Walkers v. Boaz

2 Va. 485

• Court: Supreme Court of Virginia
• Decided: November 15, 1843
• Status: Published

Opinion

Ax/Len, J.

delivered the following as the opinion of the court:

It seems to the court, that although the law was correctly propounded by the court below in the instruction given to the jury, yet according to the principles established in Garrard &c. v. Henry &c. 6 Rand. 124. and Linton &c. v. Bartly &c. 9 Leigh 444. the objection was * matter in abatement, and could not be taken upon the trial of the mise joined on the mere right. And as it appears that the nonsuit was suffered under a misapprehension on the part of the demandants and their counsel as to the legal effect of the instruction upon their right to recover, the court, in the exercise of a sound discretion, should, on the motion of the demandants, have set aside the nonsuit, instead of overruling the said motion. It is therefore considered that the judgment be reversed and annulled, and that the plaintiffs in error recover of the defendants in error their costs here expended. And it is further considered that the cause be remanded to the circuit court, with instructions to set aside the nonsuit, and to reinstate the case upon the docket for a trial to be had on the mise joined.