Volume 109 — Virginia Reports

<p>1. Constitutional Law—Presumption—Statutes Susceptible of' Two Constructions.—Every statute is presumed to be constitutional, and cannot be declared to be otherwise unless it is made clearly so to appear. If a statute is susceptible of two> constructions, one of which is plainly within, and the other plainly without, the legislative power, the courts must adopt the former.</p> <p>2. Constitutional Law—Interstate Commerce Act—Reduction of Rates by False Billing—Virginia Act Constitutional—Code 1904, Sec. 1294o.-—Clause ten of section 1294c of Code of 1904 regulating common carriers is modeled after the Interstate Commerce Act, and is practically identical with its provision on the same subject, except that the penalty for its violation is less drastic. Each forbids, under penalty, false billing, weighing, classifying, and the like, of goods offered for shipment, and thereby obtaining transportation at less than the regular rates. The Virginia statute; therefore, is not unconstitutional, because in conflict with the Federal act.</p> <p>3. Appeal and Error—Constitutional Question—Limit of Jurisdiction.— The constitutional question upon which the jurisdiction of this court solely depends not being sustained, this court is without jurisdiction to pass on the merits of the case.</p>

<p>Original application for a writ of prohibition.</p>

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

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

<p>1. Pleading—Failure to Take Rules—Correction by Court—Code, section 3¶93.-—On a motion-to remand a case to rules because tbe clerk had not taken the rules maturing the case for hearing, it is not error for the trial court to over-rule the motion, retain the case. and require the clerk to enter the proper rules, on the rule-book maturing the case for hearing; it appearing that the defendant was in no wise prejudiced by the failure of the clerk to take the rules at the proper time. Under the provisions of section 3293 of the Code, the court has control over all proceedings in the clerk’s office during the preceding vacation.</p> <p>2. Removal of Case to Federal Court—Time for Filing Petition.—A petition to remove a case from the State court to a Federal court must be filed on or before the rule-day on which a plea in abatement must be filed, else it will be too late; and under the provisions of section 3260 of the Code, all pleas in abatement must be filed before there is a conditional judgment at rules.</p> <p>3. Carriers—Damages to Stock—Evidence—Values Six Weeks After Injury.—In an action to recover damages of a carrier for an injury received by a horse while in transit, a witness who saw the horse immediately before shipment and also six weeks thereafter may give his opinion as to the value of the horse at the latter date. The lapse of time affects the weight of the testimony, not its admissibility.</p> <p>4. Evidence—Opinion of Witness—Qualification—Carriers—Damages to Stock.'—In an action against a carrier to recover damages for an injury inflicted on horses while in transit, a witness who has had large experience with horses, and who knew the particular horses for whose injury the action is brought, their temperament and characteristics, and who knew the kind of stalls in which they were shipped and is familiar with the effect of such confinement upon horses of that class, may give his opinion as to the effect of shipping horses a long distance in such stalls. This is not common Knowledge of which the jury would be possessed independent of such evidence.</p> <p>5. Carriers—Shipment of Live Stock—Damage in Transit—Evidence of "Value—Expenses of Shipper—If, in an action against a carrier to recover damages for injuries inflicted on horses in transit, the carrier proves the prices paid by the plaintiff for the horses, the plaintiff may, in rebuttal, show that, in addition to the price paid for the horses, he also incurred heavy expenses in training and developing the horses in order to obtain the price he expected to receive on the market for which they were purchased.</p> <p>6. Carriers—Injury to Goods in Transit—Place of Assessment—• Measure—'Connecting Carriers.—Generally, the place of destination is .to be taken as the basis for determining the damages to goods injured in transit; the measure being the difference between what the goods were worth at the place of destination, as injured, and what they would have been worth if delivered in good order. And this rule referring the measure of damages to the place of destination is applicable where goods are taken for transportation to a point beyond the initial carrier’s line.</p> <p>. -7. Carriers—Injury to Goods in Transit—Connecting Carriers—Liability of Initial Carrier—Burden of Proof—Code, Section —Where goods shipped on a through bill of lading to a point beyond the line of the initial carrier arrive at destination in an injured1 condition and the initial carrier is sued for the injury, the burden is upon him to show that the property was not injured on his line. Section 12941 of the Code (1904) declares that whenever property is received by a common carrier, loss or injury to it shall be prima facie evidence of the negligence of such carrier.</p>

<p>Error to a judgment of the Circuit Court of Scott county refusing to award a mandamus in favor of the plaintiff in error against the defendant in error.</p> <p>Error to a judgment of the Circuit Court of Scott county dismissing an appeal from the action of the board of supervisors of said county refusing to act upon a petition filed by the plaintiff in error.</p>

<p>1. Pleading—Declaration—Sufficiency.—A declaration is sufficient if it apprises the defendant of the ground of complaint, and states sufficient facts to enable the court to say upon demurrer that the plaintiff is entitled to recover if the facts stated are proved.</p> <p>2. Pleading—Declaration—Matters of Evidence.—In an action to recover injuries received while engaged in work involving many details, the details of the method employed by the defendant may properly be the subject of proof, although not specifically stated in the declaration. The object of the declaration is not to set out all the facts and circumstances which are to be disclosed in the evidence, but merely to giye to the defendant such reasonable information of the ground of complaint as will enable him fairly to present his grounds of defense.</p> <p>3. Evidence—Opinions.—In an action to recover damages for a personal injury it is not error to permit the plaintiff to testify whether he is capable of doing, since he received the injury, such work as he had done theretofore.</p> <p>4. Tbial—Withdrawal of Evidence—Statements of Counsel.—If, when a question is asked a witness, objection is made thereto, and1 the propounder withdraws it, saying: “We would'rather withdraw the question than to give him any show of an appeal,” the fact that such statement was made in the presence of the jury is not prejudicial to the objector.</p> <p>5. New Tbial—Improper Evidence—Harmless Error.—The verdict of a jury should not be set aside for the improper reception of evidence, where, as in this case, the court can see that such evidence could not have prejudiced or influenced the minds of the jury.</p> <p>6. Damages—Personal Injury—Elements of Damage.—In estimating the damages for a personal injury inflicted on the plaintiff by the negligence of defendant’s servants, it is proper to instruct the jury that they may take into consideration the plaintiff’s mental and physical suffering arising from his injuries, his loss pf wages from the time he was prevented by said injuries from following such calling or business as he could have followed but for said injuries, and that the amount of damages should be reasonable and just to both parties, and should compensate the plaintiff for the loss of money which he would probably earn had not the injuries been inflicted.</p> <p>7. Verdicts—Excessive Damages—Personal Injury.—A verdict for $2,500 for personal injuries cannot be set aside as excessive where Ft appears that the plaintiff fell more than thirty feet, that he was rendered unconscious, that his arm was mashed, his head hurt, his shoulder-blade dislocated, and his ankle badly sprained, and that he had not recovered from his injuries at the time of the trial.</p> <p>8. Master and Servant—Railroads—Structures—Constitutional Law.— An employee engaged in the restoration of a pier which is a part of the road-bed or track of a railroad—removing rotten timbers and substituting those that are sound—is within the terms of section 162 of the Constitution applicable to persons “engaged in the physical construction, repair or maintenance of the company’s roadway, track, or any of the structures connected therewith.”</p> <p>9. Constitutional Law—Equal Protection of the Laws—Protection of Railroad Employees.—Section 162 of the Constitution of this State, and the statute putting it into operation, for the better protection of employees of railroad companies, extend to all railroads alike, and do not violate the provision of the Fourteenth Amendment of 'the Constitution of the United States forbidding any State to deny to any person within its jurisdiction the equal protection of the laws. The State has the right to make reasonable classifications of legislation, and the hazardous character of the business of operating railroads renders it reasonable to enact laws for the better protection of their employees.</p> <p>]0. Master and Servant—Railroads—Negligence of. Servant.—A railroad company is under no greater obligation to care for the safety of one of its servants than he is to care for himself, and, generally, any negligence on the part of a servant amounting to the want of ordinary care, which is the proximate cause of his injury, will bar a-recovery against the company.</p> <p>31. Master and Servant—Safe Place—Repairing Unsafe Structures.— The rule that the master is to furnish the servant a reasonably safe place in which to work does not apply to a servant employed to repair an unsafe structure. The very object of the employment is to render secure that which has become unsafe.</p> <p>12. Demurrer to Evidence.—Room for Difference of Opinion.—On a demurrer to the evidence by the defendant, in an action to recover damages for a personal injury negligently inflicted on the plaintiff by the defendant, if the evidence is such that reasonable men might well differ as to whether the defendant was guilty of negligence, or the plaintiff, by his own negligence, so far contributed to his injury as to bar recovery, the demurrer should be overruled.</p>

<p>1. Evidence—Opinions.—A witness may state whether or not at a given time he saw anything indicating that a sewer was too small to carry off the water. This is not the expression of an opinion demanding expert knowledge.</p> <p>2. Pleading—Sufficiency of Declaration—Allegation and Proof.—A declaration which alleges that water and sewerage from a defective city sewer entered into and upon certain property, to-wit, a lot of land with a dwelling thereon owned by the plaintiff, and which concludes with an allegation: “the said plaintiff was otherwise greatly injured and damnified,” is broad enough to cover the damage done to all the buildings on the lot.</p> <p>S. Pleading—Declaration—Bill of Particulars—Oode, Section 3249.— The object of section 3249 of the Code is to simplify and shorten pleadings, by providing that, if the declaration or other pleading do not present distinctly the grounds or subject of action, the plaintiff, if required to do so, should file such a statement of particulars as will put the defendant in possession of the character thereof.</p> <p>4. Pleading—Damages—General Damages—Allegation in Declaration— Bill of Particulars.—Damages which are the necessary and probable result of an act of omission are termed general, and are legally imported and may be recovered, although not specifically claimed in the declaration. If particulars are desired, they may be demanded under section 3249 of the Code.</p> <p>5. Evidence—Experts—Knoivledge of Facts—Hypothetical Questions.— Before the opinion of an expert, based on facts to which he has not himself testified, can be admitted, he must fully understand the facts already proved, and his testimony must come in response to a hypothetical question embodying the evidence.</p> <p>6. Municipal Corporations —■ Overflowing Sewers—Evidence—Other Overflows—Complaints.—In an action to recover damages resulting from the overflow of a city sewer on a given date, other overflows in the city on that date may be shown in order to prove that the rain storm on that day was extraordinary, but it is not permissible to show whether there were many complaints of overflows. Facts, not complaints, are admissible. Those who complained should be brought to prove the facts upon which the complaints rested.</p> <p>7. Instructions—Applicability to a Single Count.-—If an instruction properly states the law applicable to the facts which the plaintiff has pleaded and undertaken to prove, it need not tell the jury to which count of the declaration it is applicable, in the absence of a request to that effect, or-some circumstances rendering it necessary.</p> <p>8. Instructions—Jury Fully Instructed—Defective Instruction.—Instructions are to be read as a whole, and if, when so read, it is seen that the law applicable to the ease was fully propounded and without prejudice to the defendant, a verdict in favor of the plaintiff will not be set aside because some of the instructions did not fully propound the law.</p> <p>9. Municipal Corporation—Obstructed Sewer—Extraordinary Storm.— If by the want of ordinary care a city sewer becomes- choked, and a plaintiff is damaged as a result thereof, the city is liable for such damages; so, likewise, if a culvert becomes choked because of the want of ordinary care on the part of the city, and the condition of the culvert is the real and proximate cause of the injury to the plaintiff’s property, the fact that there was an extraordinary flood at the time will not relieve the city from liability.</p> <p>10. Municpal Corporations—Inadequate Sewer-—Extraordinary Flood. —An extraordinary flood which will excuse a city for an overflow of its sewers must -be such as could not reasonably have been expected in that locality.</p> <p>11. Instructions—Invited Error.—A party cannot object to an addition to an instruction in the same language as another instruction offered by him. He cannot invite an error and then be heard to complain of it.</p> <p>12. Appeal and Error—Objection to Competency of Evidence.—A party cannot object to the competency of evidence for the first time in the appellate court.</p> <p>13. Verdicts—Proper Instructions—Sufficiency of Evidence.—The verdict of a jury will not be set aside as contrary to the law and the evidence where it appears that the case was fairly submitted to the jury under proper instructions, and there was ample evidence to support the verdict.</p>

