Sec. 6154. A claimant of property levied on under an execution filed a suspending bond, but failed to institute his interpleader proceedings under the provisions of this section within thirty days from the date of the suspending bond. It was held that from the expiration of the period of thirty days, the possession of the property by the claimant was unlawful, and hence at his risk. Kiser v. Hensley, 123 Va. 536, 96 S. E. 777. Sec. 6157. Under this section, a bond payable to the sheriff and not to the creditor, which does not recite the amount due upon the execution, including the fee for taking the bond, commissions and other charges, and conditioned that the claimant shall have property forthcoming and subject to the order of the court, instead of forthcoming at such time and place of sale as may be thereafter lawfully appointed, as required by the statute, is not good as a statutory forthcoming bond. Kiser v. Hensley, 123 Va. 536, 96 S. E. 777. On a motion on a bond given by a claimant to a sheriff for property levied on under an execution, which bond was not valid as a statutory forthcoming bond under this section, but was good as a common law bond, the measure of recovery, for failure to produce for sale the property levied on, was not the execution debts, principal, interest, costs and commissions, but the value of the property levied upon, and it may be doubted whether, even if the bond had conformed strictly to the statute, the measure would have been different. If the value of the property levied on had exceeded the amount of the execution, the measure of recovery would have been the amount of the execution, interest, costs, etc. Kiser v. Hensley, 123 Va. 536, 96 S. E. 777. In as much as the statutory proceeding by interpleader in Virginia is a substitute for the common law writ of replevin, it is proper to construe a bond given by a claimant of property taken under execution, which, although not valid as a statutory forthcoming bond under this section, but good as a common law bond, as it would have been construed at common law, if it had been a replevin bond, or a redelivery bond, in an action of replevin. Kiser v. Hensley 123 Va. 536, 96 S. E. 777. Sec. 6166. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Defendant husband having died pending the wife's appeal in her divorce suit, which had resulted in decree of divorce for the husband on his cross-bill, no decree will be entered by the supreme court, except to reverse the original decree under review in such of its holdings as are found to be erroneous, to which extent the decree of the supreme court will still be effective, as there can be no abatement of the original decree by reason of the death of party after appeal, while under this section, the appellate court in its discretion may enter its decree dealing with the adjudications of the original decree as if no death had occurred. Cumming v. Cumming, 127 Va. 16, 102 S. E. 572. Sec. 6167. There can be no abatement of the original decree by reason of the death of any party to the cause after the appeal had been allowed and by virtue of this section the appellate court may in its discretion enter its decree dealing with the adjudications of the original decree as if no death of any party to the cause had occurred. Cumming v. Cumming, 127 Va. 16, 102 S. E. 572. Where an appeal is allowed, or writ of error awarded, before the death of a party to a suit or action, the case is from that moment a case pending in the appellate court, and under this section there is no abatement in the appellate court because of the death. The same was very nearly true at common law. The statute effected no other change in the procedure than that it expressly leaves it to the discretion of the appellate court, where the death is made known to such court and it is suggested on its record, to proceed with the case, and enter judgment or decree as if such death had not occurred; whereas prior to the statute a practice had grown up requiring, in case of the death of either party, if made known to the appellate court and suggested on its record, a revival of the appeal or writ of error by consent, or by scire facias. Poff v. Poff, 128 Va. 62, 104 S. E. 719. Sec. 6172. A cause stricken from the docket under this section cannot be reinstated after the lapse of one year, except by consent of all parties. A decree striking a cause from the docket is an adjudication that everything has been done in the cause that the court intends to do. The decree may be erroneous, but the error does not render it less final, and the court having by its order put the cause beyond its control, cannot upon a discovery of error recall it in a summary way and resume a jurisdiction which has been exhausted. Snead v. Atkinson, 121 Va. 182, 92 S. E. 835. An order of court entered under this section directing that a case "be stricken from the docket," does not operate as a bar or estoppel to the institution of a subsequent suit for the same cause. By the express terms of the statute, the order operated upon the pendency of the suit or action, and the authority thereby given the court extends no farther than to "order it to be struck from the docket." And as to what shall be the effect of such order, the statute itself provides that "it" (the case or cause) "shall thereby be discontinued." Payne v. Buena Vista Extract Co., 124 Va. 296, 98 S. E. 34. Sec. 6178. Under this provision of Code Va., 1860, chapter 175, page 2, allowing each court from time to time to appoint commissioners in chancery or for stating accounts was continued by various enactments and remained in force until adoption of Code of 1887. Acts April 2, 1873 (Acts 1872-73, chapter 395) abolished the equity jurisdiction of the county courts, and acknowledgment taken before a commissioner in chancery appointed by a county court after its equity jurisdiction had been abolished, but before the power to appoint commissioners in chancery had been withdrawn was sufficient; commissioners in chancery being authorized by Act of June 17, 1870 (Acts 1869-70, chapter 138) to take and certify acknowledgments. Va. & W. Va. Coal Co., v. Charles, 251 Fed. 83. For article by Judge Martin P. Burks on "The Code 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 497. Sec. 6179. The report of a commissioner, especially when the evidence has been taken in his presence, is entitled to great weight, and should not be disturbed unless its conclusions are clearly at variance with the result of the evidence. Cottrell v. Mathews, 120 Va. 847, 92 S. E. 808. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 497, 577, 902. Sec. 6180. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6181. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6183. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6185. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6186. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 902. Sec. 6187. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 497. Sec. 6188. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 497. Sec. 6192. See chapter 182 of Acts 1918, herein, as to consulting books to ascertain laws of other jurisdictions. Sec. 6193. Cited but not construed in Head v. Lipscomb, 127 Va. 669, 105 S. E. 500. Sec. 6197. A copy of an original contract, which has been lost, made by counsel and filed with the bill of one of the parties to the contract, which bill alleged that the original had been filed with the answer of the party in another suit, although not authenticated by the certificate of the clerk of court among the records of which the original was filed at the time such copy was made. is admissible in evidence. The fact that at the time such copy was filed it was not the best evidence and valid objection might have been made in that suit to its introduction in evidence, is immaterial, after the original has been lost, and this section has no application. Baber v. Baber, 121 Va. 740, 94 S. E. 209. Sec. 6202. Where the original deed was recorded in 1883, and thereafter it was recorded anew from the original deed, a certified copy taken from the last record is admissible in evidence. W. Va. Coal Co., v. Charles, 251 Fed. 83. Where a certified copy of the original deed, which had been duly recorded was thereafter, the record being lost, recorded, a certified copy taken from the second record is admissible in evidence without any showing of the loss or destruction of the first certified copy which was used for making the second record. Va. & W. Va. Coal Co., v. Charles, 251 Fed. 83. A certified copy of a deed, taken from deed book of a county other than that n which the land was located and the conveyance was originally recorded is not admissible in evidence, where it appeared from the registration certificate of the clerk that the paper presented to him for record was not the original deed, but was merely a copy, and hence not entitled to record under the statutes. Va. & W. Va. Coal Co. v. Charles, 252 Fed. 83. Sec. 6208. Formerly section 3345, Code 1904, cited but not construed in Robertson v. A. C. R. Co., 129 Va. 494, 106 S. E. 521. For article on "Competency of Attesting Witnesses to Wills, etc.," see 6 Va. Law Reg. (N. S.) 407. Sec. 6209. A motion for judgment was made by plaintiff against the administrators of a decedent, upon a promissory note alleged to have been made by the decedent payable to the plaintiff. To sustain the motion a mutilated paper in the hand writing of the decedent was presented, upon which there was neither date nor signature, both apparently having been destroyed by burning. Only one witness, a brother of plaintiff, was introduced by plaintiff to prove the existence of the note described in the notice. He was an ignorant man and his testimony was vague and unsatisfactory. No attempt was made to explain or account for the mutilation of the paper. It was held that the evidence was insufficient to sustain a judgment for plaintiff. Jones' Admrs. v. Coleman, 121 Va. 86, 92 S. E. 910. Under section 3347 of the Code of 1904 now omitted, it was held that in an action on a bond against three joint obligors, one of whom is dead, the surviving obligors and the obligee being parties with whom the contract was personally made, are competent witnesses. Wilson v. Woolridge, 118 Va. 209, 86 S. E. 872. Under section 3346 of the Code of 1904 now omitted and thereby repealed, it was held that in an action against the maker of a negotiable note by a holder in due course, who was not a party to the note or the transaction which furnished the consideration therefor, such holder is not incompetent to testify as a withess because of the incompetency of one or more of the parties to such note. Hawkes v. Bowles, 119 Va. 108, 89 S. E. 93. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. For article on "Competency of Attesting Witnesses to Wills, etc," see 6 Va. Law Reg. (N. S.) 407. For application of the former rule, section 3346(2), changed by this section, see Ely v. Gray, 125 Va. 708, same as section 3348 omitted from Code 1919, see Blacksburg v. Bell, 125 Va. 565, 100 S. E. 804. By Code of 1919, practically all disqualifications of witnesses for interest have been removed. The revisors, however, recognized that in removing such disqualifications, and especially in the case of a survivor in a transaction, there should be some compensating advantages. Hence, to meet the difficulty that might arise in consequence of the removal of the disqualifications which had been effected by the repeal of various sections of the then existing statutes this section was added. But by this section corroboration is required only of those witnesses who have been rendered competent to testify by the repeals aforesaid, and not of witnesses already competent. The purpose of this section was to remove disqualifications, not to create them in any case, nor to impose burdens on witnesses already competent. Robertson v. A. C. R. Co., 129 Va. 494, 106 S. E. 521. The Code of 1919 repeals the section 3348, Code 1904, by omitting it, with the result that if the agent dies in such case, the other party is a competent witness, thereby enlarging the capacity of the survivor to testify, but leaving untouched the common law competency of the agent where the other party to the transaction dies. Idem. In an action by a real estate company to recover damages against an executor for breach of an alleged parole contract whereby plaintiff was to have exclusive right of selling a tract of land of the executor's decedent for a stipulated compensation, the agent of the plaintiff who was not a party to the action, was not an officer of the plaintiff, and had no pecuniary interest in the result of the litigation, is not "an adverse or interested party" as that term