PERSONAL REPRESENTATIVES (continued).
26. Idem-Application of estate.-Where testator charges his debts on his
personalty only, the order of applying his estate to the payment of
his debts is: (1) Personalty at large; (2) residuary legacies; (3) gen-
eral pecuniary legacies; (4) specific legacies; and lastly, real estate
devised by will. And where the residuary legacy is bequeathed to
the executor, and he takes and consumes it, leaving testator's debts
unpaid, his sureties are liable for the amount thereof before real es-
tate devised by will can be subjected. Elliott v. Carter and als., 9
Gratt. 549. Idem.
TESTAMENTARY capacity-Physicians.—Physicians are considered as
occupying high grade as witnesses as to testamentary capacity, espe-
cially a physician who has attended the patient through the disease
which is supposed to have disabled his mind. Cheatham v. Hatcher,
30 Gratt., 65; Montague and Wife v. Allan's Ex'or and als., 592.
POST-NUPTIAL SETTLEMENT.
Fraudulent conveyances-Burden of proof-Answer.-Post-nuptial set-
tlements are presumed to be voluntary, and the burden of showing
they are made upon valuable considerations rests on those claiming
under them. Where bill charges them to be voluntary, the answer
does not shift the burden, and is not evidence for the respondents,
but the defence must be proved. Fink v. Denny, 75 Va., 663;
Hatcher and als. v. Crews and als., 460.
1. Trust deeds-Covenant-Demurrer.-Demurrer lies to action of cove-
nant on trust deed executed merely as collateral security for payment
of promissory note. Wolf v. Violett's Adm'r, 57.
2. Limitations.—Such trust deed does not raise such note to the dignity
of a specialty, and such note is barred by lapse of five years before
suit brought. Idem.
3. Covenants broken-Evidence.-Such trust deed, in action thereon, is
not of itself sufficient evidence of covenants broken, and a verdict
founded on such evidence alone, is unwarranted. Idem.
4. Taxes-Coupons-Remedy-Case at bar.-Tax payers prior to Ist De-
cember, 1882, tendered coupons detached from bonds issued under
funding bill of 1879, in payment of their taxes to the collector, who re-
turned that he was ready to receive the coupons in payment of those
taxes as soon as they had been legally ascertained to be genuine,
and the law of the case complied with. Circuit court sustained de-
murrer to the return and awarded mandamus,
PRACTICE AT COMMON LAW (continued).
HELD:
1. The demurrer was properly sustained.
2. The tax payers were entitled to writs of mandamus to compel the
collector to receive the coupons.
3. That the act of 26th January, 1882, abolishing the writ of manda.
mus in such cases, and providing another remedy, did not take
effect until after the tender of those coupons-to-wit: not until
1st December, 1882. Commonwealth v. Guggenheimer, 71.
5. Demurrer to evidence-Rule in Virginia.-Either party may demur,
unless case be clearly against party offering, or court doubts what
facts should be reasonably inferred from the evidence demurred to;
all the evidence on both sides is put into the demurrer; demurrant
admits all that could be reasonably inferred by a jury from demurree's
evidence, and waives all his evidence which contradicts demurree's,
or the credit whereof is impeached, and all inferences from his own
evidence which do not necessarily flow from it. R. & D. R. R. Co.
v. Moore's Adm'r, 93.
6. Alteration-Burden of explanation.—It is encumbent on party offering
instrument as evidence to explain any appearance of alteration on its
face. But where witness mentions a written contract and opposite
party demands its production, it is not encumbent on the other party
who does not offer, or claim under it, to explain any appearance of
alteration on its face. Priest, &c., v. Whitacre, Sheriff, 151.
7. Instructions.—No instruction is proper unless there is evidence before
the jury to which it is relevant.
8. New trial.-Though there be some evidence tending to establish the
fact in issue, or the evidence consists of circumstances or presump-
tions tending that way, the verdict will not be set aside and a new
trial granted, merely because the court, if upon the jury, would have
given a different verdict, nor unless the verdict rendered was plainly
unwarranted by the evidence. Idem.
