Volume 107 — Virginia Reports

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

J ones, in which the court refused' to confirm a sale made under its decree, at which sale appellants were reported as the purchasers.

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

<p>1. Equity—Issue out of Chancery—Object—When to be Ordered.—The object of an issue out of chancery is to satisfy the conscience of the chancellor in a doubtful case. It is not sufficient that the evidence is simply conflicting, but the case must be doubtful, and there must be proper evidence that it is doubtful. The propriety of ordering an issue depends upon sound discretion, which is to be cautiously and diligently exercised according to the circumstances of the particular case. A party cannot be deprived,- by an order for an issue, of his right to a decision by the court on the case as made by the pleadings and proof, unless the conflict of the evidence is so great, and its weight so nearly evenly balanced, that the court is unable to determine on which side the preponderance is.</p> <p>2. Equity—Issue out of Chancery—Affidavits Allowed by Statute—Contents.—Under section 3381, Code 1904, the mere affidavits of parties and counsel that the case will be rendered doubtful by conflicting evidence, is not sufficient to warrant a chancellor in ordering an issue. The court is still to exercise its discretion, on sound principles of reason and justice, as to the necessity for the issue, and this it cannot do unless the affidavits contain sufficient facts to furnish a proper basis for its judgment. The affidavits simply take the place of the testimony required prior to the enactment of the statute.</p> <p>3. Equity—Issue out of Chancery—Effect of Improperly Ordering—Reversal—How Record Viewed on Appeal.—In determining whether a trial court erred in awarding an issue out of chancery, this court will not be influenced by any matters connected with the testimony taken on the trial of the issue, but will look simply at the state of the proof existing at the time when the issue was ordered. If it appears that the issue was improperly awarded because of the insufficiency of the affidavits upon which the application was based, this court will reverse the order awarding the issue, although a verdict has been found in favor of the plaintiff, and will remand the cause for further proceedings.</p>

<p>Appeal from a decree of tide Circuit Court of the city of Newport News. Decree for defendants. Complainant appeals.</p>

<p>1. Waters and Water Courses—Change of Course.—The owner of land may change the whole course of a stream within the limits of his own land, provided he restores the water, undiminished, to the original channel before leaving his own premises, and other persons are not injured by such diversion.</p> <p>2. Waters and Water Courses—Overflow—Change of Course.—The right of a land owner, under circumstances like those in this cause, to change the course of the superabundant water produced by freshets, is not less clear than his right to change, on his own land, the course of the ordinary stream.</p> <p>3. Railroads—Flood Waters—Culverts—Case at Bar.—Where the proprietor of land changed the course of a stream through his own land and then returned' it to its original channel, before leaving his land, and constructed a wasteway, to carry off the surplus water, in case of freshets, both of which appeared to be permanent, and some years thereafter a railroad company constructed its road-bed across said channel and wasteway, it was the duty of the company to provide for the escape of the water through the wasteway as well as through the channel, although the proprietor may have originally intended to change the location, at some future time, of said artificial channel. The company should have adapted itself to existing conditions, which could not thereafter have been changed to its prejudice. Flood water, which overflows from a natural stream, is not surface water, and a railroad company is liable in damages for injuries resulting from its failure to construct proper culverts to carry it off where its embankments would otherwise obstruct its passage.</p>

<p>1. Demurrer to Evidence—Demurrer Overruled—Verdict Set Aside—New Trial.—When a demurrer to evidence is overruled, but the conditional verdict of the jury is set aside for lack of evidence to support it, the trial court should, upon request of the demurrant, permit him to withdraw his demurrer to the evidence, and direct a new' trial of the whole case, and not simply award an inquiry of the damages sustained.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond in an action of 'trespass on the case. Judgment for the plaintiff. Defendants assign error.</p>

<p>1. Principal and Agent—Powers of Special Agent.—A special agent is one who is authorized to do one or more specific acts in pursuance of particular instructions, or within restrictions necessarily implied from the act to he done. His powers are to he strictly construed. He possesses no implied auhority beyond what is indispensable to the exercise of the power expressly conferred, and must keep within the limits of his commission. All persons deal with such an agent at their own risk as to the extent of his powers.</p> <p>2. Principal and Agent—Special Agent—Power to Sell for Cash—Sale on Time.—A power to a special agent to sell for cash at any time within thirty days, does not authorize a sale on credit, even though the credit does not extend beyond the thirty days. A mere power to sell without more, implies a cash sale.</p> <p>3. Custom—Burden of Proof—Knowledge of Custom.—The burden of upon the party alleging a custom to prove it by satisfactory evidence. Furthermore, knowledge of the existence of the custom must be brought home to the party to be affected thereby, unless the evidence shows that it is so uniform and notorious at the place where he resides as to raise a prima facie presumption that he knew of it.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Error to the judgment of the Hustings Court of the city of Portsmouth in an action of debt. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Buns and Notes—Collateral Agreement in Separate Paper—Construction—Assignment.—Where, at the time a negotiable note is made, an agreement in writing is executed by the maker and the payee of the note, which is therein declared to be a part and parcel of the note, by which it is declared that the note is only to be payable on certain conditons, the two writings together constitute the contract between the parties, and if both of them are endorsed by the payee and delivered to a third person, he acquires thereby only such rights as the payee of the note had.</p> <p>2. Pleading—Debt—Nil Debet—Scope.—If an action of debt be brought on a negotiable note against the maker thereof, and the defense is that there was annexed to the note, as a part and parcel thereof, an agreement in writing, stipulating that the note should only be payable on certain conditions, which had not been fulfilled, the defense may be made under the plea of nil debet. No special plea is necessary.</p> <p>3. Appeal and Error—Objections not made until after Verdict—Reversal on other Grounds.—Whether or not detaching a negotiable note from an agreement annexed to it, and qualifying its terms, and bringing suit on the note alone, is such an alteration as avoids the contract, ought not now to be considered by this court in this case, as it appears • that the question was not raised in the trial court until after verdict against the makers, and the ease is reversed and remanded for a new trial on other grounds.</p>

<p>1. Trial—Construction of Written Contract for the Court.—Where the relation of the parties to a contract depends upon a written contract, unambiguous in its terms, and this fact is to he determined in an action at law, brought by one of said parties against a third person, it is the province of the court to construe the contract, and, as a matter of law, to determine the relation between the parties.</p> <p>2. Master and Servant—Independent Contractor—Privity—Case at Bar.— Where a contractor enters into an agreement with the owner of a lot, whereby he engages to purchase the material, employ the labor, and superintend and erect a building for the owner, in accordance with plans in hand, and at an agreed price, and to render a true account of purchases and pay-rolls; to use his best efforts to secure material and labor at the lowest cost; and guarantees that the workmanship shall be first-class in every respect; and in consideration thereof, the owner agrées to pay the net cost of the material and labor, and to pay the contractor a stated sum, which is designated a commission,' these facts constitute the contractor an independent contractor, and he alone can sue a third person for the damages resulting from the negligent construction of a portion of the building under a contract made with him.</p>

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

<p>Appeal from a decree of the Circuit Court of the city of Norfolk. Decree for defendants. Complainant appeals.</p>

<p>1. Negligence—Sow Charged—Declaration.—Negligence, as a general rule, is a conclusion of law from facts sufficiently pleaded, and the office of a declaration is to inform the defendant of the case which he has to meet, so that he may have a reasonable opportunity to prepare and make his defense. It is not enough to say that the plaintiff was injured, and that the injury resulted from the careless and negligent conduct of the defendant; but the facts relied on to establish the negligence of the defendant, for which he is to be held liable, should be stated with reasonable certainty. The declaration should state sufficient facts to enable the court to say, on demurrer, whether, if the facts stated are proved, the plaintiff is entitled to recover. More general averments of negligence are not sufficient.</p> <p>2. Debication—Acceptance—City Streets—Roads.-—-The intention to dedicate a street in a city, or a road in the country, may be shown in any way by which intention may be manifested. The acceptance of the dedication may, in the ease of streets, be shown by the acts of corporation officers, but the acceptance of a road, in order to impose upon the public the duty of keeping it in order, must appear as a matter of record, though a formal acceptance is not necessary. It is sufficient if the record of the proper tribunal shows other acts whereby the road is claimed as a public one.</p> <p>3. Highways—Evidence—Burden of Proof—Street Railways.—In an action to recover damages from a street ear company for an injury negligently inflicted on a traveller on an alleged public highway, the burden is on the plaintiff to show that the locus in quo was a public ’ ' highway.</p> <p>4. Trial—Argument of Counsel—Doubtful Suggestions.—It is far better for counsel to content themselves with asking a verdict of the jury based upon the law and the evidence, without suggestions of a nature which might imperil an otherwise righteous judgment.</p>

<p>Appeal from a decree of the .Circuit Court of the city of Williamsburg and James City county. Decree for the complainant. Defendant appeals.</p>

<p>1. Infants—marriage Settlements—Disaffirmance.—If an infant feme, upon the eve of her marriage, unites with her intended) husband in settling her real estate upon herself and the contemplated issue of such marriage, the act is voidable, and can be disaffirmed by her, when the disabilities of infancy and coverture have been removed, where she has, in the meantime, done no act to ratify or affirm such settlement. Tabh v. Archer, 3 Hen. & M. 399 is disapproved so far as it conflicts with this ease.</p>

<p>1. Principal and Agent—Representations of Agent■—Admissions' after Termination of Agency.—While a principal is bound by the representations of his agent made while negotiating a lease for him, he is not bound by the admissions of such agent made after the lease has been entered into.</p> <p>2. Cancellation of Instruments—Fraud—Mistake.—While mistake as 'well as fraud furnishes ground for rescinding contracts, an executed contract will not be rescinded in either ease unless the fraud be satisfactorily established or the mistake be plain and palpable, and affect the very substance of the thing contracted for.</p> <p>3. Cancellation of Instruments—Case in Judgment—Defective Title of Lessor—Notice.-—The facts of this case do not warrant a rescission of the executed contract of lease in controversy, even if the lessor did not have complete title to an insignificant part of the leased premises at the time the lease was made. Notice to the husband of the lessor of the defective title and of the lessee’s desire or intention to rescind was no notice to the lessor, who had executed the lease in person which the husband had no power to make. No notice was given to the lessor herself until eighteen months after the discovery of the defect, which was then immediately remedied.</p> <p>4. Principal and Agent—Special Agent—Written Authority—Notice.—A party dealing with an agent acting under written authority, must take notice of the extent and limits of that authority.</p>