is used in this section. Competent at common law, he is not rendered incompetent by statute, although he was the plaintiff's contracting agent in making the contract in litigation. Idem. The provisions of this section (6209) to the effect that no judgment shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In order to require corroboration, there must be a witness who testifies in the case, or who must be seeking a judgment or decree in his favor, and thus be "an adverse or interested party." He must be in some way beneficially interested in the judgment or decree which is sought to be obtained on his testimony against a party who is incapable of testifying or some representative of such party. Idem. The entries, memoranda, and declarations mentioned in this section are only admissible "if such adverse party testifies," but as the agent of the real estate company who testified in the instant case, is no such party, a statement of decedent of the matter in controversy and a sworn bill to perpetuate his testimony were not admissiable under this section. Idem. The construction given this section by the court in the instant case does not deny equal protection of the law to private persons. Idem. Sec. 6210. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6211. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6212. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6214. In an action by an administrator against the owner of a hotel for the death of his intestate, a guest of the hotel, who was killed in an elevator accident, the trial court permitted the elevator operator to be called by the plaintiff as an adverse witness and examined according to the rules applicable to the examination and contradiction of such a witness. The operator was the only eye-witness to the accident. Consequently plaintiff had no choice but to introduce him; and his testimony vindicated the court's ruling in permitting him to be examined as an adverse witness. It was held that this section has expressly been held to apply where the witness has no adverse interest but is shown to be adverse or hostile to the party introducing him. Murphy's Hotel v. Cuddy's Ad'mr., 124 Va. 207, 97 S. E. 794. It is difficult, at best, to disabuse the mind of the jury of derogatory statements of counsel made in respect to the character of a witness, even where the court instructs them on the subject, but the ill consequences are immeasurably increased when the objectionable language goes unrebuked. This section declares that a party introducing a witness shall not be allowed to impeach his credit by general evidence of bad character; but, if in the opinion of the court, the witness proves adverse, he may contradict him by other evidence showing that at other times he had made statements inconsistent with his present testimony. Yet this contradicting evidence must be introduced by leave of court and after the witness has been fully put on guard with respect to it. If, therefore, a witness so introduced cannot be impeached by general evidence of his bad character, a fortiori he should not be discredited before the jury by opinions of the prosecuting attorney with respect to his character. Green v. Commonwealth, 122 Va. 862, 94 S. E. 940. Sec. 6216. This section does not per se render admissible in evidence a writing which independently of the statute would be inadmissible. The use referred to in the statute, of course, means legitimate use. In a prosecution for larceny one of the principal witnesses against the accused was an accomplice, who, among other things, testified as to defendant's purpose in going from Washington to Virginia when the larceny took place. Witness's attention was called to the statements made by him in a prior affidavit relating to the same matter which were in conflict with his present testimony, and he seems to have been asked to explain the conflict without introducing the affidavit in evidence. It was held that under the provisions of this section, the defendant was not obliged to show the affidavit to the witness at this stage of his examination, and as witness admitted making the affidavit, was under no obligation to show it to him, or put it in evidence. Ellison v. Commonwealth, 130 Va. 748, 107 S. E. 697. Sec. 6225. For article on "Reference to Commissioners in Chancery," see 5 Va. Law Reg. (N. S.) 497. Sec. 6226. EDITOR'S FORM OF DIRECTIONS FOR TAKING DEPOSITIONS OUT OF STATE Officers Before Whom Taken The officers in other States authorized to take depositions for use in Virginia are: Commissioners appointed by the governor of Virginia and any justice or notary public or other officer authorized to take depositions in the State wherein the witness may be (Va. Code, 1919, section 6226). in pursuance of the annexed notice, at.. between the hours of.. and State of... and.. of.. Present,. defendant. ..mentioned, .and.. is plaintiff, Court for the... counsel for a witness, being first duly sworn, deposeth and saith in answer to interrogatories as follows: Question 1. By plaintiff's (or defendant's attorney). Answer... Question 2. By plaintiff's attorney, etc.. And so on until the examination in chief is completed. The cross-examination and re-examination should be written down in like manner. At the end of the deposition of each witness should be the following words: "And further this deponent saith not." Exceptions Exception to any question or answer should be noted by the officer taking the deposition at the time when made and immediately after such question or answer. Signature of Witness When the deposition is completed, witness should sign his name at the end thereof, but signature is often waived by mutual consent, in which case the officer taking the deposition should note the fact at the end of the deposition. Adjournments Adjournments from day to day or from time to time should be noted in the depositions by the officer, as well as the recommencements of taking the deposi tions. If adjournments are had by consent of parties, that fact should likewise be noted by the officer. In such cases the following are the usual forms: The taking of these depositions (or the further taking of these depositions, as the case may be) is continued (if by mutual consent so state) until the... day of................ 19........, at................................. o'clock....... ..M. Justice (or Notary, etc.) |