Volume 105 — Virginia Reports

<p>Error to a judgment of tlie Corporation Court of the city of Alexandria, in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Railroads—Negligent Fires—Building near Right of ~Way—Contributory Negligence—Case at Bar.—The building of a wooden warehouse close to the line of a railroad is not per se such negligence as will relieve the railroad company from liability for its destruction by a fire started by its negligence. The owner assumes the increased risk from accidental fires, and cannot by such erection abridge the right of the company in the lawful use of its property, but the company is not exonerated from liability for an injury proximately caused by its own negligence. In the case at bar, which was decided on a demurrer to the evidence, the jury might ^ well have inferred that the fire was set by the negligence of defendant’s servants, and it cannot be said, as a matter of law, that the building of the warehouse or the manner of its use was negligence per se.</p> <p>2. Contributory Negligence—Burden of Proof.—In an action to recover damages for a negligent injury, the burden of showing contributory negligence on the part of the plaintiff rests on the defendant, unless it be disclosed by the plaintiff’s own evidence, or may be fairly inferred from all the circumstances.</p>

<p>1. Tkust Relations—Principal and Agent—Vase in Judgment—Rescission.—The evidence in this cause shows that a contract was made by the complainant with one of the defendants whereby the complainant authorized the defendant to sell all the timber on a given tract of land at $2,000, cash. Subsequently, defendant represented that the timber could not be sold at that price, and recommended a thirty-day option at $1,500; upon false representations as to facts about the timber, he induced complainant to confer authority upon him to “buy or sell” the timber at $1,200. Defendant assured complainant that he would put forth his best efforts to obtain the highest possible price for the timber, and complainant reposed the utmost confidence in his judgment and integrity. Upon the assertion of defendant that he had obtained purchasers at $1,250, complainant conveyed to them the timber. In fact, the purchasers had agreed to pay $2,000 for the timber, but this fact was kept secret from complainant. Upon discovery of the facts, complainant sued to rescind the contract fixing price at $1,200, on the ground of fraud. The-said defendant answered denying the fraud,, and setting up1 an option contract to purchase at the price fixed, and the purchasers answered and denied the right to rescind as far as they were concerned.</p> <p> Meld: </p> <p>There was a quasi relation of principal and agent existing between complainant and said defendant—a relation of trust and confidence, demanding the utmost good faith on the part of defendant, which he has not exercised, and the contract made with him must be set aside for fraud, but as the purchasers are willing to abide by their contract, a decree will be entered directing the payment of $1,950 to the complainant, and of $50 to said defendant for his services.</p>

v. French & Others, in which a decree was rendered adverse to the defendant, Allie Y. French, an infant, who prosecutes this appeal.

<p>1. Stbeet Railways—Power House—Location—Nuisance—Injury to Adjacent Property.—An electric street railway company is, under the terms of the Constitution of this State, a public service corporation. As such it has duties both of a public and of a private nature. In the operation of its cars in the transportation of freight and passengers it exercises a public duty, and if an injury is inflicted on another in doing what by law it may be required to do, and doing it without negligence, it is damnum absque injuria; and while an electric railway cannot be operated without a power house, still the selection of a site for the power house and the generation of power to propel its cars is the mere private business of the company with which the public has no concern. Such location is a matter of indifference to the public, and, in making it, the company stands on the footing of an individual, and is not entitled to any superior immunities. The grant of legislative and municipal authority to construct and operate its road in a city, does not confer authority to locate a power house where it would be a nuisance, nor authorize the company to molest or to injure the property of others by the operation of a power house, although operated without negligence. If injury to others is inflicted by the operation of such power house the company is liable.</p> <p>ON REHEARING.</p> <p>2. Nuisance—Electric Power—Legislative Authority—Privilege—Public Duty.—Legislative authority to a company to establish and maintain the business of a general railway and electrical company, and to erect, maintain and operate plants for the generation of electricity for its own use and for sale to other persons, does not authorize the establishment of such plants wherever the company may choose to place them, without reference to the property or rights of others. The right to erect such plant, by whatever name it be called, is a mere privilege and is not imposed as a duty. To escape liability for a nuisance created in the performance of an act authorized by the Legislature, it must appear that the particular act complained of, and immunity from its consequences, were within the contemplation of the Legislature. Damage occasioned by the location of a power house does not stand on the same footing as damage resulting from the operation of a railway along an authorized route. The power house can be placed where it will not be a nuisance while the railway must pursue the authorized route. The location of the power house is the exercise of a privilege to be enjoyed in such a manner as not to injure others. The operation of the railway, when once undertaken, is a public duty, and if carefully performed, no action lies, although damage may be suffered.</p> <p>3. Judicial Opinions—Interpretation—Particular Facts.—All opinions are to be considered in the light of the facts to which they apply. So reading Fisher v. Railway Go., 102 Ya. 363, it is not in conflict with the case -at bar.</p> <p>4. Appeal and Eebob—Granting Writs of Error—Injunctions.—It is the duty of this court to grant a writ of error prayed for unless the decision called in question is plainly right, and it is equally its duty to refuse an injunction which has been refused by an inferior court unless there was manifest error in refusing it. Malceley v. Railway Go. (not reported) affirmed.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, in an action of debt. Judgment for the plaintiff. The defendant assigns error.</p>

Langhorne, Trustee, and others, in which petitions were filed by Wm. V. Wilson, Trustee, and in his own right, and J. S. Diggs and F. W. Whitaker. From an adverse decree the petitioners appeal.

<p>Error to a judgment of the Circuit Court of Norfolk county in an action on the case for malicious prosecution. Judgment :for the defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Fredericksburg, rendered on a motion by the Standard Oil Company to be relieved from an erroneous assessment of a license tax. To a judgment overruling the motion, this writ of error was awarded. ■</p>

Judgment for the plaintiffs. Defendant assigns error. * The facts sufficiently appear in the opinion of the court.

<p>1. Municipal Corporations—Streets—Change of Grade—Damaging Private Property.—At common law municipal corporations were not liable to one whose land was not taken for consequential damages arising from the change of grade of a street, although his improvements had been made on his lot in conformity to a former grade, and such was the law in this State prior to July 10, 1902, when the present Constitution was proclaimed. Since that date it is unlawful to damage private property for a public use without just compensation, just as it was unlawful theretofore to take private property for a public use without just compensation.</p> <p>2. Eminent Domain—Damage to Property—Constitutional Provision— How Enforced.—The provision of the present Constitution which forbids damage to private property for a public use without just compensation is self-executing, and, there being no statute providing a remedy for the recovery of such compensation, the appropriate common law action may be brought therefor.</p> <p>3. Eminent Domain—Damage to Property—Constitutional Provision— Effect on Statutes.—Upon the adoption of a Constitution forbidding the damaging of private property for a public use without just compensation, all existing statutes inconsistent with the Constitution are thereby nullified, and subsequent inconsistent statutes are forbidden.</p> <p>4. Eminent Domain—Damage to Property—Constitutional Provision— Prior Enactments—Subsequent Taking.—The constitutional inhibition upon taking or damaging private property for a public use without just compensation applies to the time of the actual taking or damaging, not to a mere paper taking or damaging. The fact that an ordinance of a city council directing a change in the grade of a street which damages the property of an adjacent land owner was adopted prior to the proclamation of the Constitution can have no effect if the actual damage was done after such proclamation. It is the actual taking or damaging which the Constitution protects, and for which an action will lie.</p> <p>5. Municipal Corporations—Changing Grade of Streets—Effect of Constitutional Provision—Damages—Bight to Nominal Damages.—The new Constitution (1902) has not taken from the cities of the State-the right to raise or lower the surface of a street when necessity requires, nor made it dependent upon the will of the parties affected' thereby, but only provides that just compensation shall be made-for the damage done. Hence, if no damages have been done, no right has been violated, even though the established grade of the-street may have been changed. The gist of an action brought under the Constitutional provision against “taking or damaging” is not to establish a legal right, but to recover just compensation, substantial damages. Hence, there can be no recovery of nominal damages as such.</p> <p>6. Eminent Domain—Property Damaged but not Taken—Measure of Damages—Adjusting Property to Improvement.—Where private-property has been simply damaged by a public improvement, but no part thereof has been taken, the measure of damages is the diminution in the value of the property by reason of the improvement—difference between the fair market value of the property immediately before and after the construction of the public improvement. The cost of adjusting the property to the improvement, as,, for example, the cost of laying a new sidewalk, is a proper element to be taken into consideration in determining whether the property has been depreciated in value or not, but is not to be considered and assessed separately, independent of the enhanced value of the-property by reason of the improvement.</p> <p>7. Eminent Domain—Damage to Property—Expert Testimony.—Experts may give their opinions as to whether a particular piece of private property has been enhanced or depreciated in value by reason of a public improvement.</p>

