Volume 110 — Virginia Reports

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

<p>Appeal from a decree of the Circuit Court of Russell county in a suit in chancery wherein appellee filed a petition. Decree for petitioner. Defendants appeal.</p>

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

Decree in favor of one of the defendants in a suit in chancery brought by the heirs of Annie M. Moorman for a partition of the real estate whereof she died seised and possessed, and for the construction of the will of her husband, R. B. Moorman. Complainants appeal.

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

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

<p>Error to a judgment of the Circuit Court of Buchanan county in an action of trover, brought by the vendee of standing trees against his vendor, who had cut and removed them. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Pleading&emdash;Contributory Negligence&emdash;Matter of Defense&emdash;Negligence Per iSe&emdash;Case at Bar.&emdash;Contributory negligence is a of defense which, the plaintiff need not negative either by his pleadings or proofs, but which the defendant must establish by a preponderance of the evidence, unless it appears from the plaintiff’s own evidence. It is not to be reasonably inferred that a brakeman was guilty of negligence per se from the mere fact that his foot, ankle and leg were caught and crushed between cars while he was engaged in coupling them.</p> <p>2. Pleading&emdash;Declaration&emdash;Sufficiency&emdash;Demurrer&emdash;Bill oj Particulars. If a declaration states a good cause of action (as it does in the case at bar) and the defendant desires a more particular of the grounds of complaint, his remedy is not by a to the declaration, but by a motion for a bill of under section 3249 of the Code.</p> <p>3. Evidence&emdash;Allegation of. Main Facts of Negligence&emdash;Proof of Facts.&emdash;Where the primary or main facts constituting the negligence complained of have been sufficiently alleged in the declaration, all merely subordinate and consequential facts that can be reasonably implied by its averments are admissible in to sustain the principal facts, although not stated in the declaration.</p> <p>4. Appeal and Errok&emdash;Verdict Sustained by Evidence.&emdash;The evidence in the case at bar, considered as on a demurrer to the sustains the findings of the jury, and their verdict cannot be disturbed by this count.</p>

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

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

<p>Appeal from a decree of the Corporation Court of the city of Koanoke. A sale of real estate was made under a decree rendered in the suit of Oakey, Exor., v. Woolwine, and at such sale W. Y. Kirk became the purchaser. He refused to comply with the terms of sale on account of an alleged defect of title. From a decree compelling him to comply, Kirk appeals.</p>

<p>1. Municipal Corporations&emdash;Power to Compromise Disputed Claims&emdash; Arbitration&emdash;Consideration.&emdash;A municipal corporation has the right, as a necessary incident to its right to contract and to sue and be sued, to settle and adjust unascertained or disputed claims made against it, or made by it against others. It may also submit such claims to arbitration, and the award, when fairly made, is binding on the corporation. In either case the over the claim furnishes all the consideration necessary.</p> <p>2. Arbitration and Award&emdash;Award Outside Submission&emdash;Severance. In an arbitration between a city and a street railway as to the amount due by the latter for street paving, if the award goes beyond the submission and undertakes to exempt the railway company from all obligations under the city or the charter, to repair the pavement on each side of its rails for a period of five years, this part of the award is baa, but is separable from the residue and should be stricken out.</p> <p>3. Municipal Corporations&emdash;Franchises&emdash;Release from Liability&emdash; Publication&emdash;Code, Sec. 1033-/, cl. 5.&emdash;Under the provisions of section 1033-f, cl. 5 of the Code (1904) declaring that no to a city ordiance granting a frachise shall be made which releases the grantee, or his assignee, from the performance of any duty required by the ordiance granting the franchise, unless notice thereof be given to the public by advertising the same for ten days in a newspaper published in the city, the council of the city have no right, without such advertisement, to enter into a contract with a street railway company upon which there is a continuing obligation to do street paving, to accept from it a designated sum of money “in full satisfaction and discharge of all obligation and liability of the company for, street paving under its franchises.”</p> <p>4. Arbitration and Award&emdash;Grounds for Setting Aside Award.&emdash;It is equally the rule of equity as of law that the reason for setting . aside an award must appear on its face, or there must be in the arbitrators, or some palpable mistake.</p>

<p>1. Intoxicating Liquoks—Wood Alcohol—Poison.—Wood alcohol is a narcotic poison, and one who is killed by drinking wood alcohol by mistake for grain alcohol cannot be said to have died by the intemperate use of intoxicating liquors.</p> <p>2. Insubance—False Statements in Application as to Health.—A false statement made in an application for insurance concerning a mere temporary indisposition, not affecting the general health or constitution of the applicant, will not vitiate the policy, unless-it be clearly proved that the statement was wilfully false, or fraudulently made, or was material. The fact that the answer was-merely untrue is not sufficient, under the statute of this State, to vitiate the policy.</p> <p>3. Insubance—Powers of Agent—Limitations of Policy.—It is a matter of common knowledge that the business of insurance companies is necessarily transacted through agents, and they are presumed to know better than the public with whom they deal the requirements of their companies. Consequently, an applicant for insurance has a right to depend upon the superior knowledge of the agent, and, in the absence of notice of limitations upon his powers, to assume that his authority is commensurate with the nature of the employment, and in good faith to act upon the information imparted by the agent, and to follow his instructions in all matters pertaining to the preparation of the application.</p> <p>4. Insubance—Benefit Societies—Application for Membership—False Statements Induced by Officers of Society—Estoppel.—An applicant for membership in a mutual benefit society does not become a member until the delivery of the certificate of membership, and is not presumed to know the constitution and by-laws of the society, and if he is induced to join by false and misleading representations by the officers and agents of the society as to the purport and effect of certain questions in the application for membership, and in consequence thereof makes, or assents to, answers to such questions which both he and they know to be false, and be is accepted as a member and pays bis dues, tbe society cannot, after loss, set up tbe falsity of tbe answers to sucb questions as a ground for avoiding liability on its certificate.</p>

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

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

<p>1. Damages—General and Special—How Pleaded.—General damages are sucb as are tbe natural and proximate result of tbe act or default complained. They are legally imported, and need not be specially pleaded. Damages wbicb are of an unusual and extraordinary nature and are not the common consequences of tbe wrong complained of are said to be special damages, and must be specially laid in tbe declaration.</p> <p>2. Pleading—Declaration—Sufficiency—Sickness and Disorder—Nervous Disorder.—A declaration whiclT adequately charges a physical injury to tbe plaintiff, and further avers that by reason of tbe physical injury tbe plaintiff became sick, sore and disordered, wbicb condition continued “hitherto,” sufficiently warns tbe defendant to expect evidence of any sickness or disorder, tbe origin or aggravation of wbicb could be traced to tbe act or wrong complained of, and it need not be more specifically described. Under sucb allegation serious nervous disorders may be shown.</p> <p>3. Pleading—Declaration—Sufficiency—Bill of Particulars.—If a declaration in tort does not plainly describe “tbe sickness or disorder” alleged to result from a physical injury charged, tbe defendant may require tbe needed particularity by calling for a bill of particulars under section 3249 of tbe Code.</p> <p>4. Tbial—Continuance—Case at Bar.—A motion for a continuance is addressed to tbe sound discretion of tbe trial court, under all tbe circumstances of tbe case, and, while its action is subject to review by tbe appellate court, it will not be reversed unless plainly erroneous. In tbe case at bar the facts disclosed by tbe plaintiff’s bill of particulars just filed was tbe ground of tbe motion. But tbe bill was not called for till tbe term succeeding that at wbicb tbe issue was made up, and this court cannot say, under all the facts and circumstances, that tbe action of tbe trial court in refusing a continuance was plainly wrong.</p> <p>5. Witnesses—Experts—Hypothetical Questions—Pacts Assumed.—A hypothetical question propounded to an expert witness will not be rejected for lack of fullness of details when there is evidence tending to prove all the facts assumed in' the question, and it refers to all the material facts which the evidence tends to prove affecting the question upon which the expert is asked to express an opinion.</p> <p>6. Verdict—Excessive.—A verdict for 51,500 for a personal injury resulting in a broken rib, a sprained back and other injuries cannot be set aside as excessive.</p> <p>7. Verdict—Contrary to Evidence—Evidence to Support—Probabilities.—A verdict of the jury awarding damages for a nervous disorder resulting from a personal injury will not be set aside as contrary to the evidence when there is sufficient evidence for the jury to have concluded that the nervous disorder complained of was more probably due to the injuries received than to any other cause.</p>

<p>1. Master and Servant—Negligence—Proof Required—Case at Bar. Negligence must be established by affirmative evidence which must show more than a mere probability of a negligent act. The existence of negligence must not be left wholly to conjecture, but the evidence must be such as to satisfy reasonable and well balanced minds that the injury complained of resulted from the negligence of the defendant. Moreover, in seeking to charge a master, it must be borne in mind that he is not compelled to foresee and provide against that which reasonable and prudent men would not expect to happen. Nor can the negligence of the master be inferred from the mere occurrence of an accident by which his servant is injured. That fact alone does not raise even a prima facie presumption that the master has been guilty of negligence or a breach of duty to his servant. In the case at bar the evidence shows that the plaintiff’s injuries resulted from a pure accident which could not have been anticipated or provided against by reasonably prudent men.</p>

<p>1. Equity Pleading—Multifariousness—Deficiency in Land—Defective Title—Complete Relief.—A bill is not multifarious which, seeks redress for deficiency in land, and defect of title to part of the tract, where both demands arose out of the same contract and are so correlated that separate suits would be inconvenient and not afford complete redress. Moreover, jurisdiction to grant redress for the deficiency in quantity is clear, and equity, having acquired jurisdiction for this purpose, will retain the cause and do complete justice between the parties.</p> <p>2. Injunctions—Collection of Purchase Price of Land—Defective Title.—Equity will enjoin the collection of the purchase money of land on the ground of defect of title, after a vendee has taken possession under a conveyance from his vendor with general warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly that the title is defective.</p> <p>3. Deeds—Construction—Conflicting Causes—Habendum—Case in Judgment—Omission of líame in Deed.—Deeds should be read as a whole, and effect given, as far as possible, to the evident intention of the parties. If it appears from tne whole instrument that there is a variance between the granting and the habendum clauses, the latter will prevail. In the case in judgment the name of one of the grantees was omitted from the habendum clause, but it is manifest that the omission was an oversight, and the instrument should be construed as if the name had been inserted in the habendum as well as the granting clause.</p> <p>4. Vendos and Pubchasee—Hale of Land—Whether in Gross or by the Acre.—Where an agreement is entered into for the payment of a gross sum for a tract of land upon an estimate of a given number of acres, the presumption is that the quantity influenced the price to be paid, and that it is a sale by the acre and not in gross, unless the contrary is made to appear plainly. A sale of a given number of acres, “more or less,” will be construed to be a sale by the acre, unless it be clearly shown that a sale in gross was intended. While contracts of hazard are not invalid, they are not favored in courts of equity.</p>

