2. PAROL EVIDENCE IS ADMISSIBLE to show the legatee where the descrip
tion in the will applies to several.
3. A VALID LEGACY NOT CLAIMED within a reasonable time, goes to the
sovereign as derelict. Id.
4. BOND GIVEN BY A LEGATEE to the testator referring to a will of the same
date, conditioned to hold "one half of the personal property which he
was to receive" from the testator's estate, to the use of another person,
will be enforced in equity where the will is superseded by a second will
containing substantially the same devises and bequests. Towles v. Bur-
ton, 409.
5. PROVISO IN a Bequest of PERSONALTY, that it shall not be subject to
the debts or contracts of the legatee, he being of full age and competent
to contract, but that the sum shall remain in his possession for his sole
use during his life, with remainder, is void. Verdier v. Youngblood,
6. SUCH A LIFE ESTATE passes by an assessment under the insolvent debt-
ors' act. Id.
7. CONTINGENT LEGACY.-A bequest of personalty to the testator's son for
life, and then to the latter's son, if he have one living at his death,
otherwise to the testator's two grandsons on their attaining their major-
ity and assuming the testator's name, does not vest in the latter on the
first taker's death without issue before the conditions are performed, but
is contingent. Dayton v. Grimke, 419.
8. CONTINGENT LEGATEES are not entitled to the interest or profits of the
legacy as maintenance, before it becomes vested, in such a case. Id.
9. CHARITABLE BEQUESTS, WHEN VOID FOR UNCERTAINTY AS TO THE
BENEFICIARIES.-A devise of a pecuniary legacy to be distributed among
needy and respectable widows, a similar devise to the Roman Catholic
congregation in Richmond, for the building and support of a chapel,
and a devise of land to trustees to permit the Roman Catholics to build
a church thereon for the use of themselves and all persons of that relig-
ion residing in Richmond, are all void for uncertainty. Gallego v. Attor
ney-General, 649.
10. CHARITABLE BEQUESTS TOO VAGUE to be claimed by those for whom the
beneficial interest was intended, could not, independent of the statute
43 Elizabeth, be sustained by a court of equity in England; and that
statute having been repealed in Virginia, such bequests can not be estab
lished by a court of equity in this state. Id.
11. GRANT IS VOID FOR UNCERTAINTY, where it can not be distinctly known
who is to take under it; and it is equally necessary, in order to establish
a trust, that there be no uncertainty as to who is the cestui que trust.
Per Tucker, President.
12. JURISDICTION OF CHANCELLOR OF ENGLAND OVER CHARITIES is a branch
of the prerogative of the crown, and not a part of the ordinary powers of
the court of chancery, in the exercise of its equitable jurisdiction; and
the act establishing the court of chancery in Virginia did not transfer to
it this branch of the prerogative. Per Tucker, President. Id.
13. LEGISLATURE, NOT THE JUDICIARY, is the parens patriæ under our system
of government. Per Tucker, President. Id.
14. SPECIFIC LEGACIES are to be preferred to general or pecuniary legacies.
15. TESTATOR'S INTENTION TO CREATE DIFFERENT GRADES in his benefac-
tions is clearly shown by his creating a residuum upon a residuum. Id.
16. LEGACIES BEQUEATHED BY CODICILS stand on the same footing as those
of the same class bequeathed by the will. Id.
17. EXECUTORS ARE NOT AUTHORIZED TO PREFER PARTICULAR LEGATEES,
by a direction in the will to pay a legacy as soon as possible, because the
legatee is in need; nor by a direction to pay a legatee, if possible, as soon
as it may be convenient for him to receive it; nor by a general direction
to pay such legatees as, in their judgment, are most in need. Id.
18. EXECUTORS ARE PRIMARILY LIABLE TO UNSATISFIED LEGATEES for their
proportion of the whole fund, where such executors innocently, but im-
prudently, paid to some legatees the full amount of their legacies, and
the fund, owing to depreciation of the property, proves insufficient to pay
all the legatees. Id.
19. UNPAID LEGATEES ARE NOT BOUND in such case to compel the overpaid
legatees to refund, if the executors are solvent. Id.
20. EXECUTORS MAY RECOVER BACK FROM OVERPAID Legatees, where, with-
out fault on their part, the assets prove insufficient to pay all the lega-
cies charged thereon. Per Tucker, President. ld.
See TRUSTS AND TRUSTEES, 6.
See CONSTITUTIONAL LAW, 3, 5, 7, 12; LEGACIES AND LEGATEES, 13.
