statute, which is now, as it stands in the Code, substantially as it was when those cases were decided, nearly 40 years ago, Jones v. Com., 19 Grat. 478. Hall's Case, to this extent, is consequently overruled. It is proper to add that it is also certified that the charge against the prisoner was tember term following his arrest and commitment for trial, because "the principal witness for the commonwealth, a little girl, was unable to attend the court on account of the weather, which was very bad and rainy." But, as what has already been said is decisive of the case, it is unnecessary to say anything upon that point. Judgment affirmed.

The writ extends only to such matters as | cases, and with its construction of the Occurred after the indictment was found. If the court erred in overruling the motion, the prisoner had his remedy by habeas corpus, and the time for that has passed, as he is now detained in custody, not by virtue of the original commitment or the order overruling the motion, but the final judgment in the case. It may be as well, how-not laid before the grand jury at the Sepever, to say that the motion was rightly overruled. The prisoner, it appears, was arrested for the crime, for which he was afterwards indicted, on Thursday, the first day of the August term, 1888, and on the following day was taken before a justice for examination, by whom, on the same day, he was committed for trial. On the day of the arrest a grand jury was impaneled, but was discharged the same day. The term ended on Saturday, the day after the prisoner was held to answer, and no indictment was found either at that term or the September term, nor until the ensuing Oc- (Supreme Court of Appeals of Virginia. Dec. tober term, although a grand jury was impaneled at the September term. We think the indictment was found in time, and we think so because the August term is not to be counted as one of the two terms within which, according to the requisitions of the statute, the prisoner must have been indicted, or discharged from imprisonment, unless the case is within one or more of the exceptions contained in the statute. Code, § 4001.

A similar question arose, and was decided the same way, in Bell's Case, 7 Grat. 646, which was an application for a writ of habeas corpus. In that case the day on which the prisoner was sent on for trial was the sixth day of the term of the court at which he was held to answer, and its session continued for five days thereafter, but he was not indicted either at that term or at the next. He thereupon applied for a writ of habeas corpus to be discharged from custody, on the ground that two terms had passed since he had been held to answer without his being indicted. But the court held otherwise, and refused the writ, on the ground that the term first above mentioned was not to be counted, because a term of the court at which a prisoner is held to answer is, in the meaning of the statute, "a term complete by commencing on the first day." Many mischiefs in the administration of criminal justice, it was said in the course of the opinion, might arise if the term of the court, though only an hour before its adjournment, or however engrossed with its business on hand, were counted for a term, because a prisoner is held to answer at that period of the term. "The term," according to the common law, it was also said, is understood as the term of the day, and that day as the first day of the term, to which all after proceedings have reference, both in civil and criminal proceedings. The question was very carefully and fully considered by the court, and its ruling, after reconsideration, was reaffirmed in Bell's Case, 8 Grat. 600. A different doctrine, it is true, was held in the case of Hall v. Com., 78 Va. 678; but this point was decided without mature consideration, and without any reference to the cases just mentioned. We are entirely satisfied with the reasoning of the general court in those

SHENANDOAH VAL. R. Co. v. LUCADO'S

ADM'R.

5, 1889.)

MASTER AND SERVANT-INJURY TO SERVANT. Plaintiff's intestate had been employed by defendant for many months as a section hand, and on the night of the accident had been detailed as a watchman, and instructed to walk back and forth between two points on defendant's tracks. While doing so, he mounted a passing engine, which de fendant's rules forbade. Copies of these rules were distributed among the section foremen. Held, that intestate was charged with notice of the rules, and, being on the engine contrary to ative could not recover for injuries caused by an these rules and to his instructions, his representaccident to the engine, and it was immaterial whether or not his getting on the engine was objected to by those in charge.

E. Pendleton and W. H. Travers, for W. A. Anderson, for deplaintiff in error. fendant in error.

LEWIS, P. This is a writ of error to a judgment of the circuit court of Botetourt county, in an action of trespass on the case, wherein the administrator of Robert Lucado, deceased, was plaintiff, and Sidney F. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate on the night of the 29th of October, 1885, while in the employ of the defendant as a brake hand, temporarily detailed as an extra watchman. His death was caused by the derailment of a locomotive on which he was riding, and that was occasioned by a washout in the road-bed which caused the engine to roll down into the edge of the river, near the track, when the deceased, unfortunately, was drowned. At the trial there was a verdict for the plaintiff for $8,000 damages, which the defendant moved the court to set aside; but the motion was overruled and judgment entered on the verdict, whereupon the case, on a writ of error, was brought to this court. The record is voluminous, but the case itself lies within a narrow compass, and may be briefly disposed of.

