.o'clock. counsel for plaintiff ;.... Exhibits Any papers or writings referred to by witnesses or copies thereof should be annexed to the depositions and referred to by such marks or designations as to identify them. To illustrate: If it is desired to introduce a paper into evidence the witness by whom it is proved and through whom it is introduced after referring to the paper may continue somewhat as follows: "I here file the paper to which I have referred. It is marked 'Exhibit A with the deposition of... Certification When the depositions are completed, the officer taking the same should annex the following certificate: State of County (or city) of.. I, of... in the State do hereby certify that the foregoing depositions were duly taken, reduced to writing, and signed by the witnesses repectively before me at the place and time therein mentioned, pursuant to the annexed notice. In witness whereof I have hereunto set my hand and affixed my official seal at..... aforesaid, this..................................... ...day of.. (Official seal to be placed here.) If signatures of witnesses are waived by consent of all parties to the suit, the statement in the above certificate as to signature should of course be omitted. Seal The officer taking the depositions should affix his official seal to his certificate If he has none, the genuineness of his signature must be authenticated by some officer of the same State under his official seal, but if the deposition be taken before a justice of the peace in the United States, no seal or other authentication of his signature is required (section 6226). Fees Officers' fee for taking the depositions should always be written upon the depositions. How Addressed and Transmitted When the depositions have been duly certified, the officer taking them should seal them up securely, indorse them as follows, directing them to the clerk of the court where the suit is pending, and transmit them by mail or otherwise. Plaintiff, To the Clerk of the. V. Defendant. ....Court of the... and.. P. M., on that day, ...and others, to be read in evi..depending in the... wherein you are.. .and. and if from any cause the taking of the said depositions be not commenced on that day, or, if commenced, be not concluded on that day, the taking of the same will be adjourned and continued from day to day, or from time to time, at the same place and between the same hours, until the same shall be completed. This form may be had from Everett Waddey Co., Richmond, Va. 19......... For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Sec. 6232. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. FORM FOR TAKING DEPOSITIONS IN THE STATE V. Plaintiff, Depositions of.. for the. day of.. ..of. Defendant. witnesses, taken before me, C. D., a.. and the other days hereinafter mentioned, in pursuance of the annexed notice, at... State of Virginia. .of. ...and to be in the counsel for plaintiff; A. B. (the 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.. The cross-examination and re-examination to be written down in like manner. Exceptions to any questions or answers to be noted at the time when made. When the deposition is completed, witness to sign his name at the end thereof. Adjournments from day to day, or from time to time, pursuant to the notice, to be noted by the officer, as well as the recommencements of taking the depositions. If by consent of parties, the fact to be noted. Any papers or writings referred to by witnesses, or copies thereof, to be annexed to the depositions, and referred to by such marks or designations as to identify them. When the depositions are completed, the officer taking the same will annex the following certificate: State of Virginia, .of. I, C. D., a. for the. of.. in the State of.... do hereby certify that the foregoing depositions were duly taken, reduced to writing, and signed by the witnesses, respectively, before me, at the place and the times therein mentioned, pursuant ot the annexed notice. In witness whereof I have hereunto set my hand this.........day of.... 19..... ..C. D., etc. In practice signatures of witnesses are often waived by mutual consent, duly noted by the officer taking the deposition. See Barnett v. Watson, 1 Wash. 372, where lack of signature is held no valid objection. When the depositions have been duly certified, the officer taking them will seal them up securely, indorse them as follows, directing them to the clerk of the court where the suit is pending, and send them through the post-office or otherwise. They may be placed in an outer envelope, and sent to the care of any person interested in their preservation. Sec. 6235. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 497, 597. Sec. 6236. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6237. Refusal to permit defendant to inspect books and papers produced by witness, pursuant to summons under this section, before they were introduced in evidence by plaintiff, it was held harmless, where the witness who had the custody of the books and papers was thereafter fully examined with reference to them, so that defendant got the benefit of everything they contained. Duncan v. Broadway National Bank. 127 Va. 34, 102 S. E. 577. EDITOR'S FORM OF THE AFFIDAVIT In the Clerk's Office of the Circuit Court of the County off.................... Virginia. This day personally appeared before me,. in and for the county in the State aforesaid,. a notary public who made oath before me in my said county that he is the defendant (or plaintiff) in the aboveentitled action, pending in the circuit court of the county of.... Virginia, and that he verily believes that there is in possession of the plaintiff (or defendant) certain books of accounts or other writings containing material evidence for him in said action and said books of accounts or other writings are such as show (here specify with "reasonable certainty such writing or part of such book"). Given under my hand this. .day of.. Direction to Clerk 19......... N. P. Virginia: To the Clerk of the Circuit Court of the County of Issue summons upon the foregoing affidavit as required by section 6237 of the Code of Virginia, requiring the defendant (or plaintiff) to produce the writing and an exact copy of such part of the books of account, set out in said affidavit filed in your office on the. day of 19..... and have summons and copy of said affidavit served on the tiff) (or, if the plaintiff be a non-resident, on... Given under my hand this.. day of. defendant (or plainhis attorney). 19.. p. q. (or p. d.) For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6238. For article on "Reference to Commissioner in Chancery," see 5 Va. Law Reg. (N. S.) 577. Sec. 6239. Presumption of death from absence. If any person, who shall have resided in this State, go from, and do not return to the State for seven years successively, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time. If such absence continue and his whereabouts be unknown for a period of twenty years or more, he shall be conclusively presumed to be dead for the purpose of adjudicating and disposing of any funds in any case pending in a court in which title to real estate or the proceeds thereof shall come in question or be involved, and in such case the rights of the parties shall be determined on the assumption that the supposed decedent is in fact dead. But before any final order or decree is entered in any such cause, in favor of the alleged heirs, devisees or legatees of the supposed decedent, or persons claiming by, through or under them, or any of them, the supposed decedent shall be made a party defendant in the cause, and an order of publication shall be entered against him in conformity with the provisions of sections' six thousand and sixtynine, six thousand and seventy, and six thousand and seventy-one of the Code of Virginia, so far as applicable. (1920, p. 421. In force June 18, 1920.) For section applying to the granting of letters of administration on estates of persons presumed to be dead, see section 5361 to 5368, inclusive. Sec. 6245. Chancery dockets. Before every term of a circuit or corporation court, and of the chancery court of the city of Richmond, the clerk of each of said courts shall make out a separate docket of chancery causes in which there are motions, and of other chancery causes which have been set for hearing as to any party, or which the court is to hear upon a plea of demurrer; and the clerk of the circuit court of the city of Richmond, the clerk of the court of law and chancery of the city of Norfolk, the clerk of the court of law and chancery of the city of Roanoke, the clerk of the chancery court of the city of Richmond, the clerk of the law and equity court of the city of Richmond, the clerk of the circuit court of Henrico county, the clerk of the circuit court of the city of Norfolk, and the clerk of the circuit court of the city of Newport News, shall also put upon their respective chancery dockets, as soon as matured at rules, and in the order in which they are matured, all chancery causes and motions matured during the respective terms of said courts. Every cause on the docket shall be called and disposed of during the term. (1922, p. 116. In force February 25, 1922.) Sec. 6246. It was not intended by this section to change the firmly established rules of law that the chancellor is to properly exercise his discretion on sound legal principles of reason and justice. Any other interpretation of the statute would make the whole matter of directing an issue one of right, and not of discretion on the part of the court. Brunkley v. Commonwealth, 130 Va. 55, 108 S. E. 1. Formerly section 3381, Code 1904, cited but not construed in Towson v. Towson, 126 Va. 640, 102 Š. E. 48. Sec. 6248. A suit in equity to annul and rescind a deed for breach of a condition subsequent cannot be treated as a suit to remove a cloud from title, although in the instant case the Supreme Court would so treat it if it could on its own motion to avoid the jurisdictional question, as the grantor had neither legal or equitable title, and