NON EST FACTUM.
Treasurer's Bond-Record.-The qualification of a county treasurer,
including the execution of his bond, is made a matter of record in
the County Court, and imports such absolute verity that in an
action on said bond the plea of nom est factum cannot be pleaded
by the obligors. Where the record appears to be regular and com-
plete, it can only be assailed, if at all, on the ground of fraud,
which must be distinctly charged and clearly proved. Vaughan
v. Commonwealth, 17 Gratt. 386; Calwell v. Commonwealth, 17 Gratt.
391, approved. Stuart v. Commonwealth, 152.
1. Judicial Sales-Purchaser-Case at Bar.-A purchaser at a judicial
sale of a city lot cannot, after his purchase, make the objection that
a street encroaches on the lines of the lot, where it appears that
before the sale a plat was made of the lot distinctly showing the en-
croachment, which plat was referred to in the advertisement of the
property as being at the auctioneer's room, where it could be seen
by any one interested in the sale; and where it further appeared
that the plat was exhibited at the sale, examined by the bidders,
and the encroachment discussed in an open and general way. His
ignorance of the facts disclosed by the plat is no excuse.
He was
put upon inquiry and is chargeable with knowledge of all facts to
which this inquiry would have led him, if diligently pursued. In
the case at bar there would seem to be no encroachment.
1883-'84, page 494. Carneal v. Lynch, 114.
2. Possession is Notice.-Trustees under a deed of trust to secure ante-
cedent debts are purchasers for value. But whether they are bona
fide purchasers without notice depends on the facts of the case.
The open and peaceable possession of land under a claim of right
is notice to all the world of the right or claim of the person in
possession; and when one buys land in the possession of another
than his vendor or grantor, he is bound to take notice of such
possession and of all that it imports. Such notice is the same, in
effect, as the notice which is imputed by the recording acts. A subse-
quent purchaser of such land is affected with notice of what ever claim
or interest the person in possession has, and which an inquiry into
the possession would have revealed. Chapman v. Chapman, 397.
3. Trustees-Joint Trustees-Notice to One Notice to All-Bona Fide
Purchasers. Where property is conveyed to two or more trustees
jointly to secure debts, the estate they take is joint and insever-
able, their title joint and indivisible. Hence, notice to one of such
trustees is notice to all. There can be no such thing as a purchase
partly bona fide. Chapman v. Chapman, 397.
See Adverse Possession, 1, 4; Motions to Recover Money, 1; Injunctions, 5.
VOL. XCI-109
NUL TIEL RECORD. See Variance.
NUNC PRO TUNC ORDERS. See Criminal Law and Procedure, 2.
1. County Treasurer-Approval—Alteration.-Where the record shows
that the Court has designated and approved certain persons as sure-
ties on the official bond of a County treasurer, no alteration can be
made by leaving off a name, or substituting ancther therefor. The
bond must conform to the judgment of approval. Blanton v. Com-
monwealth, 1.
2. County Treasurer—Approval by County Court.-County Courts are
charged with the duty of superintending the execution of official
bonds of County treasurers, and their approval is necessary to com-
plete the execution and delivery of such bonds, and to make them
obligatory; but this approval must appear of record. Blanton v.
Commonwealth, 1.
OFFICERS. See County Officers.
OMITTED WORDS. See Construction of Statutes, 2.
Deed Referred to by Way of Inducement.—The right to crave oyer of papers
mentioned in a pleading applies, as a general rule, only to deeds and
letters of probate and administration, and not to other writings,
and only applies to a deed when a party pleading relies upon the
direct and intrinsic operation of the deed. Hence, a defendant
is not entitled to have oyer of deed referred to in the plaintiff's
declaration merely by way of inducement or introduction to other
matters necessary to be alleged. Langhorne v. Richmond R. Co. &
another, 369.
Uniformity-License-Income Tax.-A statute which requires each tong-
man to make a return of the sales of oysters made by him during
the week preceding, and which imposes a tax on such sales equal
to the amount of tax levied by the State on any other species of
property, and which prescribes penalties for failure to make such
returns, but which allows such tongman, if he prefers, to pay a sum
certain fixed by the statute in lieu of such tax, is constitutional,
and is not in conflict with Sec. 1, Art. X. of the Constitution, nor
with Sec. 2 of Art. X., but is in strict conformity with the lat-
ter section. The uniformity of the tax is not affected by the man-
ner in which the value of the property is ascertained, nor by
the fact that the tax is payable weekly, nor by the fact that penal-
ties are prescribed for failure to make prompt returns, nor by the
privilege extended of paying a sum in gross in lieu of the tax pre-
scribed. Nor is such tax a license. Nor is it an income tax within
the meaning of Sec. 4, Art. X. of the Constitution.
Brown's case, 762.
PARTICULARS. See Bill of Particulars.
Suit by Life Tenant.-A tenant for life in one undivided moiety of pro-
perty may maintain a suit against those who own the estate in
remainder of that moiety, whether they are in esse or not, and the
fee simple owners of the other moiety, and compel partition of the
property; and, if not susceptible of partition in kind, may have
a sale and division of the proceeds. Section 2432 and section
2562 of the Code. Carneal v. Lynch, 114.
