Volume 102 — Virginia Reports

<p>Error to a judgment of the Circuit Court of Scott county, rendered March 21, 1903, in an action of assumpsit, 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 Augusta county, pronounced June 13, 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 County Court of Shenandoah county, rendered March 19, 1902, in a condemnation proceeding wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. A writ of error was refused by the Circuit Court of Shenandoah county.</p>

<p>1. Master and Servant—Safe Place—Rislcs Incident to Service.—A person who voluntarily enters the service of another assumes all the risks usually incident to such employment, and is presumed to have contracted with reference thereto. In the ease at bar the risk was of this character, and was open and obvious.</p> <p>2. Master and Servant—Employment of Surgeon—Duty of Master.— If a master assumes the responsibility of employing a surgeon to attend his servants, he must use reasonable care in the selection of the surgeon. The presumption is that the master discharged his duty, and the burden is on the servant to prove negligence in selecting and continuing an unfit surgeon.</p> <p>3. Master and Servant—Incompetent Surgeon Employed by Master— Liability of Master.—To hold a master liable for the incompetency of a surgeon employed by him, but who is paid by monthly contributions from the servants’ wages, to attend his servants, it must be alleged and proved that the injury complained of resulted from the incompetency of the surgeon, and further, that there was a want of reasonable care in his selection, or that he was retained in service after actual notice of his unfitness, or proof of such acts of negligence as would have affected the master with notice had he exercised due oversight and supervision. The act complained of may of itself be sufficient to establish the incompetency, but not the master’s knowledge thereof.</p> <p>4. Evidence—Competency of Surgeon—Registration as a Physician.— Whether a surgeon is registered as a physician in the clerk’s office of the County Court of the county in which he practices is immaterial on an issue involving his competency as a surgeon.</p>

<p>1. Specific Performance—Contract Indefinite—Case in Judgment— Adequate Remedy at Law.—A court of equity will not decree the specific performance of a contract to convey a tract of land where the terms of the contract are indefinite. In the case in judgment, an aunt wrote to her nephew in Missouri that if he would return to Virginia she would purchase a farm and live with him, requiring only her board and lodging, and that when she was “done with the farm” would give it to him. The nephew, on the faith of this promise, abandoned a job as a day laborer in Missouri and came to Virginia and married, and entered into the possession of the farm, cultivated it, received all the rents and profits from it, but incurred no costs, made no improvements, and did nothing in respect to it except expend some money and labor upon it in the ordinary course of husbandry. The aunt remained with him less than two years, and then, becoming dissatisfied, left him, and afterwards conveyed the land to another.</p> <p> Held: </p> <p>If any damage has been shown, it may be compensated in an action at law, and the contract will not be specifically enforced in equity.</p>

This was a proceeding by motion on the part of a receiver in a chancery suit to recover assessments made by the Chancery Court against the stockholders of a joint-stock company.

<p>Error to a judgment of the Corporation Court of the city of Roanoke affirming, on appeal, the decision of the City Council of Roanoke city, making a local assessment on the property of the plaintiff in error.</p>

<p>1. Judgments Lien—Interest of Judgment Debtor—Rights of Third Persons—Lien for Purchase Money.—If a third person furnishes the money to pay for land which is conveyed to a married woman under a written contract with her husband, as her agent, by which it is agreed that such third person shall have a lien on the land until the purchase money is refunded, and the land is conveyed to the wife, the judgment creditors of the husband cannot subject said land to their judgments until said purchase money has been refunded.</p> <p>2. Equity Practice—Suit to Set Aside Conveyance as Yoluntary—Purchase Money Advanced by Third Person—Right to File Petition— When to be Filed.—In a suit to set aside a deed to a wife on the ground that the consideration therefor moved from her husband, and that the deed is in fraud of the rights of his judgment creditors, it is error to refuse to allow a third person, who was not a party to the suit, to file a petition in the cause, showing that the consideration was wholly furnished by him, and asking to be admitted as a party and allowed to assert his rights therein. He should not be put to an independent suit when all of his rights can be fully determined in the pending suit. Such petition may be filed at any time before a final decree.</p>

<p>Error tó a judgment of the Circuit Court of Bland county, rendered May -21, 1902, in an action of covenant, wherein sundry parties suing on behalf of Ruffin and others, defendants in error, were the plaintiffs, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Augusta county, ■ rendered January 8, 1908, 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. Judgments—Death of Plaintiff■—Revival by Defendant.—Upon the-death of a judgment creditor, the judgment debtor has no authority to revive the judgment in the name of the personal representative of the judgment creditor.</p> <p>2. Appeal and Ebboe—Death of Judgment Creditor—Right of Debtor to Appeal.—Notwithstanding the death of a judgment creditor, the debtor may, under the practice in this State, have a writ of error-without revival of the judgment. The proper practice is to set out the facts in the petition for the writ of error, showing who the representative of the creditor is, and when the writ is awarded the clerk of this court will issue process against such representative.</p> <p>3. Municipal Cobpobations—Defective Streets—Right to Use—GontribUrtory Negligence—Oase at Bar.—Whether a traveller on a city street is guilty of contributory negligence in using a street known to be in a defective condition, but not so defective that reasonably prudent men would not differ as to the propriety of encountering the danger, is a question for the jury under proper instructions from the court, and where the evidence is conflicting as to the propriety-of the use of the street, the verdict of the jury will not be disturbed. Viewing the case at bar as upon a demurrer to the evidence, the-city street was defective, and the proper authorities of the city had been notified of its condition and requested to repair it and had failed to do so, and though the intestate knew of the defective-condition of the street, yet he was a careful, prudent driver, his team was well broken, his wagon was in good condition and carefully loaded, and every reasonable precaution had been taken to pass over the defective street with safety. Nevertheless, in passing over the street, the front wheel of his wagon dropped into a “chuck-hole,” and he was thrown from his wagon and received the injury complained of. The evidence was conflicting as to whether or not the street was in a dangerous condition at the point where the accident occurred. Under such circumstances this court will not disturb a verdict and judgment against the city.</p>

<p>Appeal from a decree pronounced by the Circuit Court of Accomae county in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

and the plaintiff in error was the defendant. The object of this action was to recover of the city of Newport News the sum of $1,890.00 for justices’ costs taxed in 1,890 eases tried by the Police Justice for violation of city ordinances, which, fees had been paid by the defendants in the judgments-to the chief of police, and turned into the city treasury by him. Most of the facts in the case were agreed between counsel.

<p>1. Constitutional Law—Taxation—Ad Valorem Tax—License Taxes.— The provision of section 4 of Article X. of the Constitution (1869) that “the capital invested in all business operations shall be assessed and taxed as other property” is mandatory upon the Legislature and cannot be avoided, whereas the provision of the same section for levying a license tax, in certain enumerated cases and on “all other business which cannot be reached by the ad valorem system,” is permissive only, and in the latter case it is no invasion of the requirement that taxation shall be uniform if no license tax is imposed.</p> <p>2. Municipal Corporations—Powers of Taxation.—The Legislature may delegate to a municipality all or any portion of its power of taxation within the corporate limits of the municipality, but unless the power delegated be limited it will pass to the municipality in its entirety. When it is entire the municipality stands clothed with all the pow.er of taxation which exists in the Legislature.</p> <p>3. Municipal Corporations—Taxation—Ad Valorem Tax by State— License Tax by Municipality.—Where a municipality has been invested with complete power of taxation, the mere fact that the State imposes an ad valorem tax on the capital invested in a particular business does not debar the municipality from imposing a license tax on such business, although no license is imposed by the State. Thomas v. Snead, 99 Ya. 613, overruled on this point.</p> <p>4. Norfolk City—Powers of Taxation.■—The city of Norfolk has complete power of taxation under its charter, and while it is competent for the Legislature at any time to abridge this power, either by express words or by necessary implication in general revenue laws or otherwise, it has not seen fit to do so. Acts 1889-90, p. 197, does not have that effect.</p>

<p>1. Descents and Distributions—Advancements—Release of Expectancy.—Upon the death of a parent intestate, the descent is cast by operation of law upon his heirs, and his personalty passes in accordance with the statute of distributions. Where advancements have been made in the lifetime of the parent they must be brought into hotchpot by him who receives it, and thus perfect equality is attained. This rule is unaffected by the fact that some of the heirs, at the time of receiving their advancements, enter into covenants with the parent, whereby they relinquish all interest in or claim to any portion of the estate then owned or which may be thereafter acquired by the parent, and as to which he may die intestate. ®</p>

<p>1. Wills—Construction—Case in Judgment.—A testatrix, by the third clause of her will, gave to an aunt the interest for her lifetime on six one-thousand-dollar bonds, and provided that upon the death of her aunt the principal of the bonds was to revert to her estate and be divided among her legatees “as in hereafter named,” and if the aunt died in her lifetime that clause of her will should be null and void. By subsequent clauses down to clause twenty-five she gave sundry legacies, including bonds, to others, on conditions mentioned. By clauses twenty-five to thirty-nine she gave “all my bonds, accounts, evidences of indebtedness of every description, not hereinbefore disposed of” to certain legatees mentioned. By clause forty she designated certain persons therein mentioned as her residuary legatees to whom she gave all of her “estate of every kind not hereinbefore disposed of.” The aunt mentioned in clause three survived the testatrix several years.</p> <p> Held: </p> <p>The legatees mentioned in clauses twenty-five to thirty-nine, and not the residuary legatees mentioned in clause forty, take the principal of the six one-thousand-dollar bonds after the death of the aunt. The gift of the interest on the bonds to the aunt for life was not such a disposition of the bonds as would exclude .them from the operation of the comprehensive language of clause twenty-five.</p>

<p>Error to a judgment of the Circuit Court of the city of Lynch-burg', 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 Circuit Court of Eranklin county rendered 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. Limitation of Estates—Life Estate with Power to Consume Fee— Repugnancy.—Whenever, in any conveyance or devise, a life estate is given, and the life tenant is given power to dispose of or consume the corpus of the estate, the first taker is thereby vested with a fee-simple, and all limitations over are void on the ground of repugnancy and uncertainty. Under a devise or bequest to two persons of “all I possess on earth, for their support, to be used in no other way,” followed by a gift over “if there is anything left after their death,” the first takers are entitled to the whole, and the gift over is void.</p>

The evidence sufficiently appears in the opinion of the court.

