The times. [volume] (Richmond, Va.) 1890-1903, 1901-02-01

arrangement to the sentence. when any
thing is to be done which can affect his
interest. We are aware that no court
has been more jealous and exactng in
enforcing this privilege, and in requiring
that it should appear from the record,
than this court: but, we are of the opin-
ion that the rights of the prisoner in this
respect. and indeed in all respects, have
been fully and faithfully preserved in
this case Judgment of the County
Court Of Isle Of Wight is affirmed.
DISSENTING OPINION.
Judge Phlegar rendered a dissenting
opinion, in which he ably contended that
by the action Of the majority of the
court "a venerable landmark in our
criminal Jurisprudence is being ignored.
II not destroyed. and principle over
thrown which was established in wisdom
for the protection of life and liberty
In concluding his opinion he says: ITO
support the conclusion that the record
sufficiently shows the proper rendition of
the verdict. it is said that while no
1ntenGment can supply omission from
the record OF that which is material. all
proper differences may and must be drawn
from that which appears The position
of the majority of the court seems to
depend largely on the correctness of this
proposition. ] cannot give my assent to
H. Where affirmative ayermentS is re-
qutrcd, inference is excluded. There can
be no necessity or use for Inference when
the fact is ayerred- That the jury came
into the courtroom and delivered a YER
dict in the prisoners presence is a propO-
Siticn Which is not directly asserted IN
The record. but must be drawn from
anothe--yiz.: that the form of the verdict
is there which the prisoner moved 10 set
aside and asked that Judgment thereon
he arrested While by the record the
jury are in their room. l am unwilling
10 start the prisoner to the penitcntiary.
Deeds of Gift.
Fidelity Loan and Trust Company VS..
Euglcby ct al. From Circuit Court of
Roanoke City. Opinion by Judge Harri-
son.
Tho question 7prersented by the petition
for appeal grows out of two suits heard
together. which were Instituted by the alp,
reliant bank. one to set aside a deed,
dated July II. 1891. from Thos. Engleby.
conveying to his wife several lots of land
in Roanoke. upon the ground that said
deed was voluntary and without consider
ation. etc; and the other to set aside.
upon like grounds, deed from John
Engleby, dated September 5. 1894. convey
ing to his wife d certain house and lot in
the same city.
The charge OF fraud is not sustained. it
does appear. however. That the convey
amce mentioned were voluntary and with
out consideration. The sale question raised
by the appellant is whether or not the
debt constituting the bnSiS Of a certain
judgment asserted by it WAS contracted
,rtior 10 the date Of the deeds assailed.
and if SO, whether or not said debt has
been paid off or discharged
The Circuit Court held THAT the debt fin
question WIS not prior in time or right
to either of said deeds.
The Court of Appeals held that. from
am examination Of the history of the trans
action, it was perfectly clear that the
debt. embraced lin the Judgment, here as
serted. had dts origin in the obligation
entered into by the appelles Thomas and
John Englcby. on December IS. 1893, prior
to the date of the deeds assaled Us volun-
tary and that this debt had never been
novated by amy of the subsequent trans
nctions of the parties.
Judgment of lower court reversed and
case Telnandcd.
Inconsistent Instruct ions.
\. & W Ry. Co. VS. Mann From Cir
cult Court of Prince Edward County.
Opinion by Judge Keith, p.
The defendant recovered a. Judgment
against the Norfolk and Western Rail
way Company, which was brought up
for review by q. writ of error. Mann was
a conductor on a freight train of the
company when the injury for which this
suit brought occurred. On April %,
1899. he left Crewe in charge of a freight
train When he reached Farmville
OIL account of finding a local freight ahead
of him. lle was compelled to stop his
train in such a position that the rear
cars. rested upon a bridge
Upon inspection, he found that the
air brake apparatus was out Of order, and
that il was necessary to cut off the air
from one of the cars. In attempting TO
do this, by pulling rod which controlled
Tie mechanism. 1T came loose and threw
him backward over the bridge and severe
ly injured him.
The principal assignments Of error here
are To the instructions.
First. That il the jury stall believe
that Conductor Mann was in charge of
train No 195 on the Goth of April. that
ii was unnecessary for him TO bleed
the air reservoir of car No. 9.202. while
standing on the bridge at Farnville. and
that if he could have waited until the
bridge was crossed by said car, and then
nave bled il in safety, he is not entitled
to recover in this case, etc.
The Court of Appeals held this instruc
tiou was improperly refused, as 1t states
the law plainly and concisely, and there
is evidence 10 prove the facts upon which
il is based. The other error assigned Is
80 instruction No. IS. prepared by the
court in lieu of certain instructions asked
by the plaintiff in error. and which tl;t'!
been declined. To instruction No. i. the
defendant objected. and on its motion
Was charged by The court and given
concerning the question of conuibutoTy
negligence, etc
Defendant in error contends that even
though it be erroneous, the case should
not be reversed on that account, for 1t
was given at the request of the plaintiff
in error This was not held 10 be the
case by the Supreme Court, which states
THAT instruction was doubtless designed
by the court TO deal only with the cues
ton of contributory negligence, but lying
at the threshold of every action OF tins
kind is the duty imposed upon the PLAIN
tiff TO prove the negligence OF the de-
PENDANT to have been the proXmate cause
of the injury. 1t is not enough TO snow
that the plaintiff was without fauN. 1t
is essential to his recovery to show some
fault or act of negligence in the defend
ant. This view of the case is wholly omit
ted by the instruction in question
1t is true that there are other N
Structions given by the court which cover
these essentials. and We have then lncon-
sistenr Instructions; not only TINS. out
an instruction undertaking TO cover the