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

<p>1. Boundaries—Conflicting Evidence—Verdict of Jury.—Where the evi- ■ dence is conflicting as to the true location of a disputed boundary line, and as to acts of ownership exercised over the land by the claimants and those under whom they claim, the location of the line is peculiarly a question for the jury, under proper instructions from the court, and their verdict will not be set aside unless it is plainly wrong.</p> <p>2. Boundaries—Declaration of Parties—Suspicious Circumstances—Objections.—Declarations of a party in interest, after a controversy has arisen with reference to a disputed boundary, which are made under suspicious circumstances, should not be received, if objected to; but if received without objection, they must be considered along with the other facts and circumstances tending to establish the boundary.</p> <p>3. Instructions—Taking Case from Jury-—Insufficient Evidence.—It is not error to grant an instruction which takes away from the jury the consideration of evidence which is not sufficient to support a verdict found in accordance therewith.</p> <p>4. Boundaries—Surveys—Courses and Distances—Lines of Other Surveys.—Where a call is for running to the line of another survey, generally course must yield and the line be so run as to reach the line of the survey called for at such point (if no object be named in the deed) as will least change the course, and be most in accord with the next call of the conveyance.</p> <p>5. Boundaries—Surveys—Construing Calls.-—In construing a conveyance or in applying it to its subject matter, effect should be given, as far as possible, to all of its provisions. A call to “Hall’s line, and with his lines to Indian Creek,” is not answered by running the line to the point where Hall’s line crosses Indian Creek. This would entirely ignore the call for running with Hall’s lines.</p>

<p>1. Bbokees—Right to Compensation—Completion of Service—Agreement Rot to Charge.—A broker’s right to compensation attaches only when he has completed his services, and not till then. If he is employed to effect a lease, and afterwards, before the lease is effected or he has done all that it was his duty to do, he agrees with the owner that he will make no charge for his services, there can be no recovery by him for his services. He cannot recover for subsequent services because he agreed not to charge for them, and he cannot recover for prior services because his services were not completed, and his right to compensation depended upon a full performance of his duty as broker.</p>

<p>1. Injunction—Illegal Tax—Voluntary Payment—Moot Questions—Dismissal—Jurisdiction.—Upon a pure bill of injunction to enjoin the colléction of a tax, tbe voluntary payment of tbe tax pending tbe proceeding and before a final decree destroys the whole ground for tbe equitable relief prayed, and puts an end to tbe case. There is nothing left to support tbe proceeding, and tbe preliminary injunction granted on tbe filing of tbe bill should be dissolved, and tbe bill dismissed without prejudice. It is immaterial that tbe parties agree that tbe suit shall go on to final decree, and that if decided in favor of tbe taxpayer tbe officer will refund. Consent does not confer jurisdiction in such a ease, and courts will not decide purely moot questions. Whenever there is no actual controversy involving real and substantial rights between tbe parties to tbe record tbe case will be dismissed.</p>

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

<p>1. Demurrer to Evidence—Verdal Joinder—Amendment.—The refusal to permit a demurrant to the evidence to amend his grounds of demurrer after a verbal joinder in the demurrer has been announced by the demurree is not prejudicial to the demurrant where, under the grounds already assigned, he has the right to rely upon, and does in fact argue the same point proposed to be made and relied on by the amendment.</p> <p>2. Demurrer to Evidence—When It Should Be Overruled.—If, upon a demurrer to the evidence, the evidence is such that the jury might have found a verdict for the demurree, the court must so find and grant judgment in his favor. Furthermore, if reasonably fair-minded men might differ upon a question, such question must be decided against the demurrant on a demurrer to the evidence.</p> <p>3. Master and Servant—“Bank Boss”-—-Vice-Principal.—-A “bank boss,” when inspecting a mine to ascertain if it is a safe place for miners to work in, is discharging a non-assignable duty of the master, and is a vice-principal, and not a fellow-servant of such miners.</p> <p>4. Demurrer to Evidence—Positive Evidence of Demurree.—Upon a demurrer to the evidence, the positive evidence of the demurree that he did not have knowledge of a danger confronting him must be accepted as true.</p> <p>5. Master and Servant—Safe Place—Assumption of Bisk.—Where a miner has reported to the “bank boss’’ the unsafe condition of the mine, and the latter inspects the mine and professes to have made the mine safe, and tells the miner that he can safely return to work in the mine, the miner has the right to rely upon such assurance, and if he does rely upon it and returns to work in the mine he does not assume the risk of working therein.</p> <p>6. Master and Servant—Safe Place—Duty of Servant—Case at Bar.— While it is as much the duty of the servant to provide for his own safety from such dangers as are known to him, or as are discernible by ordinary care on his part, as it is the duty of the master to provide for him, yet, in the case at bar, it was the duty of the master to have provided against the accident which caused the injury to the servant, and the evidence fails to show that the servant neglected any duty which devolved upon him. The servant was injured by a rock falling on him from the roof of a mine, and the evidence is clear that the danger was known to the master, and that it was his duty to have propped the rock that fell upon the servant before sending him in the mine to work. The danger was a continuing one, and the place was not rendered "unsafe by'any act on the part of the servant.</p>

<p>Appeal from a decree of the Chancery Court of the city of Hichmond. Hrom a decree overruling exceptions of certain creditors to a commissioner’s report, the creditors appeal.</p>

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

<p>1. Paetneeship—Trust Relation—Adverse Interest.—A relation of trust and confidence exists between partners in respect to their dealings with matters pertaining to the partnership. Hence one partner will not be allowed to make a profit on his copartners by the purchase of property of the firm, or of a claim against it'.</p> <p>2. Partnebship—Purchase of Judgment of one Partner Against Another.—Where parties are partners in but a single transaction, the purchase by one partner with his own means of a judgment against another partner which is in no wise connected with his partnership affairs, at a time when no funds have arisen out of which the latter is entitled to claim profits, is outside the scope of the partnership business, and is not forbidden by law.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county in' a suit in chancery in which appellant filed her petition. Decree for the defendants. Petitioner appeals.</p>

<p>1. Taxation—Personal Taxes—Residence-—Non-Residents.—The question of personal taxation is to be determined by a person’s residence and not by his citizenship, and- is not affected by section 40 of the Code relating to expatriation. The State has no jurisdiction to assess a tax as a personal charge against a non-resident, nor, as a general rule, can the personalty of a non-resident be taxed unless it has an actual situs within the State.</p> <p>2. Resident—Residence.—The' meaning of the words “resident” and “residence,” as used in tax laws, depends upon no one fact or combination of circumstances, but must be determined from all the facts and circumstances taken together in each particular case.</p> <p>3. Domicile—Residence—Change of Domicile—How Effected—Case at Bar—Taxation.—“Domicile” is of more extensive significance than “residence,” and includes besides mere physical presence at a particular place, positive or presumptive proof of an intention to make it a permanent abiding place. To acquire a domicile in a particular place there must be a residence there and an intention to make that place one’s home. If a person domiciled at one place but resident at another determines to make his place of residence his domicile, and continues to abide there with the intention to make it his home permanently, or for an indefinite period, he thereby acquires a new domicile. In the case at bar, the taxpayer’s intention to change his domicile from this State to the city of Washington, D. C., was not only explicitly declared, but was followed by conduct consistent therewith and evincing his good faith, and he is therefore no longer taxable in this State.</p> <p>4. Taxation—Bank Deposits—Non-Residents—Code, Sections 487 and 489.—Sections 487 and 489 of the Code (1904) are only applicable to residents of this State. Under these sections money belonging to such residents, whether deposited in bank in or out of this State, is taxable here, but general deposits by non-residents of their own money in a bank of this State are not taxable here.</p>

<p>1. Evidence—Parol Evidence to Contradict Writing—Rights of Third Persons.—Tbe rule that parol evidence will not be received to vary, alter or contradict tbe terms of a valid written contract, is applicable only to controversies between tbe parties to tbe contract, or tbeir privies. It cannot affect third persons.</p> <p>2. Interstate Commerce—Sale of Property Already in State.—The test applied to determine whether • personal property sold is to be regarded as belonging to interstate or to intrastate commerce is whether or not the property which is the subject of the sale is within the jurisdiction of the State at the time the sale is made. If it is, then it is an intrastate transaction, and subject to State regulation.</p>

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

<p>1. Appeal and Error—Award After Final Decree-—Pleading—Reference in Brief.-—An award made under a submission subsequent to a final decree in a cause cannot be relied upon in this count when introduced for the first time in the form of a “reply brief.”</p> <p>2. Equity Jurisdiction—Fraudulent Conveyances.—A court of equity has jurisdiction of a bill by a creditor to clear away conveyances made by a husband, with the active participation of his wife, in order to hinder, delay and defraud his creditors.</p> <p>3. Contracts—Maturity—Right to Sue—Promise to Pay After Another Debt is Paid—Fraud.—A promise to pay a debt when a certain other specified debt is paid is a promise to pay when the specified debt ought to have been paid, or at its maturity. The debtor has no right to postpone the fulfillment of his obligation by refusing and neglecting to pay the specified debt. Such a refusal, while possessing ample ability to pay, is a fraud on the rights of his creditors.</p> <p>4. Equity—Mistake—Evidence Required—Negligence.—Equity will not relieve against a mistake unless the mistake is established by the clearest and most satisfactory evidence. It is not sufficient to show a possibility or even a probability of a mistake. Furthermore, the party complaining must have exercised reasonable diligence in discovering the mistake. If he had within his reach the means of ascertaining the true state of facts, and, without being induced by the other party, neglected to avail himself of his opportunities of information, relief will not be granted.</p>

<p>1. New Trial&emdash;Verdict Contrary to Evidence&emdash;Conflicting Evidence&emdash; Province of Jury.&emdash;It is tbe province of tbe jury to pass on tbe credibility of witnesses and the weight to be given to their testi-mony. If there are conflicts or discrepancies in the evidence it is the jury’s duty to reconcile them if possible, and if not, they may credit the witness or witnesses who in their opinion are best entitled to it. If there is evidence sufficient to support the verdict, it will not, as a rule, be set aside.</p> <p>2. Excessive Verdict&emdash;Personal Injury.&emdash;A verdict for $1,400 in a per-sonal injury case will not be set aside as excessive where it appears that the plaintiff was thrown violently to the ground, his nose was broken, his hands and face scratched and scarred, and that he was detained in a hospital two weeks, or more. The amount of damages is not so great as to evince prejudice, par-tiality or corruption on the part of the jury, or that they were misled by some mistaken view of the case. Unless this be true, ■ the verdict in such a case cannot be set aside as excessive.</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. Defendant assigns error.</p>

<p>1. Municipal Corporations—Defective Sidewalks—Negligence of Pedestrian.—Municipal corporations, while not insurers of the safety of their streets and sidewalks, must exercise reasonable care to keep them in a safe condition for travel in the ordinary modes, and are liable in damages for their failure so to do to one, who while traveling and exercising ordinary care, is injured by reason of their negligence. But to render the municipality liable the plaintiff should have been using reasonable or ordinary care to avoid the accident.</p> <p>2. Municipal Corporations—Sidewalks—Safe Condition—Presumption —Knowledge of Defects—Case at Bar.—A person using a street or sidewalk in the ordinary manner has the right, in the absence of knowledge to the contrary, to assume that the street or sidewalk is in a reasonably safe condition, and is not, as a matter of law, required to be on the lookout for defects or obstructions, but where he has knowledge of the defective condition of the streets or sidewalks, and especially when he is not using them in the manner in which they are ordinarily used, or intended to be used, he cannot of course assume that they are in an ordinarily good condition, and act upon that assumption. In the case at bar the plaintiff knew of the defective condition of the sidewalks generally, though not specially at the place of accident, and did not use reasonable oare and diligence for her own protection in the use made of the sidewalk, and hence cannot recover.</p>