<p>Appeal from an order of the State Corporation Commission.</p>

<p>1. Taxation—Power to Tax—Presumption—Exemptions.—The power and the right of the State to tax are always presumed, and an exemption is to be clearly granted. Mere silence is the same as a denial of exemption.</p> <p>2. Taxation—License Tax—Using Non-TaxaMe Property.—The fact that certain property is exempt from taxation does not exempt the lessee-thereof from the payment of a license tax for conducting a business-on or with such property.</p> <p>3. Norfolk City—License Tax—Ferry Companies.—The city of Norfolk has a general power of taxation, and may impose a license tax on a-ferry company which has an office in the city and operates a ferry between that city and neighboring cities and towns, although the-property with which the business is conducted is exempt from taxation by the city, and the State imposes no license tax on the-business.</p> <p>4. Municipal Corporations—Invalidity of Ordinance—Burden of Proof— Case at Bar.-—-When an ordinance is attacked on the ground that it is invalid, the burden is on the party alleging the invalidity to show it. In the case at bar, an ordinance of the city of Norfolk imposing-a license tax on all ferry companies plying between the city of Norfolk and certain designated points is assailed as lacking the constitutional requirement of uniformity in that it fails to put a like-tax upon ferry companies plying between Norfolk and other points, but it does not appear that these companies are not taxed under another ordinance under which a license tax could be imposed upon, them, nor that all other persons in the same class, or doing precisely the same business as the plaintiff in error, are not taxed alike, and hence the ordinance is not invalid.</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>1. Limitation op Actions—State Excluded if not Mentioned—Form of Suit—State as Beneficiary.—The statute of limitations does not run against the State, unless the statute expressly so provides, either as to debts or demands of a personal nature in its favor, or as to real estate held by it. This rule applies to all suits for the sole benefit of the State, although not brought in its name; and the courts will determine who is the real party in interest by reference not merely to the name in which the suit is brought, but to the facts as they appear in the record. The rule has no application to cases in which the State is not the real plaintiff, although the suit be brought in its name.</p> <p>2. Hospital por Insane—Agencies of State—Claims for Board, Etc.— Limitation of Actions.—The State hospitals for the insane, though incorporated, are agencies of the State in the performance of duties which are exclusively for public governmental purposes, and the statute of limitations (not expressly mentioning the State) does not run against claims for board and medical attendance furnished to pay patients of said hospitals. McClanahan v. 1Western Lunatic Asylum, 88 Va. 466, overruled.</p>

<p>Appeal from a decree of the Hustings Court of the city of Petersburg, in- a suit in equity. Decree in favor of complainants. Defendants appeal.</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 plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the (Circuit Court of the city of Lynch-burg in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error, error.</p>

Judgment for the plaintiffs. Defendant assigns error. This was an action of assumpsit by the purchaser to recover damages for breach of a contract to deliver coal as ordered. The contract is set -out in the opinion. In reply to a letter by the .purchasers, requesting shipments of coal as per contract, the sellers wrote demanding an indemnifying bond, as stated in the opinion.

<p>1. Ejectment—Title—Common Source.—If both plaintiff and defendant in ejectment claim the land in controversy from a common source, it is unnecessary for.either to trace his title beyond such source.</p> <p>2. Adverse Possession-—Vendor and Vendee—Severance of Relation-Notice to Vendor—Evidence of Relation.—The possession of an incomplete purchaser becomes adverse only when there has been a severance of the relation of vendor and vendee-by a distinct avowal on the part of the vendee that he is holding adversely and not in subordination to the title of the vendor, and notice of such disclaimer is brought home to the vendor.</p> <p>3. Ejectment—Evidence—Adverse Possession.—On the trial of an action of ejectment, where the defendant claims title by adverse possession, the record of a suit in chancery brought by one under whom the defendant claims title against the plaintiff’s vendor, seeking specific performance of an alleged- contract of sale of the land in controversy, and which was dismissed at the hearing, is relevant and proper evidence to establish the fact that the complainant in such chancery suit was claiming to hold as purchaser, and not as an adverse claimant, and was seeking a conveyance of the legal title.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City county in a proceeding by motion for a judgment for money. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Strikes—Injunction—Equity Jurisdiction.—Equity has jurisdiction on the ground of the inadequacy of the remedy at law, to enjoin strikers from illegally interfering with and molesting employers in the conduct of their business.</p> <p>2. Labor Unions—Right to Organise—Strikes—Freedom of Action—Arguments—Resort to Force—Injunction.—Laborers, as well as capitalists, may organize for their own protection and to further the interests of the laboring class. Freedom is the rule. It is not a criminal conspiracy for them to combine for the purpose of enhancing the rate of wages, or for improving their relations with their employers. They may refuse to work for any man or any class of men, or except upon given conditions. They may, by arguments and personal appeals, persuade and induce others in the same occupation to join their union, and, to that end, may extend to them strike benefits and transportation to other localities, and refuse to allow members to work in places where non-union men are employed, but they have no right to use force and violence, nor to terrify and' intimidate new. employees. When they resort to unlawful means to cause injury to others with whom they have no relations, contractual or otherwise, the limit permitted by the law is past and they may be restrained. Where the evidence presents such a case as to convince the court that employees are being induced to leave the employer by operating upon their fears rather than upon their judgments, or their sympathy, the courts will lend their aid to prevent it.</p> <p>3. Strikes—Picketing—Obstructing Streets—Intimidation.—“Picketing” by strikers is not unlawful so long as the number of pickets is not so great as to overawe or intimidate tbe non-union workmen, nor in any manner to obstruct tbe streets and sidewalks, provided the-pickets confine themselves to tbe use of persuasion and argument witb tbe non-union employees, and is not carried to an extent wbicb causes intimidation or wbicb amounts to coercion, compulsion or molestation in any form of either tbe non-union workmen or their employers.</p> <p>4. Strikes—Unlawful Conspiracy—Means Employed—Case in Judgment. A combination lawful in itself may become a conspiracy when the-purpose in view is to ruin or damage tbe business of another because of bis refusal to do some act against bis will or judgment, and all parties to such a conspiracy are liable for all overt acts-illegally done in pursuance thereof whether they are active participants or not. No persons, individually or in combination, havetbe right, directly or indirectly, to interfere witb or disturb another in bis lawful business or occupation, or to threaten to do so for the-sake of compelling him to do some act wbicb in bis judgment bis own interest does not require. In tbe case in judgment, tbe means-employed by tbe strikers to induce new employees to quit their-employment and others to refuse to take employment were not unlawful. Tbe charge of bribery is not sustained; tbe conduct of the pickets was neither violent nor threatening, but was quiet and orderly; and tbe only violence shown was not attributable to the-strikers as such, nor tbe result of employment of a non-union man..</p> <p>5. Bribery—Inducing Employees to Quit Work—Injunction—Equity Jurisdiction.—Bribery is not only unlawful, but criminal, and when, resorted to witb a malicious purpose to injure a third person in bis business, property or personal liberty is ground for equitable interposition by injunction, if practiced in such a manner and to such, an extent that tbe party injured, or intended to be injured, has not an adequate remedy at law for bis injuries. In tbe case in judgment tbe charge of bribery is not sustained.</p> <p>6. Equity Practice—Preliminary Injunction—Dissolution—Continuing' Case Till Searing.—While a preliminary injunction to prevent strikers from molesting complainants in tbe conduct of their business may-have been rightly dissolved on tbe case as it stood when tbe motion was made, it is entirely .proper for tbe court to continue tbe case on tbe docket witb right to complainants to move for further injunctions pendente lite, and reserving to them tbe right to such relief as they may show themselves entitled to upon tbe final bearing..</p>

<p>Error to a judgment in favor of the plaintiff in an action of trespass on the case in the Circuit Court of Elizabeth City comity. Defendant assigns error.</p>

<p>1. Fiduciaet Debts—Commissioner—Guardian de Facto—Constructive Trustees—Case in Judgment.—Where two commissioners are appointed to sell the lands of an infant and collect the proceeds, with power in either to act, and only one of them gives the bond and acts under the decree, and he, without authority, pays a part of such proceeds to the other and takes his bond therefor, and pays the residue upon debts due by the other, who is the statutory guardian of the infant, upon the death of such other, the amount of such payments cannot be set up as a debt due by him as commissioner nor as guardian de jure, or de facto. He never acted or received the fund as commissioner, and the money being the proceeds of the sale of an infant’s land could not, under Code, sec. 2622, have been lawfully paid to him as guardian, and, as he had no right to receive the fund as guardian de jure, he cannot be held liable as guardian de facto. He became, upon receipt of the money, a constructive or de facto trustee for the infant, but, upon his death, the claim for the fund is not a preferred debt under see. 2660 of the Code, as the statute does not contemplate a preference in favor of debts of constructive trustees. The debt is not a mere personal claim of the commissioner who made the wrongful payment, but should be audited in favor of the infant.</p>

<p>1. Appeal and Ebbob—Premature Appeal—Suit for Alimony—Decree for Temporary Support and Order of Reference.—Upon a bill filed by a wife against her husband to secure a permanent separate maintenance for herself and infant daughter, it is premature to allow an appeal from a decree overruling defendant’s demurrer to the bill, and, without deciding any question in the cause, awarding the plaintiff a pendente lite allowance' for support, costs to date, including attorney’s fee, and referring the cause to a commissioner to ascertain the value of the estate and income of the husband, and what would be a reasonable allowance to the wife for the support of herself and her child, and for fees to her counsel. The cause should be proceeded with further in the trial court, and the rights of the parties be there adjudicated, before an appeal is allowed. This court will not undertake to adjudicate the rights of the parties in advance of a decision of the trial court.</p>

<p>Error to a judgment of the Circuit Court of York county in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p>

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

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

The case of Whitlock v. Hawkins, Com’r, is ail appeal from a decree of the Law and Equity Court of the city of Richmond,, refusing an injunction against the defendant to prevent him from extending taxes based on the recent assessment mentioned in the opinion below. The case of O'Flaherty v. Commonwealth is a writ of error to a judgment of the Hustings Court-, of the city of Richmond, refusing to correct an alleged erroneous-assessment.

