum’s death, in November 1865. Certainly such title would have been so transferred by the operation of the English ^statute of uses. 1 Domax’s Dig., pp. 194-195, marg. There seems to be a material difference between the English statute of uses and ours; and it may be doubtful whether our statute would have that effect. Id. and seq. ; Bass v. Scott, 2 Leigh 356. Our statute has not 3ret been judicially construed, except that in the case just cited, it was considered as not extending to a devise. If the trustees in this case had any title to the land at the time of the institution of the suit, it was a mere dry legal title, such as is described in Hill on Trustees, pp. 316-317, marg. There was but one duty which then remained for them to perform, and that was, to convey that legal title to the plaintiffs and defendants in this suit, who were seized of a perfect equitable title, and were in the actual possession and enjoyment of the estate. If these trustees had refused to perform that duty on request, they might have been compelled to do so by suit, and would have subjected themselves to the costs of the suit. Id. 278, marg. They could not have charged the estate by any act or default of theirs, and could not have recovered possession of it by an action at law against the beneficiaries. Code, ch. 135, § 21, p. 611. It is not strange therefore that the counsel who drew the plaintiff’s bill considered that they had no interest in the subject of the suit, or at least not such an interest as to require them to be made parties. But all the facts in regard to the title were set out in the bill, and the deed of trust was exhibited therewith, so that the court might see, and the purchaser might see, the precise state of the title. No objection was made by the purchaser to the title, nor to any supposed defect of the suit in not making the trustees parties, until long after the report of sale had been confirmed, the purchaser had received possession of the land, had paid a large part of the purchase money, had executed his notes for the balance, and his note for the last deferred payment had become payable. But without deciding whether this objection for want of parties, would have been valid, even if made by the purchaser before the confirmation of the sale, much less that it was valid when made for the first time about two years after the sale, on being pressed for the payment of the balance of the purchase money; I am of opinion that it was cured by the deed of release which was executed by Robert H. Branch, surviving trustee, under the said deed of trust, and filed in the cause when the last decree was entered therein. Surely if such a release had been executed before the suit was brought, it would have been unnecessary and improper to have made the trustees parties; and for the same reason, it was unnecessary, and would have been improper, to amend the bill and make them parties after that release was executed and filed. The appellant says, he does not know that Branch is the “surviving trustee,” and, that “if it be a fact that Boyd, the other trustee, is dead, it ought, somehow, to have been properly stated in the pleadings; it certainly is not a fact of which the court will take judicial notice.” The deed of release recites that Branch was the surviving trustee. No objection was made to it in the court below. It was not there pretended by the purchaser that Boyd was not dead, nor did he call for proof of the fact, or ask for time to enquire into it. The objection was made, for the first time, in the appellate court; and it then came too late. The presumption is, that Boyd was 266dead and Branch was the surviving trustee, as the deed recites. I am, therefore, of opinion that this first assignment of error ought to be overruled. Secondly, that an abatement of the purchase money should be made for the alleged efficiency of one acre in the quantity of the land. The tract of land was supposed to contain ninety acres. It was so described in the bill, and was no doubt so described in the advertisement of sale, though in the deed of trust, which was filed as an exhibit with the bill, it is described as containing ninet3r acres, “be the' same more or less.” I think the land was not sold by the acre, but that it was sold by the tract for $4,750, which is far from being an equimultiple of the supposed number of acres. The boundaries of the land were well defined, and are minutely set out in the deed of trust. There appears to have been no doubt or difficulty as to any of the corners or 'lines. The purchaser no doubt viewed every foot of it. Being a small tract, he could probably stand in the centre and see all of it at one view. He was a practical surveyor, and could estimate the quantity with sufficient accuracy to be satisfied that it was about ninet3r acres; and he was willing and agreed to give for it $4,750. It is extremely improbable that he would have been unwilling to give that price for. it if he had known that the actual quantity was eighty-nine instead of ninety acres; or that the owners, if that had been the fact, would have taken any less for it. The improvements were valuable, and worth at least as much as the land. The purchaser called for no surve3r, even supposing that he had a right to call for one; but paid a large part of the purchase money, -gave his notes for the balance, and entered into the possession and enjoyment of the land; and the sale was confirmed by the court. Being a practical surveyor, he knew that surveys of the same land rarely, if ever, produce precisely the same quantity, but almost always vary to some small extent, on account of the variation of instruments. That the quantity might vary in this qase, one way or the other, to the extent of an acre, was what might reasonably have been and probably was expected. But it was as fair for one as for the other. The purchaser sa3s, he afterwards made an experimental survey and ascertained the deficiency to be an acre and a fraction. Suppose he had ascertained an excess to that extent instead of a deficienc3r, would he have considered himself bound to pay for it? Would he have been held liable for it? Would the parties to the suit have thought of claiming it? I think not. Then the rule ought to work both ways. But a conclusive answer to this assignment of error is, that there is no proof in the Record that the alleged deficiency exists. The fact is asserted in the affidavit filed by the purchaser, nearly two years after the sale, in answer to the rule requiring him to pay the balance of the purchase money. But it is an affirmative allegation, the proof of which devolved on him who made it. The ground on which alone a purchaser in such a case is entitled to relief, is that of mistake. And he must clearly prove the mistake, especially in a case like this, in which the report of sale as been confirmed, and there has been so great a lapse of time, and so much done by the parties, founded on the assumption that there was no such mistake. Sven if it be true, as stated in the affidavit, that the quantity of the land is stated as 89 acres in the books of the commissioner of the revenue (of which however there is no legal evidence), that does not prove the real quantity. I am therefore of opinion that this second assignment of error ought to be overruled. Thirdty, that the shares of the infant defendants should be properly invested and secured. The sale in this case was made when the infant defendants were nearly of age: one of them being nineteen and the other seventeen ; and both of them having answered the bill in proper person upon oath, expressing a desire that the sale should be made. Their portions of the cash payment were decreed to be paid, and have no doubt been paid, to their legally qualified guardians. The balance of the purchase money remaining unpaid is about equal to the amount of their shares of the whole purchase money. When the last decree in the cause was made requiring the purchaser to pay the balance of the purchase money, one of these two infant1 defendants had probably arrived at age, and the other is no doubt now of age. Certainly it is the duty of the court, in such a case as this, to see that an infant’s share of the fund is secured, as required by the Code, chapter 124, ? 3, page 581. The commissioner appointed to sell the land in this case was required, before acting under the decree, to enter into bond with good security in the penalt3r of six thousand dollars, conditioned according to law. As the infants would soon be of age, it was no doubt desired by them; and thought proper by the court, that their portions of the cash payment should be paid to their legally qualified guardians, instead of being loaned out or otherwise invested for short periods. This may have been error; but no one complains who has any right to complain of it. The infant defendants, or ■ rather the defendants who were infants, do not complain of it. They are satisfied, no doubt because they have received their money, or the full benefit of it. The purchaser has no right to complain of it. When he paid the money, in obedience to the decree, to the commissioner of the court, who was authorized to receive it, and who had given bond with good security for its faithful application, he thereby discharged himself from all further liability for this money, and the proper application of it devolved upon the court. It is settled that a purchaser at such a sale is not answerable for any disposition which the court may make 267of the purchase money. Brown v. Wallace, 4 Gill & John. R. 479; Daniel, &c. v. Leitch, 13 Gratt. 195, 211. I am therefore of opinion that this third assignment of error ought to be overruled. fourthly and lastly, that the appellant was improperly subjected to the payment of costs as he was not in default. The costs here referred to are not the costs of the *suit. All of those costs which had been incurred down to the time of the distribution of the cash payment, were paid out of the amount of that payment; and the sum of thirty-eight dollars and fifteen cents was then retained by the commissioner to meet the future costs of the suit and to be accounted for thereafter. The only costs alluded to in this assignment of error are the costs of the proceeding under the rule, which cannot be more than one or two dollars; that is, the clerk’s fee for entering it and the sheriff’s for serving it. And these costs would no doubt have been given up by the parties, or refused to be imposed on the purchaser by the court, if, on the return of the rule, he had paid the balance of the purchase money or given assurance of such payment in a short time. But he did not do so. On the contrary he stood out against the rule, and defended himself against it on the ground of defect of quantity, and defect of parties, notwithstanding the execution of the deed of release aforesaid. And when the rule was made absolute, instead of then acquiescing, he carried the case to the District court, and brought it thence to the Court of Appeals. In persisting in his resistance of the rule after the deed of release was filed, he lost the advantage he might otherwise have had in getting rid of these costs, and made the rule thenceforward a necessary proceeding. Under these circumstances, I think the court committed no error in subjecting him to these costs, and certainly none for which the decrees or any of them ought to be reversed. I am therefore of opinion that the said decrees ought to be affirmed. The other judges concurred in the opinion of MONCUEU, P. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481733/	CHRISTIAN, J. These two cases are 278brought up by writs of error to judgments of the Circuit court of the city of Richmond. Being kindred cases, they were heard together in this court, and were argued with marked ability and learning by the counsel on both sides. They present a question, which is without judicial precedent in this State. Its adjudication, here, will affect important interests. Its novelty, as well as its importance, alike demands a very careful consideration. In the one case, the suit is brought by the Exchange Bank, for the use of Geo. W. Camp, trustee, to . recover a certain sum of the defendants, who were makers and endorsers of a nejgotiable note, duly protested, and which was the property of said bank, before and at the time of the assignment of its assets to trustees for the benefit of its creditors. In the other case, the suit is instituted by the Farmers Bank for the use of Goddin and Robinson, trustees, tp recover of the defendants a certain amount, loaned and advanced to them; which ^amount they have overdrawn in their dealings with the bank. In the first case, the defendants pleaded “nil debet,” and also filed a plea of “tender and offsets.” In the second case, the defendants plead “non assumpsit,” “payment,” and “set off.” In both cases, the defendants filed an account of offsets, consisting of the notes of these banks, respectively, representing nominally the full amount of plaintiffs’ demand. It is admitted in both cases, that these bank notes were acquired by the defendants after the respective deeds of assignment were made, and that they were greatly depreciated below their face value. It is also admitted, that when these bills of the bank were purchased, the defendants had notice of the said assignment. The sole question, therefore, presented in these two records is, whether or not, these depreciated bank notes thus acquired, can be set off against the demands of the plaintiffs, suing for the -use of the trustees of the creditors of the banks. It is to this question that I shall confine my opinion. The close of the late civil war found all the banks of circulation in the State, in a condition of hopeless insolvency. They were compelled to suspend business, and there was scarcely a remote possibility of a resumption. In this state of things, forced upon them bjr the calamities of war, nothing remained for them but to go at once into a course of liquidation, and to distribute among their creditors such remnants of their assets as might yet be realized. In this condition of things, and to effectuate this object upon equitable terms, the general assembly passed the act of the 12th of February 1866, entitled an act requiring the banks of the Commonwealth to go into liquidation. The purpose of that act was to provide regulations, by which, as recited in the preamble, “a speedy settlement of the affairs of said banks should be made, in order to a legal and proper distribution of their assets amongst all persons entitled to share in such distribution. ” The 1st section provides that it shall be lawful for the president and directors of any bank of circulation, chartered by the general assembly of Virginia, to make a deed, conveying all the assets of the bank to such persons as they may select; and providing that “the proceeds of said assets shall be distributed amongst all persons, corporations and associations entitled to share in such distribution, according to the legal rights and priorities of such persons, corporations and associations, at the time such deed shall be executed.” In conformity with this act of assembly, and in strict pursuance of its provisions, the Exchange Bank and the Farmers Bank each executed, in proper legal form, through its president and directors a deed, by which all the assets, real and personal, of said banks, respectively, were conveyed to certain trustees therein named, for the benefit of the creditors of said banks. The deed made by the Exchange Bank provides for a distribution of its assets “pro rata” amongst all its creditors, according to their legal rights and priorities. The deed executed by the Farmers Bank gives preference to the noteholders over the depositors and other general creditors. But it contains the following provision: 1 ‘Provided, however, that if, according to the proper legal construction of the act of the 12th of February 1866, a ratable distribution among all the creditors of the bank, not having specific liens on the property of the bank, be required, then the trustees shall apply and distribute the proceeds of the said assets according to the requirement of said act, and shall not make or attempt any distribution giving preference or priority to the noteholders as aforesaid. ’ ’ This deed, and the act of assembly under which it was made, have received the judicial construction of this court. In Robinson & ais. v. Gardiner & als., 18 Gratt. 509, it was held, “that upon the true construction of this act, all the creditors of the bank, not having a specific lien, are placed upon the same footing, and are entitled to share the assets ratably.” The second section of the act referred to makes a provision, the object of which is to prevent any creditor from obtaining by suit more than his just and ratable share in the distribution of the proceeds of the assets of the bank, and thus to preserve that equality of distribution contemplated by the first section. It, in effect, declares that each creditor of the bank is entitled to his ratable share in a fair pro rata distribution of the assets of the bank; and plainly implied that such is to be the rule of distribution. I have thus noticed, with some particularity, the act of the 12th of February 1866, because, in my view of the case, a proper understanding of the purposes of this act, if it does not furnish a key to the solution 279of the question before the court, at least advances one step towards solving the difficulty in the vra.y of a satisfactory conclusion. It is evident that this statute was intended to secure the equal distribution of the effects of these corporations among their creditors ; and it was so express^ decided in the case of Robinson v. Gardiner (supra). A part of these effects were the debts due to these banks, and among others the debts due from these defendants. These obligations of the defendants, along with the other assets of the banks, were assigned to trustees for the benefit of all the creditors of these corporations. Now, if the defendants are to be permitted to purchase the bills of the banks, and set them off against their obligations, the plain objects and ptirposes of the statute are totally defeated, and instead of the equal rights of ail the creditors being secured (as was the design of the legislature), there would follow a most unequal and inequitable mode of distribution,in this, that these defendants (who are creditors as noteholders) would receive every dollar of their claims, while the other creditors would receive but a small proportion of theirs. It must not be forgotten, that when, in conformity with the act of February 1866, these banks executed their respective deeds of assignment, the3T had ceased to exist for the purposes for which they were created. A resumption of their operations as banks was simply impossible. The stockholders had no longer any interest in them. It only remained to wind them up for the benefit of the creditors. Robinson v. Gardiner (supra). In this view, the grantees in said deeds were not trustees for the banks, but for the creditors only. Haxtun v. Bishop, 3 Wend. R. 13; Diven v. Phelps, 34 Barb. R. 224. The true principle, I conceive to be this: These corporations being insolvent, under the statute, and the deeds made in pursuance thereof, the rights of all the creditors attach equally to all their assets, and whoever takes their bills afterwards (being indebted to such corporations) rakes them subject to this right of all the creditors to share equally in their assets. His claim is upon the assets for his proportionate share. The statute, as well as the deeds of assignment, virtually secures to the creditors collectively the entire and exclusive right to all the assets. The debtor, therefore, must pay his debt, and take his dividend for his claim, arising from his ownership of the bills, acquired under such circumstances. It is true that a bank, as long as it is solvent, or rather, as long as it has control of its assets, is bound to take its own bills in payment of debts due to it; but when it becomes insolvent, and goes into liquidation, making an assignment of all its assets for the benefit of its creditors, the rights of all its creditors attach equally, and a debtor then takes the bills of the bank subject to the rights of other creditors to enforce his obligation against him for the equal benefit of all. Diven v. Phelps, 34 Barb. R. 224 ; 9 Cowen R. 408, notes; 1 Paige R. 585 ; 3 Wend. R. 13. But independently of the act of 12th February 1866, the obligations enforced, and the rights established under it, according to the construction I have given it, it must be conceded, on general principles, that these notes of the banks, acquired after notice of the assignment, cannot be pleaded as set offs in actions brought by the assignees of the banks, unless these cases are taken out of the operation of the general and well-settled principles of law, in consequence of the provisions of the charters of these corporations, or of the general law regulating them. To this question I shall advert presently. It is a principle of law, too well settled to admit of doubt or argument now, that a set off as between original parties, acquired after the assignment for a bona fide purpose, of the subject in controversy and notice thereof, cannot be set off against a holder for value. 12 Johnson R. 343; 1 John. Ca. 51; 5 Munf. 388; 14 Gratt. 1. It is equally well settled that the trustees and beneficiaries in a deed of trust to secure bona fide debts, are purchasers for valuable consideration. A pre-existing debt is of itself a valuable consideration for a deed of trust executed for its security. Wickham, &c. v. Martin & Co., 13 Gratt. 427; Evans, trustee, v. Greenhow & als., 15 Gratt. 153. In the first named case Judge Daniel says (and in this part of his opinion the whole court concurs with him): “I think it has been the constant course of the court in this State to regard the creditors in a deed of trust made b3* their debtor bona fide for their indemnity, in the light of purchasers for value.” Id. 437. This opinion of Judge Daniel is quoted approvingly by Judge Moncure, delivering the opinion of the court in Evans, trustee, v. Greenhow & als. (supra). A deed of trust is certainly an assignment of the subject matter in controversy, and the appellants (the trustees) are assignees for valuable consideration in the general sense of these terms. But it may be said that the trustees in this case are assignees in law and not in fact; that the deeds were made under the mandate of the legislature and were not voluntary. Admitting that this is true, does it alter the relations of the parties so as to change the principles of law applicable to questions of set off? I think not. An assignee in bankruptcy is an assignee in law; and yet it is well settled that in an action brought by assignees in bankruptcy, the defendant cannot set off a claim against the bankrupt acquired after the bankruptcy. 6 Term R. 57; 2 John. R. 273. Chancellor Kent, delivering the opinion of the court in the latter case says (referring to the first named case): “The decision of King’s Bench in that case is founded in good sense and sound policy. It would, as iord Kenyon observes, be unjust, if one person, who happened to be indebted to an280other at the time of his bankruptcy, was permitted by any intrigue between himself and a third person, so to change his own situation as to diminish, or totally destroy, the debt due to the bankrupt by an act ex post facto.” Ib. 278. And so administrators may be said, in a certain sense, to be assignees in law of debts due to their intestate, and yet it has been repeatedly decided that in an action brought by an administrator for a debt due to his intestate, the defendant cannot set off a debt due from the intestate purchased by the defendant after the death of the intestate. 20 John. R. 136; 2 Paige R. 402; 3 Paige R. 402. Whether, therefore, these trustees are to be regarded as assignees in law or assignees in fact, the set off ^claimed by the defendants is equally inadmissible ; and there can be no reason why the well settled and universally recognized principles of the law of set off should not be applicable to these cases, unless indeed it be found in the charter of these corporations, or in the general(law regulating their operations. And this brings me to consider the argument which was pressed with so much earnestness and ability by the counsel for the appellees. It is insisted by them, and with great apparent force, that the fact that the assignment in these cases was made not by an individual, but by chartered institutions, which are required by the general law creating them and regulating their operations, to receive their own notes in payment of debts due to them, forbids the application of the general principles of law adverted to, and that for this, reason the right of the debtor to pay his debt in the notes of the bank cannot by affected by an assignment of that'debt to a third party. It is earnestly contended that the right of a debtor to the bank- to pay his debt in the bills of the bank is a part of the contract under which the bank issues its notes, which is inherent in the obligation, and follows it to whomsoever and for whatsoever purpose it may be transferred, and goes with it even into the hands of a bona fide holder for value. If the case is for the appellees, it is only upon these grounds. Tet us examine carefully and fairly these propositions. All these questions turn upon the true construction to. be given to section 16 of chap. 58, Code 1860, which is in the following words: “2 16. Though a bank have a branch, all its notes shall be signed by the president and countersigned by the cashier of the parent bank. All such notes shall be received in payment of debts to the bank,'whether contracted at the parent bank or branch.” Now, the exact meaning of this section may be discovered, 1st, by considering the terms in which it is couched, and their relations to each other; and, 2d, the mischief it was intended to remedy. It may be observed in passing, that the legislative mind in this section is directed to the subject of parent t?anks and branch banks, and not to the subject of the obligations of banks generally. “Though a bank have a branch, all its notes shall be signed by the president and countersigned by the cashier of the parent bank. All such notes (that is, notes signed by the president and countersigned by the cashier of the parent bank), shall be received in payment of debts to the bank, whether contracted at the parent bank or branch.” The last clause of this section was taken from the act 1836-7, entitled “an act establishing general regulations for the incorporation of banks.-” Section 9 contains the following provisions: “All bills or notes negotiable or pajrable at any office of discount and deposit of any bank, shall be placed on the legal footing of bills or notes negotiable or payable at the parent bank. And the notes of each shall be received at the parent bank or any of its branches in payment of debts due to any or either of them. ’ ’ The phraseology is different, but the meaning of these two provisions is precisely the same. The obvious meaning is this: that whether the debt is contracted with the parent bank or the branch bank, the notes of the parent bank, signed and countersigned by the president- and cashier of the parent bank, shall be received at the branch bank for a debt due to the branch bank; and so the notes of the branch, bank, signed and countersigned as required, shall be received at the parent bank for a debt due to the parent bank: or, in other words, the legislature meant simply to say, that when a debt to a bank became payable by its terms at the parent bank, the debtor should have the right to pay it there in notes of the bank, which, on their face might be redeemable at a branch of that bank; and on the other hand, that a like debt, payable at the branch bank, might be paid there in notes, which on their face were redeemable at the parent bank. The mischief to be remedied no doubt was, that in such cases, notes redeemable at the branches were refused at the parent bank, and notes redeemable at the parent bank were refused at the branches; and without such a provision as this, the debtor would be required to pay his debt either in specie or else in bank notes redeemable at the counter of the particular bank, whether parent or branch, at which the debt was payable. Such a practice would be inconvenient and vexatious, and it is plain to my mind that this was the mischief which the '£ 16, ch. 58 of the Code was intended to remedy. This being the plain object of the clause, it would be a strained interpretation, unwarranted by any sound rule of construction, so to apply this clause as to constitute a right of set off against a debt, which, though once due to a bank, had ceased to be so due, by reason of an assignment made, and known by the debtor to have been made, before the subject of the set off was acquired. Such a construction cannot be fairly maintained. Nor can I perceive the force of the argument §o earnestly pressed by the 281counsel for the appellees, that these provisions are incorporated in the charter of all the banks, and constitute a contract binding on them to receive their notes at par in payment of all debts due to them; and that this obligation follows the debt, no matter to whom or for what purpose it may be transferred or assigned. Such a proposition, carried out to its legitimate and logical conclusion, would lead to this absurd result: A note executed by A. to B., payable in gold, is transferred to the bank. As long as it is the property of the bank, it is conceded, it may be paid in the notes of the bank. But suppose the bank assigns this note for a valuable consideration to a third party; if the position of the appellees be right, then the note which originally was payable by B. in gold may be discharged ' in depreciated notes, though it be in the hands of a third party for full value. But again, the effect of such a construction would destroy the negotiability of every note or bill of exchange which came into the possession of the bank; and once in its possession, it would become burdened with this condition (no matter into whose or how many hands it might pass), to be discharged in the notes of the bank, however depreciated, though originally it was payable in gold. Such must be the inevitable result of such a construction. Now, as between the banks and the bill-holders, the law does make a contract that the bank shall receive its own notes in payment of a debt due to it by the bill-holder; but it must be a debt due to the bank, and when assigned to-a third party for value, it is then a debt due to the assignee, and not to the bank, and there is no obligation on the assignee to receive the notes of the bank, but the debt must be paid as other debts are paid. The truth is, that these provisions of the statute are, as before illustrated, simply laws regulating the payment at the parent banks and branch banks respectively of debts “due to any or either of them, ’ ’ and cannot be said to constitute a contract binding upon every party who may be the assignee or endorsee of the debt originally due to the bank. The case of “Woodruff v. Trapnall,” 10 How. U. S. R. 190, so much relied upon by counsel for the appellees, comes far short of establishing the principle for which it was invoked. When properly understood and applied, it does not at all conflict with the positions taken in this opinion. The case was this: In 1836 the legislature of Arkansas chartered a bank, the whole capital of which belonged to the State, and the president and directors of which were appointed by the general assembly. The 9th section of the act of incorporation provided “that the bills and notes of said institution shall be received in all payment of debts due to the State of Arkansas.” In 1845 this section was repealed. ^Woodruff was the treasurer of the State of Arkansas, and became a defaulter to a large amount. Suit was instituted on his official bond and judgment recovered, upon which execution was issued in 1847. Woodruff tendered in payment of this execution the notes of the bank issued before the repeal of the section referred to. And the question was, whether the State should be compelled to receive these notes in payment of this execution. The court decided that the act of 1845, repealing the 9th section of the act of ’36, was unconstitutional, because it impaired the obligation of the contract created by that section between the State and the bill-holder to receive its own notes (the State being the bank in this case) in payment of debts due to it. The judgment in this case was a debt due to the State of Arkansas, and the provision of law was, that the notes and bills of this institution shall be received in payment of all debts due to the State of Arkansas. This was clearly a case of contract, which could not be impaired by legislation. And so in the case before us, as long as the bank had control of its own assets, and carried on its operations as a bank, there unquestionably was a subsisting contract between the bank and the bill-holder to receive its own bills in payment of debts due to it. But when the bank parted with its assets, assigning them to trustees for the legitimate purpose of a fair and equitable distribution among its creditors, then the debts of the defendants are no longer debts due to the bank, but due to the creditors of the bank, being a part of its assets in the hands of the trustees for distribution. Therefore the decision of the Supreme Court, in Woodruff v. Trapnall, can have no application to this case. I have said in the beginning, that these cases present a question which is without judicial precedent in this State. I have carefully examined the decisions of the courts of other States to ascertain what has been the ruling of these courts on this question, and I find that, with a single exception (if that, indeed, can be considered an exception), the whole current of decisions have been in one direction ; to wit, that the assignees of a bank are not obliged to take from the debtor the notes of the bank obtained after notice of the assignment. This has been the uniform course of decision in New York. See 3 Wend. R. 13; 1 Paige R. 585; 1 Haw Reg. N. S. 238; 34 Barb. 224. The courts of Pennsylvania have decided the same way, 8 Watts & Serg. 311; Housum v. Rogers, 4 Wright R. 190, 40 Pa. So in Ohio, 1 Ohio R. 381, 376; 3 McLean R. 397. So in Kentucky, 16 B. Munr. R. 454; 1 Duval R. 85; and in Mississippi, King v. Elliott, 5 Smeedes & Marsh. R. 428. And such is the uniform judgment of all the courts where this point has been adjudicated, with the exception of the Court of Appeals of the State of Maryland. That court has decided (6 Gill & Johnson 263), that the assignees and trustees of an insolvent bank, authorized to collect its debts and pay its creditors, are bound, under the statutes of that State, to receive the notes of such banks without 282reference to the time at which they were acquired. But that case is peculiar in this, that at a meeting of the board of directors of the bank, ’preparatory to the execution of the deed of trust, a resolution was adopted by said board to the effect, that ‘ ‘the debtors of this institution should have the privilege of paying their debts in notes of the bank. ” And the statute upon which the decision is founded, provides for the payment of debts due to the bank, whether solvent or insolvent, in the notes of the bank, whether it is carrying on its operations as a bank, or whether after the insolvency its assets have been assigned to commissioners, to wind it up for the benefit of its creditors. The decision is based upon the particular facts of the case, and the peculiar provision of the ^Maryland statute, and cannot be regarded as authority in the cases before us. But if there was no such peculiarity, and it was a case going to the full extent of the broad principle for which it was invoked by the counsel for the appellees, it could not be permitted to stand in the way of the unbroken current of decisions by the courts of New York, Pennsylvania, Ohio, Kentucky and Mississippi, and other States already referred to. I have thus examined, somewhat in detail, the several grounds upon which the appellants and the appellees have put their claims before this tribunal, with the authorities upon which they rest them, and am constrained to conclude that the case is with the appellants, both upon principle and authority. And I am bound to say, too, all the equities of the case are against the appellees. They are seeking to ,pay in a depreciated currency that for which they received full value, and that, too, at the expense of others, who have equal rights with them, and in violation of that -just and equitable rule of distribution prescribed by an act of the general assembly. I am, therefore, of opinion, that the judgments in both cases should be reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481734/	The other judges concurred in the opinion of CHRISTIAN, J. The judgments were as follows: This day came the parties, by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasohs stated in writing and filed with the record, that the said judgment is erroneous. Therefore, it is considered by the court that the same be reversed and annulled, and that the plaintiff recover against the defendants the costs by the said plaintiff expended in the prosecution of the writ of supersedeas aforesaid here. And this court proceeding *to enter such judgment as the said Circuit court' ought to have entered, it is further considered, that upon the statement of the facts agreed in the case the law is for the plaintiff, and that the said plaintiff recover against the defendants, one thousand and two dollars and fifteen cents, with interest thereon from the 1st day of June 1861, till payment, the principal, charges of protest, and interest in the declaration mentioned, and the costs by the said plaintiff expended in the prosecution of the said suit in the said Circuit court. And the defendants, John S. Knox, Jr., and Robert R. Knox, having filed their petition to this court, representing that since the rendition of the judgment aforesaid, they have been adjudicated bankrupts, under the act of congress passed on the 2d day of March 1867, and have received their certificates of discharge, which or copies of which were presented with said petition; and praying that this court, in its judgment reversing the said judgment of the said Circuit court, would make such provision as would protect them from any execution that might be issued upon the same; upon consideration thereof, it is ordered that no execution be issued upon the said judgment without a previous order to that effect, made by the said Circuit court, after reasonable notice to the said defendants to appear and show cause, if any they can, against it; which is ordered to be certified to the said Circuit court. And on the motion of the defendants, John S. Knox, Jr., and Robert R. Knox, it is ordered that they have leave to withdraw the original certificates of discharge filed with the said petition, on leaving copies thereof. This day came, &c., and the court having, &c., is of opinion, for reasons stated in writing and filed with the record, that the said judgment is erroneous. Therefore, it is considered, &c., and this court proceeding, &c., it is further considered by the court, that upon the Statement of facts agreed in the case, the law is for the plaintiff, and that the said plaintiffs recover against the defendants, nineteen hundred and forty-eight dollars and seventy-one cents, with interest thereon from the 1st day of April 1865, till payment, and the costs by the said plaintiff expended in the prosecution of the said suit in the said Circuit court. Which is ordered to be certified to the said Circuit court. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481735/	JOYNES, J. These are three several appeals in the same case. The bill was filed by D. J. Hartsook, executor- of Mrs. Mary W. Cabell, dec’d, against her legatees and distributees, for the purpose of obtaining the advice and direction of the court, in his administration of the estate, and especially in respect to the construction and effect of certain provisions of the will and codicils of the testatrix. ■ The first two appeals 291are from the decree of the District court affirming interlocutory decrees of the Circuit court. The last appeal is from the first decree of the Circuit court. The various questions arising on these appeals will now be disposed of: I. Mrs. Cabell, after disposing, by her will and two codicils of a large amount of her property, embracing probably the greater part of it, at the close of the second codicil, made the following provision: “In case of a sudden and unexpected death, I give the remainder of my property to be equally divided between my cousin Dr. Carter of Philadelphia, and my cousin Peyton Skipwith of New Orleans, one-half of which, each must hold in trust for the benefit of their children.” It is contended, on behalf of the next of kin, that the bequest contained in this clause is dependent on the condition of the testatrix dying suddenly and unexpectedly. It is contended, that according to the evidence, she did not die suddenly and unexpectedly, and that, therefore, nothing passed by the bequest. In cases of this sort, the question to be determined is, whether the contingency is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition is to become operative. Porter’s case, Eaw Rep. 2 P. & D. 22; Dobson’s case, Eaw Rep. 1 P. & D. 88. These were cases in which the words of contingency had reference to the whole will; but the same principles apply when they have reference only to a particular bequest, as in the present case. In Dob-son’s case, the court said, that a will will not be held to be conditional, unless it is clear that the testator intended that it should operate only in a certain event; and in Porter’s case, the court said, that if the language used by the testator can, by any reasonable interpretation, be construed to mean that he referred to the contingent event as the reason for making the will, then the will is not conditional. In Dob-son’s case, the language was this : 1 ‘In case of any fatal accident ^happening to me, being about to travel by railway, I hereby leave all my property, ’ ’ &c. The court said, that the meaning seemed to be this: “My mind is drawn to the consideration that all railway travelling is attended with danger, and I, therefore, think I had better make my will. ’ ’ It was accordingly held, that the will was not conditional, and it was admitted to probate, although the testator returned unhurt from the travel by railway alluded to in the will. Mrs. Cabell had disposed of part, and probably the greater part, of her property by her will, and the codicils already made, and she evidently desired and intended to dispose of the residue. The fact, no doubt, was, that she had not fully made up her mind as to the objects, or all the objects, on whom she would bestow the residue, and she seems to have apprehended, that she might be cut off by a sudden and unexpected death, before she would be able to do so. To provide against that contingency, she thought proper to make the disposition contained in the clause in question, which she intended to stand, in case she should make no other. So, in like manner, in a previous codicil, she had said: “I intend hereafter writing another codicil, to dispose of the rest of my property, but in case of a sudden death, I now add to this codicil, ’ ’ &c. In putting a construction upon the ambiguous language of this clause, we may properly take into consideration the character of the contingency referred to. And when we do so, it seems hardly possible to believe that the testatrix could have intended the bequests in this clause to be contingent, upon her happening to meet a sudden and unexpected death. What is a “sudden death?” What we call the occasion or the cause of death, as a shot, or a blow, or a fall, may be sudden, but how soon must death follow, to give it the character of a “sudden death?” And what is an “unexpected death?” Unexpected to whom? Unexpected for how long a time? We may well say of a death taking place under certain circumstances, that it was sudden and unexpected; and of a death taking place under certain other circumstances, that it was not sudden and unexpected. But how can we draw the line? It is plainly impossible, in the nature of things, to lay down a rule for determining when a death is sudden and unexpected, and when it is not; and this must have been as obvious to the testatrix as it is to us. And then, what possible motive could she have had to make her bounty dependent on such a condition? She might live many years. Could she have intended, in that event, that it should depend upon the mere manner of her death, whether her legatees should take? Such a purpose would have been whimsical and absurd to the last degree, and inconsistent with all our experience of human motives and feelings. Upon the whole, it seems clear, that such expressions as those used in this clause, could not properly be construed as creating a condition, unless accompanied by other language, so clear as to admit of no other interpretation. They are not so accompanied in the present case, and without putting the slightest strain upon the language, we can understand it as designed only to express the reason, which led the testatrix to dispose of the residue at that time, and to avoid the risk of further delay. The bequests, therefore, were absolute and not conditional,. and so the Cicuit court held. II. The second codicil, containing the residuary clause just considered, is dated, at the beginning, February 28, 1861, and at the end is the date August 18, 1861. On the 27th day of November 1861, the testatrix made a sixth codicil, as follows: “In consequence of the state of the country, I now revoke my bequests to Dr. Carter and his children, and also to Mrs. Fanny Taylor, her daughter Miss Cornelia Taylor, and also to Miss Fanny 292Bewis, all of them residents of Philadelphia.” It is contended on behalf of Dr. Carter and his children, that this revocation is inoperative and void, because made under a mistake. To establish the alleged mistake,-they refer to the testimony of Mr. Hartsook, who says that in a conversation with the testatrix, he suggested to her, for her consideration, that if she had given property to any of her northern friends, it might be confiscated under the sequestration act [of the Confederate States]—that she replied, that she had done so, and would revoke the bequests; and that she subsequently told him that she had revoked the bequests to her northern friends, in consequence of the state of the country. The alleged mistake is, that she supposed that these legacies, if not revoked, would or might be confiscated, whereas, it is insisted, the sequestration act was wholly void in law; and, moreover, did not confiscate the corpus of any property, but only sequestered the profits. The most that can be made of this evidence is, that the testatrix had been advised by the witness, as his opinion, that the legacies referred to would be liable to confiscation, and that she adopted that opinion by making the revocation. But it is laid down, that if a revocation is made dependent upon the information received by the testator, or upon his belief or opinion, the act will be held valid, notwithstanding he may have been misinformed, or under a misapprehension. 1 Redfield on Wills 358, pi. 25. It is as if she had. said, “I have been advised that these legacies will be liable to confiscation, and, to avoid all risk, I revoke them.” She chose to make the revocation because she had been so advised, but she does not put it on the soundness of the advice, and the revocation cannot be set aside by showing that the advice was unsound. 1 Powell on Devises 527; Atto. Genl. v. Lloyd, 3 Atk. R. 551. Besides, it has not been shown that the testatrix was under any mistake. The counsel admits that the profits of - the legacies would have been liable to confiscation, or to sequestration, which was practically the same thing: and this may have been just what she apprehended. We ought to presume so, if this was the only sort of confiscation that was lawful or usual. And if she apprehended confiscation of the whole, it has not been shown that the apprehension was unfounded. But the codicil does not state any fact upon the supposition of whose existence the testatrix proceeded in making this revocation. All that she says is, that she revokes the bequests, “in consequence of the state of the country.” What there was in the state of the country that caused her to do so, or what she thought or feared in regard to the state of the country, does not appear on the face of the will. In the cases cited by counsel, the fact which the testator assumed to exist, and the assumed existence of which induced the revocation, appeared on the face of the will. But here we are asked to go outside of the will, and to ascertain from paro'l evidence what were the particular views and opinions of the testatrix, so as to lay the foundation for a case of mistake. No case has been found in which this has been allowed, and to allow it would violate fundamental principles. The Circuit court, therefore, was right in holding, that the revocation was. valid and effectual. . III. The next question is, what became of the half of the residuum, the bequest of which was thus revoked? The next of kin claim, that it passed to them as undisposed of; which was the view held by the Circuit court; while Skipwith claims, that the effect of the revocation was to make the whole residuum pass to him and his children. The claim of Skipwith has been maintained on two grounds, one of which is, that the original bequest of the residue was to a class, composed of the children of Carter and the children of Skipwith. The short answer to this is, that the bequest was not to the children of Carter and the children of Skipwith, jointly and collectively, but to the children of Carter and the children of Skipwith, as separate families, each family taking one-half; in other words, the bequest was not to one class, but to two classes. But the ground mainly relied upon is, that, in'consequence of the revocation, the will must be read as if the revoked bequest, and'everything relating to it, were struck out, or had never been inserted; the effect of which, it is said, will be, that the whole residuum is still disposed of, and that Skip-with and his children are the only persons to whom it is given. It is clear that under the terms of the residuary clause, Dr. Carter and Mr. Skip-with, as trustees for their children respectively, took the residuum as tenants in common. Each took a moiety, and a moiety only.' If, therefore, -the words importing a bequest to the Carters, be considered as struck out, there will remain only a bequest of a moiety to the Slcipwiths. And it is a well settled doctrine in England, that where there is a devise or bequest of a residue to several as tenants in common, and a revocation by codicil of the devise or bequest of one of the shares, that share does not fall into the residuum and pass under the will, to the other devisees or legatees, but becomes undisposed of, and goes under the law to the heir at law, in case of real estate, and to the next of kin [distributees], in case of personal estate. The reason is, that each tenant in common took only his several share, by the original gift, since tenants in common do not, like joint tenants, take per my et per tout, and there being no new gift by the codicil of the share revoked from one of them, the others can take no greater share than they had by the original will. The leading case on this subject, is Cresswell v. Cheslyn, 2 Eden R. 123, decided by Bord Northington in 1761, whose decision was affirmed by the House 293of Rords. There is a note to that case by Serjeant Hill, in which he questions the correctness of the decision upon the same ground as that mainly relied upon in the present case. That case, however, has always been followed, and its doctrine is firmly established in England. The latest case is Sykes v. Sykes, decided at the Rolls in 1867, Raw R. 4 Eq- 200 and by the Rord Chancellor on appeal in 1868, Raw R. 3 Ch. App. 301. The Master of the Rolls said, that Cresswell v. Cheslyn had been considered an authoritjT for more than one hundred years, and that he did not know a single case in which its authority had been doubted. See, also, the following cases, in which the doctrine of Cresswell v. Cheslyn was recognized and approved. Skrymsher v. Northcote, 1 Swanst. R. 566; Shaw v. McMahon, 4 Dr. & War. R. 431; Harris v. Davis, 1 Coll. R. 416; Clark v. Phillips, 21 Eng. R. & Eq. R. 122; Ramsey v. Shelmerdine, Law Rep. 1 Eq. 129. In Humphrey v. Taylor, Ambl. R. 136, cited by the counsel for Skip-with, the legatees took as joint tenants, and not as tenants in common; and that was the ground of the decision. Cresswell v. Cheslyn has likewise been approved and followed in this country. Brownell v. De Wolf, 3 Mason R. 486; Floyd v. Barker & al., 1 Paige R. 480. IV. By the first clause of her will the testatrix bequeathed as follows : “Of the ten thousand and fifty dollars which I received from my uncle Eitzhugh Carter’s estate, I give and bequeath two thousand dollars of it to Mrs. Hill Carter of Shirley, two thousand dollars of it to Mrs. Mary Cabell Irvine, two thousand dollars of it to my cousin Mrs. Eanny Young, one thousand dollars of it to my friend Miss Rucy Claiborne, one thousand dollars of it to Mrs. Margaret Brown, daughter of Mrs. ^McClelland, one thousand and fifty dollars to my friend Mrs. Eanny Taylor of Philadelphia, and one thousand dollars of it to my cousin Miss Randonia Randolph. I give the sums mentioned above to Gen’l Cocke, in trust for the sole and separate use of the ladies, whose names are mentioned.” It appears from the evidence, that, at the death of the husband of Mrs. Cabell, he had standing in his name S10,050 of bonds of the State of Virginia, which he had purchased with money derived from the estate of Wm. Eitzhugh Carter; that he regarded these bonds as belonging to his wife, and they were accordingly transferred to her by his executor; that in a book kept by Mrs. Cabell, and containing a list of all her stocks and public bonds, the said bonds were entered under the head of “State bonds transferred by J. C. Cabell’s ex’or to Mars' W. Cabell, derived from Wm. Eitzhugh Carter’s estate,” and that these bonds were kept by Mrs. Cabell, and were found after her death, wrapped up together in a separate wrapper. It is contended, on behalf of the next of kin, that the language of this clause of the will must be construed with reference to the facts disclosed by this evidence; and that the effect of it, when so construed, is to give specific legacies of stock, and not legacies of money, as the words, taken literally, import. And so the Circuit court held. The legatees, on the other hand, insist, that the legacies are money legacies, with a fund referred to out of which they are to be paid, though they are to be paid at all events; in other words, that the3T are what are called demonstrative legacies. It is a well settled rule, that the court will incline against construing a legacy to be specific, and that a legacy will not be held to be specific, unless there appears in the will a clear intention to make it so. The following language is used in 1 Roper on Regacies 213, in reference to the class of cases in which the question is, whether a legacy of stock is general or specific. “The intention of the testator to bequeath specifically must not be inferred by conjecture, nor upon a term which is capable of a double intendment, when the form of bequest is general; for a court of equity requires the intention to give specifically, either to be expressed, or to be clearly and indisputably manifested from perusal of the whole will.” Thus, a direction to transfer stock to a legatee will not make the legacy specific, though the testator had such stock at the date of his will. Eor the testator may have meant a transfer of the particular stock he had at the date of the will; or that the executor should purchase stock and transfer it to the legatees. In a case of that sort (Sibley v. Perry, 7 Ves. R. 522), Rord Eldon held, that the legacy was not specific, though he had no doubt, in private, that the testator meant to give the stock which he had; but he said there was no case deciding that a legacy was specific, without something marking the specific thing, the very corpus. So when the bequest is of stock, the fact that the testator possessed at the date of his will, the precise number of shares bequeathed, will not of itself make the bequest specific. Thus, in Robinson v. Addison, 2 Beav. R. 515, the testator made a bequest of five and a half shares in the Reeds and Riverpool canal, and two other bequests of five shares each ; making fifteen and a half shares in all. At the date of the will, he owned just fifteen and a half of those shares. Rord Rangdale held, that the bequest was not specific, and in giving judgment, said: “In the gift, the testator has used no words of description or reference by which it appears that he meant to give the specific and particular shares which he then had. Various arguments depending on the general scope and effect of the will, were used for the purpose of showing, that the testator in giving the precise number of shares which he possessed, must have had those shares in contemplation and none other, and consequently must have meant specific gifts of them. ’ ’ * * * ¡ ip\|. jS; however, clear, the testator, if he had meant to give only the 294shares which he had, might have designated them as his; that the mere circumstance of the testator having, at the date of the will, a particular property of equal amount to the bequests of the like property which he has given, without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific.” Davis v. Cain, 1 Ired. Eq. R. 45; and Tifft v. Porter, 4 Seld. R. 516, are cases of the same sort. See, also, 2 Wh. & Tud. E. Ca. 241. In Kirby v. Potter, 4 Ves. R. 748, where the question was, whether the legacy was a specific legacy, of stock, or a legac3r of money payable out of stock, Eord Alvanley held the rule to be, that no legacy should be held to be specific unless demonstrably so intended, and he said, that “whenever there is a legacy of a given sum, there must be positive proof that it does not mean sterling money, in order to make it specific.” In a subsequent case (Deane v. Test, 9 Ves. R. 152), Eord Eldon thoughtEord Alvanle3' had spoken too strongly in saying that nothing less than “positive proof” of intention would be sufficient to overrule the prima facie construction of the words. Eord Eldon held, that where the words import a gift of money, as of a sum of money out of certain stock, the prima facie intention is to give a money legac3r; a settled rule of construction to which it was wholesome to adhere, “until driven out by strong, solid and rational interpretation, put upon plain inference drawn from the rest of the will. ’ ’ He said further, that minute criticism would not vary the prima facie rule of construction. See, also, 1 Roper on Eeg. 219, 220, 227, 234, 235, 240. In Walton v. Walton, 7 John. Ch. R. 259, Chancellor Kent la3's down the rule in these words: “The courts are so desirous of construing the bequest to be general, that if there be the least opening to imagine, that the testator meant to give a sum of money, and referred to a particular fund only as that out of which he meant it to be paid, it shall be construed pecuniary, so that the legacy may not be defeated by the destruction of the seciirity. ” In construing a will, the enquiry is, not what the testator- meant to express, but what the words used by him do express; and, as was said by Sir William Grant in Attorney General v. Grote, 3 Mer. R. 316, “to authorize a departure from the words of a will, it is not enough to doubt whether they were used in the sense which they properly bear. The court ought to be quite satisfied that they were used in a different sense, and ought to be able distinctly to say, what the .sense is in which the3r were meant to be used.” And, as was said by Eord Eldon in the same case (2 Rus. & Myl. R. 699), “individual belief ought not to govern the case; it must be judicial persuasion.” As a general rule, the question whether a legacy is general or specific, is to be determined upon the face of the will. Innes v. Jolmson, 4 Ves. R. 568.- And though it has been held, that where a testator has described the subject of the bequest-in ambiguous terms, evidence of the state and value of the property may be received, in aid of the construction, to determine whether a legacy is general or specific; Boys v. Williams, 2 Rus. & Myl. R. 689; Attorney General v. Grote, Ib. 699; it is not admissible to alter the meaning of the words employed, when the meaning is plain, or to supply a reference to a particular subject or corpus, when none is imported by the language of the will. Parol evidence is always admissible to ascertain the thing actually described, but it is not admissible to show that the testator intended, by his will, to refer to a thing which the will does not describe. Pell v. Ball, 1 Speers’ Eq. R. 48. * Applying these rules to the clause under consideration, it seems to be clear, that the bequests contained in it cannot be regarded as specific. There is no mention of stock or bonds. The subjects of the several bequests are described as so many dollars; in the latter part of the clause they are referred to as “the sums mentioned.” In the beginning of the clause, the aggregate subject is spoken of as so many dollars, the amount being equal to the sum of all the several legacies. It is only by going out of the will that we find an argument in favor of holding the legacies to be specific; it is only by going out of the will that we find that it was stock and not money that came to the testatrix from the estate of her uncle Eitzhugh Carter. And even if we consider the evidence relied upon, it is by no means conclusive. The testatrix may have chosen to consider, that she had received ten thousand and fifty dollars in value from her uncle Eitzhugh Carter’s estate, and to give that amount, in money, to those among whom she divided what came from that source. The fact that the identical bonds derived from Eitzhugh Carter’s estate were kept by her in a separate wrapper, apart from her other bonds and stocks, indicates nothing decisive, if indeed it can be said to indicate anything at all to the purpose. The most that can be said of all this evidence is, that it affords a conjecture, that the testatrix intended by this clause to give stock and not money. But, as we have seen, no conjecture, however strong and plausible, will be sufficient to overrule the prima facie construction of the language. The Circuit court, therefore, erred in holding these legacies to be specific legacies of stock. They are money legacies, but whether general or demonstrative, it is not necessar3' to decide, as the estate is ample to satisfy them, so that the question whether a special fund is appropriated to their satisfaction is unimportant. V. By another clause of the will, the testatrix bequeathed “my guaranteed bonds of the James River and Kanawha Company,” to the unmarried daughters of Carter Braxton and Dr. Corbin Braxton. At the date of the will, she owned certain bonds of the James River and Ka295nawha Company, the payment of which was guaranteed by the State of Virginia, which amounted, in the aggregate, to $7,600. In the 3'ear 1860, an act was passed by the legislature of Virginia which provided, among other things, that such of the holders of guaranteed bonds of the James River and Kanawha Company, as should surrender them, should receive, in lieu thereof, bonds of corresponding amount of the State of Virginia. Sess. Acts 1859-60, p. , sec. 4. In pursuance of this act, Mrs. Cabell surrendered the bonds of the James River and Kanawha Company held by her, and received in lieu of them, a corresponding amount of bonds of the State, which she held at the time of her death. It is contended, on the part of the legatees in this clause, that, by the conversion of the bonds, the legacies were adeemed, and that they are entitled to receive money to the nominal amount of the bonds, under a subsequent clause of the will; and so the Circuit court held. The clause referred to is in these words: “I have specified in several instances, exactly what different stocks is to be given to different persons, but in case changes may be made in the location of my stock, I wish it distinctly understood, that out of my general property, those same persons are to receive the sums of money specified as given to them. ” It is contended, on behalf of those who take the residuum, that there was no ademption, and that the legatees of the guaranteed bonds are entitled to the State bonds into which they were converted, and have, therefore, no claim to receive monej", under the provision referred to. i 1 The general rule in regard to specific legacies is, that ^the claim of the legatee will be defeated, if the thing specifically bequeathed to him is not in existence at the time of the testator’s death; in that case, the legacy is said to be adeemed. And it seems to be the better opinion, and is now the established rule in England, that ademption depends on a rule of law, and not upon the intention of the testator. 1 Roper on Leg. 329, et seq. ; 2 White & Tudor Lead. Cases, notes to Ashburner v. Macguire. The word ademption, as applied to specific legacies of stock, or of money, or of securities for mone3T, must be considered as synonomous with extinction or annihilation. Where stock specifically bequeathed has been sold by the testator, or where a debt specifically bequeathed has been received by the testator, the subject of the bequest is extinguished or annihilated; nothing exists upon which the will can operate, and the legacy is adeemed and gone. But “where the thing specifically given has been changed in name and form only, and is in existence, substantially the same, though in a different shape, at the time of the testator’s death, it will not be considered as adeemed by such nominal change. ” This is the language of the English annotators upon Ashburner v. Macguire, 2 Wh. & Tud. 249. It may be illustrated by the following cases. . . . ■ : ' . : s : L ■ ■ : In Dingwell v. Askew, 1 Cox Eq. R. 427, stock standing in the name of trustees for the testatrix, was specifically bequeathed, and the testatrix subsequently took a transfer of the stock from the trustees into her own name. This was held not to be an ademption of the bequest. In Roper it is said, that this case is an authority, that the transfer of a fund specifically bequeathed, into the names of new trustees, will not affect a specific bequest. And the author supposes the case of trustees authorized b3T deed or will to change securities, with the concurrence of A., the person who was empowered to dispose, and had disposed, by will, of the fund then in stock, and they, with his consent, sold the stock specifically bequeathed, and invested the proceeds upon a mortgage; and rie expresses the opinion, that, in such a case, there would ’be no ademption. In Blackwell v. Child, Ambl. R. 260, Child, the testator, who was a partner, under articles providing for a renewal of the partnership, bequeathed specifically his share, described as nine-twelfths of the profits of the partnership. After the date of the will, the articles of partnership expired, and the partners, about a year later, entered into new articles, in which the shares were divided into twenty-four parts, fourteen of which belonged to Child. It was held by Lord Hardwicke, that though the interest of the testator was varied, there was no ademption. In Ashburner v. Macguire, 2 Bro. C. C. 108, the testator bequeathed specifically to A., for life, the interest of a bond due him, and, after the death of A., bequeathed the principal of the bond to her children. After the date of the will, the debtor became bankrupt, and the testator proved his debt under the commission, and received a dividend upon it. It was held by Lord Thurlow, that the legacy was not adeemed, except to the extent of the dividend received out of the bankrupt’s estate by the testator, and he decreed that the bond should be delivered to the legatees. In Oakes v. Oakes, 15 Eng. L. & Eq. R. 193; S. C. 9 Hare R. 666, the testator was possessed, at the date of his will, of certain shares of the Great Western Railway Company, which he bequeathed specifically. Subsequently these shares were, by a resolution of the company, under authority of an Act of Parliament, converted into consolidated stock. It was held by Vice Chancellor Turner, that there was no ademption. He said: “The testator had this property at the time he made his will, and it has since been changed, in name and form only. The question is, whether a testator has, at the time of his death, the same thing existing, it ma3’ be in a different shape, yet substantially the same thing.” He added, that he thought the case was stronger in favor of the construction he adopted, because it was not shown that the testator, in any respect concurred in the conversion of the shares into stock. It will be observed, however, that this circumstance was not the ground of the decision. In Walton v. Walton, 7 John. Ch. R. 259, 296there was a specific bequest of thirty shares of the stock of the Bank of the United States. After the date of the will, the charter of the bank expired, and its assets were conveyed to trustees, who divided them among the stockholders, from time to time, as they were received. The testator received dividends on his shares, but never disposed of them. It was held by Chancellor Kent, that, though the fund was varied and differently- arranged, and was diminished in value by operation of law, it was not destroyed, nor its identity lost, and that there was, therefore, no ademption. In Ford v. Ford, 3 Foster R. 312, the testator, by a codicil, bequeathed to his wife all notes of hand payable to him at the date of the codicil, which was held to be a specific bequest. At the date of the codicil, the testator held four promissory notes signed by Samuel S. Hill and' his brother. Subsequently, during the life of the testator, these notes were taken up, the brother of Samuel S. Hill was released at his own request, and four other notes, signed by Samuel S. Hill alone and secured by- mortgage, were given in their stead. The court, after a discussion of numerous authorities, said: “Where the identity of the debt is not lost, where it still preserves its form substantially, as at the date of the will, where there has been no payment of it, hut only a change of the security for it, there seems to be no reason for considering it adeemed. ” **** “in the present case, the debt existing at the date of the codicil has not been paid by the substitution of the new notes and the mortgage for the original notes. Its identity has not been lost, and nothing has been accepted in satisfaction of it. There was merely a change of the security and of the evidence of the debt from joint and several notes, to notes secured by mortgage. ” It was accordingly held that there was no ademption. In Anthony v. Smith, Busbee Eq. R. 188, a testator bequeathed to his debtor the bond which constituted the debt. After the date of the will, the testator, for the convenience of other creditors of the debtor who desired a new deed of trust to be executed, took from him a new bond, adding to the principal the interest that had accrued. The Court held, that there was no ademption. It said: “Did the subsequent transactions between the parties destroy the debt, or so change it that it could not be known to be the same? If it had been collected by the testator, there is no doubt that the debt would be lost; but, instead of being collected, it was only renewed, and renewed only because other creditors of the plaintiff desired a new deed of trust to be executed. It was the same debt, principal and interest, secured by a new note. The new security does not annihilate, but preserves the substance of the thing given, to wit, the debt. Such certainly appears to be the opinion of Eord Hardwicke when he said, in the case of Blackwell v. Child, “I think it is a specific legacy of quantity, bequeathed out of a certain body, and if the body be subsisting at the death of the testator, the debt shall be paid out of it. It was said to be like' the novation of a debt, which does not destroy the legacy of the debt.” In Gardner & als. v. Printup, 2 Barb. S. C. R. 83, the testator made a bequest which was held to be specific, of the proceeds of a bond and mortgage which he held against Briggs and Schenck. The bond was for $8,000, payable in six annual instalments, with interest. Proceedings having been commenced to collect the debt, the mortgagors sold part of the land embraced in the mortgage to one Yost, for $5,000, of which $1,700 was paid to the testator, and the balance of $3,300 was secured by the bond of Yost and another party, executed directly to the testator, and endorsed as a payment on the mortgage. As between the testator, and the mortgagors, this bond was understood tobe an absolute payment of the amount of it; but the lien of the mortgage upon the part of the land bought by Yost, was not released, being retained to secure the payment of the bond. The court held, that the money due upon Yost’s bond passed to the specific leg'atee as part of the legacy. In Stout v. Hart, 2 Halsted (Law) R. 418, the testator made a specific bequest of a bond of Peter Phillips and John Phillips, the latter being a surety. After the date of the will, at the request of John Phillips and for his accommodation, and to enable him to secure and indemnify- himself as surety, the testator accepted from him a new bond, executed by John Titus as principal, and said John Phillips as surety, and gave up the old bond. Subsequently, Peter Phillips, administrator and John Phillips, by an arrangement between them, ascertained the respective shares of the debt which Peter Phillips and John Phillips ought to pay. The administrators executed their bond to the testator for the share of Peter Phillips, and John Phillips and John Titus executed their bond for the share of John Phillips. The court held, that the legacy was not adeemed. This decision was, however, made in the year 1801, and the court expressed the opinion, that ademption was wholly a question of intention, which it understood to be the settled