when the statement was made, does not | opinion, that the court did not err in giving take the case out of the operation of the them. After giving two instructions on principle. The parties were not legally the motion of the prisoner, the court gave separated. They still were man and wife, the following on the motion of the commonentitled to all their legal rights as such, wealth: however unworthily the husband may have acted. The rest of the evidence set out in the second bill of exceptions is inadmissible, as we have already seen, upon other grounds. "The court also instructs the jury, that the law is, that a man is taken to intend that which he does, or which is the natural and necessary consequence of his own act; and therefore, that if they believe from the evidence, that Alexander Murphy wounded his father, John Murphy, by the deliberate use of an instrument likely to produce death, under the circumstances; then the presumption of the law, arising in the absence of proof to the contrary, is, that he intended the consequences that resulted from said use of said deadly instrument. Thirdly: We are of opinion, that the said County court did not err in overruling the motion of the prisoner to set aside the verdict and grant him a new trial, as mentioned in his third and last bill of exceptions; and that all the reasons assigned in said bill for granting such new trial are insufficient for that purpose. They are five in number. The 1st: "Because he was arraigned and plead without the aid of "The court further instructs the jury, counsel, having none present when he plead from the deliberate use of a deadly weapon that the law is that malice may be implied not guilty to the indictment," is not well in the absence of proof to the contrary." founded. A man may plead for himself. The prisoner said he had counsel, though These two instructions correctly expound they happened to be absent. the law; and He plead volwere appropriate, and not untarily, and had the cause continued; mere abstractions. The 5th and last of the and his counsel were present and defended reasons assigned are, that "the judgment him at his trial. The 2d and 3d have al- should be arrested, because there is no ready been disposed of, being the subjects felony charged in the 2d count of the inof the 1st and 2d bills of exception. The dictment, which may be the one under 4th is, "because the court erred in giving found him guilty under both; and if either I which the jury found him guilty." They to the jury the instructions asked for by be sufficient, it is enough. commonwealth. These instructions were not excepted to when they were given, ony be charged in the 2d count or not, is a nor till after the verdict; and it is at least question which we need not decide; as the doubtful, whether they can be regarded as ceded to be so by the plaintiff in error. No 1st is certainly a good count, and is cona part of the record. They are not copied motion was made to set aside the verdict, in the 3d bill of exceptions, nor are they therein referred to, except by being men- upon the ground that it was contrary to tioned as aforesaid, in the 3d of the law and evidence; and certainly it was conreasons assigned for a *new trial. They are copied by the clerk at the end of the record. Without deciding whether they can properly be considered as a part of the record, but assuming them to be so, for the purposes of this case, we are of the 972 trary to neither. Whether a fel 973 *We are of opinion, that there is no error in the judgment, and that it ought to be affirmed. Judgment affirmed. 722 ABANDONMENT. INDEX. 1. See Vendor & Purchaser, No. 1, and Hardy v. McCullough & als., 251 ACCOUNTS. 1. The decided cases do not fix any period as limiting the demand for an account. If, from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive must, at best, be conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of parties, as to render it difficult to do justice, the court will not relieve the plaintiff. If, under the circumstances of the case, it is too late to ascertain the merits of the controversy, the court will not interfere, whatever may have been the original justice of the claim. 2. To entitle H to recover from M, it is not necessary for him to prove that the whole 241 hogs each weighed over 180 lbs. gross, and were "good fat hogs;" but if he prove that any number of them over 200 were of such weight and quality, he is entitled to recover. Idem, 561 3. It is not necessary that H should have had each hog weighed separately in order to entitle him to recover; but if he proves, to the satisfaction of the jury, that 200 or more of them, each weighed 180 lbs. that is sufficient. Idem, 561 4. An experienced drover of hogs, accustomed to butchering and weighing 212 976 *them, who was present when the hogs were weighed, and saw them and attended to the weighing of them, may give to the jury his opinion as to the weight of each hog. Idem, 561 Harrison & als. v. Gibson & als., 2. Though a delay of fourteen years after a right has accrued, does not create a statutory bar, it will, in connection with other circumstances, be very persuasive against the justice of the claim. Relief refused in this case. Idem, 212 3. Coverture is no excuse for delay in bringing the suit. Idem, 212 4. The provisions of § 16, ch. 132, Code of 1860, prescribing what shall be done by a commissioner in settling the accounts of fiduciaries, apply to the report, regular or special, mentioned in § 34, of the same chapter. Whitehead's adm'r v. Whitehead & accounts. 5. As the hogs had not been weighed separately, either at G or afterwards, the opinion of the witness is not substitutional, but is original evidence; and the best which under the state of facts is attainable. Idem, 561 6. There having been no market price for hogs at G on the 8th of December, H may show by testimony, what was the market price at that time and shortly before and afterwards, in the surrounding country. Idem, 561 ADMINISTRATION. 