January

Term.

Blair &

Hoge

V.

Wilson.

1877. the check, it might have been offered in evidence on the money counts, and if there had been no other evidence in the case, it would of itself have been sufficient to entitle the plaintiffs to recover on those counts. 4 Rob. Prac. 548, and cases there cited. But the check was only prima facie evidence of money lent, paid and advanced, or had and received; and when it was proved that no money had come to the hands of the defendant, the presumption raised by the check was rebutted, and consequently no recovery could be had on those counts. Bank of the United States v. Jackson's adm'x, 9 Leigh 221.

The only count in the declaration to which the evidence applied was the count for goods sold and delivered, under which the account, as a bill of particulars, was filed; and if the goods (the tobacco) were paid for absolutely by the check, then "the demand upon the account sued upon" was thereby extinguished, and there was no count in the declaration upon which the plaintiffs could recover. Sheehy v. Mandeville & Jameson, 6 Cranch's R. 253; Slocumb's adm'r v. Holmes' adm'r, 1 Howard (Miss.) R. 139.

Whether under the evidence the action could have been maintained on the check, if it had been specially declared upon, it is not necessary in this case to decide.

I find no error in the instruction given to the jury. Did the court err in overruling the motion of the plaintiff's for a new trial?

I regard the certificate of the judge in this case as a certificate of the facts proved on the trial, and not a certificate of the evidence, and this is the more favorable view for the plaintiffs. The judge certifies as facts proved, that the defendant gave his check to the plaintiffs for the amount of his indebtedness for the tobacco sold, and that the check was received by the

plaintiff's as cash, and credited to the defendant as cash, as was the usual habit of the plaintiffs in receiving checks from their customers, and that the plaintiffs deposited the check, on the day it was received, to their credit in the Bank of the Commonwealth. Cash is "money at command; ready money." Worcester. "Cash (commerce) is money on hand, which a merchant, trader or other person has to do business with." Bouv. Law Dic. 240. To receive a check therefore "as cash" is to receive it as money-ready money, and imports a payment of the debt for which it was given. If there was any doubt as to the intention of the parties in thus giving and receiving the check, it was for the jury to solve that doubt. Every reasonable presumption should be made in support of the verdict of a jury fairly rendered, and according to the long established well settled rule of this court, such a verdict cannot be set aside as against the evidence, unless there is a plain deviation-unless the evidence is plainly insufficient to warrant the finding. Many of the cases, the earlier and the more recent, establishing this rule. in Virginia, are cited and commented upon by Judge Moncure in delivering the opinion of the court in Read's case, 22 Gratt. 924.

I cannot say that the evidence in this case was insufficient to warrant the verdict; certainly, as it appears to me, it was not plainly insufficient.

If there had been no evidence tending to shew a satisfaction of the debt sued upon by the check given and received, it is still not very clear that the plaintiff's were not guilty of laches by which loss was sustained by the defendant. But, with my views of the case already expressed, it is not necessary to proceed further in our inquiries.

1877. January Term.

Blair &
Hoge

V.

Wilson.

1877. January Term.

Blair &
Hoge

V.

Wilson.

I am of opinion, that there is no error in the judgment of the circuit court of the city of Richmond, and that said judgment should be affirmed.

MONCURE, P., and ANDERSON, J., concurred in the opinion of Burks, J.

CHRISTIAN and STAPLES, JS., dissented.

JUDGMENT AFFIRMED.

Richmond.

HUDGINS V. MARCHANT & Co.

February 20.

Term.

1. Where real estate has been sold under a decree in a cause, and the 1877. sale has been confirmed, the purchaser is entitled to the possession of January the property, even though the decree confirming the sale does not direct possession to be delivered to him.

2. If an appeal in the cause has been obtained and perfected before possession of the property is obtained by the purchaser, he is not entitled to have possession. But if possession is obtained before the appeal is perfected, the purchaser is entitled to retain it until the case is decided in the appellate court.

The case is fully stated by Judge Moncure in his opinion.

J. T. Seawell, for the appellant.

M. B. Seawell aud Donovan, for the appellees.

MONCURE, P., delivered the opinion of the court.

This is a writ of error and supersedeas to a judgment of the circuit court of Mathews county, rendered on the 26th day of October 1872, affirming a judgment of the county court of said county, rendered on the 11th day of March 1872, in an action of unlawful detainer, in which William H. Hudgins was plaintiff, and J. W. Marchant & Co. were defendants. The action was brought to recover possession of a lot of land in said. county commonly known as "Cricket Hill;" was tried on an issue joined on the plea of not guilty, and verdict VOL. XXVIII-23

1877. and judgment were rendered therein for the defendJanuary Term. ants. Two bills of exceptions were taken by the plaintiff to rulings of the court against him in the progress of the trial.

Hudgins

V.

Marchant & Co.

In the first bill of exceptions are set out the facts of the case, which were agreed by the parties, and, so far as it is material to state them here, are as follows: The said William H. Hudgins was the owner of the said lot of land up to the time the same was sold by virtue of a decree of the circuit court for said county made on the 11th day of October 1870, in a cause therein pending in which Lanier Bros. & Co. were plaintiffs and said Hudgins was defendant, of which decree a copy is inserted in the bill of exceptions. Thereby it was decreed that unless the said Hudgins should within a certain period therein mentioned, pay to the said Lanier Bros. & Co. the amount of their judgment therein mentioned against the said Hudgins, certain commissioners appointed by the decree should proceed to sell, in the manner and on the terms prescribed by said decree, the property real and personal conveyed by the said Hudgins and his wife, for the benefit of his creditors, by deed of trust mentioned in the decree. The lot of land in controversy was a part of the real estate thus decreed to be sold. The said commissioners accordingly sold the said lot of land under the said decree, and the said J. W. Marchant & Co. became the purchasers thereof at said sale, made the cash payment, and executed and delivered their bonds for the deferred payments to the said commissioners. A report of said sale having been made to the court, the same was excepted to by the said Hudgins, on various grounds, which are set out in the bill of exceptions. Afterwards, to wit: at October term of said circuit court 1871, the cause