doctrine of the English courts at that time. See, also, Doughty v. Stillwell, 1 Bradf. R. 300. The substantial subject of the bequests in this clause, is the bonds, as evidences of debt, and not as pieces of paper. The substance of the transaction by- which the James River and Kanawha bonds were converted into State bonds, was merely this, that one of the original parties, whose name was of no value, was released, and the separate obligation of the only solvent party- accepted, in lieu of the oligation of both. The debt due upon the guaranteed bonds has never been paid, and so the real subject of the bequest has never been extinguished. The State bonds are only a substituted security for the same debt, and the principle is the same as if 297the James River and Kanawha bonds had been renewed, without the guaranty of the State, and either with or without other security. The subject is now known by another name, but it is not necessary that the subject shall continue the same in name, provided it continues the same in substance. The result is, that the subject of the bequests in this case has, in the language quoted from White & Titdor, and by them adopted from Vice Chancellor Turner, been “changed in name and form only, and is in existence substantially the same, though in different shape,” and that there has, therefore, been no ademption, and the legatees of the guaranteed bonds, therefore, take the State bonds which were substituted for them. The clause of the will above quoted applies to the case of such “a change in the location of stock” as to amount to an ademption, so that, but for that clause, the legatee would get nothing. VI. At April term 1863, the Circuit court of Kelson gave authority to the executor to invest the funds in his hands, in registered bonds of the Confederate States, or of the State of Virginia. In pursuance of this authority, the validity of which has not been controverted, he invested $47,600 in Confederate bonds, and, of course, the amount has been lost. The Circuit court held, that this loss is chargeable to the estate, so as to throw half the loss on the Skipwiths. The Skipwiths complain of this, and say, that this investment was not made for them; that they were ready to receive, and did receive, what was offered to them; and that it was not their fault, that the next of kin, who were entitled to the other half of the residuum, were not forthcoming, or did not or could obtain their share. There is no foundation for this complaint. It was not the fault of the next of kin, that they did not receive any part of the Confederate money in the hands of the executor. It was never offered to them. What remained in the hands of the executor belonged to the estate, and its loss vras the loss of the estate. VII. Skipwith received, at different times, from the executor, in Confederate money, the sum of $73,910, on account of the half of the residuum to which ' he was entitled, as trustee for his children. The Circuit court held, that in the division now to be made, this sum must be charged at its actual value in the present currency, estimated at $17,239 76. The next of kin insist, that it should be charged at its full nominal amount, and, in support of this position, they allege that Skipwith is to blame for their receiving nothing, and seem to intimate that there was something like collusion between him and the executor. If this claim should be allowed, the result would be, that the next of kin, in the division of good money now to be made, would receive $73,910 before Skipwith would receive anything, though what Skipwith has heretofore received was only equivalent to $17,239 76 in good money. In other words, the next of kin would get $73,910 of good money, as the equivalent of Skipwith’s $73,910 of Confederate money, or $73,910 as the equivalent of $17,239 76; thus giving them, in round numbers, $56,000 more than he gets, though he is entitled to just the same as they are. This would be gross injustice. There is no evidence of any collusion between Skipwith and the executor. Skipwith '^received, and had a right to receive, what he could get in Confederate money, but it was no fault of his that the next of kin got nothing. They got nothing, because the names of most of them and the proportions in which they were entitled, were unknown. And there is no evidence that any of those who were known, made an effort to get a part of the Confederate money. As to the suggestion that Skipwith may have invested the Confederate money to advantage, and realized from it more than its value in the present currency, there is nothing in the record to show that he probably did so. There was no such suggestion made, and no enquiry on the subject was asked in the Circuit court. The suggestion comes too late. VIII. By the second clause of her will, the testatrix bequeathed to Smyth Lee, one-half the “Virginia stock” she might own at the time of her death. The Circuit court held, that this was a general or fluctuating legacy, and that it must be taken in subordination to the legacies in the first clause, which were held to be specific legacies of State stock. It has already been held that the legacies in the first clause are money legacies and not specific legacies of stock; so that the particular ground of this decision fails. The bequest to Smyth Lee, however, is not of one-half of each State bond of which the testatrix might be possessed at her death, but of the half of the aggregate of all the bonds of which she might be then possessed. It would seem to follow, therefore, that in ascertaining what is the amount or quantity of this half we must embrace all in the computation, though part may be specifically bequeathed. But that is unimportant, for there is no specific bequest of State bonds in the will. The State bonds which were taken in place of the guaranteed bonds, pass to the specific legatees of those latter bonds. But these State bonds are thus regarded as being still, in effect, guaranteed bonds. They ought not, therefore, to be counted as State bonds in computing what Smyth Lee is entitled to. It is further insisted, on behalf of Smyth Lee, that the Circuit court erred in holding that $34,000 of State stock, which it is said had been loaned to, or deposited with, the Howardsville Bank by the testatrix, should not be embraced in computing the amount or quantity of such stock held by her at her death. This, of course, depends upon the question, whether that stock belonged to the testatrix at her death. The evidence is, that Mr. Hartsook, who was the agent 298of the testatrix, and cashier of the Howardsville Bank, made use of her money, with her consent, in purchasing State stock, which was transferred by the sellers to the bank, and deposited by it with the treasurer of the State to secure its circulation. This was done under an agreement with the testatrix, that the bank should pay the taxes on the stock, and pay to her the whole of the interest upon it, and ■ that when she should require it, the bank should redeem the stock and deliver it to her, or deliver her an equal amount of-like stock. It appears from this evidence that there was no loan or deposit of stock by the testatrix. The stock was bought with her money, but it was not bought in her name, nor for her, and never belonged to her. She had, according to the terms of the contract, a right to demand from the bank an amount of stock equal to what was bought with her money,'and if the bank failed to comply with this demand, she had her remedy in damages. But it was nothing more than a loan of money, with a special agreement as to the manner in which the loan should be repaid. It is clear, therefore, that the Circuit court was right in refusing to give to Smyth Bee any part of this claim against the Howardsville Bank. The decrees appealed from must therefore be reversed, and the cause remanded. The decree is as follows: The court is of opinion, for reasons stated in writing and filed with the record, 1. That the legacies bequeathed to Mrs. Hill Carter of Shiríey, and others, in the first clause in the will of Mary W. Cabell, dec’d, are legacies of money, and not specific legacies of State bonds or stock, as held by the said Circuit court, and the said District court; but whether the said legacies are general or demonstrative, it is not necessary to decide, inasmuch as the estate is ample to satisfy the said legacies; so that it is not important to enquire whether a particular fund is appropriated to their satisfaction. 2. That under the bequest in the second clause of said will, Smyth Bee is entitled to an amount or quantity of bonds of the State of Virginia, out of those left by the testatrix, equal to the half of the whole amount of such bonds belonging to the testatrix at the time of her death; and that in ascertaining the whole amount of said bonds, to one-half of which amount the said Smyth Bee is entitled, all the bonds of the State of Virginia belonging to the testatrix at the time of her death, are to be taken into the estimate, except the $7,600 of State bonds received by the testatrix in the place and stead of the guaranteed bonds of the James River and Kanawha Canal Company, and that those bonds-should not be so embraced. 3. That the bequests of guaranteed bonds of the James River and Kanawha Canal Company. to the unmarried daughters of Carter Braxton and Corbin Braxton are specific legacies; and that the same were not adeemed by the surrender by the testatrix to the State of Virginia of the said James River and Kanawha Canal Company’s bonds and the acceptance by her, in lieu thereof, of bonds of equal amount of the State of Virginia, and that the said legatees are therefore, entitled to the said State bonds in the place and stead of said canal bonds; and that they are not entitled to receive the nominal amount of such bonds in money, as held by the said Circuit court and by the said District court. The court is, therefore, of opinion, that the said decrees of the said Circuit court and the said decree of the said District court are erroneous in the several particulars hereinbefore set forth, and that there is no other error therein. Therefore it is adjudged, ordered and decreed, that the said decree of the said District court, and the said decree of the said Circuit court rendered May 8, 1868, be and the same are hereby reversed and annulled, so far as the same are hereinbefore declared to be erroneous, and that they be affirmed in all other respects. And this court proceeding to render such decree as the said District court ought to have rendered, it is further ordered that the said decrees of the said Circuit court from which the appeal was taken to the said District court, be reversed and annulled, so far as the same are inconsistent with the principles of this decree ; and that the same be in all other respects, affirmed. And the cause is remanded to the said Circuit court to be further proceeded in, in conformity to this decree. And the court doth further adjudge and order that the appellants in each of these appeals pay to the appellees their costs by them expended in the defence of said appeals ■ respectively; which is ordered to be certified to the said Circuit court. On motion of the counsel of C. C. Bee and others, next of kin of M. W. Cabell, dec’d, it is ordered that nothing in this decree shall prevent the said next of kin or any other party interested from asserting by proper proceedings any claim they may be advised to assert against D. J. Hartsook executor of M. W. Cabell, dec’d, on account of his transactions as such executor. Decree reversed in part, and affirmed in part.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481736/	MONCURE, P., delivered the opinion of the court: This is a writ of error to a judgment of the Circuit court of Eranklin county, affirming a judgment of the County court of that county, whereby the Commonwealth recovered against the plaintiff in error a fine of five hundred dollars and costs of the prosecution. The information on which the judgment was obtained was against the plaintiff and two others, and charged i that they, ‘ ‘on the 26th day of August 1866, at Bethel church in the said county of Eranklin, did sell goods, wares and merchandise, without having first obtained the license required.by law therefor, against the peace and dignity of the Commonwealth of Virginia.” The information seems to have been founded on the first section of the act passed Eebruary 13, 1866, Sess. Acts 1865-6, p. 32, chap. 2, which is in these words: “No person shall, without a license authorized by law, sell, contract to sell or offer to sell, for himself or for others, for profit or on commission, or for other compensation, any personal property by deed or other writing, by delivery, sample, card or other representation, including as such, coal oil, salt and copperas water, except as follows, to wit:” and then follow the exceptions. There was a demurrer to the information, which was overruled. And there was a motion in arrest of judgment, which was also overruled. Several questions arose in the case, which are set forth in the assignment of errors in the petition, but it is only necessary to notice one of them, which arises both on the demurrer and on the motion in arrest of judgment. That question is, whether the information is fatally defective, in not charging the sale to have been made “for profit or on commission, or for other compensation,” in the words of the statute? We think these are material words in the statutory description of the offence. The statute does not prohibit the mere sale of personal property without a license, but such a sale “for profit or on commission, or for other compensation.” It is necessary, therefore, in an information or indictment on this statute to charge that the sale was for profit, or on commission, or for other compensation, in order to show that the statute has been violated. This is according to a well settled principle of law in regard to pleading in criminal cases, which has been repeatedly and recently recognized by this court. Commonwealth v. Peas, 4 Leigh 692, 2 Gratt. 629; Same v. Hampton, 3 Gratt. 590; Howel v. The Commonwealth, 5 Id. 664; Commonwealth v. Young, 15 Id. 664; Old v. The Commonwealth, 18 Id. 915. We therefore think that the information is fatally defective, for the reason aforesaid; that both the demurrer to the information and the motion in arrest of judgment ought to have been sustained; and that the judgments, both of the Circuit and County courts, ought to be reversed. The judgment was as follows: It seems to the court, for reasons stated in writing and filed with the record, that there is a fatal defect in the information in this case, which was a sufficient ground for sustaining the demurrer to the said information, and the motion in arrest of judgment; and that the judgments, both of said Circuit court and of the said County court are erroneous. Therefore, it is considered, that .the said judgment of the said Circuit court be reversed and annulled. *301And this court proceeding to enter such judgment as the said Circuit court ought to have entered, it is further considered that the said judgment of the said County court be also reversed and annulled, and that the said plaintiff be discharged from further prosecution on the said information, and go thereof without day. Which is ordered to be certified to the said Circuit court. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481738/	Moncure, P., delivered the opinion of the court, sustaining the decree of the court below overruling tbe exceptions, and decreeing upon the report. Upon the appeal by John Burton, the opinion proceeded as follows; Having considered and disposed of all the questions directly arising on this appeal, we would now be prepared to say there is no error in the decree appealed from, and that it ought to be affirmed, but for the fact that there is another appeal in this case, which was heard at the same time with this appeal, and the decision of which may affect the decision of this appeal. We will, therefore, proceed now to consider that appeal. That appeal was taken by John Burton, to the decree of the 28th of March 1848, and also to the decree of the 13th of March 1869. The decree of the 28th of March 1848, was as to the construction of the will of Robert Burton, the younger, and as to the disposition of his estate to be made by his executor. The court was of opinion, that the true intent and meaning of the testator, 8apparent on the face of the will, was to devise to his mother, Anna Pitfield Brown, wife of James Brown, to her sole and separate use, all his estate, real and personal, with power at her death, or before that period should arrive, to dispose of the same, by will or otherwise, as to her might seem most proper ; and was further of opinion, that the said Anna Pitfield Brown, by her will or appointment, duly made and published on the 31st day of March 1840, during the lifetime of her husband, duly exercised the power so vested in her; and the court accordingly decreed that James E. Heath, executor of said Robert Bui’ton the younger, should sell certain stocks, &c., and regarding, &c., and after reserving, &c., should divide the whole fund in hand equally among the eight children of the said Anna P. Brown, (to whom she had appointed the estate claimed to have been devised to her by her said son Robert Burton), the eighth part or share of John Burton to be paid to himself or his counsel, without exacting a refunding bond, &c. There was accordingly a distribution made by the said executor in pursuance of the said decree, and the portion of John Burton was paid to his attorney, as appears by a report of Commissioner Poiteaux, returned and filed on the 30th of June 1848. In John Burton’s petition for an appeal, four errors are assigned in the decrees appealed from. The first is, that “ in respect of the transactions of James Brown, as executor of Robert Burton the elder, the Circuit court erred in not adjudging to be due from said Brown at least as much as is claimed by the first of the exceptions filed by John Burton on the 8th of March 1869.” This assignment of error has already been disposed of. The second is, that “ the Circuit court should have held, under the will of Robert Burton the younger, that all his estate, other than what was given for life to the mother of him and of your petitioner, was, after her decease, to pass to your petitioner in absolute property. It 9may be difficult, perhaps impossible now, to make, in any practical way, a correction of the error committed by the decree of the 28th of March 1848, as to the fund then in the hands of James E. Heath, in giving to your petitioner only one-eighth thereof. But your petitioner is advised that the commission of that error furnishes no sufficient reason for sanctioning the error committed by the decree of the 13th of March 1869, as to the large amount with which James Brown is chargeable in respect of estate bequeathed by Robert Burton the elder, to Robert Burton the younger. He is advised, that from the materials now in the record, there may be a statement showing the amount to^which he is entitled, and upon such statement, a decree in his favor for said amount.” This is the main assignment of error on this appeal, and was the cause of it. The question involved is, as to the i true and proper construction of the will of Robert Burton the younger, who died in 1837. This question was very distinctly presented for the decision of the court, in the original bill filed in this case in February 1843 ; in which it was stated, that “ as a judicial construction of the said will, for guidance and safety of your orators, is among the objects of this bill, 'your orators will, for the convenience of the court, here copy it in extenso,” &c. ; and then the substantial parts of the will are set out, in luec verba, in the bill. An official copy of the will was also filed as an exhibit with the bill. In the answer of John Burton, filed_ on the 27th of June 1845, he distinctly concurred in presenting the same question for the -decision of the court, using in his answer this language : “ This defendant concurs in desiring the court to declare the true construction of the will of Robert Burton the younger ; and he prays that the executorial accounts of the said Heath, on the estate of Robert Burton the younger, may be stated, settled and adjusted, and that a decree may be made for the distribution of the assets in the bauds of the said executor, according to the several 10rights of the parties entitled thereto.” On the 28th of March 1848, this question, thus distinctly propounded to-the court, both by the bill and the answer of John Burton, was decided separately from all other questions in the cause ; it being recited in the decree that “ this cause came on this day to be again heard on such only of the papers and pleadings formerly read as involve the judicial construction of the will of Robert Burton the younger, deceased, and the apportionment of his estate among those entitled to it under said will, and also on the report made by Commissioner Poiteaux, dated the 8th day of June 1846, under that part of the interlocutory decree entered herein on the 27th of'June 1845, which directed James E, Heath, executor of the said Robert Burton the younger, to render before the said commissioner an account of his transactions as executor.” And the decree was then rendered/which has already been substantially set forth. The question appears to have been argued before the court with great ability by counsel on both sides ; and at the time of pronouncing the decree an able opinion was delivered by the court, which is referred to in the decree, and made a part of the record. The question was certainly a very doubtful one, upon which counsel and judges might very well differ. Being a question of construction of a will, it depended, almost entirely, upon the terms of the will, and the circumstances which surrounded the testator at the time of its execution. It seems from the record, that John Burton acquiesced in the decree, took no exception to any proceeding had under it, or in conformity with it, made no application for a re-hearing of the question, or for an appeal from the decree, from the date thereof, on the 28th of March 1848, until the petition for this appeal was prepared and presented to a judge of this court, on or about the 10th of February 1870, a period of nearly twenty-two years. V ery soon after the said decree was rendered, James E. Heath, executor of Robert Burton the younger, in pur11suance thereof, made distribution of a fund in his hands as such executor, among the eight children of the said Anna P. Brown; paying the eighth part or share of John Burton, amounting to $511.25, to his counsel, as appears by a report of Commissioner Poiteaux, returned and filed in the case on the 30th day of June 1848. In Commissioner Giles’ first general report, dated September 18th, 1855, he stated the accounts made out by him, upon the assumption that the estate of Robert Burton the younger was distributable according to the construction put upon his will by the decree of the Circuit court as aforesaid ; and there was no exception to his report on that ground. On the 1st of March, 1859, the cause came on to be further heard on the papers formerly read, and the said report of Commissioner Giles, and the exceptions thereto, &c., when a decree was rendered disposing of some of the exceptions, but as to the rest recommitting the report to the commissioner, with instructions. As before stated, there was ah appeal from this decree, which was affirmed by the court of Appeals on the 30th of April 1864. In Commissioner Giles’s next general report, dated August 22, 1868, made in pursuance of the said decree of the 1st of March 1859, affirmed on the 30th of April 1864, as aforesaid, he stated his accounts in the same way, in regard to the distribution of Robert Burton the younger’s estate, in which they had been stated in his former report as aforesaid; and there was no exception to his latter, as there had been none to his former, report on that ground. On the contrary, in the special statements annexed to the special report made by the commissioner at the request of John Burton’s counsel, dated September 14th, 1868, and according to which the said counsel claimed that a decree should be rendered, the accounts were stated in the same way in regard to the distribution of the said estate. On the 13th of March 1869, the cause came on to be further heard on the papers formerly read, and the said report of Commissioner 12Giles, dated the 22d of August, 1868, and the exceptions thereto, &c., when the court overruled all of the said exceptions, approved and confirmed the said report, and rendered a decree accordingly. From that decree the executors of James Brown applied for and obtained an appeal on or about the 23d of June 1869 ; after which, to wit: on or about the 10th of February 1870, the defendant, John Burton, applied for the appeal obtained by him as aforesaid. How whether the question in regard to the true construction of the will of Robert Burton the younger, was correctly decided or not by the Circuit court, in the said decree of the 28th of March 1848, (upon which question we express no opinion), we think it is now too late, and was too late when the appeal was applied for by John Burton as aforesaid, to object, for the first time, to the correctness of that decision. We think his right to make such an objection has been lost by acquiescence, express or implied, by lapse of time, and (if not lost before) by his failure to make the objection in this court when the appeal from the decree of the 1st of March 1859 was heard in 1864. The issue upon this question was, as we have seen, very distinctly presented by the pleadings in the cause; the parties seem to have desired to have it speedily decided, and it was accordingly the first litigated question which was decided in the case. It was separate from the other numerous questions involved in the case, although in the consequences of its decision it waB connected with most of them. We find, therefore, that on the 28th of March 1848, without waiting for the maturity of the cause for a full and general hearing, it was brought on for hearing as to this question only, and upon such of the papers and pleadings only as had relation to it, and, after full and able argument, an opinion and decree were pronounced by the court upon the question. If John Burton had not intended to acquiesce in that decision, he would at once have appealed from it. 13He had the strongest motive for doing so, and no motive whatever for delay. His interest .and desire were for a speedy termination of the case, so far as he was concerned. An appeal from that decision would not have delayed the case in other respects, at least if it could not be brought to a conclusion in other respects before the termination of the appeal. That course was pursued by James Scott, executor of John Lesslie, in regard to a decree rendered against him in the case on the 23d day of March 1849. On that day, the cause came on for hearing only as to the question which affected Lesslie’s executor, and upon such only of the papers and pleadings as involved that question, when the court rendered the said decree against him. Being dissatisfied with it, he at once appealed from it; and in February 1855, the special court of Appeals reversed it, John Burton would doubtless have pursued the same course if he had not determined to acquiesce in the decree. There was the same reason for appealing from it at once, as there would have been if the question decided had been the only question involved in the case. John Burton not only acquiesced in the decision by failing to appeal from it, but he also acquiesced in it, as we have seen, by receiving money under it. He received his distributive portion of the money which was distributed in pursuance of the decree, by James E. Heath, executor of Robert Burton, the younger. In other words, he received a portion of the estate of Robert Burton the younger, under the will of his mother, Anna P. Brown; and he now claims the whole of that estate against the said will. This is claiming under and against the same will, which in law is inadmissible. "When, therefore, he claimed and received money under the will, he concluded himself from afterwards claiming against it. As a géneral rule, a decree or order made by consent of counsel, cannot be the subject of appeal. 3 Daniel’s Ch. Pl. and Pr. 1602, 1st Am. Ed. ; Atkinson v. Marks, 141 Cow. R., 691, 709. In that case it was held that there could be no appeal from a decree, not only when it - was by consent, but also if contested and the party acted under it; as where there is a decree for an account, settling principles and instructing the master accordingly, and the party, though he considers it erroneous, pursues the reference instead of taking an appeal at once. The latter branch of the rule, however, as laid down in the case in 1 Cowen, appears not to be the English rule, Morgan v. Morgan, 7 Eng. Law and Eq., 216, 220, as it certainly is not the rule in this State. In this case, as we have seen, John Burton not only pursued the reference, but accepted money under the decree, did not except to any of the reports of the commissioner made in pursuance of the decree, claimed a decree according to special statements made out by his counsel, upon the principles settled by the decree of the 28th of March 1848, and made no objection in any way to that decree for 22 years after it was rendered, or until his appeal was applied for on the 10th of February 1870 ; and that too, when the cause came on for general and final hearing, and there was a decree therein on the 1st of March 1859, from which decree there was an appeal by the executors and devisees of James Brown and of Anna P. Brown, and others, on which appeal the said decree was affirmed by this court on the 26th of April 1864. If John Burton wished to object to the correctness of the decree of the 28th of March 1848, and had not previously given up for lost his right to do so by his acquiescence as aforesaid, he ought to have made such objection, as he might have done, in the Circuit court, when the cause was there heard on the 1st of March 1859 ; or, at all events, in this court, when the appeal was here heard on the 26th of April 1864. That appeal was taken in 1859. John Burton was a party to it as one of the appellees. He was represented by able counsel, who were present in this court when the appeal came on 15io be heal’d, and argued the case in behalf of their •clients. Hot having made the objection on either of those two occasions, his failure to do so would, of itself, have precluded him from the right of appealing after-wards from the decree of the 28th of March 1848, if his previous conduct or neglect had not already precluded him from such right. Whatever may be the rule of equity practice in England, New York, or elsewhere, we think that, according to our law and practice, the decree of this court of the 26th of April 1864 operated as an affirmance of all the-prior decrees rendered in the cause which had not been previously reversed, including the decree of the 28th of March 1848, even supposing that decree not to have become irreversible by acquiescence as aforesaid. What was said by the Lord Chancellor (Lord St. Leonards) and Lord Brougham, in the case of Birch v. Joy, referred to by the counsel of John Burton, 3 House of Lords cases, 578, to the effect that the part of a decree unappealed from remains as before, and is not rendered final by the decision of the appellate court on the part which is the subject of the appeal, is therefore, not true and not applicable, at least as a general rule, in this State—“As in the case of an appeal from a final decree, not only any error in that, but any error in the former proceedings, ought to be corrected, so upon an appeal from an interlocutory order, not only error in that order, but errors in the former proceedings should be corrected. In either case, the effect of the appeal is to bring up the whole proceedings prior to the decree or order from which the appeal is taken.” Thus the principle is laid down in 2 Rob. Pr.. old ed , p. 433; and in support of it, the following cases are cited: Lomax v. Picot, 2 Rand., 247; Jacques, &c., v. Methodist Episcopal Church, 17 John R., 548; Aikinson v. Marks, 1 Cow. R., 691; Teal v. Woodworth, 3 Page, R. 470. This principle prevails in this State. Huston’s adm’r v. Cantril, 16&c., 11 Leigh, 136. In that case, Judge Stanard, in considering two questions, the first of which was, “ Can ' the court, on this appeal from the dismission of the supplemental bill, examine the previous decrees, and correct them, if they be erroneous,” said : “The cases referred, to in 2 Rob. Pr., 433, leave no doubt that the first question must be answered in the affirmative.” There is another rule of equity practice in this State,, which authorizes the appellate court to correct, not only all errors in the proceedings of the court below against the appellant, but also all errors in those proceedings against the appellee. That rule is thus laid down in 2 Rob. Pr., p. 434; “The whole proceedings prior to-the decree'or order being brought up, if error against’ the appellee is perceived in the record, the appellate-court will reverse the proceedings, either in whole or in. part, in like manner as it would have done if the appellee had brought the same before it by appeal; ” and in support of the rule, the author cites Day v. Murdoch,. 