The times. [volume] (Richmond, Va.) 1890-1903, 1896-07-10
Court Of Roanoke county. Affirmed. opln-

in section 10, on the same street, and IN
an adjoining section. Simmons. before
discovering the mistake. made the cash
payment and assumed certain liens upon
the lot and deed was made to him.
Discovering the mistake he demanded
restitution OF his money and cancellation
OF his other obligations which was not
done, but he retained the deed in his
possession, and did not offer to return II
or 10 recOnvey the lot
At the date OF sale and for some months
thereafter lots were readily selling on
Colorado street for the price paid by
simmons. IL appears that Simmons had
owned this land. had sold IL TO the Salem
Improvement Company. OF which he was
vice-president, was perfectly familiar with
Its subdivision into streets. sections. and
lots. and could. therefore. not fail TO
discriminate between lot In section 10
and lot I'm section i. or be ignorant
OF their relative positions without going
upon either.
Held. Under such circumstances II was
his duty Immediately TO dlsafiirm the
transaction and 10 have accompanied his
demand for "A restitution Of his money
and cancellation OF his obligations
with the tender Of reconveyance OF the
lot purchased. In such cases the APP
plication for relief must DE made with
due diligence, and what constitutes due
diligence is 10 Dee determined by refer
ence 10 the facts attending the particular
case. I'm general the diligence should be
proportioned 20 tho injurious consequences
likely TO result from delay.
1t would be "a poor administration Of
equity that would give him relief after.
by his delay and omission OF duty, he
had caused irreparable mischief to the
other party.
Russell VS.. L. & y. r. r. From the
Circuit Court of Ice county. Reversed.
opinion by Carlwell. Judge.
The plaintiff brought his action on the
case to recover of the defendant railroad
company a penalty by virtue Of section
1862. of the Code, and the failure OF the
defendant 70 comply with the provisions
OF that section for ono hundred and seven
ty days, relative 10 two cattle guards that
plaintiff required should be constructed
bv the defendant AT certain designated
points within plaintiffs enclosed iain-
The defendant demurrcd 20 pnintbf
declaration and the court below 10y ns
ruling IN excluding certain testimony.
I'm effect sustained the demurrer On the
ground that section 1852 does not apply
TO private crossings.
Held: That 10 was error I'm the lower
court 10 exclude the evidence reierreu TO-
and I'm effect 10 sustain the demurrer
for the reasons stated; but that the
demurrer should have been sustained
solely upon tine ground that the pidlh'il
had brought a wrong acton g.
An action on the case does not ne LOT
the recovery Of penalty prescrpcu 10y
statute no part of which accrues 10 the
commonwealth. but the common-la"
action of debt is the proper acton u
recover such penalty. 1.,.,
pcrsingcr's Admir-. &c. vs.. chapman
I'm The Circuit Court of RoahoAe
county. Reversed. Opinion py Calu
we'll Judge -, a.. cir
siocnmb VS.. Compton. From the Clr-
o,,,, cour, of buchanan county. ANTRIM
,d Opinion boy buchanan, Judge. -.
rr,ld. FIRST. Where the verdict j. lo' I"
-, ort, Of tho land sued for the nouin-
aries of tho part recovered sl'.Il-
I,..f,-,atod The verdict must pe ''l 90
an itself or must refer TO 50 me 81
standard by which 10 as,.i ''-''. ,,,dod-
eo found. otherwise IL VIII p. ''
mite to warrant Judgment upon l,io,, ~
second. 4 plaimin ih an q" ~ ,cte
M nroceedngs had under section
nm. cbspter Jos Of the Code or 10 .-, "'
~ -to7 tr cnauf.r 2l4, Of Acts oil 30
a'". ortitlcd 10 recover where IL ~
D. i' e-o,, his own evidence lnal '.'
pe"Io - instituted the proceeding j"
par - chat section was not 'h ~
'""l ~ The land nc the time tn'y ~,
THAT statute was pa79,N
lns'i. -u.''.l.,i,n of actual settlers on Wv
,"' - ,ho commonwealth WIN"
.,t.ot IN location and entry t--ou
s..,D e. VS. jackson BIOS -.
H Circuit court of Roanoke -
r,,..,-eod opinion by hucl"l.''', .ottio.
uld First. Every posi- 'i,1l,t.d al
Int where the hu-"h" ~ t,,s, his
, .,,,o II is made. is as "s"'i'' ~.
'h' .'' f.oudulent and void, ana sue"
cI,..''o' ,,u be taken as Noiu"'ai'
those claiming under II can si'"
| g, ms made for valuable coHs-',i
| cocond The rcatals ~ the VI,
~. T., tho consideration. though "-'i. ~.
'' .atrst the person claiming undei ,nN
b,shend are not evidence against
49, have assailcd the fairness an'
,..rdftv Of the deed. Ihirn. d"
,..-t.-,,4 has collected the rents ac'rNi"@
go, ifs ,-ifo's separate estate ana re-
r.,,,ed money from her. borrowed ","'
e..t,rod uuou her separate estate Jul ''''
ohsanea Of any agreement that IL wa
loan. IL is presumed to have ueen E,i"
and Is not q valuable c"nslu'l'-l''i, i".
o. conveyance 20 the wife 10y lhe H"a'"i'
os AGAINST his creditors. Fourth. hnl
v.here the wife has assumed "a dent OF
.ho husband. which is "a charge upon her
s.narate estate. although the settlement
h. set aside. because fraudulent ana Noia
n ,nnst stand as q security 10 IN extent
that she has assumed 10 pay her huoand
debts.
many. From the Circuit Court OF Lee
county. Reversed. opinion by Rely
Judge.
White and ais. vs. Powell Inv. co.
and ais. From the Hastings Court Of
the city Of Roanoke. Appeal and super
sedeas.
Mavhugh's Administrator VS.. c. and
O. Railroad Company. From the Circuit
Court of the city of Richmond. wit Of
error refused.
scott &c. rs. Logan 81 ais. From the
Corporation Court Of the city Of Radford.
Appeal refused.
Petition 20 rehcar In cases OF y. and
W Railroad Company vs.. infant Amoey
and city Of Richmond VS.. Loving were
refused.
10 has been given out by the Court that
tho appointment Of tipstan for Richmond
would not Doc acted mp until the court
met at Stanton.
the FTRHMEN IT HIHPTON.
Lexington wins the FIRST Prize and Win
chester the second.