Volume 103 — Virginia Reports

A demurrer to the original and amended hills of the complainant was sustained. The case made by these bills will best appear from the bills themselves. The original bill was as follows, to-wit: “To the Honorable John W. Woods, Judge of the Hustings Court, Roanoke, Virginia: “Humbly complaining, your oratrix, Mrs. Lizzie G-.

<p>1. Assumpsit—Affidavit ivith Declaration—Pleas Not Verified—Judgment by Default.—Where a plaintiff in assumpsit has filed with his declaration the affidavit required by section 3286 of the Code, no plea in bar can be filed by the defendant which is not accompanied by the affidavit required of the defendant by said section, unless such affidavit has been waived. If no such plea be filed, the case should be placed by the Clerk on the office judgment docket for the next term after the case is matured, to become final along with other office judgments. If, through error, the case is placed on the writ of inquiry docket, and unsworn pleas be filed, and the case continued to another term, and the plaintiff then moves to strike the pleas out because not sworn to, and the trial court overrules the motion and compels a trial on the pleas, which results in a verdict and judgment for the defendant, this court will, on a writ of error awarded to the plaintiff, set aside the verdict and judgment, strike out the pleas, and enter final judgment for the plaintiff.</p> <p>2. Pleading—Depositions—Waiver.—The mere taking of depositions in a cause which has not been set for hearing, cannot be considered as a waiver of any rights parties may have on mere questions of pleading.</p>

<p>Error to a judgment of the Circuit Court of Giles county in an action of assumj)sit wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.</p>

<p>1. Ejectment — Description of Land. — The object of the description of lands in’ a declaration in ejectment is to so identify them as that the sheriff, with the aid of information derived from the plaintiff, may give possession. It is no longer necessary that the sheriff should be able to tell from an inspection of the record of what lands he is to give possession. A description which gives the names of adjacent owners, and the metes and hounds of a large tract, and continues “which said metes and hounds, however, include land owned by Marion Waddle, embracing 150 acres, and also what is known as the Brunty tract containing 41 acres, which tracts are not claimed by the plaintiff,” is a sufficient description in an action to recover ten acres, described by metes and bounds, of the larger tract.</p> <p>2. Evidence — Copies of Land Grants — Absence of Seal of Commonwealth.— Duly authenticated copies of grants of land from the Commonwealth, which do not show that the original patents were sealed with the lesser seal of the Commonwealth, may be received in evidence in the courts of this State for the reasons set forth in Va. Coal & I. Co. v. Keystone Co., 101 Va. 723.</p> <p>3. Ejectment — Seisin of Plaintiff — Grant from Commonwealth. — -A grant from the Commonwealth confers constructive seisin sufficient to enable the patentee, or those claiming under him, to maintain an action of ejectment. Actual seisin is not necessary.</p> <p>4. Ejectment — Description of Premises — Disclaimer of Title. — Where a plaintiff in ejectment disclaims, in his declaration, any part of certain lands embraced within his outside boundaries but excepted from his grant, if any part of the lands claimed by the defendant is within the excepted lands, no judgment can be rendered against the defendants therefor, or if such judgment is rendered, the claim of the defendants to such part is not affected thereby.</p> <p>5. Ejectment — Demurrer to Evidence hy One Defendant — Plea hy Others — • Conditional Terdici. — Where some of the defendants in ejectment demur to the evidence, and others go to trial on the issue made upon their plea of not guilty, and a conditional verdict is found as to all of the defendants, it should he set aside as to the defendants who have not demurred, as it is not responsive to the issue made by their plea.</p> <p>6. Ejectment — Defendant to One Count — Judgment for Lands Claimed in Another Count. — There can be no judgment against a defendant in •ejee'ment for the land claimed in one count of the declaration to which he was not a party.</p>

<p>1. Fraud — Preference by an Insolvent Debtor.- — In the absence of statute, State or Federal, forbidding it, an insolvent debtor may, without the imputation of fraud, prefer one creditor to another, although the preferred creditor may know that the preference will have the effect of defeating the collection of other debts. This is not hindering or delaying creditors within the meaning of the statute against fraudulent conveyances, as they have no right to a priority.</p> <p>2. Fraud — Confession of Judgment by Insolvent Debtor — -Speedy Enforcement of Jicdgment. — The fact that an insolvent debtor confesses judgment in favor of his father-in-law, who immediately institutes a suit in chancery to enforce his judgment, and causes his debtor’s land to be sold for the judgment, and purchases the land at less than the amount of the judgment is of little or no value in making out a case of fraud against the parties.</p> <p>3. Fraud — Failure to List Bond for Taxation. — The failure of a creditor to list for taxation a bond of his debtor is a circumstance tending to show that the bond was not then in existence, but its force is greatly weakened by the fact that many tax-payers, either through ignorance or design, fail to list their choses in action for taxation.</p> <p>4. Fraud — Relationship as a Badge — -Scrutiny of Transactions. — Relationship is not a badge of fraud, and there is no law which forbids persons standing in near relationship of consanguinity, affinity, or business, from dealing with each other, or which requires them to conduct their business with each other differently from the manner in which they deal with other persons, though, when fraud is charged, their dealings with -each other will be closely scrutinized, as they may strengthen a presumption arising from other circumstances.</p> <p>5. Fraudulent Conveyance — -Bill to Avoid — Proof—Suspicions.—Until the facts and circumstances relied on and proved to establish fraud make out a case from which, fraud will at least he presumed, the defendant to a hill to set aside a transaction as fradulent is not required to explain such facts and circumstances, although they are not altogether free from suspicion.</p>

<p>Appeal from a decree of the Circuit Court of Shenandoah county rendered in a chancery suit under the style of Ramey’s Creditors v. Ramey’s Executrix, in which the appellant asserted a claim against the estate of J. M. Ramey, deceased.</p> <p>The evidence in this cause, as stated in the opinion, is voluminous and contradictory. That bearing on the items, pro and con., allowed by the court, if it could be severed from the residue, is out of all proportion to its value as a guide in future cases and hence no effort is made to state it. The court examined it as a whole, and allowed only such items as seemed to be fair and right, notwithstanding “the difficulty of ascertaining the truth from such a mass of contradictory evidence.”</p>

<p>1. Immigration Societies — Construction of Act of Incorporation — ■Ceneral and Special Powers — License Tax. — Immigration societies, organized under the Act of March 5, 1894, (Acts 1893-’4, p. 723) are not authorized to sell lands of others than the members of the society without paying the license tax required by the Acts of March 16, 1903, (Acts 1902-’3-’4, pp. 155, 188). The object of such societies, as declared by section 1 of the Act first above mentioned, is “to advertise for sale and to sell or lease the lands of the members of said society,” and more general language used in other sections of the Act will be so construed as to carry out the declared object and intention of the Legislature in enacting the statute, and thus reconcile all of the pro-. visions of the Act, and render it harmonious throughout.</p> <p>2. Statutes — Construction—Ambiguous Language — Argument of Inconvenience. — While the effects and consequences of a statute cannot influence the courts in construing it, where the intention of the Legislature is plain, still the argument of inconvenience, absurdity, injustice, or prejudice to the public interests may be considered by the courts in construing a statute where its language is ambiguous, uncertain, or doubtful.</p>

<p>Error to a judgment of the Circuit Court of Albemarle 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>Appeal from a decree of the Oireuit Court of Warren county in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Negligence — Buréen of Proof — Probability—Gase at Bar. — The party who affirms actionable negligence must establish it by proof sufficient to satisfy reasonable and well balanced minds. The evidence must show more than a probability of a negligent act. Moreover, if the injury complained of may have resulted from one of two causes, for one of which the defendant is liable, but not for the other, the plaintiff cannot recover. Neither can he recover if it is just as probable that the damage was caused by the one as by the other. In the case at bar there was a total failure to show how or why the fire, which is the foundation of the action, occurred. Its origin is a matter of uncertainty and conjecture, with the probability in favor of the view that it originated from the engine of defendant in error.</p>

<p>Error to a judgment of tlie Circuit Court of Craig county, in an action of ejectment, wherein the defendants in error were the plaintiffs, and the plaintiffs in error were the defendants.</p>

<p>1. Demurrer. — A demurrer admits all facts well pleaded, but not the XJleaders’ conclusions of law based thereon which he has introduced into his pleading.</p> <p>2. Deed to W. eor Lire, Remainder to Children by H. — Resulting Trust — Res Judicata — Collateral Attack on Judgment — Case in Judgment. — A bankrupt, at a sale of his effects by the assignee, b-ecame the purchaser of land formerly owned by him. His wife paid the Xiurehase money out of her separate estate. There was a decree for a deed to him, but he gave a written request for the deed to be made to his wife, and the bankrupt court so decreed. Thereupon the assignee in bankruptcy conveyed the land to the wife for life, with remainder in fee to the children of the wife by her then husband, reported the facts with the deed to the bankrupt court, which in all respects confirmed and approved the deed, and gave liberty to the wife to withdraw the deed for recordation. The wife withdrew and recorded th-e deed, at no time making any objection thereto, and after two years died, surviving her two children by the marriage above mentioned, and th-e descendants of another child by a former marriage. Suit was brought by the latter, claiming an undivided third interest in the land, and asking for partition.</p> <p>Held: The wife did not take a fee-simple in the land, nor, upon the facts stated, did any trust result in favor of the wife, or her heirs general. The wife, by her purchase, became a quasi party to the proceedings in bankruptcy and bound by the decree confirming the d-eed to her, and every question now sought to be raised here is concluded by the decree of the bankrupt court which cannot be collaterally assailed.</p>

<p>1. Fbatjd — Transactions Between Husband and Wife — Presumption.-—In a-contest between the creditors of an insolvent husband and his-wife, the presumption as to the bona fides of a money transaction between the husband and his wife is against th-e wife, and the burden is upon her to show by clear and satisfactory evidence that an-alleged purchase by her from her husband was made in good faith,- and that the consideration was paid by her out of her separate? estate.</p>

<p>1. Appeal and Eason — Variance.—An objection íor a variance between the allegations of a declaration and the proof cannot'be made for the first time in the appellate court.</p> <p>2. Master and Servant — Safe Appliances — Negligence.—It is not negligence to fail to provide a “drip cock” for the throttle valve of a. stationary steam engine which is provided with a cylinder cock, through which accumulated water can pass in safety from the throttle valve, and which, in point of fact, has served that purpose for many years.</p> <p>3. Master and Servant — Youthful Employee — Negligence in Selection.— It is not negligence to employ as engineer of a stationary steam engine a youth eighteen years of age, of more than average intelligence, who for more than a year prior to his employment as a regular engineer had been put in charge as supernumerary, and frequently ran the engine for days at a time, and .'who displayed special efficiency in operating machinery.</p> <p>4. Master and Servant — Negligent Injury — Burden of Proof. — The negligence of a master cannot be inferred from the mere occurrence of an accident by which his servant is injured. That fact alone does not raise even a prima facie presumption that the master has been guilty of negligence, or a breach of duty to his servant. Negligence of the master, in such case, is an affirmative fact to be established by the injured servant. If the injury may have resulted from one of two causes, for one of which the master is responsible, but not the other, the servant cannot recover; neither can he recover if it is just as probable that the injury was caused by the one as the other.</p>