1. Testator having directed certain land See Strother & als. v. Hull & als., 652 to be sold, and his debts to be paid out of its ACTIONS. H contracts to sell to M not less than 200 and not more than 300 good fat hogs, each to weigh not less than 180 lbs. gross; to be delivered at G, by the 8th of December, and to be weighed at the scales at G. And M binds himself to pay to H for the said hogs, when weighed, 131⁄2 cents per pound gross weight, part in cash and part in twenty days. H has at G on the 8th of December, 241 good fat hogs, of which he gives M notice; but M declines to take them, and does not come to G on that day. H on that day procures R, the weighmaster at the scales and G to weigh the hogs; and they weigh them in 16 parcels of from 7 to 20 hogs in a parcel, showing from the aggregate weight of all and the weight of each parcel, that the average weight is much above 180 lbs. gross. HELD: 2. In October 1865, T, one of the heirs at law and the administrator of G, filed his bill against the other heirs, some of whom were infants, for the sale of the land of G, on the ground that partition could not be made of it. He said he had proceeded to administer the assets, and so far as he knew, there was but one debt due from the estate, and the assets were sufficient to pay it. The court decreed a sale of the land, and directed a commissioner to take an account of the available 542 the decree corrected and affirmed, with costs 4. When an appeal will be dismissed, or to the appellee. assets, and of the outstanding debts of G. |fore the passage of the act of November 5th, The commissioner reported the debts be- 1870; and as to those since rendered such tween three and four thousand dollars, and period of limitation is two years. assets nearly as much. The land was sold Callaway v. Harding, for $12,741, one-third cash, and the balance in one, two and three years. The cash pay ment aud the first credit payment were divided among the heirs. At the November term 1867, the court made a decree directing the second payment to be collected and distributed ratably among the creditors of G, according to the report of the commissioner. HELD: 2. So long as the debts due the estate were not collectible by reason of the operation of the stay law, the debts against the said estate could not be enforced, for the same reason, against the land or the money resulting from its sale. Idem, 780 3. If the Circuit court apprehended a deficiency of personal assets, or that the rights of creditors would be endangered by a distribution of the land fund among the heirs, it would have been proper to retain under its control so much of said fund as was necessary, until the amount of such deficiency was accurately ascertained, and then to supply the same by a resort to such land fund. ADVANCEMENTS. See Executors & Administrators No. 12 and Strother & als. v. Hull & als., 652 5. A final decree in a cause was made in October 1863. On the 5th of October 1871, an appeal from this decree was allowed by a judge of the court of appeals. The petition, with the endorsement, was filed with the clerk, on the 9th of the same month, and the appeal bond is dated the 26th of April 1871. Quære: If the appeal was barred by the statute limiting appeals. Sexton v. Crockett & als., 857 1. Where an order is made in a pending cause, submitting the matters in dispute therein to arbitration, and the arbitrators have before them the pleadings and exhibits, duly consider them, and return them to court Idem, 780 with their award, if it appears from an inspection of the whole, that the arbitrators have made a plain and palpable mistake of law, there can be no valid ground for refusing relief in such cases. 1. J held an estate for her widowhood in a tract of land, remainder to the children of her husband; two of whom were by her. Her son R used her money, with her concurrence, to buy the interest of the remainder Moore v. Luckess' next of kin, 160 2 L's ex'or sues M upon his bonds executed men in the land, and took the conveyances to to L, and M pleads payment, and files an himself. Upon the evidence in the cause, account of set-off, consisting of charges for held that the money so used by R was in-services rendered to L, running through fourtended as an advancement by his mother to him. Gregory &als. v. Winston's adm'r &als., APPEALS. 102 teen years. Pending the suits, the ex'or and M agree to refer the matters in dispute to arbitration, the submission to be entered of record in said causes. The arbitrators return their award by which they 1st, ascertain that M is indebted to the ex'or in the amount of the bonds; and 2d, that M is entitled to the credits he claims for the five years before the suit brought, specifying the amount in each year. The ex'or declining to oppose the confirmation of the award, the next of kin of the residuary legatee of L file their bill to set it aside, on the ground that the arbitrators intended to decide the case according to law, and had mistaken it. The arbitrators say in their testimony, that they intended to decide 2. When appeal may be in a case of prohi- the case according to law, and apply the bitions. See Prohibition, No. 1, and 1. When an appeal is obtained from a decree by default before an application is made to the court to correct it, the appeal will be dismissed as improvidently *awarded, unless the appellees waive the objection. 977 Commonwealth of Virginia v. Levy &als., Burch, mayor, v. Hardwicke, 21 51 3. The longest period of limitation within which a petition for an appeal, writ of error or supersedeas can be presented, is two years, nine months and ten days, as to final judgments, decrees and orders rendered be statute of limitations to the account of M; and they had before them the papers in the causes, the account of M and the depositions filed, and returned them with the award. HELD: 1. Though the award does not refer to the papers, yet they are so identified, that the court will consider them in connection with the award; and it being apparent that the arbitrators took the institution of the actions, instead of the filing of the plea, as the date from which the statute would cease to run, the court will correct the error. Idem, 160 2. A court of equity, alone, has jurisdiction to correct the error; and the ex'or declining to oppose the confirmation of the award, the next of kin may maintain the suit. Idem, 160 3. Under the statutes, an award cannot be set aside in a common law court, except for error apparent