The contention of the defendant in error, the plaintiff below, is that the deceased was rightfully on the engine, and that his death was caused by the defective construction of the road-bed and track, and without fault on his part. But this position is untenable. The facts disclosed by the roc

and the deceased, jumped off, just in time to save themselves. The engineman and the deceased were carried down with the engine into a chasm in the road-bed, and thence into the river, along the margin of which the road was built. The deceased was caught fast in the wreck, and in a little while the rapidly rising water submerged and drowned him.

ord, so far as it is necessary to state them,
are substantially these: The deceased, on
the night of the accident, was detailed to
watch the track for a certain distance, and
to give warning of any signs of danger that
he might discover. There had been a se-
vere, in fact, an almost unprecedented, rain
just before, from which danger to the track
was apprehended, and in consequence of
which extraordinary precautions seem to Rule 107 of the "Train Rules" of the
have been taken by the officials of the com- company provides that "no person shall be
pany to prevent accidents. At a point a permitted to ride on an engine without an
short distance below or north of the place order from the superintendent, or superin-
where the accident occurred, there was a tendent of motive power, except the engine-
crook in the railroad embankment, which man, fireman, road foreman of engines,
another employe was ordered to watch, train-masters, assistant engineers, and su-
with a red light. A red light is a well-un-pervisors on their respective divisions, and
derstood signal of danger, and to engineers conductors in discharge of their duties."
it means to "stop." From this point, about
7 o'clock in the evening, the deceased, with
a lantern in his hand, started up the track,
to go over his beat, which extended up the
track, about three-quarters of a mile from
that point. The night was very dark.

These rules were in force, and had been for
several years, when the accident occurred,
although they had not been formally pro-
mulgated by the receiver after his appoint-
ment. They are printed, and copies of them
had been duly furnished to section foremen
-Jennings among the number-for the
guidance of themselves, and the men under
their charge. The deceased had been in the
employ of the company as a section hand
for many months prior to the accident, and
the presumption is that he was acquainted
with the rule above quoted. At all events,
the fair inference from the record is that he
had reasonable opportunity to become ac-
quainted with it, which, for the purposes of
the present case, is equivalent to actual
knowledge. The evidence also shows, and
it is conceded, that, had he not gotten on
the engine, he would not have been injured.
Can this action, then, be maintained? We
think not. It would be strange indeed if
it could be. The deceased, in getting on the
engine, not only disobeyed his positive in-
structions to walk upon the track, but vio-
lated the general rules of the company also;
and but for his deceptive report that the
track was safe, it is a moral certainty, if
we can believe the uncontradicted evidence
in the case, that the accident would not
have happened. The case is a much strong-.
er one than Railway Co. v. Roach, 83 Va.
375, 5 S. E. Rep. 175, in which case it was
held that the plaintiff, who was injured
while riding on a locomotive, was not enti-
tled to recover; and authority to the
same effect is abundant. That the deceased
was himself the author of his misfortune is
too plain to admit of doubt, and it
makes no difference that his riding on the
engine was not objected to by those in
charge of the train, for they were as much
bound by the rules of the company as he
was. So that when he got on the engine
he did so wrongfully, and at his own risk,
and his representative has no recourse
against the company for the consequences
of his own misconduct. Railroad Co. v.
Jones, 95 U. S. 439. No other question,
therefore, need be considered. The judg-
ment is reversed.

