In the Supreme Court of Appeals of Virginia.'

1. A negotiable note is signed R. H. E., for S. H. C., the latter name being within brackets, On the face of the paper it is the note of R. H. E. Early vs. Wilkinson & Hunt.

2. The father of an infant child being dead, the mother is entitled to its custody as of right; and she does not lose this right by a second marriage. But where she is seeking by the writ of habeas corpus to have the child placed in her custody, the Court may exercise its discretion, and determine whether, under the circumstances, it is best for the infant that he should be assigned to the custody of the mother. Armstrong vs. Stone & Wife. 3. Testator devises his real estate to his wife for life, remainder to his son J.; and bequeaths his personal estate to his eight children. The wife renounces the will, and takes her third of the real and personal estate. The two-thirds of the real estate, devised to the wife for life, is to be rented out, and the proceeds applied to satisfy the legatees of the personal estate for the one-third of that fund taken by the wife; and upon their satisfaction, or the death of the wife, whichever event shall first happen, the said twothirds of the real estate passes at once to the remainderman J. McReynolds vs. Countz et als.

4. In the penal part of a bond the names of fourteen obligors are inserted, binding themselves in a penalty to T. The condition recites that T has admitted the above bound his deputies in the office of sheriff

shall well

of G county for twelve months. Now, if the above bound and truly discharge the duties of their respective offices of sheriffs as aforesaid, &c., the names of the parties who were admitted as deputy sheriffs being omitted. Two of the persons whose names were inserted in the penal part of the bond did not sign it; and one signed the bond, whose name did not appear in the body of the instrument. On a motion by the administrator of T, the high sheriff, for the default of one of the fourteen who had signed the bond, as deputy high sheriff. Held,

1st. That there being nothing on the face of the bond to indicate that all named in the penalty were not appointed as deputies, and the obligors having sealed and delivered the bond in its present form, they are estopped from denying the fact.

2d. The deputy sheriffs having no joint interest in or authority over the the whole office, and, therefore, one not being responsible for the other

The Reporter has kindly furnished us with these abstracts. The cases themselves will be found in 9th Grattan's Reports.

merely by virtue of the office, they can only be held liable for the acts of each other in consequence of an express understanding. As, therefore, they do not and cannot be made to stand as principals in respect to the acts of others, each one must be regarded as principal so far as his own acts are involved, and the remaining obligors are his sureties.

3d. Though some of the persons named in the penalty did not sign the bond, the parties who did sign it are to be considered as the obligors who are bound, and are recited to have been admitted as deputies.

4th. A party signing the bond, whose name is not in the penalty, does not vitiate the bond, and he is bound as an obligor. Cox and others vs. Thomas' Administrator.

5. The Circuit Court is a Court of general jurisdiction, taking cognizance of all actions at law between individuals, with authority to pronounce judgments, and to issue executions for their enforcement. Where its jurisdiction is questioned, it must decide the question itself. And whenever the subject matter is a controversy at law between individuals, the jurisdiction is presumed from the fact that it has pronounced the judgment; and the correctness of such judgment can be inquired into only by some appellate tribunal. Id.

6. Two deeds are made by an old man shortly before his death, by which he conveys the whole of his property which he had not before disposed of, to one of his sons.

Held,

1st. That the principle which has been applied to last wills, in respect to the state of mind and degree of capacity sufficient to make a valid devise or disposition of property, is equally applicable to the case of this grantor.

2d. The grantor not laboring under a total or temporary deprivation of reason, he was of legal capacity to make a valid disposition of his property, if he was capable of recollecting the property he was about to dispose of, the manner of distributing it, and the object of his bounty.

3d. Although the grantor or testator may labor under no legal incapacity to do a valid act or make a contract, yet if the whole transaction taken together with all the facts, mental weakness being one of them, shows that the particular act was not attended with the consent of his will and understanding, it is void. Greer vs. Greer.

7. In an action at law, the defendant is prevented by unavoidable accident from setting up offsets which he held against the plaintiff; these offsets being in no way connected with the debts sued upon. He is not entitled to enjoin the judgment and set up his offsets against it, but must pursue his remedy at law for their recovery. And if the claims which he

holds against the plaintiff at law, are only recoverable in equity, still he is not entitled to enjoin the judgment, and have them set off in equity. Hudson vs. Kline.

8. A vendee of land being entitled to come into equity to enjoin a judgment recovered by an assignee of a bond given for the purchase money, on the ground of difficulties in the title, and it being doubtful whether he can get a title; though the title is decreed to him in his suit, he is entitled to set up in equity offsets he held against his vendor prior to the assignment; and he was not bound to plead them at law. Bagsdale vs. Hagy and others.

9. A sells to B a number of slaves at a price much below their value, for the purpose of defrauding his creditors. B executes to him her bonds for the purchase money, and he assigns the bonds to bona fide creditors; and soon thereafter dies. B sells a part of the property, and pays off the bonds, and then conveys the remainder of the property to the widow and child of A. Upon a bill by other creditors of A to set aside these deeds as fraudulent, they are set aside, and the property conveyed in the last of them is sold, and the proceeds are applied to pay the claims of the creditors. All the creditors of A not being satisfied out of this fund, B is held liable to satisfy them to the extent of the price of the slaves sold by her. Williamson's Executor vs. Goodwin et als.