<p>1. Taxation—Standing Trees—Assessment in 1905—Act of March 11, 190ft— Yansant v. 'Com’lfh.-—A valid, assessment for the taxation of trees, separate and apart from the land on which they stand, regularly made in 1905 by assessors appointed and acting under sections 441 and 472 of the Code, as amended by Acts 1889-90, p. 137, stands as the basis of taxation until the reassessment to be made in 1910, unless the legislature shall grant relief. The act of March 17, 1906, taking from commissioners of the revenue authority to assess standing timber trees separate and apart from the land did not affect the validity of a prior assessment regularly made by assessors. Yansant v. Commonwealth, 108 Va. 135 distinguished.</p> <p>2. Constitutional Law—Taxation—Standing Trees—Separate Assessment.—The fact that the present Constitution requires the General Assembly to provide for the special and separate assessment of all coal and other mineral lands, and is silent as to any special assessment of standing timber, does not deprive the legislature of authority to make special assessments of standing timber. The legislature may authorize the assessment of standing trees as a part of the value of the land, or it may prescribe the method of valuation of land and the timber standing thereon separately, where the timber is owned by one person and the land by another.</p>

<p>1. Elections—County Bonds—Roads—Disqualified Voters.—If residents and voters in a town exempt from road tax are allowed to vote indiscriminately with other residents of the magisterial district in which the town is located at an election held under the act of March 8, 1908. “to provide for the issuing of county bonds for permanent road improvement in the magisterial districts of the countie» of the State” (Acts 1906, p. 105), which contains a proviso, “that no voter shall be allowed to vote in said election who resides and is a voter in a town exempt from road-tax,” such election is void, as it is not held agreeably to the mandates of the statute.</p> <p>2. Elections—Mistake—County Bonds.—Where a bond issue is voted by all the voters in a magisterial district, which embraces an incorporated town, on the theory and in the belief that the town was to participate in the benefits and bear a corresponding portion of the burden of the bond issue, and this theory and belief turn out to be erroneous, the election should be set aside and the bond issue annulled.</p> <p>3. Constitutional Law—Taxation Without Right to Vote—Permanent Roads—County Bonds—Acts 1906, p. 105.—The act of March 8, 1906, “to provide for issuing county bonds for permanent road improvement in the magisterial districts of the counties of the ■State,” denies to voters residing within a town which is exempt from road-tax the right to vote at elections held under the act. The act further provides that “a tax shall be levied on all property liable to State tax in such magisterial district. Quaere: Are these features of the act repugnant to section 6 of the Constitution so far as it affects citizens of a town which lies within a magisterial district, and is exempt from road-tax?</p>

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

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

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

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

<p>1. Trusts and Trustees—Trustee’s Interest Adverse to Beneficiary.— A person who has an interest in a trust fund directly antagonistic to that of the beneficiary, or whose wife has such an interest, is not a proper person to act as trustee in the administration of such fund.</p> <p>2. Trusts and Trustees—Breach of Trust by Trustee—Removal Case at Bar.—The evidence in the case in judgment shows that the trustee in a deed of trust has been guilty of a breach of the trust reposed in him, has neglected his duty, and has totally disregarded the interest and welfare of the beneficiary under said deed, and hence was pi’operly removed as trustee.</p> <p>3. Wills—Construction—Case in Judgment■—Gift of Fee—Subsequent Diminution•—Repugnancy.—A testator, by one clause of his will, gave to his sister absolutely and in fee-simple certain property. In the next clause he says: Inasmuch as my said sister is mentally incapacitated from understanding or attending to business matters, I desire that the circuit court appoint a trustee to receive the said sum of money for the use and benefit of my said sister, the said money to be advanced to her as she may need it. Should any of said sum of money be in the hands of ■said trustee at the death of my said sister, my desire is that the same be equally divided between X and Y.</p> <p>Held: The sister takes the full equitable ownership in the personalty and an equitable fee in the real estate given in the first clause which is not cut down nor diminished by the second clause or the will. The limitation over is void for repugnancy.</p>

<p>Error to a judgment of the Circuit CQurt of "Wythe county on a petition for a mandamus. Petition dismissed. Petitioner assigns error.</p>

<p>1. Statute of Frauds—Sale of Land—Sufficiency of Memorandum— Case at Bar.—A letter addressed to a real estate broker who has a lot for sale, authorizing him to purchase the lot at a price stated, and which is exhibited by the broker to the owner of the lot, who accedes to the price mentioned, and writes and signs at the foot of the letter, “I accept the above,” is not a sufficient memorandum of a sale of real estate within the meaning of section 2840 of the Code. In order to give the letter any effect, the broker would have to act on the authority given him in the letter by making the purchase and executing, as agent, a memorandum in writing. Unless and until this was done there was no memorandum in writing signed by the person to be charged or his agent.</p> <p>2. Statute of Frauds—Contract to Sell Land—Several Writings—Extrinsic Evidence.—Different papers may be referred to in order to 'show a complete contract for the sale of land under the statute of frauds, but they must of themselves show their relation to the contract sued on, in order that they may be taken together to make the contract. Extrinsic evidence is not permissible to connect another paper with the contract sued on.</p>

<p>Error to a judgment of the Circuit Court of Carroll county, ■on a petition to condemn land. Judgment for the petitioner. .Defendants assign error.</p>

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

<p>1. Attachments—Claim for Damages for Breach of Contract—Defendant Removing Effects Out of State—Jurisdiction of Justice. —A justice of the peace has jurisdiction under the provisions of sections 2960 and 2961 of the Code to issue an attachment, on a claim for damages for breach of contract, against a defendant who intends to remove his effects out of the State. The liability for damages for a breach of contract is a debt contracted, not a tort. The statute uses the word “claim,” which is as broad a term as could well have been used, and where the complaint, the affidavit and the attachment conform to the statute it cannot be said that the attachment is invalid on its face, or that the justice was without jurisdiction.</p>

<p>1. Pleading—Declaration in Tort—Sufficiency—Negligence — Street Railways—Rights in Sighway.—In an action to recover damages resulting from a collision between a street car and a traveler driving a vehicle on a public highway, a count in a declaration which alleges excessive speed of the street ear as the proximate cause of the injury sufficiently charges the negligence of the owner of the street car; and so likewise does a count which alleges the failure of the motorman to keep a lookout as the proximate cause of the injury. The owner of a street car has no interest in the highway along which it runs, but simply a right to use it in common with the public. Street cars are governed for the most part by the same rules applicable to. other vehicles on the public highway, and their owners have only equal rights with the traveling public to its use.</p> <p>2. Street Railways—Excessive Speed—Lookout.—Unless • expressly permitted, the speed of a street car ought to be no greater than is reasonable and consistent with the customary use of the highway with safety; and it is the duty of a motorman operating such a car to keep a lookout for persons or vehicles on the highway.</p> <p>3. Pleading—Declaration Charging Negligence—Case or Trespass— Street Railways.—A count in a declaration which simply charges that a street railway company negligently ran its car into the plaintiff’s wagon, causing the injury complained of, without saying wherein the negligence consisted, is not a good count, either in case or trespass. In either case .the acts of negligence relied on as a basis of recovery must be stated. The declaration must state sufficient facts to enable the court to say, upon a demurrer, whether, if the facts stated be proved, the plaintiff is entitled to recover.</p> <p>4. Appeal and Error—Pleading—Demurrer to One Count of Declaration—Improperly Overruling—Effect on Verdict for Plaintiff.— If a demurrer to one count of a declaration containing several counts be improperly overruled, a verdict for the plaintiff must be set aside, unless the court can see that no prejudice did or could have resulted to the defendant from the error.</p> <p>5. Demurrer to Evidence—Joinder—Insertion of Evidence—Stenographer’s Report.—'A demurrer to evidence must contain a statement of the evidence, and until it is inserted the opposing party cannot be required to join in the demurrer. It need not be a stenographer’s report of the evidence. Indeed the practice of inserting the stenographer’s report of the evidence, with all of its irrelevant and immaterial matter, is not to be commended. All that is required of the demurrant is to have the evidence correctly stated in the demurrer. The old practice of inserting simply the substance of the oral testimony material to the issues raised is in most cases and with most witnesses the better one, and should be encouraged.</p> <p>6. Instructions—Assuming Pacts.—If an instruction assumes as a fact that which the uncontradicted evidence in the case clearly establishes, this is not prejudicial error.</p>

<p>1. Street Railways—Personal Injury—Contributory negligence— Case at Bar.—The evidence in the case at bar shows that the plaintiff, who was struck and injured by a street ear at night, was perfectly familiar with all of his surroundings, including the street railway and its method of operation; that he was in a place of safety, with nothing to disturb his judgment, and with no duty imposed upon him, but that he stooped down to strike a match to signal a rapidly approaching car, at a point Where it did not usually stop, with his head projecting over the rail, and, while in this position, was struck by the car. It thus appears that he, of his own volition, exposed himself to danger, and contributed to the injury which he received. The proximate cause of his injury was his own voluntary and negligent act, and hence there can be no recovery.</p>

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

<p>1. Cabbiebs—Interstate Shipments—Loss of Goods—Liability of Initial Carrier—'Warehousemen.—The' Act of Congress of June. 29. 1906, makes the initial carrier of goods, who issues a through bill of lading on interstate shipments, liable for losses occurring on connecting lines, any “ contract, receipt, rule or regulation ” to the contrary notwithstanding. If the constitutionality of this act be conceded, still the acts of the connecting carrier for which the initial carrier is made liable are acts as carrier, and not as warehouseman. If the goods have reached their destination, and the consignee, after ample notice, has failed and neglected to receive them for an unreasonable time, the liability of the connecting carrier ceases, and it becomes a mere warehouseman, .and for its acts or negligence as warehouseman the initial carrier is not liable.</p>

<p>Appeal from a decree of the Circuit Court of Culpeper county on a petition filed in the suit of SaundePs Administrators v. Saunders and others. Decree for defendants. Petitioners appeal.</p>

