Volume 104 — Virginia Reports

<p>Error to a judgment of the Circuit Court of the city of Richmond in an action of trespass on the case in libel.' Judgment for the. defendant. Plaintiff assigns error.</p> <p>The opinion states the case..</p>

Louisa Wright and others, the beneficiaries in the trust. Louisa Wright and others appeal from decree construing deed of settlement. The opinion states the case.

<p>Appeal from a decree of the Circuit Court of Rappahannock county. Decree in favor of complainants. Defendants appeal.</p> <p>The opinion states the case.</p>

<p>1. Banks — Capital Stock. — “Capital” and “Capital Stock” of a bank, while sometimes used interchangeably, are not one and the same thing. “Capital” includes the entire assets of the bank whether represented by money paid in for stock, surplus, undivided profits or other property of the bank while “capital stock” represents only the total amount derived from the issuance of the shares of stock.</p> <p>• 2. Banks — Taxation—Capital Stock. — All legislative acts are presumed to be lawful, and are to be so construed unless the contrary plainly appears; and as the capital of banks is exempt from taxation, a city ordinance imposing a tax on the “capital stock” of banks will be construed to refer to the totality of shares of the individual stockholders which the city has the right to tax.</p> <p>3. Banks — Taxation—Shares of Stock — Municipal Ordinances. — A city ordinance imposing a tax on “all personal property of every description, including the capital stock of banks,” is broad enough to cover a tax levied on shares of stock of a bank in the hands of a stockholder even if the use of the words “capital stock” showed an intention to tax the capital of banks. The added words “including the capital stock of banks” give no further meaning or force to the comprehensive words which precede them.</p> <p>4. Banks — Taxation by Cities — Shares of Stock — Valuation.— Bank stock being assessed for taxation by the State, and cities being compelled by statute to follow that assessment, a city ordinance imposing a tax of so much on the assessed value of the “capital stock” of banks located in the city is a sufficient compliance with the statute requiring bank stock to be assessed at its market value. The term “assessed value” has reference to the assessed value for State taxation, which the city has to follow. When the State has assessed the value of bank stock for the purpose of taxation and no objection is made to that assessment, none can be made to a city ordinance which adopts it.</p>

<p>Error to a judgment of tbe Circuit Court of Lunenburg county in a proceeding to re-establisb a mill and dam. Judgment for defendants. Petitioner assigns error.</p> <p>Tbe opinion states tbe case.</p>

<p>1. RECEIV sue- Debts Oreated by-L'iability of the Fund.-Generally the appointment of a receiver does not affect vested rights or interests of third persons in property which is the subject of the receivership, or disarrange the order of priority of existing liens, but where the receiver is appointed at the instance and for the benefit of lien creditors, and is charged with the duty of operating the property for their advantage, all proper charges, expenses, and liabilities incurred incident to the receivership are held to be a first charge not only upon the current earnings, but also on the corpus of the estate.</p> <p>2. REcExv~R's LIABIuvrss-A$certainvnent-Order of .Thferenee.-In the absence of other proper evidence of the liabilities of the receiver chargeable on a fund under the c )fltrOl of the court, the cause should be referred to a commissioner to enquire into and take evidence touching the same; and, when allowed, the decree for their payment should specify the amount of each claim, and fix the date from which interest is to be computed.</p>

<p>Error to a judgment of tlie Corporation Court of tile city of Newport News in an action of Trespass on the Case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Circuit Court of Elizabeth City county in a suit in chancery. Decree for defendants. Complainant appeals.</p> <p>The opinion states the case.</p>

<p>1. RAILROADS-Public Crossing-Personal Injury-Failure to Give Cross ing Signal-Contributory Negligence-Case at Bar.-One wo takes no precautions for his own safety, but, without looking or listening for approaching trains, sits far back in a covered wagon and drives his team upon a railroad at a public crossing and is injured by a collision with a passing engine, is not entitled to recover damages of the railroad company for such injury, even though the engineer failed to sound the crossing signal. His own contributory negligence is the proximate cause of his injury, and this bars his recovery, unless after his danger was discovered, or by the exercise of ordinary care by those in charge of the engine might have been discovered, they failed to exercise ordinary care to avoid the collision.</p> <p>2. RAILRoj,J~s-Lookont-Fireman "hooking" jire.-The fact that a fire-onan, in the regulai discharge of his duties, is engaged in "hooking" his fire while the engine is in motion on one of its trips is not an act of negligence.</p> <p>3. flsinROADs-Publio Crossing-Look and Listen-Contributory Negligence.-It is the duty of one about to cross a railroad track at a public crossing to listen and look in both directions from which a train may approach. If he. fails to do so and attempts to cross in front of a rapidly mov~ing train and is injured there can, ordinarily, be no recovery. Trainmen have the right to assume that a traveller will take these necessary precautions, and until it is, or in the exercise of ordinary care ought to be, discovered that he is in a place of danger, and is not conscious of his peril, it is not negligence to fail to stop the train.</p>

city of Newport News in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

In one of these the appellees, Henry G. Davis and Thomas B. Davis, were the complainants. The decree was in their favor. This appeal was taken by the personal representatives of John B. Davis and Joseph B. Davis, whose estates were affectéd, and by ■two of the creditors of Joseph B. Davis. The opinion states the case.

<p>1. Constitutional Law' — Municipal Indebtedness — limit Prescribed by Constitution, Sec. 127 — Code, Sec. 1039. — The imitations of section 127 of the Constitution (1902) apply to the charters of all cities and towns which do not in terms authorize a percentage of indebtedness larger than eighteen per cent, of the assessed valuation of real estate in such city or town. The act of March 20, 1875, carried into the Code of 1887 as Sec. 1039 limiting the right of a city or town to create an indebtedness beyond seventeen per cent, of its real and fifteen per cent, of its personal property, was not a grant of power to cities and towns to create indebtedness to that amount, but was a limitation on théir powers where none previously existed, and hence section 127 of the Constitution applies to such cities and towns and limits their right to issue bonds or other interest bearing obligations to an amount not exceeding eighteen, per cent, of the assessed valuation of their real estate. Upon the adoption of the Constitution this act perished by reason of its re-pugnancy.</p> <p>2. Constitutional Law — Self-executing Provisions — Constitution of Va., Sec. 127. — Constitutional provisions'of a negative character are generally, if not universally, construed to be self-executing. They are also self-executing if they supply sufficient rules by means of which the right given may be enjoyed and protected, or the duty imposed be enforced. As the Legislature could not authorize a city or town to contract indebtedness beyond the limit prescribed by sec. 127 of the Constitution, no legislation is needed to put that section of the Constitution into operation, and it operates proprio vigore.</p>

Trigg Company, suing on behalf of themselves and all other creditors similarly situated, .against the William R. Trigg Company and others. Into this suit the Bucyrus. Company came by petition asserting ,a claim of title to certain property in the hands of the receiver and about to be turned over to the United States Government. Decree in favor of Bucyrus Company, The William R. Trigg Co., and a number of its creditors appealed. The opinion states the case.

<p>1. Ins~nuc'riows-Coniradwtory-Effect on Vèr&ict.-Where contradictory instructions on a material point in a case have been given, the verdict of the jury should be set aside as it cannot be said whether the jury were controlled by the one or the other.</p> <p>2. NEGLIGaN0n-Concurring Negligence of Plaintif-If malaria, which is the foundation of an action, may have been caused as well by the condition of plaintiff's premises as by stagnant water on the premises of the defendant, it is error to instruct the jury to find for the plaintiff if they believe that the "stagnant water was the principal and substantive cause of the injury complained of, even though other causes may have contributed to a lesser extent." The law will not undertake to balance the negligence of the respective parties to ascertain which was most in fault. The plaintiff must prove by a prepond6rance of evidence that the injury complained of was occasioned by the fault or negligence of the defendant before the latter can be held liable therefor.</p>

<p>Error to- a judgment of the Circuit Court of Elizabeth City-county in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case. :</p>

<p>1. Pleading — -Declaration—Allegation of Negligence. — In an action for a personal injury inflicted by a railroad company at a public crossing, a declaration is bad which does not charge either that the company was guilty of negligence in the management of its trains as it approached the crossing which misled the plaintiff or puthiminperil; orthat, after the defendant knew, or by exercise of ordinary care could have known, of his peril, it could have avoided the injury; or a state of facts which showed that the defendant was guilty of negligence.</p> <p>2. Kailroads — Crossing—Negligence—Case at Bar. — The evidence in this ' cause shows that the plaintiff’s intestate was guilty of negligence, but fails to disclose negligence on the part of the defendant company. The train which inflicted the injury complained of was backing slowly, its bell was ringing, and it was in full view of plaintiff’s intestate who approached it riding a bicycle rapidly, and turned down the track in a safe place, and whose peril was not apparent to the company’s servants until he fell or was thrown from his bicycle on the track immediately in front of the moving train, when the collision could not be avoided.</p> <p>3. Instbuctions — Jury Sufficiently Instructed — Additional Instructions. — Where the instructions given, or which the court has determined to give, are sufficient to submit the case fairly to the jury, the court is under no obligation to give additional instructions, even though correct, for they are unnecessary. A multiplicity of instructions tends to mislead and confuse the jury, and should be avoided.</p> <p>4. Instructions — Evidence to Support — Ambiguity.—An instruction should not be given when there is no evidence on which to base it, nor when • it is ambiguous.</p> <p>5. Trespassers — Duty of Foresight. — The duty which one owes to a trespasser is to use ordinary care not to injure him after his peril is discovered.</p>

