Powell v. Tarry's Adm'r

Citations

• 77 Va. 250
• 1883 Va. LEXIS 53

Syllabus

<p>1. Practice at Common Law&emdash;Exceptions&emdash;Appellate court.&emdash;Unless by-record it appears that points decided by court below were saved before jury retired, they cannot be reviewed by appellate court. But bill of exceptions may be prepared and signed at any time during the term.</p> <p>2. Idem&emdash;Facts proved&emdash;-Evidence certified.&emdash;When evidence conflicts, court may refuse to certify facts proved; but must certify the evidence on motion of any suitor.</p> <p>3. Idem&emdash;Instructions&emdash;Appellate court.&emdash;Unless the evidence is before appellate court, it cannot pass on instructions given or refused.</p> <p>4. Idem &emdash;Judges&emdash;Official laches.&emdash;Lack of time or lapse of memory is no excuse for a judge’s refusal to certify the evidence on the trial of a cause before him, or to perform any other duty imposed on him by law.</p> <p>5. Idem&emdash;Mandamus&emdash;Appeal.&emdash;To compel judge to certify evidence mandanms lies, but his refusal is error reviewable in appellate court on complaint of party injured. To deny certificate of evidence, is to deny suitor his right of appeal.</p> <p>6. Overruled&emdash; Grayson's case, 6 Gratt. 712, on one point.&emdash;Wherein the court said : “Where the evidence is contradictory, the court which tries the case cannot be required to state in a bill of exceptions either the evidence or the facts proved by the witnesses respectively. It is enough to state that the evidence was contradictory ”; the opinion was mere obiter dictum, and is not sound in principle.</p> <p>7. Idem&emdash;Evidence&emdash;Declarations.&emdash;Written or oral declarations of a party to a suit, relevant to the issue, and against his interest, are admissible as evidence against him.</p>