<p>Appeal from decrees of the Circuit Court of Augusta county, in a suit in chancery, wherein the appellees were the complainants, and the appellants were the defendants, which suit was consolidated with another suit by a different complainant against the same defendants, to accomplish the same results.</p>

<p>1. Appeal and Error — Demurrer to Evidence — Bill of Exception. — A demurrer to the evidence is a part of the record and no bill of exception is necessary, but the filing of such bill will not prevent this court from reviewing the ruling of the trial court on the demurrer.</p> <p>2. Deyurrer to Evidence — Case at Bar — Decision of Trial Court. — Upon the evidence in this case the jury might have found for the plaintiff upon all the issues made, and hence it was the duty of the trial court, upon the defendant’s demurrer to the evidence, to so find.</p>

<p>Error to a judgment of the Circuit Court of Warren 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. Statutory Bonds—Condition Not Authorized.-—A statutory bond is not invalid because it contains some provisions or conditions not prescribed by the statute. It is void as a statutory bond as to the provisions and conditions not authorized by law, but so far as it complies with the statute it may be enforced as a statutory bond, if the authorized and unauthorized provisions and conditions can be severed.</p> <p>2. Attorney in Fact—Excess of Power.—-Where an attorney in fact is authorized to sign his principal’s name, as surety for an executor, to the “bond required by the court” of the executor, and he signs the name to such bond, which contains some provisions not required by law, which conditions are severable and void, this is not in excess of the attorney’s powers, and his principal is bound.</p> <p>3. Executors and Administrators—Bond of Executor—-Unauthorized Conditions—Legal Duress.—The law requires a bond, with certain conditions, to be executed before an executor is allowed to qualify as such, and where such bond, with sureties, has in fact been executed, but contains severable conditions not required by law, the obligors will not be heard to say that they acted under legal duress. The doctrine of legal duress applicable to contracts extorted by officers under color of their office has no application to bonds required by law.</p>

Court of the city of Staunton, pronounced in a suit in chancery, wherein the appellee, Fauver, and others were the complainants, and the appellant and others were the defendants

<p>1. Real Estate Agent — Commissions—Case in Judgment. — The owner of real estate 'employed an agent to sell it on terms set out in a writing which contained the following as one of the clauses to be inserted in the contract of sale: “Should any of the above payments not be made at maturity, all former payments to be forfeited, and neither party to have any claim upon the other.” A sale was effected on these terms. The agent was to receive a commission of five per cent, on the purchase money, to be paid out of the payments as made. After making several payments, upon which the agent received his commission, the purchaser became utterly insolvent and defaulted in his payments, and the owner took back the land, cancelled the purchaser’s obligations for future payments, and with his assent sold and conveyed the land to another party. The first purchaser forfeited the payments already made, and released all claims to the land, for a sum in excess of the balance of principal sum due by him. Agent sued for commissions on so much of the original purchase money as was not paid by the first purchaser.</p> <p>Held: He was not entitled to recover, as the parties had only done what they had the right to do under the terms of their contract effected through him, and upon which he based his claim for compensation. It was further held, upon the evidence, that the owner had not, by agreement or conduct, made any change in the agent’s rights under the original contract of employment.</p>

<p>Error to a judgment of the Circuit Court of Shenandoah county, in an action 'of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>1. Equity—Amendments—Neto Case.—Amendments will not be allowed, in equity, which bring into the case a new and substantive cause of action different from that set out in the original bill, and which the complainant then intended to assert; but if, on the hearing on d-emurrer, defects are pointed out which the court sees can be remedied by amendments, and substantial justice requires it, it will permit amendments to be made which are not inconsistent with the original theory of the case, and which will enable the court to apply the evidence to the pleadings as amended, and do complete justice between the parties.</p> <p>2. Equity-—Amendments—Bill Charging Fraud, in Law—Amendment Charging Fraud in Fact.—Where an original bill sets out facts sufficient to show that a conveyance from one of the defendants to another was fraudulent in law as to the complainant, and prays that it may be set aside, and, in the event that a part of the land thereby conveyed, upon which complainant’s debt is specific lien, proves insufficient, that a personal decree be rendered against the grantor and for general relief, an amended bill charging that said conveyance was made with intent to hinder, delay and defraud the complainant in the collection of his debt does not make a new case.</p> <p>3. Limitation or Actions—-Fraudulent Conveyances—Actual Fraud.— The limitation of five years, prescribed by Code, section 2929, within which to bring a suit to set aside a voluntary conveyance, has no application to an attack on a conveyance on the ground of actual fraud.</p> <p>4. Equity-—Amendments—Discretion—Appeal and Error.—As a rule, the subject of amendment of pleadings in equity rests in the sound discretion of the court, and this court will not reverse the action of the trial court permitting amendments, unless it appears that it has abused the discretion vested in it.</p> <p>5. ’SietuvsY — rAmenAmsivts at Searing. — It is not error to give liberty to amend a bill in equity at the hearing when the complainant’s claim is not barred by act of limitations, no new parties are made, and the evidence discloses a good case, but the bill fails to aver all the facts necessary to afford the relief to which the complainant is entitled.</p>

<p>1. Contracts — Mutuality.—An unsealed contract for the sale of goods to be delivered in the future, signed by the proposed seller and buyer, but which contains a reservation on the part of the seller of the right to cancel at any time, is void for want of mutuality. Where the consideration of a contract is a promise for a promise, there must be absolute mutuality of engagement. Both parties must be bound* or neither is.</p> <p>2. Contracts — Mutuality of Engagement — Tender of Performance. — Where a contract for the sale of goods is void for want of mutuality in its inception, by reason of the vendor’s reserving a right to cancel at any time, the subsequent offer of the vendor to deliver the goods which he had never bound himself to sell cannot impose a liability on the vendee. The vendee never haying had the right to tender the price and compel the vendor to deliver th-e goods, the vendor cannot by his own act make it the duty of the vendee to receive them, nor impose any liability upon him. The vendee, in such case, does not make a continuing offer to purchase.</p>

<p>1. Stock Subscription — When Due — Limitation of Action — Case at Bar.— Where stock in a joint stock company is subscribed for upon the following terms and conditions, as set forth in the prospectus, to-wit: “one dollar down at the time of subscription, one dollar per share at the call of the Board of Directors, and one dollar per share every sixty days thereafter, if needed, until the whole amount is paid,” and the prospectus provides for the deferred payments to be made: “one dollar per share upon the call of the Board of Directors, and one dollar per share every sixty days thereafter until by a sale of lots of the company such payment shall be declared unnecessary by the Board of Directors,” the words “if needed in the contract of subscription are to be read in connection with the prospectus, and when so read they do not render the contract conditional as to the deferred instalments, but make them payable automatically every sixty days after the first call by the Board of Directors, until fully paid, or until the board shall declare that by reason of the sale of lots, further payments are unnecessary, and the act of limitation begins to run on each instalment from the time it becomes due and payable.</p> <p>2. Stock Subscription- — Liability to Existing Creditors — Amendment of Charter. — The liability of stockholders of a joint-stock company to its existing creditors is unaffected by their taking full paid certificates under' the terms of an amended charter which provides that they shall not be liable for further assessments on stock for the debts and liabilities of the company contracted after the passage of the act.</p>

county, in a suit in chancery, wherein the appellees, Eosenheim & Son and others, were the complainants, and the appellant and others were the defendants.

<p>1. Common Carriers — Delivery—Authority to Receive — Negligent Delay.— A common carrier has the right to be thoroughly satisfied that a person asking for the delivery of freight is authorized to receive it, as no circumstance of fraud, imposition, or mistake will excuse a delivery to the wrong person.. In the case at bar freight was shipped by the plaintiff’s agent at Staunton, consigned to the plaintiff at Philadelphia. He was not there to receive it, and the persons applying for delivery did not show any sufficient authority to justify a delivery to them, and it was not negligence on the part of the defendant to delay delivery until their right to receive could be ascertained.</p> <p>2. Common Carriers — Live Stock — Suitable Gars — Time to Furnish— Case at Bar. — While it is the duty of a common carrier, engaged in the business of carrying live stock, to furnish suitable and safe cars and appliances therefor, it is entitled to a reasonable time within which to furnish such cars. In the case at bar, not only ' was no opportunity given to furnish a suitable car, but no order or request beforehand was made that one should be furnished.</p> <p>3. Pleading — Allegation and Proof — Case at Bar — Object of Declaration.— A plaintiff cannot allege one ground of negligence in his declaration and recover upon another. An allegation that a common carrier did not safely deliver and did not take due and proper care of a car load of live poultry, is not supported by proof of failure to have plaintiff’s poultry car returned, or a stock car furnished. The object of the declaration is to set forth the facts which constitute the cause of action so that they may be understood by the defendant, who is to answer them, by the jury, which is to ascertain whether or not they have been established, and by the court, which is to render its judgment.</p> <p>i. Ib’stbtjctioh's — Correct YerMct — Ruling on Instructions — Harmless Error. — If the court can see from the whole record that under proper instructions a different verdict from that rendered could not have been rightly found, or that the party complaining could not have been prejudiced by the action of the court in giving and refusing instructions, it will not for such errors reverse the judgment and set aside the verdict.</p>

<p>Appeal from a decree of the Circuit Court of the city of Roanoke, pronounced in a suit in chancery, wherein the appellants were the complainants, and the apxiellee was the defendant.</p>

The facts of the case sufficiently appear in the opinion of the court.

<p>Appeal from a decree of the Circuit Court of Tazewell county, pronounced in a suit in chancery, wherein the appellee,, Beavers, was the complainant, and the appellants and others1 were the defendants.</p>

<p>1. Contracts — Case in Judgment — Construction—Distribution of Funds— Power of Male — Dependent Covenants. — In order to effect a rescission in part of a contract of sale of real estate, appellees surrendered $21,000 of .their individual assets to the purchaser, and the purchaser released a part of the land which had been conveyed to him. Appellants and appellees, who were the vendors of the land, then entered into a written agreement between themselves, by which they agreed that the land released should ■ be held in the name of a trustee, and be sold by appellees whenever the same could be sold for $100,000 or more, or, by consent of all parties, for less, and that appellees should be repaid the $21,000 surrendered by them, without interest, and that the residue should be divided between appellants and appellees, equally. Suit was brought by the assignee of one share of the $21,000, for the sale of the land, and payment of the amount due him.</p> <p>Meld: 1. It cannot be fairly presumed that, if from any cause a sale in pais could not be made for the price named, the parties intended to relinquish their legal right to resort to a court of equity to compel a sale, or only to invoke the aid of that tribunal on the terms of surrendering a priority to which they were entitled by the law and facts of the case, and hence this court has power to decree a sale and a distribution of the proceeds.</p> <p>2. The limited power of sale given the appellees and the scheme of the distribution of the proceeds of sale are not dependent covenants, but are separate and independent of each other.</p> <p>3. The appellees should be first paid the $21,000, without interest, and the residue divided equally between the appellants and the appellees. It is not a case for a ratable distribution. ' 4. This would be the proper distribution independently of the contract, and the contract is reasonably susceptible of this construction.</p> <p>2. Contracts — Construction.—Where a contract ^ admits of two constructions, the general rule is that the court ought to adopt 'that which is most equitable, and which will not give an unconscionable advantage to one party over the other.</p> <p>3. Contracts — Construction—Dependent Covenants. — Courts construe agreements so as to prevent a failure of Justice, and, discarding mere artificial reasoning and looting to the intent of parties as gathered from the entire instrument, hold dependent covenants to be independent when the necessity of the case and the ends of Justice require it, notwithstanding the form.</p>

<p>Appeal from a decree pronounced by the Circuit Court of Rockingham county, in a suit in chancery, wherein the a£>pellees were the complainants, and the appellants were the defendants.</p>

D. Hilton and W. B. Allen, partners in trade under the style and firm of Hilton & Allen, were the plaintiffs, and the defendant in error was the defendant.

