89 Va. 767 | Va. | 1893
delivered the opinion of the court.
First. That the court below erred in overruling the demurrer of the defendants to the declaration of the plaintiffs, because, by section 2730 of the Code of Virginia, it is provided that the plaintiff in ejectment shall state whether he claims in fee or for life, or for the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided interest he shall state the same. The declaration itself contains an answer to this assignment. It is therein alleged that- heretofore—to-wit, on the 1st day of January, 1870—the said plaintiffs were possessed, each in fee simple absolute, of an undivided share or interest in a certain tract of land, &c., and the suit is for the whole land so claimed, and not for any part or parcel.
The second assignment is that the said Valentine Roach and Roily Ann Roach were jointly sued, whereas the jury were sworn to try the issue joined between the plaintiffs and
The next assignment of error is that the jury was composed of eleven persons only, but, as the record shows that this was by consent of parties in open court, they cannot now be heard to claim that they were entitled to have twelve persons on the jury. By consent they waived this right, and consented to try the case with a jury of eleven. Any informality in the entry by the clerk must be corrected in the court
Judgment affirmed.