The times. [volume] (Richmond, Va.) 1890-1903, 1901-01-25


her in consideration of her release Oh con-
tngent dover rights. This will was pro-
oateo IN March: isro anu III A'Iii; ts9y.
of herself and other lien creditors to sub
iect the tract of land acquired by APP
Dellee under the will of his wife TO tie
satisfaction of her judgment To this
bill the appellee Byers filed his uemur-
rer and answer. and thereupon the court
entered the decree appealed from, holding
that the plaintiff in this case, having
elected -; choose under the trust deed
OF Samuel Byers to J. A. Alexander, to
secure the creditors of said Byers, and
mas become a party to the c;1ancery suits
administering and executing the trusts
expressed in said deed. is now precluded
from institr1:ng separate proceedings for
the enforcement of her debt. and that
this suit should therefore, be dismissed.
w,ic1 was ordered. with costs against
the plaintiff.
on appeai it was held that this action
nf the lower court was erroneous and
without p!ecedent appellant has
,1lain legal .lien uoon real estate that is
NOT involved in tue Alexander trust liti-
cation, which she has :, right to enforce.
and she cannot be required to awsit the
resTIt of that litigation, if by prosecuting
Ter own suit she can realize her debt
more speedily.''
The decree, was reversed and cause re-
,,oan;ied for further proceedings in ac-
cor1anca with the views OF this opiri ion.
y, p,,,o
John Echois eNor: vs. Jas. SteH t,,a-.t ~
DC, o. n-, III ~, I,dga ph1erar
~ ,,.,s ,andine in tho Circut
,lrrt Of Aue,,st,, comfy for n number
&c ,o.rr +o od,,;rictar tr,st fund which
~ 90, a. q; 80 1anns nf 1ohn t,choIs and T
t,.,,l+ fra,, M Virsriria Ranking and
- [.or,,.r, 1,bay answered Jointly
sat+lea ioint accounts in the suit and kept
the f,,nd il; y Joint bank account.
TIC cuit I,v for more than four wears
,ritbou+ on1, order cycant order for con-
+;nronca and vas stricken from the
6nc1Sat ,,ndar the i've Years rule.
sfta. tba daath Of Holm I5chols a scire
f.cias was awarded TO revive the suit
aoainst Edward Echols. his executor. who
= oI,iac+od nv demurrer and answer to the
raI-i,,.l h1,+ tho s,,it was rainstated by
tha lower court hence this appeal.
Tba supreme Court holds that a suit
which has been dismissed under the five
years ,nle section 1912 of Code. cannot
no rainStatad q ftar one wear without the
co,sent of all the narties who are nee
essorv To the final determination of the
oousa. that the cause was imDroperly re
instated and could not be proceeded in
without F,chols' executor being made a
marty. and could not be revived against
him without his consent. Decree reversed
and suit ordered to be dismissed
ContriDutory Negligence.
McDaniers Administrative VS.. Lyr chburg
Cotton Mill Co. From Circuit Court OF
Campbell county. opinion by Judge
Harrison
Ihls was suit Tor damages Drought
oy tue adminlstratriN OF 'sle aeceaSe.l. WI" .i
vas d boy WE'VE years oiu' a5dtnst .iiS
oeiendanl company LOT the a4eseu ID '.l
INJURY 10 deceased VINO zen 'litou5h an
open elevator smart OF lile coili'tiiS, I'LL
had been lett open, penang some repairs
10 one OF the floors IN the factory. "hese
me boy was eilpioStu ~ ;" eT s'ie 100 NO."
The only error assigned to the judgment
VI tiie lo"et touiI vas ~ a. -, -.
sustaining the demurrer to the evidence
and granting judgment for the defendant.
The Court of Appeals says: Under such
circumstances the BURDEN ol pioo t,,,ls
upon the plaintiff in error to estanilsA
the negligence OF the delendant III Error o.
#, however. such negligence were shown,
there could be no recovery IN thls cas-
by reason OIL tiie coit''ioutois iie5
of the deceased; his maturity ana intel
ligence being sufficient to overcome Hle
pfeSullptioi', Oh e'eeo".,' ~ t'7s' 80 -
was Incapable OF contlputorE negligence.
judgment affirmed
The Summary.
r,,d.o II cardwell:
,uo7 ,,,,,;., p,,i,a;,. nd
..o;',tia,. rirn,.it Cunt of Hr,,-
Joan Assoc'atl9ll. etico,o oo 81 rd a.
rlco COUNTY
AZ Aie"'
Judge G. NJ. Harrison:
McDaniel's adnS. rs. LEncaour5 Cotton
Mill Company: Circuit court OF the couii-
ty of Campbell Affirmed
Miller vs. Byers. Circuit Court Oh Ian
caster county Reversed.
Judge A. A. Phlegar:
Echols executor W. Brennan ct ais
Circuit Court Of Augusta county. Re
versad.
Masin vs.. Parson ct ais. tAlfirhheo oy
richmond Railway and Electric Com
pany VS. West. Circuit Court of Henrico
county. Writ OF error and superssdeas.