10. S by his will emancipated his slave at a specified future period; provided she shall leave the State within six months thereafter. But if she does not leave the State within the six months, then she is to become a slave to his estate forever. And provided, that the laws of the State shall so require her to leave it. Held, That the condition is void; and she is free, though she does not leave the State within six months after the time specified. Forward's Administrator vs. Thamer.

11. Testator by his will says: "Whenever my executors think best, they shall sell my land in B, together with all the personal estate thereto belonging, except the slaves; and reserving one hundred and fifty acres of said land, which, with one-fourth of the said slaves, they shall hold in trust for the benefit of my daughter N. B.," &c. "The money arising from the sale of the land and other property above mentioned, together with all other moneys remaining in the hands of my executors, after payment of debts and legacies; also the remaining three-fourths of my slaves belonging to my said plantation, I desire shall be equally divided between my son B and my daughters M and J." Held, The will does not confer on the executors a naked power; but it vests in them an interest and a trust, and

it is their duty to take possession of the land and to account for the rents and profits until it is sold. Mosly's Administrator et als. vs. Mosly's Administrators.

In the Supreme Court of Alabama, January Term, 1854.

1. An infant is in esse, for the purpose of taking an estate for its benefit, from the time of its conception, provided it be born alive and after such a period of foetal existence that its continuance in life may be reasonably expected. Nelson vs. Iverson.

2. An action on the case lies against the owners of a steamboat to recover damages for the loss of a slave who was hired as a deck hand on the boat, and was killed in consequence of a collision with another boat; if his death was the legitimate and natural consequence of the collision, and the collision was caused by the negligence and want of skill of the boat's officers. (But note that the captain was one of the part-owners.) Cook & Scott vs. Parham.

3. It is the duty of the owners of the boat to use due care in providing competent officers for her; and the owner of the slave may hold them responsible for the neglect of this duty, although he had the means of knowing the officers' character for skill and care when he hired his slave to them. Ib.

4. If the slave's death was caused by his own act, in leaping into the river when frightened out of his ordinary presence of mind by the excitement, confusion and danger produced by the collision, it would be the legitimate consequence of that collision, and the defendants would be liable.

Ib.

5. When an agent pays the money of his principal to a person who is not authorized to receive it, the principal may sue the receiver in assumpsit, for money had and received; but the bringing of such an action is a ratification of the payment, and discharges the agent from all further responsibility. Van Dyke vs. The State.

6. The General Assembly, by a joint resolution of both houses during its regular session, having adjourned on the 20th of December, 1853, to meet again on the 9th of January, 1854, a member who went home and returned during the recess, was held entitled to mileage, but not to per diem compensation during the recess. Ex parte Pickett.

7. When the act incorporating the municipal authorities of a city makes it their duty to keep in repair the streets and bridges within the corporate

limits, and in consideration thereof relieves them from other duties, an action on the case lies against them for a neglect of this duty, in favor of a person who is thereby injured. Smoot vs. The Mayor, Aldermen, &c., of Wetumpka.

8. A legislative grant to an incorporated company, conferring upon them "the exclusive right and privilege of conducting and bringing water for the supply of the city for the term of forty years," gives them no right to divert the water of a running stream, to the injury of riparian proprietors, without making compensation. Stein vs. Burden.

9. A municipal corporation, owning lands on a water-course from three to five miles distant from the city, has no right to divert the water from the stream, to the injury of other riparian proprietors, in sufficient quantities to supply the domestic wants of its inhabitants. Ib.

10. A riparian proprietor is entitled to nominal damages for a diversion of the water from his mill, without any proof of actual damage. Ib.

11. The uniform and uninterrupted diversion of water from a running stream for a period of twenty years, gives a title by prescription. It is not necessary that the water should be used in precisely the same manner, or applied in the same way; but no change is allowed which would be injurious to those whose interests are involved. Ib.

12. The points ruled in this case were re-affirmed in the case of Stein vs. Ashby, at the same term.

13. When justification and the general issue are pleaded to an action of slander, if the defendant fails to establish the former plea, it may be considered by the jury in aggravation of damages. Robinson vs. Drummond. 14. A deed which is void as to third persons on account of an adverse holding, is nevertheless binding and valid as between the parties themselves; and the fact that the vendee himself was in possession, as tenant of the adverse holder, does not affect the principle. Abernathy vs. Bouzman.

15. On questions of insanity, a witness whose acquaintance with the party has been such as to enable him to form a correct opinion of his mental condition, may not only depose to facts conducing to establish unsoundness of mind, but may also, in connection with those facts, give his own opinion upon the question of sanity or insanity. Florey's Executors vs. Florey.

16. Fraud, or undue influence, in procuring one legacy, does not invalidate other legacies which are the result of the testator's own free will;