Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-07-12
OUR HIGHEST COURT.
Many OPINIONS HANDED Down At
viTnEviLLE YESTERDAY.
Railroad ana Other Cases-kitiins
Sfoci--A Question of Jsury-The
cidcnt.--othcr Proceedings.

wYTHEvILI.E. VA. July ii.-(spe-
c,al.-Thc following opinions were handed
down In the Supreme Court q Appeals
to-day:
Norfolk and Western Railroad Company
W. NILS and Fairfax SUING for 'he
benefit Of Henry Fairfax upon "rlt Oh
error TO judgment OF the Circuit oo''
OF Roanoke city. Opinion by '"'se
cardwcll. Affirmed.
This case Is the sequel to a case oe-
tween the same parties decided oS .i''
court upon a demurrer 10 the "eV'''
and re,orted In Goth Virginia IL
grows ont OF a contract between MillS
g Fairfax ,confractorD and the Nof'oih
ga western Railroad Company Tor the
,,,,,,,,. ~ "a tunnel. on the hikhorn
49,, If tha company line OF iaiitodu'
Tho controversy between the P"i''es ""'
vbstber or not under The terms OF 'ne
cortr,ct the contractors were enti''eu 10
e. n mp g.15 per cubic yard OF the ma
Voted from certain 100 ru'
ul'"' 49,. ~ the tunnel The engineer
,''- .( urfrr his construction Of me
n.,trsc, in his final estimate OF the
- allowed only the smaller price
81 th, decision of this court IS that the
contractors are entitled 10 tht u's"
49,, named. and 'ahirms the Judsnth'
:, ,he lower court in favor OF Henry
S-,trfax for Sa9.5l2fi which includes me
..,,l IA Ter cent reserved untli Hhai
s.tpate. with interest from July y J6HS'
,rbe ontniou delivered rs a lengthy anu
oil. ono discussing fully the many IN
,crosttnv questions Of law ana TACT
arising in the case
Judges Keith. Reilly. and harrison on
cur i'm the opinion. and Judge "uch"ha"
aissents. ~. 49,. cc,.t
protbers a ais opinion by Judge mar
rison Reversed. From the circuit
court Of washington county.
prior to hpril. 1879. the law declared an
contracts for the loan OF money AT more
.han legal interest void, The act OF 49,
~ carried into section 2Sls 81 the 'ohe'
declares that. as 20 the Interest an suc'l
contracts shall be deemed 10 d. TOT dHt
Uegal consideration. The court ho,'9
that under that law. as 1t no" - u'
Icing that the contract shall be deemed
=. he for an Illegal contraction. instead
~ vosd AS formerly. the defence OF usury
cannot be made 10 a negotiable note III
tho hands of a bona ade holder Tor Naiue
ana without notice Of the usury.
CLAIMED JURY TRIAL.
Preston VS.. salem Improvement
,,l,onanv Opinion by Judge HARRISON
smrr,inc the judgment OF the "0'''
-ourt of Washington county.
tbts case the defendant IN the court
-. &, "a motion under section Szll ol
sho Code claimed trial by jury as "a
right without rendering an ISSUE lls,s''i,e o
mot IL being summary pIoce-u'ns'
RAD a right 10 go 60 trial WITHOUT an ~
srrr,ol ,,leading. and to produce ordIi@
In the progress OF the trial any oelenc-
~ might have The court holns that ~
re-1lct rendered as upon the triaI OF ~,
lssue where no issue has been JolhtA'
San he sustained under the genefai ruie'
,,,lvinr 20 all actions. That no Nerdict
AN be- rendered. or judgment 'h'eieu
,,,rreo, unless issue shall have first been
iotned on the pleadings. That the better
nractice in proceedings by motion Wonlu
30 to make up the issue to be flen py
such formal plea as wou.d ne sui'"u'e'
ba1 the action been by declaration &c
ro~dinr 10 the common-law form, but
maj II Is permissible under section SEil'
n being a summary and flexible proceed
W. nv motion 10 make defence by such
Informal pleas or statement IN WrlihB
30 viii make IN the issue u be tried
,rbe Norfolk and Western Railroad
r.o,nnsnv rs. John II. Johnson. opinion
nv Judge Harrison. affirming the juds-
7ent Of the circuit Court of Washinstoh
county. This was an action Tor Kiillnb
stock hy the defendant company Whle
running through the enclosed lands OF
tbc ,,,intir. The court holds that section
t3-S Of the Code Is an express mandate
of the law recurring the railroad TO renee
;-- road-h bed on both sides with lawful
fence. that section 1851 must be construed
An the lleht Of chapter %, from which II
a. taken. The court construed the law 70
m, mat when the railroad fails TO obey
the law by enclosing it's road with a Jaw
ful fence. except where excused by 'he
law. that then 1t Is liable for The STOCK
killed IN running through the enclosed
lands of the owner.
A. +. King and u. NJ. Daniel, trustees
IS Bette q. Levy. opinion by Judge
Harrison. affirming the judgment Of the
Circuit Court Of the city of Roanoke.
Mckinney vs. Peers. Clerk OF Appomht-
tox county. Opinion 10y Judge Keith
This is & petition for mandamus praying
that the Clerk be required to issue GER
tincate of election 20 petitioner as
Justice OF the peace. The mandamus Is
awarded. the court holding that the Board
Of Commissioners of Elections must ascer-
tain the result Of an election from the
returns tNI4biitl 10 At'ihf anu 'i"t ~
throw out a precinct was an act Of usurpa-
hon on their part
Goodel's executors vs.. Gibbons 81 ais
Opinion by Judge Keith. From the CIR
suit Court Of Smyth county Affirmed.
Grant vs. sutton. opinion by Judge
K.bh. From the Circuit Court Of Wash
Mstou county Affirmed.
Az ACCIDENT CASE.
Norfolk and Western Railroad Company
y. Hugh Brown. Opinion by Judge Buch-
uuag reversed. From the Circuit Court
Of thc city OF Roanoke. The points de-
rilel are.
!. THE master. whether a natural or ar
tnclai person. although he Is not 10 be
held as guaranteeing the absolute safety
or perfection of his machinery. appliances.
or other APPARATUS provided FOR the use
Of his servants. must observe all the care
which tAe rX-eucics II the situation
reasonably require In furnishing instru-
mcniaiites adequately safe.
:. Bat thc use Of cars in the same
trains Of unequal height with mismatched
couplings Is not Ter Se negligence In the
master. and brakeman Is not entitled
10 recover damages ior Injuries received
by him whilst upc1lplng such on the
ground that the master failed 10 provide
suitable machinery
g. Where an injury has resulted from
a certain wrongful aci or omission, but
only through. or by means Of some in
tcrycniug cause. from which last cause
.he injury follows as "a direct and imme-