Volume 108 — Virginia Reports

<p>1. Real Estate Agents — Property in Sands of Several — Exclusive Rights ■ — Case at Bar. — As a general rule, where an owner puts his property-in the hands of several real estate agents to sell, the agent who first procures a purchaser is entitled to his commission to the exclusion of the other agents, but this general rule may be modified by contract, or entirely subordinated to its provisions. In the case at bar, a farm was in the hands of several real estate agents for sale with the knowledge and acquiescence of the plaintiff, who was one of such agents. These agents knew that the defendant, who was the owner of the farm, was extremely anxious to sell to the first available purchaser. He preserved an attitude of neutrality between them, and acted in good faith throughout. ' Under these circumstances the general rule above stated should govern.</p> <p>2. Real Estate Agents — Right to Sell — Termination of Contract — Withdrawal from Market — Case at Bar. — If land is in the hands of a real estate agent for sale, but he has not the exclusive right of sale, a sale by another agent does not violate the provision of the owner’s contract with the former to the effect that his “contract is to continue in force till ten days’ notice is given in writing withdrawing the same from market.” This is not a withdrawal from market, but a sale to a prior purchaser, and has no reference to a sale of the property either by other agents, or by the owner himself. In the ease at bar, the contract first mentioned shows on its face that the real estate agent therein contracted with did not have an exclusive right of sale.</p>

<p>Absent, Cardwell, J.</p> <p>1. Equity — Pleadings—Amendments.—Courts of equity in this State are liberal in allowing amendments of bills, and where the purpose of the amendment is not to intooduce á substantive cause of action different from that stated in the original bill, but merely to set forth with greater particularity of averment matters arising out of the same transaction, and germane to the objects for which the original bill was filed, the amendment should be allowed.</p> <p>2. Taxation — Tax Sale — Offer to Redeem — Suit to Set Aside Sale. — If the former owner of land which has been sold for taxes has, in proper time, made a sufficient offer to redeem which the purchaser has rejected on grounds distinct from the nonproduetion of the money, a court of equity will entertain a bill filed by him to cancel the deed made to the purchaser without formal tender of dues, enforcing the right of redemption, how'ever, only upon the terms of payment of the amount of taxes, interest and costs to which the purchaser is entitled.</p> <p>3. Constitutional Law — Act Broader than Title — Amending Code Sections — Code, Sec. 655. — The Act of April 2, 1902, amending section 655 of the Code (1887) in relation to when a deed may be made to a purchaser at a tax sale is not broader than its title. Moreover, the provision of the Constitution of 1869 that no act shall embrace more than one object which shall be expressed in its title is not applicable to sections of the Code, but is aimed at separate acts in their original enactment, where the opportunity exists for the evils which the Constitution was designed to prevent or defeat.</p> <p>4. Taxation — Tax Sale — Redemption — Notice 6y Purchaser. — • The provision of section 655 of the Code as amended (sec. 655, Code, 1904) requiring a purchaser at a tax sale to give to the person in whose name the real estate sold stood at the time of the sale, four months’ notice of his purchase, is to be read in connection with section 3207 of the Code which declares how' notices are to be served when no particular mode of service is prescribed, and, when so read, said provision is not too vague and indefinite for enforcement.</p> <p>5. Constitutional Law — Impairing Obligation of Contracts — Taxation.— The provision of section 655 of the Code, as amended, which requires a purchaser at a tax sale to give four months’ notice of his purchase to the person in whose name the land stood at the day of sale, is valid as to sales made before its passage, when a reasonable time is given the purchaser within which to comply with its terms, so as to obtain his deed when it would otherwise have been due. Such a provision does not impair the obligation of the contract entered into between the State and the purchaser.</p>

<p>1. License — Revenue Purposes — Police Regulation. — If a tax is laid upon persons or property under a general taxing ordinance the necessary conclusion is that it is laid for revenue purposes alone, unless the contrary is made clearly to appear. To construe a general taxing ordinance as a police regulation, it must be shown that the tax collected thereunder is devoted to the expense incident to carrying out its provisions.</p> <p>2. Constitutional Law — Licenses — Revenue Purposes — Territorial Limits — Ovrcus Outside of City• — Oode (1904) Sec. 1082. — The legislature cannot authorize a city to levy a license tax upon a circus exhibition beyond its territorial limits, for the sole purpose of raising revenue to defray the general expenses of such city, and in so far as section 1032 of the Code (1904) authorizes such a tax it is invalid. Taxes for revenue cannot be imposed upon property or' subjects outside the territorial limits of the taxing power, as this would be, in effect, taking the property of a citizen for a private use.</p>

This suit was brought by the executors to construe the will of their testatrix. From a decree construing the will some of the legatees appeal.

<p>1. Landlord and Tenant — Perpetual-Lease—Taxes.—As a general rule the landlord under an ordinary lease is responsible for the taxes on the property leased, but this.rule has no application to the case of a-perpetual leaseholder who is in effect the virtual owner of the property and entitled to its use forever. In such a case the burden of taxation is placed upon the lessee.</p> <p>2. Landlord and Tenant — Perpetual Lease — City as Landlord — Covenant to pay “Public Taxes” — Tax by City. — Where a municipal corporation makes a perpetual lease of a part of its land, and the lessee covenants that he, his executors, administrators and assigns will pay or cause to be paid to the proper person the public taxes which shall become due on said land, the term “public taxes” covers not only the taxes imposed at the time of the lease, but all taxes arising in the future that may be assessed by any lawful authority, including said municipality.</p> <p>3. Taxation — Non-User of Power — Forfeiture.—Mere non-user by a government of its power to levy a tax, no matter how long continued, can never be construed into a forfeiture of the power.</p> <p>4. Taxation — Uniformity—Failure to Tax Formerly. — The mandate of the constitution is that all property shall be taxed, save that exempt by constitutional authority, and that all taxes, whether State, local or municipal, shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. That this mandate has been disregarded in the past is no reason why it should continue to be disobeyed.</p> <p>5. Landlord and Tenant — Perpetual Lease — City as Landlord — City Tax on Leasehold. — A city having a general power of taxation, though the holder of the mere legal title to land of which it has made a perpetual lease, may levy taxes on the leasehold estate to be paid by the lessee, as he is the virtual owner of the land.</p> <p>6. Taxation — Perpetual Leasehold — Separate Tax on Land and Buildings —Bai-mless Error — Correction.—Where there has been a perpetual lease of land, and the land is assessed for taxation in the name of the lessor, and the buildings thereon in the name of the lessee (both at the same rate, and charged to the lessee) when hoth should have been assessed together in the name of the lessor, it is at best harmless error; but if the joint assessment would be of advantage to the lessee and he has the right to have it so assessed, his remedy at law, by motion, is adequate to have the assessment corrected in that particular.</p>

<p>I. Landlord and Tenant — Reneioal of Lease — Unauthorized Change of Terms — Knowledge of Lessee. — Where a resolution of a city council authorizes a renewal of a lease made by a former council, and expressly provides in the resolution that the renewal shall be upon the same terms and conditions as the original lease, and the draughtsman of the renewal, without authority, changes the terms, but recites the resolution for the renewal in the contract for the new lease, the lessee takes the property subject to the terms and conditions of the original lease. In all other respects the case is controlled by Norfolk v. Perry, ante p. 28.</p>

Decree for the defendant Caroline Blythe. Complainant appeals. This suit was brought to have a partition of seventy acres of land devised by Elijah Joyner, and, incidentally, a construction of his will. The will set out in the opinion of the court was admitted to probate in December, 1869. The testator left surviving him his wife and three daughters and a grandson, all of whom are mentioned in his will.

<p>1. Evidence — Value of an Undivided Interest in Land — Prior Purchase of Other Interest. — The fact that a railway company has recently purchased an undivided one-half interest in real estate at a specified price, under circumstances which show that the purchase was made without compulsion and not by way of compromise, is admissible evidence for the purpose of ascertaining the market value of the remaining undivided fee-simple one-half of the same property, in a proceeding instituted by the company for its condemnation.</p> <p>2. Evidence. — A party cannot be heard to object to the consideration of evidence offered by his adversary when he has himself introduced the same evidence.</p>

<p>Appeal from a decree of the Circuit Court of the city of Lynchburg. Decree for complainants. Defendant appeals.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk in a proceeding by motion for a judgment. Judgment for defendants. Plaintiff assigns error.</p>

<p>Absent, Keith, P.</p> <p>1. Wills — Construction—Vested Remainders — Future Enjoyment. — The law favors the vesting of estates, and where a bequest or devise is made, and the property is not to be enjoyed in possession until some future period or event, it will, where no special intent to the contrary is manifested in the will, be held to be vested in interest immediately on the death of the testator, rather than contingent upon the state of things which may happen to exist at the period when the legatees or devisees are entitled to the possession of the property given.</p> <p>2. Wills — Construction—Case in Judgment — Devise to A for Life, Remainder to Rer Issue — Vested Remainder. — Under a devise of land to a trustee to hold in trust for the benefit of a married woman for and during her natural life and “at her death to be divided among her issue according to the statute of descents and distributions” of the State of Virginia, the children of the life tenant, who are her only issue, take vested interests in remainder at the death of the testator.</p>

Decree for complainants. Defendants appeal. The record shows that the appellants, Grubh Brothers, who had been for a number of years conducting the business of an insurance agency, entered into the following agreement with the appellees, Moore, Clemens & Company: “This memorandum, made this 31st day of March, 1906, between H. J. and J. H. Grubb, partners under the firm name of Grubb Bros., of the first part, and Samuel L. Moore, John R. Clemens, W. S. Jenkins and C. IT.