on the face of the award, or unless it has been procured by corruption or other undue means, or misbehaviour in the arbitrators. Idem, 160 *4. The error of the arbitrators may be corrected without setting aside the award, by striking out from it the credits allowed M to which the statute applies, dating from the filing of the plea. 978 Idem, 160 3. Arbitrators are required to return their award by a certain day, under their hands and seals. They prepare their award; and the day before they are required to return it, one of them hands it to the counsel of the plaintiff. He sees that they have omitted the seals, and he returns it to them, and requests that they will add the seals and insert the word "seal" in the body of the instrument. This they do, and then deliver it on the day to which they are limited by the submission. The award is valid. Forrer v. Coffman & al., 871 4. The submission is made of matters in controversy in a suit by M against F & C, late partners, on a claim against the partnership. F alone is the party to the submission, and binds himself to perform it; and the award is that F shall pay to M, &c. The fact that C is not named in the award is no objection to it. He is not bound by it, having been no party to the submission. Idem, 871 5. The submission providing that the award shall be entered as the judgment of the court, when so entered it is the judgment in the cause, and settles all matters involved in the action; and it was not necessary that the award on its face should dispose of the action. Idem, 871 6. The arbitrators might properly allow interest upon the ascertained present value of rents to become due. Idem, 871 7. It not appearing in the record, whether the term of the county court at which the award was entered as the judgment of the court, was a quarterly or monthly term, it must be presumed by the Appellate court, that it was a term at which the court had jurisdiction to enter the judgment. ATTACHMENTS. Idem, 1. See Judicial Sales, No. 3, and Underwood v. McVeigh, 4. For guardian's bonds, see Guardian and Ward, No. 4, and Sayers v. Cassell & als., 525 5. M held the bond of G for $700, executed before the war. In September 1862, G proposed to pay M in Confederate money, which she refused to receive, saying she would receive the interest, but not the principal money. His brother C said he wanted money, and G said if she would let C have the money and give up his bond, he would go C's security. M then let C have $100 of Confederate money, and C and G executed their bond to M for $800, and she gave up G's bond. Nothing was said about the bond being for Confederate money, and G paid to C $700 in that money. This was not a novation of the debt, 409 but it retained its original character; and as 871 6. A paper perfect as a bond, except that there is a blank for the name of the obligee, is signed by P and M, and put into the hands of M for the purpose of borrowing money upon it. It is expected that F will lend the money, but if he does not it may be gotten from some other person. M obtains the money from H, and fills the blank in the paper with the name of H, and delivers it to him. This is done in the absence of P, and without his knowledge. It is not the bond of P. 2. The sum advanced for the redemption of the shares is no part of the debt of the shareholder whose shares are redeemed, to the association. The only debt due from him which is a lien under his deed of trust is the monthly dues and interest upon the money advanced, to be paid monthly and continuing until the unredeemed shareholders have received the amount the articles of the association provide for. Idem, 787 3. H, whose shares were redeemed, gives another deed to secure a debt to G, upon the property conveyed to secure the association, and he ceases to pay his dues and interest, and his property is sold by the trustees of the association. H and G may elect to have the proceeds of the sale invested, and the unpaid monthly dues and interests paid out of the interest and as much of the principal as may be necessary, or to have the present value of these monthly dues and interest ascertained and paid out of the proceeds of the sale, to the association. 1. For the distinctions between a capias pro fine and a ca. sa. see the opinion of Christian, J., in Wilkerson, sheriff for &c. v. Allan, 10 2. How a person in custody under a capias pro fine may obtain his discharge. See Code of 1860, ch. 209, SS 19-20. Idem, 10 CIRCUIT COURTS. and died in 1862. By his will he directs his 1. R made his will on the 22d of April 1861, executor to sell to his sister a tract of land at $15,000, if she is willing to take it at that price. S agrees to take the land; and in January 1863, executes her bond for the amount. It is not a contract made with reference to Confederate currency as the standard of value, or to be paid in that currency; there having been no such currency when the will was made. Gregory & al. v. Winston's adm'r & als., 102 3. The court instructs the jury "that if they believe from the evidence, the parties contemplated Confederate money as the funds to be paid, the note falling due since the close of the war, when Confederate money was not current, and had no appreciable value, they should find the scaled value of the money at the time of the contract." It was error to stop with this, but he should have added that in fixing the amount of the plaintiff's recovery they were authorized to take into their consideration the fair value of the land. Idem, 534 4. When ante-war debt not converted into a Confederate contract by taking another 5. On the 19th of December 1862, L and S made an agreement in writing, which recited that I had that day purchased of B two 1. A Circuit court has no authority to make tracts of land, one of 100 and the other of 50 a decree or render a judgment, in a cause in acres, adjoining, for the price of $1,708 25; vacation, except such decree and orders as and L agreed to let S have the use and posare authorized by statute; and the consent session of the land for five years from date, of the parties cannot give the jurisdiction. on condition that S would pay to L puncTyson's ex'ors v. Glaize & als., 799 tually at the end of each year, the interest on |