S. llamsburg, suing on behalf of himself and other creditors of C. G. Kline, was the complainant, and the said C. G. Kline and another were the defendants, to which suit the appellant was, on her petition, admitted as a party defendant.

<p>1. Deeds — Refusal to Accept — Recovery of Consideration. — Where grantees refuse to accept a deed put on record for their benefit, and recover from the estate of their grantor compensation for the value of land which should have been conveyed to them, upon the theory that their refusal to accept the deed rendered it a nullity, and the decree for the compensation declares that they shall not be entitled to the sum decreed until a deed of reconveyance is executed and delivered, the effect of the transaction is to reinvest the heirs of the grantor with the title to the land, although no deed is made by the grantees.</p> <p>2. Eqeity — Sale of Lands Specifically Devised — Lands Descended — Presumption. — Where lands specifically devised have been sold to pay debts of testator in a chancery suit brought to subject his property to the payment of his debts, there is a strong presumption that the lands descended to the heirs have been first exhausted; and, in the case in judgment, this presumption is strengthened by the facts disclosed in the record of the suit in which the lands were decreed to be sold, to which the devisees were parties.</p> <p>3. Eqeity — Laches—Debts of Decedent — Lands Devised — Lands Descended. — If, in a suit to subject testator’s lands to the payment of his debts, to which his devisees are parties, a decree is rendered for the sale of lands specifically devised, and the devisees neither object, nor ask the court first to sell lands not devised, nor to be indemnified out of unsold lands, neither they, nor those claiming under them, will be heard, years afterwards, when the lands have passed into the hands of other persons, to say that they have an equity to have made good to them, out of such other lands, the loss which they have sustained.</p>

<p>1. Malicious Prosecution — Search Warrant — Termination of Prosecution. — An action for damages lies for maliciously, and without probable cause, procuring the issuance and execution of a search warrant for goods alleged to have been stolen; and the failure to find the goods, upon the execution of the warrant, is a termination of that proceeding. No other trial or acquittal is necessary to support the action for damages. ■</p>

<p>1. Compromise — Affecting Rights of Third Person — Case at Bar. — A creditor of a partenrship agreed to sever tbe partnership liability and to allow each partner to pay a certain part of the debt, and that the two partners should have a settlement of their partnership transactions, and that the social assets, which were conveyed to secure the creditor, should be applied to the individual liabilities of each partner under their severed liability in proportion to their respective interests in the partnership assets. Being unable to agree upon terms of settlement, one of the partners sued the other for a settlement. On orders of reference several reports were made, each finding a large balance in favor of the plaintiff partner. None of these reports were confirmed. Finally they compromised upon an amount due the plaintiff, less than that found by either of the reports in the cause. The creditor was no party to this suit or compromise. At his instance the decree approving the compromise and decreeing against the defendant was set aside.No effort was made by the creditor to show that the compromise was not just and fair, although more than a year elapsed before this action was tried, and it is not claimed that there was any fraud or collusion between the partners, or that the sum agreed upon is in excess of what was due.</p> <p>Held: Under the facts and circumstances the creditor is bound by the compromise between th-e partners.</p> <p>2. Set-Offs — Payments—List—Proof.—Where the items of an account filed with a plea of payment, or with a plea under which payment may be proved, as nil debet, are so described as to give the plaintiff notice of their character, the defendant may show either payments or set-offs. If the nature of the item be distinctly stated, the statute is complied with, though the item be wrongly denominated.</p> <p>3. Assumpsit — Over-Payments—Social Assets — Action by One Partner.— Wlrere, by a lawful agreement between two partners, all of certain partnership funds are the property of one of the partners, and a creditor of that partner receives them in excess of a debt he holds against him, to the extent of the over-payment the creditor has in his hands that to which the partner is entitled, which the latter can recover in an action of assumpsit in his own name, for whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received.</p>

<p>1. State Corporation Commission — Private Track Scales — Public Service Regulation — Fixing Rates. — Placing cars on private track scales, in position to be weighed, by a railroad company engaged in handling cars along its route from the terminus of one railroad to the terminus of another, and to and from the various industries with which it has established switching connections is cognate to, and so intimately connected with, the public service involved in the carriage and delivery of freight by railroad companies to patrons along its route as to constitute a part of such service. The service is a public service within the meaning of the Constitution of this State, is subject to the superintending power o£ the State, and the State Corporation Commission has the power,., under section 155 of the Constitution, to compel the performance by railroad companies of such services for customers having switching; connections with their roads, and to fix the charges therefor.</p> <p>2. State Corporation Commission- — Private Track Scales on Railroads — ■ Rates. — The rate of twenty-five cents per car fixed by the State Corporation Commission upon railroad companies for each car, loaded or empty, placed in position to be weighed on companies’ or shippers’ individual track scales on sidings leading to industries along the line of such railroads, is a reasonable rate, and is fully sustained by the evidence.</p>

Tbe proceeding in this case was a joint proceeding against several living persons and tbe personal representatives of several wbo were dead. Mo question was made about tbe riglit so to proceed. While not referred to, it supposed that tbe plaintiff proceeded under section 3212 of tbe Code. Tbe bonds sued on, though signed by several, ran in tbe singular number, “I promise to pay,” “I hereby waive,” &c.

H. Shields, trustee, was the complainant, and the appellants and another were the defendants. This was a suit for the sale of lands of persons under disabilities. Sundry pieces of land were sold, the sales confirmed, the purchase money paid, and deeds made to the purchasers.

Appeal, from a decree pronounced by tbe Circuit Court of EranHin coruity, in a suit in chancery, wherein appellant, suing on behalf of himself and other creditors of his mother, was the complainant, and the appellees were the defendants.

<p>1. Negligence — How Charged — Case at Bar. — A charge of negligence on the part of a defendant, though general, is sufficient, if the facts alleged are such as to enable the court to say, on demurrer, that if proved the plaintiff is entitled to recover. In the case at bar, the house of the plaintiff’s intestate was situate on one street and near another, under both of which the defendant had gas mains. The first count stated the negligent escape of gas from the pipes under one of these streets; the second count from pipes under the other street, and the third count charged the negligent escape of gas from defendant’s pipes, without designating the street. The plaintiff could not know certainly from which pipe the gas escaped. This fact was peculiarly within the defendant’s knowledge, and hence the third count was sufficient.</p> <p>2. Negligence — When a Question for the Jury — Case at Bar — Escaping Gas. — Although deceased, who was asphyxiated by illumináting gas, may have known that gas had been escaping in other parts of the house than the room occupied by her, and that such gas was dangerous to human life, yet if efforts had been made to remedy the trouble, and there is evidence tending to show that no gas had escaped in the room occupied by her, and that on the night of the asphyxiation no gas was escaping as late as midnight, the question whether or not she was guilty of contributory negligence in occupying her room on that night, or in not taking other precautions for her safety, is one for the jury. Her failure to do so was not contributory negligence as a matter of law.</p> <p>3. Negligence — Escaping Gas — Proximate Cause — Superseding Cause — Responsible Cause. — If, owing to a negligent failure properly to maintain gas mains, illuminating gas escapes into an abandoned sewer;- and thence, through a private connecting pipe, into a private building, killing the occupant, the negligence in permitting the gas to escape is the proximate cause of the death, unless there was some other superseding or responsible cause intervening between such negligence and the resulting death. To be a superseding cause,whether intelligent or not, it must so entirely supersede the defendant’s negligence that it alone, without the defendant’s negligence contributing thereto in the slightest degree, produces the injury. To be a responsible cause it must be the culpable act of a-human being who is legally responsible for his act.</p>

<p>1. Jtjboes—Disqualification—Friendship—Physician and, Patient.—Tbe fact that jurors in a civil ease are friends of the plaintiff, and that he is their family physician, does not per se disqualify them from sitting in the case. The trial court must determine from all the facts before it whether or not a juror is competent. In the absence of other evidence, his statement on his voir dire that the relation would not influence his verdict is sufficient to warrant his acceptance.</p> <p>2. Railroads—Safe Stations—-Lights.—It is the duty of railroad companies, for the protection of passengers carried or to be carried, on its trains, to provide and maintain at its stations reasonably safe and adequate ways for approaching and leaving its trains, and, at night, to have such ways reasonably lighted a sufficient time before- and after the arrival and departure of each train to enable passengers to avoid danger.</p> <p>3. Railroads—Passengers—Invitation to Alight—Safe Way to Station— Lights—Case at Bar—Proximate Cause.—Where passengers on a railroad are invited, expressly or impliedly, to get off a train at a place other than that at which they usually alight, and there is any special danger attending their approach to the station, it is the* duty of the railway company to warn them of such danger, and to aid them in reaching the station in safety. This is especially true in the night-time. In the case at bar a passenger got off on such invitation, and in making his way along the track to the platform, on a very dark night, fell through a cattle guard over which it was' necessary for him to pass, which was not lighted, and of which he had no previous knowledge, and was injured. It is held that the negligence of the company in failing to furnish light, or to give any warning of the danger was the proximate cause of the injury, and the failure of the passenger to walk through half a dozen coaches to reach the platform before getting off, or to require the conductor to pull up to the platform was not such contributory negligence as would bar recovery.</p>

<p>1. Delinquent Lands—Right to Redeem—Notice—Act of April 2, 1902— Right of Redemption Barred.—The provision of the Act of April 2, 1902, (Acts 1901-’2, p. 799,) amending Code, section 655, requiring the purchaser of land sold for delinquent taxes to give four months’ notice of his purchase to the persons enumerated in the statute, before he shall be entitled to a deed, and giving to “the person entitled to redeem” th-e right to redeem at any time before the expiration of four months, has no application to a person whose time for redemption had expired before the Act took effect. It was not the purpose of the legislature to revive a right of redemption already barred, if, indeed, it had the constitutional power to do so.</p> <p>2. Constitutional Law—Two Constructions Possible—One Unconstitutional.—Where a statute is susceptible of two constructions, one of which is plainly within, and the other without, the legislative power, the courts must adopt the former construction.</p> <p>3. Delinquent Lands—Treasurer's Report of Sales—Alphabetical Arrangement.—The proceedings under which land is sold for delinquent taxes are not void because the former owner’s name did not appear in alphabetical order in the Treasurer’s original report of sales, as the statute does not require the observance of such alphabetical arrangement.</p>

