was some risk that cases might arise in which, by the finding of the jury, the owner of the fee would be improved out of his estate; a lien fixed on it for more than it was worth. To guard against such contingencies, the legislature engrafted upon the bills reported by the revisors the sections under which this controversy has arisen. The 10th section enacts that "when the defendant shall claim allowance for improvements, as before provided, the plaintiff may, by an entry on record, require that the value of his estate in the premises, without the improvements, shall be ascertained." By the 11th section, the value of the premises shall be estimated as it would have been at the time of the enquiry if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner, therein before provided, for estimating the value of improvements; and by the 12th section, the plaintiff in such cases, if judgment is rendered for him, may, at any time during the same term, or before judg ment or decree is rendered on the assessment of the value of the improvements, enter on the record his election to relinquish his estate in the premises to the defendant, at the value so ascertained, &c. The remaining sections. of the chapter provide for that contingency. The word "when," used in the beginning of the 10th section," when the defendant shall claim," was not intended to prescribe the period at which the plaintiff, by entry on record, was to require that the value of his estate in the premises should be ascertained. The acts could not be contemporaneous. And when a petition was filed, as provided for in the 136th chapter, § 1, the plaintiff might not have any notice of it; the petition could be filed at any time before the execution of the judgment or decree. "When," in this as in other instances in the Code, is used in the sense of " if," "in case." The frequent use of this word in its relative sense was the subject of com

1862. October Term.

Goodwyn & als.

V.

Myers.

1862. October

Term.

& als.

V.

Myers.

ment in Pulliam v. Aler, 15 Gratt. 54. The value of

his estate is to be ascertained in the manner therein beGoodwyn fore provided for estimating the value of the improvements—that is, by a jury; that being the way or method provided for making all the assessments and estimates referred to in the two chapters. But there is nothing to show that the value was to be ascertained by the same jury. I incline to think it was not so intended, or else it would have been expressed. This provision, as has been shown, was a new one, forming no part of the scheme reported by the revisors, and not found in the former acts of assembly; and there was good reason why it should not be blended with the other enquiries. This enquiry was of a different character, and the necessity for it would depend on the result of the previous investigation. Until it was ascertained that there. would be a balance in favor of the defendant for improvements, it would be unnecessary to enter into the enquiry as to the value of the land. The jury, if confined to the assessment of damages for mesne profits and waste, and to the allowance for improvements, had many perplexing points to settle; such as the bona fides of the tenant in making the improvements, the nature of the improvements, whether permanent or temporary, the amount of rents or profits, the damages for waste and destruction. What reason of convenience would there be in perplexing the jury with testimony touching a matter foreign to all the other questions-a matter which, if the jury made no allowance for the improvements, they would not be required to consider. It is for the plaintiff to determine whether he will require the valuation, in order to a relinquishment of his estate; and justice would seem to demand that he should know whether any charge would be fixed on his estate, and the amount of it, before incurring the trouble and expense of proving the value of his interest, and con

suming the time of the court and jury in what might turn out to be a fruitless enquiry. Such enquiry, too, if made necessarily before the same jury, might tend to his prejudice upon the other subjects to be investigated. It might be inferred that he was conscious the improvements were made when the defendant, or those under whom he claims, believed they held under a good title, notwithstanding any efforts of the plaintiff to make the contrary appear. Or it might be ascribed to a more intimate knowledge of the value of the improvements; or the conviction that his claim to damages for waste and destruction was unfounded. Considerations of this kind may exercise an influence over the minds of jurors to an extent of which they themselves are unconscious, and give a coloring to the evidence which, but for such impressions, it would not bear. The plaintiff must enter on the record his election to relinquish his estate, during the same term, if judgment is entered for him, or before judgment is rendered on the assessment of the value of the improvements.

The act, I think, contemplated all the enquiries, as well those relating to damages and allowance for improvements as those to ascertain the value of the plaintiffs' estate in the land, if no such improvement had been made, to be directed to the same period of time. The value of the plaintiffs' estate shall be estimated as it would have been at the time of the enquiry, is the language of the act, which I think relates to the enquiry into all the subjects contemplated by the act, as well as this particular one to ascertain the value of the land. All must be made during the same term, unless in some rare case, owing to a disagreement of the jury or some unforeseen contingency, as in the present case, where the court held the case over for advisement, the enquiry may be postponed; but in such case it would be attended with no difficulty in ascertaining the value as it was at the time when the VOL. XVI.-26

1862. October Terin.

Goodwyn

& als.

V.

Myers.

1862. October

Term.

& als.

V.

Myers.

estimate for the allowance for improvements was made. The spirit of the act would be carried out; and as it is Goodwyn remedial, giving a remedy for what would otherwise be a crying enormity, the disherison of men, by compelling them to pay for improvements they did not make, and perhaps would not have desired, it should receive a fair construction, so as to effectuate the intention of the legis lature and do justice to both parties. I think the motion was in time, and that the court should have sustained it, and erred in overruling it; and therefore, that the judgment should be reversed and the cause remanded; and unless the plaintiffs, when the case is again docketed, shall waive their right, that a jury should be impanelled and sworn to ascertain what was the value of the estate of the plaintiffs in the declaration demanded, without the improvements, as of the 24th day of November, 1856, the time when the former verdict was found; and upon the coming in of such verdict, if the plaintiffs in person, or by their attorney in the cause, enter on the record their election to relinquish their estate in the premises to the defendant, at the value so ascertained, the court to make all proper entries and render judgment according to law. But if the plaintiffs shall waive their right to require that the value of their estate in the premises, without the improvements, shall be ascertained, the court is to proceed and enter judgment on the verdict so found on the 24th day of November, 1856. Which is ordered to be certified.

The other judges concurred in the opinion of Allen, P.

JUDGMENT REVERSED.

Richmond.

JONES v. BRADSHAW & others.

February 18th.

1. The act, Code, ch. 171, § 19, p. 711, applies only where the objection to the jurisdiction of the court is for mere matter of abatement; as where the case is a proper one for a court of equity, but not for the particular court in which the suit is brought; or where the suit ought to be abated by reason of some circumstances attending the situation of the plaintiff or defendant, or the like.*

2. Where a bill alleges proper matter for the jurisdiction of a court of equity (so that a demurrer will not lie), if it appears on the hearing that the allegations are false, and that such matter does not in fact exist, the result must be the same as if it had not been alleged; and the bill should be dismissed for want of jurisdiction.

3. The ground of equitable jurisdiction stated in the bill, being the want of a discovery from the defendant, and it appearing from the evidence that as to some material facts alleged the plaintiff had full proof, and as to the others they were merely pretences, the bill will be dismissed at the hearing for want of jurisdiction.

4. If, pending an appeal in the Court of Appeals, the defendant has satisfied the decree, upon a reversal of it the Circuit court should make an order of restitution in his favor.

This was a suit in chancery brought in the Circuit court of Lunenburg, and afterwards removed to the Circuit court of Nottoway, by Anderson B. Bradshaw

*The act says: "Where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for the want of such jurisdiction shall be allowed, unless it be taken by plea in abatement; and the plea shall not be received after the defendant has demurred, pleaded in bar, or answered to the declaration or bill, nor after a rule to plead or a conditional judgment or decree nisi.”

1863. January Term.