PUBLICATION OF A LIBEL IS SUFFICIENTLY PROVED when it appears that a
letter in the handwriting of the defendant, containing the libel, was
found in the house of a neighbor of the person libeled, and by such
neighbor and a third person opened and read. Swindle v. State, 515.
WHERE A LICENSE IS REVOCABLE AT PLEASURE, an action brought for its
continuance is a revocation. Joy v. Hull, 626.
1. A RIGHT OF LIEN ordinarily accompanying an implied contract does not
exist whenever there is an antecedent contract inconsistent with the ex-
istence of such right, or when the implied contract is extinguished. No
right of lien attaches in the first instance, and it is waived in the last.
Hutchins v. Olcult, 634.
2. ACCEPTING A NEGOTIABLE PROMISSORY NOTE in payment of an account
for labor bestowed on any article, is a waiver of any lien which he may
have had on the articles for labor. Id.
3. IDEM.-It makes no difference whether such note is payable on demand or
at a future time, and whether negotiable or not. Id.
4. THE LIEN DOES NOT ATTACH TO THE NOTE, even in the hands of the payee,
and can not follow it into the hands of any one. Id.
5. DOCTRINE OF EQUITABLE LIEN for purchase money of land should not be
extended beyond its proper limits, and ought not to be applied where it
is evident that the parties never intended to apply it. Per Carr, J.
Moore v. Holcombe, 683.
6. LIEN OF VENDOR IS IMPLIED FROM THE SUPPOSED INTENTIONS of the par-
ties, and so long as it is confined to the parties and to those claiming un-
der them, with notice, it is not liable to objection; but if a vendor con-
-veys the land to the vendee in such a manner as to make him appear to
be the complete owner with full power to sell, he will not be permitted
to use his secret lien to the injury of those who, in ignorance of it, for a
valuable consideration, have acquired either the legal title or an equita-
ble incumbrance. Per Cabell, J. Id.
7. EQUITABLE LIEN, WHEN LOST.-Where an equitable lien for the purchase
money exists on lands which the grantee conveys to another, who is ig-
norant of the existence of the lien, and who gives to his grantor bonds for
the purchase money, which the latter assigns to third persons who take
them without notice, and for a valuable consideration, such lien is lost,
and the unpaid purchase money in the hands of the obligor belongs to
the assignees, and not to the original vendor. Id.
8. ASSIGNEES ARE NECESSARY PARTIES to a bill brought by such original
vendor to subject such lands to sale under the equitable lien claimed by
him. Id.
See EXECUTIONS, 51, 52, 60; JUDGMENTS, 3, 4; WAREHOUSEMAN, 4.
LIS PENDENS.
See INDEMNITY, 5.
MALICE AGAINST THE OWNER OF A BEAST must be shown to prove a person
guilty of maliciously killing the beast of another, under act of 1803, c. 9.
State v. Wilcox, 569.
See MALICIOUS PROSECUTION; Murder; SlanDER, 2, 10.
1. ACTION ON THE CASE for procuring a malicious prosecution may be main.
tained by the person prosecuted, against him who procured such prosecu
tion to be instituted. Mowry v. Miller, 680.
2. DECLARATION IN SUCH ACTION must allege that the prosecution was with-
out probable cause; but such allegation has reference to the state of fact
as it relates to the person prosecuted, and not to the knowledge of that
fact possessed by the party prosecuting. Id.
1. MORTGAGOR'S LESSEE IS NOT ENTITLED TO CROPS GROWING on the prem-
ises as against the mortgagee, under a lease subsequent to the mortgage.
Lane v. King, 105.
2. Mortgagee PURCHASING UNDER A FORECLOSURE may maintain trespass
against such lessee for taking such crops. Id.
3. INTENTION OF THE PARTIES governs, in determining whether a transaction
constitutes a mortgage, or a sale with a right to repurchase, and such
intent is to be ascertained from the circumstances of each case. Bennet
v. Holt, 455.
4. CONDITIONAL SALE-INDICATIONS OF.-Where the price agreed upon and
paid is about the value of the land conveyed, and the vendor is not bound
to repay the money received, and possession is delivered to the vendee,
the transaction is a sale and not a mortgage, and if liable to be defeated
by the payment of a certain sum on a certain day, it is a conditional sale.
Id.
See COVENANTS IN DEEDS; RECORDING, 2; TENDER, 3.
MUNICIPAL CORPORATIONS.
See NUISANCES, 6, 7, 9.
