Duncan v. Helms , 8 Va. 68 ( 1851 )

Daniel, J.

delivered the opinion of the Court.

The Court is of opinion, that it was not competent for the demandants on the trial to rely on the record of the suit in chancery between John Belden and Daniel Nichols and others, for the purpose of shewing that the said Daniel was the heir of Austin Nichols, and that the legal title to the land in controversy was in him; neither the demandants nor the tenant having been parties to said suit: And consequently, that the Judge of the Circuit court erred in giving the instruction asked for by the demandants, and excepted to by the tenant; and that for this error the judgment of the Circuit court ought to be reversed, the verdict set aside, and the cause remanded. Such being the opinion of the Court, it becomes unnecessary to decide the other question presented in the petition, to wit, whether the issue on the first plea of the tenant was ever properly joined in the cause; and if not, whether the irregularity was cured by the verdict. The cause being remanded for a new trial on account of the erroneous instruction aforesaid, the Judge of the Circuit court can, before such new trial is had, cause the alleged defect in the pleadings to be supplied, by requiring the demandants to file the written replication required by the statute.

Judgment reversed with costs; verdict set aside, and cause remanded for further pleadings, and a new trial, and with directions to the Judge of the Circuit court not to repeat, on such new trial, the instruction complained of, should it be again asked for by the demandants.