Volume 106 — Virginia Reports

<p>1. Equity—Amended Bill—Presenting New Case—(Jase at Bar.—It is not permissible by amended bill to set up a new and essentially different case from that presented by the original bill. In the present case a trustee in a deed of trust to secure creditors filed a bill to enforce the trust, and the property was sold under a decree in that suit. Afterwards he filed an amended bill. to restrain the sale by another trustee of other property belonging to the same debtor conveyed by a separate deed. -The property having been sold before the writ of injunction was served upon the defendants in the amended bill, certain judgment creditors of the debtor presented a petition in the suit upon the amended bill praying an annulment of the sale, and the trial court set the sale aside.</p> <p>Held: The trustee in the first deed, having administered his trust, became functus officio, and the amended bill by which he sought to litigate matters wholly separate and distinct from the purpose of the original suit, and to affect property rights with which he had no concern, should have been dismissed.</p> <p>2. Equity—Bill Piled by Plaintiff Without Interest.—A bill filed by a sole plaintiff having no interest in the subject-matter of the suit, must be dismissed. .</p>

Decree in favor of tke complainants as to some of the defendants, and in favor of the other defendants. Appeal by both parties from the decree so far as unfavorable to them respectively.

<p>Appeal from a decree in chancery of the Circuit Court of Rockbridge county. Decree for complainants. Defendants appeal.</p>

<p>1. Pbocess—Scire Facias—When Returnable.—Under section 3220 of the Code of 1904, providing that process “shall be returnable within ninety days after its date, * * * * except that * * * * process awarded in court may be returnable as the court may direct,” a scire facias to procure an award of execution upon a recognizance, which could only be issued after the court had adjudged the recognizance to be forfeited, made returnable to a day fixed by the court, is within the above-mentioned exception, and is sufficient, although returnable more than ninety days after its date.</p>

<p>1. Wrongful Bevy—Instructions—Damages.—In an action on an indemnifying bond to recover damages for a wrongful levy upon the plaintiff’s property as the property of another, an instruction giving the plaintiff the right to recover the fair rental value of the property levied on during the period of detention, without regard to whether or not he was deprived of its use, or suffered any damage from the loss of such,use, is erroneous. In such a case where no fraud, malice, oppression, or other aggravation, is shown, the object of the law is to give compensation for the injury suffered, and damages are restricted to that object.</p> <p>2. Wrongful Levy.—Measure of Damages—Evidence.—In an action for a wrongful levy on personal property the measure of damages, where the property has a usable value, is the value of the use of the property during its detention, to be estimated by the ordinary market value of such property at the place where the property is located; and on this question evidence of the rental value of the property elsewhere is inadmissible.</p> <p>3. Wrongful Levy—Damages—Property Not in Use—Injury to Third Parties.—Where, in an action for a wrongful levy on personal property, it appears that the plaintiff suffered no loss in consequence of the levy, no damage can be recovered. If at the time of the levy the property was not in use, but, as in the present case, in storage, where it remained undisturbed during the existence of the levy, and the plaintiff had no intention of using it, no damages should be allowed for the loss of the use of the property. Whether or not the plaintiff intended to use the property is a question for the jury. The fact that other persons may have intended to use the property is immaterial, for the only recovery that could be had is the actual loss sustained by the plaintiff himself.</p> <p>4. Wrongful Levy—Damage to Property—Question for Jury.—Where, in an action for a wrongful levy on personal property, the evidence is conflicting as to whether the property was damaged while in storage during the period of the levy, and as to whether the plaintiff or the defendant was responsible for such damage, it is for the jury to ascertain, upon the whole evidence, what damage to the property, if any, was occasioned by the defendant or his agents, while it was under levy.</p>

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

<p>Appeal from a decree in chancery of the Circuit Court of Augusta county. Decree for the complainant. Defendants appeal.</p>

<p>Error to a judgment of the Circuit Court of Bockingham county in a proceeding by motion for a judgment. Judgment for the plaintiff. Defendants assign error.</p>

<p>"1. Executions—When “Issued”—Statute of Limitations.—An execution is issued within the meaning of section 3577 of the Code when it is made out and signed by the clerk ready for the officer, marked “to lie,” although it has not been placed in the hands of the officer to be levied; and other executions may be issued within ten years from the return day of such an execution. Such has been the uniform and unquestioned practical construction put upon the statute from the time of its enactment.</p> <p>“2. Executions—Statute of Limitations—Interruption.—Where the collection of an execution on a judgment is suspended by a decree in , chancery, the period during which such decree of suspension remains in force is to be excluded in the computation of time within which another execution must be issued on the judgment in order to prevent the bar of the statute of limitations.</p> <p>'3. Judgments—Assignment of Different Parts—Priorities.-—Where a commissioner is directed to convey to a purchaser land sold at a judicial sale, subject to the lien of a judgment, reserving a vendor’s lien in the conveyance to secure the sums due assignees of different parts of the judgment, respectively, the liens of the assignees are of equal dignity where there is no supervening equity growing out of the order of assignment which disturbs the equality of the rights of the assignees.</p> <p>-4. Judgments—Liens—Priorities—Estoppel.—A surety in a judgment, to whom a part of the judgment has been assigned, will not be permitted to assert his lien to the prejudice of an assignee of the rest of the judgment who has by execution issued thereon acquired a lien on all of the personal property of - the judgment debtors.</p>

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

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

<p>1. Trusts and Trustees—Sale By Trustee—Opportunity to Bid.—The facts of this ease do not sustain the charge that the trustee who made the sale sought to he set aside did not give bidders ample opportunity to bid. The bidding occupied over three hours’ time, and prospective purchasers had every opportunity afforded that they could reasonably expect.</p> <p>2. Judicial Sales—Stifling Competition—Case in Judgment.—Contracts which tend to lessen competition and restrain bidding at judicial sales are, as a general rule, held to be illegal; but the burden is on the party alleging such a contract to prove it by clear and satisfactory evidence. In the case in judgment this burden is not sustained by the party alleging the contract. The mere statement by a bidder to a friend, pending the sale, that if he purchased the whole tract of land then offered, and which had been previously .offered in parcels, he would sell him a part of it, is not sufficient for that purpose.</p> <p>3. Equity—Order for Account■—When Refused.—An order for an account will not be awarded merely to enable a party to make out his case, or to reopen the investigation of the amount of an indebtedness which has been previously settled by the parties with the aid of their counsel, and the integrity and correctness of which has not been impugned.</p> <p>4. Usury—Settlements—Compounding Interest.—Where settlements are made between parties from time to time, and new items of debit are brought in, and interest calculated on past due amounts, and a new bond given for the whole, this does not constitute usury.</p>

<p>1. Death bt Wrongejul Act—Non-Resident Alien Beneficiaries.—The action for death by the wrongful act or neglect of another given by Code, section 2902, may be maintained for the benefit of alien relatives resident in a foreign country, although they are not expressly named in the statute. The language is general, and, on principle, includes non-resident aliens as well as citizens or residents.</p> <p>2. Master and Servant—Unsafe Place—Warning.—It is the duty of the master to give his servants warning of all dangers to which they will be exposed of which he is or ought to be aware, except such as they should, in the exercise of ordinary care, have foreseen as necessarily incident to the business, in the natural and ordinary course of affairs, or of which they have had an opportunity to inform themselves in the course of their employment.</p> <p>3. Master and Servant—Unsafe Place—Warning—Boss of Gang as a Tice-principal.—Ordinarily the foreman or boss of a gang of hands employed in executing the master’s orders is a mere fellow-servant with the other members of the gang, but if he is discharging a non-assignable duty of the master he is to that extent a vice-principal. One of these non-assignable duties is to exercise ordinary care to provide a reasonably safe place in which the servant is to work. If a place is dangerous, and that fact is or should be known to the master, it is his duty to inform the servant of it, and, in the absence of an official of higher grade, this duty devolves upon the foreman of the gang as a vice-principal.</p> <p>4. Instructions—Conflict—Different Tiews of Case.—Instructions are not conflicting which simply present different views of a case, each of which is supported by evidence, and this court will not set aside a verdict rendered under such instructions which is amply sustained by the evidence and in accord with one of such views.</p>

