The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-03-24
sUPnEmE COURT.
DECISIONS RENDRRED YESTERDAY

DECISIONS RENDERED YESTERDAY.
There were only three judges Of the sn-
preme Court present yesterday. Opinions
were delivered Ii four cases, each or which
possesses some interest for members OF the
bar and the general public. AS
Comfy Ds. Comfy, &c. From the Circuit
Court OF Fairfax. Affirmed, Judge Mon.
cure delivering the opinion.
This case involved the question Of the
legality Of paper admitted 10 probate as the
last wit land testament OF Edward G. Conly,
rs follows:
Is "LEwrNsvILLB, August 10, 1862.
Dear Wife,-I am going away. ! may
never return. | leave my property TO Gaines
and Dan. Dispose OF It as You think &c.
Don't forget sister Mary and Bridget Pay
William HcCauley $40; Patrick Sullivan,
S25. Edward G. Comfy.
"Witpess: Samuel Foras,toTih.S
Gaiues and Dan. were the adopted sons Of
Comfy. :.
The Court Of Appeals held that the will
was valid. %se
Ball, &c. Us. Bail, &c. From the Circuit
Court Of Fairfax. Affirmed, Judge Mon.
C0tC aCitVSkthS VIC OplhlOu VI 'bAC SIdlN
The question which this case presented
was bow the estate Of Mrs. Martha G. Ball
should be divided among heirs at iaw-that
is, In what shares and proportions. She died
intestate in the county Of Fairfax, seized OF
real estate, and leavingas her heirs at law
FIVE children Of adeceased son, six children
Of another deceased son, and q. grandcbild Of
the latter son. The question was whether
her estate should be divided into twelve
equal parts, and one of said parts be allotted
to each Of the said eleven living chill
dren and the remaining part to the
said grandchildren as representing or stand
ing In the place of Its deceased parent, or
should be first divided into two equal parts,
and one of the said parts be allotted to the
said five children Of one of the sons, equally
to be divided among them, and the other OF
said two equal parts to be allotted to the said
six children and the said grandchild Of the
other sop, equally to be divided among them.
The court below decided that the former was
the true legal mode of apportionment-that
is, an equal division among all the said
eleven children and the said grandchild,
allotting to each one.twelfth part Of the In
heritance. .s@t2aE
Board Of Supervisors of Bedford Us. Wing
field, Judge, &c. Petition for a writ OF pro-
hibition. Prohibition denied, Judge Chris-
tian delivering the opinion.
The Board Of Supervisors Of Bedford
county ordered door to be cut through q
certain wall of the courthouse in order to
enlarge the county clerks Office by adding
to 1t room heretofore used for lawyers
Office and jury-room Of the Circuit Court and
for other purposes. Judge Wingfeld Issued
a rule, preparatory to writ OF prohibition.
AZ IS 41n fn nj
the step contemplated. The Board applied
to the Supreme Court for writ of prohioi.
tioH against Judge Wingfeld to prevent him
from interfering with them. The Supreme
Cours refused the prayer of the Board, a
writ of prohibition not being their proper
remedy. They should have answered the
Judges rule, and then, If necessary, might
have appealed from bis decision.
Jones vs. Benson, SC. From the Circuit
Court OF Richmond county. Reversed,
Judge Staples delivering the opinion of the
Court.
In an action of debt brought by Benson
against Sydnor & Jones upon negotiable
note an office-judgmens was entered and
confirmed at the March rules, 1888. At the
following April term of the court that judg.
ment would have become final by operation
of law If not set aside. It appears from the
docket that the defendants, during the term,
filed plea Of nil dcuet, but no entry Of it
was made upon the record, nor does the re-
cord show that the ofice:judgment was In
fact set aside; but 1t does show that the
cause soas continued until the next term.
Both plaintiff and defendant and their counsel
were under the impression that the plea had
been filed, and that the case was pending, for
at the October term, 1863, they went into
the trial, waving jury, and agreeing to
submit the case to the Judge. After the ar
pument was concluded, and the paper placed
in the bands of the Court, it was ascertained
that there was no entry Of any plea on the
record, and the Judge held that the Office
Judgment, not having been set aside, became
final as Of the last day Of the April term,
1868, and that there was no cause In
court.
Upon appeal to the Court of Appeals, Judge
Staples, delivering opinion Of the Court,
held that tie Circuit Court erred in its de-.
eisiop. The statute prescribes that the office
Judgment may be set aside upon the defend-
ants appearing and pleading to issue. But
this is not the only mode by which 1t may be
done. The same object may be effected by
| motion to set aside the judgment with liber-
| ty to plead at future period, or by any
other order entered during the term incon.
sistent with the finality Of the judgment.
The order of continuance entered at the
| April term, 1868. If II had not the same effect
as q plea to the action, at least prevented the
Judgment becoming final by operation of law.
| The cause being on the docket, and being
continued by the court, was, necessarily q
p.ndipg cause.
The failure to enter upon the record the
plea OF nil deuet was obviously an accidental
omission of the clerk. Both parties coz
sdered that it had been done, that the
cause was at issue upon the plea OF
nil deoet, and they acted upon that con7ic-
ton In their agreement to waive q jury and
submit the whole matter of liw and fact to
the decision of the Court. The judgment OF
the Circuit Court is therefore erroneous, aud
must be reversed, with costs.
Fleming's executrix us. Terry, &c. Fully
argued by James Alfred Jones, Esqs and
submitted.
Walker us. Beauchler, &c. Fully argued
by Francis L. Smith, Jr., ESQ.,, and submit
ted. 80
The next FIVE cases on the docket are /:
Haynes's administrator us. Haynes; Payne,
survivor, ps. Tutwiler, &c.; Barton us.
Bowen and wife; Barton es: Rothrock !;
Georgia Home Insurance Company cs. Ken
near, &r. q
The first two cases will take but very little
time. 'g1r- 2. ,siEt.i
w. Co.. r,.,r,<~. rorv,~ EsT7oo