<p>Error to a judgment of the Circuit Court of New Kent county in an action of trespass on the case. Judgment for the defendant. Plaintiffs assign error.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county refusing to confirm a judicial sale. Purchaser appeals.</p>

<p>1. Equity Pleading — Demurrer Sustained—Amendment—Effect.— When a demurrer to a bill in equity is sustained, with leave to the complainant to amend, if he exercises the privilege, he cannot afterward be heard to object to the decree on the original bill.</p> <p>2. Railroads—Contract for Bight of Way—Recital—Contract to Construct.—A contract between a railroad company and a land owner for the purchase of a right of way, and which, by way of preamble and inducement, recites the purpose of the railroad company to build' a road between two designated points, or sections, is not a contract or covenant on the part of the railroad company to build a railroad, but, if the land is sufficiently designated and the price fixed, is a valid and enforceable contract for the sale of the land described. The statute requires an effort to make such k contract before the company can condemn, which would be a useless ceremony if the contract, when made, could not be enforced.</p> <p>3. Sales—.Essentials of Valid Contract.—A written contract of sale which contains within itself a description of the thing sold, by which if can be known or identified, of the price to be paid for it, of the parity who sells it and the party who buys it, contains all the requisities of a valid written contract of sale.</p> <p>4. Railroads—Contract for Bight of Way—Recitals—Contract to Construct Road—Specific Performance.—The recital, in a contract between a railroad company and a land owner for the purchase of a right of way, that the company proposes to build a railroad “from the West Virginia line, at or near New River, through Southern Virginia to tidewater,” constitutes only an inducement to the contract, the truth or falsity of which would exert proper influence with, the court in exercising its discretion in granting or refusing specific performance, hut does not impair the force or effect of the contract where the recital is made in good faith and is true.</p> <p>5. Contracts—Conditions Precedent—Performance.—A plaintiff will not he required to perform his contract if it is not a condition precedent before he can call on the defendant to perform his, which alone can secure the plaintiff in the rights he acquired under the contract.</p> <p>6. Specific Performance—Part Performance—Fraud.—A court of equity will decree the specific performance of a written contract for the sale of real estate at the instance of a purchaser who has partly performed the-contract under circumstances which affect the conscience of the vendor, and where a failure on his part to carry out the contract would operate a fraud on the purchaser’s rights.</p>

<p>1. Negligence—Partiés—Joint Tort Feasors.—When the negligence of two "or more persons concurs in producing a single indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action. In the case at bar, the declaration alleges that the negligence and lack of ordinary care of an independent contractor and of a.railroad company were the efficient and proximate cause of the death of the plaintiffs intestate, and this is sufficient. to warrant their joinder as defendants in an action for his death, when the details of the negligence are specified.</p> <p>2. Negligence—Sudden Peril.-—One who is placed in a position of sudden peril T5y the negligence of another, without contributory negligence on his part, is not liable for errors of judgment in endeavoring to escape the peril.</p> <p>3. Railroads—General Contractors—Blasting Near Trade—Duty to Employees of Railroad Company.—General contractors-engaged in blasting and excavating in close proximity to a railroad track in daily use owe to the employees of the railroad company the twofold duty of using ordinary care not to obstruct the track, and, in the event they do obstruct it, to use like care to warn such employees of the obstruction in time -to enable them, by the exercise of ordinary care, to protect themselves from danger, and the failure to discharge either duty constitutes actionable negligence.</p> <p>4. Rah,roads—Obstructions on Trade—Duty of Flagmen.—If an engineer of a locomotive engine, on approaching a flagman gave the usual and ordinary signal in answer to the flag, and the flagman understood the signal as such answer, he had the right to presume that the engineer saw the flag and answered the warning and to discontinue the flagging, and this would har a recovery for the engineer’s death occasioned hy not heeding the warning, although he did not see the flag or intend to answer it; hut if the same signal was also used in response to communications from the conductor, and the flagman knew, or, hy the exercise of ordinary care, ought to have known, that the signals given hy the engineer were not in response to his flag, but to communications from the conductor, he was not justified in discontinuing flagging, and recovery is not barred.</p> <p>5. Appeal and Error—Verdict Supported by Evidence.—The evidence in the case at bar, viewed as upon a demurrer to the evidence, fully sustains the verdict of the jury which was approved by the trial court, and the verdict cannot he disturbed on appeal.</p> <p>6. Railroads—Safe Track—Independent Contractors—Master and Servant.—A railroad company is liable for the death of one of its employees occasioned by the negligent obstruction of its roadbed by an independent contractor employed to double-track its road. The duty to keep its track in a reasonably safe condition is non-assignable, and it cannot escape liability for the neglect of duties imposed upon it by law, in the interest of the safety • of its servants and the public, hy delegation to an independent contractor, or otherwise.</p> <p>7. Appeal and Error—Joint Tort Feasors—Contribution—Effect of Dismissal as to One.—While joint tort feasors are jointly and severally liable, no right of contribution- exists among them, and neither has a remedy over against the .other. If they are proceeded against jointly, the plaintiff may dismiss or discontinue his action as to one defendant, without affecting his rights against the other. If judgment is against one, the other-cannot have a writ of error to review it.</p>

Appeal by the complainant and one of the defendants. The opinion sufficiently states the case on all points except as to the extra compensation claimed by the expert witness. On this point the expert testified that he- had been a “timber estimator for about 25 years” and that he had examined the wood and timber on the farm mentioned in the bill, and had made a detailed report of such examination, giving his valuation of said wood and timber.

<p>1. Appeal and Error—Appeal from County Court to Circuit Court— Review—Jurisdiction.— On a writ of error from this court to a circuit court, this court has jurisdiction to review the action of the circuit court and to determine whether or not it had jurisdiction of a writ of error from that court to the county court, and, if it had not, to reverse its judgment and enter such judgment as the circuit court ought to have entered. It is not assignable as error, therefore, in this court that the writ of error from the circuit court to the county court was not perfected within the time prescribed by law.</p> <p>2. Appeal and Error—Perfecting Appeal—Time Deducted—Objections for First Time in Appellate Court.-—-Whether a writ of error from a circuit court to a county court was perfected within the time prescribed by law depends, among other things, upon the time which had elapsed between the presentation of the petition for the writ and the delivery of the record and petition to the clerk of the appellate court, which time is to be deducted. If the case was argued in the circuit court, made a vacation case by consent, and submitted to the court for decision, without making the objection that the writ of error was not perfected within the time prescribed by law, and the record is silent as to the time to be deducted as above mentioned, the objection that the writ of error from the circuit court to the county court was not perfected in due time cannot be raised for the first time in this court.</p> <p>3. Appeal and Error—Instructions—Invited Error.—Although an instruction requested by a defendant was not given by the trial court, yet if it did instruct upon that point as requested by the ■ defendant, he cannot complain, on a writ of error, of the ruling of the trial court on that point. If error was committed, it was invited by him.</p> <p>4. Verdicts—Excessive—Case at Bar.—If. in an . action against a county to recover for the value of goods furnished to persons in quarantine, it appears that fifteen persons were in quarantine, for only nine of whom the county was responsible, that no account was kept of the goods furnished or used by them, and it is not shown what any of them used, a verdict for the plaintiff for more than nine-fifteenths of the amount claimed as furnished to all of them will be set aside as excessive.</p> <p>5. Nuisance—Destruction of Dangerous Property—Liability of Counties.—A county is not liable for property destroyed as a dangerous nuisance by the local board of health. Section 1713d of the Code (1904) authorizes the local board of health to see to the abatement of nuisances, but neither that section, nor any other statute, makes the county liable for the value of property destroyed as a nuisance, and in the absence of such a statute there can be no recovery therefor.</p> <p>6. Constitutional Law—Eminent Domain—Public Use—Police Power —Destruction of Property as a Dangerous Nuisance—Destroying property because it is a dangerous nuisance is not an appropriation to a public use, but is to prevent its use by the owner, and end its existence because it cannot be .used by the owner without injury 'to others. In abating such nuisances, the public does not exercise the power of eminent domain, but the police power.</p>

<p>1. Master and Servant—Notice of Obvious Dangers—Risk of Employment.—The law does not make it the duty of a master to warn a servant of an open and obvious danger of which he knows, or could have known by the exercise of ordinary care. Such dangers are risks incident to the employment.</p> <p>2. Instructions—Conflicting.—A material error in an instruction complete in itself is not cured by a correct statement of the law in another instruction. The two being in conflict, the verdict of the jury will be set aside, as it cannot be told by which instruction the jury was controlled.</p> <p>3. Instructions—Partial View of the Evidence.—An instruction which directs a finding for the plaintiff upon a hypothetical case stated therein is erroneous if it leaves out of view all of the evidence tending to prove a state of facts upon which there is no liability upon the defendant.</p> <p>4. Evidence—Prior Inconsistent Statement of Witness—When Admissible.—Prior inconsistent statements of a witness may be given in evidence to impeach his credibility, but for no other purpose.</p> <p>5. Instructions—Insufficient Evidence to Support.—Since the abolition of the scintilla doctrine, an instruction ought not to be given when the evidence upon which it is based is clearly insufficient to sustain a verdict.</p> <p>6. Instructions—Jury Fully Instructed.—It is not error to refuse further instructions when the instructions already given fully and fairly submit the case to the jury on the phases sought to be presented.</p>

<p>1. Master and Servant—Who is Not a Servant—Employment by a ■ Servant—Passenger Elevators.—The owner of a passenger elevator is not responsible for an injury inflicted on a passenger by the negligence of an operator not employed, directly or indirectly, by the owner, hut who was merely requested to operate the elevator for that trip by an “office boy” of the owner who had no power or authority, express or implied, to employ a servant -for the owner. A master is liable for an injury inflicted on a third person by the acts or omissions of his servants while acting within the scope of their employment and in furtherance of it, but he is not liable as master where he does not occupy the relation of employer to the person whose negligence occasioned the injury.</p> <p>2. Master and Servant—Employment by Servant—Assistants—Authority—Negligence.—A master is liable for the negligence of a person employed by his servant in the prosecution of the master’s business, or of a person who assists his servant at his request, provided the servant had express or implied authority to procure assistance, and the negligent act complained of was done within the scope of thi¿ employment.</p> <p>3. Carriers—Injury to Passengers—Proximate Cause—Leaving Elevar tor Door Open—Operation by Stranger.—Leaving an elevator door open while the “elevator boy” is temporarily absent in another part of the building is not the proximate cause of an injury inflicted on a passenger by the negligence of a stranger who undertakes to operate the elevator, nor was such an injury reasonably to have been anticipated by the owners of the elevator.</p>