<p>Error to a judgment of the Law and Equity Oourt of the city of Richmond, rendered 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. Executors and Administrators—Accounting—Debt Due Administrator by Distributee—How Credited—Case in Judgment.—An administrator cannot have credit in his administration account for an individual debt due to him by one of the distributees. The other distributees cannot be charged with any portion of such debt, but, in equity, such debt will be treated as a payment on the distributee’s share of the amount found due by the administrator. There is nothing in the evidence in the case in judgment to take it out of this general rule. The debt for which credit is asked consists of a store account, and an account ior rent of the administrator against one of the distributees, and the writing signed by all the distributees approving the manner in which the administrator had administered the estate, by paying the expenses of the family and the tuition of the minor children, and requesting the commissioner of accounts to allow disbursements as the administrator had charged them had no reference to this debt which was due from an adult who had ceased to be a member of the household or family years before the writing was signed, and who had received from his father, in his lifetime, the same character of support and education provided in the writing for his brothers and sisters.</p> <p>2. Executors and Administrators—Accounting—Interest on Interest.— Where the debts of an estate have all been paid, and a final account settled by an administrator showing a balance against him, the payment of which he refuses without good cause, the distributees are entitled to recover interest against him on the whole sum found due, although such sum be in part composed of interest. On the final settlement the administrator stands in relation to the distributees as a borrower of the sum due by him.</p>

<p>1. Appeal and Error—Amount in Controversy.—Where the claim of several persons to take as legatees under a particular clause of a will is resisted by the executor, and there are separate decrees in their favor, the amount in controversy in this court, as to the executor, is the aggregate amount of the decrees against him, although no one of them would be sufficient to give the court jurisdiction.</p> <p>2. Wills—Construction—“Servants.”—In the absence of anything in the will or in the circumstances surrounding the testator to show a contrary intention, a gift by will “to all servants in my employ at the time of my death fifty dollars each” will include laborers on the farm of the testator. The word “servants,” especially in connection with the word “all” preceding it, will be deemed to have been used in a comprehensive sense, and will not be restricted to domestics.</p>

<p>1. County Warrants—Act of Limitations—Fund to Indemnify Sureties.—The right of the holder of a county warrant drawn on funds in the hands of a county treasurer, and duly registered, to assert his claim against a fund created by the treasurer for the indemnity of his sureties is never barred as to the treasurer, and as to the sureties is not barred until ten years from the time the right of action thereon accrues.</p> <p>2. Subrogation—Fund to Indemnify Sureties—Rights of Creditors.— A deed made by a county treasurer to indemnify and save harmless the sureties on his official bond enures to the benefit of creditors of such treasurer existing at the time the deed was made, and for whose debts the sureties were bound.</p> <p>3. County Warrants—Equitable Assignments—Act of Limitations.— A county warrant issued against funds in the hands of a county treasurer, and duly registered, operates pro tanto as an equitable assignment of so much of the funds in the hands of the treasurer as is necessary to meet its payment; and the treasurer and his sureties, having notice of the assignment by reason of the registration of the warrants, are liable to the holders thereof. Upon this liability there is no limitation as to the treasurer, and, as to the sureties, the limitation is ten years from the time the right of action accrues.</p>

<p>Error to a judgment of the Circuit Court of Fluvanna county 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. Death by Wrongfui, Act—Object of Statute.—The primary object of our statute allowing an action to recover damages for death by wrongful act of another was to compensate the family of the deceased and was not in the interest of his general estate.</p> <p>2. Death by Wroegeui Act—Death of Infant—Action for Benefit of Father—Negligence of Father—Imputed Negligence.—In an action for the benefit of a father to recover damages for the death of his infant child occasioned by the wrongful act of another there can be no recovery where it appears that the negligence of the father, or of the custodian of the infant to whom the father entrusted it, proximately contributed to the result. The doctrine of imputed negligence has no application to such a case.</p>

<p>1. Instructions—Different Theories of Case—Evidence to Support.— Where two theories of a case are presented by the evidence upon one of which the jury has been sufficiently instructed, it is error to refuse an instruction based upon the other theory of the case, which if sustained would require a different verdict, or to add to such an instruction a qualification which would withdraw from the jury the consideration of the last mentioned theory.</p> <p>2. Negligence—Concurrent Negligence of Plaintiff and Defendant— General Rule.—Although a defendant may have been guilty of negligence, yet if the plaintiff also has been guilty of negligence which has contributed as an efficient cause to the injury of which he complains, as a general rule, there can be no recovery, as courts will not undertake to balance the negligence of the respective parties in order to ascertain which one was most at fault. Here the concurrent negligence of both parties is the proximate and efficient cause of the injury.</p> <p>3. Negligence—Proximate Cause—Contributory Negligence—Exception to General Rule.—The law regards the immediate or proximate cause which produces an injury and not the remote cause which may have antecedently contributed to it. Hence, if a defendant knows, or, in the exercise of ordinary care, ought to have known of plaintiff’s negligence, and could have avoided the injury complained of but failed to do so, the plaintiff can recover. Here the defendant’s negligence is the proximate cause of the injury.</p>

<p>1. Motion for Judgment for Money—Notice—Requisites—How Time Calculated.—A motion for a judgment for money under Code, section 3211, can only be made after fifteen days’ notice in writing, and where the notice is to the first day of the next term of a court the time is to be calculated to the day appointed by law for the court to sit, and not to the day on which the court actually opens. Although such motions are viewed with great liberality, the notice must state in clear and unmistakable terms the names of the parties, the amount for which judgment will be asked, and the time and place at which the motion will be made.</p>

Davis and Others, in which appellant was appointed a receiver to collect certain bonds given for deferred payments of real estate sold under decree in said’ cause. The decision of the Circuit Court being adverse to the receiver, he appealed.

<p>Error to a judgment of the Corporation Court of the city of Bristol, affirming a judgment of the police justice of said city, rendered upon a warrant charging the plaintiffs in error with a violation of an ordinance of the defendant in error.</p>

<p>Appeal from a decree pronounced by the Circuit Court of Russell county in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

<p>Error to a judgment rendered by the Circuit Court of Buckingham county in a proceeding by attachment, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Warren 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 Law and Equity Court of the city of Richmond, 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 a decree of the Circuit Court of Clarke couuty, in a suit in chancery, wherein the appellant, Annie M. Smith, was the complainant, and the appellees and others were the defendants.</p>

<p>1. Partnership—Settlements—Imperfect Bootes.—A partner who has actively engaged in the management of the business of the firm and in keeping a large and important part of its books has the burden, in a suit brought by him for the settlement of the partnership accounts, of showing that his co-partner is indebted to him. If, on account of the confused and imperfect condition of the books, no reliable settlement can be made, his bill should be dismissed.</p> <p>2. Equity—Partnership Settlements—Issue Out of Chancery.—It is one of the peculiar functions of a court of equity to settle the partnership accounts, and this court will not reverse the action of the trial court in refusing to order an issue out of chancery to make such settlement. The object of an issue out of chancery is to aid the court in arriving at a conclusion, and whether it is desirable or not rests in the sound discretion of the court.</p>

<p>1. Pleading—Demurrer Not Noticed—Appeal and Error.—A demurrer not noticed by the decree of the trial court will be considered as having been overruled.</p> <p>2. Limitation oe Actions-—When of Essence of Right—Hoto Defence Made.—Where a statute creates a right which did not exist at common law, and fixes a time within which that right may be enforced, the limitation is of the essence of the right and not merely of the remedy, and a bill seeking to enforce such right must affirmatively show that the suit is brought within the time limited by the statute, else it will be bad on demurrer.</p> <p>3. Mechanic’s Lien—Enforcement—Limitation of Action—Demurrer.— A bill to enforce a mechanic’s lien which does not show on its face that the suit was brought within the time prescribed by statute is bad on demurrer. Hubble v. Poff, 98 Va. 646, distinguished.</p>

The facts sufficiently appear in the opinion of the court. The following instructions were asked at the trial by the plaintiff in error, but were refused: “The jury are instructed that under the statute law of the State of Virginia, a person paying more than the lawful rate of interest can only recover the excess over the lawful rate of interest which he has paid within one year prior to the beginning of his suit. “If the jury believe from the evidence that the plaintiff…

Hall, was the complainant, and the appellant and others were the defendants. The bill in this cause alleged the insolvency of the White Hall Company, and prayed for the appointment of a receiver and the administration of the assets of the company by the court. It set out complainant’s lien by deed of trust on certain real estate.