<p>1. Pleading—Sufficiency of Declaration—Demurrer.—A declaration is sufficient if the facts of the case are stated with sufficient certainty to be understood by the defendant who is to answer them, by the jury who are to inquire into their truth, and by the court which is to render judgment. The object of the declaration is to inform the defendant of the nature of the demand made upon him. If, on demurrer, the court can say, if the facts stated are proved, the plaintiff is entitled to recover, then the declaration is sufficient. The declaration in this case measures up to these requirements.</p> <p>2. Master and Servant—Non-Assignable Duties—Instruction Covering Several Duties.—-A master is only bound to exercise ordinary care to discharge the duty of furnishing the servant a reasonably safe place to work, in providing competent employees, in giving proper orders, and in seeing that such orders and instructions are carried out. If the jury is instructed upon all these duties in a single instruction the instruction is not misleading when it begins by telling them that it is the duty of the master “to use ordinary and all reasonable care” in the discharge of those duties,, enumerating them in the one, two, three order, and concludes “and if the jury believes from the evidence in the case that the defendant failed to exercise ordinary and all reasonable care in the performance of any or all of said duties, or failed to perform any one or all of them, and such failure was the proximate cause of the injury to the plaintiff, then they will find for the plaintiff.” The expression “ordinary and all reasonable care” both at the beginning and conclusion of the instruction clearly qualifies each duty set forth in the instruction.</p> <p>3. Master and Servant—Rules—Enforcement.—While a master is not an insurer of the observance of rules, it is his duty to use reasonable care to enforce them. He does not discharge his whole duty to his servant by simply formulating and promulgating proper rules.</p> <p>4. Master and Servant—Negligence of Fellow-Servant—Risk Not Incident to Employment.</p> <p>Quare: Can a servant recover of the master for an injury inflicted through the negligence of a fellow-servant where the negligent act of the fellow-servant was not incident to the risk assumed by the plaintiff in his contract of employment?</p>

<p>1. Equity—Bill of Discovery—Responsive Artswer—Effect as Evidence.—If a bill calls for an answer under oath from the defendant, such answer when made, insofar as it it responsive to the bill, is admissible in favor of the defendant, and is conclusive until it is overcome by two witnesses, or by one witness and corroborating circumstances.</p> <p>2. Whitten Conteacts—Parol Evidence—Surrounding Circumstances— Practical Construction.—Where a written contract is obscure in its meaning, evidence of what was said and done at the time of its execution is competent, not to add to or change it, but to explain it. So also evidence of the acts of the parties under such a contract may be received to show intent.</p> <p>3. Written Conteacts—Parol Evidence—Surrounding Circumstances.— The fundamental rule in the construction of an agreement is to ascertain the intention of the parties thereto; and, in such construction, courts look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the lights enjoyed by the parties when the contract was executed, and to that end they may place themselves in the same situation occupied by the parties, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to. the things described.</p> <p>4. Vendor and Purchaser—Reservation of Crowing Timber—Case in Judgment.—A grantor in a deed conveying a boundary of mountain land supposed by the grantee to be underlaid with minerals, reserves to himself and assigns “all the timber upon the said tract, with the privilege of removing the same at such time as may suit his convenience.” Two days later, the grantor, without consideration, indorses on the deed the following: “In the foregoing deed there is reserved to the grantor all of the timber on the lands conveyed, with the privilege of removing the same. The extent of such reservation is only intended to allow the grantor the privilege of cutting and removing such timber from the said land as he may want from time to time without let or hindrance from the grantee; but it is by no means intended to prevent said grantee or his assigns also to cut and use whatsoever timber he may want from time to time.” From the time of the grant to the institution of this suit—about fifty-three years—the grantor has cut and removed timber and bark from the land without objection from the grantee. The sole purpose of the grantee was the development of minerals under the land, and he never contemplated cutting or removing the timber, nor has he ever attempted to cut and use any of the timber, nor has he attempted to open and operate any mines under the land, and has abandoned that idea. The purpose of the indorsement on the deed, as appears from the evidence, was to permit the grantee to use enough of the timber on the land to prop up his mines in taking out coal, or to show the coal with a view of selling it.</p> <p>Held: The grantor has the right to cut and remove from the land such of the timber as he may see fit, and cannot be enjoined therefrom by the grantee or those claiming under him.</p>

<p>Error to a judgment of the Corporation Court of the city of Staunton in a proceeding by information in the nature of a quo warranto. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Masteb and Sebvant—Safe Place—Inspection—Case at Bar.—It is the duty of the master to exercise ordinary care to keep the place in which his servant is placed to work in a reasonably safe condition, and to that end to make such inspection, from time to time, as will keep him informed of the condition of the premises. He is chargeable with knowledge of the facts which such inspection would have disclosed, and if the neglect thereof is the proximate cause of an injury to a servant who is himself free from fault the master is liable. In the case at bar a servant was killed by a rock falling on him in a stone quarry. The danger was not open and obvious, and was not due to the changing condition of the quarry incident to operating it. The servant was not negligent, and the proximate cause of his death was the negligence of the master in failing to discover and remove the loose stone which fell upon and killed him, which negligence is sufficiently charged in the declaration.</p> <p>2. Masteb and Sebvant—Non-assignable Duties—Fellow-Servant— Boss.—A “walking boss” whose duty it is to see that a quarry is kept in a reasonably safe condition, is not, in discharge of this duty, a fellow-servant of a workman in the quarry. This duty is one of the nomassignable duties of the master.</p> <p>3. Masteb and Servant—Negligence—Questions for Jury.—Whether or not a master has discharged his duty of exercising ordinary care to maintain a reasonably safe place in which his servant is to work, and if not whether his neglect is the proximate cause of an injury to his servant, and whether the servant has been guilty of contributory negligence, are questions for the jury, whose verdict will not be disturbed unless plainly wrong.</p> <p>4. Verdicts—Weight—New Trial.—The verdict of a jury is entitled to great respect, and should not be disturbed even by the trial court unless plainly against the weight of the evidence; and, while greater latitude is allowed a trial judge in granting than in refusing a new trial, yet if reasonable men may fairly differ as to tbe inferences to be drawn from the facts, tbe verdict should not be disturbed.</p>

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

<p>1. Peocess—Publication—Proceedings in Rem—Specific Performance.— While a personal judgment rendered on a substituted service of process is, in the absence of any waiver, void even in the state where rendered, a bill for the specific performance of a contract to convey real estate when authorized by statute to be maintained on an order of publication is substantially a proceeding in rem; and it is entirely competent for the state to provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which a defendant, being a nonresident, is brought into court by publication.</p> <p>2. Peocess—Publication—Specific Performance—Non-resident Executor as Defendant.—Section 3230, 3231 and 3232 of the Code (1904) relating to orders of publication, though general in their character, afford ample authority for a proceeding by publication against a non-resident executor upon a bill for specific execution of a contract to convey real estate contracted to be sold by him, especially where the beneficiaries under the will are residents of the state, are united as defendants, and are before the court on personal service of process.</p> <p>3. Deeds—Special Commissioner.—A deed made by a special commissioner of a court of chancery appointed for that purpose conveys the legal title of all the parties to the suit.</p>

<p>1. Contracts—No Time of Performance—Reasonable Time.—Where no time for delivery is fixed in a contract for making and delivering ties, the contract is to be performed within a reasonable time, and it is for the jury to say what is a reasonable time under all the circumstances of the case, under proper instructions from the court.</p> <p>2. Contracts—No Time of Performance—Reasonable Notice—Evidence.—In determining what is reasonable time for the performance of a contract, when the contract is silent on that subject, the jury may consider the declarations of the parties, oral or written, prior and subsequent to the contract, as well as the conduct of the parties subsequent to the contract. The burden of proof is on the plaintiff, complaining of a breach of contract, to show that the time fixed by the defendant for its termination was not a reasonable time.</p> <p>3. Contracts—No Time of Performance—Unreasonable Notice—Measure of Damages.—Where a railroad company refuses to accept ties which a contractor has .agreed to make and deliver to it, and thereby prevents performance—no time being fixed for performance and the notice of termination not being reasonable— the measure of damages is the difference between the contract price and the cost of making and delivering the ties capable of being delivered within a reasonable time.</p> <p>4. Special Juries—Selection by Lot—What Constitutes.—Under the provisions of section 3158 of the Code for selecting a special jury by lot is is immaterial whether four are drawn by lot from the panel of twenty, leaving sixteen, or sixteen are drawn by lot leaving the four who are to be discharged. Either method complies with the letter and spirit of the law.</p>

<p>1. Deeds—Married Women—Common Law Lands—Recordation as to JBusband and Wife—Lands in Several Counties—Recordation in One.—In order for the wife to convey her common law lands, as the law stood in 1870, it was necessary not only that the deed should be executed and acknowledged by both husband and wife in the manner required by the statute, but that the deed should be admitted to record as to the husband as well as the wife, but if the deed conveyed land lying in more than one county such admission to record in only one county was sufficient, as between the parties, to convey the land lying in each of the counties.</p> <p>Z. Wills—Married Women—Separate Estate Acquired After Bate of Will.—Under a statute allowing a married woman to make a will disposing of her separate estate, a married woman who has no separate estate at the time may make a will disposing of a subsequently acquired separate estate owned by her at the time of her death. The statutes allowing a testator to dispose of any estate to which he may be entitled at his death, although acquired after the execution of his will, and declaring that a will shall be construed, as to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will, apply to such a case. This rule applies to wills made in 1870 when the will under consideration in this ease was executed.</p>

