Buckles, &c. vs. Lambert. of such character as to disincline the jury to award heavy damages against him. To avoid those hardships to the parties, the Legislature, by the act of 1839, (3 Stat., 573,) authorises several damages; and which enactment is still in force. In Shelton, &c. vs. Harlow, (15 B. Mon., 547,) three defendants were jointly sued. The evidence connected two, but there was no evidence against Roberts; yet the jury gave a joint verdict, (perhaps through mistake or inadvertency.) On a motion for a new trial the court put the plaintiff to her election to dismiss as to Roberts, else give a new trial. She having elected to dismiss, the motion as to the others was overruled. The verdict in this case should have been against the two defendants proven guilty. As Roberts was not proven guilty, it was imimpossible that his being a defendant, or that his conduct, should have enhanced the damages. Therefore the guilty defendants had no right to complain, because the judgment was upon the verdict, as the law required it should have been rendered, and fully sustained, in analogy to that principle alluded to, which authorised a plaintiff to take his judgment on either, where there were several assessments. In the case under advisement, the evidence established the guilt of all the defendants; the jury found a joint verdict for $825. The number and conduct of all the defendants, and that it was a final finding as to all, was considered by the jury, and well calculated to enhance the damages; the plaintiff had gotten the advantage of all these, and the jury awarded to him full damages in consideration thereof. Yet by an irregularity of his own, in not having a guardian ad litem appointed for a minor defendant, his verdict and judgment are defective The court below, granted to the minor a new trial, without putting the plaintiff on his election, and overruled the motion for a new trial as to the other defendants. The judgement is certainly a departure from the verdict, and this departure not to sustain any known principle of law, but in contravention thereof. It is not to make the judgment conform to what the verdic should have been, for there is no legal standard by which to say what the verdict would have been, or should have been, had not this minor defendant also been put on trial. Buckles, &c. vs. Lambert. The jury have said in their verdict that plaintiff should recover against all these defendants $825. The court has said, by its judgment, that he shall recover against two of the defendants $825-and may hereafter recover of the other defendant another $825-if a jury shall so award; for, in answer to this, it will not do to say that the judgment bars further proceedings as to the minor defendant. This court has virtually decided otherwise in the case of Green vs. Redman, Mss. opin., Oct., 1857. It is attempted to uphold this judgment by virtue of sec. 402 Civil Code, which is in these words: "Though all the defend'ants have been summoned, judgment may be rendered against any of them severally, where the plaintiff would be entitled to judgments against said defendants if the action had been against them alone.” The rule of practice under the common law was that in a joint action of trespass the plaintiff could not proceed to trial against some of the defendants and continue as to others. This section of the Code doubtless changed that rule of practice; and this is its whole effect, as intended by the legislature, in all probability. It certainly was not intended to cure an irregularity, though such was decided in Waller, &c. vs. Martin, (17 B. Mon., 188,) which case was very properly overruled in Hedger vs. Downs, (2 Met., 160.) If it could not cure an irregularity, where the party had not been summoned, it is hard to perceive how it can cure an irregularity where a party has been summoned. It certainly gives a plaintiff the right to go to trial against a part of the defendants, but does not cure irregularities committed on the trial. It is not perceived how this irregularity could have been cured, even by putting the plaintiff on his election either to dismiss the suit as to the minor defendant or to give a new trial to all the defendants. The jury, by their verdict, have found a gross sum against all the defendants, the court, by its judgment, has said it is only against two. The jury have said that $825 shall be full compensation to plaintiff against all the defendants; the court says it shall only be so, as to part of them. The jury has said Troutman, &c. vs. Barnes. the payment of $825 shall be a finality between the parties; the court says it shall not. The court, by its judgment, rewards the plaintiff for his neglect, error and folly, with an opportunity to recover a further sum, and makes an erroneous and defective verdict and judgment more valuable to him than if these had been perfect. Such was never intended by the law. In a joint verdict and judgment against joint trespassers the law requires that the plaintiff shall be able to sustain them as to all, or they will be good as to none. Such is the law in my opinion. CASE 34-PRIVATE PASSWAY-SEPTEMBER 30. Troutman, &c. vs. Barnes. APPEAL FROM THE NELSON CIRCUIT COURT. 