The fourth instruction given by the court is objectionable on the ground taken by the counsel of the accused, that it assumes the fact that the accused threw the brick at the deceased, which ought to have been referred to the jury. The instruction ought to have stated the fact hypothetically, thus: "That if the jury believe, from the evidence, that the prisoner threw a brick at the deceased, which caused her death, and that, at the time of so doing, he was in such a condition of drunkenness as to render him incapable of a willful, deliberate and premeditated purpose, and that he did not so throw it out of any reckless wickedness of heart or purpose, then they will find the prisoner guilty of voluntary manslaughter."
Whether the accused threw the brick at the deceased or not, was a fair question of controversy before the jury upon the evidence. He might have thrown it at her, or he might have thrown it at the ducks in the street, or he might have thrown it at random. In either case, he did an unlawful act, likely to do mischief, considering the time and place and circumstances under which it was done, and he was therefore responsible for the consequences of the act as a crime. But the degree of such crime depended upon the intention Iwith which the brick was thrown. Such intention was, therefore, a material fact to be determined by the jury, and the court invaded their province in assuming it.
The fifth instruction given by the court is, of course, unobjectionable.
The result of my opinion is, that there is no other error in the judgment than those in the second and fourth instructions given by the court as aforesaid; but for those errors the said judgment ought to be reversed, the verdict set aside, and the cause remanded for a new trial to be had therein.
JOYNES, J., concurred in the opinion of Moncure, P., Term. except as to what is said therein upon the burden of proof on the question of insanity. He was of opinion that the burden was on the Commonwealth to prove the sanity of the prisoner.
The other judges concurred in the opinion of Moncure, P.
1. An action on the case lies against
a party who has a public employment-
as common carrier or other bailee-for
a breach of duty, which the law implies
from his employment or general relation.
Southern Express Co. v. McVeigh,
264
2. Where there is a public employ-
ment, from which arises a common law
duty, an action may be brought in tort,
although the breach of duty assigned is
the doing something contrary to an
agreement made in the course of such
employment, by the party on whom
such general duty is imposed.
Idem, 264
3. A railroad company has the land
of R. condemned for its road, and the
commissioners assess the damages, and
their report is confirmed, and the com-
pany pay the amount of the damage to
R. R. sells the land to D. D. may
maintain an action against the company
for injury to his land done since the
purchase, which could not be foreseen
and estimated by the commissioners.
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1. In 1819, L. conveys a lot of ground
to C. in trust, to pay certain debts, some
of which are upon executions in the
hands of the sheriff, and the other is
due to the father of C. Ten years after,
the father dies, and makes C. his ex'or
and one of his residuary legatees. The
lot is never sold under the deed of L.,
but, in 1839, C. takes possession of it
and encloses it, and some years after
leases it in his own name to R. for eight
years. In 1854, W., claiming it under
another title, sues R. for it, and C. being
then dead, his heirs make themselves
parties and defend the suit, and obtain a
final judgment in 1867. Then the heirs
of L. sue the heirs of C. for the lot, al-
leging that C. took and held possession
as trustee under the deed, and his heirs
The held under the trust, and defended the
action under that title. The heirs of C.
deny this, claim that C. took possession
for himself, and he and they have so
held for twenty-eight years; and they
defended for themselves. HELD: The
Southside R. R. Co. v. Daniel, 344
4. In such cases the assessment of
damages is only a bar to an action for
such injuries as could properly have
been included in such assessment.
commissioners are bound to presume
the company will construct its works in
a proper manner, and they have no
right to award damages upon the suppo-
sition that the company will negligently
and improperly perform its work.
failure to do so will, therefore, impose a
liability to any one who may sustain
any loss or injury by reason of such
negligence.
Idem, 344-5
1. Supervisors of a county may pro-
ceed, by writ of ad quod damnum, to
heirs of L. are barred.
Bargamin & als. v. Clarke & als.,
1. If goods are under the control of
parties as forwarders, and not as com-
mon carriers, and are consumed by acci-
dental fire in a warehouse, without any
fault or negligence on their part, they
are not liable; unless they had expressly
agreed, for compensation paid, to insure
them, and had failed to do it.