How often the deceased passed over his beat, if more than once, does not appear. His orders, however, were peremptory to be vigilant, and to "walk backwards and forwards over the track" between the points indicated. There was evidence for the plaintiff tending to show that his beat extended up the track a greater distance than three-quarters of a mile. But, be that as it may, it is certain he had the opportunity to pass over it several times, at least, before the accident occurred. The watchman with the red light, above mentioned, testifies that he saw nothing of the deceased from the time he started out, at 7 o'clock, until after the accident. The accident occurred a little after 10 o'clock that night. The deceased, a few minutes before that time, was at a point on the track less than a mile from where he started out, when a ballast train approached from the south. This train had been sent out, with a force of hands, to remove any obstructions or to make any repairs that might be found necessary for the safety of the track. Driscoll, the foreman of the construction force, was riding on the engine, and Egan, a supervisor of repairs, was in the rear or tool car. The deceased was acting under the orders of Jennings, a section foreman. When the train came up the deceased signaled it to stop, and it did so. When it stopped, Driscoll inquired of the deceased as to the condition of the track, to which he replied that it was "all right" down to the red light, above mentioned, which was about 200 yards beyond the fatal spot. He then, without any order or invitation, express or implied, from any one, got on the engine, which thereupon proceeded down the track, in the direction of the red light. It moved slowly and cautiously, at a rate not exceeding three or four miles per hour, -so slowly, according to the evidence, that the deceased could easily have gone on foot in front of it; and both Driscoll and Egan testify that a man would have been sent in front from that point, but for the assurance of the deceased that the track was safe. The train, however, had not gone far when a sudden cry of alarm was uttered by Driscoll, who was looking out, and all on the engine, except the engineman and

WALLACE v. MINOR et al. (Supreme Court of Appeals of Virginia. Dec. 12, 1589.)

WILLS-CONTINGENT REMAINDER.

A devise of an estate "for the use, benefit, behoof of my daughter * * * during her

SOUTHEASTERN REPORTER, VOL. 10.

(Va.

natural life, and for the use of the heirs of my said | land was not. This land was divided in
daughter after the death of my said daughter,"
creates a contingent remainder in the heirs of the
daughter, which does not become vested until her
death; it appearing that the will was drawn by
one who clearly understood the meaning of the
terms employed, and there being nothing to indi-
cate that the word "heirs" was not used in its tech-
nical sense. FAUNTLEROY, J., dissenting.

John M. Orr, for appellant. S. Ferguson
Beach, for appellees.

trustee, to be held on the trusts of the will. In 1854 the trustee purchased with the trust kind, and one-third allotted to Mrs. Minor's money the other two-thirds of the said tract of land called "Greenway," and taking the deed to himself individually. On conveyed by deed, in which his wife united, the 12th day of June, 1865, the said trustee the said land so purchased, and the whole LACY, J. This is an appeal from a decree sole and separate use and benefit and beof the circuit court of Loudoun county hoof of the said Louisa Fairfax Minor, wife of Greenway, to T. Parkyn Scott, for the rendered on the 19th of October, 1888. The of the said John West Minor, during her bill was filed to subject a tract of land in natural life, and for the use of the heirs of the county of Loudoun, lying on the Poto- the said Louisa Fairfax Minor after her mac river, containing 550 acres, known as death, and in manner and form as set forth "Greenway," to the payment of a debt of and provided in the will of the said Charles $5,000 secured thereon by trust-deed exe- I. Catlett, as aforesaid. In 1871-72 Mrs. cuted by certain of the appellees, to-wit, Minor and T. Parkyn Scott, trustee, conJohn W. Minor and Louisa F. Minor, his veyed this land to secure certain creditors, wife, and Essie F.Heiskell, T.Parkyn Scott, and suit was brought to subject the said trustee, Fairfax C. Minor, J. Monroe Hei- land to the payment of these debts. In skell, on the 19th day of March, 1872, to that suit, the court, being of opinion that Charles P. Janney, trustee, to secure the Mrs. Louisa F. Minor had no power to inpayment of the said sum, to the appellant, cumber or dispose of either the corpus or with interest at the rate of 10 per centum income of the trust fund except as provided per annum. The Greenway tract of land in the will of the said Charles I. Catlett, was claimed by the grantors in the said dismissed the bill, and the creditors claimdeed under the will of the father of the said ing under the said deeds appealed to this Louisa F. Minor, who died in 1845. The court, where the said decree was substancontroversy in this case has arisen under tially affirmed. See the case of Ropp v. Mithe following clause of the said will: "I nor, 33 Grat. 107, (opinion of BURKS, J.,) give and devise one-third part or portion where it is said: of my whole estate, real, personal, and Mrs. Minor had no power to dispose of or mixed, of every kind and description what- charge or incumber the corpus of the es"Our conclusion is that ever, which I may die possessed of or own- tate derived by her under the will of her faing, to my daughter-in-law Esther Ann Cat-ther, or acquired by the several deeds set lett, and her heirs, in trust for the use, bene- out in the record, except such, if any, as fit, and behoof of my daughter Louisa Fair- was acquired under the deed of her son fax Minor, wife of John West Minor, during Fairfax C. Minor, dated the 11th day of her natural life, and for the use of the heirs May, 1865. If she took anything under the of my said daughter after the death of my last-named deed, *** said daughter, subject to the annuity afore-ly empowered by the deed to dispose of it said." "And my will is, and I hereby em- as if she were 'an unmarried woman.' Nor * she was expresspower and require the said Esther Ann did she have the power to anticipate the Catlett, trustee, as aforesaid, as soon as profits, income, or interest which might convenient and practicable after having re- arise or be derived from said estate, (exceived the said legacy or proceeds of said cept as to the interest, if any, acquired as devise, to loan out the same at interest on aforesaid, under the deed of her son Fairgood and sufficient security, by bonds and fax,) so far as they might be required for mortgage on unincumbered real estate, her comfortable support. and to apply the interest or income which fect, therefore, of the several deeds of trust shall or may arise, accrue, or be derived was to create liens for the debts mentioned The eftherefrom to the payment and discharge of therein on such excess, if any, of the profits all the expenses and charges necessary and or income arising from the Greenway farm required for the proper maintenance, com- during the life of Mrs. Minor, and also on fort, and support of my said daughter Lou- the estate, if any, acquired by her under isa; or the said trustee may, if she shall in the deed from her son Fairfax." her discretion deem it proper, pay over the interest or income aforesaid to my said court considered and settled the question In the said case of Ropp v. Minor, this daughter Louisa, semi-annually, in money, therein involved, to-wit, the power of Louon her sole and separate receipt, independ-isa F. Minor over her separate estate. ent of any interference, hindrance, or control of her husband, or by him, and the said income or interest shall not be so liable or taken for her husband's debts or contracts, nor be applied to the payment thereof, nor any part thereof." directed by the will to be sold and convertThe whole estate was ed into money. The said Esther Ann Catlett first acted as trustee, but subsequently she was relieved of the trust, and the said John W. Minor was substituted as trustee. Most of the property of the said testator was, as the will directed, sold and converted into money, but this Greenway tract of

