As Amended 1897-8, p. 252. Previous Sec. 2934. Further time given; when suit abates or is defeated on ground not affecting the right to recover.-If an action commenced Amendment within due time in the name of or against one or more plantiffs or defend1893-4. p. 789. 3 Va. L. R. 532. ants abate as to one of them by the return of no inhabitant or by his or As Amended 1897-8, p. 516. 86 Va. 892. her death or marriage, or if in an action commenced within due time judgment for the plaintiff shall be arrested or reversed upon a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the loss or destruction of any of the papers or records in a former suit which was in due time, or if in any pending cause or in any action or suit hereafter commenced within due time in any of the courts of this commonwealth the plaintiffs proceed or have proceeded in the wrong forum or bring the wrong form of action or against the wrong defendant and judgment is rendered against the plaintiff solely upon such ground, in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, or arrest, or reversal of judgment, or loss or destruction, or judgment against the plaintiff, but not after: provided, however, that the time that any such action or suit first brought shall be pending in any appellate court shall not be included in the computation of said year. Sec. 2935. Limitation on enforcement of deeds of trust and mortgages. No deed of trust or mortgage hereafter given to secure the payment of money and no lien hereafter reserved to secure the payment of unpaid purchase money shall be enforced after twenty years from the time when the right to enforce the same shall have first accrued, and no deed of trust or mortgage given prior to May first, eighteen hundred and eightyeight, to secure the payment of money, and no lien reserved prior to May first, eighteen hundred and eighty-eight, to secure unpaid purchase money shall be enforced after twenty years from the time the right to enforce the same shall have first accrued: provided, the limitation of the right to enforce such deed of trust, mortgage, or lien reserved shall not expire prior to May first, nineteen hundred and three; but the limitations prescribed by this section may be extended by an endorsement to that effect entered upon the margin of the page of deed book on which the same is recorded when such endorsement is duly executed by the grantor or his duly authorized attorney in fact and attested by the clerk of the court in which such lien is recorded, which endorsement shall be held to extend the limitation of the right to enforce said lien for twenty years from the date of such endorsement. But this section shall not be construed to embrace any deed of trust or mortgage executed by a corporation or any investment or loan of funds arising from the sale or other disposition of glebe lands in the several counties of the state. As Amended 1891-2, p. 975. 83 Va. 296. TITLE 43. WARRANTS, ATTACHMENTS, AND BAIL. CHAPTER CXL. OF WARRANTS FOR SMALL CLAIMS. Sec. 2939. For what a justice has jurisdiction; when and how case removed to court; when tried.-Any claim to specific personal property, or to any debt, fine, or other money, or to damages for breach of any contract, or for any injury done to property, real or personal, which would be recoverable by action at law or suit in equity shall when the claim is to a fine if the amount of such claim does not exceed twenty dollars, and in all other cases if the claim do not exceed one hundred dollars (exclusive of interest), be cognizable by a justice even though the claim be for or against the town or county in which such justice resides; but in every case where the amount or thing in controversy exceeds the sum or value of twenty dollars the justice shall, upon the application of the defendant and upon affidavit that he has a substantial defence thereto, at any time before trial remove the cause and all the papers thereof to the court of the county or corporation wherein the warrant has been brought and the clerk of the said court shall forthwith docket the same, but it shall not be tried at any time except by consent of parties unless it shall have been so docketed ten days previous thereto. On such trial the proceedings shall conform to section thirty-two hundred and eleven. Sec. 2939 a. If the plaintiff in a warrant upon a contract of such 1897-8, p. 662. nature that an action of assumpsit would lie on same shall have served with the warrant a copy of his account, verified by affidavit, he shall have judgment for the amount of said account unless the defendant shall deny under oath that the account is due; and if defendant deny only part of the account he shall have judgment as to the residue and case be tried as to the part so denied.—In any case of a warrant for a judgment on any contract which is of such nature that under the rules of pleading an action of assumpsit would lie, if there shall be served on the defendant along with the warrant a copy of the account on which the warrant is brought, stating distinctly the several items of the claim, the aggregate amount thereof, the time from which interest is claimed, and the credits, if any, to which the defendant may be entitled, which account shall be verified by the affidavit of the plaintiff or his agent, judgment shall be rendered by the justice in favor of the plaintiff for the amount, with interest, claimed in the said account, unless the defendant shall allege on the affidavit of himself or his agent that the plaintiff is not entitled, as the afliant verily believes, to recover anything from the defendant on such account; or state on such oath a sum certain less than that set forth in the account served with the warrant which, as the afliant verily believes, is all that the plaintiff is entitled to recover from the defendant. If the defendant shall admit that the plaintiff is entitled to recover from the defendant a sum certain less than the amount stated in the account served with the warrant judgment may be taken by the plaintiff for the sum admitted to be due and the case tried as to the residue. Sec. 2939 b. How appeals from justices and warrants removed shall 1893-4, p. 508. be tried, and how defects, omissions, and irregularities in the proceedings below may be corrected in the court to which the appeal is taken or the warrant removed.