would have to fail before said Thomas Davis could be liable. Albert G. Davis stated that Hogue informed him he had furnished Robert Davis money to buy cattle, and intended to do so as long as he wanted to do business, and that he was to have a share of the profits arising from the business. That this was before said. Davis absconded, and after the witness had understood they had gotten money out of the bank at Morgantown. It was proved that after the note was protested and returned to the bank at Morgantown several of the endorsers, including Hogue, came to the bank for the purpose of making arrangements for its payment. They first proposed to give a bond for the whole amount, and the bond was prepared and some of them signed it. They arranged to borrow some four or five hundred. dollars from a Mr. Hanway to aid them in the payment; and a note was prepared and taken away by them but was not returned; and they all left the bank without making arrangements to take up the original note. Shortly afterwards some of the sureties informed Mr. Hanway they had ascertained that the note was not of such a character as they had supposed; and that they would not be liable, as they believed, until the property of Bushrod Q. Hogue was exhausted; and that they declined taking the loan. On the same day they were at the bank, James T. Davis, one of the endorsers, had a conversation with the cashier of the bank, and that of ficer understood from him that although they might not be legally bound to pay any part of the note, yet they were joint endorsers with Hogue, or something to that effect, and did not intend to take any advantage of him; and that they considered themselves equally bound with Hogue, as the cashier understood him. It seems probable that neither Hogue or the endorsers knew the difference between the note payable as it was and a joint endorsement of it. 1851. July Term. Hogue V. Davis & als. 1851. July Term. Hogue V. Davis & als. The Circuit court gave the plaintiffs a judgment against the defendant for 1179 dollars and 38 cents, with interest from October the 6th, 1846, until paid, that being the balance due upon the note, after applying thereto the proceeds of certain property of Robert Davis, which the plaintiffs had been compelled to pay. And thereupon Hogue applied to this court for a supersedeas, which was allowed. A. F. Haymond, for the appellant. Grattan, for the appellees, referred to Chalmers v. McMurdo, 5 Munf. 252; Farmers Bank v. Vanmeter, 4 Rand. 553; Bank U. S. v. Beirne, 1 Gratt. 234; McDonald v. Magruder, 3 Peters' R. 470. BY THE COURT: The judgment is affirmed. 1851. July Term. Lewisburg. CALES V. MILLER & al. (Absent Cabell, P.) July 19th. 1. A party offering in evidence a deed purporting to be executed by a commissioner under the decree of a court, and conveying land, must offer with it so much of the record of the cause in which the decree was made as will shew the authority of the commissioner to convey the land described in the deed. 2. A deed executed in 1799, which shews upon its face that the parties to it resided out of the State of Virginia, was properly acknowledged before the mayor of a city in another State, and the certificate of the mayor, describing himself as such, and purporting to be under the seal of the city, was a sufficient authentication of the deed to authorize its admission to record. 3. In such a case the certificate of the acknowledgment of the deed by the grantor before the mayor of the city is sufficient evidence that the grantor, for the time being, resided in the said city, though the deed on its face described him as being a citizen of another State. 4. It seems that a residence, however temporary, is sufficient to authorize the acknowledgment of a deed there, by a nonresident of Virginia, under the act of 1792, ch. 90, § 5. 5. The caption of a deposition describing it as taken in a proceeding of forcible entry and detainer, is sufficiently accurate to authorize the reading of the deposition, though the proceeding is for an unlawful detainer. 6. A bond with condition to convey land of which the obligor had neither title or possession passes nothing. And a decree in a cause between the parties, for a conveyance of the land by a commissioner, and his conveyance, passes nothing; none of the parties ever having had either title or actual possession. On the 29th day of February 1848 John Miller and Joel McPherson made complaint before a justice of the peace of the county of Greenbrier, that James Cales had unlawfully turned them out of possession of a certain cabin and tenement containing about forty acres, on the end of Chestnut mountain, part of a survey or tract of eleven hundred acres, in the county aforesaid; whereof they prayed restitution. A warrant was thereupon issued by the justice, directing the sheriff