1 Munf., 460. In that case it was held by this court, in. October 1810, that upon an appeal from a decree in chancery, an error to the injury of the appellee ought to be corrected, although he did not appeal. This seems to be the first express reported judicial sanction which was given to the rule; but it has been acted upon ever since; and the same author cites a case from the next volume of Munford’s reports, in which it was acted upon, viz: Defarges v. Lipscomb, 2 Munf., 451. Indeed,, as early as the 2d of October 1811, this court established the following general rule: “ It is the opinion of this-court, founded as well on a full consideration of the law as on various decisions which have heretofore been had,, that in future, where a judgment or decree is reversed, neither in the whole nor in part, on the ground of error against the appellant or plaintiff, in .any appeal, writ of error or supersedeas; yet if error is perceived against the appellee or defendant, the court will consider the-17whole record as before them, and will reverse the proceedings, either in whole or in part, in the same manner as they would do were the appellee or defendant also to bring the same before them, either by appeal, writ of error or supersedeas; unless such error be waived by the appellee or defendant, which waiver shall be considered a release of all errors as to him.” This rule, in substance, or one like it, has been in force ever since, and the existing rule on the subject is the 9th of the rules of the court, as published in the 20th volume of Grattan’s Reports. This court recently had occasion, in an opinion delivered by Judge Christian, in the case of Walker’s ex’or, &c., v. Page, &c., 21 Gratt., 636, to •express its views in regard to the subject of this rule, which opinion embraces all that is necessary to be said upon the subject. Then, whether John Burton had a right or not to ask for a correction of the error in the decree of the 28th of March 1848, of which he now complains, when the case was before the appellate court, on the appeal of Lesslie’s ex’or from the decree of the 23d of March 1849, or on the appeal of Alexander S. Brown and others from the decree of the 19th of November 1853, appointing a receiver (those appeals being- from special decrees upon particular questions arising in the case), upon which question we deem it unnecessary now to express an opinion ; there can be no doubt, but that he could have asked for such correction, when the case was before this court on the appeal from the decree of the 1st of March 1859, unless he had previously abandoned his right to do so, or lost or given it up by acquiescence as aforesaid. And unless he had so abandoned, lost or given up such right, or intended to waive it, he ought to have exercised it on that occasion ; and his failure to do so was equivalent to a waiver of such right, and a release of all error as to him. Having then an opportunity to exercise the right when the whole ease was already before the appellate court, 18there can he no reason in permitting him to forego that opportunity, and afterwards to take a new and independent appeal, for the purpose of obtaining the same relief he might have obtained on the former appeal. To permit him to do so would not be a benefit to him, but rather an injury, while it would subject his adversaries-to unnecessary expense and inconvenience. There is wisdom therefore in our rule of practice, which authorises the appellate court to correct errors against the appellee as well as against the appellant, and in that construction of the rule which requires the appellee to invoke the exercise of such authority, unless he means to waive all. error as to him. "We are therefore of opinion that the appellant, John Burton, had no right to obtain this appeal upon the-ground relied on in the second assignment, of error, that “the Circuit court should have held under the will of Robert Burton the younger, that all his estate other than what was given for life to the mother of him and your petitioner was, after her decease, to pass to your petitioner in absolute property.” In regard to the third assignment of error, it has already been disposed of in deciding the other appeal. In regard to the fourth and last, it does notarise, under the view we have taken of the case. As to the suggestion made in the latter part of that assignment of error, that there should be a “provision in respect to descendants of James Brown who shall have received money arising from the proceeds of lands embraced in the deed of October 28, 1824, to George Clark and others;” that “under the distribution in Virginia of the estate of Robert Burton the elder, no portion should be paid to any of those descendants until there shall first be deducted what shall have been paid to them respectively in Kentucky;” that is a subject of which the court below will have control when the cause goes back to it, and which properly belongs to that court. Out of abundant 19caution, if desired, the affirmance' may be without prejudice to the right of the said court to make such decree in that respect as may seem to it to be proper. Upon the whole, we are of opinion, that in the case of Brown's ex'ors, &c. v. Burton's ad'mr, &c., there is no error in the decree appealed from, and that it be affirmed, without prejudice as aforesaid, and that in the other case, that of Burton v. Brown, &c., the appeal be dismissed as having been improvidently allowed. The decree was as follows : The court is of opinion, for reasons stated in writing, and filed with the record, that the second of the above named appeals was improvidently allowed from the said decree of the 28th of March 1848, and therefore it is decreed and ordered that the same be dismissed; and that the appellant pay to the appellees in that appeal, their costs by them about their defence in that behalf expended. And the court, for reasons stated and filed as aforesaid, is further of opinion, that there is no error in the said decree of the 13th of March 1869, and that the same ought to be affirmed. But it being suggested to the court that the descendants of James Brown, or some of them, may have received money arising from the proceeds of sales of land in Kentucky embraced in the deed of 28th of October 1824, to George Clarke and others, in the proceedings mentioned; and that, in that event, no portion of the proceeds of the trust estate in Virginia, embraced in the deed of the same date to Charles Copland and others, also in the proceedings mentioned, should be paid to any such descendants as may have so received money as aforesaid, until they shall have duly accounted for the money so received, in order that there may be a just and equitable apportionment of all the trust fund which may be realised under either of the said deeds among the parties entitled to the benefit thereof, according to their respective rights; the court *201 is of opinion that the court below may make any orders and decrees which may seem to it proper in that respect, but that out of abundant caution the said affirmance should be expressed to be without prejudice to the right of that court to make such orders and decrees. Therefore, it is further decreed and ordered that the said decree of the 13th of March 1869, be affirmed, without prejudice as aforesaid, and that the appellants in the first of the above named appeals, do, out of the estate of their testator, James Brown, deceased, pay to the appellees in that appeal, their costs by them about their defence in that behalf expended. Which is ordered to be certified to the Chancery court of the city of Richmond. Appeal of John Burton dismissed. The Decree arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481741/	Staples, J. This case brings before the court the-question of the liability of the State for plaintiffs’ tobacco, stored in a public warehouse in the city of Richmond, and destroyed by fire on the 10th March 1863. It is a question of novelty, and considerable difficulty. As there is no adjudged case, no precedent, to guide the court in its decision, we must act according to bur best convictions of the principles of law controlling the rights- and obligations of the parties. This court held, in Chalkley’s case, 20 Gratt. 404, that the present government is not legally responsible for any debt contracted, or liability incurred, by the authorities having control of the State after the ordinance of secession was adopted. This decision has been the subject of some complaint and criticism. It is easy, however, to demonstrate that this is not the Richmond' government, nor the successor to that government, and consequently 44that it is not answerable for the debts contracted by that government. It is well known that on the 19th June 1861, a convention assembled at Wheeling, adopted an ordinance reorganizing the State government, providing for the election of officers, prescribing an oath of fidelity to the Constitution of the United States and of the State, and declaring vacant all offices upon the failure of the incumbents to take the oath so prescribed. - The government thus restored, as it was termed, continued until the adoption of the Alexandria constitution, on the 12th February 1864. Under this constitution a legislature assembled on the 19th June 1865, in the city of Richmond. It passed an act for the election of members of the General Assembly, and for taking the sense of the people in relation to the disqualifications for office imposed by that constitution ; and it required that all persons voting in such election should take an oath to uphold and- defend the government restored by the convention at- Wheeling. Under the authority of this act, the legislature of 1865 and 1866, and 1866 and 1867, assembled in the city of Richmond. The various acts passed by that body constitute important and valuable laws for the adjustment of many perplexing questions growing out of the war. The government thus organized at Alexandria continued in existence until superseded by the reconstruction laws under which the present constitution was framed, and adopted by the people. How is it possible, in the light of these facts, to maintain that the present government is identical with, or is the successor to that Richmond government ? Besides all this, the constitution expressly prohibits the payment of any debt or obligation created in the name of the State of Virginia, “ by the usurped and pretended State authorities assembled at Richmond during the late war.” It is not our province 1 to discuss the propriety of this provision, or the language in which it is expressed. We are sworn to expound the 45constitution and laws as they are written, and not as we would have them. The Eichmond government may have been the true and lawful government of Virginia, as maintained by some. Ho doubt it represented the views and wishes of a large majority of the people; but neither its contracts nor its liabilities can impose any legal obligation upon the State which the courts can recognize, under the present constitution and laws. In Chalkley’s case, the contract was made with the Eichmond authorities, and the credit given to them or their agents exclusively ; and this court held that the present government could not be held accountable for the debt thus contracted. In the present case, it is true, the original contract, if such it be, was made in 1860 with the regular State government; but we are to consider the true import and operation of that contract, and how far it was modified or affected by subsequent events. This renders necessary a brief consideration of the statutes in regard to the inspection and storage of tobacco.. They are too numerous and complex to justify a citation in this opinion. It is clear, however, that they contemplate in the first instance an inspection and storage for a year; in which case the owner is not responsible for the payment of a rent. He may at the expiration of that period, or sooner, remove his property upon the payment merely of the officers’ fees for inspection, and the State charges. These charges and fees amount to sixty cents for each hogshead of tobacco inspected, stored, or delivered, and a special charge of thirty cents upon the hogshead, supposed to be intended for the risk of insurance. They are to be paid, as is conceded, whether the-deposit be for inspection merely, or inspection and storage, embracing one day or one year. But this compensation did not embrace a longer time than the year. At the expiration of that period, the. State might have repealed its statutes, or discontinued the arrangement, without any just cause of complaint. At the date of the= 46inspection, or storage, it was bound to know the owner might continue the same for the year ; but it was not required to know that he would exceed that period. If the year being ended,, he elected to continue the storage, he might so do for three years, inclusive of the first year. In that event, however, anew contract arose—a new charge was made of five cents on the hogshead per month, in the nature of a rent for the use of the warehouse upon such extended storage. In this case the storage commenced between the 10th May, and ,the 2d November 1860. Upon the expiration of the year, they elected to continue the use and occupation of the,warehouse. At that time the government' with which the original contract was made had been overthrown, and another established in Its place, officers owing allegiance to, and deriving their -authority from, the new government, had the management and control of the warehouse in which the tobacco was stored. ■ The Confederate authorities had also established their capital in this city; ¿their officers 'and employees were in the occupancy of every available building, public and private, and their armies quartered within .and without the city limits, in every direction. Under these circumstances the owners of this tobacco thought proper to continue [its storage indefinitely in a warehouse not in the possession of the government with which they had contracted, nor under the direction of ■officers appointed by, and responsible to, that government. They made this election flagrante bello, and they persisted in it from month to month, and year to year, ■although the city was in continued danger of bombardment and conflagration. The plaintiffs must have had some information of the extraordinary events occurring here ; they must have been apprised that war existed ; that old governments were being . overthrown, and new •ones struggling into existence. If they were ignorant of ■these matters, it was their fault or .their misfortune. By the exercise of a very moderate share of diligence, they 47might easily have informed themselves of occurrences which so much concerned them. The French consul resided in this city throughout the war. He should have kept them advised, and no doubt did, of the condition of affairs in this State. It is true, that the blockade would probably have prevented the removal of the tobacco from the country ; but there was nothing to interfere with its storage in some other and more secure place, under the supervision of the plaintiffs’ own agents. It is to be presumed that they preferred to continue the storage of the tobacco as it was, and to take the chandes of its preservation. They must be held to have done so with full knowledge of the consequences ; and they should be willing to bear the loss resulting from their adventure. The learned counsel for the plaintiffs, in their petition for an appeal here, say that the State of Virginia insured against its own acts of omission and commission. It insured against any loss. by fire in consequence of its trotting itself off to Alexandria or Wheeling. It insured against any damage by fire in consequence of its abandonment, even if such a case were made out. All this might be true if the State had made a contract of insurance for any specific period beyond the first year of the storage, founded upon a valid consideration paid or stipulated to be paid for such risk. But I have already shown, or attempted to show, there was no such contract. The plaintiff’s tobacco at the time of its destruction had been on deposit nearly three years. For all this they had only paid certain inspectors’ fees at the date of the inspection. When they elected to continue the storage beyond the year, they well knew the government had been re-established at Wheeling. This fact was made known through its laws and its proclamations, through the recognition of the Federal Government, with which plaintiff’s government was in friendly and constant communication. BuFthe position of the counsel is not sound in other 48respects. The insurance of the State, if such it be 77-0Dly extended to losses by fire. It did not comprehend damage or kss of the tobacco occasioned by floods, tempests, or captured by hostile armies or superior powers. With the single exception of the promise of indemnity in case of fire, the position of the State was-that of any other bailee for hire. Such bailee is only liable for the use of ordinary care and common prudence-in the preservation of the property intrusted to him; but he is not an insurer in any sense of that term. There is-no foundation for the pretension that the State insured, against its abandonment in the face of overwhelming, numbers. It insured against fire, but not against capture. Even as against insurance companies, to which the most stringent rules are always applied, it is well settled, that if there be an insurance against fire, and an exception by the assured in favor of capture, and the vessel is captured, and before she is delivered from that peril she is afterwards destroyed by fire, the loss is properly attributable to the capture alone. In Magoun v. New England Marine Ins. Com., 1 Story R. 157, 164,. Mr. Justice Story said it would be an over refinement and metaphysical subtlety to hold otherwise. In the-case of Dale v. New England Mutual Marine Ins. Co., 6 Allen R. 373, 395, Bigelow, C. J. said, “there is.no-stipulation in the policy that the insurers were to remain liable after the ship -had passed into the hands of her captors. * * * The eases in which it is held that where the insured is liable for capture, if followed by condemnation or detention for a prescribed period, and; a subsequent abandonment, he is also liable for any supervening peril occurring during the intermediate period, are not applicable to cases like the present, where-the risk of capture is not assumed by the underwriters. See, also, Lewis v. Springfield Fire and Marine Ins. Co., 10 Gray R. 159. These views are founded on good sense and upon sound 49reasoning. I do not perceive why they do not equally apply to this case. If the tobacco had been captured and appropriated by the Confederate government, or captured and destroyed by Federal soldiers, it will scarcely be maintained that the State is responsible for a loss occurring under such circumstances. As a general rule, it is true, where the property is destroyed by fire, the insurer is liable, though it were absolutely certain it would have been afterwards captured but for such destruction. But where the capture is made, and the damage from fire is the consequence of the capture, to impose the loss upon the bailee is to make him an insurer against both capture and fire. In this case the injustice is the more palpable because the owners, after the warehouse was taken by the Confederate government and appropriated by the Confederate authorities, might have taken possession of their property without the least difficulty. The condition of the country at the time of the destruction of this tobacco, and indeed long before, is within the recollection of all. In the language of Mr. Justice Nelson, Mauran v. Insurance Company, 6 Wall. U. S. R. 14, a government in fact was erected greater in territory than many of the old governments of Europe, complete in the organization of all its parts, containing within its lines more than eleven millions of people, and of sufficient resources in men and money to carry on a civil war of unexampled demensions; their vessels captured recognized as prizes of war, and dealt with accordingly; their property seized on land referred to the judicial tribunals for adjudication; their ports blockaded, and the blockade maintained by a suitable force, and duly notified to neutral powers, the same as in open and public war. No one can for a moment entertain the opinion that either the plaintiffs or the State ever contemplated this state of things. The compensation agreed to be paid had no reference to such a risk. The State could hardly 50have been expected, for a charge of five cents per month on each hogshead of tobacco, to assume all the hazards ; of war, invasion, and conquest. It did not undertake, it was not asked to insure, against any peril except that of fire. But as the fire. occurred long after the warehouse had been wrested from the possession of the insurer by overwhelming numbers, the loss must be regarded as attributable to the capture, and not by any reasonable intendment within the terms of the contract. For these reasons I am of opinion the judgment of the Circuit court should be affirmed. The other judges concurred in the opinion of Staples, J. Decree arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481743/	Christian, J. delivered the opinion of the court. This is an appeal from a decree of the Circuit court of Westmoreland county. The bill was filed by the creditors of E. C Griffith, who departed this life in the year 1861, seized and possessed of considerable estate, real and personal. The object of the bill was to have a settlement of the accounts of his administrator, to ascertain the amount of his indebtedness, and to effect a sale of his real estate for the payment of his debts. The said Griffith in his lifetime had qualified as guardian of two of his children, to wit, Eleanor and Frederick, and received as such guardian certain real and personal estate derived by them from their grandmother. An account, taken by the commissioner, of the outstanding debts against the estate, shows that Griffith was very largely indebted, and that, indeed, his whole estate, real and personal, was not sufficient to pay his debts. Among the debts reported by the commissioner were balances due from the said Griffith, as guardian of his two wards and children, Eleanor and Frederick, amounting to the sum of $2,518.78 due to each, and which the commissioner reports among his fiduciary debts. After the commissioner had returned these accounts, 79and after a decree had been entered directing a distribution of the fund in the hands of the administrator, and also directing a sale of the real estate of the decedent, Willoughby .Newton, one of the general creditors, filed his petition, praying that the sale of said real estate of E. C. Griffith might be postponed until the further order of the court, and that the said commissioner should institute an inquiry into the circumstances of E. C. Griffith, and his expenditures in improving the real estate, and in the maintenance and education of his children, Frederick and Eleanor, and report the facts to the court. Upon the coming in of this petition the decree of sale was set aside, and the inquiries suggested by the petition of Uewton ordered to be made; and the report of said commissioner, together with the evidence taken by him, was returned to the court at the October term, 1869. Whereupon, a decree was entered, in which the said Circuit court declared that there was no sufficient evidence that any permanent improvements had been made by Griffith in his lifetime on the real estate of his wards; but. declared further, “that the defendants, Frederick Griffith and Eleanor Fairfax (who was Eleanor Griffith), are bound to account to the estate of their father and guardian for all the expenses of their education. ” Accordingly, the court decreed that “the report of commissioner Baker be referred to a commissioner of this court, with instructions to reform the guardianship account according to the principles herein declared, stating clearly and distinctly all the expenses of their education, including board, tuition, books, travelling And other necessary expenses of said infants, and make report to the court.” From this decree Frederick Griffith, in his own right, and as trustee for his sister Eleanor Fairfax, has obtained an appeal from this court. The court is of opinion that the decree of the said Circuit court was manifestly erroneous in affirming a liability on the part of Frederick and Eleanor, the infant 80children, of E. C. Griffith, to his estate, for moneys by voluntarily expended in their maintenance and educati°n- It is a well settled principle of law, governing the relation of parent and child, that a father, if of ability, hound to maintain his infant children, even though they may have property of their own. 1 Tuck., Book I, p. 129; Thomas’s Coke on Litt. p. 159, Note A; Evans v. Pearce, 15 Gratt. 518. It is true that, where the infant has separate estate, a court of chancery may, upon the application of the father or friend of the infant, direct the estate of the infant to be applied to its maintenance and education, whenever, under all the circumstances, it appears to be proper. But where the father, of unquestioned ability to maintain his infant children, does not petition the court to have any of the profits of their separate estate applied to their support, and makes no charge against them during his lifetime, his estate will not be allowed anything for their support, without the clearest proof that justice requires it. Evans v. Pearce, supra. In the case before us, the ability of the father to afford his children a liberal education is beyond dispute. According to witnesses, whose relations to the deceased gave them opportunity of knowing his pecuniary condition, he was worth forty or fifty thousand dollars at the time of his death, after the payment of his debts. The insolvency of his estate was caused by losses after his death. He raised no charge against his children during his life; he left no note or memorandum from which such a charge could be raised by his personal representatives, who were his second wife and her brother; and the administrator de bonis non, who is a party to the suit, . asserts no such demand in favor of the estate. ' But the claim is raised by one of the general creditors, who is ■.seeking to swell the assets of the estate by depriving the wards and children of the decedent of an acknowledged ■ debt of the highest dignity due from their father and *81guardian. It is not to be tolerated that this creditor should be permitted to come into a court of equity, and put himself in the shoes of the father and his personal representative, to enforce a claim which neither the one in his lifetime, nor the other after the death of the decedent, ever thought of asserting. We are therefore of opinion that the said decree of the Circuit court of the county of Westmoreland should be reversed. The decree was as follows : The court is of opinion, for reasons stated in writing, and filed with the record, that the decree of the said Circuit court is erroneous, in affirming a liability on the part of the defendants, Frederick Griffith and Eleanor Fairfax, to account to the estate of their father and guardian, E. C. Griffith, for the expenses of their education. It is therefore decreed and ordered, that the said decree to this extent be reversed and annulled, and that the appellants recover against the appellee, Willoughby Newton, their costs by them expended in the prosecution of their appeal here ; and that the cause be remanded to the said Circuit court for further proceedings to be had therein, in accordance with the principles herein set forth. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481744/	Staples, J. As a general rule the purchaser at a judicial sale is required to pay the consideration for the estate, although it be destroyed or taken from him by superior title before a conveyance is executed. For the purposes of this case, it is unnecessary to state either the modifications or exceptions to this rule. The question to be considered is, whether the sale here is of that character. The written agi’eement is filed as an exhibit in the cause. It purports to be a memorandum of a contract between R. L. Brown and wife of the one part, and the appellant, as purchaser, of the second part. It recites that the parties of the first part had sold the property upon certain terms therein mentioned; that the purchaser was to make a payment of two thousand dollars upon the delivery of a “good deed,” and to execute his bonds for the deferred instalments; and that said Brown and wife had agreed to give possession of said property to the vendee not later than the 15th July 1870, and also to procure the approval of the proper court to the contract without charge or cost to the purchaser. It is impossible to regard this in any other light than a private contract of sale and purchase. The court was 98not asked or expected to make, but to confirm a sale already made. Its aid was invoked to ratify what had already been done, to sanction terms already agreed by the parties. The vendors believed that they, and others in whose behalf they acted, had a perfect title to the property, and they undertook with the aid of the court to convey such title. The evidence in the record establishes that fact. The agreement to make ‘a good deed” is not simply a covenant to execute a deed in legal form with proper warranty, but to convey a good title. This was conceded in the argument, and is well settled upon authority. Fry on Specific Performance, and cases cited in note, page 347; Fletcher v. Bulton, 4 Com. 397. It would be most unjust to apply to a contract of this character the principles governing judicial sales. The purchaser at such sale perfectly understands that the court does not undertake to convey a good title, and that it is his duty to make all necessary inquiries in regard to the estate he is purchasing. But when the purchaser has stipulated for a good title, is he to be compelled to take a defective One because the court had rendered a decree approving the sale ? It is idle to say that a conveyance under the decree satisfies the covenant for good title, when in fact there is no good title. When a person purchases at a judicial sale, he thereby becomes in a certain sense a party to the cause, and submits himself to the jurisdiction of the court. In this case the appellant was no party to the suit for confirmation in any sense. It does not appear that he was even apprized of the court in which it was pending until after the decree was rendered. The contract was entered into on the 30th of June 1870. The suit was instituted without process on the 9th of July ; the bill and answers filed, decree obtained, and deed prepared on that day. Shortly thereafter, within four or five days, the appellant was first informed of the difficulties in respect to the title. Immediately, without an hour’s delay, orally 99and in writing, he communicated these difficulties to the appellees, and informed them of his determination not to have anything to do with the property in the confusion and uncertainty attending the title. The trustee replied through his council, that he was prepared to deliver the possession and to make a good deed, and any objections made to it “ were erroneous or imaginary.” If, under these circumstances, the appellant had accepted the deed and the possession, made the payment as agreed, and executed his bonds for the deferred instalments, it is clear he would have thereby waived every objection to the title, and effectually precluded himself from any valid claim to relief or indemnity. If authority were necessary in support of this proposition, it may be found in Daniel et als. v. Leitch, 13 Gratt. 195, 212. In 1 Sugden on Vendors, the rule, is thus expressed: “Where difficulties occur in making out a good title, the purchaser should not take possession until every obstacle is removed.” The reason is that such a measure will generally be regarded as an acceptance of the title. Fry on Specific Performance, 868. It seems to me, therefore, that the appellant is not precluded by the decree of the court, nor by anything that has occurred, from abandoning the contract. It only remains to consider whether he was justified in so doing. And this brings me to the question whether the vendors, at the date of the sale, or at any other time, were able to make a good title according to the terms of their covenant; if not, what effect this had upon the rights and obligations of the parties. The appellant suggests various objections to the title. I propose merely to consider those which relate to the incumbrances upon the property. It appears that the Misses Gordon, under whom the vendors claim, in the years 1856 and 1857, received from the Lynchburg Building Fund Association au advance of $2,040, for the redemption of their twenty-one shares of 100stock in said association; that they executed their bonds with condition to pay all monthly dues, interest, fines, an<^ charges for which they might be liable according to the constitution and by-laws of the association. They a^s0 gave two deeds of trust upon the property in controversy, containing various clauses and covenants not necessary to he particularly mentioned. They are such as are usually found in mortgages and trust deeds executed to these associations in this State. It further appears that the Misses Gordon punctually paid all their dues prior to the 31st December, 1863; but have been in arrear since that time. Subsequent to the 1st January 1863, all dues and instalments were paid by.the members in Confederate-treasury notes ; and the association has sustained heavy losses by investments in that currency, having now on-hand about $28,000 in Confederate bonds. Since 1864 it has ceased active operations, although the constitution and by-laws require its continuance until ^each, share is of the value of two hundred dollars. The first question suggested by these facts is, whether the holders of the four hundred unredeemed shares, who have received nothing, may not require that the association shall resume and continue its business until their shares attain their par value; and further, whether the property in' controversy may not at any time be sold, under these trust deeds, for all the arrears and delinquences of the Misses Gordon since 1863, including' monthly instalments, fines and interest, and other dues. And secondly, if such sale shall be made, will not the-trustees be required also to receive and set apart a sum sufficient, with other contributions, to give to the shares-the value agreed upon in the constitution and by-laws;. and how is the necessary amount to be ascertained—upon what principle is the calculation to be made? Thirdly,, whether the debtors to the association—they whose shares have been redeemed—may insist that the associa101tion shall be at once dissolved, and their estates released from the liens thereon; and if so, upon what terms are they to be released ?—how is the account of losses to be stated and adjusted, and how apportioned between those who have received all the available funds and those who have received nothing? These are perplexing and difficult questions, which, in the language of the commissioner, can only be settled “after protracted and uncertain litigation.” ÍTo subject has created more embarrassment and difficulty with the courts and the profession than that which relates to the rights, powers and duties of these building associations. At the present term a number of cases have been argued before us, involving questions of a complex character, and occasioning almost endless diversity of opinion. It is understood that many others are pending in the courts below, presenting the identical questions suggested by this record. The whole matter is confessedly involved in doubt and obscurity, justifying the remark of an English chancellor, that their “ articles are, to a considerable extent, unintelligible, and not very consistent;” so that it is now generally agreed the rights and duties of these associations, the proper construction of their charters, and the liabilities of the several stockholders, the nature, operation and effect of the bonds and mortgages, can only be settled by the courts. In the present case the treasurer states that by reason of the nature of the obligations of the Misses Gordon, and the losses of the association being wholly uncertain, it is impossible to make an estimate of the amount of their indebtedness. In the language of Chief Justice Marshall, in Garnett v. Macon, 6 Call, 309, 367, “It cannot be doubted that these difficulties, if presented to the mind of a prudent man, contemplating the purchase of an estate, and desirous of performing his contract according to its terms, might have serious influence on Ms conduct, and might deter him from making the pur102chase. If informed of them after making the contract, but before its execution by the paying of the purchase money and receiving a conveyance, he would have such strong motives for stopping entirely, or, at least, for pausing until the impediments could be removed, as-would, I think, justify him for so doing, in the opinion of any reasonable man.” These observations apply with peculiar force in this case." The object of the appellant' in making the purchase was to open a large female-school in the building at an early day. The property demanded repairs of an extensive character. The establishment of the school required a considerable outlay of money in the beginning.