<p>Appeal from a decree "of tire Hustings Court of the city of Petersburg in a suit in chancery. Decree for complainants. Defendants appeal.</p> <p>The opinion states the case.</p>

<p>1. VaNDOR AND PURCHAS~R--Sa1C by Trustee-Suit to Set Aside-Uase~in Judgment.-Upon the evidence in this cause it is held that the sale ir~ade by trustees, which was set aside by the trial court, is a valid sale. The trustees had authority to sell, the property was duly advertised, there was no collusion between the trustees and the purchaser, the price obtained was not so inadequate as to justify the court in setting it aside on that ground, and the grantor in the deed of trust practically ratified the sale after it was made by assigning the surplus purchase money to a third person.</p> <p>2. APPEAL AND Enaon-Objections Not Ifade Below.--Objection that a trustee in a deed of trust was not authorized to sell because be had not been requested in writing to sell, as required by the deed of trust, or that the deed of trust was in fact a mortgage, because the trustee was interested in the debt secured, cannot be made in this court for the first time.</p>

<p>Error to a judgment of tbe Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Chesterfield county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk in an action of assumpsit. Judgment for the- defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p> 1. QuIETING Trm~-Bill to Remove Cloud.-A person in possession of land, with a fee simple title, may file a bill to remove a cloud from the title. </p> <p> 2. REFORMATION-Fraud and Mistake-flow (iharged-&eneral 1tetief.-WI~ere fraud or. mistake is relied upon as a ground of equitable relief, the particular manner in which the fraud was committed or the mistake made, and the end or design to be accomplished, must be set forth in the pleadings. Where the facts stated in a bill show what was the real agreement between the paxties, and that a material part was, by mistake, omitted from the agreement when it was reduced to writing, the bill is sufficient to entitle the party injured to a reformation of the written instrument under the prayer for general relief </p> <p>3. PAROL EVIDENCE- Varying Written In$trument-Mistake-Equitable Relief. -Where there has been an omission of a material stipulation in a written instrument contrary to the intention of the parties and under a mutual mistake equity will intervene to grant relief.</p> <p>4. PAROL EvroENcE- Varying Written Instriernents-kfistake-Equi'abte Relief-Reformation-While parol evidence will not be received to vary, alter or contradict the terms of a valid written instrument, still if it be clearly shown by proof which is entirely satisfactory that, by mistake of the araftsman, a writing does not truly set forth the agreement of the parties as previonsly entered into by them, equity will correct the mistake so as to make the instrument conform to the real agreement of the parties. Such mistake may be shown by parol, but the evidence of it must be clear and convincing, and such as to leave no fair and reasonable doubt upon the mind that the writing does not correctly embody the intention of the parties.</p>

<p>1. Escaows-Delivery to Agent-Ignorance of Ageney-Notice.-A deed cannot be delivered in escrow to the known agent of the grantee. If so delivered, the delivery is absolute, and the condition is void. If a deed be delivered in escrow to one who is in Met the agent of the grantee, but that fact is unknown to the grantor, an instruction to the jury that if the agent disclosed the condition to his principal it is binding on him, but if he did not disclose it and the principal entered upon the land granted in pursuance of the deed such entry is not a trespass, is not prejudical to the grantee.</p> <p>2. INsTRUcTIoNS-Jury Fully Instrucled.-It is not error to refuse an instruction when the jury has been already sufficiently and. correctly instructed on the point covered by the rejected instruction.</p>

<p>Appeal from a decree of the Chancery Court of the city of [Richmond. Decree in favor of complainant. Defendants appeal.</p> <p>The opinion states the ease.</p>

An appeal from a decree of the Corporation Court of tbe city of Bristol in two chancery suits beard together. Decree in favor of Ida V. Simon complainant in one’of the suits, and one of the defendants in the other. F. T. Blanchard and the F. T. Blanchard Co., defendants in one of the suits and complainants in the other, appeal. The opinion states the case.

<p>1. TAXATION-SUnS o~f Property qf a Iiunatie.-The choses in action of a lunatic in the hands of his committee and about which there is no litigation, are taxable at the place of residence of the committee and not that of the lunatic. Sections 2700 and 492b of the Code of 1904 only apply to such fiduciaries as represent the court, and provide the means by which the court holds and controls the fund in its charge.</p> <p>2. TAx~TIoN-Proper1y o~f Iiaaalic-Situs-Erroneous Assessment-Time for Correction.-Section 571 of the Code providing for the correction of an erroneous assessment of personal property within two years has no application to the improper assessment of the estate of a lunatic at the place of his domicile instead of the domicile of his committee, and such impropriety or error may be corrected when the tax is sought to be enforced although the two years provided for by Sec. 571 ha~ expired.</p>

<p>Error to a judgment of tbe Corporation Court of the city of Bristol in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the ease.</p>

<p>Error to a judgment of tbe Corporation Court of tbe city of. Bristol in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p> 1. Ec~ur&'y- When Deposition May be Read-Delay in Talcing.-A party to a suit in chancery has no right to read depositions in his favor simply because they are filed before a final decree in the cause, or before an interlocutory decree adjudging the matter controverted by the depositions. Whether testimony delayed until the hearing will be heard must depend upon a sound judicial discretion to be exercised upon the facts of the case, the nature of the evidence, the reasons given for the delay, and a variety of other circumstances. If the reading of the depositions would involve the continuance of a cause ready for hearing~ a recom-mittal of a commissioner's report, a re-opening of the case for the introduction of other testimony, and a prolongation of the controversy, when the party making the motion has had abundant opportunity to take his proof, and has, without good cause, failed to do so, the depositions should be excluded. This is especially true where the court is dealing with its own receiver. </p> <p> 2. REcEIvERs-Obedience to Orders-Promptness.-A receiver is the hand of the court, and it is his duty to yield prompt and unquestioned obedience to all its lawful decrees. The court cannot tolerate a practice which renders it as difficult to compel the disbursement of funds in the hands of its receiver as to enforce the collection of a controvert~d demand. </p> <p>3. E~uiry PRAcTIcE-Distribution of Fu~nds-Form7 of Decree-A snounts-Dates.-In disbursing funds to creditors the decree should specify the amount decreed to each creditor, and tile date from which interest is to be computed.</p>

<p>1. Ejectment — Plaintiff’s Title — Case at Bar — Sale Under Void Execution.— Land was sold under an execution in favor of the Commonwealth and bonds given by the purchaser for the purchase price and returned by the sheriff, but not paid. Subsequently another execution was issued on the same judgment, and levied on the same land, then in possession of the first purchaser. At this sale the first purchaser again became the purchaser and time was given him to exe'cute the bond required by law, but he failed to do so, and the land was again offered for sale on the same day, when defendant in error became the purchaser and paid the purchase money, and the sheriff conveyed the land to him. The second purchaser then brought ejectment against the first purchaser, who offéred to show the above stated facts with reference to the first sale, in order to show that the second execution 'was void. The trial court excluded the evidence.</p> <p> Held: </p> <p>1. The evidence in favor of the plaintiff is sufficient to entitle him to recover.</p> <p>2. The second execution was valid, and there was no error in rejecting the offered evidence as it entirely fails to prove the satisfaction of the judgment.</p>

• Error tó a judgment of the Corporation Court of the city of Danville in' an action of debt. Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

Judgment- for the plaintiff. Defendant assigns error. The opinion states the case. The instructions 2, 4, 10' and 13 given on behalf of the defendant after being modified as pointed out in the opinion of the court were as follows: 2. “The court instructs the jury that to entitle the plaintiff to recover he must prove his case as it is alleged in his declaration, that he cannot allege one state of facts and recover upon other and different facts than those charged.

Judgment for tbe plaintiff. Defendant assigns error. The opinion states the case.