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

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

<p>1. Divorce — Desertion—Oase in Judgment. — Desertion is a breach of matrimonial duty, and consists of the actual breaking off the matrimonial cohabitation, coupled with an intent to desert in the mind of the offender. In the case in judgment, the husband has severed the marriage tie, so far as it is possible for him to do so, with no intention of resuming it.</p> <p>2. Divorce — Desertion—When Not Justified. — Desertion by one consort of the other can only be justified by showing such conduct on the part of the deserted party as would entitle the other to a divorce a mensa. Nothing short of this will justify a wilful desertion, or a continuance of it.</p>

<p>1. Master and Servant — Safe Place — Notice of Danger — Railroads—Independent Contractor — Case at Bar. — If a railroad company knows, or by the exercise of ordinary care ought to know of defects in a path by the side of its track along which its servants have to pass, and of the increased danger to which they will be thereby exposed, in ample time to guard against it, and fails to do so, or to warn its servants of the danger, and in consequence thereof a servant is injured while in the discharge of his duties, the company is. negligent, and is responsible for the consequences of its negligence, although it may be at the time dealing with an independent contractor as to improvements to be made to the track. In the case at bar the railroad company retained suqh control over a large part of the work to be done by a contractor that it is doubtful if the latter can be said to have been an independent contractor; but, even if he was, the company is liable under the circumstances of this case.</p> <p>2. Master and Servant — Contributory Negligence of Servant — Question for Jury — Railroads.—Whether a servant engaged in uncoupling a car from a moving train in the usual manner, and who is injured in consequence of falling into an open and obvious trench by the side of the track, is guilty of such negligence as will bar his recovery of the master is a question of fact for the jury acting under proper instructions from the court, and their verdict will not be disturbed where there is evidence to support it.</p>

<p>Appeal from a decree of the Circuit Court of Appomattox county. Decree for the complainant. One of the defendants appeals.</p>

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

<p>1. Taxation — Standing Trees — Statutes—Repeals by Implication. — There is no authority in this State to tax trees separate and apart from the land upon which they stand. Such authority was conferred by . an act approved February 21, 1906, amending Code (1904), sec. 437a, but that act was repealed by implication by an act approved March 17, 1906, restoring said section of the Code to its former language. The latter act was plainly intended to embrace the whole legislation on the subject to which it refers, and to be wholly substituted for all former statutes on the same subject, and where this is true it is a legislative declaration that whatever is embraced in the latter act prevails, and whatever is excluded is discarded and repealed, notwithstanding the general rule that repeals by implication are not favored.</p> <p>2. Taxation — Logs Prepared for Shipment — Interstate Commerce. — Logs belonging to non-residents which have been cut and placed on the banks of rivers and creeks in this State, awaiting high water to float them to another State, are not yet exports, nor in the process of exportation, and are liable to be taxed in this State in the usual way and manner in which other property of like kind is taxed.</p>

<p>1. Appeal and Error — Final Judgment — Finding for One of Several Defendants on Separate Flea of Set-offs. — In an action by a plaintiff against two defendants where one of the defendants flies a plea of set-offs in excess of the plaintiff’s demand, and the other defendant files no plea, if the court, without the intervention of jury, gives judgment in favor of the defendant pleading for the excess of his set-offs over and above the plaintiff’s demand and for his costs, this is a final judgment, disposing of the case as to both defendants and to it a writ of error lies.</p> <p>2. Appeal and Error — Duplicity in Replication — Issue—Set-offs.—Strict rules of pleading do not apply to proceedings by motion for a judgment for money, nor to the defense of set-offs; and if in such a proceeding the plaintiff, in answer to a plea of set-offs, files a replication which sets up two separate and distinct replies, but the defendant, without objection, takes issue thereon, and the court, after hearing arguments of counsel, renders judgment on the issue, objection to said replication for duplicity cannot thereafter be made in this court for the first time.</p> <p>3. Pleading — Set-offs Offered by Surety — Code, Sec. 8298. — Under the provisions of Code (1904), sec. 3298, a surety who is a co-defendant with his principal, cannot set up against the plaintiff a set-off which he has against the plaintiff. The principal in such case can set-off a demand due him by the plaintiff, but the surety cannot.</p> <p>4. Pleading — Recoupment Under Oode, Sec. 8299 — Legal Demands. — Under the provisions of Code (1904), sec. 3299, a defendant cannot set-off or recoup against the plaintiff’s claim a purely legal demand growing out of an entirely different transaction from the claim asserted by the plaintiff. The provisions of section 3299 were not intended to alter or modify that provision of section 3298 which excludes the right of a surety to set-off against the plaintiff’s demand a claim due to such surety as principal by the plaintiff.</p>

<p>Error to a judgment of the Circuit Oourt of Norfolk county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The following are instructions Hos. 1 and 2, given at the instance of the plaintiff, over the objection of the defendant, and referred to in the opinion of the court:</p> <p>Ho. 1. “The court instructs the jury that it is a fundamental principle of law that the defendant owed to the plaintiff the duty of using ordinary care and diligence to provide sound and safe appliances such as were reasonably calculated to insure safety whilst using the same; and was equally bound to inspect and examine such appliances from time to time, and to use ordinary care and skill to discover and repair defects therein. If, therefore, the jury believe from the evidence that the belt complained of in the declaration was defective as alleged therein, and was such that an ordinarily prudent man would not have required his servants to use; that the defendant knew or by the exercise of ordinary care would have known that said belt was so defective; that the plaintiff was adjusting said belt with such care and prudence as an ordinarily prudent man would have exercised under the same circumstances and was injured as a proximate result of said defects, as alleged in the declaration, then the jury should find for the plaintiff, unless they further believe from the evidence that the danger was such that an ordinarily prudent man would have refused to adjust said belt, or unless in adjusting the belt, he was not acting in the line of his employment, or in a line of work which he was accustomed to perform.”</p> <p>Ho. 2. “The court instructs the jury that if they believe from the evidence that the belt which caused the injury complained of in the declaration was defective and that the plaintiff complained of its defective condition to the superintendent; that the superintendent promised to have the defects in said belt remedied; that the superintendent failed to remedy said defects within a reasonable time, but that the plaintiff, relying on said promise to repair the same proceeded to adjust the belt, and in consequence thereof the injuries complained of in the declaration were inflicted upon the plaintiff, then the defendant is liable, and tbe jury should find for the plaintiff, unless they believe from the evidence that the plaintiff failed to exercise reasonable care and caution in adjusting the belt, or unless the danger of so’doing was so palpable, immediate and constant that no one but a reckless person would expose himself to it even after having received such promise or assurance; or unless in adjusting the belt he was not acting in the line of his employment or in line of work which he was accustomed to perform with the knowledge and assent of the defendant.”</p>

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

<p>Error to a judgment of the Corporation Court of the city of Hewport Hews, in an action of ejectment. Judgment for the plaintiff. Defendants assign error.</p>

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

Judgment for the plaintiffs. Defendant assigns error. The following instructions were given by the trial court: Mo. 1. “The court instructs the jury, to constitute an adverse possession of land, entry and possession -under claim of right or title is required, and possession for any length of time of the land in the declaration mentioned by the defendant and those under whom he claims constitutes no title to the said land and is no bar to the plaintiffs’ right of entry upon…

