Volume 100 — Virginia Reports

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk, rendered October 26, 1900, in an action of trespass on the ease, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Wills—Payment of Debts—Charging Real Estate.—Where it is manifest that a testator intended that his debts should be paid out of his personal estate, a direction in his will that his just deots shall be paid out of the funds applicable thereto is not a charge of his real estate with the payment of his debts.</p> <p>2. Executors and Administrators—Real Assets—Code, See. 2665—Con-tribution Between Devisees. —Section 2665 of the Code, making real estate of decedents assets for the payment of debts, does not give a devisee of encumbered lands a right of contribution from devisees of unencumbered lands. The object of the statute was to do away with the distinction between debts chargeable on decedents’ lands at common law and simple contract debts, and not to disarrange . the order of liability of the assets of a decedent’s estate which had been firmly established.</p> <p>3. Wills—Devise of Encumbered Real Estate—Contribution.—If a testator does not charge his real estate with the payment of his debts, but, after making his will, encumbers a portion of his real estate by a specific lien, the devisee of such portion, as between him and the devisees of other'real estate, takes it cum onere.</p> <p>4. Executors and Administrators—Payment of Debts—Order of Liability of Estate.—The order in which the estate of a testator will be applied to the payment of his debts is as follows: The first to be so applied is the personal estate at large not exempted by the terms of the will or 'by necessary implication. Next to it, real estate or an interest therein expressly set apart by the will for payment of debts. Next, real estate descended to the heirs. After it, property, real or personal, expressly charged with payment of debts, and then, subject to such charge, specifically devised or bequeathed. If ' these prove inadequate, then general pecuniary legacies, and after them, specific legacies, both classes ratably; and, in the last resort, ' real "estate-devised by the will.</p>

Appeals from two decrees of the Circuit Court of the city of Radford pronounced November 17, 1900, and March 9, 190J, respectively, in a suit in chancery, wherein the appellees were the complainants, and the appellant and others were the defendants.

Appeal fro-m a decree of the Circuit Court of Shenandoah county pronounced April 11,1899, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.

<p>1, Ejectment&emdash;Constructive Possession&emdash;Conveyance of Part in ActuaV Possession.&emdash;Constructive possession is dependent upon the actual possession, and must continue or fail with it. Hence, if the occupy-ing claimant conveys that part of the tract of which he had actual possession, but not the whole tract, he loses his constructive pos-session of the residue, unless he takes actual possession of some part thereof.</p> <p>2. Biel oe Review&emdash;Record.&emdash;For the purpose of examining all errors. of law, the pleadings and other proceedings in the cause are to be-looked to on a bill of review, as they are as much a part of the record as the decree complained of itself.</p> <p>i. Ejectment&emdash;Color of Title.&emdash;Color of title, for the purpose of adverse possession under the statute of limitations, as to land, is that which has the semblance or appearance of title, legal or equitable, but which in fact is no title. It is not necessary that the title under which a party claims should be a valid one, or that his grantor should have had title. A claim under a grant is a claim tinder color of title, and will draw to the possession of the grantee the-protection of the statute of limitations if the other requisites of the-statute are complied with.</p> <p>5. Ejectment&emdash;Color of Title&emdash;Effect&emdash;Claim of Title.&emdash;The only effect of claiming under a deed, or paper title, upon the question of adverse possession, is to enlarge and extend the possession beyond the por-tion actually occupied to the whole lot described in the deed. To-constitute an adverse possession of land, entry and possession un-der claim of right or title is sufficient.</p> <p>6. Ejectment&emdash;Color of Title&emdash;Description&emdash;Extrinsic Evidence.&emdash;Any de-scription which, unaided by extrinsic facts, satisfies the mind that the land adversely occupied is embraced within the description given in the deed will be sufficient. So, also, an indefinite descrip-tion will be sufficient if the court can, with the aid of extrinsic-evidence which, does not add to, enlarge, or in any way change the ■description, fit it to the property conveyed hy the deed. But the description must he such that it can he rendered certain hy such .evidence.</p>

<p>Original application for writ of mandamus.</p>

<p>1. Demurrer to Evidence&emdash;Rule of Decision.&emdash;On a demurrer to tbe evidence, the demurrant admits the truth of his adversary’s evi-dence, and all just inferences that a jury could properly draw therefrom, and waives all of his own evidence in conflict with that of the demurree, and all inferences therefrom, although not in con-flict with the evidence of the demurree, which do not necessarily flow therefrom.</p> <p>2. Negligence&emdash;Proximate Cause&emdash;Case at Bar&emdash;Dorse Frightened by One Obstruction, Runs and Strikes Another Obstruction.&emdash;Proximate cause, as a legal term, does not necessarily imply closeness or near-ness in point of time, or physical sequence of events, but rather closeness or nearness in casual connection. In the case at bar, a collision with a telephone pole near the center of a road caused the plaintiff’s horse to run away and collide with a second pole near the side of the road, causing the injury complained of.</p> <p>Held: The first pole was the natural and proximate cause of the accident.</p> <p>3. Road Law&emdash;Opening or Changing&emdash;Special Law for Amherst County.&emdash; Chapter 43 of the Code, so far as it relates to altering the location of an old road, or the establishment of a new road, is still in force in Amherst county, and is not affected by the special road law passed for that county. Acts 1891-2, p. 877.</p> <p>4. Roads&emdash;Jurisdiction of County Courts&emdash;Obstruction&emdash;Power of courts alone have jurisdiction to alter the location of old roads, or establish new ones, and until an old road has been altered or discontinued as prescribed by law, the public has the1 right to continue to use it. Supervisors have no power to consent to the obstruction of a public road.</p> <p>5. Telegraph and Telephone Companies&emdash;Use of State and County Roads.&emdash;The right given by section 1287 of the Code to telegraph and telephone companies to construct, maintain and operate their lines along any of the State or .county roads is expressly qualified by the provision that the ordinary use of such roads is not to be ’.hereby obstructed.</p> <p>-8. Contbibutoby Negligence—Burden of Proof.—Contributory negligence is a matter of defence. The law does not presume it, and the burden of proving it rests upon the defendant, unless the plaintiff’s evidence develops it, in which event the burden is shifted.</p> <p>.7. Public Roads—Safe Condition—Presumption—Use at Wight.—Every one has the right to presume that a public highway is in a reasonably safe condition, and may travel upon it the darkest night, when in fact he is practically a blind man.</p>

<p>Error to a judgment of the Corporation Court of Buena Vista, rendered August 23, 1900, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Appeal from a decree of the Circuit- Court of the city of Lynchburg, pronounced September 21, 1900, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Fraud—Improvements on Another’s Land—Rights of Creditors.—Improvements put upon the property of another by an insolvent debtor may be followed by his creditors, and the realty on which they are placed may be charged with their value.</p> <p>2. Assignments—Right to Avoid Prior Fraudulent Conveyance.—A purchaser of a pre-existing note may sue in equity to avoid a conveyance made in fraud of the rights of the holder before his purchase. The rule that a mere naked right to sue to avoid a fraud is not assignable does not apply to a case where such right is merely incidental to a subsisting substantial property which has been assigned, and which is itself intrinsically susceptible of legal enforcement.</p> <p>3. Trusts and Trustees—Support of Beneficiary—Discretion—Fraud— Injury to Creditors.—Where a father who is trustee for his wife and children, and as such invested with a discretion to spend the income of the trust subject for their maintenance and support, collects the income, and mingles it with his own, and makes extensive improvements on the trust subject, but settles no account of his transactions, he will not be permitted, to the prejudice of his creditors, to assert that he has supported his wife and children from his'private means, so as thereby to enhance the value of the trust subject. He will be held to have supported them out of the trust funds, and his creditors will be permitted to follow his estate into the trust subject.</p> <p>Í. Trusts and Trustees—Express Trust—Support of Children.—A devise to a father for the support and maintenance of his wife and children creates an express trust for the latter, and the income derived from the trust subject must be so applied irrespective of the father’s ability to support and maintain them.</p>

<p>Appeal from two- decrees of the Chancery Court of the city of Richmond, pronounced July 21, 1899, and July 12, 1900, in a suit in chancery wherein appellants were the complainants, and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Dickenson county, rendered August 23, 1900, in an action of ejectment wherein the plaintiffs in error were the plaintiffs, and the defendant in •error was the defendant.</p>

<p>Appeal from a decree pronounced October 30, 1899, by the Circuit Court of Middlesex county in a suit in chancery, wherein the appellants and others were the complainants, and the appellees were the defendants.</p>

<p>Original application for a mandamus.</p>

<p>1. Evidence—Ejectment—Record of Prior Suit Between Other Parties.— In an action of ejectment, the record of another action of ejectment between other parties, not in privity with the parties to the present suit, is not competent evidence upon a question of boundaries, or the location of the land in controversy.</p> <p>2. Appeal and Error—Neto Trial—Conflicting Evidence—Province of Jury.—The evidence in the case at bar was not only obscure and uncertain, but was conflicting, and it was peculiarly the province of the jury to weigh it, and determine from it what facts were proved. Under these circumstances, a verdict which has been approved by the trial judge who heard the witnesses will not be disturbed by this court.</p>

<p>Error to a judgment rendered December 13, 1900, by the Circuit Court of Nansemond county, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News, rendered December 10, 1900, on an appeal from the Police Justice of said city, imposing a fine on the plaintiff^ in error for doing business in said city without having paid the license taxes imposed by the ordinances of said city.</p>

'Error to a judgment of the Circuit Court of the city of Richmond rendered November 10, 1900, in an action of ejectment wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.

