Volume 101 — Virginia Reports

The precise contention of the appellant will probably be best understood by the following statement of facts taken from the petition for the appeal: “The Atlantic and Danville Kailway Company is a railroad corporation, chartered by the State of Virginia. “Its line of road runs from West Norfolk, in Norfolk county,.

<p>1. Master and Sebvant—Railroads—Safe Place to Work—Hidden Defeats.—While it is the duty of a railroad company to use ordinary care to provide a reasonably safe place to its employees in which to perform their duties, it cannot be said that there was a lack of such ordinary care in this case, where a depot agent, whose duty it was to keep himself advised, and to report to the company, on the condition of the depot platform and grounds of the company, was injured by a defect in the platform which had been in daily use by himself and the public for several years, when there was nothing about its appearance to excite a suspicion' of danger, and the defect was so obscure that it would not have been disclosed on the most careful inspection.</p>

<p>Appeal from a decree of the Circuit Court of Bath county, pronounced April 6, 1901, in a suit in chancery under the style of Glendy’s Adm’r and Others v. Moon and Others, to which the appellees were made parties, as alleged purchasers, by a rule served on them.</p>

<p>1. Continuance—D-iscretion.—A motion for a continuance is always addressed to the sound discretion of the court under all the circumstances of the case, and its rulings thereon will not be reversed by the appellate court unless plainly erroneous.</p> <p>2 Continuance—Absence of Witness—■Cumulative Evidence.-—The absence of a witness whose evidence is merely cumulative is generally no ground for a continuance, and if a continuance has been granted on the ground of the absence of a material witness, and it is afterwards discovered, during the term, that the same facts can be proved by another witness who is present, it is not error to set aside the order of continuance and proceed with the trial of the case.</p> <p>3. Instbuctions—Conformity to Pleadings and Proof.—Where a defendant in his plea alleges an express contract as a defence to the action, and in his evidence maintains that the contract was in writing, and there is no evidence tending to prove a parol contract, he cannot complain of an instruction by the court telling the jury that the contract must be in writing to be available as a defence. The instruction simply limits the enquiry to his own theory of the evidence.</p> <p>i Instbuctions—Correct, But Given for Erroneous Reasons.—A correct instruction which the trial court was induced to give trough a misconception of the law on a particular point, cannot vitiate the verdict found in accordance therewith.</p> <p>5. Instbuctions—Questions Rot Within Pleadings and Proof.—It is error to instruct upon a question not embraced by the pleadings or proof. Although false statements may have induced the contract in suit, they cannot be made available unless put in issue by the pleadings.</p> <p>6. False Repbesentations—Foots—Materiality—Fraud—Issues Made hy Pleadings.—In order to entitle a party to relief from liability on a contract by reason of statements or representations made by the other party to the contract, either by way of rescission or in damages for its breach, the matter relied on must be within the pleadings, and the statement or representation must either have been of a material existing fact, as distinguished from a mere matter of opinion, expectation, or declaration of intention, or must be alleged and proved to have been made fraudulently, with intent to deceive or mislead.</p> <p>7. Pabtneks—Extra Compensation—Special Agreement—Burden■ of Proof.—In the absence of a special agreement to that effect, one partner cannot claim extra compensation for services rendered the firm, and the burden of proving such an agreement is on the partner asserting it.</p>

<p>Error to a judgment of the Circuit Court of Brunswick, county, rendered April 17, 1901, 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>1. Chancery Practice—Payment of Money Into Gowrt—When Ordered.— A court of chancery has no authority to compel a trustee, who de- . nies liability, to pay money into court before his responsibility for the fund has been adjudicated. An order to pay money into court may be made on interlocutory application where a fiduciary admits liability in his answer, or on his examination, or where it appears on a master’s report unexcepted to, but not where he denies liability, and the only evidence of it is eso parte affidavits.</p>

<p>1. Easements—Right of Way—Prescription—Exclusive Use—Acquiescence—Verbal Denials.—In order to establish a private right of way by prescription over the lands of another, the use and enjoyment thereof by the claimant must be shown to be adverse, under a claim of right, exclusive, uninterrupted and with the knowledge and acquiescence of the owner of the land over which it is claimed; and such use and enjoyment must continue for a period of at least twenty years. Enjoyment simply in conjunction with the public is not sufficient. The claimant must exercise the right by virtue of some claim existing in his favor independent of all others. The fact that an adjacent land-owner used the way more frequently than others, and occasionally did some work upon it, will not establish an exclusive use in him. Nor can the claim be said to have been acquiesced in by the land-owner where the latter, during the alleged twenty years of enjoyment, denied the existence of the right, and threatened to close the way. Exclusive and adversary use of an easement for twenty years is only presumptive evidence of the claimant’s right, and may be repelled by proof of verbal denials of the right, and verbal protests and remonstrances against its use within the twenty years.</p>

<p>1. Registby—Acknowledgments by Grantor Before Trustee.—A trustee in a deed of trust cannot, as an officer, take the acknowledgment of the grantor in such deed for the purpose of its registration. A recordation of a deed upon such an acknowledgment will not give constructive notice of the deed. The deed is good between the parties, but void as to creditors - and subsequent purchasers for value and without notice.</p> <p>2. Vendob’s Lien—Implied Lien—Express Security—Invalidity of Express Lien.—Where, prior to 1850, a vendor of real estate took a deed of trust to secure the purchase price, he cannot 'afterwards rely on the implied vendor’s lien then recognized, although the deed of trust is void as to subsequent purchasers for want of due registry. This rule applies to judicial sales as well as to sales between private individuals.</p> <p>3. Registby—Vendor and Vendee.—It is not necessary, as between vendor and vendee and those claiming under the latter, to record a deed in order to pass the legal title.</p> <p>4. Registby—Unrecorded Trust Deed—Purchaser at Judicial Sale.—Purchasers at a judicial sale are entitled to the same protection against an unrecorded deed of trust as a purchaser from a private individual.</p> <p>5,. PuEOHASEE^Uwecorde^ Lien—Notide—Bad Faith.—Notice, to affect a subsequent purchaser for value from one who holds title subject to a lien upon property, may be inferred from circumstances as well as proved by direct evidence, but 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.</p>

<p>Appeal from two decrees of tlie Circuit Court of Elizabeth City county, pronounced October 5, 1901, and October 24, 1901, in a suit in chancery, wherein the appellant was the complainant, and the appellees, T. J. Barham, trustee, and W. E. Barrett, were the defendants.</p>

<p>Appeal from a decree of the Corporation Court of the city of Newport News, pronounced May 31, 1901, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Chancery Practice—Report of Master Commissioner—Weight Given.— The findings of fact of a commissioner in chancery, based on depositions taken by him or in his presence, if clearly supported by competent and unimpeached witnesses will not be disturbed unless clearly against the weight of the evidence. But even in such case, the court will review and weigh the evidence, and if not satisfied with the findings of the commissioner will overrule them.</p> <p>2. Fraudulent Conveyances—Impeachment by Grantor—Mental Incapacity of Grantor—Case >vn Judgment.—A deed made by a grantor to defraud his creditors is valid between the parties thereto, and cannot be assailed by the grantor or those claiming in privity with him. But this rule has no application to a grantor who, at the time the deed was made, was mentally incapable of contracting.In the case in judgment, the evidence shows that the grantor was mentally incapable of making the deed of trust in controversy; that two out of the three debts secured to the appellants were confessedly “bogus,” and that the third one, now in controversy, was of doubtful merit in its inception, and is not now shown to be justly due.</p>

<p>Appeal from a decree of tlie Circuit Court of Prince Edward county pronounced September 4, 1900, in a suit in chancery, wherein the appellee, Ellen W. Berkeley, and others were the complainants, and the appellant and others were the defendants.</p>

