12 Gratt. 554 | Va. | 1855
This case has already been before this court. On that occasion it was decided, that under the agreement of the parties to give any matter in evidence under the plea of payment which the plaintiff in error might plead, either at common law or under the statute, it would have been competent to have pleaded by way of set-off under the act of April 1831, Sup. Eev. Code 157, the facts which the evidence offered on that occasion tended to prove, and therefore that the court erred in rejecting such testimony.
Upon the second trial the evidence was again offered and admitted; and the case comes up now on an exception to a decision overruling a motion of the plaintiff in error to exclude portions of the deposition of John H. Jett; and to the refusal of the court to give three instructions asked for by the plaintiff in error; and to giving an instruction at the instance of the defendant in error. This court having held that under the agreement of the parties it was competent for the plaintiff in error to offer evidence tending to prove that the parties had agreed to refer the questions of law arising out of the controversy between them to the decision of Mr. Leigh, that said questions were so referred and were decided in favor of the plaintiff in error, his decision, according to the former judgment of this court, constitutes the law of the case.
After the testimony had been offered and read, the plaintiff in error moved the court to give three instructions to the jury, which the court refused to give; and he excepted. I think the court properly refused to give the third instruction as irrelevant; there being no evidence proving, or tending to prove, that the defendant in error had actual notice of the said deed of trust, at or before his purchase of the slaves at the sale made by the sheriff. But I can perceive no objection to the first or second instructions. Each was founded upon the decision of Mr. Leigh, and was pertinent to the issue the jury was trying. The first asked the court to instruct the jury that the want of registry of the deed of trust did not impair the validity thereof against creditors whose debts had not attached on the slaves by force of legal process. And
The plaintiff in error controverted the fact of a sale by the sheriff under the execution by the directions of the remainderman. There was parol proof, and there was the sheriff’s return bearing upon this point; and the jury were to decide from all the facts in evidence before them, whether the purchaser at the sheriff’s sale could claim as a purchaser under the remainderman, himself. By the instruction given at the instance of the defendant in error, the jury were instructed, that if they believed from the evidence that the execution had been levied on such remainder, and that the same was sold by the sheriff under the execution by the directions of the remainderman, such sale vested a valid title to such remainder in the purchaser. This instruction, like the others asked, was predicated on the decision of Mr. Leigh, and though somewhat obscure in not sufficiently distinguishing between a sale made by the sheriff as officer only, and a claim under such official act alone, and a claim as a purchaser under the remainderman himself, in consequence of his giving up his interest in the property to the sheriff to be
In regard to the deposition of John H. Jett, parts of which were excepted to, it seems to me the objections
I think the judgment should be reversed with costs to the plaintiff in error, the verdict set aside, and the cause remanded with instructions to award a new trial; and upon such new trial to exclude from the jury the second interrogatory and answer thereto in the deposition of John H. Jett, if again objected to ; and if the same evidence is again adduced, to give to the jury the first and second instructions asked for by the plaintiff in error and refused, provided he again should ask the court to give the said instructions to the jury.
The other judges concurred in the opinion of Allen, P.
Judgment reversed.