<p>1. Tax Deeds—Purchaser from Slate—Prepayment of City and State Taices-j—Where land in the city of Richmond has been sold for city taxes and bid in by the city, but it has not perfected its title thereto, and the same land is subsequently sold for State taxes and knocked out to the auditor of public accounts, the charter of the city and the provision >of chapter 28 of the Code are to he considered together and made to harmonize as far as possible in determining the rights of an applicant to purchase ■from the State, and the liability of the land for unpaid city taxes. So considering them, it is clear that the applicant has no right to purchase without, paying tne taxes due on the land to the city as well as those due the State.</p> <p>2. TAX Deed—Premature Purchase—Invalidity of Peed.—-A deed from a clerk conveying land purchased by the State for delinquent taxes to an applicant under section 666 of the Code, as amended, which appears to have been made within less than four months [after service of notice of the application to purchase is invalid on its face.</p> <p>3. Tax Deed—Statute of Limitations—Compliance with Sections 661 and 666 of Code.—In order to claim the benefit of the limitation of time within which a tax deed may be assailed and other provisions of section 661 of the Code, relating to the purchase of lands delinquent for taxes, a purchaser under section 666 of the Code must comply with all the provisions of the latter section.</p> <p>4. Tax Deed—Failure to Comply with Law—Collateral Attack.—A tax deed which shows on its face that the law which authorized its execution has not been complied with is invalid, unless there has been such a long acquiescence and possession under it as to justify a presumption in its favor, and may be collaterally assailed.</p>

<p>1. Reformation of Instruments—Mutual Mistake—Proof Required.— ’ The burden of proof is on the complainant, and a very high degree of proof is required, in a suit to reform a written contract. A mere preponderance of the evidence is not sufficient, but the existence of the mutual mistake must be conclusively established.</p> <p>2. Equity—Supplemental Bills—Office of.—One of the chief offices of a supplemental bill is to bring into the case new events referring to and supporting, or affecting, rights and interests already mentioned, which' have arisen subsequently to the filing of the original bill.</p> <p>3. Vendor and Purchaser—Damages—Defective Title to Gas Well— Lease—Well Ceasing to Flow Pending Suit for Purchase Price— Supplemental Bid.—In a suit to enforce the collection of the balance of purchase money for real property, a part of which consisted of a gas well', where it appears that the property was sold in Tee, free from encumbrances, at a gross price, and that the complainant did not have title to the gas well, and in consequence thereof the defendant was compelled to lease the gas well, the fact that the well ceased to flow and was abandoned pending the suit may be set up by a supplemental bill, and the complainant is entitled to recover the balance of purchase money less such reasonable sums as were paid for the use of the gas well while it flowed. In the absence of fraud, where the outstanding title is acquired, or an incumbrance is removed, By purchase by a vendee in possession, such vendee is entitled to the amount reasonably, and fairly paid, by him on that .account, and to no more.</p>

<p>Appeal from a decree of the Court of Law and Chancery of the city of Norfolk. Decree for defendant. Complainant appeals.</p>

<p>1. Demubber to Evidence—Concessions of Demurrant.—On a demurrer to the evidence, the party demurring is considered as admitting the truth of his adversary’s evidence, and all just inferences that can be properly drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence which do not necessarily result therefrom. Moreover, if the evidence is such that the jury might have found a verdict for the demurree, the court must grant judgment in his favor.</p> <p>2. Contbacts—Construction.—Under a contract providing that a eon- . tractor - shall furnish all materials of every description, and shall shore all trenches with sheet piles and braces to prevent any settlement, and that when necessary sheet piles and braces shall be left in the trenches to prevent settlement, lumber and timber left in a sewer at the request of the city engineer constitute materials which, according to the contract, the contractor had tp furnish and leave in the trenches.</p> <p>3. Contbacts—Construction—Ambiguity—Usage of Trade — Estimating Brick Wall.—Where a contract for a brick sewer provides that the “price for bricks furnished and laid in the sewer shall be twenty dollars and fifty cents per M,” in the absence of any local usage or custom which should control in ascertaining the number of bricks laid in the sewer, or of any special agreement, the parties are deemed to have contracted with reference to the general usage of trade, or universal custom relating to such matters: and, according to such trade usage or custom, the number of bricks is to be ascertained by measurement and allowing so many bricks to the cubic foot, and not by actual count. This trade usage or custom is read into the contract by operation of law, and becomes as much a part of the contract as if incorporated into it.</p> <p>4. Contracts—Awards—Engineer's Estimates—Usage of Trade.—Although a contract with a city provides that the city engineer shall decide all questions, difficulties and disputes growing out of the contract, and that his estimates and decisions shall he final and conclusive upon the parties thereto, he cannot violate the provisions of the contract nor ignore the meaning attached hy trade usage to words or expressions used in the contract, and which are made a part thereof hy operation of law.</p> <p>5. Evidence—Usage of Trade to Fix Meaning of Contract.—Parol evidence of a general usage of trade or universal custom may be received to fix and determine the meaning of words of a contract affected toy such trade or usage which would toe otherwise ambiguous.</p> <p>6. Appeal and Error—Errors of Calculation—Correction.—A manifest or admitted error in the amount of a judgment at law will toe corrected toy this court, without remanding the cause for such correction.</p>

Judgment for the plaintiff. Defendant assigns error. This action was brought to recover damages to two car loads of cattle, some of which were killed and others injured, while in transit over the defendant’s road. The cattle were shipped from Columbia, Virginia, to Grove, Virginia; both points being on defendant’s railroad. There was no connecting carrier.

<p>1. Railroads—Personal Injury—Grade Grossing—Failure to Give Signals—Other Warnings.—The personal representative of one killed at a grade crossing of a railroad is not entitled to recover of the railroad company although the statutory crossing signal was not given, if other warnings were given which in fact notified the deceased of the approach of the train, or would have notified him. if he had been exercising ordinary care, so that he could have avoided the finjury.</p> <p>2. Railroads—Personal Injury—Grade Grossing—Duty of Tiaveler— Failure to Give Signals—Contributory Negligence—Oase at Bar.— It is the duty of one about to cross a railroad at grade to make vigilant use of his eyes and ears to ascertain whether a train is approaching from either direction, and to make such use at a time when and place where looking and listening will be effective, and a failure to do so is, as a rule, such contributory-negligence on his part will bar recovery. The failure of the railroad company to give the statutory signal for the crossing is negligence, but does not excuse the performance of the traveler’s reciprocal duties, and does not entitle the traveler to recover unless it was the sole proximate cause of the injury complained of. In the case at bar, the proximate cause of the death of the plaintiff’s intestate was a thoughtless disregard of the obvious duty to look and listen before going upon defendant’s track, and there can be no recovery.</p> <p>3. Negligence—Self-Imposed Emergency.—The rule that a person confronted by a sudden emergency or peril is not required to exercise the degree of care required of prudent persons under ordinary circumstances is not applicable where the emergency is self-imposed.</p> <p>4. Railroads—Persons Approaching Trade—Presumption—Last Clear Chance.—Trainmen who see persons approaching a crossing usually have the right to presume that they will not go on the track in front of a rapidly approaching train, and if they do so when it is too late to avoid injuring them, the doctrine of last clear chance has no application.</p>

McCue and others, in which the Commonwealth of Virginia filed her petition. Decree for the defendants in the petition. The Commonwealth appeals.

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

<p>1. Verdicts—Conflicting Evidence.—TEe evidence in tEe case at Ear is seriously in conflict as to whether an excavation in one of the streets of the city of Richmond into which the plaintiff fell and was injured, was properly lighted and barricaded at the time of the injury complained of, so a,s to warn the plaintiff of danger. The determination of this question was peculiarly the province of the jury, and their verdict should not be set aside.</p> <p>2. Instructions—Evidence to Support—Necessary Inferences—Case at Bar.—Where, in' an action against a city to recover damages resulting from falling into a hole in the street, the evidence for the plaintiff tended to show that the hole into which he fell was left unguarded and unlighted, while the evidence for the defendant tended to show that it had been left guarded and lighted only three-quarters of an hour before the accident, it was for the jury to reconcile the evidence, if possible, and an instruction to the effect that the city was not liable if the lights were extinguished and removed without its knowledge or consent between the time they were placed and the time of the accident cannot be said to be without evidence to support it. The jury were forced to this inference, although there was no direct testimony to that effect, or else believed that a number of witnesses were guilty of deliberate perjury.</p> <p>3. New Trial—After Discovered Evidence—Cumulative and Corroborative.—The verdict of the jury will not be set aside on the ground of after discovered evidence, where such evidence is merely cumulative and corroborative of what was proved on the trial, or is immaterial.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk in an action of debt. Judgment for the plaintiff. Defendants assign error.</p>

<p>1. Pleading—Declaration—Several Counts—Demurrer to Declaration and to Each Count—Defective Counts Ignored—Appeal and Error.—Generally if a declaration in tort contains more than one count, some of which are good and others bad, and there is a demurrer to the whole declaration and each count thereof, it should be sustained as to the bad counts, else a general verdict and judgment for the plaintiff will, as a rule, be set aside, as the verdict may have been founded on the faulty count. But where the court is satisfied that the defendant has not been prejudiced by the faulty count, the verdict ought not, for that cause only, to be set aside. So where it is manifest that the trial was had on a particular count and that is good, the appellate court will not concern itself with the insufficiency of other counts.</p> <p>2. Pleading—Declaration in Tort—Sufficiency.—It has never been the purpose of this court to introduce innovations in pleading in negligence cases, or to subject the plaintiff to unreasonable requirements in setting out the cause of his action. All that is necessary is for the pleader to set forth the facts which constitute the cause of action in such manner that they may be understood by the party who is to answer them, the jury who are to ascertain the truth of the allegations, and by the court which is to give judgment.</p> <p>3. Pleading—Declaration, in Tort—Sufficiency—Case at Bar.—A count in fort which sets forth with a reasonable certainty the facts that show that the casualty complained of was proximately due to the defendant’s negligence in ordering an Inexperienced servant, of whose lack of skill it had knowledge, without instruction and assistance, to operate a dangerous machine, which duty was ordinarily performed by a sawyer and helper, is sufficient. It connects the defendant’s negligence with the injury complained of, and sufficiently warns the defendant of the case he is to meet.</p> <p>4. Instructions—Interpretation by Counsel—Request for Construction by Court—Writing Required.—-If, pending argument of a case before the jury, counsel object to the interpretation placed by opposing counsel on an instruction which' has been given, ande requests an instruction from the court construing the language used, it is not unreasonable for the court to require the counsel making the objection to reduce to writing the qualifying or explaining instruction desired, and such is the usual and better practice.</p> <p>5. New Tkial—Allegation and Proof—Case at Bar.—The evidence in the case at bar, viewed from the standpoint of a demurrer to the evidence, establishes the allegation of the declaration that the proximate cause of the plaintiff’s injury was the failure of the defendant to provide a sufficient number of competent servants to do the work required.</p> <p>6. New Tbiae—After Discovered Evidence—Requisites.—In order to warrant a new trial for after discovered evidence, the evidence must have been discovered since the trial. It must be evidence that could not ¡have been discovered before the trial by the exercise of reasonable "diligence. It must be material in its object and such as ought, on another trial, to produce an opposite result on the merits. It must not be merely cumulative, corroborative or collateral.</p>

<p>1. Pleading—Declaration—Negligence—How Charged.—It is not sufficient for a declaration to allege negligence in a general way (for to do so is only to state the pleader’s conclusions of law fi’om undisclosed facts), But it must aver the act of negligence relied on with reasonable certainty, and show that such act constitutes the efficient and proximate cause of the injury. Otherwise, no traversable issue is tendered, and the court cannot determine, as a matter of law, whether the declaration states a ease of actionable negligence, and the defendant is not informed of the case he is called upon to defend. All that is required is that the declaration shall contain a concise statement of the material facts on which a recovery is demanded, and not bare conclusions from undisclosed facts. The evidence, of course, need not be pleaded, but the facts relied on as furnishing a cause of action should be sufficiently set forth to apprise the defendant of the ground of complaint.</p>

<p>Appeal from a decree of the Court of Law and Chancery of the city of Norfolk. Decree for the defendants. Complainants • appeal.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk on an appeal from the police justice. Judgment for the defendant. Plaintiff assigns error.</p>

Judgment for the defendant. Plaintiff assigns error. The facts sufficiently appear from the opinions of the court and of Keith, P.