- Under these circumstances, the appellant might well refuse to complete the purchase of property liable at any time to be sold, subject to incumbrances of unknown amount, and the very possession of which might expose him to expensive and vexatious litigation. Ho one supposes, for a moment^ that the-appellant would have made the purchase had he been-apprized of the condition of the title. Why was he not informed of it ? Mr. Brown admits that he knew of the existence of the incumbrances shortly after the property was purchased from the Misses Gordon. His apology, for failing to communicate the fact to the appellant is, that he had particular assurances from Mr. J. H. Gordon., the liens should be removed, and he thinks Mr. Gordon told him it had been done. Ho one attributes to Mr. Brown any fraudulent intent, but it was his duty to inform himself accurately before undertaking to represent to the purchaser the state of the title. In the case of Garnett v. Macon, before cited, Chief-Justice Marshall said: “In a contract for the purchase-of a fee simple estate, if no incumbrance be communicated to the purchaser, or be known to him to exist, he-must suppose himself to purchase an unincumbered estate.” In answer to the argument made at the bar, that the decisions were confined to cases where the title was-103doubtful, and not where there was a mere money charge upon the estate, he said: “The objection is not entirely confined to cases of doubtful title. It applies to incumbrances of every description which may m any manner embarrass the purchaser in the full and quiet enjoyment of his purchase. There is certainly a difference between a defined and admitted charge, to which the purchase money may by consent be applied when it becomes due, and a contested charge, which will involve the purchaser in an intricate and tedious law suit of uncertain duration.” I do not deem it necessary to quote any other authority in support of this doctrine. It is fully sustained by the cases of Freer v. Hessee, 21 Eng. L. &. E. R. 82 ; Salisbury v. Hatcher, 6 Jurist, 1051; 1 Sugden on Vendors, 7th Am. edi., p. 84; Hunt v. Saunders, 1 Monr. 219; Sturtevant v. Jaques, 14 Allen R. 523. See also cases cited in 2 Dan. Ch. Prac. 989, note. It is true that specific performance will be decreed in some instances where the vendor is prepared to comply with his covenants at the hearing, and the court will afford him a reasonable time to remove incumbrances and perfect his title. But this is a matter of favor to the vendor, only to be granted in cases which admit of such relief without prejudice to the rights of the vendee. This indulgence will not be granted where the defect to be remedied was known to the vendor or his attorney at the time of the contract, and was concealed from the purchaser. In Dalby v. Pullen, 3 Sim. R. 29, a defect in the title, though known to the vendor’s solicitor, was not communicated to the purchaser. “The vice-chancellor said that the parties by such conduct had precluded themselves from the benefit of the rule which prevails in the court, as to the time allowed to vendors to remove objections to the title. And accordingly, a motion by the purchaser to be discharged from the purchase was granted, though the vendors had removed the defect before the mo104tion was made. See also Lechmere v. Brasier, 2 Jac. & Walk. R. 287, Fildes v. Hooker, 3 Mad., 1 Sugd. Vend. 350. And more especially will such indulgence be denied where, besides a failure to disclose the existence of incumbrances, an account is necessary to ascertain the state of the title, the extent, nature, and amount of such incumbrances.” I have seen no case in which it has been held that a purchaser has been required to await the institution of a suit, and the settlement of contested accounts between third persons, to afford the vendor an opportunity of removing incumbrances and perfecting his title. Dart on Vendors, 70; Sidebotham v. Barrington, 3 Beav. R. 528 ; Fosters v. Hoggart, 14 Jurist, 757; Arnot v. Briscoe, 1 Ves. Sr. 94. It is very questionable whether, under these circumstances, a court of equity would decree in favor of the vendors, even if no change had taken place in the condition of the estate. Inasmuch, however, as the property which was the,sole inducement to the purchase, has been destroyed by fire, without the fault of the vendee, before the vendors were in a condition to remove the cloud upon the title, it would seem very clear it is not a case for specific performance. Where an event happens which determines the existence of the subject matter of the contract, the important inquiry is, was the contract at the time so concluded as to change the right of property, and to vest it in the purchaser? One of the earliest eases on this subject is that of Wyvill v. Bishop of Exeter, 1 Price Exch. R. 294. McDonald, Ch. B., said a court of .equity will enforce specific performance without regarding which party may be benefitted or prejudiced by the accident of unforseen events, where the purchaser has actually accepted a title after a contract of sale; but where the purchaser has not accepted the title, the court refuses to decree performance. In Paine v. Mellar, 6 Ves. R. 349, Lord Rosslyn did not consider such acceptance necessary, and he accordingly directed an inquiry 105whether a good title could he made. In that case objections were made to the freehold title; the premises were also subject to a charge for certain annuities, but a trust of stock had been declared for their payment. The purchaser, however, waived his objections to the title, and agreed that he would complete the purchase upon receiving an indemnity against the annuities. Before the indemnity was given the premises were destroyed by fire. Lord Eldon said, it is clear the objection was given up as to the freehold title, and the only difference was as to the indemnity against the annuities affecting these with other premises. Notwithstanding, he refused to decree a specific performance unless it appeared the purchaser had actually accepted the title; and accordingly a special reference was directed as to the fact of the acceptance, lie further said; “As to the mere effect of the accident itself, no solid objection could be founded upon that simply, for if the party, by the contract, has become in equity the owner of the premises, they are his to all intents and purposes. It therefore becomes important, in cases of this sort, to ascertain the period at which the purchaser is to be regarded as the owner. He certainly must be so considered from the date of the bargain, where the vendor is in no default, and is prepared to convey a clear title. But if, according to the cases, a court of equity will not compel the purchaser to accept a title which the vendor cannot make out to be clearly good and free from incumbrance, how is the purchaser to be regarded as the owner till these objects are effected, and the vendor is prepared to make the title according to the contract. In Carrodus v. Sharp, 20 Beav. R. 56, a bill was filed for the specific execution of an agreement to purchase a mill, and a decree was made in September 1854, but a good title was not shown until the following December. A question arose as to who was to bear the expense and outgoings belonging to the mill, and to the repairs and sustenation of the premises and the machin106ery. Sir John Romilly decided that these must he borne by the vendor up to the time at which a purchaser could prudently take possession, which is the time at which a good title is shown; and after that by the purchaser. It is perfectly clear that the same principle would have thrown upon the vendors a loss resulting from an entire destruction of the property. See also Monro v. Taylor, 8 McN. & Gor. 713 ; Fry on Specific Performance, § 895 ; Sleut v. Bailis, 2 P. Wms. R. 220; 1 Sugd. Vend. 39, 389; Cass v. Rudele, 2 Vern. R. 280; Ex parte Minor, 11 Ves. R. 559. I have had occasion already to quote from the opinion of Chief Justice Marshall in Garnett v. Macon. It must be borne in mind, that the purchaser there resisted a-specific execution of the contract, upon the ground of a charge upon the property for the payment of debts cheated by a previous owner. In the progress of the suit, however, the encumbrance had been removed. Judge Marshall said : All the parties are now before the court, and if a specific performance should be decreed, the title which can be made to Macon will, undoubtedly, stand clear of Campbell’s lien. The question, therefore, is whether the contract ought now to be enforced. He then proceeds to consider how far time is the essence of a contract for the sale of real estate, declaring the rule to be, if a bill-for a specific performance be brought by a party who is himself in fault, the court will consider all the circumstances of the case, and decree according to these circumstances. He then concludes by saying: “As I think Campbells claim was a cloud hovering over the title Garnett could convey to a purchaser with notice, which justified Macon in refusing to go on with the purchase, which cloud could not be dissipated but by the decree of a court of chancery ; and as before such decree was attainable the value of the article has greatly changed, that circumstance creates a strong objection to specific performance.” 107It is obvious Judge Marshall was of opinion that any loss occurring to the property before the vendor was in a condition to convey a clear, unincumbered title, must fall on him, and not on the purchaser. And this is the result of all the cases. In the present case the incumbrances were subsisting at the hearing, nor does it appear that they have yet been removed. Under the decree of 7th March, 1871, leave was given to the plaintiffs and. appellees here to amend their petition, and make the association and the trustees under the deeds of trust executed by the Misses Gordons, parties defendant to the suit, in order to settle and adjust what balance may be due, if any, to said association. It is also stated, that because of the difficulties arising out of the perplexing condition of the association, a suit has been instituted to wind Up its affairs. The purchaser must, therefore, await the settlement of the various questions arising in this suit, and the termination of a protracted controversy, before the character, natui'e, and extent of his liabilities can be ascertained. It was argued that the purchaser cannot complain, be cause no day was fixed for the conveyance of the title. The articles of agreement unmistakably show the understanding of the parties, that the deed should be made so soon as the approval of the court could be obtained. And such clearly was the view of the parties making the sale. They did not ask for delay that the cloud upon the title might be removed. They tendered a deed with special warranty shortly after the decree as a literal performance of their covenants. "Was this a compliance with the contract ?—was the title offered the appellant the title he had agreed to accept ? Unless it can be so held, the tender imposed no obligation upon him. He was bound to take a conveyance only when a good title was offered. Conceding that he could not object, if they asked for delay, still he had the right to insist they should perform all they had engaged to perform, *108before he could be required to accept the title, or the ownership! of the property. Not having done so, the loss ' must fall upon them and not on him. Foster v. Hoggart & als., 14 Jurist, Part 1, 757 ; Counter v. McPherson, 5 Moore, Privy Council Cases, 83. Thisis a hard case upon the appellees, and deeply^to be lamented. It would be equally hard upon the appellant, who is in no ^default, to compel him to pay the consideration for property no longer in existence. With the greatest possible respect for the learning and the ability of the judge in the court below, I think the [decree rendered by him must be reversed for the reasons stated. The other judges concurred in the opinion of iStaples, J. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481746/	Christian, J. delivered the opinion of the court. This is an appeal from a decree of the Circuit court of Pittsylvania county. 137The transcript of the record shows the following case : At the November term of said court, in the year 1867, a judgment was recovered against J. J. and C. C. Tinsley, late merchants, trading under the firm and style of J. J. and G. C. Tinsley, and J. J. Tinsley and C. C. Tinsley and J. H. Trotter, surviving partners, of themselves and Joseph D. Dabbs, late merchants and partners, trading under the firm of Tinsley, Trotter & Co., for the sum of $485, with six per cent. interest thereon, from the 22d day of June 1861. This judgment was founded on a note signed by J. J. and C. C. Tinsley, and Tinsley, Trotter & Co., payable to N. S. E. Dullas, who intermarried with the appellant Holland. In June 1868, Joseph H. Trotter filed his bill in the Circuit court of Pittsylvania county, against Holland and wife, the two Tinsleys and A. GL Dullas, who was the guardian of Mrs. Holland before her marriage, in which bill he seeks to enjoin the judgment at law. In this bill the only ground on which he seeks this injunction against the judgment, is that the debt was a debt of the firm of J. J. and C. C. Tinsley, and that J. J. Tinsley, who was the acting and managing partner of the firm of Tinsley, Trotter & Co., had signed the name of that firm, as security on the note, without authority. In this bill he gives no excuse whatever for his failure to defend the action at law. Holland and wife answered this bill, and insisted that J. J. Tinsley, as the acting manager of both firms, had authority to sign the note for Tinsley, Trotter & Co.; and insisted further, that the plaintiff' was entitled to no relief in a court of equity, because he had made no defence in the action at law, and had alleged no excuse for failing to make his defence at law to the action upon the note. In May 1869, the plaintiff', Trotter, filed, by leave of the court, his amended bill, in which he alleges, in ad138dition to the matters set forth in his original bill, that he was prevented from making his defence to the action at law in consequence of certain representations and assurances made and given by the plaintiff’s attorney in the action at law; and in consequence of the promises and representations so made, he was led to believe, and did believe, that it was unnecessary for him to take any further steps to defend said suit. This amended bill was answered by Holland and wife (the appellants), who deny the allegations of the amended bill, and call for proof of the same. Depositions were-taken to sustain the allegations both of the original and amended bills ; and the case came on to be heard at the November term, 1869, upon the bill and answers and examination of witnesses, when the court, being of opinion that the plaintiff (Trotter) was entitled to the relief prayed for, entered its decree perpetuating the injunction, declaring that the defendants, Holland and wife, and those claiming under them, should be for ever enjoined and restrained from taking any steps to compel the collection of the judgment against Trotter in the-bill and proceedings mentioned. Prom this decree an appeal was allowed by this court. The following errors are assigned by the appellant in his petition of appeal, and insisted upon in the argument of his counsel here : 1st, J. J. Tinsley, having been the acting manager of both firms, and using the names of each firm for the benefit of the other, the acquiescence of Trotter is to be-inferred in the use of the name upon the note in this case. 2nd, It was error to permit the plaintiff to amend hie bill, to introduce facts within his knowledge at the time the original bill was filed, and especially without the payment of costs; the defendants, Holland and wife, having previously filed their answers. 3rd, The facts stated sas excuse for not defending the 139suit at law are not sustained by the evidence; and neither the bill nor the evidence makes out a sufficient excuse for not making this defence at law. 4th, It was error to decree costs against the defendants, Holland and wife, who had recovered a judgment at law. As to the first assignment of error, it is sufficient to observe that the proof is clear and distinct upon the concurrent testimony of all the witnesses in the cause, including J. J. Tinsley himself, that the said Tinsley signed the note in controversy with the name of the firm of Tinsley, Trotter & Co., without any authority whatever. And it is manifest that, if the evidence in the record had been heard in the action at law, there must have been a judgment in favor of the defendant Trotter. As to the second assignment of error, it is the well settled practice of courts of equity, that where the plaintiff is advised that his original bill does not contain such, material facts, or make such parties as may be necessary to enable the court to do complete justice, he may amend his bill by inserting new matter, or adding new parties. 1 Dan. Ch. Pr. new edition, 401-2, and notes. As a general rule, the court will, at any time before the hearing, grant leave to amend where the bill is defective as to parties, or in the mistake or omission of' any fact or circumstance connected with the substance of the bill, or not repugnant thereto. This amendment may be made by common order, before answer or demurrer, and afterwards by leave of the court. 1 Dan. Ch. Pr. 407-8. See also, Mason v. Nelson, 11 Leigh, 227; Parrill v. McKinley, 9 Gratt. 1; Stephenson v. Taverners, 9 Gratt. 398; Id. 372; Smith v. Smith, 4 Rand. 95; Boykin's Devisees v. Smith, 3 Munf. 102. In the case before us no objection was taken by the defendants in the court below to filing the amended bill, and it was filed, by leave of the court, before the; 140hearing. The new matter alleged in the amended bill was in no wise repugnant to the original bill, but was in addition thereto, and connected with the allegations of the original bill, and naturally grew out of the substance of that bill, and is fairly within the rule of Chancery courts governing this question. Such an objection ought not to be sustained, except in a clear case, especially where the objection is made for the first time in the appellate court. If sustained, it would be no bar to another injunction. It would not conclude the rights of the parties, or adjudicate the matters in controversy between them. It is the policy of courts of equity not to multiply, but to put an end to litigation. Where the record shews the proper parties and the substantial case, no court, and least of all an appellate court, will render such a decision as to leave the matter in controversy still a subject of litigation. We are, therefore, of opinion, that the second assignment of error is not well taken. The third assignment of errors presents a question of more difficulty, and requires more careful and extended examination. It is insisted by the learned counsel for the appellants, that the facts stated as excuse for not defending the suit at law are not sustained by the evidence, and that neither the bill nor the evidence makes out a sufficient excuse for not making this defence at law. Numerous decisions of this court were cited by the learned counsel for the appellants to sustain these positions. Without noticing these cases in detail, it will be sufficient to extract from them the general principles settled by them. The grounds upon which a court of equity will interfere to grant relief against a judgment at law, are well defined and firmly established. That a court of chancery will not entertain a party seeking relief against a judgment which has been rendered against him in a court of law, in consequence of 141his default upon grounds which might have been successfully taken in the court of law, unless some reason founded in fraud, accident, surprise, or some adventitious circumstances beyond the control of the party, be shown, why the defence was not made in that court, is a proposition which has been so repeatedly affirmed, that it has become a principle and maxim of equity, as well settled as any other whatever. It has been acted upon and recognized in very numerous cases in this court, as well of ancient as of recent date, so numerous are they, and so familiar, that it is deemed entirely unnecessary to cite them here. This rule has its foundation in wisdom and sound policy. It springs out of the positive necessity for prescribing some period at which litigation must cease. A court of equity will not grant relief merely because injustice has been done. To entitle himself to relief, the party must show that he has been guilty of no laches, but that he has done every thing that could reasonably be required of him to render his defence effectual at law. A court of equity will never, whatever the hardship, relieve a party from the consequences of their own negligence, and inexcusable laches. To do so, would be to hold out direct encouragement to such conduct. Diligence and vigilance would cease to be the rule, and we should destroy all certainty in the results of judicial proceedings. The cases in which courts of equity have refused relief, have been cases where the failure to make defence in a court of law has resulted from the laches or negligence of the party setting up his demands in a court of equity. They have always granted relief, however, when it is shown that the reason why the defence was not made, was founded in fraud, accident, surprise, or some adventitious circumstance beyond the control of, the party. Mason v. Nelson, 11 Leigh 227; Mosby v. Haskins, 4 Hen. & Mun. 427 ; 2 Hen. & Mun. 10. Applying these 142well settled principles to the case before us, we are constrained to say, that this case is not within the rule of the decisions relied upon by the learned counsel for the appellant. We think it must be conceded, that if the facts stated in the amended bill be true, the appellee, Trotter, was not guilty of any negligence, or want of diligence, in failing to make his defence in the action at law, and that he is entitled to the relief prayed for. So far from being negligent in protecting his interest, he alleges that immediately after receiving the summons he spoke to William M. Treadway, Jr., of the firm of Treadway & Son, (who had been his regular counsel for years) to defend the suit, and stated to him the grounds of his defence; that Treadway then informed him that his firm had brought the suit for Holland and wife, but that he was so well satisfied of the truth and justice of ■his defence, that he would take no judgment against him; and that when he, Trotter, said that he would employ other counsel, Treadway assured him it was entirely unnecessary, as that he would see no judgment should be entered against him. That in consequence of these promises and representations, made to him by the attorney for the plaintiff, he was induced to believe, and did believe, that it would be unnecessary for him to defend the suit; that he was not aware of the existence of said .judgment until some time after its rendition, and when •apprised of the fact, was completely suiprised, and soon afterwards applied to counsel to file his bill for an injunction. If these allegations are sustained by the proof, it is a clear case for relief in a court of equity. It was manifestly a case of complete surprise. Trotter having a valid and substantial defence, immediately upon the bringing of the suit applied to counsel who had ^usually represented him. He, however, happened to be the plaintiff’s counsel, and of course, could not defend the suit for Trotter; but gave him the assurance that he would take no judgment against him. Treadway being 143the agent and attorney of Holland and wife, had the undoubted right, if in his discretion he thought fit to do so, to release one of the defendants to that action, and take judgment against the others ; and Trotter had the same right to rely upon the assurance given by Treadway, as if it had been given by Holland and wife. After receiving such assurance, it surely cannot be said that he was guilty of inexcusable laches because he did not defend the suit. The allegations of the amended bill are substantially, if not literally, sustained by the evidence of Treadway. He said in his deposition, “I am not sure there was a conversation between us on the subject; but if there was not, I received a letter from Trotter about the case shortly after the suit was brought; either there, in his conversation, or in his letter, he stated his defence, and I informed him that I considered it a good one, and that if pleaded, I would not contend for a judgment against him, believing that I could not successfully contest the defence, and that a judgment against him under such a defence would be unjust and improper. Trotter asked, or wrote me, to attend to his interest if I could; I replied, either in person or by letter, that I could not represent him, but promised that I would •state the grounds of his defence to Messrs. G. H. and J. Gilmer, or some other attorney, and get them to represent him. This he authorized me to do. From some cause not now remembered, I failed to mention the matter to other counsel, and it escaped my attention. I heard no more of it, and my attention was not called to it until judgment had been entered by default against Trotter, along with the other defendants. I have no doubt that a pressure of business and forgetfulness on my part was the only reason why I failed to mention the defence to other counsel to represent Trotter.” A letter is also filed with this deposition, and was read in connection with it by consent, from the said 144William M. Treadway, Jr., in which he says: “I examined the office to ascertain how the judgments were entered up in the Holland and Thornton cases. To my surprise, that of Holland is entered against each member of the firm, the other not so. This must have occurred from inadvertence on the part of the clerk in his entries, as no judgment was asked for except against the Tinsleys in that case. I think I can have it set right, and will certainly make an effort to do so.” It is to be observed that in his deposition Treadway • does not say that he agreed that there should be no judgment against Trotter; but it is manifest that he did give him such assurance, for in the letter filed with his deposition, which was written shortly after the transaction, and when the facts were fresh in his recollection, he says: “To my surprise, that (the judgment) of Holland is entered against each member of the firm. This must have occurred from inadvertence on the part of the clerk in his entries, as no judgment was asked for except against the Tinsleys in that case. This evidence sustains the allegation of the plaintiff’s bill, and makes out a clear case for the equitable interference of a court of chancery. It was manifestly a case of complete surprise; and the appellee, Trotter, having been misled and prevented from making his defence, which would unquestionably have defeated the plaintiffs’ demand in the action at law, by the representations and assurances of the plaintiffs’ agent and attorney, it would be a fraud upon him, and the grossest injustice, if that judgment should now be enforced against him. The case of Hill v. Bowyer, 18 Gratt. 364, confidently relied upon by the counsel for the appellant, is not at all similar to this case. It is true the allegation of the bill in that case was that Hill had written to an attorney to defend his interest in that suit, and that, through some misapprehension, the case went undefended as to Hill; but Judge Joynes, in his opinion in that case, lays stress *145upon the fact that the deposition of the attorney was not taken, nor the letter produced. ITor in that case was there any proof of the allegations of the bill in this respect. And, indeed, in all the cases relied upon by the counsel for the appellant, it will be found that the parties seeking relief were either guilty of inexcusable laches, or at least of a want of that diligence and vigilance required by courts of equity of all those who seek its aid. Ho such laches,or want of diligence, can be imputed to the appellee in this case; and the court below was not in error in perpetually enjoining a judgment which at the time was a surprise, ándito be enforced now would amount to a fraud. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481747/	Anderson, J. delivered the opinion of the court. The original bill in this cause was exhibited for the purpose of setting aside the deed of conveyance made by Isaac Hale and Haney his wife, to their son-in-law, Isaac H. Day, as fraudulent and void as to creditors ; and to subject the lands so conveyed to satisfy the plaintiffs5 judgments. The consideration mentioned in the deed for said conveyance is $1,700. But there is a paper filed as an exhibit with the answer of Isaac Hale, which purports to be an obligation of Isaac H. Day, in consideration that Haney Hale, the wife of Isaac Hale, had relinquished to the said Day, her dower in the said lands, to maintain and support her in comfort for her natural life, in addition to the consideration of $1,700 mentioned in the deed ; and it is assigned as an error in the decree here for the first time, that Mrs. Hale was not made a party in the suit. In general, all persons materially interested in the subject, ought to be made parties to the suit, either as plaintiffs or defendants ; whether those whose rights are concurrent With the party instituting the suit, or those who are interested in resisting the plaintiffs’ claim. ¥e are of opinion that Mrs. Hale is not shown to have any such interest. She has certainly no interest concurx’ent with the plaintiff; and the bill not seeking to subject her contingent interest of dower, she is not interested in resisting the plaintiffs’ claim. Her right of dower in the lands, should she survive her husband, or the agx’eement of Day for her maintenance and support, in consideration of her relinquishment, is not a matter necessarily, nor properly, a subject of litigation in this suit; and we are, therefore, of opinion that there is no error in the decree of the Circuit court upon this ground. The next assignment of error we shall notice is, that 160the decree not stating that the cause was heard upon depositions, they should be excluded from consideration ; and the answers being responsive to the bill, and denying its material allegations, it should have been dismissed- The record shows that depositions were taken ^ parties» and that both parties were present at the' taking of the depositions, and cross-examined each others witnesses ; and it appearing from the entry of the clerk, that the despositions were filed in the cause before the hearing, and the decree being evidently founded, upon the evidence, it is fair to presume that it was a clerical omission in drawing the decree, and that the cause was heard upon the depositions. The case of Shumate v. Dunbar, 6 Munf. 480, is not very fully reported. But it was a suit against an absent defendant, and it was incumbent on the court to see that the proceedings against him were all regular and-proper; and it not appearing in the record that any notice had been given to him of the time and place of taking the depositions, either by publication or otherwise, the court would not look into them. If this were an error, it might have been corrected in the court below on motion. A decree cannot be reversed now even for want of a replication to the answer, when the defendant has taken depositions, as if there had been a replication, if or shall a decree be reversed at the instance of a party who has taken depositions, for an informality in the proceedings, when it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done. Code, ch. 181, § 4, p. 743. Ve are therefore of opinion that this objection should be overruled. The material and important question in this branch of the case is, Is the deed from Isaac Hale to Isaac H. Day fraudulent and void as to creditors ? We deem it unnecessary to go into a review and analysis of the testimony. But, after a careful examination, we are of opinion that there is no error in the decree on this point. We think 161that the "said deed, was made with intent to hinder, delay, and defraud creditors, and that the grantor was cognizant of such intention. "We are also of opinion, that the Circuit court did not err, in directing a reference to a master, to ascertain and report what is the interest of Elisha G. Duncan, in the property conveyed by Isaac Hare to James H. French, in trust for the wife of said Duncan ; for the interest of said Duncan, whatever it may be, is liable to the plaintiffs’ judgment against him. It now only remains to consider the question raised by the plaintiffs’ appeal. And here we have more difficulty. James F. Hare, in his answer, says that when he purchased from Edward Hale, he proposed that he would retain a lien upon the land for the purchase money; but Hale refused, and agreed to release the land, if he would give him personal, security; and that he gave the personal security he required. That after the death of Edward Hale, he was negotiating the sale of the land to the trustees of Mrs. "Wilmoth Hare, and'in order to consummate the sale, he went to Giles Courthouse, and applied to James D. Johnston, executor of Edward Hale, to release the lien, and proposed to give additional security if he would do so ; that Johnston as executor refused, but said he would consult Mrs. Hale ; and that he soon returned, and said he had had an interview with her, and that she assented. This conduct of this defendant is 3’emarkably incompatible with his alleged agreement with Hale. He afterwards attempts to explain it, by saying that the release of Edward Hale being only verbal, and there being no witness, he thought he would be unable to establish it after his death. But' almost in the same breath he says, that Edward Hale directed George D. Hoge to have the conveyance made directly to him. Such proof would have tended strongly to prove his allegation, that Hale had agreed to release the' land ; but it was not produced, and no attempt is made 162to account for its non-production. But if there had been such an agreement, and such proof to establish it, it is really surprising that he should have gone to the executor, and, without even mentioning such an agreement, and insisting upon it, have proposed to Mm to release the lien upon an entirely new considei’ation. But the statement of this defendant, as to the result of the interview with the executor, and the assurances which he gave him of the consent of Mrs. Hale to release the land upon his giving the additional personal security he proposed, is wholly irreconcilable with the depositions of James D. Johnston, Albert G-. Pendleton, Lorenzo Hale, and Mrs. Beatrice A. Hale ; so that, if his answer positively negatived the allegations of the bill, and was directly responsive, and not merely affirmative matter which it was incumbent on him to prove, unsupported as it is by any evidence in the cause, it could not weigh as a feather against such a weight of testimony. It does not appear, therefore, that Edward Hale agreed to release his recourse upon the land. And we think it is proved beyond all question, that Mrs. Hale did not, but that she positively refused to release the land ; though she consented that additional personal security might be given, provided it should not prejudice her recourse upon the land, which she was not willing to surrender for any personal security. And, indeed, she agreed with Mr. Pendleton, who appeal’s in this matter to have acted as the counsel and agent of A. J. Hare and his wife, and their trustee, to allow the additional security tobe given, only upon his assurance, that it would not prejudice her lien upon the land, if she had any, but would rather strengthen it. At the same time, it is very evident that Andrew J. Hare and wife, and their trustee, finally concluded the contract, accepted the conveyance which was made, and paid the purchase money, with perfect reliance upon the 163information and assurances they had received, that the deed would invest them with a good title, and that they were entirely safe in accepting it. And yet it is a plain inference, from the evidence, that they must have known that Mrs. Hale held James F. Hare’s bonds for the purchase money, and that she claimed a lien upon the land for their payment, which she was.not willing to surrender. What was the ground of their reliance, unless it was the opinion of their counsel, which he intimated to Mrs. Hale, that she had no lien upon the land, there is nothing in the record to show. Hor is there anything in the record to show that Isaac Hare, in executing the deed of conveyance, did not act in perfect good faith, or that any culpability attaches to Mrs. Hale. If she had such a lien, or right of recourse upon the land, it is very evident that she did nothing to surrender it. It is contended by the appellees, in the cross appeal, that no such lien existed. That is the only remaining question. Before our statute, ch. 119, § 1, p. 567 of Code, it was well settled, that a vendor who conveyed the land to the vendee had a lien upon it for the unpaid purchase money in the hands of the vendee, or a volunteer claiming under him, or purchasers for valuable consideration with notice. Where a conveyance is made now, by the statute, the lien is abolished, unless expressly reserved on the face of the conveyance. But when no conveyance is made, the case is not within the purview of the statute, and the law is the same as it was before the statute was enacted. And in such case it is well settled « that the vendor has recourse upon the land, notwithstanding the vendee gave personal or other security for the purchase money, and notwithstanding the subsequent purchaser, or incumbrancer, had no notice that the purchase money, or any part of it, was unpaid. Yancy v. Mauck & als., 15 Gratt. 300 ; citing Hatcher’s adm’x v. Hatcher’s ex’ors, 1 Rand. 53 ; and Lewis v. Caperton’s ex’or, 8 Gratt, 148. 164In Beirne's ex'ors v. Campbell, 4 Gratt. 