<p>Appeal from, a decree pronounced by tbe Corporation Court of the city of Winchester, September 30, 1898, in a suit in chancery wherein appellants were the complainants, and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Henrico county, rendered October 29, 1900, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Appeal from two decrees of the Corporation Court of the city of Danville, pronounced, respectively, December 21, 1899, and February 5, 1900, in a suit in chancery wherein the appellant was admitted a party complainant, and the appellees were the defendants.</p>

<p>Error to a judgment of the Hustings Court of the city of Roanoke, rendered October 1, 1900, on a petition for a mandamus, wherein the plaintiff in error was the plaintiff, and the defendant in error was the respondent.</p>

The bill in this cause was filed in the name of TP. H. Boisseau, Sergeant of the city of Danville, Ya., who sues for the benefit and at the costs of Jennie M. Eobinson.”

<p>Appeal from a decree of the Circuit Court of Powhatan county, pronounced April 18,1901, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

Em® to a judgment of the Circuit Court of the city of Rich-mond, rendered April 9, 1901, in an action of assumpsit wherein' the plaintiffs in error were the plaintiffs, and the defendants in error were the defendants. The evidence in this case was sufficient to sustain the charge of fraud on a demurrer to the evidence, but, in the view of the case taken by the court, the fraud did not affect the result.

<p>1. Husband and Wife&emdash;Custody of Infant.&emdash;Ordinarily the father is en-titled to the care and custody of his infant child, but when the father is claiming the custody of the child, the court will exercise its discretion according to the facts and what appears to be the best interest of the child. The welfare of the child is the control-ling .consideration.</p>

<p>1. Municipal Corporations—Streets—Public Grossing—Street Railways.—It is immaterial whether a street which crosses an electric railway is or is not an established public highway when it appears that the crossing is constantly used by the public, and its importance is known to and recognized by the railway company.</p> <p>2. Municipal Corporations—Defective Streets—Use—Evidence.—The fact that a street in a dangerous condition was used by others in the same manner and about the same time that it was used by the plaintiff, though not conclusive on a question of contributory negligence, is relevant evidence to be considered in connection with all the facts and circumstances of the ease in determining the question of due care on the part of the plaintiff.</p> <p>3. Street Railways—Obstructing Grossings—Snow.—A street railway company has no right to obstruct a public street .crossing in removing snow from its track if it can reasonably deposit the snow elsewhere. Whether it can so deposit it is a question for the jury under the evidence of the particular case. If there are two or more methods of depositing it of nearly equal convenience, that one must be adopted which will result in the least injury.</p> <p>4. Municipal Corporations—Defective Streets—Use—Negligence per se.— It is not negligence per se to use a street crossing known to be dangerous, unless the danger is so apparent that, in the exercise of ordinary care, the traveller should not attempt to use it. If reasonably fair-minded men would differ as to the propriety of encountering the danger, then it is for the jury to determine, upon all the facts and circumstances of the case, whether the attempt to cross was an act of negligence or not.</p> <p>Ü. Trial—Law and Fact—Province of Court and Jury—Reading Boohs to Jury.—It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as laid down by the court. Counsel should not be allowed to read law books to the jury, as it is calculated to mislead and confuse them, and K.use them to disregard the instructions of the court. Norfolk & W. JR. Co. v. Harman, 83 Va. 553, overruled.</p> <p>6. Verdicts—Excessive Damages.—A verdict for $2,500 as compensation for a broken leg and much consequent suffering will not be set aside as excessive, in the absence of any evidence that the jury were actuated by any improper motive, gross error, or misconception of the subject.</p> <p>7. Verdicts—Negligence.—Where a ease involving the determination of the negligence of the defendant and the contributory negligence of the plaintiff has been fairly submitted to the jury, under proper instructions, their verdict cannot be disturbed unless it is plainly in violation of the law, or is without evidence to support it.</p>

. Appeal from a decree of the Circuit Court of Norfolk county, pronounced June 24, 1901, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.

<p>1. Mabbiage and Divorce—Common Lato Marriage Void in Virginia.— The enactment of our statute, now section 2222 of the Code, wholly abrogated the common law in force in this State on the subject of marriages; and no marriage or attempted marriage, if it took place in this State, can be held valid here unless shown to have been under a license, and solemnized according to our statute. The language of the statute is mandatory, and not simply directory.</p> <p>2. Statutes—Construction—Mandatory Provisions.—When the strict letter of a statute leaves a doubt as to what is meant or intended, the legislative intent is to be gathered from the aot read as a whole, together with other acts in pari materia; and, when the whole aim of the Legislature will be plainly defeated if the direction to do an aot in a particular way be not held to be exclusive of all others, the direction will be held to be mandatory.</p> <p>3. Dower—Judgment Against Husband Before Marriage.—Judgments against a man before marriage are paramount to the claim of his widow to dower.</p>

<p>•1. Sales—Late Delivery—Waiver.—The acceptance by a vendee of a late delivery will not be deemed a waiver of the consequent damages sustained by him, where it appears that there was no intention to waive such damages.</p> <p>2. Sales—Late Delivery—Demurrage—Damages.—The vendee of goods may recover of his vendor, or set off against a demand for purchase money, reasonable demurrage and dead freight which the vendee has been .compelled to pay in consequence of the failure of the vendor to furnish the goods within the time and in the quantity stipulated for.</p> <p>3. Contracts—Breach—General and Special Damages.—The damages which a party may recover for a breach of contract are such as ordinarily and naturally flow from its non-performance, which are proximate and certain, or capable of being made certain, and not remote, contingent, or speculative. If the contract be made with reference to special circumstances which fix or affect the amount of damages, such circumstances are regarded as within the contemplation of the parties, and damages may be assessed accordingly.</p> <p>4. Contracts eor Future Delivery oe Goods—Breach—Sub-Vendees— Damages.—The measure of damages for the breach of an executory contract to sell and deliver personal property is usually the difference between the contract price and the market price, at the time and place of delivery, with interest. But if, at the time the contract is made, the seller knows that the goods are being purchased for the purpose of enabling the buyer to fulfill a sub-contract, he may reasonably be deemed to have made his contract in contemplation of that purpose, and to have assumed the risks thereby entailed, and, if he breaks his contract, damages for losses caused thereby, if not remote, .contingent or uncertain, may be recovered. And if in such case there is no market in which the buyer can readily obtain the goods, on the seller’s breach of the contract, the buyer may either go into the market and purchase the best substitute obtainable, charging the seller with tne difference between the contract price and the price of the goods substituted, or he may abandon his sub-contract, and recover of the seller the loss of profits on the sale, and indemnity in respect of any damages (including costs reasonably incurred), or penalties which he has been compelled to pay for breach of his sub-contract; but unless the amount of the particular damages or penalties has been made known to the seller, the buyer is not entitled to recover their amount as a matter of right, though, if reasonable, the jury may assess the indemnity at that amount.</p> <p>5. Sales—Sub-Vendee—Special Profits—Mitigation oj Damages.—In order to entitle a buyer to claim exceptional profits arising from a sub-sale, express notice of the amount of such profits must have been given to the seller at the time when the contract was made, under circumstances implying that he accepted the contract with the special condition attached to it. And, in order that the buyer may recover the full amount of damages, he must have acted throughout as a reasonable man of business, and done all in his power to mitigate the loss.</p> <p>6. Sales—Case at Bar—Breach of Contract to Deliver—Sub-Vendees— Damages.—In the case at bar a vendor contracted to sell a bill of lumber of particular sizes and lengths, to be delivered on board a vessel at a designated time and place, knowing that his vendee had contracted to deliver the lumber to a sub-vendee for a particular purpose, and at a designated time and place. The vendee chartered a vessel to carry the lumber, and had it ready at the time and place stipulated, but the lumber was not then delivered, and only a part of it was delivered about a month afterwards. The vendee was prevented from otherwise employing the vessel by the repeated promises of the vendor to deliver the lumber. In consequence of these defaults of the vendor, the vendee was compelled to pay demurrage and dead freight on deficiency in cargo, and damages for failure to fulfill his contract with his sub-vendee, and, in addition; lost the profits he would otherwise have made on his contract.</p> <p>Held: It was not error to refuse to set aside a verdict m favor oi the vendee for the above items of demurrage, dead freight, damages and loss of profits.</p>

