The times. [volume] (Richmond, Va.) 1890-1903, 1898-10-02
OPINIONS BY THE
SUPREME COURT
q ----
Marked the Close of the Term at
Stanton Last Week,
SOME VERY INTERESTING CASES
McClanahan Against Hickman At
frmed in an Opinion by Judge
NATURALIZATION OF Scire Fa-
cias-Judge Rely is Unwell.
SOME VERY INTERESTING CASES

handed down by the Supreme Court OF
Appeals. at stanton, on Thursday last
The Court adjourned for the term on
Friday. and will next meet in this city
tho first week in November.
Judge Rely is quite unwell at his home
in Richmond.
Judge Ca1dwor who missed the con-
GLIDING days OF the term in stanton on
account Of sickness, is at his home, in
Hanover. much improved IN health.
Judge Keith arrived here Friday and
Judges Buchanan and Harrison Will prob
ably remain at their homes TIN the No
vember terms begins. The opinions are'
RES ADJUDICA.
WCI.ANAHAN VS.. HOCKMAN. Affirm
ed. Opinion by Keith, y.
This Is a sequel to two eases. Hickman
and ais rs. Mechanism and ais, report
cd in 81 Va, 80. Tho result Of the decree
was to vest in the heirs at LAW OF Re
becca McClanah1n one undivided Aalf in
each of the two tracts of land In litis5-
ton Commissioners were appointed 10
make app0rt0nmcnt of the lands. ~ sub-
sequent proceedings in the lower court
who reported that the two tracts were
not susceptible of partition separately
without great injury o. the interests m-
vOIved They divided tho two tracts into
two equal parts. and determined by lot
that parcel one should be given the heirs
of Re1ecca McC.. and parcel two 10
/ Thomas Nice. ana those claiming under
| him. Their report was confirmed, and
appeal allowed.
Held. The DEGREES of this Court In these
causes ended an matters therein adJu-
/ dicatod arc final and irroverslDle, ant
can not be called in question on second
appeal I'm the cause. While the maternal
! heirs Of Rebacca McC. were not parties
| TO the former appeal the controversy was
| between Thomas Mcc. and the heirs OF
his wife. Rebecca. lie was party 20
each suit, ana can not now reopen the
DEGREES because certain persons. whose
rights were affected by them and Who
make no complaint o. the result, were
not parties before The court. Nor can ne
| be heard 10 dispute the heirship OF the
parties named iu the supplemented biu
and answer as the heirs az law upon tae
part of the mother Rebecca McC lie adj
mils that they are heirs at law in the
petition, iu response 10 which he was
made % party defendant 10 the amended
! bin, and can nor be heard to avoid the
consequences Of chat admission 10y calling
for proof in his answer of the fact ado
mitted.
q. His exception 10 the report Of paril-
ton alleging that certain persons therein
named. who have not been made parties,
were interested iu the subject matter as
tenants by the courtesy inchoafc OF con-
summate. is no. well taken because the
record does NOT disclose the existence OF
the conditions essential TO- that estate I'm
1 the parties named ft is uot necessary
under our statute or partition that the
commissioners should give notice. though
frequently done. The parties Interested
have their day in court when the report
|, SIS made for approval or rejection.
Q. The report is not defective for failure
10 place money value upon the lands or
any portion OF them. The court Will not
presume that partition of lhe respective
tracts could have been made separately.
but in the absence of evidence TO the
contrary Will presume the conclusions
reached and reported are true. and sul-
nclent TO warrant decree.
4. The objections of the apDeuces to
tha partition are sufficiently answered
ny what has been already said about The
report herein. All tho assumptions are
ln iaFor OF its correctness and it vas
properly approved 0y the Circuit Court
LIFE INSURANCE.
home Life Insurance Co.. VS. Short
Reversed Opinion Boy Harrison. j.
j contract VI insurance expressly de-
caring IhdL all answers contained u the
dppllcdlon, together with those in the
cc'ldialipl TO tho company medical ey-
anluer arc warranted 90 Doe true. full.
ana complete, whether written by the
insured or not and that they ARC offered
10 the company I'm consideration of the
contract.
Held The answers are warrantces, and st
Us of mo cons IuenCe whether thev are
material TO the risk or not a warranty
d. stipulation on the literal truth or ful-
hllinent Of which the validity OF the che
IRE contract depends. 10 81 the nature OF
condition precedent and must Toe strict
ly compiled with whether material 0r
not. fire ms Co. SIS. West. IS Va, $50;
ms Co. VS.. Morgan. 90 Va. 29O
But The plaintiff in error had asked and
obtained an instruction 30 the contrary,
and cannot Doe decentralization inviting
the court ~ commit am error hy asking for
an erroneous instruction 10 have The yer-
dict set aside for the error into which
the court was thus mlslDI Ifimbau o.
Fink ". Friend, 81 Va. 10.
The sole issue in the case was whether
the answers 20 questions i'm the auplica-
ton and I'm the declaration 10 the modi-
cal examiner were true FUN. and COM
plete. II true. plaintiff was entitled 60 re-
cover, n untrue verdict should have
been for defendant Upon this issue the
evidence was clear ana uncontrolled
that the answers made were not true.
Judgment reversed, verdict set aside. and
new trial.
LIMITATION OF sCIRE FACIAS.
Fadleys admir- VS. Williams admir-.
Reversed opinion by Buchanan. >.
Proceeding 90 revive judgment by sciro
faclas. and plea Of the statute. Period
between return day Of execution and SUI
ing out the scire iaciag was - years, 10
months and Is days. From this is 10 be
deducted the time during which the stat
ute did not run. Code. sec. 2l19. Acts
1SS7-'Ss %. 3lJ-'6. But IN ascertaining
that time the period Of one year from the
qualification Of the personal representa-
tive cannot be included II Is usual but
not necessary. when an action is brought
in the name of a. person for the benefit Of
another. 10 state the fact in the dcclara-
ton, or 10 endorse IL thereon or on the
writ Notice Is thus given the defendant
OF the rights of The beneficial plaintiff.
and the court is enabled 70 protect him
by its orders but the statement Is no
material part of he nleadines. tho cause
OF action is complete without IL for he Is
not party I'm the record. pates ". 81.
Clair. II Graft. -. C.aIksOn vs. DOG-
bridge. II Graft, a. 1910. Hays and
wife vs. NJ T. Association, 1G Va 92J,
Minors Institutes SOL Not being
party "a the record he does not come
within th2 provisions Of the Act.
The judgment was therefor barred un-