<p>1. Contracts—Ambiguous language—Practical Construction.—-Where the language of a contract is ambiguous, the practical construe- „ tion placed upon it by the parties is entitled to great consideration, especially when the data for any other construction is not at hand and cannot be procured.</p> <p>2. Appeal and Error—Commissioner’s Report—Exceptions.—Objections to the report of a commissioner in chancery, on account of errors not apparent on its face, cannot be made for the first time in the appellate court.</p> <p>3. Appeal and Error—Commissioner’s Report—Conflict of Evidence. Where the evidence is conflicting, the findings of a commissioner in chancery on a question of fact approved by the trial court, will not be disturbed on appeal unless they are clearly wrong.</p> <p>4. Contracts—Performance—Acceptance of Worlc.—Although work is not completed in all respects according to contract, objection cannot be made on that account if the work was accepted as in fulfillment of the contract.</p> <p>5. Contracts-—Time of Performance—Extension.—Changes made as to work to be done after a contract is entered into, which require more work, entitle the contractor to more time in which to do it.</p>

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

<p>1. Automobiles—Fright of Horse—Negligence.—The owner of an automobile who is running his machine in a careful manner, at a slow rate of speed, along a city street thronged with travelers and vehicles, and keeping a lookout to avoid accidents, is not liable for an injury inflicted by a horse taking fright thereat, when he was not aware of any danger from said fright until his machine had reached a point opposite to or had passed the horse’s head, and then deemed it less dangerous to pass on than to stop, and when the horse was in charge of three ablebodied men, and there was nothing in its behavior to lead him to suppose that it would become unmanageable.</p> <p>2. Automobiles—Fright of Horse—Emergency—Negligence of Plaintiff. It is reasonable to presume that the fright of a horse will be increased by stopping an automobile just opposite to him, rather than by passing on by; and if the driver of the machine passes on he is not responsible for the damages inflicted by the horse where the emergency in which he was placed was oceassioned by the imprudence of the plaintiff in undertaking to hitch the horse, which was “automobile shy,” to a buck-board, in a crowded street, when there were other suitable places to hitch him in the immediate vicinity,</p> <p>3. Negligence—Burden of Proof—Degree of Evidence—Verdict.—The burden of proving actionable negligence is primarily upon the plaintiff, who must establish it by affirmative evidence showing more than a mere probability of a negligent act. Its existence cannot be left entirely to conjecture, and the tentative conclusions of juries based upon no sure grounds of inference cannot be upheld. This doctrine is not in conflict with the rule that the verdict of a jury on a question of negligence ought not to be disturbed where the evidence is such that reasonable men may fairly differ as to whether or not there was such negligence.</p>

<p>1. Appeal and Error—Record—Parties—Effect of Former Decrees.— Upon an appeal to this court, the case must be heard and determined upon the record considered and passed upon in the trial court, and hence an agreement between counsel for the respective parties that, in order to determine the rights of all parties interested in the funds in the cause, it shall be heard and determined in this court as if certain persons who were not parties in the trial court were parties to the record, must be ignored. Nor will an agreement between counsel, as to the effect of a former decree entered in the cause, be considered.</p> <p>2. Insane Persons—Action for Support—Liability at Common Law. The right of action against the estate of a lunatic for passed expenses incurred in supporting him in one of the State’s hospitals exists only by the statute imposing a personal liability for such support. At common law no such right existed, in the absence of express contract.</p> <p>3. Insane Persons—Action for Support—Remedy Withdrawn by Act of 1908.—The purpose and intent of the act of Assembly approved March 16, 1908 (Acts 1908, p. 687), was to declare that thereafter no claim, not reduced to judgment, for the maintenance and support of insane persons committed, before or after the passage of the act, to an insane asylum or hospital of the State, should be collected. The plain intent of the legislature was to deal alike with all citizens of the State committed to either of the several hospitals established for their care and comfort, and to put them all in the same class; and while the language of the act imports future operation and effect, it destroys the remedy for the recovery of such claim, deals fully with the subject, and expressly repeals all former acts or parts of acts in conflict therewith.</p> <p>4. Actions Given by Statute—Effect of Repeal of Statute.—A right of action that did not exist at common law, but depends solely upon statute, falls with the repeal of the statute, without a saving clause, unless reduced to judgment. If pending such action, before judgment, the law which gave the right to sue is repealed, without a saving clause as to pending suits, no further steps towards judgment can be taken in such suits.</p> <p>5. Statutes—Construction—Exemptions.—A' statute exempting property from levy or sale is not to be construed strictly, but to carry out the obvious intent- of the lawmaker.</p> <p>6. Statutes—Repeal by Implication—Support of Insane Persons in State Hospitals—Aci of 1906 Repealed by Act of 1908.—Where a later statute was plainly intended to embrace the whole legislation on the subject to which it refers, and to be wholly substituted for all former statutes on the same subject, it is a legislative declaration that whatever is embraced in it shall prevail, and whatever is excluded is discarded and repealed. In the case at bar the act of 1908 was intended to cover the whole subject of recovery of claims for the support of lunatics confined in the State hospitals and to repeal the act of March 10, 1906 (Acts 1906, page 189), on the same subject.</p>

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

<p>1. Railboads—Nuisance—Absence of Negligence.—A declaration which sets out a nuisance committed by a railroad company in its private capacity states a good cause of action, though no negligence be charged.</p> <p>2. Railboads—Nuisance—Firing Up Engines—Site—Negligence.—While it is necessary for a railroad company to fire up and clean its engines for the purpose of performing its public functions, yet, in selecting its site for doing such work, it is acting in its private capacity, and not in the performance of its public functions, and is liable, as a rule, for a nuisance resulting therefrom, even though the nuisance is not negligently caused.</p> <p>3. Railboads—Nuisance—Terminal Yards—Injury to Neighbors.—Although it may be difficulty for a railroad company to find a suitable site for a permanent terminal yard on which it may do the necessary preparation of its engines for use, if it is held liable for damages to individuals who may complain of a private nuisance created th'ereby, still the law gives a remedy to every citizen for the wrongs he may sustain, even though inflicted by forces which constitute' factors in the material development and growth of the country, and this remedy it is the duty of the courts to enforce.</p> <p>4. Nuisance—Damages—Damnum Absque Injuria.—A loss resulting from a lawful act done without negligence is damnum absque injuria, but a nuisance is unlawful and, however carefully maintained, the party maintaining it is liable for the resulting injury to others.</p> <p>5. Nuisance—Legislative Authority.—The fact that a person or corporation has authority from the legislature or a municipality to do certain acts does not give the right to do such acts in a way constituting an unnecessary nuisance.</p>

<p>1. Nuisance—Evidence—Opinion—Statement of Facts.—Upon a complaint that a roundhouse of a railroad company and the short tracks adjacent thereto, are a private nuisance, a witness who is thoroughly familiar with the company’s property, the necessity for roundhouse facilities and the convenience of the location for the same, may testify as to the necessity for the use made by the company of its roundhouse and the short tracks adjacent thereto. This is a statement of facts.</p> <p>2. Witnesses—Objection to Question—Subsequent Admission of Same Question—Waiver.—An objection to a question propounded to a witness will be deemed to have been waived, where subsequently, in the examination of the witness, practically the same question was permitted to be asked and answered without objection.</p> <p>3. Trespass on Real Property—Wilfulness—Negligence—Failure to ■ Prove Wilfulness—Surplusage in Declaration.—Neither wilfulness nor negligence is necessary to make a trespass on real estate a tort, and when the owner brings his action therefor alleging that it was done wilfully and unnecessarily, and the proof fails to sustain this allegation, the owner is still entitled to recover actual damages on proof of the unintentional trespass. The words “wilfully and unnecessarily” may he stricken from the declaration as mere surplusage, without impairing the plaintiff’s pleading in the matter of setting out a good cause of action.</p> <p>4. Nuisance—Injury to Property—Negligence.—If, in an action to recover damages for a private nuisance, the plaintiff proves the existence of the nuisance causing injury to his property, it is immaterial whether the nuisance was created or operated negligently or not.</p> <p>5. Appeal and Error—Instructions—Jury Fully Instructed—Rulings on Other Instructions.—If the jury were fully and fairly instructed on the whole case so that they could not have been misled by the instructions, it is unnecessary for this court to consider the propriety of the rulings of the trial court on other instructions tendered and refused.</p> <p>6. Vebdicts—Evidence to Support.—The verdict of a jury should not be set aside when the evidence before the jury was ample to sustain their finding.</p>

<p>1. Damages—Stipulation for Liquidated Damages—Validity.—Parties to a contract may stipulate in advance for the payment of a sum certain as liquidated damages, in case of breach, where the damages are in their nature uncertain and unascertainable with exactness at the time the contract is made, and may be dependent upon extrinsic conditions and circumstances, and where the amount fixed is not on the face of the contract out of all proportion to the probable loss.</p> <p>2. Damages—Stipulation for Liquidated Damages—Estimated Rental Value.—A contract to pay ten dollars a day as liquidated damages for failure to complete, by a given time, a dwelling intended as a home for the owner, is not unconscionable or unreasonable, and will be upheld where the price of the house and lot amounted to seven thousand dollars, and there were special reasons why the owner desired to get into the dwelling at the time stipulated. The estimated rental value of the house and lot, under such circumstances, affords no just criterion for the measure of damages.</p>

<p>1. Sales—Warranty of Fitness—Negligent Use—Personal Injury— Damages.—Although the seller of a fuse may have warranted it to be fit for the purpose for which it was intended, and that no personal injury would be inflicted in consequence of any defect therein, still the right to recover for a personal injury inflicted on the purchaser in consequence of the use thereof is subject to the qualification that the purchaser must have used it in a reasonable, careful and proper manner, and that the damages sustained must have been such as might have been reasonably anticipated.</p> <p>2. Pleading—Declaration—Allegation of Negligence—Contributory Negligence—Case at Bar.—A declaration, after alleging that the plaintiff purchased of the defendant fifty feet of fuse which the defendant warranted to be suitable for the use for which it was intended, .averred that the plaintiff undertook to use the fuse in making a blast, and that when the fuse was first lighted in the ordinary way, and according to approved methods, it failed to fuse and smoke in the ordinary way; that supposing that the fuse had not taken fire, he undertook to light it a second time; that it again failed to show any sign of being lighted, as it should have done, and appeared to go out; whereupon the plaintiff supposing that the fuse had not taken fire, frazzled the end in the ordinary and customary way, and again applied the blaze, and again the fuse failed to respond; whereupon he again frazzled the end and applied the blaze the fourth time, and immediately upon the application of the blaze the explosion took place causing the injury of which the plaintiff complains. There was a demurrer to the declaration.</p> <p>Held: The conduct of the plaintiff in remaining by the fuse after he had applied fire to it precludes a recovery, and the demurrer to the declaration was, therefore, rightly sustained.</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. County Tbeasubeks—Commissions on County Levies—In computing the treasurer’s commissions for collecting and disbursing the country levy, the district school levy, and the road levy—the law on the subject being in doubt and uncertainty—-the several sums comprising these levies should be segregated and a commission allowed upon each of the several items for the years prior to the year 1.904, in accordance with the construction generally acted on by treasurers and acquiesced in by the public; but for the year 1904 and subsequent years, they should be aggregated as it is expressly provided by statute (section 1515, Code 1904) that “in computing the commissions for collecting and disbursing all sums levied for county, school, and district purposes, the amount shall be treated as one sum, and shall not be divided for the purpose of calculating the treasurer’s commissions.”</p>

