Слике страница
PDF
ePub

Opinion Judgment.

county commissioners were authorized to fill a vacancy occurring. See Swan's Statutes, 1017, and O. L. 56, p. 105.

The term

The term of office of the mayor is fixed by the first section of chapter two of the charter of the city, at two years. for which Archer was chosen having expired, he held over until his successor was elected and qualified. Jarratt was elected on the first day of February, 1883, in the mode prescribed by law, and has duly qualified. Archer has no longer any right to hold the office of mayor, but Jarratt, by virtue of such election and qualification, according to law, is now the mayor of Petersburg, and in accordance with the foregoing views, the petitioner, Vaughan, is discharged from custody, having been committed by a person not legally authorized to do so.

And the petitioner, Morse, is remanded to the custody of the sergeant, in which he is legally held, according to the said sergeant's return herein.

The judgment is as follows:

This day came again the parties, by their counsel, and the court having maturely considered the petitions, writs of habeas corpus and the returns thereon, an agreed statement of facts filed, and the arguments of counsel in these cases, is of opinion, for reasons stated in writing and filed with the papers, that by the failure of T. J. Jarratt, who was duly elected mayor of the city of Petersburg for the term of office beginning on the first day of July, 1882, to qualify within the time prescribed by law, a vacancy was created in the said office of mayor, which the common council of the said city was anthorized by law to fill by election of a qualified person; and the said common council having filled the said vacancy in the said office in the mode prescribed by law, by the election of T. J. Jarratt, a qualified person, who thereupon duly qualified to the said office by taking the oath required by law on the first day of February, 1883. The said T. J. Jarratt thus became the lawful mayor of the city of

Judgment.

Petersburg, and has ever since been, and is yet, such mayor; that he had authority as such to commit the petitioner, Marx Morse, who is therefore lawfully in the custody of the sergeant of the said city, J. A. Johnson, as mentioned in the return of the said sergeant herein; and that F. H. Archer has not been mayor of the said city since the said Jarratt became lawful mayor as aforesaid, and had no authority to issue the warrant of commitment mentioned in the petition of Alex. Vaughan, who is therefore detained without lawful authority.

It is, therefore, ordered that the said Marx Morse be remanded to the custody of the said sergeant, and that the said Alex. Vaughan be discharged from custody.

PETITIONER VAUGHAN DISCHARGED.

PETITIONER MORSE REMANDED TO CUSTODY.

Syllabus.

Richmond.

YUILLE'S ADM'R V. WIMBISH'S ADM'R.

March 22d, 1883.

I. CONSTITUTION-Obligation of contracts.-Code 1873, chapter 141, providing that, " 14. A creditor may compound or compromise with any joint contractor or co-obligor, and release him from all liability on his contract or obligation, without impairing the contract or obligation as to the other joint contractors or co-obligors "; and that, “? 15. When said compounding or compromise is made, the contract or obligation shall be credited with full share of the party released, except where the compounding or compromise is with a surety, or co-surety, and in that case, as between the creditor and principal, the credit shall be for the sum actually paid by the compounding debtor "; and that, “2 16. Nothing herein contained shall affect or impair the right of contributions between joint contractors and co-obligors," does not impair the obligation of contracts existing at the date of its passage (April 25th, 1867), and is not unconstitutional as to such contracts.

[ocr errors]

2. SURETIES-Reasonable time-Due diligence-Case at bar.-In 1852 W. held bond of F., principal, and S. V. and P., sureties. March 14th, 1868, (under Code of 1873, chapter 143, sections four and five), Y.'s administrator, H., by notice in writing, required W. to sue on the bond. W. sued May 14th, 1868, all the obligors except Y. F. and S. accepted service of writ. As to them, by consent, the suit was that day placed on the office judgment docket and they pleaded. Of this H. was informed, and also that the proper credits would be given and acquiesced, and suffered in September, 1868, in his county judgment to go on the bond against him by default. Against F. and S., in October, 1868, in their county, judgment went, and executions were issued, but were restrained by the extention of the stay law through 1869 by the military commandant. In February, 1868, P. had under the act of April 25th, 1867, compromised with W. in full of one-third of the bond, which was endorsed thereon. Suit, however, was brought against him in August, 1868. At September rules, 1868, he plead his release, and the suit was dismissed. S., May 13th, 1868, conveyed all his property to secure ratably all his debts.

