The times. [volume] (Richmond, Va.) 1890-1903, 1895-03-29
THE COURT OF APPEALS.
A NUMBER 0FIMPORTAET OPINIONS
HANDED DOWN YESTERDAY.
A Case That Has reen Tending SInee 1SSo.
ALand 20 trait onst oiog VIII.
A M tter o. Insurance.


Court OF Appeals.
Benton VS.. Commonwealth: from the
Circuit Court Of Fauquier county. Affirm
cd; Judge Rely delivering the opinion.
This case has been in this court four
times. and the defendant has been In
nrison about four years, while the diner
ent appeals were pending.
Renton was indicted in Loudoun In
1902 for HOUSEKEEPING in the night
time with intent TO commit larceny. The
nojnts decided in the opinion Of Judge
Rely are:
Held first. The reversal Of a judgment
Of the court below because Of con-
tinuance enormously granted amounts
simply to awarding the prisoner new
trial. The speedy trial. guaranteed by
the Constitution is the legislative inter
nretation OF II as found in section 4OH
of the Code, which has more than once
received the sanction of this court. Al
cocks case, Graf. 66l; Brown VS.. bpes'
Nicholas VS.. Commonwealth-Dolh oe-
cded by the present court.
commit larceny, and grand larceny
though distinct offences under the law,
may be, and often are, one continued
act. and may be charged In the same
count Of an Indictment. Upon such count
accused may be found guilty OF ehher
offence, but there can be only one penal
~ There must be a separate count Tor
the larceny, if both penalties are IN
voked. An acquittal, where there is put
one count is a bar 10 prosecution OF all
offences charged therein. A general con-
viction, or conviction for the larceny,
submitted TO, is also such bar.
Third. Upon conviction and obtaining
new trial. accused valves his former
jeopardy and subjects himself to further
trial Upon such new trial, however Gee
section 1910 of the Code, Briggs case, 81
Va, SD, accused cannot be tried for any
higher offence than he was convicted Of
in the former trial-the general rule be-
ing determined by the maximum of the
penalty affixed to the offence. The OBJ
vious intent Of the statute Is that accused
shall not, in a new trial. run the risk OF
greater punishment than the offence of
which he was convicted was punishable
with, yet remain liable to conviction or
any offence charged against which no
severer penalty is denounced
Fourth Except where technical words
are necessary, an offence is sufficiently
described in any other words that are
synonymous, and which plainly bring the
case within the statute; as a store
house" clearly embraces a meat house"
Fifth. AS TO personal presence of ac-
cused when order entered in his case:
Without conceding that II is necessary
that a person indicted for felony shall
be present I'm court when a motion IS
made by his counsel for continuance,
and that the record should show it; yet il
the record otherwise shows that he was
personally present, it is sufficient. GO
Graf, S5l; Leigh, 623; 81 Va, 7SO.
SINCE 1s40
Shepherds administrator, &c, against
Chapman's administrator c. From the
Circuit Court of Orange county. Affirm
ed. Opinion by Judge Keith. This case is
a modern instance" of Jarndyce and
Jarndyce, having been pending since lSi9.
and all the original parties to it being
l2pg 6jHfe. qsaahgI t5%as i94gv 2enelgS,n
first time in 1874, came again before the
late court and was argued, but not de-
cided and before the present court at
this term "fOr error on the face OF the
record I'm the decree Of 1870, and after
discovered evidence
Held /. 1t is well settled that a bill of
review will not lie TO a decree Of this
court for errors apparent; that all It's
DEGREES partake of the quality OF iinality;
that its introductory DEGREES can no
more be reviewed here or elsewhere for
apparent errors than a final decree; and
that such bill does lie to its DEGREES upon
the ground of after discovered evidence
,. Said decree, having disposed Of the
very point raised in the bill of review as
to the after-QiscOveTed evidence; said evil
dence having been spread at large in the
commissioners first report, became res
adjudicata.
A LAND CONTRACT,
Hoover against Buck. From the Circuit
Court of Rockingham county. Affirmed.
Opinion by Judge Keith.
Buck sold land to Hoover for one-third
cash, balance In two equal payments, he
to make Hoover deed of trust. Buck
fulflls his part of the contract, and Hoov-
or declines to make cash payment. Bill
for specific performance rendering deed
for the lot.
Held 1. When a contract concerning real
estate is valid unobjectionable in Its ma
ture. and i'm the circumstances connected
with il. and capable OF being enforced,
and it is just and proper that It should be
fulhled, IL is as much a matter of course
for a court of equity TO decree specific
performance as for a court Of law TO give
damages for the breach Of It,
3 A valuable consideration. particular
ity. certainty mutually, and a necessity
for performance are the requisites upon
which the equity of a case arises.
WILL CASE
Waring and wife against Bosher's ad-
! ministrator From the Circuit Court of
| King william county. Reversed. Opinion
| by Judge Keith.
This case involves the construction of a
! will
Held I. The object of courts in constru-
! ing Wills is TO arrive at the true intent
! OF the testator. but that intent is to be
| gathered from the language used Con-
| lecture may not usurp the place of judi
ciai conclusion, nor supply what the tes-
| tator has failed sufficiently 10 indicate
| II Graf 2o5.
2 The intention must be collected from
the words of the will for the object of
| construction is not 10 ascertain the pre-
su ned or supposed, but the expressed in
tention OF the testator: that is. the mean
ing which the words Of the Will correctly
interpreted convey--S0lVa. III.
3. A clearly expressed intention in one
| portion of the will is not 10 yield 10 a
doubtful construction in any other por-
ton. If two provisions in a will are in
consistent the latter must prevail, and IN
no matter what order they may come
| between a general and a specific pro.
vision, the specific must prevail.
FuoM ALB MAPLE.
American Manganese Company VS.
| Virginia Manganese Company. From the
! Circuit Court OF Albemarle county. Re