<p>Error to a judgment of tbe Circuit Court of Albemarle county, rendered February 1, 1901, affirming tbe judgment of tbe County Court of said county in a condemnation proceeding, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Instructions—Construction of Written Instruments—Legal Effect.—In an action on notes, an instruction which submits to the jury the legal effect of the notes is bad, as it is for the court and not for the jury to determine the legal effect of written instruments.</p> <p>2. Instructions—Abstract Propositions—Case at Bar.—It is error to give an instruction which, though correct in the abstract, is under the pleadings inapplicable. In the case at bar the action being founded on notes and their indorsement, and not on the implied liability arising from the fact that á firm of which defendant was a mem-, her had received the proceeds, the following instruction was held inapplicable and misleading: “The court instructs thé jury that when a partner of a trading partnership borrows money professedly for the firm, and executes therefor a negotiable instrument in the partnership name, it binds all the partners, whether the borrowing were really for the firm or not, or whether he diverts or misapplies the funds or not, provided the lender is not a party to the intended fraud; and the burden is not on the lender to prove value, or lack of knowledge of the fraud.” 3. Pleading—Allegation—Proof—Suit on Express Contract—Proof of Implied Contract.—In an action against a firm on the express promise evidenced by their notes and the indorsement thereof, there can be no recovery upon the implied promise arising from the use of the proceeds of the notes by the .firm. The allegation and proof must correspond.</p> <p>4. Negotiable Paper—Note of Firm—Partner as Payee—Forged Indorsement—Discount for Firm—Estoppel.—If a negotiable note be made by a firm payable to one of its members, and the payee’s name be indorsed on the note without his knowledge or consent, by another member of the firm, and the note be discounted for the firm and the money placed to its credit, the payee-member of the firm is not bound on the note either as joint maker or as indorser, nor is lie estopped to deny his liability. The form' of tbe note is itself notice of a restriction on tbe powers of tbe other members of tbe firm to negotiate tbe note without tbe indorsement or consent of tbe payee-member. This is especially so- where tbe party discounting tbe note knows that the payee in bis individual capacity has theretofore been simply an accommodation indorser for tbe firm.</p> <p>5. Partnership—SignAng Firm Name—■Signing Naim,e of Go-Partner.— While each member of a trading partnership may, as a general rule, bind bis associates by signing tbe firm name, be has no authority, by virtue of tbe partnership relation alone, to bind a co-partner by signing bis individual name to partnership paper.</p> <p>6. Estoppel—Silence.—Silence, to work an estoppel, must amount to bad faith, and this cannot be predicated of a transaction of which a party has neither knowledge nor means of knowledge.</p>

<p>1. Telegeaph Companies—License Tax—Constitutiional Law—Interstate Commerce.—A city ordinance imposing a privilege tax on the business of a telegraph company, done wholly between that city and other points within the State, and expressly excepting all foreign and interstate business, and telegrams sent to or received by the United States or this State, or their agents or officers, is not in contravention of the commerce clause of the Constitution of the United States.</p> <p>2. Telegeaph Companies—License Tax—Constitutiional Law—Ad Valorem System of Taxation.—A city ordinance imposing a privilege tax on a telegraph company is not in conflict with Section 4, Article X., of the Constitution of this State permitting the Legislature to impose a license tax on any business which cannot be reached by the ad valorem system. The tax imposed by the ordinance is a tax upon the privilege of doing business in the city, and is wholly different from a property tax. It is immaterial that the State taxes the property of the company on the ad valorem system. The two subjects of taxation are wholly different, and both may be taxed without being obnoxious to the objection that it is double taxation.</p> <p>3. Taxation—Excessive—Redress.—If taxes, authorized by a valid law, are onerous and oppressive, the grievance cannot be redressed by an appeal to the courts', but to the sense of fairness and justice of the law-making power.</p>

<p>Error to a judgment of the Circuit Court of Mathews county rendered September 19, 1901, on an application for a mandamus, wherein the plaintiffs in error were the plaintiffs, and the defendant in error was the respondent.</p>

the plaintiff in error was the defendant. Instruction Ho. 5, as asked by the plaintiff in error, is set out in the opinion of the court.

<p>Appeal from a decree of the Chancery Court of the city of Richmond pronounced October 21, 1901, in a suit in chancery, wherein the appellee was the complainant, and appellant was the defendant.</p>

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond, pronounced April 22,' 1901, in a suit in chancery, 'wherein appellant was the complainant, and the appellee was the defendant.</p>

<p>1. Richmond Carnival Association—Right to Obstruct Streets—Charter Powers.—The Circuit Court of the city of Richmond has no power to grant a charter to a corporation authorizing it to obstruct a public highway, and the charter granted to the Richmond Carnival Association does not purport to confer such power.</p> <p>2. Public Highways—Control Over—Obstructions—Streets—Power of City.—Public highways, whether in the country or in a city, belong completely and entirely to the public at large, and the supreme control over them is vested in the Legislature. A city, in the absence of legislative authority, has no power to authorize its streets to be obstructed by the erection of structures therein which unnecessarily impede or incommode the public in the lawful use of the streets.</p> <p>3. Streets—Obstructions—Nuisance per se.—An obstruction in a street need not be permanent in order to constitute it a nuisance. A platform sixty-four feet long, twelve feet wide, and six feet high, erected in a street, with liberty to maintain and use the same for a period of twelve consecutive days, and to which large crowds are daily attracted, is per se a nuisance.</p> <p>4. Municipal Corporations—Streets—Nuisance—Liability of City— Ultra, Tires Acts.—If a city, without legislative authority, authorizes the erection of a nuisance in one of its streets, it is liable in damages for the injuries resulting therefrom. The city cannot escape liability merely because it exceeded its powers in authorizing the nuisance.</p>

<p>1. Criminal Law—Allegation and Proof—Under a warrant charging one with carrying on the business of a manufacturer of malt liquors within a city, without license, the defendant cannot be convicted of selling malt liquors within the city which were manufactured by him out of the city. The business of manufacturing is essentially different from that of selling. The allegation and proof must correspond in both civil and criminal cases.</p>

Grigsby, wherein the appellants filed a petition to which all the parties to said suit and another were parties defendants.

<p>Appeal from a decree pronounced by tbe Circuit Court of tbe city of Roanoke, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Appeal and Error—Commissioner’s Report—Exceptions.—Upon an appeal from a decree reciting the filing of a commissioner’s report and the taking of exceptions thereto, the overruling of the exceptions and the confirmation of the report, the fact that the exceptions referred to in the decree are not in the record is immaterial if the matter is otherwise put in issue by the pleadings. Where the questions at issue are presented by the pleadings and proofs, no exception to the commissioner’s report is necessary to raise them for adjudication, and the absence of such exception does not preclude this court from examining into the case upon its merits.</p> <p>2. Fbaudulent Conveyances—Husband and Wife—Presumption Against Wife—Case in Judgment.—In a contest between a wife and the creditors of her husband as to the validity of a transfer of property from the husband to the wife, the presumption is in favor of the creditors, and the burden is on the wife to establish by clear and satisfactory evidence the bona fides of the transaction. In the case in judgment the consideration for the settlement made by the husband on the wife is sought to be established by ex-parte settlements of the husband as guardian of a ward, a part of whose estate the wife inherited, and the record, in its present condition, does not disclose facts sufficient to overcome the presumption against the wife, but renders it proper that the cause should be remanded for further evidence.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Eichmond, rendered February 18, 1902, 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 Law and Equity Court of the city of Richmond, rendered January 21, 1902, 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. Appeal and Error—Jurisdiction of Trial Court—Objection in Appellate Court.—If it appears upon the face of the record that the trial court had no jurisdiction to issue an attachment, the objection may be raised in this court for the first time.</p> <p>2. Attachments—Action at Law—Proceeding by Motion Under Code, Sec. 3211—Commencement of Action or Proceeding.—A common law action is commenced when the summons is issued for the purpose of having it executed, and the issuing of the summons is sufficient, under section 2959 of the Code, to authorize the clerk to issue an attachment at that time or afterwards before the abatement of the action; but a proceeding under section 3211 of the Code cannot be regarded as the institution of an action so as to warrant an attachment under section 2959, until the notice has been served and filed in the clerk’s office. Until so filed, the clerk, as such, has no knowledge of or control over it, and cannot issue an attachment based thereon.</p>

<p>1. Municipal Coeporations—Defective Private Culvert—Liability.—A municipal corporation is not liable for injuries to private property-caused by an overflow of water from an obstructed private culvert, which the corporation is not bound to keep open and in repair, and over which it exercises no control.</p> <p>2. Municipal Coeporations—Power of Executive Officers—Defective Culvert.—Neither the Mayor, nor other executive officers, agents or employees of a municipal corporation have any authority to convert a private culvert into a public one, or to assume control of it for the corporation; and the mere fact that such officers, upon complaint of a property owner, take steps to prevent the obstruction of a private culvert, although it would, in the absence of explanation, tend to show that the corporation had taken charge of the •culvert and was exercising authority over it, will not render the corporation liable for damages caused by such obstruction, where, in fact, the corporation has never, by resolution of its Council, authorized such action or assumed or exercised any control over the culvert.</p>

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond, pronounced December 31, 1901, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Corporation Court of the city of Alexandria, pronounced June 15, 1901, in a suit in chancery, wherein the appellees, L. Strouse & Co., were the complainants, and the appellant and others were the defendants.</p>

<p>1. Homestead—Payment of Debts by Heir—Bights of Widow.—Where a husband has set apart a homestead, and died owing debts, his surviving widow—there being no infants—is entitled to hold the homestead during her life, or widowhood, and cannot be deprived thereof hy the payment of the husband’s debts by his heirs. Her status is fixed by the death of the husband owing debts and a homestead claimed in his lifetime.</p> <p>2. Tax Sale—Waiver of Bights as Purohasei—Claims of Heirs and Creditors.—The State or a city may waive its claim as a purchaser of land sold for delinquent taxes upon payment of the sum due for taxes, and permit the heirs or creditors of the former owner to assert their rights to the property in subordination to the amount so due. The State’s purchase of the land for delinquent taxes does not deprive the widow of her right to insist upon her homestead as against creditors of her husband.</p>