<p>1. Equity — Parties■ -Agents or Servants. — Where a mother controls and manages a farm, and takes all the rents and profits arising therefrom, her sons 'who simply assist her in running the farm are not proper parties to a suit against the mother to have an account of such rents and profits.</p> <p>2. Guabdian de facto — Tenant in Common — How Chargeable. — A father who, as tenant in common with his infant son, takes all the rents arising from that portion of the land belonging to the son, occupies the relation of defacto guardian to his son, and must account for such rents with compound interest thereon; and if the father conveys the property ‘ to his wife and she fakes possession of the whole land and receives the entire proceeds thereof, she becomes in like manner a guardian de facto of the infant from the date she receives the deed and takes possession, and is chargeable in like manner. It is immaterial that the father and his wife were successively tenants in common with the son. They are nevertheless chargeable as guardians defacto.</p> <p>3. Tenants in Common — Interest—Guardian de facto — Code, Sec. 3294. — At common law a tenant in common could not have an accounting from the occupying tenant, in the absence of an express contract, even though excluded from the common property. This was changed at an early day by what is now Sec. 3294 of the Code, but this section was not meant to deprive an infant tenant in common from recovering compound interest from a guardian defacto who was his co-tenant.</p> <p>4. Guaedian de facto — Tenants in Common — Sents—Ascertainment of Infant’s Share. — In ascertaining the amount of rents with which the defacto guardian is chargeable by reason of having used and enjoyed the infant’s land which the guardian held in common with his own land, if the metes and bounds of the infant’s land are known and ascertained, the rents of that boundary should be fixed and charged to the guardian, and not charge him merely with the infant’s proportion of the rent of the tract as a whole.</p> <p>5. Payments — Gifts—Presumption.—If a father is indebted to his son and places money to the credit of the latter in bank, the presumption is that this was intended as a payment on account, and to overcome this presumption the evidence must be clear and convincing.</p> <p>6. Parent and Child — Support—Application of Infant’s Estate. — It is the common law duty of a father to support his child, if of ability to do so. Where the child has property of its own, the court, in the application of this rule, looks at the circumstances of the particular case, and determines according to the right and justice thereof, having in view the position and wealth of the parties.</p> <p>7. Pabent and Child — Step-ehildren—Support.—A step-mother who is chargeable as guardian defacto of her infant step-son, whose father is insolvent, should be allowed credit for the support and maintenance of said step-son and the keep of his horse, where the support of the family has devolved upon her.</p> <p>8. Tenants in Common — Be facto Guardians — Improvements—Repairs.—No credit for improvements or repairs should be allowed to a de facto guardian of an infant who is tenant in common of the infant.</p>

Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

<p>1. MARIUED Wo.~r~N-Statutory Separate Estate- co~ttract to Sell.-A contract by a married woman, in which her husband unites, for the sale of her statutory separate estate acquired under the act of April 4, 1877, may be enforced in equity either for or against her.</p> <p>2. SPnCIFIO Psaroa~r&NcI~-Tender of DeecZ.-When the vendee of land calls upon the vendor by bill for that purpose, to exhibit his title so that the purchaser may accept it if found to be good, or have the contract re*scinded if bad, it is not necessary that the vendor shall be able to make a complete deed at the time he files his answer. It is sufficient if, with the aid of the court, he can tender a marketable title at the hearing.</p> <p>3. MARRIED WoMEN-Statutory Separate Estate- Contract to Sell- C'ode, Sec. ~5O~.-Section 2502 of the Code relating to the effect to be given to certain conveyances made by married women and the covenants therein contained does not in any way prohibit her from contracting to sell her statutory separate estate, or inhibit or interfere with a court of equity in the enforcement of such contracts.</p> <p>4. EquiTv-Specific Performance-Parties-Cross-bill- Complete Relief.Where husband and wife have contracted to sell their joint lands to a purchaser, who gives bond payable to the husband only, and a bill is thereafter filed by the purchaser against the husband and the heirs and distributees of the wife, asking that they exhibit their title so that the purchaser may accept it if good and reject it if bad, and no question is raised about the right of the husband to collect the whole purchase-money, either by the purchaser or the distributees of the wife, the personal representative of the wife is not a necessary party to the suit, and no prayer that the answer of the husband and distributees of the wife be treated as a cross-bill is necessary to enable the court, upon being satisfied that the title is good, to ascertain the balance due on the purchase price and give a decree therefor against the purchaser. Upon reference to a commissioner in such case to report on the condition of the title, and also to report anything else deemed pertinent by himself, or required by any party in interest, it is not error for the commissioner to report the balance of purchase money due the vendor, and where such report is confirmed by the trial court without exception on that account, no objection thereto can he raised in this court, especially when there is no suggestion of error in the calculations made or the amount reported by the Commissioner. When a court of equity has once acquired jurisdiction of a cause on equitable grounds, it will go on and do complete justice between the parties.</p> <p>5. Deed- — ,Signature by Woman — Presumption as to Life of Husband. — Where a purchaser of land has been in the continuous, actual, open and exclusive possession thereof from the date of the conveyance to him, and the conveyance is perfect on its face and no adverse claim to the land has been asserted by anyone, it will be presumed that a woman who had been married but who signed the deed as grantor more than thirty years ago had no husband living at the date of her conveyance.</p> <p>6. Specific Performance — Doubtful Title — Title by Adverse Possession.- — A purchaser will not be compelled, in equity, to accept a doubtful title, but he may be compelled to accept one resting upon a hostile, adverse, and uninterrupted possession under color of title which has continued a sufficient length of time to bar the rights of any possible claimant.</p> <p>7. Vendor and Purchaser' — Warranty by Vendor’s Heirs — Waiver.—A purchaser of land cannot refuse to accept the deed and warranty of the vendor’s heir, where, after the death of the vendor, he recognizes the contract as still binding on him, retains possession and makes payments, and there has, in the meantime, been great depreciation in the value of the land, and he has made no objection to the title until sued for the purchase-money.</p>

<p>1. JUDIcIAL NoTIcE-Law of Another State-Conrinom Law.-The courts of this State will take judicial notice of the fact that Maryland embraces a part of the territory of the original English colonies of America, and, in the absence of evidence to the contrary, it will be presumed that the common law prevails there.</p> <p>2. PLxADING-fudgment Non-Obstante-Payment of Less Sans Than Due.Where the sole ~issue in a, case is made by a general replication to a plea of accord and satisfaction setting up the discharge of a bond by the execution and delivery of two notes for the amount of the principal of the bond, and no other consideration, and there is a verdict for the defendant, in those jurisdictions where the common law prevails, judgment should be entered for the plaintiff non obstante veredicto.</p> <p>3. CONFLICI' or LAws-Contract~-Discharge.-TJpon a bond executed and payable in Maryland the Maryland law prevails as to what will constitute a discharge of the bond, though enforcement be sought in the courts of this State.</p>

<p>Appeal from a decree of the Circuit Court of Scott county in a suit in chancery. Decree for the complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

of the- city of Bristol in a proceeding hy quo warranto in the name of the Commonwealth at the relation of O'. B. Elanary and others against South & Western Railway Company. Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

Appeal' from a decree in chancery of the Circuit Court of Scott county. Decree in favor of defendant. Complainant appeals. The opinion states the case.

<p>1. EvxDE~cE-Consideration of Deed- Varying Written Instrument.-Although a deed of trust to secure a note for $2,200 recites the consideration as the satisfaction of certain liens, and the payment of certain specific debts, the true consideration of the deed may be shown by parol, and the deed, in the absence of any fraudulent intent on the part of the parties thereto, will beheld as a valid security therefor. Such evidence does not tend to vary or contradict the deed.</p> <p>2. NOTARY PUBLIC-Agent or Servant of Grantee-Competeney.--The fact that the notary who.takes the acknowledgment of the grantors in a deed is the clerk, agent, and employee of the trustee in the deed, and receives • a salary for his services as such, does not affect his competency to take such acknowledgment and receive comnensation therefor.</p> <p>3. Eqin'r'i-Bill by Yudgment OredUor Assailing Deed for Fraud-Failure of Froof-Retaini'ng Cause.-Upon a bill filed by a judgment creditor seeking to set aside as fraudulent a deed of trust given by the judgment debtor on his real estate, and to subject the land to the lien of his judgment, where there is a failure to establish the fraud charged, the bill should not be dismissed, but (the trust debt beii~g due at the hearing) should be retained on the docket, and the creditor permitted to have the land sold, and to subject the excess, if any, over the deed of trust debt to the payment of his judgment. It is immaterial that the trust debt was not due at the time the creditor filed his bill.</p> <p>4. EQUITY-Bill by Judgment Oreditor~F!raudulent Deed-Complete Relief-A judgment creditor already properly before the court to have set aside as fraudulent a deed made by the judgment debtor, will not be turned out of court and sent to another suit to prove his debt, upon failure to establish the fraud charged, but will be given complete relief in the suit brought by him.</p>

<p>Error to a judgment of tbe Circuit Court of Wise county, in an action of debt. Judgment for the defendants. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p> 1. Spmirxc PERFORMANC~-Ca8e in Jadgment-Fraud.----The evidence in this cause shows that the tract of land claimed by the appellant in his bill had been in the possession of the husband and father of the appellees for some time prior to his death; that he claimed it as his own in the presence of appellant, without dissent on his part; that he put valuable improvements thereon; that he caused it to be surveyed in the presence of appellant, with a view of taking a deed from him, and that appellant pointed it out as the land he was to convey him. If the evidence does not establish the fact that appellant gave or agreed to give to the husband and father of appellees, who was his brother, a title bond for the land,.it clearly shows that the latter was in the possession of the land for a number of years under a contract or agreement so far enecuted that it would be a fraud upon his rights to now refuse an enforcement thereof. </p> <p> 2. Ex~ccrrous-Title Papers-Inepection by Parties in Interest.-While an executor named in a valid will is entitled to the custody of testator's title papers, parties in interest have the right to see and inspect them. </p> <p>3. EVXuENCE-COncZUCt as an Admission-Fraud.-A party's conduct, so far as it indicates his belief in the weakness of his case, may be used against him as an admission, subject to any explanations he may be able to make removing that significance from hi~ conduct. In particular, falsehood is a badge of fraud, and a case which is sought to be supported by deceptio~n may prima facie, until the contrary is shown, be taken as a bad and dishonest ease.</p>