<p>1. Nuisance—Barking of Dogs—Injunction—Relief at Law.—Dogs in a neighbor’s yard' may effectually murder sleep and disturb the reasonable enjoyment of a home, and where great and continuous annoyance and discomfort are created by the howling and barking of dogs and the whining of puppies, and the rest of a neighbor and his family is disturbed and sleep is interrupted, and he is disturbed in the reasonable use and enjoyment of his property, a court of equity will interpose by injunction to enjoin and restrain the nuisance; and it is immaterial that a town ordinance affords the plaintiff an easy, and expeditious remedy. Courts of equity do not lose a jurisdiction, once acquired, merely because courts of law have been subsequently authorized to administer the same or similar relief.</p>

<p>Error to a judgment of the Circuit Court of Bath county 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 Augusta county in case of a contested election. To a judgment adverse to tho: contestants they assign error.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Wythe county. From an adverse decree complainants appeal.</p>

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

<p>Appeal from a decree in chancery of the Circuit Court of Rockingham county directing settlement of a receivers account Prom an adverse decree the receiver appeals.</p>

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

<p>Appeal from a decree of tlie Circuit Court of Hocldngliam •county in a suit in chancery. Decree for defendants. Complainant appeals.</p>

The proceeding was instituted by the sheriff, who held an execution in his hands for levy, to test the liability of certain personal property to the levy. Plaintiff in error filed a petition in the cause claiming the property levied on by virtue of a bill of sale. To a judgment against him he assigns error.

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

<p>1. Wills—Construction—"What Law Controls—Foreign Laws—Proof. The law of the state where the testator resided at the time of his death, where his will was probated, his executors qualified, and his estate distributed, controls as to the construction of his will, and if that state be a foreign state, the foreign law is a fact to be proved.</p> <p>2. Evidence—Foreign Laws—Judicial Notice—Facts.—Courts of this state will not take judicial notice of the laws of another state, and where the parties have by agreement undertaken to prove the laws of a foreign state in a particular way, the court must determine the question upon that evidence just as it determines the other questions of fact involved in the case.</p> <p>3. Wills-—Construction—Fee—Gift Over on Death of Devisee—Relative Ages of Testator and Devisee.—Under the laws of Pennsylvania, which are controlling in this case, where a testator, by his will, gives the entire residuum of his estate to his seven children, share and share alike, and then provides “should any of my children die without leaving surviving children, then the share of that child shall be equally divided among my surviving children,” the children who survive the testator take absolute estates in the property bequeathed to them. The clause quoted means death without leaving surviving children in the lifetime of the testator. The fact that the testator was eighty-four years of age and all of his children past middle life does not affect the legal significance of the language of the will.</p> <p>4. Wills—Parol Declarations of Intention.-—Parol declarations of a testator as to what his intention was in making the provisions contained in his will are not admissible, as a rule, in evidence. The inquiry, in construing a will, is not what the testator meant to express, but what the words used do express.</p>

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

Scott's Admr., in which appellees filed a petition to which appellant was made the sole defendant. Decree for petitioners. Defendant appeals.

<p>1. State Corporation Commission—Valid Existence—Bill of Rights. Tbe fact that tbe State Corporation Commission, created by tbe constitution, is invested to a certain extent with legislative, executive and judicial powers does not render it an illegitimate and invalid' tribunal, nor is such grant of powers in conflict with the Bill of Rights, which expressly provides that “except as hereinafter provided, the legislative, executive and judicial departments shall be separate and distinct.” These great departments should be kept as separate and distinct as possible, and the whole power of one should not be exercised by the same hand which possesses the whole power .of either of the other two; but either may exercise the power of another to a limited extent. No government could be administered where an unqualified adherence to the maxim was enforced.</p> <p>2. State Corporation Commission—Constitutional Law—Equal Protection of Law.—The constitution of this state and the laws passed in pursuance thereof, subjecting common carriers of persons and goods, in the matter of their public duties and charges, to the control of the State Corporation Commission, clothed to some extent with legislative, executive and judicial powers, are not in conflict with that clause of the Amendment Fourteen of the constitution of the United States which forbids any state to deny to any person the equal protection of the laws. The state constitution and laws apply alike to all persons and companies similarly situated, and the classification is a reasonable one. Such legislation is not inhibited by the Federal constitution.</p> <p>3. State Corporation Commission—Carriers—Constitutional Law—Due Process.—The constitution and laws of this state which give to the State Corporation Commission control over common carriers of persons and goods in matters affecting their public duties and charges, require notice to such carriers, give them the most ample opportunity to be heard on all matters of law and fact which they may desire to allege or put forward in their defense, and in event of an adverse decision an appeal of right to this court, regardless of the amount in controversy. Such legislation does not deprive them of their property without due process of law, and is not in conflict with the constitution of the United States.</p> <p>4. State Corporation Commission—Public Service Corporations—Constitutional Law.—The state "has the inherent power of regulating and controlling public service corporations operating within her borders, and of prescribing the facilities and conveniences which shall be furnished by them, and may confer this power upon a commission, such as the State Corporation Commission, possessing to some extent legislative, executive and judicial powers.</p> <p>5. State Corporation Commission—Sufficiency of Petition for Belief.—A petition to the State Corporation Commission asking relief against a railroad company is sufficient if it informs the company of the grievance complained of and the remedy asked.</p> <p>■6. Railroad—Charter Obligations—Burdens—Financial Ability—Evidence.—The lessee of a railroad who has contracted to perform all the public legal obligations of the lessor, and who is of financial ability to do so, will be compelled to discharge such obligations, although the lessor may not be of financial ability to do so, and although it may entail a loss upon the lessee. Hence, evidence on the latter subject is inadmissible. A lessor and a lessee who have sought and obtained a charter imposing obligations cannot repudiate them simply because they are onerous or unprofitable.</p> <p>7. Railroads—-Charter Obligations—Unprofitable Business.—Where a charter requires a railroad to be constructed to a given point, and a subsequent amendment is sought and obtained by the company and its lessee, who has assumed its charter obligations, relieving it of that provision on condition of its procuring from a connecting road to said point the right to run trains over its line and of building and maintaining a suitable depot, the fact that the lease of privileges over the connecting line or the extension of the road would entail a loss upon the company or its lessee cannot excuse them for the failure to discharge the charter obligations.</p> <p>8. Res Judicata—Mandamus—Inability to Enforce.—The fact that a mandamus to compel a railroad company to extend its road to a terminus designated in its charter is refused because of the inability of the court to enforce its order, owing to the fact that the affairs of the company ar.e in the hands of a receiver of the Federal Court, does not affect the question of the duty of the company to so extend its line. An order refusing a writ of mandamus is not such a judgment as concludes further inquiry as to the grounds upon which the writ is sought. A mandamus refused on one day may he granted on another if the ends of justice require it.</p> <p>9. Railroads—Choice of Methods—State Corporation Commission—Notice.—A choice of either of two methods having been given to appellants of performing a charter duty, it was error on the part of the State Corporation Commission to have limited them to one of such methods in directing the performance of that duty. It was likewise error to make any order affecting the right of a connecting company which had not been served with process or notice, and was not a party to the proceeding.</p> <p>10. State Coetoeation Commission—Notice—When Required—Constitutional Law.—In exercising its legislative powers the State Corporation Commission is under no obligation to give notice to the parties to he affected thereby, but when it comes to exercise its judicial functions by the enforcement of that legislation the parties affected are entitled, under the Fourteenth Amendment to the constitution of the United States, to notice and an opportunity to he heard, and this right is not satisfied by the antecedent notice given before the proposed legislation. These powers cannot be blended in one procedure. Per Keith, P.</p>

<p>1. Constitutional Law—Acts of Assembly—Doubtful Validity.—This: court, while possessing the power to declare an Act of Assembly unconstitutional, will not do so unless there is a clear violation of some explicit provision of the constitution.</p> <p>2. Constitutional Law—Intermingling of Powers—Extending City Limits.—An Act of Assembly providing for the extension of the corporate limits of cities and towns, and which confers upon the Circuit Courts of the counties in which the territory lies: the power to ascertain and determine the boundaries to be embraced, and the necessity for and the expediency of extending the-corporate limits of cities and towns, is not unconstitutional .on-the ground of conferring legislative powers on such courts. Nearly or quite all of the questions of necessity and expediency-submitted to the courts for their determination are questions of' fact, and are to be ascertained judicially, and the limited legislative power conferred, if any, is not in violation of the constitution. Governments could not exist if the inhibition on the' intermingling of such powers in one person or body were strictly, literally, and unyieldingly applied in every situation. The manifest purpose of the Legislature was to make a case to be tried in-court in which all the parties concerned are brought before the-court and given an opportunity to be heard. It is in the highest sense litigation.</p>