<p>1. Demurrer—Action on Insurance Policy—Provisions of Charter—Code, Section 8251.-—The charter of an insurance company under which a policy is issued is not made a part of the declaration by filing the original policy, or a sworn copy thereof, with the declaration, under the provisions of section 3251 of the Code, as amended, under which the action is brought, and hence the provisions of such charter cannot be considered on demurrer.</p> <p>2. Pleading—Grounds of Defence—What May Be Shown—Premature Action.—The objection that an action has been prematurely brought cannot be relied on where the defendant has stated his grounds of defence under section 3249 of the Code, and that objection is not specified.</p> <p>3. Forfeitures—Waiver—Revival of Forfeiture.—Forfeitures are not favored, and courts are alert to tafee advantage of any circumstance that indicates an election to waive a forfeiture, or any agreement to do so upon which a party has relied and acted; and, where the right to rely upon a forfeiture has been once waived it is extinguished, and cannot be revived.</p> <p>4. Insurance—Breach of Condition of Policy—Waiver.—Any acts, declarations, or course of conduct by an insurer, with knowledge of the facts constituting a breach of a condition in a policy, recognizing and treating the policy as still in force, and leading the insured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, and estop the company from setting up the same as a defence when sued for a subsequent loss; and it is always open to the insured to show such waiver, or just and reasonable grounds to believe that a forfeiture would not be exacted.</p> <p>5. Insurance—Forfeiture—Non-Payment of Assessments—Further Assessments—Waiver.—If a forfeiture of an insurance policy for nonpayment of assessments is relied on, the fact that subsequent assessments are made and received by the company, without making any reference to the non-payment of the prior assessments, is evidence to show a waiver of the forfeiture, and for that purpose, should be submitted to the jury under proper instructions.</p> <p>6. Appeal and Ekrob—Verdicts—Erroneous Instructions—Harmless Error.—This court will not set aside a verdict simply because erroneous instructions were given, if it can see from the whole record that, even under correct instructions, a different verdict could not have been rightly found, or that the exceptant could not have been prejudiced by the erroneous instructions.</p>

<p>Appeal from a decree of the- Circuit Court of Warwick county, pronounced March 18, 1902, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Isle of Wight county, pronounced April 23, 1901, in a suit in chancery, wherein appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Benefit Societies—Certificate Issued to Wife—Payments by Husband. In the absence of contract, payments made by a husband on a certificate in a benefit society issued to the wife are regarded as gratuitous, and create no equities in favor of the husband.</p> <p>2. Benefit Societies—Designation of Beneficiary—Assignment—Delivery of Certificate on Assignment.—Where a member of a benefit society has the power of designating, or of changing, a beneficiary under his certificate by an assignment, in a method prescribed by the charter and by-laws of the society, such designation or change, when made, is not an assignment, although so called, but is the mere execution of a power of appointment, and it is not necessary that either the certificate, or the so-called assignment, should be delivered to the beneficiary. The retention of the certificate is a necessary incident of the power'to change the beneficiary.</p> <p>3. Verdicts—Erroneous Instructions—Correct Results.—A verdict will not be set aside for alleged error in instructions when the court can see that no other verdict could properly have been rendered under correct instructions.</p>

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond, pronounced December 19, 1901, in a suit in chancery therein pending under the style of Ginter’s Fx’ors and Others v. Farmville & Powhatan Railroad Company and Others, wherein appellant was one of the defendants.</p>

<p>.1. Evidence—Absolute Deed a Mortgage.—A deed absolute on its face may, in equity, be shown by parol evidence to be a mortgage, but the presumption in such case always is that the deed is what, on its face, it purports to be; and, in order to repel that presumption, the evidence must be clear, unequivocal, and convincing.</p> <p>2. Mortgage—Conditional Sale—Case in Judgment.—A conveyance to secure a debt is a mortgage, but if the conveyance extinguishes the debt, and the parties so intend, so that a plea of payment would bar an action thereon, an agreement then or thereafter with the debtor giving him an opportunity to re-acquire the title is a conditional sale. The continued existence of a debt is the test of a mortgage. The character of the transaction, however, is fixed in its inception, and is unaffected by subsequent events unless they amount to a new contract. The evidence in the case in judgment fails to establish a mortgage, or fraud on the part of appellant, and shows only an option to repurchase within a given time on terms stated.</p>

Appeals by both complainants and defendants from several decrees of tbe Circuit. Court of Goochland county in two chancery suits heard together, one under the style of Pleasanton v. Jackson and the other of Pleasanton v. Jackson and Another.

Richmond, rendered March 14, 1902, 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>1. Appeal and Error—Final Decree—Amendment of Pleading—Amended. ■ and, Supplemental Bills.—Generally, refusing to allow, or allowing, an amended or supplemental pleading to be filed, is not a final decree, nor a decree from which an appeal can be taken. But in this case, the rejected pleading is not an amended bill, since it shows no defect as to parties, nor mistake as to. allegations, nor omission of any fact or circumstance connected with the suDstance of the original bill rendering an amendment necessary. Neither is it a supplemental bill in the usual and ordinary sense of that term, as the new facts which came into existence after the filing of the original bill constitute an entirely new and independent cause of action between different parties upon which a decree might have been rendered without reference to the original, bill..</p> <p>2. Equity Pleading—Amended and Supplemental Bills—New Case—Consolidation—Searing Together.—Where á second bill is filed in a cause making new parties, presenting different issues, and seeking wholly ■ different objects from those of the first bill, such bill is not an amendment of or supplemental to the first bill. It is at least in the nature of an original bill, and while the two suits might, for some purposes, be heard together, they could not be consolidated; and, if heard together, a decree dismissing one of them could not affect the relief sought in the other.</p> <p>3. Appeal and Error—Joint Searing of Cases—Dismissal of One.— Where two causes are heard together and one of them is dismissed and the other continued, the decree is final as to the one dismissed, and unless an appeal is taken within a year as provided by statute, the right of appeal is lost. The same rule applies to a so-called amended and supplemental bill which makes an entirely new case, . and which is dismissed.</p> <p>4. Appeal and Error—Final Decree—Ruling on Pleadings—Code, Sec. JJfS.’i.—There can be no appeal from a decree or order refusing to allow, or allowing, an amended and supplemental bill to be filed, unless and until there is an appeal from a decree which is final, or is appealable under the provisions of section 3454 of the Code, allowing appeals from interlocutory decrees dissolving injunctions, requiring money to be paid, or the possession or title of property to be changed, or adjudicating the principles of a cause.</p>

<p>1. Eminent Domain—Payment of Damages—Acquisition of Title.—In proceedings to condemn land for a public use, the payment of the sum ascertained to be a just compensation is a condition precedent to divesting the owner of land of his title thereto, and is as indis- • pensable as a conveyance between an ordinary vendor and vendee. Such owner, until payment is made, stands on substantially the same plane as a vendor who has retained title as security for the purchase money.</p> <p>2. Eminent Domain—Damages Assessed—Lien—Enforcement in Equity.— Where land has been condemned for a railroad, but the compensation therefor has not been paid, the owner of the land has a lien thereon, for such compensation which a court of equity will enforce against the land in the hands of the petitioner, in the condemnation proceedings and all persons claiming under him.</p> <p>3. Eminent Domain—Non-Payment of Damages—Entry by Petitioner■— Warner.—The entry of a railroad company upon land condemned for its purposes, and the construction of its road bed thereon before paying the damages assessed, without objection on the part of the owner, cannot be regarded as a waiver by the owner of his lien upon the land for the amount of the damages, especially where the right to enter was neither asked nor obtained.</p> <p>4. Eminent Domain.—Case in Judgment—Waiver of Lien for Damages.— In this case land was condemned for the purposes of a railroad company, but the damages assessed were never paid. The company, without express consent, entered and constructed its road bed. The company failed and its property was sold and afterwards passed successively to several different companies. The owner demanded payment, of the superintendents of each of these companies, and they promised payment. The owner was in the employment of the first company and in easy circumstances, while the company was financially embarrassed. Held: There has been no waiver by the owner of his lien on the land for the damages assessed.</p> <p>5. Title to Land—Disclaimer.—Where the legal title to land is vested in a person, no mere parol disclaimer can divest it. Disclaimer of a freehold can only be by deed, or in a court of record.</p> <p>6. Laches—Ahandonmient of Claim—Continuous Claim and Acknowledgment.—Laches is only permitted to defeat an acknowledged right on the ground that it affords evidence of the abandonment of the right. The doctrine, therefore, can have no application to a case where a demand has been continuously asserted and as continuously acknowledged.'</p> <p>7. Evidence—Record—Third Persons Unaffected—Creditor’s Suit.—The owner of land condemned for the purposes of a railroad company, and who has a lien on the land for the damages assessed, is in no way bound or affected by the proceedings in a lien creditor’s suit against the company to which he was no party, and of which he knew nothing, except what he had casually heard or read in the newspapers, and, in a suit to enforce his lien, the record of the creditor’s suit cannot be used in evidence against him.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered March 26, 1902, 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. Constitutional Law—Sale of Intoxicating Liquor—Dispensary—Municipal Corporations.—The regulation of the sale of intoxicating liquor is within the police power of the State, and it may authorize a municipal corporation to establish a dispensary for the sale of such liquor, although in doing so it may render necessary the expenditure of money, and ultimately the imposition of a tax. The object is a public one, in the promotion of which public money may be expended. The Act of 1901, chapter 113, conferring such power on a municipal corporation, is not contrary to the Constitution in force when it was passed. It is not a tax law, but a police regulation.</p>