<p>1. Vendor and Purchaser — Right to Redeem — Terms of Redemption — Case in Judgment. — Under the terms of the agreement in suit allowing the former owner of land to redeem upon reimbursing the purchaser for principal, interest and costs expended by him in buying the land at a judicial sale thereof, it is not error to require such former owner, as a condition precedent to his right to redeem, to pay not only the amount expended as aforesaid, but also the balance owing by the former owner to such purchaser on a deed of trust-given on a part of the land to secure a loan made by the purchaser to such owner.</p> <p>2. Contracts — Fraudulent Procurement — Benefits.—Where a party is induced</p> <p>by the false representation of another to enter into an agreement involving the outlay of money on the faith of certain property as security therefor, and, in consequence of such representations, he is wholly deprived of the security furnished by a large part of the property, and thereby sustains a large pecuniary loss, the party making such representations will not be allowed to claim the benefit of a stipulation in . . the agreement which is favorable to him and detrimental to the other party.</p>

Judgment for the plaintiff. Defendant assigns error. This was an action of assumpsit on a fire insurance policy to recover for a total loss of a store-house and stock of goods destroyed by fire. After all' the evidence was in, the defendant demurred to the evidence, and the plaintiff joined in the demurrer, and the court rendered a judgment thereon for the plaintiff. The facts sufficiently appear in the opinion of the court except as to the proof of loss.

<p>1. Malicious Pkosecution — Termination of the Prosecution. — In an action for malicious prosecution it is essential for the plaintiff, amongst other things, to allege and prove that the criminal prosecution which is the basis of the action has terminated in a manner not unfavorable to the now plaintiff. There need not have been a trial on the merits. It is sufficient that the prosecution has terminated in such manner that it cannot be reinstated nor further maintained without commencing a new proceeding. Only the particular prosecution need be ended. It is immaterial that a new one for the same alleged offence may be set on foot. Ward v. Reasor, 98 Ya. 399, overruled.</p>

Smith. The bill was filed to enjoin the defendant from cutting and removing timber from a tract of land in the bill mentioned, which was claimed as the land of complainant’s wai'd. Into this suit came the appellants by petition, and claimed an interest in the said tract of land, and asked to be made parties, and to have their rights protected. The claim asserted by the petitioners rendered it necessary for the court to construe the deed copied in the opinion.

<p>Appeal from.a decree in chancery of the Circuit Court of Wise county. Decree in favor of complainant. Defendant-appeals.</p> <p>The opinion states the case.</p>

fa. against Chadwell Brit-tain in his lifetime the proceeds of .a claim against the United States Government which had come into the hands of his administrator since his death. The bill was dismisséd, and complainants appeal. _ The opinion states the case.

<p>Error to a judgment of the Circuit Court of Wise county, in an action of trespass on the case. Judgment for the plaintiff. D'efendant assigns error.</p> <p>The opinion states the case.</p>

<p>Appeal from an order of the State Corporation Commission, granting to The Great Falls & Old Dominion Railroad Company-permission to condemn property of The Great Falls Power Company.</p> <p>The opinion states the case.</p>

<p>Original application for a mandamus to compel the granting of a distiller’s license.</p>

B. Younken and W. E. 0. Merriman, partners under the style of E. B. Younken & Co. Process was served only on Merriman. Judgment for plaintiffs. Defendant assigns error.

a judgment of tbe Circuit Court of Augusta county, iu an action of ejectment. Judgment for tbe plaintiff. Defendants assign error. Tbe opinion states tbe case.

<p>1. Equity — Jurisdiction—Discovery and Relief — Agency Involving Trust and Confidence. — An agent to sell land of his principal and collect the proceeds, and also to demand, sue for and collect all debts, rents, accounts and other claims which may be due to his principal, occupies a position of trust and confidence towards his principal, and where, after the lapse of many years, his accounts have become complicated by reason of collections from various sources, and disbursements for expenses and remittances to his principal, equity has jurisdiction of a bill by the principal praying for a discovery from the agent, and a proper settlement of his accounts. The remedy at law in such a case is not plain simple and free from difficulty. ■</p> <p>2. Limitations of Actions — Continuous Agency — Case in Judgment. — As a general rule, when there is an undertaking or agency which requires a continuation of services, the statute 'of limitations does not begin to run until the termination of the undertaking or agency. The facts in this case do not take it from under the influence of the general rule. The agency was continuous for 17 years; the transactions were numerous, involving a long and complicated account, the details of which were known only to the agent, and the principal was a non resident and compelled to rely upon the agent for a faithful discharge of his trust.</p>

<p>1. Master and Servant — Assumed Bisks — Negligence of Master. — A servant, by implication, assumes the ordinary risks incident to the service in which he engages, but not those risks which may be obviated by the master by the exercise of reasonable care on his part. A failure on the part of the master to observe, for the protection of his servant, that reasonable degree of care which the circumstances of the particular case justly demand is actionable negligence, and is not within the influence of the doctrine of assumed risks.</p> <p>2. Declaration — Case at Bar — Personal Injury — Safe Place — Defences.—A declaration which states that the plaintiff was in the employment of the defendant, who was engaged in quarrying rock, that the defendant, whose duty it was to keep its quarry in a reasonably safe condition, knowingly permitted a stone to remain in a position from which it was liable to fall at any time, and that it did fall, on a day stated, upon the plaintiff, who was ignorant of the danger, and in the exercise of due and proper care, and caution, by reason of which the injury complained of was inflicted, is good on demurrer. If the defendant relies upon the fact that the place was one in which the conditions were constantly changing, and that the preparation of it was a part of the work of the plaintiff, or that the danger was open and obvious, these are matters of defence to be established by proof.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Augusta county. Decree in favor of complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Augusta county. Decree in favor of defendants. Complainants appeal.</p> <p>The opinion states the case.</p>

<p>1: Conflict of Laws — Place' of' Performance — Building Association.— - • Where the by-laws of a non-resident Building Association provide that all dues from members shall be payable at the home office of the company, which is outside of this State, a contract by a member for a loan, which is silent as to the place of payment, is a foreign contract, and is governed by the laws of the State in which the home office is located as to its validity, interpretation and effect.</p> <p>2. Building Associations — Borrowing Member- — XJsury—Foreign Law.— A contract of a borrowing member of Building Association to pay six per cent, interest on the money borrowed during the continuance of the loan, and the taxes and insurance premiums on the property conveyed to secure the repayment of the loan, in addition to what he undertook to pay as a stockholder to mature his stock, is not usurious under the laws of Maryland, where the dues are payable; and the contract will be upheld in this .State when its enforcement is sought here.</p> <p>3. Building Associations — Borrowing Member — Withdrawal—Mode of Settlement — Foreign Law — Enforcement Here. — Under the laws of Maryland, which, in this ease, will he enforced in this State, the amount due on the contract in suit (which is a bond given to a Building Association by a borrowing member who has since died) is to he ascertained by charging the estate of the borrowing member with the amount of the loan to him as of its date, and interest at six per cent., and crediting his estate with all sums paid on the loan as of the dates of payment, whether principal or interest, and thus ascertain the balance due on the loan at the time of borrower’s death. Upon this sum there should be credited the withdrawal value of tlie borrower’s stares of stock at the time of bis death, ascertained according to the by-laws of the company, then in force for determining the withdrawal value of the stock of a borrowing member who pays back a loan in advance of the maturity of his stock. For the balance thus ascertained, with interest thereon from the time of borrower’s death, and unpaid fines assessed against him in his lifetime, and the taxes paid by the company on the trust property, with interest thereon from date of payment, the company is entitled to a decree.</p>

<p>1. Deeds — Description of Premises — Doubts Resolved against Grantor— Case at Bar. — Under a grant to A. of all and every part of a certain tract of land, which was conveyed to grantor by S. by a deed bearing a date mentioned, and recorded in a deed book specified, “to which the said grantor has legal title under the conveyances from Coleman and Haviland, the original patentees of the larger tract of land, of which said tract forms a part, the same having been described and conveyed in the said deed to the” grantor as containing by survey May 4, 1891, three hundred and ninety one acres and 38 poles, A. takes the entire tract of 391 acres and 38 poles conveyed to his grantor, and the language quoted from the old deed does not restrict the conveyance to only so much of the tract as was actually within the limits of the old grant of Coleman and Haviland, and was not intended to describe the interest or amount of land conveyed, but was used for the purpose of showing from This 'construction would have to he placed- on the deed to A. even what source the land was derived, and as a help to trace the title, if the language left it in doubt, as, in such case, the language is construed most strongly against the grantor.</p>

E'rror to a judgment of the Circuit Court of Rockbridge county, in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error. The opinion states the case.

