1. Testator by his will gives land and
stock to his son H. By the 3d clause of
his will he gives to his five daughters, by
name, the balance of his land, his daugh-
ter M to account to the rest of his daugh-
ters in the sum of $3,500, and his daugh-
ter L $5,200, these being the amounts
paid for homes for them. By the 4th
clause he gives to his son H and his five
daughters the balance of his personal
property, to be equally divided among
them--HELD:
1. The advancements to M and L
are only to be brought into the division
of the real estate.
Lewis v. Henry's ex'ors & als., 192
2. The personal estate embraced in
the 4th clause is to be equally divided
among the son and the five daughters.
Idem, 192
1. J has held possession of a piece of
ground in a city for forty years, which,
in all that time, has been within his en-
closure, claimed by him and cultivated as
his property. His said possession is ad-
verse to T and those under whom he
claims, claiming the land, and the statute
of limitations is a bar to any claim which
T might otherwise have to the land; and
the title of J thereto, even if it may not
have been originally good, has thus ma-
tured and become perfect by adverse pos-
session, and by lapse of time, and the
operation of the statute of limitations.
Thomas v. Jones,
1. As to inheritance of real estate in
Virginia, see Inheritance, No. 1, and
Hauensteins v. Lynham, escheator, 62
2. The penalty of the appeal bond
should be sufficient to indemnify and
save harmless the surety in the injunction
bond.
Idem, 184
3. An appeal from a decision of the
board of supervisors of a county, reject-
ing a claim arising under an order of a
county court, made in 1862, is properly
taken to the county court of the county.
Dinwiddie County v. Stuart,
Buchanan & Co.,
4. A decree which overrules certain
exceptions to a commissioner's report,
and confirms the report as to the ques-
tions involved in these exceptions, is a
decree settling the principles of the cause
as to these questions, from which the
party excepting may appeal, although the
report is recommitted to the commissioner
as to other matters involved in other ex-
ceptions.
Garrett's adm'x v. Bradford, 609
5. Where a warrant is brought before
a justice upon a claim exceeding twenty
dollars, and upon the application of the
defendant before trial, it is removed to
the county court, an appeal lies to the
circuit court, from the judgment of the
county court in the case.
Carter's adm'r v. Kelly, judge, 787
6. Pending a suit by judgment creditors
against the debtor and others, to set aside
a deed of trust, or subject the surplus to
payment of their debts, the debtor is de-
clared a bankrupt on his own petition;
and in the suit he claims his exemption
and homestead out of the surplus of the
purchase money of the land, after satisfy-
ing the debt secured by the deed. The
court below dismisses his application, and
makes a decree distributing the fund.
The bankrupt has such an interest in the
case as entitles him to appeal.
Barger v. Buckland & als.,
1. A commissioner in settling the ac-
count of W, committee of C, a lunatic,
makes two statements, the only difference
being in a single item of $1,000, which is
inserted in one statement and omitted
in the other, and he refers the question as
to this item to the court. The court
adopts the statement giving the commit-
tee the credit. On appeal, held an excep-
tion to the report was not necessary, and
the appellate court may correct the de-
Cole's committee v. Cole's adm'r, 365
2. Accounts settled by W in 1859 and
1863, speak of him as trustee of C; but
in the account by the commissioner he is
treated as committee of C. There being
no exception to the report for bringing
into the latter account the charges in the
first two, W's administrator cannot object
to the report on that ground in the appel-
late court, he not having excepted in the
circuit court.
Idem, 365
3. Where in a suit in equity, the rights
of the parties involves the decision of
questions which were not put in issue by
the pleadings, or so vague and uncertainly
as not to inform the opposite party of
what were the issues between them, so
as to prepare his case in a way to secure
a full investigation by the court, and a de-
cision according to the very right of the
case, and which would do justice to all
concerned, the appellate court will re-
verse the decree of the court below, and
send the cause back, with leave to the
parties to amend their pleadings.
Nash v. Nash & als.,
4. In an action of unlawful detainer
the defendant appears; but, though the
case is continued for years, he does not
file any plea. The cause is proceeded in
precisely as if there was a plea filed-the
jury are sworn to try the issue joined, and
the defendant makes full defence. There
having been a verdict and judgment in
favor of the plaintiff, the defendant can-
not set up the want of the plea and issue
thereon in the appellate court.
Bartley v. McKinney,
750
5. There having been oral evidence
expressly proving that the land in contro-
versy is part of the land devised to the
plaintiff by her husband, and the jury hav-
ing so found, though there may be docu-
mentary evidence tending to show it was
not embraced in the tract of the husband;
yet the bill of exceptions of the defendant
to the refusal of the court to grant a new
trial, containing the evidence and not the
facts proved, the court certifying its in-
ability to certify the facts because of con-
flict of evidence-the appellate court can-
not reverse the judgment, but must take it
to be correct.
Idem, 750
6. The general course of the examina-
tion of witnesses is, and must of necessity
be, left to the discretion of the trying
judge, and the exercise of that discretion
will never be interfered with by an ap-
pellate court unless it plainly appears that
some injustice has been done.
Scott and Boyd v. Shelor,
2. R, by a verbal contract, sells a house
and lot to M, who pays all the purchase
money and is put in possession. R has
no interest in the property which may be
subjected by attachment against him, as
an absent debtor, to the payment of his
debt. Hicks v. Riddick & als.,
418
3. After the purchase money had been
paid and M put into possession, R sent
M a deed executed by himself for the
property; but M, insisting that R's wife
should join in the deed, returned it to R;
and it was not again delivered. If the
deed might be considered as accepted by
M, that would not render the property
liable to the attachment. Idem, 418
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