<p>Appeal from a decree of the Circuit Court of Elizabeth City county, pronounced Eebruary 25, 1902, in a suit in chancery, wherein appellant was the complainant, and the appellees were the defendants.</p>

This action was brought by Wm. B. Perrow to recover damages for the destruction of his dwelling-house and other property attached to the freehold, and a large amount of personal property destroyed by fire resulting from the alleged negligence of the defendant’s servants. The plaintiff’s dwelling-house was insured for $2,000.

<p>1. Joint Tobt FeaSoes—Indemnity—Res Judicata—Obstructing Streets.— Where a city and a property owner are sued jointly for an injury resulting from alleged negligence in obstructing a street, and there is judgment in favor of the property owner on his plea of the statute of limitation, and against the city for damages, in a subsequent action by the city against the property owner to recover the damages it has been compelled to pay, the property owner is not estopped from showing that the accident happened through no fault of his, nor is the question of his ultimate liability res judicata by reason of the judgment against the city. The second action is not between the same parties or their privies. The judgment in the first action is only conclusive of the injury of the plaintiff therein, the negligence of the city, and the amount of the recovery against it.</p> <p>2. Res Judicata—Two Suits Between Same Parties.—As a general rule, a judgment to be evidence against a party in another suit upon a different cause of action must have been rendered between the same parties or their privies, and the point must have been involved in both cases and have been determined on its merits. If the first action was disposed of on any ground that did not go to its merits, the judgment will not conclude the party in the second action.</p> <p>3. Municipal Coepoeations—Street Obstructions—Action by City for Indemnity.—In an action by a municipal corporation to recover back damages which it has been compelled to pay for an injury inflicted by an alleged improper use of its streets by a lot owner, it is competent for the lot owner to show that he was under no obligation to keep the street in a safe condition, and that it was not through his. fault that the accident happened.</p> <p>4. Independent Contkactok.—A general contractor and bricklayer employed to do the brick work on a house, who employs and pays all labor necessary for the fulfilment of the contract, and exercises entire supervision over the work and over the employees, engaged thereon, is a general contractor for that part of the work, although the owner of the lot be a carpenter and has all of that part of the work done by his own employees.</p> <p>5. Negligence—Independent Contractor.—Where a lot owner employs a careful, skilful and competent builder or contractor to erect a build- • ing, and surrenders to him the possession of the premises for that purpose, the owner is not liable for an injury inflicted on a third person in consequence of the negligence or default of the contractor, or his immediate servants, or employees engaged in doing the work.</p> <p>6. Negligence—Independent Contractor—Hazardous Business—Building on City Streets.—If an enterprise entered upon by the owner of a lot is inherently and necessarily dangerous, or if danger and hazard must necessarily accompany the work, or if the doing of the work will necessarily create a nuisance, the owner cannot escape liability by employing an independent contractor. But the building of a house fronting on a city street is not of this nature, and the owner is not liable for the negligence of á competent, independent con- ' tractor, or his servants.</p>

<p>1. Street Railways—Frightened Morses—-Negligence—Question for Jury.' Street car companies are not required to stop their cars upon discovery of the fright of a horse on the street from the usual and ordinary noises of the ear, but should keep the car under control so as to avoid damage when occasion requires. They cannot wantonly, maliciously, recklessly or negligently inflict injury upon a traveller on the street by running their cars upon him when their servants in charge of the cars know, or by the exercise of reasonable care and caution ought to know, of the traveller’s inability to prevent a collision. Whether, in a given case, the company has been guilty of wanton, malicious, reckless, or negligent conduct is a question for the jury under proper instructions from the court.</p> <p>2. Negligence—What Constitutes—Question for Jury.—Negligence is the failure to do what a reasonable and prudent person would, ordinarily have done under the circumstances of the situation; or, the doing what such a person would not have done under existing circumstances. The duty is dictated and measured by the exigencies of the occasion. Whether there has been negligence in a given case is a question for the jury, under proper instructions from the court.</p> <p>3. Street Railways—Persons on Trade—Care—Collision.—When those in charge of an electric street car know, or by the exercise of rear sonable care ought to know, that a person on the track, or about to get on the track in front of the ear, is in such a situation or condition that he is unable to avoid a collision with the car if it continues its course, it is their duty not only to have the car under control, but, if need be, to stop it in order to prevent injury to the person so situated.</p> <p>4. Street Railways—Frightened Morses—Negligence—Collision—proximate Cause.—Where a horse ridden on a street has become frightened by the noise of an approaching street car, and has manifestly gotten beyond the control of the rider, it is the duty of those, in , charge of the car to nse reasonable care, and, if need be, stop the car, in order to avoid a collision. If, in consequence of a failure to use such care, the horse is struck by the car, and runs off and throws the rider, causing him injury, the car company is liable. It is not necessary that the rider should have been struck by the car, or that he should have been knocked from the horse at the point of collision in order to entitle him to recover. The negligent striking of the horse is the proximate, or efficient cause of the injury.</p>

<p>1. Marriage and Divorce—Statutory Marriage of Colored Persons— Abandonment of Intent to Marry.—The mere fact that prior to February 27, 1866, a colored man and a colored woman cohabited together, and contemplated occupying toward each other the relation of husband and wife, does not render legitimate, within the meaning of section 2227 of the Code, the issue of such intercourse recognized by the man to be his, where it appears that the parties afterwards, . and before the date last mentioned, mutually abandoned that purpose, and each married another person. The voluntary abandonment by the parties of the purpose to marry is not within the meaning of the words “any other cause” used in that section.' The Legislature did not intend to legitimate the fruits of mere concubinage.</p>

Upshur Graff, with his will annexed, was' the complainant, and the appellant and the appellee and others were the defendants.

<p>1. Street Railways—Rights on Streets—Rights of Others—Grossing Track—Negligence.—The rights of street cars on a city street, no matter by what power propelled, are not superior to those of any other vehicle, but simply equal. Between crossings, as well as at crossings, vehicles may cross street-car tracks in full view of approaching cars, if. it is consistent with ordinary prudence to do so. Whether or not it is negligence for one to attempt to drive across a street-car track when he sees a car coming one hundred yards off is a question for the jury under all the facts and circumstances of the case. It is not negligence as a matter of law.</p> <p>2. Street Railways—Contributory Negligence.—The rules for determining contributory negligence, as applied to street railways, are in some respects quite different from those applicable to steam railroads running on their own land. For a discussion of these rules see the opinion of the court.</p> <p>3. Street Railways—High Rate of Speed—Rights of Travellers.—A traveller on a city street has the right to assume that street cars will not be run at an excessive rate of speed. If so running when approaching a traveller, and because of such high rate a collision occurs with him, whereby he is injured, it should be left to the jury to say whether or not, under all the circumstances of the ease, the street-car company is negligent.</p> <p>i. Street Railways—Personal Injuries—Trespasser—Contributory Negligence—Knowledge of Plaintiff’s Danger.—A plaintiff, even though a trespasser, may recover of a railway company for an injury inflicted on him, notwithstanding his own negligence may have exposed him to the risk of injury, if the company, after it became aware of the plaintiff’s danger, could, by the use of ordinary care, have avoided injuring him, and failed to do so.</p> <p>5. Street Railways—Approaching Vehicles from, Rear—Warning.—When a street car is approaching from the rear a vehicle crossing the track, it is the duty of the motorman to give timely warning of his approach, unless it is clearly observed, and to reduce his speed to such an extent as to enable him to stop his car, if necessary to avoid a collision, and to continue at such guarded rate of speed until the danger of collision is past.</p> <p>6. Insetuctions—Inviting Error—Subsequent Complaint.—¡Where both plaintiff and defendant have asked for, and induced the court to give, instructions upon a given theory of the evidence, neither will be permitted after verdict to call in question that theory. A party cannot invite the court to commit an error, and then complain of it.</p> <p>7. Appeal and Eeeob—New Trial—Conflicting Evidence.—Where the evidence is conflicting on the material issues in a case, it is peculiarly within the province of the jury to weigh the evidence and determine the issues, and the verdict should not be disturbed on a writ of error.</p>