<p>1. Appeal and Error—Final Judgment—Exception to Ruling of Trial Court.—-An order, refusing to admit to probate a paper offered as a will, is a final judgment to which a writ of error lies, although no provision is made for the costs of the proceeding in which the will is offered; and an exception to the action of the court, refusing to set aside the verdict of the jury and grant a new trial of the issue as to whether or not the paper offered was the true last will and testament of the testator, is sufficient to enable the propounder of the paper to maintain a writ of error, although no formal exception was taken to the judgment of the court refusing to admit the paper to probate.</p> <p>2. Appeal and Error—Harmless Error—Bill of Particular's.—The refusal of the trial court to require a defendant to file a statement of his grounds of defense is not assignable error here, where it appears that the defenses relied on were distinctly developed at the trial, the greatest latitude allowed the parties, and that the plaintiff could not have suffered any injury by the refusal of the court to require such statement to be filed. ,</p> <p>3. Evidence—Relevancy—Wills—Probate.—On a motion to admit a will to probate, where the only issue is undue influence, the propounder cannot be asked if she wants to hold on to all of the property of the testator, to the exclusion of his children. The evidence is irrelevant to the issue, or to the due execution of the will.</p> <p>4. Wills—Undue Influence—Devise to Wife—Pecuniary Condition of Children—Evidence.—Upon issues of testamentary incapacity and of undue influence exerted by a wife over her husband in making a will of all of his property to her, to the exclusion of his children, evidence that his children were poor and in needy circumstances is relevant, and may be considered as a circumstance in determining the validity of the testamentary disposition of his property.</p> <p>5. Witnesses.—Impeachment—Questions Tending Merely to Degrade Witness.—A witness cannot be asked a question which merely tends to degrade him, and thereby affect his credibility, if the question is otherwise irrelevant.</p> <p>6. Wills—Testamentary Capacity—Burden of Proof—Presumption of Sanity.—The burden of proving testamentary capacity is on the propounder of a will, but when a will is offered for probate and it is shown that all the statutory formalities have been complied with, and especially where it appears that the will is wholly in the handwriting of, and is signed by the testator, there is a presumption of testamentary capacity. There is, indeed, a presumption in favor of the sanity of every man until evidence that he is of unsound mind is introduced.</p> <p>7. Evidence—Fraud—Undue Influence—Burden of Proof—Shifting of Burden.—Fraud is never presumed, but must always be proved by the party alleging it. This burden never shifts; and while it is necessary for the propounder of a will, the probate of which is resisted on the ground of undue influence, to bring forward evidence to repel evidence of undue influence which has been offered by the other side, the real burden of proof upon the issue of undue influence has not changed, and it is misleading and erroneous, after having instructed the jury correctly on the subject, to further instruct them that “the burden of proof in this ease lies upon said propounder to satisfy the jury by evidence that the paper writing propounded is the’last will and testament of a free and capable testator.”</p> <p>8. Appeal and Error—Instructions—Objections not made in Trial Court.— This court cannot consider an objection to an instruction given by the trial court, -when the objection was not saved by proper exception. The objection cannot be made in this court for the first time.</p> <p>9. Wills—Testamentary Capacity—Undue Influence—Nature and Character of Will—•Evidence.—The nature and character of a will may he considered as a circumstance along with all the other circumstances affecting the testamentary capacity of a testator and the question of undue influence, but cannot of itself be sufficient to establish the want of testamentary capacity, or that the testator, in the execution of his will, was controlled by undue influence.</p> <p>10. Wills—What Constitutes Undue Influence.—The influence which will vitiate a will must amount to force and coercion, destroying free agency. It must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in favor of the testamentary act. Further, there must be proof that the act was obtained by coercion or importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.</p> <p>11. Wills—Testamentary Capacity—Undue Influence—Evidence—Declarations of Testator.—Upon issues of testamentary capacity and undue influence, the declarations of the testator not made contemporaneously with the execution of his will, are relevant evidence to show his feelings and affections towards the natural objects of his bounty, his mental condition as reflecting upon his testamentary capacity; but are not admissible to establish the substantive fact of undue influence.</p> <p>12. Instructions—Heedless Multiplication.—As every instruction unnecessarily given increases the chances of a reversal, the multiplication of instructions should be avoided as far as possible.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, in a condemnation proceeding, wherein the Chesapeake & Ohio Railway Co. was the plaintiff, and C. E. Hunter’s Administrator and heirs were the defendants. To a judgment allowing the defendants less damages than were reported in their favor by the commissioners, Hunter’s Administrator assigns error.</p>

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

<p>1. Evidence—Parol Evidence to Show Alteration of Writing.—Parol evidence is admissible to show that, after an unsealed paper had been executed, delivered and recorded, a scroll, by way of a seal, was affixed to the name of the maker, both on the original paper and on the record, without the knowledge or consent of the maker.</p> <p>2. Deeds—Absence of Seal—Conveyance of Land.—A paper concluding “Witness my hand and seal,” but to which no seal, or scroll by wa.y of seal, is annexed, is not a sealed instrument, and is ineffectual to convey land in this state.</p>

<p>1. MuNICIPAL Convonivions-Strcet s-Leaving Sidewalks-Walking in Gutter-Negligcnce.-A pedestrian who leaves a city sidewalk; which is neither obstructed nor in an nnsafe condition, but merely wet, muddy and in a disagreeable condition to walk on, and walks in and along an adjacent paved gutter constructed for drainage duly, and, without exercising ordinary care for his own safety, falls into a sewer inlet made in the gutter for the purpose of drainage, is guilty of such contributory negligence as bars any recov~r,y against the city. The necessity for such inlets is a matter of common knowledge, of which every one mnst take notice, and the dangers of which they must guard against, even where they leave the ssdewalk for sufficient cause.</p> <p>2. APPEAL AND Ennon-Reviewing Rulings on Immaterial Evidence-Correct T'erdict.-Where it appears that there was no sufficient reason for a pedestrian's leaving the sidewalk and walking in an adjacent paved gutter, and the jury have rightly so found under instructions from the court, this court will not undertake to review the rulings of the trial conrt in rejecting eyidence offered by the plaintiff, as to the city's having repaired the place in the gutter where the plaintiff was injured, or that others had fallen into the same or similar openings in the gutter. As there could have been no other • • verdict rightly found than what *as found, the proffered evidence was immaterial.</p>

<p>1. Equity—Jurisdiction—Quieting Title—Who May Sue.—Only those who have a clear, legal and equitable title to land, and are in possession thereof, can- invoke the aid of a court of equity to give them peace, or dissipate a cloud on the title. If a person is out of possession but has the legal title, his remedy at law, by ejectment, is full, adequate and complete; if he has only an equitable title, he must first acquire the legal title, and then bring ejectment.</p>

<p>1. Death by Wrongful Act—Action by Injured Party■—Revival After Death—Final Judgment—Res Judicata.—Under the Virginia statute giving a right of action for death occasioned by the wrongful act, neglect or default of another, but one action can be maintained to recover damages for an injury resulting in such death, as there is but one cause of action in such a case; and whether that action be brought by the injured party in his lifetime and revived after his death, or a new action be brought by the personal representative within the statutory period, as provided in the statute, only one recovery can be had, and that for the benefit of the next of kin named in the statute, where any such exist. If an action brought by the injured party in his lifetime be revived in the name of his personal representative after his death, and proceed to final judgment, it is a bar to any other action to recover damages for the same injury. The object of the statute was to give a right of action where none existed at common law, and to prevent an action from abating which would otherwise have abated, but not to allow two actions against the same defendant for the same injury.</p>

<p>1. Constitutional Law—Amending Acts of Assembly—Title of Acts.— Where the title of an act declares it to he an act to amend and reenact a prior statute, but the enacting clause makes no reference whatever to the act which is referred to in the title, and does not purport to re-enact and publish it at length, such amendatory act is void because of its failure to comply with section 52 of the Constitution, declaring that no law shall embrace more than one object, which shall be expressed in its- title; nor shall any law be revived or amended with reference to its title.</p> <p>2. Municipal Corporations—Dissolution.—A municipal corporation is not dissolved by the nonuser or misuser of its franchise, or the failure to elect officers. The Legislature alone can dissolve such a corporation.</p> <p>3. Municipal Corporations—Amending Charters—Constitutional Provision—General Statute.—Section 117 of the Constitution is self-executing in so far as it amends the charters of cities and towns so as to conform to the provisions of the Constitution; and the general law for the government of cities and towns, passed in pursuance of the Constitution, which provides that for all towns there shall be elected every two years a mayor and six councilmen, who shall constitute the council of the town, operates to amend a charter granted to a town prior to the Constitution, which provided for only five councilmen, one of whom should be chosen as mayor; and the official acts of a mayor and council elected pursuant to such general law, are valid and binding when done in pursuance of their charter powers.</p>

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

<p>1. Instructions—No Evidence to Support.—An instruction should not be given when there is no evidence in the ease which tends to support it, as it simply misleads the jury, and thereby constitutes reversible error.</p>

A debt in favor of appellant was reported as a fiduciary debt and given preference in the report of the master. Another creditor excepted; the exception was sustained, and it was decided that appellant was not entitled to a preference, but that, his debt stood on the same footing as other simple contract debts,, unsecured. From these decrees this appeal was taken.