<p>Error to a judgment of the Law and Chancery Court of the eity of 'Norfolk, rendered October 20, 1900, in an action of assumpsit wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Mandamus&emdash;Title to Office&emdash;Detinue&emdash;Quo Warranto.&emdash;Mandamus is an appropriate remedy to compel one not entitled to a public office to refrain from exercising its functions, and to deliver to the rightful claimant property belonging to the office. Neither detinue nor quo warranto are adequate remedies, even if detinue would lie in such ease to recover the property.</p> <p>2. Quo Warranto&emdash;Title to Office.&emdash;Title to a public office may be by quo warranto, but that remedy is not exclusive, and is not the usual remedy resorted to by a successor in office to try the title of his predecessor and to recover the property belonging to the office.</p> <p>3. Mandamus&emdash;Other Adequate Remedy.&emdash;To supersede the remedy by mandamus the party must not only have a specific remedy, but one competent to afford relief upon the very subject matter of litiga-tion, and one which is equally as beneficial and effective as the proceeding by mandamus.</p> <p>4. Statutes&emdash;Repeal by Implication&emdash;Mandamius&emdash;Quo Warranto&emdash;Oode, Chapter 1J¡5.&emdash;Repeals by implication are not favored, and it is not to be presumed that a useful remedy which has been long resorted to has been taken away unless such intention is plainly expressed. Chapter 145 of the Code does not abolish by implication the procedure of trying title to office by mandamus.</p> <p>5. Constitutional Law&emdash;Re-Enactment of Statutes&emdash;Electoral Boards.&emdash; An independent resolution of the General Assembly appointing members of an electoral board for a single county, thereby supply-ing an omission under a previous act, amending a section of the Code, but leaving the general law intact, is not an amendment of the previous law in the sense that it must be re-enacted and at length as required by Article V., Section 15, of the Comstitution.</p> <p>6. Officers&emdash;Legislative Power Over&emdash;Vested Rights&emdash;Case at Bar&emdash;Elec- toral Boards.—An office created by statute is wholly within the control of the Legislature. The term, mode of appointment, and compensation may be altered by the Legislature at pleasure, and the compensation may be taken away entirely without abolishing the office. There are no constitutional limitations on that power, and the Legislature may exercise it without let or hindrance. The officer has no vested rights in the office as against the Legislature. In the case at bar the former officers were simply holding over after their term of office had expired until their successors were elected and had qualified. When this was done, they no longer had any right to hold the office.</p>

<p>Appeal from a decree of the Circuit Court of Louisa county, pronounced September 22, 1900, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.) The decree directing the removal of the cause also contains the adjudication complained of.</p>

<p>Appeal from a decree of the Corporation Court of the city of Danville, pronounced September 15, 1900, in a suit in chancery, •wherein the appellee, Berkeley and others, were the complain-ants, and the appellants and others were the defendants.</p>

<p>1. Pleading&emdash;Damages&emdash;General and Special&emdash;How Pleaded&emdash;Exemplary Damages&emdash;Bill of Particulars.&emdash;Under the common-law system of pleading, damages which do not necessarily flow from the act or omission complained of musjt be specially pleaded, but1 damages which are the necessary and proximate result of such act or are termed general, and are legally imported, and may he although not specially claimed in the declaration. If the facts averred in the declaration show that the plaintiff is1 entitled to recover exemplary damages, they need not 'he claimed eo nomine. If a more specific statement of the elements of damage he desired, it may be demanded under the provisions of section 3249 of the Code.</p> <p>2. Pleading&emdash;Certainty.&emdash;The facts which constitute the cause of action should he set forth in the pleadings with sufficient certainty to he understood by the party who is to answer them, By the jury who are to ascertain the truth, of the allegations, and by the court which is to render judgment.</p> <p>3. Pleading&emdash;Repeated Injuries&emdash;How Pleaded&emdash;Exemplary Damages.&emdash;An allegation in a declaration that certain acts and omissions which constitute the cause of action were “wrongs repeatedly committed against the plaintiff” is a sufficient charge that they were willful and wanton, and will warrant a finding of exemplary damages.</p> <p>■4. Banks&emdash;Failure to Pay Check&emdash;Measure of Damages.&emdash;The failure of a bank to pay checks of a depositor properly drawn on funds on and duly presented, gives the depositor a right of action against the hank, and if such failure is willful and malicious, or is due to negligence so gross as1 to evince a culpable indifference to consequencés and the rights of the depositor, he has the right to exemplary damages. But where the failure is due to the of the book-keeper, for which the president promptly and offered to correct the error as far as possible, and there is an absence of any fraud, malice, oppression or other special cir■cumstances of aggravation the recovery will be limited to the actual damages sustained.</p> <p>5. Evidence—Motive—Measure of Damages.—-Where the measure of recovery in action of tort is determined by the motive with which an ¡act was done, all circumstances tending to show the presence or absence of such motive are admissible in evidence.</p>

<p>Error to a judgment of the Circuit Court of. the city of Lynchburg, rendered January 1Y, 1901, in an action of assump-sit, wherein the plaintiff in error was the plaintiff, and the in error was the defendant.</p> <p>The city claimed an unlimited power of taxation by reason of chhp. 8, sec. 5, of its charter, which, so far as it need be quoted, is as follows, to-wit:</p> <p>“The Council may impose a tax on . . . agents of all kinds. . . . As to all such persons or employments, the Qpuncil may require a license therefor, under such regulations as it may prescribe, and levy a tax thereon.”</p> <p>The second count of the declaration, amongst other things, alleged that the tax imposed upon him was in restraint of trade, and that it was unreasonable, excessive, oppressive, and unfair, and was and is without authority of law, a palpable attempt on the part of the City Council to prohibit the plaintiff from engaging in a useful and legitimate business and occupation licensed by the State. The general counts in the declaration were stricken out, and the case heard on special counts only. To this declaration and to each count thereof there was a demurrer. The grounds of demurrer relied on are as follows:</p> <p>1st. That trespass on the case in assumpsit is not the proper action by which to assert plaintiff’s claim.</p> <p>2d. That the levying of the license tax of $500 on the plaintiff is legal, and neither the propriety of levying- such tax nor the amount thereof can be inquired into by the court.</p> <p>3d. Even if such tax was excessive and its collection illegal it cannot be recovered back, because:</p> <p>(a) It was not paid under compulsion.</p> <p>(b) The city had a right to impose some tax on the employment of an agent for hiring labor, and at least a part of the tax was proper, certainly the whole of it was not illegal.</p>

<p>1. Evidence&emdash;Irrelevant&emdash;Refusal to Strike Out&emdash;Instructions to an action against a Tailroad com-pany to recover damages for killing a person while walking on defendant’s track, evidence of such person’s knowledge of signals intended solely to secure the safety of persons and property on the trains of the defendant is impertinent, and should be excluded. The error in admitting such evidence, or in refusing to strike it out, is not ..cured by instructing the jury that if they believe the signals were for the use and guidance of the employees of the and not for the public, then the deceased could not rely on them.</p> <p>2. Instructions&emdash;Form&emdash;Negligence and Contributory Negligence.&emdash;Where the negligence of the defendant and the contributory negligence of the plaintiff are material elements of a case, the better practice is to state the relative duties of the plaintiff and the defendant in the same instruction, for, although instructions are to be read if the duties are stated separately in different instructions, some concluding with directions to find for the plaintiff in one ' view of the ease, and others to find for the defendant in another view, the tendency is to confuse the jury.</p> <p>3. Railroads&emdash;Walking on Track&emdash;Look Out&emdash;Negligence.&emdash;It is the duty of a person walking on a railroad track to listen and keep a con-stant lookout for approaching trains in order to avoid danger to himself, and the necessity for doing so is not relieved by the if any, of the railroau company or its servants.</p> <p>4. Instructions&emdash;Contributory Negligence&emdash;Different Aspects.&emdash;If, under the evidence, a plaintiff’s contributory negligence may have either in going upon a trestle, or in the failure to exercise due care after getting thereon, an instruction which limits it to the former is erroneous.</p> <p>5. Railroads—Trespassers—Licensees—Foresight—Frequented Points —Although a railroad company ordinarily owes no duty of foresight to trespassers on its track, still it is the duty of the company to use reasonable care to discover and not to injure persons (.whether trespassers or licensees) whom it may reasonably expect to be on its track at a point which it knows has been, for 3>-ears, and is still in the constant an'd daily use as a walkway of a large number of persons in that vicinity.</p> <p>6. Instructions—Fully Instructed.—It is nor error to refuse instructions on points on which the jury have been already sufficiently instructed.</p> <p>7. Death by 'Wrongful Act—Elements of Damage—Mental Anguish.—In ascertaining the damages to be recovered by a wife for the wrongful death of her husband, the jury should consider all of the surrounding circumstances shown in evidence, the mental ana physical anguish of the deceased, the mental anguish of the wife, the loss of the solace and comfort growing out of the husband's death, and the business habits and earning capacity of the husband as affecting his .capacity to earn a livelihood for his family.</p> <p>8. Contributory Negligence—Discovery—Reasonable Care.—The defendant, under the evidence in this ease, is liable for the injury inflicted on the plaintiff, notwithstanding the latter’s contributory negligence, if, by the exercise of reasonable care, it could have discovered and avoided such injury.</p> <p>9. Instructions—Evidence to Support.—It is error to give an instruction when there is no evidence tending to support it.</p>

