Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-06-20
boundary. Garrison W.. Hall. 70 Va. l5s,
Lomax Dig. 6sl.
FRAUD IN ASSIGNMENTS.


boundary. Garrison vs. Hall. 70 Va. l5s.
Lomax Dig. 66l.
FRAUD IN ASSIGNMENTS.
Long. Trustee. etc. VS.. Meridien Brit
tania Company. Reversed. Opinion by
Rely. J. Keith. p. dissenting.
A deed OF assignment, attacked, not
for actual fraud. but constructive fraud.
for alleged failure to surrender entire
estate for payment OF debts. although
exacting release from ce-ditors for
such part OF their debts as the fund
might be insufficient to pay.
Held: II Is settled In Virginia. that a
debtor may assign 10 secure payment or
his debts. and impose the condition that
those who participate In the fund shall
release him from the residue Of their
demands, and may give preferences. as
IN other deeds OF assignment, not con-
tanning a release clause. Skipwith's
Excr.. vs.. Cunningham. Leigh, 21, fol-
lowed in sundry cases. reported in I. 8,
10. and IS Graft, and Paul VS.. Baugh'
etc, 81 Va, g5.
But II Is an essential condition that the
debtor convey all. or substantially all. OF
his estate. without which he cannot
stipulatc for release OF his depts. ine
law conclusiveiy infers an intent 10 nm
der. defraud. &C. from an omission 20
surrender substantial part OF MS estate
and precudes all inquiry TO the contrary.
The omission constitutes fraud In Jaw.
and evidence cannot countervail II. IL II
not necessary that the conveyance snow
on It's face that IL embrace all the estate
of the gfaators. Such fact may DC
proved BY evidence aliunde. is Gratt.'
In this case there was not such a.
omission Of property as conclusively mani,
tested fraudulent intent, and the de-
cree Is reversed
MANDAMUS REFUSED.
Town OF Strasburg VS.. Winchester and
StrasDurg Railroad Company. Man
damus refused. Opinion by Rlely, j.
This company. in 1870. leased It's road
10 the Baltimore and Ohio, which has ever
since operated IT, and the lease VIII not
expire for a number Of years. More tha t. I
a year ago the Baltimore ana ONO, Win
all OF its franchises, was placed IN the
hands of receivers by the United states
Circuit Court who took possession OF
the same. Their possession and control
cannot be disturbed by any other couI'
than the one which appointed them. This
is the established doctrine OF both the
State and Federal courts.
The record discloses the fact that II the
writ were awarded the court would De
| powerless to make II effectual. which con-
stitutes an insuperable objection TO grant
ing it. Spelling on Ext. Keller, section
1871 l., ..o
Another equally cogent reason is the
the
company were ordered TO make the de-
sired extension, and construct It's road "a
| Strasburg II would be financially unaoie
| to obey, and the writ of mandamus Won o.
on that account also, prove inenectuai'
Bell. Commissioner, &C., VS.. WOOD, &C
Reversed. Opinion by Cardwell, j..
Held. While a court of equity VIII re-
fuse TO enforce stale demands WheIe
party has slept upon his rights or aequl'
esced for an unreasonable length or tiniS
b.r lanSp
cient TO bar a recovery must. OF necessity
denend upon the particular clrcunstdncc
! of each case. Tunstalfs Admnlstratol
vs.. Withers, &c. So Va, w, ana Gases
The lapse OF twenty years from the ma,
turity of bonds excluding the period oi
the stay law-raised the common law ptS,
sumption OF payment. but the alissa 49, ~
of payment. and me Petitt,ont ~ ner r re-
alleges a payment Withlh thaI pei'ON'
pels the presumption. -. u,oya,.c
! Nauzy. the trustee named In the ueeu
| and r. MauZy. Clerk. who took the gran
tors acknowledgment were one ana VI.
| same person. and the question vas no,
raised by the demurrer. Such . fact must
he shown by proof when put IN issue
| Carey VS.. Moore. 50 Va. III .
| RIIJ,S OF EXCEPTIONS. NEW TRIALS
Uudgins and Wife VS.. Simon, etc. AZ
| firmed Opinion by CardWeu j.;
Al first trial. of course verdlct lor
| plaintiff. and motion TO set ASIDE as col-
| nary TO the law and evidence, ana ms
| direction by the Court in instructions 10
the inry Motion adjourned 10 next tttHi,
when verdict was set ASIDE ana new aI uIai
| awarded. plaintiffs excepting ana IilnS
| their bill. which was duly signed anu en-
| r1lled New trial had az once anu NSi ,
| dict for defendant Motion for new trial
adjourned from term 10 term, an. t 20 - .
| continued to November. when Elot,on, W -
oVerrued. ard judgment loI ue'O'~'
.,,I ri n
an Held If granting defendant a new trial
at the January term OSD was erroneous
this court must enter luaSineI AZ I'd
tiff on the first verdict ana dlsIesaiL o
Subsequent proceedings in the case. tCoue'
Sec. SlS4; Tyler VS.. Taylor, Il Graft ~.
| Brown VS. Rice, 76 Va. 629) during Hrst
| trial defendant objected 10 certain eVl-
| dence and to instructions given Tor PLAIN
| tifS and moo ifcation OF Instructions ask
| ed by defendant. but no tornlal DilS We, WI
rendered till after Nerdlct at secoi,u 49, Ia,
| when court refused TO sign them, because
| at the time they were rendered the record
! of the first trial was closed and could not
| be reopened or altered without consent OF
| both parties. go, :,
except and tender his bill of exceptions;
| Not after the. trial. and at another anu
different term. after the case hau beel
| ended the trial is considered as Iastils
during the term for completing tho re-
cord by signing bills, but not during z
succeeding term. (Winston vs.. Giles, -
Graft. 537; Powell VS.. Iary AqminlstIh u
| tor. II Va, 250) What term is meant
| the term Of the verdict or the term OF the
=, Judgment rendered thereon? Inc Nerllc,
was rendered at October term. 1888, ana
| The motion to set aside entered. the. mo,
| ton adjourned. and the case continued
| TO January for the purpose, as the Judge
certifies of allowing time Tor consldefa-
| lion of exceptions. which might be ten
dered. The FIRST trial was. therefore. not
ended till the January term. and the
court erred in not making them part Oh
| the record.
2. In the first trial the court erred IN
an Instruction given for plaintiffs. mis-
leading to the extent that an. extract
from a book labelled Patents In the
Land-Ofce might be taken as the patent
itself. not leaving 10 them the question
whether upon the evidence a patent had
I'm fact hnen iesunl 70 the allp0el nltentee.