# *

*

But

Mrs. Minor and her trustee, and other appellees named above, having conveyed the estate in 1872, as stated, and Mrs. Minor ha ving died in January, 1888, this suit was brought to the March rules following, to of her debts. She left surviving her one son, subject the said trust-estate to the payment Fairfax C. Minor, who conveyed his interest to his mother for her sole and separate use, to be disposed of and conveyed as she may desire, as though she was a feme sole, etc. This deed was executed May 11, 1865. Her only other child, Essie, had married the said J. Monroe Heiskell and had died dur

ing the life-time of her mother; leaving, | ty of Fearne and Blackstone, (Fearne, Rem.
however, surviving her the infant defend- 116, 117; 2 Bl. Comm. 169,) as a remainder
ant, Minor Heiskell, who has survived Mrs. limited to an uncertain person or on an un-
Louisa F. Minor. This suit and the said certain event, or so limited to a certain per-
suit of Ropp v. Minor were heard together, son and on a certain event as not to possess
and the circuit court at the hearing was of the present capacity to take effect in posses-
opinion and decreed that on the death of sion should the possession become vacant."
Louisa F. Minor one undivided moiety of If the words of the will are to be followed,
the tract called “Greenway" passed under the meaning given to the word "heir"
the will of Charles I. Catlett, deceased, to which technically belongs to it, then the
the infant, Minor Heiskell, unaffected by person to take the remainder after the
any lien or incumbrance, and became the death of the life-tenant necessarily re-
absolute property in fee of said Minor Hei-mained uncertain until her death; for, as we
skell; but further decreed that the other have said, no person can be heir to a living
moiety of Green way became the property of person. But the appellants urge that in
Louisa F. Minorin pursuance of the deed of this case the word "heirs" must be held to
Fairfax C. Minor dated May 11, 1865, and mean "children," and the persons to take
that said moiety is bound by the several were thus rendered certain. The word in
liens against the same in the case of Ropp question has a well-known technical mean-
v. Minor; and decreed that the bill of the ing, and we think technical words are prima
complainant, Wallace, in so far as it seeks facie to be understood in their legal sense,
relief from the sale of Greenway in the said unless, from the contents of the will, it
cause of Wallace v. Minor, be dismissed, plainly appear that the testator intended
etc. And from this decree the case is here to use them in a different sense; and when
on appeal.
the testator uses only technical phrases the
court is bound to understand them as such,
because the court cannot say that he did
not know their meaning. But if the tes-
tator uses other expressions, in other parts
of his will, which shows he did not mean
to use those phrases technically, then the
intention must prevail. It is in conformity
with these principles that if the testator
uses legal or technical phrases only, his in-
tentions should be construed by legal rules;
and, if he uses common words, his inten-
tions should be regulated according to the

v. McRoberts, 1 Wash. (Va.) 100; Hodgson
v. Ambrose, 1 Doug. 341; 2 Minor, Inst. 1064.