125, Camp-^ell had hut an equitable title, which he sold to Burke, and which Burke conveyed, with other lands, to trustees for the benefit of creditors. At the time of Burke’s conveyance the legal title was in Estill, which was after-wards conveyed, by the direction of Campbell, to Burke. ^ At the sale by the trustees, Beirne became the purchaser of this tract. This court held that the land was chargeable in the hands of Beirne for the balance of purchase money due from Burke to Campbell, though he had obtained the legal title, and had no notice that purchase money was due to a previous vendor. That case, we think, goes very far in support of the lien of the vendor of an equitable title—much farther than it is necessary to go in this case, to enforce the lien of Edward Hale against the purchasers from his vendee, having notice of the purchase money due him, and that his representative insisted upon her lien, and refused to surrender it for any personal security, unless the mode of transferring the equitable title, by an assignment of the title bond, makes a difference. In this case it is not averred in the pleadings, nor proved in the cause, except by recital in one of the deeds, to which the appellee, Beatrice A. Hale, was not a party, that the equitable title of Edward Hale was transferred to James E. Hare, by the assignment to him of the title bond of Isaac Hare, under which Edward Hale, by assignment, held the equitable title to the land in question. But assuming that to be the fact, has the assignor a lien upon the'land for the purchase money? It seems to be well settled, that one who sells an equitable right to land, retains a lien upon it for the consideration, when, under the same circumstances, the vendor of the legal title would have an equitable lien. The lien is recognized to the same extent in case of a sale of an equitable title as of a legal one. 1 Lead. Cases in Eq. side p. 270, top 363 ; Stewart v. Hulton, 3 J. J. Marsh. R. 178. If the vendor had 165sold the legal title, but had not conveyed, the land would have been'charged with the purchase money, as we have seen, in the hands of a subsequent purchaser or incumbrancer, even without notice, and notwithstanding the vendor had taken personal security. In Ligon v. Alexander, &c., 7 J. J. Marsh. R. 288, the case was this: Ogden, having title, executed a title bond for a piece of land to Ligón, who, having paid therefor, assigned the bond to Morgan, who assigned it to Alexander, with notice of the non-payment of the purchase money due from Morgan to Ligón, and of the lien asserted by the latter on the land for its payment. The court held that the land in the hands of Alexander was bound for the purchase money due Ligón. The court says: “Before any assignor can have such a lien, he must show himself to have been the beneficial owner of the property by payment of the purchase money to his vendor. With this borne in mind, there can be no difficulty in recognizing any number of distinct liens, from the first assignor to the last assignee of the bond. ” This decision is recognized in Galloway v. Hamilton’s heirs, &c., 1 Dana R. 576, (see also Stewart v. Hulton, 3 J. J. Marsh. R. 178,) in the following language: “This court has decided that the assignor of a bond for title to a tract of land is entitled to a lien on the land to secure the purchase money, notwithstanding the assignee has parted with the bond by transfer to another, provided he had notice of such lien.” The case of Ligon v. Alexander strikingly resembles the case in hand; and it is supported by the well settled principle that the lien in case of a sale of an equitable title is recognized to the same extent as in the sale of the legal title, and is in harmony, except that it does not go as far, with Campbell v. Beirne, supra, decided by this court. We are therefore of opinion that the decree of the Circuit- court is erroneous in holding that there is no lien 166upon the laud sold by Edward Hale to James F. Hare, and by him sold to Dauiel Hale, trustee of Wilmoth Hare, for the purchase money due from James E. Hare to Beatrice A. Hale, widow and legatee of Edward Hale, deceased; and in dismissing the suit as to the defendants, Andrew J. Hare and wife, and her trustee, Eustace Gibson. ¡k The court is also of opinion that the said tract of land is primarily liable to the payment of the said purchase money; and that, although the decree is right in setting aside the deed from Isaac Hale to Isaac H. Day, as fraudulent and void as to creditors, the said land can only be subjected to the payment of the purchase money which was due from James E, Hare to Edward Hale for the land he sold him, and upon which he retained a lien for its payment, in case the same should be insufficient to satisfy the same, and then only for the deficiency. But inasmuch as there were other judgments against the said Isaac Hale, which charged the land, the decree is right in directing the sanie to be sold. We are of opinion, therefore, that the decree of the Circuit court should be reversed so far as it is herein declared to be erroneous, and in all other respects affirmed. The decree was as follows : The court, for reasons stated in writing and filed with the record, is of opinion that the decree of the Circuit court is erroneous in holding that the tract of land sold by Edward Hale to James F. Hare, and by him to Daniel Hale, trustee of Wilmoth Hare, is not chargeable with the purchase money due from James E. Hare to Beatrice A. Hale, the widow and legatee of Edward Hale, deceased; and in dismissing the suit as to the defendants, Andrew J. Hare and his wife, Wilmoth Hare, by her trustee, Eustace Gibson, with costs; and that *167there is no other error in said decree. It is therefore decreed and ordered, that said decree of the Circuit court he reversed and annulled, so far as it is herein declared to be erroneous, and in all other respects affirmed; and Beatrice A. Hale, appellee in the appeal of Isaac H. Bay, and appellant in the cross appeal, recover her costs in this court: which is ordered to be certified to the Circuit court of Giles county, for further proceedings to be had therein. Decree upon Day’s appeal arrirmed. Decree upon B. A. Hale’s, reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481748/	Botjldin, J., delivered the opinion of the court: This is an appeal from a decree of the Circuit court of Loudoun county, at its April ¿term, 1871, in a chancery suit instituted in said court by Thomas E. Carr, against Ascenith A. Carr, his wife, seeking a divorce a mensa et thoro, on the ground of abandonment or desertion by the wife; and seeking also to obtain the custody of his infant daughter, the only child of the marriage, who had been taken from her father’s home by the mother. The divorce as prayed for was granted by the court; the child was remanded to the custody of the father, and alimony was denied to the wife. From this decree an appeal was allowed to this court, and the following errors are assigned by the appellant: “ 1st, It was error to grant a divorce a mensa et thoro 171upon the pleadings and proofs in this cause, it appearing therefrom that the petitioner had cause for leaving, and that she left her husband with his consent and concurrence. “ 2nd, It was error not to grant something for maintenance to the petitioner, under the circumstance of the case. ‘ ‘ 3rd, It was error to take from ' the petitioner, and give to the complainant, the custody of the child. “4th, There was no provision for the mother to have access to her child.” The questions thus presented for our consideration have been discussed with much learning and ability by counsel on both sides, and numerous authorities have been cited; but as their solution depends on the construction of a statute of this State of comparatively recent date, and as that statute has received judicial interpretation by this court in the case of Bailey v. Bailey, decided at Wytheville, June term, 1871, and reported 21st Gratt. 43, the court deems it unnecessary to comment in detail on the previous authorities. The 7th section of chapter 109, Code of 1860, p. 630, authorizing the chancery courts to decree divorces from bed and board, is as follows: “§ 7. A divorce from bed and board may'be decreed for cruelty, reasonable’: apprehension of bodily hurt, abandonment or desertion.” Sections 12 and 13, of same chapter, confer on the courts full power, on granting a divorce, to make such orders as may seem just and proper under the circumstances, in relation to alimony to the wife, the custody and maintenance of the minor children, and the property of the pai’ties. The case of Bailey v. Bailey, 21 Gratt. 43, above cited, in which this statute was considered and construed by the court, was just the converse of the case under consideration. It was a suit by the wife against the hus172band, seeking a divorce a mensa et thoro, for abandonment and desertion by the latter. The fact of desertion by the husband, proved almost exclusively by the letters of the parties, was considered by the court as satisfactorily established, and the divorce was decreed. Alimony was allowed the wife ; and the custody of her only child, an infant of very tender age, was given to her. In considering that case the court say that “under our statute no particular period is prescribed in which the desertion shall continue, to entitle a party to a divorce a mensa et thoro; ” that the courts had not laid down ‘ ‘ any particular rules of evidence for determining whether a separation does or does not, as a matter of proof, amount to desertion.” And they go on, very properly, to say, that “the question does not admit of such rules, but each case must rest on its own circumstances.” But the following proposition is affirmed b.y the court, as the result of the English and American-eases on the subject: “We think it may be safely asserted, as a general principle of law, to be extracted from the English and American eases on the subject, that wherever there is an actual breaking off of matrimonial cohabitation, combined with the intent to desert in the mind of the offender, in such case desertion is established, and the party deserted is entitled to a divorce a mensa et thoro.” 21 Gratt. 48-9. Such being the law, there can be but little difficulty in applying it to the facts of this case. Without recapitulating those facts, which we deem wholly unnecessary, it is enough to say, that the pleadings and proofs in the cause abundantly establish “an actual breaking off of matrimonial cohabitation, combined with the intent to desert,” on the part of the wife, without legal cause or excuse—an intent deliberately formed, and unreasonably and persistently adhered to, down to the rendition of the decree, in the face of repeated and earnest appeals and entreaties to her by the husband to return. Without 173just cause she has violated her marriage vow, by thus breaking off matrimonial cohabitation with her husband, and has deserted him and his home with the declared purpose of never returning. TJnder such circumstances, we are of opinion, in the language of this court in Bailey v. Bailey, that “desertion is established, and the party deserted is entitled to a divorce a mensa el thoro. ” There was no error, then, in granting the divorce. 2. We are further of opinion that the Circuit court did not err in refusing to allow alimony to the wife under the circumstances of this case. She was in the eye of the law, and in fact, the offending party. She has, without sufficient cause, deserted her husband and his home, and established herself elsewhere, thus disregarding his comfort and happiness, her own duty, and the decencies of society. To concede to her, under such circumstances, the right to demand of her husband a separate support in her new establishment, would not only be a reward to misconduct, immoral and corrupting in its tendency, but would give a rude shock to the sanctity of the marriage contract. Happily, the law does not require it, and policy and propriety alike foi’bid it. Alimony is a right of the wife, and a duty of the husband, growing out of matrimonial cohabitation. When the wife, without cause, and against the wish of her husband, breaks off cohabitation with intent to desert him, her right to alimony ceases. Bishop on Mar. & Div. 564, and cases there cited. So long as the husband has committed no breach of matrimonial duty, he is under no obligation to provide the wife a separate maintenance ; and she connot claim it on the ground of her own misconduct. Bishop, ibid. In Boggess v. Boggess, 4 Dana’s R. 307, C. J. Robertson, delivering the opinion of the court, says : “a wife who has voluntarily abandoned her husband should not have a decree for her separate maintenance, unless her abandonment of him was, without her fault, rendered 174necessary for her safety or happiness, and was consistent with social order and public policy.” We think the above ought to be, and is the law ; and we have already said, that in our opinion the desertion of the husband by the wife in this case was not only without sufficient cause, but was in violation alike of “ social order and public policy.” There was no error, therefore, in denying alimony to the appellant. 3. For did the court err in remanding the infant daughter to the custody of her father. The child was three years old at the date of the'decree of the Circuit court, and is now four. The tender nursing period has passed by, and the time for moral training and impressions has arrived; and the court must decide whether there is anything in the circumstances of this case which, having in view the good of the child, renders it necessary and proper that it should remain longer with the mother. We think not, but the reverse. We concur with the learned judge of the Circuit court when he says, that she “has too lightly abandoned duties which she was bound by religion, morals, and the laws of society conscientiously to perform.” For matters which, however painful and annoying at the time, are not of infrequent occurrence in early married life, and are, at most, of comparatively small importance, she has undertaken, of her own accord, to disregard and sever the sacred bond of marriage—“ the prop and bulwark of the social system ”—and to throw herself upon society, as was said by this court in Bailey v. Bailey, “ in the undefined character of a wife without a husband, burdened with disgrace ”; and we are asked to compel the father and deserted husband to allow his innocent and unoffending daughter to share with the mother this undefined, ambiguous position, this burden of disgrace, during the critical period of moral training and education, when the mother has neither a home to which to take her (except at sufferance) nor means whereby to 175maintain her. We are of opinion that this should not be done, and that the Circuit court did not err in remanding the child to the custody of its father. 4. We are further of opinion that there was no error in failing to provide that the mother should have access to the child. It does not appear to have' been asked, and was in fact unnecessary; first, because the decree provides that either party may apply at any time for such, further order as may be desired; and secondly, because the record shows that the heart and home of the husband are ever open to receive his misguided wife. Upon the whole, we are of opinion that there is no error in the record of which the appellant can complain. But in holding, as we do, that there was no sufficient cause for the desertion of the husband by the wife in this case, we must add that we are very far from holding the husband blameless. On the contrary, his conduct towards his young and inexperienced wife has in many respects been in the highest degree reprehensible. He has treated her with too.little tenderness and consideration in the new and trying position in which she was placed. He has at times been coarse, rude, and petulant, when he should have been gentle, soothing, and affectionate. He has left her to bear alone burdens and trials which it should have been his highest pleasure to share and relieve ; and he has been close, exacting and penurious with her, when he should have been, to the extent of his means, open handed, liberal, and generous. We think he has much, very much, for which to reproach himself. Both parties have been to blame. A proper spirit of forbearance and conciliation on each side would have saved much trouble. But we believe that neither contemplated or desired the sad consequences which have resulted from their unhappy dissensions. Believing this, and believing also that there is no good and substantial reason why the parties should not be reunited, and lead for the future respectable and 176happy lives, we are reluctant, by an unconditional decree-of divorce a mensa et thoro and perpetual separation, to ■close the door, apparently against reconciliation. The decree will be so modified, therefore, as to give the appellant the option, within six months from this day, of' returning voluntarily, with her child, to the home of her husband, to his bed and board; and should she fail to avail herself of this invitation, the decree of the Circuit court will stand affirmed as an act of this day. Should she return, the Circuit court will be instructed, on her motion, to set aside the decree, and dismiss the bill. In ordinary cases this affirmance would be with costs-to the appellee, as the party substantially prevailing; but this being a suit between husband and wife, and the latter being without estate, the husband must pay the-legal costs in both courts. The decree is as follows: The court is of opinion that there is no error in the record of which the appellant can complain. But for reasons assigned in the written opinion of the court, it is adjudged, ordered and decreed, that the appellant, Ascenith A. Carr, be allowed the period of six months from this day, within which she is invited to return with her child to the bed and board of her husband,. Thomas E. Carr; and unless she shall voluntarily so-return within the period aforesaid, then the decree of the Circuit court of Loudoun county of April term, 1871, shall stand affirmed as an act of this day. Should she elect so to return, she shall be received and treated by the appellee as his wife; and in that event, the said Circuit court is directed, on her motion, to set aside and annul the decree of April term aforesaid, and dismiss the bill. It is further ordered, that the appellee, Thomas E„. Carr, do pay the legal costs of suit in both courts. Decree amended and arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481749/	Staples, J. An issue out of chancery is directed, in doubtful matters of fact, to satisfy the conscience of the court. It is not adopted as a substitute for omitted evidence, but in cases of doubt and difficulty produced by a conflict of testimony. In such cases, the chancellor considers the purposes of justice will be better attained by an investigation before a jury, where the witnesses may be seen by the triers of the fact, their capacity, deportment, accuracy and sources of information, subjected to the tests of a public cross-examination, and the whole merits of the controversy more satisfactorily investigated, than by an examination on paper in the 189country. It is, therefore, the rule in most of the American courts, and also in the English courts, not to admit depositions taken in 'a Chancery court to be read to the jury, unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. This rule has received the sanction of the judges of this court in several cases, and is believed to be the settled practice in Virginia. I think, therefore, the court below committed no error in entering the order set out in plaintiff’s first bill of exceptions. Burwell v. Corbin, 1 Rand. 153; Douglas v. McChesney, 2 Rand. 109; Grigsby v. Weaver, 5 Leigh, 197; Cartright v. Godfrey, 1 Murphy, R. 422; 2 Daniel Ch. Prac. 741, mar. page. The second assignment of error is to the refusal of the court to give the instruction set out in plaintiff’s second bill of exceptions. This instruction is objectionable in several respects. It is, however, only necessary to notice that part of it which asserts that “an answer positively denying the allegations of the bill may be overthrown by the admissions, evasions and contradictions, if any, which may be found therein.” It is sufficient to say that this proposition is in conflict with the rule announced in Fant v. Miller & Mayhew, 17 Gratt. 187. In that case, the court says, “a plaintiff cannot destroy the weight of’ the whole answer by proving that the defendant is unworthy of credit; nor can he do so by proving, directly or indirectly, that the answer is false 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 instructions actually given by the court in lieu of that asked for by plaintiffs, I think, correctly state the principles of law governing this ease. The plaintiffs’ counsel, however, proposed the following additiou or modification of the instructions given: “But' so much of ’ the auswer of either party as makes in favor of'the-190respondent, may be disproved by its context, or by extrinsic evidence, and on the other hand, may be sustained by corroborating testimony.” The- court refused to make this addition, and I think properly. This language is an extract from the opinion of Judge Baldwin in Lyons v. Miller, 6 Gratt. 427. In using it, he had reference exclusively to an answer to a mere technical bill of discovery. It was the enunciation of an abstract proposition of law, having no application to the present case, or to any case of a bill for redress falling within the ordinary jurisdiction of a court of equity. The court had already instructed the jury that an answer is to be taken as true when responsive, unless contradicted by two witnesses, or one witness with corroborating circumstances. The court was then asked to tell the jury in a general way, that an answer may be “ disproved by its context, or by extrinsic evidence.” The instruction not only involved a mere abstract proposition of law, which a judge may well refuse, but was well calculated to mislead the jury. The plaintiffs also asked the court to instruct the jury, they are not bound by the rule of chancery pleading, which prescribes that the allegations of an answer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness with corroborating circumstances. This instruction the court refused to give ; and the plaintiffs again excepted. . The question presented by this instruction has never been decided by a court of the last resort in Virginia. In Thornton v. Gordon, 2 Rob. R. 719, Judge Allen said the rule in equity that the answer of a defendant denying the allegations of the bill must be taken as true, unless disproved by two witnesses, or one witness and circumstances, was so well established, the plaintiff' could not make his case an exception to it, by disclaiming a discovery from the defendant. This rule is the law of the forum, and all who apply to it for relief must submit 191to have their causes tried according to its established modes of procedure. It has no application to a mere technical bill of discovery, where no relief is prayed, but the discovery is required to be used on some trial at law ; for there the plaintiff has his election to use the answer or not. The principle becomes of importance in those cases alone where an issue of fact is to be tried by the court.” Eow it is obvious, that if the defendant is to be deprived of the benefit of this principle, because the issue is to be tried by a jury instead of the court, it is of very little value to him in many cases where its observance is most important to his interests. It is well settled that where the defendant denies in express terms the allegations of the bill, and the plaintiff produces only one witness in support of them, the court will neither make a decree nor send the case to be tried at law, but simply dismiss the bill. If the jury may disregard this rule when the case is before them ; if they may find a verdict upon the testimony of a single witness in opposition to the answer, the plaintiff* will often succeed upon testimony insufficient to justify even the ordering of an issue. What would a chancellor do with a verdict thus obtained? In this very case, had the instruction been given, and the jury found for the plaintiff, under the ruling of the court, would he have been satisfied with the finding ? Upon a motion to set aside the verdict, he would have found himself trammelled by a rule he had instructed the jury they might disregard. In the nature of things the rule of evidence must be the same in each forum. Any other course of proceeding is calculated to produce endless confusion and difficulty. The next error assigned is the refusal of the court to grant plaintiffs a new trial, upon the ground that the verdict was contrary to law and the evidence. The court refused to certify the facts, in consequence of a conflict of testimony. The bill of exceptions, however, 192states all the oral evidence adduced at the trial. This court, having before it this evidence, all the depositions- and exhibits read at the hearing, is competent to decide Aether the purposes of justice require another trial to be had. The rule in such cases is well settled. Theeourfc will consider not merely whether the evidence adduced before the jury warrants the verdict, but also' whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. And although there may have been a misdirection, or evidence may have been improperly rejected, it will not grant a new trial if the verdict appears to be right upon a consideration of all the evidence, including that which-was rejected. 2 Dan. Ch. Pr., new edition, page 1124, and cases there cited. In Barker v. Ray, 2 Rus. R. 63, Lord Eldon said: ‘‘This court, in granting or refusing-' new trials, proceeds upon very different principles from those of a court of law, and that it has been ruled over- and over again, if on an issue a judge refuse evidence which ought to have been received, or receive evidence which ought to - have been rejected, although in that case a court of law would grant a new trial, yet if this court is satisfied the verdict ought not to have been different, it will not grant a new trial merely upon such grounds. See also Hampson v. Hampson, 3 Ves. & Beam R. 41; Brockenbrough's ex’ors v. Spindle, 17 Gratt. 28. In the present case, looking to the entire record, this court cannot say a different verdict ought to have been rendered—more especially as the chancellor who heard the witnesses is satisfied with the finding. When the case was before us at a previous term, an issue was-directed, mainly in consequence of the testimony of John E. Allen, upon whom the plaintiff chiefly relied to establish the charge of fraud. It is their misfortune that this-witness, in his examination before- the jury, has so explained his previous testimony as- to relieve the defendant of the burden of this charge. It may be,, as stated 193in the petition, that the witness exhibited the most manifest bias in favor of the defendant, and, so far as he could, destroyed the effect of his deposition. This fact only establishes the failure of the plaintiff’s case, and that this witness’ evidence cannot, under any circumstances, be made the basis of a verdict or decree for them. What other testimony have the plaintiffs? Mrs. E. Leary, the sister of the female plaintiff, was examined before the jury. Her statements, however, related almost exclusively to an account of an interview between the witness, Allen, and Mrs. Powell, having but little bearing upon the matters in controversy. The deposition of Mrs. Powell was read at the hearing, but not on the trial before the jury; nor was she examined as a witness—why, the record does not disclose. Having declined to testify when there was the most urgent necessity for a full disclosure of the facts within her knowledge, she.. certainly cannot claim that the court shall regard her deposition in considering the motion for a new trial. But giving her the full benefit of her testimony, it does not prove the charge of fraud. The deposition is mainly devoted to a statement or narrative of the transactions which led to the execution of the bond. It proves that Mrs. Powell had great confidence in the defendant, Manson; but it does not show, or tend to show, that she executed the bond in controversy in consequence of fraudulent misrepresentations made by him. Upon the whole case, I am satisfied the verdict is correct, and that plaintiffs are not entitled to a new trial. It only remains to notice an objection made to the form of the decree. It is true the decree is against the plaintiff, Powell. Provision is, however, made that the debt due by the garnishee, Sauer, shall be first applied to the satisfaction of defendant’s claim. It is conceded that this debt is more than sufficient for the purpose. But were it otherwise, the decree is still correct. It is-too plain for discussion, that upon the marriage the hus194band becomes responsible for all the debts of the wife contracted before the marriage. To what extent her separate estate may be subjected to such debts is not very well settled. 13ut it is clear that a mere ante-nuptial settlement will .not relieve the husband of the obligation cast upon him by the law, to discharge the debts of the wife, provided the claim is asserted, and the recovery bad during the existence of the coverture. This responsibility arises upon the marriage, and only ceases with its termination. Dor these reasons, I am of the opinion the decree of the Chancery court should be affirmed. The other judges concurred in the opinion of Staples, J. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481750/	Bouldin, J. delivered the opinion of the court: The papers before us in this case are not so explicit as to facts and dates as they might have been ; but so far as they can be gathered therefrom, the facts are briefly as follows: Bowman & Stroock, as partners, were plaintiffs in 197the Circuit court of the city of Richmond, in a suit against The Georgia Home Insurance Company, and pending the suit, to wit: on the 29th day of May 1868, Stroock instituted proceedings in bankruptcy in the United States District court for the southern district of New York, against Bowman, describing the parties in the proceeding as co-partners, composing the firm of Bowman & Stroock; and on the 21st day of July. 1868, both partners were regularly adjudicated bankrupts. The proceeding seems to have been duly conducted under the 36th section of the bankrupt law, prescribing the mode in which partners shall be declared bankrupts; and on the 10th day of March 1869, Claflin and Brummer were duly appointed assignees of the partners. On the 30th day of May 1868, one day after the New York court took jurisdiction of the whole case, it seems that Bowman alone was adjudicated a bankrupt by the United States District court for the district of Virginia, and that Edward Y. Cannon was appointed his assignee; but when this appointment was made nowhere appears; nor does it appear whether Bowman’s was a case of voluntary or involuntary bankruptcy, or when the proceeding was initiated. The date of the proceeding, in one aspect of the cause, is an important fact, and should have been clearly established. In the absence of other proof, we assume as a fact (rendered probable by the circumstances), that Bowman became bankrupt on his own petition, and, as usual in such cases, that the date of the adjudication gives the date of the petition. If this be so, and there appears in the record nothing to the contrary, then the Virginia proceeding was one day later than the proceeding in New York, which thus acquired exclusive jurisdiction of the whole matter. It seems that Bowman & Stroock did business both in Richmond and New York, but it does not appear where they resided. In this state of facts, the bankruptcy of both Bowman 198and Stroock was suggested on the record, and Edward T. Cannon, as. assignee of Bowman alone, moved the court: 1st, That the suit should be prosecuted in the names-of Bowman & Stroock, for his benefit as assignee; or, 2nd, That he, as assignee of Bowman, should be entered on the record as party plaintiff, and allowed to prosecute the suit. But the court overruled both motions; and then Cannon and Brummer, as assignees of both partners, united in a motion that they both be allowed to prosecute the suit together as plaintiffs, which motion was also overruled. And thereupon application was made to this court by Cannon and Brummer for a writ of mandamus to the judge of said Circuit court, requiring him to grant the prayer of some one of said motions. On that application a rule was awarded against the judge, to show, cause.why a mandamus should not issue, which has been-served on and answered by him; and the question is, whether, on the facts above stated, a mandamus should be issued. ' ' ■ Without considering the question whether this is a proper case for a mandamus—a question not necessary to be decided—the court is of opinion that the judge of the Circuit court did not err in overruling all of said motions, and of course, that the rule should be dis-chárged for the following reasons: 1st, The suggestion and admission on the record, that both partners were bankrupts, necessarily arrested further proceeding in the name of the bankrupts. They became; by their bankruptcy, civiliter rriortui, and could no longer sue, either for themselves or another. All their rights of property, legal and equitable, had passed, by assignment and by operation of law, to their proper assignees; in whose name alone could the suit be prosecuted. But if this were not the ease—if their names could in law still be used for the benefit of their assignees—Cannon; 199as assignee of the separate estate of Bowman alone, was not the proper person to be put on the record as sole beneficiary. 2nd, Cannon, Tas assignee of the separate estate of Bowman—if such assignee he was—had no right to be placed on the record as sole plaintiff, entitled as such to collect the social assets. As assignee of Bowman, if regularly appointed, it would have been entirely proper, and the duty of the court, to allow him to become a party on the record as holding rights in common with the other partner, or his assignees, such being the regular and proper mode of collecting the outstanding social assets. Ayer v. Brastow, 5 Law Reporter, 498; and Story on Partnership, § 338, and the authorities and cases there cited. It does not appear, however, from the facts before us, that he was the proper assignee of Bowman, but the reverse. The New York District court had taken prior jurisdiction of the entire case, and of both partners, and in that court both partners were regularly adjudicated bankrupts, and assignees of both were duly appointed. By the terms of the 36th section of the bankrupt law, and the 16th general rule, the New York court having first taken cognizance of the matter, acquired complete and exclusive jurisdiction of the whole case ; the assignees appointed by that court were the regular and legal assignees of both partners, and it was not competent to the Virginia tribunal, by subsequent proceedings, to oust that jurisdiction and appoint other and different assignees. 3d, It follows necessarily, from the reason above set forth, that Cannon and Brummer had no right to be made co-plaintiffs in the cause. On the facts before the Circuit coui’t when the motions were made, Claflin and Brummer, as joint assignees of both partners, were the only proper persons to be made parties, and no others should have been allowed to prosecute the suit. The fact that there were assets in different districts and in 200different States, does not, in any degree, affect the rights of the assignees. They represent the bankrupt and his estate in every State, and collect the assets wherever found. In the matter of Warren and Charles Leland, 5 N. B. R., 222. Since the last proceeding in the Circuit court, and pending the proceeding here, an official document from the New York District court has been filed, showing the due acceptance by that court of Claflin’s resignation as one of the assignees, thus leaving Brummer sole assignee of both partners. Should that document be filed among the papers of the cause in the Circuit court, and no other change be made in the facts as above set forth, this court is of opinion that Brummer alone, as assignee of the partners, is the proper party to prosecute the suit, and should be admitted as such. The rule must be discharged. The motion for a peremptory mandamus overruled. On the last day of the term, Lyons stated that he then had evidence, which he produced, showing that the proceedings in bankruptcy by Bowman, in Virginia, were commenced on the same day with those by Stroock, in New York, and, in that aspect of the case, asked the court to say who would be the proper assignees to collect the social assets of Bowman & Stroock." Moncure P. called on Bouldin J. to reply to the question ; who said, that in his opinion the facts suggested, had they been before the court, would not have varied the result of the case, or changed the opinion announced, that Brummer alone was the proper assignee. That the Virginia proceeding was not a proceeding against the partners ; but an ex parte application by Bowman alone, seeking as an individual to be declared a bankrupt, whilst the New York proceeding was a regular proceeding inter partes, under the 36th section of the bankrupt law, seeking to *201have the partners composing the firm of Bowman & Stroock declared bankrupts. That in the former proceeding, Cannon was appointed assignee of the separate estate of Bowman individually; whilst in the latter, Brummer and another, (who had regularly resigned his ■office,) were duly appointed assignees of the partners, composing the firm of Bowman & Stroock; and that under such a state of facts, in his opinion Brummer alone would be the proper assignee of the firm. This opinion seemed to be acquiesced in by Moncure, P. and Christian, J. Judge Anderson had left the court, and Judge Staples did not sit in the case.