<p>Appeal from a decree of tlie Law aud Equity Court of the city of Richmond. Decree for defendant. Complainant appeals.</p>

<p>1. Appeal and Error—Objections to Evidence—Changing Objection— Harmless Error.—A party will not be permitted to make one objection to evidence in the trial court and another in the appellate court, nor will a ease be reversed for the admission of evidence that could not have prejudiced the objector.</p> <p>2. Instructions—Safe Methods—Selections of Safer—Case at Bar.— The instructions in the case at bar do not impose upon the defendant the duty of using the safer of two reasonably safe wavs of managing an appliance, but of using a safe instead of an unsafe method under existing conditions.</p> <p>3. Instructions—Not Prejudicial—Case at Bar.—Where the only difference between an instruction given and an amendment proposed by the defendant consists in the fact that, in the instruction given the duty was imposed upon the defendant of raising an awning if the wind was “dangerously high,” and in the amendment the same duty was imposed if the wind was “high,” the instruction given was not prejudicial to the defendant, and he cannot complain of it.</p> <p>4. Safe Premises—Pali of Awning Over City Street—Liability of Owner—Independent Contractor.—An owner of property who erects an awning over a city sidewalk is bound to exercise ordinary care to see that it is so secured and managed as to be able to withstand not only the ordinary vicissitudes of the weather, but the force of winds which experience has shown to be liable to occur in that locality. The fact that it was erected by an independent contractor is immaterial if it had been delivered to, and accepted by the owner.</p> <p>5. Independent Contractors—Liability to Third Persons.—Except ' - 'under peculiar circumstances, an independent contractor is not liable for an injury to the person or property of one not a party to the contract, occurring after the independent contractor has completed the work and turned it over to the owner or employer, and the same has been accepted by him, though the injury resulted from the contractor’s failure to properly perform his contract</p> <p>6. Negligence—Presumption—Fall of Awning in Oity Street.—Negligence is never presumed from the mere fact of injury, but an injury may occur under such circumstances as will warrant an inference or presumption of negligence. If a pedestrian travel-ling along a city sidewalk is injured by the fall of an awning attached to a building (and no issue is raised as to the awning being a nuisance) there is a presumption of negligence on the part of the owner or occupier of the house, and the burden is upon him to disprove the existence of negligence by evidence that, as a matter of fact, all proper and reasonable care had been taken.</p> <p>7. Appeal and Error—Excessive Verdict.—A verdict will not be set aside as excessive in an action to recover damages for personal injuries when it is not so large as to indicate that the jury was actuated by partiality or prejudice.</p>

<p>1. Sales—Reservation of Title—Recordation—Code, Section 2462.—A reservation of title to engines, boilers and machinery which a vendor, by a written contact, sells to a vendee, and installs for use in a plant for, the conduct of a laundry business is valid as against subsequent purchasers of the plant from the vendee, or mortgagees thereof, where it appears that the contract reserving the title was duly docketed in accordance with the provisions of section 2462 of the Code prior to the sale or mortgage. The docketing or recordation of such a contract constitutes constructive notice thereof to third persons. Such was the object of the statute.</p> <p>2. Fixtures—Purchasers—Notice.—A vendee or mortgagee of realty, with notice of the rights of third parties in fixtures, takes subject such rights.</p> <p>3. Sales—Reservation of Title—Code, Section 2462—“Goods and Chattels’’ “Movable’’ Property.-—The term “goods and chattels” used in section 2462 of the Code, relating to the reservation of title to personal property, is restricted to “visible, tangible and movable” personal property as distinguished from choses in action, but is not restricted to movable personal property of the same class to which a slave belonged. “Movable” means “that which may be lifted, carried, drawn, turned or conveyed, or in any way made to change its place or position.”</p> <p>4. Fixtures—Reservation of Title—Engines and Boilers.—Engines, boilers and machinery for a laundry are movable personal property, and, if the terms of the statute (Code, section 2462) are complied with, the title thereto may be retained by the vendor, although installed as part of the plant.</p> <p>5. Sale oe Personal Property—Conditional Sale—Insufficient Description of Property.—A contract for the sale of specific personal property, reserving title thereto, which further provides for furnishing such “additional shafting, piping, connections, etc., as may be required to complete the said plant as to the motive power of the same,” is too vague and indefinite in its description of the additional shafting, etc., to be supplied, to enable a stranger to indentify the property with any degree of accuracy, and hence the title sought to be reserved cannot be protected as against a subsequent purchaser for value and without other notice thereof.</p>

<p>1. Appeal and Error—Verdict Sustained by Evidence—Life Insur~ anee—False Representations—Suicide.-—Whether, in the case at bar, the representations made by the assured in his applications for the policy in suit were material, and false, and whether the assured came to his death by suicide were questions of fact for the determination of the jury, who were properly instructed upon the law of the case. The burden of proof on these questions was on the defendant company and as the evidence fully sustains the verdict of the jury in favor of the plaintiff on both questions it cannot he set aside on a writ of error.</p> <p>2. Line Insurance—Evidence Required to Prove Suicide.—The defense of suicide to an action on a life insurance policy, in order to avail, must be established by evidence which excludes every hypothesis of accidental death. The burden of proof on that issue is on the defendant company.</p>

<p>1. Railroads—Grade Grossing—Oare Required.—A railroad company is bound to exercise care to avoid a collision when its road crosses a public highway at grade, and the greater the danger the greater is the vigilance required.</p> <p>2. Railroads—Negligence—Running Engines Backwards—Signals— City Ordinance—'When Needless to Allege or Prove.—Whether or not it is negligence to operate a locomotive engine backwards with no one on the tender to signal its approach is generally a question of fact for the jury, though under some circumstances it is negligence as a matter of law. To operate an engine backwards, over a populous thoroughfare of a city, on a dark night, when it is “drizzly or misty,” with no light burning, no bell ringing, preceded by no flagman, and without any watchman or warning of any kind to persons passing along said street is negligence, and if the allegations of the declaration are sufficient to warrant the introduction of such evidence, the same may be shown without reference to the existence, pleading or proof of a city ordinance requiring such precautions to be taken.</p> <p>3. Railroads—Negligence—Street Grossing—What Allegations and Proof of Negligence Sufficient.—A declartion against a railroad company ‘for running over and killing a person at a street crossing in a city is sufficient when, after particularly describing the locus in quo, it alleges it to be the duty of the company to exercise due and ordinary care to keep a watch and lookout to avoid injuring persons passing over said crossing, and to give warning of the approach of its trains by ringing a bell, or by taking other means of notification so as to avoid such inquiry, and the breach of the duty so alleged. The particular mode or precaution, .to the exclusion of others, need not be alleged. Under such allegation and breach as is above stated it is competent for the plaintiff to prove that there was no flagman, no watchman, no person riding on the front of the engine, that the engineer could not see from his cab, and that no light was burning and no bell ringing.</p> <p>4. Negligence—Contributory Negligence—Case at Bar.—Without reference to the rule which obtains on a demurrer to .the evidence, a jury would have been well warranted in finding from the whole evidence in the case at bar that the plaintiff’s intestate was not guilty of contributory negligence barring a recovery.</p> <p>5. Demtjbeee to Evidence—Detached Statement of "Witness—Testimony as a whole.—On a demurrer to the evidence, it is not permissible to take detached statements of a witness for the demurrant, and say that that particular statement is not contradicted By evidence for the demurree, but the statement of the witness must be taken as a whole, and if, when so considered, it cannot be reconciled with the demurree’s evidence it must be rejected.</p>

Judgment for the plaintiff for $10,000. Defendant assigns error. The evidence is sufficiently set forth in the opinion of the court in Norfolk & W. R. Co. v. Holmes, ante, p. 410.

<p>1. Appeal and Error—Admission of fact—Exclusion of Evidence Tending to Prove Same Pact.—Where the plaintiff, in an action against a railroad company for an assault and battery upon him by a brakeman, testifies that he was very drunk when he boarded the train, the excluson of testimony as to his drunken and disorderly condition before boarding the train is not reversible error.</p> <p>2. Carriers—Railroads—Assa-ult on Passenger by Trainmen—Abusive Language—Respective Rights of Carrier and Passenger.—It is the duty of those in charge of a passenger train to preserve order and to remove disorderly persons to such safe and convenient place as will prevent annoyance to passengers and trainmen, -and it may be to stop the train and eject disorderly persons ■therefrom, employing only such force as is necessary to accomplish these ends, and overcome any resistance offered; but they have no right to commit any unnecessary violence, and if they do their principal must answer in damages. Insulting words and epithets cannot justify an assault upon a passenger by those in charge of the train, though they may be given in evidence in mitigation of damages. Those in charge of a train have the right to protect themselves against an injury, actual or threatened, and if in so doing, an injury is inflicted upon the passenger under such circumstances that he could not recover damages against the company’s servant, neither can he recover against the company. But the evidence must at least show a present injury reasonably to be apprehended, -in order that the company may escape liability for an asault and battery upon a passenger by sone of those in charge of the train, -however abusive may have been the language or reprehensible the conduct of the passenger.</p>

<p>1. Appeal and Erbok—Executors and Administrators—Ex Parte Settlements of Fiduciary Accounts—Ruling on Exceptions.—No ap- • peal lies to this court from an order of an inferior court merely overruling exceptions and confirming a commissioner’s report of an ex parte settlement of an executor’s account. The remedy is by a bill to surcharge and falsify the ex parte settlement. Until surcharged and falsified it is to be taken as prima facie correct, and an order of this court' affirming the order of the inferior court would not make it any more final than it was before the appeal was taken.</p>

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

<p>1. Covenants—Restrictive Provisions—Vesting in “Colored” Persons— Corporations.—A restriction in the conveyance of land to the effect that “the title of this land is never to vest in a person or persons of African decent,” or “colored persons” is not violated by a subsequent conveyance of the land to a corporation, organized “to establish and develop a pleasure park for the amusement of colored people.” The contemplated use is not prohibited by the restriction nor is the title conveyed to a forbidden person. A corporation is an artificial being totally distinct from its stockholders and directors.</p> <p>2. Deeds—Conditions Subsequent — Construction.— Conditions subsequent' are not favored in law, because they tend to destroy estates, and a party who insists upon a forfeiture for a breach, of such a condition must bring himself clearly within the condition.</p>

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

<p>1. Master and -Servant—Street Railways—Personal Injury to Servant—Notice of Danger—Knowledge—Question for Jury.—The fact that a conductor of a street car. who was killed by being struck by a freight car standing on a siding of the company in close proximity to the main line, had passed this car before the accident, did not charge him with knowledge of its dangerous • proximity to the main line. Mere knowledge that a freight was sometimes on the track at that point did not charge him with knowledge of its dangerous proximity. Whether he knew of such proximity was a question of fact for the jury. He could not be held to know it as a matter of law, and an instruction so declaring is erroneous. In order to charge a servant with notice of a defect and danger, it must be unquestionably clear and plain, so that if He did not see it, he must necessarily have been an fault.</p> <p>2. Master and Servant—Street Railways—Injury of Conductor—Contributory Negligence—Ordinary Care—Measure of Duty.—• Negligence consists of the failure, under the circumstances, to exercise ordinary care, and the only difference between negligence of a plaintiff and of a defendant is that the former is called contributory negligence. To declare that if a street car conductor could have performed his duties and still have avoided the injury of which he complains he cannot recover is to require of him a higher degree of care than the law imposes. Perfection of attention to surroundings, while the mind is concentrated on a particular duty, is not required. The law only requires the exercise of reasonable or ordinary care—such care as reasonably prudent men would exercise for their safety under like circumstances.</p>

Error tq a judgment- of the Law and Equity Court of the city of Kichmond in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.