This is the second appeal in this case. Land v. Shipp, 98 Va. 284. When the case was sent hack to the Circuit Court, the depositions of the trustee who made the sale, and of the purchaser, were taken to show the intent of the purchaser and the trustee in the application of part of the proceeds of the sale of the land under the second deed of trust to the debts secured by the first deed of trust.

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced November 12, 1900, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Pleading&emdash;Negligence&emdash;Bow Charged&emdash;Street Railways.&emdash;A declaration against a street-car company which charges that the company so “negligently, carelessly, recklessly and improperly” managed its cars as to inflict the injury complained of upon the plaintiff, who was in and upon the street of the city, sufficiently charges a breach of duty by the defendant, without giving other particulars.</p> <p>2. Expert Evidence&emdash;Street Railways&emdash;Speed.&emdash;Expert testimony is ad-missible to show within what space a street oar running under given .conditions may be stopped.</p> <p>3. Street Railways&emdash;Spteed&emdash;Statutes&emdash;Ordinances&emdash;Negligence.&emdash;Statutes and municipal ordinances regulating the speed of railroad trains and street cars at certain places are made for the protection of travellers, and any violation of them is competent evidence of negligence in an action brought by a traveller on the highway, even though only a penalty is imposed for their violation.</p> <p>4. Street Railways&emdash;Municipal Regulations&emdash;Speed.&emdash;Street railway companies are subject to reasonable municipal or police control, and are bound by reasonable ordinances fixing rate of speed, though passed after they had obtained the right to run their cars upon the streets of the city.</p> <p>5. Instructions&emdash;Evidence io Support.&emdash;It is error to give an instruc-tion when there is no evidence tending to prove the facts upon which it is based.</p> <p>6. Instructions&emdash;Error&emdash;E¶ect on Verdict.&emdash;It will be presumed that an erroneous instruction affected the. verdict of the jury, and it will be set aside unless it appears from the whole record that the error did not affect, and could not have affected, the verdict.</p>

<p>Error to a judgment of the Circuit Court of Carroll county, rendered May 5, 1900, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Common Carrier&emdash;Evidence.&emdash;For the purpose of showing the speed at which a train was moving at the time of an accident, employees of the railway company and others, who are shown from their previous employments and occupations to have had frequent of observing trains in motion, are competent witnesses; the weight to be attached to their testimony being a matter for the determination of the jury in the light of all the circumstances.</p> <p>2. Pleading and Practice&emdash;Instructions to Jury.&emdash;It is not error to refuse instructions when the propositions of law, although stated therein, are sufficiently covered by other instructions which are granted.</p> <p>3. Common Carrier&emdash;Duty to Passenger&emdash;Section 1296 of Code.&emdash;It is the duty of a common carrier to exercise the highest degree of care for the safety of its passengers, nor can it by contract exempt itself from this duty, or avoid the consequences of its own negligence, or that of its servants; such a contract being repugnant to section 1296 of the Code. ></p> <p>4. Common Carrier&emdash;Duty to Passenger Travelling Upon a Free Pass.&emdash;A person travelling upon a free pass is clothed with every right to a passenger for hire; and a railway company, having by virtue of the pass undertaken to carry the person to whom it is issued, is charged with the duty of transporting that person safely, even though by agreement signed by the passenger it under-took to relieve itself from the consequences ot the negligence of its servants; such an agreement being against the policy of the State, inoperative, and void.</p>

<p>1. Bills or Exception&emdash;Rulings on Instructions.&emdash;One bill of exceptions, duly taken, is sufficient to bring up for review, in tbe appellate court, all of tbe instructions given or refused over objections thereto, though the exceptant may, in the appellate .court, abandon his objection to any one or more of the rulings excepted to.</p> <p>2. Pleading&emdash;Declaration&emdash;Exemplary Damages&emdash;How Charged.&emdash;Exemplary damages need not be claimed eo nomine in the declaration. It is sufficient if the facts averred warrant the finding of such damages, and are stated with sufficient distinctness to inform the defendant of the nature of the charge he is required to meet.</p> <p>3. Pleading&emdash;Negligence&emdash;Exemplary Damages&emdash;How Claimed in charge in a declaration against an- electric street railway .company that it so carelessly and negligently constructed and maintained its tracks and wires, and so carelessly and negligently failed to keep them in repair, as to permit the escape of electricity by which the plaintiff was directly injured&emdash;describing tne manner and extent of the injury&emdash;is sufficient to warrant the introduction of evidence tending to show such negligence on the part of the company at the time of, and immediately preceding for several months, the injuries to the plaintiff as would justify the finding of exemplary or punitive damages.</p> <p>A Damages&emdash;Mental Anguish&emdash;Excessive Verdict&emdash;Case at Bar.&emdash;In an action to recover damages for a physical injury inflicted on the plaintiff, the jury may consider such inconvenience, discomfort, and mental suffering as might have been entailed upon him by the and also his consequent disability. Under the evidence in this case, a verdict for $550 cannot be regarded as excessive, and there is nothing to warrant the conclusion that the jury were influenced by partiality or prejudice, or any mistaken view of tbe evidence.</p>

<p>1. Eminent Domain&emdash;Elements of Damage.&emdash;While, in condemnation no damages can be allowed for injuries to the trade or business of the land-owner, it is proper to consider the uses of the land for all purposes, and particularly the uses to which the owner has applied it, and also all the facts and circumstances likely to enter into the value of the land. Injury to access, and increase of difficulty and costs of handling freight on the residue of the land, are proper elements of damage to be considered.</p> <p>2. Eminent Domain&emdash;Conditional Award, of Damages&emdash;Surplusage.&emdash;Under the evidence in this cause, it was not error .in the trial court to strike out, as surplusage, a clause in the report of the to assess damages to the effect that the condemned was to be acquired on condition that the railroad company should, on the application of the defendants in error, construct a designated spur track at a cost of $500, to be paid by the defend-ants in error.</p>

<p>1. Negligence&emdash;When Presumed.&emdash;A presumption of negligence from the simple occurrence of an accident arises where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar eases; or where it is caused by the mismanagement or misconstruction of a thing oyer which the defendant has immediate control, or for the management or construction of which he is responsible. In the case at bar, the plaintiff in error was held liable for an injury on defendant in error while he was attempting to hold his horse, which was frightened by the loud noise an'd smoke arising from the machinery of an electric car of plaintiff in error, which noise and smoke were shown not to be incident to the ordinary operation of such cars, and were not shown by the plaintiff in error to have been without its negligence.</p> <p>2. Instructions&emdash;Opinion on Weight of Evidence.&emdash;In the absence of any evidence from which a jury might find the existence of a fact, it is not error for the trial judge to express the opinion that there was no evidence of such fact.</p> <p>3. Negligence&emdash;Sudden. Emergency&emdash;Defendant’s Fault.&emdash;One may not, by his own negligence or want of proper care, place another in a situation, and, when sued for injuries resulting therefrom, put the burden on the plaintiff of showing that he acted with reasonable care. Persons in great peril are not required to exercise the of mind required of prudent men under ordinary circumstances.</p>

'Appeal from a decree of the Circuit Court of Wise county, pronounced September 13, 1901, in a suit in chancery, -wherein appellees were the complainants, and appellants and another were the defendants.

