The times. [volume] (Richmond, Va.) 1890-1903, 1895-04-05
THE COURT OF APPEALS.
A NUMBER or IMPORTANT 0PIN-
ions HANDED DOWN.
A Case similar 20 the Nicholas Gaze De-
cidsd- Obsiructing Publ G Highways
An Insurance Ca,c--A Mining Lose.

Deprcst VS. Jones. From the Circuit
Court Of Augusta county Affirmed. Opin-
ion by Keith. president
Tho question here was as 20 the right 70
use an alley IN Mt sidney. Proven tha'
many years ago a plat was made OF '"e
town. and b. such plat IL was regularly
LAID on into streets and alleys. Ia 49,
the town wss Incorporated 10y the Legs
latpre cas- the same nae pee"
may DC le'd on ID los. streets "'.1
legs" The alley fen INTO "is"S' -,
time about INl though never '""''H
closed until ls,2 The defendant ltH'9
upon adversary possession for more 'n""
twenty years. I'D.
Held Ifis defence cannot he maze
b. one who undertakes 10 sn.'
up or obstruct Il pubic hlsh""|' ~ w '''
$50. ldcn. o7l. "a Va $50. ,.
Jennings Executors vs.. Whi'' ana avs
Tidq case Naf icheauns granted
on The endorsement of judge Hinton 'h"'
Ia his opinion rchtafihs Sno"l" "'
Iranted. De- having been one OF 'he JUDGES
who had heard the case in TINS court
and united iu ienicrns the decree 'P'"-
ion boy Keith, president
Hold. That While not concur i'"e }" al'
the views apon the several matters oil
law end fact dis .usscd 10y judge lach-
ards3n in tis opinion delivered az the
November term. isyi, Sc are OF opinion
that the decision reversins The decree
of tho Circuit Court Of Rockingham was
correct. and that the same ne entered
as the final decree of this court
Morrison vs. Wilkinson. Also a rehcar-
ine Cause decided at Wythcville ia
1873 by Judge Faunticroy and rehearlne
allowed a. the same term. Opinion by
Keith. president
without clucurring in the opinion. the
conclusion reached accoids with the law
and evidence and "a decree will bo entered
affirming the decree Of the Circuit Count
of kins William.
LIKE me NICHOLAS CASE.
Miller vs. Commonwealth. From tho
Circuit Court OF Gloucester. Affirmed,
Judge Harrison delivering the opinion.
Miller was indicted for malicious as
sault with intent 10 Kill convicted. and
sentenced TO the penitentiary for two
years
Most of tho assignments Of error IN
this case were lately considered by this
court in the cases of Nicholas VS.. COM
monwealth ana Benton vs. Common
wealth. decided at the present term, and
fully reported in The Times.
IN addition. held. T. 30 Is proper for
tho clerk in chareing the jury 10 read
the act containing tho law which fixes
The penalty of the offence charged.
q II being manifest from the record
that only twelve jurors served on the
trial the duplication OF Jurors name
making 30 appear that there were thir-
teen. is such au inadVertonce as does not
affect tho merits.
g. il is not essential 10 tho validity of
an indictment that 10 should be endorsed
"a true oill' signed 10y the foreman.
Va. Cases. ~: q GraL $40: 20 Graf. S2i.
Georgia Home Insurance Company VS.
..fI.
Court of fage county. Affirmed; Judge
Harrison delivering the opinion.
The defendant below asked for and
was dencd the following instruction.
II there is amy change i'm the posses
sion of insured property between the
date OF the policy and date of fire. with
OR the consent or knowledge Of the com
pany. the jury must ind for the defend
ant. unless said company has waived saic
prov ision Of the policy.
he policy contains this provision "Oi
~ any change takes place ia the title OF
possession of tho property, whether by
sale or judicial decree without notice
10 the company. and its consent endorsed
thereon. then the policy shall be void.
Held: J. a receiver derives his authori
ty from The court appointing him and no
from the act of the parties applying TO
his appointment. The utmost effect OF Dbl
appointment IS 10 put the property int
his custody ak an officer of the cour
for the benefit of the party ultmatel
entitled: bat mot TO change the tiu
or even the right Of possession IN tn
property" 1856 L.. S.. 236.
q ANY change of the interest Of IN
insured OF a nature 10 render him les
watcntgl against it's destruction by fire
violates the policy. But the real Owner
chip remaining the same. and there bein
no change of title in fact. hat only ey'
deucc OF change. and that merely nom
nal. and not of a nature 90 Increase IN
motive 90 burn or diminish the motiv
10 be watchful Of 10. the policy is nc
violated. ~ Iowa. l76
MINING LHAsE.
Young rs. Ellis. From the Circuit Coul
81 Franklin county. Decree amended an
rfi-moi. judge CardWell delivering opiI
ion.
This case involves the construction Of
mining lease.
The indcnture contained stipulati0
that i'm case active mining be not behu
ON the premises. $50 that tne agreed TO,
alfy on the ore become the Cousidera; iC
OF the lease. that the lessee shall pay s
annually. ami Until such mining be b
gun.
heidi Such an iudcnturc is not me-
license. rcVocablo az The viii Of the lc
cor hut grant of right and privile,
mining leasc-and voidabe only upon Il
failure of the lessee TO pay the su
certain OF S25. annually due on the leas
Casey. 2u, 81 Mimi 5i3 etc.
Conrad ~. Smith. From the Corpor
ton Court OF Winchester. Reversed. judi
Rely dcliveriur the opinion.
r. and Is made ID note, which S a.
dorsei. Protested for uon-payment. fXh
SIS liability. and before payment 4 Ill,
* then makes two notes. on one of Viii,
S Is first enlorscr and g. second. on q
other note Sewers is sole cLdorser The
renewed with same endorsera. and WIZ
due h induces g. To become sole cndors
on another note. and with proceeds
tais pays the note on which and G b.
been FIRST and second cndorsers. respe
tNcly When the noie which only SeeVe
endorsed became due IL Was renewed.
becoming first and Sewers second e
dorser This note paid by s. NeauiI
the original unpaid note OF r and X hi
been assigned 10 &. 10 save him harmle
a. sole endorser. 5 contended that be W
sunraeated 70 the rsht OF the bank
collect the note OF T and X TO The amou
paid by him. and his contention sustain
by lower court.
Held The two notes made by alo
10 pay the protested note OF I and
not having been made al the maturity
the protested note. nor by the sai
makers. nor with the same cnoorsers e
cent -, and the proceeds Of them havi
been placed TO KS credit. and not to {
ravmcnt OF the r. and Is note cOnSfitut