<p>1. Option Under Seal to Sell Stock—Consideration—SpeeiftG Performance.—An- option under seal for the sale of shares in a joint stock company is a binding offer from which the promisor cannot recede during the time stipulated for in the option, and, if accepted during that time, constitutes a contract the specific performance of which a court of equity will compel. The option is in the nature of a continuing offer to sell, and, being under seal, must be regarded as made upon a sufficient consideration, and no proof to the contrary will be received at law or in equity.</p> <p>2. Option Under Seal—Recited Consideration—Contradiction—Estoppel.—The recited consideration in a deed can never be questioned or contradicted (1) for the purpose of showing that it was not founded on a valuable consideration, and so defeat it; or (2) for the purpose of raising a resulting trust in the grantor. In the absence of fraud or mistake, the recital must be treated as conclusive for the purpose of giving effect to the operative words of the instrument. This is certainly true as to' a third person, who, in reliance upon such recital, has acquired rights under the instrument. An acknowledgment in a written contract of an act done which is. essential to the validity of the contract is conclusive upon the party-making it.</p>

<p>1. Street Railways—Negligence—Persons on Track—Lookout—Instructions.—It is tbe duty of tbe servants of a street car company, in the exercise of ordinary care, to keep a proper lookout to avoid doing injury to persons while upon its tracks, and if, notwithstanding the fact that such care has been used, the presence of a person on the track is not observed, and he is injured by a car of the company, the company is not liable, and it is misleading and erroneous to go further and tell the jury that “if the agents of the company in the exercise of proper outlook and care failed to observe his persistency in remaining on the track, and did not then exercise all reasonable care to avoid accident, the defendant is liable in damages for the injury thus sustained.”</p> <p>2. Street Railways—Person on Track—Contributory Negligence—Instructions as to Ordinary Care.—It is the duty of one walking on a street railway to exercise ordinary care and caution for his own protection, and if he fails to exercise the ordinary care and caution which are to be expected of him at the time and place when and where-he is injured, he is not entitled to recover, and it is erroneous and misleading to instruct the jury that he is entitled to recover unless there was a greater want of ordinary care and caution on his part than was reasonably to be expected of him under all the circumstances.</p> <p>3. Street Railways—Lights—Contradictory Evidence.—Where the negligence charged against a street railway company is the failure to furnish needed lights on the car which inflicted the injury, the positive statement of a witness for the defendant company that the headlight on the car was burning, and of a witness for the plaintiff that the lights within the car were burning, but that he did not look to see about the headlight, is not so far contradicted by the evidence of the plaintiff, who stated that he looked and saw no lights, as would warrant a jury in finding a verdict for the plaintiff on the ground that there was a failure of proper care to furnish needed lights.</p> <p>4. Eviednce—Order of Introduction—Ruling of Trial Court.—The refusal of the trial court to allow further evidence in chief to he introduced after the evidence on both sides has been closed, will not be reviewed by this court when no reason is shown for not having introduced it at the proper time.</p>

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

All matters of law and fact were submitted to the court for its determination without the intervention of a jury. Judgment for the plaintiff subject to the defendant’s set-offs. Plaintiff assigns error in the allowance of set-offs.

<p>Error to a judgment of the Circuit Court of Elizabeth City county in a condemnation proceeding. Judgment for the defendant for damages deemed excessive by the plaintiff. Plaintiff assigns error.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Elizabeth City county. Decree for complainant. Defendant, appeals.</p>

<p>1. Corporations—Change of Name—Identity of Legal Entity—Liability for Debts.-—-If an incorporated company contracts a debt, and thereafter, pursuant to a resolution of the board of directors, duly approved by the stockholders, the charter is amended by the State Corporation Commission by simply changing the name of the company, the new company is liable for the debt so contracted aforesaid. The latter company is but a continuation of the former, and the two names are descriptive of the same legal entity. This conclusion is strongly corroborated in the case at bar, by a partial payment made on said debt by the company under its new name.</p>

<p>1. Stjkeet Railways—Reduced Rates—Construction of Ordinance— “Pupils in Some School."—The words, “pupils in some school,” in a city ordinance requiring a street railway company to furnish such persons reduced transportation under certain conditions, will not be restricted to pupils attending institutions of a subordinate character which teach elementary learning, where it appears that, when the franchise was granted the company in its proposal used the words “children going to and returning from school,” and they were stricken out by the city council and the words “pupils in some school” substituted in their place, and where it appears that for a number of years after the franchise was granted the company did not so restrict them, but accorded the reduced rates to pupils attending a business college.</p> <p>2. Contracts—Construction—Practical Construction.—Where the proper construction of the language of a contract is doubtful and the parties themselves have in practice adopted a particular construction, the courts will adopt that construction.</p> <p>3. Penal Statutes—Sow Construed,.—While penal statutes are to be strictly construed, yet the intention of the Legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the Legislature. It is the duty of courts to adopt that sense of words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the Legislature.</p>

<p>Error to a judgment of the Hustings Court of the city of Eichmond in prosecution for violation of a city ordinance. Defendants, having been found guilty, assign error.</p>

<p>Error to a judgment of the Circuit Court of Henrico county in an action of trespass on the case. Judgment for the plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of Prince George county in an action of assumpsit. Judgment for the plaintiff' Defendant assigns error.</p>

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

<p>Appeal from decrees in chancery of the Oircuit Court of Powhatan county. Decrees in favor of defendants. Complainant appeals.</p>

<p>1. Malicious Pbosecution—Evidence—Conversations Between Plaintiff and Bis Counsel After Prosecution Begun.—In an action for malicious prosecution the details of the private and confidential conversations between the now plaintiff and his counsel touching his defense to the criminal prosecution set on foot by the now defendant cannot be given in evidence. They are mere self-serving declarations, not explanatory of any fact in issue, nor relevant to the- issue, which was whether the now defendant had probable cause for believing the now plaintiff guilty of the crime charged.</p> <p>2. Malicious Pbosecution—Evidence—Probable Cause—Uncommunicated Statements.—In an action for malicious prosecution where the issue is the existence of probable cause, statements made before the criminal prosecution by the now plaintiff to a subordinate employee of the now defendant, who transacted all business with the said defendant through the said plaintiff, tending to show that said plaintiff claimed bona fide to be the owner of the money which he was charged with having embezzled, but which statements were never communicated to the now defendant, are not competent evidence. Such statements might be very material in defense of the charge of embezzlement, but would not be material to show want of probable cause for setting the prosecution on foot.</p> <p>'3. Evidence—Admissions—Receipts.—The rule that a receipt is only prima facie and not conclusive evidence of payment applies only where there has been an error in the amount or a mistake as to the conditions under which the receipt is given. It has no application to a distinct independent admission.</p> <p>-4. Malicious Pbosecution-—Evidence—Admissions—Estoppel.—When an agent has time and again signed statements to the effect that his accounts were settled in full and that he had received full payment of all compensation due bim, be will be thereafterestopped to deny their truth when his principal, in reliance upon their truth, has acted with reference to other matters with him. If upon the faith of their truth the principal has charged the-agent with embezzlement, the agent will not be permitted to deny their truth for the purpose of showing want of probable-cause in an action by him against his principal for maliciously prosecuting him for embezzlement.</p> <p>5. Malicious Pbosecution—Probable Cause—Evidence—Disclosures-Subsequent to Prosecution.—On a charge of embezzlement it is. pertinent and material for the defendant to show that he, in good faith, claimed to own the money he is charged with having embezzled, but, if upon acquittal, he sues his employer for having maliciously prosecuted him for the embezzlement, he will not be permitted to set up a prior undisclosed claim of ownership. The question here is, did the employer have probable cause-to believe the agent guilty; and all the evidence of claims asserted by the agent for the first time after the termination of the criminal prosecution and previously unknown to the employer, is irrelevant and tends but to confuse the minds of the-jurors.</p> <p>6. Malicious Pbosecution—Probable Cause—Innocence of Plaintiff.— In an action for malicious prosecution it is error to instruct the-jury that “they are not to determine the guilt or innocence of the-plaintiff, but the question of his guilt or innocence may be considered upon the question of probable cause.” The guilt or innocence of the plaintiff is not an issue in the cause, and the-judgment of acquittal is only admissible to show the termination of the prosecution. “Probable cause” is to be determined as of the time when the action complained of was taken.</p> <p>7. Malicious Pbosecution—Damages—Wealth of One Defendant.— In an action for malicious prosecution against a corporation and two of its agents, when the only evidence as to the pecuniary worth of the defendants was a statement of a witness that the corporation defendant was “the biggest sewing machine corporation in the world and the wealthiest,” and there was no evidence_of any damage of any kind sustained by the plaintiff, nor of express malice on the part of the defendants, it was error to-instruct the jury that “the wealth, if any, of defendants” was; a proper element to be considered by them in estimating the: damages which they might award by their verdict.</p> <p>8. Malicious Prosecution—Malice—Punitive Damages—Wealth of Defendant.—In an action for malicious prosecution, punitive damages may be allowed where express malice is shown, and evidence of defendant’s wealth and pecuniary ability is admissible as a means of determining what would amount to punishment.</p> <p>9. Malicious Prosecution—Essentials—Case at Bar.—To sustain an action for malicious prosecution the plaintiff must allege and prove a prosecution or proceeding against him which has terminated not unfavorably to the plaintiff; that it was instigated or procured by the co-operation of the defendant; that it was without probable cause, and that it was malicious. In the case at bar the only question is whether the defendant had probable cause for instituting a prosecution of the plaintiff for embezzlement, and, upon the evidence treated as upon a demurrer to the evidence by the defendant, it is held that he did.</p> <p>10. Malicious Prosecution—Probable Cause—Burden of Proof—Malice. In an action for malicious prosecution the burden is on the plaintiff to show want of probable cause on the part of the defendant in setting on foot the criminal prosecution, and while malice may be inferred from the want of probable cause, the latter will never be inferred from the former, no matter how much malice is shown. What constitutes probable cause is a question for the court; but where the evidence is conflicting it is for the jury to decide, under proper instructions from the court, whether or not there was “probable cause.”</p> <p>11. Appeal and Error—Cross-Errors—Judgment Reviewed—Moot Questions.—Under Rule IX this court will not consider cross-errors assigned by a defendant in error which do not look to the reversal, modification or correction of the judgment under review, but which merely present for decision questions which may or may not arise at a subsequent trial of the case.</p>