<p>Appeal from a decree of the Circuit Court of Lee county, pronounced June 8, 1901, in a suit in chancery wherein the appellee, Eliza A. Taylor, was the complainant, and appellants and others were the defendants.</p>

<p>1'. Foreign Corporations&emdash;Doing Business in tne State.&emdash;Making a out of this State hy a foreign corporation hy which title to a tract of land within the State is acquired by such corporation is not doing business in the State, within the meaning of section 1104 of the Code, so as to render a director of the company liable for its debts under the provisions of section 1105, although the object of the purchase be to engage in mining in the State at a subsequent time.</p>

Appeals from decrees of the Circuit Court of Buckingham county, pronounced December 6, 1901, and December 30, 1901, in a suit in chancery wherein the appellees, Hubard & trustees, were the complainants, and the appellants and others were the defendants; and from a decree of said court, June 22, 1901, in a suit in chancery wherein the was the complainant, and the appellee, Whitehall Tobacco Warehouse Company, was the defendant; the two appeals being heard together.

<p>Appeal from a decree of the Circuit Court of Wise county, pronounced December I, 1900, in a suit in chancery wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

<p>1. Telegraph Companies&emdash;Interstate Commerce&emdash;Domestic Messages.&emdash; Where the initial and terminal points of a telegram are both in the same State, and it is transmitted over the wires of the same and concerns only citizens of the same State, the message is a domestic message, and its character as such is not affected by the circumstance that the line passes in part over tne territory of another State, or that the company has established a relay office in such other State. The contract for the transmission of such a message is entire, and possesses no element of interstate commer.ee.</p> <p>2. Appeal and Error&emdash;Constitutionality of Statute.&emdash;When the of an Act of Assembly has been determined by this court, the question ceases to be debatable, and does not furnish ground for the jurisdiction of the court in cases thereafter arising.</p> <p>3. Telegraph Companies&emdash;Penalties&emdash;Penal Amercements.&emdash;The message in the case at bar being a domestic message, though “relayed” in another State, the telegraph company is liable for the statutory penalty for failure to forward it from the relay office. This is not a penal amercement for the violation of the criminal laws of the State.</p>

<p>Error to a judgment of the Corporation Court of the city of Bristol, rendered September 16, .1901, on an appeal from the Police Justice of said city imposing a fine of $12.50 on the plaintiff in error for practising law in said city, without having first paid the license tax imposed by the city.</p>

<p>Error to a judgment of the Circuit Court of Roanoke city, rendered January 30, 1902, in an action of debt, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

The deed of trust copied into the opinion of the court was not acknowledged till August 5, 1901, and was recorded August 8, 1901. The mules were sold September 5, 1901.

<p>Appeal from a decree of the Circuit Court of S'cott county, pronounced January 18, 1901, in a suit in chancery, wherein the appellee, O. D. McDonald, was the complainant, and the and others were the defendants.</p>

James, was the complainant, and the appellant and others were the defendants. The bill was filed to enforce a lien reserved in a deed from W. W. James 'and wife to Jones & Bailey for two notes given for an interest in land, a part of which had come, by subsequent conveyances, into the possession of appellant. The deed was a quit-claim deed, without covenants of warranty.

<p>1. Usury&emdash;Transfer of Paper&emdash;Guaranty l)y Seller of Face Yalue.&emdash;If the holder of paper transfers it at a greater rate of discount than the legal rate of interest, and gives an absolute and unconditional guaranty of the payment of the face value of- the paper, the is usurious.</p> <p>2. Usury&emdash;Application of Payments.&emdash;Where payments have been made upon a debt upon which more than the legal rate of interest has been reserved in the contract, or received, in order to secure the forbearance of the lender, and the borrower himself applies the payment to the interest, or the lender makes the application with the assent of the borrower, the appropriation so made will not be disturbed, unless, within one year thereafter, a suit be instituted by the borrower for its recovery.</p>

The witness who made the map referred to in paragraph 3 of the syllabus was not a surveyor or engineer. He was a lawyer. This suit was brought to the first June Rules, 1893.

December 27, 1899, and March 25, 1900, in a suit in chancery, wherein the appellees were the complainants, and the appellant was the defendant.

<p>1. Landloed and Tenant&emdash;Adverse Possession of Tenant&emdash;Disclaimer&emdash; Knowledge of Landlord.&emdash;A tenant may dissever the relations exist-ing between him and his landlord without first surrendering of the leased premises; but, in order for his possession to be deemed adverse, there must be a clear, positive, and continued and disavowal of the landlord’s title, and knowledge of the adverse claim must be brought home to the landlord before a foundation can be laid for the operation of the statute of limitations against him.</p> <p>2. Landloed and Tenant&emdash;Primes of Tenant&emdash;Admissions.&emdash;When the relation of landlord and tenant has been once established, it to all who may succeed to the possession through or under the tenant, whether mediately or immediately, and the succeeding tenant is as much bound by the acts and admissions of his as if they were his own.</p> <p>3. Chanceby Pbactice&emdash;Cloud on Title&emdash;Bill to Remove&emdash;Who May File.&emdash; A bill to remove a cloud upon the title to real estate can only be maintained upon allegations and proof that the complainant has both the possession and a good title.</p>

<p>Appeal from decrees of tlie Circuit Court of Russell county, pronounced April 16, 1900, and November 18, 1900, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Death by Wrongful Neglect—Burden of Proof.—In. an action to recover damages for death occasioned by the wrongful neglect of defendant, the burden is on the plaintiff to prove by affirmative evidence that the defendant was negligent, and that its negligence was the proximate cause pf the injury complained of.</p> <p>2. Master anb Servant—Defective Machinery—Contributory Negligence—Case at Bar.—There can be no recovery by a servant against his master for an injury caused by the failure of the servant while using defective appliances to take a precaution for his own safety, which is both obvious and well known to him. In such case the negligence of the servant is the proximate .cause of the injury. In the case at bar, the intestate, an experienced lineman of an electric light company, came to his death by the passage of a current of electricity through his body occasioned by his taking hold of a wire insufficiently insulated, and, at the same time, grasping the carbon in an arc lamp, instead of separating the .carbons with a dry stick, or other non-conductor, as he well knew "he should have done, and hence there can be no recovery for the injury.</p> <p>3. Master anb Servant—Risles Incident to Service—Electric Wires—Defective Insulation—Lineman.—Defective insulation of wires, which it is the duty of a line inspector of an electric company to inspect, is a risk incident to the employment, which su,ch inspector assumes, and cannot be made the ground of an action for damages by him against the company.</p> <p>4. Demurrer to Evibenoe—What Constitutes Conflict of Evidence.— Where a plaintiff, in answer to a general question as to the duties of his intestate, specifies certain duties, but it is apparent that he did not undertake to give a comprehensive statement of all his duties, and the defendant does not deny the plaintiff’s version of one contract, but affirms that there was a second contract, made at a later day, by which those duties were increased, and this latter evidence is not contradicted by tbe plaintiff, tbougb given in bis bearing, it -cannot -be reasonably ana fairly said tbat there is a conflict of evidence, even on a demurrer to evidence by tbe defendant. Tbe testimony of tbe defendant is in tbe nature of a confession and avoidance, and tbe matter -of avoidance is not controverted.</p> <p>5. Demueeeb to -Evidence—What Evidence of Demurrant May he Considered.—On a demurrer to evidence in tbis State, tbe demurrant does not waive all of bis evidence, but is entitled to -tbe benefit of all bis unimpeacbed evidence not in conflict with bis adversary’s, and to all inferences that necessarily flow therefrom.</p>

a judgment of the Circuit Court of the city of Roanoke, rendered December 1,1900, in an action of trespass on the case wherein the plaintiff in error was the plaintiff, and the defendant in error was the' defendant.

<p>1. Executors—Power to Create Debts.—The indebtedness for which the estate of a decedent is liable is that which existed at the time of his death. An executor, as such, cannot create a cause of action against his decedent’s estate.</p> <p>2. Executors—Creation of Debts—PurcJiase of Property—Liability of Property to Lender.—Where an executor, as such, executes a note, in excess of his powers, and the proceeds are used in the purchase of property which is in his possession at the time of his death, such property may be subjected by the lender to the payment of his debt.</p> <p>3. Principal and Agent—Negotiable Instruments—Powers of Agent.— The power to make or endorse negotiable instruments may be implied as a necessary incident of powers expressly conferred. Where an entire business is placed under the management of an agent, the authority of the agent is presumed to be commensurate with the necessities of the situation. He has implied authority to 'do whatever is ordinarily Incident to the conduct of such business, whatever is necessary to the efficient execution of the duties, or whatever is customary in a particular trade.</p>

<p>Appeal from a decree of the Circuit Court of FTelson county, rendered March 8,1902, in a suit in chancery wherein the appel-lant was the complainant, and the appellees were the defendants. Suit by the widow against her infant children for construction of her husband’s will.</p>

To a cross-bill filed by the defendants the appellants, J. W. Taylor, administrator of J. R. Grove, and Virginia Grove, were made defendants. This appeal was awarded on the petition of the above mentioned defendants to the cross-bill.

