The times. [volume] (Richmond, Va.) 1890-1903, 1897-01-08
SUPREME COURT CASES.
DIGEST or OPINIONS MINDED
DOM YISTLEDiI.
4 Case Involving the Homcstead-The
&. and %. Railroad Case From Henrico
Decided in Favor of the Railroad.

fNnEf 10 w ~ W. AA'N HhA'"lA'n w. f'
him harmless as TO certain notes. - ha"
10 pay the notes.
treld. There being no retention by b.
81 tho title ~ lis interest in the property
sold. il passed Immediately 90 his Nen-
dess G Minors Inst, ut. l., 253, Il Amer.
and Eng. Ency., 1872 An averment IN the
declaration ID that effect was unnecessary,
and tho demurrer thereto was properly
overruled.
. The writing obligatory binding the
vordees TO save b.. harmless from liability
on certain notes. executions. issued on
JUDGEMENTS recovered on the notes, ac-
knovledcing payment Of them By Burton
and assignment OF the same by the own
ers of the debts to him, constitute sum
cionf evidence 10 sustain the Judf meht
of the court below. and the objection
tn the admissibility of evidence eomes
too late In the appellate court.
DEMURRER TO EVIDENCE.
Chudrcss' administrative vs.. Chesa-
peako and Ohio Railway Company. Az
nrmed. opinion by Judge Keith presi-
denO.
Demurrer 20 evidence I'm the court be-
low and Judgment for the company. All
the assignments Of error are overruied.
Tobnson's administratriN vs.. Chesapeake
and Ohio Railway Company. 81 Va, III.
The question. HAS the railroad ever
had any notice OF the risk run at this
narticular crossing?" was ruled out by
the court below and exceptions taken.
Inasmuch as the answer made. or when
would have been made, ii permitted Is
not Given I'm the record. this Court cannot
! determine its relevancy. admissibility, or
value. and the exception must. therefore,
be ovorruled. Union Central Life Insur-
ance Company vs.. Pollard, 90 Va.
STATUTE OF LIMITATIONS.
Mccartney VS.. the Potomac Electric
Company. Affirmed. opinion 10y Judge
Hiclcy.
Held: Tho defence Of tho statute Of limi-
tatlons is generally a personal privilege,
and may be asserted or waived az de-
fodants's election. Clayton q Tyson vs..
Henley. 81 Graft. y; Smith vs.. Hutchin-
son. is Va. $50. Where. however, a
court OF equity has undertaken 20 ad-
minister and distribute the assets OF a
debtor. an exception 10 the general rule Is
allowed. and any creditor Interested IN
the fund is permitted TO interpose tho
defence. Story's Eg. Jur, Sec. 5i5, Bar
tons en-. prac., J.. Vol, 50, Tazcwell s.
executor VS.. Whites administrator
10 Graft. 3ij, woodward vs.. Polslcg, ii
W. Va, 2lL.
o. The question is suggested, but not
decided. whether IL IS al all necessary
10 plead the special statute, or whether
the time beyond which no suit can De
brought % enforce the lien is not "a hInl-
tation 10 the right OF lien. and not OF
the remedy alone. In the latter view 1t
would be necessary TO allegc and prove
that the suit was brought within six
months from the time when the whole
amount covered by the lien became pay
able. l3. Am. and Eng. Ency, bs5, The
Harrisonburl. ll9 4. 3, 100; Taylor vs..
Coal and Iron Company, "A y. c., 80.
ATTACHMENT.
Sims VS.. Tyrer. &c. Affirmed. Opinion
Dy Judge Kioiy.
Held. 80 afllayit. or a defective one,
is ground for "a motion 10 abate an at
tachmcnt. but no such motion having
been made below. The case having been
defended on It's merits, the motion can~
not be made in this court. In this case,
though such motion had been made in
the court below. DO could not have pre-
vailed. The bin contains all the aver
ments necessary under the statute, and
was sworn 10 and Med az The institution
OF the suit. before thc attachment was IS
sued. The affidavit adopts the ban as part
OF the affidavit. which is compliance with
| the law lArllNl a AflAkliaA h|H -NANA'tAf ~
Graft. Anderson rs. Johnson, &c, 81
Graft, 5JS.
CONSTRUCTION OF A WILL.
Young vs.. Easley &c. Affirmed. Opin-
ion by Judge Cardwell.
II deposit in the hands of my exccu-
tors, q q for the benefit of my daush-
Ter. Frances. during her natural me-,
three thousand dollars. 10 Dee in-
vested in State bonds or United States
bonds. or solvent bank stock, AS my oN-
ecutors may deem best; and the annual
interest arising from said funds or
stocks o. 81 d TO he paid 10 her for her
support. and after her death Co.
the heirs OF her body. if any; otherwise,
TO the balance OF my children. Ihe
tcstator owned considerable property,
real and personal. all OF which. except
the moneycd estate, Doe devised 10 MS
widow during her natural life.
The court below held that tho accumu-
lated income i'm the hands OF the exocu-
tor, and the income thereafter 90 accrue
on the investments was liable 10 tine
payment of debts NJ said Frances, and
that opinion is sustained.
Held: The word of the will that the
income IS 10 be paid FOR her support
serve only 10 show the motive for the
gift. and cannot De- construed as aiiiN-
ing conditions and limitations 10 Do.
Rhett and wife IS. Mason's executor.
is Graft. 81, Balm N Bro. VS.. BUNS adj
ministrator, &c. Va" 81.
PAYING COSTS OF NEW TRIAL.
Haunt VS.. Tebauit. Reversed. Opin-
ion by Judge Buchanan.
Held: Except in case OF misconduct
Of the opposite party, the statute pro-
vides that tho party obtaining 70 new
trial shall. previous thereto. pay the
costs OF the former trial, and that. faii-
ing 10 do so az OF before the next term.
the Court may. upon motion of the OPP
posite part. set aside the order granting
il. and give judgment on the verdict.
or award execution Tor costs. as IL may
seem best. Va. code. Sec. 3ji2. The
object Of the former provision Is 10 make
payment Of costs 3D. condition precedent
to the new trial. unless waived hy the
opposite party. Central Land Co. W.
O%benchain. % Va. 10. of the latter pro-
vision. to secure their prompt payment
II not paid at or before the next term
tho risk is run Of having the order for
a new trial rescindcd. or am execution for
costs awarded. But if paid or rendered
before the order has been set aside. or
execution awarded, The object of the lat
ter provision has been accomplished. and
4 the conditions under which the Court
might set aside the order. &c. has
ceased 10 exist.
HOMESTEAD.
Mahoney W. James &c. Amended ana