<p>1. Statute op Fkauds&emdash;Sale of Standing Trees.&emdash;A contract for tbe sale of trees and tbeir immediate removal is a contract for the sale of personal property, and so is not within tbe statute of frauds.</p> <p>2. Evidence&emdash;Admissibility&emdash;Harmless Error&emdash;Sale of Standing Trees. Where, in an action to recover tbe price of standing trees sold by tbe plaintiff to tbe defendant, it is sufficient for tbe purpose of tbe plaintiff to show possession, tbe fact that tbe trial court permitted tbe plaintiff to offer in evidence a deed to himself from A, whereas, in a written agreement between tbe parties to tbe action it was stated that be claimed under B, was, at most, harmless error, where there was nothing in tbe bill of filed by tbe plaintiff which required tbe exclusion- of said deed.</p> <p>3. Pleading&emdash;Grounds of Defense&emdash;Amendment&emdash;Aeeident&emdash;Mistake. A motion to amend tbe statement of grounds of defense is addressed to tbe sound discretion of tbe court and should be allowed where any element of accident, surprise or renders it advisable to amend a pleading at trial, but it is properly refused where tbe new matter sought to be has been known to tbe parties from tbe beginning of tbe action, and they simply neglected to insert it. Defenses not embraced in tbe statement, nor otherwise set out in tbe cannot be made.</p> <p>4. Deeds&emdash;Error in Recording&emdash;What Passes to Grantee and His purchaser of tbe merchantable timber on a tract of land cannot successfully defend an action for tbe purchase price thereof by showing a prior recorded deed from bis vendor to another party conveying to him “the surface and timber” on tbe tract, when tbe vendor produces tbe deed showing that tbe conveyance was in fact of tbe surface and unmerchantable -timber, and that by mistake in transcrib-ing tbe deed on tbe deed book tbe word “merchantable” bad been substituted for “unmerchantable.” The deed as executed and delivered shows what was actually conveyed, regardless of the error in recording, and the grantee therein did not take, and hence could not convey to another the merchantable timber on said tract.</p> <p>5. Sale oe Standing Teees—Possession of Vendor—Statute of Frauds. A purchaser of standing trees, under a verbal contract, from one in possession thereof, who enters upon the land, cuts down the trees, carries them away and sells them, is bound to his vendor for the purchase price agreed to be paid therefor.</p>

<p>1. Pleading&emdash;Joint Action of Tort&emdash;Verdict Against One Defendant&emdash; Silence as to Another.&emdash;In a joint action of tort against master and servant, a verdict against the master, making no mention of the servant, is equivalent to a verdict in favor of the servant.</p> <p>2. Verdicts&emdash;Set Aside by Court of its Own Motion.&emdash;It is entirely competent for the court, of its own motion, in a proper case, to set aside the verdict of a jury.</p> <p>3. Joint Action oe Tort&emdash;Dismissal as to One Defendant&emdash;Master and Servant&emdash;Case at Bar.&emdash;In a joint action of tort against master and servant, after a verdict against the master and in favor of the servant has been set aside, although the evidence disclosed no negligence on the part of the master except that imputed on account of the negligence of the servant, it is entirely compe-tent for the plaintiff to dismiss the action as to the servant, as he might in the first instance have sued either or both of them.</p> <p>4. Pleading'&emdash;Arrest of Judgment&emdash;When it Lies&emdash;Case at Bar&emdash;Master and Servant.-&emdash;A motion in arrest of judgment lies only for error apparent on the face of the record. If a declaration against master and servant for the negligent killing of intestate charges negligence on the part of both defendants, and there is a verdict against the master only, and it appears solely from the evidence certified that the servant alone was this is not error apparent on the face of record, and hence a motion in arrest of judgment on this ground should be overruled.</p> <p>5. Pleading&emdash;Judgment Non Obstante&emdash;When Given&emdash;Case at Bar&emdash; Master and Servant.&emdash;A motion for a judgment non obstante is made in cases where, after a pleading by the adversary in and avoidance, and issue joined thereon and verdict for the adversary, the unsuccessful party, on retrospective of the record, conceives that such pleading was bad in substance and might have been the subject of demurrer on that ground. It will not be granted on the motion of the master in an action of case against master and servant where the trial is had on the general issue of not guilty, although the verdict is against the master alone, and the evidence shows that the servant only was guilty.</p> <p>6. Pleading—Joint Tort—Dismissal as to One Defendant—Effect.—If, in an action of tort against two defendants, a verdict in favor of •one and against the other be set aside, and subsequently the action be dismissed as to one of the defendants, the case against the other defendant stands upon the record as though he alone had been sued.</p>

Bill filed by Jesse Jackson for partition of real estate descended from his father. Exceptions were filed to the report of commissioners making partition by the complainant and several of the defendants. These exceptions were overruled, and the ex-ceptors appeal.

<p>1. Appeal and Error&emdash;Grounds of Defense&emdash;Refusal to Require&emdash;When Harmless.&emdash;Where it is manifest that the plaintiff was not hindered or prejudiced in any way by the refusal of the trial court to require the defendant to state his grounds of defense to an action of ejectment, the judgment will not be reversed on that account, as the error, if any, was harmless.</p> <p>2. Ejectment&emdash;Color of Title&emdash;Condemnation Proceedings&emdash;Adverse Possession&emdash;Parties.&emdash;The record of condemnation proceedings, though defective, may, after final judgment therein, be in evidence in an action of ejectment for the purpose of showing color of title, to be followed by proof that the and those under whom he claims have been in the actual and adversary possession of the premises for the period by law. It is immaterial that neither the plaintiff nor those under whom he claims were parties to the condemna-tion proceedings.</p> <p>3. Ejectment&emdash;Color of Title&emdash;Record in Condemnation Proceedings&emdash; Final Judgment Therein.&emdash;The filing of a petition to condemn land and the entry of an order appointing commissioners to ascertain the damages are not alone sufficient to constitute color of title which, if held adversely for the statutory period, will ripen into good title. There must, in addition, be a final of the court fixing the amount of the compensation, and the payment of the same to the parties entitled thereto, or into court. Then for the first time does the record furnish color of title.</p> <p>4. Coloe oe Title&emdash;What Constitutes.&emdash;Color of title is that which in appearance is title, but which in reality is no title at all. It is that which is apparently good title, but which, by reason of some defect not appearing on its face, does not in fact amount to title.</p>

<p>1. Vendor and Purchaser—Sale 6y the Acre—Presumption.—Courts of equity do not favor contracts of hazard, ;and every sale of real estate where the quantity is referred to in the contract, and the language of the contract does not plainly indicate that the sale was intended to be a sale in gross, is presumed to be a sale by the acre. The presumption against contracts of hazard can be-effectually repelled only by clear and cogent proof, and the burden is always upon the party asserting a contract of hazard to clearly establish the assertion.</p> <p>2. Vendor and Purchaser—Contracts of Hazard—Sale by the Acre— Presumption—Case in Judgment.—Where parties contract for the payment of a gross sum for a tract of land upon the estimate of a given quantity, the presumption is that the quantity influenced the price, and that the agreement was not one of hazard. Whether it be a contract for a sale in gross or by the. acre depends on the intention of the parties to be gathered from the language of the contract and the surrounding facts', and circumstances, but the court will always construe it to be a contract for a sale by the acre, unless the contrary clearly appears. The evidence in this case shows a sale by the acre,, and that both parties were in good faith mistaken as to the. quantity actually in the tract.</p> <p>3. Vendor and Purchaser—Sale of Land—Deficiency—More or Less— Case in Judgment.—The language “more or less” used in contracts for the salé of land must be understood to apply only to small excesses or deficiencies attributable to variations of instruments of surveyors, etc. The use of these terms repels the idea of a contract of hazard and implies that there is no considerable difference in quantity. A deficiency of ten acres in a tract of land represented as containing two hundred and forty-five and one-fourth acres is not the small deficiency attributable to a variation of instruments.</p> <p>4. Vendor and ' Purchaser—Deficiency in Quantity of Land—Laches in Asserting Claim.—There was no laches on the part of the purchaser, in the case in judgment, in asserting his claim for an abatement of the purchase price for land sold by the acre. He did so promptly on discovering the shortage. The suit in which the land was sold was still pending, all the parties were before the court, and a large part of the purchase money was still unpaid.</p> <p>5. Vendor and Purchaser—Sale of Land—Deficiency—Mistake—Rights of Infants.—The principle upon which courts of equity grant relief in cases of deficiency in the estimated quantity upon the sale of lands is that of mistake, and is as applicable where the rights of infants are involved as in other cases. An infant is as much bound as an adult by the decree of a court of equity which has jurisdiction of the subject matter and parties to the litigation.</p> <p>6. Vendor and Purchaser—Deficiency in Quality of Land—Measure of Damages.—The general rule of compensation or abatement for a deficiency in the quantity of a tract of land sold by the acre is according to the average value per acre of the whole tract, unless particular circumstances require a departure from that rule.</p>

<p>1. Corporations—Charter Powers—Express and Implied.—What is fairly implied in the charter of a corporation is as much granted as what is expressed, but the charter still remains the measure of the powers of a corporation, and the enumeration of these powers implies the exclusion of all others.</p> <p>2. Railroads—Exclusive Privileges—Ultra Vires Acts—Advertising.—In the absence of charter power, express or implied, or of power conferred by general law, a railroad company chartered and doing business as a common carrier of passengers and freight cannot grant to any one the exclusive privilege of placing advertisements on its box cars. A contract for such privilege is ultra vires and void, and, if still executory, will not be enforced, nor will damages be given for its breach.</p> <p>3. Conflict of Laws—Policy of Forum—Railroads—Preferences.—A contract made in another state which is opposed to the well defined public policy of this State, as disclosed by its statutes, will not be enforced in the courts of this State. A contract made in another state by which a common carrier gives to one person the exclusive right to place advertisements on its box cars, gives to such person an undue and unreasonable preference and advantage over others and is contrary to the public policy of this State, as declared by section 1294-c of Code (1904) and will not be enforced by its courts.</p>

<p>1. Tkial—Construction of Writings.—The construction of all written instruments adduced in evidence belongs exclusively to the court.</p> <p>2. Damages—Covenant of Seisin.—The measure of damages for the breach of a covenant of seisin, where nothing passes by the deed, is the consideration paid, with interest.</p> <p>3. Estoppel—Decree Against Grantee■—Notice to Grantor.—Where the grantor and grantee in a deed of conveyance are impleaded in the same suit to require them to restore to the plaintiff water rights previously granted to him by said grantor and subsequently diverted by said grantee, and the suit is dismissed as to the grantor on his motion and against the protest of the plaintiff, the grantor is estopped to deny the binding effect of the decree made against his grantee.</p> <p>4. Estoppel—Decree Against Covenantee—Notice to Covenantor—Res Judicata.—It is a common practice to give notice to one bound by a covenant of title of the pendency of a suit involving such title, to appear and defend; and if upon such notice he fails or refuses to do so, he is as much bound by the judgment or decree in the ease as if he had been formally impleaded.</p> <p>5. Pleading—Pleas Amounting to General Issue—Refusal to Reject. Pleas which amount to the general issue should, upon request, be rejected, though the failure to do so does not of itself constitute reversible error.</p>

