Volume 112 — Virginia Reports

<p>1. Husband and Wife — Tenants by Entireties — Survivorship—Code, Section 2AJ0. — -The common law doctrine of tenants by entireties was changed by section 2430 of the Code, and, since the enactment of that section, if a husband by his sole deed conveys land excepting from the grant an estate “for and during the period of the natural lives” of himself and wife, each has only a life interest in one moiety of the land. If the exception be treated as a grant, then under the statute they take as tenants in common a moiety each, but if the wife, though not a party to the deed (Code, sec. 2415) took a life estate in one moiety, and the husband excepted an estate for his life in the other moiety, then husband and wife would not be either joint tenants or tenants by entireties, for their estate would be lacking in unity of title, time and possession. In neither event is there any survivorship between them.</p> <p>2. Life Estate — Commutation.—As a general rule, a party who has a life estate in a fund arising from the proceeds of the sale of land is not entitled to have the value of his life estate commuted and paid to him in gross instead of the annual interest on the fund, unless the parties in interest agree to it.</p> <p>3. Life Estate- — Sale of Fee — Security for Annuity — Commutation— Case in Judgment. — Where it is impossible to invest a sum at interest sufficient to produce annually the sum to which an annuitant is entitled, the court will adopt some other mode of adjustment that will produce the greatest equality with the least inconvenience.' In the case in judgment, such an impossibility exists, and the trial court properly paid to the annuitant the present value of his annuity, as that was as equitable as any other mode that could have been adopted, and attended with as little inconvenience.</p>

<p>1. Mechanics’ Liens — Building Erected by Lessee — Liability of Lessor’s Interest — Code, Sections 2175 and 2183. — Section 2475 of the Code, relating to mechanics’ liens, declares that where the claim of the mechanic “is for repairs only, no lien shall attach to the property repaired unless the said repairs were ordered by the owner or his agent.” Section 2483 provides that “if any person who shall cause such building or structure to be erected or repaired owns less than a fee simple estate in such land, then only his interest therein shall be subject to such liens.” When the provisions of these two sections are read together, it is clear that the interest of a lessor in a lot upon which the lessee has erected a building cannot be subjected to the liens of mechanics for erecting such building, unless the lessor caused the building to be erected thereon.</p> <p>2. Mechanics’ Liens — Landlord and Tenant — Improvements by Tenant. — A contract of lease by which the lessee is required to erect buildings on the leased premises does not constitute the tenant the agent of the landlord, nor give him the implied authority to create a lien upon the landlord’s interest in the leased premises for improvements made thereon, unless the lawmaking power expressly, or by necessary implication, enacts otherwise.</p> <p>3. Mechanics’ Liens — Improvements by Tenant — "Cause” to Be Erected — Code, Section 2183. — Where a lessee has covenanted by a written lease, duly recorded, to erect a building on the leased premises of a specified value, at his own expense, and such building is erected thereon by a mechanic under a contract with the lessee, by which the lessor is in no way bound, directly or indirectly, the building is not “caused” to be erected by the lessor, within the meaning of section 2483 of the Code, and the mechanic cannot assert a lien against the interest of the lessor in the leased premises.</p>

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

<p>1. Public Officers — Action for Reward.- — A deputy sergeant of a city, who, as j ailer, has custody of a prisoner, and obtains from him a confession which leads to the recovery and restoration of stolen property, cannot recover a reward offered therefor. Both public policy and sound morals forbid that he should be permitted to demand or receive any fee or reward therefor other than the compensation allowed by law for such service. The case is not within the exception made by section 1017-a of the Code in behalf of members of the police force of cities and towns.</p>

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

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

<p>1. Appeal and Error — Appeal on Only One Branch of a Separable Controversy. — Where several matters of a separable nature have been voluntarily submitted to and decided by this court, and a party having the right to appeal to the Supreme Court of the United States has, with full knowledge of his rights, appealed as to only one of them, and as to the others has taken no appeal and made no complaint, the decree of this court remains operative as to such other matters.</p>

<p>Error to a judgment of the Circuit Court of Henry county in a proceeding by motion for a judgment for money. Judgment for the defendants. Plaintiff assigns error.</p>

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

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

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

<p>1. Appeal and Error- — Inseparable Provisions — Acceptance of Part. — Where the provisions of a decree are inseparable, a party cannot, as a rule, avail himself of that portion of it which is agreeable to him, and secure its fruits, while prosecuting an appeal to reverse in the appellate court such portions as militate against him.</p>

<p>1. Demurrer — Effect of Failure to Pass On. — When the decree disposing of the main issue of a chancery suit makes no mention of a demurrer to the bill, the demurrer will be regarded as overruled.</p> <p>2. Rescission — Sale of Land — Prior Sale of Timber Without Knowledge of Vendee — False Representations. — A purchaser of land under a written contract which entitled him to a fee simple deed free from encumbrances, who has done nothing to impair or waive his rights but has at all times been prompt and ready in good faith to perform his contract, may maintain a bill to rescind the contract where it appears that shortly after entering into the contract he learned for the first time that the vendor had sold the timber on the land, worth several thousand dollars, to a third person who insisted upon his right to cut and remove the same, and the fact of such sale was not only not mentioned by the vendor, but the contrary was represented by him, and the value of the timber was mentioned by him as one of the inducements to purchase.</p> <p>3. Reformation — Failure to Allege or Prove Mutual Mistake or Fraud. — -A contract for the sale of land will not be reformed so as to make it subject to a prior sale of the timber thereon, where the contract was in writing, and was full and explicit in its terms and no mention was made therein, or elsewhere, of the outstanding timber contract, and it is neither alleged nor proved that there was a failure to exclude the timber from the written contract by innocent omission and under a mutual mistake, or that there was a mistake on the part of the vendor accompanied by fraud, or other inequitable conduct on the part of the vendee.</p>

<p>1. Fraudulent Conveyances — Anticipating Payments for Land.— In a suit to set aside a deed in which a son unites with a court commissioner in the conveyance of land to his mother, who had been substituted as purchaser in his place, on the ground that the deed was without consideration moving from the mother and in fraud of the creditors of the son, the fact that the mother anticipates the payment of the last bond given by the son for deferred payments of purchase money is no evidence of fraud, and if any explanation of the fact were necessary, it has been sufficiently made in the case in judgment.</p> <p>2. Evidence — Recitals . in Deed — Contradiction.-—The recital in a deed from a court commissioner that the purchase money for land conveyed was paid by the reported purchaser who united with the commissioner in making the deed to a third person may be contradicted by the grantee, who may show by parol that he paid the entire consideration.</p> <p>3. Fraud — Relationship as Badge — Scrutiny.—Relationship is not a badge of fraud. There is no law which forbids persons standing in near relations of consanguinity, affinity or business from dealing with each other, or which requires them to conduct their business with each other differently from the manner in which they conduct it with other persons. But when fraud is charged the dealings between near relations will be closely scrutinized, as secret trusts are more likely to exist between them than with strangers.</p>

<p>1. Wills — Construction—When “Or” to Be Construed “And.” — In order to give effect to the intention of a testator it is frequently necessary to read “or” as if it were “and,” and vice versa. The same is true also of deeds. Wherever the gist of the limitation is that the estate is to go over if the devisee fails to attain a certain age or to have issue, the word “or” must be read “and,” unless the instrument manifests a different intent, and both contingencies must happen before the limitation over will take effect; and if either event happen — if the devisee either attains age or has issue — the estate vests.</p> <p>2. Wills — Construction—Intention of Testator — “Or" Construed as “And” — Case in Judgment. — In construing a will, the intention of the testator, so far as it can be ascertained from the will, taking every clause and provision in it, and considering the condition and circumstances of the estate, and the relations of the testator and the various persons concerned, is to govern and be carried into effect so far as it can be done consistently with the rules of law. If, in so construing a will, the word “or” construed disjunctively would produce an absurdity, or defeat the manifest object of the testator, then it will be construed conjunctively if by so doing the object of the testator will be accomplished. In the case in judgment, the limitation over was in the event the first taker died “under age, or single, or childless,” and it is held that “or” is to be construed “and,” so that the limitation over does not take effect except upon the happening of all three of the events mentioned.</p>

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

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

<p>1. Verdicts — Motion to Set Aside — Evidence to Support. — Where a case has been properly submitted to a jury and a verdict fairly rendered, it ought not to be set aside, unless manifest injustice has been done, or the verdict is plainly not warranted by the evidence. The fact that the verdict is contrary to the preponderance of the evidence, or that the court, had it been on the jury, would have rendered a different verdict, will not change the result.</p> <p>2. Appeal and Error — Personal Injury Action — Death of Plaintiff After Verdict — Judgment.—If, in an action for a personal injury, the trial court erroneously sets aside a verdict for the plaintiff and awards a new trial, and on the second trial there is a verdict and judgment for the defendant, and. the plaintiff then dies, a writ of error may he applied for by his personal representative to review the action of the trial court on the first trial. As soon as final judgment was rendered the right of the plaintiff to apply for a writ of error attached, and that right, upon his death, devolved upon his personal representative. If the appellate court reverses the action of the trial court in setting aside the first verdict, it will enter up judgment for the plaintiff’s intestate on that verdict. It is a case of death after verdict and before judgment, and is expressly provided for by section 3305 of the Code. Moreover, the law will not suffer the rights of parties to be lost through the error of the lower court.</p> <p>3. Appeal and Error — Living Parties. — A. writ of error cannot be awarded to a person who is dead, and, if inadvertently done, the writ will be dismissed, but a new writ may be applied for by his representative.</p>

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

<p>1. Evidence—General Objection.—A general objection to evidence will be overruled where the evidence is admissible for any purpose.</p> <p>2. Ejectment—Evidence—Record of Another Suit—Exceptions to Rule.—Generally, in an action of ejectment the record of another suit between other parties not in privity with parties to the present suit is not competent evidence upon a question of boundaries, or the location of the land in controversy. But this rule is subject to two exceptions: First, where the record to which the plaintiff is not a party is introduced by the defendant in an action of ejectment to show adversary possession under a color of title, and, second, the record of a chancery suit is legal evidence for the defendant, as a link in his chain of title, though the plaintiff was not a party to the cause.</p> <p>3. Deeds—Description—Evidence to Vary.—Where a deed conveying land sets forth the metes and bounds with accuracy and precision, it is not error to refuse to admit in evidence the record of the proceedings to establish a road through or near the land, in order to establish a different boundary, as such record could not alter or affect said boundary.</p> <p>4. Appeal and Error—Rejection of Evidence by Trial Court.—This court will not review the action of a trial court in refusing to permit a witness to answer a question when it is not shown what answer would have been made to the question.</p> <p>5. Married Women-—How They Sue.—Since the enactment of section 2286-a of the Code it is no longer necessary for an adult married woman to sue by a next friend.</p> <p>6. Ejectment—Parties—Wife’s Common Daw Lands—Relinquishment of Husband’s Rights.—Where it appears that a husband has relinquished to his wife his marital right to the possession and profits of her common law lands, she may maintain an action of ejectment in her own name to recover the possession thereof.</p> <p>7. Ejectment — Parties—Satisfied Deed of Trust — Action by Grantor. — Where a deed of trust on a wife’s land has been fully satisfied and a release and reconveyance is made to the husband, the wife may maintain ejectment in her own name to recover the land from one unlawfully in possession thereof. Under the provisions of section 2742 of the Code, the trustee could not maintain ejectment for the land in the circumstances mentioned, and the husband who is cognizant of the facts stands on no higher ground. The effect of that section is to prevent the trustee from maintaining ejectment, and to authorize the grantor to maintain such action.</p> <p>8. Ejectment — Defendant—Party Claiming Title. — Under the provisions of section 2726 of the Code, a person who has had the land surveyed and regularly paid taxes on it and claims to own it may be made defendant to an action of ejectment to recover the land when no one is in the actual occupation thereof.</p>

<p>1. Deeds — All Unsold Lots — What Passes — Failure of Prior Purchaser to Record Deed. — -A deed from the grantor which conveys to the grantee “all the lots remaining unsold” in a designated plat of lots, duly recorded, and which expresses on its face the purpose and intention of the grantor “to convey all property now owned and controlled” by the grantor, conveys only such lots as the grantor then owned, and does not operate to convey lots which had been previously sold by the grantor to other persons who had not recorded their deeds. It is not a question as to what lots had been previously conveyed by deeds of record, but as to what lots had been previously sold, whether the deeds had been made and recorded or not.</p> <p>2. Deeds — All Unsold Lots — Failure to Record Prior Deed — Registry Acts. — The grantee in a deed conveying all the unsold lots in a designated plat is not a purchaser without notice as against prior purchasers of lots in the plat who have not recorded their deeds, as his own deed does not purport to convey them. Nor does the purchaser from such grantee stand on any higher ground. The recording acts do not apply to such a case.</p> <p>3. Quieting Title — Title of Complainant — Constructive Possession.— Possession follows, as an incident, the legal title to land not in the actual exclusive occupation of another, and this right of possession is sufficient to sustain a bill to remove a cloud on the title to the land until there is an actual adverse possession in another.</p>

<p>1. Venue—Failure to Deliver Goods Safely—Carriers.—The breach of duty of a carrier to deliver goods in good condition takes place where delivery is to be made, and the place of breach is the place where the cause of action arises. Hence upon a shipment of horses from St. Louis, Mo., to Norfolk, Va., the failure to safely deliver at Norfolk gives rise to a cause of action at that place.</p> <p>2. Foreign Corporations—Service of Process—Publication—Due Process.—If a foreign corporation doing business in this State is sued with a resident corporation of which the court acquires rightful jurisdiction, and has no agent in the city where the suit is brought upon whom process can be served, it may, upon proper affidavit, be proceeded against by order of publication in the manner provided by section 3225 of the Code, although it did no business in that city, and had no agent there. Such a procedure is not an infringement of the property rights of the foreign corporation, without due process of law. It assented to that mode of service, which had been previously prescribed, by doing business in the State.</p> <p>3. Joint Tort Feasors—Carriers—Injury to Stock by Connecting Carriers.—A joint action of tort may be maintained against the initial and connecting carrier for failure to deliver in good condition a consignment of horses to be transported by them from St. Louis, Mo., to Norfolk, Va. Both defendants are necessary factors in the connected undertaking to carry the horses from the one point to the other. There is concert of action in consummating a common purpose, and, if the horses are injured in transit, there is joint, concurrent negligence which makes the defendants joint tort feasors.' The defendants being engaged in a connected or common undertaking, the fact that their negligent acts are not simultaneous, but come successively into operation in producing the injury, does not destroy their liability as joint tort feasors.</p> <p>4. Carriers — Injury to Goods — Action by Owner — Contract by Agent — Privity.—The owner of goods may sue in ease in his own name to recover damages for an injury negligently inflicted thereon by a carrier, although they were billed-in the name of the owner’s agent, where the contract of shipment was made for the benefit of the ownei- and that fact was known to the carrier. This is all the privity that is necessary.</p> <p>5. Appeal and Error — Excessive Damages — Verdicts.—This court will not set aside a verdict for excessive damages unless it can plainly see that injustice has been done.</p>

<p>Error to a judgment of the Hustings Court of the city of Norfolk in a proceeding by mandamus. Judgment for the petitioner. Respondent assigns error.</p>

<p>1. Assignments—Accounts—Subdividing an Entire Claim.—While an account is assignable, a single cause of action cannot be subdivided by various assignments, without the consent of the debtor, so as to enable each assignee to institute an action at law in his name for the part so assigned to him. Such subdivision is not in accord with the debtor’s contract, and might subject him to many embarrassments and responsibilities not contemplated in his original contract.</p>

<p>1. Malicious Prosecution—Malice.—In an action for malicious prosecution malice may be implied from the want of probable cause if .the circumstances will warrant the implication, but the existence of malice may be repelled by the circumstances, though there was not good ground for the prosecution, and in such cases the action will not lie.</p> <p>2. Malicious Prosecution—Probable Cause—How Determined— Evidence of Accomplice.—In an action for malicious prosecution, want of probable cause must be determined by the facts known to the defendant and which influenced him in instituting the alleged malicious proceeding, and not by the facts developing on the trial. The facts and circumstances evidencing probable cause are to be viewed from the standpoint of the defendant, and not that of the plaintiff. Information received from one admitting his participation in a crime is sufficient to create probable cause for prosecution, if there is no reason to doubt its truth, although it may be subsequently shown at the trial that he was unworthy of belief.</p> <p>3. Malicious Prosecution—Probable Cause—Evidence of Good Character of Plaintiff—Case at Bar.—In an action for malicious prosecution, the fact that the defendant set on foot the prosecution upon information derived from an alleged accomplice and the evidence of another party as to suspicious circumstances connecting the plaintiff with the crime of larceny charged, and that he had no reason at the time to doubt their statements, and that upon the evidence of these two witnesses the plaintiff was sent to the grand jury, and was indicted by two separate grand juries for the offense alleged, constitutes prima facie evidence of probable cause to believe the plaintiff guilty, although he was subsequently acquitted on both indictments; and this evidence of probable cause is not overcome by proof of the fact that, up to the time of his arrest, the plaintiff uniformly bore a good reputation for honesty and integrity, and the defendant knew of such reputation.</p> <p>Í. Malicious Prosecution—Probable Cause—Plaintiff.’s Good Character.—While a man’s good character is not to be lightly put in jeopardy, yet, in the interest of good order and the upholding and enforcement of good citizenship, prosecutors of wrongdoers are not to be deterred from doing their duty to the public by the fear of being mulcted in heavy damages because of honest mistakes made in instituting criminal proceedings. If the prosecutor has acted in good faith in setting on foot a criminal prosecution, and had reasonable and probable cause to believe the accused to be guilty, no action can be maintained against him though the accused was in fact innocent.</p>

Judgment for the plaintiff. Defendant assigns error. The following instructions were given by the court on the motion of the plaintiff: (1) “The court instructs the jury that if they believe from the evidence that on January 9, 1909, Ralph Wiley, the plaintiff was about two and one-half years of age, then he is presumed to have been incapable of contributory negligence.

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

<p>1. Fraud — Conveyance from Husband to Wife — Presumption—Burden of Proof — Evidence of Debt — Account.—In a contest between the creditors of a husband and the wife over the validity of a deed from the husband to secure an alleged debt to his wife, the burden is on the wife to show by clear and satisfactory evidence the bona fides of the transaction. The presumptions are in favor of the creditors, and not in favor of the title of the wife. The mere fact that the wife holds an evidence of indebtedness of her husband'is not sufficient evidence that, at the time it purports to have been given, it was recognized as a debt and that they intended to occupy the relation towards each other of debtor and creditor. The burden upon this point is also upon the wife. Although the wife may have been engaged in business and kept a regular set of books, an account thereon against her husband, even if the books were admissible in evidence (a point not decided) is not sufficient to show a loan from the wife to the husband, and that there was a contemporaneous promise on his part to pay the debt.</p>

<p>1. Wills — Testamentary Intent — Declarations of Testator — Identifying Paper as a Will. — In determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of those circumstances, and if it shall appear under all the circumstances that the instrument was intended to be testamentary, the court will give effect to the intention, if it can be done consistently with the language of the instrument; but if there is nothing on the face of the paper to show its testamentary character, and declarations of the alleged testator are relied upon to show that fact, they must have been made at the time the paper was written, or, at least, must be shown to relate to the identical paper. It must in some way be made to appear satisfactorily that the very paper offered was intended to be a will.</p> <p>2. Wills — Testamentary Intent — Case at Bar — Declarations of Testator. — Conceding the testamentary capacity of the author, that the writing is wholly in his handwriting, including the signature, and that the beneficiary is sufficiently described, the words “Everything is Lous” which constitute the entire body of a paper written on the front page of a book, are not sufficient to show that the writer intended the paper as a disposition of his property to take effect after his death, and hence cannot be admitted to probate as his will. Nor will the fact that “Lous” referred to his wife, and that a witness had heard him say that he had made a will in favor of his wife alter the result:</p>

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

<p>1. Verdicts—Conflicting Evidence.—Where the evidence is conflicting, the verdict oí the jury is conclusive on questions of fact submitted to them.</p> <p>2. Evidence—Order of Introduction—Discretion of Trial Court.— The trial court has a large discretion with respect to the order in which testimony is to be admitted before it, and if this discretion is subject to control by this court in any case, the case at bar is not a proper case for the exercise of the right.</p> <p>3. Appeal and Error—Instructions—When Unnecessary to Pass On.—It is unnecessary to pass on the propriety of an instruction given at the instance of the defendant where the verdict is for the plaintiff. The defendant cannot complain of an instruction given at his instance, and the plaintiff in such case is not aggrieved by it.</p> <p>4. Instructions—Conflicting—Opposing Theories—Case at Bar.— The instructions given in the case at bar are not necessarily in conflict but are reconcilable the one with the other. They represent the opposing theories of the plaintiff and the defendants in the court below.</p>

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

<p>1. Witnesses — Impeachment—Prior Inconsistent Statements — Foundation — Questions to Impeaching Witness. — If it is sought to contradict a witness by proof of prior inconsistent statements, foundation therefor must first be laid by calling his attention to the alleged statements and to the circumstances under which they are alleged to have been made with such certainty as will enable him to identify the occasion referred to. After the foundation has been laid, it is the better practice to require of the impeaching witness categorical answers as to whether or not the witness made such statements, since the matter at issue is whether the witness, whose testimony is assailed, did or did not utter the statements attributed to him, but no inflexible rule can be laid down on the subject for the guidance of trial courts. In the nature of things more or less latitude must be allowed them. It is sufficient if the questions to the impeaching witness are within the warning questions propounded to the witness sought to be impeached.</p> <p>2. Trial — Improper Remarks of Counsel — Time of Objection. — Objection on account of improper remarks made by -counsel in his address to the jury should be made at the time, and the court be requested to instruct the jury to disregard them. Such objections come too late after verdict.</p>

Upon a petition for a writ of prohibition to prohibit the Honorable Daniel Grinnan, judge as aforesaid, from entering up the alleged award of the arbitrators—in the matter of arbitration proceedings instituted in said Chancery Court by George B. Hutchings against Andrew Pizzini and Andrew Pizzini, Jr.—as the judgment or decree of the said chancery court, under sections 3008 and 3009 of the Code, on the ground that the said sections are unconstitutional.

<p>Error to a judgment of the Corporation Court of the city of Fredericksburg in an action of trespass on the case. Judgment for the plaintiff who, being dissatisfied with the amount of the recovery, assigns error.</p>

The following instructions were given or refused, respectively, as indicated below: PLAINTIFF’S INSTRUCTION NO. 1 — GIVEN. “If the jury believe from the evidence that after the notices were posted by the defendant at different times, with respect to its employees using the skips, to be carried to and from within the mine at their own risk, the defendant did not refuse, but continued as before such notices were posted, to so carry its employees, including the plaintiff’s…

<p>1. Principal and Agent — Knowledge of Agent — When Not Imputed to Principal — Corporations—Fraud.—The general rule that knowledge of an agent acquired in executing his agency is imputed to the principal, and charges him with the liabilities which such knowledge imposes, has no application to the case of an officer of a corporation who, in an independent transaction for his own benefit, seeks to perpetrate a fraud on the corporation as well as upon a third person. In such case it is presumed that the officer did not communicate his knowledge to the corporation, and the latter is not chargeable with constructive notice thereof.</p> <p>2. Contracts — Ratification.—Before a corporation should be held to have ratified an unauthorized verbal agreement of its president to relieve the maker of a note held by it from its payment, both knowledge and specific acts of ratification should be alleged and proved.</p> <p>3. Equity Pleading — Ansioers—Motion to Dissolve Injunction.- — • Where a second amended bill in a case adds no new matter, an answer filed to the original and first amended bills puts in issue all matters of fact involved in the cause, and a motion to dissolve an injunction which is heard upon the pleadings, and upon affidavits read as depositions, is in accordance with general practice in this State.</p>

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

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

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

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

<p>1. Taxation — Assessment in Name of Owner After His Death.— Where there is no record or other evidence of the death of the owner of land, the failure to charge land to his estate upon the land-books, as provided by section 474, will not invalidate an assessment of taxes thereon in the name of such owner instead of his estate, and a sale thereof for delinquent taxes passes the title.</p> <p>2. Taxation — Listing Land by Color of Owner — Mistake—Effect.— The validity of an assessment for taxes on land is not affected by the fact that the land was registered on the land-book in the white list, when it should have been in the colored list. The requirement of section 464 of the Code, with respect to separate lists for white and colored tax payers, was a purely statistical measure, and its non-observance cannot affect the validity of the assessment.</p> <p>3. Tax Deeds — Recital of Date of Sale — Adjournment.—The recital in a tax deed that the sale was made on a designated day and year “after due advertisement as required by law” is a sufficient recital with respect to the fact of the sale, without specifically reciting the fact of the adjournment of the sale.</p> <p>4. Tax Deeds — Recital of Sale and Confirmation Essential to Validity. — The treasurer’s report of sale and the order of the court confirming it constitute “circumstances appearing in the clerk’s office in relation to the sale,” the recital of which is essential to the validity of the tax-deed under section 655 of the Code.</p> <p>5. Executors — Power to Sell Land — Title—Ejectment—Parties.—A direction in a will that land be sold by executors gives them only a power of sale, and no interest in the land. A suit to recover such land must be brought by the heirs. The title to the land devolved upon them upon the death of the testator, subject to be divested only by a lawful execution of the power of sale.</p> <p>6. Executors — Failure to Qualify — Administration “Without Will Annexed.” — Quare: If one dies leaving a will, and the executor fails to qualify, and another is appointed administrator only on his estate, without “the will annexed,” the validity of such appointment for any purpose may well be doubted.</p> <p>7. Parties — Misjoinder.—If an improper plaintiff be joined in an action of ejectment, the court should order an abatement as to him and proceed in the names of the other plaintiffs as provided by section 3258a of the Code.</p>

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

<p>Appeal from a decree of the Circuit Court of Mecklenburg county in a suit in chancery wherein the appellants filed their petition. Decree for the petitioners. Defendants appeal.</p>

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

<p>1. Dower — Relinquishment.—The law favors dower, and a widow will not he deprived of her dower, unless it is barred by the statutory requirements for that purpose.</p> <p>2. Dower — Case in Judgment — Jointure.—A husband covenanted to stand seized to the use of his wife for her life in one undivided moiety of a tract of land, and as to the remainder therein and the other moiety be covenanted to stand seized in fee to the use of the issue of their marriage. Subsequently, by a deed of separation between the husband and wife, in which her brother joined, the latter covenanted that the wife would relinquish her dower and all rights of dower in all lands then owned or thereafter acquired by the husband “other than the real estate named” in the two deeds aforesaid. After the separation, the wife, at various times, relinquished dower rights in the real estate of her husband, other than that mentioned in the two deeds aforesaid. Subsequently the husband died, his wife surviving and requisites for dower existing. The wife claimed dower in the moiety given to the children.</p> <p>Held: The widow is entitled to dower in the moiety given to the children, and it is not a case of jointure where the widow would be put to her election either to accept the benefits of the deed or renounce it and claim dower in lieu thereof.</p> <p>8. Husband and Wife — Settlement by Husband — Consideration.— The covenants on behalf of the wife, in the case in judgment, to support and maintain her infant children and not to claim dower in her husband’s other lands, furnished adequate consideration for the settlement made upon her by her husband.</p>

<p>1. Executions' — Garnishment—For What Garnishee Liable — Title in Garnishee — Fraudulent Transfers from Husband to Wife. — On a summons on suggestion, the court can make no order against the garnishee unless he owes a debt to the defendant in the execution, or has in his hands personal estate of such defendant, for which debt or estate the defendant could maintain an action at law. Personal property fraudulently transferred to a wife by her husband cannot be reached by a summons in garnishment on the wife upon an execution against her husband. The garnishment statute does not contemplate or operate upon estate in the possession of the garnishee to which he has title. Section 3614 of the Code furnishes an efficient remedy, by action at law or suit in equity, for reaching such property; or the execution creditor of the husband may ignore the transfer from the husband to the wife and levy on the property as that of the husband, and, upon proper proceedings had, have it sold, or the title thereto tried.</p>

<p>1. Tax Deeds — Validity—Notice to Former Owner — Code (190U) Sections 655 and 661. — A deed made to a purchaser at a delinquent land tax sale before he has given the four months’ notice required by section 655 of the Code (1904) is void. The failure to give such notice is not such an irregularity as is cured by section 661 of the same Code. In order for such purchaser to obtain the benefit of the provisions of section 661, he must have obtained his deed in accordance with the provisions of section 655. The authority of the clerk to make him a deed is a mere naked power, not coupled with an interest, and hence every requisite to its exercise must be strictly complied with.</p> <p>'2. Tax Deeds — Who to Execute — Statutory Requirements. — In the absence of a curative statute, if a tax deed be executed by a person other than the official designated by law to make the deed, it is a nullity. The same result follows if the designated official executes the deed before the time prescribed by law or before the purchaser has complied with the requirements of the statute.</p>

<p>1. Principal and Agent — Compensation of Agent — Performance of Work. — Where an agent assumes to do a specified act, he has no right to compensation therefor, as a general rule, until the specified act has been substantially performed. The same rule, as to the agent’s compensation, applies to agents appointed by a State as to those appointed by natural persons.</p> <p>2. Principal and Agent — Agent to Collect Claim of State — Compensation — Case at Bar. — The evidence in the case at bar does not show that the agents appointed by this State to recover a claim of the State against the United States rendered any services for which they are entitled to compensation, under their contract with the State, but, on the contrary, that after their efforts had proved unavailing, the State effected a settlement with the United States through the efforts of her representatives in Congress unaided by said agents.</p>

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

<p>1. . Dismissal and Non-suit — When Plaintiff May Suffer. — The plaintiff in an action at law, where no counter claim has been filed by the defendant, may suffer a non-suit at any time before the case has been submitted to the jury and they have retired from the court-room, or, if heard by the court, before the case is submitted to the court hearing it as a common law case.</p> <p>Error to a judgment of the Circuit Court of Loudoun county, on a petition for a mandamus. Judgment for the respondent. Petitioner assigns error.</p>

<p>1. Contracts—Construction—Evidence to Vary Terms.—Where a contract is in writing and is unambiguous in its terms, it is the province of the court to construe the instrument, and, as matter of law, to determine the relation between the parties thereto, and parol evidence will not be received to vary the terms thereof.</p> <p>2. Building Contracts—Guaranty of Workmanship—Bad Materials.—Viheve the owner of a lot agrees to pay a general contractor the net cost of the material and labor expended in the erection of a building and a given commission for his services, and the contractor engages to purchase the materials, employ the labor, and to superintend and direct the erection of the building, and guarantees that the workmanship shall be first class and satisfactory in every respect, such guaranty covers the materials used in construction, and obliges the contractor to protect the owner against the use of bad or unsuitable materials by himself, or subcontractors, in doing the work.</p> <p>8. Damages—Breach of Contract.—The measure of damages for the breach of a contract to construct a concrete floor of specified size and quality, is what it would cost to make the floor of the size and quality called for by the contract, that is, compensation.</p> <p>4. Appeal and Error—Objections for First Time—Offsets.—An objection that the jury did not allow a defendant any credit for a set-off as to which he offered no evidence cannot be made in the appellate court for the first time.</p> <p>5. Evidence—Complaints to Defendant’s Agent.—In an action against a contractor to recover damages for breach of contract to do work in a particular manner, the plaintiff may testify that, while the work was being done, he complained to the subcontractor, who as the agent of the defendant was doing the work, of the unsatisfactory character of the work.</p> <p>6. Evidence — Photographs.—It is not error to admit in evidence photographs of a floor for the defective construction of which the action was brought, especially in view of the fact that the jury viewed the premises.</p>

<p>Appeal from a decree of the Circuit Court of Brunswick county. Judgment for defendant. Petitioners appeal.</p>

<p>1. Boundaries — City Lot Abutting on Street — Abandonment of Part of Street. — Generally the grantee of a city lot bounded by a street, subject to the right of way, owns to the center of the street, and, consequently, where the location of the street in front of such owner’s lot is changed, for a distance not exceeding one half the width of the street, the abandoned portion necessarily enures to his benefit.</p> <p>2. Adverse Possession — Re-entry of Owner. — Although title by adverse possession be complete, it will be destroyed by the re-entry of the party having the paper title into actual possession, and holding the same by virtue of the paper title for the statutory period.</p> <p>3. Trusts and Trustees — Mortgages—Acts and Statements of Mortgagor Derogatory of Title. — The grantor in a deed of trust . cannot, by any subsequent act of his, affect the rights or title of the trustee, or a purchaser from him. He is a mere tenant at will or sufferance of the trustee or purchaser from him, by whom he may be ejected without notice, and cannot by word or act affect their title, nor can he convey any greater rights to any other person.</p> <p>4. Trusts and Trustees — Mortgages—Verbal Acknowledgment by Mortgagor Before Conveyance — Notice to Purchaser. — A purchaser of land from a trustee in a deed of trust to secure debts will not be affected by a verbal acknowledgment made by the grantor prior to making the deed adversely affecting his title to the land granted, nor by a written contract agreeing to hold the land as tenant of another, of which the purchaser had no notice, where the possession of the grantor was consistent with his apparent title, and his previous possession thereunder. In such ease the purchaser’s possession is presumed to be under the grantor’s previous title, and not under the contract - of lease. In order to charge such purchaser with notice of the lease, the possession of the grantor in the deed of trust must have been inconsistent with his apparent or record title.</p> <p>5. Instructions — Supplying Omissions. — An omission in one instruction may be supplied by a proper statement in another instruction when it appears that the jury could not have been misled by the omission.</p> <p>6. Ejectment — Title of Plaintiff. — A plaintiff in ejectment must recover, if at all, on the strength of his own title, and not on the weakness of that of the defendant.</p>

Judgment for the defendant. Plaintiff assigns error. The following instructions were given by the court upon the motion of the defendant: “ (1) The court instructs the jury that the track of a railway company is of itself a proclamation of danger to a traveler, and that he must not only use his eyes and ears, looking and listening in both directions, but he must, when about to cross a track, look and listen, so as to make these acts reasonably effective.

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

<p>1. Fire Insurance—Prohibition Against Fireworks—Violation— Custom—“General Merchandise.”—There can be no recovery on a fire insurance policy on a building in which “fireworks” are kept where the policy provides that it shall be void if “fireworks” are kept, used or allowed on the premises (any usage or custom of trade to the contrary notwithstanding). It is immaterial that, at the date of the policy, the building was used for general merchandise purposes and that it was usual for general merchandise stores to keep and sell such goods in that community. The fact that fireworks are usually kept in country retail stores does not authorize their being kept and sold by one who has contracted in writing that he will not deal in them, and that the policy shall be void if violated in that particular. Contracts of insurance are subject to the same rules of construction that are applicable to other written contracts.</p> <p>2. Fire Insurance—Construction of Policy—Written and Printed, Parts.—The rule that the written portion of a policy overrides the printed only applies where the conflict between the two is irreconcilable. The two parts must, if possible, be construed together so as to give effect to both, and the written part of a policy never overrides the printed part except when the two are inconsistent and not capable of a reasonable interpretation when read together. One clause of a policy should never be segregated and an effect given to it inconsistent with the apparent intention of the parties as gathered from the whole instrument.</p> <p>3. Fire Insurance—Policy—Fireworks—Waiver—Custom.—A party by accepting a policy forbidding the carrying of “fireworks” in stock thereby surrenders the right to carry such goods in stock, though it is customary for others doing a like business to carry them.</p>

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

<p>1. Demurrer — One Good Count. — A demurrer to a declaration as a whole should he overruled if there is a single good count in it.</p> <p>2. Malicious Prosecution — Conviction of Crime Reversed — Probable Cause. — In an action for malicious prosecution a conviction of a crime before a justice of the peace, though reversed on appeal, is conclusive evidence of probable cause for setting on foot the criminal prosecution, unless such conviction was procured by the defendant through fraud or by means of evidence which he knew to be false. Blanks v. Robinson, 1 Va. Dec. 600, overruled.</p> <p>3. Malicious Prosecution — Acquittal—Probable Cause. — In an action for malicious prosecution, the acquittal of the accused is not evidence of the want of probable cause, but such evidence is admissible to show that the prosecution has terminated.</p> <p>4. Malicious Prosecution — Declaration—Allegation of Conviction Reversed. — A declaration in an action for malicious prosecution which shows on its face that the plaintiff was convicted by a justice of the peace of the crime which is the basis of the action, but fails to allege that such conviction was procured by the defendant by fraud, or by means of evidence which he knew to be false, is bad on demurrer.</p>

Judgment for the plaintiffs. Defendants assign error. The following is a copy of the notice of the motion for a judgment referred to in the opinion of the court, and of the note sued on: Notice. “To A. A. Saunders, Neva S. Prince and Clara C. Saunders: “Take notice that on Monday, the 18th day of October, 1909, that being the first day of the October term of the Circuit Court for the county of Mecklenburg, Virginia, as fixed by law, The Bank of Mecklenburg, suing for the…

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

<p>1. Evidence—Presumption of Death.—The presumption of death from seven years’ absence from the State only arises at the end of the seven years. There is no presumption of death at any time within the seven years, or that a party is alive at any particular time within that period, and the burden is on the party asserting such a claim to prove it by evidence satisfactory to the jury.</p> <p>2. Life Insurance—Proof of Loss—Province of Court.—Whether or not satisfactory proofs of a death loss under a life insurance policy have been furnished is, in the first instance, a question to be passed upon by the court as constituting a condition precedent to the right to bring suit.</p> <p>3. Life Insurance—What Is “Satisfactory Proof of Loss.”—-There is no precise standard for determining what constitutes “satisfactory proof of loss” under a life insurance policy. But if the preliminary proofs are such as, when introduced upon the trial of the ease, standing alone and without further proof, would be sufficient to support a verdict of a jury in favor of the plaintiff, they should be held to be satisfactory, as a condition precedent to the institution of an action. In the case at bar, the evidence does not satisfactorily prove the death of the assured.</p> <p>4. Life Insurance—Presumption of Death—Computation of Time.— Evidence tending to raise the presumption of the death of an assured who has disappeared and not been heard from must be considered as of the time the proof of loss was rendered, and certainly not later than the time of institution of suit. The period elapsing between the institution of the suit and its termination should not be taken into consideration. Furthermore, to warrant a recovery on a life insurance policy, it is incumbent on the plaintiff to show that the death of the assured occurred during the life of the policy.</p>

<p>Error to a judgment of the Circuit Court of Brunswick county in an action of ejectment. Judgment for the plaintiff for a part of the land claimed. He assigns error as to residue.</p>

