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CONSTITUTIONS AND STATUTES CITED IN OPINIONS

xiii

Virginia Code, 1904, Section 3286a.
Virginia Code, 1904, Section 3293,
Virginia Code, 1904, Sectien 3298, 3299,
Virginia Code, 1904, Section 3333a.
Virginia Code, 1904, Section 3385,
Virginia Code, 1904, Section 3395,
Virginia Code, 1904, Section, 3404,
Virginia Code, 1904, Section 3427,
Virginia Code, 1904, Section 3435,
Virginia Code, 1904, Section 3451,
Virginia Code, 1904, Section 3454,
Virginia Code, 1904, Section 3662,
Virginia Code, 1904, Section 4018,
Virginia Code, 1904, Section 4040, 4041,

PAGE

83 751 120 149 883 601 890 104 571 104 485 507 294 507

The earliest report of all current decisions of the Suprenie Court

of Appeals.

VOL. II.

MARCH 21, 1908.

No. 1.

Tri-monthly during months beginning 15th of each January, March,

June, September and November. M. B. WATTS,

Editor and Publisher

RULE XVII.

REHEARING.

No application for a rehearing will be entertained unless made within ten days after the decision is announced (except as otherwise authorized by law), and no rehearing will be allowed unless one of the judges who concurred in the decision shall be dissatisfied with it and desires a rehearing. And an application under the Code, Chapter 170, sec. 3942 to rehear and review any case decided by this court within the first fifteen days of the next succeeding term and not therewithin the first ten days of the next succeedng term and not there after.. And no application for a rehearing will be entertained by the court, in any case, unless the reasons therefor, printed, shall be filed at the time such application is made.

N. B.-All opinions printed in this number are subject to rehear. ings which may be granted under the above rule. Petitions for rehearing filed, and the action of the court thereon, will be noted on this page of each number.

Rehearing pending in

Briggs & Cobb v. Barnett (1 Va. App. 245.)

CASES REPORTED IN THIS NUMBER.

Page Brown & Hooe v. CORNELL ET Als-Mechanics Lien-Sufficiency of

Account-Code, sec. 2476—Pleading and Practice-Demurrer-
Statement in Decree Imports Verity-Demurrer by One of Two
Co-Defendants

111 BURTON HAYDEN ET Als-Deeds—Compromise of Doubtful

Rights-Equity Jurisdiction-Mistake-Ignorantia juris non
ercusat-Case at Bar...

52

V.

Page CARTER'S ADMINISTRATOR V. SKILIMAN ET ALS-Fiduciaries-Ad

ministiators-Protected by Order of Court--Code, secs. 2671 , tt seq-Courts—Limited and General Jurisdiction.in

1 CITY OF NORFOLK V. PERRY COMPANY ET ALS—Taxation-Perpetual

Leaseholder-Public Taxes Include State and Municipal—Non-
user of Fower to Tax-Power of City to Tax Own Property-
Separate Assessment of Land and Buildings....

36 City Of NORFOLK V. WHITE-Lease--Unauthorized Act.

41 CROUSSE v. CROUNSE-Divorce-Desertion-When Justifiable Cruelty-Evidence---Case at Bar....

95 LRAKE V. BLYTHE ET ALS—Wills-Joint Tenants-SurvivorshipCode, sec. 2431...

43 J'ENTRESS 1. POCAHONTAS FOWLING CLCB-Ejectment-Evidence

Lemurrer-Conflicting Grants-Boundaries—Water Courses... 140 FRENCH V. LOGAN'S ADMINISTRATOR ET ALS—Wills-Vested Interests-Contingent Reminder--Case at Bar.

64 GRCBB BROTHERS V. MOORE' CLEMENS & COMPANY--ContractsSpecific Performance.

67 HEXINGS

1. PARSONS---Real Estate Agents-Commissions-Contiacts-Notice

15 TIGERSOLL V. Pond ET Aus-lusurance-Benefit Societies–Gift of

Policy-Contracts-Equity Judisprudence-Specific Perform-
ance--Case at Bar....

. 130 KELLY 1. GWATKIN ET AL-Pleading and Practice-Amendment

Tax TitlesJurisdiction of Court to Cancel Deed-Redemption of Land-Act April 2, 1902–Constitutionality-Impairment of Contract

19 TORLAND V. MOKELAND-Contracts-Foreign Laws—Husband and

Wife-Separation Agreement-Right of Wife to Contract-
Anticipatory Breach-Pleading and Practice--Assumpsit-
Affidavit-Code, sec. 3286....

83 F.OBINSOX V. CITY OF NORFOLK -Extra-Territorial Taxation-Code, sec. 1032..

25 SOTAL BUCH v. DILLEMUTH-Adverse Possession-Claim of Grantor

Against His Grantee--Mistake as to Boundary—Evidence..... 78 SHAROARD AIR LINE RAILWAY 2. CHAMBLIN ET ALS-Eininent

Domain-Evidence-Fair- Market Value-Proof of Sale of
Property Identical in Character-Waiver of Objection.

