tion were spoken." In this decision of the Circuit court, it seems to this court there is no error. 1851. July Term. Eidson. It further appears from the second bill of exceptions, Bourland that at the trial "the defendant, as to the words in the declaration mentioned as imputing to the plaintiff a theft of an order on Stofer, offered evidence to prove the circumstances under which the plaintiff became possessed of the order on Stofer, and his whole conduct in relation thereto, and to shew that, although not justifying the speaking of the words in the declaration mentioned as importing theft, those circumstances and the conduct of the plaintiff were in themselves highly improper, and such as were calculated justly to excite the defendant and to arouse his suspicions: But that the court being of opinion that such evidence was inadmissible under the plea of not guilty, which was the only plea in the cause, refused to admit the evidence." And it seems to this court, that if this bill of exceptions is to be understood as importing that the evidence offered, as therein mentioned, neither proved nor tended to prove that the plaintiff was guilty of stealing the order on Stofer, but upon the whole relieved him before the jury from all imputation of such guilt, then that the Circuit court erred in rejecting said evidence. But if, on the contrary, the bill of exceptions is to be understood as importing that the evidence so offered did prove or tend to prove that the plaintiff was guilty of such theft, so as to leave him before the jury unrelieved from all imputation of that crime, then that said evidence was properly rejected by the court. some of the members of this court are of opinion that the bill of exceptions justly bears the former interpretation, others think that the evidence offered is not set forth with sufficient certainty to free it from the latter, and therefore that the bill of exceptions is too imperfect to enable us to determine what was the precise And while 1851. July Term. Bourland V. Eidson. question intended to be presented, and that the judgment ought for that reason to be reversed. It is therefore considered by the court, that the said judgment of the Circuit court be reversed and annulled, and the verdict of the jury set aside, with costs to the plaintiff in error. And the cause is remanded to the Circuit court for a new trial to be had therein, which new trial is to be governed, so far as applicable, by the principles above declared. Lewisburg. 1851. July Term. MAYS v. SWOPE. (Absent Cabell, P.) August 25th. Though the vendee of land has abandoned possession for a technical defect of title, yet upon a bill to enjoin the collection of the purchase money, if the vendor can make a good title at the time of the decree, the vendee is bound to take it. This was a bill filed by Edwin Mays in the Circuit court of Greenbrier county, against Jonathan Swope, to enjoin a judgment for 300 dollars, with interest and costs, recovered by Swope against Mays in that court. The bill charged that this judgment was for part of the purchase money of a tract of land in the county of Monroe That the complainant had discovered since the purchase of the land that Swope had no title to it, and complainant had therefore left the land of which he had taken possession under the contract. The injunction was granted. Swope answered, insisting he had a good title; but if it was defective, he could and would at any time, if the complainant had suggested the defect, have had it supplied. There seemed to be no doubt that the land had be longed to Adam Swope, of Pennsylvania. That he, by his will, which was duly admitted to probat in that State, had authorized his executors to sell the land: and that the executors had, by deed bearing date the 5th of December 1825, conveyed it to Jonathan Swope, who had been in undisputed possession of the land until he sold it to B. Perkins in 1840; which contract was rescinded, and he then remained in undisturbed possession until he sold to the complainant in September 1847. The ground of objection seems to have been that the will had not been admitted to probat in this State, and the executors had not qualified as such here. Whilst the cause was pending, the will was admitted to probat in the County court of Monroe, and Samuel A. Swope qualified as administrator with the will annexed; and he then, on the 17th of December 1849, conveyed the land to Jonathan Swope; and he and his wife, in April 1850, executed a deed by which they conveyed it to Mays; and the same was acknowledged before two justices of the peace so as to be ready for admission to record. The cause came on to be heard in May 1850, when the court held, that as the defendant had, since the filing of the bill, procured a conveyance of the legal title to the land sold to the plaintiff, and had executed to him a deed therefor, the injunction should be dissolved, but without damages, and with costs to the plaintiff. From this decree Mays applied to this court for an appeal, which was allowed. Price, for the appellant, insisted, that Swope had no title to the land when he sold, and until the purchase was abandoned by Mays, and therefore it was not a 1851. July Term. Mays V. Swope. 1851. July Term. Mays V. Swope. case in which he would be allowed time to perfect his title. He referred to Garnett v. Macon, 6 Call 308; 2 Story's Equ. Jur., § 776, note 1. Caperton, for the appellee, insisted, that a court of equity will enforce the contract of purchase if the vendor can make a title at the decree. He referred to Hepburn v. Dunlop, 1 Wheat. R. 179; Hepburn v. Auld, 5 Cranch's R. 262; Taylor v. Longworth, 14 Peters 172; Sugd. on Vend., p. 430, 431. 1. R, the committee of a lunatic, was summoned to give counter security, as appeared by the order of the County court. The order then proceeds: "Whereupon the said R appeared in court and acknowledged notice of the motion, and with K and B gave the security as required by the above order, condition as the law directs, which bond was duly acknowledged by the parties thereto, and ordered to be certified." In fact the bond produced was not a bond for counter security, but was a new bond, and though B signed it, his name does not appear in either the penal part or the condition, but there is a blank in the penal part after the name of K. HELD: 1st. That the bond, acknowledged and certified as this was, became a part of the record, and is to be taken and construed with the order, as shewing what was required by the court, and therefore it must be taken that the court required the committee to execute a new bond. 2d. That it is the bond of B, though his name is not in either the penal part or the condition. 2. In a suit against several the bill is dismissed as to one; but before the case is decided as to the others, the plaintiff files a bill to review the decree, and the defendant answers. The case on the bill of review is not set for hearing, nor is the decree sought to be reviewed set aside, but the original cause is brought on to be heard without noticing the other case at all, and the court decrees against the defendant as to whom the bill had been dismissed. HELD: This is no cause for reversing a decree right upon the merits. In May 1828 John Rader was appointed by the County court of Rockingham the committee of David Homan, a lunatic, and executed a bond with Richard Pickering and David Bowman as his sureties. At the June term of the County court in 1836, on the motion of David Bowman, an order was made that John Rader be summoned to appear at the next court to give said Bowman counter security. The entry of the order then proceeds: "Whereupon the said John Rader appeared in court, and acknowledged notice of the motion, and with Joseph Kratzer and Abraham Beery gave the security as required by the above order, condition as the law directs; which bond was duly acknowledged by the parties thereto, and ordered to be certified." The bond executed by these parties, though it was signed and sealed by Beery, does not contain his name in either the penalty or condition; but there is a blank after the name of Kratzer, in the penalty. Moreover it is not a bond for counter security, but is in the form of a new bond of a committee. Some time subsequent to 1836, probably in 1843, though the record does not state the time, Rader was removed from the office of committee of David Homan, and Abraham Lincoln was appointed in his place. And in 1844 Lincoln instituted a suit in the Circuit court of Rockingham county against Rader, Kratzer and Beery, for the purpose of recovering the lunatic's estate which went into the hands of Rader. VOL. VIII.-4 1851. July Term. Beery V. Homan's committee. |