<p>Appeal from a decree of the Circuit Court of Carroll county. Decree for defendants. Complainants appeal.</p>

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

<p>1. Contracts—Construction—Case at Bar—Railroads—Right of Way.— A railroad company bought a right of way through a tract of land at $28 per acre; paid the purchase price and received a deed therefor. The deed provided that the company might change the center-line of its right of way to either side a distance of not more than twenty feet, upon payment of an agreed price for the additional land taken. Subsequently the owner and the company entered into-a contract by which the company was permitted to change its location upon payment of $100 per acre for each acre taken, and the company agreed to reconvey to the owner the land theretofore conveyed to it, for which it was to receive a credit of $200. The new location contained about eighteen and three-fourths acres, of which about eight and one-half acres was a part of the original location for which the company held a deed. The owner knew that the new location occupied a laqge part of the old, and went over it with the agent of the company before the contract was entered into. The owner claimed that he was entitled to receive $100 per acre for the whole of the new location, less a credit for $200. The company claimed that it was obliged to pay the $100 per acre for only so much of the new location as was not covered by the old, and was to reconvey to the owner so much of the old location as was not covered by the new, and was to receive a credit therefor of $200, and the court so held.</p> <p>2. Evidence—Parol Evidence Rule—Surrounding Facts and Circumstances.—-Parol evidence will not be "received to vary, alter, or contradict the terms of a valid written instrument, but where the language of a contract is ambiguous-, or its construction doubtful, courts are not shut out from the same lights which the parties enjoyed when the contract was executed, and, in order to ascertain the intention of the parties, may hear evidence of the surrounding facts and circumstances so as to place themselves in the same situation which the parties who made the contract occupied, and thus judge of the meaning of the words and their application to the things described.</p>

Defendant assigns error to the judgment of the court confirming the report of the commissioners and refusing to allow damages for alleged injury to his property on the opposite side of the street from that taken.

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

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

<p>1. Eminent Domain—Water Apart from Land—Virginia Statutes—-Interest and Estate in Land.—Under the present statute law of this State (Code, 1904, Ch. 46 B), a public service corporation having authority to condemn “lands, water, water rights, or any other property, and any estate or interest therein for its uses and purposes,” may, as against a.lower riparian owner, condemn the entire estate of such owner in the water of a stream without condemning the bed of the stream over which the water flows. If such owner owns the fee-simple estate in the land, his riparian rights in the water flowing through it are appurtenant and eo-extensive with that estate, and no less estate in the water can be condemned. The water flowing through the land is an interest in the land, and nothing less than the owner’s whole estate in this interest can be condemned, but it is not necessary to condemn his whole interest in the land in order to acquire the water.</p> <p>2. Eminent Domain—Water Apwrt from Land—Compensation.—Interests in water, as well as in land, are subject to the law of eminent domain. Such interests are indispensable to water companies, and, when the waters of a stream are diverted, the inferior riparian proprietor is entitled to compensation for the use of the water of which he is deprived.</p>

<p>1. Adverse Possession—Hostile Claim—Possession Taken by Mistake.— In this case, land was conveyed to school trustees in 1873 for school purposes, and they erected a school house thereon, and a few years thereafter the alienee of the grantor 'of the residue of the tract enclosed it, and, by mistake, cut off with the school-house lot more land than was conveyed to the trustees; and the trustees, holding the legal title to the land and the right to the possession thereof, gave permission to a religious congregation to worship there and also to erect a church and bury their dead on the school-house lot. The congregation, intending to confine themselves to the schoolhouse lot, erected a church on the lot, but, in doing so, encroached upon the land cut off as aforesaid by mistake, and also buried some of their dead thereon, about eight years before the institution of this suit. All that was done upon the lot by the congregation was after permission first obtained from the school trustees. The alienee of the grantor of the residue of the original tract had his land surveyed shortly before the institution of this suit, and discovered the above mentioned mistake, and notified the congregation that he claimed all the land not included in the grant to the school trustees. This suit was then brought by the trustees of the congregation to quiet their title to the whole lot cut off, claiming title by adverse possession, and to enjoin said alienee from disturbing their possession. The school trustees were made parties defendants, and they disclaimed all title to any of the land except that originally conveyed to them. The Circuit Court dismissed the bill of the complainants.</p> <p>Held: The complainants’ right of possession is subordinate to and dependent upon the right of possession of the school trustees, who disclaim title to the land in controversy, and they have not title by adverse possession. First, because not of sufficient duration, and second, because possession taken by mistake, and not under a claim of right, cannot ripen into adverse possession, and hence their bill was rightly dismissed.</p> <p>2. Estoppel—-Ignorance of Facts—Possession Taken by Mistake.—The owner of land, encroached on by a church building and cemetery, upon ascertaining, for the first time, that there has been such encroachment, is not estopped from asserting his title thereto, when, at the time of the encroachment, both he and the parties encroaching thought that the building and cemetery were on the land of an adjacent owner who had consented thereto.</p>

<p>1. Boundaries—Evidence—Older Patents to Third Persons—Common Designation of Adjaeent Tracts.—The lines of older patents to third persons, which are referred to in a deed of partition betweeen the heirs of an adjáeent owner, are relevant evidence to sustain the theory of one of the parties as to the true line between them; and where the patents and deeds in the line of title of the land partitioned refer interchangeably to two tracts in part adjaeent to the lands in controversy as the H. and F. land, evidence is admissible to prove that both tracts were sometimes called the H. land.</p> <p>2. Boundaries—Corner of Adjacent Tract—Statements Acted On.—Where it becomes important to establish the location of a corner of tract of a third person in part adjaeent to the lands in controversy, which corner is in the controverted line, the fact that the owner of said tract points out his corner to an agent of one of the parties, who is seeking to establish the true line between the lands in controversy, and that he adopts it and marks it, is relevant evidence when offered against such party, as tending to show the true location of said corner.</p> <p>3. Boundaries—Evidence—Surveyor—Reason of Running Lime.—A surveyor who has run a disputed line may, by way of inducement to show why he ran it as he did, testify that it was by direction of counsel of one of the parties giveh in the presence of the counsel and general manager of the other, who stated that he could “go ahead and run it.”</p> <p>4. Boundaries—Evidence—Deeds Under Which Parties Olaim.—Where land has been partitioned between two heirs of the former owner, and a part of that assigned to one of the heirs has, through successive conveyances, come to A., and his deed calls for the dividing line between the heir under whom he claims and the other heir as the western boundary of A.’s tract, in a controversy between A. and those claiming under the other heir as to the location of said dividing line, the deed to A. is relevant evidence, as tending to show that -those under whom A. holds claimed the location of said dividing line to be the same as now asserted by A.</p> <p>5. Boundaries—Evidence—Former Surveys.—In a controversy over a boundary line, it is admissible to prove that an agent of one of the parties stated that his principal had twice run one of the lines of the tract. It is relevant to show acts done by the party in his effort to locate the lines.</p> <p>6. Evidence—Admissibility—Objection by Party who has Proved Same Facts.—An objection to the admissibility of evidence is unavailable to one who has himself elicited the same facts in the cause.</p> <p>7. Boundaries—Evidence—Identical Lines of Junior Patent—Eewly-Marlced Trees.—Where the lines and corners of a senior patent have become uncertain, a junior patent, calling for these lines and cor'ners, is admissible, and evidence showing the lines of such junior patent may be received for the purpose of identifying the older lines, and also for the purpose of explaining the presence of newly-marked trees in the older lines.</p> <p>8. Evidence—Experts—Opinions Rejected in this case.—Questions propounded to a surveyor on the witness stand for the purpose of eliciting his opinion as to whether the matter in controversy might not be settled by the location of a designated line, or whether a given marked line is a true line, do not come within the scope of expert testimony, and cannot be asked.</p> <p>9. Evidence—Excluding Answer of Witness—Anticipated Answer.—An exception to. the action of a trial court in refusing to permit a witness to answer a question will not be considered by this court, if the bill of exception is silent as to what answer was expected to be elicited.</p> <p>10. Evidence—Survivor of Transaction—Death of Agent—Testimony of Third Person.—The death of the agent of one party will not exclude a third person from testifying as to a conversation with such agent in his lifetime, if the conversation is otherwise competent evidence.</p> <p>11. Heal Property—Parol Disclaimer of Title.—The acquiescence of the agent of one party in the directions given to a surveyor by counsel of the other party as to the running of a disputed line, is nqt a parol disclaimer of title of his principal, and the fact of such acquiescence may be shown in evidence.</p> <p>12. Boundaries—Evidence—Reputed Corners—Opinion of Witness.—-Parol evidence may be received to prove by general reputation and tradition the location of a corner of a patent more than a hundred years old, but a living witness may not give his individual opinion as to the location of such corner.</p> <p>13. Evidence—Objection to Admissibility—When Too Late.—An objection to reputation evidence of tlie location of a corner will not be sustained where similar evidence has already been introduced without objection.</p> <p>14. Boundaries—Natural Monuments—Identification—Location of Calls.— In a controversy over the location of the dividing line between two parcels of land received in the partition of the lands of a common ancestor, where a call in the deed of partition is for a natural monument, witnesses may testify as to the location of the monument and the traditional derivation of its name, in order to identify the monument and locate the call in the partition deed.</p> <p>15. Boundaries—Evidence—Leases.—In a controversy concerning the boundaries of land, leases not shown to cover any of the land in controversy, or to be otherwise relevant, are not admissible in evidence.</p> <p>1G. Evidence—Objection to Question—Ignorance of Witness on the Subject.—An exception to the action of the court in excluding a question propounded to a witness, is immaterial where it appears from the answer of the witness that he has no knowledge on the subject.</p> <p>17. Evidence—Motion to Strike Out—Specifications of Objections.—A motion to strike out the testimony of a witness on a particular subject, which has been received without objection, is properly rejected if the party moving fails to point out the specific answer objected to.</p> <p>18. Boundaries—Instructions to Jury.—In a controversy concerning the dividing line between two parcels of land, both of which had belonged to one person and been divided by commissioners between his heirs, an' instruction which ignores the theory of defendants that the parties had acquiesced in the line for which they contended, and, without qualification, yields precedence to the supposed intention of the commissioners, without regard to what they may have done in establishing the line in controversy, is erroneous.</p> <p>19. Instructions—Partial View of Evidence.—An instruction must not call special attention to a part only of the evidence and the fact which it tends to prove, and disregard other evidence relevant to the matter in issue.</p>