<p>1. Judgments—Docketing—Notice—City Carved Out of County.—Docketing a judgment in the clerk’s office of the County Court of a county out of which a city is subsequently carved is not constructive notice of such judgment to a purchaser for value of land acquired by the judgment debtor several years after the incorporation of the city.</p> <p>2. Equity—Quieting Title—Undocketed Judgments.—A judgment, though not docketed in the county or corporation in which land lies, constitutes a cloud on the title of a purchaser for value and without notice of such land from the judgment debtor which he may file a bill to remove, as the fact of the existence of the judgment may still be established by extrinsic evidence, and as long as such an issue can be made, the judgment constitutes a cloud upon the title of the purchaser, and depreciates its value.</p>

<p>Error to a judgment of the Circuit Court of Westmoreland county, on an application for a writ of prohibition, in which the plaintiff in error was the petitioner, and the defendants in error were the defendants.</p> <p>The proceeding out of which the present litigation grew consists of a notice by the treasurer of Westmoreland county to his deputy and surety, founded on a bond of indemnity given by them to the treasurer. The following is a copy of the notice and bond:</p> <p>“To A. C. Brown, Deputy Treasurer of Westmoreland County, Va., and the Fidelity and Deposit Company of Maryland, His surety:</p> <p>“Whereas the said A. C. Brown, who came into the office of deputy treasurer under me, E. H. Stuart, treasurer of Westmoreland county, Virginia, with the said Fidelity and Deposit-Company of Maryland as surety on his bond as such deputy treasurer, has defaulted and is in arrears for the following moneys and public funds received by him, or which ought to have been received by him, by virtue of his said office, for which I, as his principal, am chargeable; that is to say, for the balance due on tax tickets for the year 190 , which went into the hands</p> <p>of the said A. C. Brown in a certain sum, to-wit: a sum not exceeding $1,800.00; and whereas the said A. C. Brown has failed to account for said balance and the same is still due and owing, notice is therefore hereby given to each of you that, on the second day of the next term of the County Court of Westmoreland county, Virginia (that being the November term of said court, 1902), I shall move the said court to give judgment against you jointly for such sum as may be due and owing by the said A. C. Brown on account of taxes for the year 1900, as aforesaid, and for which you and each of you, may be liable in the premises, with lawful interest, penalties, and costs, this 12th day of November, 1902.</p> <p>“Bespectfully,</p> <p>E. H. STHAET,</p> <p>“Treasurer of Westmoreland Co., Va., by Counsel.”</p> <p>“Amount, $4,000.00. Ho. 211773. Premium, $15.</p> <p>“Fidelity and Deposit Company of Maryland.</p> <p>“Home Office, Baltimore, Md.</p> <p>“AAffiereas Arthur C. Brown, Montross, Virginia, hereinafter called the ‘employee/ has been appointed to the position of deputy treasurer of AVestmoreland county, Va., in the service of R. H. Stuart, treasurer of AVestmoreland county, Va., hereinafter called the ‘employer/ and has been required to furnish a bond for his honesty in the performance of his duties in the said position; and</p> <p>“AVhereas the employer has delivered to the Fidelity and Deposit Company of Maryland, a corporation of the State of Maryland, hereinafter called the ‘company/ certain statements and declarations in writing relative to the duties and accounts of the employee, the manner of conducting the business of the employer and other matters which, together with any other statements or declarations in writing made by the employer, and required by or lodged with the company, do and shall constitute the basis of this contract, or any continuation thereof, and it is hereby declared, if the employer be a corporation, that any statements or declarations made in writing by the president, secretary, treasurer, cashier, or any other officer or director of the corporation, shall be considered the statements or declarations of the employer within the meaning hereof.</p> <p>“How, therefore, in consideration of the sum of twenty-five and 00/100 dollars, paid as a premium for the period from October 2.2, 1900, to October 22, 1901, at 12 o’clock, noon, and upon the faith of said statements and declarations of sáid employer, as aforesaid, it is hereby agreed and declared that, subject to the provisions and conditions herein contained, which shall be condition precedent to the right on the part of the employer to recover under this bond, the company shall, at the expiration of three months next after proof of a pecuniary loss as hereinafter mentioned has been given to the company, reimburse the employer to the extent of the sum of four thousand dollars, and no further, such pecuniary loss as the employer shall have sustained by any act of larceny or embezzlement upon the part of the employee in the performance of the duties of the office or position in the service of the employee herein-before referred to, as the same have been, or may hereafter be, stated in writing by the employer to the company, and occurring during the continuance of this bond, and discovered during said continuance, or within six months thereafter, or within six months after the death, resignation or removal of the employee from the service of the employer, when the same occurs prior to the expiration of this bond.</p> <p>“This bond may continue from year to year, at the option of the employer at the same or an agreed premium rate, so long as the company shall consent to receive the same, in which event the company shall remain liable for any act of larceny or embezzlement committed by the employee between the original date of this bond and the time to which it shall have been continued; provided, that the liability of the company as surety for the employee to the employer shall not exceed the amount above written, whether the loss shall occur during the term above named, or during any continuation or continuations thereof, or partly during the said term and partly during said continuation or continuations.</p> <p>“That the employer shall immediately give the company notice, in writing, by a registered letter, addressed to the president of the company, Baltimore, Maryland, of the discovery of any act which may be made the basis of any claim hereunder, and shall file with the company his itemized claim hereunder at his own cost and expense, with full particulars thereof, duly sworn to, immediately thereafter; and any claim which shall not be filed by the employer with the company within six months after the expiration or cancellation of this bond, or within six months after the employee shall have ceased to be in the employer’s service, shall not be payable hereunder. And upon the making of such claim, this bond shall wholly cease and determine as regards any liability for any act of the employee, committed subsequent to the discovery of such loss, and this bond shall be surrendered to the company on payment of such claim.</p> <p>“That if the employer shall at any time hold concurrently with this bond, or represent to the company in any statement or declaration to- it, that he does or will at any time hold concurrently with this bond, any other bond or guarantee of security from or on behalf of the employer, the employer shall be entitled, in the event of loss as hereinbefore stated, to claim hereunder only such proportion of the loss as the amount covered by this bond bears to the whole amount of security carried, or so stated as carried or to be carried on the employee’s behalf, whether the employer shall be able to reimburse himself from such other bond or guarantee so carried, or stated to be carried, or not, or whether the same has been allowed to lapse or not.</p> <p>“That if the company shall so elect, this bond may be can-celled at any time by giving one month’s notice to the employer and refunding the premium paid, less a pro rata part thereof for the time this bond shall have been in force, remaining liable for all or any act covered by this bond, which may have been committed by the said employee, up to date of such determination, and discovered and notified to the company within the limit of time hereinbefore provided for.</p> <p>“That the employer shall, when required by the company, give all the aid and information in its power (at the cost and expense of the company) to bring the said employee to justice or to aid the company to sue for and to obtain reimbursement from the employee or his estate of monies which the company shall have paid or become liable to pay by virtue of this bond.</p> <p>“That this bond will become void as to any claim for which the company is responsible hereunder to the employer if the employer shall fail to notify the company of the discovery of any act which may be made the basis of any claim hereunder immediately after it shall have come to the knowledge of the employer. And if, without previous notice to and consent of the company thereto, the employer has entrusted or shall entrust the employee with money, securities, or other personal property after having discovered any act of dishonesty, or condones any act for which the company may be liable hereunder or makes any settlement with the employee for any loss hereunder, this, bond shall be null and void, and any willful misstatement or suppression of facts in any claim made hereunder renders this bond void from the beginning.</p> <p>“That any suits at law or proceedings in equity brought against this bond to recover any claim hereunder must be instituted and process served upon the company within twelve calendar months next after the first notice of said claim is filed with the company.</p> <p>“That the company, upon the execution of this bond, shall not thereafter be responsible to the employer under any bond previously issued to the employer on behalf of said employee, and upon the issuance of any bond subsequent hereto upon said employee in favor of said employer, all responsibility hereunder shall cease and determine, it being mutually understood that it is the intention of this provision that but one (the last) bond shall be in force at one time, unless otherwise stipulated between the employer and the company.</p> <p>“And it is hereby declared, if the employer be a corporation, that the acts or knowledge of the president, treasurer, secretary, cashier, or any other officer or director of the corporation, shall be the acts or knowledge of the employer within the meaning hereof.</p> <p>“That no one of the above conditions or provisions contained in this bond shall be deemed to have been waived by or on behalf of the company, unless the waiver be in writing, over the signature of its president and secretary, and its seal thereto affixed.</p> <p>“In witness whereof, the said Arthur 0. Brown (the said employee) has hereunto set his hand and seal, and the said company has caused this bond to be signed by its president and its assistant secretary, and its corporate seal to be hereunto affixed on this 22d day of December, 1900.</p> <p>“Signed, sealed and delivered by the said employee in the presence of.”</p>

<p>Petition to rebear a judgment of affirmance entered by an equally divided court at September term, 1903.</p>

<p>1. Judgments—Docketing—Indexing.—Where the name of a judgment debtor is entered in the index of the judgment lien docket, giving reference to page of the docket, and immediately under his name the word “same” is written; also giving reference to page of docket, this is a sufficient compliance as to second named judgment with the provisions of section 3561 of the Code requiring judgments to be indexed, although it is safer for clerks to comply with the letter of the statute. The object of the statute requiring judgments to be docketed and indexed is to apprise third persons who exercise ordinary care and prudence of the existence and character of the judgment.</p> <p>2. Executions—Issuance—Collateral Attack.■—An execution issued in contravention of the agreement of the parties is not void, but voidable. Until avoided it is a valid execution, and cannot be assailed by plea or proof in a chancery suit to enforce the judgment on which it issued. The chancery suit is a collateral suit.</p> <p>3. Judgments—Purchaser—Parol Contract—Imperfect Equitable Title.— A purchaser of land under a parol contract who has been let into possession and paid a part of the purchase price is not entitled to priority for the payments made over a subsequent judgment against his vendor. In order for a purchaser under a contract which is not required to be recorded, to be protected against subsequent judgments against his vendor, he must, before the date of such judgment, have become invested with a perfect equitable title.</p> <p>4. Puechaseb—Unrecorded Deed—Judgment Creditor—Code, Section</p> <p>2472.—The provisions of section 2472 of the Code, which protects a subsequent purchaser under an unrecorded title to the extent of payments made when he receives notice of a prior unrecorded deed or writing and gives him a lien on the property purchased for so much of the purchase money as he had paid before notice, has no application to judgment creditors.</p>