Syllabus-Statement

Another execution was issued against F. October, 1870, and returned "No effects." In August, 1871, an execution was issued against H. as administrator of Y., who got an injunction. It was dissolved in 1880, and a decree entered for the amount due on the judgment. On appeal to this court;

HELD:

1. The act of assembly (Code 1873, chapter 141, section fourteen,) under which P. compromised his liability on the bond and was released, was not unconstitutional as to that bond.

2. But by the very terms of that act (section sixteen) such release of P. cannot affect or impair the right of any other surety who may have been required to pay more of that bond than was so released to call on P. for contribution.

3. The circumstances do not show that the suit was not instituted within a reasonable time after the requisition, nor that it was not prosecuted with due diligence to judgment and by execution, nor that Y.'s administrator is entitled to the aid of equity to enable him to avail himself of defences (if any) which he might have made, but did not make at law.

4. The property conveyed in trust by S. is also liable, under the terms of the deed, to contribution to his co-sureties on the bond.

Appeal from decree of circuit court of Charlotte county, rendered March 29th, 1880, in a suit styled Yuille's administrator v. Gaulding, sheriff, &c.

By that decree, W. W. Henry, administrator of Alexander Yuille, deceased, was required to pay de bonis testatoris in his hands to be administered, William R. Barksdale, assignee of E. Y. Wimbish's administrator, the sum of twelve hundred and fifty-three dollars and twenty-three cents, with interest on nine. hundred and eighty-seven dollars and seventy-three cents from September 20th, 1877, until paid, that appearing to be the amount due on the judgment against said administrator on a bond of Thomas S. Flournoy, principal, and W. L. Pannill, J. B. Stovall, and Alexander Yuille, sureties, to Eppa Y. Wimbish, dated January 28th, 1852, for $5,000, payable with interest twelve months after date, after deducting all credits for payments made thereon. From this decree, the said Henry, as such administrator, obtained from one of the judges of this court an

Statement-Opinion.

appeal and supersedeas. The facts of the case and the positions taken by the appellant, are fully stated in the opinion of the court.

W. W. Henry, James Lyons, Jr., F. D. Irving, Carrington & Fitzhugh, for the appellant.

Wood Bouldin, Jr., and Guy & Gilliam, for the appellee.

FAUNTLEROY, J., delivered the opinion of the court.

On the 20th of January, 1852, Thomas S. Flournoy, as principal, and J. B. Stovall, Alexander Yuille, and William L. Pannill, as sureties, executed a joint bond to Eppa Y. Wimbish for $5,000, payable twelve months after date, with legal interest from date.

On the 14th March, 1868, William W. Henry, as administrator of Alexander Yuille, deceased, acting under section four, chapter 143 of the Code of Virginia, 1873, caused a notice to be served on William Wimbish, administrator of Eppa Y. Wimbish, deceased, requiring him to institute suit forthwith on the said bond against the obligors therein. The said William Wimbish, administrator of the said Eppa Y. Wimbish, directed his counsel to sue on the said bond, which, however, was not done until the fourteenth day of May, 1868, during the spring term of the circuit court of Halifax county, when suit was reguarly instituted against all the obligors in the said bond, except Alexander Yuille, who was dead.

Service of the writ was acknowledged by Thomas S. Flournoy and J. B. Stovall, and the suit was put on the office-judgment docket, as to them, by consent, on the fourteenth day of May, 1868, and on that same day they filed their pleas of payment. During the term, the said W. W. Henry, administrator of Alexander Yuille, deceased, was informed, by the counsel for the said William Wimbish, administrator of the said Eppa Y.

« ПретходнаНастави »