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As Amended

1897-8, p. 753. Original Act 1893-4, p. 722.

1893-4, p. 292.

Sec. 3346 a. To make husband and wife competent witnesses for or against each other in certain civil and criminal cases.-1. Husband and wife shall be competent to testify for or against each other in all civil cases except as is hereinafter provided: First, neither husband nor wife shall be competent to testify for or against each other in any proceeding by a creditor to avoid or impeach any conveyance, gift, or sale from the one to the other on the ground of fraud or want of consideration, but as to said transaction the existing rules of evidence shall remain unchanged; second, where one of the original parties to a contract, matter, or other transaction which is the subject of investigation is incapable of testifying by reason of death, insanity, infancy, or other legal cause and the other party to such contract, matter, or transaction is made incompetent to testify by sub-section two of section thirty-three hundred and forty-six of the code of Virginia, then in such case the consort of either party shall be incompetent to testify in relation to such contract, matter, or transaction: and provided, further, that nothing herein contained shall be deemed or construed to alter the existing rules of evidence as to proceedings for divorce.

2. In criminal cases husband and wife shall be allowed to testify in behalf of each other, but neither shall be compelled to testify against the other. If either, however, be examined in any case as a witness in behalf of the other the one so examined shall be deemed competent to testify in such case as well against as in behalf of such other, but the failure of either husband or wife to testify shall create no presumption against the accused nor be the subject of any comment before the court or jury by the prosecuting attorney.

3. Neither husband or wife shall without the consent of the other be examined in any case as to any communication made by one to the other while married nor shall either of them be permitted without such consent to reveal in testimony after the marriage relation ceases any such communication made while the marriage subsisted: provided, that this exclusion shall not apply to a criminal proceeding for a criminal offence committed by one against the other, but as to such proceeding the existing rules of evidence shall remain unchanged.

Sec. 3347. [85 Va. 252.]

Sec. 3348. [91 Va. 608; 1 Va. L. R. 343; 3 Va. L. R. 827.]

Sec. 3351. [3 Va. L. R. 371.]

Sec. 3352 a. Process for a witness during the trial of a criminal prosecution in a court of record may be executed by the officer of the court from which the process issues in any county or corporation of the state. Whenever on the calling of or during the trial of a criminal prosecution in any court of record in the commonwealth it appears to the court that it is necessary to have a witness from a county or corporation other than that of trial that the summons, rule, or attachment issued for such witness from the trial court may, when the court so orders, be executed by its officers in any county or corporation of the state, for which services the officer shall be allowed a reasonable compensation by the court.

Sec. 3362. [83 Va. 141; 84 Va. 318; 85 Va. 820, 967.]

Sec. 3372. [92 Va. 696.]

Sec. 3375. [83 Va. 106; 84 Va. 884.]

CHAPTER CLXV.

OF THE LOSS OF A RECORD OR PAPER IN A CAUSE.

Sec. 3376. [85 Va. 16; 86 Va. 62; 88 Va. 347.]

CHAPTER CLXVI.

OF THE COURT DOCKET; INQUIRY OF DAMAGES; TRIAL BY JURY, AND JUDG-
MENTS AND DECREES OF THE COURT FOR MONEY.

Sec. 3378. [92 Va. 30; 2 Va. L. R. 647.]

Sec. 3379. When and how docket of chancery cases; how cases As Amended 1893-4, p. 785. called and disposed of.-Before every term of a circuit or corporation court and of the chancery court of the city of Richmond the clerk of each of said courts shall make out a separate docket of chancery causes in which there are motions and of other chancery causes which have been set for hearing as to any party or which the court is to hear upon a plea, demurrer, or exceptions to an answer; and the clerk of the circuit court of the city of Richmond, the clerk of the chancery court of said city, the clerk of the law and equity court of the city of Richmond, and the clerk of the circuit court of Henrico county shall also put upon their respective chancery dockets as soon as matured at rules and in the order in which they are matured all chancery causes and motions matured during the respective terms of said courts.

Every cause on the docket shall be called and disposed of during the term.

89 Va. 576.

Sec. 3381. Trial of issue out of chancery.-Any court in which a As Amended 1897-8, p. 942. chancery case is pending may direct an issue to be tried in such court or 82 Va. 228, 624. in any circuit or corporation court, and the court shall have the discretion to 85 Va. 390, 721. direct such an issue to be tried before any proof has been taken by either the plaintiff or defendant if it shall be shown by affidavit or affidavits after reasonable notice that the case will be rendered doubtful by the conflicting evidence of the opposing party.

Sec. 3382. [82 Va. 225.]

Sec. 3384. [82 Va. 239; 87 Va. 193; 91 Va. 364; 93 Va. 791; 2 Va. L. R. 191.]

Sec. 3385. [85 Va. 146; 87 Va. 242; 88 Va. 952.]