<p>1. Taxation—Exemption from Taxation—Foreclosure of Mortgage Given hy a Corporation Whose Property Was Exempt—“Rights, Privileges and Franchises."—Under an Act o£ the General Assembly of Virginia, passed December 1, 1787, a charter was granted to the Dismal Swamp Canal Company, by which, for certain considerations therein expressed, the property of the company was vested in the proprietors, their heirs and assigns forever, as tenants in common in proportion to their respective shares, the same to be deemed real estate, and be forever exempt from the payment of any tax, imposition, or assessment whatever. In 1851, the State of Virginia-adopted a constitution which provided that “taxation shall ber equal and uniform throughout the Commonwealth, and all property shall be taxed in proportion to its value.” This provision or' its equivalent has been contained in every Constitution of the State1 since adopted down to the present Constitution. In 1867 the Dismal Swamp Canal Company gave a deed of trust on all the property of the company, which was foreclosed in 1880, and the property conveyed to the purchasers, who assumed the corporate name of the Dismal Swamp Canal Company. The new company also gave a deed of trust on all the property of the Canal Company of every description, and this was foreclosed in a like manner. There were several other deeds of trust of like character by succeeding companies which were finally foreclosed, until finally the property, under the last foreclosure sale, was conveyed to the appellant, wfucIiTHs its'predecessors in title had done, became a corporation under the provisions of sections 1233 and 1234 of the Code, which provide that"upon conveyance to the purchasers in such case the old company shall be ipso facto dissolved and the purchasers shall forthwith be a corporation and succeed “to all such franchises, rights and privileges ... as would have been had by the first company but for such sale and conveyance.” The purchaser’s interest in the new company is declared to be personal estate, and to stand on the same footing as shares in joint stock companies generally. The appellant, being the present owner of the canal, and all of its property and appurtenances, by reason of the several foreclosures above mentioned, claims that it is entitled to all “the franchises, rights and privileges” conferred upon the Dismal Swamp Canal Company, by the Act of 1787, and, among them, immunity from taxation.</p> <p>Seld: 1. As between the State and the first company the charter is a contract, the obligation of which the State cannot impair.</p> <p>2. The "franchises, rights and privileges” acquired by the appellant by virtue of its purchase and acceptance of a conveyance under the provisions of sections 1233 and 1234 of the Code do not -embrace an exemption from taxation. Exemption from taxation is never presumed, but must be declared, or it will never be deemed to exist. The language of section 1234 of the Code, under which appellant claims, does not necessarily embrace a grant of exemption from taxation, nor is there an equivalent implication by necessary construction, nor is there anything in the context, the subject matter, or the relation of the parties, to warrant the -conclusion that the legislature intended to grant an exemption, and hence it does not exist.</p> <p>3. The company which purchased under the foreclosure of the mortgage of 1867 was incorporated under the provisions of section 1234 of the Code, and at that time the legislature had no power, if •so disposed, to grant a perpetual exemption from taxation to a corporation, either by a special act 6f incorporation, or by force •of general law. The property was, therefore, taxable in the hands of that company, and is now taxable in the hands of appellant.</p>

<p>Error to a judgment rendered by the Corporation Court of the city of Radford, 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 rendered by tbe Court of Law and Chancery of tbe city of Norfolk, in an action of trespass on tbe case, wherein tbe defendant in error was tbe plaintiff, and tbe plaintiff in error was tbe defendant.</p>

<p>Appeal from a decree pronounced by the Chancery Court of the city of Richmond in a suit in chancery, wherein the appellants were the complainants, and the appellee was the defendant.</p>

<p>1. Condemnation Proceedings — Continuance.—In view of the provisions of chapter 46 of the Code to secure speedy action in condemnation proceedings instituted by internal improvement companies, and to transfer litigation about title from the land to the fund paid into court, it is not error to refuse a continuance of a motion to confirm the report of commissioners assessing damages until another suit to settle the title to the land has been decided. This is especially so where the party complaining is a party to the condemnation proceedings, and has abundant opportunity of introducing evidence in his behalf, and of being heard by counsel.</p> <p>2. Condemnation Proceedings — Report of Commissioners — Weight.—The report of commissioners to assess damages in condemnation proceedings is entitled to great weight, and their assessment will not be disturbed except in a very clear case of error. The commissioners are disinterested freeholders, selected for their fitness, act under oath, and possess the advantage of inspecting the property and of seeing the witnesses and hearing them testify. The law lays great stress upon the matter of the view, the effect of which cannot always be transmitted. Furthermore, the statute requires that their report shall be taken as prima facie correct.</p> <p>3. Condemnation Proceedings — Damages—Speculative.-—In assessing damages, in condemnation proceedings, the commissioners should consider the actual value of the land with all of its adaptation to general and special uses at the time of their assessment, and not its prospective, speculative, or possible value, based upon future expenditures and improvements.</p>

As the case stands here as on a demurrer to the evidence, it is not deemed necessary to give the whole of the evidence. The plaintiff in the trial court testified in his own behalf, and a passenger on the car which struck him was also examined in his behalf. Their evidence, as condensed in brief of counsel for defendant in error, was as follows: “Robert H. Steger. “I was on the northeast córner of Broad and Third'streets. I intended-to go down town to.Poythress’ drug store.

<p>Appeal from a decree pronounced by the Circuit Court of Fauquier county, in a suit in chancery, wherein Eleanora Rixey, by her next friend, was the complainant, and the appellants and others were the defendants.</p>

<p>1. Railboads—Adult Walking on Track—Presvmuption—Negligence—Case at Bar.—A railroad track is itself a warning of danger, and a person going upon it is bound to listen and keep a lookout in each direction for approaching trains. An engineer has the right to presume that an adult on the track, in the apparent possession of all his faculties, will get off, and the company is not liable for an injury inflicted on a licensee walking on the track, unless it appears that after the servants of the company, in the exercise of ordinary care, could have discovered that he was not going to get off the track, they could have avoided the injury. In the case at bar a licensee looked and listened before going on the track, but apparently not afterwards, and after walking a very short distance was struck by a train and injured, and there is no evidence tending to show that after the discovery by the railroad company, not of his position but of his peril, it omitted to do anything in its power to avert the accident. Under these circumstances there can be no recovery.</p>

The facts sufficiently appear in the opinion. The following instructions were given to the jury: “Instruction for Plaintiff No. 1. “The court instructs the jury that it was the duty of the defendant company to use all reasonable care to provide and maintain suitable structures, instrumentalities, machinery and appliances, and not to expose its employees to risks beyond those incident to the employment, and not to expose them to risks beyond those risks in contemplation at…

<p>1. Eminent Domain—Railroad Yards—Special Power to Condemn.—The State may, in the exercise of its right of eminent domain, condemn lands already condemned and appropriated to a public use, but a general power of condemnation, such as is found in sections 1095 and 1096 of the Code, which authorizes the crossing of the tracks of a railway company by a highway, or of a highway by the tracks of a railway company, is not sufficient to authorize the condemnation of property purchased and used by a railroad company for depots, stations and railroad yards. While the power to condemn such property is recognized, the right to exercise it must be manifested either by express legislative authority or by necessary implication. General language such as that used in the above mentioned sections is not sufficient for that purpose.</p>

<p>1. Evidence—Admissibility—Specific Objections.—Where specific objections to the reception of evidence are properly overruled, it cannot be thereafter assigned as error that the evidence was objectionable for other reasons. °</p> <p>2. Trial—Argument of Counsel—Remarles of Judge.—Where there is some evidence tending to prove a material point in a cause, it is a legitimate subject of argument, although the court may have excluded other evidence on the same point; and the statement of the trial judge, in the presence of the jury, that he had improperly rejected the excluded evidence, without then admitting it, could not have prejudiced the other party.</p> <p>3. Landlord & Tenant—Ordinary Repairs.—Under the terms of the contract in suit it was the duty of the tenant to make ordinary repairs to the leased premises, that is, such repairs as would have to be made to correct wear and tear.</p> <p>4. Landlord & Tenant—Destruction of Buildings—Abatement of Rent— Common Law Rule—Statute—What Tenant Must Prove—negative Bvidence.—At common law, where there was an express contract to pay rent, no reduction of rent was allowed,on account of the destruction of buildings on the leased premises, but, by statute, in this State, where the buildings are destroyed without fault or negligence on the part of the tenant, it is provided that there shall be a reasonable reduction of the rent, for such time as may elapse until there be again upon the premises buildings of as much value to the tenant for his purposes as what may have been so destroyed. To come within this statute, the burden is on the tenant to show, first,'that the destruction was without his fault or negligence, and, second, that the value of the leased premises for his purposes was diminished. It is immaterial that the tenant has to prove a negative as the existence of these facts is necessary to the relief asked.</p> <p>5. Verdicts — Conflicting Evidence. — Where the evidence on a material point in a case is conflicting, the verdict of the jury will not be disturbed by this court.</p> <p>6. Landlord & Tenant — Destruction of Buildings — “Tenant’s Purposes” — Ahat&ment of Rent — Vm-diets.—The verdict of a jury, refusing to allow a tenant compensation for the loss of the use of buildings in consequence of the destruction of a wharf on the leased premises, will not be disturbed where it appears that the premises were leased to get rid of a rival in business; that they were not in use at the time of the destruction of the wharf, and had not been in use for a year or two prior to that time, and were not used thereafter because the tenant could make more money by not using them. It was for the jury to say whether “for the tenant’s purposes” the leased premises were diminished in value by the destruction of the wharf.</p>

<p>1. Equity — Multifariousness—Criterion.—No general and invariable rule can be laid down as to what constitutes multifariousness, but each ease must be determined by its own circumstances. The criterion by which courts are governed is convenience in the administration of justice. If the bill accomplishes the desired end in a convenient way for all concerned, and the mode adopted is not so injurious to any one as to render it unjust for the suit to be maintained in that form, it will not be deemed to be multifarious.</p> <p>2. Equity — Jurisdiction—Diversion of Funds — County Funds — Suit by Tax Payer on Behalf of Himself and Others — Remedy at Law — Code, Sec. ■886. — Equity has jurisdiction of a suit brought by one or more citizens and tax payers, suing on behalf of themselves and others similarly situated to restrain the illegal diversion of public funds by a Board of Supervisors of a county, and to compel the restitution of such funds which have been illegally diverted and lodged in the hands of persons not entitled thereto, and who had notice of the wrongful diversion, where the boards themselves will not act, or take the necessary steps to compel the restitution. This jurisdiction of equity, which has long existed, has not been taken away by provisions of sec. 836 of the Code, as amended. Courts of equity, having once acquired jurisdiction, never lose it because jurisdiction of the same matter is given to courts of law, unless the statute conferring such jurisdiction uses restrictive or prohibitory words.</p> <p>3. Laches — Ignorance of Rights. — Laches cannot be imputed to tax payers for ignorance of the fact that members of a board of supervisors have been misappropriating the public funds. They have the right to assume the contrary, and although the books of the supervisors are open to inspection, no duty of inspection rests upon the tax payers. Laches will not be imputed to one who is innocently ignorant of his rights.</p> <p>4. County Supervisors — Compensation—Extra Charges. — The only compensation provided by law for supervisors of a county is the per ■ diem and mileage fixed by sec. 848 of the Code (1904). No extra charge can be made “by them for attendance on committees, or for other supposed beneficial services. If the compensation is inadequate they can resign. To take more than is allowed by law is a fraud in law upon the rights of the tax payers of the county, and restitution may be compelled.4</p> <p>5. Limitation oe Actions — Stiit 5y Counties Against Supervisors. — The act of limitations runs against counties and other subdivisions of the State, in suits brought by them to recover debts, in the same manner and to the same extent as against natural persons. Supervisors of counties are constructive or implied trustees, and the statute of limitations applies to actions brought against them by counties to compel a restitution of funds diverted.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News, on a motion to vacate a judgment, in which motion the defendants in error were the plaintiffs, and the plaintiffs in error were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Nansemond county, affirming, on appeal, a judgment of the Mayor of the town of Suffolk, imposing a fine on the plaintiff in error for doing business in said town without a license.</p>