<p>Appeal from decree in chancery of the Circuit Court of Augusta county. .Decree in favor of complainants. One of defendants appeals.</p> <p>The opinion states the case.</p>

<p>1. Fire Insurance — Policy—Construction—Substantial Compliance.— A substantial compliance with tbe requirements of a fire insurance policy, including the “iron safe clause”, and the provisions as to proof of loss, is all that can be reasonably exacted.</p> <p>2. Fire Insurance — Inventory—Proof of Loss — Conflicting Evidence. — ■ Where the evidence is conflicting, it is for the jury to determine whether an inventory offered by the assured was accepted by the agent of the insurer as sufficient, and whether a proof of loss was furnished in a reasonable time and not later than sixty days prior to the end of twelve months from the date of the fire.</p> <p>3. Fire Insurance — Proof of Loss — Effect of Failure to Furnish.— Where no forfeiture is provided for in case of a failure to furnish proofs of loss — forfeitures being provided in ease of breach of other requirements — or furnishing proofs in the specified time is not expressly made a condition precedent to recovery, the effect of the failure to furnish such proofs is merely to postpone the time of payment to the specified time after they are furnished.</p> <p>4. Fire Insurance — Proof of Loss — -Waiver—Compliance with Policy.— Where an insurer is given informal notice of a total loss by fire, and appears on the ground for the purpose of ascertaining the facts as to the fire, etc., and negotiations follow with reference to the payment of the loss, but he takes no steps towards such payment, and, when a formal proof of loss is tendered nine months after the fire, points out no defects therein, but indicates a purpose to contest his liability, a jury is well warranted in finding either that there has been a waiver as to the proof of loss, or that there has been a substantial compliance with the requirement of the policy in that respect.</p> <p>5. Fire Insurance — Iron Safe Clause — Object—Books to be Kept. — The object of the “iron safe clause” in a fire insurance policy is to protect the insurer against fraud by requiring that in case of the destruction of the property, the insured shall furnish a set of books which will present clearly and plainly a complete record of the business he has transacted while the policy was in force, and if the compliance with the requirement be sufficient to protect the insurer against fraud, it is all that can be reasonably demanded. In the case at har there had been no purchases and but two small sales since the inventory, taken shortly before the policy was issued, and these sales were duly entered in the book containing the inventory, which was preserved and offered in evidence at the trial. The jury, deeming the book sufficient, found for the plaintiff, and their verdict was sustained in the trial court, and will not be set aside by this court.</p> <p>6. Fire Insurance — Policy—Construction—Forfeiture.—Courts, in construing policies of insurance, do not look for grounds of forfeiture, and, furthermore, will construe the language of policies strictly against the insurer and liberally in favor of the insured. •</p>

<p>1. Instructions Directing a Verdict — Partial Case — Carriers—Case at Bar. — In an action to recover damages for injuries inflicted on live stock and household goods, shipped under one bill of lading containing provisions applicable only to the live stock, it is not error to refuse to instruct the jury to find for the defendant unless they believe that the, provision as to live stock has been complied with. The plaintiff may be entitled to recover for his goods although the provision as to live stock has not been complied with.</p> <p>2. Evidence — Admissibility—Construction of Instruments — Functions of Court and Jury. — It is the province of the court, and not of the jury, to determine upon the admissibility of evidence and to construe written instruments, and it is error to refer to a jury the determination of what, if any, parol evidence which has been received without objection, is in conflict with a bill of lading introduced as the basis of the action, and to disregard it.</p> <p>3. Bin, op Lading — Unintelligible Characters — Meeting of Minds.— Unintelligible characters placed on a bill of lading which convey no meaning to a person of ordinary intelligence and which are not explained to the shipper, do not bind him, nor can the court take judicial notice of their meaning, or say, as a matter of law, that the minds of the parties met as to their meaning.</p> <p>4. Bill op Lading — Limiting Liability — Reasonableness—Fair Contract —Unintelligible Characters. — The test heretofore applied to determine the validity of a contract between a shipper and carrier limiting the amount for which the carrier may be held liable, in consideration of a reduced rate of carriage, has been, was the contract fairly entered into, and its terms just and reasonable. Even if the correctness of the test be conceded, it cannot be said to have been fairly entered into if it contains unintelligible and unexplained terms to which the attention of the shipper was not called, and which are sought to be enforced against him.</p>

<p>1. EQuITY-Jurisdiction-Thiauthorized Tax.-Equity has jurisdiction to enjoin the collection of an unauthorized tax and to declare unconstitutional the law under which the tax is imposed.</p> <p>2. EQUITY-Injunctiom-Unautlvorised Tacc-Parties.-Where the Mayor and council of a town imposing an unauthorized tax are parties in their official capacity to a bill to enjoin the collection of the tax, it is not necessary to make the town a party by name.</p> <p>3. Cons~irurxoi'~ LAw-Incorporating Cities and Towns-,S'pecia~ Legislation.-Since the adoption of the present Constitution, the Legislature can, as formerly, grant charters creating cities and towns, but when such charters are granted the city or town so chartered must be organized and governed in accordance with the general laws. It cannot pass special laws conferring rights and privileges different from those prescribed by the general law, as this would be obnoxious to the constitutional provision forbidding special legislation.</p> <p>4. M~tmsois- HxTonTs-Charter Unconstit'utioncti.-The charter cf the town of Madison Heights is obnoxious to the constitutional inhibition against special legislations in numerous particulars. The time for holding elections of mayor and councilmen, the territorial extent of the jurisdiction of its mayor, and the powers of its sergeant, nre all different from the provisions of the general law. Other provisions are without any general law to support them and are hence invalid, as Sec. 117 of the Constitution is self-executing so far as it prohibits special legislation, and also to the extent that it amends the charters of cities and towns so as to make them conform to the provisions of the Constitution.</p> <p>5. Constitutional Law — Uniform Taxation — Towns—Exemption from County Levies. — The Legislature has no power to exempt the taxable persons and property in a town situated within the limits of a county and forming a part thereof, from county levies, as sec. 168 of the Constitution expressly provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and this uniformity extends not only to the rate and mode of assessment, but also to the territory to be assessed.</p> <p>6. Constitutional Law — Law Void in Part — Dependent Provisions.— Where a town charter is required to be accepted by a vote of the citizens before it becomes operative, and the chief inducement to vote for the charter is a provision therein exempting the persons and property within the town from certain taxes, which exemption is declared unconstitutional and void, the whole charter will be held to be invalid.</p> <p>7. Unconstitutional Law — Effect of Passage. — An unconstitutional law confers no rights; imposes no duties, affords no protection, and is, in legal contemplation, as inoperative as though it had never been passed.</p> <p>8. Municipal Coepobations — Dissolution—Invalid Incorporation. — While a court of equity cannot dissolve a municipal corporation which once had a legal existence, it may declare unconstitutional an Act of Assembly which seeks to bring it into existence, in a proper proceeding which involves the validity of said Act.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Augusta county. Decree for complainant. Defendant appeals.</p> <p>The following extract from the decree appealed from i's necessary to a clear understanding of paragraph three of the syllabus:</p> <p>“Third. That the said defendant, James M. Pence, do forthwith pay to the said plaintiff, Josephine F. life, or to her counsel, of record in this cause, the said sum of sixty-four hundred dollars, and interest thereon from May 1, 1902, till paid, together with her said costs in this cause, and that he do also forthwith execute and deliver to her or her said counsel his three promissory notes for said three deferred instalments of purchase money; that is to say, each note to he for the principal sum of thirty-two hundred dollars, to hear legal interest from May 1, 1902 (the interest on each note to he made payable at the maturity of each note), and to he made payable to said Josephine F. Life.</p> <p>“Fourth. That this court will retain in its possession, undelivered, the said deed from said life to said Pence, which was filed in this cause by said plaintiff as Exhibit P. with her bill, until all of said purchase money, whether now due or hereafter to fall due (together with said costs), shall have been fully paid by said Pence or by some one for him, and will retain the title to said land as security for the payment of said unpaid purchase money (in lieu of requiring same to be secured by trust deed as called for by said written contract of sale and purchase ■ — the failure of said Pence to carry out his said contract, having now rendered it impracticable to secure said unpaid purchase money by trust deed, as originally contemplated), and for the payment of said costs.”</p>

<p>1. Eminent Domain — Raising Dam — Riparian Owners — Compensation. —Where the effect of raising a dam in a river is to flood its hanks, impose upon its bed a greater volume of water, destroy fords, render adjacent lands more liable to overflow, and greatly to alter the natural flow and condition of the stream, adjacent riparian proprietors affected thereby are entitled to compensation from the person asking to have the dam raised.</p> <p>2. Parol Agreement — Water Power — Pendente Lite Deed. — A parol agreement between the owners of opposite banks of a stream to divide between themselves in designated proportions the compensation to be received for the power furnished by the stream, whether the same should be granted by the owners or taken and appropriated against their consent, if fairly entered into between the the parties, is mutually binding on them, and they may lawfully execute a deed carrying such agreement into effect pending proceeding to condemn the power.</p> <p>3. Eminent Domain — Power Purnibhed toy a Stream — Rights of Riparian Owners. — Riparian owners have a right to a stream’ flowing through their lands in its natural condition, and may protect.that right not only for present needs but for possible future ones; and, although no one of the riparian proprietors owns the banks on both sides of the stream, nor has the right to erect a dam across it, and no two or more of them, as co-tenants, owns said banks or have the right to erect a dam across it, yet each owns an interest in the power furnished by the stream, although not actually applied, which may be united in one ownership, or be held as co-tenants, and this interest cannot be taken for public use without making just compensation to the owner thereof.</p>

