The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-05


FRIDAY, Feb. 9, 1866.
John Cooper, From Monongalia
rS. Comfy.
Francis Medery, 'oun.''
This cause had been taken to the Court
of Appeals, of Virginia, and record lost
1t was not docketed in this Court in the
time prescribed by the statute, nor was
any motion made to extend the time,
nor any cause shown. Dismissed at ap-
pellant's costs.
SATURDAY, Feb. Sd. 1856
Hood, as Maxwell,
Judge Brown delivered the opinion OF
the Court
There is nothing in the lst objection
taken by the plaintiff in error-"th
the Court below erred in not disposing
of the several dcmurrers to the several
courts of Declaration" because the
Judgment on the verdict was virtual
overruling of all the demurrers, II 1t had
not before been done But the order OF
the Court though loosely drawn, yet
when taken altogether sufficiently shows,
that the Court in fact oTerrules the
whole demurrers.
The second objection, by plaintiff is to
third couIt in declaration: alleging 1t
to be bad as a count in trover, also bad as
a count in trespass, but if not the latter,
the declaration was bad for misjoinder
That count, though informally drawn,
is substantially good as count in case
under the statute authorizing the case to
be brought where trespass would lie.
Counts in case and trover may be join
ed. Therefore there was no error in
overruling demurrer to declaration on that
account 1t is clear that the 3d>count is
rood under the statute as a CONT in
trespass
THO Sd count might be joined with
fol NAL coant i'll trespass, also with for
NAL count in case or troyer There is no
reason why things which are not incon-
sistent with the same thing, should be in
consistent with each other
1t therefore follows that trespass and
case NAV be Joined under tue effect OF the
statute which could not he done without
it
Fourteen instructions were asked for
By the appellant in the Courtsbelow. 1t
does not appear if the Court gave or re
fused the last six The inference is that
the Court gave them, but it is immateri-
al. since no exception as taken for refus-
al, in the absence of which the party
must be taken to have acquiesed i'll the
ruling of Court.
The first g of instructions were refused
and the ruling OF Court excepted to.
The lst was rightly refused. because it
assumes as fact that the plaintiff be
low had sold the wheat and flour in ques,
ton to the defendant Johnson.
The 2d ALSO because it assumes that
by giving an order on the defendant to
pay for the wheat and flour, the plain.
tiff below treated it as a sale.
The Sd, 4th, 5th, eth and 9Th also; be
cause they do not PROFOUND the law
fully, and are substantially embraced as
far as proper in the instructions civ ell by
the Court.
The 9th and last objection IL the ruling
of the Court in giving the first instruc-
ton asked for by plaintiff below upon the
ground that it did not sufficiently inform
the jury that they must be satisfied that
the property in question was the proper
ty of plaintiff below
l think it does when taken IN c0nnec-
ton with another instruction, which
reads L" if the jury believe the defend
ants unlavfplly carried away the prop
erty of plaintiffs" &C.
Therefore there was no error
in the ruling Of the Court in that par
ticular.
The ruling OF this Court is that the
Judgment OF tie Court below bG affirm
ed
In the consideration of the aboTe
case the Court takes judicial notice of
the state and condition Of the country
at the time cause of action arose as we'll
as prior aud subsequent as far as they
relate thereto and delivers an able and
learned opinion, the length Of which pre-
vents us publishing il il full at present.
We lthcrefore merely give a general
outline now, and report in full at fu-
ture time.-ED.
Motion made on the 10th day of Jan
uary 1866 TO admit the Hon Chas J.
Faulkner to practice at the bar of this
Court.
Hon. Judge Berkshire i'll delivering
|. 1t has been commended that the act
Of February 10th, 1862, vacated license
to practice l do not see how it can; it
only prohibited an attorney from APP
peariug in any cause until he has taken
and subscribed certain oath therein
specified, and subjected him TO fine if
he did appear without taking such oath.
1t was adopted merely as war measure.
1t could. by no possible meaus. work
such result rs to vacate the license of
an attorney.
AnAttorney or Counsellor is not an off.
Ger of the Government. civil or military.
nor Is he such an officer Is : contem
plated 10y the Constitution 81 West Vir-
ginia, or the Act of November 10th, 1868.
An Attorney has never been consid-
cred \ Governmental officer. from the
foundation of Virginia to the present
time. 1t has been so long AID so clearly
established as the opinion of every one
In this State that he was not such an
officer, that no one has presumed TOD
question it since 1910.
The whole practice of the officers OF
the United States, from its foundation 10
the present time, shows that an Attorney
is not an officer. For were members ofthe |
bars of United States Courts, officers |
tkey would not be permitted to practice /
in such Courts while they held seats in |
Congress. Yet since the United States |
Courts have been established. it has not !
been questioned that an Attorney could !
both hold a seat in Congress, and prac.