<p>1. Equity—Jurisdiction—Inadequate Remedy at Law—Future Interests. Equity has jurisdiction of a bill which seeks not only to recover back taxes paid on a fund set apart by contract, but also to determine the rights of the parties in the future under the contract. The remedy at law, in such case, is not adequate and complete.</p> <p>2. Taxation—Interest in Lieu of Dower—Tax on Principal—Who to Pay Annuities—Income.—Where a husband, by ante-nuptial contract, gives to his wife, in lieu of dower, the “interest” on ¡¡>3,500, part of his estate, to be paid to her annually so long as she survives him, and she accepts it, the taxes on the principal sum must be paid by the widow. This is not the gift of an annuity, though payable annually, but of the interest or income from a specified sum, and the widow must pay the tax on the principal just as she would be compelled to do when dower is assigned in kind. An annuity is usually chargeable only on the person of the grantor, but interest on a fund is income.</p>

<p>1. Foreign Corporations—Personal Liability of Officers—Code, Secs. 1104, 1105—Attachments.—The provisions of section 1105 of the Code, making officers, agents and employees of foreign corporations personally liable for the debts of such corporations as fail to comply with the provisions of section 1104, requiring them to have an office in this State, where claims of residents may be audited, and to designate a resident agent upon whom process may be served and who may enter an appearance for it, has no application to officers, agents and employees who are non-residents of the State and who have never been present in the State engaged in carrying on the business of the company. Section 1105 was only intended to include such officers, agents and employees as are, or have been, in this State aiding in carrying on the prohibited business. An attachment, therefore, for a debt of a foreign corporation which has failed' to comply with the provisions of section 1104, will not lie against the property of the non-resident president of such corporation, who was never a citizen or resident of the State, nor present in the State carrying on the prohibited business.</p> <p>2. Statutes—Construction—Non-Residents.—Statutes derive their force and authority from the Legislature, and, as a necessary consequence, their effect will be limited to the boundaries of the State. Where any other construction is possible, a statute will not be so construed as to impose liabilities upon non-residents over whom the State has no jurisdiction, especially when such imposition, if it could be enforced, would result in gross injustice.</p>

In each of the three suits Conway E. Sands, trustee, and W. J. Anderson were defendants. Erom an adverse decree they appeal.

<p>1. Trusts—Sale of Contingent Interest—Deposit of Funds—Loss of Land—Suit by Purchaser—Case in Judgment.—A testator devised land to B. for life, with remainder in fee to his issue, if any, and if none, to testator’s heirs. Subsequently in a suit by B. to construe the will, determine the interests of the respective parties, and apply B.’s share to the payment of certain liens thereon, the whole fee-simple estate in the land was sold to T., and-B.’s share was paid to his creditors, and the value of the interest in remainder was deposited in bank on compound interest, to be thereafter paid to the parties entitled thereto. The heirs of the testator were parties to this suit and consented to the sale. In a subsequent suit to clear the title to part of the land it was held that the proceedings in the first mentioned suit were void as to the children of B. The heirs of the testator were not parties to the last mentioned suit. An appeal was taken from that decision to this court, which affirmed the decree of the trial court. Thereupon the present suit was instituted by the administrator of T., the purchaser of the land, to recover the money deposited in bank on the ground that a trust attached thereto in consequence of the loss of the remainder in the land, and the trial court so held, although B. is still living.</p> <p>Held: This was error, as it cannot be told during the lifetime of B. who will be entitled to the remainder. in the land. He may leave no issue, and in that event the remainder will go to the testator’s heirs; but they are estopped to claim it, as they were parties to the first mentioned suit and consented to the sale. The fund in bank should be held until the death of B., when it can be known with certainty to whom it should be paid.</p>

<p>1. Right of Fishery—Cape Henry Syndicate—Acts 1865-’66, p. 160.— The act of the General Assembly, enacted February 28, 1866, entitled “An act respecting, amending and re-enacting the first and second sections of chapter 62 of the Code of 1860” (Acts 1865-’66, p. 160), under which the conveyance was made by the Board of Public Works to the predecessor in title of the Cape Henry Syndicate, does not authorize the conveyance of, nor did the board attempt to convey an exclusive right of fishing in the waters in front of the land granted beyond low-water mark.</p> <p>2. Right of Fishery—License—To What Waters Applicable—Code, Secs. 2120, 2086.—Section 2120 of the Code of 1887 prohibiting, in certain designated water, oyster planting, or fishing in any manner which requires the placing of stakes which would interrupt or hinder any person in his rights of fishery, is in conflict with and, therefore, probably repealed by section 2086, as amended by Acts 1899-1900, pages 707-710, by which amendment a license is authorized to be issued to fish “in any of the waters of this Commonwealth, or waters within the jurisdiction of this Commonwealth.”</p> <p>3. Fishing—Effect of Excepting Certain Streams—Code, Sec. 2086.— The exemption of certain streams from the right of fishing therein, made in section 2086 of the Code, applies only to the streams named. The maxim “Expressio unius est exclusio alterius” applies here. The act of March 1, 1900, extending the provisions of section 2086 to all of the waters within the jurisdiction of the Commonwealth, and exempting certain rivers from its operation, and expressly repealing all acts in conflict therewith, must be taken as intended to cover the entire subject, and to repeal all acts in conflict therewith.</p> <p>4. Fishing—Code, Sec. 2120—Case in Judgment—License—Obstruction. Even if section 2120 of the Code of 1887 be considered as still in force, the record does not show that appellees have taken out the-license required by law to entitle them to fish with “haul seines, hauled in other manner than hy hand,” nor does it show that the* location of appellant’s net interrupts or hinders the appellees in the exercise of any right of fishery.</p>

<p>Error to a judgment of the Circuit Court of Orange county, 'in an action of debt. Judgment for the defendant. Plaintiffs .assign error.</p>

<p>1. Appeal and Error—Petition for Appeal—Grounds of Appeal.— While the assignment of error relied on in the petition for an appeal in this cause is not as specific as it might have been, it is clear that the error complained of is the refusal of the trial court to permit an amended and supplemental bill to be filed, and is sufficient. The petition gives a history of the proceedings in the cause, the substance of the allegations of the original and amended bills and of the evidence rejected because of a supposed variance at the trial of an issue awarded on the original bill, and then “submits” that in the light of the evidence there was no such variance sought to be set up by the amendment as justified the trial court in refusing the amendment and dismissing the bill.</p> <p>2. Equity Pleading—Variance Between Allegation and Proof—Amendments.—Where one partner has been induced to accept from another a given sum for his interest in the firm, by reason of a false statement in writing made by that other as to the state of accounts of the firm, and the former sues to set aside the sale, and charges in his bill that the false statement was on a separate paper, but it develops in the proof that it was in one of the books of the firm, he may amend his bill so as to conform to the facts, if, indeed, the variance is material.</p> <p>3. Equity Pleading — Amendments — Variance — Sworn Pleadings.— Amendments of equity pleadings so as to conform them to the proofs are freely allowed if promptly made after the necessity arises and before a final decree. This is especially true when the amendment is slight, and no new issues are made. Even sworn bills may be amended when necessary to prevent a failure of justice, though such amendments are allowed with great caution.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, in an action of assumpsit. Judgment for the defendant-Plaintiff assigns error.</p>

