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acquired and became the holder of the notes after their maturity and dishonor, without payment of value therefor either to James H. McVeigh & Son or to William N. McVeigh, the jury must find for the defend

ant.

592 *2. If the facts are, as stated in the above instruction, the jury must find for the defendant, William N. McVeigh. 3. If the plaintiff acquired notes after dishonor, the note having been accommodation paper in its origin, the plaintiff can recover of his immediate endorser only the amount actually paid by him to such endorser.

The instructions so prayed by the defendants were each and all refused; to which action of the court the defendant also excepted.

On the application of the defendants, this court awarded a writ of error and supersedeas.

the act of limitations, is erroneous, as being an infringement on the privileges of the jury, whose right it was to judge of the sufficiency of the evidence.

In Brooke v. Young, 3 Rand. 106-111, the defendant filed two bills of exception. The first, after stating the evidence adduced on the trial, concluded by saying: "And this was all the evidence in the cause. Whereupon the defendant moved the court to instruct the jury." The second bill of exceptions, after referring to a part of the evidence offered by the defendant, proceeded to state that the plaintiff had moved the court for an instruction "that the notes in controversy were not a legal set-off unless the defendant should satisfy the jury that he had acquired them before he received the notice of the assignment." Which was objected to by the defendant, but given by the court. This court was of opinion, *that although the evidence stated in the

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John Howard and S. F. Beach, for the first bill of exceptions might be all when it appellants.

H. O. Claughton, for the appellee.

Staples, J. I am of opinion, that the circuit court erred in giving the second and third instructions asked for by the plaintiff. The second instruction tells the jury that if the defendant, William N. McVeigh, went into the Confederate lines between the date and maturity of the notes in controversy, and that he left no known agent in the city of Alexandria to receive notice of the dishonor of the notes, they must find for the plaintiff. The third instruction declares that if the defendant, William N. McVeigh, had a residence in Alexandria at the time the notes were protested, and a written notice of the protest was left at his residence, the jury must find for the plaintiff. So that under the first instruction the sole inquiry for the jury was whether the defendant had an agent in Alexandria to receive notice of the protest; and under the second, whether the defendant had a residence in that city, and whether

notice of the protest was left there. 593 *It will be observed that these instructions do not assume that certain facts, if believed by the jury, constitute sufficient notice, but that they entitle the plaintiff to a verdict. The effect of the ininstructions was, therefore, to exclude from the minds of the jury all the other testimony in the cause, and to restrict the inquiry to the particular facts set forth in the instructions. No rule of law is better settled than that which forbids a court from selecting certain detached portions of the evidence as the basis of an instruction to find for one of the parties. The jury should be left free to consider all the evidence in the cause bearing upon the issue joined, without having their attention directed to any part of it in rendering their verdict. See Hilliard on New Trials, pp. 293-4, where the cases are cited. In Fisher's ex'or v. Duncan & Turnbull, 1 Hen. & Mun. 563, 567, it was decided by this court that an instruction which declared that from the whole testimony before them the demand of the plaintiff was not barred by

was sealed, there might be other important facts brought forward afterwards, and that it was not allowable to supply the defects of one exception from another, and thus shut out evidence material for one party not noticed in either bill. The statement of facts was therefore too imperfect to enable this court to form an opinion as to the correctness of the instruction. See also Bogle, Somerville & Co. v. Sullivant, 1 Call. 487; Crabtree v. Horton, 4 Munf. 59.

In Wash. & New Orleans Tel. Co. v. Hobson & Son, 15 Gratt. 122, 133-4, the rule laid down in Brooke v. Young was referred to and approved. Judge Daniel, in delivering the opinion of the court, said: "It (a bill of exceptions to the ruling of the court refusing to give instructions) may, and sometimes does, set out fully all the evidence of either side down to the period of the ruling of the court objected to; yet, as instructions may be and often are prayed for and given or refused before the testimony is closed, such a bill of exceptions cannot of itself merely be relied on as a complete statement of all the facts, or all the evidence on which the jury rendered their verdict. It could not be so relied on, even though in terms it should purport to be a statement of 'all the evidence in the cause,' as was the case in Brooke v. Young, 3 Rand. 106, for the reason stated by the court in that case, that although the evidence stated in the bill might be all when it was sealed, there might be other important facts brought forward afterwards."