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

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

<p>1. Appeal and Eebob&emdash;Conflicting Instructions&emdash;Harmless Error.&emdash;The doctrine of harmless error is seldom, if ever, applied to .instructions on a material point, as the court cannot tell whether the jury were guided by the correct or the incorrect instructions.</p> <p>2. Negligence&emdash;Independent Acts of Several&emdash;Apportionment of Tort Feasors.&emdash;Where there is neither community of interest, concert of action, common purpose or design, nor joint, concurrent negligence, but several concurring negligent causes, the effects of which are separable, due to independent authors, neither being sufficient to produce the entire loss, each of the several parties concerned is liable only for the injuries due to his negligence; and the fact that it is difficult to measure accurately the damage caused by each contributor to the result does not affect the rule, or mate any one liable for the acts of others. In such case there is no joint wrong, and hence there can be no joint action, nor in a single action can all the damage be assessed upon one tort feasor.</p> <p>3. Nuisance&emdash;Independent Acts of Several&emdash;Several Liability&emdash;Mining Operations.&emdash;If several mining companies, acting independently, cast their refuse into a stream thereby causing injury to a lower •riparian owner, each is liable only for the damage done by its acts, and not for the result of the acts of others.</p>

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

<p>Appeal from a decree of the Circuit Court of Augusta county in a suit in chancery in which appellants filed a petition for a rehearing, which was refused.</p>

<p>1. Res Judicata&emdash;Dismissal For Variance Between Allegation and Proof.&emdash;Where suit is brought to quiet the title to land alleged to have been acquired by adverse possession, and it is shown that the title was not so acquired, but, if acquired, it was by deed from certain of the defendants, and the suit is dismissed from the docket solely on that account, the effect of the order of dismissal is to leave the parties just where they were before the •suit was brought, with all rights then enjoyed by either party with respect to the deed unaffected and unimpaired by the suit. It is not a determination of the rights of the parties to the deed, and does not bar the grantees in the deed from setting it up against their grantor in a suit brought by him for the partition of the property conveyed.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, Tendered on a bill of review filed by the appellant. Decree for ■defendants. Complainant appeals.</p>

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

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

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

<p>1. Tax Sales—Deed From, Clerk—Recitals as Evidence.—The recitals in a deed from a clerk of a corporation court to a purchaser from the Commonwealth of land previously sold for delinquent taxes and purchased hy the Commonwealth and by it subsequently sold to such purchaser are at least prima facie correct under the terms of the statute, and are to be accepted as true in the absence of any evidence to the contrary. There is no douht as to the power of the legislature to make such recitals prima facie evidence.</p> <p>2. Tax Sales—Sale in County—Land Subsequently Taken Into City—• Where Application to Purchase to be Filed.—Where land lying in a county adjacent to <a city is returned delinquent for taxes and is sold and purchased hy the Commonwealth, and all the evidence of the various steps by which the title of the original owner was divested and placed in the Commonwealth is to he found in the clerk’s office of the county court of the county, hut subsequently the land is taken within the city limits pursuant to law, the application to purchase from the Commonwealth ■can only be made under the express terms of the statute, in the corporation court of the city wherein the land is situated, and not in the circuit court of the county wherein it was sold.</p> <p>3. Evidence—Authenticity of Paper—Stipulation of Counsel—Case at Bar.—The evidence in the case at bar sufficiently establishes the fact that a tax deed in the record which was objected to as not authentic, and as not evidence of the facts therein recited, was put in evidence on the trial under a stipulation of counsel that it might be introduced without preliminary proof that it was genuine and what it purported to be, ¡and that what was referred to the court was its legal effect.</p>

<p>Error to a judgment of the Circuit Court of Brunswick county refusing to correct an alleged erroneous assessment of standing trees. Petitioner assigns error.</p>

<p>Error to a judgment of tlie Circuit Court of Henrico county in an action of assumpsit. Judgment for the plaintiffs. assigns error.</p>

<p>1. Instructions&emdash;Evidence to Support&emdash;Case at Bar&emdash;■Accidental Death &emdash;Freedom of Decedent from, Fault.&emdash;Where, in an action for wrongful death, there is ample evidence to support the theory that the death of plaintiff’s intestate wias purely accidental, and not the result of the defendant’s negligence, an which tells the jury they must find for the if they believe from the evidence that the decedent came to his death as the result of a mere accident, although he was himself free from fault, should be given. To add to such instruction: If the accident was "not caused in any manner by the defendant’s fault or negligence” is calculated to confuse and mislead the jury, if not to defeat the purpose of the instruction.</p> <p>2. Negligence&emdash;Probabilities.&emdash;If it is just as probable that an injury on a plaintiff was purely accidental as that it was inflicted through the negligence of the defendant, the verdict should be for the defendant.</p> <p>3. Pleading&emdash;Allegation and Proof&emdash;Evidence.&emdash;The proof in a cause must correspond with the allegations of the pleadings. A plaintiff cannot allege one set of facts in his declaration, and recover upon proof of an entirely different set of facts.</p> <p>4. Instructions&emdash;Partial View of Evidence&emdash;Directing Verdhct&emdash;Contributory Negligence.&emdash;Where the contributory negligence of the plaintiff is relied on as a defense to an action of tort, and the evidence tends to support that view of the case, it is error to the jury to find for the plaintiff if they believe that the was negligent, ignoring entirely the contributory of the plaintiff. An instruction, especially one directing a verdict for the plaintiff or the defendant, which is based upon a partial view of the evidence is erroneous, and should not be given.</p> <p>5. Instructions&emdash;Contradiction&emdash;Verdicts.&emdash;If contradictory are given on a material point in a case, the verdict of the jury should be set aside, as it cannot be said whether the jury were controlled by the one or the other.</p> <p>6. Instructions—Directing Verdict—Relative Duties of Both Parties. In an action of tort, where the contributory negligence of the plaintiff is relied upon as a defense, it is the better practice that instructions which lay down the law as to the duty of the defendant should not conclude with a direction to find for the plaintiff unless they also contain a statement of the corresponding duty of the plaintiff to exercise reasonable care for his own safety.</p> <p>7. Evidence—Experts—Opinions—When Not Admissible.—Generally the opinions of witnesses are inadmissible in evidence. Witnesses can testify to facts only, and not to opinions or conclusions based on facts. If all the relevant facts can be, or have been, introduced before the jury, and they are able to deduce a reasonable inference from them, no reason exists for receiving opinion evidence, and it is inadmissible.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, affirming a judgment of the police justice, imposing a fine on the plaintiff in error.</p>

<p>1. Death by Wrongful Act—Evidence—Pecuniary Condition of Plaintiff.—In an action for death by wrongful act or neglect, evidence of the pecuniary condition of the deceased at the time of his death is inadmissible. Such evidence is calculated to excite the sympathy of the jury, and, if received, is presumed to have wrongfully affected the verdict.</p> <p>2. Master and Servant—Railroads—Personal Injury—Instructions— Partial View of Evidence.—Where an employee of a railroad company is killed in a tunnel rendered so dark by the smoke from a passing train that a lantern would cast a light only a few feet, an instruction which points out with particularity the care and precautions owing by the company, but ignores the duty that rested upon the decedent to exercise a higher degree of care for his own safety than under ordinary conditions, is erroneous and should not be given.</p> <p>3. Master and Servant—Mutual Duty of Care—Ordinary Work.—An employee working in a tunnel from time to time filled with smoke from passing trains is engaged in work which is ordinary as regards the relation of employer and employee to each other, and the one is as much required to exercise care commensurate with the danger of the situation, as the other.</p> <p>4. Master and Servant—Instructions—Evidence to Support.—An instruction defining the duty of one who has placed another in a position of peril is clearly erroneous where there is no evidence which proves or tends to prove that the injured party was placed in .a position of peril by any act of commission or omission on the part of the person sought to be held liable for the injury.</p> <p>5. Master and Servant—Negligence—Contributory Negligence—Ignorance of Danger.-—A plaintiff cannot recover if he is guilty of negligence proximately contributing to the injury of which he complains, although the danger to which he was exposed was not so plain and clear that he was necessarily at fault in not apprehending it. Negligence may he independent of danger.</p> <p>6. Death by Wrongful Act-^-Elements of Damage.—In an action by a widow to recover for the wrongful death of her husband the jury may, in addition to the pecuniary loss sustained by her, add compensation for the loss of his care, attention and society, and also such further sum as they may deem fair and just by way of solace and comfort to her for the sorrow, suffering and mental anguish occasioned to her by his death.</p> <p>7. Master and Servant—Railroads—Warnings—Customary Warnings— Reasonable Precautions.—Where, in an action against a railroad company to recover for the death of an employee alleged to have been occasioned by the failure to give proper warning of the approach of one of its trains through a tunnel filled with smoke, the company asks an instruction that the jury shall find for the defendant if they believe that certain designated warnings were given, and these were the usual and customary warnings, it is not error for the court to add “and were in themselves reasonable precautions under all circumstances and facts of this case to be taken for the safety of employees working in the tunnel.”</p> <p>8. Instructions—Jury Fully Instructed.—It is not error to refuse to instruct on a point already sufficiently covered by other correct instructions given in the case.</p> <p>9. Death by Wrongful Act—Avoiding Injury—Conduct of Prudent Persons—Instructions.—Where an instruction tells the jury they must find for the defendant, if they believe the plaintiff’s intestate would have avoided injury if he had adopted a designated course of conduct, it is not error for the trial court to add “and that a reasonably prudent person, under the facts and circumstances of this case, would and should have done so.”</p>

<p>1. Electricity—Uninsulated Wires—Injury to Third Persons.—It is the duty of a company maintaining wires carrying a high voltage of electricity to keep them perfectly insulated at places where others have the right to go for work, business or pleasure, and to exercise the utmost care to keep them safe at such places; and the fact that it is expensive or inconvenient to so insulate them is immaterial. The relation of master and servant need not exist between the company and the party.</p> <p>2. Electricity—Contact With Wires—Contributory Negligence.—One who, in the course of his employment, is brought into close proximity with electrical wires, is not guilty of contributory negligence by coming in contact therewith, unless done unnecessarily, or without proper precautions for his safety. And when the wires, if properly insulated, would not be a source of danger, such person is only bound to look for patent defects, and not for latent defects. A person who touches an electric wire, from which the insulation is worn off, if he does it in ignorance of the nature and condition of the wire, is not negligent.</p> <p>3. Pleading—Contributory Negligence of Plaintiff.—In an action to recover for personal injuries, it is not necessary in this State for the plaintiff to negative his own contributory negligence in his declaration.</p> <p>4. Instructions—Different Theories—Sow Presented.—It is not error to give an instruction which states only the plaintiff’s theory of a ease, where other instructions given for the defendant fully state his theory, and the jury are told that the instructions given in the case are the instructions of the court, and must all be read together.</p> <p>5. Appeal and Error—Disputed Facts—Verdicts.—A plaintiff in error stands as a demurrant to the evidence, and where the questions of fact involved are so seriously controverted that reasonable men might honestly differ in their conclusions, the verdict of the jury must be upheld.</p>

