Opinion. a note cannot be re-issued, so as to charge any party thereto who otherwise would be discharged, unless with his knowledge or consent. Story on Bills, sec. 223; 2 Danl. on Nego. Ists. sec. 1233; Burbridge v. Manners, 3 Camp. 193; Gardner v. Maynard, 7 Allen, (Mass.) 456. But if it were conceded that the note was transferred by the bank to Pickrell, and that having been deposited with the Merchants National Bank before 3 o'clock P. M. on the day of its maturity, the latter bank acquired a complete title thereto, the result would be the same. For, when afterwards surrendered to Pickrell, the note was long past due, and the Citizens Bank, the appellant here, acquired the note, not from the Merchants National Bank, but from Pickrell, and therefore took it with all its infirmities. Now, inasmuch as Pickrell, by his covenant with Chaffin had bound himself to pay the note when due, it is plain that in an action on the note there could have been no recovery by Pickrell against Chaffin; and if the note as to Chaffin was paid, the trust-deed executed by the latter to secure its payment was in effect discharged. It is insisted, however, that Pickrell having delivered the note to the Citizens Bank as a valid, subsisting security, his alienee, Lay, is estopped from denying that it was. But we cannot concur in this view. The vitality of the note in Pickrell's hands was gone, and could not be restored without Chaffin's consent; and whatever may have been the effect of the former's representations upon him, it is clear that the alleged estoppel cannot operate as against Lay. The latter was a purchaser for valuable consideration of the lot upon which the trust-deed had been executed, and testifies that at the time of the purchase he was informed by Pickrell that the note had been paid. This Pickrell denies, but the circumstances of the case tend to sustain the statements of Lay. It is not shown that Lay had notice of any representations by Pickrell to the Citizens Bank, or of the fact that the note secured by the trustVOL. LXXX-56 Opinion. deed had been passed to the bank; and although the lien of that deed had not been formally released on the record, yet he had the right to rely on Pickrell's representations to him that the note had been paid. He was, therefore, a purchaser without notice of, and consequently is not bound by, any estoppel in pais resting on his vendor, Pickrell. See Bigelow on Estoppel (3d ed.), 378. DECREE AFFIRMED. Syllabus-Statement. Richmond. KEMP V. THE COMMONWEALTH. APRIL 16TH, 1885. 1. CRIMINAL JURISDICTION AND PROCEEDINGS-Aiding and abetting.—It is well-settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him showing his consent to the felonious purpose and contributing to its execution. Lee Reynolds v. Com'lth, 33 Gratt. 834. 2. IDEM-Case at bar-The circumstances indicate that though W. did kill the deceased, and that K. was present, yet the latter did not aid or abet in the commission of the crime. Error to a judgment of the corporation court of the city of Norfolk, rendered against William A. Kemp, whereby he was sentenced to imprisonment in the state penitentiary for the period of five years for the murder in the second degree of one Junius A. Rogers. The indictment was against Charles L. Whitehurst, William A. Kemp and James T. Guy, jointly, charging the first with murder in the first degree, and the other two with being present, counseling, aiding, abetting and assisting the said Whitehurst in the commission of the crime. The prisoners elected to be tried separately. See Whitehurst's case, 79 Va. 556. Kemp moved for a new trial on the ground that the verdict was contrary to the law and the evidence and that the court misdirected the jury. The court overruled the motion, and the pris Opinion. oner obtained from one of the judges of this court a writ of error and supersedeas to the judgment. Opinion states the case. John Goode and Parker & Allen, for prisoner. Attorney-General, F. S. Blair, for the commonwealth. RICHARDSON, J., delivered the opinion of the court. On the 4th day of February, 1884, a special grand jury for the city of Norfolk found an indictment against Charles L. Whitehurst, James T. Guy, and the plaintiff in error, William A. Kemp, for the murder of Junius A. Rogers, on the 20th day of January, 1884. The indictment contains three counts, in each of which it is charged that the said Charles L. Whitehurst inflicted the mortal wound, and that the said James T. Guy and the plaintiff in error, the said William A. Kemp, were present, counseling, aiding, abetting, and assisting the said Charles L. Whitehurst in the commission of the said murder. On the said indictment Whitehurst was, in the corporation court for the city of Norfolk, duly tried, convicted of murder in the second degree, and sentenced to confinement in the penitentiary for the term of twelve years, that being the period found by the jury which tried the case; which finding and sentence was subsequently, on writ of error, affirmed by this court. See Whitehurst v. Commonwealth, 79 Va. 556. Subsequently, to wit: on the 28th day of November, 1884, the plaintiff in error was, in said corporation court, separately tried, found by the jury guilty of murder in the second degree, the term of his imprisonment in the penitentiary fixed at five years, and was sentenced accordingly by said court. On a writ of error, awarded by one of the judges of this court, the case is here for review. Upon the rendition of the verdict, the prisoner, by his coun Opinion. sel, moved the court to set aside the verdict, upon the grounds, (1) that the verdict was contrary to the law and the evidence, and (2) because of misdirection. By two bills of exception, taken by the prisoner at the trial, the case is made fully to appear. The first bill of exceptions is to the judgment of the court overruling the prisoner's motion to set aside the verdict and grant him a new trial. This bill of exceptions sets out all the evidence in the cause, as certified by the trial court, and will be first considered. There is really no conflict of evidence, and therefore it may be considered, practically, a certificate of facts proved. There is really no material fact touching the conduct of the plaintiff in error on the occasion of the homicide in question, that is not minutely detailed in the evidence of Henry B. Reardon, the principal witness for the commonwealth; nor is there anything in all the evidence in conflict with his statement in any material particular, though the statements of other witnesses are, in some respects, much fuller. The substance of Reardon's statement is, that on the night of the 19th day of January, 1884, he and the deceased, Rogers, had been together playing pool and drinking beer, from about eight or nine o'clock until about twelve o'clock; that neither Rogers nor himself were affected by the beer they had drank, witness having taken some eight glasses; that they that night, later, visited several places, among them a house of ill-fame in said city, kept by Maud Earl, where they remained half-hour or more, when Rogers left, ahead of Reardon, and started down the street, and then Reardon went out, overtook Rogers, and went with him to another house of ill-fame, kept by Nannie Gale, on Cove street, where Rogers had an engagement to stay all night, and at or near the front door of this house, they found several persons, one of them being Wm. A. Kemp, the plaintiff in error here. Just here let us drop, for the time being, Reardon's statement, to be resumed after tracing the party of which Kemp |