<p>1. Contributory Negligence—Infants—Presumption—Burden of Proof. A child between the ages of seven and fourteen years is presumed to be incapable of contributory negligence, and the burden is on the party alleging it to establish it by evidence and circumstances showing his maturity and capacity. The care and caution required of an infant of tender years is determined wholly by his maturity and capacity.</p> <p>2. Negligence—Questions for Jury—Acts of Infants—Street Railways.— Whether or not the running board of a street car is a dangerous place for a child seven years m a„e to stand on, or it is dangerous for him to jump from a moving car, or the car is running slow enough to justify the conductor of a street car in ordering a trespassing child seven years of age to jump off, are all questions for the jury, and were properly submitted to the jury by the instructions given in this case.</p> <p>3. Instructions—Harmless Error—Trespasser on Street Railway.—If the conductor and motorman of a street car knew that a small boy, who was a trespasser, was on their car in a dangerous position, an instruction which uses the language “knew, or by the exercise of ordinary care could have known” of his dangerous position, is harmless error. The facts show that no duty of foresight was required.</p> <p>4. Street Railways—Jumping Off Moving Cars—Intimidation by Conductor.—A street car company is liable for injuries inflicted on a small boy by jumping from a moving car by direction of the motorman or conductor of the car when intimidated by such direction. It' is for the jury to determine under all the evidence whether or not the child was unable to resist the order, or was in fact intimidated.</p> <p>5. Instructions—Refusal—Fully Instructed.—When the jury has been sufficiently instructed, it is not error to refuse to further instruct.</p> <p>6. Street Railways—Jumping From Moving Cars—Intimidation—Unintended Results.—If a child of tender years jumps from a moving street car, under the impulse of fear, induced by the threatening orders of the conductor, and lands in a dangerous place from which he rolls on to the track, and is injured, the car company is liable. The negligence or fault of the conductor is the proximate cause of the injury.</p>

<p>1. Evidence—Examination of Witnesses—Impeachment—Rehabilitation— Time of Examination.—After a witness has been cross-examined touching a prior statement made by him, and a foundation laid for his impeachment, the party calling him may re-examine him touching the same matter, and this is the natural and proper time and manner to elicit his statement touching the prior inconsistent statement. If impeaching evidence is thereafter introduced, the party introducing the witness may, under the strictest rules governing the introduction of evidence, support the witness by proper evidence for that purpose.</p> <p>2. Appeal and Ebkor—Judgment by Trial Court Without a Jury—Rule of Decision on Appeal.—When a case at law is decided by the court, without the intervention of a jury, and the judgment is excepted to because contrary to the evidence, and the evidence, and not the facts, is certified, the rule of decision in the appellate court is to give the judgment of the trial court the same effect as the verdict of a jury. The judgment will not be disturbed, unless it is contrary to the evidence, or the evidence is plainly insufficient to support it. If the evidence is conflicting on material points, the judgment will be affirmed.</p>

<p>Appeal from a decree of the Circuit Court of Goochland county, pronounced May IB, Í902, in a suit in chancery, wherein the heirs and distributees of John Newton Johnson were the complainants, and the appellant and others were the defendants.</p>

The instructions given by the court were as follows: 1. The court instructs the jury that a street car company engaged in the business of carrying passengers is bound to use the utmost care and diligence for the safety of passengers, and is liable for an injury to a passenger occasioned by the slightest neglect against which human prudence and oversight might have guarded, if the passenger himself has not been guilty of any negligence which contributed to the injury. 2.

<p>1. Municipal Corporations'—Failure to Abate a Nuisance in the Street. A city is not liable in damages for failure to exercise its legislative and discretionary powers to abate or remove a nuisance in its streets which it did not create or does not maintain, and which does not render its streets unsafe.</p> <p>2. Municipal Corporations'—Private Sewer—Nuisance—Failure to Abate.—If one constructs a sewer on his premises and through it discharges filth and garbage into a city street, thereby creating, a nuisance, and also an injury to an adjacent lot owner, no action lies by such lot owner against the city for failure to provide a sewer or to abate the nuisance; his remedy being against the party creating the nuisance. The failure of a city to exercise a charter power to abate or prohibit a nuisance not rendering its streets unsafe does not give a right of action against the city.</p> <p>3. Waters—Natural Water Course—Question for Jury.—Whether or not a drain or ditch in a city is a natural water course, and whether the city has changed or altered its use, are questions for the jury under proper instructions from the court.</p> <p>4. Instructions—Mead as a Whole—Erroneous Expressions—Harmless Error.—Instructions should be clearly expressed and the law distinctly stated, but a verdict will not be set aside because some expressions standing alone might be regarded as erroneous or misleading, if the instructions taken as a whole present' the law fairly and correctly, and in a manner not' likely to mislead the jury, or if the error in an instruction excepted to is corrected by other instructions given by the court.</p> <p>5. Municipal Corporations—Surface Water—Sewers.—A city is not liable for failure to provide sewers to carry off surface water, or for failure to relieve a lot owner’s property of burdens put upon it by nature.</p> <p>6. Municipal Corporations—Surface Waters—Streets—Side Ditches— Natural Water Courses—Case at Bar.—A city has the right to construct ditches along its streets, and to drain its surface water into a ditch or drain which is its natural course, for the purpose of draining its streets, even though the quantity of water increases in time of rainy weather, and diminishes at other times. The only duty, in this respect, devolving upon the city, is to exercise reasonable care and skill in doing the work. In the case at bar the water flowed in a natural channel or outlet, and the city exercised no control over it as a public sewer or drain.</p>

<p>1. Libel—Publication—Dictation to Stenographer—Declaration.—In an action of libel based upon a letter mailed by the defendant to and received by the plaintiff, an allegation in the declaration that the defendant, through its agents, did publish and cause to be published “a certain false, scandalous, malicious and defamatory libel by means of a letter” mailed by defendant’s agents to and received by the plaintiff, containing the defamatory matter, is a sufficient allegation of the publication of the libel. The publication may have been before or after mailing the letter, by dictation to a stenographer, or by otherwise making known the contents of the letter to others.</p> <p>2. Libel—Common Law and! Statutory—Blending in One Court.—Common law libel and an action for insulting words under the statute cannot be blended in one count of a declaration, but where it satisfactorily appears that a count was intended to be a count under the statute it will be upheld, because a publication containing insulting words may be declared on under the statute, although libelous at common law.</p> <p>3. Libel—Liability of Corporations.—A corporation is responsible for the publication of a libel, or of insulting words under the statute,' by its agent acting within the scope of his employment, and in the course of the business of the corporation.</p> <p>4. Evidence—Relevancy—Libel—Publication.—In an action for libel published by letter, evidence of publication in a newspaper of matter having no connection with or relation to the letter, and for which the defendant is in no wise responsible, is not admissible.</p> <p>5. Instructions—Stating Complete Case—Erroneous Statement—O'ase at Bar.—Where the court undertakes to state a case upon which the plaintiff should recover, it must state a complete case, and embrace all the elements necessary to support a verdict, but an incomplete statement of the law in one instruction may be cured by a complete statement in another, if when the two are read together the court can see that the jury could not have been misled by the incomplete instruction. In the case at bar an instruction made malice alone the criterion of the right of the plaintiff to recover in libel, and ■ wholly left out of view the question of publication, which is an essential element of libel.</p> <p>6. Instructions—Substitution for Correct Instruction.—While there may be practically no material difference between an' instruction asked and one given by the court, yet if an instruction offered clearly and distinctly states the law on a phase of the case not covered by other instructions it should be given.</p> <p>7. Libel—Publication by Agent—Want of Authority—Ratification—Measure of Damages.—In an action against a corporation to recover damages for the publication by its agent of a libel of the plaintiff, where it appears that the publication was not previously authorized nor subsequently ratified by the defendant, the plaintiff can only recover actual or compensatory damages, and it is error to instruct the jury that, in ascertaining the damages, they may consider the standing of the plaintiff and of the defendant.</p>

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond, pronounced June 11, 1902, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

<p>Error to two judgments of the Circuit Court of the city of Richmond, rendered Eebruary 15, 1902, in two actions of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Master and Servant—Risks Incident to Employment—Risks to Grew of Yard Engine—Case at Bar.—The crew of a yard engine, whose duty it is to remove disabled cars, assume the risks that are incident to the discharge of the duty from open and obvious causes. In the ease at bar, a fireman on a yard engine was struck on the head and injured by a standard projecting from a disabled car standing on a siding. There was no defect in the engine, or track, and the claim of liability was based on the theory that the disabled car might have been put in a safer place than that at which it was left.</p> <p>Held: It was incident to a service of that description that broken ears might sometimes be put in the wrong place in the yard, and no sufficient notice given of that fact or of the defects in them, and hence the company was not liable.</p>