1. The order awarding a writ of ad quod damnum, upon an application to establish a private passway, must name the day on which the inquest is to be held, which must also be inserted in the writ-and the omission is fatal error. (Rev. Stat., chap. 84, art. 1, sec. 7; 2 Revised Statutes, page 299; 3 Mon., 50.) WM. JOHNSON, for appellants, cited 2 Rev. Stat., page 294, sec. 40; Ib., 296, sec. 10; lb., 285, sec. 3; Ib., 295, sec. 3; lb., 287, sec. 7; Ib., 295, sec. 5; 3 Met., 70; 2 J. J. Mar., 74; 3 Mon., 51; 4 J.J. Mar., 40; 2 Bibb, 4; 3 B. Mon., 300. ELLIOTT & MCKAY, on same side. A. J. JAMES, for appellee, cited 2 Revised Statutes, sec. 10 of art. 2, on page 296. J. W. MUIR, on same side, cited Act of Feb. 13, 1858. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: The county court of Nelson county, on the application of appellee, established a private passway, for his benefit, over the lands of appellant, from which judgment they appealed to Troutman, &c. vs. Barnes. the Nelson circuit court, and, that court having affirmed the judgment of the county court, they have brought the case to this court. Numerous objections are taken to the proceedings, by appellants' counsel, commencing with the order appointing the viewers, and closing with the final judgment. But, as we are of opinion that none of the objections are available, except that one which relates to the order of the county court awarding the writ of ad quod damnum, that alone will be noticed. Section 7, art. 1, chap. 84, 287, vol. 2, Rev. Statutes provides that a writ of ad quod damnum shall be awarded, if desired by any proprietor or tenant, or if the court see cause for awarding the same. Such writ shall command the proper officer to summon and impannel a jury of free-holders of the county, not related to either party, and not residing within one mile of the proposed road, to meet on the lands of the proprietors and tenants, over which it is proposed for the road, or the alteration in the road, to run, at a certain time and place, of which notice shall be given them by the officer. This section is, by statute, made to apply to passways as well as to roads, &c. (Page 299, 2 vol. Rev. Statutes.) The phrase, "at a certain time," as expressed in the sec. supra, certainly means a definite time, a particular day, to be named in the writ on which the jury is to be summoned to hold the inquest; which day should be named in the order of the county court when the writ is awarded. The writ which issued in this case fails to name the day on which the jury shall meet. At that point there is a blank; and it is left entirely to the discretion of the officer, charged with the execution of it, to determine when the inquest shall be held. This, we think, was not the design of the Legislature. This court, in the case of Irvin & Taul vs. Scobee, (3 Mon., 50,) held, in a proceeding to obtain leave to erect a mill and dam on a water course, that the order awarding the writ of ad quod damnum was not sufficient, because the day on which the inquest was to be held was not named. The language of the statute, under which the proceedings in that case were had, in relation to awarding the writ of ad quod damnum, differs some Sheets et ux vs. Grubbs' Executors. what from the language, in relation thereto, of the statute regulating the proceedings in this case-being more explicit in the former than in the latter statute-but they both, as we understand them, require the day on which the inquest shall be held to be inserted in the writ, and a failure to do so is a fatal error, as was held in the case supra. Wherefore, the order and judgment of the circuit court is reversed and cause remanded, with directions to reverse the order of the county court establishing said passway. CASE 35-PETITION EQUITY-OCTOBER 1. Sheets et ux vs. Grubbs' Executor. APPEAL FROM THE MONTGOMERY CIRCUIT Court. 1. The word children does not ordinarily denote grand children, and is never so construed except in cases where it is indispensably necessary to effectuate the obvious intent of the testator. (2 Met., 466.) 2. A devise to "the children" of the testator's sister, one of whom was dead at the time of the execution of the will, passes nothing to the descendants of such decedent. K. FARROW and BROCK & CLARKE, for appellants cited Rev. Statutes, chap." Wills," sec. 18; 10 B. Mon., 172; 11 B. Mon., 93; 2 Rev. Statutes, chapter "Heirs and Devisees;" 1 Met., 301. THOS. TURNER, for appellee, cited 2 Met., 466; Roper on Legacies, 69; Jarman on Wills, 51; 9 Dana, 2; 9 B. Mon., 204; 12 lb., 115; 2 Rev. Statutes, page 461. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: (Judge Peters did not preside in this case.) By the sixth clause of the will of Thomas Grubbs, dec'd., hedevised to the children of his sister, Mourning Boone, an equal |