The times. [volume] (Richmond, Va.) 1890-1903, 1898-06-26
Number Of Decisions Handed Down
At WytheyiIIe Thursday.
'HEQUESTl0N OF LAW INVOLVED.
Among Them are Criminal Law; In
tcrlocutory Decree Priorities: Lines;
Notice Under Registry Laws Usury;
Lease nj VIII and other Cases.


Opinion by Keith, L.
- The Bank of wythoville, having a
..,ju igment against Moore and others filed
~,Ats bill 20 enforce the lien on Moore's
Inreal estate. Account Of liens. and their
" pTiorities. September 1851. and from date
: of this decree the suit became creditors
DILL Report OF liens by commissioner,
concluding ito this sum must also be
added back taxes on Moore's land
amounting 10 $4gl.10"
There were three exceptions to the
report, the second Of which was with
drawn. The FIRST. because the report fail
ed 10 show for what years the back
taxes were due, the third because the
tax tickets were barred by statute.
stipulation between counsel was had 10
the erect mat the taxes were for the
years lSs4- S. and Sc. and that they had
never been returned delinquent. This
stipulation was dated January -, 1888,
and the same day, without other evil
dence or report. all exceptions were over
ruled. and a decree entered that Repass
was entitled 10 be subrogated TO the
rights OF the state and county in the
Instter of the taxes. and that ne recover
= Nc same OF Moore with interest from the
18TH day OF December of each year Til
paid and remanding the cause for
further report
Moore fled a petition. February term.
1895, for a review OF the decree which AL
lowed the back taxes as a lien. alleging
lack OF evidence wherein 10 base the de-
cree. that there was nothing 20 show
amount Of taxes paid by Repass, or that
ne was entitled 70 the subrogation; nut
on the contrary that the taxes were not
liens as more than FIVE years had elapsed
since they became liens.
Repass demurred 20 petition, but court
allowed a renearing, and decided that
Repass was not enutled TO the subroga-
ton, and set aside the former decree TO
that extent
Repass appealed assigning an error
that the decree Of January 1898, was
final dgtree. and more than year having
elapsed before petition filed, 1t was 100
late even though petition treated as
bIl OF reviews.
Held j. The decree was interlocutory
and not final. 4 decree for sale under a
mortgage or otherwise IS interlocutory
because the sale is not cOnsumuated un-
N approved by the court 2. Bart. Chy.
Prac. sec. 238. Where further action IS
necessary TO give completely the RELIEF
Contemplated by the court, the decree
upon Which the question arises is not
final but interlocutory. Cooke VS. Gilpln'
Il Rob. Is; Rawlings VS.. RAWLINGS 90 va
&c.
4 2. There Is nothing upon the face OF
.,the report which discloses the interest OF
ciRepass in the back taxes; nothing 10
Sshow ne had paid them or done any act
Eentitling him 10 be subrogated 10 the
crights OF the State or county. kepass
: never appears ia the record unth the de-
cree OF January 1893. There was no error
then in setting aside that decree but the
court should have directed the commls-
nj an 10 q Ia
81 Repass to The lien asserted by MN. III
mas not barred. The Commonwealth mas
a lien for taxes for five years from the
I5th of December OF the year for when
they are due-in this case from December
Is. 1884. The decree which converted TINS
suit inta a len creditors suit, was enter
ed September 1881, less than hve years
after the tax bills became due. It's erect
WAS TO suspend the statute as TO all lleh
creditors Of defendant ! Barton Ch!'
Prac. sec. &C. and cases cited.
n Repass had I'm fact paid the taxes
under circumstances emitting him TO sub
rogation. It would be gross injustice 10
DENY him the opportunity to make PROOF
of his claim. lie made case which sat
isaed the court at its January term 1851
and should not have been summary as
missed without opportunity TO make good
1is demand. The court was right IN set
ling aside the decree Of January 1893
mt should have left Repass where ne
stood. before that decree was entered.
Tn Tde latter respect 1t was erroneous
and must be reversed.
CRIMINAL LAW.
Jackson VS. Commonwealth. Reversed.
Opinion by Keith, Z.
Indictment for maliciously and feloni-
ously wounding with intent to MAIN as
fgure and kill Demurrer TO Indictment
over-ruled
Held II Is unnecessary that indict-
rnent state the weapon with which as
sault was made. Canada VS.. Com. Y
Graft. 500.
Witness excluded from courtroom on
motion OF Commonwealth. but at request
Of assistant prosecutor, Ratlin. on whom
she assault was made was permitted to
F, remain in court during the trial.
Held Trial courts must be allowed a
discretion In such matters. There miShl
be circumstances under which il would
be improper for one witness 10 remain
while others we're excluded, but 10 con-
sfituta ground for reversal. It must APP
pear that the discretion was Improperly
exercised. and that IL operated 10 the in
Jury Of the prisoner
Prisoner was asked II he was animated
by malice in cutting of the water from
Ratlin's premises and answered; ! did
not through malice I thought / had
right 20 cut OF his water" Common
wealth moved TO exclude both question
end answer.
Held The question Is leading, and had
a. been objected 70 at the proper time on
that account. should have been excluded;
but Il was too late 10 object for that
cause after answer given "A party,
when examined as a witness, may be
asked as 70 his own motives or inten-
lions when these are material" Wharton
on Grim. Ev.. sec. 4Si. 8 Rice on Ev.,
secs 57l Hs, Kerains VS.. People, go \.
Y. 22S: McKown ". Hunter, 30 ~ Y. 625'
People vs.. Baker. 9G ~ Y. $40. This as
blgnmont is well taken.
IL was not error 20 permit the prose-
cutting attorney 20 retire. and allow other
attorneys employed by the prosecutor TO
conduct the case. and open and conclude
the argument. IL was matter within
the discretion OF the court. and cannot be
reviewed unless shown 10 Se Improperly
exercised and that accused was preju-
diced thereby.
There Is evidence IN the record tending
20 sustain the theories both Of the pros
ecution and the defence. and the court
should have given. when requested In
structlons covering both aspects OF the
case. The court erred I'm refusing 10 give
fhe tenth instruction asked by the de-
1endant. to the effect that II the defen-
dant was assaulted while lawfully cut
ting OF the water. and reasonably appre-
hendee the asssilant would do him bodi-
~ harm then he had the right 10 repel