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

<p>Appeal from a decree in chancery of the Circuit Court of Scott county. From a decree dismissing the bill, the complainants appeal.</p>

<p>1. Estoppel—Assignment Induced by Debtor—Promise to Pay AssigneeFraud.—If a debtor induces a third person to take an assignment of his notes by his assurance made beforehand that “the notes are all right,” or if, after assignment and notice thereof,' the debtor expressly or impliedly promises the assignee to pay the notes, and the retraction of such promise would operate as a fraud upon the assignee, in either event the debtor is estopped from setting up any equity or defense he may have against the assignor, however well founded it may originally have been. After the notice of the assignment and the promise to pay to the assignee, no subsequent transactions between the assignor and the debtor can invalidate the notes in the hands of the assignee.</p>

<p>I. Carriers—Bills of Lading—Notice of Loss or Damage—Contracts Against Negligence.-—A condition in a bill of lading that claims for loss or damage, shall be made in writing to the carrier’s agent at the point of delivery promptly after the arrival' of the property, and if delayed more than thirty days after the delivery of the property, or after due time for the delivery thereof, there shall be no liability upon the carrier, is a reasonable provision and will be upheld. Such a provision contravenes no public policy and excuses no negligence, but is a reasonable regulation for the protection of the carrier from fraudulent imposition in the adjustment and payment of claims for goods alleged to have been lost or damaged.</p>

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

<p>1. Railroads—Negligence—Employees on Yard—Signals—Lookout.—A railroad company does not owe to its employees engaged on its yards, over which engines are constantly moving, the duty of sounding whistles, ringing bells or keeping a constant lookout to warn them of dangers of which they already have knowledge. Such employees are exposed to more than ordinary peril, and should be on the alert and vigilant to guard against injury from the movement of engines and cars always to be expected. Those in charge of switching engines on a yard have the right to assume that employees on the yard, who are familiar with the dangers of the place, will lookout for themselves, and will not fail to leave a place of danger in time to avoid injury. There can be no recovery by an employee on a yard who negligently steps on to a track on which a switching engine and cars are moving in his direction, and who is there injured by the cars in consequence of inattention to his surroundings.</p>

<p>1. County Treasurers—Ex Parte Settlements—Prima Faeie Evidence Against Sureties.—The settlements made by a county treasurer with the board of supervisors of a county are, as against his sureties who have only bound themselves for the faithful discharge by him of the duties of his office, not conclusive, but only prima faeie evidence of the balance in his hands at the dates of such settlements, respectively. The sureties are not regarded as in privity with their .principal so as to be conclusively bound by his acts. Baker v. Preston, Gilmer 228, Overruled.</p> <p>2. Equity Jurisdiction—Settlement of Accounts—Remedy at Law— County Treasurers—Defaults on Different Bonds.—Where sundry motions for judgments are pending against a county treasurer and the sureties on different bonds covering different periods, and it is claimed that the balances shown by his settlements during his first ■term were mere paper balances, and that he had squandered the public funds, and had used the revenue received during a second term to pay off delinquences accruing in the first term, a surety for the second term may go into a court of equity and have the proceedings on said motions enjoined, and proper accounts settled so as to ascertain in what fiscal years the defalcations accrued and the amounts thereof, and settle and determine the rights and liabilities of the sureties and co-sureties on the several bonds. It may be that such surety might have been able to make his defense at law, but it is plain .that his remedy there is far less complete and adequate than in equity.</p>

<p>1. Venue—Corporation Defendant—Plea to Jurisdiction—Better Writ.— In an action of tort against a railroad company, a plea to the jurisdiction is good which avers that the cause of action did not nor did any part thereof arise in the county in which the action is brought, and that, at the time of the issuing of the writ in the cause, the defendant did not have its principal office in said county, and that it had no president or other chief officer residing in said county, and which further states in what county the cause of action, if any, did arise, and in what city its principal office was at the time of issuing the writ and still is. The venue of all actions in this State, whether local or transitory, is fixed by statute, and the statute declares where actions against corporations as well as individuals may he brought.</p> <p>2. Demurrer—Voluntary Statement of Grounds—Other Grounds—Codep 1904, section 3271.—Under the provisions of section 3271 of the Code (1904), where a plaintiff voluntarily states in writing the grounds of his demurrer to a plea in abatement, no other grounds can be considered than those so stated. The fact that the grounds were stated .voluntarily, and were not required by the court, is immaterial. The statute applies as well in one case as the other.</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county. Recree for the defendant. Complainant appeals.</p>

<p>1. Pleading—Amended Declaration—Few Case—Case at Bar.—If an amended declaration asserts rights or claims arising out of the same transaction, act, agreement, or obligation as that upon which tlie original declaration is founded, it will not be regarded as for a new cause of action, however great may be the difference in the form of liability asserted in the two declarations. In the ease at bar, tlie cause and form of action are the same in both declarations, and the amended declaration merely charges the negligence complained of in varying form to meet the different phases of the evidence.</p> <p>2. Evidence—Opinion Evidence—Experts.—Subject to proper restrictions based on tlieir experience and knowledge, witnesses may give their opinion as to tlie distance within which a locomotive engine may be stopped.</p> <p>3. Evidence—Testimony at Former Trial—F on-Availability of Witnesses.—In order that proof may be admitted of what a witness stated at a previous trial between the same parties and upon the same issue, sufficient reason must be shown why the original -witness is not produced, as that he is dead or out of the State, or that diligent enquiry for him where it is most likely that lie would be i found has proved unavailing, or that tlie opposite party lias caused his absence, and tlie evidence on this subject should be complete and satisfactory. In the case at bar, the evidence on the subject of tlie non-availability of tlie witness falls short of these requirements.</p>

The bill in this ease was filed by the executor of E. V. Gibson, asking a construction of her will and the aid and advice of the court in the administration of her estate. Margaret Gibson Brown was one of the defendants in the cause, and from a decree adverse to her interest she appeals.

<p>Appeal from a decree of the Circuit Court of Bath county. Decree for defendants. Complainants appeal.</p>

<p>1. Specific Performance—When it will be Decreed.—All applications for the specific performance of contracts are addressed to the sound judicial discretion of the court, regulated by established principles, and, to warrant enforcement, the contract must be clearly ascertained and distinctly proved, and must-be reasonable, certain, legal and mutual, and founded on a valuable, or at least meritorious consideration; and the complainant must not have been backward, but ready, desirous, prompt and eager.</p> <p>2. Specific Performance—Meeting of Minds on Subject and Terms of Contract.—Where the court is unable from all the circumstances of the ease, to say whether the minds of the parties met upon all the essential particulars of a contract, or, if they did, then cannot sa.y exactly upon what substantial terms they agreed, or trace out any particular line where their minds met, specific performance will be refused.</p>

<p>1. Voluntary Conveyances—Deed to Wife—Consideration paid by Eusband—Case iai Judgment.—The evidence in this case establishes the fact that the only consideration for the deed- to a wife was a debt due by the grantor’s ancestor to her husband. The dieed, therefore,, was, in effect, a gift of the land from her husband, and as such was voluntary and void as against his then existing creditors.</p> <p>2.Voluntary Conveyances—Void as to Existing Creditors of Grantor— When Debt Contracted—-Case in Judgment.—The evidence further establishes the fact that the complainant’s debt was contracted long before the date of the voluntary settlement on his wife. The debt* grew out of a contract made three years before the date of the deed,, under which contract the husband received money from the complainants fraudulently and wrongfully, which they had the right to demand and recover of him. It is immaterial that the adjustment of the account between the parties was not made till after the date of the deed. That would not change the fact that the husband was the debtor of the complainants prior to that time. The grantor being thus indebted at the time of the voluntary conveyance to his wife, the land conveyed is liable for the debt.</p>

<p>.1. Carriers—Railroads—Persons Assisting Passengers—Time to Leave Train—Rotice.—A person who, in conformity with a custom acquiesced in by a carrier, goes to a railroad station to assist passengers in entering or leaving the train, is an invitee to whom the carrier owes the duty of ordinary care to see that he is not injured by reason of defective station facilities or approaches thereto. If he enters the train and his purpose is known, it is the duty of the carrier to give him a reasonable time within which to leave the train, but, if his purpose is not known, and there are no circumstances to put the carrier upon notice, then the carrier is not bound to hold the train till he has had time to alight, nor to notify him before the train starts.</p> <p>2. Railroads—Stepping off Moving Trains—Interference by Brakeman— Emergency.—It is the duty of a brakeman on a passenger train to endeavor to prevent one from stepping off a moving train when it is dangerous to do so, and if, while acting in good faith to prevent an apparent danger, his éfforts fail, and the person steps or falls off and is injured, there can be no recovery against the company, although it is probable he might have alighted in safety but for the interference of the brakeman.</p>

<p>1. Railroads—Passenger’s A.ttenda/nt—Invitees—Oare Due.—One who accompanies his wife and small children to a railway station, where they expect to take a train and become passengers, is there by the implied invitation of the railroad company, and it is the duty of the company to exercise ordinary care for his safety and protection.</p> <p>2. Railroads—Stopping at Stations—Reasonable Time.—It is the duty of a railroad company to stop its trains a reasonable time at stations to enable passengers and baggage to be put on; and passengers and their attendants have a right to presume that the company will do so.</p> <p>3. Evidence—Impeaching Witness—Rehabilitation.—Whenever the character of a witess for truth is attacked, either by direct evidence of want of truth, or by cross-examination, or by proof of contradictory statements in regard to material facts, or by disproving by other witnesses material facts stated by him, or, in general, whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence if his general reputation for ti'uth.</p> <p>4. Verdicts—Excessive Damages.—The verdict of a jury in au action to recover damages for a personal injury will not be set aside as excessive unless the damages allowed are so excessive as to indicate that the jury were influenced by partiality or prejudice, or misled by some mistaken view of the merits of the ease.</p> <p>5. Instructions'—Jury Sufficiently Instructed—Harmless Error.—If the instructions given in a case are correct and fully cover the case, and are sufficient to enable the jury correctly to apply the evidence, it is not error to refuse to give other instructions offered, even though they correctly compouund the law. It is a case of harmless error.</p>