<p>Error to a judgment of the Circuit Court of ÍTorfoik county approving the verdict of the jury on an issue devisavii vel non. Judgment for the defendants in the issue. Plaintiffs assign error.</p>

<p>Error to a judgment of the Corporation Court of the city of Fredericksburg in a contested election case. To a judgment setting aside the election, the contestees assign error.</p>

Eiror to a judgment of the Corporation Court of the city of Manchester upon a petition filed ashing liberty “to file an information in the nature of a writ of quo warrantoJudgment for the defendant. Petitioners assign error. The original act chartered the Free Bridge Company, defined its power and duties, and authorized the cities of Richmond and Manchester or either of them to guaranty its bonds.

<p>1. Elections—Payment of Poll Tax—Treasurer’s List.—The decision of this court in Tazewell v. Berman, 108 Va. 416, to the effect that a treasurer of a city or county should embrace in the list which he is required to file with the clerk the names of only such persons as have personally paid their poll taxes within the time prescribed by law is correct, and is adhered to.</p> <p>2. Elections—Poll Tax—“Personal” Payment—Constitutional Law.— The words “personally paid” as used in section 21 of article II of the Constitution of this State mean that the tax therein referred to must be paid by the voter out of his own estate or means and not by another out of that other’s estate or means. The payment need not be by the voter in proper person. His bodily or physical presence is not necessary. It is enough if the payment be out of the tax payer’s estate or means; and the actual payment may be by the tax-payer himself or by his check, or through the hands of his clerk or authorized agent, or perhaps in other ways.</p> <p>3. Elections—Poll Tox—“Personal” Payment—Treasurer’s List.—If a record in the treasurer’s office sufficient to enable a newly elected treasurer to certify who has personally paid their poll taxes for the previous years be not kept, the legislature has the power to require such a record to be kept, but the fact that this has not been required heretofore has no bearing upon the determination of the question as to what is meant by the words “personally paid” or “personally pay” used in the Constitution.</p>

and Chancery of the city of Norfolk in an action of assumpsit. Judgment for the plaintiff, a part of which was remitted under protest. Both plaintiff and defendant assign error.

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

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

<p>1. Banks and Banking—Money Paid by Mistake.—Generally, money paid under a mistake of fact may be recovered back, but the payment of a check or note by a bank upon which it is drawn, or at which it is made payable, under the mistaken belief that the drawer of the check or the maker of the note has sufficient funds to his credit to pay the check or note seems to be an exception to the general rule. Such payments cannot be recovered back. The payment is a finality, and the fact that the drawer or maker had no funds on deposit does not alter the situation.</p> <p>2. Banks and Bankees—Coupons Payable at Bank—Payment by Mistake.—If negotiable coupons payable to bearer and possessing all the qualities and incidents of commercial paper are paid by mistake by the bank at which they are payable, there can be no recovery by the bank against the former holder of such coupons as for money paid by mistake.</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 a judgment of the Hustings Court of the city of Portsmouth in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Oysters—Surveys of Public Grounds—Conclusive Effect—Power of Legislature.—The natural oyster beds, rocks and shoals in the bays and rivers of this State are held in trust for the benefit of the people of this State by virtue of constitutional provisions and numerous acts of assembly, and the General" Assembly is vested, by the Constitution, with authority, from time to time, to define and determine such natural beds, rocks or shoals by surveys or otherwise, and has the power to declare that such surveys, made under its direction, shall be conclusive on all the courts of the Commonwealth.</p> <p>2. Oysters—Baylor Survey—Re-Established Lines.—The Baylor survey and report of oyster beds, etc., and the Edmonds-Baker survey re-establishing a line or lines of the Baylor survey are each, in pursuance of legislative enactments, conclusive evidence in all the courts of the Commonwealth that the grounds within the limits of such survey and report are natural oyster beds, rocks or shoals, and that there are no natural oyster beds, rocks and shoals lying within the waters of the counties wherein such report and survey are filed other than those embraced in the survey.</p> <p>8. OYSTERS-’-i’MbHe Grounds—Leases—Ultra Vires Acts of Inspector.— The public oyster grounds of this State are held in trust for the use and benefit of all the citizens of the State, and no person can, by lease or otherwise, acquire the right to use them for any purpose. The statute by which the State guarantees to the lessee of oyster grounds who pays his rent annually in advance the right to continue to use and occupy the same for twenty years, only applies where the lease is made of oyster planting grounds authorized by statute to be leased to planters, and not where the acts of. the oyster inspector in making a lease were ultra vires.</p> <p>4. Constitutional Law—Sue Process.—“Due process of law” requires that a person shall have reasonable notice, and an opportunity to be heard before an impartial tribunal before any binding decree or order can be made affecting his right to liberty or property. In the case in judgment these requirements have been fully complied with.</p> <p>5. Oysters—Inspectors—Acts Ultra Vires.—An oyster inspector is but an agent of the State to perform the duties delegated to him by statute, and all persons dealing with him are presumed to know the law, and must take notice of the extent of his authority. The State is not bound by hiis acts ultra vires.</p>

<p>1. Contbacts—Engineer’s Estimates—Gross Errors—Fraud.—Notwithstanding the fact that a contract provides that the decision of the chief engineer of one of the parties shall be final as between the parties as to all questions arising under the contract, the other party will not be precluded from recovering the correct amount due him for work done under the contract where the engineer’s estimates or classifications are so grossly erroneous as to amount to a fraud upon the rights of the injured party. It is not necessary to allege or prove bad faith, or an intention to commit fraud on the part of the engineer. It is enough that his estimates or classifications are so grossly erroneous as to amount to fraud. This doctrine is not in conflict with the rule that fraud must be established by clear and satisfactory evidence.</p>

<p>1. Evidence—Parol Evidence—Incomplete Writing.—While parol evidence of prior or contemporaneous agreements mil not he received to vary,- alter or contradict the terms of a valid written contract, complete on its face, this rule of exclusion has no application where it is apparent from the writing itself that it does not embody the entire agreement. In such case, the writing being incomplete, it must be supplemented by other evidence, not to contradict or vary its terms, but to establish the real contract between the parties.</p> <p>2. Evidence—False Representations—Parol Evidence.—Parol evidence is admissible to prove that one party was induced to enter into a contract by the false representations of the' other. Such evidence is equally admissible, whether the contract was written or verbal.</p> <p>3. Winesses—Death of a Party to Contract—Agent or Survivor.—The agent of a corporation contracting for his principal is not rendered incompetent to testify by reason of the death of the other contracting party.</p>

<p>1. Fraud—Evidence from the Transaction Itself—Case in Judgment.— While it is true that fraud is not to be assumed on doubtful evidence or circumstances of mere suspicion, but must be alleged and clearly proved, yet a transaction may of itself and by itself furnish the most satisfactory proof of fraud, so conclusive as to outweigh the answer of defendants, or even the evidence of witnesses. The circumstances attending and following a transaction are often of such character as to leave no room to doubt the real object and motive of the parties engaged in it. The facts established in the case in judgment justify the conclusion that the appellants have been defrauded of their property by preparation for the wrong, concealment of the truth, and false statements as to material facts by the other party to the transaction.</p> <p>2. Fraudulent Representation—Reliance on—Evidence of Non-Reliance.—If the purchaser of property has not equal means of information with the seller, and he has the right to rely upon representations made by the seller with reference to the property, evidence to show that he did not rely upon such representations must be of the clearest and most satisfactory character. In such cases there ought to be no room for inference or mere implication.</p> <p>3. Contracts—Obtained 'by Fraud—Affirmation—Proof Required— Waiver.—Affirmation of a contract voidable for fraud must be a solemn and deliberate act. When the original transaction is infected with fraud the confirmation of it is so inconsistent with justice, and so likely to be accompanied with imposition, that the courts watch it with the utmost strictness, and do not allow it to stand but on the clearest evidence. No man can be bound by a waiver of his rights unless such waiver is distinctly made with full knowledge of the rights which he' intends to waive, and the fact that he knows his rights and intends to waive them must plainly appear.</p>

<p>1. Oysters—Application for Grounds—Priority of Claims.—The writ of mandamus prayed for in the case at bar, to compel the oyster inspector to take the necessary preliminary steps to assign certain oyster grounds to the petitioner, was properly refused, as there were pending before the inspector prior bona fide applications for the same grounds which had not been acted on through no fault of the applicants. The prior applications were before the re-establishment of the lines of the Baylor survey, but were still insisted on, while petitioner’s application was not .filed till after such re-establishment.</p>

<p>1. Deeds—Wee Simple—Tdmitation Over of What Remains.—Under a deed which, conveys land to a trustee for the benefit of a married woman, with power to her to sell and dispose of the property and make such disposition of the proceeds of sale as she may think proper, the married woman takes an equitable fee simple estate in the property and a limitation over to another of any interest in “the property then remaining,’’ is void for uncertainty and repugnancy.</p>

Decree in part for defendants. Complainants appeal. In addition to the facts stated in the opinion of the court, it may be added that the Lowenherg Corporation owned one-half of the stock of the Pine Beach Corporation, and that the remaining one-half thereof was owned by one other person.