<p>Error to a judgment of the 'Corporation Court of the city of Norfolk on a petition to correct an erroneous assessment. Judgment for the petitioner. Commonwealth assigns error.</p>

<p>1. Wills—Child—Descendants—Defeasible Fee—Case m Judgment.—A testatrix bequeathed property to her two grandsons, A and B, to be equally divided between them, “and if either of my grandsons' should die leaving no child or descendants surviving him, the share he receives under this will is to go to his surviving brother, and if both of my grandsons die, leaving no child or descendants surviving them, then the whole of what is herein given shall be equally divided between” my children. A died without issue. B is still living and has living children.</p> <p>Held: The words “child” and “descendants,” in the connection here used, are not words of purchase, creating an estate in the class designated, but are words of limitation, which serve to limit or describe the estate given. A and B each took defeasible fees. Upon the death of A without issue, the estate given to him passed to B, subject to the same condition. In no event can the children of B take anything under the will of the testatrix. If they survive their father his defeasible fee is converted into a fee simple, which, if undisposed of, they will take by inheritance from their father, but not by purchaser under the will of the testatrix. If, however, B is not survived by any child or descendant, the estate will pass under the ulterior limitation to the children of the testatrix. Pettyjohn v. Woodruff, 77 Va. 507, criticised.</p> <p>2. Wills—“Dying Without Heirs”—Code, sec. 2422—Perpetuities.—The purpose of the statute (Code, sec. 2422) construing the phrase “dying without heirs” and similar expressions is to effectuate the intention of the testator by rendering valid a limitation which would have been otherwise invalid as violative of the rule against ' perpetuities. Since January 1, 1820, words which had previously been construed to mean an indefinite failure of issue are now construed to mean a definite failure of issue, and the limitations founded thereon are no longer void for remoteness.</p>

<p>1. Equity Pleading&emdash;Dismissal of Bill&emdash;Effect on Cross-Bill.&emdash;Dismissal of an original bill does not necessarily carry with it the If the cross-bill is defensive merely, dismissal of the bill dismisses the cross-bill, but where the plaintiff in the cross-bill has equities arising out of the subject matter of the original bill which entitle him to affirmative relief of which he would be deprived by the dismissal of his bill, a court of equity will treat the cross-bill as in the nature of an original bill and retain it, and grant the relief to which the plaintiff may be To do otherwise would manifestly sacrifice substance to form.</p> <p>2. Insubance&emdash;Restrictive Provisions of Policy&emdash;Size of Type.&emdash;Under the terms of the statute (Code, sec. 3252) an insurance company cannot defeat recovery on a policy by reliance upon conditions or restrictive provisions thereof not printed in type of the size by the statute, nor written with pen and ink in or on the policy.</p> <p>3. Insubance&emdash;Forfeiture&emdash;Restrictive Provisions of Policy&emdash;Size of Type&emdash;Inequitable Claim of Assured.&emdash;Where an insurance is seeking to escape liability for the surrender value of its policy on the ground that the policy was not surrendered witnin the time prescribed by a provision of the policy, it is not for the beneficiary, while claiming the surrender value under that same provision, to insist that the time limit fixed by the provision shall be excluded because not printed in type of the required size nor written with pen and ink in or on the policy. This is not a violation of the maxim that “he who seeks equity, must do equity.”</p>

<p>1. Appeal and Error—Issue Out of Chancery—When Ordered.—Where a charge of fraud is involved, and the evidence is Conflicting, and involves the credibility of witnesses, and the proof is not sufficiently definite and certain to satisfy this court that the ends of justice have been obtained by the decree of the trial court, it will reverse the decree and remand the cause for the trial of an issue out of chancery to determine the matter in controversy.</p> <p>2. Guts—Burden of Proof—Issue Out of Chancery.—Where a suit in chancery is brought by an executor to recover the possession of bonds of his testator in the hands of one who claims them as a gift from the testator in his lifetime, and an issue out of chancery is ordered to ascertain whether or not there was a completed gift, and whether the testator was induced to make the gift by fraud or undue influence, the burden of proof is on the claimant of the bonds to show that he holds them by virtue of a completed gift made in good faith.</p>

<p>1. Evidence—Contract in Writing—Parol Evidence to Vary—Incompleteness.—Where the correspondence between parties shows the entire contract between them, no reference being made therein to any oral negotiations which were to be considered as entering into and forming a part of the contract, parol evidence will not be received to vary or altar the terms of such contract. The written contract cannot be proved to be incomplete by going outside and proving that there was an oral stipulation entered into and not embodied in the written contract.</p> <p>2. Evidence—Extension of CredAt—Inquiry as to Financial Rating. Where the defendant has undertaken to show that the plaintiff had not, in the first instance, extended credit to him but had •to another, it is permissible for the plaintiff to show that, pending the original negotiations, he enquired into the financial rating of the defendant. Such evidence is admissible to show that the plaintiff was relying-on the defendant’s credit and ability to pay, and not upon the credit or ability of another.</p> <p>3. Contracts—Release—Novation—Intent—Question for Jury.—Instructions.—Whether or not the taking by the plaintiff of the notes of a third party for a debt due the plaintiff by the defendant was a release of the defendant from liability was a question of intent to be determined by the jury from all the evidence in the case, but if there was no evidence sufficient to show such intent, an instruction which told the jury they, must find for the plaintiff unless they believed that he had accepted the third person as his debtor, and had agreed to release the defendant from liability for the debt, was not prejudicial to the defendant.</p>

<p>1. Instructions—Referring Questions of Law to the Jury.—It is error for the trial judge to refer to the jury the determination of a question of law raised by a hypothetical case stated in an instruction.</p> <p>2. Here Insurance—1Iron Safe Clause—Inventory—General Footings Without Items.—General footings of the value of each line of goods in a stock, taken from an itemized statement (not produced) of all of each line of such goods, without showing the items or their values, is not such a complete itemized inventory of the stock of goods on hand as is required by the “iron safe clause” of the fire insurance policy sued on in this action.</p> <p>3. Fire Insurance—Iron Safe Clause—Account Books—Bank Book.—A bank book in which is credited to the assured (a mercantile firm) all money collected during the existence of a policy of insurance, whether from accounts made prior to the inventory or for cash sales thereafter, moneys collected by one of the' assured from a separate business, and moneys given to the assured by persons who desired him to give checks for their use, does not constitute a book showing clearly and plainly such a complete record of all sales and shipments, both for cash and credit, as is required by the “iron safe clause” of the fire insurance policy sued on in this action.</p>

Decree for the defendant. Complainant appeals. The paper sought to he annulled in this case as a forgery purported to be a deed duly signed and acknowledged by the grantor, and attested by a witness. In fact, the grantor employed a colored attoméy to write the deed, and verbally authorized the subscribing witness to sign his name thereto when written.

<p>Error to a judgment of the Hustings Court of tlie city of Richmond -on a motion to correct an erroneous assessment for taxes. Judgment for the defendant. Petitioner assigns error.</p>

<p>1. Taxation&emdash;City of Richmond.&emdash;The City of Richmond has plenary powers of taxation upon all property and subjects assessed with State taxes against persons residing therein; hence this case is ruled by Myers v. Commonwealth, ante, p. 600.</p>

<p>1. Railroads&emdash;Negligence&emdash;Persons on Track,&emdash;Trespasser&emdash;Infants&emdash; Misrepresentation as to Age.&emdash;A railroad company is liable for an injury inflicted upon one on its track, even though he were a trespasser, if, after it discovered his peril, or had such notice thereof as would put a reasonably prudent man on the alert to discover the same and avert the injury, it failed to do all within its power, consistent with its other duties, to avoid inflicting an injury upon him. The fact that the plaintiff was an infant and obtained employment with defendant through misrepresentation as to his age would not relieve the defendant from liability for an injury inflicted under such circumstances.</p> <p>2. Railroads&emdash;Negligence&emdash;Employee Asleep on Track&emdash;Contributory Negligence.-&emdash;Although an employee of a railroad company may have been on duty for forty-eight consecutive hours, it is none the less contributory negligence on his part to fall asleep on a railroad track in daily use. His folly, or misfortune, however, would not excuse the railroad company in inflicting an injury upon him if it knew, or, by the exercise of reasonable care after it was put on notice, could have known, the peril in which he stood. In the case at bar the evidence does not establish neg-ligence on the part of the railway company.</p> <p>3. Evidence&emdash;Experiments&emdash;Negligence.&emdash;It is impossible by tests sub-sequent to an accident, however faithfully they may be executed, to reproduce conditions as they actually existed. The mental attitude of the actors who know the positions of parties and what is to be expected is wholly different, and the case at last must be determined upon the evidence of the witnesses who were present upon the occasion of the accident, and who testify as to what they saw and heard of the actual occurrence.</p> <p>4. Railroads—Negligence—Sudden Emergency.—An engineer of a rapidly moving engine who shuts off steam and applies his air brakes immediately when confronted with a sudden emergency, cannot be said to be guilty of negligence because he did not also use sand to stop his train. He has to deal with small fractions of time, and cannot act with deliberation.</p> <p>5. Verdicts—Evidence—Inferences From Opinion of Witness—Case at Bar.—The jury, in the case at bar, would not have been warranted in exonerating the plaintiff’s intestate from the consequences of his gross contributory negligence by reason of the inferences drawn from the opinion of a witness who 'appears to have been in error as to the most essential condition upon which that opinion was predicated.</p>

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

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

<p>1. Bills of Exception—Time of Filing—Record Evidence—Code, Section 3385—Mandatory Provisions.—Section 3385 of tbe Code, with reference to filing bills of exception, is mandatory, and unless tbe record shows affirmatively that bills of exception were signed in accordance with its provisions they do not constitute part of the record. The clerk has no authority to make them a part of the record, nor does the mere copying by him of unauthenticated bills have that effect. Where time has been given beyond the ■ term for filing a bill of exception, the record must show affirmatively that it was filed within the time limited. In the case at bar, the record is silent as to which, if any, of the statutory requirements have been complied with, and the bills are not dated, and cannot be considered as parts of the record.</p> <p>2. Bills of Exception—Record Evidence of Signing—Parol Evidence— Insertions 6y Cleric.—While the statute declares that as soon as a bill of exception is signed by the judge it “shall be a part of the record of the case,” still it must appear from the record itself when the bill of exception was signed and thereby made a part of the record. That fact cannot be made, to depend upon parol evidence. Neither parol evidence, nor custom, nor long practice in a particular court will avail to add to or take from the record as made under the supervision of the trial judge. A statement by the clerk which is no part of the final order in a cause and not authorized by the trial judge, but which is inserted by him in making up the record for this court that “the bills of exception referred to in the foregoing order are in the words and figures following, to-wit” is no part of the record.</p> <p>3. Bills of Exception—Jurisdiction to Sign—Record Evidence.—The record itself must show the jurisdiction of the trial court, which is merely statutory, to sign bills of exception and make them a part of the record, and parol evidence is insufficient to show these facts.</p>