<p>"1. Feaud—Evidence Required.—Fraud is not to be assumed on doubtful evidence or circumstances of mere suspicion. . Tbe party alleging tbe fraud must clearly and distinctly prove it. If tbe fraud is not clearly proved as alleged no relief can be bad, although tbe party against whom relief is sought may not be perfectly clear in bis dealings.</p>

<p>1. Process—Amendment of Return—Discretion of Trial Court.—When a summons has been returned and filed the return oí the officer thereon becomes a matter of record, and cannot be amended except by leave of the court. This permission is not granted as a matter of course, but only in furtherance of justice and in the exercise of an enlightened discretion after notice to the opposite party. The court, however, will not suffer a proposed amendment to be made without first being satisfied that it is true. For this purpose it may hear evidence, but if it is contradictory, or the court is left in doubt and uncertainty as to what the truth is, it will not permit the amendment.</p> <p>2. Process—Substituted Service—Personal Judgment.—To authorize personal judgment on substituted service of process the terms of the statute authorizing such service must be strictly complied with. Courts cannot dispense with any of the statutory requirements, even though satisfied that the method actually adopted for giving the defendant notice was better than that prescribed by law.</p> <p>3. Process—Substituted Service—Service on Defendant’s Wife—Explaining Purport.—Service of a summons on a defendant by delivering a copy thereof to his wife is not sufficient where the officer’s return fails to show' that he gave her information of its purport, and a judgment by default on such service is void. The fact that the defendant actually received from his wife the copy left with her for him in time to have made defense to the suit is immaterial.</p> <p>4. Process—Dismissal of Case from Docket—Alias Summons.—If after a final judgment has been entered and the case has been stricken from the docket such judgment is set aside on account of defective service of process, no alias summons can issue in the case. The proper course to have been pursued by the trial court in the case at bar, was, at the same time that it set aside the judgment, to have set aside the order striking the case from the docket. The plaintiff might then have sued out an alias summons and have proceeded with his suit.</p>

<p>1. Cabbiebs—Bill of Lading—Written Order Changing Consignee.—If a bill of lading expressly authorizes the carrier to deliver the goods upon the written order of the consignee without the bill of lading, such order, when given, has the same effect as the transfer of the bill of lading.</p> <p>2. Cabbiebs—Bill of Lading—Assignment as Security—Title of Goods.— A bill of lading confers upon the person to whom it is transferred the title to the goods; and this, although the transaction is not intended to give the permanent ownership, but to furnish security-for advances of money, or discount of commercial paper made upon the faith of it. 3. Registby—Assignee of Bill of Lading.—A bank which discounts a draft with a bill of lading attached, if not the absolute owner of the goods, stands in the position of a mortgagee in possession, and is not required, in order to protect its lien, to have the papers recorded under section 2465 of the Code. 4. Cabbiebs—Bill of Lading—Assignment—Attachment—Subsequent Payment of Draft. Attached to Bill of Lading.—A consignee assigned a bill of lading to a purchaser, attached it to a draft on him for the price agreed, and had the draft discounted at bank. The purchaser, under a right reserved in the contract, refused to accept the goods after inspection. The agent of the consignee then sold to X, who agreed to pay the draft. The next day, and before the draft was paid, the goods were attached for a debt due by the consignee. Subsequently X paid the draft.</p> <p>Held: The goods were not the property of the consignee at the time the attachment was levied. They belonged either to the bank or to X. If payments of the draft was an essential prerequisite to invest X with title, then they were the property of the bank; and' if the agent of the consignee had no right to make sale to X, yet when the bank accepted payment of the draft from X, all its rights passed to him, and the attaching creditor had no greater right against him than it had against the bank. ...</p> <p>5. Attachments—Estate of Debtor—Prior Liens.—An attaching creditor can acquire through his attachment no higher or greater right to the property attached than the defendant had when the attachment was levied, unless he can show fraud or collusion by which his rights are impaired. If property, when attached, is subject to a lien placed thereon by the defendant in good faith, that lien must be respected, and the attachment postponed to it.</p> <p>6. Instructions—Evidence to Support.—Instructions should not be given where there is no evidence on which to base them.</p>

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

Manley H. Barnes, administrator d. b. n. of M. C. Barnes, filed his bill in said court against John A. Barnes and others, the general object of which was to get the court’s instruction in the administration of the estate of his decedent. Subsequently, in.his character of administrator as aforesaid, he filed a petition in the cause setting up a note for $250.00 and a store account for $304.08, for which he sought a personal decree against John A. Barnes.

<p>Error to a judgment of the Hustings Court, of the city of Richmond declaring a city ordinance invalid. City of Richmond assigns error.</p>

<p>1. Constitutional Law—Glass Legislation-—-Supply Liens—Code, Section 2485.—Section 2485 of tbe Code (1887), as amended, giving prior liens to persons furnishing labor and supplies to mining and manufacturing companies is not contrary to Amendment Fourteen of the constitution of the United States as being class legislation denying to such companies the equal protection .of the laws. The statute makes no discrimination against any company brought under its influence, but treats all alike under similar conditions, and that is decisive of the question.</p> <p>2. Manufacturing Company—What Constitutes.—A company which, in pursuance of charter powers, is engaged .in manufacturing ships of all kinds and sizes, and all necessary furniture and fittings therefor, and also does original and repair work for manufacturing companies, and purchases large quantities of raw materials which it converts into the finished products, and has various shops, such as machine shops, copper shops, paint shops, and blacksmith shops, where work appropriate to such shops is done, is a manufacturing company within the meaning of section 2485 of the Code (1887), as amended, giving a prior lien to persons furnishing labor or supplies.</p> <p>3. Mechanics’ Liens—Taking Note of Debtor.—The mere taking of a note from the owner, the contractor, or some person who is liable for the payment of the debt, or amount due, does not defeat a mechanic’s lien,, or amount to a waiver thereof, in the absence of a showing that the taking of such note was intended as a waiver, or that it was taken as a payment of the account.</p> <p>4. Supply Liens—Perfecting Lien—Date of Account.—If materials are ’ furnishing a manufacturing company under a single contract and in fulfillment thereof, the items of the account are continuous, and the ninety days given the material man in which to file his account under Code, section 2486, is counted from the last item of tbe account, but if furnished undér separate contracts the account must be filed within ninety days from the last item under each independent- contract.., .</p> <p>5. Equity—Master’s Report—Exceptions—Particularity Required—Appeal and Error.—-Exceptions to the report of a master commissioner are in the nature of special demurrers, and the party objecting must point out specifically the error complained of, .otherwise the part not excepted to will be taken as admitted. Assignments of error in an appellate court stand on very much the same footing.</p> <p>6. Equity—Decree for Sale of Land—Account of Liens—General Rule— Exception.—As a general rule there should be no decree to sell real estate which is subject to liens until the amount and relative priorities of such liens, and the rights of all persons relating thereto, have been first fixed and ascertained. The object of the rule is that the property may be so sold as to realize the best price therefor. But if, in a particular case, the application •of the rule will work wrong and injury to the persons whose interests it was designed to advance and protect, the court will disregard it. The rule has no application to the sale of personal property.</p> <p>7. Insolvents—Distribution of Assets—Specific Lien—Share in General Fund.—A creditor holding a specific lien for a part of his debt may prove his entire debt against the other assets of an insolvent corporation without first allowing credit for the value of his specific lien.</p> <p>8. Judicial Sales—When Resale Will Not be Decreed.—Where property has been brought to the hammer under every reasonable safeguard that could be thrown around it to secure a fair an'd adequate price, and no, upset bid is offered, and there is no evidence that a better price could be obtained at another offering, and the property is such as will rapidly depreciate in value, the sale should not be set aside.</p>