<p>Appeal from a decree of t-lie Circuit Court of Rockingham county. .From a decree in favor of Lurty, Coffman appeals.</p>

<p>Error to a judgment of the Circuit Court of Augusta county, in a condemnation proceeding. Judgment for the petitioner. Defendants assign error.</p>

<p>1. Instructions—Evidence to Support.—An instruction is properly refused when predicated on the existence of a fact denied by the testimony of the party offering the instruction.</p> <p>2. Contracts—Right Reserved to Terminate—Failure to Exercise—-False Representations—Burden of Proof—Case at Bar.—Plaintiff contracted to bore a well for the defendant at a stated price per foot, the defendant reserving to himself the absolute right to stop the work at any time he saw fit, upon payment of the contract price for work done. After a depth of five hundred feet had been reached, for which payment was subsequently made, defendant claims that the plaintiff falsely represented to him that he had reached flat rock, and that but for such representation the defendant would have stopped the work, but the boring was allowed to proceed one hundred and thirty feet deeper, for the price of which, this action was brought. The trial court instructed the jury that, if the defendant claims that he would have exercised his right and stopped the work, ■but for the representation made to him by the plaintiff, the 'burden is on the defendant to prove, by a preponderance of the evidence, to the satisfaction of the jury that such representation was, as a matter of fact, untrue, and that the defendant relied upon and was misled by such representation. There was a verdict for the plaintiff for the amount of his claim, and this verdict and the instruction of the trial court are approved by this' court.</p>

<p>1. Appeal and Error—Parties.—-A widow who has not renounced her husband’s will has no interest in land devised by him solely to his children, and cannot appeal from a decree adverse to the interest of the children, although a party to the suit in which the decree was rendered.</p> <p>2. Appeal and Error—Infants—Guardian ad Littem—Next Friend.—A guardian ad litem may appeal in the names of the infants, by himself as such guardian, from a decree adverse to their interest, but if he fails to do so, the infants may appeal by some one as their next friend.</p> <p>\ 3. Specific Pereormance—Discretion—Sale by Executor—Injury to Beneficiaries.—Specific performance rests in the sound judicial discretion of a court of equity, and will not be decreed against an executor, although he has a discretionary power of sale, where it would be prejudicial to the interests of infant beneficiaries who oppose the sale, and where the executor himself has refused to perform; but the purchaser will be'left to his remedy at law against the executor. Although an executor acts in good faith, and within his powers, he will not be compelled to perform against the interest of his beneficiaries, even though the court would have compelled performance between two persons acting for themselves only.</p>

<p>1. Deeds&emdash;Undue Influence&emdash;Burden of Proof&emdash;Case in Judgment.&emdash;Undue influence to invalidate a deed or will must be such as to overcome the will and control the judgment of the grantor or testator. The proof must show that the act was procured by coercion, by importunity which could not be resisted, and that the motive was tantamount to force or fear. The burden of proving undue influence is always on him who alleges it. In the case in judgment, the evidence does not sustain the charge.</p> <p>2. Deeds&emdash;Undue Influence&emdash;Conveyance by Wife to Husband.&emdash;The fact that the grantee in a deed is the husband of the grantor is a circumstance to be considered in determining whether the deed was procured by undue influence, but that fact alone would not justify the annulling of the deed.</p>

<p>1. Merger—Union of Incumbrance and Estate.—It the holder of an incumbrance subsequently acquires the property upon which it rests, the lien is generally thereby extinguished, but this doctrine has no application 'where the holder of a vendor’s lien upon one tract of land purchases from the owner a wholly different tract on credit, when there is no agreement between them for such an application. In the latter case, the owner of the incumbrance does not become the owner of the land upon which the incumbrance rests, but of an entirely different tract, and there is no such blending of interests as would occasion the merger of the lesser in the greater.</p> <p>2. Payments—Application of Parlies—Rights of Third Persons.—The applications of payments made by the parties to a contract cannot, as a rule, be questioned by third persons. The right is one existing strictly between the original parties, and no third person has any authority to insist upon any appropriation of such money in his own favor, where neither the debtor nor the creditor has required it.</p>

<p>1. Equity—Quieting Title— Enforcement of Lien on Part of Tract—Irreparable Injury.■—If the purchaser of a part of a tract of land, who, knowingly, purchased subject to a vendor’s lien on the whole tract, can maintain a bill in equity against his vendor and the holder of the lien to compel the enforcement of the lien against the residue of the tract, the bill must make such definite avemients of fact as will show imminent danger of irreparable injury if equitable'relief is not afforded.</p> <p>2. Principal and Surety—Purchaser of Part of Tract of Land Subject to Vendor’s Lien.—The purchaser of a part of a tract of land which is subject to a vendor’s lien, who has purchased with notice of the lien and taken his title subject to it and without covenant against it, but who has paid no part of it, and is in no way personally liable for its payment, is in no sense a surety for the payment of the lien.</p> <p>3. Quieting Title—Purchaser of Part of Tract of Land Subject to Lien—■ Suit to Compel Enforcement of Lien.—A purchaser in possession under a deed with general warranty, but without any covenant against encumbrances, cannot maintain a bill against his vendor to remove a cloud upon his title created by a vendor’s: lien on the whole tract, of which that purchased is a part, when there is no averment of the insolvency of his grantor, or of the insufficiency of the residue of the tract to pay the lien.</p>

<p>Error to a judgment of the Circuit Court of Eockingham county in a proceeding by motion for a judgment. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Counsel Fees—Alloicanee out of Fund—When to he Refused.—Except in rare instances, the power of the court to require one party to contribute to the fees of the counsel of another party, must be confined to cases where the plaintiff, suing in behalf of himself and. others of the same class, discovers or creates a fund which enures to the common benefit of all; but the discretion vested in the court should never be exercised in a ease where the interests of the party whose fund is sought to be charged, are antagonistic to the party for whose benefit the suit is prosecuted. The case in judgment belongs to the latter class, and fees were properly refused.</p>

<p>Appeal from a decree of the Corporation Court of the city of Staunton. Decree for complainant. Defendant appeals.</p>

<p>Error to a judgment of the Circuit Court of Rockingham county in an action of ejectment. Judgment for the defendant,. Plaintiff assigns error.</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. Railroads—Infant Servants—Buie Excluding—False Representation as to Age.—A general rule of a railroad company which forbids the employment of infants in its train service, is a reasonable rule, and an infant who, with knowledge of such rule, obtains service with the company by falsely representing himself to be of age, and is injured in the course of such service by reason of the negligence of the company’s servants, cannot recover damages of the company for such injury, although his infancy in no way contributed to his injury. His position is that of a trespasser, or at most a bare licensee, to whom the company stands in no contractual relation and owes no other duty than not to injure him recklessly, wantonly, or wilfully.</p> <p>2. Appeal and Error—Assignment of Error.-—A petition for a writ of error is sufficient if the points upon which reliance is had for a reversal are clearly stated and leave no doubt as to the questions presented for consideration, although it does not specifically state that the ruling of the trial court on this point or on that is assigned as error.</p>

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

<p>1. Administration—Bight of Widow to Qualify—Refusal—Designation of Another—Code, Seo. 2639.—A widow, though otherwise entitled to the preferable right to qualify as administratrix with the will' annexed of her husband, is properly refused the right to qualify where it appears that she is hostile to, and not on speaking terms with, the principal devisee and legatee under the will, is litigating with the curator of her husband’s estate, and is asserting title to property which the husband attempted to dispose of by his will; nor, having been refused the right to qualify, can she designate the person to be appointed. Section 2639 of the Code does not confer this right upon her under such circumstances.</p> <p>2. Administration—Right, to Qualify—Distributees—Legatees—Code, Sections 2637 and 2639.—When the executor of a will refuses to’ qualify, the right of administration is conferred upon the decedent’s distributees by sections 2637 and 2639 of the Code, and they are allowed to waive it in favor of any other person to be designated by them; and, when the distributees have designated such a person, a legatee and devisee who is not a distributee has no right to qualify or to designate who shall. The word “distributees,” as used in section 2639, means those who would be entitled under the! statute of distribution to the personal estate of the decedent if he had died intestate, and does not embrace legatees and devisees. But distributees who recognize the preferable right of thei widow to qualify, if the court deems her a proper person, do not thereby waive their right to qualify, or to designate who shall, in the event the court denies the application of the widow to qualify.</p>

<p>1. Railroads—Fellow Servants—Yard Master and Engineer—Former Law.—A yard master of a railroad company, who bad no power to employ or discharge servants, but who directed the movements of trains on the yard, the shifting and changing of cars and the making up of trains, and who possessed none of the powers of a vice-principal, was a fellow servant of an engineer running an engine on the yard as the law stood prior to the adoption of the present constitution.</p> <p>2. Railroads-—Fellow Servants—Yard Master and Engineer—Present. Law.—The present constitution has abolished the fellow-servant doctrine in eases like that stated in paragraph 1 above, and the company is liable for an injury inflicted on a yard' master through the negligence of the engineer.</p> <p>3. Railroads—Fellow Servants—Constitutional Provision—Yard Master Riding on Switching Engine—“Requiring.”—If the presence of a yard master on a switching engine is in the usual' and proper discharge of his duties, he is rightfully there, and is entitled to the benefit of the protection afforded him by the constitutional provision abolishing the fellow-servant doctrine as to every employee engaged in any service requiring his presence on a train, ear or engine. The word “requiring” will not be given such a restrictive meaning as to exclude employees of this class.</p> <p>4. Verdicts—Excessive Damages.—-The verdict of a jury will not be set aside as excessive unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the ease.</p>

