Wheatley v. Martin's adm'r,

62

IV. Award made after plaintiff's death. 4. After submission to arbitration by rule of court, plaintiff dies, and suit is revived by his administrator; the administrator of plaintiff and the defendant proceed in the arbitration, without any new submission, and an award is made: HELD, the death of the plaintiff did not avoid the submission, and the award under it is good. S. C. 62

V. What rights are bound by award. 5. S. S. claiming slaves in her own right, and others setting up a claim to the same slaves, submit their claims to arbitration, and there is an award against S. S. and in favour of the conflicting claim; S. S. at the time of the submission, was executrix of T. S. but she did not join in the submission in that character, or allege any claim for her testator's estate, before the arbitrators; T. S.'s legatees afterwards assert a claim to the slaves: It seems, if S. S. had had any right to the slaves as executrix of T. S. at the time of submission, the award would have embraced that right, and barred the claim for T. S.'s estate. Merrit and wife and others v. Smith and others,

486

Wheatley v. Martin's adm'r, 62 7. It is equally the rule of equity as of law, that the reasons for setting aside an award, must appear on its face, or there must be misbehaviour in the arbitrators, or some palpable mistake.

ARDENT SPIRITS.

S. C. 62.

Proof on indictment for retailing. Upon an indictment for retailing ardent spirits, specifying the precise quantity and the kind, to be drunk where sold, without license, proof of retailing any quantity of any kind of ardent spirits to be drunk where sold, is sufficient. Brock v. Commonwealth, 634

ASSETS.

1. Order of administration. See Executors and administrators No. 15, and Henrico justices for Craddock v. Turner's adm'x, 116

2. Quere, whether a creditor at large can maintain a bill in chancery against the executor of the debtor, for a discovery and account of assets, and satisfaction? Poindexter's ex'ors v. Green's ex'ors, 504

3. Decree for sale of lands descended, on bills to marshal assets. See Heir No. 3, Infant No. 3, and

Tennent's heirs v. Pattons, 196 4. Equitable jurisdiction where land is devised charged with debts. See Devisee No. 2, and Poindexter's ex'ors v. Green's ex'ors, 504

ASSIGNMENT.

I. What amounts to an assignment. 1. A. claiming the benefit of a judgment of R. against T. as being transferred to him by R. for payment of a debt due by R. to him, brings assumpsit against R.'s attorney for the money collected by him on the judgment; and produces in proof of his claim a written paper signed by R. authorizing A. to prosecute and recover the amount of R.'s claim against T.-HELD, this imports a mere authority to A. to collect the debt for R., not an assignment or transfer thereof to A. Green v. Ashby,

135 2. What is an equitable assignment. See Heir No. 1, and Brooks v. Hatch, 534

II. When assignor without recourse is liable.

3. A. holding a bond executed by B. to C. contracts to transfer this bond to D. for valuable consideration, and to procure C.'s assignment thereof to D. without any responsibility of or recourse against A. whatever; C. at A.'s instance accordingly assigns the bond to D. who assigns it to another, who brings a suit against the obligors on the bond, in which it appears that the bond had been discharged by payment, before it was as signed to D. upon which D. pays the amount to his assignee; C. who had made the assignment of the bond at A.'s instance to D. becomes insolvent in an action by D. against A. to recover the amount of him, it seems, the contract that the bond should be assigned by C. to D. without recourse against A. did not exonerate A. from liability to D. in the case which actually occurred, of the bond being paid off and discharged at the time of the contract.

And the meaning and effect of the contract was properly left to the decision of the jury by the court.

Mays v. Callison, 230

III. Action by assignee against assignor.

4. In an action by an assignee against an assignor of a promissory note, plaintiff, to maintain his action, must shew that the maker was insolvent at the time the note was made or the contents fell due, or that he has used due diligence to recover from the maker, and failed.