<p>1. Jurisdiction of Courts—Presumptions.—The judgments and proceedings of superior courts of general jurisdiction are presumed to be right until the contrary is shown. Such courts are presumed to have jurisdiction of both the subject matter and the parties to causes in which they render judgments, but this presumption only arises as to jurisdictional facts concerning which the record is silent. If the record discloses a particular method of service of process and none other is alleged, none other will be presumed.</p> <p>2. Judgments—Infants—Guardian ad Litem—Process—Collateral Attach.—The only way known to our law of bringing an infant before a court is by a guardian ad litem appointed to conduct his defence for him. If he has appeared in a suit by a guardian ad litem regularly appointed for that purpose, he cannot afterwards, in an independent suit, impeach a decree rendered against him for errors and irregularities in the proceedings in the suit in which the decree was rendered; but if no guardian ad litem was appointed or recognized by the court, he is not bound by the action of one who assumed to act for him, and the decree against him is void, and may be collaterally assailed.</p> <p>3. Process—Guardian Ad Litem—Appointment—Case in Judgment.— The memorandum made by counsel is the clerk’s chart by which he is to be guided in making out the summons, appointing guardians ad litem, and maturing causes for hearing. He is not called upon to read the bill or declaration, and undertake to reconcile it with the memorandum. The appointment by the clerk of a guardian ad litem for the “infant defendants” at the same rules at which, a bill is filed does not embrace an infant named in the bill, but not mentioned in the memorandum for suit, nor in the summons, nor in the entry on the clerk’s rule book, where it appears that the names of all other parties to the suit, including five other infants, are mentioned in said memorandum, summons and rule book. The appointment of the guardian ad litem by the clerk for the “infant defendants” applies to the other five infants mentioned, and the answer filed by a guardian ad litem including the name of the omitted infant, and purporting to be filed for him does not bind him, where, as in this ease, the court did not subsequently recognize or treat him as such guardian ad litem. The hearing of the cause on such answer is not a recognition by the court of the right of the guardian ad litem to act for the omitted infant in view of the fact that the caption to the decrees omits his name, though the names of all other parties are given.</p> <p>4. Parties—Process.—Simply naming a party in a bill as a defendant does not make him such. He must be brought within the jurisdiction of the court by citation, voluntary appearance, legal representative, or by some means ■ recognized by the law as sufficient. He must have the opportunity of being heard in order to be bound by any decree made in the cause.</p> <p>5. Jurisdiction—Matters Within the Issue.—In a bill filed by a life tenant to construe the will of the testator under whom the life tenant holds, and to ascertain his interest in the residuum of the testator’s estate and subject it to payment of complainant’s debts there can be no decree for the sale of the remainder of the land in which he has a life estate. This is outside of the issue presented by the pleadings. Not only must courts have jurisdiction of the subject matter of litigation and of the parties, but the point decided must be in substance and effect within the issue.</p>

<p>Error to a judgment of the Circuit Court of Henrico county, 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. Ejectment—Plaintiff’s Title—Trespasser.—A plaintiff in ejectment must, as a general rule, recover on the strength of his own title, and not on the weakness of that of the defendant, but if he is in actual possession he may, on the strength of his possession alone, recover of a mere trespasser who entered without any title.</p> <p>2. Ejectment—Description of Premises.—Although the description of the premises claimed in a declaration in ejectment are not as accurate as could be desired, this court will not disturb a verdict for the plaintiff where it cannot say that the premises are 'not described with such convenient certainty as that, from such description, possession thereof may not be delivered.</p> <p>3. Appeal and Error—Demurrer to Evidence—Motion for New Trial— Excessive Damages.—Upon a demurrer to the evidence no motion for a new trial is necessary in the trial court to enable this court to review its decision on the question whether the evidence supports the issue, or not. But if the amount of damages assessed by the jury is deemed excessive, a motion must be made in the trial court to set aside or abate the verdict. The objection cannot be made in this court for the first time.</p>

<p>Error to a judgment of the Circuit Court of Botetourt county, 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 decree of the Circuit Court of Shenandoah county, in several suits in chancery heard together, in one of which appellees were the complainants, and the appellant and others were the defendants.</p>

<p>1. Torts—Destruction of One’s Own Building—Unsightly Premises— Negligence.-—A declaration which charges that a defendant pulled down a building on his own lot, and left the partition wall, with communicating doors between that building and the building of the plaintiff, unprotected, exposed, and in a most unsightly condition, but not charging negligence on the part of the defendant, is bad on demurrer, as the act complained of is one which the defendant had the right to do.</p> <p>2. Railroads—Negligence—How Charged.—A declaration which simply charges that the plaintiff owned certain property and that the defendant, a railroad company, so “unskilfully, carelessly and negligently ran its trains and locomotives along and upon the trestle of defendant adjacent to plaintiff’s premises” that they were injured thereby, but does not point out the acts of negligence or carelessness with such reasonable certainty as to enable the defendant to make defence thereto is bad on demurrer.</p> <p>3. Nuisances—Doing Lawful Act in Lawful Way—Railroads—Noises— Smoke.—A railroad company acting under authority of law, whose road is constructed and operated with judgment and caution, and without negligence, is not liable to an adjacent landowner for damages resulting from the noises, jarring and shaking of buildings, dust and smoke incident to the running of trains. No action lies for the loss or inconvenience resulting from doing an authorized act in an authorized way.</p> <p>4. Pleading—Joinder of Causes of Action.—It is not error to join in different courts in the same declaration various and distinct causes of action of the same general nature, accruing at different times, and resulting in different species of injuries. Whenever causes of action are of the same nature and the same judgment is to be given in all they may be joined in one declaration.</p>

<p>Appeal from a decree of the Corporation Court of the city of Danville in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

<p>1 Trustees—Employment of Counsel^-Right of Counsel to Fees Agreed.—If a trustee, in pursuance of express authority conferred by the deed of his appointment, employs counsel to aid him in the execution of his trust, and agrees to pay him a definite fee, such counsel has the right to have that fee paid to him out of the trust fund, and is not required to litigate the question of the value of his services in the absence of all suggestion of fraud or collusion between him and the trustee.</p> <p>2. Equity—Allegation and Proof—Counsel Fees.—Upon a petition filed by counsel for a trustee praying to be allowed out of the trust fund a definite fee agreed by the trustee in good faith to be paid to him, the value of the services rendered are not in issue.</p> <p>3. Trustees—Right to Employ Counsel.—Even where a deed does'not expressly authorize it, a trustee may in good faith employ counsel to advise and assist him in the discharge of his duties, and may pay them out of the trust fund reasonable compensation for their services.</p>

<p>1. Specific Performance—Bill ~by Vendee—Parties—Vendor's Wife— Inchoate Dower.—Upon a bill filed by a vendee against a vendor for specific performance of a contract for tbe sale of real estate, tbe vendor’s wife who has not signed the contract of sale is not a necessary party. If the vendee is willing to accept the title contracted for, his rights are unaffected by the outstanding inchoate right of dower of the vendor’s wife. Nor can the vendee be defeated in his right to specific performance of the contract according to its terms by the fact that he may ultimately have to resort to the covenant of general warranty contracted for to protect himself against a claim of dower asserted by the vendor’s wife after the death of her husband.</p> <p>2. Equity Pleading—Decree Within the Pleadings.—'Specific performance should not be refused because the court thinks that the complainant is seeking to “keep another buyer out of the field” by false representations, when no such defence has been set up in the cause. A court can only decree on the case made by the pleadings.</p> <p>3. Specific Performance—When Decreed.—Specific performance should be decreed where the party seeking it has, at all times, been ready and willing to perform, and the contract is distinctly proved, iis terms are clear, and it is reasonable,'certain, legal, mutual, based upon a valuable consideration, and the parties are competent.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City 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>1. Instructions—Evidence to Support_—It is error to give an instruc-. tion when there is no evidence to support it.</p> <p>2. Railroads—Negligence—O ase at Bar.—The evidence in the case at bar shows that an intelligent boy upwards of eight years of age, who was familiar with railroad trains, and who had been repeatedly warned to keep off of moving cars, was injured by an instantaneous act of gross negligence and misconduct on his part in attempting to board a moving train, and that the defendant company and its servants were free from all fault or negligence in connection with the accident complained of, and hence there can be no recovery for the resulting injury.</p>

<p>1. Negligence—Burden of Proof.—In an action to recover for a negligent injury the burden is on the plaintiff to establish the negligence of the defendant by affirmative evidence which shows more than a mere probability of a negligent act. The proof need not be direct and positive by an eye-witness, but it must be such as to satisfy reasonable and well-balanced minds that it resulted from the negligence of the defendant. If the injury resulted from one or the other of two causes, for only one of which the defendant is responsible, or if it is just as probable that it was caused by the one as the other, in either event the plaintiff must fail.</p> <p>2. Negligence—Concurrent Negligence of Parties.—If the continuing negligence of a plaintiff up to the time of the injury concurs with the negligence of the defendant in causing the injury the plaintiff cannot recover.</p> <p>3. Damages—Negligence—Accident.—A defendant is not liable for damages resulting from an event which was not expected, and could not have been anticipated by a person of ordinary prudence.</p>