1. Avowed Partners-Dormant Partners-Section 2877 of Code.-Section
2877 of the Code does not apply to an avowed partnership of two
or more persons doing business under a name which shows that it
in fact a partnership, and discloses full names of at least two of the
partners. If there are other partners whose names are not thus
disclosed, they will be liable as general partners, when avowed
or discovered. But even if the statute did apply, the trader whose
assets are liable for his debts is the firm which thus held itself
out as the owner of the assets. National Bank v. Cringan, 347.
2. Credit to One Partner-Election-Public Partnership-Dormant Partner.
If credit is extended to one member of a partnership which is pub-
lic, he alone is liable, even though the money, property, or other
contract, is for the use and benefit of the firm, or is applied thereto.
This is because the creditor has elected to take the individual
security, and he will be held to his election. But if no partner-
ship was known to exist, or if there were dormant partners, the
firm will be liable for the acts of the partner done within the
scope of his authority—that is, necessary for the conduct of the
partnership in the ordinary way; otherwise, the measure of the
liability of the dormant partner is the same as if he had been a
known partner-he is liable for the debts of the firm, not for those
of the individual partners. National Bank v. Cringan, 347.
3. Liability on Note of One Partner for input—Burden of Proof.—A note
made by one partner and endorsed by another, in order to raise
money for the input of the maker, is not the debt of the firm
unless there was previous authority thus to bind the firm, or there
has been a subsequent ratification of the transaction by the firm;
and the burden of proof is on the holder to show such authority
or ratification. In the case in judgment this has not been shown.
National Bank v. Cringan, 347.
4. Powers of Partners Before and After Formation.-Prior to the actual
existence of a partnership, though one be in contemplation, there
is no implied power in one partner to bind the firm. That agency
only arises when the partnership is actually in existence, and is
then limited to matters necessary to the business of the firm in
the ordinary way. Nor can one partner after the partnership is
formed pledge the credit of the firm to raise his input of its capital
unless specially authorized to do so. This is not among his implied
powers. National Bank v. Cringan, 347.
Expulsion of Passengers-Damages-Compensatory-Punitive.-A passen-
ger who is unlawfully expelled from a railroad train by the con-
ductor thereof is entitled to recover damages therefor of the com-
pany. If the expulsion, though unlawful, did not proceed from
any ill motive, and was not rudely or recklessly done, nor in such
manner as to evince malice or a conscious disregard of the rights
of others, and was simply the result of a mistake, the passenger
cannot recover punitive damages, but only compensation, and, on
the evidence certified, his damages should be limited to compensa-
tion for the inconvenience, delay and fatigue to which he was
put, and a suitable recompense for the injury done to his feelings,
in being expelled from the train. Norfolk, &c., R. Co. v. Neely, 539.
PASSWAY.
Passway of Owner Over His Own Land-Destruction of Passway-Dam-
ages. Every man is entitled to a passway over his own land from
one part of it to another, and if this be destroyed by another, the
owner of the land is entitled to recover damages therefor, which
are not adequately measured by the mere effect which such de-
struction may have on the value of the part thus made inaccessi-
ble. Norfolk, &c. R. Co. v. Carter, 587.
PATENTS. See Evidence, 2; Ejectment, 11.
1. Acceptance-Discharge.-If one owing a sum of money, the amount
of which is not ascertained and fixed, offers his creditor a certain
sum, declaring that it is in full for all that is owing him, which
sum is accepted by the creditor, such acceptance is in full dis-
charge of the demand. American Mang. Co. v. Va. Mang. Co., 272.
2. Application of Payments-Rights of Surety.-Where a debtor makes
a payment he has the undisputed right to make such application
of it as he sees fit. If he fails to exercise his right, the creditor may
then make the application, and if neither makes the application
it becomes the duty of the court to so apply the payment as a
sound discretion may, under the circumstances, dictate. And in
the exercise of this discretion the interest of the debtor and the
creditor are alone to be considered. Even sureties have no advan-
tage in this particular over others. Pope v. Transparent Ice Co., 79.
3. Application of Payments by the Court.-Where a creditor has two
claims against the same debtor, the one secured and the other
not, and a payment has been made which neither the debtor nor
the creditor has applied, and the court is called upon, in the exer-
cise of its discretion, to make the application, and there is no other
fact or circumstance upon which the court can lay hold to guide and
direct its discretion, the payment must be appropriated to that debt
which is least secured. Pope v. Transparent Ice Co., 79.
PENALTY. See Chancery Jurisdiction, 3; Specific Performance, 3, 4; Limita-
tions, 2; Trusts and Trustees, 2, 3, 4.
PETITION. See Chancery Practice, 3.
1. Common Law Pleading-Corporations having Several Names-Amend-
ment of Pleadings-Section 3384 of the Code.-A corporation may
be known by several names as well as a natural person, and
though sued for a tort alleged to have been committed under another
name, a recovery may be had against it in its true name, provided
its identity is averred in the pleadings and sustained by the proof.
But this evidence must be confined to the issues made by the
pleadings. If one corporation is sued for a personal injury, and
the evidence of the defendants tends to show that the injury was
committed by another corporation, the plaintiff, upon request,
should be allowed to amend his declaration so as to charge that
the two corporations were one and the same corporation known
by both names. Section 3384 of the Code was clearly intended to
provide for such a case, and, being remedial in its character,
should be liberally construed. Langhorne v. Richmond City R. Co.,
2. General Issue-Special Plea.-Where the general issue has been
pleaded, a special plea that sets up matter of defence, which can
be proved under the general issue, should be rejected. George
Campbell Co. v. George Angus & Co., 438.
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