Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-10-02

= OO lODL II Ia AS~~
NOT necessary. under our statute OF par
tition. that the commissioners sn9u'u ssso
notice. though frequently done. Inc paa
ties Interested have their day IN court.
when the report is made 1or appio'ai "a
rejection. - x.,,urs
to place a money value upon ,ns 'a ,yi,l
or any portion OF them. Inc Soule W
not presume that partition Oh tns sass-
tive tracts could have peen in ,s,dence 70
rately. but in the absence OF evioence ~
the contrary, will presume tnat conoiu sa
sions reached and reported are true' anu
sufficient TO warrant q decree, % .ha
4. The objections Of the appeiiees 20 ' nv,
partition are sufiicienty IA ahont the
report herein. All the presump.ions az
in favor OF its correctness, ana n o wr'
properly approved by the circuit Court
LIFE INSURANCE..
Home Life Insurance Company VS.. Sibert.
Reversed. Opinion by Harrison, j..
A contract OF insurance express s,
claring that all answers contained IN tne
application, together with those In tne
declaration to the company's medlcai
examiner, are warranted 70 De true, luIi'
and complete, whether written py the Ia,
sured or not. and that tney are ot,eIso
to the company in consideration or the
Held: The answers are warranties, and
Il Is of no consequence whether they are
material to the risk or not. a warranty
Is a stipulation on the literal truth or
fulflment of which the validity OF the
entire contract depends. II Is In the ma
ture of a condition precedent, and must
be strictly complied with, whether ma
terial or not. Fire Insurance Company
VS.. West, &c Va, $40; Insurance Company
VS.. Morgan, 30 Va, go.
But the plaintiff in error had asked and
obtained an instruction TO the contrary,
and cannot be permitted, after inviting
the court to commit an error by asking
for an erroneous instruction, TO nave the
verdict set aside for the error into which
the court was thus misled. himoail q
Fink VS.. Friend, 90 Va, 125.
The sole issue in the case was whether
the answers TO questions in the appll-
cation and in the declaration to the medi-
cal examiner were true, full, and COM
plete. If true, plaintiff was entitled to
recover; If untrue, verdict should have
been for defendant. Upon this issue the
evidence was clear and uncontradicted
that the answers made were not true:
Judgment reversed, verdict set aside, and
new trial.
LIMITATION OF SCIRE FACIAS.
Fadely's Administrator VS.. Wtlliams's
Administrator. Reversed. Opinion by
Buchanan, j.
Proceeding to revive judgment by scire
facias and plea Of the statute. Period
between return day of execution and
suing out the scire facias was % years,
10 months and Is days. From this is TO
be deducted the time during which the
statute did not run. Code, section Zig,
Acts 1SS7-SS, page 1855. But in ascertain
ing that time the period of one year from
the qualification of the personal represen-
tative cannot be included. 1t Is usual,
but not necessary, when an action is
brought in the name Of person for the
benefit of another, to state the fact In
the declaration, or to endorse II thereon,
or on the writ Notice is thus given the
defendant of the rights of the beneficial
plaintiff, and the court is enabled to pro-
tect him by it's orders. But the state
ment is no material part of the pleadingsi
the cause of action is complete without
IT, for he is not party in the record.
Pater VS.. st. Clair IL Graft, p; Clark
son VS.. Doddridge, IA Graft, AZ, 45-6; Hays
and Wife VS.. NJ. - Association. 70 Va.
225: Minors Institu, IS, SOL. Not being
a party TO the record, he does not come
within the provisions of the act.
The judgment was therefore barred I'M
less there be omitted, in computing time
under section 35T, the time which elapsed
between January |, 1869. and March %.
ISL 1t is conceded that a scire facias
is not within the letter of that section,
and a careful examination of 1t and its
history will show that the Legislature
had no such intent. Section IL, chapter
1S6 of the Codes Of 1873 and 1860 was
amended by Acts 1S69'70, page $50. and the
latter by Acts 1S70-'1, page BAL. which
latter. with an immaterial omission and
an impertnent addition, constitutes sec
ton 3577 of the Code. II these several
Legislatures or the revisors (who did their
work so admirably had intended that the
same period should be omitted from COM
putation as to writs Of scire facas as on
writs of fieri facias, they would have
used some language TO indicate such in
tent. Not only is there nothing to in
dictate such intention, but each act shows
there was no such intention.
Held: The provision applies only to
writs Of fieri facias. and the judgment
was barred when the scire facias was
sued out.
The court adjourned for the term last
Friday, and will next meet in this city
the first week in November.
Judge Rely is quite unwell at his home
In Richmond.
Judge Cardwell, who missed the con-
GLIDING days OF the term in Staunton. 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 till the No
vember term begins.