<p>1. Equity—Failure to Waive Oath in Bill—Answer—Post-Nuptial Settlement.—Prior to 1884 all answers were under oath, and while in 1884 the statute was passed modifying the effect of answers as evidence in chancery suits by allowing the complainant to waive an answer under oath, then, as now, a post-nuptial settlement of a husband, indebted at the time it ^as made, was, as against his creditors, fraudulent and void, and was taken as voluntary, unless those who claimed under it could show by clear and satisfactory evidence, apart from the answer, that it was made for a valuable consideration.</p> <p>2. Intebest—From, What Time Computed—Sums Innocently Received— Demand.—While it is the general rule that he who has the use of another’s money must pay interest upon it from the time he receives it until he repays it, unless there be an agreement, express or implied, to the contrary, this rule is not enforced in equity without discrimination, and a court of equity will not hold a person liable for interest upon a sum of money innocently received and believed to be his own, until there has been a demand and a refusal to pay.</p>

<p>1. Master and Servant—Obvious Danger—Contributory Negligence— Street Railways—Case at Bar.—A motorman on a street car, although his caí has the right of way and he is acting under orders of his conductor, cannot go forth to meet a car approaching on the same track from an opposite direction at a high rate of speed, and in full view for over half a mile, and continue his course, regardless of the heedlessness of those in charge of the approaching car, until a collision is inevitable, and then recover from the company damages for the hurt received in the collision. His own contributory negligence bars a recovery. He was under no obligation to obey an order which he knew would result in a collision. A servant cannot escape the result of his own contributory negligence on the ground that he is acting under orders from the master, when obedience to those orders involves exposure to danger so manifest that no prudent person would incur the risk.</p>

<p>Appeal from a decree in chancery of the Circuit Court of the city of Newport News. Decree for the complainant. Defendant appeals.</p>

<p>Error to a judgment of the Corporation Court of the city of Danville in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree in chancery of the Corporation Court of the city of Lynchburg. Decree for complainant. Defendants appeal.</p>

<p>Error to a judgment of the Circuit Court of the city of Alexandria, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Scott county, in an action of debt. Judgment for the plaintiff. Defendants assign error.</p>

<p>Error to a judgment of the Corporation Court of the city of Bristol, in an action on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Pleading—Remanding to Rules—Amending Declaration—Process.— Where, on motion of the defendant, an action at law is remanded to rules for amendment of the plaintiff’s pleadings, the proper practice is for the plaintiff to file his amended declaration at the first rules after the order of the court remanding the case, and then, without new process, for the cause to be regularly proceeded in at the rules in the manner provided by Code, secs. 3239, 3240.</p> <p>2. Appearance—Process— Waiver— Continuance. —• Appearance to the action, or a general appearance, is a waiver of all questions of the service of process, and is equivalent to personal service. In the case at bar the parties “came by their attorneys,” and the cause was “continued until the next term.” Objection for want of process could not be made thereafter.</p> <p>3. Pleading—Declaration—Amendment—Sufficiency.—The sufficiency of an amended declaration, which does not refer' to nor make the original declaration a part of it, must be determined by its own averments.</p> <p>4. Pleading—Demurrer to Declaration—What Not Considered.—In considering a demurrer to a declaration an unsealed contract upon which it is founded, but which is not made a part of the declaration, cannot be looked to.,</p> <p>5. Evidence—Admissibility—Ceneral Objection.—A general objection to the admission in evidence of a bill of lading on the ground that it does not ’sustain the allegations of the declaration is properly overruled where portions of it do sustain such allegations and are admissible in evidence.</p> <p>6. Carriers—Bill of Lading-—Live Stock—Unaccompanied—Waiver.— The provisions of a bill of lading of live stock that the shipper is to feed and water them is waived by the carrier when he writes across the face of the bill of lading: “To be fed and watered at the expense of the shippers. No one in charge.” Besides, when the carrier knows that no one accompanies the stock, it is his duty to look after and care for them as if there were no contract with the shipper.</p> <p>7. Demurrer to Evidence—Inferences.—While the evidence may not distinctly establish the facts necessary to enable a plaintiff to recover, if their existence may be justly inferred from the facts proved, this is all that is necessary on a demurrer to evidence by the defendant.</p>

<p>1. Municipal Coepoeations—Local Assessments—Repeal of Charter—One of a Class—Uniformity.—An assessment to meet the costs of a local improvement to a street' cannot be enforced against one property owner of a class, when all of the class originally liable to the assessment cannot be compelled to pay the assessment because of the delay and failure of the corporate authorities to perfect its assessment against all the properties before the adoption of the Constitution of 1902, which expressly took away all right to make and levy such assessments, as such assessment would not be uniform, as required by law. It would compel one owner not only to pay the special assessment on his property, but also to contribute his proportion of the general taxation necessary to make up the deficiency occasioned by failure to perfect, while the power existed, special assessments against the property of others of the same or similar class.</p> <p>2. Municipal Coepoeations—Local Assessments—Repeal of Charter Powers—Subsequent Enforcement of Prior Assessments.—The Constitution of 1902 repealed, without reservation, the provisions of the charters of all municipal corporations authorizing the making of special assessments upon abutting lands or lots for the purpose of paying the costs of local improvements to the streets of such corporations, and the right to make or to enforce the payment of such assessments, though made before such repeal, ceased with such repeal.</p>

<p>1. Intoxicating Kiqtjoks—Social Gluts—Revocation of License—Procedure—Repeals ty Implication.—The provisions of section 4 of the act of February 23, 1898 (Acts 1897-’98, p. 479), prescribing how the charters of social clubs may be revoked for violation of the revenue laws of the State, relating to the sale of intoxicating liquors, is not repealed by section 144 of the general revenue law (Acts 1902-’03-’04, pp. 155 to 228), nor by section 51 of the general law concerning corporations (Acts 1902-’03-’04, pp. 437-484). The latter acts do not expressly repeal the former, and there is no necessary conflict between them. Repeals by implication are not favored. The special remains an exception to the general law, and social clubs may be proceeded against as formerly for violation of their charter privileges.</p> <p>2. Intoxicating Iuquobs—Social Gluts—Revocation of License—Notice—Return.—While social clubs are entitled to ten days’ notice of a motion to revoke their charters, the notice is not required to be returned to court or to the clerk’s office before the date of hearing the motion.</p>

<p>Error to a judgment of the Circuit Court of Pulaski county, in an action of trespass on the case. Judgment for the plaintiff for $6.000.00. Defendant assigns error.</p>

Judgment for defendants. Plaintiff assigns error. After all the evidence was in, the court, on the motion of the plaintiff and of the defendants, respectively, gave the following instructions: PnAIUTIEE's InSTBUOTIOWS. “(1) The court instructs the jury that all written instruments should be construed according to their true intent and meaning, and further tells the jury that it is the province of the court to determine the true intent and meaning of all written instruments…

Judgment against one defendant, who assigns error as to that judgment only, and not to the judgment in favor of the other defendant. The opinion sufficiently states the facts.

<p>1. Limitation of Actions—Ejectment—Wife’s Common Law Lands— Action Toy Husband and Wife—Survival of Wife.—An action of ejectment, in the name of husband and wife, to recover the common law lands of the wife, must, if the husband be living at the time of trial, be brought within the statutory period, without deduction, on account of the coverture of the wife; but if the husband be dead and the action survives to the wife, the period of her coverture is deducted, provided the whole time elapsing from the time the right of action accrued until action brought does not exceed twenty years.</p> <p>2. Ejectment—-Plaintiff’s Title—Title of Possession—Burden of Proof.— Generally a plaintiff in ejectment must recover on the strength of his own title and not on the weakness of that of the defendant, but a party ousted of a peaceable possession may recover upon his possession merely, and his right of recovery can only be resisted by the defendant who ousted him showing either that he has title in himself or authority to enter under the title.</p> <p>3. Instructions—Harmless Error—Case at Bar.—Where the proof is clear that a married woman purchased land in 1874, and there is no proof tending to show that it was her equitable separate estate, it is harmless error to tell the jury, in an instruction, that if she purchased the land prior to 1878 it was her common law land, as the first act creating statutory separate estates was not passed until April 4, 1877.</p> <p>4. Freehold—Disclaimer—Disputed Boundaries—Compromise.—A disclaimer of a freehold estate can only be made in this State by deed, or in a court of record. In the case of disputed boundaries, the parties may agree upon a line, by way of compromise, and if they take and hold possession up to that line for the requisite statutory period the mere possession will, in time, ripen into-title; but no mere parol agreement to establish a boundary and thus exclude from the operation of a deed land embraced therein can divest, change, or affect the legal rights of the parties growing out of the deed itself.</p> <p>5. Ejectment—Case at Bar—Verdict Contrary to Evidence.—-The verdict in the case at bar, which is an action of ejectment, is not contrary to the evidence. The plaintiff shows title by adverse possession for the statutory period, and the defendants do not trace their title to the Commonwealth, nor does it appear that they, or those under whom they claim, had any title to the land in controversy when they entered upon it, nor continuous and exclusive possession of any part of it for ten years prior to the institution of this action.</p>