Judgment for the plaintiffs. Defendant assigns error. The following are the instructions given for the plaintiffs referred to in the opinion of the court: No. 1. “The court instructs the jury, that a person who is skilled in the performance of a particular kind of work, and who on account of his skill is employed to do a piece of work, without restriction upon the means to he employed in doing the work, and employs his own labor, which is subject alone to his control and…

<p>1. This case is ruled by Lambert v. Phillips, ante, p. 632.</p>

<p>1. Demubber to Evidence—Denial of Jury Trial.—The right to demur ito the evidence is no longer an open question in this State. The demurrer does not invade the province of the jury as triers of disputed facts, hut, assuming that the evidence demurred to is true, the court is called upon to determine whether such evidence, as a matter of law, warrants a judgment for the demjurree. It is a supervisory power invoked and exercised by the courts, whose duty it is to decide questions of law arising upon undisputed facts.</p> <p>2. Negotiable Instruments—Holder for Value—Presumption.—In a contest between the payee of a bill of exchange and the drawer thereof, or a creditor of the drawer, over the proceeds of the draft, the payee, by the very terms of the Negotiable Instruments Act, is presumed prima facie to be a holder for value, and the burden is on the party denying it to prove the contrary.</p> <p>3. Negotiable Instruments—Holder for Value—Agent to Collect.— Where a bank, in answer to a garnishment sued out by the drawee of a draft against the drawers thereof, states that it is not indebted to the drawers but holds the fund for a bank in another State, which was the payee of the draft, and forwarded it to the garnishee for collection, the facts that the non-resident bank employed no counsel to defend the suit, to which it was not a party, and stamped on the bill of lading attached to the draft that it was not responsible for the quantity, quality or delivery of the goods, and endorsed the draft without recourse, and that the drawers waived protest and notice, and that the draft which had been once returned was afterwards forwarded, with a pencil memorandum attached bearing the initials of the . drawers: “Please send back and present again,’’ are not inconsistent with the payee’s bona fide ownership of the draft, and do not overcome the legal presumption that it is a holder for value, and not a mere agent for collection.</p> <p>4. Appeal and Eerob—Harmless Error.—This court will not reverse a case for the exclusion of evidence, hy the trial court which could not have affected the result.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk 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 Rappahannock. Decree for complainants. Defendant appeals.-</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>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>Appeal from a decree of the Circuit Court of Fairfax county. Decree for defendants. Complainant appeals.</p>

The decree appealed from was not adverse to the complainant, hut was in favor of one defendant as against other defendants, and the latter appeal.

<p>1. Vendor and Purchaser—Changed Conditions—Disaffirming Contract—Action for Purchase Money.—Where no possession of land was ever delivered by tbe vendor to the vendee, and the vendor has placed himself, or permitted himself to be placed, in such a position, without fault on the part of the vendee, that he cannot deliver the land sold in substantially the condition it was when the contract of purchase was entered into, he is really in • no better condition than if the title to the property "isold was bad,- and a vendee who has paid a part, or the whole, of the purchase price, may elect to disaffirm the contract, and sue at law and recover the purchase money paid by him. ■</p> <p>2. Pleadins—Assumpsit—Payments for Land—Failure of Consideration.—A count in a declaration in assumpsit to recover payments made on the purchase price of a tract of land that avers a state of facts which, if true, shows that the plaintiff never received anything under the contract of sale, and that the defendant cannot convey what he contracted to convey,- sufficiently avers a substantial, if not a total failure of consideration, and is a good count.</p> <p>3. Vendor and Purchaser—Sale on Installments—Action to Recover Payments.—Where land has been sold to be paid for in installments, and the deed is not to be made until the last installment is paid, and a change in the condition of the land has been made or permitted by the vendor who still has possession, without the knowledge of the vendee, the vendor has until the last installment falls due to restore the land to substantially its original . condition, if it can be so restored, and no action can be maintained by the vendee before that time to recover installments paid.</p> <p>4. Instructions—Different' Theories of Case—Yerdicts.—Where there is evidence, tending to support the contention of the plaintiff 'as well as that of the defendant, and it is sufficient to support a verdict, it is proper to instruct the jury on each, theory of the case, and a verdict for either party cannot he set aside as contrary to the evidence. •</p>

<p>1. Appeal and Error—Bills of Exception—Signature of Judge—Part of Record.—Where a bill of exception, certifying the evidence, is signed and sealed by ,the presiding judge at the end of the formal part of the bill, and immediately following it there is a statement of "all the facts proven on the trial of this case,” which is likewise signed and sealed by the judge, and it unmistakably appears that both were made up and signed by the judge at the same time, in open court, this is a sufficient incorporation of such facts into the record.</p> <p>2. Vendor and Purchaser—Loss of Land—Recovery of Purchase ■ Money—Cloud on Title—Case in Judgment.—A purchaser of land with full notice of a prior deed of trust to secure money, bought the land for part cash and the residue on time, accepted a deed with covenants of general warranty and against encumbrances, and gave back a deed of trust to secure the deferred payments, and the trustee and the beneficiary and her husband agreed to apply the cash payment to the payment of the prior deed of trust debt, but failed to do so. Subsequently, the husband agreed to refund the cash payment and take back the land, but this was not done. The purchaser was informed that the amount due under the prior deed of trust was much less than his last bond, and could be paid out of its proceeds, but he declined to agree to this, or to pay the instalment then due, and the land was afterwards sold for default in payment of the deferred payments and brought only enough to pay them. The purchaser at the trustee’s sale brought ejectment against the former purchaser and turned him out, and this action was brought by the latter against the trustee, and the beneficiary and her husband above mentioned, to recover back the cash payment made on the land and damages for the “trouble, costs and damages in moving away.”</p> <p>Held: The purchaser could have paid the amount due on the former deed of trust and had the same credited on the amount due by him, or could have enjoined the sale until the prior debt was paid or so much of what he owed as was necessary was set apart for that purpose. Not having done this he cannot maintain the present action. The beneficiary is not liable, as the purchaser did not pay the prior lien, and the land brought no surplus, and he was not evicted by title paramount, and the trustee and husband are not liable as there was no consideration for their promise.</p>

<p>Error to a judgment of the Chancery Court of the city of Richmond on an application to require security of an executrix.' Judgment for the applicants. The executrix assigns error.</p>

<p>1. Railroads—Conveyance for Depot Purposes—Deeds—Conditions-— Covenants.—A deed conveying land to a railroad company for “depot and other railway purposes” in consideration of the grantee’s agreeing to erect and maintain a depot on the land conveyed, but containing no clause of forfeiture or right of reentry for failure to do so, vests" in the grantee a fee simple estate in the land conveyed, and the superadded words do not create a condition subsequent but only an agreement or covenant on the part of the grantee to use the land for the purpose specified. The deed is founded upon a valuable consideration, and the language used is to he taken most strongly against the grantor.</p> <p>2. Deeds—-Conditions Subsequent—Intention—Sow Ascertained—Case at Bar.—Conditions subsequent are not favored in law, and are construed strictly because they tend to destroy estates. In determining whether the parties intended to create a covenant or a condition,' it is necessary to consider the language employed, the situation of the parties, their relation to the subject of the transaction, and the object in view. The application of this rule to the facts of the ease at bar shows that a covenant and not a condition subsequent was intended.</p>

<p>1. Pkocess—Return—Signature of Officer.—A return on a writ or process is the short official statement of the officer endorsed thereon of what he has done in obedience to the mandate of the writ, or why he has done nothing.' The signature of the officer thereto is no part of the return, but is merely intended to authenticate it.</p> <p>2. Executions—Return of Officer—Lack of Signature—Amendment— Time of Making.—Where the truth of a return on an execution is not questioned, and no good reason to the contrary is shown, the officer making it should be allowed to amend by signing it, and thus make valid that which before had no appearance of official authenticity. Courts are liberal in allowing amendments of returns in proper cases, so as to conform to the truth, and the amendment when made has the same effect as though it were the original return, where the right of. third persons have not •intervened, and it does not appear that injustice can result to anyone. There is no. specific time within which a return must ' be amended, but after a great lapse of time an amendment should be permitted with caution, and in no case should it be allowed unless the court can see that it is in furtherance of justice.</p> <p>3. Executions—Return Before Return Day—Notorious Insolvency.— A return on an execution “no effects known to me” is not vitiated by the fact that it is made before the return day of the writ, ¡.where, as in the case at bar, it is an agreed fact'that, at the time the writ was placed in the hands- of the officer, the defendants were notoriously insolvent.</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. Appeal and Erbor—Ter diets—Conflicting Testimony—New Trial in Trial Court—Demurrer to Evidence.—The verdict of a jury is entitled to great respect and should not he set aside, even hy the trial court, unless plainly against the weight of the evidence. The jury are the judges of the credibility of the witnesses, and where there is serious conflict of evidence on a material point, the judgment of the trial court setting aside the verdict will he reversed by this court on writ of error, and final judgment entered upon the verdict. To warrant a new trial where the evidence is conflicting, the evidence must he insufficient to sustain the finding of the jury. In considering such a case on a writ of error, it is not heard as upon a demurrer to the evidence.</p>

<p>1. Master and Servant—Defective Appliance—Knowledge of Defects—Declaration—Sufficiency.—Where a recovery is sought by a servant against his master for an injury inflicted by an appliance which is alleged to have been in a defective condition, it must be alleged and proved not only that the appliance was out of repair and that the defect was the proximate cause of the injury, but that the master knew, or ought, in the exercise of ordinary care, to have known, of its defective condition. A declaration in such a case which fails to make this allegation is bad on demurrer. Wherever every allegation of fact in a declaration may be true and yet the defendant not liable to the plaintiff for the cause of action stated, the declaration is bad.</p>

Judgment for the plaintiff. Defendant assigns error. Instruction Eo. 4 asked for by the defendant was amended by striking out the words in italics. As asked it was as follows : “It is the duty of the master to exercise ordinary care to furnish its employees reasonably safe machinery and appliances with which to work. The duty is discharged if the employer exercises ordinary care, although the machinery or appliances may not in fact be safe and (or) free from defects.

<p>Error to a judgment of the Corporation Court of the city of Manchester, affirming, on appeal, a judgment of the Mayor of said city, imposing upon the plaintiff in error a fine of $10 and costs for employing wagons on the streets of said city without having first obtained a license therefor.</p>

JError to a judgment of the Circuit Court of Northampton county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error. After the evidence had heen introduced, the plaintiff asked for the following instructions, which were given over defendant’s objection: “(l).

Decree for complainants. Defendants appeal. On April 7, 1888, David M. Orr and Rebecca, his wife, who were the joint owners of a tract of land, conveyed the same, for value, to their son, R. S. Orr. In May, 1883, David M. Orr died, surviving him his widow, Rebecca Orr, and two daughters and two sons.