<p>1. Partnership—Advance to Member by Firm—Action at Law Not Maintainable.—Prior to the 'settlement of the partnership affairs, an action at law will not lie upon a note given by one member of the firm to the firm for an advance made to him by the firm, though he subsequently sold his interest in the firm to another partner, and the firm was thereafter dissolved, and the note held by the assignee, in liquidation, of the other members of the firm, and the action brought by the assignee in his own name. The debt is not an individual debt due by the partner to the firm, but is a mere item in the partnership account.</p> <p>2. Bes Judicata—Partnership—Firm Assets—Note of Partner.—The fact that an injunction obtained by a member of a dissolved firm against the prosecution of an action at law by the assignee of the firm, on a note given by him to the firm, was subsequently dissolved and his bill dismissed does not establish the fact that the note was a partnership asset of the old firm, with respect to which there had been no settlement.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke on a proceeding by mandamus. Judgment for the petitioner. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of the city of in an action of assumpsit. Judgment for the defendant.0 Plaintiff assigns error.</p>

<p>1. Railroads—Personal Injury—Contributory Negligence.—One who deliberately stands upon a railroad track in front of a rapidly approaching train, in plain view, and is struck by the train, is guilty of such contributory negligence as bars recovery.</p> <p>2. Negligence—Risk to Save Life—Imminent Peril—Negligence of Defendant.—The right of one person voluntarily to risk his life or safety to rescue another from imminent danger caused by the negligence of another involves two propositions—first, the party to be rescued must be in imminent danger; and, second, that peril must have been caused by the negligence of that other. Furthermore, to hold that other liable, the person to be rescued must have been, at the time of the attempted rescue, in a place of imminent danger caused by the negligence of the defendant, in order to excuse the contributory negligence of the rescuer.</p> <p>3. Railroads—Sounding Whistles—Knowledge of Danger.—A plaintiff cannot complain of the failure of the servants of a railroad company to sound the whistle of an engine if he has all the knowledge he would have had if the whistle had been sounded. The purpose of sounding the whistle is to give warning of an approaching train to those who are ignorant of its approach.</p> <p>4. Railroads—Persons Approaching Track—Presumption.—A railroad company cannot be held liable for the failure of its engineer to anticipate that a person approaching a crossing is going to step upon the track immediately in front of a rapidly moving train, unless there is something to suggest to the engineer that such person does not intend to remain in a place of safety. He has ■the right to assume that the person is in possession of his faculties, and will retain his place of safety.</p> <p>5. Railroads—Signal to Stop—Remaining on Track—Personal Injury. A signal to stop, given by a stranger, to a train which is under no obligation to stop, is no warning to the engineer that a person in a place of safety is going to step on the track immediately in front of the train, and the apprehension that he may do so cannot justify the person giving the signal in remaining on the track until struck by the oncoming train.</p> <p>6. Negligence—Risk to Save Life—Self-Imposed Peril.—The attempted rescue of one from a self-imposed peril by stepping onto a railroad track immediately in front of a rapidly approaching train, cannot excuse the negligence of the rescuer in remaining on the track till struck by the train.</p> <p>7. Carriers—Passenger—Care For His Own Safety.—A passenger is bound to exercise ordinary care for his own safety.</p> <p>8. Negligence—How Pleaded—Wilful Injury.—Negligence is a conclusion of law from facts sufficiently pleaded. It is not sufficient to charge that the plaintiff was wilfully and wantonly injured. The facts relied on to establish the wilful and wanton negligence for which the defendant is to be held liable must be stated with reasonable certainty.</p>

<p>1. Logs- and Logging—Standing Trees—Conveyance—Time of Removal —Reasonable Time—Case in Judgment.—The owner of land conveyed to a manufacturing company all the pine timber standing upon the land that would measure twelve inches in diameter across the stump at the time of cutting, with the right, for a period of five years from the date of the deed, to cut and remove the same, and, if not cut and removed within said time, the further right to extend the time for cutting and removing for such further time as the grantee might desire, upon payment of interest at six per cent, per annum upon the price agreed to be paid for trees.</p> <p>Meld: 1. It was not the intention of the parties to give an absolute and unconditional title to the timber, but only such as was cut and removed within the time limited by the deed, and such extensions thereof as the grantee was entitled to demand upon a fair construction of the deed, or as might be agreed upon by the parties.</p> <p>2. The grantee has not a wholly indefinite period in which to cut and remove the timber which it has purchased, but must cut and remove it within a reasonable time after the expiration of the fixed period.</p> <p>3. The question of what is reasonable time is one of fact dependent on. the circumstances of each case. The rights of the grantor are not to be measured by the convenience or inconvenience, the ability or inability of the grantee, caused by and resulting from the magnitude and extent of its business, and its numerous other contracts to which the grantor is a stranger. In the ease at bar, one year from the certification of the decree of this court to the circuit court is a reasonable time.</p>

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

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

<p>1. Attachments—Non-residents—Soldiers in Service—Residents on Land Ceded to United States—Right of State to Serve Process.— A person born and domiciled in another State, who comes to Portress Monroe (which is within the territorial limits of this State, but under the exclusive jurisdiction of the United States), for the purpose of enlisting in the army, and enlists and remains an enlisted soldier of the United States, does not thereby acquire a residence in this State so as to defeat the right of a creditor to attach his property in this State on the ground that he is a non-resident. The mere fact that the State has the right to serve process, civil and criminal, in the territory ceded to the United States does not affect the personal status of one resident in such territory. The power to serve process on the defendant is not the test of the right to issue an attachment against him as a non-resident.</p> <p>2. United States—Ceded Territory—Jurisdiction Over Residents— Service of Process of State.—The reservation, in the deed of cession of land from this State to the United States, of the right to serve civil and criminal process of the State in the territory ceded does not interfere in any way with the supremacy of the United States over the territory ceded, but is permitted to prevent it from becoming an asylum for fugitives from justice. Such territory is no longer a part of the State, nor subject to the jurisdiction of its courts. Persons residing there are not citizens of Virginia.</p>

<p>1. Survival of Actions—Personal Injuries—Common Law Buie— Death by Wrongful Act—Virginia Statute.—At common law personal actions died with the person and could not be revived either by or against the personal representative, and this rule has not been altered in-this State in respect of an injury done to the person. Such an action still dies with the person, and no right of action for such an injury survives to his personal representative. The right of action given by the Virginia statute for death by wrongful act is not a survival action, but an independent right of action created, and not merely continued, by the statute.</p> <p>2. Death by Wrongful Act—Death of Wrongdoer Before Victim— Code, Sections 2902, 2903, 2906.—If a party inflicts a mortal wound on another and then dies before his victim, no action lies in favor of the representative of the victim against the representative of the wrongdoer, either at common law or in Virginia. Immediately upon the infliction of the wound there came into being a right of action at common law against the wrongdoer, but this perished with the death of the victim, and did not survive to his personal representative. The new right of action given by the statute to the personal representative of the victim did not come into being until his death, but, when that occurred, the right of action had been lost because of the death of the wrongdoer, which occurred before the right of action accrued which was called into being by the statute. Sections 2902 and 2903 of the Code did not give any right of action for a personal tort against the personal representative of one who was dead at the time the right accrued, but only against a living wrongdoer, and it is only the right of action under these sections which' section 2906 declares shall not determine by the death of the defendant.</p> <p>3. Common Law—Change by Statute.—The common law is the law of this State and remains in force except so far as it is changed by statute.</p>

<p>Appeal from a decree of the Gireuit Court of Rockingham county on a demurrer to a petition filed in the cause of Cline v. Blakemore. Decree for defendants. Petitioners appeal.</p>

<p>1. Vebdicts—Conflicting Evidence—Discrepancies.—The verdict of a jury will not he set aside if there is evidence sufficient to sustain it, although there may be conflicts and discrepancies in the oral testimony of the prevailing party. It is the province of the jury to reconcile these, if possible, and if not to give credence to the witness or witnesses who, in their judgment, are best entitled to it.</p> <p>2. New Trial—Conflicting Evidence—Verdict Conclusive.—Where the evidence on a material question in a case is conflicting, the verdict of the jury is conclusive on the court on a motion for a new trial.</p> <p>3. Instructions—Negligence and Contributory Neglience—Conflicting Evidence.—Where, in a personal injury case, the evidence is conflicting both as to the negligence of the defendant and the contributory negligence of the plaintiff, it is proper to instruct the jury on each of the points.</p> <p>4. Master and Servant—Safe Appliances—Evidence—Railroads.—The fact that the engine which inflicted the injury complained of passed several times over a particular portion of a railway track on the morning of the accident, without injury to the engine, track or crew, is a circumstance to be considered in determining whether or not the engine, or the roadway or track was in a reasonably safe condition for the use of employees of the company, but is not conclusive evidence of that fact.</p> <p>5. Appeal and Error—Improper Evidence—Harmless Error.—The answer of a witness which shows that he has no knowledge on the subject of inquiry, if error, is harmless.</p>

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

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

<p>Error to a judgment of the Hustings ¡Court of the city of Richmond, affirming a judgment of the police justice imposing a fine on the plaintiff in error.</p>

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

<p>' Appeal from a decree of the Circuit Court of Elizabeth City-county. Decree for the complainant. Defendants appeal.</p>

<p>Error to a judgment of the Corporation Court of the city of Charlottesville in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Statute op Frauds—Objections After Verdict■—Waiver—Appeal.—It is too late, after verdict, to object that the contract sued on was proved by parol testimony when the statute of frauds required it to be in writing. The failure to object at the proper time is a waiver of the statute, and the case must be heard and determined in the appellate court upon the same evidence upon which it was heard and determined in the trial court.</p> <p>2. Evidence—Inadmissibility—Offering Same Evidence—Waiver.—If a party objects to the introduction of evidence which is admitted, and afterwards introduces the same evidence himself, it is not ground for reversing the judgment, although the evidence objected to was incompetent.</p> <p>3. Guaranty—Consideration.—Furnishing money to a third person at the instance of one who guarantees its payment is a sufficient consideration for the guaranty.</p> <p>4. Evidence—Order of Introduction—Objection—Waiver.—An exception to the action of the court in refusing to admit a letter in evidence at a particular stage of a case, but with notice that it may be offered later, is waived by a failure to offer the letter at a later stage of the proceedings. The order of introduction of evidence lies largely in the discretion of the trial court, whose ruling will not be reversed save in very exceptional cases</p> <p>5. Evidence—Admissibility—Self-Serving Declarations.—A letter which is self-serving and written after all dealings between the plaintiff and the defendant have terminated is properly rejected as evidence.</p>

<p>Appeal from a decree of tike Circuit Court of Franklin county. From an adverse decree the creditors of the first class and their counsel, and T. W. Miller, who filed a petition in the cause, appeal.</p>

<p>Error to a judgment of the Circuit Court of the city of Ror.folk, in an action of detinue. Judgment for the defendants. Plaintiff assigns error.</p>

<p>1. Sale of Chattels&emdash;Reservation of Title or Lien&emdash;Description of Chattels.&emdash;The memorandum required to be docketed under section 2462 of the Code, on a conditional sale of, or reservation of a lien upon, chattels, in order to operate as constructive notice to subsequent purchasers and creditors, must contain such a description of said chattels as will enable such purchasers and creditors, by examination of the records, to obtain actual notice of all the rights which were intended to be created or conferred by the instrument docketed. An instrument which leaves the designation of the specific property resting exclusively in the minds of the parties fails to meet the fundamental and requirements of the' registry law. The description of property cannot be arrived at by applying the testimony of the parties to the descriptive matter in the deed. Such evidence is not in aid of something which requires explanation, but is supplying something which is entirely wanting.</p>

