on the amount of the defalcation, and not on the amount of his
official bond. Duffy & Bolton v. Figgat, 664.
6. Judicial sales-Definition-Case at bar.-Sale made by order of a
court of competent jurisdiction, pendente lite, is a judicial sale. An
executor having authority under the will to sell land, declines to ex-
ercise his authority, but applies to the court for instructions and di-
rections, and is ordered to make sale and report it to the court for
confirmation; whereupon, he makes and reports the sale to the court
as ordered, such sale is a judicial sale. Terry v. Cole's ex'or, 695.
7. Idem-Bidders-Confirmation.-Bidder acquires no rights until his bid
is accepted and the sale confirmed by the court. Whether the sale
will be confirmed depends on the circumstances of each case and the
sound discretion of the court in view of fairness, prudence and the
rights of all concerned. No general rules will apply to all the cases.
Idem.
8. Idem.-Rejection of bid-Case at bar.-Where sale of land is decreed
to pay specific legacies, and the residue to four residuary legatees,
and the land is bid in by one of those legatees, and the other legatees
oppose the acceptance of the bid and the confirmation of the sale,
and show by numerous witnesses well acquainted with the land, that
though the sale was open and fair, yet the price bid was grossly inad-
equate, and that the land if divided and sold in parcels would, on
the usual terms of payment in such cases, bring two or three times
the price bid; there was no error in the court rejecting the bid, and
refusing to confirm the sale and directing a re-sale. Idem.
9. Sale of land for purchrse money-Terms-Upset bid. See Practice
in Chancery, 28, 29.
10. Judicial sales-Re-sale. See Practice in Chancery, 2. Mosby v. With-
ers, 82.
11. Judicial sale-Mistake of boundary.
12. Judicial sales--Upset bid. Yost v. Porter, 855.
1. Case at bar.-In Frazier v. Frazier, 77 Va. 775 (to which case at bar
is sequel), a certain sum was held due J. A. F., and to be a lien on the
property of the R. A. Springs company, and that property was di-
rected to be sold in default of payment. When the case went back
the company brought in, as set-offs to that sum, certain judgments
against J. A. F. Upon appeal by him:
1. These judgments were lawful set-offs against the decree.
2. The decree in Frazier v. Frazier is without error and will not be
disturbed, except so far as the costs were given against the ap- ·
pellees generally, when they should be against only W. F., who
alone of the appellees had contested the rights of the appellant.
Frazier v. Hendren, 265.
2. Salaries of officers. Attorney-General v. Auditor, 485.
3. Resulting trusts-Liens. Paxton v. Stuart, 873.
SPECIFIC PERFORMANCE. See Contracts, 4, 17, 18, 19, 20.
1. Suits against.-The State can only be sued by its consent. When a
remedy by suit against the State, or any of its officials, is provided,
those seeking to avail of its benefits must follow its provisions with
exact strictness. Dunnington v. Ford, 177.
2. Idem-Discrepancy fatal.—-Under act of 26th January, 1882, amended
13th March, 1884, Acts 1883-'84, page 527, the suit is required to be
commenced by a petition filed at rules, upon which a summons shall
be issued to the collecting officer, and regularly matured like any
other action at law, and the coupons tendered shall be filed with the
petition. A suit brought in any other way is unlawfully instituted,
and must be dismissed. Idem.
3. Jndgment against State. Brown, Davis & Co. v. Greenhow, 118.
4. Suits against.-Under statute commonwealth may be sued in the man-
ner prescribed for any claim due. Parson's case, 163.
1. Practice in chancery.-Courts of equity follow the law as respects the
statute of limitations. If a legal claim, barred at law, be asserted in
equity, it is equally barred there. Hutcheson v. Grubbs, 251.
2. Idem-Corporeal hereditaments.—As to the possession requisite to ac-
quire title to things corporeal, the statutory period prevails. Cornett
v. Rhudy, 710.
3. Mistake, &c.-Discovery.-Cases of fraud, trust and mistake, are not
within the statute of limitations. At all events, in equity, in cases of
mistake, as in cases of fraud, the statute does not begin to run until
the discovery of the mistake. Massie v. Heiskell, 789.
4. Mistake-Presumption of payment.-Claim for purchase money for ex-
cess of land conveyed under mutual mistake of fact, is unaffected by
any lapse of time short of the period sufficient to raise the presump-
tion of payment. And the existence of deeds conveying title and
reserving no lien, cannot reduce the period of limitation to five years,
because the averment and proof of the mistake, required the abroga-
tion of the deed, at least quoad the purchase money for the excess
over what was sold and paid for. Idem.
STATUTE OF LIMITATIONS (continued).
5. Administrators-Sureties-Devastavit-Statute of limitations-Case at
bar. In 1865, E. sued out distress warrant against estate of J, de-
ceased, which had been committed to sheriff, administrator, who
wasted it. Warrant was placed in hands of sherif's deputy to levy.
It was never levied, but was returned to, and remained effete in clerk's
office until 1880, when E.'s administrator brought chancery suit
against sheriff-administrator and his two sureties, alleging the devas-
tavit, and asking relief. Against principal and all his sureties, except
A., the bill was taken for confessed. A. answered and plead statute
of limitations.
1. The claim of E's administrator for the devastavit was barred as
against sheriff-administrator's sureties, though not against him-
self, when the suit was brought in 1880.
