The times. [volume] (Richmond, Va.) 1890-1903, 1895-07-12
SUPREME COURT CASES.
4 Ny-uBER or OPINIONS MINDED
DOUN Ar WYTHEJILLE.
The Case of the ~. & W. Va. Mills ana
Fairfax Ahirmed-The Lynchb"rs M
tional Bank vs.. Scott Reversed.

WYTHEvILLE. VA. July u.-special'-
The following opinions were handed
down in the Supreme Court OF Appeals
to-day:
Norfolk and Western Railroad Company
vs. Mills and Fairfax. suing for the pehe-
fit of Henry Fairfax. Upon VIII oi
error TO a. Judgment Of the Circuit Court
Of Roanoke city. Opinion by Judge
Cardwen. Affirmed.
This case Is a sequel &c case between
the same parties. decided by this court
mo, a demurrer to the declaration, anu
reuorted in sOth Va. IL grows out ol
contract between Nils and Fairfax, COLI
tractors and the Norfolk and western
Railroad company for TIE building OF
tunnel on the Elkhorn branch OF the
companv's line OF rairoa1. Inc -
troversy between the parties was " H1'''-'
or not. under the terms OF tle cont"
the contractor were entitled 10 50
81 :, nsr cubic yard Of the material eNca-
,,,fei Srom a certain 300 running feet
~ the tunnel The engineer IN chaise'
under his construction OF the CONTRACT,
I'm his final estimate OF the work ahoNeH
only the smaller price. and the deciS'o"
III fhls court Is that the contractors are
entitled TO the higher price nainth' anu
afirn1s the Judgment OF the lower co.. v"i
an favor Of Henry Fairfax for S-','i-.ti'
which includes the usual Il per cent. re-
served until final estimate, with interest
from T,ilv s. ls8. The opinion delivered
lv Judge Cardwell is lengthy ana anie
one discussing fully the many lnieres' u
ing questions Of law and facts afihinH %,
tine case. Judges Keith, Reilly, anu
Harrison concur I'm tho opinion anu
Judge buchanan disfents.
oxr ErvrrsfD AND oNF AFFIRMED.
T.vnchburg National Bank ". Scott
BROTHERS ct ais. Opinion by Judge Har-
rieor Reversed. From the Circuit
Court Of Washington county.
Prior 10 April, 1913. the law declared All
contracts for the loan of money az more
than legal interest void The act or
1874 now carried TO section isis. OF the
Code. declares that as 70 the interest, al
such contracts shall be deemed TO be ior
an Illegal consideration
The court holds that under the law as
n now is. declaring that the contracts
shall be deemed 10 be for an illegal con-
sideratiOn. instead of void, as formerly
the defence Of usury cannot be made TO a
negotiable note i'm the hands of a bona
fde holder for value, and without notice
of tho usury.
r. \. Preston rs. Salem improvement
Company. Opinion by Judge Harrison.
Affirming the judgment Of the Circuit
Court Of Washington county.
In this case the defendant, I'm the
court below. in a motion under Section
32ll Of the Code. claimed a trial by jury
as Of right. without rendering an issue
insisting that il being "A summary pro-
ceedng. he had a right 20 20 TO trial
without any formal pleadings. and To
produce orally In the progress Of the
trial any defence he might have. The
court holds that no verdict rendered, as
irpon the trial Of an issue. whore No
issue has been Joined. can be sustained
under the general rules applying 10 all
actions: that no verdict can be rendered
or Judgment entered thereon. unless issue
shall have first been Joined on the
pleadings: that the better practice IN
proceedings by motion would be TO make
up the issue TO be tried by such formal
plea as would be suitable had the action
been by declaration, according TO tht
cOmmon-law form; but that IL Is per-
MISSILE under Section 3zl. il being a
summary and flexible proceeding by mo-
t0in. 10 make defence by such informal
pleas or statement IN writing, as vii
make Up the issue 10 be tried.