The question to be determined is, what was the character of the estate which passed under the will of the said Charles I. Catlett to the children of Mrs. Minor, Fairfax C. and Essie? If the will gave to them a vested remainder, then both had conveyed their interest by the above-mentioned deeds. If a contingent remainder, then the moiety passing to Essie, upon the contingency of her surviving her mother, never vested, she having died before her mother; and the circuit court rightly decreed that it was unaffected by her conveyance, and vested up-common understanding thereof. Kennon on the death of Mrs. Minor in the infant defendant, who became entitled as the heir of Mrs. Minor. It will be remembered that under the limitations of the will this estate was for the use, benefit, and behoof of the daughter, during her natural life, and for the use of the heirs of the daughter after the death of the daughter. Who answers this description? Does the daughter who had predeceased the life-tenant? She was not the heir of the life-tenant, her mother. No person is heir of a living person. Who were the heirs of the life-tenant after the death of the life-tenant? The son Fairfax C. and Minor Heiskell, the grandson,-son of the deceased daughter. They are the persons on whom the law casts the estate in lands, tenements, or hereditaments immediately upon the death of the ancestor.

The will in this case, as is well argued by
the learned counsel for the appellees, was
obviously drawn by a professional hand,
by one who clearly understood the mean-
ing of the terms employed, and who select-
ed his words with reference to their true
and accurate meaning. “When the word
heirs' is used, not to denote succession, but
to describe a legatee, and there is no con-
text to explain it otherwise, it seems that
there is no reason to depart from the nat-
ural and ordinary sense of the word 'heir.'
2 Lomax, Ex'rs, 21.

We are of opinion that the remainders pro-
vided in the will of Charles I. Catlett, for
the use of the heirs of his daughter after the
death of his said daughter, are contingent
remainders, and vested on the death of
Louisa F. Minor in the son Fairfax C. Minor,
and the grandchild Minor Heiskell; and
that Mrs. Heiskell, having died before the
contingency mentioned in the will hap-
pened, took no interest under the clause in
question, and the grantee therein took
nothing by her deed above mentioned; and
the decree of the circuit court of Lou-
doun appealed from here is without error,
and must be affirmed.

But it is insisted that the testator meant the children of Mrs. Minor by the term "heirs," and that Mrs. Heiskell took a remainder vested in interest, and her interest passed by her deed to Janney. On the other hand it is contended that the will gave a remainder limited to the heirs of Mrs. Minor, to take effect only upon the death of Mrs. Minor. "A 'contingent remainder' is a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate." "A vested remainder' is a remainder limited to a certain person, and on a certain event.so as to possess a present capacity to take effect in possession, should the possession become vacant." Mr. Minor defines a "contingent remainder," upon the authori- deed

FAUNTLEROY, J., dissenting.

MOSBY'S EX'R V. JOHNSON'S ADM'R et al.
(Supreme Court of Appeals of Virginia. Dec.
13, 1889.)

LIABILITY OF TRUSTEES.

Sixteen years after a sale under a trustgiven to secure a debt the sale was adjudged

17

invalid, and it was decreed that the trustees' rep-ceeds of the sales of lands belonging to resentatives should pay into court the value of the Mosby's estate, but the amount of the land at the time of the sale, with interest. The debt so paid was $720.75 less than the asoriginal debt was then satisfied from the estates of certained value of the Main-Street lot, with the trustees, but the amount thus paid was considerably less than the appraised value of the land, interest, and accordingly that sum, namewith interest. Held, that the representatives of ly, $720.75, the executor of Mosby was orthe trustees must pay into court, for the benefit of dered to bring into court (it being adthe estate of the original debtor, the amount of the mitted by all parties that the estate of difference between the original debt and the ap- Speed is insolvent) by the decree now compraised value of the land. LACY, J., dissenting. plained of.