<p>1. Executors and Administrators — Compliance With Statutes — Payment to Distributee Without Refunding Bond — Subsequent Claim of Other Distributees. — An administrator who has acted in good faith, and complied with every requirement of the statute, and, in obedience to an order of the court of his appointment, has paid over (without a refunding bond) the funds in his hands to one whom the court has adjudged to be the sole distributee of the estate, will be protected against the demands of those who come in several years thereafter claiming to be entitled to share in the distribution of the estate. While the statute (eh. 121 of Code) does not expressly mention distributees, the legal effect of compliance therewith is to give protection as fully as though the statute had so declared in express terms. The statute is full, ample and complete, and guards and protects every interest as amply as could be done by a formal suit in chancery.</p> <p>2. Courts — Jurisdiction of Inferior Courts — Preswnption—Case in Judgment. — There is a presumption against the jurisdiction of a court of limited jurisdiction, but, when its jurisdiction is established, its. judgment is entitled to the same presumption in favor of its correctness as if it were the judgment of a court of general jurisdiction. In the case in judgment a county court was authorized “to hear and determine” matters relating to the ex parte settlement of accounts of an administrator and to direct the payment of debts and the distribution of the surplus, and this was of itself jurisdiction over such matters.</p>

Judgment for the plaintiff. Defendant assigns error. The following instructions were given by the court: 1 A. “The court instructs the jury, that it was the duty of the city of Richmond to keep the sidewalk in question in a reasonably safe condition for pedestrians throughout its entire width, but reasonably safe condition does not mean an absolutely safe condition, nor does it mean that the entire sidewalk shall be smooth and even for its entire width, nor that it shall he…

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

<p>Error to a judgment of the Circuit Court of Norfolk county, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The plaintiff in error seeks to reverse a judgment of the Circuit Court of Norfolk county in an action brought against it by the defendant in error to recover damages for the death of his intestate, John T. Ellington, a motorman on one of its electric cars.</p> <p>The accident in which Ellington lost his life occurred about half-past eleven o’clock on the night of August 21, 1906, and was the result of a collision between two of the company’s cars in a suburb of the city of Norfolk, on a cross-over or latch, con- v necting the company’s double tracks with its car barn. Ellington’s car, which he was attempting to convey from the western track across the eastern track to the car barn to be housed for the night, was run into by another car on the eastern track and derailed, the effect of the impact being that Ellington was thrown from his car to the ground and fatally injured.</p> <p>The scene of the accident is well described in the petition for a writ of error as follows: “Church street, just outside of the corporate limits of the city of Norfolk, runs nearly north and south. At the point where the accident occurred on this street, the Norfolk and Portsmouth Traction Company has two tracks, the easternmost of which is used by cars going northwardly to the City Park, while the westernmost track is used by cars going southwardly toward Main street in Norfolk. * * * At a short distance south of C street, which runs east and west and comes into Church street, there is a crossover, or latch, connecting the two tracks with the car barn of the company, situated on the east side of Church street, a little north of C street.”</p> <p>There was no overhead trolley wire over the cross-over, and in order to effect a crossing it is necessary to stop the car at a point south of the switch on the west track. The motorman then-takes the controller handle off the controller on the northern end of the car and transfers it to the controller on the southern end, while the conductor reverses the trolley; and upon his giving the hell signal to go ahead, it becomes the duty of the motorman to pnt the car in motion at a sufficient rate of speed to carry it across the latch by its own momentum. When the trolley wheel leaves the overhead wire, the electric current is shut off, and the car passes over the latch in darkness.</p> <p>Among other matters, which sufficiently appear from the opinion of the court, the case involves the determination of the question, whether section 162 of the Constitution of Virginia abolishes the fellow-servant doctrine among employees of street railway companies. The section is here inserted in full.</p> <p>“The doctrine of fellow-servant, so far as it affects the liability of the master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master, is, to the extent hereinafter stated, abolished as to every employee of a railroad company, engaged in the physical construction, repair or maintenance of its roadway, track or any of the structures connected therewith, or in any work in 'or upon a car or engine standing upon a track, or in the physical operation of a train, car, engine, or switch, or in any service requiring his presence upon a train, car or engine; and every such employee shall have the same right to recover for every injury suffered by him from the acts or omissions of any other employee or employees of the common master, that a servant would have (at the time when this Constitution goes into effect), if such acts or omissions were those of the master himself in the performance of a non-assignable duty: provided, that the injury, so suffered by such railroad employee, result from the negligence of an officer, or agent, of the company of a higher grade of service than himself, or from that of a person, employed by the company, having the right, or charged with the duty, to control or direct the general services or the immediate work of the party injured, or the general services or the immediate work of the co-employee through, or-by, whose act or omission he is injured; or that it result from the negligence of a co-employee engaged in another department of labor, or engaged upon, or in charge of, any car upon which, or upon the train of which it is a part, the injured employee is not at the time of receiving the injury, or who is in charge of any switch, signal point, or locomotive engine, or is charged with dispatching trains or transmitting telegraphic or telephonic orders therefor; and whether such negligence be in the performance of an assignable or non-assignable duty. The physical construction, repair or maintenance of the roadway, track or any of the structures connected therewith, and the physical construction, repair, maintenance, cleaning or operation of trains, cars or engines, shall be regarded as different departments of labor within the meaning of this section. Knowledge, by any such railroad employee injured, of the defective or unsafe character or condition of any machinery, ways, appliances or structures, shall be no defense to an action for injury caused thereby. When death, whether instantaneous or not, results to such an employee from any injury for which he could have recovered, under the above provisions, had death not occurred, then his legal or personal representative, surviving consort, and relatives (and any trustee, curator, committee or guardian of such consort or relatives) shall, respectively, have the same rights and remedies with respect thereto as if his death had been caused by the negligence of a co-employee while in the performance, as vice-principal, of a non-assignable duty of the master. Every contract or agreement, express or implied, made by an employee, to waive the benefit of this section, shall be null and void. This section shall not be construed to deprive any employee, or his legal or personal representative, surviving consort or relatives (or any trustee, curator, committee or guardian of such consort or relatives), of any rights or remedies that he or they may have by the law of the land, at the time this Oonstitution goes into effect. Nothing contained in this section shall restrict the power of the general assembly to further enlarge, for the above-named class of employees, the rights and remedies hereinbefore provided for, or to extend such rights and remedies to, or otherwise enlarge the present rights and remedies of, any other class of employees of railroads or of employees of any person, firm or corporation.”</p>

<p>Absent, Keith, P.</p> <p>1. Cemeteries — Code, 1904, Sec. 1414 as Amended — Adjacent Owners— Property “Damaged.” — The word “damaged” in see. 1414 of the Code, as amended by Acts 1906, p. 10, declaring that when damage is done to adjacent lands by the establishment of a cemetery the owner whose lands have been damaged shall have a right of action against the persons or corporation establishing said cemetery, is used in the same sense that it is in .the Constitution. It means damage done to the corpus of the property, or to some right enjoyed in connection therewith. The mere fact that private property is rendered less desirable for some purposes, or that the establishment of a cemetery will offend the taste or feelings of the adjacent owners, or may affect the sentiments of prospective purchasers and thereby render the property less desirable and even less salable, does not constitute damage within the meaning of the statute.</p>

<p>Appeal from a decree of tlie Circuit Court of Greensville county. Decree for complainants. Defendants appeal.</p>

<p>1. Appeal and Eeeoe — Extraneous Evidence — Bill of Exception. — Assignments of error of a character to be affected by extraneous evidence, which have not been the subject of exception, or bill of exception in the trial court, cannot be availed of on a writ of error from the appellate court.</p> <p>2. Eminent Domain — Easements—Code 1904, Seo. llOBf. — Under Code, 1904, section 1105f, authorizing the condemnation of “lands or any interest or estate therein, or materials, or other property,” an easement of a right of way may be condemned. Such easements are plainly within the intendment of the law.</p> <p>3. Eminent Domain — Alternative Award — Surplusage.—Where the report of commissioners in a condemnation proceeding fixes the amount of damages to the land owner at a given sum, and then fixes a less sum if the party seeking to condemn will do certain things, the court may strike out the latter alternative as surplusage and confirm the award of the larger sum unconditionally.</p> <p>4. Eminent Domain — Joint Award in Favor of Parties and Strangers.— Commissioners in condemnation proceedings cannot make a joint award of a given sum in favor of parties to the proceedings and of persons who are not parties and who are strangers in title to the parties and their property. It is beyond the power and jurisdiction of the commissioners and of the court to take cognizance of the property rights of such strangers. An award which goes beyond the submission is not binding on the parties.</p> <p>5. Eminent Domain — Joint Award — Reference to Master- — Judgment of Commissioners — Code, 1904, Sec. 1105f (14)- — The provisions of Code, (1904), section 1105f (14), for referring a case to-a commissioner in chancery to ascertain who is entitled to a fund paid into court and in what proportions, applies only to a fund in which there is a community of interest among the claimants, and not to a case involving distinct properties and ownership where the commissioners have returned a joint award. It was never intended to substitute the finding of a commissioner in chancery for that of the commissioners in determining the value of the respective properties.</p>

