The times. [volume] (Richmond, Va.) 1890-1903, 1900-06-24
ia. MILLER, 519 E. Broad,
Branch Under Jefferson Hotel.


placed IN his hands for collection. Com
mencing with Lipscomb against Little
page, / Henning < Munford 433, where
Judge Tucker held that such an arrange
ment was contrary to the public policy, he
then takes up the case of ClevInger VS..
Miller, q Graft, 740, in which Judge
Staples discussed the general doctrine of
subrogation, and expresses doubt as to
whether it would be exercised in such a
case: he then considers the opinion of
Judge Burks in Sherman VS.. Shaver, 10
Virginia, upon the general subject of sub.
-ogation, and comes to the conclusion
that. since there was no previous request
or subsequent promise OF indemnity by
Moore to ReDaSS, and no assignment of
the tax lien, if it was capable of assign
ment, that Repass, the Treasurer, acted
voluntarily in paying the taxes, and in
6erogation of the duties imposed upon
him by law, and is not entitled to be sub
rogated to the lien of the State and
county.
The opinion expressly leaves open the
question whether the right of suhroga-
ton would. in any case. be enforced for
the protection of a collector of taxes
The decree of the Circuit Court of Wythe
county is affirmed.
Brown VS.. Commonwealth.
w. c. Brown came to Roanoke with a
waSon-load of country produce, some of
which he had raised himself. and the
balance of which he had acquired in the
course of his business as merchant
in Franklin county. He paid the curb
age tax and proceeded to offer same for
sale in the market square, whereupon
warrants were issued by a police justice
of the city, charging him with violating
the revenue laws Of the State and the
ordinances of the city of Roanoke. in
that he was doing business as mer-
chant without paying the required Ii
cense tax. These warrants were dis
missed by the justice, but upon appeal
to the Hastings Court fines were imposed
upon Brown. who took the case to the
Supreme Court of Appeals.
Judge Cardwelt delivered the opinion
Of the court. and after reviewing the
statutes Oh the subject he holds that it
is clearly the policy Of the law to ex-
empt persons who deal in country pro-
duce, as did Brown, from the payment of
a license tax, either as merchant or
peddler, and further that he is not
within the common acceptation of the
word merchant.
Concerning the tax required by the
city, the Judge holds that Brown was
not doing business in the city within the
meaning of that section of the charter
comforting power to tax persons doing
Whatsoever business in the city, nor do
the ordinances of the city impose tax
upon Brown, other than the curbage
tax, which he had paid. The opinion d-
reefs an order dismssing the warrants
and the recovery Of costs against the
city.
II. T. Hall represented Brown and the
Commonwealth was represented by the
Attorney-General, and the City of Roa-
noke by Mr.. G. 3. Moomaw.
Blankenshp &C. VS.. Ely. Circuit Court OF
ZEE county. Affirmed.
G.. H. Ely and NJ. e Woodward were
partners doing business in Lee county,
and the former filed a bill asking for
settlement Of partnership accounts and
dissolution of the firm. The bill askd for
a receiver ard prayed for an injunction,
restraining Mrs. NJ E. Woodward and
her husband from disposing of the stock of
goods on hand or from collecting any
debts due the firm. Upon the hearing of
this motion the court required NJ. e.
Woodward to execute to G. H Ely before
the clerk of the court bond conditioned
TO indemnify and save him harmless, and
to secure to him whatever sum might be
found to be due upon a final settlement
OF the partnership accounts.
When he brought an action on this bond.
the obligors contended that it was not in
accordance with the order Of the court,
and two of them stated that they had
signed the bond upon condition that Mrs.
NJ. E. Woodward would sign it, and she.
not having done SO, it is of no effect as
to them.
In the opinion of the court, delivered by
Judge Harrison, it is held that. the bond
does not derive its efficacy from the order
Of the court, and that the obligors are
estopped to deny its recitals. Hence a de-
murrer upon the ground Of variance be-
tween the record and the bond and the
plea of null tel record are of no avail.
Further, the opinion says that the name
of Mrs. NJ. e. Woodward was affixed TO
the bond by her husband at her request:
that it was filed in a chancery cause,
and that she enjoyed the benefits arising
from it's execution, and adopted it as her
bond This being so, she is bound by 1T.
and the other obligors are not relieved up
on the ground that tbs condition uDon
which they signed was violated, even
could such conditions be plead to q bond
perfect on its face.
Wise VS.. Commonwealth. County Court
of Washington county. Reversed.
A prosecution was Instituted against
Wise for unlawfully tearing down and
leaving open a fence Of one II. A. Mann.
During the trial Wise offered evidence
to prove an attempted parol contract
conveying the land on which the fence
was located to himself. The County
Court rejected this evidence and the
opinion of the Supreme Court, which
was rendered by Keith, p, says that it
erred in so doing, and that while this
verbal contract or understanding passed
no title it does bear upon the bona fides
of the claim of right asserted by Wise
and should have been admitted.
The prisoner asked the court to inA.
struct the jury as follows: The court
instructs the jury that if they believe
from the evidence that the defendant,
John Wise. pulled down the fence and
4 left it under claim of right, believ-s
ingsit to be his own, and believing that
he had a bona-fide right thereto, then
5 the jury shall find for the defendant =
The court holds that this instruction
propounds the law correctly and should
have been given. The County Court
seems to have recognized this principle
in the instruction which it gave, and it
might have been necessary to have re-
versed its judgment upon this ground if
it stood alone, but as the case must go
back for a new trial on account of the
error committed in the exclusion of ev-
zidence. it will be proper upon a suisse
auent trial to give the instructions re-
Quested by the prisoner.
New trial awarded.