1. There can be no prescriptive right to an easement through one lot for the benefit of one adjoining, where both lots have been 802 owned by the same person until a late day. Scott &als. v. Beutel & als., PROHIBITION.

1004

*4. Where the whole case is presented | 99, prohibits the sale of goods by sample, &c., by the petition and answer to the rule, by any person not a resident merchant, and only a question of law is involved, the mechanic or manufacturer, and applies to court may decide the case finally upon these citizens of the State who are not merchants, papers; and no other or further proceedings &c., as well as to citizens of other States; are necessary. Idem, 51 and the charge in the information that the party is not a resident merchant, &c., is not equivalent to the charge that he is not a resident citizen. The question, therefore, does not arise whether the statute is in violation of the constitution of the United States. Speer's case,

PUBLIC OFFICERS.

1. The treasurer of the State who holds bonds of a foreign insurance company doing business in the State, under the act of February 3d, 1866, as amended by the act of March 3d, 1871, is not liable to be summoned as a garnishee by a foreign creditor of the insurance company.

Rollo, assignee v. Andes Ins. Co., 509 2. A public officer of the State can not be made liable by attachment at the suit of an individual, for funds in his hands, clothed with a trust under the authority of a public law. Idem, 509

RAILROAD COMPANIES.

1. In an action against a railroad company for injury done to the plaintiff's horses, if it appears that the road runs through the plaintiff's land, and the horses got upon the track of the road without any negligence or default of his, and were killed by the company's engine, the company will be liable for the damage sustained by the plaintiff, if the damage was done by the failure of the engineer to take the proper care to avoid doing the injury.

Trout v. Va. & Ten. R. R. Co.,

RAPE.

619

1. When a receiver of a court may maintain a motion against a sheriff and his sureties, for money collected by the sheriff.

Goss &als. v. Southall, Receiver,

RECITALS IN DEEDS.

825

935

2. The word "resident" in the statute, in connection with the words merchant, &c., does not import a personal residence; but refers to the place of business; and any person, though a citizen of, and living in another State, may take out a license to transact business as a merchant, &c., in the State; and the statute, therefore, is not unconstitutional. Idem,

935 3. The statute is not a regulation of commerce, but is simply a revenue law.

518 3. When part of a debt evidenced by bond may be scaled. See Bonds, No. 5, and Barnetts v. Miller's adm'r,

551

1. By a decree in a cause in 1860 a sheriff is directed to collect certain money, and deposit it in a Savings bank. In 1866 he returns that he had collected it in May 1862, but the Savings bank refused to receive it. In October 1866 he is directed to pay it to a receiver. The receiver gives the sheriff and his sureties notice that he will move for judgment against them for the amount. The court has authority under § 40, of ch. 49,

See Estoppels, passim, and Bower & als. Code of 1860, to render judgment in favor of the receiver. And the money should not be v. McCormick & als., scaled.

RICHMOND-CITY OF.

310

51 not liable for compound interest. See Exec3. Art. 6, § 20, of the constitution of Vir-utors and Administrators, No. 8, and ginia, in relation to municipal officers, con

4. The act of May 28, 1870, sess. acts 1869-70, not liable on his undertaking. See Execu5. When sureties of an administrator are p. 162, to prevent the sacrifice of personal tors and Administrators, No. 18, and property at forced sales, construed in Childress &als. v. Morris,

United States is made a party, and appears to maintain the devise. The court held the trust void. HELD:

1. The U. S. represented the trust in the New York suit; and the decree is conclusive upon Va., though she was not a party. Commonwealth of Va. v. Levy & als., 21 2. The trust is in its nature indivisible; and if the decree in the New York court does not conclude *the commonwealth of Va., as to the land here, still the trust can not be executed accord

1007

entitled to the land.

ing to the intention of the testator; and the trust must therefore fail, and the heirs are Idem, 21 2. Deed of trust to two trustees, to secure debts, empowers the two, or either of them, to sell upon the demand of the creditor. If one of the trustees refuses to unite in the sale, the other may make a valid sale.

Græme v. Cullen & als.,
Hunter v. Johnston & als.,

266
266

3. The house on the lot in a city conveyed in trust, is burned down, and the grantor in the deed employs workmen to build another house, upon an agreement to give them a lien upon the lot and house for the cost of the building. The workmen are not informed of the first lien, until after they have nearly completed the building; though it was duly recorded. The whole property is subject to satisfy the first lien.

Idem,

266

9. Bill by a creditor makes grantor, trustee, and judgment creditors, defendants, and bill taken for confessed. There having been no objection for want of proper parties, the want of such parties is no objection to the proceedings. Idem, 494

10. If there were other creditors besides those named in the bill, they could have asserted their claims before the commissioner who was directed to take account of debts. Idem, 494

11. The creditors before the court made no objection to a sale under the deed; and as the bill was taken for confessed as to them, they did not constitute a majority of the it is to be presumed they desired a sale. If creditors it was for H, the grantor, who objected to the sale, to show it. He alone knew Idem,

their names or number.