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

<p>Absent, Whittle, J.</p> <p>1. Appeal and Error — Two Trials in Lower Court — No Evidence on Second Trial. — Where there have been two trials of an action at law, and the first verdict has been set aside as contrary to the evidence and no evidence introduced on the second trial, the sole question for consideration by the appellate court is whether or not it was error to set aside the verdict at the first trial.</p> <p>2. Street Railways — Negligence—Starting Signal Gwen by Stranger.- — ■ The failure of a street car conductor to have the bell cord of his car at all times under his control so as to render it impossible for a third person to ring the bell and start or stop the ear is not negligence; nor would the conductor be justified in ejecting a passenger who had without authority once rung the bell to start. It would be sufficient in the latter case to warn him not to repeat the offence.</p> <p>3. Street Railways — Negligence—Starting Signal Given by Stranger.— If someone on a street car, not an employee of the street car company, without the knowledge or authority of the conductor, rings the bell and gives the motorman the signal to start, and, in pursuance of such signal, the motorman starts the ear and a passenger who is attempting to get off is thrown to the ground and injured, the company is not liable therefor.</p>

Appeal froDi a decree of the Chancery Court of the city of Richmond, refusing the prayer of a petition to have counsel, fees paid out of a fund under the control of the court.

<p>1. Instructions — Sufficiency—Jury Fully Instructed. — If an instruction given by the court correctly states the law, is based upon evidence which tends to prove the facts upon which it is predicated, and is of itself sufficient to inform the jury as to the law of the case, it is not error to refuse other instructions tendered by the parties. In the case at bar, the instruction given measures up to these requirements.</p> <p>2. Highways — Dedication—Acceptance—Subsequent Obstructions — Limitation of Actions. — In an action of ejectment by a city to recover a strip of land alleged to be part of the public highway, the city is entitled to recover where it appears that a century ago the highway was duly laid out, dedicated and accepted, and has since been continuously used, improved, occupied and enjoyed as a highway, and that the southern boundary of the highway constituted the northern boundary of the lot now owned by the defendant, and that she still has all of the land called for by the deeds under which she claims, although in the meantime there may have been encroachments by those under whom the defendant claims upon such highway.</p> <p>3. Limitation oh Actions — State as Party — Public Highways. — Title to a public highway cannot be acquired by adverse possession. Time does not run against the State, nor bar the right of the public. On this point Poe, Trustee, v. Oity of Richmond, 24 Gratt. 149, is disapproved.</p>

<p>1. Specific Performance — Disci etionai y — Evidence.—Speeifie performance will not be decreed as a matter of right, but every application therefor is addressed to the sound judicial discretion of the court, and it is incumbent upon the party seeking it to prove the contract sought to be enforced by competent and satisfactory evidence. There must be a clear mutual understanding and a positive assent on the part of each party.</p> <p>2. Specific Performance — Proof of Contract — Agreement—Acceptance of Offer — Case in Judgment. — When the court is unable from all the circumstances to say whether the minds of the parties met on all the essential particulars, or if they did, then cannot say upon what substantial terms they agreed, or trace out any practical line where their minds met, speeifie performance will be refused. If an offer is made and acceptance required at a particular time or in a specified way, such acceptance must be alleged and proved, or the . acceptor cannot have speeifie performance. In the ease in judgment, the complainant has not proved his case with that convincing clearness which is essential to entitle him to specific performance.</p>

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

<p>1. Electricity — Incandescent Lamp — Shock—Negligence.—A person injured by a shock while turning off an incandescent electric lamp cannot recover from the company which furnishes the current of electricity where it appears that he owned, installed and controlled the electric outfit, and there is no evidence of an excessive voltage or other negligence on the part of the company. Negligence of the company under such circumstances will not be presumed.</p> <p>2. Negligence — Res Ipsa Loquitur — When Doctrine Not Applicable.— Where a thing is under the management of the defendant or his servants, and an occurrence is such as, in the ordinary course of things, does not happen if proper care is used, it will be presumed, in the absence of explanation by the defendant, that the occurrence arose from want of care. But the doctrine of res ipsa loquitur has no application where an accident is due to a defective appliance under the management of the plaintiff; nor to a case involving divided responsibility, where an unexplained accident may have been attributable to one of several causes for some of which the defendant is not responsible.</p>

Judgment for the plaintiff. Defendant assigns error. The following are the instructions given in the court below: “ÜSTo 1. The jury are instructed, that the contract price to be paid by defendants to plaintiff, including extra work not disputed, is $53,964, and that this work is admitted to have been done except a part of the railing.

<p>Error to a judgment of the Circuit Court of Henrico county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p> <p>The following instructions given at the instance of the plaintiff, are referred to in the opinion of the court:</p> <p>“Ho. 2. The court instructs the jury, that the degree of care and foresight which the defendants should have used in building their fence and water-gate and constructing their culverts was in proportion to the nature and magnitude of the injury which would likely have resulted from the water being backed upon the plaintiff’s property, and it should have been that care and prudence which a discreet and cautious individual would, or ought to have used for the purpose of protecting himself from injury.</p> <p>“Ho. 3. The court instructs the jury, that if they believe from the evidence that the defendants failed to use such skill and engineering knowledge in the construction of the fence, water-gate and culverts in question, as is ordinarily practised in the construction of such work, and as a consequence, said fence and water-gate were improperly built, or said culverts improperly constructed, and would not carry off the flow of water which the defendants had reasonable cause to believe would occasionally flow down Gannon’s branch, and as a consequence thereof, the plaintiff’s property was damaged, then the defendants were guilty of negligence in so constructing .said fence, water-gate or culverts. But the court instructs the jury, that the burden of proving that the defendant was so negligent in discharging this duty, and that such negligence caused the injury, is upon the plaintiff.</p> <p>“Ho. 4. The court instructs the jury, that although they may believe from the evidence that the lot owned by Hoffman was subject to overflows during high waters, yet this would not prevent Hoffman from building on said lot, provided said lot was raised to a sufficient height, or a wall high and strong enough was placed around or on said property to prevent the water which might he reasonably expected to flow down Gannon’s branch at periodically recurring freshets from flowing on said property, and said wall did not directly interfere with the flow of such high water in said creek.”</p>

<p>Absent, Keith, P.</p> <p>1. Foreign Corporations- — Process—Service on Statutory Agent. — Where an action is brought against a foreign corporation doing business in this State, to recover damages for a wrong, in the county where the cause of action arose, the process commencing the action may be sent to the officer of the county or corporation in which the statutory agent of such foreign corporation resides, and. service upon such agent there will have the same effect in bringing such foreign corporation into court as if it were a home corporation, and the statutory agent were its chief officer residing there.</p>

Judgment for tbe plaintiff. Defendant assigns error. Defendant’s instructions rejected.

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

<p>Appeal from a decree of the Oircuit Court of the city of Richmond. From a decree allowing counsel fees and costs defendants appeal.</p>

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

Judgment for the defendant. Petitioners assign error. The following is a copy of the petition filed in trial court: “To the Hon. William Bruce Martin, Judge of the Court of Law and Chancery of the city of Norfolk: “Your petitioners, L. W. Tazewell, George L. Arps and C. H. Bull, respectively represent— “1. That they áre citizens, residents, tax-payers and qualified voters in the city of Norfolk, Virginia; “2.