-In civil cases all appeals from justices and warrants removed shall be tried according to the principles of law and equity, and where the same conflict the principles of equity shall prevail. No warrant shall be dismissed by reason of mere defects, irregularities, or omissions in the proceedings before the justice or in respect to the form of the warrant where the same may be corrected by a proper order of court; but the court to which the appeal is taken or the warrant removed shall retain the same with full power to direct all necessary amendments, to enter such orders and direct such proceedings as will tend to correct the defects, irregularities, and omissions aforesaid, to promote substantial justice to all parties, and to bring about a trial of the merits of the controversy; no omission, defect, or irregularity not brought to the attention of the county court shall be considered by the circuit court. This statute As Amended 1897-8, p. 942. Previous Amendments 1889-90, p. 57. 1893-4, p. 579. As Amended 1889-90, p. 57. As Amended 1897-8, p. 637. As Amended 1893-4, p. 558. 92 Va. 118. shall be liberally construed, to the end that justice be not delayed or denied by reason of errors in the warrant or in the form of the proceedings; and the court may make such provision as to costs and continuances as may be just. Sec. 2940. How warrant issued, directed, and returnable; where executed; how served on corporation.-A justice when applied to by any person shall issue a warrant directed to a constable or the sheriff of the county, a constable or a sergeant of any corporation wherein the defendant resides requiring him to summon the person against whom the claim is to appear before him or some other justice on a certain day not exceeding thirty days from the date thereof to answer such claim. It shall be made returnable to some place within the magisterial district in which the defendant, or if there be more than one either defendant resides or in which the cause of action arose, unless the justice for good cause shown on oath direct it to be returned to some other place within his county or corporation. But in no case shall a warrant be made returnable in a county or corporation other than that in which the defendant or any of them resides: provided, that any corporation or company shall be construed as to this act to reside in any county or corporation through which its line (if it be a transportation company) runs or in which it conducts business. The warrant may be executed in any part of the county or corporation on any defendant who resides or may be found therein. If the warrant be against a corporation it shall be served as process or notice is served under section three thousand two hundred and twenty-five, and to that end the justice issuing the warrant shall make and deliver a copy thereof along with the warrant to the officer required to serve the same. Sec. 2941. How witnesses summoned and compelled to attend.-Subpœnas for witnesses may be issued by a justice directed to a constable or sheriff of any county or corporation. Any person summoned to attend as a witness before a justice who shall fail so to attend shall, unless he show a reasonable excuse there for within ten days after being summoned to state such excuse, be fined by the justice before whom the failure occurred a sum not exceeding five dollars for the use of the party on whose behalf he was summoned. Sec. 2945. Justice to deliver abstract of judgment. The justice rendering any such judgment shall certify and deliver an abstract thereof at any time during his continuance in office to any person interested therein who may desire to have the same docketed: provided, if the justice rendering said judgment be absent from his county or corporation or his office be vacant such abstract of judgment may be made and certified by his successor in office or any other justice of the county or corporation. Sec. 2947. How appeal allowed or execution stayed.—If a judgment of a justice be for a sum exceeding ten and not exceeding twenty dollars exclusive of interest and costs the justice rendering it may stay execution on it forty days from its date. If the judgment be for a sum exceeding twenty and not exceeding thirty dollars he may stay execution on it sixty days from its date. If the judgment be for a sum exceeding thirty dollars he may stay execution on it ninety days from its date on such security being given in either case for its payment as he may deem sufficient. From any such judgment the justice rendering it may within ten days, on such security being given as he approves for the payment of such judgment as may be rendered on appeal by the appellate court against the defendant and all costs and damages, allow an appeal where the case involves the constitutionality or validity of an ordinance or by-law of a corporation or where the matter in controversy exclusive of interest is of greater amount or value than ten dollars. Where the appeal is by a party against whom there is no recovery except for costs the security shall be for such costs and damages as may be awarded against him on the appeal if the judgment of the justice be affirmed. The verbal acknowledgment of any surety taken under this section shall be sufficient, and the endorsement by the justice of the name of the surety upon the warrant on which the judgment is rendered shall be conclusive evidence of such acknowledgment. The court in which the appeal is cognizable may on motion for good cause shown require the appellant to give new or additional security, reasonable notice of such motion having been given to said appellant, and if he fail to give such security the appeal shall be dismissed with costs, and the court shall award execution on the judgment rendered by the justice, with costs, against the appellant and his surety. Sec. 2947 a. The right of appeal in cattle guard cases.