<p>1. Banks and Banking—Forged Checks—Pass Book and Vouchers Returned—Duty of Depositor.—A bank depositor is under obligations to the bank to examine within a reasonable time and with ordinary care the account rendered in the pass book and the vouchers returned by the bank to him, and to report any errors discovered without unreasonable delay. The examination need not be so minute as to exclude any possibility of error, but it should be made in good faith and with ordinary diligence, and such care should be used as is required by the circumstances of the particular case. It need not be made by the depositor himself, but may be entrusted to any competent person. Whether reasonable care and diligence was used in any given case is a question for the jury, under proper instructions from the court.</p> <p>2. Banks and Banking—Forged Checks—Returned Vouchers.—If before paying an altered check drawn upon it, the officers of a bank could, by the exercise of proper care and skill, have detected the forgery, then the bank cannot receive credit for the amount of the check even if the depositor omitted all examination of his account returned to him by the bank.</p> <p>3. Banks and Banking—Forgery by Depositor’s Clerk—Examination of Vouchers by Same Clerk.—A clerk is not the agent of his principal in the commission of a forgery, and his knowledge cannot be imputed to the principal; but, after forged checks have been paid and returned to the depositor as vouchers, along with his account written up and balanced according to usual business methods, if the depositor assigns the duty of examining such vouchers and account to the same clerk, who has had an opportunity of committing a fraud and has done so, then such clerk, in the discharge of this duty, is the agent of the depositor, and the latter is chargeable with his agent’s knowledge of the fraud.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond in an action of ejectment. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Partnership—Sharing Profits.—In order to constitute a partnership-there must, as a general rule, be a community of interests among the partners, and the partners should share the profits and losses, but a mere participation in profits does not always constitute the party a partner. A miller, who is employed by the-owner of a mill to take charge of the mill as miller, who has no interest in the capital of the business and no rights as partner, but who is to receive a share of the profits for his services, is not a partner of the mill owner. The share in the profits merely constitutes the manner of payment and the measure of his compensation for his services as miller.</p>

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

<p>1. Eminent Domain—Power of Legislature—Strict Construction of Grants of Power.—The right of eminent domain resides in the Legislature, which alone controls the measure of its bestowal, and while the courts may supervise its exercise, they cannot curtail its ligitimate scope where the Legislature has plainly delegated the power to a subordinate agency. Statutes, however, which confer the power of eminent domain are to be strictly construed, as its exercise interferes seriously, and oftentimes vexatiously, with the ordinary rigfits of property.</p> <p>2. Eminent Domain-—Railroads—Branch Roads—Parallel Lines—Case at Bar.—A railroad company cannot, under the guise of constructing a branch line for the purpose of reaching new industries and fresh territory (which it is expressly authorized to do), parallel its main line for a considerable distance confessedly for the chief purpose of relieving the overcrowded condition of its main line. A branch road, as applied to railroads, denotes a road connected indeed with the main line, but not a mere incident of it, or constructed simply to facilitate the business of the chief railway, but designed to have a business of its own for the transportation of persons and property to and from places not reached by the principal road. In the ease at bar the proposed new'road is not a branch road within the meaning of the special act authorizing the construction of branches, nor is it within the general law authorizing railroad companies to straighten their lines so as to shorten distance or improve grades, since portions of it are more than two miles from the main line, contrary to the provisions of that law. Under these conditions the company cannot condemn land for the new location.</p>

<p>This case is controlled by Norfolk & Western Railway Co. v. Lynchburg Cotton Mills Co., ante, page 376.</p>

Error .to judgments of the Corporation Court of the city of Boanoke in actions of trespass on the case. Judgment for the plaintiff in each case. Defendant assigns error.

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

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

<p>1. Equity—Multifariousness—Different Causes of Action—One Insufficient.-—In order to sustain the objection of mutifariousness to a bill on the ground that it contains two different causes of action against the same parties two things must concur: First, the different grounds of suit must be wholly distinct, and, second, each ground as stated must be sufficient to sustain a bill. If the objection of multifariousness be interposed because two distinct claims are asserted in the same bill, one of which is a purely legal demand, enforceable only at law, the objection is bad.</p> <p>2. Actions—Parties—Claim of Partner Against Firm.—A partner cannot sue at law the firm of which he is a member, nor can he, upon a partnership debt, sue at law the other members of the firm.</p> <p>3. Demurbee—Grounds Stated—Others Not Considered.—Under section 3271 of the Code a trial court cannot consider any grounds of demurrer other than those specifically stated in the demurrer, nor can this court, except where the trial court has no jurisdiction of the case.</p> <p>4. Novation'—Case in Judgment.—-The defense relied on in this cause, that the complainant’s demands against the firm had been assumed by two of the surviving members, and the firm released, so that his demands are purely legal and cognizable only in a court of law, is not sustained by evidence of that clear and satisfactory character required to establish a novation.</p>

<p>1. Wills—Construction—Devise to Wife for Benefit of Herself and Children—Refusing to Qualify as Executrix.—A testator devised and bequeathed the whole of'-his estate, after the payment of debts, to his wife “to be used and managed by her for the mutual benefit of herself and our children,” but if she should marry, then she was to take only what the law allows a widow. She was authorized to make advancements to the children from time to time as circumstances might require, and upon her death or marriage “the estate which she may not have disposed of” was directed to be divided among his children, share and share alike, each one, however, accounting for advancements made by her under the power conferred by the will. The wife was appointed executrix, but refused to qualify as such. Held: The wife is entitled during her widowhood to the whole of the rents and income of the estate, and there is no trust for the benefit of the children with respect to such rents and income; and by refusing to qualify as executrix she did not surrender any of the powers given to her under the will except those relating strictly to the office of executrix.</p> <p>2. Wills—Advancements—Discretionary Powers—Supervision.—Where a husband by his will confers upon his widow the power “to make advances or give such aid to our children as circumstances may from time to time require,” and requires her to keep an account thereof “so that they shall enjoy as nearly as possible in equal degree the estate I may leave," the children have no right to demand that they be advanced the same amounts, but the widow is clothed with discretionary power as to the amount to be advanced to each, which a court of equity cannot control or review in the absence of bad faith on her part, or abuse of the confidence reposed in her. The equality intended by the will is in the final distribution.</p>

<p>Error to a judgment of the Corporation Court of the city of Manchester in a proceeding hy motion for a judgment. Judgment for the defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Roanoke county in a condemnation proceeding. Judgment for petitioners. Defendant assigns error.</p>

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

<p>1. Wills—General Devise with Power to Alien—Fee—Remainders.—If an estate is devised to a person, generally or indefinitely, with power of disposition, the devisee takes the fee, and if there is a limitation over it is void as a remainder, being after a fee, and void as an executory devise, since it is indefinite and uncertain, being in effect a limitation .of so much only as the devisee may not have disposed of.</p> <p>2. Wills—Oase in Judgment—Devise with Power to Alien—Fee Simple. A testator devised land to his three sons, with direction that if either desired to sell his part of the land the other or others should have the option to purchase at the best price to be obtained from any outside party, and if sold as above directed, it should be on credit of one, two, and three years, for equal installments thereof, with interest on the same at six per cent. By a subsequent clause the testator says: “If any .of my children to whom I have given real estate should die without lawful heir his or her part of the estate shall be equally divided between my other children to whom I have given real estate.”</p> <p>Held'. The three sons took fee-simple estates in the land devised to them.</p>

<p>1. Bills op Exception—Sow Evidence Certified.—Upon overruling a motion for a new trial on the ground that the verdict is contrary to the evidence the usual and better practice is for the evidence to be set out in the bill of exception before the signature of the judge is attached, but it is not fatal error if the certificate of the judge precedes the evidence where the evidence is completely identified, and, is in effect, made a part of the bill of exception.</p> <p>2. Presentment—Finding of Grand Jury—Record Evidence.—While the record must show the finding of an indictment as a true bill by the grand jury it is not so with respect to a presentment for a misdemeanor. It is sufficient in such case to set forth the substance of the finding in the order of the court.</p> <p>3. Constitutional Law—Taking Private Property—Abatement of Nuisance.—The abatement of a nuisance because injurious to the public health comes under the police power of the state, and is not a talcing of private property for public use, for which compensation must be made, within the meaning of the constitution.</p> <p>4. Public Nuisance—Stagnant Watei—Allegation and Proof—Proximate Cause.—To maintain a prosecution for a public nuisance occasioned by the maintenance of a dam, whereby the waters of a creek have been permitted to overflow adjacent lands and become stagnant, and the air impure, it is necessary to allege and prove that the nuisance charged affected a public highway, or some other place in which the public have such special interest. Furthermore, the thing or act which is the ground of prosecution must be shown to be the direct and proximate cause of the nuisance. It is no defense, however, that the acts of others over whom the defendant had no control contributed to the nuisance, if there would be a nuisance without such contribution.</p> <p>6. Instructions—Evidence to Support.—It is an error to give an instruction when there is no evidence to support it.</p> <p>6. Public Nuisance—Milldam—Evidence.—A milldam lawfully erected is not prima facie a nuisance, and upon the trial of an indictment for a nuisance resulting therefrom the mere proof of the existence of the dam imposes no burden on the owner thereof.</p> <p>7. Public Nuisance—Case at Bar—Milldam—Insufficient Evidence.— The presentment in this cause charging the defendant with the maintenance of a dam across a creek creating conditions whereby the air became corrupted and infected, causing malignant chills, fevers and other loathsome diseases to the injury of the public is not sustained by the evidence. Nor does the evidence show that any public highway or other thing of special public interest is affected by the alleged public nuisance, nor that the dam is the proximate cause cff the alleged nuisance or is responsible for the conditions complained of.</p> <p>8. Public Nuisance—Milldam—Abatement—Evidence.—Very clear and convincing proof is required to sustain a prosecution for a nuisance where the result is to destroy valuable rights and property held under specific authority of law; and, even in cases where a less degree of proof is required, the rule is that if there is more than one cause to which an injury may be attributable and it is just as probable that it was caused by one as the other, the party sought to be charged because responsible for one of them, must be relieved.</p>