<p>1. City of Norfolk—Police Powers—Adulterated Milk.—The police power of the State, so far as necessary to protect the health of the inhabitants of the city of Norfolk, has been delegated to that city, and the city may enact reasonable ordinances to protect its citizens from the sale of impure, adulterated, or diluted milk.</p> <p>2. City of Nobfolk—Milk Inspection—Ordinances—Extra-Territorial Effect—Tax on Farm Products.—The ordinance of the city of Norfolk which provides for the inspection of milk sold in the city and which requires vendors of milk in the city, whether their dairies are located inside or outside of the city, to register for that purpose, and to pay a registration fee of fifty cents per cow, to cover expenses of the inspection required by the ordinance, is not extra-territorial in its effects. It only touches those who come within the city limits to dispose of their milk. Nor do the provisions of the ordinance violate the Act of Assembly approved March 3, 1896, forbidding any city or town to impose or collect any tax, fine, or other penalty for selling farm or domestic products at other places' in the city or town than the regular market houses. The charge made is in no sense a tax, fine, or penalty, but a legitimate fee designed as compensation for service rendered, and to enable the city to bear the expenses of a valid police regulation.</p>

<p>1. Conflict of Laws—Foreign Contracts of Married Women—Valid Where Made—Remedy.—A contract of a-married woman valid where made and to be performed is generally held to be valid everywhere, except when sought to be enforced in a jurisdiction where there is a total incapacity on the part- of married women to contract, as at common law.</p> <p>2. Appeal and Error—Evidence to Support Judgment—Foreign Contract of Married Woman—Personal Judgment.—This cause being heard here as on a demurrer to the evidence by the plaintiff in error (a married woman), and there being evidence tending to show that the contract in suit, made by her, was binding on her both in the jurisdiction where made and to be performed, the personal judgment of the trial court rendered against her will be affirmed.</p> <p>3. Conflict of Laws—Foreign Contract—Remedy—Law of Forum.—In respect to the remedy upon valid foreign contracts sought to be enforced in a domestic tribunal, the law of the forum prevails.</p> <p>4. Marbled Women—Personal Inability—Pleading—Case at Bar.-—Under the act of March 7, 1900 (Acts 1899-1900, page 1240), married women may contract and be contracted with, sue and be sued as if unmarried, and personal judgments may be rendered against them, whether the right or liability accrued before or after the passage of the act. It is unnecessary to allege that a contract sued on was made with reference to her separate estate, and such allegation, if made, may be treated as surplusage. In the case at bar there was nothing in the nature of the ease, as disclosed by the declaration, to make it necessary under sec. 3243 of the Code, to set forth the place where the notes in suit were made.</p>

<p>Error to a judgment of the Law aud Equity Court of the city of Richmond, rendered July 23, 1902, in an action of trespass on the case, wherein the defendant in error was the plaintiff, aud the plaintiff in error was the defendant.</p>

<p>1. Marine Insurance—Stress of Weather—Proximate Cause—Collision.— In an action on a marine policy insuring a ship' and its machinery against loss or damage occasioned hy the breaking of machinery caused by stress of weather or collision, a declaration which charged that the ship collided with some sunken or floating obstruction in the river, while proceeding on her journey; that there was a freshet and strong current in the river, and that the injuries to the machinery particularly set forth and enumerated in the declaration were caused by such collision with such obstruction in the then prevailing freshet and strong current, does not state a good cause of action. The proximate cause of the injury to the machinery was .not the “Stress of weather,” and striking a “sunken or floating obstruction” was not a “collision” in the sense in which that term is used in Marine Insurance.</p> <p>2. Insurance—“Conditions” and “Restrictive Provisions”—Code, See. 8252, Construed.—Section 3252 of the Code provides in what size type “conditions” or “restrictive provisions” of insurance policies shall -be printed, but has no application to the general indemnity clause of the policy, nor to specifications merely of the loss or damage for which the insured had assumed responsibility. Stipulations with respect to the risks insured against, which impose no onus on the insured, and with respect to which he could not be guilty of any act of omission or commission which could affect his right of recovery, are not within the statute.</p>

<p>Appeal from a decree of the Court of Law and Chancery of the city of Norfolk, pronounced October 8, 1900, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered November 27, 1901, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>Appeal from' a decree of tlie Corporation Court of the city of Danville, pronounced April 30, 1902, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>1. Wills—Case in Judgment—Construction—Contingent Remainders— Heirs at Law—At What Time to he Ascertained—Pretermitted Children.—A widower, having one grown daughter, made his will. Subsequently he married and settled on his wife $50,000 in lieu of dower and distributive share in his estate. After he married, he added a codicil, and subsequently a son was bom. The testator then died leaving a large estate, real and personal, and surviving him his widow, the daughter and son aforesaid, a brother, a sister, and the descendants of two deceased sisters. The will and codicil aforesaid, so far as the same need be recited, are as follows: “All the residue of my estate, real, personal, and mixed, I give to my executors in trust for the sole and separate use of my daughter. . . , to have and to hold for her benefit during her natural life . . . and at her death to be equally divided among her children, should any survive her&emdash;if she should die without issue, or if her surviving child or children should die before becoming of age, then the property bequeathed for the benefit of my daughter is to be divided among my heirs at law according to the laws of the State of Virginia.” Codicil: “To provide against my sudden death, causing injustice .o my dear wife, Minnie Clemens Allison, I hereby direct my executor or executors to invest one hundred thousand dollars . . . to be held by my said executor and my brother-in-law, Clemens Jones, as joint trustees, for her sole and separate use and benefit, during her natural life, and at her death to go to her child or children, if there should be any by me, and if there should be no child or children by me, then to go to my legal heirs. . . . As to the remainder of my estate, I wish it to be distributed as directed” by my will. . . . “In confirming the directions given in letter (will) herein referred to, I desire only such changes to be made as will equitably and practically carry out its intentions in case of the death of any beneficiary therein named making a change necessary, and I wish the legal heirs of any such beneficiary to receive such beneficiaries’ share.”</p> <p> Held: </p> <p>1. The gift of the entire residuum of the estate to the children of the daughter • surviving her creates in them contingent remainders, for until the death of the daughter it cannot be told which of her children will survive her and attain the .age of twenty-one years.</p> <p>2. The gift over to testator’s “heirs at law according to the laws of Virginia,” was a gift to the persons answering that description at the death of testator, and not at the death of life tenant.</p> <p>3. The ultimate remainder given to said heirs is contingent and not vested; being limited over after a preceding estate which is contingent.</p> <p>4. As the residuary clause of the will blends real and personal estate, and gives it to the heirs at law of the testator, the persons answering that description take the whole, and the widow takes no part thereof; there being nothing to indicate a contrary intention on the part of the testator.</p> <p>5,. The son takes a vested remainder in the legacy of one hundred thousand dollars given to his mother.</p> <p>6. The son, having the vested remainder aforesaid, is not pretermitted within the meaning of section 2528 of the Code. Any provision for a child which shows that he has not been forgotten is sufficient to prevent the application of the statute.</p> <p>2. Wills—Construction—Intent of Testator—Common Words—Technical Words.—The object in construing wills is to arrive at the true intent of the testator as gathered from the language used. Not the presumed or supposed intention but the correct meaning of the words actually used. Words should generally he given their ordinary and usual signification, but technical words are presumed to have been used technically, and words of a definite, legal signification are understood to he used in their definite legal sense unless the contrary appears on the face of the instrument.</p> <p>3. Wills—Words of Survivorship—Doubtful Meaning—Tested Remainders.—Words of survivorship used in a will are to he construed as referring to the testator’s death rather than to that of a life tenant, unless a special intent to the contrary appears on the face of the will; and if, upon a fair construction of the whole will there, is doubt as to the character of the remainder, it will he held to he vested rather than contingent, in order that the estate or interest may vest at the earliest moment consistent with the terms of the instrument construed.</p>

<p>Appeal from three decrees of the Chancery Court of the city of Richmond pronounced March 13, 1897; June 27, 1899, and July 3, 1900, in a suit in chancery, ■wherein The Richard Grant Co. and appellants were the complainants, and the appellees were the- defendants.</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county, pronounced October 10, 1902, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Error to a judgment'of the Hustings Court of the city of Iioanoke, rendered January 29, 1902, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Hustings Court of the city of Radford, rendered Eehruary 14, 1903, 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 Roanoke rendered September 5, 1902, in an action of unlawful detainer wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Montgomery county, pronounced ISTovemher 20, 1902, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk, rendered February 12, 1903, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

Counsel for appellees insisted that the demurrer should have been sustained for the following reasons: “Equity jurisdiction is sought on the ground of a prayer for partition of property not susceptible of division in kind. It appears by the bill that the joint owners are sui juris, and no cause is alleged why a sale cannot be made by them, nor is it stated that there is any objection on the part of any one to such a sale.