<p>Absent, Keith, P.</p> <p>1. Real Estate Brokers — Compensation—Release of Vertdee — Interest.— Although a real estate agent or broker has stipulated that his compensation shall be paid out of the last three notes to be given by the purchaser, if he has fully complied with his contract and effected a sale which the vendor can enforce, he cannot be deprived of his compensation by the action of the vendor in voluntarily releasing the vendee from his contract, without the assent of said agent. He is entitled to recover the amount stipulated for with interest from the time he would have received it had the said notes run to their maturity.</p> <p>2. Real Estate Broker — Compensation—Perfected Sale — Release of Vendee by Vendor.- — If a real estate agent or broker, in pursuance of his contract with a land owner,'has found a purchaser ready and willing to comply with the vendor’s terms, and has brought the parties together, and they have entered into a valid,contract of sale which the vendor can enforce, and the sale has been completed so far as the agent is concerned, he cannot be deprived of his compensation by the voluntary release of the vendee and refusal of the vendor to consummate the sale, without the assent of the agent.</p>

<p>Absent, Keith, P.</p> <p>1. Specific Pebfobmance — Laches—Risk of Injustice — Case in Judgment. — The bills in this ease seek the specific enforcement of a compromise made nearly a quarter of a century ago, but fail to state facts and circumstances sufficient to constitute a good excuse for the unreasonable delay in seeking the relief asked. Furthermore, the bills state facts and circumstances which show upon their face that a court of equity would encounter great risk of doing injustice to the defendants and others if it enforced the compromise, and the grounds entitling the complainant to the relief sought are not set forth with the full, clear, positive and distinct averments necessary in such eases. Under such circumstances a demurrer to the bills was properly sustained, and relief refused.</p>

<p>Absent, Keith, P.</p> <p>1. Pleading — Declaration — Charging Negligence. — The object of a declaration is to inform the defendant of the ease which he is 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 through the careless and negligent conduct of the defendant, but the facts relied on to establish the defendant’s negligence should be stated with reasonable certainty. Negligence is a conclusion of law from facts sufficiently pleaded.</p> <p>2. Verdicts — Defective Count in Declaration — Inadmissible Evidence. If a demurrer to a bad count in a declaration has been improperly overruled by the trial court, all evidence received under that count which was not admissible under any other count of the declaration, is improperly admitted, and the verdict of the jury must be set aside as the court cannot tell on which count the verdict was rendered.</p> <p>3. Pleading — Second Declaration as Substitute for First — Case at Bar. The record in this case shows that the second declaration filed by the plaintiff was not an amendment of the first, that the plaintiff abandoned his first declaration, and that the parties treated the second declaration as alone containing the grounds of the plaintiff’s action, and went to trial and conducted the ease throughout on that understanding.</p> <p>4. Evidence — Comparing Methods of Handling Machinery. — Whether a piece of machinery was operated carefully and skillfully cannot be established by proof of the manner in which some other company operated like machinery.</p> <p>5. Evidence — Experts—Discretion of Trial Cowts. — Whether or not a witness is qualified to speak as an expert is left largely to the discretion of the trial court, and its ruling allowing a witness to testify as an expert will not be reversed unless it appears clearly that he was not qualified.</p> <p>6. Evidence.— Negligence• — Other Negligent Acts — Instructions — Belief of Jury. — In an action to recover damages for an alleged negligent injury, an instruction is erroneous which does not confine the plaintiff and the jury to the acts of negligence alleged in the declaration, and moreover, which speaks of a preponderating probability “if it exists in the mind of the jury” instead of saying “if the jury believes from the evidence.”</p> <p>7. Contributory Negligence. — The law will not weigh or apportion the concurring negligence of a plaintiff and defendant. There can be no recovery by a plaintiff who has been guilty of contributory negligence.</p> <p>8. Negligence — Proof.—In order to hold a defendant liable for a negligent injury there must be affirmative and preponderating proof of the defendant’s negligence.</p> <p>9. Verdicts — Erroneous Under Any Instructions. — It is error to refuse to set aside a verdict for the plaintiff when no verdict could be rightfully found for him under any instructions.</p> <p>10. Master and Servant — Risks Assumed by Servant. — A servant, when he enters the service of the master, assumes all the ordinary risks of such service, and also, as a general rule, all risks from causes which are known to him, or should be readily discernible by a person of his age or capacity, in the exercise of ordinary care.</p>

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

<p>Absent, Keith, P.</p> <p>1. Limitation of Actions — Limitation of Remedy — Demurrer.—-Where-ever the statute of limitation affects the right as well as the remedy, and it appears of record that the period of limitation has expired, the defense can be made by demurrer.</p> <p>2. Conflict of Laws — Injury in Another State — Extent of Remedy. Where an injury has been inflicted in a sister State, the laws of that State govern as to the extent of the remedy.</p> <p>3. Fokeign Laws — Evidence—Judicial Notice — Oasé at Bar. — If the statute of a foreign State is relied on as. a ground of recovery in this State, the statute must be alleged in the declaration, and so, likewise, if a foreign statute suspending the time within which a remedy given by another statute of that jurisdiction is to be enforced be relied on,- it must be set forth in the pleadings. The statutes of foreign States will not be judicially noticed. They are considered as facts which must be pleaded and proved as any other facts. In the case at bar a foreign statute giving a right of action for death by wrongful act is set forth in the declaration. It limits the right to one year, and contains no saving clause. No suspending statute is pleaded, and as the action was not brought for fifteen years after the right accrued, it was properly held to be barred by the statute of limitations.</p>

<p>Absent, Keith, P.</p> <p>1. Equity — Bill of Review — After Discovered Evidence — When Not Cumulative. — Newly discovered evidence tendered with a bill of review cannot be said to be cumulative when, upon the first hearing, there was no evidence at all upon the subject.</p> <p>2. Equity — Bill of Review — After Discovered Evidence — Essentials. To entitle a party to a bill of review on the ground of after discovered evidence, the evidence must have been discovered since the rendition of the final decree, and it must appear that it could not have been discovered earlier by the. exercise of reasonable diligence. It must be material and such as, if true, ought to produce, on another hearing, a different result on the merits, and must not be merely cumulative.</p>

<p>Appeal from a decree of the Circuit Court of Scott county. Decree for the principal defendant. Complainants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Lee county. Decree for defendants in the cross-bill. Complainants in said bill appeal.</p>

<p>Absent, Keith, P.</p> <p>1. Appeal and Error — Interlocutory Decrees — When Appeal to he Taken. — While it is permissible, it is not necessary to appeal from certain interlocutory decrees at the time they are rendered. The party may appeal at any time within a year after a final decree has been rendered in the cause, if all the other requisites for appeal exist.</p> <p>2. Guardian and Ward — Maintenance—Corpus of Meal Estate — Case in Judgment. — A devise of real estate to idiotic children with the request that a designated person act as guardian for them and “see that the children are taken care of, and to apply the proceeds of the property to their benefit,” does not confer upon the trustee authority to use the corpus of said real estate, if necessary, for the purpose of taking care of said idiots. The proceeds mentioned refers to the personal property, and the rents and profits of the real estate.</p> <p>3. Guardian and Ward — Maintenance of Ward — Personal Property— Meal Property. — Unless authorized by the deed or will under which the estate is derived, a guardian has no power to charge the corpus of his ward’s real estate, whether the ward be dead or alive, with the costs of his maintenance. The statute (Code, sec. 2605) which must be strictly construed, expressly provides that neither the war’d personally nor his real estate, shall be liable for disbursements made without authority previously obtained. While such disbursements may be permitted to be paid out of personalty, they are practically declared to be no debt or valid demand against the ward or his real estate.</p> <p>4. Guardian and Ward — Maintenance of Ward — Corpus of Meal Estate— Jurisdiction of the Circuit Courts. — The jurisdiction of the circuit courts to authorize the application of the proceeds of the corpus of infants’ real estate to their maintenance is altogether statutory, and, according to the statute, which is to be strictly construed, such an authority must he given, if at all, before and not after the expenditure has been made.</p>

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

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

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

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

<p>Absent, Keith, P.</p> <p>1. Pleading — Declaration — Negativing Contributory Negligence — Disclosure.- — In an action to recover damages for a negligent injury it is not necessary for the plaintiff to negative contributory negligence on his part, but if the facts averred show such contributory negligence on his part, there can be no recovery in the absence of averments which show that, notwithstanding such contributory negligence, the defendant might have avoided the injury by the exercise of ordinary care after it discovered or ought to have discovered the plaintiff’s danger.</p> <p>2. Railboads — Grade Crossing — Contributory Negligence.- — In an action against a railroad company to recover damages for an injury inflicted on a traveler at a grade crossing of a public highway, the plaintiff is entitled to recover, however negligent he may have been in going upon the crossing in front of a moving train, if after the defendant’s servants in charge of the train saw, or ought to have seen, that he was in peril, they failed to exercise ordinary care to avoid injuring him.</p> <p>3. Insteuctions — Immaterial Rulings. — If the instructions given by the court properly- submitted the case to the jury, and upon them there should have been a verdict for the defendant, it is unnecessary to consider whether the court erred in refusing other instructions tendered by the defendant.</p> <p>4. Railboads — Grade Crossings — Persons Approaching — Presumption.—■ Where one is seen driving towards a grade crossing of a railroad and there is nothing in his conduct to indicate that he is not in the full possession of his faculties, or that his team is not entirely under his control, nor anything to indicate that he intends to cross, or attempt to cross, the railroad track in front of a rapidly-moving train which is in full view, the trainmen have the right to presume that he will stop and not go upon the track. If he proceeds, and is injured, there can be no recovery in the absence of evidence that, after the trainmen knew or ought to have known of his peril, they did not do all that they could to avoid the injury.</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>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>Error to a judgment of the Circuit Court of Roanoke county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