<p>Error to a judgment of the Circuit Court of Rockingham county, in an action of trespass on the case. Demurrer to declaration sustained. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>1. Negotiable Instruments — Blank as to Amount — Sow Filled — Incompleteness. — "Where a blank in the body of a negotiable note for the amount thereof is left unfilled, the instrument is incomplete, and there can be no recovery on it; but it is not invalid simply because incomplete. It creates certain rights and obligations, and, when properly filled up by a t>ona fide holder, may be enforced at law, or, if left blank b.y mistake, the mistake may be corrected in equity.</p> <p>2. Negotiable Instruments — Blank as to Amount — Amount in Margin— Use of Margin. — -The amount for which a negotiable note is made out must be clearly expressed in the note, and if the blank for the amount in the body of a note be left unfilled, its place cannot be supplied from the margin whether written out in full or expressed in figures. The margin may be used to remove an ambiguity in the body of the note, or to clear up a doubt, but not to supply a blank.</p> <p>3. Negotiable Instruments — Blank as to Amount — Use in Evidence— Hoto Blank Filled.- — "Where the amount of a negotiable note is expressed in the margin but not in the body of the note, the note cannot be used in evidence to support an averment in the "declaration of the making of a note for the sum stated in the margin, but the delivery of such a note is generally authority to a dona fide holder to fill the blank for the true amount due not exceeding the amount stated in the margin, and if the plaintiff, who is the payee of the note, has not lost the right by unreasonable delay or otherwise, he may, in the absence of evidence that the blank was left by mistake, fill the blank in the body of the note with the amount agreed on with the maker, and so make the note conform to the averments of his declaration.</p> <p>4. Pleading — Proof of Sandwriting — Affidavit.—Where the declaration alleges that the defendant made the note sued on, the defendant cannot deny the execution of the note unless his plea is accompanied by an affidavit putting that fact in issue. Code, sec. 3279.</p> <p>5. Pleading — Grounds of Defense — Insufficient Statement. — If a defendant’s grounds of defense, when called for, are not sufficient, the court should require a further and sufficient statement to he filed, and if not furnished to exclude evidence of any matter not described in the grounds of defense, or plea, so plainly as to give the plaintiff notice of its character. Code, sec. 3249.</p>

Judgment for defendant. Plaintiff assigns error. The opinion in 103 Ya. 84, in connection with the present opinion sufficiently states the case.

<p>1. SUBROGATION-Act of Limitations-Consent Decree-Cross Bifl-Case in Judgment.-For value received, land was conveyed to a trustee for the sole and separate use of a married woman, for and during the term of her natural life, with power to her to appoint the fee by will, which power she exercised in favor of her son and daughter in equal shares. The grantor reserved a lien in the deed for $3,000. Pending the life estate the woman borrowed $4,000 to pay off the aforesaid lien and accumulated interest, which was so applied. The woman and her husband executed their bond for the amount and united with her trustee, and the beneficiaries of the reserved lien, in a deed reciting the payment of the lien and conveying the land in fee to secure the $4,000 loan. The title of the daughter to one-half the fee in remainder devolved upon her father the husband of the married woman. In a suit to settle up the father's estate and to pay his debts it is charged in the bill that the son Is the owner of one-half of this tract of land, which is liable for half of the $4,000 debt, and the father was the owner of the other half which was liable for the other half. The son was a party to this suit and consented to a decree charging his land with one half of the debt two days before the time at which it is alleged the debt became barred by act of limitation. The creditor secur~d in the $4,000 debt was also a party to the suit, and, after the entry of said consent decree, filed a cross-bill against the son and others, setting out the lien reserved, the loan of the $4,000 to pay it off, and its application thereto, the bond and deed above mentioned, and other proceedings in the suit, and asking to be subrogated to the rights of the creditor in the lien secured first above mentioned.</p> <p> Held: </p> <p>(1) The land devised to the son is liable for one-half the $4,000 debt.</p> <p>(2) The debt is not barred by the statute of limitations.</p> <p>(3) It was a proper case for a cross-bill, and the demurrer thereto was properly overruled.</p> <p>2. Equity — Partition—Creditor’s Bill — Parties—Adverse Claimant— Cloud on Title. — Upon a hill filed for partition and for other purposes, where the decrees and proceedings in the case have made it in effect a creditor’s-bill for the satisfaction of liens due by the joint owners, and' binding upon the estate to he partitioned, it is error to dismiss the bill as to a defendant assertng an adverse claim to the land, or a part thereof, which is to be sold to satisfy such liens. In such case all clouds upon' the title should he removed, and the amounts and respective priorities of the liens thereon should he fixed and ascertained before any decree of sale is made. .</p>

<p>1. M~ioious PBosEcuTIoN-A~uing out an Attachment before a Court without ,Turisciiction.-If an attachment be sued out maliciou~1y and without any probable cause from a court without jurisdiction, and damage results from the levy of said attachment, the defendant in the attachment may sue the plaintiff therein for the damage so occasioned. The malicious suing out and levy of th~ attachment is sufficient basis for the action.</p>

<p>1.Evidence—Insurance Policy—Parol Evidence to Vary.—In an action to recover on a life insurance policy, a contemporaneous parol agreement or understanding between the agent of an insurance company who solicits the insurance and the insured as to the time and place of paying the premiums, different from that stated in the policy, cannot be given in evidence, as it varies or contradicts the terms of the written contract of the parties.</p> <p>2.Life Insurance—Non-Payment of Premium—Waiver by Agent—Extension of Time—Subsequent Illness.—An insured should look at his policy and conform to it, and limitations of the agent’s authority should be effective, unless the insurance company, by a course of business or otherwise, has waived the limitation on the agent’s power of waiver. An agent to collect premiums has no authority to extend the time of payment of an overdue premium, and, where the policy declares a forfeiture for failure to pay at maturity, and forbids waiver by agents, their agreements to extend time of payment do not, as a rule, bind the company. If the rules of the company allow the superintendent to accept premiums after maturity but before the date when a premium receipt must be returned for cancellation, provided he can certify that the former insured. is in good health, the assured takes the risk of being in good health between the dates mentioned, and, if not, the superintendent lias no authority to receive a premium then tendered.</p> <p>3.Evidence—Opinion of Witness.—A witness should not ,be permitted to answer questions which do not seek to elicit facts, but mere opinions upon matters upon which opinion evidence is not admissible.</p>

<p>1. EAsinsnucTs-BaZe of Lots-Recorded Plat-Bridge-Repairs.-Where a pint of lots showing streets, aileys, etc., and a bridge over a river, connecting the lots with an adjacent city or town, has been duly recorded as provided by the "Pint Act", and lots have been sold with reference to the pint, and purchasers have relied upon the use of the bridge as one of the main indncements to purchase, and the bridge has been constructed and thrown open to the use of the public, and has been used by it, the law implies a grant of the bridge as an easement to the property conveyed. The grnnt~r or dedicator of an easement, however, is generally under no obligation to mahe repairs. Tbis duty rests on tbose who use tbe easement, and, if they fail to discharge it, they must suffer the inconvenience. This rule is changed only where there is a special agreement or pre' scriptive right to the contrary.</p> <p>2. Eismnccrs-Bridge-Repcvirs-Abandowiment.- The failure of lot owners who are entitled to the use of a bridge as an easement to their lots to keep the bridge in repair for an unreasonable length of time will amount to an abandonment of the easement, and will entitle the grantor of the easement to make such use of the materials as he sees fit. But where the bridge is still in use for some purposes, though greatly out of repair, the easement cannot be said to have been wholly abandoned, and before it is declared abandoned the users should be given a reasonable time within which to restore • it to such condition as will render it safe and useful for the purpose for which it was constrhoted.</p>

Turk’s Creditors, in which certain creditors asserted their claims. Decree in favor of creditors. R. S. Turk, surviving executor, and in •his own right, and as administrator of William A. Turk, appeals. The opinion states the case.

<p>Appeal from a decree in chancery of tbe Circuit Court of Highland county, perpetuating an injunction granted to complainants. Defendants appeal.</p> <p>The opinion states the case.</p>

Judgment for the plaintiff. Defendant assigns error. The portion of the deed not set out in the opinion of the court is in the words and figures following, to-wit: “This deed made this 18th day of September, A. D. 1884, between George Wolverton of the one part .and Leannah Wolver-ton, his wife, of the other part and George Wolverton, trustee for Leannah Wolverton of the third part, all of Shenandoah county, and State of Virginia. “Witnesseth that for and in consideration of…

M. Pendleton, trustee, against The Augusta Perpetual Building & Loan Company, and its trustees and the appellant. The decrees were in favor of the Building & Loan Co., and adverse to Bryan and Pendle-ton, trustee. Bryan appeals.