9. Sales-By sample-Instructions.-An instruction is erroneous which
assumes that if there was a sample exhibited, the sale was a sale by
sample, unless seller declined to sell by it, and also required buyer
to inspect the bulk, at his own risk; and that in some cases the jury
may assume, where a sample is exhibited, that the sale is a sale by
sample, even though seller may expressly decline to sell by it and re-
quire buyer to inspect the bulk at his own risk. Proctor v. Spratley,
254.
10. Instructions.-It is no error where court refuses to give an instruction
asked for, but gives one as favorable. Idem.
11. New trials.-Where court below certifies the evidence, not the facts,
the judgment will not be reversed, unless after rejecting all the ex-
ceptor's evidence and giving full faith to the adverse party's, the
PRACTICE AT COMMON LAW (continued).
judgment shall appear wrong. Where the case before the jury de-
pends on the credibility of witnesses, and new trial is denied by court
below, this court will not reverse the judgment. Idem.
12. Instructions.—Instructions founded upon no evidence in the case are
properly refused. Birch v. Linton and Wife, 584.
13. Bill of exceptions.-Bill of exceptions cannot properly and regularly
be added to record of case after case is ended by final judgment and
the power of court over it has ended by the close of the term. Moses
v. Cromwell, 671.
14. Affidavit of jurors.-As a general rule, affidavit of jurors to impeach
their verdict should be rejected-and the exceptions are rare. Dan-
ville Bank v. Waddill's Adm'r, 31 Gratt. 483.
15. Excessive damages—Release-New trial.—Where, by order of court,
on defendant's motion for new trial, part of the damages assessed by
jury has been released, and defendant did not except to the judgment
for the part not released, the verdict cannot be disturbed, especially
where neither the facts nor the evidence are certified. Idem.
16. Statute of limitations—Personal plea.-The defence of the statute
of limitations is a personal privilege, and to be made availing must
be pleaded by defendants. The court has no power to interpose a
plea of ex mero motu. Smith v. Hutchinson and als., 683.
17. Scire facias.—Even in a case where no execution issued on judgment
within the year, and which is prima facie barred, the practice is for
clerk to issue scire facias, and for court to give judgment according
to the writ, leaving defendant to plead the statute or not, at his own
option, and plaintiff to reply the exceptions as far as applicable. Acts
1874, chapter 144, section 6. Idem.
18. Appeal from county courts-When cause remanded.-On reversal or
affirmance of judgment of county court, the cause must be retained
by circuit court and not remanded, except by consent or for cause.
Code 1873, chapter 178, section 25. Idem.
19. Idem-Order.-Remanding order in such case should show either that
it was remanded by consent of parties or for good cause shown.
Idem.
20. Demurrer to evidence-Rule.-Either party may demur and joinder
will be compelled, unless case clearly against demurrant, or court
doubts what is reasonably inferable from the evidence. Demurrant
admits whatever is reasonably inferable by jury from demurree's evi-
dence, and waives all his own which contradicts demurree's, or the
credit whereof is impeached, and all inferences from his own not ne-
cessarily flowing from it. R. and D. R. R. Co. v. Moore's Adm'r,
ante, 93; Clark's Adm'r v. R. and D. R. R. Co., 709.
21. Instructions.-Instructions founded on evidence in the case and con-
sistent with the law, are proper and should be given; but otherwise,
PRACTICE AT COMMON LAW (continued).
where they have no basis in the evidence. And where the acts and
negligences of the defendant company's agents is the issue, an in-
struction bearing on such acts and negligences, should mention
"agents" as well as "company," to avoid danger of misleading the
jury. Moon's Adm'r v. R. & A. R. R. Co., 745.
22. Idem-Contract of employee.-An instruction which assumes that the
employee "takes all risks," is erroneous. Employee's contract is
based on implied undertaking of company to provide safe machinery,
and competent agents, and to have its roadway and structures in safe
condition when he is required to go over them. Idem.
