1877.

January

Hord's

adm'r

V.

Colbert & als.

dant; for the result is to convict the latter of perjury as well as fraud. Here the creditors have neglected a Term. plain duty in failing to docket their judgments; they seek to substitute in place of the record certain oral admissions alleged to have been made by the defendants years before, to be proved exclusively by the creditors themselves and their counsel. However high the source from which such evidence emanateshowever incorruptible we may suppose some of the witnesses by which it is given—such evidence must, nevertheless, be received with the greatest caution. "Consisting as it does (evidence of mere verbal admissions) in the mere repetition of oral statements, it is subject to much imperfection and mistake, the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party did say." This is the language of a very accurate and learned author. 1 Greenleaf, sec. 200. And he is fully sustained by the most eminent writers and judges. See cases cited, and also 1 Starkie on Evidence, page 462. I repeat, this caution cannot be too strongly observed when the alleged notice is to be established upon the testimony of parties and counsel against the positive denials of the answers, and those answers strongly supported by independent evidence and corroborating circumstances.

The learned counsel for the appellant has pressed upon us the propriety and even necessity of an issue at least to be tried by a jury; and he has cited a number of the decisions of this court in support of that practice. The law upon this subject is too clear for

Hord's ad'mr

V.

Colbert

& als.

1876. controversy. Its application to particular cases is the January Term. great difficulty. The chancery court often directs an issue where the evidence is so contradictory as to render an open cross-examination of the witnesses before a jury necessary and proper. Not unfrequently the evidence is so equally balanced on both sides it is difficult to say which scale preponderates; and in such case an issue is of advantage, and proper to satisfy the conscience of the chancellor. But it does not follow that an issue is necessary and proper in every case where the evidence happens to be conflicting. If this was the rule the chief time of the chancery courts would be occupied with trials before juries, or in considering their verdicts. The circuit courts and the judges of this court are constantly called upon to decide questions of fact upon testimony of a very conflicting character. In Nice v. Purcell, 1 Hen. & Mun. 372, it was held that a court of equity is not bound to direct an issue on the mere ground that the evidence is contradictory; but it may judge of the weight of evidence; and if its conscience is satisfied, decide without a jury.

The decision in Samuel v. Marshall & wife, 3 Leigh 614, is to the same effect. See also Wise v. Lamb, 9 Gratt. 294; 2 Daniel Ch. Pr. 1073.

As the issue is directed exclusively for the information of the court, if it is satisfied upon the evidence, there is of course no ground for the intervention of a jury.

In the case before us, so far as the question of fraud is concerned, the plaintiffs have utterly failed to prove it. In regard to the notice the case is not so free from difficulty. But the preponderance of facts and circumstances is with the defendants. As has been seen, the whole case turns upon the effect of certain admis

1876. January

Hord's adm'r

sions alleged to have been made by the defendants. In my judgment a court is as competent, and perhaps Term. more so, to decide upon the weight to be given to these admissions as any jury of twelve men to be selected according to the practice and mode of proceeding in trials by jury as now prevailing in the country. My opinion is therefore to affirm the decree of the chancery court.

MONCURE, P., and CHRISTIAN, J., concurred in the opinion of Staples, J.

ANDERSON, J., was inclined to think it was a case for an issue; but after hearing the opinion of Staples, J., he could not dissent.

DECREE AFFIRMED.

V.

Colbert & als.

1877. January Term.

Bichmond.

HAUENSTEINS v. LYNHAM, escheator.

January 25.

H, of foreign birth, bought real estate in 1856 and 1859, and died in 1861, seized thereof, without known heirs. The said real estate was escheated to the commonwealth, and in May 1876, persons, natives of and living in Switzerland, instituted proceedings for the recovery of

the real estate-HELD:

1. The law as it was at the death of II must govern the case, and under the act of April 7, 1858, Sess. Acts of 1857-'58, ch. 42,

44, Code of 1860, ch. 115, p. 557, persons, natives of another country, and living there, are not entitled to the real

estate.

2. The treaty of November 1855, between the United States and the Republic of Switzerland, II U. S. Stat. at Large, p. 590, Article 5, clause 3, by its terms depends for its operation and effect upon the legislation of the state in which the real estate lies; and no right in real estate in Virginia will vest in a citizen of that republic under said treaty, there having been at the death of H no statute authorizing it.

This was a petition filed in the circuit court of the city of Richmond, by Henry Hauenstein and others, claiming to be the heirs and next of kin of Solomou Hauenstein, deceased, seeking to recover certain real estate of which the said Solomon Hauenstein had died seized, and which had been escheated to the commonwealth. Pending the proceeding the real estate was sold by the escheator, with the approval of the petitioners; and they asked that they might receive the proceeds of the sale. The circuit court dismissed the petition, and the petitioners applied to a judge of this

court for an appeal; which was allowed. The case is sufficiently stated by Judge Moncure in his opinion.

Johnson & Royall, for the appellants.

The Attorney General and Lynham, for the appellee.

MONCURE, P., delivered the opinion of the court.

1876. January Term.

Hauens'ns

V.

Lynham, escheator.

This is an appeal from a decree of the circuit court of the city of Richmond, rendered on the 20th day of October 1876, in a suit in said court in which the appellants were plaintiffs and John A. Lynham, escheator for the commonwealth of Virginia, was defendant. Solomon Hauenstein, a citizen of Switzerland, had emigrated to Virginia, and settled here many years ago; had continued to reside here until his death; had acquired, by purchase and conveyance at different times, in the years 1856 and 1858, and from different persons, quite a large real estate, of which he continued to be seized and possessed until and at the time of his death; and he died in 1861 or '2, intestate, unmarried and without issue. Having no known heirs, it was supposed that his estate devolved on the commonwealth for defect of heirs. There was an inquisition of escheat, which found accordingly; and the said estate came to the hands of the said Lynham as escheator, who was proceeding to sell the same in the execution of his duties as such, when the appellants, citizens of Switzerland, claiming to be the next of kin, or their representatives, of the said intestate, and to be entitled as such to his said estate, or the proceeds of the sale thereof, filed their petition for the recovery of the same, under the Code. of 1860, chapter 113, section 8, page 547, which enacts