<p>Error to a judgment of the Circuit Court of Shenandoah county, in an action of trespass on the case, overruling defendants’ demurrer to the evidence. Defendants assign error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Roanoke county on a complaint. Judgment for the plaintiff. Defendant assigns error.</p> <p>Tbe opinion states the case.</p>

<p>1. Master and Servant — Railroads—Safe Place — Outs—Overhanging Materials — Track "Walker. — It is tbe duty of tbe master to use ordinary care to provide for tbe servants, a reasonably safe place in wbicb to work. In the case of railroads this duty involves not only tbe proper construction, but also tbe proper maintenance and inspection of tbe roadbed and track. Cuts are as much a part of tbe tract as. fills and bridges, and it is tbe duty of tbe railroad company to use due care to prevent tbe obstruction of its track by land slides, or tbe casting thereon of other debris created by tbe common processes of nature. The' fact that tbe company keeps a track walker to examine cuts and warn approaching trains of dangers does not excuse it from tbe duty it owes of removing earth, stone, or other material in dangerous proximity to tbe cut, and wbicb is in a condition to slide or fall upon the track.</p> <p>2. Ordinary Care — When Question for Jury — Demurrer to Evidence— Oase at Bar. — What is ordinary care depends on tbe facts and circumstances of tbe particular case. If, upon tbe facts, reasonable men may fairly arrive at different conclusions, then tbe question of negligence is one for tbe jury, and, if tbe .case be beard upon a demurrer to evidence by tbe defendant, judgment should be entered for tbe plaintiff. In tbe case at bar, tbe evidence was conflicting as to whether tbe defendant was negligent in failing to remove stone wbicb rolled down upon the track and caued the injury complained of, and hence on its demurrer to tbe evidence, judgment should have been given for tbe plaintiff. '</p> <p>3. Contributory Negligence — Conflicting Evidence — Demurrer to Evidence — Oase at Bar. — Tbe evidence as to whether tbe plaintiff’s intestate was guilty of contributory negligence was conflicting, and, therefore, upon the defendant’s demurrer to the evidence, that question should have been decided in favor of the plaintiff. The evidence strongly tended to show that the plaintiff’s intestate was not guilty of negligence in remaining at his post of duty while many others, who had no duty imposed upon them, remained at the same place.</p>

<p>1. Railroads — Common Carriers — Express Messenger — Release.—An express messenger who is injured through the negligence of a railroad company, over whose road he is being hauled, may recover from the railroad company, notwithstanding he has contracted in advance with the express company to release it and the railroad company from all liability for such injury. The contract is contrary to public policy, and void both at common law and by statute. Code (1904), Sec. 1294 c. (25).</p>

<p>Error to a judgment of the Circuit Court of Amherst county, in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>1. Death by Wrongful Act — Expectancy•—Mortality Tables. — In an action to recover damages for death by wrongful act or neglect, standard tables of mortality may be introduced in evidence to show the probable expectancy of life of deceased.</p> <p>2. Railroads — Negligence—Contributory Negligence — Case at Bar.— Although the engineer of a freight train which collides with a work train standing on the track may have been guilty of negligence which contributed to the accident, yet, if the engineer of the work train could, in the result, by the exercise of ordinary care and diligence, have avoided the accident which happened, then the negligence of the engineer of the freight train will not excuse the railroad company, whose servants they both are, and he may recover for th injuries inflicted on him by such collision. In the case at bar, the evidence was sufficient to warrant an instruction to this effect.</p> <p>3. Railroads — Negligence—Case at Bar — Collision with Work-train Out of Limits. — In an action by a locomotive engineer against the railroad company whose servant he is, to recover damages for an injury resulting from a collision with a work-train standing on the track, if it be conceded that the conductor of the work-train could have his train standing beyond the limits prescribed by his orders, still it is for the jury to say, upon the evidence, whether it was negligence to be beyond those limits on the occasion of the accident, and whether or not such negligence if any, contributed to the accident.</p> <p>4. New Trial — Impeachment of Witnesses. — As a general rule, subject to rare exceptions, a new trial will not be granted where the sole object is to discredit an adverse witness.</p> <p>5. Verdicts — Conflicting Evidence — Weight of Evidence — Negligence.— Where the evidence is conflicting as to the negligence of the defendant, or tlie contributory negligence of tlie plaintiff, tlie verdict of the jury will not he disturbed unless palpably erroneous. Nor will this court undertake to pass on the weight of evidence, or the credibility of witnesses. This is the province of the jury which the court will not usurp.</p>

. Error to a judgment of the Circuit Court of Rockbridge county, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error. This was an action of trespass on the case to recover damages for an injury inflicted on the plaintiff while working as a laborer in a rock quarry of the defendant. It appears that the plaintiff, L. 13.

The appellants filed a bill to review a former decree in a suit in chancery praying an issue devisavit vel non. The decree was adverse to appellants, all of whom hut one were parties defendants. Thereupon they and one other filed a bill of review. Decree in favor of the defendants to the bill of review. The complainants in that bill appeal. The opinion states the case.

<p>Error to a judgment of the Law and Chancery Court of the city of Norfolk, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Appeal from the State Corporation Commission.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Law and Chancery Court of the city of Norfolk, in an action of assumpsit. Judgment for the defendant. Plaintiff assigns error.</p> <p>The opinion states the cas.e.</p>

<p>Appeal from a decree in chancery of the Law and Chancery Court of the city of Norfolk. Decree for defendants. Complainants appeal.</p> <p>The opinion states the case.</p>

Judgment for the plaintiff. Defendants assign error. The evidence sufficiently appears in the opinion of the court.

<p>1. Appeal and Error — Amount in Controversy — Judgment for Quota of Stoclc. — Where the validity of a stock subscription for more than $300 is drawn in question by a judgment for an assessment upon said stock for less than $300, this court has jurisdiction of a'writ of error to said judgment.</p> <p>2. Statutes — Construction—Re-enactment.—Where the language of a constitutional provision and of a statute has been construed by this court and since that time there has been a general revision of the laws and a new constitution has been adopted, each of which retains the language construed, such construction will be taken to have been approved.</p> <p>3. Stock Subscriptions — Action by Receiver — Defenses—Code, Sec. 1103a. — In an action by a receiver, under Code, (1904), Sec. 1103a, to recover an unpaid stock subscription, the defendant is not confined to please by way of confession and avoidance, but may show that he never subscribed to or became a stockholder in the company. The object of the statute was to take away from courts of chancery the power to fix the liability of the stockholder, and to transfer all questions affecting the validity-of the subscription to the courts of common law, at the same time leaving the courts of chancery the ascertainment of the indebtedness of the company, the amount necessary for its liquidation, the percentage to be paid by each stockholder, and the appointment of a receiver to collect the assessments.</p> <p>4. Stock Subscriptions — Release of Subscription — How Proved — Case at Bar. — While a stock subscription in a joint stock company can only be released by the stockholders, or by the Board of Directors duly authorized by them, yet such release can be proved not only by thp records of the company, but also by other evidence showing that such subscription was in fact not regarded by the company as binding on it, and that the subscriber was not regarded by himself or by the company as a stockholder thereof. In the case at bar, the evidence was sufficient to warrant a jury in finding that the defendant’s subscription was not regarded by himself or the company as binding upon him, and the trial court should have so decided on the demurrer to the evidence by the plaintiff.</p>

Judgment for the plaintiff. Defendant assigns error. The facts of this case, which are undisputed, and the sections of the Code and charter and ordinances of the city of Richmond relied on to sustain the demand asserted by the city against the plaintiff in error, aré set out in the opinion of the judge of the Circuit Court as follows: “It appears from the facts developed in this case that defendant’s barge, ‘John Hagan,’ loaded with coal, from Philadelphia, Pa., to Richmond,…

<p>Error to a judgment of the Circuit Court of Elizabeth City county, in a proceeding by motion. Judgment for the plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

Judgment for the plaintiff. Defendant assigns error. The facts sufficiently appear in the opinion of- the court.

