Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-04-09
of the lower court excluding appellants


Mich. for $4,000. which note wish paid
TO her as early after my death as prac-
ticable. whether due or not with in
terest at per cent per annum from
the date OF my death until paid. 1 d.
rect this sum promptly paid. She re-
sides al Detroit, Mich. In case of her
death. TO be paid as stated upon the back
OF the note"
IL turned out that the note and the
only note. that Anne Il. Casey had or
ever had given her by the tcstator was
FOR 10000. dated at Danvilie Va. Fcbru-
airy - 1891, payable one year after date
to Anne h. Casey and others, or order.
ana upon the back Of this note L. the
endorsement; Anne Il. Casey. $500:
George William Check. $500; A. MILL
gan $1,000; TO be paid in the proportion
10 the parties named above" 1t was
contended by appellants that this clause
OF the will gave Anne T.. Casey legacy
OF $4,000. an ademption Of the debt due
on The note only to the extent Of her
interest therein, namely. $500. and not
merely direction TO testators execu-
tors 10 pay this note OF $4,000, as was
held by the court below.
The opinion reasons with great clear
ness that this clause OF the will does
not give legacy TO Anne T. Casey of
N2,VV, and that II is but a direction to
The executors TO pay this note not $4,000,
10 Anne y. Casey. and that this
direction TO pay 10 her is readily
understood. when read In connection
with the note and the endorsement there
on. He had given the note. says the
opinion, TO her, and at the same time
endorsed on II how she was to appro-
PIRATE the money when she received it.
and II was evident that when he came
70 make his will he was willing to trust
her TO carry out his instructions should
she receive the money I'm her lifetime.
hence he directed his executors TO pay
IL 10 her. giving directions as 10 where
they could find her. and followed il with
a further direction that Sin case Of her
death TO be paid as stated upon the back
Of the note" Says the opinion further:
What to be paid in case OF her death?
Not $1,000. but the amount of this note,
showing that il is this note Of which he
is speaking throughout this clause Of his
Will, though In error as TO the amount
The noie is for $4,000. and the endorse
ment on 1t dispOses Of $1,000. and not
$1,000
The decree Of the lower court in this
case is also affirmed
The Telegraph Company Must Pay.
The writ Of error in the case of the
Western Union Telegraph Company
against Goddln, from the Law and Equity
Court of the city of Richmond, was dis
missed. Judge Keith delivering the opin-
ion. The appeal was from the Judgment
of the DOVER court imposing the penalty
prescribed i'm section 1892 of the Code Of
500 upon the defendant company for
failure to promptly deliver a dispatch
The constitutionality Of this section was
raised by the defendant, and complaint
was made as to certain instructions pre-
scented by it. The defendant in error
contended that the Court of Appeals was
without Jurisdiction, the amount being
less than 500. The plaintiff maintained
the jurisdiction Of this court. on the
ground that a constitutional question was
involved
on November 16, 1893. the Supreme
Court held, In the case of the Western
Union Telegraph Company against Tyler
that section 1892 of the Code was not
in conflict with the Constitution Of the
United States or any act Of Congress
passed in pursuance thereof-9oth Va.
2g7-and in Western Union Telegraph
Company against Bright that position
was reaffirmed. The opinion Of Judge
Keith refers to the recent decision Of
the case of the Western Union Telegraph
Company against Powell. quoting from
the opinion Of Judge Buchanan as to
jurisdiction as follows:
when this writ of error was awarded
section 1901 had not been held by this
court to be constitutional, nor had the
decision I'm the James case been made by
the Supreme Court of the United States,
holding such legislation TO be valid ex-
ercise of the police power. Under the
circumstances surrounding this case, we
cannot say that the jurisdiction was not
invoked in good faith TO determine the
constitutionality Of the statutes in ques-
ton. It's jurisdiction having been pro-
perly invoked upon one of the grounds
provided in the Constitution and laws,
it has jurisdiction for all purposes, al
though the amount involved is less than
500"
Judge Keith goes on to say that at
the time this writ of error chat before
the COURT was awarded, section 1892 had
been passed upon twice and was no
longer a debatable question. Says the
Judge: "The test of good faith does not
fully meet the difficulty. Counsel and
parties may with perfect good faith ask
the reiterated judgment Of this court
upon any question. and | do not clearly
perceive how this court could say at
what point the appeal TO it was wanting
in good faith. a better test, perhaps,
is TO be found in considering whether
or not the point presented is any longer
open for argument Is 1t deDatable
question? See Enc. of Plead. and Pr,
D. 4O-n: Virden VS.. Allen, 10th ILL.,. sos;
Chaplin VS.. Highway Commissioners,
12eth ILL.,. 2g4 Applying this test. it is
plain that the constitutionality of sec
ton 1892 is not an open one in this court.
We are of opinion that the
writ Of error heretofore awarded should
be dismissed"
The Norfolk Court Reversed.
A very interesting case decided yes
terday was that Of Taylor and others
against Mahoney, from the Corporation
Court Of the city of Norfolk. The opin-
ion was prepared by Judge Card
WELL and after reviewing the history of
the suit and the law bearing upon it.
reverses the decree of the lower court.
The case was as follows: S. j. Taylor.
who was in the bar and liquor business
in Norfolk, assigned to S.. Marx, trustee,
making preferences OF certain creditors
The deed allowed the trustee to dispose
of the property assigned, either by public
auction or privately, or 10 con-
tinue the business, as he might deem
proper. On November q. 1894. the ap-
pelee. John Mahoney brought suit for
himself and others against the trustee
and Taylor (who had been retained as
clerk 10 conduct the DuSlneSs) 10 nave
the deed Of assignment annulled as
void asserting that it had been made
to delay, hinder, and defraud the com
nlainant and other creditors Of Taylor
The Court referred the natter 10 a corr
missioner TO take an account of the pro-
perty conveyed in the deed. the amount
and priority of all liens thereon. and 10
report all matters pertinent to the cause.
The commissioner, among other things,
reported a personal liability upon Marx.
trustee. Of $2.l5l3S, profits from the use
of the trust assets In business. to which
the creditors were entitled. Taylor and