The times. [volume] (Richmond, Va.) 1890-1903, 1895-01-18
THE COURT OF APPEALS.
A LARGE NUMBER or OPINIONS
HANDED DOWN YESTERDAY.
The Lower Court Rsvsrssd in the Case OF
Blanton W. the Conmsnwesi'h.
Other Business transacted.


opinions delivered yesterday In the SUI
preme Court Of Appeals OF virginia:
Field against County OF Albemarle'
From Albemarle county.-James u. Flelo
permitted Peyton and his force of hands
who were working the public highways OIL
the county, TO occupy his barn ana staoie'
These were destroyed by fire, the result
of the negligence of the county through
Its agents and servants, the saio roau
force. Loss ascertaned to be about Sl'zco,
and Field APPLIES 10 board OF supervisors
FOR reimbursement. Claim disaio"ed'
and appeal to County and circuit courts
Of Albemarle, both OF which sustain the
board This court. opinion by keith,
president. affirrns the judgment OF court
below. citing and approving Fry against
Albemarle county. Eighty-sNth virginia:
Counties. being political SUBDIVISIONS Oh
the State, cannot be sued except III cases
where by statute such suits are allowed
BLANroS AGAINST COMMONWEALTH.
Blanton against Commonwealth. From
the Circuit Court for the Guy OF R-ch-
mond.-The Commonwealth gave notice
to the treasurer of Ameha county anu
TO Blanton and others, his suretes on
his official bond of motion 10 recover
balance due the State. Inc only plea
that actually came 10 issue was hul tell
record--no such record--and in the court
below. Judgment was given ioF the Com
monwealth for the sum claimed. The
county clerk testified that the records
mentioned were the original records OF the
qualification OF the county treasurer, ana
that the blank seal left with no sigma
ture opposite thereto, was so maze ana
left blank for the signature or Tucker,
VINO never signed. and that the certiilcate
AT the foot of the bond, that the same
had been executed and ACKNOWLEDGED IN
open court by the obligators, and ordered
to be recorded, was not written or the
blanks filled up until some time there
after: and that the interlineatlons OF
Bianton's name were written in the said
order of the County Court before the
judge signed II. Is this a variance, ahd'
If variance, a material one?
In the notice given by the Common
wealth the name of A. G. Tucker nowhere
appears. though the names Of Crowder.
principal and OF Blanton and six other
sureties are inserted. The record pro-
duced to sustain the plea does contain
fuckers name, and this is the record.
Here then, is the variance. ana the only
explanation is the testimony OF the clerk
above given. If this be, indeed, the
record then the testimony OF the clerk
cannot be considered. and. II considered,
going 10 show an incomplete transaction,
and discreditirg rather than establish
ing the bond.
The County Court speaks only by its
record and is charged with the duty Of
experimenting the execution Of Official
bonds. and lit is the approval Of the
bond by the tribunal designated by law
to superntend its execution which com
pletes its execution and delivery ana
makes IL complete" When the County
Court, therefore. approves the proposed
names and individuals as suretles in
bond and directs its clerk 10 prepare the
bond, he has no more authority TO Wit
ness and accept 1t until all the named
sureties sign II than he has TO accept IL
without the principals signature. II he
waive the signature Of one surety he may
waive all. When the Court has desig-
mated certain persons, and approved them
as sureties. no alteration can be made
by leaving off name or substituting
another therefor. The bond must be pre-
pared and executed in conformity to the
judgment OF approval. and every altera-
ton by the clerk is wholly unauthorized
and his attestation TO such bond Of no
validity.
Here the variance is established Is 1t
material? The parties must stand or
fall with the record adduced ana mat
SLOWS the acceptance by the Court OF
A bond with the signature Of eight sure
ties; the bond produced the signatures
OF but seven. These suretles had right
TO expect and require that every name
accepted should appear on the bond
They had a right TO rely upon the due
performance by the agents and officers OF
the State Of the duties imposed by law
Those duties being neglected, who shall
suffer- innocent parties or the Common
wealth, whose agents are in default?
Suretes stand upon the letter of their
contract, and any variation OF the agree
mcnt subscribed by them without their
knowledge or consent, or which may
amount TO a new agreement, Will dis
charge them.
Judgment OF court below reversed, and
notice dismissed. opinion by Keith,
president
CASH iGiINsT COMMONWEALTH.
Cash against Commonwealth. From
King George county.-Cash was convicted
of voluntary mansaughter on an indict-
ment charging him and others with the
murder of Henry Speaks, and his punish
ment fixed at five years in the peniten-
tiary. Opinion by Cardwell, judge.
The real question is Is the evidence
plainly insufficient 10 warrant tSe verdict,
and did the court below err in refusing TO
set 1t aside or in granting a new trial
on alleged after-discovered evidence? The
case stands on a demurrer 10 the Com
monwealths evidence. and the evidence
is certified 10 this court not the facts
proved" in the court below. The rules
governing the granting OF new trials are
as follows:
First Where the verdict Is against
law. This occurs when the issue IN
wolves both law and fact, and the verdict
Is against the law of the case upon the
facts proved"
Second. Where the verdict is contrary
10 the evidence This occurs where the
issue involves matter OF fact only, and
the fact proved required a different YER
diet from that found by the jury
Third Where the verdict is without
evidence to support IT." but the court
viii not grant new trial merely because
the court would have given different
verdict If on the jury. ITO warrant
new trial In such cases the evidence
should be plainly insufficient 10 warrant
the finding Of the jury"
The evidence here being not only not
plainly insufficient. but fully warranting
The verdict. the judgment below must be
affirmed.
DULUTH AGAINST LILLARD.
Dulin against Lillard, sheriff. From
Rappahannock county keith, president,
absenD.-Dulin was committed to jail No
vember s, 1895, under warrant OF a justice
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