<p>Error to a judgment of the Corporation Court of the city of Bristol, rendered January 15, 1903, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

In September, 1890, the West End Land Company sold to O. P. Harrison two lots in the city of Roanoke. Harrison made the cash payment, and gave two negotiable notes for $375 each, payable in one and two years after date with interest from date, for the deferred payments of purchase money. The company conveyed the lots to Harrison, and thereupon Harrison re-conveyed the lots to a trustee to secure the notes given for deferred payments.

<p>1. Railroads—Collision—Negligence—Safe Machinery—Negligence of Fellow-Servant.—A railroad company is not liable for an injury inflicted on a fireman on one of its trains occasioned by impact with cars which drifted upon its main line just before the accident, either in consequence of some unknown person tampering with brakes that were in good order and sufficient to hold the cars, or of negligence on the part of a fellow-servant of such brakeman.</p> <p>2. Railroads—Safe Appliances—Choice of Appliances—Derailing Switch. Where reasonably adequate means have been provided to prevent cars on a siding from drifting on to the main track, it cannot be said that the removal of a derailing switch is negligence as a matter of law. Courts and juries cannot dictate' to railway companies a choice between methods all of which are reasonably adequate for the purposes to be subserved.</p> <p>3. Master and Servant—Negligence—Burden of Proof—Proximate Cause—Probability.—In order to hold a master liable for injuries sustained by a servant, while engaged in his employment, the burden is upon the servant to show affirmatively the negligence of the master, or a state of facts which warrants an inference of negligence, and that such negligence was the proximate cause of the injury. The evidence must show more than a mere probability of negligence.</p> <p>4. Master and Servant—Concurring Negligence—Proximate Cause—Case at Bar.—In order to render a master liable to a servant for the concurring negligence of himself and servant, their negligence must be simultaneous, operative and effectual at the time of the accident, and must not stand in the relation of remote and proximate cause to the event, for if they so stand and the servant can, by the exercise of ordinary care, avoid the effect of the master’s negligence, there is no liability on the master. In the ease at bar a fireman was injured within the limits of a railroad yard Ijy a collision between his train and some empty cars that had drifted on to the main line. The engine of which he was the fireman was running at a ‘rate of speed of at least thirty miles an hour. The rules of the company required, under such circumstances, that the train be run with great care and under the control of the engineman, and had it been so run the accident would not have occurred. Under such circumstances there can be no recovery by the fireman’s representative.</p>

<p>1. Wills—Devise for Life with Power to Appoint Remainder—Devise to Trustee for Use .of A “and His Family.”—A testator, by the third clause of his will, devised to his son, Francis C. Duff, the remainder in fee in certain real estate after the death of his mother. Subsequently the son bacame heavily indebted, and the father added a codicil to his will, in which he says: “I hereby revoke and modify the third section of said will and testament as to my son, Francis C. Duff, this far only, that I will the said plantation I now live on, after the death of my wife ... to Felix Gray, trustee for Francis C. Duff, and to be held by said trustee for the use and benefit of Francis C. Duff and his family during their lives, and then to be 1 willed by said Francis C. Duff to whom he may choose, and that said trustee is to hold said property free from all present and future liabilities of said Francis C. Duff, and for the benefit of said Francis C. Duff and his family. But in all other respects the said will is my last will and testament.” The will contained a residuary clause by which the testator devised and bequeathed the residue of his property to other children and grandchildren. The son had no family except his wife.</p> <p> Held: </p> <p>1. The son takes a life estate after the death of his mother, with power to appoint the remainder by his will. This express life estate is not enlarged by the' power of appointment. There is no general power of absolute disposition, expressed or implied.</p> <p>2. The son is the sole beneficiary of the life estate given to the trustee for the benefit of the son and his family, and his wife has no interest therein. The mention of the family was but the expression of the motive for the gift. This life estate is liable for the son’s debts.</p>

The bill in this cause and the demurrer were in the following words and figures: “To the Hon. John P. Sheffey, Judge of the Circuit Court of Washington County, Virginia: “Your complainant, Mary L. Shufflebarger, respectfully represents that she is the owner of a certain tract of land, situate in Washington county, Virginia, being thirty-four acres, one rood and two poles. That before her marriage with W. K. Shufflebarger she was the widow of Robert Kindrick, deceased.

<p>Appeal from a decree of the Circuit Court of the city of Bristol, pronounced May 24, 1902, in a suit in chancery wherein appellant was the complainant, and the appellee was the defendant.</p>

<p>1. Appeal and Error—Refusal of Appeal—Law of the Case.—The refusal of an appeal from a decree adjudicating the principles of a chancery cause is an affirmance of such decree, and puts at rest the questions so adjudicated, and they cannot thereafter be reopened.</p> <p>2. Equity Practice—Petition' to Rehear—Bill of Review—After-Discovered Evidence—What to Be Shown.—Before allowing a petition for rehearing or a bill of review to be filed, on the ground of after-discovered evidence, the court must be satisfied that the evidence is new, and could not, by the use of ordinary diligence, have been discovered prior to the date of the decree complained of.</p> <p>3. Husband and Wipe—Fraud—Presumptions.—In a contest between the creditors of the husband and the wife, the burden is upon the wife to show by clear and satisfactory evidence the bona fides of the transaction. The presumptions are in favor of the creditors, and not in favor of the wife. In the case in judgment the wife did not sustain the burden imposed on her.</p>

<p>1. Purchaser—Parol Agreement—Possession and Improvements.—A purchaser of real estate in 1879' under a parol agreement, who entered upon the land and held open, notorious, and peaceable possession thereof, and erected permanent and costly improvements thereon, has superior title to a deed of trust creditor whose deed was made in 1885, and who- had notice of the prior sale.</p> <p>2. Deeds—Uncertain Description—Extrinsic Evidence—Case in Judgment. W-here the description of the subject matter of a deed is too vague and uncertain to be self-explanatory, the burden rests upon those claiming under it to show by evidence- aliunde to what it truly applies. In the case in judgment, both the pleadings and proofs show that the land in controversy was not embraced in the deed of trust asserted as a l-ien thereon.</p> <p>3. Equity-—Commissioner in Chancery—Ineompetency—Exception—When Talcen.—Objections to the competency of a commissioner to take an account, which were known to exist at the time the cause was referred to him, cannot be asserted for the first time after it has been ascertained that his report will be adverse to the exceptant.</p> <p>.4. Marshalling Securities—When Refused.—A court of equity will not marshal securities unless there is a common debtor, and not then if it would operate to the injury of a party against whom it is invoked.</p> <p>5. Equity—Multiplicity of Suits.—A multiplicity of suits to accomplish the same purpose is oppressive to a defendant, and should not be sanctioned by a court of equity.</p>

<p>1. Limitation of Actions—Calls on Stock—Action by Company or Creditor—Acts 1897-8, Page 16.—As between a company and its stockholders the statute of limitations begins to run from the time the calls become due and payable pursuant to the company’s call, and in this State, in consequence of an Act of Assembly approved December 22, 1897 (Acts 1897-’8, page 16), the same rule applies as between creditors of the company and stockholders. The object of the statute was to permit the statute of limitations and most other ■ defences to be set up against a receiver, or other representative of creditors, in like manner as if the company itself were plaintiff. Even if the statute did not apply, the question being doubtful, this court would adopt that view of the situation which accords with the rule established by the Legislature on the subject. In the case at bar no new call was made by the court, but the call previously made by the company was adopted.</p> <p>2. Corporations—Assignee of Stock—Nature of Contract-Limitation of Action.—An assignee of stock is bound by an implied contract to pay unpaid installments. He is not bound by the contract of his assignor with the company, but by his own contract and the statutes which declare the extent of his liability. If his contract is not in writing, the limitation is three years from the time the right to bring action thereon first accrues.</p> <p>3. Limitation of Actions—Suspension—Time to Be Computed.—The mere filiqg of a petition to rehear a decree does not suspend its operation, and an injunction against a receiver to prevent him from prosecuting an action against one stockholder does not stop the running of the statute of limitations against another stockholder. Counting these periods, but deducting the time m^ationed in section 2 of the Act of December 22, 1897, and the time during which the decree directing this action was superseded by an order of this • court, more than three years elapsed after the right to bring this action accrued, and before it was actually brought.</p>

