trial, Maybush was found guilty, and his fine was assessed at fifty dollars; and there was a judgment according to the verdict, for the fine of fifty dollars, and imprisonment in the jail of the city for one year, the period fixed by law, &c. After the trial of the cause, but at the same term, the prisoner moved the court for a new trial, on the ground that John B. Graves, the person whom it was charged he had suborned, had been tried upon the charge of perjury after verdict had been rendered against him (Maybush), before the same court, and a verdict of "not guilty" had been returned, and the said Graves had been discharged; but the court overruled the motion; and the prisoner excepted. And he applied to this court for a writ of error; which was awarded. William Ellyson, for the appellant. wealth. Anderson, J., delivered the opinion of the court. The court is of opinion, that there is no error in the judgment of the hustings court in overruling the demurrer to the indictment in this case. By section 13 of chapter 159 of the Code of 1873, any clerk of a court, or his deputy, may administer an oath in any case wherein an affidavit is necessary or proper as the foundation of an official act to be performed by him. The words italicized "or proper" have been inserted in the statute since the decision of Matthew Williamson's case, 4 Gratt. 554, wherein it was held that a clerk, under the statute as it 859 *then was, had no authority, when applied to for a marriage license, to examine a witness on oath as to the age of the parties; the court construing the law as it then stood, to apply only to such cases in which, without regard to circumstances, the principal felon might be indicted. Any such accessory before the fact may be indicted either with such principal or separately. Sec. 3887, Va. Code. How Principal in Second Decree and Accessories Punished. In the case of every felony, every principal in the second degree and every accessory before the fact, shall be punished as if he were the principal in the first degree, and every accessory after the fact, shall be confined in jail not more than one year, and fined not exceeding five hundred dollars. Sec. 3885, Va. Code. Verdict Must Show What Crime Accused Is Accessory to.-A verdict, which finds a person indicted as being accessory to murder, to be guilty thereof, but not determine whether he is guilty as accessory to the murder in the first, or second degree, is erroneous, and ought to be set aside, and a venire facias de novo awarded. Commonwealth V. Williamson, 2 Va. Cas. 211. Where Principal Departs from Accessory's Instructions.—If a principal totally and substantially departs from the instructions of an accessory, and commits a different offense, or an additional offense, he stands single in such different or additional offense, and the other is not held responsible for it as accessory. Watts v. State, 5 W. Va. 532. the making of the affidavit was necessary as a prerequisite to the performance of the official act required of the clerk. But the legislature soon after that decision, at the revisal of 1849, having amended the law by inserting the words above recited, evidently designed, we think, to authorize the clerks and their deputies to administer an oath in such cases, because it is highly proper that the clerk, before issuing the marriage license to parties who had not the consent of parents or guardians, or such evidence of it as the law required, should have authority to examine a witness on oath as to the age of the parties. We think that the authority is given by the statute as it now stands. But the court is further of opinion, that the Commonwealth wholly failed to prove the allegation of the indictment, that the plaintiff in error did wilfully, corruptly and unlawfully commit subornation of perjury by procuring John B. Graves to commit wilful and corrupt perjury, in the oath which he is before alleged in said indictment to have taken. In order to convict the plaintiff in error of subornation of perjury, it was essential for the Commonwealth to show that the person whom he is alleged to have suborned had committed perjury. 2 Bishop on Crim. Proced. § 879. But if it had been shown to the contrary that the person alleged to have been suborned had been indicted for the offence of the perjury alleged, and had been tried and acquitted, it would have entitled the plaintiff in error to an acquittal of the offence of subornation for which he was indicted. It appears from the plaintiff's third bill of exceptions that after the trial of his case, but 860 while the matter was yet in the breast of the court, he moved the court for a new trial, upon the ground that John B. Graves, the person whom it was charged What Constitutes the Offense.-"To constitute one an accessory after the fact, three things are requisite: 1. The felony must be completed; 2. He must know that the felon is guilty; 3. He must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony." Wren's Case, 26 Gratt. 