<p>Appeal from a decree in chancery of the Circuit Court of Northampton county. Decree in favor of defendants. Complainant appeals.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of tbe Circuit Court of Culpeper county, in an action of debt. Judgment for tbe defendant. Plaintiff assigns error.</p> <p>Tbe opinion states tbe case.</p>

<p>Appeal from a decree of the Circuit Court of Buckingham county, confirming the report of a master in chancery disallowing a debt sought to he established by the appellants against the estate of Thomas S. Hall, deceased.</p> <p>The opinion states the .case. -</p>

<p>1. Negligehtce — Driving on City Street — Lookout —Question for Jury.— A driver of a vehicle on tbe streets of a city may reasonably expect to meet people, young and old, in tbe street or crossing tbe street, and it is bis duty to keep a lookout for them in order to avoid injuring them. Whether or not an injury to a person on the street by colliding with such vehicle was proximately caused by the negligence of the driver in failing to keep a proper lookout is a question for the jury under proper instructions from the court.</p> <p>2. Negligence — Driving on City Street — Lookout—Negligence Per Se.■ — ■ In an action to recover damages for an injury inflicted on a young child by driving a wagon over it in the street, it is error to instruct the jury that if they believe from the evidence that at the time the child was struck and run over by the defendant’s wagon the driver was looking at a punching bag on the side of the street and therefore did not see the child, then they must find for the plaintiff (child), as it takes away from the jury the consideration of-other circumstances in the case, and tells them that the facts stated' constitute such negligence as entitles the plaintiff to a verdict.</p> <p>3. Instructions — Conflicting Instructions. — A defect in one instruction may be cured by a correct statement of the law in another where the court can see that, taking the instructions as a whole, the jury could not have been mislead by the defect, but if two instructions are inconsistent and contradictory the verdict will be set aside as it is impossible to tell whether the jury was controlled by the ^ood or the bad in arriving at a conclusion.</p> <p>4. Instructions — Erroneous—Presumption of Prejudice. — A misdirection or other mistake appearing in the record is presumed to have affected the verdict of the jury, and a judgment thereon will be reversed unless it plainly appears from the whole record that the error did not affect, and could not have affected, the verdict.</p> <p>5. Negligence — Contributory Negligence — Children—Avoiding Effect of Carelessness — Driving on City Street. — A child five years of age cannot be guilty of contributory negligence, and if, notwithstanding its carelessness, the driver of a vehicle in a city street could, by the exercise of reasonable care in keeping a lookout, have avoided coming in contact with and injuring it and failed to do so, his master is liable.</p>

Judgment for tbe plaintiff. Defendant assigns error. There was no agreement, of record, between tbe parties as to tbe time witbin wbicb bills of exception might be signed.

<p>1. COMMON CaRTERs-Liability for Baggage-Reasonable Time to Remove.-A common carrier of passengers is an insurer of its passengers' baggage during transportation, and fo~ such a time thereafter as affords the passenger a reasonable opportunity to remove it. What is such reasonable time depends upon the circumstances of the particular case, such as the character of the station, the opportunities afforded f or delivering such baggage when called for, and the like. From this duty to safely carry and deliver the common carrier can only be exonerated by the act of God or a public enemy. In the case at bar, a reasonable opportunity was not afforded the passenger to remove his baggage.</p> <p>2. Cosnvroic CAaruEa-Contracts Against Negligence-Limiting Liability-Case at Bar-Agreed Valuation of Baggage.-A contract with a common carrier whereby, in consideration of a reduced rate, a shipper agrees to accept an agreed value, less than the true value, of goods lost by the negligence of the carrier is invalid in this State, where it is declared by statute that "no agreement made by a trans.. portation company for exemption from liability for injury or loss occasioned by its bwn neglect or misconduct as a common carrier shall be valid." To limit is simply to exempt pro tanto, and hence is alike forbidden. It is immaterial that the contract was fairly entered into for a valuable consideration. It is voicl not because it is unreasonable, but because the Legislature has declared all such contracts invalid, whether reasonable or unreasonable. In the case at bar, a passenger was traveling on n mileage ticket pui-chased at a reduced price, and signed a contract providing that in case of loss or damage to baggage no claim should be made therefor in excess of $100. Baggage worth $600 was lost through the negligence of the carrier, and it was held liable for the full amount.</p>

<p>Error to a judgment of the Circuit Court of Nottoway county, in an action of trespass on the case. Judgment for tire plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>1. DEATH BY WRONGYUL Ac'r-Uontributory Negligence of Deceased-qase at .Bar.-In this action, which was to recover damages for death by wrongful act, or neglect, conceding the negligence of the defendant, the plaintiff's intestate was guilty of contributory negligence which bars recovery. He was struck at a station by a train he intended to board. When last observed he was approaching the track diagonally. He was walking along with his head down, and seemingly in a state of abstraction. He knew the train was coming He was going to meet it. It was plainly visible, and he had but to lift his eyes and it could have been seen and the accident have been avoided. He was a passenger and entitled to a high, degree of care from the railroad company, but this did not relieve him from the duty of taking ordinary care for his own safety.</p>

Judgment on demurrer to tbe evidence for tbe defendant. Plaintiff assigns error. Tbis w.as an action to recover for tbe death of tbe plaintiff’s intestate, occasioned by a collision'at a grade crossing with a passenger tráin of tbe defendant company. Tbe plaintiff’s intestate was driving a two-borse wagon down a road.

<p>Appeal from a decree in chancery of the Law and Chancery Court of the city of Norfolk. Decree for complainant. Defendant appeals.</p> <p>Tbe opinion states tbe case.</p>

chancery of the Law and Chancery Court- of the city of Norfolk. The collector of delinquent personal property taxes filed his petition in the chancery suit of Selden v. Salden eí als., pending in said court, in which the trustee holding the funds sought to be taxed was appointed, praying to he admitted a party, and that certain taxes he decreed and paid over to him. From a decree in favor of the collector, the trustee holding the fund appeals.

Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

^Appeal from a decree in chancery of the Chancery Court of the city of Richmond. Decree in favor of defendants. Complainant appeals. The opinion states the case.

<p>Error to a judgment of tlie Circuit Court of Princess Anne county, dismissing an appeal from the judgment of a justice of the peace.</p> <p>The opinion states the case.</p>

<p>1. Bribery — Policeman an Executive, Officer — Code, Bee. S7//A — A policeman is an executive officer within the meaning of Code, Sec. 3744, making it a felony to offer any gift or gratuity “to any executive, legislative, or judicial officer.’-’ This section embraces all inferior executive officers, whose duties are for the most part ministerial. The most important powers and duties of a policeman — to execute the laws — are executive, though if they were chiefly ministerial, he would still be within the meaning of the statute.</p> <p>2. Evidence — Admissibility—Bribery—Collateral Matters. — On an indictment for attempting to bribe an officer by offering to pay him a sum of money to release the accused and drop the case, it is not admissible to show that a young girl had been given whiskey to drink, and had had intercourse with a man at the house of the accused the previous night. Such evidence is entirely collateral to, and has no connection with, the alleged attempt to bribe the officer.</p> <p>3. Criminal Law — Admitting Illegal Evidence — Effect—Prejudice.—It an accused may have been prejudiced by illegal evidence, even although it is doubtful whether he was or not, a judgment on a verdict of conviction should he reversed.</p>

<p>1. Cuiminal Law — (Continuances—Discretion of Trial Court — Right to Gall for Evidence — Opportunity to Prepare for Trial. — A motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case, and, while an appellate court will supervise the action of an inferior court on such motion, it will not reverse a judgment on that ground unless such action is plainly erroneous. This discretion, however, of trial courts must be exercised with due regard to the constitutional guaranties of a fair and impartial trial to one accused of crime, and the right “to call for evidence in his favor!” One accused of crime should be accorded a fair opportunity to prepare for his defense, and to secure the presence of witnesses, if any he has. Such opportunity is not afforded when a prisoner is forced into trial in the absence of material witnesses, by issuing a summons for the witnesses then, and assuring the prisoner that if they arrive before verdict they can testify, and, if not, their testimony may he made the ba- • sis of a motion for a new trial.</p> <p>2. Appeal and Ebkob — Refusing Continuance — When Harmless Error. Although it may appear that a motion for a continuance on account of the absence of material witnésses for an accused should have been granted, yet if it is subsequently made to appear that no such witnesses in fact existed, the accused cannot complain that the motion to continue was erroneously over-ruled, as he has not been injured thereby, and a judgment will not be reversed for an erroneous ruling that could not have been prejudicial to the party complaining thereof. :</p>

<p>Error to a judgment of tbe Circuit Court of Eloyd county in a prosecution for a felony.</p> <p>The opinion states' the case.</p>

<p>1. CniMmAL Law' — New Trial — Evidence Certified — Rule of Decision. —Where the evidence in a criminal case is certified, and not the facts, the case is heard in this court as on a demurrer to the evidence by the plaintiff in error.</p> <p>2. Criminal Law — New Trial — After-discovered Evidence. — In order to justify the granting of a new trial on the ground of after-discovered evidence, the evidence must have been discovered since the trial. It must he evidence that could not have been discovered before the trial by the exercise of ordinary diligence. It must he material in its object, and such as ought, on another trial, to produce an opposite result on the merits, and it must not he merely cumulative, corroborative or collateral.</p> <p>3. Criminal Law — New Trial — After-discovered Evidence — Case at Bar. In- the case at bar the evidence as to the identification of the prisoner as the perpetrator of the crime charged in the indictment is very unsatisfactory, and the uncontradicted testimony of a detective, who was examined for the State, as to material facts tending to connect the prisoner with the commission of the crime, must have produced upon the minds of the jury impressions very injurious to the prisoner. The discovery after the trial of an intelligent, disinterested witness of high character, whose testimony, if true, indicates a purpose on the part of the detective to compass the conviction of the accused upon fabricated evidence, renders it proper to grant a new trial for after-discovered evidence.</p>

<p>Error to a judgment of tbe Circuit Court of Warwick county on a prosecution for embezzlement. To a judgment of conviction defendant assigns error.</p> <p>Tbe opinion states tbe case.</p>