The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-03-28
SOME LEGAL LORE.
SUPREME COURT DECISIONS.
Kendrick Must Testify In the Gambling
Case-Fitzaihbon Against Barry Decided
Other Opiniens Rendered.

Dispatch. was decided In the Court Of Ap-
| peals Yesterday on q rehearing.
Several weeks ago decision was render
| ed affirming the decree Of the lower court,
two judges dissenting. A rehcaring was
afterwards awarded, and the case again ar
gued. II involves quite large sum OF
money, exceeding, with interest, $4,000,
and many interesting questions to the legal
profession. 1t grew out OF a trust transac-
| ton IN the city OF Norfolk. In 1867 a
trust deed was executed by Charles w.
Wills, OF that city, conveying to Fitzgibbon
certain real and personal property in trust
to apply the rents and profits to the main
tenance OF Wills for his life, and in case Of
his marriage for the support Of himself
and family, and after his death for the
support OF ht wife, II she should survive
him, and thea esSiidren, ifany. Ind then,
after the death both OF the wife and him.
self, to 90 to their children, II any, In fee,
unless by his will he should otherwise
direct. And in the event he should not
marry, then the property, at his death. to
be conveyed TO such person or persons as
he might by his will direct anG appoint,
and in default Of appointment to Mrs.
Mary VI. Barry.
Wills was a disSipated young mdn, and
in consequence weak-minded. He died in
1879, unmarried. without issue, and in
testate. FItzgIbbon accepted the trust, and
acted aS trustee until some time in the year
1872, when he fled bill in the Corpora
ton Court OF Norfolk to be relieved OF his
position a. trustee and to have another
substituted in his stead. In the bill he
alleged that Wills was a person OF weak
mind, and asked the Court TO appoint a
guardian dd litCn for him. which was done.
Both the guardian ud Item and Wills an
swered this bill, and the Court appointed
Judge W. II. Burroughs, OF Norfolk. as
trustee, in place OF FitZgibbon. The lat
ter thereupOn turned over TO Burroughs
the whole trust property thc real estate
having been converted into personality,
and for which Burroughs failed to account
to Mrs. Barry, when called upon, after
Wills's death. And thereupOn she, not
having been 4 party 10 the suit in which
Burroughs was substituted as trustee in
FitZgibbon's stead, filed bill in the Cor
pOration Court Of Norfolk TO hold the
latter responsible for the trust fund turned
over by him to Barry. The Court decreed
in her favor. and FitZgibbon appelled.
| The Court of Appeals yesterday decided in
his favor. and reversed the decree OF the
Corporation Court.
Judge Lewis delivered the opinion OF the
court. in which II was held that Mrs. Bar
ry's interest under the deed was contingent
and liable at any time to be defeated by
WillS's marriage or his making will; that
he. though weCk-minded. was not shown
to have been imbecile or incapable Of con-
tracing marriage or making a viii; and
| that he, being 4 party 10 the substitution
suit and having the power 10 bar Mrs. Bar
rvs interest, there was no necessity
to make her party. That she her.
self could not have maintained 4
bill for the removal or appointment OF &
trustee. because to such bill, on her part
Wills would have been necessary party
and that il vas we'll settled that bill
would not lie when the right OF the plain
tiff could be barred by the defendant.
And that this case, therefore. was an eX.
ception TO the general rule which require,
all ceStuiS que trust whose interests are to
be affected to be made parties to the suit
Many authorities were cited and reviewed
with the result before stated.
Judges Lacy and Richardson Concurred
Judges Fauntleroy and Hinton diSSented
KENDRICK MUST TELL.
The Court OF Appeals yesterday affirmed
the decision OF the Judgeiof the Husting,
Court OF Richmond in the case OF VIII
liam Kendrick against the Common
wealth. Ii was writ OF error TO judg-
ment OF the Hastings Court OF Richmond
rendered on the 18th day OF last Febru.
ary. which judgment imposed a fine OF
800 upon the plaintiff and committed
him TO jail for twenty days for the failure
on the part OF the plaintiff 10 answer a
question pr0pounded by the grand jury,
he being 4 witness sworn ard sent 10 the
grand jury to testify in the case Of Thomas
Lyon. charged with unlawfully keeping 4
farO-bank.
The question put by the grand jury
was TEL all YOU know about any per.
son keeping or exhibiting or being part
ner or concerned in or interested in the
keeping ~ any ilrO-bank ii house No. 30,,
on Seventh street between Broad and Mar
shall"
Judge FauntlerOy. afteg reviewing the
law governing the caSe, said, in delivering
the opinion OF the Court at was .ht
duty OF the witness TO testify, and. there
fore. We do not think the IIustipg- Court
erred in IT. judgment complained Of. The
witnes. added to his plea for refusing 10
answer that il would disgrace MIN. This
is question OF character. 1t wa, said by
Lord EldOn Upon question OF charac-
ter. hold that suppoSing man to be lla-
Bile TO penalty or forfeiture, provided he
is sued within limited time, and that
the suit i not commenced TILL after the
limitation expires, he i bound % answer
fully. notwithstanding his answer may
tend to east very great degree OF reiiec-
ton upon his character and conduct
\ witness who Is called by the Common
wealth TO testify as 10 violations OF her
laws within his own observation may 81
Wavs assert his constitutional privilege and
immunity from prosecution and punish
ment for his own implication in the unlaw-
full act a. to which he is compelled TO test
ifv. but the courts OF Virginia will not re-
cogniZe the Spartan morality which depre-
Gates not the preparation, but only the eX-
posure OF the crime. Upon the whole
case. presented in the record under re-
view. we are OF opinion that there is no
error in the Judgment OF the Hastings
Court comnlainsd OF, and the same must be
affirmed.
Judges Lacy and Richardson dissented,
and Judges Lewis and Hinton concurred
in the opinion delivered by Judge Faunt-
leroy.
OTHER DECISIONS.
linton and ais. against Bulls administra-
tor and ais. From the Circuit Court Of
Middlesex county. Reversed, Judge Lacy
delivering the opinion.
Feckheimer against Exchange National
Bank OF Norfolk. Argued by Judge
James T.. Heath for appellant.
To Restrict the Running Of Railroad
Trains Oh sunday.
The following Is law: