Volume 111 — Virginia Reports

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

<p>1 Cabecees—Injury to Passenger—Alighting from, Moving Train— Proximate Cause.—Although a railroad company may have been negligent in causing a passenger to enter the wrong train, and be responsible to him for whatever loss or damage he sustained which could have been reasonably expected to result from such negligence, if the passenger, upon his own responsibility and without the knowledge of the company of his situation, steps from the train while it is in motion and is thrown under it and injured, he cannot recover damages from the railroad company for the injury so inflicted, as his own conduct was the proximate cause of the injury complained of, even though the train was moving very slowly, and a person of ordinary care and prudence would not have apprehended any danger from alighting under like circumstances. For a discussion of what constitutes proximate cause, see opinion of Keith, P.</p> <p>2. Appeal and Ebkoe—Demurrer Overruled to Original and Amended Declarations—Reversal—Final Judgment for Defendant.—Where a demurrer to ia declaration has been overruled, and the plaintiff, of his own motion, has filed an amended declaration to which a demurrer was also overruled by the trial court, it will be presumed that the plaintiff has stated his case as strongly as the facts would warrant, and this court, upon sustaining the defendant’s demurrer to both declarations, will enter'up final judgment for the defendant.</p>

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

<p>1. State Corporation Commission—Powers Over Railroads—Public Duties—Joint Use of Stations.—The power given and. the duty imposed upon the State Corporation Commission by section 156 Ob) of the Constitution refer to all matters relating to the performance of the public duties of transporation and transmission companies, but the use by one railroad company of the station and terminal facilities of another railroad company is not a public duty owing by the latter to the former, or its patrons.</p> <p>2. State Corporation Commission-—Jurisdiction Over Railroads— Terminal Facilities—Superior Authority of Legislature—Constitution, Section 156 (b).—Under the provisions of section 156 (b) of the Constitution, the General Assembly has superior authority to the State Corporation Commission in the matter of regulating the use of the track and terminal facilities of one railroad company by another: and, it having declared (Code, 1904, section 1494c (4) ) that one railroad company shall not be required to give the use of its track and terminal facilities to another company engaged in a like business, the State Corporation Commission has no authority to require one company to grant such use to another. Nor is such power conferred by section 1313a (16) of the Code which simply affirms the constitutional power of the commission to require corporations to perform all public duties or requirements imposed upon them by the Constitution, or by law.</p> <p>3. Railroads—Sharing Stations—Constitution, Section 166.—The duty imposed by section 166 of the Constitution upon one railroad company to receive and transfer passengers, freight and cars, without delay or discrimination, from connecting railroads, does not require such company to share its tracks and station buildings with such connecting railroad.</p> <p>-4. State Corporation Commission — Jurisdiction—-Railroads—Sharing Terminal Facilities — Code, Section 1294c (4). — Under the terms of section 1294c (4) of the Code, the State Corporation Commission is prohibited from requiring one railroad company to grant the use of its track and terminal facilities to another company engaged in a like business.</p> <p>5. Statutes — Copying Foreign Statutes — Construction—Code, Section 1294c (4). — When one sovereignty enacts a statute similar to one previously in force in another jurisdiction, the latter enactment includes such construction as the courts have previously placed upon the statute thus copied, hence this court will place upon section 1294c (4) of the Code, which corresponds very closely with section 3, clause 2 of the Interstate Commerce Act, the same construction as has been heretofore placed by the Federal courts upon the latter act.</p> <p>6. Eminent Domain — How Conferred — Joint Use of Railroad Facilities. — The legislature of this State has not granted the power to one transportation company to condemn the right to jointly use the tracks and terminal facilities of another transportation company, and hence the power does not exist. The exercise of the right of eminent domain, being against common right, cannot be implied or inferred, but must be given in express terms, or by necessary implication.</p> <p>7. Railroads — Joint Stations — How Right Acquired. — The right to the joint use by two or more railroad companies of the station facilities of one of them can only be acquired by contract between the companies interested, which they alone can make.</p>

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

<p>Error to a judgment of the Circuit Court of Mecklenburg •county in an action of debt. Judgment for the defendant. Plaintiffs assign error.</p>

<p>1. Railroads—Trains—Unusual Hours—Negligence.—Tbe owner of a railway or tramway may run its locomotives tbereon at any time it pleases. The fact that it is running its locomotives at an unusual or unexpected hour is not negligence if it exercises reasonable care to give notice of their approach.</p> <p>2. Railroads—Trains—Absence of Headlight at Night—Other Warnings.—The mere failure to have a headlight on a locomotive at night, when not required by statute, is not negligence when other means, equally efficient, are used to give warning of its approach. In the case at bar, the other means were clearly sufficient.</p> <p>3. Negligence—Invitees—Duty of Owner of Premises.—The owner of premises is not an insurer of the safety of invitees. It is his duty to use ordinary care not to expose them to danger while exercising reasonable care for their own safety. In order to hold the owner liable for an injury occurring on his premises, it must have been the natural and probable result of the condition of the premises, and one which, under the circumstances, he ought reasonably to have foreseen might probably occur.</p> <p>4. Railroads—Personal Injury—Invitees.—An invitee on a railroad tract who is run over by a locomotive and killed at night, cannot recover of the company where it appears that at the point where he was killed the track was straight for more than a mile and the red hot end of the engine could be seen that far, and the whistle was sounded at four different points within a mile of the accident—once within two hundred yards and again within fifty yards of the scene of the accident. He was guilty of such contributory negligence as bars recovery by his representative whether he was walking on the track, or lying down on or near the track.</p> <p>5. Railroads — Personal Injury — Lade of Headlight at Night — Other Warnings — Last Olear Ohance — Invitees.—When the means used by a railroad company to warn persons on or near the track of the approach of a locomotive at night are sufficient for that purpose, the company does not owe such persons the duty of carrying a headlight on its locomotives. It is not the duty of the company to provide means not necessary for the running of its locomotives merely to enable it to protect persons on or near its track, even though they are invitees, from their own negligence while on its premises. The doctrine of the “last clear chance” is not applicable to such a situation; nor does the law impose such a duty upon the owner to an invitee upon his premises.</p> <p>6. Instructions — Directing Verdict — When Harmless. — While directing a verdict is not in accordance with the practice in this State, it is harmless error where it appears that no other verdict could have been properly rendered, and a judgment based thereon will not be reversed on that ground.</p>

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

<p>Appeal from a decree of the Circuit Court of Isle of Wight county. Decree for complainants. Defendant W. E. Johnson appeals.</p>

<p>1. New Trial — Misconduct of Juror — Knowledge of Fact Before Verdict — Waiver—Appeal and Error. — The verdict of a jury will not be set aside for misconduct of a juror known to counsel of the party objecting before the jury retired to consider of their verdict. A party cannot be permitted to lie by, after knowledge of a defect of this character, and speculate upon the result, and complain only when the verdict becomes unsatisfactory to him. The objection comes too late after verdict. It is deemed to have been waived, and it is error for the trial court to set aside a verdict for this cause.</p>

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

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

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

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

<p>1. Estoppel—Former Inconsistent Position—Eminent Domain—A. party who claims under the plaintiff' in a condemnation proceeding, recognizes its validity, and procures an injunction to prevent a deed of trust creditor from subjecting the land sought to be condemned to the payment of the debt secured until the right to condemn has been decided in the proceedings taken for that purpose, is thereafter estopped to deny the validity of the condemnation proceedings, or the right of the plaintiff therein to institute it. A litigant will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, which latter position is to the prejudice of the adverse party, where the parties are the same, and the same questions are involved.</p> <p>2. Appeabance—Special—General Appearance—What Constitutes.—An appearance for any other purpose than questioning the jurisdiction of the court because there was no service of process, or the process was defective, or the service thereof was defective, or the action was commenced in the wrong county, or the like, is general and not special, although accompanied by the claim that the appearance is only special. A motion to vacate proceedings in a cause, or to dismiss or discontinue it, because the plaintiff’s pleading does not state a cause of action, is equivalent or analagous to a demurrer, and amounts to a general appearance.</p> <p>3. Eminent Domain—Fail-use to Pay Damages—Vacation Ipso Facto of Proceedings Tinder 1105-/ of Code—Estoppel.—A party who alleges the pendency of a condemnation proceeding long after the expiration of three months from the filing of the report of commissioners fixing the damages, and after failure to pay such damages to the party entitled or into court, and who-obtains an injunction upon the ground of its pendency, restraining a deed of trust creditor from subjecting the property sought to be condemned to the satisfaction of the debts secured by the deed of trust, is estopped from claiming that the condemnation proceeding was ipso facto vacated and dismissed because the damages reported by the commissioners were not paid to the party entitled thereto, or into court, within three months after the report of the commissioners was filed, as was provided by-section 1105-f, clause 27, of the Code as it was prior to March 15, 1906.</p> <p>4. Eminent Domain — J-ust Compensation — Improvements Lawfully Made. — Where a corporation clothed with the power of eminent domain, lawfully enters into the possession of land for its purposes, and places improvements thereon, and afterwards institutes condemnation proceedings to cure a defective title, or to extinguish the lien of a deed of trust, it is not proper, in ascertaining a “just compensation,” for such land, to take into consideration the value of such improvements.</p> <p>5. Eminent Domain — Damages—Personal Judgment. — Whether the party seeking to condemn land is in or out of possession, the statutes of this State confer no authority upon the court to render a personal judgment against the condemning party for the amount of damages ascertained by the commissioners.</p> <p>6. Statutes — Construction—Application to Pending Cases. — Although the words of a statute are broad enough, in their literal extent, to comprehend existing cases, they must be construed as applicable only to eases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.</p> <p>7. Appear and Ebrob — Objections Not Made in Trial Court. — This court will not consider objections made to the report of commissioners in condemnation proceedings which were not made in the lower court.</p>

<p>.From the Circuit Court of Wise county.</p>

<p>1. Judgments — Office Judgments — Postponement of Trial try Con'sent — Waiver—When Judgment Becomes Final. — Where counsel for the plaintiff in an action on the office judgment docket, knowing that a case will be contested, requests that a later day during the term be set for the trial, and the court, with the consent of the attorney for the defendant who is present, sets the case for trial on a day subsequent to the fifteenth day of the term, on which day the office judgment would ordinarily have become final, such action by the court, with the consent of counsel on both sides, will prevent the office judgment from becoming final by operation of the statute, although no plea was filed; and it cannot thereafter become final until it is entered up as the judgment of the court. The object of the provision of "the statute as to when an office judgment shall become final, if no plea is entered, is to allow the plaintiff to have a judgment without unreasonable delay. The statute is for the benefit of the plaintiff, and he may waive it, if he chooses, and will be held to have waived it by an agreement to postpone the trial to a date subsequent to that at which the judgment would otherwise become final. Where the agreement is for .a postponement to a subsequent day of the term at which the office judgment would become final, the agreement need not be entered of record, as the record is in fieri, and the order may be entered at any time before final adjournment.</p>

<p>1. Master and Servant — Safe Place — Choice of Methods. — It is the duty of the master to use ordinary care to provide his servant a reasonably safe place in which to work, considering the character of the work to be done, and for an injury to the servant resulting from a failure so to do, the master is liable. But the right of selection among reasonably safe methods rests with the master. He is not required to adopt the newest and best, but he performs his duty if he adopts those which are reasonably safe.</p> <p>2. Railroads — Sidings—Construction—Constitutional and Statutory Provisions.■ — The location of a siding or switch for freight purposes (where the safety of passengers and the public is not involved) as to its curves and grades, is ordinarily an engineering question which a railway company is entitled to settle for itself, and it is error, therefore, to submit to a jury the question whether or not a railway company was negligent in the method it adopted in constructing such a siding. Nor is this question affected by the constitutional and statutory provisions of this State (Constitution, section 162; Code, 1904, section 1294-k). These provisions do not prevent railroad companies from constructing their switches in any manner they may prefer, which is reasonably safe, nor change the rule that any risk that is due merely to the character of the switch is one of the risks of the employment. The effect of those provisions was merely to abrogate the previously existing rule which forbade the servant’s recovery if he knowingly used defective machinery, and to declare that such knowledge, of itself, should not bar a recovery.</p> <p>3. Master and Servant — Railroads—XJse of Siding — Safe Methods— Usage of Business. — Where the evidence shows that the method adopted by the defendant railroad company of handling its cars on a. siding was a reasonably safe one, and had been used for many years without injury to anyone, and was in common use on railroads, it is error to submit to the jury, in an action for a personal injury to a servant, the question whether or not such method was a negligent one. The test of negligence in such cases is the usage of the business, and juries will not be allowed to set up a standard of their own to control the business of the country.</p> <p>•4. Master and Servant — Railroads—Negligence—Overloaded Gars— Defective Appliances. — Whether or not a car was dangerously overloaded, or its brakes were in a defective condition, and, if so, whether they were the proximate' cause of the injury complained of, are proper questions for the jury in an action for a personal injury to a servant, where there is evidence tending to prove those facts and that the overloading was,done with the knowledge and consent of the defendant company,</p> <p>b. Witnesses- — Credibility—Competency.—The fact that a witness for the plaintiff received more than his services in connection with the case were worth, and was to receive more if the plaintiff recovered, goes to his credibility and not to his competency.</p> <p>'6. Evidence — Partly Admissible — General Objection — Motion to Strilce Out. — The contention of the plaintiff being that a brake chain was in a defective condition, and a witness introduced by him having testified positively and clearly that one link in the chain was longer than the others, his evidence on this point was admissible as tending to prove the plaintiff’s contention and will not be stricken out on the motion of the defendant, although he testified upon other matters as to which he seems to have had but little knowledge. Where evidence is offered, a portion' of which is admissible and the other not, and the objection to it is general,- a motion to strike out should be overruled.</p>

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

<p>Error to a judgment of the Circuit Court of the city of Richmond in an action of trespass on the case. Judgment for the plaintiff against two of the defendants, to which the latter assign error.</p>

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

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

<p>1. Subrogation—Void Judicial Sale—Election to Take Land—Alienation—Right of Alienees to Purchase Money.—Where a contingent remainder in land has been sold under a void decree, and the proceeds deposited in court for future disposition, and the devisee of the purchaser has aliened a large -part of the land to various persons, upon the vesting of the remainder, the remainderman may elect to receive the sum so deposited and thereby accept the void decree and estop him from asserting any claim to the land, or he may decline to accept the fund and elect to take the land in specie. The effect of the former course would enure to the benefit of the alienees, and confirm their title to the land. The effect of the latter would oust the alienees of their title to the land, and entitle them to be subrogated to the rights of the remainderman in the fund deposited as aforesaid.</p> <p>2. Subrogation—Nature of.'—Subrogation is a creature of equity, and essential justice is its object. It does not flow from any fixed rule of law, but rather from principles of justice, equity and benevolence. It is a purely equitable result, depending like other equitable doctrines upon the facts and circumstances of each particular case to call it forth. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by him who in good conscience ought to pay it.</p> <p>3. Equity—Jurisdiction of Parties and Subject Matter—Complete Relief.—A court of equity, with all parties before it, and having control of a fund the ultimate destination of which is plainly in sight, will decree the fund to the parties ultimately entitled thereto, and will not relinquish the administration of the fund on the theory that it is an asset of an estate to the administration of which a personal representative before the court is exclusively entitled.</p>

<p>1. Damages—Estimated Profits—'When Recoverable.—A plaintiff will not ordinarily be allowed to recover estimated profits or gains, for it is generally conjectural whether there will be any. Profits, are not excluded from recovery because they are profits, but when excluded, it is because there are no criteria by which their amount can be ascertained ’ with reasonable certainty or definiteness. When profits or gains can be so proved, and their loss is the proximate result of the wrongful act complained of, they may be recovered.</p> <p>2. Damages—Estimated Profits—Pound Pishing—New Business.— Pound fishing in which a party has been engaged only one month is a new business, and the profits to be derived therefrom depend not only upon the future bargains and states of the market, but upon other contingencies, such as the run of the fish and the kind and quantity caught. Such profits are dependent upon too many contingencies and are too uncertain to furnish a safe guide in fixing the measure of damages for an injury to, or destruction of, such business, and hence cannot be recovered.</p> <p>3. Appeal and Eeeob—Eemurrer to Evidence—Reversal in Part.— Where a demurrer to evidence was wholly sustained by the trial court, and the jury found a gross sum for damages, but, on writ of error,- this court is of opinion that the demurrer should have been overruled as to certain items of account, the amount and value of which are readily ascertainable from the record, it will enter up final judgment for the demurree for the value of such items.</p>

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

<p>1. Easements—Private Right of Way—Prescription.—In order to establish a private right oí way over the lands of another by prescription, it must appear that the use and enjoyment thereof by the claimant was adverse under a claim of right, exclusive, continuous, uninterrupted and with the knowledge and acquiescence of the owner of the land over which it passes, and that such use has continued for a period of at least twenty years.</p> <p>2. • Easements—Private Right of Way—Origin Unknown—Presumption.—Where a way has been used openly, uninterruptedly, continuously and exclusively for a period of more than twenty years, the origin of the way not being shown, there is a prima facie presumption of a right ■ or grant from the long acquiescence of the party upon whose land the way is. When there has been such a use for more than twenty years the bona fieles of the claim of right is established, and the owner of the land over which the way passes must repel the presumption by showing permission or license from him or those under whom he claims, or denials or objections to such use made under circumstances that will rebut the presumption.</p> <p>3. Injunction—Obstructing Private Right of Way.—A mandatory injunction will be awarded to compel a party to reopen a private right of way which he has improperly closed.</p>

' Error to a judgment of the Law and Equity Court of the city of Richmond in an action of assumpsit. Judgment for the defendant. Plaintiff assigns error.

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

<p>1. Res Judicata—Second Controversy Over the Same Matters.—On the trial oí a second distress warrant tor rent between the same parties, for the same premises, and arising under the same contract, all defenses to the merits settled on the trial of the first warrant are concluded on the trial of the. second. Under the doctrine of res judicata a former judgment on the merits, rendered in an action between the same parties, is a bar to all matters of law uud fa«r v.'br--h were, or wiiich might heve been, properly put. in issue and. decided hy the previous judgment.</p> <p>2. Appeal and Error—Vase Heard by Trial Judge—Judgment of Same Weight as a Verdict.—Where all matters of law and fact arising in an action at law are heard and determined by the court, .without the intervention of a jury, and the evidence, and not the facts, is certified, the judgment of the trial court will be given the same weight as if it were the verdict of a jury. It will not be set aside if there is sufficient evidence to warrant the judgment.</p> <p>3. Landlord and Tenant—Abandonment of .Premises—Re-entry by Landlord.—Where a tenant has not surrendered the leased premises to the landlord, hut has abandoned them, and the landlord re-enters with the knowledge and consent of the tenant and for the purpose of minimizing his costs, this is not such an acceptance of a surrender by the landloard and a termination of the relation of landlord and tenant as will prevent a further liability of the tenant for rent.</p>

<p>1. Trade Marks — Biscuit Goods — Same Name on Different Glasses of Goods — Manufacturers of Different Names. — Although a corporation having a distinctive name and using certain general trade marks has acquired the exclusive right to use the word “Crown” on its soda cracker goods, and the word “Jamestown” on certain cakes of its manufacture known as ‘ drops,” it is no invasion of its trade marks for another corporation of a wholly different name, and using an entirely different trade mark, to use the word “Crown” as a grade symbol on “ginger snaps” of its manufacture, and the word “Jamestown” on cakes of its manufacture known as “jumbles”; a “jumble” being four or five times as large, and an essentially different cake from a “drop” and having-a hole in the center as large as the “drop” itself, and the several kinds of cakes being recognized in the trade as distinctive classes of goods. The words “Crown” and “Jamestown” are merely fanciful words and, standing alone, do not indicate “origin or manufacture,” though in association with other words they have that effect, and a trade mark may be claimed for the combination, and the right to their use as a trade mark is coextensive only with their use.</p> <p>2. Trade Marks — Similiarity—Injunction.—A defendant will not be enjoined from using certain trade marks on account of their similarity to those used by the plaintiff, when they are not so similar in appearance or in connection of the words, as to deceive a person of ordinary intelligence, using ordinary care.</p>

<p>1. Mortgages — Oral Evidence to Show Mortgage — Presumption.—A deed absolute on its face may be shown by oral evidence to have been intended as a mortgage. Such evidence is not confined to cases of fraud, accident or mistake. The presumption is that such a deed is what it purports to be, and oral evidence to show that it is a mortgage must be clear and convincing.</p> <p>2. Mortgages — Absolute Deed — Case in Judgment. — Whether a deed absolute on its face is to be regarded as a mortgage depends upon the circumstances under which it was made, and the relations and negotiations between the parties. In the case in judgment, the admissions of the grantee, the circumstances under which the deed was made, and the subsequent conduct of the parties, especially the collection of rents by the mortgagor for two years after the conveyance without .question on the part of the grantee, sufficiently show that the deed in question, although absolute on its face, was in fact a mortgage.</p>

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

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

<p>1. Equity — Bill of Review — After-Discovered Evidence — Gase in Judgment. — If a bill of review for after-discovered evidence is sworn to by the plaintiff, and tenders the affidavit of the witness who is to testify to the new matter, and it appears that the evidence is new and could not have been discovered by the use of ordinary dilligence in time for the former trial, and is relevant to the issues made by the pleading and such as, if true, ought to produce a different result on a rehearing of the case, it complies with the rule of practice of courts of chancery with respect to such bills, and leave should be granted to file it. In the case in judgment, prior to the hearing the witness declined to give any information on the subject although applied to by counsel for the complainant, but, after the decree was entered, furnished the affidavit filed with the bill of review.</p> <p>2. Fraud — Sale of Stocks — Misrepresentation as to Other Sales. — A sale of stock in a corporation, induced by fraudulent representations by the seller of other sales, at the same price, to designated influential and prosperous citizens of the same city as the purchaser, will be set aside at the instance of the purchaser who knew nothing of the existence of the company, or of the value of its stock.</p> <p>3. Equity — Discovery—Effect of Answer. — If a bill calls for an answer under oath, and an answer under oath responsive thereto is filed, it furnishes evidence for the defendant and will ¡be taken as true unless overcome by the testimony of two witnesses, or of one witness and corroborating circumstances, or by documentary evidence. This rule, however, is satisfied where a bill of review for after-discovered evidence is sworn to by the complainant and accompanied- by the affidavit of a witness that he will testify to the material allegations of the original bill.</p>

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

<p>1. Highways—Obstruction—Power of City to Glose Streets.—Public highways, whether they be in the country or in a city, belong, not partially, but entirely, to the public at large, and supreme control over them is vested in the legislature. Any unauthorized obstruction of them which unnecessarily impedes or in- ■ commodes their lawful use is a public nuisance at common law; and, in the absence of a grant from the General Assembly, a city ordinance which attempts to authorize such obstruction is a mere nullity.</p> <p>2. Dedication—Streets—Change of Width by Parties.'—Where land near a city has been laid off into lots and blocks, and a plat made and recorded showing streets and alleys of a designated width, with a view to selling off the lots for building purposes, but subsequently the scheme utterly fails, and the land is re-conveyed to the former owner in payment of a balance of purchase money, and a large portion of the land is rented out for agricultural purposes, and in the meantime a street which had been laid out thereon as seventy-five feet wide is fenced on its southern side by those interested as a street sixty-five feet wide, and the fence has been regarded and treated by the publif, and especially by those interested, as the southern boundary of the street, and the owner of the property has sold off a number of lots lying on the south side of said street, fronting thereon and running to the fence marking the southern line of said street, the fence will be treated as the southern boundary of the street, and the street as sixty-five feet wide instead of seventy-five as originally laid out.</p> <p>3. Dedication—Recording Map of Streets—Abandonment of Scheme— Unopened Streets.—The evidence in the case in judgment shows that the dedication of the streets in controversy by recording a map, if it was duly recorded, was never acted on by opening the streets, and as to the unopened streets it was inchoate merely and was abrogated by subsequent events.</p>

<p>1. Boundaries—Location—-Case in Judgment.—Upon the evidence touching the boundary line in controversy, it is held that the true location of the line is that claimed by the appellants.</p> <p>2. Adverse Possession—Possession by Mistake.—When the occupation of land is by a mere mistake, and with no intention on the part of the occupant to claim as his own land which does not belong to him, but intending to claim only to the true line, wherever it may be, the holding is not adverse.</p>

<p>1. Appeal and Error — Maturing Case — Sufficiency of Bond. — There is no error to the prejudice of the defendant in error in this case in the proceedings by which this writ of error has been matured for hearing, nor is the bond taken open to the objections alleged against it.</p> <p>2. Master and Servant — Assumption of Risk. — A servant, when he enters the service of the master, assumes all of the ordinary risks of such service, and also, as a general rule, all risks from causes which are known to him, or should be readily discern-able by a person of his age and capacity, in the exercise of ordinary care.</p> <p>3. Master and Servant — Obvious Dangers — Assumption of Risk. — • When an employee is not placed by his employer in a position of undisclosed danger, but is a mature man, doing the ordinary work which he has engaged to do and the risks of which are obvious to any one, he assumes the risk of the employment, and no negligence can be imputed to the employer for an accident to him therefrom.</p> <p>4. Instructions — Evidence to Support — Assumed Risk. — An instruction which correctly states the law of “assumed risk” and is applicable to the case, should be given where the evidence tends 'to establish the facts stated therein.</p>

<p>1. T.yxai'iox — Tax Sale — Redemption—Tender to Purchaser of Record —Conveyance to Third Person — Notice.—The purchaser of record of land sold for delinquent taxes is the only person to whom an offer by the owner to redeem can be made. If, upon tender to him of the proper amount and within the time required by law, he refuses it, the tender may be made to the clerk of the circuit court of the county whose officer sold the land. This is all that is required of the former owner by sections 650 and 651 of the Code, in order to redeem, and if the clerk refuses to receive the sum tendered, the purchaser cannot defeat the former owner’s right of redemption by having the land conveyed to a third person, although the latter was ignorant of the owner’s perfected right of redemption. The grantee in such a deed takes no higher or greater rights than the purchaser of record had.</p> <p>2. Taxation — Tax Sale — Redemption — Tender —• Refusal — Vacating Sale. — If, within the redemption time fixed by law, a purchaser at a tax sale refuses to receive from the owner of land the amount due for the redemption thereof, and a sufficient tender thereof is made to the proper clerk and refused by him, and he conveys the land to a third person at the request of the purchaser, upon a proper hill filed for that purpose by the owner of the land, a court of equity will vacate the deed so made as aforesaid, and permit the owner to redeem the land by paying the amount prescribed by the statute.</p>

<p>Appeal from, a decree of the Corporation Court of the City of Radford. Decree for defendant. Complainant appeals.</p>

<p>Appeal from a decree of the Circuit ('‘curt of Itussell county. Decree for complaintants. Defendants appeal.</p>

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

<p>1. Verdicts — Conflicting Evidence. — Where the evidence is conflicting on a particular phase of a case, the verdict of the jury is conclusive on that phase.</p> <p>2. Cabbiebs — Personal Injuries — Damages—Refusing to Submit to Treatment. — Where an injured passenger is attended by physicians of his own choosing as well as by those of the defendant company, and it is claimed by the defendant in an action to recover for such injuries that his injuries were aggravated by his refusal to submit to the treatment and follow the instructions of defendant’s physicians, it is proper for the trial court to instruct the jury that the plaintiff’s right of recovery for the aggravation of the injury could only be affected by his unreasonably refusing to submit to the treatment, or follow the instructions of physicians.</p> <p>3. Carriers — Injury to Passenger — Negligence—Burden of Proof.- — In an action by a passenger against a common carrier for personal injuries resulting from the collapse of a street railway bridge, proof of the accident raises a prima facie presumption of negligence, and shifts upon the defendant the burden of proving that it has not been guilty of negligence, and that the accident resulted from inevitable casualty, or some cause against which human care and foresight could not provide. Hence, upon proof of the accident, it is not error to instruct the jury that the slightest neglect against which human prudence and foresight might have guarded, and by reason of which the injury may have been occasioned, will render the carrier liable.</p>

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

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

<p>1. Lis Pendens — Docketing—Indexing Necessary — Code, Sec. 3566.- — ■ Section 3566 of the Code relating to the docketing of notice of a Us pendens is a remedial statute, and, in constructing it, there should be borne in mind the old law, the mischief intended to be remedied, and the remedy. In view of the old law as to pendente lite purchasers and the evil resulting to innocent purchasers, it is necessary that the memorandum provided for by section 3566 should not only be recorded, but also indexed in the manner provided for by that section. Indexing is ¡a necessary part of the docketing of the Us pendens„ and the docketing is incomplete until properly indexed.</p> <p>2. Bona Fide Purchaser — Notice—Bad Faith. — Notice to affect a subsequent purchaser or encumbrancer must be such as to affect his conscience. It may be either actual (direct and positive) or it may be circumstantial or presumptive. But it is not sufficient if it merely puts the party on enquiry. It must be clear and strong, and such as to fix upon- him the imputation of ibad faith. A mere suspicion of notice, even though it be a strong suspicion, is not sufficient.</p>

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

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

<p>1. Wills — Acceptance of Devise — Election—Intention.—A person who accepts a benefit under a will must accept the contents of the whole instrument, conforming to all its provisions, and relinquishing every right inconsistent therewith. But in order to make a case of election the intention of the testator to give that which is not his own must be clear and unmistakable. It must appear from his language which is unequivocal and which leaves no room for doubt as to the intention of the testator. It is not necessary that such intention should be expressly declared, but it may be gathered from the instrument as a whole and its several parts. The will, however, must be reasonably construed, even if by so doing the parties are put to an election.</p> <p>2. Wills — Election—Devise of Partial Interest to Go-owner. — -If a testator, having an undivided interest in a particular property, devises the property specifically (e.. g., the house and lot in which I live) to his co-owner, a case of election arises, and the devisee must elect between his own interest in the property and the interest given him by the will.</p> <p>3. Wills — Election—Evidence of Election. — -The proof of an election may be express, or it may be implied from the acts and conduct of the party, but in either case it must have been with knowledge of his rights and with the intention of making an election.</p> <p>4. Wills — Election—Effect—Ignorance of Law — Mistake of Fact — Where an election is once made by a party bound to elect, either expressly or impliedly, with full knowledge of all the facts, it binds him and those who claim under him, although made in ignorance of the law. Ignorance of law is no excuse for a party’s conduct. But the maxim that ignorance of the law is no excuse is confined to matters of the general rules of law, and has no application to the mistakes of persons as to their own private rights and interests. The latter stand on the footing of mistakes of fact.</p> <p>5. Wills — Election — Presumption from Conduct — Knowledge of Rights. — Where a party has elected to claim under an instrument under a misconception of fact, such election may not be binding. In order to presume an election from the conduct of a person, the person must be shown to have had full knowledge of all the requisite circumstances as to the amount of the different properties, his own rights in respect thereto, and the like; and a person having elected under a misconception is entitled to make a fresh election.</p> <p>6. Wills — Election—Possession of Both Properties. — Where a person bound to elect between two properties continues- in possession or enjoyment of both, or receipt of the rents and profits of both, without being called upon by the other party interested to elect, this conduct indicates no intention of taking one and rejecting the other, and does not therefore amount to an election.</p> <p>7. Wills — Election—Mistake of Fact — Reinstatement of Parties.— Where a party elects to take under a will under a misconception of fact as to his rights and interests under the will, such election will be disregarded where the other parties affected by such election can be placed substantially in the same situation as if no such election had been made.</p> <p>8. Wills — Renunciation try Widow — Election—Code, Section 2271.'— Section 2271 of the Code has no application to a case where a husband devises property belonging to his wife and makes provision for her by his will out of his own property, but was intended to provide how a widow must proceed who desires to reject the provision made for her by her husband’s will out of property other than her own, and to take such interest in "his lands as the law gives her.' Where a husband disposes of property belonging to his wife in her own right, and also makes provision for her by his will she has the same right of election as to such property as any other person, and whether or not she has elected to take under or against the will is to be determined as in other cases.</p>

The bill, among other things, prayed for an injunction against certain road commissioners of Giles county, to enjoin them from proceeding to hear the petition of certain persons (named as defendants) for a change in a road mentioned in the bill, or “doing any acts towards opening or changing the road through the lands of” complainants. Decree for the defendants. Complainants appeal.

<p>1. Costs—Obligation to Pay—Change of Attitude by Parties.—The bond mentioned in the proceedings whereby the obligor bound himself to pay all costs that might be decreed against the obligee in a designated suit was intended to cover all costs which at the time of the execution of the bond had been incurred by the obligee or might thereafter be incurred by him. in that suit while the attitude of the parties remained the same, but did not bind the obligor to pay cost when the other party became actively hostile to the obligor.</p> <p>2. Appeal and Error—Judgment of Appellate Court—Finality— Mandamus.—After a controversy has been settled by a decree of this court, and a rehearing of its decree refused, the questions involved cannot thereafter be reopened between the same parties, and mandamus from this court to the trial court to carry into effect the decree of this court is the proper remedy.</p>

<p>1. Wills — Legacies—Fund for Payment — When Chargeable on Beat Estate. — As a general rule tbe personal estate is not only tbe primary, but the only fund for the payment of legacies, and, if this proves insufficient, the real estate of the testator is not chargeable with their payment unless the testator has so-charged it either expressly or by clear and manifest implication. The intention to charge the real estate moist be either expressly declared or be clearly deducible from the language and dispositions of the will.</p> <p>2. Wills — Legacies■—Fund for Payment — Blending of Beal and Personal Estate — Besiduum—Case in Judgment. — Where the language of a will blends in a common mass real and personal estate, a charge upon the real estate in such residuum may arise by implication for the satisfaction of legacies previously given in the will, when such implication is not inconsistent with admissible extraneous circumstances, or other provisions-of the will itself. But this doctrine would not apply to a case-where the testator gave his executor no power over his real estate, and by the first clause of -his will gave to five nieces and nephews legacies of $1,000 each, to be paid with convenient speed after his death, and by the second clause' gave to-his widow and foster-child, to both of whom 'he was devotedly attached, “all the residue of my personal estate and real estate.”' Here there has been no such blending as will charge the real estate with the balance due on the legacies. The language and context of the will indicate that the testator believed that there would be a residue of personality, and there is no clear and manifest intention to charge the real estate.</p>

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

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

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

<p>1. Municipal Corporations—Officers—Railroad Employees as Councilmen—“Free Passes”—Constitution, Sec. 161.—An employee of a railroad company who receives a pass over the road as a part of tbe compensation for his services is not thereby rendered ineligible to the office of councilman in a city council by section 161 of the Constitution which declares that any officer' who accepts of a transportation or transmission company any frank or free pass shall thereby forfeit his office. A “free pass” is one not obtained by importunity or purchase; gratuitous; and a “frank,” as defined by section 153 of the Constitution, is “any writing or token issued by, or under authority of, a transmission company, entitling the holder to any service from such company free of charge.” The pass in this instance is neither a “free pass” nor a “frank” within the meaning of the Constitution.</p> <p>2. Officers—Servants of Corporations.—The legislature has not declared that servants of corporations may not become public officers,'and it is beyond the province of courts to do so.</p> <p>3. Quo Warranto—Effect of Expiration of Term.—Where the term of an officer expires pending a quo warranto proceeding to test his right to hold it, the proceeding will be dismissed.</p>

<p>1. Accident Insurance — Notice of Accident — When to he Given— Ignorance of Existence of Policy. — When the existence of an accident insurance policy is not known for several months after the death of the insured, and the beneficiary therein, as soon as the policy is found, gives notice to the company, then all has been done that could have been required under the circumstances, notwithstanding a forfeiture clause in the policy for failure to give notice within fifteen days after the accident. Compliance with the terms of a policy as to notice and proof of loss within a reasonable time after knowledge of its existence, under all the circumstances of the particular case, is all that is required.</p> <p>2. Accident Insurance — Denial of Liability — Proof of Loss — Waiver. —A distinct denial of any liability on an insurance policy and a refusal to pay on the ground that there is no liability, is a waiver of the condition of the policy requiring proof of loss.</p> <p>3. Accident Insurance — Application—False Statements — Warranty— Acts 1906, p. 139. — If, in an application for an accident insurance policy, the assured is asked to give the name, relationship and residence of the beneficiary, and he states that the beneficiary is his wife, and the parties agree that the answer shall constitute a warranty, and it turns out that she is not his wife, but a woman with whom he is living in illicit cohabitation, such false statement with respect to his relation to the beneficiary avoids the policy. The answer was material and untrue, and the case is not controlled by Acts 1906, p. 139, sec. 28.</p> <p>4. Accident Insurance — Appication—Relation of Beneficiary — False Statement — Warranty—Materiality—Right of Company to Determine. — Where an insurance company has, by its contract, fixed its estimate of the importance of a truthful answer to the question calling for tbe relation between tbe applicant and tbe proposed beneficiary of tbe policy, and tbe applicant bas accepted tbe test and agreed that bis answer shall constitute a warranty of tbe fact stated, it would be a violation of tbe legal rights of tbe company to take away its power to make its opinion tbe standard of what is material, and to leave that point to the determination of a jury.</p>

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

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

<p>1. Chesapeake and Ohio Railway Company — Title to Property— Abandonment of Navigation — Bights of Biparian Owners. — The Chesapeake and Ohio Railway Company is the fee-simple owner of the land in controversy, under condemnation proceedings had by its predecessor in title, for navigation purposes. For nearly seventy years, it and its predecessors in title have held title to the property, and during all these years that title has •never been doubted or drawn in question by the appellant, or any of his predecessors in title. The abandonment of North River for the purpose of navigation in the year 1881, and the application of appellee’s property to other uses authorized by statutes of this State did not cause the property rights once vested in its predecessors in title to revert to the riparian owners. The application of the property to different uses was authorized by statute.</p>

<p>1. Judgments — Collateral Attach. — The judgment of a court of general judisdiction rendered in a proceeding in which the court had jurisdiction of the subject matter and the parties cannot be collaterally assailed.</p> <p>2. Judgments — Confession by Agent — Collateral Attach. — The right and authority of the president of a corporation to confess a judgment in the name of the corporation cannot be collaterally assailed, as that question was of necessity determined by the . court in which the judgment was rendered.</p> <p>3. Fraud — Case in Judgment — Insufficient Proof. — In the case in judgment, a suit in equity was brought by the appellant to subordinate a judgment in favor of one of the appellees to the judgment of appellant,-, upon the ground that he had fraudulently induced appellant not to obtain his judgment at an earlier date, nor until after judgment had been confessed in favor of appellee, but if it be conceded that the appellee’s judgment was obtained by fraud, and that. the fraud has been sufficiently pleaded, yet the proof in the case in judgment is insufficient to sustain the case made by appellant’s bill. He was not hindered or delayed, as alleged, in procuring his judgment, the alleged assurance that he “would be taken care of” could not bind the corporation who was indebted to him, as it nowhere appears that the appellee had any power to bind the corporation by any promise he might make, and he knew that appellee thought that there was a balance of only one or two hundred dollars due on the debt of the corporation to him, and he admits in his 'bill that there is less due himi than shown by the face of the judgment obtained for said debt.</p>

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

<p>Appeal from a decree of the Circuit Court of Rockingham county confirming a judicial sale. Purchasers appeal.</p>

<p>1. Highways—Petition for a Road—Right of Dismissal—Special Road Law.—An amended road law transferring from tbe circuit court of a county to the board of supervisors jurisdiction of all petitions for the establishment of new roads, but providing that cases then pending in the circuit court shall be heard and disposed of by the court as if the act had not been passed, does not deprive plaintiffs in the circuit court of the right to dismiss their petitions and institute new proceedings before the board of supervisors for the establishment of the same road. They have the same right of dismissal as before the adoption of the amendment, and a dismissal for the purpose aforesaid is not a fraud on the jurisdiction of the circuit court.</p> <p>2. Dismissal and. Non-Suit—Rights of Plaintiffs.—Ordinarily a plaintiff may dismiss his suit at pleasure upon payment of the cost, when such dismissal does not prejudice or oppress the defendant, or deprive him of any just defense or substantive right not available in a second suit. The inconvenience of double litigation is usually compensated by the payment of the costs.</p>

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

<p>Error to a judgment of the Circuit Court of Rockingham county on a motion to quash a writ of fieri facias. Judgment for the plaintiff in the motion. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Rockingham •county on an appeal from the Board of Supervisors. Judgment for the defendant. Plaintiff assigns error.</p>

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

<p>1. Homestead—Liability for Taxes—Estate of Widow.—Upon the death of a householder who has set apart a homestead in land, his widow does not take a life estate in the land, but she and the minor children simply hold it, exempt as before from liability for certain debts, and taxes should be assessed against it in the name of the householder or his estate, and, upon the death of the widow, the taxes assessed against it during her lifetime are properly chargeable upon the corpus of the land itself. It is not a case where the interest of the life tenant only is liable for taxes. Neither the Constitution nor the statute giving the householder the right to claim a homestead create or vest in either householder or his widow any other or different estate from that which they held before. The right of the widow, upon the death of the householder, is a mere personal right to occupy and possess the premises, unaccompanied by any new or additional title to or property interest therein.</p>

<p>1. Cobpobations — Sale of Property. — In tbe absence of legislative or charter restrictions, a private corporation has the right, toy the action of a majority of its stockholders, to sell all of its property, and this right is commensurate with that of an individual.</p> <p>2. Estoppel — Liability for Losses — Rights of Innocent Parties Among Themselves. — Where one of two innocent parties, that is, parties each guiltless of an intentional moral wrong, must suffer a loss, it must be borne by that one who by his conduct, acts or omissions, has rendered the injury possible.</p> <p>3. Cobpobations — Pledge of Stock — Right of Pledgor to Vote — Rights of Third Persons. — In the absence of any evidence to the contrary, the pledgor of stock, which continues to stand in his name on the books of the company, has the right to vote the stock at corporate meetings, and his acts in that respect are binding upon the pledgee as between him and the pledgor as to any matter within the express or implied powers of the company, if done in good faith; and whether done in good faith or not, are binding on the pledgee as to an innocent third party who would be prejudiced by setting aside or annulling a contract entered into by such plédgor in union with the other stockholders. As against innocent third persons, the stockholder of record is the owner of stock until a transfer out of his name, and-the assignee must abide by his action in the management of corporate affairs.</p> <p>4. Cobpobations — Fraudulent Conveyance of Property — Right of Pledgor to Vote — Right of Pledgee — Innocent Creditors of Purchaser. — A pledgee of stock who had the right to sell it without notice and to become the purchaser at the sale, but who refrained from doing so, and allowed the stock to stand in the name of the pledgor for seven years, during all which time he participated in the management and control of the company and finally voted with other stockholders for the sale of all of its property, will not be allowed, as against innocent creditors of the purchaser, to set up a fraudulent purpose on the part of the pledgor in voting for a sale of the property of the company. The pledgee may have, been free from moral wrong, yet by his conduct he has rendered possible the injury of which he now complains, and this he cannot do to the prejudice of innocent third persons.</p>

<p>1. Working Contracts—Retained Percentage—Setoff—Case at Bar.— In a suit by a sub-contractor against a contractor to recover for retained percentage, extra work, monthly estimates, damages, &c., the contractor has the right, upon general principles governing the right of set-off, to 'have allowed in this favor any demand that he may establish against the sub-contractor for the breach of his contract with him. In the .case at bar, the contract expressly stated that time was of its essence, and the contractor was compelled to expend a large sum of mioney for additional forces put on the work, as it was provided by the contract that he might do, in order to complete the work in contract time, and this was held to be a valid set-off, independent of the provision of the contract which permitted the contractor to hold the retained percentage as a guaranty of the faithful performance of the contract.</p> <p>2. Working Contracts—Sub-contract—Defaults as to Time.—The fact that a general contractor and other sub-contractors are in default in the completion of work in the contract time, is no excuse for the failure of a sub-contractor to complete his part of the work in the time stipulated by him.</p> <p>3. Working Contracts—Time of Performance—Delays—Bad Weather. •—Delays from bad weather, or the loss of equipment and stock by fire, cannot control the express terms of a contract entered into by a party who contracts to complete a piece of work at a stipulated date.</p>

<p>1. Statutes — Construction—Harsh Results. — If the intent of a statute be plain, and it be free from constitutional objection, courts have no choice but to enforce it. But where a construction leads to harsh and inequitable consequences, courts look narrowly to the language of the statute to see whether or not any other interpretation will satisfy its terms.</p> <p>2. Statutes — Construction—Former Law — Statutes in Pari Materia.— When the legislature comes to pass a new law or to amend an old one, it is presumed to act with a full knowledge of the law as it stands, bearing upon the subject with which it proposes to deal; and courts, in the construction of statutes, look to all statutes in pari materia in order to get at the legislative intent, and as far as they properly can to mould the law into a harmonious and symmetrical whole.</p> <p>3. Tax Deeds — Title of Purchaser — Delinquent in Name of Former Owner. — When land is sold and conveyed to a purchaser and the deed is duly recorded, it is the duty of the clerk to include it in the list required to be made out by him by section 459 oil the Code and to deliver a copy of the list to the proper commissioner of the revenue, whose duty it is to transfer the land on his books to the purchaser. (Code, sec. 461.) If these officers neglect their duties and the land is not transferred, but continues to stand on the books in the name of the former owner, and is returned in his name as delinquent for taxes for a year when it should have stood on the books of the commissioner in the name of the purchaser, and is sold for taxes, the purchaser at such sale acquires no title. The land could not be sold as delinquent under such circumstances.</p> <p>4. Tax Deed — Title of Purchaser — Land Returned Delinquent in Name of Former Owner — Act of February 23, 1906. — Where land was conveyed to a purchaser in 1891 who recorded his deed in 1892, but tbe land remained on the land books in the name of the grantor, it could not properly be returned in the name of the grantor as delinquent for taxes for the year 1894, and if so returned and sold for taxes for 1894, the purchaser at the sale does not take the title of the grantee in the deed of 1891 under the act of February 23, 1906, declaring that the' title acquired by the purchaser at such sale shall be such as “was vested in the party assessed with the taxes and levies thereon at the commencement of the year, for which the taxes or levies were assessed, for which it was sold, or any person claiming under such party.”</p>

<p>1. Brokers—Real Estate Agents—Commissions.•—If a real estate agent or broker was tbe procuring cause of a sale, he is entitled to the commission agreed on, or to recover for his services on a quantum meruit; and whether or not he was tbe procuring cause is a question for the jury.</p> <p>2. Appeal and Error—Verdicts—Conflicting Evidence.•—-This court will not set aside a verdict approved by the trial court where the evidence was conflicting, and there was sufficient evidence, when viewed from the standpoint of a demurrer to the evidence, to support the verdict.</p>

<p>Error to a judgment of the Circuit Court of Buckingham county, affirming a judgment of the mayor of the town of Harrisonburg, imposing a fine on the plaintiff in error for refusal to pay a license tax.</p>

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

<p>1. Ejectment — Parol Disclaimer of Title — Boundaries—Change by Parol Agreement. — Although two adjacent lot owners agree by parol upon a boundary line between them different from that called for by their deeds, and erect a fence on the new line, a purchaser of one of the lots whose deed calls for the original line is not bound thereby although he knew of the agreement before his purchase, and saw the fence on the new line. No mere parol agreement to establish a boundary, and thus exclude from the operation of a deed land embraced therein can divest, change, or affect the legal rights of the parties growing out of the deed itself.</p>

<p>1. Bill or Review — After-Discovered Evidence.- — -A bill of review for after-discovered evidence is properly allowed where it appears from affidavits filed with the bill that the new evidence was not and could not have been known to the complainant before the final decree sought to' be reviewed, and is relevant, material, not merely cumulative, and such as should, upon another hearing produce a different result.</p> <p>2. Res Judicata — Matters Undetermined — Bill of Review. — Where upon filing a bill of review, all that was done in the suit has been set aside, the effect is to leave all the issues presented in that record undetermined to await the final decree of the court upon the bill of review, and the former decree cannot be pleaded anywhere as a final adjudication of the controversy.</p> <p>3. Appeal and Ebeob — Principles of Case. — A decree which permits the filing of a bill to review a decree which had disposed- of the entire subject of litigation, and which overrules a motion to dissolve an injunction prayed for and granted under that bill of review, and continues it in full force until the further order of the court, so far settles the principles of the cause as to come within the terms of the statute allowing an appeal therefrom.</p> <p>4. Injunctions — Dissolution—Pending Suit to Try Title. — An injunction granted to restrain defendants from cutting and removing timber from land should be allowed to await the determination of a pending action of ejectment brought by the same plaintiff against the same defendants to try the title to the land in controversy.</p>

<p>1. Process — Sheriff’s Return — Impeachment.—In tbe absence of any allegation of fraud or collusion on tbe part of tbe plaintiff, tbe return of the sheriff on process, sufficient on its face, cannot be attacked even though made by plea in abatement filed in due time in the suit in which the process issued. For reasons of public policy contradiction of such returns cannot be made in any form, in the absence of any allegation of fraud or collusion.</p> <p>2. Equity Pleading — Demurrer to Plea — Harmless Error. — It is not proper to demur to a plea in' equity, but if the plea has been properly dismissed the objection by demurrer may be treated as a motion to strike out the plea, and the ruling on the demurrer will be regarded as harmless error.</p> <p>3. Equity — Parties—Suit to Subject Land — Principal Debtor — Notice. —Endorsers have the right to require that the principal debtor shall be brought before the court in a suit in equity to subject the lands of the parties to the payment of a judgment against them, but where it appears from a letter of the principal debtor filed in the cause that he had ample notice of the suit and its object, and every opportunity to make defense, and in fact was an active participant in the litigation, this is of itself sufficient to bind him by the results of the litigation, even though he was not actually served with process.</p>

<p>1. Divorce — Desertion—Proof.—Wherever there is an actual breaking off of matrimonial cohabitation, coupled with the intent to desert in the mind of the offender, in such case desertion is established; long continued absence without detaining cause being the most potent means of proving the intent to desert.</p>

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

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

<p>1. Boundaries — Case at Bar. — The evidence in the case at bar wholly fails to sustain the verdict found for the plaintiff in the trial court. If the contention of the plaintiff as to the boundary between her lot and that of the defendant were to be established it would not only be wholly contradictory of the maps of the block in which the lot in controversy is situated, extend the plaintiff’s rear line from 67 to 78 feet, and change the configuration of lot 1 in that block from a pentagon to a parallelogram, but, by the same system of reasoning and proof, would , disturb the boundary lines of every lot in that block. The vice in the plaintiff’s evidence is in assuming the wrong starting point from which to make measurements. Upon the evidence, the verdict should have been for the defendant, and not for the plaintiff.</p>

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

<p>1. Saxes F. O. B. — Delaying Shipment by Seller — Obligation to Pay Sight Draft. — If goods are sold “F. O. B. sight draft against documents,” it is the duty of the seller to deliver the goods to the carrier f. o. b., ready to go forward at once, and this is a condition precedent to his right to demand payment of the draft, and if secret instructions are given to the carrier by the seller to hold the goods for any length of time, it is a violation of the contract, and the buyer is under no obligation to pay the draft.</p>

<p>Error to a judgment of the Court of Law arid Chancery of the city of Norfolk íd an actiou of debt. Judgment for the plaintiff. One of the defendants assigns error.</p>

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

<p>1. Rescission — Averments—Proof—Restoration of Parties to Former Positions. — In a suit for the rescission of a contract for the sale of real estate, there must be a sufficient averment of the facts to show that the plaintiff is entitled to the relief which he seeks, and satisfactory proof of the facts to justify the interposition pf the court, and the court must be able substantially to restore the parties to the position which they occupied before they entered into the contract.</p> <p>2. Rescission — Substantial Interest — Parties.—An interest to the extent of one-twentieth part of a body of land worth $40,000 is a very substantial interest, and the owner thereof is a neces- . sary party to a suit for a rescission of a contract for the sale of the land,</p> <p>3. Rescission — Parties—Separable Interests — Indivisible Interest— Complete Relief. — On a bill to rescind a contract for the sale of land, all those substantially interested in the contract should be parties, unless the interests are separable; and if the case can be completely decided as between the parties, the fact that an interest exists in another whom the court cannot reach by process will not prevent a decree; but if an interest does exist in another, by reason of whose absence the case cannot be completely decided as between the parties, and whom the court cannot reach by process, that fact will prevent a decree.</p>

<p>1. Dismissal and Non-Suit — Laches—Hule to Speed Cause. — According to the proper practice in this Slate a rule against the plaintiff to speed his cause should precede any motion to dismiss an action at law for failure to prosecute, and the appearance of the plaintiff in court ready for trial has always been regarded as a conclusive answer to such a rule. There is nothing in the record to take the cases at bar out of the rule. 2. Compromise — Lack of Power to Make — Entry as Judgment of Court. — The fact that an agreement to compromise a suit was entered into on behalf of some of the parties by counsel who had no authority to make it, and was subsequently abandoned by all the parties thereto, is a sufficient reason for not entering it up as the judgment of the court, although it had been agreed that it should be so entered when it was made.</p>

<p>1. Wills — Construction—Contingent Remainders. — A testator gave property to three of his daughters, to be equally divided among them, but appointed a trustee to hold it in trust for than “as long as they shall live.” One of the daughters was then a married woman with children, while the other two were unmarried. As to the married daughter, he directed that in the event of her death her share should go to her children, and, as to the two unmarried daughters, the testator declares that, in the event of the death of either or both of them, without issue, “then I direct that her or their portion of my estate be distributed equally between my four sons.” Since the death of the testator one of the daughters has married, and has a number of children. The question for decision is what estate did this daughter take under her father’s will.</p> <p>Reid: The daughter took only a life estate followed by two remainders in a double aspect, both of which remain contingent until her death — the first to the issue of the daughter living at the time of her death, and the second, failing such issue, to the' four sons of the testator.</p>

<p>1. Taxation—Petition for Relief—Defenses—Pleadings.—On tbe petition of a railroad company for relief from a franchise tax, on the ground that its charter exempted it from any public charge or tax whatever, it is entirely competent for the Commonwealth to show that the company had accepted an amendment to its charter whereby it had surrendered its exemption from taxation. No forms of pleading are prescribed by statute in such proceedings, and strict technical rules of pleading are inapplicable.</p> <p>2. Corporations—Charters—Amendments—Acceptance by Implication.—An act of Assembly which grants to such railroad companies as accept its provisions unusual and -valuable privileges, which constitute amendments to their charters, may be accepted by implication from acts of a company in availing itself of the privileges tendered by the act, and such acceptance will carry with it all the burdens attaching thereto.</p> <p>2. Richmond, Fredericksburg and Potomac Railroad Company—Taxation Exemption—Charter Amendments—Acceptance by Implication.—If it be conceded that, by virtue of its charter, the Richmond, Fredericksburg and Potomac Railroad Company was not liable to a franchise tax prior to July 10, 1902, yet having thereafter accepted the new and enlarged powers tendered by the act of Assembly of April 2, 1902, not previously possessed by it, by which it was enabled to change the location of its line, and by which its powers of eminent domain -were materially enlarged and extended, such acceptance constituted an amendment of its charter, and the company thereby surrendered its exemption from taxation in pursuance of section 158 of the Constitution declaring that any corporation which should thereafter accept, or effect, any amendment or extension of its charter should be conclusively presumed to have thereby surrendered every exemption from taxation or other privilege not enjoyed by other like corporations.</p> <p>4. Railroads — Charter Amendments — Power of Directors to Accept.— The directors of a corporation are generally merely its managing agents for the purposes of its business, and it may well be doubted whether the directors of a railroad company have power to accept such radical amendments of the charter of their company as involve an extended change in the location of its roadbed, and the liability of the company for taxes from which it was previously exempt, in t-he absence of power specially conferred by the legislature. In the case at bar, no such power was conferred. On the contrary, it was practically denied by the charter of the company. The amendment involved not only the building of many miles of lateral or branch road, but a radical change in the location of the road, and the abandonment of its existing line and depots, which were matters to be determined by the stockholders, and not by the directors.</p> <p>'5. Corporations — Void Acts of Directors — Ratification "by Stockholders. — It is not competent for stockholders, by subsequent ratification, to validate an act of its board of directors, which was illegal and void at the time it was done. The act to be ratified must be voidable merely and not absolutely void. This well settled principle of the law of agency is as applicable to corporations as to individuals.</p> <p>6. Richmond, Fbedericksbdrs and Potomac Railroad Company— Amendment of Charter — Acceptance by Implication — Taxation.— Under the facts and circumstances of the case at bar it is held: That the amendments to the charter of the Richmond, Fredericksburg and Potomac Railroad Company, tendered to the company by the act of April 2, 1902, were never accepted by it till after July 10, 1902, when the Constitution became effective; that the action taken by the stockholders in general meeting, November 17, 1902, and January 16, 1903, together with the radical changes in its road made in pursuance thereof, constituted an implied acceptance of the amendments to its charter tendered by the act of April 2, 1902, and that by such acceptance the company thereby, in accordance with the terms of •section 158 of the Constitution, surrendered every exemption from taxation which it might theretofore have claimed under its charter.</p>

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

Apiieal from a decree of the Circuit Court of Elizabeth City county. Complainant appeals from decrees fixing the amouut of his compensation as executor.

<p>1. Appeal and Error—Right of Complainant to Sue—Objection Not Made at Trial—Case Heard on Merits—Waiver—Parties.—A legatee or creditor of a decedent’s estate cannot maintain a suit against the personal representative of the decedent and another who is a debtor to the estate, except under special circumstances, but where a suit was brought by a legatee to* subject land to the payment of a legacy which the complainant claimed was a lien upon the land, and all of the parties in interest were before the trial court, and no demurrer was filed and no objection raised as to the right of the complainant to maintain her suit, and the cause was heard and determined on its merits in the trial court, the right of the complainant to maintain her suit cannot be raised in this court for the first time, and the objection will be deemed to have been waived.</p> <p>2. Deeds—Reserving Lien or Purchase Money—Code, Section 2475.— The statement in a deed that it is made “in consideration of five hundred dollars secured to be paid,” without more, does not constitute an express reservation of a lien on the land on the face of the deed to secure its payment within the meaning of section 2475 of the Code.</p> <p>3. Limitation op Actions—Accepting Deed Stating Price—Simple Contract Debt.—Where the vendee’s obligation to pay the purchase price of land is not evidenced in any other manner than, by his acceptance of the deed, it is a simple contract debt, and the statute of limitations applicable , to that class of debts is to be applied.</p> <p>4. Evidence-—Statement of Deed as to Consideration and Time of Payment—Offer of Grantor's Will to Vary.—The statements in the will of a grantor of land, in reference to the debt for the purchase money and the time it became due, are not admissible to add to, or vary the language of the deed, and cannot be considered upon the question of the statute of limitations.</p>

city of Richmond, in two causes heard together. Decree in favor of defendants, J. Thompson Brown & Co., who were defendants in both suits. Complainants appeal.

<p>1. Appeal and Error—Validity of City Ordinance—Case at Bar.— Where the trial court, at the instance of the plaintiff in error, instructed the jury that a city ordinance, under wihich he sought to justify his action, was valid and constitutional, and no exception was taken to that instruction, all question as to the validity of the ordinance was eliminated from the case, and he was left with its full protection as a defense. To a judgment rendered in such case, no writ of error lies on the ground that the constitutionality of the ordinance is drawn in question.</p>

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

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

<p>Error to a judgmtent of the Circuit Court of Mecklenburg county in an action of debt on the official bond of Beales, treasurer. Judgment for the defendants. Plaintiff assigns error.</p>

<p>1. Life Insurance — Date of Commencement of Policy — Agreement of Parties. — The contract of parties is the law of the case, unless it be repugnant to some rule of law, or some-principle of public policy, hence a life insurance policy cannot be held to run from the date of its delivery where the parties have agreed that it shall run from the date of the policy.</p> <p>.2. Life Insurance — Failure to Pay Premium — Forfeiture—Notice of Non-Payment After Forfeiture. — Where a life insurance policy provides for the reinstatement of an insured upon presentation of satisfactory evidence of insurability, and upon certain other conditions, the fact that the cashier of the company wrote toi an assured, after the maturity of a note given for a premium that the note was past due, and requested him to give the matter prompt attention, does not constitute a waiver of the condition in the note as well as in the policy providing that in the event of failure to pay the note there would be no further extension, and said policy should then cease and determine and be treated in all respects as if the conditional note had not been given.</p> <p>3. Life Insurance — Prompt Payment of Premiums — Bight to Enforce Forfeitures. — 'Promptness of payment is essential in the business of life insurance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the payments when due, but on compounding interest upon them. It is on this basis that they aré enabled to offer insurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment. Delinquency cannot be tolerated or redeemed except at the option of the company.</p> <p>■A. Life Insurance — Failure to Pay Premiums — -Waiver by Agents— Tarying Terms of Contract — Parol Evidence. — In an action to recover on a life insurance policy, a contemporaneous parol agreement or undertaking between tbe agent of an insurance company wbo solicits tbe insurance and tbe assured as to tbe time and place of paying tbe premiums, different from that stated in tbe policy, cannot be given in evidence, as it varies- or contradicts tbe'terms of tbe written contract of tbe parties. An insured should-look at bis policy, and conform to it, and limitations of tbe agent’s authority should be effective, unlesstbe insurance company, by a' course of business, or otherwise, bas waived tbe limitation on tbe agent’s power of waiver. An agent to collect premiums bas no authority to extend tbe time of payment of an over-due premium, 'and, where the policy declares a forfeiture for failure to pay at maturity, and forbids waiver by agents, their agreements to extend tbe time of payments do not, as a rule, bind tbe company.</p>

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

<p>1. Railroads — Licenses.—Where a pathway across' a railroad track is used by from sixty to one hundred persons daily, with the knowledge of the servants of the railroad company, one so using the pathway is a licensee, and not a trespasser.</p> <p>2. Instructions — Different Theories of Case. — Where two or more theories of a case are presented by the evidence, the plaintiff has the right to have the theory favorable to him presented to-the jury by a proper instruction of the court, especially where-the defendant’s theory has been presented by instructions given at his instance.</p> <p>3. Infants — Test of Capacity for Negligence. — The capacity of an. infant between seven and fourteen years is dependent not only upon his general intelligence, but also upon his experience and maturity as well.</p> <p>4. Negligence — Burden of Proof — Verdict Founded on Conjecture.— In an action to recover damages for an injury inflicted through the alleged negligence of the defendant, the burden is on the-plaintiff to prove the negligence alleged, and a verdict founded upon conjecture and speculation as to what the defendant could, might or ought to have done to avoid the injury complained of will be set aside.</p> <p>5. RAiLROAjDS — Persons Approaching Track — Presumption—When Peril Observed. — An engineman operating a moving train has the-right to presume that persons approaching the track, in the apparent exercise of their faculties, will keep out of the way of an on-rushing train in plain view, and when to the engineman there first appears some indication calling for a suspicion of peril, then for the first time arises the duty to take such precaution as may be required by ordinary care to warn and avoid injury to a person in such suspected danger. The failure of an engineman to anticipate that a person in a place of safety, and apparently in the possession of his faculties, will step on the track immediately in front of a rapidly moving train, in plain view, when there is nothing to indicate such a purpose, does not render the company liable.</p>

<p>1. Verdicts — Instructions—No Evidence to Support. — A verdict founded upon an instruction wbieb there is no evidence to support is properly set aside.</p> <p>2. Compensatory Damages — Mortification and Humiliation — Misleading Instructions — Railroads—White Passenger in Colored Coach. In an action against a railroad company by a white woman to recover compensatory damages for being forced to ride in a colored oar, an instruction on the measure of damlages, which tells the jury that in assessing her damages they are not limited to compensation for the actual damages sustained by her, but may, in addition, take into consideration the discomforts, mortification and humiliation suffered by her, if proved with reasonable certainty, is obscure, and calculated to confuse and mislead the jury. The jury should be plainly told that the measure of recovery is compensatory damages, and that discomfort, mortification and humiliation, if proved with reasonable certainty, constitute elements of such damages.</p> <p>3. Instructions — Conflicting Theories of Case. — When two conflicting theories of a case are presented by the evidence, and the plaintiff’s has been presented by instructions given at his instance, the defendant has the right to have an instruction given which presents his theory of the case to the jury.</p>

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

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

<p>1. Attachments—Levy on Land—Description of Land—Sufficiency of Return—Extrinsic Evidence.—A return on an attachment that it was levied on a tract of land of the defendant company containing about three hundred and sixty acres, located in the county of M., in the magisterial district of P., of said county, “being the same land conveyed to said company by L. C. Garnett, Esq., special commissioner of Mathews county circuit court, by deed recorded in deed-book No. 15, pp. 58-59,” identifies the land with sufficient certainty, both for the purposes of sale and conveyance, without the a.id of extrinsic evidence, and is a substantial, if not a literal, compliance with section 2967 of the Code.</p> <p>2. Deeds—Description of Land.—Reference to Map—Extrinsic Evidence.—When a map, plan, survey or deed is referred to for a description of land, it is not to be regarded as extrinsic evidence, but part of the instrument itself.</p>

<p>1. Municipal Corporations — Ordinances—Validity—Arbitrary Discretion of Council — Constitutional Law — Equality and Uniformity.— A city ordinance requiring a permit l'rom the city council for the erection and use of furnaces and steam engines, which prescribes no fixed rules for the conduct of the business, applicable alike to all citizens who may bring themselves within its terms, and no conditions upon which such permit may be granted, and furnishes no rules by which an impartial exercise of the powers of the city council may be secured, but which confers upon the city council without regulation or control a purely arbitrary power to grant or refuse the permit, and makes the violation of such ordinance a misdemeanor, is obnoxious to the equality and uniformity clause of the Constitution of the United States and hence is invalid.</p> <p>2. Statutes — Test of Validity — Constitutional Law. — The test of the vilidity of a statute is not what has been done, but what may be done under its provisions.</p>

<p>1. Instructions — Evidence to Support — Allegations Not Proved. — Instructions are given to aid tbe jury to apply the law to the facts of the case on trial, and although the declaration may charge that the master was negligent in a given particular, yet if there is no proof to sustain that allegation the jury have no more right to consider it than if there had been no such charge. The jury should only be instructed on the case which the evidence tends to sustain.</p> <p>'2. Master and 'Servant — Instrumentalities—Reasonably Safe — Gare to Provide.- — It is the duty of the master to use ordinary care to provide, not safe and suitable appliances and instrumentalities, but reasonably safe and suitable appliances and instrumentalities for the use of his servant.</p> <p>Instructions — Aid to Jury — Inapplicability.—Although an instruction may state the law correctly, it is error to give it if it will be of no aid to the jury in arriving at a correct verdict, or is not applicable to the facts of the case.</p> <p>4. Master and Servant — Assumption of Rish — How Far Abolished— Manner of Doing Business. — Section 162 of the Constitution and section 1294k of the Code do away with the common law do'ctrine of the assumption of risk so far as it applies to knowledge “of the defective or unsafe character or condition of any machinery, ways, appliances or structures” on the part of a servant of a railroad company, but they do not change the common law rule of the assumption of risk as to the manner in which the master conducts his business. When a person enters the service of a railroad company he assumes all the ordinary and usual risks incident to the service (except those abolished by section 162 of the Constitution and section 1294k ■of the Code) including the risks incident to the manner in which he knows, or in the exercise of ordinary care ought to know, the defendant conducts its business.</p> <p>5. Instruction's — Negligence—Ordinary Oare — Excessive Care■ — Omitted Facts.- — If an instruction properly defines ordinary care and then tells the jury that if they believe that certain facts which the evidence tended to prove were esablished, the defendant had exercised ordinary care and they should find for it, it is error to amend it by adding that the acts set forth as constituting ordinary care must -have been done “with reasonable care under all the circumstances.” If the object of the addition of the words quoted was to tell the jury that although they believed that such conditions existed, and the defendant had acted in such a manner as, under the law, constituted ordinary care, yet in order to relieve itselt of liability the 'jury must believe that those acts which constituted ordinary care were done carefully, then it imposed upon the defendant a higher degree of care than the law requires; and if the addition was made because the court was of opinion that all the facts which the evidence tended to prove and which were necessary to show that the defendant was not liable were not enumerated in the instruction, then the omitted facts necessary to relieve the defendant of liability should have been added instead of the general language quoted above. In either view the amendment was erroneous.</p> <p>6. Master and Servant — Ordinary Care — Instructions.—An instruction which tells the jury that switching cars in the way in which it is usually done by the defendant and other companies engaged in the same business is not ordinary care, unless the jury further believes that the defendant “used ordinary care in switching said cars,” leave the jury without any guide to determine what constitutes ordinary care in switching cars, and is therefore erroneous.</p> <p>7. Negligence — Test of Care — No one is held in law to a higher degree of care than the average prudent man engaged in like business.</p>

<p>1. Railroads—Buies—Failure of Employee to Observe—Personal Injury—Proximate Cause—Where the rules of a railroad company declare that a red light or the absence of any light or an imperfectly displayed light at a siding where a signal is usually shown shall be regarded as a stop signal, and that these signals are to be observed notwithstanding other signals displayed for the movement of trains, there can be no recovery by the personal representative of an engineer who was killed by running his train into an open siding in the night, where all the positive evidence in the case shows that the switch stand displayed a -red light, although some of the witnesses whose attention Was not especially directed to the subject, state that they did not see it, or did not recollect to have seen it; nor can there be any recovery if there was no signal, or an imperfectly displayed signal at the siding. Although th£ servants of the company were negligent in leaving the switch open, the engineer’s disregard of the positive rules of the company was the proximate cause of his death.</p> <p>2. Railroads—Signals—Duty of Employee to Observe—Although one inexpert in the business would be confused by lights displayed for their guidance, it is the business of those in charge of a train to see and to discriminate with respect to such signals and to know their relative positions; and upon their faithful compliance with the rules depends their own safety and that of the lives of those who are committed to their charge.</p> <p>3. Master and Servant—Buies—Failure of Servant to Obey—Personal Injury—Negligence—As the master is bound, at his peril, to make rules for the protection of his servant, the servant is equally bound, at his peril, to obey them, and he cannot recover damages from the master for injuries which the observance of the rules would have prevented. In such a case, the disaster is brought upon the servant by his own- voluntary act, and he, and not the master who has discharged his duty, should bear the loss. The result is not changed by the fact that the breach of the rule was the result of negligence, and was not wilful.</p>

<p>1. Lire Insurance — Application—Suppression of Material Facts — Representations in an application for a policy of life insurance should not only he true, but full. The insurer has the right to know the whole truth, and a lack of fullness, if designed, in a respect material to the risk, is tantamount to a false representation, and is attended by like consequences. The suppression or concealment of material facts known to the applicant is a fraud upon the company and avoids the policy.</p> <p>2. Life Insurance — Application—Notice of Disease — Further Inquiry— Failure to Disclose Facts Affecting Rislc — Although an applicant for life insurance may have answered “Yes” to the question “Any disease of chest or lungs,” and this may have been sufficient to put the company on its guard as to applicant’s lung trouble, yet if that enquiry was subsequently prosecuted by the comprehensive question “Give full particulars of every illness you have had since childhood, and name of every physician who has ever attended you or prescribed for you,” the latter question comprehends within its scope of enquiry the former, and calls for particulars touching the categorical answer thereto, and a failure to make full disclosure of serious illness in recent years, fresh in the recollection of the applicant and materially affecting the risk, will avoid the policy founded thereon.</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>1. Wii.ls—Construction—Defeasible Fee—Case in Judgment.—A testator devised and bequeathed real and personal estate to his children, and directed that his estate should be kept together as much as possible for five years, or until his debts were paid, and that his whole estate should be then divided as directed in his will. The will further provides: “If any of my children should at any time die, leaving no lawful child, it is my desire that the portion of my estate herein willed to such child or children, should be equally divided among my surviving children; and if any of my children should be dead leaving children, it is my desire the child or children of the deceased parent should inherit the portion that would have been due the parent if living.” The question at issue was what estate did the children of the testator take in the lands devised to them.</p> <p>Held: The children took an estate in fee in the lands- devised, feasible upon the death at any time of the child leaving no lawful child surviving, and that the defeasance is to be determined at the time of the death of any one of the testator’s . children leaving no children surviving, and is not affected by the provision of the will that his estate was to be divided at the expiration of five years after the testator’s death, or when all of his debts were satisfied, whichever might first happen.</p> <p>2. Deeds—Acknowledgments—Sufficiency of Certificate—Construction of Letters, N. P.—A certificate of acknowledgment of a deed taken by a notary public which is full, accurate and complete in every respect except that the official character of the officer taking it is not specifically stated in the body of the acknowledgment, but which is signed by him with the letters N. P. after .his name, is a sufficient certificate. The letters N. P. read in connection with what is certified stand for and are the equivalent of notary public.</p> <p>3. Appeal and Error — Case Heard by Court Without a Jury — Reversal — Upon reversing a judgment entered by tbe trial court without the intervention of a jury, this court will enter such judgment as the trial court should have rendered.</p>

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

<p>Error to a judgment of the Hustings Court of the city of Bichmond, on a petition filed praying a judgment for certain delinquent taxes. Judgment for the petitioner. Defendants assign error.</p>

<p>1. Carrier—Interstate Shipments—Liability of Initial Carrier—Carmacle Amendment Valid.—The Carmack amendment of the Interstate Commerce Act (Act of Congress, June 29, 1906), rendering the initial carrier of an interstate shipment of goods liable for any loss, damage or injury to such goods, caused by it or any connecting carrier to whom they are delivered or over whose line they may pass, notwithstanding any contract, receipt, rule or regulation of the carrier to the contrary, is a valid and constitutional regulation of Interstate Commerce.</p> <p>2. Appeal and Error—Constitutional Question—Passing on Merits of Case.—Under the provision of section 88 of the Constitution of this State, where the jurisdiction of this court depends solely on the fact that the constitutionality of a statute is involved, this court cannot decide the case upon its merits, unless the contention of the appellant upon the constitutional question is sustained.</p>

