The times. [volume] (Richmond, Va.) 1890-1903, 1897-03-26
SUPREME COURT CASES.
oEcrsrOyrNT HEC USE OFKIBLER
rs. rHE COMMONWEALTH.
Tn. Case Ordered Back for a New Trial.
Contributery Negligence In a Railway
Cane Substituted Trustee.

down lev the Supreme court OK Appeals
yesterday:
ches. Classified b. Association VS.. Cole
man sc Affirmed. Opinion by Judge
Cardweil.
A negro church was Indebted to j,
general contractor, in the sum OF si'o-o
and desired 10 borrow the amount from
the building association 70 pay same:
The association. under us charter couiu
make loans cLly TO white persons who
were members. IL was arranged be-
tween the church trustees, Tilley, Sec
retarv Of the association and J, that Til
Low should subscribe to an amount OF
stock sufficient to obtain u loan Of si,OO0
which the church trustees should secure
by a trust on the church property. The
loan was effected and the trust made
with Tilley rs trustee, ha"ins been re-
ouired TO release his right to docket
mechanics lien, and obtain a like re-
lease from his sub-contractors. j. cred
tied the trustees with amount OF loan
and took a deed on the church subordi-
nate 20 the deed securing the association
10 secure balance due him. 3d. Tilley be-
ing trustee in this deed Also
u. and j.. sub-contractors had a claim
against J. for work etc. on the church
and b. gave his partner an order on j.
for this claim. 1883. which j. accepted
10 be paid out OF money due him for
building the church. subsequently r. &
j. made a general assignment TO Cole
man d Sans (appelees jim trust for their
creditors. including this accepted order.
In August, 1895 the directors q. being
present at their meeting though In no
way connected with the association order
ed the payment of 5000 Of the $1,000 TO
be paid requiring release Of Il. & Us
right 10 docket mechanic lien. which re-
lease was made by Coleman in the pres
ence OF Tilley and j, and az the Office OF
the association, upon his receiving $500
OF the 5000 then paid j.. and assurances
from Tilley. secretary and j, that bal
ance due him would be paid in sixty days
out OF the remaining {lo0. In October.
1898, j. gave Coleman and Sans a writ
ten order for $j3953 on the association to
be charged 20 balance due him on
church, which was taken by Coleman
after several conversations with Tilley.
and with j.. I'm which he was led TO be-
leve that the balance would soon be paid
10 j., and that j. had right TO give the
order on this fund. Coleman also gave
the association written notice OF the or
der on the day no received il. and the
officers led him 10 believe that IT would
be paid out Of the balance due j. The
association did ray $40 10 Tilley (who
Immediately tuTrcd o. over TO j. and
thereafter refused any further payment
or the $1,000 loan. The decree below
was for execution against j.. Tilley and
the association for $50. and against J.
for S395 with costs, which is affirmed.
Held. IL is settled aw that an order
from the person 10 whom money is due on
the person under whose control it is. TO
pay Il 10 the )ayee. he drawee having
notice thereof. is a valid assignment in
Equity. Brooks VS.. Hatch, Leigh al.
s V. r. 4. Company vs.. Miller. 80 Va.
SCI: Switzer vs. Noffslnger, &c. 81 Va,
Els. Pom. Cd. sec, 30. Story's Eq., Jur..
secs. 10i3-fi. 1917.
ANNEXED TO FREEHOLD.
Haskin Wood Vulc. co. vs.. Cleveland
Shipbuilding Company Affirmed. opinion
by Judge Harrison.
Held. ]: Under Code Sec. 49, any lien
or incumbranco given by "A corporation on
its works or property for the purpose or
preferrine creditors, except u secure a
debt contracted or money borrowed at
the time OF the lien, ftc., cnuros 10 the
benefit Of all creditGs existing az its
date.
?. Where machinery or apparatus is
permanent in its character. and essen
tial TO the purposes for which a build
ing is occupied. IL must be regarded as
realty, and will pass with the building.
Whatever is essential to he purposes for
which the building Is used will be con-
sidered as q part thereof. though the con-
nection between them b. such that II
may be severed without physical or last
ing injury 10 either. Green Va. Phillips. &c
Graft. 752: Shelton vs.. Ficklln. 32 Graft,
~. Morotock Insurance Company vs..
Rodefer, % Va, 7i7
A MURDER CASE.
KILLER vs.. Commonwealth. Reversed.
Opinion by Judge Keith, I.
There was a verdict Of murder in the
first degree in the County Court o. Page.
Its judgment was affirmed by Circuit
Court and writ Of error was granted
here. The case IS reversed for wrong
instruction.
Held: l. II is not necessary. because
Of the statutes concerning murder. 10 al
ter the form Of indictments for murder
In any respect. nor TO charge specifically
such facts as would shew the offence TO
be murder in the first degree. Thompson
VS. Commonwealth, % Graft. go. Miller
VS. Commonwealth, Va Cases. 80;
Wicks vs.. Commonwealth 2 Va. Cases,
3S7: Livingstone vs.. Commonwealth, II
Graft. SOC.
.. The term at which an indictment is
found is not counted as one OF the four
terms Of the statute (Sec. i0i7. amended,
Acts 1880, which. if permitted to eapse
without bringing the prisoner 10 trial,
unless. etc. entitle him TO he discharged
forever. Bell VS.. Commonwealth. Z Graft.
&c; same. S Graft. 600; Glover vs.. COM
monwealth. Sc Va. Ss7; Davis vs.. COM
monwealth, 50 Va. lo3.
3. There are rights which a pr oner
can waive neither by counsel nor in per-
son, as there are rights which may be
waived by either such as the mere nci-
dents of the trial; the right TO be repre-
scented by counsel carries with it the au-
thority Of counsel to represent the 81 SON.
err and to bind him with respect 70 ihese
Incidents. The agreement Of his counsel
to a continuance. and the absence q the
attorney for the Commonwealth are not
held 70 be insufficient causes for a con-
tinuance. there being nothing in the iec-
ord TO show that tho prisoner was pre-
JUDGED by it; such idea being neg lived
by the fact that the continuance WIS not
resisted but assented 10 by his counsel
4. 4 case may be properly continued IN
the absence OF the prisoner before his
arraicnment Boswelrs case. Graft, COO
AS 10 continuance in his absence. after
arraisnment. no opinion is expires ed. as
in this case prisoner was arraignad and
tried at the same term See Benton vs.
Commonwealth. 81 Va. 19l
5. The proper practise as TO bills OF
exceptions Is stated in y. & w Railroad
Company VS.. Shaft. % Va, g. and to
that practice counsel must conform. sc
that the labor and responsibility OF