<p>1. Slander — Privileged Communications — Functions of Court and Jury.— Whether or not the occasion when alleged slanderous words were spoken is privileged is a question for the court, but whether — there being evidence tending to prove malice — the occasion was abused and the words were spoken of malice, is a question for the jury, which the court cannot take from them.</p> <p>■2. Slander — Privileged Communications — Violent Language — Actual Malice — Question for Jury. — It the defendant acts in the performance of a duty, legal or social, or in defense of his own interests, the occasion is privileged, but strong or violent language, disproportioned to the occasion, may raise an inference of malice and destroy what would otherwise be a privilege. Whether such an inference is to be drawn from the language used, or the circumstances under which it was uttered, is a question for the jury. The questions of good faith, belief in the truth of the statement, and the existence of actual malice, are for the jury.</p> <p>¿5. Slander — P r i v i l e g e d Communications — Actual Malice — Burden of Proof. — If the communication be privileged, the burden is on the plaintiff to prove actual malice in order to warrant any recovery at all. The malice may be shown either by construction of the words spoken, or by facts and circumstances connected therewith, or in the situation of the parties adequate to authorize the conclusion.</p>

<p>1. Richmond, Fredericksburg & Potomac Railroad — Parallel Hoad— Constitutional Provision. — The purpose of the saving clause in sec. 166 of the Constitution (1902), relating to paralleling the Richmond, Fredericksburg & Potomac Railroad, and of the act passed in pursuance thereof, was merely to protect the State’s interest in that railroad, by guarding against competition in the transportation of passengers between the city of Richmond and the city of Washington, and not to prohibit the granting of a charter to build a railroad which would parallel the line of the first mentioned road for about twenty miles out from the city of Richmond, and then reach out to the other points in the State not provided with railroad facilities.</p> <p>2. Statutes — Construction—Obstructing Enterprise — Exception to Statutory Policy. — Statutes which interfere with legitimate enterprises, or limit the right to construct or operate legitimate industries, or which constitute an exception to a well defined statutory policy, should be construed strictly.</p>

<p>1. Quieting Title — Title of Complainant — Possession.—To maintain a bill to remove a cloud on tbe title to land, tbe complainant must have a clear legal and equitable title to the land, and be in possession. A person out of possession cannot maintain such a. bill whether his title is legal or equitable; for if his title is legal, he has a plain, adequate, and complete remedy at law, by action of ejectment, and if it is equitable, he must acquire the legal title and then bring ejectment.</p> <p>2. Quieting Title — Bill l)y Eqmtable Owner — Adverse Claimant in Possession — Complete Relief. — The equitable owner of land, out of possession, cannot, on a bill filed to obtain the legal title, unite one in possession of the land under a tax deed, with whom he is not in privity and against whom he asserts no equity, and test the validity of his deed under a claim of removing a cloud on the title. The possession of the purchaser under the tax deed is good against all the world except the true owner. The equitable owner can turn-such purchaser out of possession only upon the strength of the legal title which he must first acquire, and when he acquires it, his remedy is at law. Where no equity is alleged against such purchaser, and the claim is purely legal, the suit is not one in which a court of equity, having acquired jurisdiction for one purpose, will go on and administer complete relief.</p>

This case involves the construction of a written lease. The point in dispute is the liability of the lessor for the value of a building placed on the leased premises by the lessee.

<p>1. Street Railways — Driving on Tractos — Duty of Motorman — Negligence. — It is not negligence to drive a vehicle with curtains down on sides and rear upon the tracks of a street railway in a public street. It is the duty of those operating street cars to keep a lookout for vehicles on the tracks in front of them, and they cannot run down a vehicle from behind, under any ordinary circumstances, without negligence or wilful wrong. The duty of one driving on street-car tracks is to get off when he knows of the approach of a car. He is not bound to keep an impossible watch to the rear to avoid an injury which, under any ordinary circumstances, can only result from the culpable negligence or wilful wrong of those operating the car.</p> <p>2. Appeal and Error — Correct Verdict — Instructions.—The propriety of ' the rulings of a trial court in giving and refusing instructions will not be examined by this court, when, upon the whole record, it can see that a different verdict could not have been rightly found.</p>

<p>1. Statutes — Construction—“Term” of Court. — Where the word “term” is used in a statute with reference to courts, it should be construed tb mean a regular term fixed by law, and not a special term fixed by the court, unless it is otherwise expressly provided, or clearly implied from the act.</p> <p>2. Quo Warranto — When Writ Awarded — When Returnable — “Next Term” — Special Term. — While a petition for a writ of quo tvarranlo may be filed, and the writ be awarded in the vacation of a circuit court, the writ, when awarded, is returnable to the next term of the court; and the words “next term,” as used in section 3024 of the Code, mean the next regular term. The provisions of section 3062 of the Code, declaring what cases and controversies may be heard at a special term, do not embrace a writ of quo warranto issued since the last regular term of the court and made returnable to the next term.</p>

<p>1. Wills—Who May Contest.—The grantee of a sole heir at law may file a bill against the devisees under an alleged will of an ancestor to test the validity of the alleged will.</p> <p>2. Evidence—Cross-Examination of Witness—Credibility.—For the purpose of affecting her credibility, an attesting witness to a will may be asked, on cross-examination, if she had not united in a deed with her husband, who was sole heir of the testatrix, conveying the land devised by the will to a third person.</p> <p>3. Evidence—Witness—Impeachment—Foundation.—A witness may, in the discretion of the trial court, be recalled for the purpose of laying the foundation to contradict him, and witnesses may thereafter be introduced for that purpose. Much latitude of discretion is allowed trial courts in such matters, and their action will not be reversed except for palpable error.</p> <p>4. Evidence—Experts-—Discretion of Trial Court.—Whether a witness is qualified to testify as an expert is largely a matter in the discretion of the trial court, and its ruling allowing a witness to testify will not be disturbed unless it clearly appears that he was not qualified.</p> <p>5. Evidence—Bandioriting—Experts—Bankers and Clerks.—Bank officers and clerks of courts of long experience in examining and comparing signatures and writings, may, in the discretion of the trial court, give their opinions as to whether or not the body of a will, the signature thereto, and the name of one attesting witness, were written in the same ink as the name of the other attesting witness, and as to which was the older writing.</p> <p>6. Evidence—'Validity of a Will—Enhanced Value of Property Devised.— Upon the trial of an issue devisavit vel non, where the sole issue is whether or not the controverted writing is the last will and testament of a testator, it is error to receive evidence tending to show the enhanced value of the land in controversy since its purchase from the heir of the testator. Such evidence is irrelevant and calculated to divert the minds of the jurors from the real issue.</p> <p>1. Wills — Attesting Witness — Request of Testator — How and When Made. — It is not necessary that the attesting witnesses to a will should have been expressly requested by the testator to act in that capacity. The request may be implied from the surrounding facts, and circumstances. Neither is it necessary that the request to attest should have been made at any time prior to the act of attestation. It may have been made at the time the will was being subscribed, as well as before, or the testator may acquiesce in and ratify the act of attestation at the time it is done.</p> <p>8. Wills — Attesting Witness — Request of Testator — Substantial Compliance-With Statute. — It is not necessary that at some time prior to signing, each of the attesting witnesses to a will should have known that the other was to be an attesting witness and had been requested to-act in that capacity. In the matter of executing a will, the statutory requirements must be complied with, but substance must not be-sacrificed to form, nor the end of the law to the means used for attaining it.</p>

<p>Appeal from a decree of the Circuit Court of Henry county, in the chancery suit of Williamson v. Payne, in which the appellee, W. H. Cassell, filed a petition.</p>

<p>Appeal from a decree of the Law and Chancery Court of the city of ISTorfolk, in a suit in chancery, wherein the appellant was the complainant and the appellees were the defendants.</p>

<p>1. Wills—Residuary Clause—Residue of a Residue.—Where a testator, by his will, after certain specific bequests, gives to one person all the residue of his estate, both real and personal, of every kind whatsoever, and by a subsequent codicil undertakes to give a part of the residuum to another person, but the latter gift is void, or fails to take effect, the person designated as residuary legatee in the will takes the whole residuum. A residuary legatee not only takes what is not otherwise, effectually disposed of by the will, but also what the will attempts ineffectually to dispose of, and which from any cause lapses or is void, except where the residuary clause itself, or some part of it, fails to become effectual, in which ease it is called a residue of a residue, and passes to the next of kin. This is not a case of a gift of a part of a residuum to one person and part to another, and failure of the latter.</p> <p>2. Wills—Construction—Partial Intestacy—Presumption—Position of Residuary Clause.—The presumption is that every testator intends to dispose of his whole estate, and this is especially true where the will contains a general residuary clause, and very strong and ' special words will be required to rebut this presumption. The position of the residuary clause in the will does not affect the construction to be placed on the will. The intention of the testator is to.be gathered from the will read as a whole, and, when such intention is ascertained, effect will be given to it if lawful.</p>

Ward, in which a rule was awarded against appellant to show cause, .if any he could, why he should not be debarred from participating in the disposition of the purchase money arising from the sale of the lands of the defendant against whom he held several unsatisfied judgments which were alleged to be void.