Decree for the complainants. Defendants appeal. The consent decree referred to in the dissenting opinion is in the following words and figures: “This cause this day came on by consent of parties to be heard upon the hill and exhibits filed therewith, regularly taken for confessed as to the defendants, Charles Selden and I. H. Selden, Thomas Tahb, trustee, and Annie J. Phoebus, and the report of Commissioner Ivy filed on the 13th day of September, 1894, to which report no…

<p>Absent, Keith, P.</p> <p>1. Deeds — Construction—Ambiguous Language — Parol Evidence. — In ease of ambiguity in the language of a deed, the deed will be construed most strongly against the grantor and in favor of the grantee. Moreover, parol evidence is always admissible to identify, explain, or define the subject-matter of a grant, for without such evidence it would be impossible to give effect to the intention of the parties.</p> <p>2. Deeds — Construction—Case in Judgment. — In this case a grant was made by the appellee to the appellant’s grantor of “a strip of ground extending for such width on each side of the center line of said railroad, with such additional width at cuttings and embankments as may be required for the construction and maintenance of a double track railroad through and over said grantor’s tract of land, situated on Clinch river on the late survey of P. E. Montague * * . Said strip of ground to be laid out in accordance with the survey of said company’s engineers, with the right to the company to make such variations in the line of said survey as may be deemed needful to secure the best location for the road. Por any of said grantor’s houses, barns or buildings of any kind to be moved, said grantors are to move at their own expense.” The question to be decided is, what land passed by virtue of that conveyance.</p> <p>Held: By fair construction of the deed, aided by the extrinsic testimony with regard to the subject-matter set forth in the opinion of the court, including the testimony of experts to ascertain the center line of the double track, and the width of ground on each side thereof required for the construction and maintenance of such a road, it conveyed a strip of ground through the farm of the appellees, 33 feet in width on each side of an initial line parallel with and 6% feet west of the Montague center line of location of the single track.</p>

<p>Absent, Keith, P.</p> <p>1. Specific Performance — Parties—Vendor Holding Legal Title — Sub-Purchasers. — In a suit by a vendor who has not parted with his legal title against his vendee for the specific performance of a contract for the sale of real estate, a sub-purchaser of the vendee is not a necessary party. He is bound by any decree against his vendor affecting the title. The effect of the outstanding legal title is to admonish a spb-purchaser that he takes in subordination to the rights of the owner of such title. With respect to such owner, he is a mere intruder, and as against the paramount title a deed from his vendor invests him with no estate, legal or equitable. As a general rule, only parties to the contract are necessary to such a suit.</p>

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

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

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

<p>Absent, Keith, P., and Buchanan, J.</p> <p>1. Equity Jurisdiction — Unauthorized Tax — Injunction.—The jurisdiction of a court of equity to enjoin the enforcement of an unauthorized tax is firmly established in this State.</p> <p>2. Taxation — Collateral Inheritance Tax — Power of Cities and Towns to Impose — Code, See. 104-3. — Neither the general law (Code 1904, sec. 1043) which authorized cities and towns to levy a tax on “any property therein, and upon such other subjects as may at that time be assessed with State taxes against persons residing therein,” nor the charter of the town of Wytheville which authorizes it to levy taxes “on all subjects taxable by the State” confers any authority upon said town to levy a collateral inheritance tax. The statutes quoted above apply only to the ordinarily annually recurring tax on property and other subjects of taxation, and not to a burden on the devolution of property. Such a burden is not a property tax.</p> <p>3. Taxation — Power of' Municipalities to Tax — Express Grant. — When municipal officers assume to exercise the power of taxation over any subject, they must be able to show a warrant for it in the very words of the grant. Authority to tax is strictly construed.</p>

<p>Absent, Keith, P.</p> <p>1. Municipal Corporations — Discretionary Powers — Interference by Courts — Street Bailumys. — If a city has power, under its charter,, “to permit street car lines to be built and to determine and designate the route and grade thereof” it may, when acting in good faith, and not arbitrarily or capriciously, direct the track to be laid on the side of the street instead of in the center; and it is not competent for the courts to interfere with the legislative acts of the city when acting within its charter powers. This power of the city is not limited by the new Constitution, nor has it been modified by sec. 1294-i of the Code (1904) relating to the laying of street car tracks.</p> <p>2. Streets' — Electric Railways — Additional Servitudes — “Damaged.”—The construction of an electric street car line in a street does not impose an additional servitude on the land occupied by the street, and abutting owners are not entitled to damages by reason of its location in the street. This rule is not affected by the damage clause of the Constitution.</p> <p>3. Streets — Electric Railway — Location—Additional Servitude. — Whether an additional servitude has been added to the street, or an abutting owner is entitled to compensation or to damages for an injury, cannot be determined from the mere fact that an electric car line is proposed to be laid on the side of the street instead of in the center thereof.</p> <p>4. Streets — Abutting Owners — Standing Vehicles in Street. — An abutting owners rights are not violated simply because a street car line runs • so near the curbing next to his property that a vehicle cannot stand between the track and the curbing while a car is passing. He has the right to pass and repass, and also to free access to his property, but he has no right to stand vehicles on the street an unreasonable length of time where it would impede travel over the street by those who have the right to use it.</p> <p>5. Streets — Street Gar Tracks — Location—Damages to Abutting Owner. An abutting owner is not entitled to damages merely because his property is made less desirable and less comfortable as a residence by reason of the fact that a street car track is laid on the side of the street next to his residence instead of in the center of the street. When the acts complained of amount simply to an inconvenience or discomfort of the occupants of the property, but the property itself does not suffer any diminution in substance, and is not rendered intrinsically less valuable by reason of the public use there can be no recovery. The property is not damaged within the meaning of the Constitution.</p>

<p>Absent, Keith, P.</p> <p>1. Master and Servant — Defective Machinery — Proximate Cause. — A plaintiff cannot recover for an injury inflicted by defective machinery unless it affirmatively appears that the defect was the proximate cause of the accident of which he complains.</p> <p>2. Master and Servant — Injury to Servant — Contributory Negligence of Servant — “Bach-Poling” in a Mine — Proximate Cause. — The evidence in this cause shows that “back-poling” an electric car into a mine was an extremely dangerous operation; that its danger was open and obvious, and well-known to the employees in the mine, including the plaintiff’s intestate, and was forbidden by the defendant’s rules, and that the sole proximate cause of the accident which resulted in the death of the plaintiff’s intestate was the useless and reckless manner in which he “back-poled” a car into the mine, with knowledge of the danger, and hence there can be no recovery by his personal representative.</p>

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

. Error to a judgment of the Circuit Court of Botetourt county ou a motion to quash an execution. Judgment for the defendants in the motion. Plaintiffs assign error.

Judgmént for the plaintiff. Defendant assigns error. • Tbe following instructions were given by the court: “(A) The court instructs the jury, that knowledge by any railroad employee injured of the defective or unsafe character or condition of any appliances or structures shall be no defense to an action for injury caused thereby; and, if the jury believe from the evidence that G. W. Kowsey was killed by reason of the fact that the condition or character of the defendant…

<p>1. Negligent Eires — Master and Servant — Sub-Servant—Agents—Sales— Delivery — Case at Bar. — A manufacturer of traction engines sold one of its engines to a purchaser. The engine was shipped in a knocked-down condition and consigned to the manufacturer, in care of its agent, at the point of destination. When it arrived the agent notified the agent of the purchaser of its arrival and that he would unload it on the next day, and would be glad for him to be present and see it well done. Neither the purchaser nor any one representing him was present at the unloading. The agent of the manufacturer and an assistant employed by him unloaded it and put it together, and fired it up with wood, and ran it rapidly past the plaintiff’s house several times, and in consequence of their negligence the plaintiff’s house was burned, and he instituted this action to recover its value. The engine was intended for the use of coal and had no spark arrester. The contract did not designate any place of delivery and there is no evidence that the purchaser had assumed control of the engine or that it was in his charge. The purchaser was under no obligation to receive the engine until it was constructed and in good working order. The inference is irresistible that the engine was fired up by the manufacturer’s servant and operated by him for the purpose of testing it and determining whether it was in a proper condition for delivery to the purchaser.</p> <p>Held: There was no delivery by the purchaser. The agent of the manufacturer was authorized to employ an assistant to aid in reconstructing and testing the engine, and the manufacturer is liable for the loss resulting from their negligence.</p> <p>2. Appeal and Error — Errors in Calculation — Amendments.—Mere errors in calculation in the trial court which are readily corrected from the record, will be corrected on a writ of error, and a judgment which is otherwise right will be corrected and affirmed.</p>