Sec. 3385 a. To dispense with the necessity for a motion for a new 1897-8, p. 754. trial in certain cases.-The failure to make a motion for a new trial in

any case in which an appeal, writ of error, or supersedeas lies to a higher court shall not be deemed a waiver of any objection made during the trial if such objection be properly made a part of the record.

Sec. 3390. [87 Va. 269.]

Sec. 3392. [82 Va. 140; 83 Va. 674; 88 Va. 303.]

Sec. 3393. How judgment entered on bond for payment of money. When there is a recovery on a bond with condition for the payment of money the judgment shall be for the penalty of the bond to be discharged by the payment of the principal and the interest due thereon, but when

As Amended 1895-6, p. 240.

the judgment is against a surety of limited liability in such bond the sum to be paid by such surety in discharge thereof shall not exceed the amount to which he has limited his liability on said bond.

Sec. 3395. [92 Va. 177.]

Sec. 3396. [83 Va. 272; 87 Va. 661; 83 Va. 286; 92 Va. 177.]

1897-8, p. 514.

1887-8, p. 261.

CHAPTER CLXVII.

OF DECREES OF SALE (AND RECEIVERS); ORDERS FOR EXECUTING DEEDS,
APPOINTING TRUSTEES (AND REQUIRING THEM TO GIVE SECURITY); RESER-
VATION FOR INFANTS (DECREES AND ORDERS IN VACATION); DISPOSITION

OF MONEY IN CUSTODY OF COURT UNCLAIMED.

Sec. 3397. [82 Va. 190; 83 Va. 316, 338; 85 Va. 343; 87 Va. 41, 676.]

Sec. 3397 a. To require courts of this commonwealth having jurisdiction of suits for the sale of lands to satisfy debts to specify in the decree directing the account of debts to be taken that the commissioner to whom the decree is referred shall ascertain and report all delinquent taxes upon said lands; and if sold for said taxes to whom, &c.— In every suit hereafter brought in this state for the sale of lands for the payment of debts or to subject lands to the payment of liens binding thereon, and in every such suit now pending in which the account of debts or liens has not been taken it shall be the duty of the court in ordering the account of debts or liens to be taken to specially direct that an account be taken of all delinquent taxes upon said land.

The commissioner to whom such decree is referred shall ascertain and report the amount of such delinquent taxes, together with the interest thereon, from the fifteenth day of December of each year for which said lands were so returned delinquent. And where said lands have been sold for said taxes said commissioner shall further report to whom sold and when and the amount that will be required to redeem the same.

Sec. 3398. [84 Va. 858.]

Sec. 3399. [87 Va. 676; 90 Va. 386.]

Sec. 3402 a. Circuit and corporation courts of this commonwealth to render judgments against receivers and commissioners and purchasers at judicial sales and their sureties in certain cases.1. It shall be lawful for any circuit or corporation court of this commonwealth sitting as a court of chancery or for the clerk of any such court during the vacation thereof, at the instance of any party in interest, to award a rule or rules against any commissioner or receiver appointed by or acting under and by virtue of any decree or order of such chancery courts and the surety or sureties of such commissioner or receiver or against a purchaser at a judicial sale under a decree or order of such court and against the sureties of such purchaser, returnable to such a day of a term of such court as the said court may direct, to show cause why judgment shall not be entered by said court for any amounts which from the proceeding in such chancery cause may appear to be due or which the court may ascertain to be due from such receiver or commissioners in said chancery cause: provided, that the said rule shall be executed at least thirty days before the return day thereof.

2. Upon the return of such rule thus executed upon any of the parties thereto the court at any term, if neither party demands a jury, shall pro

ceed to hear and determine all questions raised by such rule, and shall enter an order which shall have the force and effect of a judgment against such receiver and commissioner and purchaser as the case may be and their several sureties for the amount appearing to be due by the said receiver or commissioner or purchaser or such of them as may appear to have been summoned to answer such rule to the fund in such chancery cause, said judgment to be in favor of the complainant in such chancery cause or the general or a special receiver of the court but subject to the control of the court in such chancery cause. If it shall appear in such proceedings that such receiver, commissioner, purchaser, or any of them, or surety or any of them is dead, insane, or has been convicted of felony, then such rule may be awarded and judgment rendered jointly or severally against such personal representatives or committee in the same proceeding.

3. If upon the return of such rules any party thereto demands a trial by jury then the court shall enter an order in such chancery cause directing a trial by jury to ascertain what liability if any exist against such commissioner or receiver or purchaser and their sureties, and the court shall enter judgment on the verdict awarded by the jury, except that new trials may be granted as in other cases; and notwithstanding such rules be awarded and judgment be rendered against part only of the persons liable thereto, the court may award new rules and proceed to judgment against all the said parties who are liable thereto at the same or any subsequent term of the said court.