UNLAWFUL DETAINER.

494

1. A contracts to build for G in the city of Richmond, certain houses, according to a 4. The act, ch. 135, § 30-34, "concerning plan and specifications, for the sum of $54,700, the action of ejectment," and the act, ch. payable in annual instalments of $12,000, to 136, "concerning the allowance for improve- bear interest at the rate of $7.30 per cent. ments," do not apply to this case. They are confined to cases of ejectment, or cases in per annum, to be secured by deed of trust on the property. If the interest which a decree or judgment is rendered 1008 *was a part of the contract price of the against any defendant for land. buildings, the contract is not usurious. If it was for the loan of money or other thing, or for the forbearance of a debt due, it was usurious. Græme v. Adams, 225

Idem, 266 5. Though the builders have obtained a second deed of trust on the property, and claim that only the value of the lot, without the house, should be applied to satisfy the first lien, this is not such a cloud upon the title as forbade the trustee to sell under the first deed; especially as the grantor in the deeds had obtained an injunction to a sale of the property on that ground; which had been dissolved before the advertisement of the second sale. Idem, 266 6. The trustee should sell according to the provisions of the deed. Idem, 266 7. The vendor of a house and lot transfers to the vendee an insurance policy upon the house, and takes a deed of trust to secure the purchase money. The house is afterwards consumed by fire. The debt not being paid, the vendor is not bound to pursue the insurance company, but may enforce payment by a sale of the property.

2. A claims that he entered into another subsequent contract with G, which was to bear six per cent. interest. If the first contract was usurious, all the usury included in it must have been excluded from the second, or it is usurious. Idem, 225

3. To constitute a new contract the first must be rescinded and set aside by the parties to it, and the second adopted as a substitute for the first with the intention to be governed thereafter by its terms. Idem, 225 4. The price at which the work was done under the second contract was just as much greater than that provided for in the first, as the difference of the interest on that first sum at six and $7.30 per cent. per annum for the whole time of the credit, viz: $57,800; and when the work was completed notes payable Idem, 266 as agreed on in the contract, were taken, 8. A deed of trust to secure grantors' cred-bearing six per cent. interest from their date until payment. If the addition to the first itors names none of them, but requires a majority of them to direct a sale. The only Sum contracted for was for the loan of money mode of proceeding open to them, is by bill or other thing, or for the forbearance of a debt due, the second contract is usurious; in equity, where the necessary parties may but if it was not for such loan or forbearance be conveyed, and the trust enforced under it was not usurious. Idem, 225 the supervision of the court.

5. Forbearance, in the sense of the statute in relation to usury, is the giving a further

day for the return of a loan when the time originally agreed on is passed; and if the rate of interest agreed on for such forbearance is over six per cent. per annum, it is Idem,

usurious. 225 6. In May 1866 T executes his bond to S for $2,400 payable in gold. The considerations of the bond proved, was a debt due before the war, of uncertain amount, and $1,670 in United States currency advanced at the date of the bond, when this currency was as 129 1-8 for gold and 121 for silver. As it does not appear what was the amount of the antewar debt, usury is not proved.

Turpin v. Sledd's ex'or,

VENDOR AND PURCHASER.

238

1. S and others sell to W in 1851, a wharf at Norfolk, and covenant to allow him to use a dock belonging to them in connection therewith, as long as they continue to own it and the adjoining premises. The wharves were originally built out into Elizabeth river and the tide ebbs and flows into the dock; but they are within the port warden line, a line drawn along the channel of the river under an act of the General Assembly; and they were built so long since that no persons living have any knowledge when they were built, and they always have been held as private property. HELD:

1. W had one son S, who was married, and an idiot son J, in Va. and several children who had years before his death, moved to the North west. S lived on the land of his father, and he and his wife had for many years taken care of both W and his son J. In December 1861 W made his will, by which he gave the whole of his property, except $200, to his son S; and for this S was required to take care of J. W seems to have been influenced principally by the services which S and his wife had rendered and would have to render to himself and J, and

1. Quære: If any title which the common-in part by the fear that any thing he gave wealth might at an earlier day have asserted to this dock, if not expressly surrendered, has not been abandoned in favor of those claiming to be owners thereof. Hardy v. McCullough & als.,

251

to his other children would be confiscated; and he expressed to S the wish that when the care of himself and J had ceased, that S would do what he thought was right with his brothers and sisters, in regard to the residue of his estate, if any remained after a just compensation to S for his services; and of this S was left to judge. There was no evidence of fraud or undue influence upon W. The devise is absolute, and no trust in favor of the other children of W is attached to it.

Whitesel &als. v. Whitesel & als., 904

746