<p>1. Taxation — Assessment of Mineral Lands — Quantity “Improved, and, Under Development”- — Sow Yahoed. — In ascertaining the quantity of mineral lands “improved and under development,” under the act requiring commissioners of the revenue to make a separate and special assessment of taxes on mineral lands, the entire body of land underlaid with coal, upon which mines have been opened and are being operated, should be assessed as “improved and under development,” and not merely so much of the land as will be deprived of its coal before the next assessment; and, in the absence of any evidence of a fairer or better method of ascertaining the extent of the improvement, it is not error to take as an index the number of coke ovens in operation on the land. At the next assessment, the lands which have been deprived of their coal should be deducted from the quantity previously assessed.</p>

<p>Error to a judgment of the Circuit Court of the city of Newport News, 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. 'Evidence — Admissibility—Admissions of a Manager of a Corporation.— The admission of the manager of a telephone 'company, made while an the performance of his duties, that a wire which caused a personal injury was the wire of his company, is admissible in evidence against the company in an action brought against it to recover damages for the injury.</p> <p>'2. Pleading — Allegation and Proof — Variance.—Where a declaration avers that the plaintiff was in a certain street of a city when injured by an electric wire of the defendant, but makes no averment of the precise position of the wire which inflicted the injury, and the evidence shows that he was injured by a wire hanging down through a tree into a yard adjacent to, but not in, that street, and it plainly appears that, if not in the street, the wire was in such ■close proximity to it as to have inflicted the injury on the plaintiff who was in the street, there is no variance between the allegation and proof.</p> <p>3. Action by Wrongdoer — Trespasser.—A child eight years of age, who, passing along a city street, unlawfully thrusts his hand through or over the railing enclosing an adjacent lot, and takes hold of a live electric wire, believing it to be a string, and is injured, is not such a trespasser as will bar him from recovering damages of the owner of the wire who has negligently permitted it to become charged and to hang down in close proximity to a public street.</p> <p>■4. Instructions — Evidence to Support. — -It is the duty of the trial court, upon request, to give an instruction if the evidence tends to support it.</p> <p>5. Appeal and Error — Remitting Part of Recovery. — If a plaintiff, when put upon terms to remit a part of his recovery or else submit to a new trial, accepts the reduced sum, he cannot be heard to question the action of the trial court in this particular upon a writ of error granted to the defendant.</p>

<p>1. Pleading — Bankruptcy—Preferences—Fraudulent Transfers — Allegation a/nd Proof. — At common law, the giving of a preference by an insolvent debtor was not prohibited. If there was actual fraud in the transaction, however, it was voidable if the creditor, in any way, participated in the fraud. Under the bankrupt law, section 60, the giving of a preference, within four months of bankruptcy, is voidable by the trustee of the bankrupt, if the creditor had reasonable cause to believe that a preference was intended, and, under section 67, the making of a fraudulent conveyance, within four months, is void, except as against a purchaser in good faith and for a present fair consideration. If, therefore, a trustee in bankruptcy sues an alleged preferred creditor in assumpsit, and relies upon a special count under section 60 of the bankruptcy act, and upon thé general counts, and fails to establish fraud on the part of the creditor, or reasonable grounds to believe that a preference was intended, there can be no recovery. Not under section 67 of bankruptcy act, because no cause of action under that section is stated in the declaration; nor under the general counts, because of failure to prove participation in the fraud by the creditor; nor under the special count, for failure to prove that the creditor had reasonable ground to believe that a preference was intended..</p> <p>2. Consideration — Antecedent Debts. — An antecedent debt is, with us, a valuable consideration to support a sale, conveyance, or transfer of property in satisfaction or as a security for it.</p> <p>3. Bankruptcy — Preferences—Reasonable Belief of Insolvency. — To avoid a preference made by an insolvent to a creditor within four months before bankruptcy, the creditor must have had more than a mere suspicion that his debtor was insolvent. He must have had knowledge of some fact or facts calculated to produce a belief of insolvency in the mind of an ordinarily intelligent man.</p> <p>4. Appeal and Error — Demurrer to Evidence — Evidence to Support— Verdict. — A plaintiff in error stands in this court as on a demurrer to the evidence, and if there was any evidence to* support a verdict against him in the trial court, it will not he set aside.</p> <p>5. Instructions — Partial View .of Case. — Art instruction which takes only a partial view of the case, and omits material facts essential to a proper decision of the case, should be refused.</p>

<p>Appeal from a decree of the Circuit Court of Prince William county, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

The amount of the verdict was $9,000. The chief injury to the plaintiff was to his spine, which caused great physical pain, as well as mental depression and despondency, and the attending physician testified “that I think this injury is of such a nature that it is highly probable he will never recover from it.” The other evidence sufficiently appears in the opinion of the court. [*The map on opposite page shows the localities spoken of in the opinion.]

<p>Appeal from State Corporation Commission.</p>

<p>1. Pleading — Refusal to Require Bill of Particulars — Bill of Eweeption.— If, in an action at law, the orders of court show that the plaintiff moved the court to require the defendant to file a statement of its grounds of defense, as provided by section 3249 of the Code, that the court overruled the motion, and that the plaintiff excepted, this is sufficient, without any bill of exception; as it is all that a bill of exception would have shown.</p> <p>2. Pleading — Bill of Particulars — Discretion of Trial Court. — There is no inflexible rule as to the classes of cases in which a statement of the particulars of the plaintiff’s claim, or of the defendant’s grounds of defense, will be required under section 3249 of the Code, but it rests in the sound) discretion of the trial court, subject to review if its action is plainly erroneous.</p> <p>3. Railroads — Ron-Assignable Duties — Hake up of Trains — Unmfhorized Change by Conductor. — The duty to properly “make up” a train for a trip is one of the non-assignable duties of the master, but, if on the trip, the conductor, without the knowledge or consent of the master, changes the “make up,” and, in consequence of that change, while proceeding on his journey, an injury is inflicted on a brakeman of another train travelling on the same track, the master (as the law stood until recent changes were made), is not liable, as the negligence complained of is that of a fellow-servant.</p> <p>4. Master & Servant — Violation of Rules — Knowledge of Master. — An employee will not be absolved from the imputation of contributory negligence for violating a rule of the master, made for the protection of himself and others, because that rule is habitually disregarded, unless it appears (and the burden is on the plaintiff to show this) that it was done with the knowledge of the master, or he had so neglected to enforce it as to amount to its suspension.</p> <p>5. Railroads' — Telegraph Stations — Statutory Requirements — When Rot Applicable. — -The provisions of the statute (Acts 1891-’2, p. 969), requiring railroad companies to have telegraph stations along their lines, not more than ten miles apart, has no application to a collision between two trains going in the same direction between stations less than ten miles apart, as a strict compliance with the provisions of the statute with reference to telegraphing the time of arrival and departure of trains would not have avoided the accident.</p> <p>6. Railroads — Rear-End Collisions — Notice of Train Following — Weak Engine. — In an action to recover damages for an injury to a brakeman, occasioned by a rear-end collision of railroad trains, it is not. negligence on the part of a master to fail to notify the crew of a train that another train is to follow shortly thereafter, and to put the crew of the forward train in charge of an engine that fails to make steam and breaks down on the trip, but is otherwise safe, where the rules of the master make ample provision for protection of the crew in such an emergency.</p> <p>7. Railroads — Case at Bar — Proximate Cause — Violation of Rules — Fellow-Servant. — The evidence in the case at bar shows that the proximate cause of the death of the plaintiff’s intestate was his failure to comply with the rules of the company which required him, when his train was delayed more than three minutes at a regular stopping place, or when it was stopped at an unusual place, or fails to make its schedule time, to go back and put down danger signals to warn any trains moving in the same direction; but if he did comply with th©'rules, then the proximate cause of the accident, resulting in his death, was the negligence of the conductor of the train which collided with his train in changing the “make up” of his train, without the knowledge or consent of the master; and, as the law then stood, such conductor was his fellow-servant, and there can be no recovery.</p>

The following statement of the facts in this case is taken from the brief of counsel for the appellees: Prior to 1876, one Thomas Rogers died, leaving five heirs, viz: Louisa Spear, wife of William Spear; Elizabeth, the wife of Jonathan Richmond; Raney, the wife of John Jones; Evelyn, the wife of John Venable, and James M. Rogers. At the time of his death he claimed to own a large boundary of land lying in Wise county, Virginia.

<p>1. Railroads—Fires—Improved Appliances—Competent Servants—Careful Operation.—Where it is established that a fire was set out by the engines of a railroad company, the company is presumptively chargeable with negligence, and must assume the burden of proving that it had availed itself of the best mechanical contrivances and inventions in known practical use, to prevent the burning of property by the escape of fire, and had exercised and observed every reasonable precaution in selecting competent employees, and in operating its trains.</p> <p>2. Railroads—Fires—Dry Seasons—Increased, Care.—It is the duty of a railroad company to exercise every reasonable precaution to avoid injury to others by scattering fire along its right of way, and when the danger of doing such injury is increased by the nearness of wooden buildings to its track, the accumulation of combustible material on or near its land, the dryness of the season, and the direction and velocity of the wind, greater caution is required than when such conditions do not prevail.</p> <p>3. Railroads—Fires-—Case at Bar—Unusual Speed—Dry Season—Demurrer to Evidence.—Where fire is set to a frame building near a railroad by sparks emitted from engines, and it appears that an ordinary freight train propelled by two engines ran past the building on an up grade, at twice the schedule time, emitting an unusual quantity of sparks and cinders; that the season was very dry, and a strong wind was blowing directly towards the building from the passing engines, and it does not appear that the speed adopted was a necessity to the railway service, or a duty owing by the railroad company to its patrons or the public, it is for the jury to say whether, under all the circumstances, there was negligence on the part of the company in the operation of its engines, and as a jury might so find, it is the duty of the court, on a demurrer to the evidence hy the railroad company, to decide accordingly.</p>

<p>1. Superintendent oe Poor — Appointment—Vacancies.—Under Acts 1902-’3-’4, p. 742, authorizing the county judge to appoint a Superintendent of the Poor upon the recommendation of the Board of Supervisors, and providing that he may reject their recommendation, and, unless the board recommends another suitable person within thirty days, the judge shall fill the office by his own appointment, the judge has no power, immediately upon rejecting an application and before the expiration of thirty days, to make an appointment of his own. Courts have no power to appoint to office except as provided by statute, and this must be strictly pursued.</p> <p>2. Superintendent oe Poor — Appointment—Vacancies—Bolding Over.— The office of Superintendent of the Poor of each county was extended by the Constitution until January 1, 1904, and until the successor of the incumbent was appointed and had qualified, and hence there could be no vacancy in that office by failure to appoint a successor of the incumbent at the expiration of his fixed term, as the time elapsing after January 1, 1904, is as much a part of the term of the incumbent as that elapsing before that date. The vacancy referred to in section 106 of the Act of December 18, 1904, (Acts 1902-’3-’4, p. 742), is a vacancy occurring during the term of an office, by death, resignation, removal and the like, and not a failure to appoint a successor to an incumbent who is to hold until his successor is appointed and has qualified. In the latter case there can be no vacancy. Johnson v. Mann, 77 Ya. 265, disapproved.</p> <p>3. Superintendent oe Poor — Bolding Over — Vacancies—Appointment try Circuit Court. — Under Act of March 15, 1904, (Code, 1904, section 95), Circuit Courts have no power to appoint Superintendents of the Poor until 1907, except to fill vacancies, and there is no vacancy in the office of a Superintendent still in office who was appointed prior to January 1, 1904, and whose term was to continue until that date and thereafter until his successor was appointed and had qualified.</p>

<p>1. Obstructing City Street—Ordinance—Temporary Obstruction.—A city ordinance which imposes a fine upon any person who shall place any portico, porch, door, window, step, fence, or other projection which shall project into any street of the city, or who shall continue such an obstruction after notice to remove it, is aimed at permanent obstructions, and does not apply to temporarily putting a skid across a sidewalk to unload goods from a wagon in the street into a merchant’s storeroom.</p> <p>2. Penal Statutes—Eoio Construed—LikeWords—Specific Emwneration— General Woi'ds.—Penal statutes and ordinances are to be construed strictly, and a man is not to be punished unless he is plainly within their language. There are no constructive offenses. In arriving at a proper construction of a statute, or ordinance, the meaning of a word or phrase may be ascertained by reference to other words and phrases with which it is associated, and a specific enumeration of words or objects, as a rule, controls general words which follow, and limit them in their operation to others of like kind.</p>