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dence set out in the first bill of exceptions, but there is not a word in it from which it can be inferred it was intended as a certificate of the facts proved, or of all the evidence adduced on the trial. It may be conceded that the giving of notice, the facts being agreed, is always a question of law; but here it is impossible to say we have all the facts proved on the trial. And even if it be conceded that the notice was sufficient, it did not follow that the plaintiff was entitled to a verdict. Unless we can say positively that it is, it is impossible to sustain the instructions of the court. At all events, in the language of the court in Brooke v. Young, the statement of facts is too imperfect to enable this court to form an opinion, and following the authority of that case and others there cited, the judgment of the court below must, on that ground, be reversed and a new trial awarded.

The judgment was as follows: This day came again 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 reasons stated 597 in writing and filed with the record, that the corporation court did not err in giving the first instruction asked for by the defendant in error, or in refusing to give those asked for by the plaintiff in error; but that it did err in giving the second and third instructions asked for by the said defendant in error. Therefore, it is considered that for the error aforesaid, the judgment of the said corporation court be reversed and annulled, and that the defendant in error pay to the plaintiffs in error their costs by them expended in the prosecution of their writ of supersedeas aforesaid here; that the verdict of the jury be set aside, and that the cause be remanded to the said corporation court for a new trial to be had therein in accordance with this judgment; which is ordered to be certified to the said corporation court of the city of Alexandria.

Judgment reversed.

I am of opinion the instructions are erroneous upon another ground. Under the facts set forth in the two bills of exception the notice left at the residence of William N. McVeigh, after the commencement of the war, was insufficient to charge him as endorser. This question was fully considered in the case of the Bank of the Old Dominion 598 v. McVeigh, 26 Gratt. 785, and the same case more recently decided by this court. That part of the opinion of Judge Anderson, in which a majority of this court concurred, 1. relating to the sufficiency of the notice, equally applies to the present case. The only material difference between the two cases is, that in the former it was proved that the bank had notice of the removal of the

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endorser when the notice was given, *whereas, in the present case, it does not appear whether the Exchange Bank had or had not such notice. The bill of exceptions does not show, nor is it necessary to decide now whether such knowledge would work a difference. Where the holder and endorser reside near to each other in a small city like Alexandria, the jury may presume from the proximity of the parties and the frequency of their communication, and the circumstances of notoriety attending the removal, that the holder was apprised of the change of domicile. Harris v. Memphis Bank, 4 Humph. R. 519; Farmers and Merchants Bank v. Harris, 2 Humph. R. 311; Bank of Utica v. Phillips, 3 Wend. R. 408.

*Lloyd v. Erwin's Adm'r. November Term, 1877, Richmond.

Absent, MONCURE, P.

Judicial Sales-Defects in Commissioner's Bond-Liability of Purchaser.*—A purchaser at a judicial sale of land pays the purchase money to the commissioner; but the commissioner has not executed the bond required by the decree, or the bond executed by him is disapproved by the clerk. The purchaser has paid in his own wrong, and the land is liable for the purchase money received by the commissioner and misapplied, though the land has been conveyed by the commissioner to the purchaser, as the decree directed to be done when the purchase money was paid.

2. Same-Same-Same-Remedy.t-In such a

*Judicial Sales-Defects in Commission

er's Bond-Liability of Purchaser.-The headnote in Whitehead v. Bradley, 87 Va. 676, states the law as follows, "Where purchaser, at sale made under decree of court, pays the purchase money to sale commissioner who has not given the bond required by law, such payment is invalid, unless certifi cate of clerk that such bond has been given was published with advertisement of sale. Code 1887, secs. 3397, 3399." See for very similar cases, Woods The instructions given by the corporation v. Ellis, 85 Va. 471; Lee v. Swepson, 76 Va. 173; court peremptorily excluded every inquiry of Tyler v. Toms, 75 Va. 125. See also, Brown v. the kind from the mind of the jury, confining Taylor, 32 Gratt. 135, where the principal case is cited them to the consideration of certain facts for the proposition that the mere possession of a bond mentioned by the court as entitling the plain-is not such evidence of property as will justify a paytiff to a verdict. I think this was manifestment to the holder, without authority express or im

error.

With respect to the instructions asked for by the defendant, I think the court very properly refused them. But for the error already mentioned, the judgment must be reversed, the verdict set aside, and a new trial awarded.

Anderson and Burks, J's, concurred in the opinion of Staples, J. Christian, J., dissented.

plied, for the owner to collect the same. Thornton v.
Fairfax, 29 Gratt. 682; Donahue v. Fackler, 21 W.
Va. 130; Flesher v. Hassler, 29 W. Va. 405, 1 S. E.
Rep. 581.

†Same-Same-Subrogation.-In Lee v. Swepson, 76 Va. 173, and Tyler v. Toms, 75 Va. 116, it was held that if in such case the purchaser should have to ray the purchase money a second time, he would be substituted to the creditor's rights under a decree requiring the commissioner to pay them.

case, the parties entitled to the fund are not bound to proceed against the commissioner and his sureties in the bond he executed, but which the clerk disapproved, before proceeding against the land, to have it subjected to the payment of the purchase money misapplied by the commissioner.

This was an appeal from a decree rendered by the circuit court of Fairfax county, in a cause depending therein, in which William H. Erwin's administrator was plaintiff, and the heirs of said Erwin were the defendants. The object of the suit was to have a sale of a part of the real estate of William H. Erwin, deceased, for the payment of his debts. The cause was so proceeded in that at the June term, 1871, of the court a decree was made for the sale of a house and lot in Falls Church, upon the terms of ten per cent. of the purchase money in cash, and the balance on a credit of six, twelve and eighteen months, with interest, to be secured by the bonds of the purchaser, with retention of the title until the last payment is made. And M. D. Ball and J. C. De Putron were appointed commissioners to execute the decree. But before receiving any money under the same they, or one of them acting, shall execute bond in the penalty of $1,000, before the clerk of this court, conditioned for the faithful performance of this or any future decree in this cause.

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At the June term, 1872, of the court, the commissioners reported that they had made a sale of the house and lot to Lester Lloyd, for $1,800, and that he had paid $50, and was ready to make the full cash payment on confirmation of the sale, and that he had executed his notes for the deferred payments, and desired to anticipate the same.

At the same term of the court the sale was confirmed, and the purchaser was authorized to anticipate the deferred payments; and upon the money being paid, the commissioners were directed to pay the costs of the suit, pay off the debts reported against the estate, and bring the balance into court.

There was a further report of debts due from Erwin's estate; and at the June term, 1873, the court made a decree that the commissioners should pay these creditors forthwith, and pay over the balance of the money on hand, and the unpaid bond to the guardian of the infant heirs of Erwin. And it was further decreed that upon the payment of the balance of the purchase money of the property sold by the commissioners to the guardian of the said heirs, the said commissioners, or either of them, were authorized to convey to the purchaser the said property by deed. And it appears that the said commissioner did, by deed bearing date the 7th day of July, 1873, convey to Lester Lloyd the said house and lot, reciting that he had paid all the purchase money; and the deed was duly admitted to record.

600 *The purchase money received from Lloyd not having been paid over by the commissioners, at the November term, 1874, M. D. Ball, the commissioner who had received the purchase money, was directed to carry out the provisions of the decree for

merly made in the cause within sixty days, and that he should settle his accounts before a commissioner. And a rule was made upon Lloyd, returnable to the next term of the court, to show cause why he should not bring into court the amount of the cash payment and of the first two instalments of the purchase money for the property sold to him; it being suggested to the court that the payment thereof by him to the commissioner of sale was unauthorized, because of the failure of the commissioner to file with the clerk the bond required of them by the decree.

Lloyd answered the rule. He says he had no connection with the case and knew nothing of the proceedings in the cause until his purchase of the property; that after the property was cried off to him as the purchaser he was informed that M. D. Ball, one of the commissioners, was the party duly qualified to receive of him the amount of the purchase money, and that he paid to Ball the cash payment and two bonds of $540 each, of the deferred instalments. The third bond he had paid under the decree of the court to the guardian of the infant heirs of Erwin. He refers to the several decrees of the court made since the report of the sale, and to the conveyance to him by the commissioners, and insists that he cannot be prejudiced by the action of the commissioners; that he was entirely ignorant of any irregular or improper acts on their part, or on the part of either of them; and that their acts being subject to the supervision and control of the court, and finding them, so far as he was

601

concerned, sanctioned and approved by *the court, he rested securely upon their sufficiency and regularity. It appears that, prior to the sale of the house and lot, Ball executed a bond with sureties in the penalty of $1,000, with condition for the faithful performance of his duties under the decree for the sale, and left it with the clerk of the court; but this bond was endorsed: "Not received by the clerk."

It appears that on the day of the sale DePruton, the other commissioner, who was counsel for the estate of Erwin, went to the clerk's office to execute the bond directed by. the decree of sale, with his surety, and accompanied by Lloyd and the administrator of Erwin. As to what occurred there, he (Lloyd) and the clerk give different and conflicting accounts.