<p>1. Pleading—Joinder—Assumption of Another’s Debt—Motion for Judgment—Effect of Code, Secs. 2840, 2860, 2415, 3258a—Case at Bar—Equitable Relief.—Where a debtor sells and conveys property to a purchaser, who, as part of the consideration, covenants that he will pay certain debts of his grantor, and the purchaser conveys to a second purchaser, who, likewise, as a part of the consideration for the conveyance to him, covenants that he will pay the said debts of the original grantor, a motion for a joint judgment at law in favor of such creditor against the original debtor and each of such purchasers, who have successively covenanted to pay the debts, cannot be maintained. Not under Code, section 2840 (Statute of Frauds), because that statute does not confer a right of action, but only gives a right of defense in certain cases; nor under Code, section 2860, for the creditor is neither assignee nor beneficial owner of the debts which the successive purchasers have promised to pay, but the true owner of the debt of the original debtor, and there is a lack of both privity and consideration as to the purchasers. If the purchasers have assumed the position of principals by their covenants, then the creditor’s remedy is in equity by means of equitable subrogation, and not at law. Nor can the creditor maintain this action under Code, section 2415, as the primary object of the successive purchasers was not the security or benefit of the creditor, but the indemnity of the original debtor. Nor is the plaintiff (creditor) in this action aided by the provisions of Code (1904), section 3258a, as this statute does not confer jurisdiction of an action which did not otherwise exist, but only provides for abatement as to parties improperly joined, plaintiffs or defendants, in a suit brought in proper form. A demurrer to a notice for a judgment joining the original debtor and the two purchasers should be sustained.</p>

<p>1. Master and Servant—Negligence—Obvious Bangers.—A servant confronted by an open and obvious danger owes it to the master, as well as to himself, to avoid it, and if he fails to do so and is injured in consequence thereof, he cannot recover of the master.</p> <p>2. Appeal and Error—Instructions—Facts Not Warranting Recovery.— This court will not consider the rulings of the trial court on instructions when under no instructions would the plaintiff have ' been entitled to recover on the facts disclosed by the record.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Smyth county. From a decree dismissing the bill, the complainant appeals.</p>

<p>Original application for mandamus to State Corporation Commission.</p>

<p>Error to a judgment of tlie Circuit Court of the city of Richmond, in an action at law on an insurance policy. Judgment for the defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Brunswick county, in an action of case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Corporation Court of the city of Bristol, in a suit in chancery for partition. Decree in favor of defendants. Complainants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county confirming a master’s report on the administration of a fund. Appeal by intervening petitioner.</p>

<p>1. Appeal and Error—Jurisdiction—Amount in Controversy—Debt Evidenced by Several Notes.—Where a suit on a note for less than $300 involves the plaintiffs right to recover also on two other notes given for parts of the same debt as the note sued on and together with it amounting to more than $300, so that judgment in the suit would be decisive as to the plaintiff’s rights with respect to a sum greater than $300, the amount in controversy. is sufficient to give this court jurisdiction on writ of error.</p> <p>2. Sales—Delivery of Chattel Different from that Bought—Bights of Buyer.—Where a new machine is purchased from an agent of the manufacturer, but, through fraud or mistake, an old machine is delivered in lieu of that bargained for, the purchaser may refuse to accept the machine delivered, and set up the failure of consideration as a defense to a suit on a note given for the purchase price.</p>

<p>Error to a judgment of the Circuit Court of Pulaski county, in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.</p>

<p>1. Appeal and Error—Granting or Refusing Continuance—Review— Case at Bar.—The granting or refusal of a continuance is always addressed to the sound discretion of the trial court, and to entitle a party to a reversal on the ground that a continuance was improperly granted or refused, it must be clearly shown that the court abused its discretion and that injury resulted to the complainant. In the case at bar the refusal of the trial court to grant a continuance because of the absence of one of defendant’s counsel, was not reversible error as it does not appear that there was any mismanagement or mistake on the part of defendant’s counsel who conducted the defense, or that any injury resulted to the defendant by reason of the absence of the absent counsol.</p> <p>2. Negligence—Damages for Personal Injuries—Proximate Cause.—A defendant in an action to recover damages for a personal injury cannot be held liable therefor unless his neglect of some duty he owed the party injured was the proximate cause of the injury; and the requisites of proximate cause are, first, the doing or omitting to do an act which a person of ordinary prudence could foresee might naturally or probably produce the injury, and, second, that such act or omission did produce it.</p> <p>3. Master and Servant—Injury of Servant■—Duty of Master.—A master is required to anticipate and guard against consequences injurious to his servant that may be reasonably expected to occur, but he is not compelled to foresee and provide against that which reasonable and prudent men would not expect to happen.</p> <p>4. Master and Servant—Injury to Servant—Negligence of Master—Evidence—Case at Bar.—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 of negligence, and. in an action against tlie master, tlie defendant’s negligence is an affirmative fact to be established by the plaintiff. The evidence in such ease must show more than a mere probability of negligence, and it is not sufficient that it is consistent equally with the existence or non-existence of negligence. There must be affirmative and preponderating proof of defendant’s negligence. In the case at bar, which is an action for the death of plaintiffs’s intestate by the fall of slate in a mine, the allegations and evidence as to how the accident occurred are too vague and indefinite to entitle the plaintiff to recover.</p>

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

<p>1. Vendor and Purchaser—Deficiency in Acreage—Recovery Bach of Purchase Money.—A vendee who, with full knowledge of a deficiency in acreage of the land purchased, voluntarily pays the full purchase price, cannot afterwards recover back any of the purchase money because of such deficiency.</p> <p>2. Bills and Notes—Provision for Payment of Attorney’s Fees—Penalty.—An agreement in a note to pay attorney’s fees for collection is a penalty and not enforceable.</p>

<p>Appeal from a decree of the Circuit Court of Scott county in favor of the complainant. Defendant appeals.</p>

<p>1. Equity Pleading—Demurrer—Overruling by Implication.—-If a suit in equity is brought on to be heard on the bill and a demurrer thereto, and the relief prayed for by the bill is granted, the demurrer is impliedly overruled, though not expressly passed upon.</p> <p>2. Equity—Trespass—Injunction—Pleading.—In ordinary eases of trespass the remedy at law is adequate and complete, and a resort cannot be had to a court of equity for relief by injunction, except under special circumstances. The complainant’s pleadings ought, therefore, to make out a clear ease for the equitable relief sought, for courts of law ought not to be ousted of their jurisdiction in doubtful cases, especially where, as in this case, the title to or boundaries of land are involved.</p> <p>3. Equity Pleading—Bill to Restrain Trespass—Title—Necessary Averments.—The complainant in a suit to restrain a trespass need not allege in his bill that his title is undisputed or has been adjudicated, but he must show a fair prima facie ease in support of his title. It is not sufficient for him merely to allege that he is the owner of the land upon which the trespass is being committed. When he claims under a paper title, he should generally exhibit his title papers, or copies thereof, or such of them at least as will make out a prima facie case of title; if he relies on possession, he should state the facts upon which he bases his claim of possession, so that in either case the court can see from the title papers filed or the facts stated that he has a prima facie title. He should also set out the facts relied on to show that without equitable interference he will suffer irreparable injury, or that his remedy at law is not adequate and complete. Tested by these rules the bills filed in this case are demurrable.</p> <p>■i. Equity Pleading—Bill to Restrain Trespass—Irreparable Injury— Insolvency of One Defendant.—In a suit to restrain a trespass the bill must allege such facts as will show that the threatened injury is irreparable or that the remedy at law is inadequate. A bill to enjoin the cutting of timber on complainant’s lands which contains, no allegation showing that the timber on the land constitutes its. chief value, or that it is essential to the enjoyment of the land, or how its removal would injure the inheritance, fails to show that the cutting of the timber would be an irreparable injury to the-estate which could not be compensated in money; and so also an allegation that one of several defendants, joint trespassers, is insolvent is insufficient to show that the remedy at law is inadequate..</p>

<p>1. Common Carriers—Regulation Requiring Passenger to Produce Ticket—Ejection of Passenger—Damages.—A regulation of a railway company requiring a passenger to produce a ticket to his destination or pay fare, under penalty of expulsion from the train, is a reasonable regulation and within the power of the carrier to make; but while a carrier may enforce this rule, it has no right to inflict wrongs and injuries upon a passenger in ejecting him from the train. The right to eject the passenger under such circumstances will not excuse the carrier from using more force or violence in doing so than is necessary, and if unnecessary force and violence he used, resulting in wrongs and injuries to the passenger, the carrier is liable for damages therefor.</p> <p>2. Common Carriers—Oonclusiveness of Passenger’s Ticket—Mistake of Ticket Agent—Ejection .of Passenger.-—As between the conductor of a railway train and a passenger, the face of the passenger’s ticket is conclusive evidence as to the extent of his right to ride, and a passenger has no right to ride beyond the destination indicated by his ticket, although he may have purchased and paid for a ticket to a point beyond, and, as explained by him to the conductor, his failure to have a proper ticket is due to the mistake of the ticket agent in giving him a ticket to an intermediate point. In such case, if ejected by the conductor for failure to pay the additional fare, the passenger’s right of action against the carrier is not for the ejection, which is lawful, but for the breach of contract.</p> <p>3. Common Carriers—Ejection of Passenger—Resistance—Case at Bar. It is the duty of a passenger on a railway train, if he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained. If he attempts to retain his seat without paying his fare, and is expelled by the conductor, using no more force than is necessary, the carrier is not liable for the expulsion-. Nor in such case is the carrier liable for an injury to the passenger resulting from the-use of force in ejecting him, made necessary by his own resistance and misconduct. In the case at'bar it appears that the plaintiff' violently resisted the ejection, and received the injuries complained . of in a subsequent altercation with another passenger who had assisted in ejecting him, but the instructions given by the trial court, did not distinguish between the force used for which defendant was liable and that for which it was not liable, and hence were misleading.</p>