<p>Error to a judgment of the Circuit Court of Wise county, in an action of ejectment, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Corporation Court of the city of Manchester, 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 Circuit Court of the city of Richmond, rendered in a proceeding by motion for a judgment, after notice in writing, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Limitations of Actions—Non-resident Debtor—Obstructing' Action— Death, of Non-resident Debtor—Code, Section 2933.—If a non-resident, owning effects in this State, makes a simple contract to be performed in this State, and then dies outside of the State, and more than six years elapse after his death and after the accrual of the cause of action, which was after his death, before action is brought on the contract, the right of action is barred by the statute of limitations. The debtor, having died before the plaintiff’s cause of action accrued, did not and could not obstruct its prosecution. Neither he nor his estate are within the spirit or letter of section 2933 of the Code, as amended, making savings as to the classes of persons therein mentioned as long as they obstructed the prosecution of any such right of action as is mentioned in chapter 140 of the Code. After the lapse of two months from the debtor’s death the plaintiff could have had his estate in Virginia committed to the sheriff of the county where it was, and have instituted his action as soon as his cause of action accrued.</p> <p>2. Limitation of Actions—Statute of Repose—Sow Construed.—Statutes of limitation are statutes of repose, and this is especially true as to the estates of the dead. They are founded on sound public policy, and should be so construed as to advance the policy they were designed to promote.</p>

<p>Error to a judgment of the Law and Chancery Court of the city of Norfolk 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>Error to a judgment of the Circuit Court of Nottoway 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>1. Evidence—Matters Not Within Common Knowledge—Expert Testimony—Customary Methods—Individual Methods.—Expert evidence is admissible to show the usual method of erecting and fastening a derrick so as to make it reasonably safe for the work to be done, as this is not a matter within common knowledge. The expert, however, must confine his opinions to the usual and customary manner of doing such work, and not give his own practice in doing similar work.</p> <p>2. Master and 'Servant—Safe Place—Risks Incident to Employment.— A servant who seeks and accepts employment to work in a position that is obviously dangerous, and, with full knowledge of the danger, continues to work in that position without objection or complaint, assumes the risk.</p> <p>3. Master and Servant—Safe Appliances—Construction—Complicated Machinery—Unskilled Servant.—It is the duty of the master to use ordinary care and diligence to provide for his servants reasonably safe and suitable appliances for the work to be done, and, while it is within the sphere of the servant rather than of the master to adjust and adapt the implement to the work in hand, according to its varying needs, the master’s duty is not discharged by simply furnishing an unskilled servant with sound and suitable material for the construction or erection of an appliance which requires the exercise of such skill, judgment and knowledge of mechanical forces in order to render it safe and suitable for the work to be done as an unskilled servant could not be expected to have.</p> <p>4. Master and Servant—Safe Instrumentalities—Choice of Methods.— A master who has used ordinary care in the choice of instrumentalities and methods of doing work is not to be adjudged negligent for not conforming to another method believed by some to be less perilous than the one adopted, as even the skilled and experienced will differ as to such matters.</p> <p>5. Ordinary Cake Defined.—Ordinary care depends upon the circumstances of the particular case, and is such care as persons of ordinary prudence, under all the circumstances, would and do exercise.</p>

The petition for the writ of error sets out the names and addresses of the heirs of William Dinning, deceased, and they were made defendants in error.

<p>1. Ejectment—Common Qrantor—Estoppel.—Where both plaintiff and defendant in ejectment derive title from a common grantor, the plaintiff need not trace bis title back of that grantor, as the validity of his title-cannot be disputed by either party.</p> <p>2. Ejectment—Adverse Possession—Case at Bar.—The evidence in this . cause shows that the defendant and those under whom she claims title have had adverse possession of the land in controversy under color of title for more than twenty-five years; that those under whom the plaintiff claims knew that this land was cut off from the tract subsequently acquired by them, acknowledged the right of defendant’s ancestor, and asserted no claim to the land themselves, and that at the judicial sale at which they purchased it was announced that a part of the tract had been cut off. Upon these facts the plaintiff cannot recover.</p>

<p>Appeal from a decree pronounced by tbe Circuit Court of Hanover county, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>March 10, 1904.</p> <p>1. Injunctions'—Affidavit.—Tbe affidavit of tbe president of an incorporated company annexed to a bill for an injunction filed by the company, that affiant is the president of the company, that he has read the bill, and that the allegations thereof of which he has knowledge are true, and that he believes that all other matters stated therein are true, is a sufficient compliance with the requirements of the statute requiring a judge, before awarding an injunction, to be satisfied by affidavit or otherwise of the plaintiff’s equity.</p> <p>2. Res Judicata.—While the doctrine of res judicata applies, except in special cases, not only to the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time, it does not apply to a matter not adjudicated in a former action, and which could not have been brought forward for adjudication upon the pleadings in the cause.</p> <p>3. Railroads—Grossings—Board of Public Works—Permission to Gross—Change of Elevation—Res Adjudícala—Injunctions.—The Board of Public Works had, when this case was determined, exclusive jurisdiction to determine whether one railroad in this State should be permitted to cross another, and the terms upon which it might cross, and its adjudication on that subject was final and conclusive, and the courts had no power to interfere with its order by injunction or otherwise; but the grant simply of permission to cross does not carry with it the right to lower the elevation of the road crossed to its detriment, and where it appears that such change in the elevation was not passed on by the Board of Public Works, and no adjudication was invited thereon by either party, courts may, on the application of the injured party, grant an injunction to stay the hand of the party threatening the injury until such time as he shall have the right to change the grade determined by the State Corporation Commission, which now alone has jurisdiction of the question.</p>

<p>1. Street Railways—Persons and Vehicles Crossing Track—Foresight.—A street-ear company owes the duty of foresight to persons and vehicles crossing its tracks in a city, and if the failure to keep a proper lookout was the proximate cause of an injury inflicted upon a person crossing its track, it is liable, notwithstanding the fact that the person injured was guilty of negligence in, going upon the track.</p> <p>2. Negligence—Concurrent negligence of Plaintiff and Defendant.—If the proximate cause of an injury is the negligence of both plaintiff and defendant concurring and co-operating together, the plaintiff cannot recover.</p> <p>3. Instructions—Conflicting Evidence—Different Theories of Case.'—■ Where there is evidence tending to prove that the injury sued for was caused by the concurrent and co-pperative negligence of both plaintiff and defendant, and also evidence tending to prove that the defendant’s negligence alone was the proximate cause of the injury, each party has the right to have his view or theory of the case presented to the jury by proper instructions for that purpose.</p> <p>4. Ordinary Care—Street Railways—Crossing Tracks.—While it is difficult to frame a perfectly clear and accurate definition of the term “ordinary care,” a jury could not have been misled by an instruction which told them that it was not negligence as a matter of law for one about to. cross a street railway to omit to look and listen for cars, and that the question was whether men of ordinary prudence, exercising ordinary care and prudence, would have thought it unnecessary to do so.</p> <p>5. Instructions—negligence—Burden of Proof.—In a case involving questions of negligence and contributory negligence, it is not error to instruct the jury as to who has the burden of proof.</p>

<p>1. Appeal and Error—Bill of Exception—Conclusive as to Facts Stated.—In an appealable case a party has a right to a bill of exception to a ruling of the trial court which fairly states the truth of the case, and if necessary may obtain such a bill by mandamus. But if he elects to accept a bill as signed by the judge, it is conclusive of the facts therein stated, and its correctness cannot be questioned in the appellate court.</p> <p>2. Instructions—Objections to.—As a general rule, it is too late after verdict to object to instructions.</p> <p>3. Negligence—Conflicting Evidence—Question for Jury.—Whether a defendant who is operating a stationary steam saw-mill has allowed combustible material to accumulate so near his engine as to be readily ignited by sparks therefrom is a question of fact for the jury, and their verdict will not be disturbed where the evidence is conflicting.</p> <p>4. Instructions—No Objection to—Verdict.—If a verdict accords with instructions to which there is no objection, it is unnecessary to consider whether or not the instructions correctly state the law.</p> <p>5. Fire—Care in Use of—Negligence.—The general rule is that persons in the lawful use of fire must exercise ordinary care to prevent it from injuring others. What is ordinary care and prudence depends on the circumstances of the particular case. The greater the danger of communicating fire to the property of others, the more the precautions and the greater the vigilance necessary to constitute such care.</p> <p>6. Fire—Stationary Steam Saw-Mill—Sparlc Arrester.—As the operators of stationary steam saw-mill engines can minimize the danger of unintentional fires by removing combustible material a greater distance from their engines, and by keeping on hand suitable appliances for extinguishing fires caused by their engines, they are not held to the same degree of care, in the matter of providing spark arresters, as railroad companies are which operate their steam locomotives over long distances on a narrow right of way.</p> <p>7. Fire—Stationary Steam Saw-Mill—Spark Arresters—Negligence.— Where it appears that it is not customary to provide stationary steam saw-mills with spark arresters, and that what are considered properly equipped saw-mill engines are sold without such spark arresters, it cannot he said that the failure to provide such an engine with a spark arrester is per se negligence, hut it is a circumstance from which such negligence may often be inferred.</p> <p>8. Correct Verdict—Erroneous Instruction—Conflict.—A verdict should not be set aside simply because it is in conflict with an erroneous instruction to which no objection was made, if upon the whole case there appears to be sufficient evidence to warrant the verdict.</p>

<p>Appeal from a decree of the Circuit Court of the city of Lynchburg in a suit in chancery, wherein the appellant, James E. Loyd, was the complainant, and the appellees were the defendants.</p>