E. S. Brown, for appellant. W. W. Larkin and Staples & Munford, for appellees.

We are of opinion that there is no error in the decree. The principles of the cause were settled by the decree which was afLEWIS, P. This is an appeal from a de- firmed on the former appeal, and the subcree of the circuit court of Lynchburg, ren- sequent action of the court below was in dered on the 28th of June, 1888. The case conformity with those principles. By the is as follows: On the 17th of February, decree first appealed from it was decided 1854, George T. Johnson, being indebted to that the sale of the Main-Street lot by the Charles H. Moorman in the sum of $5,- trustees was without authority, and con620.70, evidenced by bond, executed a deed sequently that the trustees or their repreof trust, in which his wife united, whereby sentatives were liable for the value of the he conveyed to Charles L. Mosby and lot, which was ascertained to be $7,000, John M. Speed, trustees, five lots in the city and that sum to bear interest from the 15th of Lynchburg, and a tract of land in Camp- of December, 1862, subject to a credit of bell county, to secure the payment of the $572.49 as aforesaid. In other words, it said bond. On the 15th of December, 1862, was held, in effect, that the representaJohnson having in the mean time died, the tives must restore to the fund that amount trustees sold at public auction one of of money, to represent or take the place of lots, designated in the record as the "Main- the lot just mentioned, and this decree was Street Lot," to Solomon Levi, for $9,840. in all respects affirmed. Whether that deThe purchase money was paid in Confeder- cision was right or wrong is a question ate currency, and the trustees conveyed the not now open for consideration. It is suflot to the purchaser. Moorman, however, ficient to say that, upon a careful considerrefused to take Confederate money from ation of the case, the decree was affirmed, the trustees, and thereupon they deposited and, although affirmed by an equally dividthe proceeds of sale in one of the Lynch-ed court, yet the effect of the decree of afburg banks for Moorman, if he would take firmance is the same, so far as the present the Confederate money; if not, for the appeal is concerned, as though the voice of widow and heirs of Johnson. The money the court had been unanimous for the so deposited remained in the bank until same result. It is true nothing was said the close of the late war, when the bank in the decree about the representatives of went into liquidation. A dividend on the the deceased trustees paying anything to deposit, amounting to $572.49, was subse- the Johnson heirs, nor is there any allegaquently paid through Mosby to Moorman. tion in the pleadings of any liability on the In May, 1878, Moorman filed his bill in the part of the former to the latter, but that court below against the administrator does not affect the case. The liability of and heirs at law of Johnson, Solomon the trustees, as declared and ascertained by Levi, and Charles L. Mosby, surviving the decree which was affirmed, was, as betrustee, and the administrator of John M. tween them and the Johnson heirs, intendSpeed, deceased, alleging that a large bal-ed, as we said, to stand in the place of the ance on the debt due by Johnson's estate Main-Street lot; so that, as between those remained unpaid, and praying a decree for parties, the case stood, when it was reits payment. When the cause came on to manded to the lower court, as though the be heard the circuit court held that the lot had been regularly sold, and the prosale by the trustees of the Main-Street lot ceeds of sale brought into court. This, we was made without authority, and ordered think, is clear, and, viewing the case in this an account to be taken to ascertain its light, the solution of the questions present"true intrinsic value, in good money, on the ed by this appeal is not diflicult. If, then, 15th of December, 1862." The commission- there had been no sale by the trustees, and er who made the inquiry reported that its if the lot had been sold under a decree of the value at that time in a sound currency was court, and the purchase money brought $7,000. And thereupon it was decreed that under the control of the court, what would the executor of Mosby, who in the mean have been the rights of the parties? Cleartime had died, and the administrator of ly, the Moorman debt would have been Speed, pay to the credit of the cause, from first payable out of the proceeds, and the the assets of the estates of their dece- surplus, if any, would have gone to the repdents, the sum of $7,000, with interest there- resentatives of Johnson, the grantor, in on from the 15th of December, 1862, until the deed of trust. Then, if the representapaid, subject to a credit of $572.49, the tives of the trustees must bring into court amount of the dividend above mentioned. the equivalent in money of the lot, as of Upon appeal to this court this decree was the 15th of December, 1862, with interest affirmed by an equally divided court, on from that date, as they have been decreed the 16th of April, 1885.1 After the case to do, and the fund so brought in is more went back to the circuit court, the Moor- than sufficient to pay the Moorman debt, to man debt was fully paid out of the pro- whom ought the excess to be paid? Why, clearly, to Johnson's representatives, because that excess represents the interest

1 Not reported.