MURDER CONSISTS OF THE FACT OF KILLING, and the intent with which it
is done, and both must be proved to the satisfaction of the jury; and if
a doubt exists in their mind either as to the malice or killing, the pris-
oner is entitled to the benefit of that doubt. The killing being proved,
however, malice is presumed, and the burden of proving that it was with-
out malice, rests on the accused. Coffee v. State, 570.
See WARRANT OF ARREST, 2.
1. STIPULATION, IN A NOTE ON TIME, that if the amount thereof is not paid
at maturity, it shall bear interest from date, is not usurious, nor against
sound policy. McNairy v. Bell, 454.
2. NOTE PAYABLE AT A PARTICULAR PLACE need not be presented for payment
at that place in order to hold the maker liable. Id.
3. READINESS OF THE MAKER of a note to pay at the time and place pro-
vided therein, and a continuance to be ready, is a matter of plea in a suit
on the note, and if the money is brought into court, it will bar the re-
covery of interest and costs.
4. INDORSEE SHould have the NOTE PRESENT at the time and place of de-
mand, in order to charge the indorser for non-payment. Principal en-
forced where the note was payable in grain. Eastman v. Potter, 609.
5. BILL OF EXCHANGE DRAWN IN MARYLAND upon a merchant in Virginia is
a foreign bill. Brown v. Ferguson, 707.
6. EVERY PARTY to such a BILL is entitled to one full day in which to give
notice to the party next before him. Id.
7. OVER-DILIGENCE of one of such parties can not make up for the under-
diligence of another.
8. SPECIAL VERDICT in such a case ought to find the causes which would ex.
cuse delay in giving notice, if any such existed. Id.
9. PROMISE OF DRAWER OF BILL to accept a bill to be drawn on him by the
drawees, to enable them to take up his bill, has not the effect of a waiver
of notice to such drawer. Id.
10. KNOWLEDGE OF INSOLVENCY of drawee of a bill, or of the fact that the
bill will be dishonored, does not excuse notice of protest for non-payment.
Id.
See AGENCY, 4, 5, 6; INDEMNITY, 3, 4; LIEN, 2, 3, 4; PAYMENT, 5, 6, 7.
1. NEW TRIAL WILL BE GRANTED only where injustice has been done, and there is a probability that justice will be done on retrial. Hinton v. McNeil, 315.
2. EQUITY WILL DECREE A NEW TRIAL on the ground of surprise, where a verdict is obtained against the plaintiff by the production of a receipt signed by his agent, of which he was not notified, and probably had no knowledge, and which he had no reason to expect would be produced, where it is shown by evidence obtained too late to be available at law, that the receipt was in reality given for certain money belonging to the plaintiff, which had been sent to his agent by a third person, by the hands of the defendant. Barnes v. Milne, 422.
3. EQUITY WILL RELIEVE AGAINST A VERDICT, by compelling the parties to submit to a new trial where one having a legal defense was prevented from making it by fraud or accident, without any fault or negligence of his own.
4. AFFIDAVITS OF JURORS who tried a criminal case will be received upon a motion for a new trial, to prove facts which will vitiate their verdict. Crawford v. State, 467.
5. New Trial will be GrantED to a person found guilty of murder with a recommendation to mercy, when it appears from affidavits of some of the jurors that they were not satisfied of the prisoner's guilt, and assented to the verdict only, because they believed that the recommendation to mercy would be effectual.
6. THE FORMATION AND EXPRESSION OF AN OPINION by a juror previous to the trial, on the merits of the cause, and in favor of the successful party, is ground for granting a new trial. French v. Smith, 616. 7. VENIRE DE Novo will be awarded if the verdict is so ambiguous and uncertain that the court can not say for which party judgment ought to be given; but if the defect of the verdict be due merely to the failure of the party to make a case, no venire de novo will be granted. Brown v. Ferguson, 707.
PLAINTIFF WILL NOT BE COMPELLED TO BECOME NONSUITED on the trial for the insufficiency of his evidence. French v. Smith, 616.
See BONA FIDE PURCHASERS.
1. ONE SUFFERING SPECIAL AND PECULIAR INJURY from a public nuisance, occasioned by the maintenance of a dam rendering the adjacent country unhealthy, may have an action therefor. Mills v. Hall, 160.
2. CONTINUANCE OF A NUISANCE FOR TWENTY YEARS gives no prescriptive right to maintain it. Id.
3. INDIVIDUAL HAS NO RIGHT TO MOOR A FLOATING WAREHOUSE permanently in a public basin or part of a public river within the jurisdiction of a municipal corporation, in violation of a municipal ordinance, even though it be moored opposite his own lot on the pier. Hart v. Mayor of Albany, 165.
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