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

<p>1. Debt&emdash;When Action of Lies.&emdash;An action of debt will only lie for the recovery of a certain sum of money, due by a certain and express agreement.</p> <p>2. Declaration&emdash;Contingent Liability&emdash;Necessary Averments.&emdash;In an action on a contract to pay money when certain designated lots are sold and the purchase money therefor realized, it is necessary to allege in the declaration and to prove not only that the lots have been sold and conveyed, but when the sale and conveyance was made, and that the purchase money therefor has been real-ized, and when.</p> <p>3. Appeal and Error&emdash;Reversal&emdash;Leave to Amend Declaration&emdash;Effect of Amendment&emdash;Case at Bar.&emdash;Where the judgment in an action at law has been reversed by this court and cause remanded, with liberty to the plaintiff to amend his declaration, and he has amended it, it will be- presumed that he made, in his amended . declaration, the strongest presentation of his case that the facts would permit, and, on a second writ of error calling in question the sufficiency of the declaration as amended, if it is not sufficient this court will render such judgment as the trial court ought to have rendered sustaining the demurrer to the de-claration, and will enter up final judgment for the defendant. But under the facts of the case at bar, this judgment will be without prejudice to the right of the plaintiff to file a bill for the specific performance of the contract in suit, or to rescind the same and have the title to the lots mentioned in the contract, or such of them as remain unsold conveyed to him.</p>

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

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

<p>1. Notice for a Judgment—Must State a Case—Demurrer—Code, Section 3211.—In a proceeding by motion for a judgment under section 3211 of the Code the notice takes the place of the writ and the declaration in a regular action, and, while the notice is viewed with great indulgence by the courts, it must set out matter sufficient to maintain the action; and whether or not it does this is tested by a demurrer to the notice.</p> <p>2. Notice for a Judgment—Action Against Endorser—Allegation of Presentment and Notice—Demurrer—Bill of Particulars.—The notice of a motion for a judgment under section 3211 of the Code against the endorser of a negotiable note must contain such allegations of presentment for payment and notice of dishonor to the endorser as will fix a liability upon him for the payment of the note, else the notice will be bad upon demurrer. The defendant is not obliged to call for a bill of particulars in such case.</p> <p>3. Waiver—Implied Waiver—Case at Bar.—A waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights. In the case at bar the alleged waiver of notice to an endorser was made by one who was not entitled to receive the notice, and who had no authority whatever to make the waiver, even if his conduct could be construed to be such, and hence is not effective.</p>

<p>1. Railroads—Personal Injury—Persons Standing Near Traéis—Contributory Negligence—Concurrent Negligence.—A person who stands so- close to a railroad track at a station that he is struck by the projecting portions of a passing engine, which could have been seen for a thousand feet before reaching the station, is guilty of such negligence as bars recovery. If it be conceded that the engineer in charge was guilty of negligence, still it was as much the duty of the person injured to care for his own safety as it was of the railroad company to look out for and avoid injuring him, and the mutual and concurring negligence of the parties at the time of the injury would bar a recovery. There can he no recovery when the negligence of both parties is concurrent and operative at the time of the injury, and. contributes to it. It is not necessary that the negligence of the plaintiff should have caused the injury in order to bar his recovery. If it contributed proximately to it, he cannot recover.</p> <p>2. Railroads—Negligence—“Last Clear Chance”—Concurrent Negligence.—The doctrine of the “last clear chance” applies, notwithstanding the contributory negligence of a plaintiff, where the defendant knows, or by the exercise of ordinary care ought to know, of plaintiff’s danger, and it is obvious that he cannot extricate himself from it, and fails to do something which it has power to do to avoid the injury; or when the plaintiff is in some position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff cannot, and the defendant can, prevent the injury. The plaintiff must show that at some time, in view of the entire situation, including his own negligence, the defendant was thereafter culpably negligent and that such negligence was the latest in succession of causes. In such case the plaintiff’s negligence is not the proximate cause of the injury. But this doctrine has no application to a case where both parties are equally guilty of an identical duty, the consequences of which continue on the part of both to the moment of the injury, and proximately contribute thereto.</p> <p>3. Railboabs—Negligence—Proximate and Remote Cause.—"Where the negligence of the defendant is the proximate cause of an injury, and that of the plaintiff only the remote cause, the plaintiff may recover, notwithstanding his negligence, as the law regards the immediate and proximate cause which directly produces the injury, and not the remote cause which may have antecedently contributed to it.</p> <p>4. Railboabs—Persons on Track—Negligence of Railroad—Lookout— Proximate Cause.—If those in charge of a train, in discharge of their duty to keep a lookout, discover, or should have dis-1 covered, a person upon the track, and there be superadded any fact or circumstance brought home to their knowledge sufficient to put a reasonable man upon his guard, that the person upon ' the track pays no heed to his danger, and will take no step to secure his own safety, then the negligence of the person injured becomes the remote cause or mere condition of the ■ accident, and the negligence of the railroad company the proximate cause, and there may be recovery.</p>

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

<p>1. Contributory Negligence—Case at Bar—Electricity.—The evidence in the case at bar shows that the plaintiff’s intestate came to his death solely as the result of his own imprudence and lack of caution. He had been repeatedly warned of the dangers of the work in which he was engaged, and only a short time before his death he was warned of his close proximity to a heavily charged electric wire, and that if he straightened up he would come into contact with it and be killed, and yet in about a minute he raised up, came in contact with the wire and was instantly killed. Under such circumstances there can be no recovery against the company owning the wire. The law does not weigh or apportion the concurring negligence of a plaintiff and defendant, and even if a defendant has been negligent there can be no recovery by a plaintiff who has also been guilty of negligence proximately contributing to his injury.</p>

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

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

<p>1. Cabbiebs—Railroads—Passenger—Employee Riding on Trip Pass. An employee of a railroad company riding on a trip pass, between his home and place of business, furnished by the company is entitled to be treated as a passenger.</p> <p>.2. Cabbiebs—Railroads—Passenger Carried Beyond Station—Helpless Condition—Ejection—Care of Carrier.—A railroad company which has carried a passenger beyond his point of destination has the right to put him off, hut if it knows that he is in a helpless and irresponsible condition, although voluntarily imposed, it should not exercise its right of removal at a time or place, or under circumstances, where he will be exposed to great hazard. The company must exercise its right with due regard to the life and safety of such passenger. If a passenger who is known to be in a helpless condition, mentally .and physically, is removed from a train by the conductor and placed in charge of a station agent of the company, and the latter, knowing his condition and without effort to prevent it, permits him to wander off alone in a deep snow, when the weather is severe and night rapidly .approaching, and die of exposure, the company is liable.</p> <p>Z. Cabbiebs—Railroads—Helpless Passenger—Place of Ejection—Negligence.—A declaration which simply alleges that a passenger who had been carried beyond his destination, and who was mentally and physically incapable of caring for himself, was put off in the daytime, at a regular station where there was a depot, that he was not familiar with the place and that it was sparsely settled, but fails to aver that the weather was severely cold, or that the ground was covered with snow, or any fact showing that the character of the place was such as to make it dangerous, fails to show negligence on the part of the carrier, and is, therefore, bad on demurrer.</p>

<p>1. Navigable Waters—Riparian Owners—Lease of Land For Wharfs— Use For Other Purposes.—The lease of a parcel of land on the beach of a navigable river for the purpose of erecting thereon a steamboat wharf does not deprive the lessor of his riparian rights to any greater extent than is necessary to enable the lessee to erect the wharf and use it for the purposes for which it was built. Neither the lessee nor any person claiming under him has any right to erect, or to authorize any other person to erect, on the leased premises, or between low water mark and the line of navigability of said river, houses for carrying on, or to carry on any business not connected with that of conducting the wharf.</p> <p>2. Navigable Waters—Riparian Owners—Land Between Low Water and Line of Navigability—Title.—The title to the land between low water mark and the line of navigability of the public waters of this State is in the Commonwealth, but the riparian owner has a qualified right in the same land which is property and is valuable, and of which he cannot be deprived except in accordance with established law, and, if for a public use, upon due compensation.</p> <p>3. Navigable Waters—Riparian Owners—Consent to Buildings for Particular Purpose—Use for Other Purposes.—The consent of a riparian owner who has let a part of his land for the purposes of erecting a wharf thereon for the lessee to erect houses between low water mark and the line of navigability, for the purpose of “barreling oysters,” does not authorize the use of said houses for carrying on a mercantile business, nor does the assignment of said land to the lessee by the State for oyster planting purposes confer upon him any such right.</p>

<p>1. Intoxicating Liquoks—“Byrd Liquor Law”—Constitutionality— “Malt Beverages.”—The object of section 23% of the act of Assembly approved March 12, 1908, commonly dalled the “Byrd Liquor Law” was to regulate and control the sale and distribution of the by-products of the brewry commonly known as “malt beverage,” sometimes called “Small Brew’’ and “Near Beer.” The legislature clearly has the power to enact such a statute, as well under the comprehensive provisions of section 62 of the Constitution as under the general police powers of the State, and its provisions are not oppressive or unreasonable. Whether such a statute is wise and proper, or not, is a question for the legislature, and not for the courts to determine.</p> <p>2. Intoxicating Liquors—Sale—Regulation—Police Power.—The regulation of the sale of intoxicating liquors is completely within the police power of the State, and may be exercised in such manner as the legislature deem proper. It may be entirely prohibited, or such restraints may be placed as the legislature thinks wise, without supervision or control by the courts. If, for the purpose of preventing evasion, or the fostering of an .appetite for stronger liquors, the legislature deem it wise to forbid the sale of any alcoholic admixture, by whatever name it may be called, it has ample power to do so.</p> <p>3. Intoxicating Liquors—Sale—Regulation—Police Power—Constitutional Law.—The regulation of the sale of intoxicating liquors is a police regulation, and the power of the State over such regulations is supreme. Section 23% of the “Byrd Liquor Law” is not, therefore, in conflict with amendment fourteen of the Constitution of the United States, nor of any other provision of said Constitution.</p> <p>4. Constitutional Law—Statutes—Powers of Legislature.—The power of the legislature of the State is supreme except so far as it is restrained by the State or Federal Constitution, and even in ease of doubt as to the power, all doubts are to be resolved in favor of the existence of the power. The courts have no power to declare an act unconstitutional unless it is so clearly and plainly so that there can be no doubt on the subject.</p> <p>5. Constitutional Law—Glass Legislation—Byrd Liquor Lau>.—Section 23% of the “Byrd Liquor Law” is entirely consonant with the whole enactment, and is aimed at the regulation and control of the sale of intoxicating liquors, and its purpose was not to discriminate in favor of a few persons against the other members of the community.</p>

<p>1. Witnesses—Privilege—Self Incrimination—Limited Answer.—A witness may decline to answer any question when the answer may tend to incriminate him. This privilege is guaranteed to him by the Constitution. Nor is the right to decline to answer at all affected by the suggestion of the judge that he might answer yes or no, without giving any reason for his answer. .</p>

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

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

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

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

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