<p>Error to a judgment of the Circuit Court of Eoanoke county in a proceeding to condemn land. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Parol Evidence—Deed in fee—Consideration—Parol agreement to Provide Iiight of Way.—A land owner who has conveyed to a railroad company a fee simple, unencumbered, title to a strip of land, with covenants against encumbrances and' for quiet enjoyment, will not be permitted to show, as a part of the consideration for the deed, a prior or contemporaneous parol agreement on the part of the company to construct a private right of way over the land conveyed, under the company’s track, as a passway for his cattle. This would be, in effect, the reservation of an easement of the right of way, or a covenant to provide it, and parol evidence is not admissible to add any covenant to a deed, or to enlarge or contradict any covenant, or to create a reservation.</p> <p>2. Parol Evidence to vary Legal Import oe Deed.—In an action to recover the consideration of a deed, the consideration actually paid or promised can be shown by parol to have been other than that recited in the deed, or the fact of the payment of the consideration agreed may be contradicted, but parol evidence is inadmissible to alter or contradict the legal import of a deed. The legal import of a deed can no more be contradicted by parol evidence than its actual expressions.</p>

<p>1. Fire Insurance—Clause Against Encumbrances—Breach—Recorded Lien—No Representations—Return of Premium—Where a policy of fire insurance provides that the policy shall be void if the property insured be or become encumbered by any lien by mortgage, deed of trust, judgment or otherwise, prior or' subsequent to the date of the policy, and' at the date of the insurance there is a deed of trust on the property, duly recorded, the policy is avoided thereby, if the company had no other knowledge of such deed, although the application for the insurance was verbal and no questions were asked, and no representations made by the assured as to encumbrances. The assured, by acceptance of 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 or encumbrances, unless the facts were known to the company or its agents when the policy was issued, or the company was chargeable with such knowledge; nor is the company obliged to return, or offer to return the premiums voluntarily paid as a condition precedent to availing itself of its defense to an action on the policy.</p>

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

<p>1. Equity Pleading—Parties Defendant—Lack of Interest or Liability.—• A demurrer to a bill to restore a water-right is properly sustained as to a .defendant who is not charged to have obstructed the right, whose rights are not involved in the suit, and against whom no relief is prayed either by the complainant or his co-defendant.</p> <p>2. Deeds—What Passes—Appurtenances—Water Rights.—A grant of all the grantor’s “right, title and claim of whatever kind, in and to”' certain property carries with it, as an appurtenance, the easement of a waterway over the lands of the grantor to and for the use of the premises granted, although such easement be not expressly mentioned. Code, See. 2443.</p> <p>3. Easements—Abandonment.—-The mere nonuser of an easement which has been created by grant does not extinguish it, or show that it has been abandoned. To show this, there must be acts by the owner showing an intention to abandon, or an adverse user by the owner of the servient tenement, acquiesced in by the owner of the dominant estate. Nothing short of a user by-the owner of the servient estate, which is adverse to the enjoyment of the easement by the owner thereof, for a period sufficient to create a prescriptive right, will destroy the right granted.</p>

<p>Error to a judgment of the Circuit Court of Frederick county in an action under the statute for proceeding on insurance policies. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Circuit Court of Albemarle ■county. Decree for complainant. Defendant appeals.</p>

<p>1. Appeal and Error—Constitutionality of Law—Sow Raised.—Notice under section 3451 of tbe Code to reverse a judgment by default, and to quash an execution thereon, on the ground! that “judgment was obtained by default and after service of process by publication only, and not by personal service thereof,” sufficiently raises the constitutionality of section 3225, under which the service was made. Any proceeding which necessarily puts in issue the constitutionality of a statute, whether it be by demurrer, plea, instruction or otherwise, is sufficient to give this court jurisdiction of the case, regardless of the amount involved.</p> <p>2. Constitutional Law—Due Process—Corporations.—The constitutional provision that “no person shall be deprived of his property without due process of law,” includes private corporations.</p> <p>3. Constitutional Law—Due Process—Corporations—Publication of Process—Code, Section 3225.—The provision of section 3225 of. the code authorizing service of process on a domestic corporation by publication of the process, when there is no officer or agent of the corporation in the county on whom process may be served, affords “due process of law,” and is constitutional.</p>

<p>1. Appeal and Error—Termination of Controversy—Moot Questions.— Whenever it appears, or is made to appear by extrinisic evidence, that there is no actual controversy between the litigants, or that, if it once existed, it lias ceased, the appeal or writ of error should be dismissed. Courts of justice sit to decide actual controversies by a judgment which can be enforced, and not to give opinions upon moot questions or abstract propositions of law.</p>

<p>Appeal from the Corporation Court of the city of Roanoke. Decree for complainant. Defendants appeal.</p>

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

<p>Error to a judgment of the Circuit Court of Henrico county, upon a petition to correct an alleged erroneous assessment of a license tax. To a judgment refusing to correct said assessment, the petitioner assigns error.</p>

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

<p>1. Husband and Wife—Tenancy by Marital Right—Liability for Debts.—■ At common law the husband, immediately upon marriage, became entitled to the rents, issues and profits of the wife’s freehold lands, independent of birth of issue. The right was vested by the marriage, and the interest of the husband was liable for his debts.</p> <p>2. Married Women—Property held under Act March, 1900—Liability for Husband’s Debts.—The Act of March, 1900, declaring that all property of married women theretofore or thereafter acquired should, be free from the debts and liabilities of their husbands is, so far as it affects debts-and liabilities of husbands created after the date of the act, a valid exercise of legislative power, although the act preserves the husband’s right of courtesy. The legislature has power to abolish credit altogether.</p>

<p>Error to a judgment of the Circuit Court of Tazewell county in a proceeding by motion on behalf of the commonwealth-judgment for the defendant. Commonwealth assigns error.</p>

<p>1. Appeal and Error—Record—Instructions—Bills of Exception.—Instructions not made a part of the record by a proper bill of exception in the trial court cannot be considered by this court.</p> <p>2. Benefit Societies—Non-Payment of Dues—Forfeiture.—The non-payment of dues and assessments in a beneficial association organized for the purpose of fraternal insurance, and not for gain or profit, tends to the destruction of the association, and is a violation of the member’s duty as a corporator. Not only has the association an inherent right to expel members for non-payment of dues and assessments, but, from its nature and necessities, it has a right to provide in its laws that such non-payment, within a specified time after notice, shall, without personal or other notice to the delinquent member, ipso facto, work a forfeiture of all the member’s rights of membership.</p> <p>3. Benefit Societies—Membership—Forfeitures—Notice of By-Laws.—A party who takes out a policy in a mutual benefit society becomes a member of the society, and is bound by the rules and provisions of its charter and the by-laws lawfully made in pursuance thereof, and is conclusively presumed to have knowledge of them all. If these provide that the non-payment of dues and assessments for a’ specified time after notice shall ipso facto forfeit his membership in the society, the provision is binding on him, and, if not waived, no further steps on the part of the society are necessary to render the forfeiture effective.</p> <p>4. Benefit Societies—Forfeitures—Irregular Payment of Dues by Local Council—Case at Bar.—The by-laws of a benefit society provided that any member should ipso facto forfeit his membership who failed, neglected or refused to pay his assessments within a time specified in the by-law. They also provided that no money should be paid or transferred from the treasury of any council except upon a two-thirds .vote of the members present and voting at a regular meeting held after notice at a previous meeting of an intention to pay or transfer such money. A local or subordinate council kept alive the membership of all its members by paying their dues by cheeks drawn by the financial secretary on the treasurer against the insurance fund, but not in accordance with the by-law last above-mentioned. A member of a local council, whose dues and assessments had been thus paid, had failed to pay his assessments for six months, though notified, on an average, twice a month. Some, time after-wards he became ill, and four days before his death there was paid to the financial secretary of the local council the full amount of all dues and assessments theretofore advanced for him by the local council. Upon his death, the society refused to pay the amount of his policy on the ground that his policy was forfeited by reason of his failure to pay his dues and assessments within the time required by the by-laws.</p> <p>Held: There can be no recovery on the policy. The member by failing to pay his assessments as required by the constitution and by-laws ipso facto forfeited his membership in the society. The subordinate local council, in undertaking to make good the delinquencies of its members, by warrants drawn by its financial secretary on the insurance fund, without complying with the by-laws of the society, acted without authority; that in so doing it was the agent of its members, and not of the society, and the society having received the money in ignorance of the facts, has not waived the forfeiture, and is not by its conduct estopped to set it up in defense to this action.</p>

<p>1. State Corporation Commission—Jurisdiction over Public Service Corporations—Public Duties—Private Rights—Injunctions.—The constitutional provision creating the State Corporation Commission and defining its duties and powers, and the Acts of Assembly passed in pursuance thereof manifest that, so far as public service corporations are concerned, the body was created to procure from them better service for the public, and to that end the Commission was given power and authority over corporations chartered and doing business in this state in the performance and discharge of their public duties, but-it was not intended to confer upon the Commis- , sion jurisdiction to hear and determine cases against such eorporaiions in which the matters in controversy relate primarily to injuries to private property rights, and only affect the public incidentally. The Commission, therefore, has no jurisdiction to enjoin one public service corporation from infringing upon the private rights of another such corporation in which the public is only ineidentally interested.</p>

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

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

<p>1. Appeal and Error—Amount in Controversy—Taxes.—A tax is nothing more than a debt due by the citizen to the taxing power, and unless the right to impose the tax or the construction of the statute under which it is imposed is called in question, or necessarily passed upon in the trial court, no appeal lies to this court from the judgment of the trial court imposing a tax, if the aggregate amount of the tax imposed is less than three hundred dollars.</p>