<p>Error to a judgment of the Corporation Court of the city of Danville. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Appeal and Ebboe—Judgment of Justice of Peace—Constitutionality of Law—Course of Appeal.—No appeal lies directly to this court from a judgment of a justice of the peace for less than ten dollars and involving the constitutionality of a law. The machinery provided for this court, in exercising its appellate jurisdiction, is applicable exclusively to appeals from decisions of courts of record which can furnish transcripts of records to be reviewed here. Section 88 of the constitution does not confer upon this court the right of direct appeal from a judgment of a justice. The language of section 2956 of the Code is broad enough to cover the right of appeal to the circuit and corporation courts from a judgment of a justice of the peace involving the constitutionality of a statute, and section 3455 of the Code provides for an appeal from a circuit or corporation court to this court where the matter involved is “not merely pecuniary.” These statutes, being remedial, should be construed liberally so as to effectuate the purposes of their enactment, and, so construing them, they furnish the means for an indirect appeal to this court from the judgment of a justice involving the constitutionality of a statute.</p>

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

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

<p>Appeal from a decree in chancery of the Circuit Court of Brunswick county. Decree in favor of complainants as to a part of the controversy. Defendant appeals'.</p>

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

<p>Appeal from a decree in chancery of the Circuit Court of Gloucester county in the suit of Jones, Trustee, v. Ash and Others, in which the appellant became the purchaser of a parcel of land. From a decree compelling the appellant to comply with the terms of a judicial sale he appeals.</p>

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

<p>1. Slander—Privileged Communication—Malice.—Words spoken in the presence of the mayor of a town in reference to the inefficiency of a policeman of the town are privileged, and are not actionable unless shown to have been spoken with a malicious purpose.</p> <p>2. Instructions—Evidence to Support—Estoppel to Deny Existence of Evidence.-—Where a plaintiff has asked for and obtained instructions plainly predicated on the existence of certain evidence, he is estopped from denying its existence when considering instructions tendered by the defendant predicated upon the same evidence, although the evidence be not certified to this court.</p> <p>3. • Instructions—Jury Fully Instructed—Partial View of Case.—Although instructions given for a plaintiff may, here and there, recognize for the most part the law to be as claimed by the defendant, yet where his instructions magnify his theory of the case and minimize that of the defendant, it is error to refuse an instruction tendered by the defendant which clearly and succinctly states the law applicable to that branch of the case .with which it deals.</p> <p>4. Slander—Conduct of Public Officers-—Criticism.—The conduct of public officers is open to public criticism, and it is the right and duty of a citizen to make complaint of any misconduct on the part of officials to those charged with supervision over them, and it is his right and privilege to discuss the fitness or misconduct of such officials with taxpayers in the town in which they live.</p>

<p>Error to judgment of the Circuit Court of the city of Pichmoud in action of debt. Judgment for the defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree in chancery of the Circuit Court of Isle of Wight county. Decree for defendants. Complainants appeal.</p>

<p>1. Appeal and Error—Effect of Reversal with Order of Reference.— Where a record in this court discloses a mass of facts and innumerable items of claim and counter-claim between two parties, and evidence tending to prove items of claim of one party against another, a decree remanding the cause to the lower court with instructions to refer the cause to a master to ascertain in what property, real and personal, the parties are jointly interested, does not adjudicate that there is or is not any joint property. That was the fact to be ascertained, and the effect of the instruction was simply to indicate that this court was of opinion that there was evidence which rendered the aid of a master necessary to enable the trial court to deal intelligently with the case.</p> <p>2. Partnership—Sow Formed—Case in Judgment.—An agreement or contract to form a partnership is, as between the parties to the partnership, an essential element. In the case in judgment the evidence does not establish a partnership between the appellant and the appellee. 3. Resulting Trust—Parol Evidence—Contract of Siring—Case in Judgment.—In order to establish by parol evidence a resulting trust in land arising from the payment of the purchase money by another than the grantee, the evidence must be very clear, and the trust must result at the time of the execution of the conveyance. Mere parol evidence should be received in such cases with great caution. In the case in judgment the evidence offered to. establish the trust does not measure up to this stand- • ard. Neither does the evidence establish a contract of hiring, and, if it did, it affords no basis which enables the court to determine the amount of the compensation.</p> <p>4. Contracts—Consideration—Father and Son.—No contract will be implied to pay a brother for work done jointly with another brother on their father’s farm.</p>

<p>1. Trust Deed to Secure Creditor—Death of Creditor—Necessity for Administration Before Sale.-—After the death of a creditor whose debt is secured by a deed of trust on real property, there can be . no valid sale under the deed of trust until there has been qualification on the estate of the creditor secured in the deed, except with the consent of the debtor and of all persons interested in the debt secured; and even conceding that the creditor left no unsatisfied debts and that her son was her sole distributee, if an agreement between the son and the debtor that the trustee might sell the property conveyed to pay the ¡debt be relied on, such agreement should be clearly established.</p>

<p>1. Bills of Exception—Sufficiency—Annexing Stenographer’s Report of Evidence.—Where one bill of exception states that all of the evidence in a ease is certified in bill of exception No. 2, and bill No. 2 states that the “evidence as certified by the court, is in the words and figures, following, to-wit”; and the stenographer’s report of the evidence, endorsed by the counsel on both sides as a correct copy, and signed by the trial judge, is securely attached to the bill of exception by paper fasteners, the-bill of exception and report of the evidence are so articulated as to form but one paper, and sufficiently identifies the evidence referred to in the bill of exception.</p> <p>2. Appeal and Error—Refusal of Instruction—Instructions Given Not in Record.—If the record does not show what instructions were given by the trial court ,an exception to the ruling of the court refusing to give a single instruction will not be considered by this court, as the rejected instruction may have been covered by other instructions given.</p> <p>3. Appeal and Error—Refusal to Set Aside Verdict—Conflicting Evidence—Landlord and Tenant—Frozen Water Pipes.—In an action by the tenant of the first floor of a three-story building against the landlord to recover damages resulting from leakage-from frozen water pipes, if the written lease contains no stipulation in regard to the duty of cutting off the water, and the evidence is conflicting as to whether it was the duty of the landlord or of the tenant, this court cannot set aside a verdict in favor of the plaintiff, as it has to consider the case as on a. demurrer to the evidence by the defendant.</p>

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

<p>Appeal from a decree in chancery of the Corporation Court of the city of Boanoke. Decree for the defendants. Complainant appeals.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City county in a proceeding by motion to correct an erroneous assessment. Judgment for the plaintiff. Defendants assign error.</p>

<p>1. Executors and Administrators—Annuity—Demand—Laches—Case in Judgment.—A will by which a testator gave to his daughter an annuity for five years was admitted to probate in October, 1878. In November, 1879, she demanded payment of the first installment, but it was refused because the estate was largely . . indebted and delay in settlement was unavoidable. In 1880 the executor filed his bill asking a construction of the will and the administration of the estate under the direction of the court. ' The estate, exclusive of certain property loaned to the testator’s widow for life, was insufficient to pay his debts. The cause continued on the docket until 1905, when the daughter filed her answer demanding the payment of her annuity, with interest. Among other defenses to her claim was that of laches.. There was no death of parties, loss of evidence, or change of conditions alleged in support of the defense.</p> <p>Held: The daughter was not guilty of laches in asserting her claim.</p> <p>2. Wills—Annuity—Duration—Interest—Case in Judgment.—Under the terms of the will in this case the annuity given by the testator to his daughter continued only for a period of five years. The annual payments not having been made, she is entitled to interest on each annual payment from the time it became due and payable.</p> <p>3. "Wills—Construction—Case in Judgment—Annuity—Out of "What Payable.—The intention of the testator is to be gathered from the whole will, and, when ascertained, it becomes the law of the case unless it violates some positive rule of law. In the case in judgment, the testator directed the payment of‘an annuity for five years to his daughter out of his estate other than that loaned to his wife for life or widowhood, and further directed that, upon the death or marriage of his wife, the property loaned to her should be sold and the proceeds divided equally among all his children, including said daughter. Looking to the will as a whole, it is manifest that the annuity to his daughter was not to be paid out of the property loaned to his wife.</p>