<p>Error to' a judgment of the Circuit Court of Rockingham county, rendered April 12, 1900, in an action of ejectment wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>1. Demurrer to Evidence—When Joinder Compelled.—In a civil action either party may demur to the evidence, and it is the duty of the trial court to compel a joinder therein, unless the evidence is plainly against the demurrant, or it is doubtful what facts should be reasonably inferred from the evidence. Mere conflict in the evidence is no reason for refusing to compel a joinder. Under a former practice a demurrer to evidence operated as a delay of a decision for at least one term, and hence the courts refused to compel a joinder in a very plain .case against the demurrant, but as the practice no longer exists, this is no longer a ground for refusal.</p> <p>2. Demurrer to Evidence—Joinder—JHseretion of Trial Court—Review.—Whether or not a party has the right to demur to the evidence, or may be compelled to join in such demurrer, is a question addressed to the sound judicial discretion of the trial court, subject to review by the appellate court.</p> <p>3. Demurrer to Evidence—Waiver—Admissions.—On a demurrer to the evidence the demurrant is considered as waiving all of his evidence in conflict with that of the demurree, and all inferences therefrom except those which necessarily flow therefrom, and as admitting the truth of all of his adversary’s evidence, and all just inferences which a jury could properly draw therefrom.</p> <p>4. Appeal and Error—Demurrer to Evidence—Non-Joinder—Judgment in Appellate Courts-Where the trial court has erred in refusing to compel a joinder in a demurrer to the evidence, and all the evidence has been certified, and this court has everything before it to enable it to do complete justice, and can plainly see not only that joinder should 'have been compelled, but also what judgment should have been rendered thereon, the case will not be remanded to compel a joinder, but this court will enter such final judgment as it is manifest should have been entered by the trial court after compelling joinder.</p> <p>5. Fraud—Sow Charged—Disaffirmance.—In order to avoid a contract for fraud, the fraud must be plainly averred and clearly proved. When established, it renders the contract voidable at the option of the party injured, but his right to disaffirm must be exercised promptly, without unnecessary delay, the time depending upon the circumstances of the particular case.</p> <p>6. Contracts—Fraud—Ratification—Sow Established—Effect.—The election to abide 'by a contract which a party might have avoided may be shown by proof of acquiescence in it, and any act which discloses an intention to abide by the contract will be sufficient to ratify it, provided the acquiescence or ■ ratification was with knowledge of the facts which gave the right to repudiate it. Such election, whether manifested by mere acquiescence or by positive acts, when once made, is, as a rule, irrevocable.</p> <p>7. Contracts—Fraud—Competitive Bidding—Very Low Bids.—The fact that the bid of a contractor upon a work of great magnitude was far below that of the next lowest bidder, is not a circumstance from which a fraudulent purpose must be deduced.</p> <p>8. Sub-Contractors—Liability of Owner for Materials.—The owner of a building in course of construction is under no obligation to protect the interest of a sub-contractor except where tne latter has complied with the statute making the owner liable to the sub-contractor.</p> <p>9. Contracts—Fraud—Financial Embarrassment.—It is not sufficient to establish fraud in the sale of personal property to show that the purchaser was at the time financially embarrassed, though his insolvency is a factor to be considered along with the other circumstances of the case. ;</p> <p>10. Contracts—Materials Furnished by Sub-Contractor—Liability of Owner—Case in Judgment.—Where a sub-contractor furnishing building materials to a general contractor to be used in the construction of certain buildings upon which the latter was engaged, under a contract by which title to such materials passed to the general contractor upon delivery, became suspicious of the general contractor’s solvency, and made inquiries in respect thereto of the owner of the buildings, and the latter truthfully replied that he knew of no trouble that the general contractor was in, whereupon the sub-contractor continued to furnish materials under his contract, but the general contractor soon after failed and surrendered his contract and .conveyed all his materials, tools, etc., to the owner of the building, who completed the work, it was held that the subcontractor, who had taken no steps to avoid his contract with the general contractor on the ground of fraud, and who had not demanded restitution of the property delivered, could not recover from the owner materials delivered to the general contractor and not paid for by him, nor could he recover damages from the owner in an action of deceit.</p> <p>11. Appeal and Eekok—Striking Counts from Declaration—Other Sufficient Counts—Harmless Error.—This .court will not reverse the judgment of a trial court for error committed in striking counts from a declaration when every fact and circumstance which could have been given in evidence under said counts were in fact introduced under the remaining counts upon which the trial was had, and this court can see that no cither result could have been reacned than that which was reached. The error, if any, was harmless.</p>

<p>1. Official Bonds—Relief of Surety—Mandamus—Code, See. 2887.—A ■ surety on the bond of a county treasurer who has complied with the provisions of sec. 2887 of the Code has the arbitrary right to be relieved from his suretyship, whether he became such surety for a valuable consideration or not. The surety is not required to show cause as a condition precedent to the relief sought, and the .court has no discretion in the matter. If the trial court refuses relief the proper remedy is mandamus, and not a writ of error, as the duty devolved upon the court is purely ministerial.</p> <p>2. Official Bonds—Relief of Surety—Acts 1895-6, p. 281/—Guarantee Company as Surety—Consideration.—Under the provisions of Acts 1895-6, p. 284, a guarantee company which has become the surety of a public officer is entitled to be relieved of its liability as such surety on the same terms and conditions as are by law prescribed for the release of individuals, although the liability was assumed for a valuable .consideration.</p>

<p>Appeal from a decree o>f the Circuit Court of Augusta county, pronounced February 4, 1902, in a suit in chancery, wherein the appellant, suing on behalf of himself and others, was the complainant, and the appellee, F. L. Henkle, and others, were the defendants.</p>

<p>1. Contingent Dower—Nature of Interest—Deed of Husband and Wife-Wife Not a Surety.—A wife’s contingent right of -dower in the lands of her husband is not property, and she does not become surety for her husband by uniting with him in a conveyance of his land as a security for his debts.</p> <p>2. Dower—Contingent Right—Deed of Trust by Husband and Wife— Death of Husband—Rights of Wife—Redemption by Heirs.—If a wife unite with her 'husband in the conveyance of his land in trust to secure the payment of his debts, and the deed is iduly acknowledged and recorded, upon the death of the husband before any sale under the deed, or satisfaction of the debt secured, 'his widow is only -entitled to dower in the surplus of the land remaining after satisfaction of the lien. She is not entitled to have one-third of the value of the whole land assigned to her out of the surplus remaining after the satisfaction of the lien created by the deed of trust. If the heir redeems the land, as he may do, she must pay an equitable proportion of the liens and encumbrances thereon which are paramount t’o her dower before she can be endowed of the whole land.</p>

<p>Error to a judgment of the Circuit Court of Russell county, rendered August 10, 1900, in an action of assumpsit wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Error to a judgment of the Circnit Court of Pulaski county, rendered March 23, 1900, in an action of trespass on the case in libel, wherein the plaintiff in error was the plaintiff, and the defendant in error wais the-defendant.</p>

This suit was instituted by two of the children of Henry Frank, deceased, who were also devisees under his will, against the other devisees and legatees under said will, and the personal representative of said Henry Frank, deceased. One of the chief objects of the suit was to have declared null and void the bonds mentioned in the opinion of the court, on the ground that they had never been delivered by the obligor in his lifetime.

This is a proceeding by way of interpleader under the provisions of chapter 112 of the Code. The plaintiff’s execution was levied on certain personal property -as the property of the execution debtor, and the plaintiff in error (a third person) claimed it. The plaintiff in the execution declined to give an indemnifying bond, and the claimant, of the property (the plaintiff in error) declined to give a suspending bond.

<p>1. Limitations—Suit to Avoid Deed for Actual Fraud.—The act of limitation of five years does not apply to a suit to set aside a conveyance for actual fraud.</p> <p>2. Fbaudtjlent Conveyance s—Privity of Grantee—Now Privity Charged.—In a suit to set aside a deed on the ground of the actual fraud of the grantor, the privity of the grantee in the fraud of the grantor is sufficiently alleged by charging that the deed was made, not only without any valuable consideration, but with intent to hinder, delay, and defraud the creditors of the grantor. The charge ■as made necessarily implies such privity, though the better practice is to charge it expressly.</p> <p>3. Fbaudulent Conveyances—Notice to Grantee—Bow Notice Fstahlished.—In order to .charge a grantee with knowledge of his grantor’s fraud, it is not necessary to prove actual knowledge. It is sufficient to prove knowledge of facts and circumstances naturally and justly calculated to excite suspicion in the mind of a person of ordinary care and prudence, and which would naturally prompt him to pause and enquire before consummating the transaction. If such enquiry would have necessarily led to a discovery of the fact, with notice of which he is sought to be charged, he will be chargeable with such notice whether he made the enquiry or not. But while notice may be inferred from circumstances as well as proved by direct evidence, yet the proof must be such as to affect the conscience of the purchaser, and be so strong and clear as to fix upon him the imputation of bad faith. Mere inadequacy of price is not sufficient to set aside a deed unless it be so gross as to shock the conscience and furnish decisive evidence of fraud. In the case in judgment, the evidence fails to establish notice to the grantees of the fraud of their grantor, if indeed there was such fraud.</p>

Appeal frtom. decrees of the Circuit Court; of Bedford county, pronounced October 24, 1900, and June 11, 1901, in a suit in chancery where the appellee was the complainant, and the and others were the defendants.

