Alexander v. Byrd

Citations

• 85 Va. 690
• 8 S.E. 577
• 1889 Va. LEXIS 82

Syllabus

<p>1. Jurisdiction&emdash;Appealable decrees.&emdash;In suit to enforce upon decedent’s lands in possession of his heirs, claims against his estate, an interlocutory decree that the claims are outstanding, not barred by statute of limitations or laches, and that the lands are liable therefor, adjudicates the principles of the case and is appealable.</p> <p>2. Idem.&emdash;Where amount, adjudged to complainant as due from decedent as co-surety, may be shown by commissioner’s enquiry and report to be less than the minimum jurisdictional limit, by reason of his co-surety having paid more than his share,-and being entitled, by way of contribution, to a part of the debt, such fact does not defeat the jurisdiction of this court.</p> <p>3. Statute of Limitations&emdash;War and stay periods.&emdash;As to bonds payable before July 1, 1850, statute of limitations begins to run that day. The war and stay-law periods must be excluded in computing the twenty years necessary to bar such bond.</p> <p>4. Sheriff’s Return&emdash;Extra-official&emdash;Evidence.&emdash;What sheriff adds to his official return is extra-official, and is not even prima facie evidence of any fact so stated.</p> <p>5. Principal and Surety&emdash;Release of co-surety.&emdash;Release of levy of execution upon property of surety will not release co-surety, as they are joint principals as respects each other and the principal.</p> <p>6. Idem&emdash;Laches&emdash;Case at bar.&emdash;Where creditor -received payments until 1868, when payments ceased, he got judgment and had execution issued and levied. He died in 1872. In 1874 assignee brought suit to enforce the claim against debtor’s lands;</p> <p>Held :</p> <p>No laches in point of fact.</p> <p>7. Idem.&emdash;Definition&emdash;Notice to sue.&emdash;Laches is neglect to do something that a party should do, and mere lapse of time, unaccompanied by some circumstance affording evidence of abandonment, is not considered laches.' Besides, surety can never charge c