<p>1. Statutes—Construction—Practical Construction in Case of Doubt.— The practical construction put upon a statute for a long number of years by officials charged with its administration, and the acquiescence of the public in such construction, will, in cases of doubt, be regarded as decisive. It is allowed the same effect as a course of judicial decision.</p> <p>2. Evidence—Copies of Land Grants—Absence of Seal of Commonwealth— ■ Code, Sec. 2850—Practical Construction.—For more' than two centuries the practical construction put upon the law which is now embodied in section 2350 of the Code, has been that it is not necessary to record the seal of tiie State annexed to land grants recorded in the office of the Register of the Land Office, but that only the grant itself and the plat and certificates of survey on which it is founded need be recorded, and this construction must prevail. Duly authenticated copies of such grants, containing no copy of the seal of the State, and not reciting that such seal was recorded, may, therefore, be received in evidence in the courts of this State.</p> <p>3. Ejectment—Patent Embracing Excepted Lands—Junior Patent—Burden of Proof as to Excepted Lands.—If a plaintiff in ejectment claims under a junior patent, and the defendant under a senior patent, the exterior boundaries of which include lands excepted from his patent, and also the land embraced in the junior patent, the burden of proof is on the plaintiff to show that the land claimed by him is part of the land excepted in the defendant’s patent. In ejectment the plaintiff must recover on the strength of his own title and not on the weakness of that of his adversary, and must establish his title to the identical land claimed by the defendant. The defendant’s title will be deemed to be lawful until the contrary is shown.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced December 28, 1901, in a suit in chancery wherein the appellant, Bashaw’s administrator, was the complainant, and the appellees were the defendants.</p> <p>The decision of this case was rested by the trial court in large measure upon the appearance of the bond itself, and the same is true of the decision in this court. The conclusions of this court upon that subject sufficiently appear in the opinion of the court. The commissioner to whom the case was referred by the trial court thus summarizes in his second report the evidence adduced before him:</p> <p>“Much of that evidence is to the effect that Dr. Bashaw is a man of good character. It is also shown that he was very careless in matters of business.</p> <p>“It is further shown that B. U. Wallace acknowledged that he was indebted to Dr. Bashaw on account of a security debt. Sensabaugh testifies that he heard Wallace say to W. W. Walton that he owed Bashaw a debt evidenced by a bond, and that bond, which is the bond now in dispute, was' assigned as collateral to secure a debt dub by Bashaw to Walton of $1,238.35. This was some time in 189.3. It further appears that Bashaw paid for Wallace a judgment of $689.90, with interest from DecemberT3, 1812. This jiidgnlent was paid by partial payments, ending apparently in 1818. It was based on a bond given by Bashaw and others to save from forced sale certain property of Wallace. It further appears that Wallace was a man in moderate circumstances, owning little outside of the land now sought to be subjected to the payment of the bond in issue.</p> <p>“This is practically all that is shown by relevant evidence introduced since the filing of commissioner’s first report. U. C. Watts, the administrator, was reintroduced. He states that Dr. Bashaw notified him that he was one of Wallace’s creditors; but his evidence, which is but an elaboration of that given when first introduced, shows that he does not remember whether Bashaw called his attention specifically to the bond in question, or whether he confined himself to an attempt to collect the amount due him on an open account for professional services.”</p> <p>In the brief of counsel for appellees it is claimed that there are other material alterations, besides the date. They say:</p> <p>“Upon the introduction of the alleged bond, it appeared to have been materially altered, the date in the upper right hand corner having been torn or rubbed off and written in at another place, the last two figures of the memorandum of the date of maturity having been erased and rewritten, and the words “and seals this day and date” as well as the scrolls and word “seal” written therein, appearing to have been written with a different irdr and pen.”</p> <p>The bond in controversy was assigned by the payee, D. Bashaw, on September 8, 1893, to W. W. Walton as collateral security for a debt, and, by subsequent assignments, came into the hands of Martha M. Sensabaugh, who filed her petition in the cause claiming the benefit of the recovery to the extent necessary to pay a debt for which she held the bond in suit as collateral.</p>

<p>Appeal from a decree of the Circuit Court of Lee county, pronounced November 14, 1902, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Master and Servant—Safe Place—Negligence of Servant—Case at Bar.—Where an employee is confronted with two methods of performing work, the one safe and the other dangerous, he owes a positive duty to his employer to pursue the safe method, irrespective of the degree of danger which may he involved in the unsafe method, -and any departure from the path of safety will prevent his recovery in the event he is injured. In the case at bar, the plaintiff’s intestate came to his death as the result of his own negligence. He was engaged in “pinching” a loaded railroad car to its position on a pier. While so engaged he stood astride the rail, although an ample platform just outside the rail had been provided for him to stand on, and he had been repeatedly warned not to get on or between the rails, but to use the platform. While in the dangerous position described he was struck by a car.being pushed by -an engine ahd was killed. The trial court rightly held that there could be no recovery.</p>

<p>Appeal from a decree of the Oircuit Court of Smyth county pronounced September 13, 1902, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

In a suit brought against Janies Robinett and Harvey R. Mustard, joint executors of Samuel Wohford, deceased, personal judgments were rendered against the defendants in December, 1886. It is conceded that after service of process, but before the date of the judgments aforesaid, James Robinett died, but no notice of his death was at any time suggested upon the record.

<p>Appeal.from a decree of the Circuit Court of Bland county, rendered November 21, 1902, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>Appeal from a decree of tlie Circuit Court of Rockingham county, pronounced -October 29, 1902, in a suit in chancery wherein, the appellant was the complainant, and the appellee was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Rockingham county, pronounced April 18, 1901, in a suit in chancery wherein the Chesapeake & Western Railroad Company was the complainant, and the appellant and others were the defendants.</p>

03, in a suit in chancery pending in said court, in which suit appellants and appellee filed their respective petitions asserting claims to the fund in controversy.

901, respectively, in a suit in chancery wherein the appellants were the complainants and the appellees were the defendants.

<p>1. Public Highways—Roads—Evidence of Establishment.—Public highways should be matters of public record and identified with such reasonable certainty as to apprise the public of their location, and supply them with the means of ascertaining their rights in the premises, and also to make known to individuals to what extent their lands have been appropriated to public uses. This is now accomplished in this State by the plat or diagram required to be filed with the report of viewers appointed in proceedings to establish public roads.</p> <p>2. Roads—Public Highways—Burden of Proving—Case at Bar.—The burden of proving that a particular road is a public highway rests on the party alleging that fact. That burden has not been sustained in the case at bar. Neither the record nor the parol évidenee taken in aid of it identifies the road in controversy as the public road shown to have been previously established. . The evidence strongly tends in the other direction, and it is further shown that the road in controversy has alwajs been a “gated” road, and has not been worked' or kept in repair by the public within the memory of the oldest witnesses who testify on the subject.</p>

<p>Appeal from a decree of the Circuit Court of Rockingham county, pronounced June 23, 1903, in a suit in chancery wherein the appellee, Chesapeake Western Co., and others, were the complainants, and the appellants and others were the defendants.</p>

<p>1. Partition—Possession by Surviving Husband—'Suit by Heir—Substitute for Ejectment.—Although the lands of a deceased wife "who never had a child born alive are in the possession of her surviving husband, a bill for partition of such lands may be filed by one of her heirs against the surviving husband, and the remaining heirs. Such a suit is not a substitute for an action of ejectment.</p> <p>2. Specific Performance—Pa/rol Contract for Sale of Land—When Enforced—'Improvement of Wife’s Lands.—In order to warrant a court of equity in decreeing specific performance of a parol contract for the sale of land, the agreement must be certain and definite in its terms, the acts proved in part performancé must refer to, result from, or be made in pursuance of the agreement proved, and the agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party and place him in a situation which does not lie in compensation. The act or acts of part performance must be of such an unequivocal nature as of themselves to imply the existence of such a contract, and until such acts have been charged parol evidence will not be received to establish the terms of the contract. The erection by a husband of buildings on his wife’s land on which they resided until her death cannot be regarded as an act of such an unequivocal nature as of itself to be evidence of an agreement that he should be compensated therefor.</p>

<p>Appeal from a decree of the Circuit Court of Tazewell county, pronounced December 23, 1901, in a suit in chancery, wherein the appellees were the complainants, and the appellants were the defendants.</p>

The opinion states the case. 3STo evidence was certified in the record; the facts stated in the opinion in reference to the Constitution being matters of which the court took judicial notice.

The facts in the case sufficiently appear in the opinion of the court, but a portion of tbe evidence is here inserted in order to show the contention of prisoner’s counsel. After tbe shooting bad been proved, and it bad been shown that tbe deceased was struck by upwards of one hundred shot, the physicians who conducted tbe post mortem examination were examined as to tbe size of tbe shot taken from tbe body, and as to tbe boles in tbe body.

” The facts, as stated in the brief of the plaintiff in error, were as follows: “The Sperry & Hutchinson Company, the Trading Stamp Company referred to in the record, is incorporated under the laws of the State of Hew Jersey with a capital stock of $1,-000,000 fully paid.