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

<p>1. Appeal and Error—Interlocutory Decree—Confirming Report of Debts—Other Debts Outstanding.—The fact that, after a report of debts against a decedent’s estate has been confirmed, other creditors come in by petition and are asserting debts against decedent’s estate does not prevent a party, whose rights have been prejudiced by the decree confirming the report of indebtedness, from appealing.</p> <p>3. Appeal and Error—Parties—Executors—Personal Representative of Insolvent Estate.—The fact that a decedent’s estate may not be sufficient to pay all of his creditors in full is no reason why his personal representative should not defend the estate in the trial court, or in the appellate court, against claims which he believes, or is advised, the estate is not legally liable for.</p> <p>3. Equity Practice—Exceptions to Commissioner’s Report—Sufficiency—Case in Judgment.—While exceptions to a commissioner’s report are in the nature of special demurrers, and must point out specifically the errors complained of, the exception in the case in judgment is sufficient to raise the question of the validity of the creditor’s debt. The exception is as follows: “The within report |s excepted to because' the commissioner allows * * * the claim of Luther H. McMillan, based on a note for ?5,268.00 and purporting to be signed by Luther H. McMillan and Henry W. Reid, deceased.”</p> <p>4. ills and Notes—Rote Payable to Maher—Endorsement.—A note made by a person to himself, or to himself or order, is not a good legal contract until it becomes such by endorsement, but where a note, whether payable to the maker, or to one of two or more makers, is negotiable and endorsed, it becomes available as a security at law in the hands of the endorsee, wlm may sue upon it.</p> <p>5. Bills and Notes—Payee One of Mahers—Validity.—The fact that no action at law can be maintained on a negotiable note made by two or more makers payable to one of them, while in the hands of the payee and all of the parties are living, does not render the paper invalid. The reason why an action at law cannot be maintained upon it is because a man cannot be both plaintiff and defendant in such action. The rule of law~ig~tentHMcal and~~Sppfteg~~t(r thtr1 remedy, and not to the right, and may be obviated by a resort to a court of equity.</p> <p>6. Bins and Notes — Consideration.—A. negotiable note, as between the payee and maker, is deemed prima facie to have been issued for a valuable consideration, and will be so held in the absence of evidence to the contrary. This is especially true where it states on its face 'that it was executed “for value received.”</p> <p>7. Bills and Notes — Collateral Note — Sale Without Demand or Notice. — Where, by the terms of a collateral note pledging stock as collateral, it is expressly stipulated that the collaterals may be sold without making any demand for the payment of the note, or giving notice of the time and place of sale of the col-laterals, no such demand or notice is necessary.</p> <p>8. Appeal and Error — Objections for First Time. — Objections cannot be made in the appellate court for the first time that the evidence upon which a commissioner in chancery allowed a debt against a decedent’s estate was insufficient or improper.</p>

<p>1 Taxation — Deeds—Amount Due'for Recordation. — The change of language in section 13 of the Tax Haws of Virginia made by the act of March 17, 1910, was not intended to increase the amount due for the recordation of deeds relating to real estate. Section 13 of the amended act is identical in legal effect with section 13 before it was amended.</p>

<p>1. Taxation—Option Contract—Tax for Recording is Price Paid for Option.—An option contract to purchase land is a mere right to purchase, and, prior to the election to purchase, the sum paid for the option is the consideration upon which the tax for its recordation is to be estimated, and not the consideration which the holder of the option is to pay for the land if he thereafter elects to consummate the purchase. This is the proper construction of section 13 of the act of March 17, 1910. Acts 1910, p. 488.</p>

<p>Error to a judgment of the Hustings Court of the city of Portsmouth.</p>

<p>i Criminal Law — Appeal from Justice — Change in Warrant Pending Trial — Code, Section 4107. — Under the broad powers conferred upon the trial court by section 4107 of the Code, it was entirely competent for the court of its own motion, pending the trial of an appeal from the justice of the peace, to direct the attorney for the Commonwealth to change the warrant from an attempt to commit larceny of oats, to an attempt to obtain money by false pretenses. While it would have been more regular, perhaps, to have directed the change to have been made before the trial began, yet where the prisoner did not ask for a continuance, and there is nothing to indicate that he was prejudiced by the amendment during the trial, the irregularity is harmless.</p> <p>3. Appeal and Error — Correct Verdict — Rulings on Admission of Evidence. — Rulings of the trial court upon the admission of evidence will not be reviewed by this court, where, upon the evidence properly before the court, as to which three was neither contradiction nor conflict, no other verdict than the one complained of could have been rendered.</p>

<p>3. Constitutional Law — Code, Section 4052 — Appeal by Commonwealth. — Under the provisions of section 88 of the Constitution a writ of error does not lie upon the petition of the Commonwealth in a case involving the life or liberty of a person where no question touching the State revenue is involved, and hence so much of section 4052 of the Code as provides for a writ of error at the instance of the Commonwealth in a case merely involving the violation of a law declared to be unconstitutional is null and void.</p> <p>*2. Criminal Law — Former Jeopardy — Indictment Dismissed on Demurrer. — If a demurrer to an indictment has been sustained and the indictment dismissed, before any jury is sworn, the accused has never been in jeopardy, and may be again indicted and tried for the same offense charged in the indictment.</p> <p>X Statutes — Validity—Title of Statute — Sufficiency.—The constitutional provision that “No law shall embrace more than one object-, which shall be expressed in its title” was not intended to obstruct honest legislation nor to prevent the incorporation into a single act of the entire statutory law upon one general subject. Although an act authorizes many things of a diverse nature to be done, the title will be sufficient if the things authorized may be fairly regarded as in furtherance of the object expressed in the title. If the subjects embraced in the statute, but not'expressed in its title, have congruity or natural connection with the subject stated in the title, or are cognate or germane thereto, the requirement of the constitution as to the title is satisfied.</p> <p>•4. Elections — Primaries—Title of Chapter of Code on Elections— Sufficiency. — The title of a chapter of the Code: “General and Special Elections; When and Where to be Held; Regulations for their Conduct and Government; Compensation for Services in Elections” is sufficiently broad to cover sections regulating the conduct of primary elections, and prescribing penalties and punishment for the violation of such regulations. The primary, when adopted by a political party, becomes an inseparable part of the election machinery, and if a candidate to be voted for at the general election is to be selected at the primary, it is impossible to secure the regularity and purity of the general election without in the first place guarding against irregularity and fraud at the primary election. The primary election constitutes a necessary part and fulfils an essential function in the plan to promote honesty of elections which shall faithfully reflect and register the unbought will of the electors. If there be fraud in the primary election, it is vain to regulate the conduct of the general election. Primary elections in their nature have such a relation to and bearing upon general elections that the omission to bring them within the law would render abortive the legislative plan for securing the regularity and purity of elections.</p>

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

<p>1. Bills of Exception — 2Voting Exceptions — Signing Bills. — A bill of exception which shows that exception to certain rulings of the; trial court were noted during the progress of the trial, and that thereafter, and within thirty days after such rulings were made, the bills were prepared and signed, conforms to correct practice and the provisions of section 3385 of the Code, as amended in 1908.</p> <p>2. Criminal Law — Joint Offenders — Evidence—United States License Issued to a Firm — Indictment Against One of Firm. — Joint offenders may be indicted and tried jointly or severally, and evidence of the guilt of both is admissible to establish the guilt of either. Hence the possession of a United States license for the sale of intoxicating liquors issued to a firm is admissible in evidence against a member of the firm indicted for selling such liquors without a State license, under the statute (Acts 1901-2, p. 601) making the possession of such license prima facie evidence of the sale of such liquors, in the absence of evidence to the contrary.</p>

<p>1. Bills of Exception — Signing After Statutory Period — Consent of Record — Failure of Record to Show Consent — Amendment of Record. — The authority of a judge to sign bills of, exception after the lapse of more than thirty days after the end of the term at which the opinion of the court is announced to which exception is taken rests upon consent, and that consent must appear of record. It is of the very essence of his jurisdiction, and without It the judge has no authority or power to act. An order, made during the term, that “the prisoner is allowed sixty days from the adjournment of this court within which to file his bills of exception,” but which fails to show that the sixty days was agreed upon and entered of record by consent of parties is wholly ineffectual to extend the time beyond the thirty days fixed by the statute. Nor has the trial court any power, after the adjournment of the term at which a final order is entered, to amend its final order so as to show that the sixty days was in fact agreed upon and to be entered of record by consent of parties.</p> <p>2. Judgments — Amendment. After Final Judgment. — During the term of the court at which a judicial act is done, the record remains in the breast o'f the court, and may be altered or amended; but, after the adjournment of the term, amendments can only be made in cases in which there is something in the record by which they can be safely made. Amendments cannot be made after the adjournment of the term, upon the individual recollection of the judge, or upon evidence aliunde.</p>

<p>1. Homicide — Indictment—Means of Death — Case at Bar. — An indictment sufficiently charges the means by which life was extinguished, where, in one count it charges that the prisoner did strike, kick and beat deceased, Mary Thompson, upon the belly, stomach and back, and, in another count, that he did strike, push or knock the deceased down upon the floor, and that while lying there, he, upon the stomach, belly, back, legs and hands of her, the said Mary Thompson, did then and there strike, beat and kick, giving to the said M'ary Thompson several mortal wounds, or one mortal wound.</p> <p>2. Criminal Law — Opening Statement of Prosecuting Attorney not Obligatory. — The attorney for the Commonwealth is not obliged to make an opening statement in a criminal case. The statute (Code, section 4029-a) confers the right to do so, but does not make it obligatory on either party.</p> <p>3. Homicide — Evidence—Prior Chastisement of Pupil by Teacher— Harmless Error. — On an indictment for murder, the fact that the prisoner, a school teacher, had, several months prior to the homicide, whipped the deceased and her brother, who were his pupils, but not excessively nor in excess of his authority as a teacher, is irrelevant and should have been excluded, but its admission was harmless where it is clear that it did not, and could not have injured the prisoner.</p> <p>4. Homicide — Evidence—Opinion of Physician as to Cause of Death. — - A physician, having testified that he made a post mortem, examination of a child with whose murder the prisoner is charged, and that he found her bladder in a ruptured condition, and that in his opinion the rupture of the bladder was the cause of her death, and, further, that he found an abrasion of the skin on the abdomen of the deceased over the region of the bladder, may be asked: “Was the force that caused the external abrasion, in your opinion, the same force that caused the rupture of the bladder?” The subject of injury was one about wbicb the medical expert could speak more advisedly than any other, and such evidence is permissible where peculiar skill and judgment is necessary to elucidate a particular subject.</p> <p>5. Witnesses — Capacity of Infant — Obligation of an Oath — Case at Bar. — Where a witness is objected to on the ground that his tender years makes him incapable -of understanding the obligation of an oath, the question of his competency is one addressed to the sound judicial discretion of the court; In the case at bar, the witness was a colored boy nine years old, and the evidence shows that the discretion exercised by the trial court in admitting his testimony was not abused.</p>