The times. [volume] (Richmond, Va.) 1890-1903, 1900-07-08
111ted from his lack of diligence

suited from his lack of diligence.
In the case a bar, Marshall was not dill
gent in collecting the bond assigned TO
him by Carper, and the latter claims that
this occasioned a loss. An enquiry should
haze been directed TO see whether any loss
was sustained, and the cause is reversed
and remanded to the Circuit Court with
instructions to direct such an enquiry.
Andrews VS.. Roanoke Building Assocla-
ton and Investment Company. Hust-
ings Court Of Roanoke. Opinion by
Judge Keith. Reversed.
This opinion determines the status OK
withdrawing member of a building asso-
citation, which has not before been pre-
scented in this State. It holds that
withdrawing member Is not IN all respects
a creditor, for if that were so he might
get Judgment, issue execution, acquire
lien upon the real estate and subject the
personally of the association to the pre-
iuhice of other creditors. He is no longer
of the association so far as his rights TO
participate in the management and control
Of the concern. He has no right or acuon
against the company until tuno accfuas
out of which, in accordance with the
charter and bylaws of the company, his
debt should be paid. By so much as
he falls short of being clothed with the
rights of O. creditor by so much there
must remain In him the residuum or ms
rights as member. and he may, where ne
is entitled thereto, seek a remedy in the
capacity as a Stockhoicer.
Eubank vs.. Boughton. Circuit Court of
King and Queen County. Opinion by
Judge Keith. Reversed.
Upon the petition of George Boughton
the Circuit Court of King and Queen
county granted a nandanus compelling
the district school trustees for Stevens
VILE District. in said county, TO receive his
Sn- n tie ri
dren. The refusal of the trustees so to
receive, him was based upon the ground
that he was a negro, and that TO permit
him to attend the school for white chill
dren would not only materially interfere
with its prosperity and efficiency, out
would, in their judgment. destroy It That
he was a negro was denied by Boughton
AMI upon the issue thus made the Circuit
Court held with HIM and granted the
|! writ of mandamus. This judgment the
school trustees brought to this court upon
r writ of error
The opinion holds that section 1882 OF
the Code provides that white and colored
persons shall be taught in separate schools
under the same general regulations as
to management, usefulness, and efficiency,
and that section 1866 of the Code makes
It the duty Of the school trustees TO
explain and enforce the school laws and
regula tons, one of which is to determine
to which race d CnilO DeioilSS tt4I'i -
assign it to the proper school. This duty
calls for the exercise of judicial discretion
which cannot be controlled by mandamus.
Further, right of appeal to the county
Superintendent of schools Is given by sec
ton 1899 of tho Code, and for this reason
too a writ of mandamus should have been
refused.
Mitchell vs. Witt, Judge. Mandamus de-
MED. Opinion by Cardwell. T.
.sr
petition in tha Hastings Court Of Richmond
alleging that the election for aldermen
and common council from Jackson ward
in said city, held on the oath day OF May,
1908. was an undue and fraudulent election
and resulted in certain parties being GER
titled as elected VINO were not duly cleo
tet, and praying that the court make en-
curry into the matter and award certifi-
Gates TO the parties TO whom they right
fully belonged Judge Witt. of the Hust-
ingg Court, dismissed the complaint upon
tho ground that he had no jurisdiction in
the matter. and thereupon Mitchell! and
others applied to the Supreme Court of
Appeals for mandamus to compel him
TO hear the complaint and proceeded with
tina matter upon It's merits
Judge Cardwell delivered the opinion of
tho court refusing to grant tbs mandamus.
He says that II is fundamental principle
OF the law Of mardamus that courts will
no. grant this extraordinary remedy where
to do so would be fruitless and unavaiinS.
Section $50 of the Code provides for the
hearing and determine ton OF contested cleo
tons for county, corporation and district
officers, by the court of the county or
corpora ton wherein the election was held.
and when the contest is decided for the
granting OF certificate Of election to the
successful party; or. If the court shall
decide there has been no valid election.
! that the proceedings shall be i'll conform
| ity with Section los Of the Code, which
| section provides how vacancies in such Of
fees shah be filled.
| Section 1880 of the code provides that
| the Board of Aldermen or Common Coun-
| ell of the city shall be the judges OF the
| election. qualification and returns of its
| members These statutes, says the opin-
| ion are in pari rateria and are to be
| read together.
| Therefore, had the Hastings Court heard
| the complaint and granted a certificate, II
would have been wholly Intellectual, for
upon presenting it to the Board of Alder
men or Common Council of the city. the
holder would be met with the response.
that under section 1880 of the code IT was
the sole Judge of the election, Qualification
and returns of it's members, and If the
Judgment had been TINT there was no
valid election in Jackson Ward of any
: person, it would have likewise been fruit
less. as section 106 of the code makes
no provision for filling vacancy Furtn-
err the opinion holds. that it was not the
legislative intent TO include within section
100 the Common Council of a city. Ihe
r,andamrs praved for is therefore denied