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482022/	Moncure, P., delivered the opinion of the court. The main question arising in this case is presented by the first assignment of error in the decree appealed from: “Because it’ enforces a purchase made by a guardian of his ward’s real estate, sold under a decree of court in a suit instituted in accordance with the provision of the statute for the sale of land of persons under disability.” We think the appellant is right in maintaining that the sale, which is the subject of controversy in this case, was made under a decree in a suit instituted under chapter 128 of the Code of 1849, concerning the sale of lands of persons under disability, and not under a decree in a suit instituted under chapter 124, of the same Code, concerning partition of lands. But although section 6 of chapter 128 declares that at ■such sale as may be made under" that chapter, “ the 126guardian or guardian ad litem, or committee, or trustee, shall not be a purchaser, directly or indirectly,” yet that section was enacted for the benefit and protection of the persons under disability, and not of their guardians, committees or trustees. And there may be a case in which a purchase -made by a guardian or other fiduciary of the land of his ward or other beneficiary, sold under that chapter, would and ought to be sustained and enforced. We think that this is such a case. The sale of land in this case (450 acres) \yas made by commissioners under a decree of the said court, made at March term, 1859. The day of sale was the 11th day of August, 1859. The terms of the sale were: “ Two hundred and fifty dollars cash, balance in equal instalments, payable in one and two years, from 1st October, 1859, and bearing interest from that day, the purchaser to execute bonds with good security for the deferred payments.” Thomas W. Williams, the guardian, who, as such, brought the suit, was the highest bidder for, and became the purchaser of said land at said sale, at the price of eighteen dollars and sixty cents per acre. One witness (Joseph A. Jones) proved that that was a good price for the laud in 1858 and 1859; and though he could not say that it was a very exorbitant price, yet he considered it a very fine sale. Another witness (J. B. Williams) proved that “ it was an enormous price at the time, and most unquestionably was to the advantage of the children.” There is not a particle of evidence in the case at all in conflict with the testimony of either of these two witnesses. Thomas W. Williams, the highest bidder for the land, to whom as purchaser it was cried out as aforesaid, entered into possession thereof as such purchaser in October, 1859, the time from which the deferred instalments of the purchase money was to bear interest. It is stated in the deposition of Thomas W. Williams that he took possession, “ notwithstanding the ’ 127protest of J. B. Williams.” It is not stated in the record what was the ground of that protest. J. B. Williams was the administrator de bonis non, with the will annexed of his mother, Mrs. Eliza J. Williams, and no doubt as such had possession of the land, and was unwilling to surrender it to the purchaser until he had- complied with the terms of sale. Certainly J. B. Williams did not make the said protest because he thought the price at which the land was cried out as aforesaid was inadequate ; for we have seen how different from that was his testimony on the subject. Thomas W. Williams no doubt complied with the terms by making the cash payment of two hundred and fifty dollars; and he certainly did by giving bonds, with good security, for the two deferred payment's, amounting each to the principal sum of $4,257.75. These bonds bear date on the-day of October, 1860 ; hear interest from the first day of' October, 1859, and are payable “to John E. Jones and T. H. Campbell, commissioners of the circuit court of Nottoway county, in the case of Williams’ guardian & others vs. Williams & others;” one of them on demand, and the other on or before the first day of October, 1861. The appellant, John C. Bedd, and William F. Blackwell and James P. Street executed the said bonds with the said Thomas W. Williams, as his sureties and co-obligors. The said purchaser continued in quiet and uninterrupted possession of the said land, and enjoyed the issues and profits thereof from the time he took possession as aforesaid, in October, 1859, until he gave his deposition in this cause on the 24th of September, 1873 ; and may have ever since been, and yet be in such possession, for ought the record shows. Neither the said Thomas W. Williams, nor any of the sureties in his bonds aforesaid, nor any other party concerned, so far as the record shows, ever questioned his right or liability as purchaser of the land aforesaid until after the institution of this suit, on the 23d 128day of June, 1873. During the long period of his possession and enjoyment of the said land as purchaser as aforesaid, a period of more than fourteen years prior to the institution of this suit, it greatly depreciated in value; so that on the 24th of September, 1873, when the testimony in this cause was taken, one of the witnesses (Joseph A. Jones) did not think it would bring more than six dollars per acre, if then publicly sold upon the usual terms; and another of the witnesses (J. ,B. Williams) did not think it would bring more than five dollars, if then sold at public auction under decree of the court, and on the usual terms of one, two and three years. If the infant owners of the land or their heirs are tobe subjected to the consequences of this great depreciation of its value, their loss therefrom would be immense, and they would be subjected to that loss by the act of their guardian, and as a result of a provision of law'made for their protection. Instead of a shield of defence for which it was intended, it would be converted into a sword of destruction. Dor if a stranger, instead of the guardian, had been the purchaser, there could have been no doubt as to his liability. Then is a court of chancery powerless to avert so great an evil and prevent so great a loss; to prevent wards from being made the victims of the act of their guardians ? If he had not become the purchaser, there would have been another, &c., competent purchaser at the same price, or a few cents less per acre. We are therefore of opinion that the purchase by the guardian, under the circumstances of this case, ought to be enforced in favor of the' owners of the estate, just as much as would have been a similar purchase by a disinterested person. But it is said that no report of the sale was ever confirmed by, or ever made to the court. That a report of the sale was made to the court, seems 129to be very clear. The bonds were certainly returned to the court, among whose scattered and confused records they were found after the war. It is not perceived how they could have been returned to the court but by the commissioner who took' them, or that they would have been so returned without a report, showing for what they had been taken, or why they were returned. Many of the records of the court were destroyed, and what were not destroyed were deranged and scattered by the federal army in April, 1865. It is not strange, therefore, that the report cannot be found. That such report was never expressly confirmed by an order of court made before the institution of this suit, may be a more doubtful question. That it never was, seems to be probable from the circumstances of the case. The chancery order-book of the court has been found, containing the orders entered from 1858 to 1868 inclusive, and no order has been found in that book, where it would probably have been, if anywhere, confirming the said sale. It may probably have been confirmed after 1863, and before the end of the war. Certain it is, that the purchaser might have had the report of sale confirmed at any time before the institution of this suit. Hone of the other parties interested in the land or the purchase money would have opposed it. He probably did not move in the matter because he did not choose, or was not ready to pay the purchase money, which he might have been required to do had he made any motion in the matter. The other parties interested in the land, who were mostly infants, or feme coverts, probably considered it the business of the guardian or commissioners. The commissioners were probably either dead or non-residents, or else waited for the action of the parties concerned, who were all members of the same family. That the purchaser considered himself bound 130by his purchase long after it was made, is shown by the fact that about the 1st of October, 1861, he tendered the amount of his first bond to J. E. Jones, the commissioner, who would not receive it; probably because it was Confederate money. And even after the war, and so late as the 12th of March, 1866, in a deed dated on that day from Street and wife to said Thomas W. "Williams, conveying to the latter the former’s interest in the estate of the said Eliza J. Williams, it is expressly stated that her land and slaves had “ been sold by a decree or decrees of the circuit court of the county of Hottoway, through its commissioner,” and full power was given to any person authorized to convey title to the land known as Vermont, (no doubt the tract of 450 acres aforesaid), sold as aforesaid, and purchased by said Williams, so far as the interest of said Street and wife were concerned. The appellant, Redd, who is the father-in-law of the said Thomas W. Williams, and one of his sureties and co-obligors in the bonds given for the deferred instalments of the purchase money of the said land, might, at any time, have had the question of his liability determined by the said court. If he had had any doubt on the subject he might, at any time, have called upon the court to confirm or set aside the said sale, but he did not choose to do so. He knew that his son-in-law was in the quiet and peaceable possession and enjoyment of the land, claiming it as purchaser as aforesaid. He has no more right now than has Thomas W. Williams to question the validity of the said sale. The third error assigned in the decree appealed from is: “Because it pronounces a sale firm and stable between the parties, when by the decree of April term, 1861, pronounced in the original suit of Williams’ guardian, &c., against Street and Wife, &c., the court had, in sum and substance, set aside said sale as null and void, and ordered a resale of said land.” 131"We do not think that the said decree of April term, 1861, had any such effect, or was intended so to have. In saying that the sales decreed by the former decree (of March term, 1859), had not been concluded, it was not intended to say that the sale of the laud had not been •concluded, but that the sales of the slaves and other personal property which had been also decreed to be sold had not been concluded. The said decree of April term, 1861, was “ by consent of parties by counsel,” and the plaintiff, Thomas W. Williams, would hardly have consented to a decree in April, 1861, affirming that the sale of the land to him was not concluded, and in October thereafter tendered to the commissioner the amount of his first bond .for the purchase money of the land. In regard to the fifth assignment of error in the decree appealed from: “Because it gives to the plaintiffs, E. 1\ Lyon and wife, one-ninth part of the alleged purchase price of said land, with interest from October 1st, 1859, when in fact, if entitled at all, they were only entitled to one-ninth of the principal thereof, with interest from the time at which William O. Williams would have arrived at the age of twenty-one years; and it does not appear when he would have so arrived, nor ivas this •enquired into by the court.” We think there is no error in the decree in this respect. The parties, doubtless, intended that the deferred instalments of the purchase money of the land, with interest from the 1st day of October, 1859, should be distributed among the parties entitled to the land in proportion to their interest therein. At the time of the decree of March term, 1859, Davis D. Williams was dead, having died in 1855 under age, unmarried and without issue; whereby his interest in the estate of his mother devolved equally on his brothers and sisters. After the rendition of that decree and the sale of the land made under it—to-wit, in 1863—William O. Williams was killed at the bat-132tie of Gettysburg, and was then also under age, unmarried and, without issue; whereby his interest in the estate-of his mother devolved equally on his brothers and sisters. In regard to the trust created by her will, in expressing a wish that the 450 acres of land aforesaid' should be worked for the benefit of her three youngest children (two of whom were her said sons, David D. and William 0., and the third was her daughter, Mary Augusta), and that it should be kept as a house and home for her single daughters until William O. Williams should be twenty-one years old, and then to be equally divided between said David D. and William 0., it was no doubt understood and agreed that those charges upon the use of the land antecedent to the period prescribed by the will forks division as aforesaid, should be otherwise satisfied! out of her estate. By a decree of the said court made on the 29th of March, 1858, among other accounts directed to be settled were an account of the administration of It. H. and T. W. Williams, as executors of said Eliza J. Williams; also an account of the administration of Joel B. Williams, as administrator de bonis non, with the will annexed, of said Eliza J. Williams; and also “ an account of the receipts and disbursements of the said executors, and of the said administrator in the administration of the land and personal estate set apart by the said testatrix fop the benefit of her single daughters and five youngest children, with a statement showing what would be a fair allowance to the three youngest children for the rent of said land.” In the decree of March term, 1859, for the sale of the said land, there was a direction that a commissioner of the court should ascertain and report “what will be a fair compensation to Martha Y. and Cornelia B. Williams for their right of residence in the mansion house in the bill mentioned.” The said Cornelia seems to be the same person with the appellee, C. B-133Lyon, wife of E. P. Lyon, in whose favor the decree appealed from was rendered. This case has been argued with great ability by the •counsel on both sides, who cited many books and cases in support of their respective views. The following, among others, were referred to: 1 Leading Cases in Equity, with Notes of Hare and Wallace, Fox v. Mackreth, and Pitt v. Mackreth; Davone v. Fanning, 2 John. Ch. R. 252; 2 Tucker’s Commentaries, 459; 12 Leigh, 1, Moore v. Hilton; 13 Gratt. 195, Daniel, &c., v. Leitch; 20 Id. 1, Howery v. Helms, &c.; 22 Id. 378, Cline's heirs v. Catron; Id. 573, Phelps v. Seely, &c.; 26 Id. 517, Zirkle v. Mc Cue, &c.; 27 Id. 812, Brock v. Rice, &c.; 6 Id. 339, Talley, &c., v. Starke's adm'r. But, without noticing them any further, it is sufficient to say that we think they 'sustain, while there is nothing in any of them in conflict with the foregoing opinion. Hpon the whole, we are of opinion that there is no error in the said decree, and that it ought to .be affirmed. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482023/	Christian, J. This case is before us, upon a petition filed by James Clarke, invoking the original jurisdiction of this court for a writ of habeas corpus. The petition and the record therewith filed show that the petitioner,. Clarke, is confined in jail under an execution (capias pro fine) issued upon a judgment of the hustings court of the city of Eichmond .for the sum of thirty dollars, the fine assessed by said court, and twenty-two dollars and five cents, the costs of prosecution on behalf of the commonwealth. It is further shown that the petitioner tendered to James M. Tyler, sergeant of the city of Eichmond, “a ■ coupon, which was due and past maturity, for thirty dol135lavs, which said coupon was cut from a bond of the state of Virginia issued under the provisions of the act of assembly passed March 30, 1871, commonly known as the funding bill,” and the sum of twenty-two dollars and five cents in money, that being the amount of costs. The city sergeant refused to receive the coupon tendered in payment of the fine imposed by the court. And thereupon Clarke applied to this court for a writ of habeas corpus, and insists upon his right to pay the fine assessed against him by the hustings court in a coupon of a bond of the state, and that upon such payment, with the costs of prosecution, he is entitled to his discharge from further imprisonment. This record, therefore, presents for our consideration the single question, Whether a fine imposed for a violation of law can be discharged in coupons, or whether it can only be demanded and paid in money ? - This is the same question which was elaborately argued at the January term of this court, in the case of Tyler, sergeant, v. Taylor, auditor. That case was argued upon a petition to this court for a writ of mandamus, to compel the auditor of public accounts to receive from the sergeant of the city of Richmond certain coupons which had been received by him in payment of a fine imposed on one Mayo for a criminal offence. In that case this court unanimously held that the writ of mandamus could not be issued against the auditor of public accounts because he was not the public officer whose duty it was under the I aw to receive fines collected by the city sergeant, and declaring that this court could only exercise its extraordinary jurisdiction by way of mandamus to compel a public officer to discharge a duty which the law imposed'him, and not on another; and inasmuch as the city treasurer, and not the auditor of public accounts, was the public officer whose duty it was to receive all fines collected by the city sergeant, the rule was 136discharged and the case dismissed without deciding the question on its merits. In that case it was said, and is repeated: “ This court is always ready and willing to decide, to the best of its ability, all questions however important or difficult, or however they may affect public or private interests, which are properly brought before it, no matter how great or far-reaching may be the responsibilities it must assume in such decision. But the court is not willing, nor is it any part of its judicial functions, to decide questions outside of the case before it, and thus constitute itself a moot court to determine abstract questions.” The question argued in the case of Tyler, sergeant, v. Taylor, auditor, did not arise upon the pleadings in the cause, and the court did not (for the reasons stated in its opinion) feel.called upon to decide an abstract question. But the same question now does arise properly upon the record in this ease, and the court is now prepared to meet the question and assume all the responsibilities which may attach to its decision, however it may affect individual or public rights, private or political questions. But the question we have to determine (however it. is sought to be connected with questions which are the subject, unhappily, of political agitation) is purely a legal question, to he determined upon well defined legal principles, and the rules of construction universally .recognized as applicable to-the statute laxo. It all depends upon the true construction to be given to the second section of the act approved March 30, 1871, entitled an act to provide for the funding and payment of the 'public debt. This section, after declai’ing that the owners of any of the bonds, stocks or interest- certificates heretofore issued by this state * * * may fund two-thirds of the amount' of the same * * * in six per centum, coupon or registered bonds of the state, &c., &c., contains the following provision : “The bonds shall be made 137payable to order or bearer, and the coupons to bearer, at the treasury of the state, and bonds payable to order may be exchanged for bonds payable to bearer, and registered bonds may be exchanged for coupon bonds, or vice versa, at the option of the holder. The coupons shall be payable semi-annually, and receivable at and after maturity for all taxes, debts, dues and demands due the state, -which shall be so expressed on their face.” The only question, then, we have to determine, is whether fines imposed for a violation of law, are included within the terms of the statute ? I say' this is the only question we have to determine, because the question of the constitutionality of the act above referred to, known as the funding act, has already been determined by this court. The case of Antoni v. Wright, sheriff, 22 Gratt. 833, settles this question. The same arguments against its constitutionality made in this case were urged in that. I refer to that case and adopt its principles and reasoning as a clear and conclusive exposition of the law, and am of opinion that this decision of the court declaring the constitutionality of the act of March 30, 1871, and declaring that any act of the legislature in conflict with the provisions of that act, so far as it may “ forbid the collecting officers of the state to receive in payment of taxes and other demands of the state anything else than gold or silver coin, United States treasury notes, or notes' of the national banks of the United States,” must be held to be an act “ impairing the obligation of a contract,” and therefore unconstitutional and void. This decision of Antoni v. Wright was recognized and reaffirmed in Wise Bros. v. Rogers, second auditor, and Maury & Co. v. Same, 21 Gratt. 169, and must now he held to be the settled law of this state. It is not necessary, therefore, and indeed it would be a vain and useless task, to attempt to go over again t-ie reasons which 138governed this court in coming to the conclusions then reached, and firmly adhered to ever since. I can only for myself, that after a careful consideration of all the views which have been presented on this question, opinion of Judge Bouldin, in Antoni v. Wright, is a lucid, able and conclusive exposition of the law, is one based upon judicial logic, and fortified by judicial authority, which makes it impregnable against every assault which may he made upon it. Adopting, therefore, the principles and reasoning in the case of Antoni v. Wright, we are left in this case to a single and very narrow enquiry, and that is, are fines imposed for a violation of law, included in the purview of the statute ? ■ One of the principal and universally adopted rules of construction of statutes, is, that in the enactment of statutes, the rule of interpretation is, in respect to the intention of the legislature, that where the language is explicit, the courts are bound to seek for the intention in the words of the act itself, and they are not at liberty to suppose or to hold that the legislature intended anything different from what their language imports. Pot. Dwaris on Statutes, p. 146. Words in a statute are never to be considered as unmeaning and surplusage, if a construction can be legitimately found which will give force .to, and preserve all the words in the act. The best rule by which to arrive at the meaning and intention of a law is, to abide by the words which the lawmaker has used. Dwaris, p. 179, note. Especially is this the case where the words used have no double or doubtful meaning, but are plain and explicit in their signification; for it is a rule of universal application that effect must be given to the words used by the legislature where there is no uncertainty or ambiguity in their meaning. Plow, the words used in the act we are called upon to 139construe, are as broad, explicit and comprehensive as any terms which could possibly be used. The act declares that coupons shall be receivable at and after maturity for ALL TAXES, DEBTS, DUES AND DEMANDS DUE THE STATE. Is there any uncertainty or ambiguity in these terms ? They all have a certain, definite, explicit and technical meaning. "We cannot discard any one of them as unmeaning and surplusage, but must, according to the rules of construction which bind the courts, give effect to all. We must suppose the legislature knew the ordinary meaning and legal force of the words which they.., used. If the provision of the act had been that these coupons should be receivable “ for all taxes and debts due the state,” there might be some room for doubt whether fines .were embraced; for although fines are recoverable by action of debt, and in a certain sense a fine is a debt due the state, yet it might be said with much force, if not conclusively, that the word debt refers to matters of contract, and that, therefore, a fine is not embraced in the meaning of the statute in the word debt. 13ut the words dues and demands are added. Shall we give no effect to these words of explicit meaning ? Can we take the liberty of striking these words out of the statute ? If we can, then the courts may override the powers of the legislature, and construe away any act it may pass. These words dues and demands are not uncertain and ambiguous, but have a certain, definite and explicit meaning. The word “due” is defined by Webster to be “that which is owed,” “that w'hich custom, statute or law requires to be paid;” and by Woreester, “ that which any one has a right to demand, claim or possess,” “that which can justly be required.” The word demand is a word of still larger significance, and more comprehensive meaning. Indeed, Lord Coke says, the word demand is the largest word in law, except claim. In 2 Coke upon Littleton, 291 b. he says “ demandum is a word of art, and in the understand140ing of the common law, is of so large an extent, as no other word in the law is, unless it be elamum, whereof maketh mention. § 445.” Webster defines “ demand,” “ the asking or seeking what is due or claimed to be due;” and Worcester, “a calling for a thing due 0r claimed to be due.” Flo words of more explicit or broader signification could have been used than these two words, “ dues and demands.” We cannot discard them, but must give them effect. Do they embrace fines ? I am bound by every rule of construction to say they do. A fine is something “ which the law requires to be paid;” and that is the meaning of the word “ dues.” A fine is a thing “due or claimed to be due” to the state, a liability which the state has a right to enforce and demand; and that is the meaning of the word “ demand.” I am, therefore, of opinion, that fines are clearly embraced within the meaning and the very words of the statute. The legislature has used words which by-their explicit, comprehensive and unmistakable meaning embrace fines, as well as taxes and debts. If after using the words “dues and demands” they had intended to exclude fines, how easy it would have been to have added the words “except fines” after the words “dues and demands.” But having used these broad and comprehensive terms, which by their common and explicit meaning embrace fines, and having used no words of exception, it follows upon every rule of construction that fines are embraced in the terms “dues and demands.” . This construction, which would seem to be free from all doubt, if it rests upon the language of the act, is objected to upon two grounds—First. It is insisted that fines are imposed as one of the potent means of punishing offences against the law, and that the offender does not satisfy the judgment of the court if he pays an amount less than the fine assessed against him, which he does, ií he may pay in coupons instead of money, (the coupons 141being at a discount). In answer to this view, it is sufficient to remark that the state has a right to say, and has said, in the act of her legislature under consideration, how her “ demands ” against her citizens shall be satisfied; how the liabilities “ due” to her shall be discharged. It might, with the same propriety and with equal force, be argued that debts and taxes due the commonwealth are not fully discharged by payment in coupons; and yet this is done every day under the statute law, sustained and enforced by the judgment of this court. But in point of fact, the judgment for the fine is discharged to its full extent, so far as the state is concerned, because the coupon represents the obligation of the state for the face value of the coupon offered in payment of the fine. Second. It is objected that fines are dedicated by the constitution and by statute enacted in pursuance thereof, to the literary fund for school purposes, and if the act under consideration embraces fines, to that extent it is unconstitutional: How, it is to be observed that neither the constitution nor any act passed in pursuance thereof, requires the collectors of the public revenues, nor the auditor, to keep separate and distinct each particular fine assessed against offenders, and pay it over as collected to the literary fund; but the requirement is, upon fair construction, to turn over to the literary fund whatever amount may come into the treasury from the source of fines, and dedicate that amount to the purpose indicated. This same argument was pressed most vigorously in the case of Antoni v. Wright (supra), and was answered, I-think, successfully and conclusively by the lamented Judge Bouldin, and I prefer to adopt his views, so clearly and ably put, rather than mar and weaken them by words or views of my own. He says: “ But it is argued that the contract in this case is void because it is repugnant to the 8th section, 8th article, and 3d section, 10th article, of the state 142constitution, dedicating certain portions of the state revellue to the support of free schools. ¥e think there is no conflict in this case. * * * It only requires that the obligations of succeeding legislatures shall be firmly met '> that there should be what the creation of every new debt imperatively demands, to-wit: an increase of taxation if the existing rate he insufficient. The argument is based on the assumption that subsequent legislatures will fail in their duty, and pursue such a course as may result in mal-appropriation of the funds referred to; that they will decline to meet faithfully the high obligation resting on them, and then rely on the irregular consequences of their owm default as an argument against the validity of the debt for which they will have failed to provide. The mal-appropriation which -would follow would not be the legitimate result of the funding act, but in effect would be the act of the legislature failing to discharge its duty. The obligation to provide for the interest due by these coupons is as high as the duty of applying the capitation tax and other funds to the schools. Both duties are alike obligatory, and both may he discharged, as there is no conflict between them. It is only by a failure to discharge the one that the performance of the other can be put in jeopardy, and it rests with the legislature by faithfully and fearlessly meeting both obligations, to preserve the plighted faith of the state and protect her constitution from violation.” After this opinion of the court,. delivered by Judge Bouldin, was announced, there was a motion for a rehearing submitted by the attorney-general, and the court held the case under advisement for several -weeks, anxious to correct its decision if it should appear in any respect to he erroneous, and to give to the case that calm and careful reconsideration which the gravity and importance of the questions involved required. After a candid and anxious review of the case, the court could 143find no reason to change its opinion, but was confirmed in the justice and reasons of its conclusions. In delivering the judgment upon the motion for a rehearing, Judge Anderson, in an able and exhaustive opinion, discusses the whole question, reaffirming and enforcing the views of Judge Bouldin; and in these views the same judges concurred as in the original decision. I mention this to show with what deliberation and care the questions involved in the case of Antoni v. Wright were' considered, and the futility of again considering those questions, except to reaffirm and adopt the principles of that case, so far as they apply to the case before us. 'With respect to the argument made in that case, as it was pressed in this case, that fines and other revenues were dedicated to the school fund, and therefore cannot be paid in coupons, Judge Anderson, in his opinion (22 Graft, p. 874), says: * * “It is said that those provisions of the constitution which set apart certain funds and a certain proportion of the tax for the public schools would be defeated by this legislation. It would seem to be a sufficient reply to say, that if it were impracticable to raise a sufficient amount of revenue for both purposes, the latter did not impose an obligation on the legislature paramount to the obligation to provide for the payment of the interest on the public debt. That was an obligation antecedent and paramount to the constitution itself, and could not be repudiated by the constitution if it had so provided. But it is not repudiated nor ignored; but the obligation is clearly recognized by sections 7, 8, 19 and 20, of Article 10, at least to pay Virginia’s proportion. And, furthermore, this being an obligation of ■debt, and not eleemosynary in its character, as are the other provisions referred to, and however desirable and important it may be that they should be carried out, I hesitate not to say this is of higher obligation. But there need be no clashing of duties here. 144It is only required that the legislature should levy a tax sufficient for both objects; a duty imposed on it by the It has not been the practice to set apart in the public treasury the identical money received for the public schools, nor is it required by the constitution nor the acts of assembly. And the legislature has discharged its constitutional obligation when it has set apart the required amount for that purpose.” These views, expressed both upon the first hearing and and the rehearing of the case of Antoni v. Wright, are applicable to the case before us, and must govern our decision in this case. Much has been said in the case before us about the sacredness of the school fund, and the paramount obligation of the state to educate the people. This is a great and high obligation, and no doubt will be faithfully and firmly met by the legislature. But however great and high this obligation, it cannot and ought not to be met at the sacrifice of other obligations equally sacred,’and other duties equally high and binding. A state, like an individual, must be just before it is generous. Ho honest man can or will abstract from his creditors what is justly due them, in order to give it to his children. Ho state, in order to educate its citizens, ought to withhold from its just creditors, that which has been pledged, by its honor and plighted faith, to the payment of its just debts. Both obligations must and will be met. The people must be educated, but they must not be educated at the price of repudiation and dishonor. Better would be ignorance than enlightenment purchased at such a price. In conclusion, I will repeat here the utterance of the unanimous voice of this court in the Homestead Cases, 22 Gratt. 301, which declared that “no state and no people can have any real and enduring prosperity, except where public faith and private faith are guarded by laws wisely administered and faithfully executed. The inviolability 145of contracts, public and private, is the foundation of all social progress, and the corner stone of all the forms of civilized society, where an enlightened system of jurisprudence prevails. Under our system of government it has been wisely placed under the protection of the constitution of the United States, and there it rests secure against all invasion.” It only remains for me to say that the petitioner has the right, under the law, to discharge the tine imposed upon him by the hustings court, with a coupon of a bond of the state, which the state has agreed to receive in payment of “all taxes, debts, dues and demands due the state," and that he must be discharged from further custody. Staples, J. The opinion just delivered by Judge Christian is an affirmance of the doctrines laid down in Antoni v. Wright. It was my misfortune to dissent, not only from the decision in that ease, hut the reasoning by which it was supported. Since that time the subject has received a full and exhaustive discussion in the public press, upon the hustings and in the legislature. That discussion and my own deliberate reflections have but confirmed my convictions of the soundness and justice of the views then entertained. I do not see, however, that any good can be effected by a further discussion of the question. Every one here present—every intelligent mind in the state—has, perhaps, reached some fixed conclusion upon the subject, and nothing that can now be said by myself or others will tend to change or modify that conclusion. I will not, therefore, now undertake to enter into any discussion of those points with respect to which it was my misfortune in the former case to differ with a majority of this court. This much may be said: If it is now to be considered as the settled rule of this court that every demand, debt, claim of the common146wealth, of whatever character or description, to the amount of one million and two hundred thousand dollai’s annually, may be paid in these coupons;- if the legislature, under no circumstances, has for the next thirty years Power t° diminish the rate of taxation, whatever may be the condition or necessities of the people ; if, during that time, whatever may be the public exigencies, the revenues of the state are irrevocably dedicated to the creditor; if, to such an extent and for such a time' the legislature has surrendered all control of the revenues and resources of the state beyond recall, then, indeed, has the government abdicated its functions, and the state is stripped of one of its most essential attributes of sovereignty. . "W e can form some faint idea of the magnitude of the surrender and of the principle involved in it vdien we remember that under the funding bill the entire public debt might have been funded but for the subsequent legislation arresting its operation. To all this but one answer has ever been given, and that is; it is the duty of the legislature to lay a sufficient tax each year to pay the creditor and cany on the government. To this it may also be answered, that no legislature ¡has the power to impose on succeeding legislatures such .a duty. However sti’ong the obligation of the public «debt may be, there are pei’iods in the history of eveiy state when no part of it can be paid; when the government creditor and individual creditor must consent to wait for a season; and of such periods as they arise the legislature, and not the courts, must he the judge. Instances of the kind are found in the late civil conflict between the north and the south, and in times of great financial distress and disaster, when the collection of debts is universally suspended; and others will hereafter, no ■doubt, occur when such a suspense is essential to the public safety. The amount of taxation the people can beai’— the mode and manner of imposing it—is a political ques147tiou to be determined by the representatives of the peopie, from time to time, as the public exigencies may re■quire. This is the essential principle of the governments under which we live—state and federal. It is the vital element of all representative governments. In the language of the supreme court of the United States a legislative body ■cannot part with its power by any proceeding so as not to be able to continue the exercise of them. It cannot abridge its own legislative power by making permanent and irreparable contracts in reference to matters of public interest. East Hartford v. Hartford Bridge Co., 10 How. U. S. R. 511, 535; see also State Bank of Ohio v. Knoop, 10 How. U. S. R. 408; Ohio Life Ins. and Trust Comp. v. Debolt, 16 How. U. S. R. 416; Burroughs v. Peyton, 16 Graft. 