Nicholas, was the complainant, and the other appellant and the appellees were the defendants. The bill in this cause was filed by one of the appellants, George Nicholas, a son of Jacob B. Nicholas, deceased.

Armentrout (appellees) were the complainants, and the appellants and others were the defendants. The subject matter in controversy, and the relations of the parties thereto will probably be best understood from the statements of the hill, and it is accordingly set forth below.

A witness, A. J. Johnson, a brother-in-law of Dr. W. A. Gordon, and who had been a clerk for the firm of W. K. Sites & Gordon, was put on the stand to show that W. A. Gordon was a member of the firm, or .had permitted himself to be held out as such, but the witness testified to the contrary.

<p>1. Deeds—Husband and Wife—Deed to Secure Wife—Second Deed—General Warranty by Husband and Wife—Effect on Hirst Deed.—If husband and wife unite in a deed conveying the husband’s lands to a trustee in trust to secure the payment of a debt in which the wife has an interest, and subsequently they unite in a second deed, containing a .covenant of general warranty, conveying the same land to another trustee to secure other debts of the hushand, the second deed does not operate to postpone or release the wife’s interest in the debt secured by first deed, nor otherwise affect her than as a release of her contingent right of dower in the equity of redemption in the lands conveyed by the second deed. In the absence of reference in the second deed to any separate estate owned by the wife, she is not bound, personally, nor is her separate estate, if any she has, bound, either under sec. 2502 of the Code, or 2295, as amended, or under act of March 7, 1900 (Acts 1899-1900, p. 1240), or in any other way by the covenant of warranty contained in the second deed. The warranty is a nullity as to the wife, and cannot operate to estop her from' asserting her debt secured in the first deed.</p> <p>2. Deed of Trust Creditors'—Interest in Property Conveyed.—A creditor whose debt is secured by deed of trust on real estate has no such interest in the land conveyed as amounts to a right of property therein, or as would be bound by judgment against the creditor.</p> <p>3. Deeds1—Covenant by Married Woman—Code, See. 2502—Acts 1599-1900.— The act of March 7, 1900 (Acts 1899-1900, p. 1240), relating to the property rights and liabilities of married women, was not intended to apply to a warranty in a deed in which the wife united for the purpose only of relinquishing her inchoate right of dower in her husband’s property, nor idoes it repeal by implication section 2502 of the Code, declaring the effect of such a warranty.</p> <p>4. Statutes'—Repeal by Implication.—Repeals of statute by implication are not favored, and tlie presumption is always against tlie intention to repeal where express terms are not used.</p>

.the peace of said county. In one case the judgment of the justice was against the defendant in error, Moore, and he appealed, and in the other the judgment was against the plaintiff in error, and it appealed.

<p>1. Pleading—Death of Plaintvff—Revival hy Motion—Set-Offs.—The filing of a plea or account of set-offs under chapter 160 of the Code does not deprive the personal representatives of a plaintiff who dies pending the action of the right to have the action revived in their names on motion, without notice, as provided by see. 3308 of the Code, notwithstanding the provisions of sec. 3303, declaring that the defendant shall be deemed to have brought an action against the plaintiff for the amount of the set-off, and that the plaintiff shall not dismiss the action without defendant’s consent.</p> <p>2. Recoupment Undeb Code, Section 3299—Breach of Covenant for Title.—A. grantee of real estate when sued at law by his grantor for the purchase price may, under Code, section 3299, file a special plea claiming damages for a breach of warranty or covenant for title by his grantor unless the defence would require the contract to be rescinded, and the grantor to be reinvested with the title conveyed.</p> <p>3. Special Plea Undeb Code, Section 3299—Cannot he Filed hy Surety— Breach of JParranty of Title—Appeal and Error.—If in an action by a grantor against the grantee and his surety, on a bond given for the purchase price of real estate, a joint plea be filed by principal and surety under section 3299 of the Code, claiming damages for a breach of warranty of the title, and the plea be found against the defendants, the surety cannot alone prosecute a writ of error. The defence is personal to the principal, though, if successfully made, it would iredound to the benefit of the surety. The surety has no claim for damages against the grantor for a breach of covenant in a deed to which he is no party, and under which he acquired no interest.</p> <p>4. Damages—Breach of Warranty—Set-Offs—Code, Sections 8298 and 3299.—Damages for breach of warranty could not be claimed at common law by way of a recoupment against a sealed instrument, nor can they be claimed by way of set-off under the provisions of section 3298 of the Code, as the provisions of that séetion apply only where the set-off is a debt, or liquidated demand. Such damages can only be. asserted under section 3299 of the Co’de, and in the manner therein prescribed.</p> <p>5. Warranty of Right to Convey Land—When Broken—Bfféct of Judgment for Nominad Damages—Set-Off.—A covenant by a grantor in a . deed that he “has the right to convey the land” is broken, if at all, as soon as the deed is made, and the grantee may sue ajt once without averring eviction, or special damage. If there hald been neither eviction, nor slpecial damages arising from the breach, the judgment would be for only nominal damages, but it would bar any subsequent action on the covenant, although the grantee were subsequently evicted. The same result would follow if the damages, though nominal, were set up by way of set-off.</p> <p>6. Continuance—Discretion of Trial Court—Review.—A motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case; and although an appellate court will review the' action of a trial court, it wifi not reverse its judgment upon such motion unless plainly erroneous.</p>

<p>1. Pleading—Parties—Action l>y Party to Contract—Beneficial Owner— Variance—Demurrer.—The party with whom a contract is made may maintain an action at law thereon in his own name, and, if the recovery be for the benefit of another, that fact may be set out in the declaration, or endorsed on the writ or tne declaration, but the statement or endorsement is unnecessary, and is no part of the record, and the fact that the contract sued on is set forth in the declaration and does not disclose the beneficial interest of the party for whose benefit the action is brought does not show a variance between the declaration and the contract, and is no ground for a demurrer.</p> <p>2. Evidence—Altered, Papers—Foundation for Introduction.—When an objection is made to the introduction of an interlined paper as evidence, it is usually sufficient foundation for the introduction of the paper to show that the interlineation was made before delivery, leaving to the jury the ultimate determination of the actual time of interlineation where that is controverted.</p> <p>3. Bill oe Exception—Ruling on Question of Evidence—Answer Expected.—The action of the trial court in refusing to permit a witness to answer a question will not be reviewed by this court if the bill of exception fails to show what was proposed to be shown by the witness.</p> <p>4. Bill oe Exception—Exclusion of Question to Witness—Answer Also Excluded.—When a question which has been answered is ruled out by the trial court, the answer thereto is likewise excluded, although the bill of exception to the ruling of the court is sílent as to the answer.</p> <p>5. Conteact—Usage of Trade—Effect on Contract—Case at Bar.—A trade usage may control the mode of performance of a contract, but cannot change its intrinsic character; hut if it could have such effect in any case, it could not affect the case at bar as it had not become so general and well established as to affect the parties with notice of it, and there is no proof of knowledge of it.</p> <p>6. Contracts—Alterations—Case at Bar.—Any material alteration in a written contract, made by a party thereto, after it has been once malde and delivered, will render tbe contract void as to any party who did not know of and consent to it ai tbe time it was made, unless be subsequently ratified it. In tbe case at bar, a contract for tbe sale of ice restricted tbe purchaser to sales “from bis ice-box” and forbade sales “from bis wagons on the street.” Tbe word “bis” before “wagons” was interlined. This alteration was deemed material, but it was for tbe jury to say whether, as was claimed, it was made before delivery.</p> <p>7. Damages—Profits on Sub-Contracts.—In an action to recover damages for a breach of a contract to deliver chattels, profits which tbe purchaser would have made on sub-contracts actually made by him are sufficiently certain to be recovered.</p> <p>8. Evidence—Alteration of Contract—Burden of Proof as to Inability on.—Where a liability is sought to be imposed by an alteration in a written contract, and such liability is denied because of tbe alteration, tbe burden is on tbe party claiming under tbe contract to satisfy tbe jury by a preponderance of tbe evidence that the alteration was made under such circumstances as not to affect bis right to recover.</p>

