The times. [volume] (Richmond, Va.) 1890-1903, 1895-01-25
THE COURT OF APPEALS.
A NU.uBER OF IMPORTANT DE-
CISIONS HAyDI D DOWN.
An Oyster Case From Mathews--A Divorce
Suit From Loudoun-A Land Contro-
v,rsy From Bedford.

terday decisions were handed down tn
the following cases:
Thurston against Hudgins, oyster In
s,actor &c. From the Circuit Court of
Mathews county.
Thurston petitiored the court for man.
damus against Hudgins, to compel MIN
To give notice to certain lessees OF oys-
Ter grounds to remove their stakes, and
on their failure to do so 10 remove said
stakes himself, alleging that the assign
ment had been improvidently made, and'
In fact, embraced a natural oyster rock
DEFENDANTS in court below, demurred 10
the petition. and demurrer sustained.
This court (opinion by Buchanan, judge
afirms the Judgment. The case turns
upcn the question whether the duties I'M
posed by law upon oyster inspectors are
purely ministerial or quasi judicial. Man
damus will not lie to compel performance
of any act or duty necessarily involving
the exercise of judgment and discretion
on the part OF the officer charged with
such duty. Where his official duty IN
wolves the necessity of making investsa-
ton and OF examining evidence ana form
ing his judgment thereon, mandamus VIII
not lie.
L
the law TO ascertain whether any as
signment Of oyster grounds asked for can
be set apart for the exclusive use OF the
applicant under the terms Of the statute.
his duties are quasi judicial, and not
purely ministerial
Mandamus does not lie to compel en-
officer to undo whaNhe has done In the
exercise OF his judgment and discretion,
or TO do what he had already deter
mined ought not to be done.
FROM LoUDoUS.
Throckmorton against Throckmorton.
From Loudoun county
Mrs. Annie Throckmorton, lately di-
yorced from her husband. Mason Throck-
morton, brought suit against him and
certain Of his creditors holding deeds of
trust on his land. TO establish a resulting
trust In her favor In his real and per-
sonal property. In the court below relief
denied and bill dismissed. Opinion by
Rely. judge Keith, president. absent. he
having decided the case in the lower
COURT.
A resulting trust may be established by
paroi evidence, or even by circumstances
but the facts must he proved with great
clearness and certainty. Loose and equiv
ocal facts will not control the evidence
of deeds and the evidence must be full,
clear and explicit.
The record title TO land being I'm the
husband, with no evidence that the gran
tees i'm deeds conveying the same had
notice OF any right in or claim by the
wife to II, they stand before the court
as purchasers for value without notice
and belong TO a class OF persons who are
favorltes Of a court OF equity. The wife,
uniting with her husband I'm the sale OF
her lands, and permitting him 10 receive
the proceeds, the law implies no promise
OF repayment as in the case Of strangers
bat presumes a gift TO him by her, ana
not a loan.
A court Of equity may grant relief
against mistake OF fact but not of
tl".
The married woman's act does not re-
strict, but unfetters her property, and
removes obstruction to the disposal of
il as she may please 1t does not prevent
her from giving It TO her husband, nor
abrogate the presumption that she has
done so. Decree affirmed.
FROM BEDFORD.
Brown, &c, against Bedford CITY Land
and Improvement Company. From the
Circuit Court of Bedford county.
Prown and sixty-two other stockholders
Of this company filed a bill on behalf of
themselves and all other stockholders
similarly situated. and all other creditors
Of said company, setting out frauds, and
praying that the officers and directors, as
well as the company, be made parties de-
PENDANT; that the officers, and each OF
them. be required 70 refund TO the COM
pany all moneys paid out to improve and
develop land or on account of salaries
commissions or other things, and that
they be required to refund to complain
ants all money paid by them on sub
scriptiOns 10 stock. An amended bill
charged that the officers, directors and
promoters, having absolute control OF the
company, Notwithstanding the protest Of
the minority stockholders, ratified and
confirmed, on the very day the suit was
brought, all the frauds. &c, charged
therein, and made a new board of direc-
tors parties defendant, with same prayers
The defendants demurred to the bills
as multifarIous. for misjoinder of plain
tiffs, of defendants, and OF causes Of ac-
ton, and demurrer sustained.
opinion by Keith, president. court OF
equity, to avoid multiplicity of suits and
to nave before II all parties Interested In
the dispute, or who may be affected by
the decree, viii, when necessary TO the
ends Of justice, mould its pleadings with
regard 20 substance rather than form.
Introduce new or modify old remedies;
not, however. IN defiance Of well-estaD-
lished principles.
Where large number OF persons have
been fraudulenty induced by identical
representations 10 become subscribers
they may uaite in bill praying cancel
lation of their subscriptions, and making
the company, its officers and agents. de-
PENDANTS. But the rights OF stockholders
and creditors are not only diverse, but
antagonistlc the unpaid subscriptions OF
the stockholders constituting a trust fund
for creditors. SO, where acts OF malad-
ministratiOn are attributed TO Individual
officers. some 10 different groups OF Of
ncers. and some 20 the president ana
directors as a whole, 1t Is misJoinder.
Where corporate directors have COM
m.tted "A breach Of trust, either by fraud,
ultra wires acts, or negligence, and the
corporation cannot or will not bring suit,
"A single stakeholder may do so, on be-
half of himself and other stockholders
and for the benefit OF the corporation.
IN order that a court OF equity may
!nterpOse 20 prevent multiplicity OF suits
there must exist among the individual
plaintiffs, or between each of them and
their single adversary, common right, a
community of interest in the subject mat
ter OF controversy, or common title from
which their separate claims and the
questions al issue arise; it is not enough
that there Is a community OF interest
merely In the question OF law or fact
involved, or in the remedy demanded.
, Amended so that decree shall not preju-
dee right of any plaintiff to institute such
suits in law or equity as he may deem
proper, and affirmed.