At the November term, 1876, the cause came on to be heard upon the rule, and it appearing to the court that Ball was insolvent and nothing could be made out of him; and the court holding that he had never executed a bond as required by law, and was therefore unauthorized to accept payment of the purchase bonds, and that the payments made by Lloyd to him on said bonds did not discharge Lloyd, but that he and the property purchased was liable therefor in the hands of the purchaser; but it further appearing that of the money received by Ball he had properly accounted for $436.14, leaving $840.06 unaccounted for, it was decreed that Lester Lloyd do pay to commissioners named the

said sum of $840.06, with interest from the 1st | exercise of the powers conferred. The 11th of September, 1872; and unless it was paid in sixty days, the said commissioners should resell the property upon the terms of the original decree. And thereupon Lloyd applied to this court for an appeal; which was allowed.

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In each case the commissioner collected the purchase money from the purchaser of land at a judicial sale without giving the bond required by the statute and the decree under which he acted, and then made default. The attempt is made to withdraw this case from the controlling influence of Hess & als. v. Rader & wife & als. as authority, upon the pretension that in making payment the purchaser acted, after due inquiry, on information furnished him by the clerk of the court, that the commissioner had given the bond required by the decree. Some evidence was taken as to that matter on both sides, and is more or less conflicting. It is immaterial, however, in this case, whether such information was given or not, or whether, if given, it induced the payment to the commissioner. The fact remains that no bond was given and therefore the commissioner had no authority to collect. There was a bond filed among the papers in the cause, but whatever the clerk may have said to the purchaser about it, it is certain that the bond was never approved and accepted by the clerk, and his refusal to accept it was endorsed upon it at the time it was tendered and filed. Whatever remedy, if any, the purchaser may have against the clerk, his payment to the commissioner was a payment in his own wrong, and he continues personally bound for so much of the purchase money collected by the commissioner as was not accounted for by him.

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*The court is further of opinion, that the land purchased by the appellant under the decree of the court also continues bound for the purchase money collected and not accounted for by the commissioner, notwithstanding the deed of conveyance made by the commissioners. The title was retained by the decree ordering sale as a security for the payment of the purchase money, and the commissioners were not empowered by the decree to convey until payment was completed; and as no valid payment was ever made, the deed of the commissioners passed no valid title. None of the decrees in the cause subsequent to the decree made on the day of June, 1871, by which the commissioners were appointed and authorized to make collections only on condition of first giving bond, dispensed either expressly or impliedly with the performance by the commissioners of this condition precedent to the

section of chapter 174, Code of 1873, relied on by the appellant in his answer to the rule against him, has no application to a case like this. The decree under which the appellant purchased has never been reversed or set aside, nor has there been any attempt to reverse it or set it aside. On the contrary the proceeding against him was to enforce the decree and compel him to complete his purchase by payment of the purchase money remaining unpaid.

The court is further of opinion, that the complainant in the court below and the other parties in this cause were not, nor were any, nor was either of them, bound to resort to any remedy they may have had, either against the defaulting commissioner separately or against him and his sureties on the bond aforesaid filed in this cause, before proceeding to subject the land purchased by the appellant for the balance of purchase money

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not accounted for as aforesaid. The bond, as before stated, *was never approved and accepted as a bond authorized by the court, and it is recited in the decree complained of that the commissioner is insolvent, and such is doubtless the fact, or this controversy would never have arisen. But whether the commissioner be insolvent or not, the appellant is himself in default; and as to those entitled to the purchase money for which he is bound, he is the primary if not only debtor.

The court is of opinion, for the reasons stated, that there is no error in the decree of the circuit court of Fairfax county, from which an appeal has been allowed in this case, and that the same should be affirmed, with costs and damages. Decree affirmed.

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1.

*Booker's Adm'r v. Booker's Rep. [26 Am. Rep. 401.]

November Term, 1877, Richmond.

Absent, MONCURE, P.

Bonds-Presumption of Payment.*-The common law rule of presumption of payment of bonds arising from the lapse of time has not been affected by the statutory provisions adopted at the revisal of 1849, prescribing the limitation of such instruments.

2. Same-Same-How Rebutted.-When more than twenty years has elapsed between the date of payment of a bond and the institution of suit thereon, it affords a presumption of payment, which the obligee may rebut by satisfactory evidence; and whether the evidence is sufficient for that purpose, is a question for the jury, and not for the court. *Bonds-Presumption

of Payment.-The rule laid down by the principal case in regard to the presumption of payment of bonds arising from lapse of time, is cited approvingly in Jameson v. Rixey, 94 Va. 346; Lightfoot v. Green, 91 Va. 514; Bowman v. Hicks, 80 Va. 810; Norvell v. Little, 79 Va. 143; Tunstall v. Withers, 86 Va. 892; Updike v. Lane, 78 Va. 136; Brewis v. Lawson, 76 Va. 45. See also, Barton's Ch. Pr. (2d Ed.) 86; 4 Min. Inst. (3d Ed.) 603.