Drane v. Scholfield, 386

5. If the maker of the note was resiident in Virginia, and solvent, at the time the note was made or at the time of assignment, and afterwards removed to an adjoining state,-quere, whether the assignee was bound to pursue him in such ajoining state, and prosecute an action against him there, in order to entitle himself to recourse against the assignor? S. C. 386

6. But whether he is bound, in such case, to pursue the maker in the adjoining state or not, yet he may do so; and if he elects to do so, and fails to commence, or to prosecute, his suit against the maker, with due diligence, he has no recourse against the assignor. S. C. 386

7. In action by an assignee against a

remote assignor of a bond or note, under the statute 1 Rev. Code, ch. 125. § 6. the plaintiff may recover under the general counts for money had and received, and for money paid, laid out and expended; per Tucker, P. S. C. 386

IV. When assignment must be proved on bill in equity.

8. Bill filed by assignees; answers call for proof of the assignment; it is error to decree for the plaintiffs without such proof. Tennent's heirs v. Pattons, 196

V. Set-off against assignee of bond. 9. See Set-off, and Clopton's adm'r v. Morris and another,

278

1. A. and B. his surety are bound in a bond to C. and B. the surety marrying C. the obligee's daughter, C. gives this bond to B. as an advancement to his daughter in marriage: HELD, B. cannot, upon these facts, support assumpsit against A. for money paid, laid out and expended by him for A.'s use, or any of the common money counts.

To maintain assumpsit for money paid, laid out and expended, money or some equivalent for money must be in fact paid. Butterworth v. Ellis's adm'x, 106

2. When assumpsit for money had and received lies not. See Heir No. 1, and Brooks v. Hatch, 534

3. It seems, assumpsit for money had and received, and money paid &c. lies for assignee against remote assignor. See Assignment No. 7, and

Drane v. Scholfield, 386 4. What amounts to a promise to pay another's debt. See Guaranty No. 1. and Colgin v. Henley,

86

5. What is an acceptance of promise to pay another's debt. See Guaranty No. 2, and S. Č. 86 6. Concerning the consideration of promise to pay another's debt, and proof of such consideration, see Guaranty No. 3, 4, 5, Variance No. 2. Evidence No. 15, S. C. 85,6 7. Construction and effect of contract to procure assignment of bond without

and

4. By the provisions of the statute 1 Rev. Code, ch. 76. % 6, a court cannot, for malpractice of an attorney or counsellor, committed in his presence, suspend the license of the party offending, in a summary way, but must direct an information to be filed against him, and inflict the punishment on the verdict of guilty found on such information.

Ex parte Fisher, 619 5. Attorneys for the commonwealth, in the circut superiour courts hold their offices during the pleasure of the respective courts, and the courts may remove them from office, and appoint others to succeed them, without assigning any reason for such removal.

Ex parte Bouldin, 639

AUCTION.

1. Sales at auction, in general, are within the statute of frauds.

Brent v. Green, 16 2. Concerning sheriff's auction sale of insolvent debtor's land, see Insolvent No. 1, 2, and S. C. 16

AUTHENTICATION.

1. The statutes of Virginia concerning the authentication of foreign deeds apply to the original deeds, not copies.

Petermans v. Laws, 523 2. Office copies of deeds registered in another state are not admissible as evidence in this state, unless duly authenticated according to the laws of the U. States. S. C. 523

AWARD.

See Arbitration and award,

BANKS.

1. Effect of mistaking corporate name, on suit in chancery against a bank, and of defective service of the process. See Corporation, and Bank of Virginia v. Craig,

399 2. Guardian's control over ward's bank stock. See Guardian and ward No. 2, and S. C. 399

3, Liability of guardian and sureties for bank stock of ward sold by guardian. See Guardian and ward No. 3, and S. C. 399

BILL OF EXCEPTIONS.

I. How the bill may be framed. 1. In a bill of exceptions to a refusal of a court to grant a new trial, all the evidence adduced for the plaintiff, for whom the verdict was rendered, is set out, the party excepting having offered no evidence, and there being no conflict in the evidence, nor any doubt of the credit of the witnesses: HELD, this bill of exceptions is well taken, though it does not purport to state the facts proved at the trial. Green v. Ashby,

135

2. Bill of exceptions to refusal of court to grant a new trial, in one part of it, states the evidence adduced, not the facts proved; yet it appears, that the court meant to certify the whole as facts proved: HELD, the bill of exceptions is well taken. Mays v. Callison, 230

3. Upon objection made to the admissibility of testimony, the judge holds it admissible, for two distinct reasons which he states; and exception is taken to the admission of the testimony, wherein the opinion of the judge, and his reasons for it, are both stated: the court, not considering the second reason assigned by the judge as having been an instruction to the jury, or as excepted to, and holding that the evidence was, for the first reason assigned by the judge, properly admitted, affirmed the judgment.

Kincanon v. Commonwealth, 611

4. That appellate court will disregard objection not appearing by bill of exceptions to have been made below, see Appellate jurisdiction No. 4, and

Colgin v. Henley, 86