<p>1. Appeal and Error—Alteration of Decree of Appellate Court—Construction.—An inferior court cannot alter a decree of this court, nor can this court alter its own decree after the period for rehearing has passed, but where the mandate of this court to an inferior court practically makes the opinion in the case a part of the mandate, the opinion and mandate should be read together, and if, when so read, the mandate is clear and free from all difficulty, and it is manifest that a name which was not necessary to the completeness of the mandate was inserted by mistake, the trial court may reject the name as surplusage. This is not alteration, but construction.</p> <p>2. Appeal and Error—Who is an Appellant—Parties—Representar tion.—An appellant is one who has presented his petition to this court for an appeal, showing that he is aggrieved or has united with others in an appeal setting forth his grievances by pointing out the error of the lower court. Parties not named cannot become appellants by virtue of a petition in the name of one person on behalf of himself and a number of others whose names are not mentioned. The only appellant in such a case is the person whose name appears in the petition. To be an appellant the party must by name unite in the petition for an appeal. The doctrine, of parties by representation has no application to such a case.</p> <p>3. Interest—When Not Allowed—Case in Judgment.—The general rule that one who has the use of another’s money shall pay interest on it from the time he receives it until he repays, unless otherwise agreed, is not enforced in equity without discrimination. Where money has been received under express authority of a decree of court, and the party receiving it has been long left under a reasonable belief that his right to it would never be a subject of future controversy, and the court, the commissioner, and counsel, assure him that he is entitled to the amount, it is not error to refuse interest on decreeing a refunding of the principal sum which was erroneously decreed to him in the first instance.</p>

<p>1. Insurance—Fraud—Proof of Loss—False Invoices.—It is the duty of an assured to use the utmost good faith in dealing with the insurer, and where a policy contains a provision which forfeits it for any false swearing or fraud, or attempt at fraud on part of the assured, before or after loss, or in proofs of loss, and after loss the assured furnishes and- swears to duplicate invoices for goods alleged to have been destroyed, which invoices have been so changed as to make it appear that they were a part of the goods destroyed, when the evidence clearly shows that they were not, in the absence of evidence to remove the suspicion excited by such changes there can be no recovery, even upon demurrer to the evidence by the insurer, and although the goods actually destroyed may have exceeded in value the amount of the policy.</p>

<p>Appeal from a decree of the Circuit Court of Lee county in a suit in chancery wherein the appellee, I. P. Kane, was the complainant, and the appellants and others were the defendants.</p>

<p>1. Contracts—Satisfaction—Part Payment—Burden of Proof.-—-Part payment of a liquidated debt then payable was not a satisfaction at common law, although expressly so agreed between the parties, and while the doctrine has been changed by section 2858 of the Code, still the burden is upon the debtor to show that the payment of less than was due was “expressly accepted by his creditor in satisfaction, and rendered in pursuance of an agreement for that purpose,” and this he has failed to show in the case in judgment.</p>

Upon appeal from a finding of the State Corporation Commission, entered on the-day of November, 1903, declaring the steamers Mob jack, Accomac, Hampton Eoads, Lnray, Virginia Dare, Brandon and Berkeley, and the steam tug Ger-mania, and seven Barges, property of appellant, taxable under the laws of the State of Virginia, and imposing a property tax thereon for the year 1903.

<p>1. Building Association—Insolvency—Rights of Withdrawing Members—Compromise.—A withdrawing member of a building association which was in fact insolvent at the time the notice of withdrawal was given, though the insolvency was not notorious and no steps had been taken to wind up its affairs, is not a creditor, and is only entitled to his pro rata share of the assets along with the other stockholders of the association, and it is immaterial that he has compromised with the officers of the association, and taken its notes for a less sum than would he the withdrawal value of his stock if the association were a going concern. When insolvency exists as a fact the right of the stockholders to equality in the distribution of the assets of the association attaches, and cannot be defeated by a notice of withdrawal, nor by any dealing between the member and the officers of the association which falls short of actual payment. “Insolvency,” as here used, means inability of the association to satisfy the demands of its own members.</p>

<p>Error to a judgment of the Circuit Court of the city of Lynch-burg 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>

By section 155 of the Constitution, which went into effect July 10, 1902, a permanent commission is created, to he known as the “State Corporation Commission.” By subsection “a” of section 156 it is declared that, “subject to the provisions of this Constitution and to such requirements, rules and regulations as may be prescribed by law, the State Corporation Commission shall be the department of government..... through which shall be carried out all the provisions of this…

<p>1. New Trial—Conflict of Evidence—Effect of Verdict.—Where the issue submitted to a jury is a pure question of fact, and the evidence is conflicting, the verdict of the jury cannot be disturbed unless the evidence is palpably insufficient to sustain it. The trial court cannot set aside a verdict merely because it thinks that there is a preponderance of evidence against it, or doubts its correctness, or would itself have found a different verdict.</p>

The hill in this cause was filed by the executors and trustees under the will of H. De Butts if orris, setting forth that Henry C. if orris, one of the chief devisees, had died, unmarried and without issue, and praying a construction of the will of said H. De Butts if orris, and for a settlement of their accounts as executors and trustees.

<p>1. Deeds—Description—“Property of Every Description”—Contingent Remainders.—Between the parties thereto, a deed from an insolvent debtor, containing a release clause, which conveys certain enumerated property, and “also any and all other property of every description” of the grantor, embraces and conveys a remainder in property contingent upon the grantor’s surviving his mother.</p> <p>2. Deeds—Construction—Language—Against Grantor.—The intention of a grantor in a deed is to be gathered from the language used, and this language, in case of doubt, is to be taken most strongly against the grantor. A grantor must be considered as having intended to convey all that the language he has employed is capable of passing to his grantee.</p> <p>3. Contingent Remainders—Sow Transferred.—At common law a contingent remainder, especially where the contingency depended upon the uncertainty as to the person who was to take, passed only by estoppel, but under the provisions of section 2418 of the Code any interest in, or claim to, real estate may be transferred by deed or will.</p> <p>4. Trusts and Trustees—Advancements T>y Trustee—Lack of Authority.—Where a will creating a trust estate does not authorize the trustee to make advancements,'a mere loan by him to a contingent remainderman under the trust cannot operate ex proprio vigore as a lien or charge upon the particular interest.</p> <p>5. Judgment—Liens—Tested Remainders.—Under the provision of section 3567 of the Code a judgment is a lien on an after acquired vested remainder in possession.</p>

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

<p>Error to a judgment- of the Corporation Court of the city of Newport News, affirming the judgment of the Police Justice imposing a fine on the plaintiffs in error for conducting business without- a license.</p>

<p>1. Police Power—Alienation by State or Municipality.—Tbe police power of a State is a governmental function, the exercise of which neither the Legislature, nor any subordinate agency thereof, upon which part of its authority may have been conferred, can alienate or surrender by grant, contract or other delegation.</p> <p>2. Constitutional Law—Charter to Private Corporations—Supervision—Police Power—City Streets.—A general power contained in a charter authorizing an aqueduct company to open ground in the streets of a city or town for the purpose of laying and repairing its water pipes is subordinate to the power and control that the city or town then has, or that may be thereafter conferred upon it, over its streets. The power granted .to the company is subject to legislative control as to the manner of its exercise. Such control is simply an exercise by the State of its police power, and does not impair any contract obligation with the company.</p> <p>3. Private Corporations—Charter Powers—Failure to Exercise—Power of City Over Streets—Case in Judgment.—A company chartered over three-quarters of a century ago for the purpose of supplying water to a sparsely settled town of a few thousand inhabitants, with the privilege of opening streets and highways, and which has only exercised its privilege to a very limited degree—furnishing drinking water to only a small part of the town—cannot (after the town has grown to be a city, and expended a large sum of money in furnishing the entire city with a complete water system for all purposes) under its general grant of power, dig up or obstruct the streets of the city, against its will, for the purpose of enlarging or extending its system. In the case in judgment, the further fact that the company is practically insolvent and without means, either as regards capital or water supply, of properly enlarging its system justifies the conclusion that its undertaking is an abuse rather than a legitimate exercise of charter rights.</p>

After the evidence was all in, the court gave the following instructions at the instance of the plaintiff: “Plaintiff’s Instruction Ho. 1.” “The court instructs the jury, that if they believe from the evidence that the defendant, on or about the 3rd day of March, 1899, owned and operated a certain street railway, and ran and operated its cars by means of electricity over certain streets in the city of Portsmouth, Virginia, and especially over Crawford street, in said city,…

