Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-07-11
snnreme Court of Appeals.


handed down in the Supreme Court OF
Appeals at Wythevllle Thursday:
Gary. Committee, VS.. Abingdon Publish
ing Company. Affirmed. Opinion by
Keith, p.
The first count in the declaration is
for damages upon contract; the second
count for damages for tort. Demurrer
to declaration and each count sustained.
with leave TO amend. Same as 10 amend
declaration, and on second amended de-
cIaration demurrer sustained and judg-
ment for defendant; and writ OF error.
Held: Causes Of action in tort cannot
be Joined with causes arising out OF con-
tract: thus assumpsit cannot be joined
with trover and conversion, nor debt with
trespass vi ct arms And, however per-
feet the counts may be, respectively, III
themselves the declaration Will De pdu
on general demurrer, though rot on mo-
ton in arrest Of judgment, or on a writ
of error, unless general demurrer mas
been entered and overruled.
Without the general demurrer the YER
dict and Judgment would be protected by
the statute of jeofails Minors lnsts.,
part l.. 5000; Perrill VS.. Brewis's Adj,
% Graft, 167.
demurrer, and its judgment should have
been final, without permitting plaintiff
TO amend OF this plaintiff cannot COM
plain. however, and judgment Is aflrined'
REPRESENTATION, BUR-
DEN.
Hartman VS.. sterns. Reversed. Opinion
by Keith. Z.
Eiectment to recover land, jury waived.
all matters Of law and fact submitted 10
the court, and judgment for plaintit.
Title deduced from a grant TO MOTIFS
in 1894 by the Governor Of Virginia, and
apparently a complete chain from the
commonwealth to defendant in error.
Exceptions allege defects, as follows:
Morris was adjudcated bankrupt IN
1901 in the United States District Court
for the Pennsylvania District, and pro-
ceedings are still OF record. Assgnees
in bankruptcy were selected, and all the
property Of Morris was conveyed TO them
in trust for his creditors. Nothing was
ever done by the assigneeS TO execute the
trust Morris died in 1901. In lS2o Henry
Morris filed his petition in the Dlstrlct
Court, alleging the bankruptcy proceed
ings against his father. the adjudication
of his bankruptcy, the conveyance TO the
assienees for benefit of creditors, the neg
lect Of the assets by both, and their con-
sequent waste without beneht 10 lhe
creditors; and praying that the coihinis-
sion in bankruptcy be vacated ana super
seded-which was done accordingly, anu
it is to be presumed, the order OF 'aca-
ton has been accepted and acquiesced III
by all concerned. The attempt here Is 10
impeach this decree or order In coiiate-
raj proceeding nearly seventy years after
ii was entered.
Held: /. The record of the proceedings
in bankruptcy, constituting. as they DO
one entire and connected suit from the
filing of the petition to the final settle
ment. was admissible evidence, ana III
the absence of anything to the contrary
justified the court In disregarding the au-
Indication of the bankruptcy OF motifs
so far as relied upon to defeat the tue
of the devisees under his Will. SahdusAy
VS. National Bank % Wall, 25s.
Objection is taken to deed because
il is a technical release, and the grantor
not appearing 10 have been In possess
sion. her deed could not pass title.
Held: AS TO the first objection, section
24S9 of the Code is conclusive against II.
2. 1t appears from the will OF Morris
that in 1904 the grantor was married
woman, and IL is conceded that the ueeu
of 1851 Is not sufficient TO convey the
lands of married woman; but the deed
recites that at its date grantor was
widow. While there arises no presump-
ton Of her husbands death from the
lapse Of time. yet, as 1t far exceeds his
expectation OF life. the quantum Of proof
to establish his death Is diminished. the
recital OF widowhood in the deed neces-
sariy implies the death of her husband:
Is made by one presumed to be acquaint-
ed with the facts: has remained unchal-
lenged by proof, though susceptible OF
easy contradiction. and comes within the
class OF declarations generally admitted
by the courts. Gaines VS.. Stiles, IA
Peters. s22; Deery. Lessee, VS.. Gary.
Wall. IS; Tuckerson vs.. Holmes. III U.
s.. 3Se.