<p>1. Vendo» and Purchase»—Bona Fide Purchaser—Complete Purchaser Priorities.—As a general rule, in order for a vendee to be protected as a purchaser for a valuable consideration and without notice, he must have received a conveyance and paid the whole of the purchase money before notice of the defect in his title; but this doctrine is subject to the qualification that where the first purchaser has not the legal title, and the subsequent purchaser has paid the purchase money, and, although he has not received the legal title, has the best right to call for it, before he receives notice, he shall be entitled to priority, notwithstanding he has not actually acquired the legal title.</p> <p>2. Vendo» and Pubchaser—Complete Purchaser—Payment of Purchase Money.—As a general rule, actual payment of the purchase money is required in order to constitute a vendee a complete purchaser; giving security for its payment, or even the giving of negotiable notes, is not sufficient, unless the parties are so circumstanced that a court of equity cannot prevent the enforcement of such security or notes.</p> <p>3. Vendo» and Pubchasee—Purchaser of Equitable Title—Equities.— The general rule is that a purchaser of a mere equitable title must take the place of the person from whom he purchases. He stands in his vendor’s shoes, and gets the title of his vendor and nothing more, subject to all equities existing against it in the hands of his vendor.</p> <p>4. Vendo» and Purchase»'—Defense of Bona Fide Purchaser—Complete Purchaser.—The plea of a purchaser for value without notice, if sustained, is a complete defense, but in order to establish this defense, the party setting it up must be a complete purchaser, unless he can bring himself within the protection of section 2472 of the Code of 1904, giving a purchaser who has paid part of the purchase money before notice a lien on the property purchased for the amount so paid.</p> <p>5. Deed of Trust—Invalid Sale by Trustee—Equities—Case at Bar.—A trustee’s sale under a deed of trust made in violation of the terms of the trust is void as to a beneficiary whose rights are defeated thereby. In the case at bar, certain real estate was conveyed to a trustee to secure the payment of two negotiable notes payable to the complainant. One of these notes was paid and thereupon surrendered by the payee to the maker, without, however, being marked paid. One M. then obtained possession of the note by collusion with the maker, and, claiming to be the owner of the note, and that default had been made in payment, had the property sold under the deed of trust to satisfy the note, becoming himself the purchaser, the payee and holder of the other note having no actual notice of the sale. The equitable title to the property was subsequently purchased by defendant, Mrs. W., who had no notice at the time of her purcliase of the fraud, or that the sale was not made in accordance with the terms of the trust, but who did not pay the purchase money before receiving notice. Held: As between the complainant, who was the payee and holder of the unpaid note, and the defendant, Mrs. W., the trustee’s sale was void, and that the complainant had a valid and subsisting lien upon the property for the residue of the debt due to her.</p> <p><6. Equity—Failure of Payee of Note to Marie it Paid—Subsequent Purchasers of Securities—Equal Equities.—Where a deed of trust is given to secure two notes payable to the same person, the failure of the payee on surrendering one of the notes to the maker, on payment thereof, to mark it paid, does not affect the priority of his lien on the property for the note still unpaid as against a bona fide subsequent purchaser of the equitable title from a purchaser at a fraudulent sale under the deed of trust to satisfy the note already paid. In such case the equities are equal, and the one prior in time must prevail. (Keith, P., and Cardwell, J., dissenting.)</p> <p>'7. Deed of Trust—Fraudulent Sale—•Ratification.—The action of a beneficiary in a deed of trust in receiving a portion of the proceeds of a fraudulent trust sale is not a ratification of the sale, and does not estop him from objecting to its validity, when he acted without knowledge of all the facts and without having taken the advice of counsel.</p>

<p>1. Contracts—Construction—Mining Lease—Incidental Rights—Case at Bar.—It is the province of the court to construe a^contract so as to give it effect, if practicable, rather than to defeat it, and, applying this principle in the present case to a certain mining lease, which, as construed by this court, confers upon the lessor the present right to use certain designated haulways and other instrumentalities through the demised premises jointly with the lessee for the purpose of transporting coal from the lessor’s adjoining lands, it is held that the right of the lessor to bring coal from the adjoining land to the haulways on the demised premises is an essential incident to the right to transport it along such haulways, and hence that the lessor has the right by cutting cross-entries to connect its adjoining .lands with the designated haulways. Driving such entries does not violate the terms of the present contract, nor is it within the meaning of section 2570 of the Code of 1904 forbidding excavations in any mine or shaft within five feet of the dividing line of other property without the written consent of the owner of the adjoining land.</p> <p>2. Contracts—Construction.—Where a written contract is unequivocal, the court is not at liberty to search for its meaning beyond the instrument itself.</p>

<p>1. Partnership—Action for Share of Profits■—Statute of Frauds.—A contract of partnership for dealing in an option in coal lands is not within the statute of frauds so as to prevent recovery by one partner from the other of his share of the profits.</p> <p>2. Partnership—Action for Profits—Illegality of Partnership—Case at Bar.—An action cannot be maintained by one partner against another to recover a share of the profits of an illegal partnership where the illegality of the contract of partnership appears from the evidence in the case. In such case the maxim ex turpi contractu non oritur actio applies. In the case at bar the plaintiff and defendant agreed to obtain an option on certain coal lands through an agent of the owner of the lands, and to share the profits on a sale of the lands. By the promise of a share in the profits the agent was induced, in violation of his duty to his employer, to procure a favorable option, and the lands were sold by the defendant at a profit.</p> <p>Held: The profits of the partnership being the direct fruits of an immoral contract, the plaintiff cannot recover his share from the defendant.</p>

<p>1. Advebse Possession—Possession of Part—Land, of Commonwealth.— Actual possession of a part of a tract of land, under color and claim of title to the whole, is possession of the whole, and this principle applies to the lands of the Commonwealth, as against persons not lawfully claiming under her.</p> <p>2. Conflicting Gbants—Interlock—Seisin.-—Where one grant conflicts in part with another, occasioning an interlock, the elder patentee under his grant acquires at once constructive seisin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. The junior grantee under his grant acquires similar constructive seisin in deed .of all the land embraced by his boundaries, except that portion within the interlock, the seisin of which had already vested in the senior grantee.</p> <p>3. Conflicting Gbants—Interlock—Possession—Ouster.—Where, in the case of conflicting grants, the junior patentee settles upon that portion of the land within the interlock, claiming the whole within his boundary, he thereby ousts the senior patentee of his constructive seisin and becomes actually possessed to the extent of his grant. Here possession of part is possession of the whole. But if his settlement is outside of the interlock, the possession of part is to be construed in reference to the conflict of boundaries, and, with whatever claim it be taken, it gives him possession of that part of the land only lying without the interlock. To overcome the constructive seisin in deed of the senior patentee and work an ouster, there must be an actual invasion of his boundary by some act or acts palpable to the senses and which would serve to admonish him that his seisin was molested.</p> <p>4. Adverse Possession—Land of Commonwealth—Grant of Land Already Occupied—Ouster.—Neither actual nor constructive possession of her land can affect the rights of the Commonwealth, and hence such possession cannot affect the rights of her grantee. The estate of the Commonwealth is divested hy her grant and vested in the patentee. Such grant confers title and seisin upon the grantee and puts him constructively in possession, notwithstanding at the time of the grant there may have been actual possession of the premises by another person, for, since the Commonwealth cannot be disseised, such person’s possession cannot be adversary, and the grantee, being by the grant placed in constructive possession, cannot be disseised or ousted except by an actual and palpable invasion of his boundary, and adverse possession continued for the period of limitation after the date of his grant.</p> <p>5. Boundaries.—Conflict Between Distance and Course—Rule to Be Applied.—Where, in the determination of a disputed boundary, there is a conflict between the distance .of one line and the true course of another, there is no arbitrary rule that distance shall yield to course, or vice versa, but one or the other should be preferred according to the manifest intent of the parties and the circumstances of the case.</p> <p>6. Boundaries—Location—Instructions.—On the question of determining a boundary an instruction requiring the jury, in locating the last line and the last corner, to adhere to the course and fix the corner, without regard to the topography of the ground at the corner as described in the title papers, is erroneous.</p>

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

<p>1. Deeds'—Covenants—Special Warranty.—A covenant in a deed that the grantee “shall have quiet possession of the land and premises hereby conveyed, with covenants of special warranty,” is a special and not a general warranty.</p>