<p>Error to a judgment of the Circuit Court of Newport News 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. Assumpsit—Joinder of Counts—Sealed and Unsealed Instruments.— Since the passage of the Act of Assembly, approved January 25, 1898 (Acts 1897-’8, p. 103), assumpsit may be brought on sealed instruments, and counts on such instruments may be joined in the same declaration with counts on unsealed instruments.</p> <p>2. Pleading—Assumpsit—Sow Damages Laid.—Damages need not be claimed at the end of each count of a declaration in assumpsit, but may be claimed at the conclusion of the declaration for all the causes of action in the several counts. In the case at bar, the damages are claimed at the conclusion of the second count of the declaration in language broad enough to include the first count.</p> <p>3. Change oe Venue—Sergeant of City a Party—Jury.—The mere fact that a plaintiff in a common law action in a Corporation Court is sergeant of the city is no ground for a change of venue on motion of the defendant. Ample provision is made by section 893 of the Code for a case where it is improper for the sergeant to summon ■ the jury. In the case at bar, no suggestion was made at the trial that the jury was not properly summoned, or that the defendant could not have a fair trial with the jury selected.</p> <p>4. Continuance—Amended Bill of Particulars.—It is not error to refuse a continuance merely because an amended bill of particulars is filed by a plaintiff on the motion of the defendant, where it appears that the amended bill was not called for till eleven months after the action was brought, and two months after the filing of the original bill of particulars, and the latter gave the sources of all the information contained in the former, and the information furnished by the amended bill was not material to the defence.</p> <p>5. Pleading—General Issue—Special Pleas.—Where the general issue has been pleaded, it is not error to refuse special pleas setting up matter provable under the general issue, and permitting the defendant to set up all of his defences under that issue.</p> <p>6. Bills of Exception—Excluded Evidence.—Although counsel may explain the object of a question so far as to show its materiality, the ruling of the trial court refusing to permit the witness to answer will not be considered, unless the bill of exception to the ruling of the court shows what was expected to be proved by the witness. The same rule applies to questions on cross-examination as to questions in chief.</p> <p>7. Evidence—Relevancy—Case at Bar.—Where the issue is made that an officer knowing the default of his deputy, “condoned his fault by lending him money,” it is not competent to show that another person loaned the deputy money about that time. That fact is immaterial.</p> <p>8. Evidence—Relevancy—Case at Bar.—The defence by a surety on a deputy officers’ official bond being that the officer knew of his deputy’s peculations and retained him in office, it was proper to ask a witness for the surety, on cross-examination, if he had made any suggestions to the officer of the embezzlement of his deputy.</p> <p>9. Official Bonds—Liability of Surety—Good Faith of Obligee—Negligence—Fraud.—Good faith on the 'part of an officer is the test of his right to recover against his deputy and surety on a bond given by the latter with condition for the faithful discharge by the deputy of the duties of his office. Fraud will not be imputed to the officer merely because by reason of negligence or inattention to his own affairs, he has failed to discover facts which materially affect the surety’s risk. He does not owe this amount of diligence to the surety. In order to release the surety on such a bond fraud and bad faith must be brought home to the officer (obligee in the bond) by clear and decisive evidence.</p> <p>10. Instruction—Refusal—Fully Instructed.—-When instructions have already been given which cover the entire case and fairly submit it to the jury, to add repeated statements of the law, though in somewhat different form, tends to mislead and confound the jury, and it is not error to refuse the additional instructions.</p>

The will which was the subject of controversy in this case was in the words and figures following, to-wit: “June 13th. “Whereas life is uncertain I deem it advisable to make some disposition of my property, viz.: “My interest in the Main street property. “My interest in the Chnrch street property. “My interest in the Magruders’, home, Amherst county. “The North Cut place, Amherst county. “The little place adjoining the land sold to John A. Hunt, near C. L. Leftwich. “(Three)…

<p>1. Trial—Special Jury—Discretion of Trial Court.—A motion for a special jury is addressed to tbe sound discretion of the trial court, and its judgment will not be reversed unless it plainly appears that the discretion has been improperly exercised. A motion for a special jury on account of local prejudices is rightly refused in the absence of proof to sustain it.</p> <p>2. Instructions—Evidence to Support.—In reviewing the evidence in connection with an instruction given or refused, the rule requiring that it shall be considered as on a demurrer to the evidence does not apply. The question is whether there is evidence upon which to rest the instruction, or to which it is referable.</p> <p>3. Railroads—Collision—Failure to Flag Train—Negligence—Fellow-Servant—Case at Bar.—A collision by which a yard brakeman was injured having been occasioned by failure to flag a train, and the question being whether the failure to flag was due to the negligence of a fellow-brakeman in the yard, or of the yard conductor, the jury was well warranted, on the evidence in this cause, in finding that the injury was attributable to the negligence of the yard master. Under the circumstances pointed out in the opinion, he ought to have known, by the exercise of reasonable diligence, that the train had not been flagged, even though the fellow-brakeman had been instructed to do so, and had forgotten it.</p> <p>4. Verdicts—Erroneous Instructions—Harmless Error.—A verdict will not be set aside where an erroneous instruction has been given, when it clearly appears that, upon reading the instructions as a whole, in the light of the evidence, the jury could not have been misled, or when it can be seen from the whole record that even under proper instructions no other verdict could have been rightly found.</p> <p>5. New Trial—Disqualification of Juror—Bias.-—The verdict of a jury in an action for personal injury, against a railroad company, should not be set aside merely because it is afterwards discovered that one of the jurors had a claim for a personal injury inflicted on him hy the same company upon which he intended to sue, in the absence of any evidence that the juror had disregarded his oath as a juror.</p> <p>6. New Trial—Verdicts—Evidence to Support.—This court will not disturb the verdict of a jury when it cannot say either that the verdict was without evidence, or that the evidence was not sufficient to support it.</p> <p>7. Excessive Damages—Partiality or Prejudice—Personal Injury.—The verdict of a jury will not be set aside as excessive unless it clearly appears that the jury was actuated by prejudice or partiality. Courts cannot value in money the degrees of pain and anguish of a suffering human being. A verdict of $5,000 for the loss of a foot to a young colored man, such as the plaintiff in this case, cannot be said to be excessive.</p>

<p>1. Equitable Assignment—Order of City Contractor on City Engineer— Notice—Execution.—A written order from a city contractor addressed to the city engineer, who has supervision of the work, and upon whose certificate all payments are to be made, requesting him to pay to a third person the amount due to the contractor from time to time, as payments become due, is a valid equitable assignment of the amount due or to become due from the city to the contractor, and, being for value, takes priority over subsequent executions against the contractor. In the case at bar the assignment was for value, the city engineer said that he accepted the order, and several payments were made to the assignee by the city officers charged with disbursing the money. The city officers had full notice of the assigment (even if such notice were necessary) and acted on it. The creditor’s writ of fieri facias was subsequent to the assignment. Under these circumstances, it was held that the assignee was entitled to the fund.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, in an interpleader suit, in which hill was filed by the appellees, Williams & Bowe, trustees, against the appellant and others to determine the ownership of certain funds in the hands, or under the control, of the complainants.</p>

<p>Appeal from a decree of the Circuit Court of Culpeper county 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 Circuit Court of the city of Alexandria in an action of assumpsit, 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 Richmond in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Taxation—Glioses in Action—Situs—Death of Owner.—Bonds, stocks and other evidences of debt of foreign corporations owned by a citizen and resident of this State are subject to taxation in the county or corporation of this State in which the owner resides, although the evidences of ownership be deposited for safe-keeping outside of the State; and, upon the death of the owner, such bonds, stocks and evidences of debt are taxable in the county or corporation in this State in which the owner resided at the time of his death, although his executor does not get actual possession of them until after the first day of February in the year for which they are assessed. Bonds, certificates of stock and the like are the mere symbols or paper evidence of property, while it is the intangible, incorporeal right existing in the creditor to demand of his debtor performance of the obligation which constitutes property, and this follows the person of the owner'</p> <p>2. Taxation—Unadministered Estate—Legacies—Exemption from Taxation.—Until an estate is administered it is assessed for taxation in the name of the executor, and, although the property of a legatee is exempt from taxation, this exemption does not attach to a legacy in the hands of an executor before the estate is administered and the legacy is paid over.</p>

<p>1. Death by Wrongful Act—Negligence—Trespasser—Oase at Bar.— The evidence in this cause shows that although the deceased was a trespasser on the track of the defendant in error, its servants had sufficient notice of his perilous condition to enable them to avoid the infliction of the injury which caused his death, but failed to do so. A boy was running up the track waiving his hat, he was seen by the fireman on the engine, and the fireman also observed that there was a human being lying on the track, and notified the engineer in time to avoid killing the deceased, but he failed to stop his train in time to avoid the injury. Under these circumstances the defendant in error is liable for the resulting damage.</p>

Appeals from decrees of the Circuit Court of the county of Elizabeth City in two suits in chancery, in one of which the appellant was the complainant, and the appellee was the defendant, and in the other the appellee was the complainant, and the appellant was the defendant.

<p>Error to a judgment of the Circuit Court of Chesterfield 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>1. Damages—Failure of Manufacturer to Deliver Ice to Dealer.—If a manufacturer of ice fails to fulfill his contract to deliver ice to a dealer who has customers to whom he has been in the habit of furnishing ice, but who has no actual contract for the resale of the ice to any one, the measure of damages to which the dealer is entitled is the difference between the contract price and the market price at the time and place of delivery. If there is no market at the place of delivery, then the difference between the contract price and the value in the nearest and most available market to which the buyer must resort to supply himself, with the cost of transportation added, together with compensation for the time, trouble, and expense of making the repurchase, is the measure of damages.</p> <p>■2. Damages—Sale of Goods—Failure to Deliver—Repurchase.—In order to entitle a buyer to recover as damages the difference between the market price and the contract price at the time and place of delivery, it is not necessary that he should have actually gone into the market and. bought other goods to supply the place of those not delivered.</p>

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

<p>1. Equity Practice—Parties—Unauthorized Sale by Trustee.—Where one of several debts secured by a deed of trust has been paid, but the evidence of the debt, uncaneelled, has been subsequently trans-. ferred to a third person, who has pledged the same as collateral, and the holder thereof directs the trustee to sell for its payment, and a sale and conveyance in pursuance thereof has been. made by the trustee, the holder of the evidence of debt is a necessary party to a suit brought by other creditors secured to vacate the sale made by the trustee, and no final decree can be made in the cause in the absence of such holder.</p> <p>2. Appeal and Error—Defect of Parties in Trial Court—Objection.— Where there is such Et defect of parties to a suit that injustice may be* done, if the absent parties be not before the court, this court will remand the case in order that proper parties may be brought before the court, although no objection on that ground was made either in the trial court or here.</p>