<p>1. Pleading — Declaration—Demurrei•—Grounds of Demurrer. — A demurrer to a declaration as a whole raises the question whether the declaration sets out sufficient matter to sustain the action, and if there are several counts in the declaration, and any one of them is good, the demurrer should be overruled; and the fact that the assignment of causes of demurrer applies to the bad counts as well as to the good will not affect the result as it does not enlarge the scope of the demurrer.</p> <p>2. Appeal and Ebbor — Demurrer—Grounds Assigned in Trial Court.— No causes of demurrer not assigned in the statement of causes of demurrer in the trial court can be assigned in this court.</p> <p>3. Pleading — Declaration—Demurrer.—A declaration is sufficient if it informs the defendant of the nature of the demand made upon him, and states such facts as will enable the court to say that if the facts are proved as alleged they establish a good cause of action.</p> <p>4. Master and Servant — Defective Machinery — Promdse to Repair.— Where a servant is injured'by defective machinery which he is induced to operate by the master’s orders, coupled with a promise to repair the defect, the master is liable, unless the danger is so manifest that no prudent person would incur the risk; and, generally, whether the continuance in the service and the use of the defective machinery amounts to such negligence as to¡ bar recovery, ought to be submitted to the jury under proper instructions from the court.</p> <p>5. Pleading — Declaration—Allegation of Duty — Demurrei'.—An allegation of duty is only a conclusion of law, and where the facts alleged show the duty, and are stated with sufficient clearness to prevent surprise, and enable the court to proceed upon the merits of the cause, the declaration is sufficient.</p> <p>6. Pleading — Allegation, “Promise to Repair” — Breach, “Refusal” — Demurrer. — Where a declaration alleges that a master promised to repair defects in machinery, and failed and refused to do so, the word “refused” will he held to mean “did not comply with.”</p> <p>7. Evidence — Defective Machinei-y — Subsequent Repairs. — In order to re-hut evidence offered by defendant, the plaintiff may prove the condition of defective machinery which caused the injury complained of shortly after the injury, and also subsequent repairs.</p> <p>8. Master and Servant — Use of Defective Machinery — Care Required.— The care required in the use of machinery known, to. be defective, and which the master has promised to repair, is such reasonable care and caution as a prudent man would exercise under the same circumstances.</p> <p>9. Instructions — Evidence to Support. — It is not error to refuse an instruction when there is no evidence to justify it.</p> <p>10. Instructions — Harmless Omission. — Where the allegation of a declaration and the uncontradicted testimony of the plaintiff is that the plaintiff relied upon the defendant’s promise to repair defective machinery whereby the injury complained of was inflicted, the fact that an instruction omits to state that the plaintiff must have relied on such promise is harmless error.</p> <p>11. Master and Servant — Defective Machinery — Knowledge of Master— Direction to Use — Assumption of Rislc. — The presumption is that a master’s knowledge of machinery is superior to that of the servant, and if the servant complains of defects which the master refuses to remedy, and directs the servant to continue its use, the servant has a right to presume that the master considers the machinery in a reasonably safe condition, and may continue its use without necessarily assuming the risk, unless the defect is so palpable, immediate, and constant that only a reckless man would use it.</p> <p>12. Master and Servant — Safe Machinery — Repairs—Personal Duty of Master — Continuing Duty. — It is the duty of a master to use ordinary care to furnish reasonably safe machinery for the use of his servant, and this duty is not only a personal, non-assignable duty, but a continuing one. He does not exempt himself by simply making repairs, but he is to continue to use ordinary care to see that his machinery is reasonably safe.</p>

<p>1. Damages — Contract to Manufacture and Deliver — Breach l>y Vendee— “Fixed Charges." — The measure of damages for an unqualified annulment, without reasonable cause, by the vendee in an executory contract for the sale of an article not manufactured at the time of breach is the difference between the contract price and the costs of manufacturing and delivering the article, but in estimating such cost, a due proportion of “fixed charges,” that is, the general running expenses which attach to every business, are to be taken into consideration.</p> <p>2. Manttfactuee op Goods — Costs—Fixed Charges — Hoio Ascertained— Evidence. — A defendant who has violated his contract with the plaintiff, without cause, will not be permitted, under the guise of determining “fixed charges,” to unduly pry into the private business methods of the plaintiff, and expose them to the scrutiny of a vigilant competitor, who is alleged to be back of the breach, when such charges are susceptible of approximate ascertainment without unnecessary exposure of the plaintiff’s trade secrets. Such charges may be shown by the opinion of practical men having experience in such business.</p> <p>9. Evidence — Cross-Examination of Witness — Discretion.—The latitude permissible in the cross-examination of a witness is left largely to the sound discretion of the trial court whose ruling will not be reversed by an appellate court unless that discretion has been plainly abused.</p> <p>4. Evidence — Impeachment of Witness — Foundation—Case at Bar. — A witness having stated that the cost of steel to his company, under continuing contracts, was three cents per pound, was asked, on cross-examination, with whom his company had said contracts, which question was objected to, and the witness declined to answer, “for the protection of those from whom he bought.” The cross-examiner, on enquiry from the court, stating that he would not undertake “to show that the witness did not have any such, contracts,” the trial court was right in sustaining the objection to-the question, as its only legitimate object was to lay the foundation for impeaching the witness.</p> <p>5. Manufacture of Goods — Profits—Sub-Contracts.—The vendor of material to be used in the manufacture of an article which one has-contracted to make for another is not a sub-contractor within the-meaning of the rule excluding “sub-contracts” in calculating profits, on a contract.</p> <p>6. Contracts — Puffing—Dealer’s Talk. — Statements by a manufacturer-that his “bid for the work is as low as the work can be done for,, and that there is no profit in it at that price,” are mere expressions, of opinion, “dealer’s talk,” and not such, as if proved and are-untrue, will invalidate the contract.</p> <p>7. Trial — Rejecting Evidence — When Harmless.' — When evidence is re- - jected under specifications of grounds of defense, but is received1 under the general issue, the defendant is not prejudiced thereby.</p> <p>8. Pleading — Foreign Corporations — Failure to Comply With Code, Section 1104 — How Pleaded. — In an action for breach of contract, if the-defendant relies upon the fact that the plaintiff is a foreign corporation and has not complied with the provisions of section 1104 of the Code, relating to such companies, the defense (plea or statement) is fatally defective if it does not specify the particular in which it has failed to comply with the statute.</p> <p>9. New Trial — Failure to Receive Evidence — When Harmless. — A new trial will not be granted for refusal to permit certain evidence to-be introduced when substantially the same evidence was received, without objection, at a later stage of the trial.</p> <p>10. Appeal & Error — Excessive Yei'diet — Putting Upon Terms. — Where-the only error disclosed by the record in this court is that the verdict of the jury is excessive, but the amount of the excess is-apparent, this court will reverse the judgment of the trial court: and remand the cause, with direction to the trial court to put the successful party upon terms to release the excess, or else submit to a new trial; and, if release is made, to overrule the motion for a-, new trial and render judgment for the correct amount, with interest and costs.</p>

<p>1. Evidence — Case at Bar — Written Contract — Reference to Verbal Understanding.- — Parties to a contract for the sale of lumber agreed in writing “that the lumber at the mill is to be measured and shipped, we paying one-half of the costs of inspection and you paying the other half, as per our suggestions and verbal understanding; in other words the lumber is to be measured at the mill.” After-wards, the vendor’s duty under the contract to deliver the lumber was assumed by a defendant who failed to deliver the lumber in consequence of a disagreement between the parties as to the manner in which it was to be delivered. Action was brought to recover damages for the breach, and'the plaintiff offered to show a verbal agreement between the parties to the original contract as to the manner in which the lumber was to be delivered:</p> <p>Held: The language “in other words, the lumber is to be measured at the mill” shows what the verbal understanding between the parties was, and the evidence offered is inadmissible.</p> <p>2. Contract to Do Collateral Thins and to Indemnify — Breach— Damages. — An agreement to perform and fulfil a contract made by another, and to deliver a given quantity of lumber to a third person which the other had contracted to deliver, and to indemnify and save harmless the other from all loss or damages which he may sustain or incur by reason of a failure to deliver the lumber as stipulated, is not a contract of mere indemnity, but is, in addition, a stipulation to do what the other had contracted to do, and, upon breach, the indemnitee has a right of action at once, before he has paid anything, to recover as damages the difference between the contract price and the market price of the lumber at the time of delivery. If, after action brought by the indemnitee, the amount has been in good faith agreed upon between him and the other party to the contract, it may be given in evidence in the action against the indemnitor, and, though not binding on him, the indemnitee may recover such sum as he shows he is entitled to by reason of defendant’s .breach, not exceeding the amount fixed by such agreement.</p> <p>3. Custom — Usage of Trade — Pleading and Proof. — Generally, a party who relies on a custom or usage, must set it up in his pleadings, and establish it by evidence. It is generally regarded as a fact, to be averred and proved as any other fact. When pleaded, a custom or usage of trade in delivering lumber may be given in evidence, but whether or not it is established is a question for the jury under proper instructions from the court.</p>

<p>1. Telegraph Companies — Interstate Messages — Constitutional Law.— The provision of- section 1291 of the Code, imposing a penalty on telegraph companies for failure to transmit a message faithfully and impartially is not a violation of the commerce clause of the-Constitution of the United States. While a telegraph line is an instrument of commerce, and telegraph companies are subject to-the regulating power of Congress in respect to foreign and interstate business, and the authority of a State does not extend to delivery of messages in other States, a State may, in the exercise of its police power, in the absence of legislation by Congress, impose-a penalty for a failure to transmit a message which is addressed to one in another State.</p> <p>2. Appeal & Error — Constitutional Law — Jurisdiction of Court of Appeals. — As jurisdiction in this case depends solely on the constitutional question involved, and that is decided adversely to the plaintiff in error, under express constitutional mandate this court decides no other question involved.</p>

<p>Error to a judgment of the Circuit Court of Norfolk county, on a proceeding by habeas corpus, wherein the plaintiff in error was the petitioner, and the defendant in error was the respondent.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, in a proceeding by motion for a judgment, wherein the. defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, reversing a judgment of the Police Justice of said city, imposing a fine upon the defendant in error.</p>

<p>1. Railroads — Negligence—Injured Person Found Near TraoTt. — The mere fact that a person is found near a railroad track in an injured condition's not sufficient to establish actionable negligence on the part of the railroad company.</p> <p>2. Railroads — Signal Tower — Expulsion of Intruder — Negligence.—Expulsion of an intruder from a railroad signal tower at night is not such negligence as will render the railroad company liable for his death occasioned by being struck by one of its trains at a later hour, while walking on the company’s right of way near to but not on its tracks, where it appears that, at the time of the expulsion, though he was drinking, he was not physically or mentally helpless, the place was not specially dangerous, and the servants of the companjr had no reason to suppose he was unable to care for himself. Nor is it Negligence in such a case to fail to notify trainmen to look out for him, in view of his condition. In the case at bar, notice to the trainmen and increased vigilance on their part would have been unavailing, as deceased was at no time on the track, but was in the centre of the walkway between the tracks.</p> <p>3. Railroads — Telegraph Opei-ator — Duty to Passengers and Employees— Trespassers. — A telegraph operator, assisting in the movement of trains, owes a higher duty to passengers and employees on the trains than to mere trespassers, and he cannot abandon his post in order to conduct such trespassers safely off the premises of the railroad company when to do so would jeopardize such passengers and employees.</p>

<p>Error to a judgment of tlie Circuit Court of Norfolk 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>

The opinion states the facts. The ruling of the trial court on the instruction asked appears below.

