Syllabus-Statement-Opinion. Richmond. BRANSFORD, TREASURER, V. KARN & HICKSON. December 11th, 1890. 1. APPELLATE PRACTICE-Writs of error.-No writ of error lies where judg ment is entered upon agreement that judgment be entered in accordance with the result of another case. 2. IDEM-No exception.—Refusal of judge to sign bill of exceptions, when record does not show that the losing party excepted at the trial to the ruling of the court, cannot be maintained as error. 3. IDEM-Magistrate's judgments.—Where the constitutionality of no statute is called in question, the judgment of the corporation court upon an appeal from the decision of a justice, is final in a case to recover back money paid for taxes under protest after tender and refusal of coupons. Error to judgment of corporation court of Lynchburg, rendered December 19th, 1888, in an action of assumpsit wherein D. Karn and John Hickson, partners as Karn & Hickson, were plaintiffs, and the plaintiff in error, J. B. Bransford, treasurer of the said city, was defendant. Opinion states the case. Attorney-General R. A. Ayres, for the plaintiff in error. W. W. Larkin, for the defendants in error. HINTON, J., delivered the opinion of the court. This case, and nine others, five of which were, like this, appeals from warrants brought before a magistrate to recover Opinion. money paid for taxes under protest after coupons in payment of the said taxes had been tendered and refused, and four of which were actions of assumpsit brought in the corporation court of Lynchburg for the same purpose, were heard upon the records in the several cases and a motion to dismiss. This motion is in writing, and there is filed with it the depositions of T. J. Kirkpatrick and others, showing that under an agreeement of counsel in the court below, it was understood that judgments were to be entered in the nine cases above mentioned for the plaintiffs or defendants, according as the result, in this case might be, for the one or the other; and it seems to us, that consistently with this agreement, no appeals or writs of error could be asked of this court as to the said nine cases, but that, on the contrary, a writ of error might have been asked for in this case, and the nine other cases have been allowed to remain to abide the result in this case. It is insisted, however, for the plaintiff in error, that the court below erred in refusing to sign his ten several bills of exceptions, which he undertakes to make a part of the record, by the affidavit of counsel, made more than a month after the judgments had been entered, and some time after the adjournment of the court. There is one objection which is absolutely fatal to this pretension of the plaintiff. For the record fails to show that the plaintiff in error either excepted or reserved the points at the proper time in the course of the trial. Jones v. Com., decided at this term. Page v. Clopton, 30 Gratt., 415; 4 Min. Insts., 745. But apart from this objection, the records in these cases show that the amounts involved in each of them is below the sum of $500, and therefore, not sufficient to give this court jurisdiction of them. As to the six cases which were appeals from the judgments of the magistrate, they are also improperly here for another reason, namely, because the constitutionality of no statute being called in question, the decision of the cor Opinion. poration court of Lynchburg was necessarily final. McIntosh, Treasurer, v. Braden, 80 Va. R., 217. For these reasons the writs of error in these ten cases were improvidently awarded, and must be dismissed. LACY, J.-I concur in the results of the opinion upon the ground that the amount in controversy, in each case, continued by the appeal, is less than $500, the jurisdictional amount prescribed by the constitution as the limit of the jurisdiction of this court, and the constitutionality of no law is drawn in question. RICHARDSON, J., concurred in the result. APPEALS DISMISSED. Syllabus-Statement-Opinion. Richmond. VAWTER V. COMMONWEALTH. December 11th, 1890. 1. CRIMINAL PROCEEDINGS-Venire facias. - Irregularities in any writ of venire facias whereby the defendant is not injured, are not grounds for arresting the judgment, where no objection was made before jury sworn. 2. IDEM-Completion of panel.—But ordering persons to be summoned without a writ of venire facias, is good ground for motion in arrest of judgment, though the objection was not made before jury sworn. 3. APPELLATE PRACTICE-No certificate.-This court cannot review a refusal of the court below to give an instruction when the evidence or the facts are not certified. Error to judgment of corporation court of Lynchburg, rendered October 7, 1890, sentencing the prisoner, in accordance with the verdict of the jury, to confinement in the penitentiary for one year, in a prosecution for an alleged malicious assault with intent to maim, disfigure, disable and kill. Opinion states the case. Th. N. Williams, for the plaintiff in error. The Attorney-General, for the Commonwealth. LEWIS, P., delivered the opinion of the court. There are two assignments of error upon which the case has been submitted. The first relates to the overruling of the * Opinion. motion in arrest of judgment. The bill of exceptions states that on the 2nd day of October, 1890, prior to the term at which the prisoner was tried, a writ of venire facias was issued in due form for the trial, and that the judge of the court gave the sergeant, to whom the writ was directed, a list of twenty-nine persons, which list was endorsed as follows: "Summon as venire for trial of felonies to Monday, October 6th, 1890;" that when the case was called for trial, it was found that of the persons whose names were upon the said list, a sufficient number of jurors to constitute a panel of sixteen, free from exception, could not be had, whereupon the court, without directing another venire, ordered the sergeant to complete the panel by summoning six persons, whose names were upon a list made by the sergeant and adopted by the court, who were accordingly summoned, but without a writ of venire facias issued by the clerk. No objection, however, on this ground, appears to have been made before the swearing of the jury. Section 4018 of the Code enacts as follows: "The writ of venire facias in case of felony, shall command the officer to whom it is directed, to summon twenty persons of his county or corporation, to be taken from a list to be furnished him by the court of such county or corporation, or the judge thereof residing remote from the place where the offence is charged to have been committed, and qualified in other respects to serve as jurors, to attend the court wherein the accused is to be tried on the first day of the next term thereof, or at such other time as the court or judge may direct." And by the following section it is provided that "where a sufficient number of jurors to constitute a panel of sixteen, free from exception, cannot be had from those summoned and in attendance, the court may direct another venire facias, and cause to be summoned from the bystanders, or from a list to be furnished by the court, so many persons as may be deemed necessary to complete the said panel." * * * |