<p>1. Taxation—Corporations—Charter Fees.—Under the present Constitution of this State, and the laws made in pursuance thereof, all corporations, without exception, are placed upon terms of equality, and are required to pay a charter fee (as distinguished from an annual license fee), as a condition precedent to doing business in this State, with a proviso that this charter fee shall not be exacted of those corporations by which this fee has been at any time paid. The fact that no charter fee has been heretofore required of surety companies, or that they have paid an annual license fee, does not exempt them from the payment of the charter fee required by sections 37 to 40, inclusive, of Acts 1902-’3-’4, pp. 178-180; and there is nothing in the way of a contract with, or an estoppel upon the State, to interfere with its unquestioned power to impose the tax.</p>

<p>1. State Corporation Commission—Jurisdiction—Street Railways— Crossings.—An objection that the State Corporation Commission was without jurisdiction to determine a question relating to a grade crossing of two street railways because a part, at least, of the controversy was in litigation between the railway companies in one of the Circuit Courts of the State will not avail where it appears that the litigated question has been finally determined by a decree of this court not in conflict with the order made by the State Corporation Commission.</p> <p>2. State Corporation Commission—Presumption as to Findings—Railway Crossings—Case at Bar.—The State Corporation Commission was created for the protection of the public by regulating public utilities, and, by the express provision of the Constitution, its findings are to be regarded as prima facie just, reasonable, and correct. In the ease at bar the order of the Commission, permitting one street railway company to cross the tracks of another company at grade, and prescribing in detail the methods by which the companies are to operate their roads at such crossings, is fully sustained and warranted by the evidence.</p>

As stated in the opinion, this is the sequel to Tramwell v. Ash-worth, 99 Va. 646. When the case was remanded to the Corporation Court to ascertain the liens upon certain real estate, a lien was claimed for the balance of purchase price on the property mentioned in the bill. This debt was evidenced by a note for $700, given by Mrs. M. J. Ashworth to Hives Walker.

<p>1. Constitutional Law—Local Assessments—Powers of Municipal Corporations—Restrictions.—The power of municipal corporations to impose local assessments for paving streets is expressly prohibited by section 170 of the Constitution (1902), and the charters of all . such corporations are amended by section 117 of the Constitution, “so as to conform to all the provisions, restrictions, limitations and powers set forth in this article, or otherwise provided in this Constitution.” These provisions of the Constitution put an end to the right of municipal corporations to proceed to enforce such assessments. Nor, in the case at bar, are the rights of appellee saved by sections 3 or 4 of the schedule to the Constitution. Not by section 3, because it could not have been intended to continue a right which was expressly taken away by the Constitution, nor by section 4, for, if the words “all taxes,” as therein used, be broad enough to cover local assessments, such assessments had not then been made, and could not be without further exercise of a power which the Constitution had taken away.</p>

<p>1 Constitutional Law—Derogation of Common Law—Construction.— The rule that statutes in derogation of the common law are to be construed strictly has no application to remedial provisions of a Constitution ordained for the purpose of relaxing the stringency of existing precedents in the interest of employees engaged in the dangerous occupation of constructing, maintaining, and operating railroads. Effect is to be given to the policy established by the Constitution, and to that end a fair interpretation is to be given to the language used, construing words in their common and ordi- o nary acceptation, unless it clearly appears that they were intended to be used in some other sense.</p> <p>2. Constitutional Law—Railroads—Fellow Servants—Engineer and Telegraph Operator.—Under the provisions of section 162 of the Constitution (1902) of this State, a railroad company is liable for an injury inflicted on an engineer of a moving train, occasioned by the failure of a telegraph operator of the company to deliver to the conductor of such train a message from the train dispatcher.</p> <p>3. Constitutional Law—Railroads—Transmitting Orders—Telegraph Operator.—The object of a train dispatcher is to place in the hands of conductors in charge of trains proper and safe orders for their guidance. These orders emanate from the office of the train dispatcher, and their destination is the hand of the conductor of the train whose movements they are intended to direct and control. The order is in transit from the time it leaves the one until it reaches the other, and every agent of the company through whose hands the order passes is necessarily engaged in its transmission until it reaches its ultimate destination. An operator to whom such an order is sent by the dispatcher is an employee "charged with dispatching or transmitting telegraphic or telephonic orders” within the meaning of section 162 of the Constitution of 1902. That section includes all agents of the company whose duty it is to transmit telegraphic or telephonic orders for the movement of trains to the conductors of such trains, no matter what instrumentalities may he employed for that purpose.</p>

<p>Appeal from a decree of the Corporation Court of tide city ■of Eoanoke in a suit in chancery, wherein the appellees were the complainants, and the appellant and others were the defendants.</p>

Hamilton, was the complainant, and the appellant and others were the defendants. The statutory separate estate referred to in the opinion was acquired under the “Smith Act,” some time between 1876 and May 1, 1888. The other facts sufficiently appear in the opinion of the court.

<p>1. Insurance—Premiums Advanced by Agent—Failure to Refund—Cancellation—Case at Bar.—Insurance agents wrote a number of policies for assured in various companies, paid the premiums to the companies, and charged them up to the assured. The latter was constantly in default, but made payments from time to time simply on insurance account without special application to any particular policies. Being in default over $100, the agents made repeated and urgent applications to him to pay, but he took no notice of their requests. Finally, they threatened to cancel the policies if the amount was not paid to them by a given day. The threat was ignored, and some time thereafter the agents notified the assured of the cancellation of seven of his policies, and that they had applied part of the money paid by him to premiums to date on four of the policies on which he had paid nothing, and that $6.80 of unearned premiums was due him upon surrender of the policies, which he was requested to surrender at once and get his money. He received the notice of cancellation, and reinsured some of the property in other companies, but did not surrender his policies, or demur to the cancellation, or take any further notice of the cancellation. Six months afterwards the building covered by one of the policies was burned, and this action was brought on the policy to recover for the loss.</p> <p>Held-. Notwithstanding the agents had advanced the premiums for the assured, they had the right to apply.the amount paid by him as they did, and to have the policies canceled for failure to pay the premiums thereon, and even if it was necessary that the $6.80 should have been paid to the assured in money before the cancellation could be effective, the whole of this was consumed by the currency of the policy in suit long before the date of the fire, and the assured is not entitled to recover.</p>

<p>1. Evidence—Bv/rden of Proof—Public Roads.—If the report of viewers of a road is favorable to the establishment of the road, the burden of producing evidence to overcome the prima facie case made by their report is on the contestant.</p> <p>2. Public Roads—Test of Publicity.—Whether a road sought to be established is a public road or one merely for the benefit of private individuals, is not tested by the fact that such individuals receive a greater benefit than the public generally. The test is not simply how many actually use the road, but how many may have a free and unrestricted right in common to use it. If it is free and common to all citizens it is a public road.</p> <p>3. Public Roads—Compensation to Landowner—Peculiar Benefits — Case at Bar.—In condemning land for a public road the party whose land is taken is entitled, under the statute, to just compensation for the land actually taken, and also to lair recompense for the damage to the residue of the tract beyond the peculiar benefits to be derived in respect to the residue of the land from the road to be established. But the benefits contemplated are such as 'are direct and peculiar to the landowner as distinguished from those shared by him in common with the public. In the case at bar a fifteen-foot road, with gates, was established through the lands of the owner to the mountain lands of the applicants to enable them to reach their lands for grazing purposes, but the compensation allowed was confessedly insufficient to enable the landowner to protect his property by the erection of fences along the sides of the road, and it was held that the compensation was inadequate.</p>

<p>Appeal from a decree of the Circuit Court of Wise county, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Wise county, on a motion of the plaintiff in error to correct an erroneous assessment of taxes.</p>

<p>Appeal from a decree of the Circuit Court of Lee county in a suit in chancery wherein the appellee, Maggie Zion, was the complainant, and the appellants and others were the defendants.</p>

<p>1. Pleading—Declaration—Tort Actions—What Must he Alleged.—The object of a declaration is to apprise the adverse party of the ground of complaint, and in actions of tort the declaration must state sufficient facts to enable the court to say, upon demurrer, whether, if the facts stated are proved, the plaintiff is entitled to recover. A statement of a cause of action in general terms, and general averments of negligence of the defendant which fall short of this are not sufficient. Balto. & O. R. Co. v. Sherman, 30 Gratt. disapproved.</p> <p>2. Pleading—Tort Actions—Declarations—Allegation of Duty and Breach.—In an action of tort founded on the negligence of the defendant, the declaration must allege what duty was owing by the defendant to the plaintiff, the failure to discharge which caused the injury complained of, and its breach, or make such averments of facts as will show the existence of the duty and its breach. These averments must be made directly and positively and not merely by way of recital.</p> <p>3. Railroads—Trespassers and Licensees—Safe Appliances—Change of Schedule—Speed—Signal Whistles.—A railroad company does not owe to trespassers or to bare licensees the duty of providing reasonably safe appliances, and such a party cannot complain though the appliances be ever so unsafe. Nor does it owe them the duty of giving notice of a change of schedule of its trains, or their rate of speed, nor of sounding crossing signals.</p> <p>4. Pleading—Exception in Statute—Sunday Trains.—"Where the ground of liability charged is that an injury was inflicted by a train run on Sunday, the declaration is bad.on demurrer if it does not aver that the train was not one of those permitted by law to be run on Sunday, as the statute contains several exceptions.</p> <p>5. Torts—Violation of Statute—Proximate Cause—Sunday Trains— Code, Section 2900.—A party suing for an injury arising from an act of a defendant, in violation of a statute, claiming damages, and not merely the penalty prescribed by the act, must allege and prove the same facts as if the statute had not been enacted. Section 2900 of the Code was merely intended to preserve existing causes of action, and to prevent a defendant from setting up the payment of a statutory penalty in bar thereof.</p>

<p>Error to a judgment of the Husting’s Court of the city of Portsmouth, sentencing the plaintiff in error to the penitentiary for four years upon conviction of forgery and uttering a forged will.</p>