The times. [volume] (Richmond, Va.) 1890-1903, 1896-12-04

| great part. If not wholly.
Certain pin-holes In the checks and in
| the took wlore the memorandum was
made by McV. were claimed TO CORE
| spOnd, and were relied on 10 prove mat
these had been paid BY McN. IN dis-
] charge of his obligation. There Is
! nothing in the record to connect these
things with each other. or to prove that
tho former were ever pinned 10 the lat
ter. or. If so, that they were pinned
there by McV. or with his knowledge.
The checks themselves would have I'M
! piled. In the absence OF repoliing EVIL
dence, that they were given IN payment
OF "a debt then due and payable by Nc
! Y. TO appellee. or for money lent by
! lattcr to former, III the time OF thelf
execution. Terry vs.. Ragsdale. % Graft
| 8i2. and II would be violent presuhiP-
ton. ia the absence Of clear ana STRONG
evidence. TO infer that they were given
in payment OF u contingent obisatioh'
which might never accrue. McN died
many years after the alleged payment,
leaving the memorandum In his book UNI
cancelled, and no suggestion by the
| slightest entry that he had paid II. such
evidence falls far short OF establishing
| presumption Of payment.
Appollce's competency as a. witness
was objected to. but this objection was
removed by the examination OF McN O."
Jr. who. as deviscc and lcgatce OF the
! debtor. had an interest adverse 10 APP
pelloe. and who had previously testiiied
i'm behalf Of News estate. CODE sec
1896: Brooks admir- VS.. Brock' &C. -
| Va; q S. T.. Rep, pa
Besides. the exception was not brought
to the attention Of the trial court anu
so will be taken 10 have been waived.
FAINT vs.. Miller d Mayhem, Il Graft
OF. Simmons VS.. simmons admir-, 80
Graft. AGO. Martin VS.. South Salem
Land CO.. decided at this term.
The memorandum on McN.s doom
showed the obligation was not pay"ole
| I'm lifetime Of appcllee's mother VINO
survived Nov. Therefore. no presunp-
| ton Of payment in his lifetime couiu
| lcrauv arise. and there IS no pretehce
of payment since his death.
| POSSESSION or PERSONALLY Ar
TER SALE.
BENJAMIN & CO. vs.. Madden. AilrmeH'
| Opinion by Judge Rely.
Held: Retention of personal property
! hv vendor after absolute sale u Pt 'I''
! facie fraudulent as against MS cIeul'o, :,
Lut presumption may be rebutted by
nTDnf flllkln Vs. / 90 lt'+f
a different rule seccms 10 pFeNdl '4 az
of "a subsequent purchaser VINO mas aC-
quired the specific property on lhe a..
Of the vendors possession anu "PP"t 81
ownership. without notice or the is".
of the first purchaser, whose cohuue
has enabled the vendor 20 make the SUI
se0uent sale. Qbid. GlascocA vs. ba''o"'
G Rand, -. ,.o,1ae ,,d
| ov.cution creditor Of vendor. \ july
was waived. ana an agreed stateillen'
was submitted 20 the Court, when gave
| Judgment for vcndce
Madden carried ON business for ABOUT
two years tin July 49, 1910 wheh ne
sold and conveyed his stock TO Mary vi,
BENJAMIN. who took possession. sac ana
delivery 10 the vendce is admitted. and
there is no evidence in the record or the
restoration OF possession 20 the vendor
This rcfutos the claim Of retention OF
| possession by vendor. and removes thdt
ground for presumption Of fraud.
The facts relied on by the plaintiffs id
error-that tho license Of the vendor was
not tran ferred prior 10 the levy OF ,he
| execution: that the name OF me Nenlor
| remained upon the windOw-shades' VINO
had constituted the only sign. and thdt
ne and another. who had formerly been
his clerk. remained in the store and sold
coods-inwhat capacity the plaintiffs in
error were not infOrmed-do not prove
"a retention OF the posses ION bY the ven
dor. nor invalidate the sale IN the iace
of the admis ion that Mary NJ. bought
and took possession OF the goods az the
time of purchase. They did not estab-
lish the possession IN the vendor. nor amy
| different possession or control n MIN
from that I'm his former clerk nor that
there was any lack Of fairness ana good
faith I'm the sale.
Section PSI OF the Code doea not apply
The agreed facts do not show That Mad-
| den 1T ay time transacted business in
this store with the addition OF the words
| factor" agent" &c. nor that hc trans
| acted such business there i'm his own
name. without such addition after the
sale The burden was ON the attacking
creditor 10 prove that Madden transacted
the business as the trader In his own
! name after the sale. The distinct adj
mission is that he did not know in what
| capacity Madden was i'm the store aiiei
the sale fraud could not be inferred
| from this ambiguous act, especially li
view Of the admission Of the sale and
delivery Of the goods without any evil
donce Of subsequent restoration OF pos
session TO Madden. and Of the public
recordation OF the bin Of sale and adver'
uscment I'm the city newspaper. so a. u
give the utmost publicity TO the trans
action. and Of her purpose TO continue
the business In her own name and on hel
| own account.
INDICTMENTS.
Cool VS. Commonwealth. Reversed
Opinion by Judge Keith presidenD.
An Indictment charged that ION the -
day of --. in the year one thousand
eight hundred and " one Cool felo-
nously broke and entered a mill-hous'
with intent 10 commit larceny. and did
commit the same. DC. Cool plead moi
guilty." was convicted and sentenced &C
the pcntcntiary for two years. Motor
in arrest Of judgment oyerruled by County
Court, writ Of error refused by Circuit
Judge and writ granted 10y this court.
Held. At common law IL was necessary
to set out the date. though upon proof
the prosecution was not confined 20 tho
time. as was stated. except where time
was "a material element in the offence
Section 1893 provides that indictments
shall not be Quasned for such omission
when time is not the essence Of the Of
fence
Sections 1905 and 1905 enumorate variou.
houses boy name and add. cor Other
house" An act passed February To- 1899
amended section 800. and omitted col
other house" but the words were re-.
stored by the act Of January 9. 1895. 80