The times. [volume] (Richmond, Va.) 1890-1903, 1895-04-19
THE COURT OF APPEALS.
IMPORTANT OPINIONS HANDED
DOWN IN THIS TRIBUNAL.
banghorne w the Richmond Railway
Companv-SstIoual Bank Of Virginia
Against Cr.ngan-Oiber Decisions.

The following are extracts from the
opinions handed down in the Supreme
Court Of Appeals yesterday:
Langhorne, for, &c. VS.. Richmond Rail
way Company ct al. Rehearing OF
case decided at the March term, 1894.
reversing a Judgment Of the Circui; Court
Of the city OF Richmond. The former
ruling Of this court is reversed, and the
Judgment OF the court below affirmed.
Opinion by Judge Buchanan, and nat
tiers of pleading only, passed upon.
Iield !. The right to crave oyer Of
papers mentioned in pleading applies
as general rule only to deeds and let
ters Of prooate and administration ana
oaly applies to a deed when the party
pleading relies upon the direct and in
trinsic operation of il. Minor. 12S0-l.
2 Grounds Of demurrer being mis-
joinder Of causes OF action, Of the form
of action and OF parties. Where TWO
railroad companies unite or become con-
sOliGated under authority OF law, the
presumption is. until the contrary ap-
pears that the united or consolidated
company has all the powers ana PRIV
ileges. and is subject 10 all me restrlc
lions and liabilities of those out OF whlch
1t is created. The corporation whlch Is
created by such consolidation, or the sur
viving CORPORATION IN cases Of merger, Is
ordinarily deemed the same as each OF
the corporation which formed 1t for the
purpose of ansW ering for the Liabilities
OF the old corporation. and may ne sueu
under its new name. or under the Haihe
of the surviving company Tor their ueO.S'
as il no change had been made IN the
name or in the orgdniza ton OF the orisl-
nal corporations
3. Consolidation authorized ana maue'
all rights. property and franchises OF the
Old are conferred upon the new or con-
sOliiated company, ana SUBJECTS 10
all the liabilities of the old. and an action
at law may be brought against the new
FOR the debts or tOrts OF the old com
panies. But the plaintiff though hav-
ing the right 10 sue either has no flsht
10 sue both in the same action al law.
An action at law being brought against
two or more persons. II must appear
from the declaration that the contract
or tort upon which II is brought Is
joint contract or joint tort. IN TINS case,
plaintiff having made both the old anu
new corporations parties to the action
and stated good cause OF action
H.
causes of action and OF parties
Same vs.. Richmond city Railway Com
Danv. This case stands exactly on the
same footing ss the last, and the opih-
ion of the late court, reversing the court
below. is sustained.
Held Statutes allowing amendments
are remedial and must be construed lib
orally. though resting In the SOUND discre-
ton OF the court If the court consider
that substantial justice VIII be promoted
i'm case of variance between the evidence
and allegations or recitals by permitting
amendments TO the pleadings (wihout
prejudice to the opposite party II may
allow such amendments, and sec. Sjoi OF
the code was clearly intended 10 provide
for such cases as this, where the aInehu-
ment asked for would have put III issue
the identity OF the old company, which
committed the i0rt. and the new one,
(which had become Me owner OF us
rights and franchises. and whether II was
responsible as such for the injuries TO the
plaintiff
Marshall VS.. Palmer From the Cir
| cult Court of northumberland county
| Affirmed. opinion by Judge Rely.
Held: In ejectment. plainun may re-
cover less than he claims in his declara-
ton. but not more than he proves tue
10 i'm himself, nor can he, as sole PLAIN
tiff. recover the respective interests OF
his co-tenants Each must sue Tor NM
self. and in his own name. Only such
interest may be recovered as each may
prove himself entitled to, and the extent
of the interest claimed must be deslg-
mated and rendered certain; other"'se
Judgment must be for defendant
Borst VS.. Nelson. From the Circuit
Court of Culpeper county. AIhriheu'
opinion by Judge HARRISON
This case merely involves the question
~ The weight of conflicting evidence, and
the Court here is unable TO say tne court
below reached an erroneous conclusion
National Bank Of Virginia vs.. Cringan
and ais. From the Chancery Court Of
the city OF Richmond. Arlrmed' opih-
ion by Judge Harrison.
4. about 10 form partnership, DOT
rows money on his own note, win l. ms
future partner. as endorser. PROCEEDS
laced 10 C's credit. which he afterwards
| rhocks ont and places 10 the firms credit,
as his individual input. The co-partnef-
ship was actually formed Few Gays
later. between G., u, and +, ana ABOUT
a month after b was admitted as part
uer his interest to relate back TO the
hceipnine In about year r died. and
tho firm was dissolved. The note was
renewed several times. always IN the
same form. but the proceeds were
snrseouentlv placed to the credit of the
firm I'm the banks books, and the old note
| charged up TO the account. After as
solution. G sold his interest 10 ana
| r for 81 400 i'm cash and any interest
no might have after the debts were paid.
They took possession of the assets ana
anpiied them 10 the payment OF said
| debts.
Held Prior TO the actual existence OF
tho PARTNERSHIP c. had no implied power
/ 10 bind It. nor does an eXecutory con-
tract 10 form partnership constitute a
nartnership in fact. Even If the part
nership be existent, partner has no I'M
nlied power to bind the firm Tor MS
own share Of the capital agreed 10 De
subscribed. which power only exists When
necessary for the transaction or the part
nership business in the ordinary way.
. II credit be given TO one member or
a known firm. the firm Is not liable for
| the debt. even though the fruits OF II
20 TO the benefit Of the firm; but. II no
nartnership was known TO exist, or II
! there were dormant partners, the iirm
! will be liable for the creditor. in the lat
fer case. has made no election OF his
debtor. Provided however. the act done
was i'm the scope OF the partrer's author
ity. necessary 20 the conduct of the
business of the partnership in the ordi-
nary way
8. This being the individual debt of c
and r. and not that Of the firm of 4
r. Section psf Of the Code does not apply
TO IL: partnership assets in Virginia are
not impressed with statutory lien in
/ favor OF the individual creditors of the