<p>Appeal from a decree of the Circuit Court of Culpeper county. Decree in favor of one of the defendants. Complainants appeal.</p>

<p>1. Equity Pleading—Amendments.—The question of amending pleadings in chancery is largely in the discretion of the trial court. In the case in judgment there is nothing in the character of the amendments, nor the circumstances under which they were made, that shows that the discretion of the trial court was improperly exercised.</p> <p>2. Equity Pleading—Allegations of Actual Fraud—Constructive Fraud. —Although a bill alleges actual fraud and contains a special prayer for relief on that ground if the facts alleged also make out a case of constructive fraud and these facts are established, relief may be afforded on the latter ground.</p> <p>3. Fraud—Fiduciary Relations — Advantage — Influence.— Wherever a fiduciary relation exists as a fact between persons, and confidence is reposed on the one side, and there is a resulting superiority and influence on the other, and the inferior is induced by the superior to transfer to the latter valuable property without consideration, or upon an inadequate consideration, such transfer will be set aside by a court of equity. Such a transaction will not be sustained unless the trust relation was for the time being completely suspended, and the inferior acted throughout upon independent advice, and upon the fullest information and knowledge.</p> <p>4. Fraud—Ratification.—When the original transaction is infected with fraud, the confirmation of it is so inconsistent with justice, and so likely to be accompanied by imposition that courts watch it with the utmost strictness, and do not allow it to stand but upon the clearest evidence.</p> <p>5. Fraudulent Conveyance—Ratification—Receipt of Money—Knowledge of Fraud.—The receipt of money under a contract voidable for fraud will not be deemed a ratification by the defrauded ■ party, when it does not appear that he had become, or ought to have become, fully aware of the imperfections of the transaction and of his right to impeach it, and that in receiving the payment he acted deliberately, and with the intention of ratifying or confirming it. In the absence of facts or circumstances showing this, no act of confirmation, however formal, would be ■ effectual.</p> <p>S. Feaud—Suit to Avoid—Promptness—Acquiescence.—A party having the right to impeach a transaction for fraud, must do so in a reasonable time, but what is a reasonable time must be determined by the facts and circumstances of the particular case. To fix acquiescence on a party it should unequivocally appear that he knew the fact upon which the supposed acquiescence is founded and to which it refers. . '</p>

<p>1. Criminal Law—Writ of Error—Verdict of Conviction—Conflicting Evidence.--A-A verdict of conviction of crime canhoibe- set aside • by this court as contrary to the evidence, where -the evidence is conflicting, on material points; ........ . .</p> <p>3. Criminal Law—Views—Object—Discretion bf, Trigl Court,-—The purpose of a view is not to supply evidence, iut to enable the jury to apprehend it; and whether'a'View shall;he granted' or refused lies largely in the; discretion of the -trial court whose judgment on the question. will not be reversed unless plainly wrong. ' ‘ ■ '</p>

<p>1. Criminal Law—Amending Verdict—Materiality—Polling Jury.— When it becomes necessary to amend the verdict oí a jury in a matter of substance, it is the safer practice to send the jury to their room .where they can find such verdict as they deem proper, untrainelled by the presence or influence of others, but if the amendme'nt' is made' by the clerk in the presence of the jury, . and the jury is theii polled and each juror assents to the amended verdict the irregularity is cured. ■</p> <p>2. Husband and Wive—Support of Wife—Continuing Duty—Breach.— The object of the statute punishing the desertion or wilful neglect to provide for á wife or minor children is to compel a husband to support his wife and children, if of ability to do' so. It is a continuing duty, and the breach of it may be, alleged as of the time of the desertion, or at any subsequent time while the neglect continues. It would be proper in a trial under the statute' to- tell the jury that the desertion or neglect must have existed at the time the indictment was found.</p> <p>3. Husband and Wtpe—Support of Wife—Desertion by Husband— Sufficiency of Cause.—A quarrel or series of quarrels between husband and wife for which wife is responsible in whole or m part, do not constitute just cause for desertion on the part of the husband, or for his wilful neglect to provide for her support and that of their minor children.</p> <p>4. Husband and Wive—Support of Wife—Destitute or Necessitous Circumstances—Question for Jury—Review.—What shall constitute “destitute or necessitous circumstances,” under the statute punishing a man for deserting his wife and minor children, depends upon the circumstances of the particular case, and is a question for the jury subject to review by the court in a proper case and upon familiar principles.</p> <p>5. Husband and Wive—Desertion of Wife by Husband—Destitute and Necessitous Circumstances—Case at Bar.—The evidence in this case does not show that the wife was at any time in destitute and necessitous circumstances within the meaning of the statute punishing a husband for deserting his wife “in destitute or necessitous circumstances,” and the judgment of conviction of the husband- therefor is therefore set aside.</p>

<p>1. Criminal Law.—Evidence—Death of Witness Between Trials—Proof of Former Testimony.—If a witness for the prisoner in a criminal prosecution has been examined and cross-examined at one trial and dies before a second trial of the case, his testimony given on the first trial may be proved by the prisoner on the ■ ■ second trial. Finn’s Case, 5 Rand. 701, and Brogy’s Case, 10 Graft. 722, explained.</p>

<p>1. Criminal Law—Indictment—Sufficiency—Charging Sale of Intoxicating Liquor—Delivery.—Au indictment for the sale of ardent spirits without license, substantially in the language of the statute, saying nothing about delivery, is sufficient. The sale includes the delivery.</p> <p>2. Criminal Law — Indictment—Names of Witnesses —Directory Statute.—The statute requiring the names of the witnesses upon whose testimony an indictment is found to be written at the foot of the indictment is directory only, and the absence of such names is not a valid objection to the indictment.</p> <p>3. Criminal Law.—Indictment for the Sale of Intoxicating Liquors— Allegation of Time—Name of Purchaser.—It is unnecessary to allege in an indictment for the unlawful sale of intoxicating liquors, the precise time when, or the person to whom, the sale was made. The charge that the defendant did “unlawfully sell and deliver intoxicating liquors,” is sufficient. Nor can the Commonwealth be required to state in advance of its evidence, the time when, or the person to whom, the sale was made.</p> <p>4. Criminal Law—Sale of Intoxicating Liquors—Possession of United States License—Constitutional Enactment.—The statute making the possession of a United States revenue license to sell liquor by one not licensed to sell under the State law prima facie evidence of a sale of liquor contrary to the State law is a valid and constitutional enactment.</p> <p>5. Criminal Law—Sale of Liquor—Testimony of Defendant—Proof Satisfactory to Jury—Interested Witness.—A jury is not obliged to beiieve the testimony of an interested or biased witness, though unimpeached, and the mere fact that a defendant indicted for the unlawful sale of intoxicating liquors, and his confidential clerk, testify that no illegal sale was made is not good ground for setting aside a conviction founded on evidence of the • possession of a United States revenue license, as the statute provides that, in such case, the burden of proof is on the defendant, and that unless he shows by satisfactory proof that he has not violated the law he shall he convicted. Whether the proof was satisfactory or not was a question for the jury, who were not obliged to accept as “satisfactory” the testimony of the defendant and his clerk.</p>

<p>1. Criminal Law—Seduction—Unmarried Female—Divorced Woman.— A woman who has been married and divorced is not an “unmarried female” within the intendment of section 3677 of the Code providing punishment for the seduction of “any unmarried female of previous chaste character.” Criminal laws are not to be extended by construction, but must be limited to cases clearly within the language used.</p>

<p>1. Criminal Law—Verdict Without Evidence—Case at Bar—Possession of Cocaine.—The evidence in the case at bar is wholly insufficient to sustain a conviction of the satutory offense of having in possession, cocaine “with intent to sell, give away, or otherwise dispense the same.” The cocaine was never ordered to be sent to this State, and only came into her borders as a result of a mistake made by the consignors. The defendant positively refused to receive the same, and never for a moment had any such possession of it -as would have enabled him to do any of the acts forbidden by the statute. Upon such evidence no conviction can be rightly had.</p>

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

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

<p>1. Concealed Weapons—Commissioners in Chancery—Code (1904, as Amended, Section 8780, Construed.—Commissioners in chancery are conservators of the peace (Code, section 3912), and as such may carry concealed weapons, although not at the time acting in the discharge of official duty. The words “while in the discharge of his official duty” used in section 3780 of the Code as amended, apply only to the next antecedent class of officers, to-wit, collecting officers, and not to the other officers named in the statute.</p> <p>2. Statutes—Construction—Punctuation—Concealed "Weapons—Case at Bar.—Punctuation is not resorted to in the interpretation of statutes unless the intention of the legislature cannot he ascertained from the language of the statute (read in the light of legislation existing upon the subject when the statute to he interpreted was enacted), and of other statutes in pari materia. In the case at bar, it is not necessary to invoke the aid of punctuation. The statute concerning the carrying of concealed weapons, read in the light of its history, is sufficiently plain.</p> <p>■ 3. Cbiminal Statutes—Strict Construction—Constructive Offenses.—■ Criminal statutes are construed strictly against the State and in favor of the liberty of the citizen. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penally. There are no such things as constructive crimes.</p>

<p>1. Intoxicating Liquobs—Spirituous Liquors—Intoxicating Cider.—■ Under an indictment for the unlawful sale of “spirituous and malt liquors, whiskey, brandy, wine, ale, beer or mixtures thereof,” the defendant cannot be convicted on proof of the sale of intoxicating cider. Cider is not a spirituous liquor, nor does it belong to any of the other classes enumerated. While all spirituous liquors are intoxicating, and all intoxicating liquors are, by .force of the act of March 12, 1908, deemed to be ardent spirits, it is certain that all ardent spirits are not spirituous liquors. Malt liquors are intoxicating, but cannot be classified as spirituous.</p>

<p>1. Criminal Law—Cumulative Punishment—Indictment for Murder— Code, Sections 3905, 3906.—The cumulative punishment provided hy sections 3905 and 3906 of the Code for habitual offenders applies solely to cases where the accused is indicted and prosecuted for offenses punishable by confinement in the penitentiary, and not to indictments and prosecutions for capital felonies, though in such cases the jury may, in their discretion, find the accused guilty of a lesser offense. The statutes are highly penal and do not apply to cases which may, but to those which must, upon a strict construction, come within their language.</p> <p>2. Criminal Law—Indictment for Murder—Cumulative Punishment.— If, on an indictment for murder, the prisoner be found guilty of an offense less than murder of the first degree, and sentenced to confinement in the penitentiary, the cumulative punishment provided by sections 3905 and 3906 may be added by proceedings had under sections 4180, 4181, 4182 and 4183 of the Code which are complementary to the prior sections, prevent a possible failure of justice, and spare the accused the injustice of having evidence of prior offenses introduced before the jury when upon trial for murder of the first degree.</p> <p>3. Criminal Law—Indictment for Murder—Count Charging Former Conviction of Felony—Surplusage—Evidence of Former Conviction.—An indictment for murder is not bad on demurrer because it contains a count charging that the accused had been twice before sentenced in the United States to confinement in the penitentiary. The count charging the previous convictions must be rejected as surplusage. But if the prisoner objects to the introduction of evidence of such former convictions, his objection should be sustained, as such evidence tends to unduly prejudice the prisoner before the jury.</p> <p>4. Criminal hxw—Evidence—Dying Declarations—Motive for Killing.— The dying declaration of deceased that he did not know any motive on the part of the prisoner for shooting him, except that he was angry because deceased had refused to rent him a piece of land, is admissible in evidence, though not conclusive of the fact; and¡ it is competent for the prisoner to contradict it by showing that he was not informed of the purpose of the deceased with respect to the land until after the homicide had been committed.</p> <p>'5. Criminal Law—Evidence—Remarles of Prisoner in Jail—Motive.— On a trial for murder, it is competent for the Commonwealth to prove remarks of the prisoner while in jail that “he did not begrudge what he had done (though he did not say what he had done) * * *, that he had it to do, and if it were to do over again he would do it.” Although he did not mention the name of the deceased in that connection, yet if he had reference to some other transaction it was competent for him to show it.</p> <p>■6. Criminal Law—Instructions—Case at Bar.—The instructions given in the case at bar are approved by the court. They relate to murder, malice, manslaughter, presumptions, reasonable doubt, self-defence, dying declarations, etc.</p>