Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-06-19
OUR HIGHEST COURT.
OPINIONS HANDED DOWN AT
wYTHEvILLE ON THURSDAY.
SEVERAL INTERESTING CASES
In the Virginia Supreme Court Of
Appeals-Pleading-y Fraud-spe-
cinc Perfcrmance--Bond Too Late
Condition Subsequent.
INTERESTING CASE

The following opinions were handed
down in the Supreme Court Of Appeals
at Wythevills Thursday:
Simons's Administrator We. Southern
Railway Company. Reversed. Opinion
by Keith. p:
Simons's and the two Rutledges, after
travelling forty miles during the day in
an open one-horse vehicle, undertook to
cross company's track after dark. They
had no particular knowledge Of the road
but knew they were approaching the
crossing and drove cautiously and with
sharp lookout. The night was very
dark. AS they got on the track train
struck the vehicle. killed Simons. broke
w. Rutledge's leg, and ]. Rutledge es-
capped by leaping across the track In front
OF the engine Demurrer TO evidence and
judgment for company.
Held: The statute (Acts. 1894, D.,
SD requires a bell and steam whistle on
every locomotive railroad engine, which
whistle shall be twice sharply sounded
not less than 800 yards from highway
crossing, and imposes liability for dam
ages sustained by any person by reason
of neglect to do So This duty. II Is con-
coded, was not performed. and the COM
pany can only escape liability by show
ing that the damages were not sustained
by reason of such neglect The fact that
loud long blast had been sounded-the
station signal-4S4 yards from the cross
ing, cannot be said to be a sufhcient sub
stitute for the statutory signal required.
See Atlantic and u. X. Co. VS.. Rieger,
IS Va. Granting that the station signal
was sounded, yet the train approached
the crossing under the imputation Of neg
lisence, in failing TO obey the statute
and negligence of the company having
been shown, plaintiff was entitled to re-
cover unless guilty of contributory neg
ligence The evidence fails to disclose
contributory negligence. 1t Is at least
certain that II shows no such conduct on
his part as TO warrant the decision as
matter of law that he was himself the
author of the injury.
AS to the subject Of positive and mega
tive testimony see So. Rwy. CO. VS..
bryant's Admir-, 50 Va.
PLEADING.
Lewis, Administrator, VS.. Hicks. AZ
firmed. Opinion by Keith, p.
Lewis, administrator, brought suit upon
account,
AFFIDAVIT, was duly served. At the en-
| suing term an order was entered under
| the caption, IN. c. Lewis VS.. d. S.
Hicks" in which the plea Of limitations
was noted. land issue being Joined upon
| this plea, on motion of the plaintiff, this
| case Is continued" At the next term
Lewis, administrator, moved for tudg-
ment, for that there was no entry OF
record showing any plea filed or issue
| Joined at the last term. His motion was
| overruled, the Clerk testifying that there
was no other case on the common law
docket in which Lewis was plaintiff and
Hicks defendant, and that he had omit
ted the words administrator" etc., in
advertently.
Subsequently he moved the Court 70
direct a Judgment to be entered UP at
| rules, which was overruled, and then
asked leave to withdraw his joinder on
the plea Of the statute; also denied, and
thereupon jury found for defendant on
the issue. Motions TO set aside and for
judgment Notwithstanding, oveTruled, and
exceptions.
Held: Where verified account filed with
declaration and copy served with writ an
Office judgment follows, unless during
term a plea in bar, also verified, Is filed.
which judgment becomes final at expira-
|
Informally, the Clerk falling to put IL in
proper form. Objection in time would
have made it the duty of the Court to
reject IT, or require IT in writing in pro-
per form and verified. The plaintiff,
| however, merely took issue on the plea;
! his purpose, as he afterwards AYERS, was
| misapprehended by the Clerk, he intend
| ing 10 demur. The demurrer would not
have brought the plea TO the attention OF
the Court, any more than did the Joinder,
| and required its rejection for lack OF an
| affidavit. The affidavit Is no moro a part
| Of the plea than the account Is Of the
declaration. The affidavit required with
the plea is manifestly for plaintiffs bene-
| At. and may be waived by him, either
| expressly or by implication, and his con-
duct may estop him from taking adyan-
tage of it, When he took issue OF fact
or law upon the plea, however informal.
the plea was rightly considered as fled,
the office Judgment set aside, and the
case properly on the issue docket.
The plaintiff is preoluded by his con-
duct from availing himself Of such ir-
Irregularities in practice as are disclosed
In the record.
NO FRAUD.
Merchants Bank of Danville vs. Belt.
1
Belt was indebted to another Danville
bank $,4OO. and gave lien on his pro-
perty, with the understanding 1t should
not be recorded unless the debt appeared
! endangered. This bank finally declined q
renewal of the note. and determined to
record the deed. Negotiations led to the
| surrender of the unrecorded deed, and
! an absolute deed, by which Belts pro-
/ perty was sold and conveyed TO the bank
! in settlement Of the note. and certain
rents due and to become due upon his
storehouse The plaintiff here assailed
this arrangement-that making the loan
| and accepting a security not recorded
Belt was enabled TO enjoy false credit
Held: There is no evidence that the
latter bank knew OF Belts indeotedness
| IN nlaintifY. nor that IL was actuated by
anv motive 10 hinder or delay appellant
| or any of Belts creditors; even though
| ~ had known of It and had made the