<p>1. Criminal Law—Buena Vista—Jurisdiction of Mayor.-—The criminal jurisdiction of the Mayor of the city of Buena Vista is the same as that of justices of the peace of that city, and neither extended, at the time of the supposed offence alleged in this case, beyond the city limits. Sections 1032 and 1033 of -the Code (the latter as amended by Acts 1893-’4, p. 664) applied, at the date of the warrant of arrest in this case, to towns only, and not to cities.</p> <p>2. City Charter—Existence as a City—Collateral Attack.—When the Legislature of the State has granted a city charter to a community, it must be assumed that its discretion in that respect has been properly exercised, and its status as such is not amenable to collateral attack.</p>

<p>Error to a judgment of the Oircuit Court of Alleghany •county, rendered on a verdict, finding the plaintiff in error .guilty of murder of the first degree.</p>

<p>1. Contempt — Adjournment of Court. — In a prosecution for contempt in publishing an insulting libel concerning the judge of a court, the fact that the defendant thought that the court had adjourned at the time of the publication, or that the judge had in fact directed the sheriff to make the proclamation of adjournment, constitute no defense.</p> <p>2. Contempt — Constitutional Courts — Summary Punishment — Jury Trials. — There is an inherent power of self-defense and self-preservation in the courts of this State created by the Constitution. This power may be regulated by the Legislature, but cannot be destroyed, or so far diminished as to be rendered ineffectual. It is a power necessarily resident in and to be exercised by the court itself, and the Legislature cannot deprive such courts of the power to summarily punish for contempt by providing for a jury trial in such ease.</p> <p>3. Contempt — Direct and Indirect — Difference in Procedure. — The substantial difference between a direct and constructive contempt is one of procedure. Where the contempt- is in the presence of the court, it may proceed on its own knowledge of the facts and punish the offender without further proof, and without issue or trial in any form, while in contempt not in the presence of the court (called indirect contempt), the offender must be brought before the court by a rule or other sufficient process; but the power of the court to punish -is the same in both cases.</p> <p>4. Contempt — Scandalizing Court or Judge — Ended Cases. — Courts have the power to punish, as for a contempt, libelous publications upon the proceedings of the court, or the judge thereof in .his official capacity, and such power exists as well after a case has been finally disposed of as where it is still pending.</p> <p>5. Contempt — Summary Punishment — Newspaper Articles — Liberty of the Press. — The summary punishment, as for a contempt, of the author of a libelous newspaper article is not an invasion of the liberty of the press, but is to be exercised with the utmost caution and reserve. While any citizen may comment upon the decisions and proceedings of a court, and discuss their correctness, and the fitness or unfitness of the judges for their stations, and the fidelity with which they perform their duties, he has no right to attempt, by libellous publications, to degrade the tribunal, for such publications are an abusé of the liberty of the press, for which he is responsible.</p>

<p>1. Rape—Insufficient Evidence.—The conviction of a man seventy years of age of the crime of rape on the uncorroborated evidence of the woman, who made no complaint until after the birth of a child, and whose evidence otherwise bears the impress of falsehood on its face, cannot be sustained, although the plaintiff in error stands in this court as a demurrant to the evidence. The court cannot be expected to believe the incredible.</p>

The information in this case was joint against the L. B. Price Mercantile Company, C. C. Ostrander and W. P. Crall. It contained six counts, each a separate charge of a sale without license to a different individual. It made no reference to the relation that either party bore to the other. The plaintiffs in error were proceeded against as individuals, and each count charged that all three defendants did unlawfully peddle and sell without a license.

<p>Error to a judgment of the Circuit Court of Chesterfield county, on an information for peddling without license.</p>

<p>Error to a judgment of the Corporation Court of the city of’ Fredericksburg, affirming a judgment of the mayor of said city,. imposing a fine on the plaintiff in error for doing business as a peddler without license.</p>

<p>1. Criminal Law — Competency of Grand Juror — Plea in Abatement— Replication — Verdict.—Upon an issue of fact made on a plea in abatement to an indictment, to determine whether or not a grand juror was, at the time of finding an indicment, a resident of the city in which the indictment was found, the verdict of the jury will be considered in this court as upon a demurrer to evidence, and will not be disturbed if there was evidence in the case sufficient to sustain it. Where no right of the prisoner has been prejudiced, the court will not stop to enquire whether a replication to the plea should have concluded to the country instead of with a verification.</p> <p>2. Criminal Law — Jurors—Competency—Opinions.—The trend of recent decisions is in the direction of limiting rather than extending the disqualification of jurors by reason of mere opinion, hence the courts enquire into the character of that opinion. If it is a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground it was formed, the juror is incompetent, but if the opinion is merely hypothetical, and the court is satisfied from an examination of the juror on his voir dire, or otherwise, that he is not biased or prejudiced, and that he can give the prisoner a fair and impartial trial according to the law and the evidence, he should be accepted. No fixed and invariable rule can be laid down whereby to test the competency of jurors, but each case should be determined by its own facts and circumstances, and great weight should be attached by an appellate court to the opinion of the trial judge.</p> <p>3. Evidence- — Admissibility—Weight..—It is for the court to determine what evidence should be admitted, and' for the jury to determine the credibility of witnesses and the weight to be given to their testimony.</p> <p>4. Evidence — Statements by Third Persons — Efforts of Prisoner to Induce Denial — Accusation by Third Person — Demal.—Where evidence has been introduced of a statement made by the prisoner’s son, which was damaging to prisoner’s case, a subsequent conversation between the prisoner and his son, while the former was in jail charged with the offense to which the statement related, may be given in evidence for the purpose of showing' that the prisoner endeavored to induce his son to deny the statement attributed to him; and the fact that the prisoner, in the conversation referred to, denied the conduct attributed to him in the son’s statement does not render the son’s allegations in the conversation an accusation of a third person denied by the prisoner.</p> <p>5. Evidence — Opinion of Expert — Matter of Common Knowledge. — That a medical expert was permitted to express an opinion upon a matter of common knowledge is harmless error.</p> <p>6. Evidence — Code, Sec. 3351 — Applicable to Criminal Cases — Adverse Witness — Prior Inconsistent Statements. — Section 3351 of the Code, as amended by Acts, 1899-1900, p. 124, allowing a party whose witness has unexpectedly proved adverse, with leave of the court, to prove his prior inconsistent statements, applies to criminal as well as civil cases. Its language is broad and general, and there is no suggestion on its face to limit its operation to civil cases. While it is true that the statute is found in the Code under the title of “Proceedings in Civil Cases,” yet, in the same chapter with that section, there are other sections applicable alike, by their terms, to criminal and civil cases, and the mere collocation of that section cannot be permitted to over-ride every other consideration, and require the courts to confine it to civil eases, when it is a remedy for an evil as great in criminal cases as in civil, and the consequences of which may be even more serious.</p> <p>7. Evidence — Impeaching Onefs Own Witness — Prior Inconsistent Statements — Details of Statement. — In proving the prior inconsistent statements of a witness who has unexpectedly proven adverse to the party calling, the party is not restricted by the provisions of Sec. 3351 of the Code (1904) to proof of the fact that such statements were made, but may give in evidence the details of such statements.</p> <p>8. Criminal Law — Reasonable Doubt. — It is difficult, if not impossible, to define “reasonable doubt,” but the instructions in this case fully protected the prisoner’s rights in this regard.</p> <p>9. Instructions — Fully Instructed. — It is not error to refuse* an instruction when the jury has already been fully and correctly instructed on the point upon which the instruetion is asked.</p> <p>10. Instructions — “ninety and nine Guilty Mm.” — The expression “it is better that ninety and nine guilty persons should escape than that one innocent person should be punished” is unobjectionable as a rhetorical phrase, but is of no value as a guide to a jury in reaching a conclusion, and it is not error to refuse to so instruct a jury which has already been fully and correctly instructed on the “presumption of innocence” and “reasonable doubt.”</p> <p>11. Criminal Law — Assisting Prosecution — Criticism—Reply.—The right of a public prosecutor to have associated with him an attorney to assist in the prosecution is established law in this State, and is not a proper subject of animadversion. The fact that such an assistant, in response to adverse criticism by counsel for a prisoner, replied that he had “refused a large fee in this case to prosecute,” is not good cause of exception or objection on the part of the prisoner.</p> <p>12. Criminal Law — Jwors—Reading newspapers — Waiving Objection.— While it is the safer and better practice to exclude newspapers from a jury sitting in a felony case, yet, when the court, in the presence of a prisoner and his counsel, and without objection on their part, at the instance of the jury, permits them to have access to newspapers under instructions that they shall scrupulously avoid reading any parts of said papers that have reference to the trial, the prisoner cannot after verdict make objection on that account. He has no right to sit mute, prepared to abide by the results if favorable, and to make objection if adverse.</p> <p>13. Criminal Law — Writ of Error not Matter of Right — Refusah—Precedent. — A writ of error to the judgment of a trial court is not one of the rights of one convicted of crime; neither is it a part of “due process of law,” nor one of the inalienable rights guaranteed by the Constitution. It is a right regulated entirely by statute, and, under the statute of this State, it is as much the duty of this court to deny the writ when the decision complained of is plainly right, as it is to grant it when any doubt exists as to the propriety of the decision. While the accused is entitled to a fair and impartial trial, yet when he has had this, and has been rightly condemned, the safety of society demands that the administration of justice shall be swift and certain. Nor, where the judgment of the trial court is plainly right, is the refusal of a writ of error to one convicted of murder of the first degree an innovation, but is in strict accord with the practice in this State from the earliest date to the present time.</p>

<p>1. Criminal Law—Presumption of Innocence.—A prisoner is presumed io be innocent until his guilt has been established beyond a reasonable doubt, and he is not to be prejudiced by the inability of the Commonwealth to point out any other criminal agent, nor is he called upon to vindicate his innocence by naming the guilty man.</p> <p>2. Criminal Law—Corpus Delicti—Guilt of Accused—Suspicion of Guilt— Case at Bar.—To convict one of crime it must be conclusively established that a crime has been committed, and that the accused is the guilty party. Evidence simply that a fire was of incendiary origin, that the accused had an opportunity to commit the crime, and that he cherished and had expressed ill-feelings towards the owner of the property destroyed, does not warrant a conviction. In the case at bar, if it be admitted that the fire was of incendiary origin, the evidence is wholly insufficient to establish the guilt of the accused.</p>

<p>Petition for writ of error to judgment of the Corporation Court of the city of Roanoke.</p>