This was an action of debt in the circuit court of Elizabeth City county brought by Elizabeth Booker's personal representative against George Booker's administrator. The action was brought on a bond which said:

"On demand, for value received, I promise to pay Elizabeth Booker the just and full sum of seven hundred and fifty-five dollars and eighty-seven cents, with interest from the date, and the interest to be paid halfyearly. For the true payment and performance of which I bind myself, my heirs, &c., jointly and severally, firmly by these presents. As witness my hand and seal this 1st September, 1837.

Geo. Booker [Seal.]" The defendant pleaded payment by George Booker, in his lifetime, to Elizabeth Booker. And on the trial of the cause there was 606 to verdict and judgment for the *plaintiff for the amount of the bond, with interest from its date to the 1st day of May, 1861, subject to a credit of $300, paid the 1st of November, 1843.

The defendant took a bill of exception to an instruction given by the court, and a second exception to the refusal of the court to set aside the verdict and grant him a new trial. The first, after giving the testimony of a number of witnesses and papers, states: And after all the said evidence had been introduced before the jury, the plaintiff, by his attorneys, moved the court to instruct the jury as follows:

Scarburgh & Duffield, for the appellant.
M. B. Seawell, for the appellee.
Staples, J., delivered the opinion of the

court.

According to a well-settled rule of the common law, a bond is presumed to have been paid after the lapse of twenty years from the time it becomes due. It is, however, a mere presumption which may be repelled by satisfactory evidence; but in the absence of such evidence, this presumption is of itself sufficient to sustain a plea of payment. If a shorter period than twenty years has elapsed, even a day, this legal presumption does not arise. In such case, however, the lapse of time may be relied on in connection with other circumstances as evidence of payment. 2 Minor's Institutes, page 886, and cases there cited; 2 Best on Evidence, 696.

The instruction given by the circuit court in this case declares that this rule of the common law has been changed by statute, so that the defendant cannot now rely upon the presumption of payment arising from the mere lapse of twenty years, but the jury may consider the lapse of time as a circumstance or matter of evidence in connection with the other evidence introduced by the defendant under the plea of payment. The statute to which the instruction refers is contained in sections 5 and 19, chapter 149, Code of 1860,

"That as the act of limitations has not been 608 pleaded or relied upon by the defendant, the defendant cannot rely upon the presumption of payment arising from the mere lapse of time in defence of the plaintiff's action."

But the court declined to give the said instruction in the form in which it was submitted as aforesaid by the plaintiff, and then gave to the jury the following instruction, to wit:

"That there is no rule of law which authorizes the jury in this case to presume payment of the bond, in the declaration mentioned, from the mere lapse of twenty years since its execution; but the jury is authorized to consider the lapse of time as a circumstance or matter of evidence in connection with the other evidence introduced by the defendant under his plea of payment; it being the opinion of the court that the effect of the statute of limitations (Code of Virginia, ch. 149, §§ 5 and 19, ed. of 1860), is so to change the law as to prevent the defendant from relying upon the former rule of law which raised a presumption of payment of the said bond from the mere lapse of twenty years. By this the court means to say to the jury, in explanation, that if the only evidence offered in this cause were the writing obligatory in the declaration mentioned, and the 607 mere lapse of time *from its date to the present time, then it would be the duty of the jury to find for the plaintiff." It is unnecessary to state the second exception. Upon the application of Booker's administrator, a writ of error and supersedeas was awarded.

and was incorporated in the revisal of 1850. One of these sections *prescribes a limitation of twenty years in actions upon bonds, and the other provides that where the bond was executed before the 1st of July, 1850, if a right of action existed that day, the action may be brought within twenty years thereafter. The learned judge seems to have thought that as the statute was passed before a presumption of payment had attached to the bond in controversy, and as the action was brought in 1869, within the time limited by the statute, the defendant could not rely upon the bar of the statute, neither could he rely upon the legal presumption of payment. The instruction is not so clearly drawn as to show with absolute certainty what was meant by the court, but this is the fair inference from the language used. We are of opinion, that the statute in question was not designed to change the rule of the common law. The object was simply to apply to actions, on sealed instruments, a statutory limitation in like manner as to actions on parol contracts, the only difference being that a greater time is allowed in the former case than in the latter.

Where the bond has been executed since the 1st of July, 1850, and has beer due twenty years or more, the defendant may rely upon the statutory limitation, or he may waive that and take his chances before the jury upon the mere presumption of payment from lapse of time.

There is no decision in our reports upon this precise point, but the courts have held substantially this doctrine in analogous cases. For example, although there is an

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