<p>1. Fire Insurance—Building on Leased Ground—Ignorance of Insurer— Knowledge Imputed by Public Statute—Failure to Return Premiums—Estoppel.—Where the condition of a fire insurance • policy is that it shall be void “if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple,” the insured by accepting the policy is charged with notice of its contents and bound by its conditions, and the company, by issuing the policy without inquiry, does not waive the condition as to title and ownership unless the facts were known to the company or its agent when the policy was issued, or the company was chargeable with such knowledge. Nor is the company obliged to return, or otter to return, the premiums voluntarily paid before notice of the fact that the policy is not in force as a condition precedent to availing itself of its defense to an action on the policy. Where, however, a structure stands on the bed of a bay declared by a public statute to be the property of the state, the insurance company, on a demurrer to the evidence by it, must be held to a knowledge of the true situation, and is estopped to set up a breach of the condition of the policy as to title as a defense to a recovery for the loss sustained.</p> <p>2. Fire Insurance—Policy—Condition Against Fireworks—Permission Given By Tenant—Ignorance of Landlord.—The condition of a fire insurance policy Issued to the owner of property that the policy shall be void “if there be kept, used or allowed on the premises any fireworks” is violated, and there can be no recovery on the policy, when the loss was occasioned by an exhibition of fireworks on the premises with the permission of the tenant, although the landlord was wholly ignorant of it. The owner is bound by the provisions of the policy, and a breach of the condition by anyone permitted by him to occupy the premises is a breach by him. It is his duty to see that his-tenants do not violate the terms of his contract.</p>

<p>Error to a judgment of the Circuit Court of the city of Eichmond is an action of assumpsit. Judgment for the plaintiffs. Defendants assign error.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond in an action of assumpsit. Judgment for the plaintiff.</p> <p>Defendants assign error.</p>

<p>1. Appeal and Error—Demurrer—Grounds not Assigned in Trial Court.-—Where the grounds of a demurrer were called for in the trial court, and were given in writing, only those pointed out in the written specification filed in the trial court can he considered in this court. A general specification of “divers other causes” is ineffectual.</p> <p>2. Corporation—Right to Purchase Its Own Stock.—In the absence of a charter or statutory provision, corporations may purchase, hold and sell shares of their own stock, provided they act in good faith.</p> <p>3. Bills of Exception—Unidentified Pager not Sufficient.—A paper filed in the record, without identification of any kind whatever, which purports to set out the evidence given on the trial, at the end of which, is a certificate of the judge presiding at the trial stating, “I hereby certify that the foregoing is all the evidence in this ease,” is not a bill of exception, and cannot be made to serve its function. It cannot be used as a basis of review of the action of the trial judge in granting and refusing instructions based on the evidence, or in overruling a motion for a new trial on the ground that the verdict is contrary to the law and the evidence.</p>

<p>;1. Deed to Secuke Cbeditobs—Subsequent Sale by Grantor—Misappropriation of Proceeds—Release by Trustee and Creditors.—Where land conveyed in trust to secure creditors is subsequently sold by the grantor, the proceeds of the sale are impressed with the trusts which rested upon the land, and cannot be diverted to an unsecured debt by the grantor or anyone else except with the consent, express or implied, of the creditors secured. If the trustee and creditors secured unite in a deed releasing the land to the grantor, in which it is recited that the land has been sold and the proceeds applied in payment of the debts secured, an,d in consideration thereof the release is made to the grantor, this affords no warrant for an appropriation of those proceeds to an unsecured debt, and if they are applied to an unsecured debt of one of such beneficiaries the application will be set aside at the instance of other creditors secured by the deed.</p> <p>U. Equity—Master’s Report—Exceptions—Estoppel.—The concurrence in this cause of a secured creditor in the exceptions to the commissioner’s report was based upon the statement of the commissioner that an unsecured debt was barred by act of limitations, and not to the method in which the commissioner applied the proceeds of the sale of the trust property, and said creditor is not estopped from relying upon such application.</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. Defendant assigns error.</p>

<p>1. Wills—Case in Judgment—Annuity—Increase of Corpus of Estate Devised.—A testator, by clause 2 of his will, devised real estate to his son E. for life, with remainder to his children; and if none, to a trustee named in clause 3, to be held upon precisely the same trusts as those declared in clause 3. By clause 3 he devised other real estate to a trustee with directions to lease it, and after paying expenses and repairs, to pay to his son M. $600 per annum till marriage, and thereafter during his lifetime to pay him $1,200 per annum, if the property yielded so much; to invest the residue; and upon the death of M. the real estate and the invested funds were to pass to the children, if any, of M. and their descendants by stocks, and if no such children or descendants, then to the other' son E. for life, with remainder to his children or their descendants, as provided by clause 2. Clause 3 declared that the sole purpose of providing for M. was to furnish him with a maintenance and support during his natural life, and forbade him to sell, encumber or anticipate his annuity; and further provided that it should not be liable for any of his debts, present or future. By clause 4 he directed that if neither E. nor M. left any child, or descendant of any child, then the estate devised by clauses 2 and 3 should pass to the children of his uncle R. The son E. died without any child or descendant of any child during the lifetime of M. The latter claimed that by the death of E. two trust funds were created, and that he was entitled to receive $600 per annum from each fund until marriage, and $1,200 from each after marriage until his death.</p> <p>Held: But one trust fund was created, and M. is only entitled to $600 per annum till marriage and $1,200 per annum thereafter during his lifetime. The assets from which the annuity is payable are increased, but not the annuity.</p> <p>2. Wills—Testing of Estates.—While the law does not favor the accumulation of estates, and will, in doubtful cases, so construe a will as to bring about immediate vesting of the estate disposed of, yet when the intention of the testator is clear and explicit the courts are bound to carry it out, if lawful.</p>

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

The answer of the defendant Rhodes to a hill filed by one Settle was treated as a cross-bill, to which the appellant was made a party defendant. Vrom an adverse decree the defendant Reid appeals.

Mc-, Clung's Heirs and others. From a decree in favor of defendant, Richmond Home. for Ladies, the heirs and distributees of Mary E. McClung, who were also defendants, appeal.

<p>Error to a judgment of the Corporation Court of the city of Lynchburg in an action of assumpsit. Judgment for the defendant. Plaintiff assigns error.</p>

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

<p>1. Mutual Benefit Societies—By-Laws—Restrictive Provisions—Code, Section 3252.—Section 3252 of the Code requiring the conditions and restrictive provisions of insurance policies to be printed in type as large as or larger than long primer type, or written with pen and ink in or on the policy, has no application to the conditions and restrictive provisions contained in the by-laws of an ordinary mutual benefit society made a part of the certificate of membership, which is the contract between it and the member. The law conclusively presumes that those who become members of such a society have acquainted themselves with its by-laws. '</p>

<p>1. Equity—Bill to Correct Treasurer’s Account—Discovery—Surcharge and Falsification.—A bill filed by a board of supervisors of a county against a county treasurer charging that he had made certain settlements with the board which were erroneous, and pointing out the errors complained of by reason of which he had failed to account for funds due the county from delinquent taxes, and had charged a greater commission on certain funds than the law allows, and praying for a reference to a commissioner to settle the accounts of the treasurer, and that he be required to produce before such commissioner his books and papers to enable him properly to state the accounts, and that he be required to pay the amount found due by him, and for general relief, is in no sense a bill of discovery, but a bill to surcharge and falsify the accounts of the treasurer, and is subject to the rule governing such bills which requires the specific grounds of surcharge and falsification to be stated in the bill.</p> <p>2. County Treasurers—Delinquent Taxes—Credits to Treasurer—Accounting—Suit 5y Board of Supervisors.—A county treasurer is not entitled to receive credit by any delinquent taxes until and unless the original tickets for such taxes have been filed with the clerk of the court. When a proper list is filed the treasurer is liable for all moneys received by him on tax tickets contained in such lists. The board of supervisors of the county may maintain a bill in equity and have a reference to a commissioner in chancery with regard to such tickets and collections, and hold the treasurer responsible, to the extent of the county’s interest therein, for all such tickets as were actually collected by him.</p> <p>3. County Treasurers—Delinquent Taxes—Default of Treasurer—Suit by Board of Supervisors.—Section 612 and cognate sections of the Code (1904) providing for the collection of delinquent taxes from taxpayers, apply only to cases in which the lists have been returned by the treasurer in good faith in conformity to law, and afford no remedy against a treasurer who has ex maleficio collected tax tickets in the delinquent lists. The hoard of supervisors can alone hold a treasurer responsible for such derelictions of duty so far as the county levy is concerned. These statutes afford remedies against delinquent taxpayers and their property, but none against a defaulting treasurer.</p> <p>4. County Treasurers—Excessive Charges—Remedy at Law.—If the only claim of a board of supervisors against a county treasurer, is for an excess .of commissions' retained by him, the remedy is at law, and not in equity.</p>

