Atlantic & Danville R. R. Co. v. Peake

Citations

• 87 Va. 130
• 12 S.E. 348
• 1890 Va. LEXIS 102

Syllabus

<p>1. —Practice at Common Law—Special jury—Case at bar.—The allowance or refusal of a special jury is matter resting in the sound judicial discretion of the court, and the refusal of the court to order one in this case was not error.</p> <p>2. Idem—Amendment of return—Absence of witness—Continuance.—Though there be nothing to show a valid service of the summons, allowing return to be amended is not ground for continuance, especially where the case has been previously by consent set for trial. Nor is the absence of a material witness, where the case is postponed, and the witness summoned to the nest day, and the record does not show whether he then appeared or not.</p> <p>S. Idem—Instructions.—Instructions to the effect that owner of land adjacent to railroad, under purchase after its construction, cannot recover for injury to his crops by overflow resulting from insufficient outlets for water and defects in the construction of the railroad: held, properly refused.</p> <p>4. Idem—Conduct of juror—Code, section 8168.—Remarks of juror during trial, even if reprehensible, cannot be taken advantage of after verdict; and for a juror to say upon hearing a fact testified by a witness, “ Yes, sir; I know all about it. That’s so,” is only in obedience to Code, sec. 3168, declaring that “ a juror, knowing anything relative to a fact in issue, shall disclose the same in open court.”</p> <p>3. Idem—Irregularities—General appearance.—It is the settled rule that a defendant, by appeaiing and pleading, or taking or assenting to a continuance, -waives all defects in the process and in the service thereof.</p>