956. Actual Notice Required.-"And although it seemed at one time to be doubted, whether an implied notice of the felony will not in some cases he had suborned, had been tried upon the charge of perjury after the verdict had been rendered against him, the said plaintiff, before the same court, and a verdict of not guilty had been returned, and the said Graves had been discharged; which motion for a new trial the court overruled. If this evidence had been before the jury upon the trial of the plaintiff in error, they would have been bound to have found a verdict in his favor. And inasmuch as in the nature of things the evidence of Graves' acquittal of the perjury charged could not have been given in evidence in that trial, because his trial and acquittal did not occur until afterwards, it was error in the court to overrule his motion for a new trial. We are of opinion, that the court ought to have set aside the verdict and awarded the prisoner a new trial. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the hustings court did not err in overruling the demurrer to the indictment; but being of opinion that the trial and acquittal of John B. Graves in the said hustings court, of the charge of perjury, for the subornation of which the prisoner was indicted in this case, would be conclusive to show that the prisoner was not guilty of the offence 861 for which he was prosecuted. And such trial and acquittal of Graves having been subsequent to the trial and finding of the jury against the prisoner in the same court, it was error to overrule the prisoner's motion to set aside the verdict and grant him a new trial on that ground. It is therefore considered that the judgment The court is of opinion, therefore, that be reversed and annulled, the verdict of the for this cause (the overruling the motion of jury set aside and a new trial awarded the the plaintiff in error for a new trial) the prisoner. And the cause is remanded to the judgment must be reversed, the verdict of hustings court of the city of Richmond for the jury set aside, and a new trial awarded further proceedings to be had therein, in the plaintiff in error, and the cause is re-conformity with this order and the opinion manded for further proceedings therein in of this court filed with the record. conformity with this opinion. Judgment reversed. suffice, as where a man receive a felon in the same county in which he has been attainted, which is supposed to have been matter of notoriety, it seems to be the better opinion, that some more particular evidence is requisite to raise the presumption of knowledge." Wren's Case, 26 Gratt. 956. Knowledge Must Be Brought Home to Accused-Jury the Judge.—“But knowledge of the commission of the felony must be brought home to the accused, and whether he had such knowledge is always a question for the jury." Wren's Case, 26 Gratt. 956. What Constitutes the Offence-Generally. "As to the receiving, relieving and assisting, one known to be a felon, it may be said in general terms, that any assistance given to one known to be a felon in order to hinder his apprehension, trial or punishment, is sufficient to make a man accessory after the fact; as that he concealed him in the house, or shut the door against his pursuers, until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape; or conveyed instruments to him to enable him to break prison and escape. This and such like assist ance to one known to be a felon, would constitute a man accessory after the fact. But merely suffering the principal to escape, will not make the party ac cessory after the fact; for it amounts at most but to a mere omission. Or if he agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities; none of these acts would be sufficient to make the party an accessory after the fact. If the thing done amounts to no more than the compounding a felony, or the misprison of it, the doer will not be an accessory. The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with a view of enabling his principal to elude punishment; the kind of help rendered appearing to be unimportant." Wren's Case, 26 Gratt. 956. Who Not Deemed Accessories after the Fact.