45 SOUTIERS RAILWAY COMPANY U. NEWrox's ADMINISTRATOR-Rail

reads-Fatal Injury Independent Contractor-Negligence-
Contributory Negligence.

. 100 STIMIEL V. BENTHALL ET AL-Appeal and Error-Final Judgment

--Pleading and Practice-Objection in Trial Court-Set-off —
Debt Due by Plaintiff to Surety...

120 TRADERS AND TRUOKERS BANK v. BLACK ET AS-Practice Instruct

ing Jury-Principal and Agent-Constructive Notice-Case at
Bar

58 TRUCKERS MANUFACTURING & SUPPLY CO. D. WHITE- Master and

Servant-Personal Injury-Mutual Duties-Defective Appli-
ance-Notice-Liability-Evidence-Conflict--Appeal and Error
-Instructions-Harmless Error......

125 VANSANT, KITCHEN & Co. v. COMMONWEALTH-Statutes--Repeal

Taxation-Jurisdiction of Products Intended for Exportation... 115 WHITTLE ET ALS. v. WHTTLES EXECUTORS-Wills-ConstructionResiduary Clause-Case at Bar....

31 WINGFULD 9. MCGHEE ET ALSJudges-Power to Make Decrees In Vacation-Code, secs. 3427, 3451...

...104 CARTER'S ADMINISTRATOR v. SKILLMAN, ET ALS.

(Richmond, March 12, 1908.)

1. FIDUCIARIES-AdministratorsProtected in Settlement of Estate by

Order of Court-Code, secs. 2671, et seq.-The provision made by our statute law for the settlement of the accounts of fiduciaries is full, ample and complete, and guards and protects every interest as amply as could be done by a formal suit in chancery. Where after regular and orderly proceedings under the statutes, a court having jurisdiction of the whole subject, finds that there is but one distributee; and the administrator, having fully settled his accounts, is directed by the court to pay over to this distributee the estate of the decedent, without a refunding bond, the administrator is protected in such payment against the con

sequences of his obedience to the decree. 2. COURTS-Limited and General Jurisdiction. The only difference be

tween a court of limited and one of general jurisdiction is, that with respect to the latter there is a presumption in favor of the jurisdiction, while with respect to the former the presumption is against that jurisdiction; and the jurisdiction of the former being established, all the presumptions are in favor of the right. ful exercise of that jurisdiction.

Appeal from Circuit Court of Loudoun County.

Reversed.

John II. Alexander, Richard H. Tebbs, for appellant.

Chas. P. Janney, N. C. Nichols, R. Walton Moore, for appellees.

KEITH, P.--Travers H. Carter died intestate, unmarried and without issue, possessed of considerable real and personal estate in the county of Loudoun, and at the November term 1892, of the county court of Loudoun county his estate was, on mnotion of Edwin J. Carter, a distributee, committed to the sheriff for administration.

The actual administration of the estate was entrusted to William S. Summers, a deputy sheriff, within whose district the decedent had resided. Summers proceeded promptly to Fettle his accounts as administrator before William N. Wise, a commissioner of accounts, and a balance was ascertained to be in his hands of $2,197.14, which the commissioner reported as payable to “E. J. Carter, sole heir at law of said decedent.” This report was duly confirmed by the court.

At the March term, 1894, of the county court, an order was entered, that the creditors of the decedent, Travers H. Carter, appear on the first day of the May term, 1894, and show cause, if any they can, against the payment and delivery of the estate of said Travers H. Carter to his distributee, Edwin J. ('arter, without a refunding bond; and at the May term, 1894, an order was entered, reciting due publication and posting of the former order, that no creditors had shown cause against it, and ordering the payment to the distributee, E. J. Carter, of the said sum of $2,197.14, without refunding bond. This payment was accordingly made.

On December 1, 1903, John H. Skillman, of the State of Washington, and Bushrod Skillman, of the State of Indiana, filed their bill in chancery, in which they made H. H. Russell, sheriff of Loudoun county, E. J. Carter and others parties defendant, claiming that E. J. Carter was not the sole distributer of Travers H. Carter, but that he had left surviving him at mother, Mary A. Skillman, and two half brothers, besides that said Edwin J. Carter; that the mother had since died; that they had been ignorant of the death of Travers II. Carter wil 1900, and had since been diligently prosecuting their claims; and that they were not parties to any proceeding touching the said personal estate or its payment to E. J. Carter.

It was originally claimed that the bill was one to surcharge and falsify the accounts of the personal representative of Travers H. Carter, but this contention was properly abandoned. The accounts of the administrator contained a full, complete and fair settlement of the estate committed to his charge. There is no pretense that a dollar has been omitted with which the administrator should have been charged, or that a penny has been credited to him with which he should not have been credited.

The sole questions are, first, was Edwin J. Carter the sole distributee, and, secondly, did the proceedings before the cominissioner of accounts of Loudoun county and before the county court protect the administrator uder the circumstances disclosed in this record ?

The circuit court was of opinion that the sheriff, as administrator, was not protected by the order of the county court in

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