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

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

<p>1. Bills of Exception — Time of Filing — Evidence of Filing — Case at Bar. Where the record shows that opinions of the trial court were excepted to, and leave given to file bills of exception according to law, which, when filed, were ordered to be made a part of the record; and corresponding bills of exception in due form appear in the record, purporting to have been signed, sealed and enrolled as parts of the record, with the clerk’s certificate attached “that the foregoing is a true transcript of the record,” which certificate bears date November 26, 1907, while the record shows that the court was in session at least as late as October 28, 1907, this is sufficient evidence of the filing of said bills within thirty days after the end of the term at which the exceptions were noted.</p> <p>2. Bills of Exception. — Filing After Adjournment of Term — Evidence of Time of Filing — When to be Filed. — Correct practice demands that a bill of exception, not signed during the term at which the opinion of the court is announced to which exception is taken, ought to show that it has been signed within thirty days after the end of such term, or at such other time as the parties, by consent entered of record, may agree upon. Such signing may now be either in term time or vacation, whether another term has intervened or not; and it is declared that all bills of exception so tendered to and signed by the judge, shall be a part of the record of the ease.</p> <p>3. Master and Servant — Assumption of Rishs — Obvious Dangers. — A servant assumes all of the usual and ordinary risks incident to the employment upon which he enters, and also all risks which he knows, or may, in the exercise of reasonable care, know to exist, unless there is some agreement to the contrary. In the case at bar, the servant was injured by his foot slipping from the rim of a tub upon which he was standing into its boiling contents. He was perfectly familiar with the situation, the dangers of which were open and obvious. He had been engaged in this business for a long time, and was in the habit of thus standing on the tubs fifty or sixty times a day, and made no complaint of the danger. Under such circumstances he cannot recover of the master.</p>

<p>1. Wills — Attesting Witnesses — Competency at Attestation — Proof of Execution. — Attesting witnesses to wills must be competent at the time of attestation. Those who took under the will were not competent at common law, and have not been made so by our statute. While a will must be attested by two competent witnesses, its due execution can be proved by the testimony of one witness, but that witness must prove all the facts required by the statute to be proved as necessary to the due execution of a will, and, among them, that it was attested by two competent witnesses.</p> <p>2. Wills — Attesting Witnesses — Interest—Avoidance of Devise — Supernumeraries- — Code, Sec. 2529 Construed. — The words “if the will may not be otherwise proved” used in section 2529 of the Code, have reference to a case where the devisee or legatee is needed as an attesting witness to make up the number required by law, in which case he is made a competent attesting witness by the avoidance of the devise or bequest to him, and he may be also called to testify at the probate of the will. And, conversely, a will may be otherwise proved when there is an extra or superfluous attesting witness beyond the number required by the statute.</p>

<p>Appeal from a decree of the Circuit Court of Rockingham county. Proceeding on a petition. Decree for petitioner. Defendant appeals.</p>

<p>1. Vebdicts — Weight in Appellate Oourt — Negligence.—The jury are the judges of the weight to be given to the evidence, and their verdict affirmed by the trial judge, will not be set aside by this court except in case of a plain deviation from right and justice. If the question be one of negligence, and reasonable men might fairly differ as to whether or not there was negligence, the verdict of the jury will not be disturbed.</p>

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

<p>1. Specific Performance — Suit by Sub-Vendee of Part of Tract — Lien for • Enture Price. — A sub-vendee of a portion of a tract of land which the vendor has agreed to sell cannot compel the vendor to make a conveyance of such portion to him, except upon payment of the whole amount due for the entire tract, as the whole tract stands as a security to the vendor for the entire purchase price, and the vendor will not be compelled to release any part of his security until the entire purchase price has been paid.</p> <p>2. Specific Performance — Rescission of Contract Without Notice to SubVendee — Suit by Sub-Vendee. — Where a contract for the sale of land has been rescinded by agreement of the parties thereto, without notice to or the assent of, a sub-vendee of a part of the land, the latter cannot have specific performance of the sub-sale against the vendor who was not a party to the sub-sale and never assented thereto.</p> <p>3. Specific Performance — Part Performance — Case in Judgment. — A court of equity will compel the specific performance of a parol contract for the sale of real estate where the contract is certain and definite, and there have been such acts of part performance as that neither party can be restored to his former position. In the case in judgment the contract is parol, and there have been no such acts of part performance as would entitle the complainant to specific performance, and it is, therefore, denied.</p> <p>4. Statute of Frauds — Sale of Land — Parol Contract — Part Performance —Damages.—A parol contract by which a vendee of land agrees to sell, a portion of it to a sub-vendee, though assented to by the vendor, is within the statute of frauds and is unenforceable where there have been no acts of part performance except such as may be readily compensated in damages.</p>

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

<p>1. Wills — Sanity of Testator — Burden of Proof — Degree of Proof. — Where the sanity of a testator is drawn in question, the burden is upon the propounder of the will to prove to the satisfaction of the jury the sanity of the testator at the time of the execution of the alleged will; and, in determining that question, the jui'y should take into consideration the presumption in favor of the testator’s sanity. Every man is presumed to be sane until evidence that he is of unsound mind is introduced.</p> <p>2. Wills — Sanity of Testator — Opinions of Non-Experts — Weight of Evidence. — Non-expert witnesses may give their opinions upon the question of sanity of a testator when they state the facts and circumstances, within their personal knowledge, upon which their opinions are based. Whether the witnesses have had sufficient opportunity of knowing and observing a testator to form a reliable opinion as to his mental condition affects the weight' rather than the admissibility of their testimony.</p> <p>3. Wills — Sanity of Testator — Family Estimation — Hearsay.—Whether or not a testator was regarded in his family as weak minded and childish is hearsay and cannot be received in evidence. It is competent to prove the treatment of a testator by the family, but not their opinions of his mental condition.</p>

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

Appellant filed a petition claiming the fund in litigation by reason of the fact that the principal debtor had been adjudged a bankrupt within four months after the levy of complainant’s attachment and that he was the trustee of the bankrupt’s estate. From a decree dismissing the petition, the petitioner appealed. •

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

<p>Absent, Buebanan, J.</p> <p>1. Divoece — Abusive Language — Desertion—Case in Judgment. — While the evidence in this cause shows that both husband and wife have indulged in unseemly conduct, and have been quarrelsome and abusive of each other, and that she continues to live at their old home, while he has become a wanderer, without any fixed place of abode, yet neither party has made out a case for divorce, either from the marriage bond, or from bed and board.</p> <p>2. Divoece — Temporary Alimony — “Suit Money” — Amount.—In a suit for divorce the uniform practice is to allow a wife who is without means of her own, a reasonable sum to be paid by the husband, for her temporary support, counsel fees, and costs of litigation. Under the circumstances of this case, one hundred and fifty dollars is not an excessive allowance for such purposes.</p> <p>3. Divoece — Permanent Alimony Without Divorce — Contingent Right of Dower — Case in Judgment. — Without deciding whether permanent alimony may be granted to a wife where the divorce prayed for is refused, a decree against the husband for $350 for “permanent alimony” and for the value of the wife’s contingent right of dower in a tract of land which the husband had sold for $1,680, and which the wife is required to release, will not be disturbed, where the record does not show the value of said contingent right of dower, nor disclose the facts upon which an accurate computation can be made, and where the amount decreed would perhaps not have been excessive if the decree in her favor had been based wholly upon the value of her contingent right of dower.</p>

<p>Error to a judgment of the Corporation Court of the city of Staunton in an action of assumpsit. The only counts in the declaration were the common counts. Judgment for the plaintiff. Defendant assigns error.</p>

Judgment for the defendant. Plaintiff assigns error. On the preliminary question as to whether the evidence adduced at the trial was properly made a part of the record, the contention of counsel on opposing sides was, respectively, as follows : Of counsel for defendant in error.

<p>1. Justices of Peace — Police Justice — Jurisdiction—Title to Real Estate —Case at Bar. — A justice of tbe peace, or police justice, can only exercise such jurisdiction as is expressly conferred on him, and although jurisdiction be conferred to impose penalties for violations of a statute or city ordinance, yet this jurisdiction is ousted as soon as it is made to appear that the right to impose the penalty involves the validity of a bom fide claim of title to real estate. In the absence of statute, the justice cannot inquire into the claim, nor proceed to a summary conviction; and this is true even though the defendant is given a right of appeal to a court of record where he can have a jury trial. Statutes conferring jurisdiction on justices will not be aided or extended by inference or implication beyond their express terms. In the case at bar, the police justice of the city of Richmond was given jurisdiction, by an ordinance of the city, over any person who should break or dig up any street, sidewalk or alley of the city. The- defense was that the locus in quo was not a street, sidewalk or alley of the city, but the fee-simple property of the defendant, and it is held that the jurisdiction of the police justice was ousted by the bona fide claim of title by the defendant.</p> <p>2. Prohibition — Justice of Peace — Police Justice. — Prohibition is the appropriate remedy to prevent a justice of the peace, or police justice from exceeding his jurisdiction.</p>

<p>Appeal from a decree of the Circuit Court of Eocldngham county in a suit in chancery in which the appellees filed their petition to which appellants were made parties defendants. Decree for petitioners. Defendants appeal.</p>

Judgment for the plaintiff. Defendant assigns error. The stenographer’s notes referred to in the opinion of the court, though at first excluded, were subsequently read to the jury, subject to exception as to their admissibility.