1. Continuation of suit-Statute of limitations.—Where suit is brought
and decided in 1858, but retained on docket till 1867, because there
was no hand to receive the fund, when it is dismissed with leave to
reinstate it on motion of any person interested, and it is reinstated
in 1878, and a supplementary suit is brought, the latter is deemed a
continuation of the former, quoad questions arising under the statute
of limitations. Sharpe's Ex'or v. Rockwood and als., 24.
2. Account-Admission of assets. Where answer of executor admits
assets sufficient to satisfy decree, it is not error to decree against him
without a previous account of assets. Idem.
3. Legatees-Parties.-Where there are assets sufficient to pay all, one
entitled to a legacy of an amount certain, may maintain suit therefor,
without making the other legatees parties. Otherwise, in case of
residuary legatees, unless it appears that all prior legacies have been
satisfied. Idem.
4. Appellate jurisdiction-Decree against distributees.-Where for debt
of decedent there is no decree in solido against his personal repre-
sentative, but severally against each distributee for his proportion
of the debt which exceeds $500, substantially it is a decree against
the decedent's estate, and as it exceeds in the aggregate the minimum
jurisdictional sum, an appeal lies from the decree in behalf of the
distributees. Updike's Adm'r and als. v. Lane, 132.
5. Issue out of Chancery.-Where the evidence is conflicting, the credi-
bility of the witness involved, and the chancellor feels the necessity
of a trial by jury to satisfy his conscience upon the question of fact
before him for determination, it is proper to award an issue out of
chancery. Mc Cully v. McCully, 159.
6. Idem Verdict-Report-Decree.-Where the issue has been properly
awarded, and the verdict of the jury, the report of the master, and
the opinion of the chancellor, before each of whom the witnesses
testified, all concur, it would be an unusual exercise of jurisdiction
for the appellate court to reverse the decree. Idem.
PRACTICE IN CHANCERY (continued).
7. Parties.—All interested in relief sought by bill should be made par-
ties-either plaintiffs or defendants. Stovall v. Border Grange Bank,
8. Enforcing judgment lien.-Judgment creditor need not exhaust his
remedies at law, before going into chancery, to subject his debtor's
land. Code 1873, ch. 182, § 9; Price v. Thrash, 30 Gratt., 515. Idem.
9. Principal and surety.-In suit to enforce judgment lien on lands of
principal debtor and his sureties, principal's lands should be ex-
hausted before subjecting that of sureties. Horton v. Bond, 28
Gratt., 815. Idem.
10. Idem-Idem-Receiver.-In such suit a receiver should not be ap-
pointed of the lands of one surety before subjecting the lands of
principal and before taking any steps against the lands of the co-
surety.
11. Master's report-Exceptions-Case at bar.-In 1863 court below ap-
pointed commissioners to select and set apart the most valuable of
the stocks and bonds to the amount of $50,000, and to assign one
moiety thereof to the widow. In 1864 they reported that they had
selected the bank stock and corporate bonds. The administrator
had already distributed these stocks and bonds, one-half to the widow
and one-half to the residuary legatees, and the bank stocks were soon
after rendered worthless by the results of the war. The report was
not acted on by the court, but disappeared soon after it was filed, and
as soon as it reappeared in 1874, and M and her children had notice
of it, they excepted to it, so far as it affected their rights, and so far
as it was intended as a selection of the stocks and bonds mentioned
in the fifth clause of the will.
1. The administrator's distribution before the report was made does
not preclude M and her children from excepting to the report.
2. The exception in 1874 does not come too late. Morriss, Trustee,
and als. v. Garland's Adm'r and als., 215.
12. Equitable jurisdiction and relief-Practice-Parties-General rule.—
All persons beneficially interested in the object of the suit must, as
a general rule, be made parties, and this rule applies to suits for the
appointment of new trustees. Fitzgibbon v. Barry, 755.
13. Idem-Idem-Idem-Exception.-But it is necessary in no case to
make those persons parties who are entitled only to future and un-
certain and contingent interests.
14. Idem-Parties-Case at bar. Idem.
1. Principal-Agent-Acceptance.-An agent may accept for his princi-
pal. Proctor v. Spratley, 254.
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