-But no person in the relation of husband and wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, shall aid or assist a principal felon or accessory before the fact, to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact. Sec. 3886, Va. Code. 628 fact for the jury; and the court will not dis- 8. It is too late to make the objection in the appellate court, that the notice of motion to correct a judgment by default or quash an execution, was insufficient, when the parties appeared and made no such objection in the court below. Dillard v. Thornton, 392 2. Decrees for the sale of land, and for confirmation of the sale, are made in the abseuce of some of the joint owners of land; and upon appeal these decrees are reversed, and the cause sent back that they may be made parties, and have an opportunity to defend their interest; though the decree is in action of the court below in refusing a con9. The appellate court will not disturb the other respects confirmed, these absent own- tinuance of the cause for the absence of a ers, when made parties, have a right to ex-witness unless such action was plainly errocept to the sale and its confirmation, and are not precluded by the affirmance of the decree in other respects than those on which it is reversed. Idem, 46 3. There is a verdict on the trial of an issue devisavit vel non, and a motion to set it aside on the ground that the verdict is contrary to the evidence; which the court overrules, and makes a decree according to the verdict; and the party moving files a bill of exceptions to the refusal of the court to set aside the verdict, and all the evidence is set out in the bill of exceptions. The appellate court will reject all the parol evidence of the exceptor which is in conflict with that of the other party; and if upon the evidence of the appellee and the written evidence of the appellant the case is in favor of the appellee, the decree will be affirmed. Lamberts v. Cooper's ex'or & als., 61 4. Though the amount in contest is less than $500, yet if the case involves the constitutionality of a statute, the court of appeals has jurisdiction of it. Pretlow v. Bailey's ex'x & als.. 212 neous. 864 Balt. & Ohio R. R. Co. v. Wight- Matthews v. Warner's adm'r, 431 570 10. Where it does not appear that *all the evidence given on the issue joined is stated in the bill of exceptions, an instruction to the jury that if they believed certain facts stated, they must find for the plaintiff, the appellate court must reverse the judgment on the ground that the facts are too imperfectly stated to enable the court to decide whether or not the instruction is correct. McVeigh & al. v. Allen, 588 11. Where a party to a case is examined in his own behalf, and cross-examined at length by the other party, without objection to his competency, the objection cannot be made in the appellate court. But where an objection to the competency of a party as a witness is written at the commencement of the deposition, the objection is not waived by the cross-examination. Neilson & als. v. Bowman & als., 732 12. Appellate court will not reverse a judgment of conviction of an attempt to commit a rape on an infant between ten and eleven years old, though the conviction was on her evidence. 1. The shares of a stockholder in a joint stock company incorporated by and conducting its operations in whole or in part in the state, are such estate as is liable to be attached in a proceeding instituted for that purpose by one of the creditors of such stock- Chesapeake & Ohio R. R. Co. v. 502 4. If, in such a proceeding, the stock should appear to be liable to the lien of the attachment, it ought to be sold for the satisfaction of the same under an order of the court made for that purpose in the attachment proceeding but it is error for the court to render a judgment against the garnisheed corporation for the value of the stock, unless it appears that the lien of the attaching creditor on the stock was lost by the act of the corporation. Idem, 502 5. See Partners, No. 1 and Lindsey v. Corkery & Milward & als, ATTORNEYS AT LAW. 650 1. C & P executed their single bill, dated October 18, 1871, whereby they promised, "six months after date to pay to H or order the sum of seven thousand dollars, with interest at the rate of 12 per centum per annum from date"-Held: 1. The contract for interest at the rate of 12 per cent. per annum was legal under the constitutional provision in force at the time of the contract, and is not affected by the subsequent abolition of that provision. Cecil & Perry v. Hicks, 1 4. Where a bond dated in Texas, signed by the principal obligor, a resident of Texas, and by two sureties, residents of Virginia, payable to a resident of Virginia, where the drafts, which were the consideration of the bond, were sent to and received in Texas. and the money borrowed used in Texas by the principal obligor-HELD: To be a contract governed by the laws of Texas, and not affected by the laws of usury in Virginia. Backhouse's ex'x v. Selden, 1. J, the surety of M, who was the guardian of R, paid R $4,000 of the indebtedness of M to R, as guardian. J dies and his administrators sue M in assumpsit for the amount so paid, and M pleads his discharge in bankruptcy in bar to the recovery. The administrators of J reply that the debt due by M to their intestate is a fiduciary debt 5. The common law rule of presumption of from which he is not discharged under sec-payment of bonds arising from the lapse of tion 32 of the bankrupt act-HELD: 581 time has not been affected by the statutory provisions adopted at the revisal of 1849, prescribing the limitation of actions on such instruments. Booker's adm'r v. Booker's rep., 605 6. When more than twenty years has elapsed between the time of payment of a bond and the institution of a 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. Idem, 605 BURGLARY. 