<p>1. Insane Persons — Adjudication—Lucid Intervals — Conveyance of Property. — Although a man may have been adjudged insane and confined in an insane hospital and afterwards discharged simply as “improved,” and though subsequently subject to frequent fits of epilepsy, if, during the periods 'when he was free from insanity, he could perform all the ordinary duties of life, such as are set forth in the record of the case in judgment, he could also during such periods make a valid contract for the disposition of his property.</p> <p>2. Specific Performance — Parol Contract to Convey Land — Part Performance. — In order to justify a court of equity in the enforcement of a parol contract for the sale of land on the ground of part performance, the contract must be certain and definite in its terms, the acts of part performance relied on must refer to, result from or be made in pursuance of the contract proved, and the contract must have been so far executed that a refusal of full. execution would operate a fraud upon the party and place him in a situation which does not lie in compensation. In the case in judgment all of these requirements have been fulfilled.</p> <p>3. Specific Performance — Parol Contract to Sell Land — Part Performance — Services of Peculiar mature as Consideration — Case in Judgment. — Where, in a parol agreement for the purchase of real estate, the consideration consists of services to be rendered which are of such a peculiar character that it is impossible to estimate the value to the vendor by a pecuniary standard, and neither party intended so to measure them, the performance of the services will entitle the vendee to specific performance, notwithstanding the contract was by parol, when the other requisites for specific performance exist. In the case in judgment, a sister spent sixteen and a half years in caring for her afflicted brother who had insane spells several times during a year which would sometimes last for several weeks, when he would have to be handcuffed and chained to the floor, and whose condition was at such times horrible and repulsive, and the entire burden of feeding, washing and caring for him fell upon this sister. The rendition of such services by the sister in pursuance of a parol contract to convey to her his land is such part performance of the verbal contract on her part as to warrant a decree for specific performance.</p>

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

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

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

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

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

Decree for tlie defendants. Complainant appeals. In addition to the facts stated in the opinion of the court, it may be stated that in July, 1901, at the time of the settlement by the partners of the partnership affairs, Dixon “took over” the interest of Paddock in the lots in controversy in part payment of what Paddock was found to be due him, though no deed was made at that time by Paddock to Dixon, nor was any made till after the institution of this suit.

Judgment for the plaintiff. Defendant assigns error. (Instructions given on motion of the plaintiffs.) “(1.) The court instructs the jury, that although you may believe from the evidence that the deceased was found the evening of his death, having convulsions, and that he continued to have them until he died, and that strychnine was found in his stomach, this alone is not sufficient to prove suicide.

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

<p>Absent, Buchanan, J.</p> <p>1. Purchaser for Value — Notice—Burden of Proof — Degree of Proof.— The burden of proving notice to a purchaser for value is on the party alleging it, and while the fact of notice may be inferred from circumstances, as well as proved by direct evidence, yet the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the imputation of bad faith. In the case in judgment, the evidence fails to establish notice, actual or constructive.</p> <p>2. Specific Performance — Sale of Land — Verbal Contract — Part Performance — Proof Required — Case im Judgment. — -In order for a purchaser to have specific performance of a verbal contract for the sale of land which has been partly performed by him, the contract must be clear, definite and unequivocal in all its terms, and established by clear and satisfactory evidence; and the acts of part performance must refer to, result from or be made in pursuance of the agreement proved. Furthermore, the agreement must have been so far executed that a refusal of full execution by the vendor would operate as a fraud on the purchaser and place him in a situation which does not lie in compensation. In this ease the acts of part performance relied on by the purchaser do not measure up to these requirements.</p> <p>3. Specific Performance — Damages—Inadequate Compensation — Indemnity. — Where a party has been induced by verbal agreement to change his condition in life, to expend considerable sums of money, and to do acts whose value cannot be measured in money and compensated in damages, equity should protect him by a specific execution of the contract; but the tendency of all modern cases is to prefer giving the party compensation in damages, instead of a specific performance, and wherever damages will answer the purpose of indemnity, this alternative will be preferred.</p>

<p>1. Intoxicating Liquors — Unlawful Sale — How Charged — Time—Person. An indictment charging that the defendant did “unlawfully sell and deliver intoxicating liquors,” without specifying the precise time when or the person to whom the sale was made is sufficient both under the special act against tippling for Lancaster county, and under the general revenue laws of the State.</p> <p>2. Intoxicating Liquors — Unlawful Sale — United States License as Evidence on Indictment Against a Defendant for Unlawfully Selling Intoxicating Liquors. — A copy from the record in the office of the collector of internal revenue for the United States showing that the defendant had a United States license as a retail liquor dealer may be received in evidence without calling the collector to testify in person.</p> <p>3. Intoxicating Liquors — Special Act for Lancaster County — Possession of United States License. — -The special act against tippling in the county of Lancaster declaring that the possession of a license from the United States as a retail liquor dealer, and no such license from this State, shall be evidence of selling by retail without a license to do so, means simply that such possession raises a prima faeie or disputable presumption that the fact exists unless and until something is offered to show the contrary.</p> <p>4. Intoxicating Liquors — Proof of Sales — United States License — Documentary Evidence — Confrontation of Witnesses. — Statutes making the possession of a United States license to sell intoxicating liquors, and the absence of a State license, prima facie evidence of an unlawful sale of such liquors do not contravene the constitutional guarantee to one accused of crime of the right to be confronted with the witnesses against him. Documentary evidence is receivable the same in criminal as in civil eases.</p>

it Court of the city of Williamsburg. Indictment for murder. Defendant assigns error to a judgment of conviction of murder of'the first degree.

To a judgment of conviction, the defendant assigns error. The following instructions were given by the court notwithstanding defendant’s objection thereto: “1. The jury are instructed, that the defendant is presumed to be innocent until and unless his guilt is established by the evidence beyond every reasonable doubt. “2.

<p>1. Criminal Law — Motive—Perpetrator of Crime Unknown. — Motive, in the absence of an express declaration, may be shown by circumstances, and the fact that there had been a previous difficulty between the accused and the persons intended to be injured may be a circumstance which, in connection with other circumstances, would be sufficient to establish motive, but taken by itself is wholly inadequate to warrant a jury in inferring that the accused harbored such a grudge against the persons intended to be injured as would lead the accused to endeavor to take their lives. Where the perpetrator of a crime is unknown, the mere proof of motive on the part of one charged with its commission is not sufficient to warrant a conviction.</p> <p>2. Criminal Law — Evidence-—-Proof Required to Commit.- — -In order to justify a conviction of a crime, every fact necessary to a verdict of guilty must be proved beyond a reasonable doubt. The result of the evidence must be to exclude every reasonable hypothesis of innocence and be consistent only with the guilt of the accused.</p> <p>3. Criminal Law- — New Trial — Verdict Oontrm-y to Evidence — Arbitrary Interpretation of Facts. — A motion to set aside a verdict of guilty in a criminal case is heard as upon a demurrer to the evidence, and it is the duty of the court to consider whether or not the evidence is sufficient to sustain the-verdict. But this rule does not leave the jury at liberty to guess, and where a fact is equally susceptible to two interpretations, one of which is consistent with the innocence of the accused, they cannot arbitrarily adopt that interpretation which incriminates him. The evidence in the case at bar is wholly insufficient to sustain the verdict of the jury.</p> <p>4. Criminal Law — New Trial — Evidence Shows Murder — Verdict Guilty of Manslaughter — Discretion of Jury. — On an indictment for murder where the verdict is guilty of manslaughter-, the verdict will not be set aside at the instance of the accused because the evidence shows “murder by lying in wait,” which the statute declares to be murder of the first degree. The statutes of this State allow juries a certain degree of latitude and discretion in applying the law to the facts, and in fixing the degree of guilt of one convicted of crime.</p> <p>5. Instructions — Evidence to Support. — It is error to give an instruction when there is no evidence tending to support it, even though it correctly states the law.</p>

<p>Error to a judgment of the Circuit Court of Rockingham county affirming, on appeal, a judgment of a justice of the peace. Judgment for the Commonwealth. Defendant appeals.</p>