it becomes important to determine whether the facts upon which the attachment rests are true or false, the denial of the defendant in his answer will throw the burden of proof on the party sustaining the attachment."
"We add," says Judge Marshall, "that in our opinion the circuit court, notwithstanding its refusal to discharge an attachment on motion, may, without additional evidence, discharge it on final hearing; and this court has a right to revise and reverse, or affirm the final judgment, discharging or enforcing the attachment."
And we are of opinion the circuit court erred in overruling the motion of the defendant at the trial, to be allowed to contest the attachment on the ground that it had been sued out upon false suggestions and without sufficient cause, in whatever proper form it was made, whether by plea or otherwise, it was a plain statutory right of which the court had no power to deprive the defendant.
We are further of opinion that the court erred in requiring the iron ore levied on in the suit, to be removed to Amherst Courthouse, in its delivery to the sheriff. The time and place to be fixed by the court in its judgment should be reasonable, and it is error for the court to prescribe an impossible delivery as to place and time, in order to compel a forfeiture of the forthcoming bond.
For the foregoing reasons, we are of opinion that the judgment of the circuit court complained of is erroneous, and must be reversed and annulled, and the cause remanded to the said circuit court for a trial to be had therein in accordance with the foregoing opinion.
Which is ordered to be certified to the said circuit court of Amherst county.
The judgment is as follows:
This day came again the parties by their counsel, and the
court having maturely considered the transcript of the judgment. aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in refusing to allow the defendant to file his plea at the trial and contest the suing out of the attachment, upon the ground that it was issued upon false suggestions and without sufficient cause, notwithstanding the vacation order of the judge therein, and in rendering judgment against the defendant, the plaintiff in error. It is, therefore, considered by the court that the said judgment be reversed and annulled, with costs in favor of the appellant, and the defendant be granted a new trial.
An accomplice, not convicted of an infamous offence, is ordinarily a com-
petent witness; and no person, not jointly tried with defendant, is
incompetent by reason of interest. Oliver v. Com'th, 590.
Equity jurisdiction and relief.-The jurisdiction of courts of equity in
matters of account, is among the most comprehensive they have as-
sumed. Matters of account are per se within the scope of their juris-
diction. They have concurrent jurisdiction therein with courts of
law; but the difficulty of proceeding in the latter, and the convenience
of proceeding in the former, where a discovery may be had on the
defendant's oath, where a multiplicity of suits will be avoided, and
where fraud, accident, or mistake is connected with the subject, causes
them to be most commonly resorted to. Tillar v. Cook and als, 477.
ACKNOWLEDGMENT.
Certified acknowledgment is not inconsistent with prior delivery, and is
not sufficient to overcome the presumption. Raines v. Walker, 92.
ADJOURNMENT.
1. CRIMINAL PRACTICE-Adjournment and examinations-Review.—All
questions concerning the adjournment of the court and the examina-
tion of witnesses lie peculiarly within the discretion of the trial-court,
subject, however, to review as in other cases. Taylor v. Com'th, 692.
2. IDEM-Adjournment to procure attendance of witness.-Where accused
made strong effort to prove alibi, and commonwealth had introduced
all its evidence, and that for defence had been concluded, it was not
improper for the court to adjourn from 3 o'clock P. M. until 10 o'clock
A M. next day, to allow commonwealth time to procure the attendance
of witnesses to rebut the evidence of alibi. Idem.
AMENDMENTS.
SHERIFFS-Returns.-Having made return on an execution and on that
return, in part, a decree having been entered, in subsequent proceed-
ings against him and his sureties, the sheriff will not be permitted to
amend his return, so as to explain it away and enable his sureties to
escape liability for his default. Carr & als. v. Meade & als., 142.
SHERIFFS-Second office-Vacancy.-The sheriff's acceptance of a second
office actually vacates the sheriffalty. And no judgment of amotion
is necessary where an office has been forfeited by removal or by the
acceptance of an incompatible office. When the office of sheriff is
thus made vacant, it becomes the duty of the county court judge to
fill the vacancy in the mode prescribed by law. Shell, Judge, v. Cous-
ins & als., 328.
1. To compel judge to certify evidence mandamus lies, but his refusal is
error reviewable in appellate court on complaint of party injured.
To deny certificate of evidence, is to deny suitor his right of appeal.
Powell v. Tarry's Adm'or, 250.
2. APPELLATE COURT-First appeal-Second appeal.—It is a settled rule
that decrees of the court of appeals on questions decided by the court
below are conclusive, and on second appeal these questions cannot
again be raised. N. Y. L. Ins. Co. v. Clemmitt and Wife, 366.
3. Discretion.-The purpose and effect of the change by the legislature
by its act of March 6, 1882, of the word “shall” to the word “may,”
was to conform the act of March 3, 1880, so amended, to the law in
this respect, when the case of French v. Noel, 22 Gratt. 454, was
decided, and so to leave it discretionary with county courts to grant
or refuse such licenses. This, however, is a sound legal discretion, sub-
ject to the appeal specifically allowed by the statute to the applicant.
Ailstock v. Page, 386.
4. Applicant-Contestant.-Before these acts of 1880 and 1882, there was
from the decisions of the county courts granting or refusing licenses
to sell liquor, under Yeager's Case, 11 Gratt. 655, and French v. Noel,
supra, no appeal allowed either applicant or contestant. Those acts
give to the applicant an appeal to the circuit court only. The failure
to give an appeal to others, must be construed as conclusive evidence
of a purpose to withhold the right of appeal from all but the appli-
cant, and the contestant has no appeal whatever. Idem.
5. Appeal of right—Writ of error.—To applicant denied liquor license,
by the act of March 6, 1882, there is given an appeal of right to the
circuit court. Under Code 1873, ch. 178, 2, he may, upon bill of ex-
ceptions taken at the trial, apply to the circuit court for a writ of error
and supersedeas. Of his two remedies he may resort to either. And
if the circuit court also erroneously refuse the license, its decision is
reviewable by this court upon appeal, or writ of error and supersedeas,
as in other cases. Ex parte Lester, 663.
6. Applicant-Contestant.-The applicant is a party directly in interest in
the decision refusing the license, and comes within the letter of Code
1873, ch. 178, 2. Not so with contestant. Idem.
For case illustrative, see Idem.
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