The times. [volume] (Richmond, Va.) 1890-1903, 1896-02-07
SUPREME COURT CASES.
yUuBER or IMPORTANT OPINIONS
HANDED DOWS.
Persecution for Pcrjury- city efPetersburg
Va. Todd-Fitch Against the Common
wealth and other Decisions.

drmed. opinion by Keith. president.
dent. -, -,,,,e,,
Todd. driving along a street. collded
win a vafer-pl.g projecting above the
ground more than foot whereby MS
vehicle vas overturned. ana he sustained
serious injury.
micro was 10 light or signal near the
vater-plug and IL was a dangerous op.
sfruction to the. street or highway, wen
known. to the d. = ndaut, which permitted
il TO remain, now outstanding us uahseI
Gus characcr. ana witnou. any care o'
nrecautiou for the public driving or rid
no .lorg me street These are the
.l,eeations of the declaration. which was
demurred 10 and the demurrer was prop
crly ovorruled.
Richmond Granite Company vs.. Bailey.
From, ,he Circuit Court OF HenricO. Al
ar,,ed Quiuion by Keith, president.
,rbis is an action for damages, and the
defence relied on Is contrlbutory negI-
yence and the negligence or felioW-
gervant Roth OF these contentious are
neeaiived by the evidence adduceu py
the plaintiff in error.
He'd: II is the duty OF the master u
furnish his employees with SAFE pace
IN which 10 do the wofh aasls"'" ''e'H'
~ f,,rnfsb suitable materials and ma
rpinerN- 10 fSAAlHSu n''
ME which will give them reasonable
nrotoction from injury: and TO guard
tbsn against such accidents and casual
lies as may be reasonably foreseen. Bar
lev ON Masters Liability, On. o.
AvIeft trustee. vs.. Walker From the
circuit Court OF King and Queen county.
Affirmed. Opinion by Keith president.
only a question OF sesaing IS decided
in this case. There were TWO hrms-
Walker * Co, and Walker, lamo q
Co. The latter made an assignment To
Aylett. ana he as assignee brought SUIT
against Walker & co. TWO OF the par
ties ~ and L.. were members OF both
firms. and as such plaintiss and defend
arts I'm the same suit. Plea: Ihat they
could not sue each other al law. OBJ
iected TO. but permitted by the Court and
appeal. .,,
Held: At common law, a person could
rot in the same action he both plaintiff
and defendant. The action here is on
an omen account. The assiguors right
ia bring an action upon IL Is wholly
depepdent upon section 1850 OF the Code.
This confcrs no right on the assignee
= hich tho assignor himself did not nave.
and as the asrigf.Jr had no such right II
fellows that the assignee acquired none.
Fitch VS. Commonwealth. From the
Hastings Court If stanton. Reversed.
Opinion. by Rely, Judge
This WIS a prosecution Tor perIur.
Held. l. 4 plea I'm abatement Oh the
ground that the offence. IL committed At
all was beyond the jurisdiction of the
court is inadmissible. That is matter
OF defence under the general issue ana
The burden on the Commonwealth 10
prove that the offence was committed
within the jurisdiction Of the court Is as
great as IL is 10 prove the offence itself.
Failure 10 prove either entities accused
10 acquiftal. Bishop or. Prac.. Vol. L. sec.
4lf. Hale. =. c., 29l; 20 Va, ~ All
crimes are local, and must be tried IN the
court having criminal jurisdiction over
the locality where committed. Though
the offence were committed. say. in the
County Court, it would have no jurisdic-
ton over the case, 81 the offence ,oc-
CURED outside Of its territorial iurisdic-
ton over crimes.
2 At common law. an indictment for
perjury must set forth the record OF The
cause so as TO show that the oath was
administered H. judicial proceeding and
by lawful authority, and that the TIL
bunal trying it had jurisdiction over n.
Jurisdiction must have been made 10 APP
pear from the facts stated in the indict-
mcnt or the jurisdiction have been spo-
cally av6rred This was changed by
statute i'm the time OF George The Second
and it was thereafter held by English
courts 30 bc sufficient 20 set forth the
So distance of the offence. the name Of the
court before whom the oath was taken
10 aver It's competent authority, and 10
falsify by proper averments the defend
ants assertions. our Legislature in 1916
enacted the English statute. in almost
identical words. Va. Code, section 1923
In adopting that statute We adopted its
Interpretation. This court seems not 10
have adverted to the statute In Picker
ing's case. Graft. 6-S, though decided
after its enactment and that decision
cannot now be followed.
3. While II is necessary that II shall
appear on the face OF the indictment that
tho false testimony was material 10 the
matter I'm issue. It IS not requisite 20
set forth all the circumstances which rem
der 1t material. Its mateIiality may be
expressly averred. or the facts may be
set cut 30 as TO show its materially.
T. IL is not necessary 10 have sW ORR
positively or absolutely i'm order to COM
nit perjury. but. a said BY Lord Mans
field, IN I Leach. 3Z5. "A man may be
indicted for perjury IN swearing that lac
believes a fact TO be true. which he
must know 10 be false" so, where a
man swore falsely that ne thought" so
and so. But ia all such cases. where one
swears a thing according as he thinks"
remembers" or believes 10 is proper
to negative the fact that he so thought"
SC.
.. il Is necessary i'm the charging part
Of the indictment that there be a posi-
tive averment Of the distinct fact that
the defendant swore falsely" it being
The province OF the indictors to state
facf- and leave legal differences and con-
illusions Of law to the Court: and for lack
Of this averment. the demurrer TO the
Indictment should have been sustained.
Judgment reversed. but without preju-
dice to renewing the prosecution OF All
other and proper indictment.
Stanley. &c. vs. Stanley. &c From
the Circuit Court OF Hanover. Affirmed
opinion by Harrison. Judge. Construc-
tion Of viii.
~ give and bequeath 10 VI. l.. s. the
interest that may accrue on one-fourth
part OF my money. bonds. &c during
the period of her natural life. and at her
death, this one-fourth part 10 her chill
dren. 20 be equally divided" When festa-
triX died. VI. l.. :. had three children.
but when this suit was brought she had
only one. the other two having died In
the interim.
the fourth past in the money bonds. &c.
and her children living a. the death Of
the testatrix took the remainder in the
in absolute estate share and
share alike. and upon the death OF any