<p>1. Election by Widow&emdash;Devise of Wife’s Land&emdash;Doioer&emdash;Gode, Sec. 2271. &emdash;Where a testator disposes of property belonging to his wife in her own right, and also makes provision for her by his will, she has the same right of election as to such property as any other person, and whether or not she has elected to take under or against the will is to be determined as in other eases. The provisions of Sec. 2271 of the Code have no application to such a case.</p> <p>2. Election oe Widow&emdash;Bow Made&emdash;Evidence of Election&emdash;Case in Judgment.&emdash;The election of a widow to accept the provisions of her husband’s will in lieu of what she would otherwise be entitled to according to law may be made in express terms, or may be implied from acts and conduct, but in either event it must have been with knowledge of her rights and with the intention of election. To raise an inference of election from her conduct, where the rights of others have not been affected, it must appear that she knew of her right of election, and clear proof must be furnished of a choice on her part to accept the provision made by the will and to reject what she would otherwise be entitled to. Ambiguous acts and conduct will not, in general, be construed as an election. In the case in judgment every act relied upon as election by the widow was ■ performed by her at the instance of her sons, who were the executors of her husband’s will, and within less thqn a month after his death, and were of such an equivocal nature as not to amount to an election. During the two months which, elapsed between her husband’s death and the date of the renunciation of his will she remained in the mansion house occupied by him at the time of his • death and which was devised to her for life, but this she had a right to do as widow until dower was assigned', and her selection ■ and acceptance of a cow and two hogs and her continued possession of other personal property might well have been referred to the assertion upon her part of her statutory rights as widow. The deed of renunciation is ample for that purpose, and no one is placed in any worse position by the renunciation than he would have been had the renunciation been made on the day of her husband’s death.</p> <p>3. Equity. Pkactice—Suppression of Depositions taken after Gase Submitted.—The suppression of the depositions of the complainants in this cause, taken after the case had been argued and submitted, was not error under the circumstances of this case. The cause had been pending for some time, and they had already testified more than once.</p> <p>4. Executors 'and AramusTRATOits—Payments to Distrifaitees.—Under the circumstances of this ease, and there being no evidence of unsatisfied debts against the estate of the testator, nor of costs and charges superior in right to the widow’s claim as a distributee, it was not error to decree to her out of the fund in hand the immediate payment of a large part of the sum to which she was entitled as a distributee of her husband’s estate.</p>

<p>1. Railroads—Grade-Crossing—Duty of Traveller.—It is the duty of a traveller about to cross a railroad at grade to approach the crossing carefully, and to look and listen for approaching trains in both directions from which trains may come. Not only so, but his looking and listening should be done at a time and place to render them reasonably effective. If he fails to do so and is injured by a passing train he cannot recover of the railroad company, although its servants have negligently failed to give the crossing signal required by law, unless its negligence is the sole proximate cause of his injury. The vigilance of the traveller to escape injury is commensurate with that of the railroad company to avoid the infliction of injury.</p> <p>2. Negligence—Contributory Negligence.—If the proximate cause of an injury is the negligence of both plaintiff and defendant concurring at the time of the injury, there can, as a general rule, be no recovery. The law recognizes no gradations of fault in such eases.</p> <p>3. Railroads—Grade-Crossing—Approaching in Vehicle—Speed.—A party approaching a railroad track in a vehicle must not approach at such rate of speed as that when he reaches a point where he can see or hear a train it is too late to make adequate use of such opportunity for looking and listening as the surroundings of the crossing will admit.</p> <p>4. Negligence—Self-Imposed Emergency.—The principle that a person in an emergency or great peril is not required to exercise the care required of prudent persons under ordinary circumstances has no application except in cases where the plaintiff has been placed in a situation of danger by the negligence of the defendant, not united with his own negligence. No such allowance is made in favor of one -whose own fault has brought him into the peril which disturbs his judgment.</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>Motion to rehear a judgment of this court affirming a judgment of the circuit court of Albemarle county by a divided, court.</p>

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

<p>1. Constitutional Law—Jurisdiction of Courts—Powers Conferred on Clerics of Circuit Court—City Clerics.—The whole judicial power of the state is vested by Art- IV. of the constitution in certain enumerated courts, and such other courts as are thereinafter authorized. The General Assembly is authorized by Sec. 101 of the constitution to confer upon the clerks of the several circuit courts jurisdiction to admit wills to probate, appoint guardians, etc., but no mention is made of the clerks of other courts.</p> <p>Held-. Section 2639a, Code 1904, conferring such jurisdiction on the clerks of city courts is unconstitutional. Such clerks are not within the terms or intendment of See. 101 of the constitution; nor is such jurisdiction conferred by Sec. 98 of the constitution authorizing the legislature to provide “additional courts” for certain cities. The “additional courts” authorized must be courts of similar grade, dignity and jurisdiction to existing city courts:</p> <p>2. Executors and Administbatobs—Appointment of Curators—Receivers.—An order of a court of chancery appointing a receiver of an estate pending litigation over a will will be treated as an appointment of a curator under See. 2534, Code 1904, when it appears that the appointment was made after notice, upon a bill supported by affidavit, the allegations of which are not denied by pleading, affidavit, or otherwise.</p>

<p>1. Appeal and Error—Questions Necessarily Involved—Res Judicata— Jurisdiction of Trial Court.—When this court decides a case on its merits and remands it to the trial court for a new trial, the jurisdiction of the trial court' is necessarily involved, and, after the period for rehearing in this court has passed, the decision of that question becomes the law of the case in all courts of the commonwealth. It is immaterial that the question of jurisdiction was not expressly presented and decided. It was necessarily involved.</p> <p>2. Appeal and Error—Questions Involved—Res Judicata.—Where this court has approved an instruction which in effect construed the contract in suit to be severable, it is not error, on a second trial, for the trial court to refuse an instruction to the effect that the contract was entire.</p> <p>3. Contracts—No Time for Performance—Reasonable Time—How Determined.—If a written contract for the sale and delivery of railroad ties does not specify the time of performance, it is to be performed in a reasonable time, and what is a reasonable time is to he determined by placing the court and jury in the shoes of the contracting parties at the time the contract was entered into. In the case at bar, the uncertain condition of the labor market was the subject of comment at the time the contract was entered into, and hence it was not error to permit plaintiff to show the difficulty he had in securing labor, and the efforts he made to employ hand® for the fulfilment of the contract.</p> <p>4 Contracts—Performance—Reasonable Time—-Evidence—Case at Bar.—• Upon the facts of this case, while neither scarcity nor inability to get hands or timber could excuse the plaintiff from the performance of his contract in a reasonable time, still evidence of such scarcity or inability was admissable, to be considered along with i all the other evidence in the ease, in determining what constituted a reasonable time within which the plaintiff was to perform his contract.</p> <p>5. Vekdicts—Evidence to Support.—This court will not set aside the verdict of a jury if there was sufficient evidence to sustain it.</p>

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

<p>Appeal from a decree of the Corporation Court of the city of Lynchburg in the cases of Sutherlin-Meade Tobacco Co. v. Commonwealth Tobacco Co. and Others, and Butler v. Commonwealth Tobacco Co. and Others, heard together. From a decree in favor of Sutherlin-Meade Tobacco Co. Taylor? Receiver, and Butler appeal.</p>

<p>1. Railroads—Private Crossings—Proceeding under Code (1904) Sec. 1294b (2).—The fact that owners of land adjacent to a railroad in their written request to the company demanded eight crossings, while they only designated two ini their notice for the appointment of commissioners under Sec. 1294b (2), Code 1904, is not such evidence of bad faith on their part as will warrant the trial court in refusing to appoint commissioners. The railroad company is not prejudiced by the application for only two of the crossings.</p> <p>2. Railroads—Private Crossings—Roads under Construction.-—The statute providing for the appointment of commissioners to determine whether a railroad company shall be compelled to construct wagon ways across its right of way for the use of abutting owners applies as well to railroads in process of construction as to those in actual operation. The statute is remedial, and should receive a reasonable construction so as to effect the ends for which it was enacted.</p>

<p>1. Homesteads—Judgment for Breach of Contract—Tort—Fraud.—Where the right of recovery in an action is rested solely upon the ground that the plaintiff has been damaged to a certain amount by a breach of contract on the part of the defendant, and not by reason of a tort, the mere use of .violent terms in characterizing the alleged fraud in the procurement of the contract, and its breach, will not suffice to convert the breach of the contract into a tort. Against a judgment obtained in such an action the defendant may claim the benefit of the homestead exemption.</p>

<p>1. Bankruptcy—Preferences;.—The purpose of the Bankrupt Act was to relieve the bankrupt from his- debts and to secure an equal division of his assets among’ his creditors, and to this end to provide a remedy against every act by which a failing debtor seeks an unequal distribution of his- assets among his creditors. Every such act is condemned as being against the spirit and purpose of the bankrupt law,</p> <p>2. Bankruptcy—Fraudulent Conveyance—Participation iy Creditor.—■ Under See. 67e of the Bankrupt Act the debtor’s intent and purpose alone governs in determining whether a conveyance was made with intent to hinder, delay or defraud his creditors. The creditor preferred need not participate in this intent and purpose in order to render the preference void. The Bankrupt Act was intended to afford relief where the common law and the state statutes against fraudulent conveyances afforded none.</p>

<p>1. Elections—Illegal Registrations—Purging List—Mandtmnus.—Whether a person offering to register is a qualified, voter or not is to be determined in the first instance by the registrar, from whose decision an appeal is given to any person denied registration (Code See. 83a) and whose list may be purged of those improperly allowed to register upon the application of five qualified voters proceeding in the manner pointed out by see. 86 of the Code. In view of the nature of the duties devolved upon the registrar and of the remedies afforded by sections 86 and 83a of the Code, Mandamus will not lie against a registrar to compel him to purge his list of names alleged to have been improperly registered by him.</p>