to summon a jury for the 18th of March, and to give notice to two justices at least, to attend at that time. This was done, and the cause was regularly continued from that time until June 1848, when it came on to be tried. In the progress of the trial the plaintiffs introduced as evidence a deed from Jacob Maddy to John Miller, bearing date in the year 1846, by which, in consideration of 40 dollars, Maddy conveyed to Miller one moiety of a tract of eleven hundred acres of land, lying in the county of Greenbrier, on New river, above and below the falls of the river. The plaintiff's also offered in evidence two decrees, which purported to be decrees of the Circuit court of Greenbrier, the first made at its May term 1842, in a cause therein depending, in which Jacob Maddy and Richard Thomas were plaintiffs and 1851. July Term. Cales V. Miller & al. 1851. July Term. Cales V. Miller & al. Samuel Fox was defendant. This decree, after directing the defendant to pay to the plaintiffs certain sums of money therein specified, being for the purchase money of the land thereinafter mentioned, provided that if the money was not paid within ninety days a commissioner named should proceed to sell the tract of land mentioned in the bill, &c.; and that he report his proceedings to the court. The second decree was made. at the May term 1843, and came on upon the papers formerly read and the report of the commissioner appointed to sell the land. This report was confirmed, and Thomas C. Burwell was appointed a commissioner to convey the land to the purchasers. The plaintiff's also offered in evidence a deed dated the 26th of October 1843, executed by the commissioner, Thomas C. Burwell, to Jacob Maddy and Joel McPherson, whereby, after reciting the foregoing decrees, he conveyed to them the land referred to in said decrees. To the introduction of these decrees and the deed from Burwell, the defendant objected, upon the ground that it was incumbent on the plaintiffs to shew by evidence that a suit existed authorizing such decrees and deed And for this purpose it was necessary that the whole record should be produced to the court and jury. But the court overruled the objection and admitted the evidence; and the defendant excepted. In the further progress of the cause the defendant. introduced in evidence a patent from the Commonwealth to David Morton, bearing date the 13th day of March 1798, for the land in controversy; and he then offered in evidence an office copy of a deed bearing date the 1st of August 1799, purporting on its face to be from David Morton, of the borough of Wilmington, in the State of Delaware, to John Morton, of the city of Philadelphia, in the State of Pennsylvania, by which the tract of eleven hundred acres mentioned in the aforesaid patent was conveyed to John Morton. Upon this deed was endorsed a certificate of Robert Wharton, who styled himself mayor of the city of Philadelphia, that the above named David Morton personally appeared before him and acknowledged the above written indenture to be his act and deed, and desired the same as such might be recorded according to the laws of the State of Virginia. This certificate purports to be under the seal of the city of Philadel phia, and bears date the 1st of August 1799; and upon this certificate the deed was admitted to record in the District court held at the Sweet Springs, on the 19th of May 1800. To the introduction of this copy of the deed as evidence, the plaintiff's objected, and the court sustained the objection, and excluded the evidence, on the ground that the original deed was not duly authenticated for record. And the defendant again excepted. The defendant also offered in evidence the deposition of Benjamin Willard. On this deposition the plaintiffs' counsel had endorsed two exceptions. The first was, "because there is no warrant or action of forcible entry, &c., depending in Greenbrier County court, between the parties in the cause mentioned therein." The affidavit by the defendant which was the foundation of the motion for permission to take the deposition of the witness, the commission, and notice to the plaintiffs, spoke of the proceeding depending in the County court of Greenbrier, between the plaintiffs and defendant, as a writ of forcible entry and detainer. It was therefore, of course, that the justice who took the deposition described it as a deposition to be read as evidence on the trial of a writ of forcible entry and detainer. The court sustained the exception, and excluded the deposition; whereupon the defendant again excepted. The jury found a verdict for the plaintiffs, which the defendant moved the court to set aside, on the ground that it was contrary to the evidence; but the court overruled the motion, and rendered a judgment for the 1851. July Term. Cales V. Miller & al. |