Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-31
THE SUPREME COURT
Decisions Handed Down in Four
interesting Cases.
Not Criminal For Oyster Planters to
Dredgc on Private Grounds
Nelson ond Wife VS.. Maryland Life
Insurance Company.
Especial to virginian-Pllot.)

preme Court or Appeals to-day handed
down decisions in four cases. The case
of greatest Importance is that which
decides that It IS not criminal for any
oyster planter to dredge for oyster. on
his private ground.
The question comes I'D in the case
of Somers VS.. The Commonwealth. This
court holds, in an opinion by judge
Rely that dredging on such ground
ceases to be criminal with the passage
of the act of March 3. 1895.
The case came to the Supreme Court
from the County Court of Accomac.
The opinion says that the act of April
2S. 1887 (Acts extra session 1857, %. 11S)
and the act of March 3, ISIS (acts 1875.
p. 1850 amcndatory thereof. among
other things contained a provision
against dredging on private oyster
ground, even by the owner of the
planted oysters. prescribing n penalty
for each violation. Neither of the above
acts is affected By the adoption of the
Code of 1887. BY the act of March 8,
1858 (acts 1879. u. 7i5) the act of March
.. 1SSS. and section . lis of the Code are
amended and re-en2cted, and while the
provision against dredging Is retained
there is no penalty prescribed for its
violation.
The court holds that the later act was
intended 10 he q repeal OF all parts and
provisions of tho statutes amended
which were omitted from It, 1t is ncces-
sarily implied that what is left ont is
no longer in force. The Judgment of the
lower court is reversed. and the war
rant against the plaintiff in error for
dredging on his private ground is dis
missed.
FRAUD AND MISREPRESENTA-
Nelson and Wife V. Turner ct ais.
and Nelson and Wife V. Maryland Life
insurance Company ct ais, were two
cases decided together. They came up
from the Circuit Court of Fauuuier
county. Questions of alleged fraud and
Misrepresentation were involved
In September, 1885, T. J. Packwood
and his wife conveyed to Peter Wise
tract of land to hold as in fee pro-
vided he performed his covenants and
paid to Packwood, or to his wife If she
survived him. an annuity OF $1,000, pay
able semi-annually. that upon the
death of the grantors Wise convey the
land to Joseph II. Nelson. and to re,
convey the land to Packwood. or his
wife II she survived him. upon default
of Nelson continuing ten days in the
payment OF an installment of the nm
nuity. Wise simply held the property
In trust for Nelson. Nelson paid the
annuity until the death of Packard in
December, 1891. and then filed q bill
against his widow, Louisa Packard.
praying that the deed be set aside be-
cause of the fraud and misrepresenta-
ton OF Mrs. Packard as to her age He
asked that the parties be placed in
statu quo by crediting him with the
annuities paid and charging him with
rents and profits during his occupancy.
70 this Mrs. Packard answered, ask
Ing that Nelson's bill be treated as a
cross bill, denying the fraud. charging
mat Nelson had defaulted in payment
of the annuity, and asking the resets
sion of the contract, and the reconvey
ance of the land to her in accordance
with the terms OF the deed, and the
trust.
On the 10th of November. 1893 the
tauquier Circuit Court. by consent Of
the parties. entered n decree annulling
the contract and deed, and restoring
the parties to their original status by
recurring Nelson and his wife to re-
convey the land to Mrs. Packwood,
who was required to pay back all the
money paid her by Nelson in annuities,
subject to credit for rents and profits
during his occupancy of the land
The Maryland Insurance Company
inent or Judgments which Il had against
him. but it failed, as he no longer had
any interest in the land. The Supreme
Court says the case should not have
been continued on the docket
n further ground of error assigned
was that the proceeds of the sale of
land by ~. d. Payne, trustees. under
IN. I, deed given to secure n debt of
$1,000 to Lewis Porter were misaDplied
IN being appropriated to the payment
or that debt instead of 10 the satisfac-
ton of prior lien in favor of II. r.
Garden. commissioner 1t was con-
tended that the estates OF Payne and
Porter should be held to account for
the proceeds of the Eale. The opinion
contention. Whether or not the land
bought from a. d. Payne by O. NJ.
fliner will have to contribute to the
lien In favor of II. II. Garden cannot
be determined until the land primarily
bound for that lien Is sold
The decree OF the lower court Is re-
versed. and the cause remanded for
inc views EXPRESSED in the opinion.
Judge Harrison wrote the opinion.
DECLARATIONS IN AsSUMPsIT.
In the case OF Spencer's administra-
tor V. Field and Gray, the court eX-
PihiHS III octall the operations OF Sec
ton $3.50 OF the Code. which provides
that where certain declarations in as
sumpsit are certified by AFFIDAVIT, no
plea in bar shall be received in the
case, either at rules or in court, unless
the defendant file with his plea the
affidavit of himself or agent, that the
plaintiff is not entitled to n recovery or
is only entitled to n partial recovery.
This statute has been the subject OF
repeated adjudications, but the case in
question presented several new phases
The court holds that NOTWITHSTANDING