therefore, does not fall within the class of persons who may bring a suit to quiet title either under the original equitable doctrine governing such suits or under the terms of the former or present statute on the subject found in this section. Until the consummation of the forfeiture, the grantor in a case like this has nothing but a right of action. Pence v. Tidewater, 127 Va. 447, 103 S. E. 694. In this case the equitable jurisdiction of the court to grant relief to the prior grantees is clear because the subsequent grantee himself intervened in the pending suit for the purpose of establishing his title to the land in controversy, and for the removal of the cloud thereon, (under this section) which he alleged the claims of the prior grantees created. The subsequent grantee cannot complain that the court exercised the very jurisdiction which he invoked. Chapman v. Kite, 130 Va. 70, 107 S. E. 702. Sec. 6250. In an action for damages to a shipment of live stock, an objection based on an alleged variance between an allegation that the shipment was delivered to defendant at L., and a bill of lading showing that it was delivered to connecting carrier at that point, should have been raised by motion to exclude the evidence. Southern Ry. Co., v. Finley & Seymour, 127 Va. 132, 102 S. E. 559. Cited but not construed in Dupont v. Blair, 129 Va. 423, 106 S. E. 328. Sec. 6251. For article by Judge Martin P. Burks on "The Code of 1919" citing this section, see 5 Va. Law Reg. (N. S.) 97. Section 6363 omits the provision of that section as it formerly stood, 3484 Code 1904, to the effect that when there had been two trials in the lower court, the appellate court shall look, first to the evidence and proceedings on the first trial. But this omission was due to the fact that under the provisions of section 6251, if a verdict is set aside because contrary to the evidence or without evidence to support it, the trial court will usually enter final judgment without a new trial, and it was deemed unnecessary to retain the old rules, because in future, two trials upon the evidence would not ordinarily occur. It is manifest that the revisors had no purpose of cutting off any rights which the parties might have become entitled to under the former practice. In this case, a will contest, the first trial was had before the present code went into effect, so that the trial court under the practice then prevailing, upon setting aside the verdict could not enter a final judgment for either party. The result was that the contestee who won under the first verdict, and lost under the second, was in the appellate court upon two exceptions, the first to the action of the court in granting the contestants a new trial, and second to its action in refusing her motion to set aside the second verdict and enter final judgment in her favor. It was held that the action of the court in setting aside the first verdict should be inquired into by the appellate court notwithstanding the omission from section 6363 of the provision contained in section 3484 of Code 1904, that the appellate court should first look to the evidence and proceedings on the first trial. Clark v. Hugo, 130 Va. 99, 107 S. E. 730. On motion by defendant for a new trial, the trial court was not asked to enter judgment for defendant pursuant to this section, nor did petition for a writ of error ask the Supreme Court for final judgment pursuant to section 6355, though there was a request to that effect in the defendant's reply brief. While such failure to request final judgment would not prevent the lower court or the appellate court from entering a final order in a proper case, it is perhaps a circumstance indicating that the merits of the case ought to finally be determined by a jury, and in the instant case the Supreme Court felt there should be another jury trial. Morris v. Alvis, 130 Va. 434, 107 S. E. 664. While the policy and purpose of section 6251, and 6365 looking to the speedy determination of litigation and the rendition of a final judgment where it is clear, that upon the facts before it, the court can by such order attain the ends of justice, is approved, in the instant case involving the question of whether a servant assumed the risk of the negligence of a co-employee in failing to leave an elevator flush with the floor, the court not feeling sure that the ends of justice would be attained by a final order, remanded the case for a new trial. Idem. Cited but not construed in Henry v. Virginia Ry. & P. Co., 130 Va. 282, 107 S. E. 715. If two sections of the Code can stand together they must, and there is no difficulty in harmonizing this section with section 6003. Forbes v. Southern Cotton Co., 130 Va. 245, 108 S. E. 15. This section, and section 6365 do not apply to criminal cases. As to such cases the practice remains unchanged, and is controlled by section 4937. Henderson v. Commonwealth, 130 Va. 761, 107 S. E. 700. Applied in Queen Ins. Co. v. Perkinson, 129 Va. 216, cited but not construed in Dupont v. Blair, 129 Va. 423, 106 S. E. 328. |