The times. [volume] (Richmond, Va.) 1890-1903, 1900-07-01
DECISIONS OF
SUPREME COURT.
A Nolle. Prosequi Not a Final De-
termination of Question. 3
DOES NOT SHOW AcQUITTAL.
Where the Reason for the Rule Of Law
Has Ceased the Law Itself Ought
to and Does Cause.-The Open
Question Directly Decided
DOES NOT SHOW ACQUITTAL.

The following were mong the important
opinions handed down by the Supreme
Court of Appeals of Virginia at Wytheyille
last Thursday:
Kelly vs.. Hamblen. Opinion by James
Keith. p: From the Circuit Court Of Lee
county. Reversed
Certain creditors of ]. ]. Kelly, Sr., In
stituted a suit in chancery in the Circuit
Cudrt of Lee county to subject the lands
to the payment of their debts and to set
aside certain conveyances alleged to have
been made with the intent to hinder, de-
lay and defraud his creditors. Decree was
rendered by that court holding the said
conveyanccS void and avoiding the same.
Upon appeal to this court in the case of
Coidiron VS.. Ashevill Shoe Company,
the said decree was reversed and the
conveyances sustained. Afterwards Two
judgment creditors of j. j. Kelly, 81, who
had docketed theGr judgment in Wise
county, Instituted Similar suit TO sub
ject tract IN Wise county and to avoid
a conveyance of il made by Kelly, upon
the ground of fraud. This suit was subse-
quently compromised by kelly's alienee
paying tnrty-thTee and u third per cent.
Of the judgments. Afterwards the same
judgment creditors or their assigns insti-
tuted-another suit in Wise county to sub
iect yet another tract of land which had
been conveyed by j. j. Kelly. Sr., and TO
avoid his conveyance upon the same
ground.
Ia this third suit Kelly and his grantee
filed pleas and answers setting up the
former suit and the former compromise of
tho second suit as res adjudicata. The
opinion of Judge Keith holds, that since
no liability asserted upon the tract
OF land in the former suit and his grantee
vas not before the court III that suit, it
constitutes DO bar to another action to
subject it
Further, that while a judgment is in
some respects indvisible in that only one
action OF debt or scire facias can be
maintained upon it, several actions can
be brought for its satisfaction and TO
enforce its liens. The protection, says
the opinion, which the judgment debtor
has against veXatious and useless suits
is the proper imposition of costs by the
court. Therefore the Circuit Court of Wise
county did not err in sustaining the de-
murrer to the plea OF res Judicata.
As a matter of cnancery practice, the
opinion expresses grave doubt whether
a demurrer applies to an answer or plea
in a chancery cause. and says that 1t
would seem that it can only be interposed
to a bill but this question is expressly
reserved for future consideration.
The answers, however. set up the com
promise of the second suit and claim
that had it not been compromised the land
upon which ithe judgments We're liens
We're ample in value to satisfy the same.
This, the court says, was good defence
for a judgment creditor cannot release
land which is first liable to his debt and
then proceed against land which would
not be liable if it were enforced against
the first tract.
The Circuit court of Wise county erred
in sustaining an exception for insuficiency
filed to the answers.
Sands VS. Durham Circuit Court of Giles
County Reversed.
Judge r. II. Cardwell delivered tie opln-
ion in this case, which was contest
between one partner who had paid part
rership debts, which hac been reduced
TO judgment and duly docketed, out vi his
own inividual funds and was seeking to
be surrogate to their liens against land
which the other partner had conveyed 10
third person
In a clear and strong opinion the Judge
reviews the authorities upon the doctrine
of subrogation, and holds that ii does not
apply where parties are eqtatly bounc'
but only where one is primarily ana the
other secondarily bound. Therefore, the
right OF subrogation does not exist as
between copartners. unless by special
agreement they have assumed the relation
OF principal and surety. This result is
not altered by the statute whereby part
nership debts are made joint and several,
and the Virginia eases upon the subject
are carefully examined and distinguished.
The conclusion is that in this case there
was no agreement or other circumstance
whereby the partners stood IN the rela-
ton Of principal and surety, and that
the partner who paid the firm debts is
not entitled TO be subrogated to their lien
against the land of the other partner.
and certainly not when conveyed to an
innocent third party.
Ward VS.. Reason. From the Circuit
Court of Lee county. Affirmed.
Ward was prosecuted before justice of
the peace OF Leo county upon a warrant
for stealing hogs, sworn out by Reason,
The Justice dismissed the warrant and
discharged him from custody without
hearing any evidence or having AZ trial
of the case. Thereupon, Ward Instituted
an action for maliciou7 prosecution against
Reason, who demurred to his declaration
upon the ground that it did not aliegc
a final determination of the prosecution
The opinion, delivered by Judge cardweli,
holds thai. while tn" authorities OF other
States differ upon the question, i'll Nir-
sinia a nolle prosequi is not a final deter
nina ton of a prosecution, but mere
abandonment, and does not show the
acquittal of the accused. and is no evil
Gence of want of probable cause,
whereby an action for malicious prose
the Justice in this case was equivalent
to nolle prosequi, since he dismissed
the warrant without hearing any evil
dence. and the demurrer to the declaration
was properly sustained by the Circuit
Court of Lee county.
Kelly VS.. Lehigh Manufacturing Company.
Circuit Court of Wise County.
Reversed. opinion by Buchanan, j.
Judge Buchanan delivered the opinion
in this case. which was a suit by a
grantee to enforce the delivery Of. title
papers by his grantor. The opinion holds
that 1t is an old and wsli-sett!ed head of
equity jurisdiction 10 decree the specific
delivery of title papers to persons entitled
to them where they are wrongfully with
held or detained from them, and that.
while Chapter CNNNVIII. OF the Code
makes nor, effective thu common law rem
edy OF detinue, it does not affect this
equity jurisdiction, for where courts OF
equity have once acquired jurisdiction a
subsequent statute which enlarges the
jurisdic tons OF the comnon-law courts
owe: the same subject does not deprive the
equity courts Of their jurisdiction, although
the statute may furnish complete and
adequate remedy at law. unless the stat
uts comforting such Jurisdiction uses
restrictive or prohibitory words. Pro-