<p>1. Constitutional Law—Acts of Doubtful Validity.—The federal constitution is a grant of power by the states to the federal government. The state, constitution is simply a restraining instrument, and the legislature of the state has all legislative powers not forbidden by the state or federal constitution; and, while this court has power to declare an act of the legislature unconstitutional, it will never do so unless the act is plainly unconstitutional. All doubts are resolved in favor of the constitutionality of such acts.</p> <p>2. Constitutional Law—Construction—Bead as a Whole—Commissioners of Revenue—Appointment.—The constitution of the state is to be construed as a whole, and effect given to every sentence of it, if possible. So construing the present constitution, and reading the clauses dividing the powers of the government into legislative, executive, and judicial, and forbidding any person to exercise the powers of more than one at the same time, in connection with section 110 providing that commissioners of the revenue shall be elected or appointed, as the General Assembly may provide, the latter provision may be regarded as an exception to the general-rule, and an act of assembly authorizing circuit courts, or the judges thereof in vacation, to appoint commissioners of the revenue is not unconstitutional on the ground of being an unwarranted commingling of powers.</p> <p>3. Constitutional Law.—Act of Doubtful Validity—Practical Construction.—If a statute conferring upon courts or judges the power to appoint certain officers is of doubtful validity, it will not be declared. unconstitutional where it appears that, under the same or similar constitutional provisions, like powers have been conferred by similar statutes which have never been called in question by the courts, nor by two constitutional conventions which have since assembled, but have received the sanction of the legislature, and the inferior courts of the state, and have been acquiesced in for over half a century by all the departments of the state government. The practical construction thus put upon such acts will be regarded as decisive of their validity.</p> <p>4. Constitutional Law—Commingling Powers.—The provision of the constitution dividing the powers of government into legislative, executive, and judicial, and forbidding any person to exercise the power of more than one of them at the same time, does not forbid the legislature to confer upon a court or judge the power to exercise legislative or executive duties to a limited extent. 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.</p> <p>5. Constitutional Law—Commissioners of Revenue—Appointment.— Upon the principles stated in the foregoing paragraphs, the act of assembly conferring upon circuit courts and the judges thereof in vacation the power to appoint commissioners of the revenue for the several counties of the state is not unconstitutional.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg in a proceeding for contempt.</p>

The defendant was president of the Richmond Amusement Corporation, and was arrested, tried and convicted for giving a performance on Sunday.

<p>1. Criminal Law—Sunday Laws—-Violation by Employer and Employee.— Any person, whether employer or employee, who violates the provisions of the .Sabbath laws as contained in section 3799 of the Code is amenable to the forfeiture thereby imposed. In other respects, this case is controlled by Wells v. Commonwealth, ante p. 834.</p>

<p>Error to a judgment of the Corporation Court of the city of Alexandria.</p>

<p>Original application for Habeas Corpus.</p>

<p>1. Appeal and Error—Jurisdiction of Court of Appeals—Hoto Conferred.—The jurisdiction of this court is limited, and is prescribed by the constituion of the state and the laws passed in pursuance thereof, and the burden is upon him who invokes its authority to establish its jurisdiction over the matter in controversy.</p> <p>2. Appeal and Error—Contempts—When no Writ of Error Lies.—No writ of error lies from this court to a judgment of an inferior court imposing a fine upon a party to a suit for disobedience of its orders, and directing his imprisonment in jail in default of the payment of said fine. Such judgment is not within the purview of section 4053 or of any other section of the code. The theory seems to be that if the order disobeyed is erroneous, the parties affected should appeal. If it is right, it should be obeyed.</p> <p>3. Appeal and Error—Want of Jurisdiction—Expressions of Opinion— Contempt.—Where no writ of error lies from this court to the judgment of an inferior court imposing a fine on a party for a contempt of its judgment, the decision of the trial court that the acts of such party amount to a contempt is final, and this court will not intimate any opinion upon the subject.</p> <p>4. Appeal and Error—Contempts—Fine—Imprisonment—Liberty—Constitution, Section 88.—A judgment imposing a fine upon a party for a contempt of court and giving him a reasonable time within which to pay it, but providing that if it is not paid, he shall be imprisoned, does not involve “the life or liberty of any person,” within the meaning of section 88 of the constitution. The judgment being for a fine from which the party may relieve himself, does not deprive the party of life or liberty.</p>

<p>1. Intoxicating Liquors—Sales to Several Persons—Election to Prosecute as to one—Evidence of effect on Others—Oase at Bar.—If, upon the trial of a warrant for selling liquor without a license to several persons, the commonwealth elects to prosecute for a sale to one only, it cannot upon that warrant prosecute the accused for selling to any other person, nor prove sales to others in aid of its proof that he was guilty of the offense for which he was being prosecuted; though it may show by others the effect produced upon them by drinking a beverage purchased by them of the accused and.bearing the same brand as that for which he is being prosecuted. In the ease at bar, the witnesses for the commonwealth were questioned as to sales made to them by the accused, but it is clear, under the facts and circumstances of the case, that the accused was not prejudiced thereby.</p> <p>2. Indictment—Statute Contemning Exception.—If an exception to a statute is so incorporated with the enacting clause that the one cannot be read without the other, then the exception must be negatived in any indictment for a violation of the statute; but if the exception be in a substantive clause subsequent to the enacting clause, though in the same section, it is matter of defense to be shown by the defendant.</p> <p>3. Intoxicating Liquors—License—Exception in Statute—Cider—Burden of Proof.—Upon a charge of selling liquor without license in this state, it need not be denied that the liquor sold was pure apple cider, although that is an exception contained in the statute. If it is pure apple cider, that is a matter of defense and comes more properly from the defendant, who has the burden of proof on that question; the exception in the statute being in a substantive clause and not in the enacting clause.</p> <p>4. Intoxicating Liquors—Cider—Case at Bar—Analysis—Samples.—■ The preponderance of evidence in this case shows that the eider sold by the defendant did not contain a greater percentage of alcohol than is allowed by the statute, and he should have been acquitted. The guilt or innocence of the accused depended upon the amount of alcohol the cider contained, and, while the correctness of the analyses introduced in evidence is not questioned, there were ample opportunities for tampering with the samples analyzed by the commonwealth before the analysis was made, and the analysis was, therefore, of little probative value.</p>

<p>Error to a judgment of the Circuit Court of Brunswick county.</p>

To a judgment of conviction under a criminal warrant, Hanger assigns error. To a judgment annulling the •charter of the Crawford Social Club, it assigns error.

<p>Error to a judgment of the Circuit Court of Floyd county.</p>

<p>Error to a judgment of the Circuit Court of Buckingham county.</p>

<p>1. Intoxicating Liquors—Sale Without License—Indictment—Place of Sate—Time.—An indictment for selling liquor without a license is sufficient which, follows the language of the statute in charging that the defendant “in said county within the two years last past, did, unlawfully and without a state license so to do, sell spirituous or malt liquors, whiskey, -brandy or some mixture thereof, alcoholic bitters, bitters containing alcohol or some mixtures, preparations or liquors which will produce intoxication.” Place is not of the essence of the offence under such, a statute, and need not be more specifically stated than “in said county;” nor is the exact time, and the charge of within “two years last past” is sufficient.</p> <p>2. Intoxicating Liquors—Sale Without License—Evidence—United States License—Proof of Vertifieate.—The fact that a statute permits the existence of a United States revenue license to sell liquor to be proved by the testimony of the internal revenue collector for the district, or any of his deputies who know the fact, does not exclude the proof of the existence of such license by the duly authenticated certificate of such collector. The presumption is that the legislature meant to provide additional modes of proof, and not to exclude any existing lawful proof of the fact. The certificate is the most convenient and certain mode of proof, and its use could not have prejudiced the accused in this case.</p> <p>3. Intoxicating Liquors—Sale Without License—United States License— Oase at Bar—Instructions.—A statute provides that the possession of a United States license to sell liquor by retail and no such license from •state, shall be evidence of selling by retail without a state license to do so. An indictment under the statute, found March 18, 1907, charged defendant with a sale without license -within two years last past. The only evidence offered by the commonwealth was the possession by the defendant of a United States license to sell liquor from July 31, 1906, to June 30, 1907. The court instructed the jury that if they believed from the evidence that the accused “held a license as a retail malt liquor dealer from the United States government, within two years last past from the 18th of March, 1907, the possession of such license shall be evidence of selling malt liquor by retail.”</p> <p>Held: The instruction was erroneous, as, under it, the jury might have found the accused guilty of haying committed the offence between March IS, 1905, and July 31, 1906, when there was not a shadow of evidence upon which to base such a conviction. All that is stated in the instruction may be true, and yet the accused not guilty.</p> <p>4. Intoxicating Liquoks—Sale Without License—United States License— Effect as Evidence.—If, on an indictment for selling liquor without license, the commonwealth simply proves the possession of a United States license to sell liquor, the probative value of such evidence is to be determined in connection with all the other evidence in the ease, and is primarily a question for the jury, with respect to which this court, at present, expresses no opinion.</p>

<p>1. Steamboats—Wharfage—Public Use—Code 1904, Section 1294o—Consti-tutional Law.—If a steamboat wharf is leased to a steamboat company for a percentage of all freight and passenger traffic over the wharf, but no charges are made by either the owner or lessee for the use of the wharf, but the public is permitted to use it without compensation, such wharf is not within the intendment of section 1294o, Code 1904, requiring certain accommodations to be provided and imposing a penalty for the neglect thereof. The provision of the section that it is “not to apply to any wharf where no wharfage is charged,” means no wharfage to the public. The public is not affected by such a use of a wharf as is above described, and any attempted regulation of its use would be an unwarrantable invasion of private rights.</p>

<p>Error to a judgment of the Corporation Court of the city of Norfolk.</p>

<p>1. Criminal Law—Change of Venue—Facts not Denied—Evidence.—; Upon an application for a change of venue in a criminal ease, facts slated in the petition for removal which the commonwealth does not ask to controvert andi which the accused is not permitted to sustain by proof, must be considered as established.</p> <p>2.0eiminal Law—Change of Venue—Local Prejudice—Jury from Another County—Case at Bar.—Where the ground of an application for a change of .venue of a criminal ease is that there exists such prejudice and excitement against the accused at the proposed place of trial as to endanger the fairness and impartiality of a trial at that place, it 'is not necessary that the application shall be preceded by a motion for a jury from another county or corporation. The ground of the application is the inability to get a fair and impartial trial because of local prejudice, and not the inability to get a fair and impartial jury. In the ease at bar, the motion for a change of venue on account of local prejudice should have been granted.</p>

<p>1. This ease is controlled by Uzzle v. Commonwealth, ante, p. 919.</p>

<p>Error to a judgment of the Corporation Court of the city of Fredericksburg.</p>