<p>Appeal from a decree of tlie Circuit Court of ftoamfke county, pronounced at its October term, 1899, in a suit in chaneery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Malicious Prosecution—Probable Cause—Instructions—Partial Yieuo of Evidence—Case at Bar.—The question of probable cause, in an action for malicious prosecution, embraces a mixed question of law and fact. Whether the evidence relied on, if true, establishes probable cause is a question of law for the court, but whether such evidence is true is a question of fact for the jury. It is permissible, therefore, for the trial court to instruct the jury that certain facts and circumstances, if they exist, are sufficient to constitute probable cause; but in the determination of the existence or non-existence of such facts and circumstances it is not permissible for tne court to restrict the jury to a consideration of part only of the evidence tending to show probable cause or a want thereof. The plaintiff cannot sustain the burden imposed upon him of showing affirmatively the absence of probable cause, unless the court takes cognizance of his theory of that question, if material, and the jury is permitted to consider the evidence upon which it is based. In the case at bar an agent was arrested on a charge of embezzlement, and there was evidence tending to support the charge, but there was also evidence tending to show that the principal and agent had agreed to occupy the relation to each other of debtor and creditor, and that the defendant knew of this fact, but this evidence was ignored by the trial court in its instruction.</p>

<p>1. Res Judicata&emdash;Decrees of Court of Appeals&emdash;Law of the Case.&emdash;A by the Court of Appeals becomes, after the rehearing period has elapsed, as conclusive upon that court as it is upon the inferior court. It is the law of the case.</p> <p>2. Chancery Pleading&emdash;Amendments&emdash;New Case.&emdash;Amendments of pleadings are allowed which have for their object the trial and-of the subject-matter of the controversy upon which the suit was originally based, but amendments will not be allowed which bring into the case a new and substantive cause of action different from that declared on and intended to be asserted when the suit was brought. If the amendment seeics to assert rights and to enforce claims arising out of the same transaction, act, agree-ment, or obligation, however great may be the difference in the form of liability as contained in the amendment from that stated in the original bill, it will not be regarded as for a new cause of action.</p> <p>3. Chancery Practice&emdash;Laches&emdash;Mere Delay&emdash;Staleness.&emdash;Delay alone in the prosecution of a suit will not prevent a recovery. Length of time alone is not a test of staleness, and mere lapse of time, by some circumstance affording evidence of a presump-tion that the right has been abandoned, is not laches. Generally, if the sum sought to be recovered is certain, the transaction has not become obscure, and there has been no such loss of evidence as will be likely to produce injustice, a court of equity will not refuse relief merely because there has been delay in asserting the claim.</p> <p>4. Interest&emdash;Damages.&emdash;In contracts for the payment of money, interest is not given as damages at the discretion of the court or jury, but as an incident of the debt which the court has no discretion to re-fuse, but even if it were in the discretion of the court to refuse in-terest, the facts of this case would not warrant such refusal-</p>

<p>1. Appeal and Error&emdash;Two Trials Below&emdash;Bow Case Beard on Writ of Error.&emdash;Where there 'have been two trials in the lower court, and a verdict for the plaintiff on the first trial has been set aside as to the evidence, and the plaintiff fails to introduce any on the second trial, and there is judgment for the ¡defendant, and the plaintiff obtains a writ of error from this court, based upon a bill of exception to the action of the trial court in setting aside the first verdict, the only question for the consideration of this court is the propriety of the action of the trial court in setting aside the first verdict, and upon such consideration the case is not heard as upon a demurrer to the evidence.</p> <p>2. Verdicts&emdash;Against Evidence.&emdash;The verdict of a jury is entitled to great respect, and should not be set aside even by the trial court, unless plainly against the weight of the evidence.</p> <p>3. Negligence&emdash;Contributory Negligence of Plaintiff.&emdash;If the proximate cause of a plaintiff’s injury is his own negligence, concurring with the negligence of the defendant, there can be no recovery.</p> <p>4. Railroads&emdash;Trespasser on Track&emdash;Negligence&emdash;Case at Bar.&emdash;A railroad.&emdash;. company owes no duty to a trespasser on its track except to do all that can be done consistently with its higher duty to others, to save him from the consequences of his own negligence after his peril is ¡discovered. If he would recover he must show that the company, by the exercise of ordinary care and diligence, could have avoided injuring him after it discovered his peril. In the ease at bar, the deceased was killed at a point where the view of the track was unobstructed for several hundreld yards. He had been walking on the heads of the ties a short distance, and stepped between the rails when the train was not over thirty yards from him, and con- / tinued to walk down the track. The engineman then used proper ■ efforts to avoid injuring him, but his efforts were in vain. Under ' such circumstances there shouM be no recovery against the</p> <p>5. Railroads—Persons on or Near Track—Presumption as to btght and Hearing.—In the absence of any evidence to the cpntrary, an eugineman in charge of a railroad train has the right to presume that an adult person is of sound mind, in the possession of the ordinary-human faculties, -will exercise reasonable care and prudence to avoid danger, and will not get on the track or go so near thereto as to be in danger of passing trains, without looking or listening to ascertain that he can safely Ido so, or, if actually on the track, will get off in time to avoid injury. The engineman may act upon this presumption until it becomes apparent to him, as a men exercising ordinary prudence, that the presumption is not well founded.</p> <p>6. Evidence—Negligence—Burden of Proof—Probability of Negligence.— In an action to recover damages for an injury inflicted through the alleged negligence of the defendant, the burden is on the plaintiff to prove the negligence alleged, and the evidence must show .more than a mere probability of negligence. It is not sufficient that the evidence is consistent equally with the existence or non-existence of negligence. There must be aflarmative and preponderating proof of the defendant’s negligence.</p>

<p>Error to a 'judgment 'of tlie Oirouit Court of RoeMnghani county, rendered April 24, 1902, on a proceeding by motion for a judgment for money, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

Stewart Walker & Co., was the complainant, and the appellant was the defendant. The appellant, as treasurer of the city of Lynchburg, levied on personal property of the appellee to satisfy the taxes claimed of him, and he sued out an injunction to restrain the sale.

<p>Appeal from a decree of tlie Circuit Court of tlie city of Norfolk, pronounced June 5, 1900, in a suit in chancery under tke style of Industrial and General Trust, Limited, of London, England, and Others v. Nitro-Phosphate Syndicate, Limited, of London, England, and Others.</p>

<p>1. Ejectment—Equitable Estoppel as Defence.—An action of ejectment cannot be defended by reliance upon a mere equitable estoppel, as by showing by parol that the plaintiff had told the defendant before completing his purchase that the plaintiff did not claim the land in suit.</p> <p>2. Adverse Possession—Intention—Fact for Jury—Instruction Ignoring Part of Evidence.—Adverse possession depends upon the intention with which the possession is taken and held; and, while the intention to claim title must be clear, it need not be expressed. But whether or not the possession was taken by mistake, or without the intention of claiming title, is a question of fact to be determined by the jury from a consideration of all the evidence in the case. It is error to call special attention of the jury to a part only of the evidence and the fact it tends to prove, and to disregard other evidence relevant to the issue.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News, rendered October 31, 1900, whereby the plaintiff in error was sentenced to be hanged for murder of the first degree.</p>

uuty Court of Amelia county, rendered October 8, 1901, sentencing the prisoner to the penitentiary for a term of nine years. The Circuit Court refused a writ of error.

The plaintiff in •error was found guilty of assault and battery, and his punishment was fixed at a fine of one thousand dollars, and confinement in jail for one year.

<p>Error to a judgment of tbe County Court of Augusta county, rendered October 2, 1901, whereby tbe plaintiff in error was sentenced to tbe penitentiary for two years, on a conviction of forgery.</p>

<p>Error to a judgment of the Circuit Court of King William county, rendered 'April 4, 1902, affirming a judgment of the County Court of said county, whereby plaintiff in error was sen-tenced to the penitentiary for two years.</p>

<p>Error to a judgment of tlie Circuit court of Tazewell county, affirming a judgment of tlie County Court of said county, rendered Eebruary 3, 1902, whereby plaintiffs in error were sentenced to the penitentiary for ten years each, upon a conviction of murder of the second degree.</p>

On the hearing of this case in the Circuit Court, on a writ of error awarded to the County Court, a bill of exception was taken to the action of the Circuit judge in directing a certificate of the clerk of the County Court to be filed before him showing when the bills of exception taken in the County Court were filed.

The prisoner was indicted for buying and receiving railroad brasses, with intent to defraud. The evidence, and all of the evidence adduced on the trial, is given below as nearly as practicable in the language in which it appears in the record.