The times. [volume] (Richmond, Va.) 1890-1903, 1898-03-18

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settled bv com. VS.. Kelly, Graft, ST.
considered In Brnton We. City or Ian
VILE 80. Va. and cases here elted.
The acts an Queen AIMS ard me a.
most IDENTICAL act of Octo. 81 i'sl' uiu no.
establish as public highways al ioaus
In use az the date OF thel' =. ~.
can a dedication or acceptance De pre-.
AIMED becau.a records have been iost
or des.rovsd the effect of such loss be nS
10 change the mode Of proof as 70 tneiF
conten,s and 10 admit secondary eW.
dsnce in tbs place OF exemplincation OF
the records. ,.,,,
8 Easements. THE use aud enJoymsni
OF whs' "a elsir-eN NV -
verse under claim OF right exclusive
continuous. uninterrupted az : " ~
j,-o-iadce ord aonuissence NJ the owner
Of the estate" wafhburr On easements
etc 1n There being no evidence whH'-
ever that there WAS ever anv en'oVm'h'
70 -'yh. ~ wqv over ire lann ID ou.r
ton nv TIE srre''ec erd those u"''er
whom, he claimed Fdver'. ~ Try "'ns
20 enrsuan, or those under ~Nom NJ
c,,'r.ed ,he cose Is reversed in this par
ticular
c,,r =, r,rrhhrrz We. wallace. Re-
ve-ssd onlnlon by JuTVe Fd'h persi-
derD yudcs Harrison d'Ssentine.
In Fe,r,,rrv 1895. Wallace slipped and
~ hrso1inc her arm. The street was
covered v,l,h Ice forr'ef from water fr17'
the guttc- Of and adjacent house
bid four or Eve days before this seen thls
ice on tn, sidewalk ana ha1 aVpiu'u
m, 4, ha1 become concealed by recent
fan Of snow. and seeing nothing TO warn
her of danger. and supposins the Walk
80 10 eafs sht. walked on at her usual
gait md tho fall ensued. Verdict Tor
81 GA and Urn of error. The contention
was mainly over the instructions. Inc
decision Is reversed upon clause IN me
third inSfr,,c.is r-that previously know
ing ~ the defect and assuming. az she
Rad a right to do. that the city hah re.
n,oved the same and sufficient 'i~1e had
elapsed for its removal ana peneVinS that
the city had performed its du'v she
would no, lie guilty Of such contrlbutory
negligence BY going on tho defect hid
den nv the recent snow as would bar her
recovery.
He'd: This accumulation OF ice had
been on tho street for several days was
known to Wallace and she had avoided
n on former occa sions. The weather
meantime. had been cold, and II
was for the jury TO say mot
for the CourO. taking all these
facts into consideration. whnther
she had a right TO assume that the ~
niQ removed inc pfi1NN Va W. '+r7 "a $3.50
In it's failure 20 do so.
Judge Harrison. dissenting: Traveller
on n street mn, assume that II is safe
need not anticipate darger and must ex-
ercisa such ordinary and reasonable care
az 10 avoid that is open and obvious.
Osborne "a. Pulaski City Lighting and
Water COMPANY, q Southeastern Re
ports. SIP. The instructions, while
ayykUardly expressed. sufficiently Inform
cd the Jury as 10 travellers duty and I'M
der them, taken together. the right 70
recover was made TO depend on jury
belief from the evidence that enough time
had elapsed for the city 20 remove the
Ice and 70 Justify travellers assumption
that sidewalk was safe. Under the facts
proved a different verdict could not have
been rightly found and, therefore, the
CITY was not prejuclced even though In
structions were defective. Richmond
Railway Company VS.. Cartwright. "
Virginia. 63i
TAX ON NATIONAL BANK So
Burrows vs. Smith. treasurer. Affirm
ed Opinion by Judge Harrison.
The question Is whether debtor own
ing national bank stocks IS entiiled 10
have his Indebtedness deducted from the
value OF such stock before II is ass ssel
for taxation.
Heidi II Is clear that no such right
exists. Bank stock Is property 20 be as
sessed at It's value like all other pro-
rcrty-n0t nm evidence OF debt due the
owner OF 1t within the meaning q tho
act. (Acts $3.50 page 1870.
2 The act is not in conflict with Sec
ton J2i9 OF Revised Statues, Uni ed
States. the object OF which IS 10 prevfn,
discrimination by States against national
banks IN the matter OF taxation. IL does
4,,tr ~InA IL sfTfTt-
nate against national banks. Under Il
taxpayers cannot deduct their indebted
ness from the value OF :heir investments
In any kind of stock. banking or ether
wise but only from bonds, notes and
other evidences Of debt. the object being
to prevent double taxation.
PLEADINGS.
Chewing g. Sands VS.. wilkinson. Re-
versed. Opinion by Judge Harrison.
Action OF covenant on paper under
seal setting out that Pollard. trustee for
Adams. with the consent OF Chewing &
Sands, had paid Wilkinson $500 which
sum williamson applied as a credit on
n $ claim against Adams second lien
on property sold by Chewing * Sands.
the proceeds OF that sale having been
applied otherwise than 10 the satisfaction
of the first lien held by them-and bound
himself TO make good any balance, not
exceeding sS00-that may be due on the
first lien after the exhaustion OF all the
securities ard the sale Of all the property
OF said Adams, which Chewing IL Sands
might have as security for payment OF
their claim The declare ton AYERS a bal
ance Of 81. 2s6 due on the first lien after
the exhaustion OF these securities and
the property Defendant plead'd con
ditions performed" and covenants not
broken" All of his evidence went to
show that before the paper sued on was
executed. plaiatffs had rece we'd from
the sale of the Adams property 500
which had not been credited on their
prior lien. bnt Improperly applied 10
another debt. and that II properly APP
FED defendant would owe nothing. The
lower court practically so he d Motion
10 set aside Judgment on the ground that
urder the pleadinPs defendant could not
show ne was entitled to the credit. and
that the evidence did not show ne was
so entitled.
Held. The covenant Is Affirmative. ana
the plea OF conditions performed was
prorer: there being no neSat We cove
nart. the pea covenants not broken
was had Covenants performed can
only be supported BY evidence that de-
fenear, has performed his covenant. not
thu his own Performance was excused
hy the act Of the plaintiff or any o'hHr.
Rarton Law Prac.. Sec. l2o; Fairt1N
vs. Lewis 2 Rand. 20; Scroggs VS.. HILL
81 W. Va. 1os to.
The evidence does not sustain the plea.
and defe-dart should have Med spe-
ciai plea setting forth the fact relieo on.