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

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

<p>Error to a judgment of the Law and Chancery Court of the city of Norfolk in an action-of trespass on the case. Judgment for the plaintiff against one of the defendants who assigns error.</p>

<p>Error to a judgment of the Circuit Court of Augusta county in an action of ejectment setting aside a former judgment for the plaintiff on the application of one of the defendants. To the judgment awarding said defendant a new trial the plaintiff assigns error.</p>

<p>Appeal from a decree in chancery of the Circuit Court of King William county. Decree for complainants. Defendant appeals.</p>

<p>Appeals from a decree of the Chancery Court of the city of ^Richmond. Decree in favor of one of the defendants. The ■complainant and the other defendant appeal.</p>

<p>1. Negligence—Safe- Premises■—Injury to Visitors.—It is the duty cf the owner of premises to keep them in a reasonably safe condition for those who may enter thereon by his invitation, express or implied. He is not an insurer of their safety, and in order to hold him liable for an injury occurring on the premises it must have been the natural and probable result of ihe condition of the premises, and one which, under the circumstances, he ought reasonably to have foreseen might probably occur.</p> <p>2. Negligence—Proximate Cause—Concurrent negligence of Plaintiff and Defendant—Case at Bar—Unsafe Premises.—If the proximate cause of an injury was the negligence of the plaintiff and of the defendant concurring and co-operating together, the plaintiff is not entitled to recover. In the case at' bar the plaintiff lawfully entered the rear vestibule of the defendant’s house, and not knowing which of several doors to enter, “knocked” on one of them and defendant responded “come in,” when the plaintiff opened the door and started in, but fell down a flight of steps into a cellar, causing the injury complained of. Plaintiff thought she was knocking on a door which would afford entrance to the house, and defendant also thought that plaintiff was knocking on the right door.</p> <p>Held: The accident was manifestly the result of a misapprehension on part of both plaintiff and defendant, and to which both innocently contributed, and the plaintiff cannot recover.</p>

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

<p>1. Eminent Domain—Exception to Commissioners—When Too Late—Waiver.—After commissioners in condemnation proceedings, who were appointed on the suggestion of the parties, have performed their duties and made their report, it is j;oo late to object that one of them was disqualified to act because not a freeholder. The objection will be deemed to have been waived, in the absence of evidence of prejudice.</p> <p>2. Eminent Domain-—Damages to Residue—Railroads—Inconvenience During Construction.-—In estimating the damages done to ‘the residue of a tract” of land, a part of which is taken in condemnation proceedings for railroad purposes, it is not error for, the commissioners to take into consideration the expense and inconvenience to which the landowner will be put by throwing the farm open while the road is being constructed through it.</p> <p>3. Eminent Domain—Part of Tract Taken—Damages to Residue.— Where a part of a tract of land is taken in condemnation proceedings for a railroad, the commissioners should first ascertain all the damages which the taking occasions to the land, and then ascertain the peculiar or special benefits which increase its value in a way in which the lands of others generally are not benefited, and if the former exceed the latter, award the excess to the land owner.</p> <p>4. Eminent Domain—Elements of Damage—Instructions—Estoppel.— Where commissioners, in condemnation proceedings, have been instructed, without objection from either party, as to the elements of damage to be considered by them, and they have made a report in accord with such instructions, neither party will be allowed to complain of the action of the commissioners in doing what they were told it was their duty to do.</p> <p>5. Eminent Domain—Award of Commissioners—Weight—Objections— View.—The award of commissioners in condemnation proceedings is entitled to great weight, and will not be set aside in the absence of any evidence of bias or prejudice, or misconception on the part of the commissioners of the principles of law, which should control their action. They are not bound by the opinions of experts, or the apparent weight of the evidence, but, having viewed the premises, may give their own conclusions, and for a mere error in judgment as to the amount of damages, there is no redress. The view is regarded as of special importance.</p>

<p>1. Indictment—Amendment Charging New Offense.—If, pending the trial of a misdemeanor, the trial court directs the indictment to be sent back to the grand jury which found it (which is still in session) for amendment, and the indictment is so amended, and, when reported by the grand jury, the defendant pleads anew to the indictment as amended, this amounts to a discontinuance or abandonment of the prosecution of the original indictment. If the trial proceeds to conviction on the- amended indictment and it is conceded that none of the offenses proved under the amended indictment could have been proved under the original, and no question of former jeopardy is involved, the verdict will not be set aside.</p> <p>2. Misdemeanobs — Indictment — Several Offenses — Counts. — While a. party may be tried on the same indictment for several misdemeanors of the same nature and upon which the same or similar judgments may be rendered, there must be a separate count for each offense, for he cannot be convicted of more offenses than there are counts.</p> <p>3. Misdemeanobs—Several Offenses—Different Dates—Election.—Where, upon the trial of an indictment containing a single count, charging the defendant with the illegal sale of liquor to certain designated parties “at divers times within the last twelve months,”' evidence has been received tending to show a number of distinct sales covering a period of several months, the commonwealth may be required, before the prisoner opens his defense, to elect on which of the sales it will proceed.</p> <p>4. Intoxicating Liquors—Sale Without License—Punishment.—Upon a conviction of selling liquor without a license the trial court may add imprisonment to the fine imposed by the jury.</p>

<p>This case is ruled by Hatcher & Shaw v. Commonwealth, ante, page 827.</p>

<p>Error to a judgment of the Circuit Court of EranHin county on a prosecution for a felony. To a judgment of conviction defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Warren county imposing a fine upon plaintiff in error for the unlawful sale of intoxicating liquors.</p>

<p>Error to a judgment of the Corporation Court of the city of Danville, imposing a fine on the plaintiff in error.</p>

<p>1. Criminal Law—New Trial—Rule Governing—Conflicting Evidence— Case at Bar.-—Motions for new trials are governed by the same rules in criminal as in civil cases. In neither case will this court reverse the judgment of a trial court overruling a motion for a new trial on the ground that the verdict is contrary to the evidence unless it finds that the evidence, considered as on a demurrer to the evidence by the plaintiff in error, is plainly insufficient to warrant the finding of the jury. It is not enough that the members of this cofirt think that if they had been on the jury they might have found a different verdict. In the case at bar if the witnesses for the commonwealth were worthy of credit (and of this the jury were the exclusive judges), it cannot be said that the verdict of the jury was either contrary to the evidence, or without evidence to support it.</p> <p>2. Criminal Law—New Trial—Conflict of Evidence—Appeal and Error. Where a case depends on the credibility of witnesses and the weight of the evidence, this court will not disturb the verdict of the jury approved by the judgment of the lower court.</p> <p>3. Trial—Procedure—Criminal Cases—Verdict Contrary to Evidence.— The procedure with respect to the admission of evidence, the granting and refusing of instructions, and of saving objections for the appellate court are the same in civil and criminal cases. Indeed, upon a motion to set aside a verdict as contrary to the evidence, the statute in both classes of cases provides that the evidence shall be considered as upon a demurrer to the evidence by the plaintiff in error. So considering the evidence in this case, it is sufficient to support the verdict. The commission of the offense and the identification of the offender, by his victim, having satisfied the jury, their verdict cannot be set aside by this court even though the evidence of the victim were unsupported and uncorroborated.</p> <p>4. Evidence—General Objection.—A general objection to evidence which is in part admissible, ought not to be sustained, but the objection should state specifically tlie nature and extent of his objection.</p> <p>5. Bills of Exception-—Rulings on Evidence—Objections—Waiver.—If objection is made to the reception of evidence and is overruled, it will be deemed to have been waived unless saved by a proper bill of exception filed within the time prescribed by law.</p> <p>6. Bills of Exceptions—Refusal to Sign—Mandamus.—If a bill of exceptions which presents the truth of the case be presented to the trial judge in due time he can exercise no arbitrary discretion in the matter. He must sign it, and, if he refuses, may be compelled to do so by mandamus.</p>