Southern Express Co. v. McVeigh,
264
2. N., living in the country, employs
M., a broker living in Richmond, to in-
vest his money in Missouri bonds. In
November, 1862, M. invests at $112 50,
and in February, 1863, he invests at
$125. In March N. sends a claim upon
the Confederate government to M. for
collection, and tells of other funds which
will be paid in to M. in May, and directs
him to invest in Missouri bonds. M.
collects the claim, and invests it at $160,
and so writes to N. The 23d of May
the funds spoken of by N. are received by
M., and then Missouri bonds have ad-
vanced seventy or eighty per cent. above
the last investment, and are difficult to
be gotten. On the 29th of June M.
writes to N, acknowledging the receipt of
this fund, stating that Missouri bonds
were then at 230 and 235, and asks whe-
ther he shall invest at the advanced
price when to be had. M. receives no
answer to his enquiry, and therefore does
not invest the money in his hands; the
Missouri bonds continuing to advance in
price. HELD: M. was justified in wait-
ing for further instructions, and is not
liable to N. for the loss.
Bernard v. Maury & Co.,
434
3. When payments to a branch bank
of debts due to the mother bank are not
valid. See Banks, No. 2, 3, and
Bank of the Old Dominion v. Mc-
Veigh,
4. A., B. and C. are the heirs of W.,
and also heirs of M., and D. and E. are
heirs of M. They all appoint S. an
agent to collect and sell land scrip due
to W., and also scrip due to M. The
scrip is obtained and sold, but the agent
does not pay over the proceeds. All
the heirs unite in a suit for the recovery
of the proceeds and call for a discovery.
The bill is not demurrable, either for
multifariousness, or because the plain-
tiffs have a complete remedy at law.
Segar & al. v. Parrish & als.,
5. S. having failed for twelve years to
pay over the proceeds of the sale, or to
give the parties any information on the
subject, he has forfeited the compensa-
tion which, by the original agreement,
he was to receive.
Idem, 672
6. S having stated in his answer, and
also in his deposition, that he sold the
scrip for 91 cents per acre, and there be-
ing no other evidence on this point, in
the cause, he is to be charged at that
price, with interest upon it; and not at
the legal price of public lands.
Idem, 672
7. S. having sold the scrip bona fide to
F., and received the money for it, before
the scrip was issued, he may substitute F.
as attorney for the principals, to enable
F. to obtain the scrip; and this being
the mode recognized at the land office, F.
does not become liable to the principals,
as their agent, for the purchase money.
Idem,
6. In an action on the case for damages
to plaintiff's land, there is a plea of not
guilty, on which issue is joined, and there
is a special plea, to which there is a spe-
cial replication concluding to the coun-
try. To this there is no rejoinder, and
the record does not say that issue was
joined upon it; but the parties go to
trial, and the subject of the special plea
and replication are contested before the
jury, which renders a verdict for the
plaintiff. No objection having been
taken to the want of joinder of issue in
the court below, it seems that the objec-
tion cannot be taken in the appellate
court.
Southside R. R. Co. v. Daniel,
7. In such a case, if the subject of the
replication is such that the defendant
cannot rejoin special matter without a
departure from the defence set up in this
plea, but must take issue upon the repli-
cation, the nonjoinder of issue will be
cured by the statute. Idem, 344
8. Court decrees a sum of money in
favor of defendant, and dismisses the
bill. Upon appeal by plaintiff, court
affirms the money decree, and will cor-
rect that part dismissing the bill, and
affirm the decree with costs.
377
9. When court will correct and affirm
decree. See Practice in Chancery, No.
13, 6, 7, and
Idem, 377
10. In a bill of exceptions to the re-
fusal of the court to grant a new trial,
the evidence, and not the facts proved, is
stated. If all the evidence was intro-
duced by the exceptor, the appellate
court will not review the judgment; but
if all the evidence is introduced by the
party who recovers the judgment, the
Appellate court will review the judg-
ment, and if taking it all as true, the
verdict and judgment is erroneous, will
reverse it.
13. Appellate court reversing a judg-
ment against a prisoner in the peniten-
tiary, and directing a new trial; how he
1. The principles decided in the cases
of Exchange Bank of Virginia for
Camp, trustee, &c. v. Knox, &c., and
Farmers' Bank of Virginia for Goddin,
&c. v. Anderson & Co., 19 Gratt. 739,
reaffirmed.
Saunders, &c. v. White & als., 327
2. M., a debtor to the bank of D.,
which is within the Federal lines, in July
1864, pays his debt to D., into a branch
of the bank of D., which branch is within
the Confederate lines; the payment being
made in Confederate currency.
The
payment is not valid, and the bank of
D. may recover the amount from M.
Bank of the Old Dominion
3. The act of the General Assembly
sitting at Richmond, passed March 3,
1864, authorizing such payments, is not
obligatory upon a mother bank within
the Federal lines.
Idem, 457
4. The act is unconstitutional in its ap-
plication to debts contracted before its
passage.
Idem, 457
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