<p>1. Descents and Distributions—Advancements—Hotchpot—Covenants Releasing the Estate.-—Upon the principle that equality is equity, advancements in the lifetime of a parent must be brought into hotchpot by those who receive them, in order that there may be perfect equality among those to share in the estate of the parent; and this rule is unaffected by the fact that some of the heirs, at the time of receiving their advancements, entered into covenants with the parent, whereby they relinquished all interest in or claim to any portion of the estate then owned or which might be thereafter acquired by the parent, and as to which he might die intestate.</p> <p>2. Descents and Distributions—Bringing Advancements into Hotchpot— Election—Interest on Advancement—Perfecting Title to Advancement.-—A child who has received advancements from his father during the latter’s lifetime, may elect either to bring the property so advanced into hotchpot in a suit to distribute the father’s estate and receive his share of the property to be distributed, or to take the property advanced as his full share without participating in the distribution. If he elects to bring the advancement into hotchpot, he is entitled' to share in the property to be divided, being charged as against his interest therein with the value of the property advanced as of the time of the advancement, but without interest; if he elects not to bring the advancement into the hotchpot, he will be debarred from participation in the distribution, but his title to the property advanced, if incomplete, will be perfected under a decree of the court.</p> <p>3. Descents and Distributions—Election Not to Bring Realty Advanced Into Hotchpot—Share of Personalty.—The election by a child not to bring an advancement of real property into hotchpot does not debar Mm from participating in tbe division of Ms father’s personal estate where such advancement does not exceed his share of the real estate.</p> <p>4. Descent and Distributions—Incomplete Advancement—Participation in Distribution.—Where a father intends to give certain land to a child as an advancement, but neither gives the child a deed to the land nor puts him in possession, and afterwards sells the land and gives the child the proceeds, the advancement is incomplete and the child is entitled, on the distribution of the father’s estate, to a share of both the real and the personal estate, being charged in the division of the real estate with the amount of the proceeds of the land.</p> <p>5. Descents and Distributions—Hotchpot—Repayment of Advancements.-—While a child receiving an advancement from a parent may bring such advancement into hotchpot and share in the division or distribution of the estate of the parent after his death, he cannot be required to pay back to the estate any part of the advancement, and if it turns out that he has received, by way of advancement, an equal share with the others of the estate, or more than his share, he can only be excluded from participation in the division or distribution of the estate.</p> <p>6. Partition and Distribution—Reference to Commissioner—Costs.— Where in a suit for the partition and distribution of a decedent’s estate a reference to a commissioner to make the usual and necessary inquiries in the cause is directed, the cost of such reference should he paid out of the decedent’s estate.</p>

<p>1. Deed of Trust—Fraud Appearing on Face of Deed—Presumptions— Case at Bar.—The provisions of a mortgage or deed of trust may be of such a character as of themselves to furnish conclusive evidence of fraudulent intent, but the presumption of law is in favor of honesty, and the court cannot presume fraud unless the terms-of the deed preclude any other inference. In any ease, the intent with which the deed was made is the vital subject of inquiry. In the case at bar the provisions of the deed do not show any fraudulent intent.</p> <p>2. Deed of Trust—Stipulation for Release of Debts Not Paid.—A provision in a deed of assignment by a debtor of all his property for the payment of his debts, which stipulates for his release by his creditors from personal liability for such part of their debts as the funds may not discharge, is valid.</p> <p>3. Deed of Trust—Provision for Omitted Debts.—A provision in a deed of trust executed with the declared purpose of securing all of the debtor’s creditors without discrimination, which secures, in addition to the debts named in the deed, such debts as may have been inadvertently omitted, and which may be admitted by the grantor or otherwise shown to be correct, is valid.</p> <p>4. Deed of Trust—Determination of Amount of Claims—Debts Admitted By Grantor—Duty of Trustees—A provision in a deed of trust to secure creditors for the payment of debts admitted by the grantor or otherwise shown to be correct, and that the approval of the grantor may be taken by the trustees as conclusive of the correctness of the debts, accompanied by a provision authorizing the trustees to adjust and correct any debt incorrectly stated in the deed and to pay the same according to the true amount thereof, is not objectionable on the ground that it binds the trustees to pay all debts that are admitted by the grantor without reference to their correctness. Under the accompanying provisions the trustees may take the approval of a debt by the grantor as conclusive of its correctness, but they are not bound to do so, and even independently of this provision it would be the duty of the trustees to determine the true amount of the claims to be paid by them.</p> <p>5. Deed oe Trust—Compromise and Adjustment of Debts by Trustees. A clause in a deed of trust to secure creditors authorizing the trustees to compromise and adjust on such terms as they may deem expedient any claims which may be in dispute as to validity or amount, is unobjectionable. This provision does not authorize the trustees to compromise and adjust any or all claims, but only such as to which there is a bona fide dispute or question, leaving them to pay the amount due.</p> <p>'6. Deed oe Trust—Description of Property—Case at Bar.—A description in a deed of trust to secure creditors of the property conveyed as “all the stock of goods owned by the grantor, situated in the storehouse now occupied by him, No. 1028 Main street, Lynchburg, Va.; and also all cash in bank, any and all accounts or other choses in action which may be owned by the said A.; also the lease on the . said store-house, his merchant’s license, and any other right owned by said A. in connection with his business at said place,” is sufficient.</p> <p>7. Deed oe TRUST^-Nofice to Creditors Not Listed—Construction.—A provision in a deed of trust to secure creditors that the trustees may give notice to any creditor not named in the deed, by advertising in a daily paper for a period of five'days, to present his claim, and that after the expiration of ten days from the first publication the trustees shall proceed with the execution of the trust upon the hypothesis that there are no other creditors than such as may have • then presented their claims, unless such other claims shall thereafter be presented before the actual distribution of the fund, does not apply to the creditors named in the deed.</p> <p>S. Deed oe Trust—Execution of Trust—Statement of Assets—Acceptance by Creditors—Time for Making Election—Case at Bar.—A provision in a deed of trust to secure creditors that after the trustees have ascertained all creditors and after all the money to be realized has come into their hands, or a sufficient proportion thereof to enable the creditor's to approximate the amount, they shall submit such statement to the general creditors as will enable them to approximate the proportion of their claims which will be paid from the trust fund, and to act advisedly, is not objectionable in that it does not afford the creditors a reasonable time within which to make their election, and fails to specify a time within which they may' obtain such information as the deed does not afford them, and decide understandingly whether or not to accept the deed. Such provision means that when the statement is furnished a reasonable time will be given the creditors in which to act, and this is; all that can be asked or required.</p> <p>9. Deed oe Trust—Provision for Attorney’s Fees to Trustees,—A clause-in a deed of trust to secure creditors providing for the payment out of the money realized of a fee to the trustees, in addition to commissions, for such legal services as they may render the trust in their capacity as lawyers, does not show on its face a conclusive purpose or intention to hinder, delay, or defraud creditors, though from considerations of prudence it might have been best not to have embraced it in the deed.</p> <p>. 10. Deed oe Trust—Omission of Property—Fraud—Correction of Deed—Case at Bar.-—The omission, through the inadvertence of the draftsman and not by the intention of the grantor, of certain personal property of small value, from the property conveyed by a deed of trust to secure creditors, is not fraudulent per se, especially where there is nothing on the face of the deed to suggest that any property was omitted, and it is conceded that no actual fraud was intended, and the mistake was corrected by a supplemental deed executed the next day.</p>

<p>1. Criminal Law—Warrants—Particularity of Charge.—A warrant charging an unlawful sale of liquor need not set forth wherein the sale was unlawful, nor detail the circumstances which go to make up the offense. It is sufficient if it charges the offense with such certainty as will apprise the accused of the precise offense with which he is charged, and is such that judgment thereon, upon vouching the record, will protect him from a second prosecution for the same offense. It need not have the particularity or technical precision of pleading required in an indictment.</p> <p>2. Criminal Law—Evidence—Sale of Liquor—Time of Sale Charged— Proof of Sale to Another at Different Time.—Upon the trial of a warrant charging an unlawful sale of liquor to A “and divers-others” on April 29, 1905, evidence of sale to B on March 11, 1905, is not admissible, although the latter date is within the statutory period for which the warrant might have been issued. This is a separate transaction, constituting an offense not embraced within the terms of the warrant, and of which it cannot he said that the accused had notice. To cover both sales, the warrant should have charged the sale to A and divers other persons between specified dates, e. g., March 11 and April 29, 1905, both inclusive.</p> <p>3. Criminal Law—Unlawful Sale of Liquor—Asking Accused as to-United States License—Harmless Error.—Upon the trial of a warrant charging an unlawful sale of liquor, the defendant cannot be asked if he has not a “United States license for the retail of liquor,” but if the question be asked over the defendant’s objection, and the court informs the defendant that he is not bound to answer, and instructs the jury that no inference or deduction can be .drawn by tbem against .tbe. defendant from bis refusal to answer, tbe propounding of tbe question is not reversible error.*</p> <p>4. Criminal Law—Liquor License—General Law—Special Acts—Lancaster County.—Special acts prohibiting tbe sale or manufacture or ardent spirits in any county, district or town, are not repealed by tbe general law regulating tbe salé of ardent spirits contained in Acts 1902-’03-’04, pp. 155, 217, and violations of said special acts are to be punished as therein prescribed, and not as prescribed by tbe general law. Under tbe special act for Lancaster county tbe judge of tbe Circuit Court has no power to add imprisonment to a fine imposed by tbe jury.</p>

<p>Error to a judgment of conviction of a third offense of petit larceny, in the Corporation Court of the city of Lynchburg.</p>

To a judgment of conviction, the defendant assigns error. The following is a copy of the information referred to in the opinion of the court: “Information. “Commonwealth of Virginia, “In the Circuit Court of Scott County. “Be it remembered that J. F. Sergent, attorney for the Commonwealth for Scott county, who prosecutes for the Commonwealth of Virginia, in this behalf, in his own proper person comes into said court, on this the 10th day of May, 1905, and here gives the said…