1. A case in which upon a prosecution for burglary, held the evidence does not identify the prisoner as the person who had commit650 ted burglary. Johnson's case, 796 CIRCUIT COURT OF RICHMOND. 1. The circuit court of the city of Richmond has no equity jurisdiction except in certain cases specified in the statute, in 401 which the state is interested, or some of the 1. When the Board of Public Works is a necessary or proper party. See Circuit Court of Richmond, No. 1, 2, 3, and Ragland v. Broadnax & als., officers and boards representing the state, | of C, against F, the collector of township M, are necessary or proper parties; and in such and his sureties, upon his official bond, is a cases its jurisdiction is exclusive. Sess. judgment in favor of the Commonwealth. Acts 1869-'70, pp. 42, 43. Commonwealth by, &c. v. Ford & als., Ragland v. Broadnax & als., 401 683 2. On such a judgment the Commonwealth at the relation of T, auditor of accounts, may maintain a suit against F and his sureIdem, 683 ties. 2. Upon the facts of this case held, the Board of Public Works of the state was a necessary party to a suit brought by parties claiming to be stockholders in the Petersburg Railroad Company, against the Com3. The judgment having been recovered in pany, the city of Petersburg, Ragland and C county, the suit may be brought in that others, to set aside certain acts of the rail- county. Except in cases where it is otherroad company done in favor of Rag-wise specially provided, the Commonwealth 866 land, as the *nolder of a large amount may prosecute her suits in any of the courts of the stock of the company which he in which other parties may prosecute suits of And this case is not empurchased from the city of Petersburg. This like character. stock had been pledged by the city to the braced in the statute, Code of 1873, ch. 166. state as collateral security for the guaranty Idem, 683 by the state of a debt of the city. Idem, 401 3. The state having returned the stock to the city of Petersburg, and it being held by the city as collateral security for the debt Ragland owed for the stock, and his note falling due, the city sued him upon it, and advertised the stock for sale.. Ragland then filed his cross-bill in the first suit to enjoin the suit and sale until the questions in the first suit as to the character of the stock which the state had held, whether preferred All the paror common, should be settled. ties to the original bill were made defendants to the cross-bill. The causes were heard together, and the original bill dis missed-HELD: 4. The sureties of a township collector of taxes are not entitled to their homestead exemption as against the Commonwealth, in a proceeding against them and their principal, to recover the amount of taxes for which the Idem, 683 collector had failed to account. 5. The property of the sureties being covered by their homestead exemption deeds, the Commonwealth may go into equity to enforce her judgment against them. Idem, 683 CONDITIONAL SALES. 1. Whether a deed absolute on its face is a mortgage or conditional sale, is only to be determined in each case by its own circumstances; but in doubtful cases the courts incline to construe the transaction to be a mortgage rather than a conditional sale. Snavely v. Pickle & als, 1. The second bill asking for relief against the City of Petersburg, which could not be given on the pleadings and 27 proceedings in the original bill, but which 2. For the circumstances which will be was based upon grounds involved in that case, it was the proper subject of a cross-looked to, to determine whether a mortgage bill; but the relief sought by it being out- or conditional sale is intended, see the opinion of Burks, J. Idem, side of the original bill, the dismissal of the original bill did not involve the dis- 867 *CONFEDERATE INVESTMENTS. missal of the cross-bill. Idem, 401 27 1. An ante-war creditor refuses to receive from a purchaser of property sold 1. A paper complete on its face, set out an agreement between Mrs. M on the one part and S. M. on the other part, by which she sold to S. M. her dower right in land of her deceased husband, which had been assigned to her, for a certain price on stated credits, and they both executed the paper in duplicate; but it was agreed between them that they should meet on a certain day at the office of S, a lawyer, to have the paper examined by him and put into proper form if Mrs. M was prevented from atnecessary. |