2. The suit being on the joint obligation of all the sureties, the de-
fence by A., not being purely personal to him, enured to the ben-
efit of all, and no decree can be entered against any. Ashby v.
Bell's adm'r, 811.
STOCKHOLDERS. See Joint stock Companies.
SURETIES. See Principal and Surety.
Municipal corporations-Powers of Taxation. See Corporations, 1, 2.
1. Coupons Tax-payers' remedy-Assumpsit.—Assumpsit against col-
lecting officer is the proper remedy of a tax-payer to recover money
paid by him for taxes, after collector's refusal to accept coupons ten-
dered in payment thereof, under act approved January 26th, 1882.
Acts 1881-'82, page 37. Brown, Davis & Co. v. Greenhow, 118.
2. Pleading-Special counts-Common counts.—In the declaration to spe-
cial counts alleging the tender of tax-receivable coupons to pay the
tax, and the defendant's refusal to accept the coupons, and the lat-
ter's proceeding to collect the tax in money, when payment thereof
was made under protest, the common counts for money had and re-
ceived, &c., may be added. Idem.
3. Judgment against State.—The action under this statute is in form
against the collector; but being to recover a demand growing out
of his acts done colore officii, is substantially against the common-
wealth, and the judgment is likewise. Idem.
4. Municipal corporations-Powers of taxation. See Corporations, 1, 2.
1. Willful torts.-The proper remedy for a mere willful tort is by action
at law.
2. Evidence-Damages.—In mitigation of damages, in an action for false
imprisonment, it is allowable on cross-examination to prove that the
plaintiff had boasted that he had gained a great reputation from his
arrest and imprisonment. Johnston v. Moorman, 131.
3. Judicial officers-Liability.-When acting within their jurisdiction,
judicial officers are exempt in civil actions from liability for their offi.
cial acts, although such acts are alleged to have been done mali-
ciously and corruptly. Idem.
4. Idem-Idem-Jury.—In civil actions against such officers, acting within
their jurisdiction, it is not for the jury to decide upon the question of
the reasonableness of the grounds of the arrest.
5. Idem-Idem-Case at bar.-J., mayor of D., whilst acting in his judi-
cial capacity, caused the arrest of M., who sued J. for damages for
false imprisonment.
J. was not liable to M. in damages for such arrest and imprisonment.
Idem.
1. Practice in chancery-Enforcing trust-deeds-Correcting mistake.—
Debtor having sold the land as above stated, the master having re-
ported as aforesaid, and the receiver having collected the bonds with
no interest until after their maturity, it was competent for that debtor
to bring his bill to enforce the trust-deed, or to reform any mistake
in any part of the said writings, in order to collect the unpaid inter-
est. Ware v. Starkey, 191.
TRUST PROPERTY. See Fiduciaries.
TRUSTS AND TRUSTEES. See Fiduciaries.
1. Judgment.-Where an instrument on its face reserves more than the
legal rate of interest, it is usurious in its inception, and judgment shall
be rendered for the principal sum only, although the defendant may
have filed no plea of usury. Turner v. Turner, 379.
2. Borrower-Relief.-Where a borrower who has paid no part of the
principal, or usurious interest, comes into chancery under Code
1873, ch. 137, sec. 12, he must be required to pay only the principal
sum loaned or forborne. Idem.
3. Payments-Application.-Where payments have been made on the
usurious contract, which are merely credited on the bond, and not
applied specially, borrower is entitled to have such payments de-
ducted from the principal sum loaned or forborne. Idem.
4. Application of payments-Rule-Exception.-To the rule that the
creditor may apply payments when the debtor does not, there is the
well recognized exception that he cannot apply them to what is no
legal or equitable demand against the payer.
5. Quære. Whether or not the creditor can apply payments to usurious
interest where debtor has made no application. Idem.
How extinguished.-Such lien may be extinguished by payment of the
purchase money, or it may be waived or surrendered by the volun-
tary act of the vendor. Case at bar is an instance of such extin-
guishment of lien. Frazier v. Hendren, 265.
See Criminal Jurisdiction and Proceedings, 11, 12.
Criminal proceedings.-Indictment not sustained without proof that
offence was committed in county wherein venue is laid; but a strong
presumption thereof raised by the evidence suffices.
case, 124.
1. Estoppel.—Where one conveys land with general warranty, whereof at
the time he has not the title, but afterwards acquires it, such acqui
sition enures to the grantee. The warrantor is estopped from deny-
ing he had the title. Gregory v. Peoples, 355.
2. Bankruptcy-Estoppel.-A discharge in bankruptcy releases the war-
rantor from liability for covenants broken, but does not affect the
estoppel, because the covenant runs with the land. Idem.
3. Idem-Resulting trust-Where one having only the equitable title,
conveys the land with general warranty; then is discharged in bank-
ruptcy; and afterwards, with another's money, buys the land, at a re-
sale thereof for the unpaid purchase money, and obtains to himself
a conveyance thereof, such title does not enure to his grantee, and he
is not estopped to deny he had the title, because a trust resulted in fa-
vor of him whose money bought the land. Idem.
4. Purchasers for value without notice-Set-offs-Encumbrances-War-
ranty. Vendee, to whom, under mutual mistake of fact, vendor has
conveyed more than was bargained or paid for, cannot be regarded,
as to such excess, as a purchaser for value without notice. But against
vendor's claim for compensation for such excess, vendee may set off
any counter-claim he may have for money expended by him in clear-
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