-In all suits 1887-8, p. 526. brought before a justice of the peace against railroad companies to recover penalties for failure to construct cattle guards as required by law either party shall have the right of appeal to the county court of the county where such suit is brought from the judgment of the justice without regard to the amount in controversy. Sec. 2949. How directed and returnable; how renewed.—A writ of As Amended 1897-8, p. 637. fieri facias issued by a justice may be directed to any constable and be executed by him in any part of his county or corporation or may be directed to the sheriff or sergeant of any county or corporation, but in any case shall be returnable in sixty days. If not wholly satisfied it may within one year from the date of the judgment be returned to and renewed by a justice notwithstanding the provisions of chapter thirty-nine. But every execution issued by a justice which is not so returned and renewed shall be returned by the officer to the clerk of the court of the county or corporation in which the execution issued. The said justice shall also return to the said office an abstract of the judgment in each case tried by him together with all of the papers in the case. Sec. 2954. Proceedings before a justice for release to claimant of As Amended property taken under distress warrant or levied on under execution 1895-6,. p. 308. on judgment of a justice; when and how appeal allowed.-When an execution on a judgment of a justice or warrant of distress is levied upon property which is claimed by any person other than the party against whom it issued and affidavit is made either by the claimant, the officer having such process, or the party issuing the same that to the best of said affiant's belief the said property is not of greater value than twenty dollars, the party making said affidavit may apply to a justice of the county or corpo. ration in which the levy is for a warrant to constable requiring him to summon both the creditor and debtor to show cause why such property should not be discharged from the levy, a copy of which warrant shall be served upon the claimant of said property unless said warrant is sued out at his instance. The justice shall issue such warrant returnable in not less than five days, and if an earlier day shall have been fixed for the sale of the property he shall make an order on the warrant requiring the postponement of the sale until after the return day. Upon hearing the parties or such of them as may attend after being summoned and such witnesses as may be introduced by either party he shall order the officer to deliver the property to the claimant if he be of opinion that the same belongs to said claimant; but if he be of opinion that the property belongs to the person against whom the execution or warrant of distress issued he shall As Amended 1893-4, p. 486. As Amended 1893-4, p. 558. order the officer who levied on the same to sell said property to satisfy said execution or warrant of distress and may give such judgment for costs as he may deem just. If the property be of the value of ten dollars or more the justice shall within five days allow an appeal (if applied for) from such order and judgment on security being given as in the appeals before mentioned in this chapter. Sec. 2955. Duty of justice and clerk; when appeal allowed.-The justice from whose judgment an appeal is allowed shall immediately deliver to the clerk of the court which has the cognizance of the appeal the original warrants with the judgment and the name of the surety endorsed thereon, together with all the exhibits before him shown at the trial, and the clerk shall forthwith docket the same, and the justice granting the appeal shall not nor shall the appellant without the leave of court after due notice to the appellee withdraw said papers from the clerk's office. Sec. 2956. [2 Va. L. R. 253.] Sec. 2957. How tried; judgment.-Every such appeal shall be tried by the court in a summary way without pleadings in writing, or if the amount in controversy exceed twenty dollars by a jury if either party require it. All legal evidence produced by either party shall be heard, whether the same was produced or not before the justice from whose decision the appeal is taken, and the case shall be determined according to the principles of law and equity. If judgment be recovered by the appellee execution shall issue against the principal and surety jointly or separately for the amount of such judgment, including interest and costs, with damages on the aggregate at the rate of ten per centum per annum from the date of that judgment until payment and for the costs of the appeal; and the execution shall be endorsed "no security is to be taken " if the decision be reversed. Such order or judgment shall be made or given as ought to have been made or given by the justice, and the party substantially prevailing shall recover his costs. Where the appeal is from an order or judgment under section twenty-nine hundred and fifty-four the court shall give such judgment respecting the property, the expense of keeping it, and any injury done to it as may be equitable among the parties. As Amended CHAPTER CXLI. OF ATTACHMENTS AND OF BAIL. Sec. 2959. When and for what attachment may be sued out; by whom issued; the affidavit required; who may make it; grounds for attachment.-If at the time of or after the institution of any action at law for the recovery of specific personal property or a debt or damages for the breach of a contract, express or implied, or damages for a wrong the plaintiff, his agent or attorney, shall make affidavit stating that the plaintiff's claim is believed to be just, and where the action is to recover specific personal property the nature and, according to the affiant's belief, the value of such property and the probable amount of damages the plaintiff will recover for the detention thereof, and where it is to recover a debt or damages for the breach of a contract, express or implied, or damages for a wrong, a certain sum which (at least) the affiant believes the plaintiff is entitled to or ought to recover, and stating also the existence to the best of the affiant's belief of one or more of the following grounds for attachment: That the defendant or one of the defendants |