4. The provisions of this act shall apply to sheriffs, sergeants, and other officers and their sureties acting under any decree or order of any such chancery court.

5. Every judgment, decree, or order for the payment of money rendered in any proceeding under this act shall as to the lien thereof have such effect as judgments and decrees for money in other cases.

6. That whenever in any case a purchaser at a judicial sale, commissioner, or general or special receiver or his personal representative can be proceeded against by rule for the recovery of money in such case the sureties of such purchaser, commissioner, or receiver and the personal representatives of the said sureties may also be proceeded against in the same manner for the like purpose.

Sec. 3404. [84 Va. 9.]

Sec. 3409. [85 Va. 21]

1887, p. 231.

Sec. 3415 a. Bringing suits against receivers in certain cases.- Extra Session Any receiver of any corporation appointed by the courts of this commonwealth may be sued in respect of any act or transaction of his in carrying on the business connected with such corporation without the previous leave of the court in which such receiver was appointed: provided, that the institution or pendency of such suit shall not interfere with or delay a decree of sale for foreclosure of any mortgage upon the property of said corporation, and said claim shall not be a lien upon the property or funds under control of the court until filed in said court under the second section.

2. No execution shall issue upon such judgment, but upon the filing of a certified copy thereof in the cause in which the receiver or receivers were appointed the court shall direct the payment of such judgment in the same manner as if the claim upon which the judgment is based had been proved and allowed in said cause.

3. Process or notice may be served upon such receiver or receivers or their agents in the same manner as is provided by section seven of chapter

As Amended 1897-8, p. 687. Previous

Amendment

1889-90, p. 41. 84 Va. 318.

three hundred and ninety-six of acts of assembly eighteen hundred and eighty-five and eighty-six for serving process or notice upon a trustee or trustees or their agents where a corporation is operated by a trustee or trustees or their agents.

4. All warrants before a justice of the peace under this act shall be tried only after ten days' notice.

5. All suits now pending before any court in this commonwealth upon petition against any receiver or receivers shall upon the motion of the petitioner be removed to the county or corporation where the cause of action arose, the issue to be made upon the petition and answer, or the petitioner shall be allowed if he so elect to dismiss his petition and institute his suit or action as is herein provided if his said action shall not have been barred by the statute of limitations before the filing of said petition.

Sec. 3419. How trustee appointed in place of one who has died, resigned, removed, or declined the trust.-When a trustee in a will, deed, or other writing dies or removes beyond the limits of the state or declines to accept the trust, or when having accepted he resigns the same, as he may be 3 Va. L. R. 667. allowed to do, the circuit, county, or corporation court in which such will was admitted to probate or such deed or other writing is or might have been recorded may on motion of any person interested appoint a trustee or trustees in the place of the trustee named in such instrument. A motion under this section shall be after reasonable notice to all persons interested in the execution of such trust other than the plaintiff in such motion. Until a trustee or trustees shall on such motion be so appointed the personal representative of the deceased trustee if the deceased trustee was a sole trustee, the surviving trustee or trustees if there be more than one trustee, or the remaining trustee or trustees if there were more than one trustee, and one or more of them removes or remove beyond the limits of the state, declines or decline to accept the trust, or having accepted resigns or resign, shall execute the trust or so much thereof as remained unexecuted at the death, removal beyond the limits of the state, declination to accept the trust, or resignation after acceptance of such trustee (whether the trust subject be real or personal estate) unless the instrument creating the trust direct otherwise or some other trustee be appointed for the purpose by a court of chancery having jurisdiction of the case. This section shall not apply to any case provided for by section fourteen hundred and twenty-three.

As Amended 1897-8, p. 744. Previous

Amendments 1893-4, p. 233. 1895-6, p. 178. 85 Va. 139. 86 Va. 354. 87 Va. 49.

93 Va. 274.

Sec. 3420. [84 Va. 638; 87 Va. 447.]

Sec. 3422. [83 Va. 715; 84 Va. 318, 947.]

Sec. 3424. [83 Va. 849; 85 Va. 588.]

Sec. 3425. [87 Va. 676; 92 Va. 615.]

Sec. 3426. Interlocutory decrees and orders in vacation.-On the motion of any party to a chancery cause pending in a circuit court on reasonable notice to the adverse party or his counsel the judge of such court may in vacation make any interlocutory decree or order or direct any proceedings therein preparatory to the hearing of the cause on its merits, and may also after like notice to the adverse party or his counsel and to purchaser or renter make an order confirming or refusing to confirm a sale or renting made under a decree in any such cause, and in case of a refusal to confirm the sale or renting the judge may order a re-lease, a re-renting, or a sale as the nature of the case may require. In all cases of confirmation the judge shall have the authority to make all orders necessary to carry the same into effect.

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