470. "With this brief discussion I am content to leave this branch of the subject, haviug already said,'perhaps, more than was necessary. It may be proper further to say that the precise question now before us did not arise and was not decided in Antoni v. Wright. It is true it was discussed both by Judge Bouldin and Judge Anderson; and while it is perhaps covered by their reasoning, it was not necessarily decided. It is, therefore, an open question. I agree that the funding act is broad enough to include fines imposed for the violation of the penal laws; and upon that ground I thought, and still think, it violates the seventh section of the eighth article of the constitution of Virginia. That section declares: “The general assembly shall set apart as a permanent and perpetual literary fund, the present literary funds of the state, the proceeds of all public lands donated by congress for public school purposes, of all escheated property, of all waste and unappropriated lands, of all fines accruing to the state by forfeitures, of all fines collected for offences 148committed against the state, and such other sums as the-general assembly may appropriate.” Will it be maintained that it is competent for the legislature, by any contract made since the adoption of the present constitution, to divert the funds mentioned in this section from the objects therein designated ? Take, for example, the proceeds of the public lands dedicated by congress for school purposes. If these lands, when sold by the state, may be paid for in coupons, are the proceeds set apart for the specific purposes prescribed by the constitution ? Are they not in fact indirectly appropriated to the payment of the public debt? The same is. true with reference to fines. Instead of being “set apart as a permanent and perpetual literary fund,” aecording to the requirement of the constitution, they will be applied to the interest on the public debt. There is. no practical difference between a law which directly hands them over to the state creditors, and a law which allows them to he paid in coupons. The answer to this again, is, that the legislature must increase the taxes, and supply the deficiency from other sources. But the question still arises, can one legislature divert a fund from the purposes of a trust under the-constitution, and rely upon another legislature to raise another fund from some other source with which to execute the trust. Suppose the succeeding legislature fails in its duty, what becomes of the constitutional requirement? The main design of the provision already cited was the creation of a fund beyond the reach of the legislature, in no wise dependent upon popular caprice for its preservation and application. It is very true that the fines have heretofore been paid into the treasury indiscriminately with other public dues, and so long as the whole ivas paid in money no injustice or inconvenience could arise. But now the question is presented in an entirely different aspect. Tor if the 149legislature shall pass a law, as it ought long ago to have done, carrying out this provision of the constitution and setting apart the fines for school purposes, under the present ruling of the court the act must be held unconstitutional, because the funding bill authorizes the payment of all state dues in coupons. And thus it is that an unconstitutional contract is made paramount to the constitution. One legislature, by an agreement with the public creditor, may appropriate to his claim a fund set apart by the constitution irrevocably for another purpose, and if succeeding legislatures fail to supply the deficiency from other sources, there is no remedy for the breach of trust and a palpable infraction of that instrument. I can never give my assent to these positions. It is the duty ■of the legislature, by taxation, to pay the indebtedness •of the state. It cannot for that purpose appropriate other revenues which by the constitution are placed beyond its control. Upon this point I think the argument of the attorney-general was unanswerable. It is said, however, that the duty of the state to pay its debts is of paramount obligation to that of providing for the education of its people; and the conclusion sought •to be deduced from this is, that the constitutional provision dedicating certain funds to the cause of education, leaving the public debt unpaid, is inoperative and void. The moi’al obligation of a state to pay its debts is not denied; but it has never been seriously contended by any •one familiar with the principles of our government, that this obligation can be enforced by law. If the people of the state do not voluntarily raise the means by taxation to pay the public creditor, there is no way of coercing them. If this be not so, the holders of the unfunded •debt will be very glad to know it, as they have not received one dollar of interest, and there is but little probability of their doing so in the present condition of .affairs. At the time of the adoption of the present con*150stitution the state was free to appropriate its revenues to-any objects whatever. It will scarcely be contended there was anjdhing to prohibit or prevent the dedication of the funds named in the seventh section to the cause of education. That section, when adopted, became the supreme law of the land; and no legislature could by a contract with a a creditor, or by any device or contrivance whatever, evade the force and effect of the provision. The contract, if it is to be so termed, was an usurpation, so far as it attempted to appropriate the school fund to the payment of the public debt. Bor these reasons I cannot concur in the opinion just delivered. Let me say in conclusion, however, I concur now, as-I did then, with what was said by Judge Christian in the Homestead eases; that is, “The inviolability of contracts, public and private, is the foundation of all social progress, and the corner stone of all forms of civilized society, wherever an enlightened jurisprudence prevails.” Good faith is as essential in states as in men. Neither can be just or permanently prosperous without it. Upon that subject my own voice, feeble as it is, can never have any uncertain sound. "When we speak of a contract, however, involving the public faith, such as the courts can enforce, we mean a contract sanctioned by the constitution and the principles of government under which we live. Believing that the funding hill is in violation of both, I am •for refusing the mandamus in this case.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482024/	Anderson, J. I fully concur in the clear and able-opinion of Judge Christian in this case, but deem it proper to present some additional views in support of his-just conclusions and in vindication of my opinion in Antoni v. Wright, which was assailed in the argument of this case. The court being unanimous in the opinion that fines are-embraced in the terms of the act of March 30, 1871, 151which provides that coupons shall be receivable in payment of “all taxes, debts, dues and demands” of the commonwealth, 1 will confine myself to the inquiry, is said act unconstitutional so far as it requires that coupons shall be receivable in payment of fines ? It is unquestionably true, and requires no learned and elaborate citation of authorities to show it, that an act may be unconstitutional in one or more of its provisions, and constitutional in all other respects. It is contended that the act in question is unconstitutional, so far as it authorizes the payment of fines with interest coupons, because it violates section seven of ardióle eight of the state constitution. That section is in the following language: “ The general assembly shall set apart as a permanent and perpetual literary fund the present literary funds of the state, the proceeds of all public lands donated by congress for public school purposes, of all escheated property, of all waste and unappropriated lands, of all property accruing to the state by forfeitures, and all fines collected for offences committed against the state, and such other sums as the general assembly may appropriate.” The ground of the unconstitutionality of the act as to fines as alleged, is that it is incompatible with the foregoing constitutional requirement that they shall be set apart, with the other funds designated, as a permanent and perpetual literary fund, and is a diversion of them from the purposes of the trust created by the constitution, and an application of them to other purposes. Is this so ? The constitutional requirement is, that fines, among other things, shall be set apart by the general assembly as a permanent and perpetual literary fund. The act of assembly declares that coupons shall, after their maturity, be receivable in payment of all taxes, debts, dues and demands of the commonwealth (not excepting fines). Unless the duty imposed by the constitution and that im152posed by the act of assembly are so incompatible and conflicting that both ..cannot' be performed, the latter is unconstitutional for the reason alleged. If both can stand together, both may be enforced, and the act cannot sa^ be unconstitutional, because it is incompatible with, the constitutional prolusion. The only question then is, can the general assembly comply with this requirement of the constitution, to set apart fines as a permanent and perpetual literary fund, when it has contracted with creditors of the commonwealth to receive their coupons of interest in payment of fines ? How can they be set apart ? The constitution does not appropriate the fines to the public schools. The requirement is that they, with other things, shall be set apart as a permanent and perpetual literary fund, and by section eight, that the general assembly shall apply the annual interest to the public schools. It is evident that they must be set apart in a way which will yield an annual interest, otherwise the requirement to apply the annual interest to the public schools could not be fulfilled. And if the fines, as they were collected, were applied to the schools, they would be consumed in the use, and could not be set apart as a permanent and perpetual literary fund, from which an annual interest would arise to be applied to the schools. For the same reason, to separate them from the other revenues by locking them up in strong boxes, whereby they could yield no interest, would not be in accordance with the design and spirit of the constitution. And moreover it would not be for the encouragement of education. By the law, as it now stands, all moneys designed to be set apart for the “board of education,” a name sub- . stituted for the “ literary fund,” are to be paid into the public treasury upon the warrant of the second auditor. 153And evei'y wai’rant is required to express the head of general revenue or expenditure on account of which the money is received or paid; and distinct accounts are required to he kept in the second auditor’s office of the receipts and expenditures of the board of education, the boai’d of public works, and of each of the corporations composed of officei’s of the government, of the funds and property of which the state is sole owner. And the treasurer is required to keep separate accounts of the money belonging to the literary fund, to the fund for internal improvement, to the sinking fund, &c., showing the receipts and disbursements on account of each. (See Code of 1873, chap. 43, sections 23, 25, 26, 27, 32 and 35.) Such was the law at the time the present constitution was being framed, and when it was adopted; such it is now, and such ithad been for many years prior to the making of the present constitution. Funds which were required to be set apart for the literary fund, and the other corporations •which were composed of officers of government, of whose funds and propei'ty the state was sole ownei’, were not required to be kept separate from each other, or from the other revenues of the commonwealth, but were required to be paid into the public treasury, the money of each fund and of the general revenues being mingled together undistinguishably. Indeed, it could not be otherwise, because all the moneys to be paid into the treasury, whether upon the warrant of the first or .second auditor, were required by law to be paid into one of the banks of the city of Kichmond (Ibid. § 7), and the bank became debtor to the commonwealth for the amount deposited. And a person bound to pay money into the treasury could not make a valid payment in any other way (§ 8), and all moneys so paid stand on the books of the bank to the credit of the treasurer of the state, and 154can only be drawn on Ms check, and not even upon his check unless it be drawn upon a warrant issued by one the auditors (§ 9), which indicates whether it belongs to either of the funds aforesaid, and to which. Upon the books of the bank the lines paid in stand to the credit of the treasurer, just as all other funds or revenues of the commonwealth do which are paid into bank, that is, into the treasury. But upon the books of the second auditor and of the treasurer, fines and other things which are required to be set apart as a literary fund, are debited to the commonwealth to the credit of the literary fund—now the board of education, ¡áo that, whilst; the bank is debtor to the commonwealth for the-whole, the commonwealth is debtor for so much of it as-belongs to the literary fund, to the board of education. Under the law as it- was when the constitution was framed, and for many years before, and as it now is, fines, when collected in money, would be paid into the public treasury, as other moneys, but would be debited to the commonwealth, to the credit of the literary fund; and thus were set apart as a literary fund. And so if they never reached the treasury, but were paid to the collecting officer in coupons, the’ commonwealth is debited with them to the credit of the.board of education. And it is a matter which does not affect in the slightest manner the rights or interests of the board of education, whether the fines are paid to the commonwealth in-money or in coupons, for in either case the board of education has no claim for the specific thing which the-commonwealth received in satisfaction of the fines, but only to the amount for which the commonwealth chose to become debtor to tbe board. The fines w-ere due to the commonwealth. It is only those that are due to the commonwealth that are required to be set apart as a literary fund. And they are paid into the treasury, just as all other dues of the common155wealth, and are a part of her general revenues until they are set apart for a specific object. To set apart is not the same as to invest. The general assembly is required to set apart. The board of education has no power to set apart any of the revenues of the commonwealth as a literary fund. So such pow’er is given it by law. It is a power which the legislative department alone is invested with. And the constitution expressly requires the general assembly to set apart fines and certain other revenues of the commonwealth as a literary fund. This cannot, therefore, be done by the board of education. But after they are set apart by the general assembly for the specific object aforesaid, the board is authorized to invest them. By the Code of 1873, chapter 78, § 7, it is authorized and required to invest all the capital and unappropriated income of the literary fund (of course that which has been set apart for it by the general assembly) in certificates of debt of the United States, or certificates of debt of, or guaranteed by this state, or in railroad bonds of a certain description, and may call in any such investments, or any theretofore made, and reinvest them as aforesaid, whenever deemed proper for the preservation, security or improvement of the said fund. The power, I have said, to set apart fines and other revenues as a permanent literary fund which the board of education is authorized to invest, is vested in the general assembly. The power to set apart carries with it the power to determine in what mode the thing shall be set apart where no particular mode is prescribed in the power. This power has been executed by the general assembly in the regulations which have been made by law for receiving, keeping and disbursing the public revenues, already described. They prescribe the mode by which all revenues of the commonwealth, including fines and the other revenues which the constitution requires 156the general assembly to set apart as a permanent and perpetual literary fund, shall be paid into the treasury, how they shall be disbursed. Those designated by the seventh section, when they are paid into the treasury, are required to be debited to the commonwealth to the credit 0f the literary fund in both the second auditor’s and treasurer’s offices. This is the mode prescribed by law, by which they are distinguished from the other revenues, and set apart as a literary fund, and the only mode that was ever observed in this state for setting apart a portion of the revenues of the commonwealth for a specific object. It is thus effectually set apart, for it can be disbursed only upon the second auditor’s warrant, and only for the benefit of the literary fund. These regulations were in force long before, and when the constitution was adopted, and the provisions contained therein requiring certain revenues to be set apart as a literary fund, must be taken as made wfi’th reference to the existing regulations on that subject, and that the terms “ set apart” were used in the sense in which they had always been accepted in this state, and that the framers of the constitution, when they required the general assembly to set apart certain revenues as a permanent literary fund, contemplated that they would be set apart in the mode in which portions of the revenue, including fines, had always been set apart for specific objects, and that they did not thereby intend to overturn and render unconstitutional the whole system which had long been established by law for regulating the receiving, keeping and disbursing the public revenues. I hold that the constitution cannot fairly be so construed, and that the regulations which have been prescribed by law for paying fines and other revenues into the treasury, which were designed to be a permanent literary fund, and for distinguishing them from other revenues in the treasury, and setting them apart as a permanent literary fund, and 157for disbursing them for the benefit of the literary fund, are valid and constitutional. Let us now briefly notice its practical working. state collects fines' and other dues of the commonwealth, which the constitution requires the general assembly to set apart as a literary fund. They are paid into the treasury upon the warrant of the second auditor, and are debited to the commonwealth, to the credit of the literary fund, in the offices of both the second auditor and the treasurer. They are thus distinguished and set apart from the other revenues as a literary fund, as we have seen, according to the requirements of the constitution. Afterwards the board of education, by authority of an act of assembly, determines to invest the amount, which is to the credit of the literary fund, in certificates of debt of the United States, or of this state, or in railroad bonds, and applies to the second auditor for a warrant on the treasury for the same. But there is no money in the treasury to pay it. Is it a matter of any consequence to the board how much, or whether any of it was received in money, or how much of it was received by the commonwealth in coupons, since the commonwealth is debited with the whole of it to the credit of the literary fund ? And as there is no money in the treasury to pay it, it would have been no better if all of it had been paid into the treasury in money. So it is obvious that the inability of the treasurer to pay the money to the board is not caused by coupons being receivable in payment of taxes and other dues of the commonwealth. The result would have been the same if coupons had not been so receivable, and the whole had been paid into the treasury in money, but had been disbursed in the payment of interest or other demands on the treasury before the board applied for payment. Uo matter, therefore, in what medium the state received payment of the fines. By requiring them to be 158paid into the treasury, and debiting the commonwealth ■ with, the amount as received, to the credit of the literary which we have seen is prohibited by no constitutional inhibition, and by providing for the payment of the annual interest thereon to the schools, she fulfils the requirement of the constitution. Her receiving payment of fines in coupons is consequently no diversion of a fund dedicated to the schools. If she received payment in money it would' be all the same, so far as the literary fund or the schools are concerned; for in either case the state would debit herself with the amount, and the schools or the board of education would have to look to the state for payment, and not to any specific fund. ‘Whether the money received for fines, in common with other revenues, was used in' paying interest on the public debt, or in the payment of governmental expenses, it would not be diverting it from any purpose to which it was dedicated hv the constitution, it having been set apart as a literary fund by the commonwealth, debiting herself with it to the credit of that fund. For if the fines were collected in money and applied to the payment of school quotas, it would be using them for a purpose to which they were not specifically dedicated by the constitution, for only the annual interest was dedicated to that purpose. But it may be said that the board of education is authorized by law to receive the principal and to invest it; but the constitution does not invest the board with a right to the specific fine, so as to divest the commonwealth of the right to receive it. It is the property of the commonwealth, who alone has the right to collect and to give acquittances and discharges against it. It must he paid to the commonwealth. It must be paid into the public treasury. It must be set apart by an act of the general assembly as a literary fund, and then the law authorizes its investment by the board of education, 159and after it is so set apart the commonwealth is still the sole owner of it, as she is of all the funds and property of the board of education, and the other which are composed of officers of the government, the funds and property of which are the sole property of the commonwealth. For these reasons the commonwealth’s receiving payment of fines in coupons, and debiting herself ’with them to the credit of the literary fund, is not a diversion of funds dedicated by the constitution to the literary fund, or to the public schools, and is no violation ■of the seventh or eighth sections of article ten of the ■constitution. But if the foregoing view is erroneous and untenable, ■■and said seventh and eighth sections must be construed :so as to inhibit the general assembly from appropriating ■so much of the revenues of the state as are practicable to be raised to the payment of the interest of the public debt, as shall be necessary for that purpose, by dedicating them to the support of a public school system, which is introduced by said constitution, then the grave question arises, are they not, to that extent, in conflict with the constitution of the United States ? The act making in.terest coupons receivable in payment of all taxes and ■other dues of the commonwealth (not excepting fines) is only an appropriation in advance of so much of the revenues of the state to the payment of the interest, after it is due, as will be necessary for that purpose, in fulfilment of a high constitutional obligation, and if the provisions of the constitution in question are repugnant to that act because it necessarily absorbs in the payment of interest the funds of the commonwealth which are dedicated by said provisions of the constitution, as contended, to the schools, but which are indispensably necessary for the payment of interest, do not those sections of the constitution, as thus construed, obstruct the fulfilment by the 160state of its solemn obligation to pay the interest it owes its creditors and impair the obligation of her contract ? Ho one has ever doubted that the state constitution, so far as it does not conflict with the constitution of the United States, is the supreme law to the courts of that state as well as to every other department of the government of that state. But I will not stop to argue so plain a proposition, though it seemed to be contraverted in the argument of learned counsel that if any of its provisions are in conflict with the constitution of the United States, the courts are bound to disregard the former, and to give effect to the latter. Article VI, section 2, of the latter declares; that “this constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties, made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” And if this constitution has-inhibited what a state has ordained by her constitution, or enacted in the course of ordinary legislation, how can a judge, who has sworn to support the constitution of" the United States with the foregoing clause as part of it, disregard the inhibition and enforce the state law which is inhibited ? By Article I, section 10, no state “shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” And it is well established doctrine that the inhibition extends to the organic law as well as. to ordinary legislation of the state. It was so held by this court, unanimously, in the Homestead cases, and the constitution itself, in the latter part of the clause cited, supra, expressly so provides. In the face of this inhibition in the constitution of the United States, which Virginia has adopted as her supreme law, was it competent for the framers of her present 161constitution to assemble in convention, with a just debt resting upon the state, which they acknowledge, and devise and institute a splendid and costly scheme charity, for the education of all the children in the state between the ages of five and twenty-one years, white and colored, and to pledge the resources of the state to its execution in advance, so as to divest the state of the means and the ability, as is claimed it does, of paying the interest she owes her creditors and fulfilling her obligations of pre-existing debt ? Can there be a question in the judgement of a fair minded man, that those provisions of the constitution, as thus construed, would and do impair the obligation of the state’s pre-existing contracts ? That the obligation of the debt was pre-existing appears from the fact that the whole debt embraced in the act of 30th March, 1871, and recognized by that act existed prior to April, 1861, the beginning of the war, and the constitution was framed and submitted to the vote of the people in 1869. And the fact that Virginia, in that settlement, assumed only two-thirds of the debt, with the consent of the creditor, could hardly be relied on to show that for the part of it which she recognized and assumed there was not an existing liability prior to the formation of the present constitution. The fact is, there ivas a pie existing and acknowledged liability on her for the whole debt at the date of the constitution, and it was a legal liability (see Higginbotham v. The Commonwealth, 25 Gratt. 627), from one-third of which she is, in effect, relieved by the settlement in question. But she gave additional security for so much of the original debt as she assumed in the settlement, in the shape of coupons, for the interest receivable in payment of taxes and other dues of the commonwealth. Does that show that there was not a pre-existing obligation on the state, at the date of the constitution, for at 162least two-thirds of the debt, which is now claimed by the creditors ? As well might it be said that, because a gave a mortgage to secure an old debt, he was under no prior obligation to pay it. But, in fact, at the date of this constitution, there had been no settlement, and the state was legally bound for the whole debt, and had previously acknowledged her obligation by the act of her legislature; and that obligation arose under contracts which antedated the war. If, therefore, the said seventh and eighth sections of the constitution are in effect such as they are claimed to be; if they have pledged the resources of the state, as claimed, which .were necessary to fulfil its pre-existing obligations to its creditors, for the gratuitous education of the children in the state, however desirable it is that they should be educated, those sections, so far as that is their effect, fall within ' the inhibition of the 10th section of Article I of the constitution of the United States, before recited, because they impair the obligation of those contracts. And hence, in my opinion in Antoni v. Wright, concurred in by the court with only one dissenting voice (22 Gratt. 833), in reference to the objection that those provisions of the consti•tution which set apart certain funds and a certain part of the property tax for the public schools, would be defeated by the act in question, I remarked: “It would seem to be a sufficient reply to say that if it were impracticable to raise a sufficient amount of revenue for both purposes, the latter did not impose an obligation on the legislature paramount to the obligation to provide for the payment of the interest on the public debt. That was an obligation antecedent to and paramount to the ■constitution itself, and could not be repudiated by the constitution if it had so provided.” But if the said constitutional provisions for the institution and support of the public schools have been rightly construed in this opinion, and can be carried out in sub163•ordination to the higher obligation of providing for the payment of the principal and interest of the public debt, 'those provisions, so understood, could not impair the obligation of contract, and consequently are not in this ■aspect of the case in conflict with the federal constitution. It is only when they are held to impose obligations on the legislature, or to invest it wdth the right and ■authority to divert the resources of the state from the payment of the public debt, by devoting them in advance to the public schools, and thus to impair the obligation of the. state's contracts, that they can be held to be violative of the constitution of the United States, and void. There is undoubtedly an obligation imposed on the .general assembly, by sections 7 and 8 of article 10 of the state constitution, to constitute a permanent and perpetual literary fund, and to apply, as may be implied (it is not expressed), the annual interest thereon to the public schools. And the state may prefer to hold the fund herself, aud pay the annual interest on it to the schools, to having it invested in other securities, which would be no infraction of any provision of the constitution. And if there is anything in the provisions of the act of March 30th, 1871, which conflicts with section 7 of chapter 78 of Code of 1873 (supra), which requires the capital and unappropriated income of the literary fund to be invested in a particular way by the board of education, the foi’mer being the more recent act of the assembly, must supersede the latter wrhere there is any such conflict. This is a well established principle. There is also an obligation on the general assembly to provide for the payment of the interest on the public debt. Which is entitled to the precedence? Which is the higher obligation ? In the opinion already cited, I said: “ This being an obligation of debt, and not eleemosynary in its character, as 164are the other provisions referred to, and however desirable- and important it may be that they should be carried out,, I hesitate not to say that it is of higher obligation.” But whilst the distinction is recognized, and the higher obligation is conceded, we are told that it is a distinction which it is beyond the province of the court to consider; that the difference is only in morals, and is not recognized by our state constitution, beyond which we cannot look. In our complex form of government, as we have-seen, the courts are bound to have respect to, and take cognizance of, the federal as well as the state constitution. In fact, to regard the former as the supreme law% which invalidates—renders null and void—any law of the state which impairs the obligation of contract. How, it was claimed in argument, that the state constitution imposes an equal if not higher obligation on the state to-carry out the provisions for the schools. In my opinion it cannot be so regarded, neither in morals nor in law,, in viewr of the relations of the state to the constitution of the United States, which distinguishes between the obligations wm are now considering. "Whilst .it inhibits, a state from passing a law which impairs the obligation of contract, a law in conflict with the provisions made-by the state constitution for the public schools would not fall wdthin the inhibition. The state might, in convention, or in any other mode provided for changing the constitution, abrogate and annul the provisions it contains for the public schools without inhibition from the federal constitution, hut it could make no provision for impairing the obligation to pay its debts. And the reason is because the obligation in the former case is not a contract within the meaning of the 10th section of article 1 of the federal constitution. Consequently, if the revenues which have been set apart for the schools are necessary, in fulfilment of the contracts of the common*165wealth, to he applied to the payment of the interest on the public debt, so to apply them is not prohibited by the ■constitution of the United States; whilst to set apart by the state constitution, or by an act of the legislature, a portion of the revenues of the state for the schools, or as a literary fund, which are necessary to enable the commonwealth to fulfil her obligations of contract, and without which it would be impracticable for her to fulfil them, would he a plain violation of the federal constitution, because it would he a law of the state which impairs the obligation of contract. Hence the distinction is not only moral but legal, and the consideration of it in this case is clearly within the legitimate province of the court, •and a part of its duty. For the foregoing reasons, and those stated by Judge Christian, I fully concur in his opinion and in the .judgment of the court. Burks, J., concurred in the opinion of Christian, J. The writ awarded.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481751/	Staples, J., delivered the opinion of the court: The court is of opinion that a «’editor extending the laud of his debtor under an elegit, stands, in judgment of law, as if he had taken a lease for years in satisfaction of his debt; and, by virtue of such extent, he acquires a title to the premises which may be the subject of adjudication in this court, within the true intent and meaniug of the constitutional provision conferring jurisdiction *204upon the Supreme Court of Appeals in controversies concerning the title or boundaries of land. The court is further of opinion, that the officer exer ? cuting a writ of elegit does not deliver to the creditor ac£uaj possession of the premises, but only the legal possession, which may be enforced by ejectment, or, at the option of the creditor, by writ of unlawful entry and detainer, where the cause of action has accrued within three years. If after such extent the possession of the premises is withheld by the debtor, or some one claiming under him, the tenant by elegit has the right to recover the same by action, and to hold over even after his term has expired. The court is further of opinion, that the plaintiff in ■error, by virtue of his writ of elegit executed, was entitled to the possession of the premises in controversy at the time of the emination of his writ; and as the said tenement was withheld by a party claiming under the debtor, and with his consent, the plaintiff’s right of recovery was not affected or impaired by the expiration •of the term before the trial of the action. The court is therefore of opinion, that the judgment of the Circuit court of the city of Richmond is erroneous, and that the same should be reversed and annulled. It appearing, however, by the admission of the plaintiff in error, that he has been satisfied his debt since the writ of error and supersedeas was awarded, the court deems it necessary to render judgment only for the costs incurred by the plaintiff in error. Judgment reversed.	01-04-2023	11-07-2022

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