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

<p>1. Ejectment — Verdict—Certainty—Description of Land — Oyster Land. — Where the verdict in an action of ejectment is for a part only of the land sued for, the boundaries of the part recovered should be designated. The verdict must be certain in itself, or must refer to some certain standard by which to ascertain the land found, otherwise it will be too uncertain to render judgment thereon. If a riparian owner seeks to recover oyster planting ground as appurtenant to land owned by him, he must first establish his title to such land, and clearly locate its boundaries in order to determine the extent of the servient tenement.</p> <p>2. Ejectment — Evidence—Outstanding Legal Title. — In an action of ejectment, a prior grant from the Commonwealth to another than the plaintiff is admissible in evidence as tending to show an outstanding legal title to the land in controversy.</p>

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

<p>1. Brokers — Beal Estate Agents — When Entitled to Commissions— Case at Bar. — A real estate broker to be entitled to compensation must complete the sale. He must find a purchaser in a situation ready and willing to complete the purchase upon the terms agreed upon before he is entitled to his commissions. When he has found such a purchaser, who has entered into a valid contract, his right of compensation cannot be defeated by the fault of the seller, by his misrepresentation, or by his whimsical or unreasonable refusal to comply with his contract. In the case at bar, terms were agreed upon by the vendor and vendee, and the contract reduced to writing, but not signed. Shortly thereafter a contract prepared by the vendee’s attorney was tendered to the vendors for their signature, but they refused to sign because it was essentially different from the contract made by the parties in that it contained terms that they had not agreed to, and omitted others that had been agreed upon. Thereupon the purchaser’s attorney insisting upon the contract as prepared by him, the vendors declared the sale off, and sold to another purchaser for an advance price.</p> <p>Held: The vendors were not, under the facts of this case, either unreasonable or whimsical in refusing to execute the contract which the attorney for the vendee insisted upon. There was no completed contract of sale, and hence the broker is not entitled to any commission.</p> <p>2. Appeal and Error — Correct Verdict — Rulings on Instructions.— This court will not enter upon an examination of instructions given and refused upon the trial, where, upon the facts presented to the jury they could not, with propriety, have found any other verdict than that at which they arrived.</p>

<p>1. Interstate Commerce — Railroads—Fixing Local Passenger Rates. — An interstate passenger rate fixed by the State Corporation Commission which is less than was charged by a railroad company when unrestrained for both interstate and intrastate passengers cannot be said to amount to or operate as a regulation of, or substantial burden upon interstate commerce.</p> <p>2. Railroads — Passenger Rates — Rulings of State Corporation Commission — Case at Bar. — Where a railroad is built, maintained and operated essentially for interstate purposes, and the intrastate business is merely incidental — only about five per cent of its total business — and is so inconsiderable and comparatively of such minor importance as to render the ordinary methods of distribution of burdens and benefits between the two classes of business impracticable, it is not feasible to fix the maximum rate of compensation for carrying passengers on the basis of comparative values; and where the State Corporation Commission has, upon other considerations, fixed what it regarded as a reasonable maximum rate, the burden is on the railroad company to show that the rate so fixed is not reasonable, and on appeal from its decision this court, under the express mandate of the Constitution, and under the rule of decision adopted by the Supreme Court of the United States, must regard the action of the commission as prima facie just, reasonable and correct. Upon the evidence in the case at bar, this court cannot say that the rate fixed by the commission is not just, reasonable and correct.</p>

<p>1. Boundaries — Description of Land — Deficiency in Quantity — Case in Judgment. — The owner of a tract of land intending- to sell the whole tract, and believing it to contain sixty acres, sold the western half thereof to one purchaser and the eastern half to another, describing each half as containing thirty acres. In each case the vendor pointed out to the purchaser the lines of the property sold, and they got the identical pieces of land that they purchased, bounded by the very lines which they had contemplated and which had been pointed out to them, but the acreage of each piece was seventeen and one-fourth acres, instead of thirty as was supposed. Subsequently it was ascertained that the vendor was mistaken, as to the location of his western boundary and that the true line was further west than he had supposed, and different from the line he had shown to the purchasers, and the area of the difference between the two lines was 14.2 acres. This area the purchasers claimed to have passed to them under their deeds.</p> <p>Held: The 14.2 acres did not pass by the vendor’s deeds, and is still his property. The purchasers got the exact lands they proposed to purchase, though of less acreage than was supposed, and it is not to be presumed that the vendor intended to sell that which he did not know that he owned.</p>

<p>Error to a judgment of the Court of Law and Chancery of the city of Roanoke, 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 Montgomery county. Decree for the defendants. Complainants appeal.</p>

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

<p>Appeal from decrees of the Circuit Court of Dickenson county. Decree for complainant. Intervenors in attachment proceedings appeal.</p>

Section 57 of the charter of the city of Radford, referred to in the opinion of the court, is as follows: “The city council may levy a tax on licenses to agents of insurance companies, which principal office is not located in said city; to auctioneers; to public, theatrical or other performances or shows; to* keepers of billiard tables and ten-pin alleys; to hawkers and peddlers; to agents for the renting of real estate; to commission merchants; and to any other business,…

From the rulings of the trial court on exceptions to the report of the commissioner settling the account of a receiver, complainants appeal.

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

<p>1. Sanity — Presumption-—Burden of Proof. — As a general rule all men are presumed to be of sound mind, and the burden is upon him who alleges the contrary to prove his allegation. The case in judgment is no exception to this general rule.</p> <p>2. Undue Influence — What Constitutes — Burden of Proof.- — Undue influence to defeat a deed or will must be sufficient to destroy free agency on the part of the person executing the instrument. It must amount to coercion, practically duress. It must be shown to the satisfaction of the court that the party had no free will, but stood in vinculis; and the burden in such case is always upon him who charges undue influence.</p> <p>3. Deeds- — Mental Capacity — Witnesses at Factum — Invited Witnesses — -Other Witnesses. — Where the mental capacity of the grantor in a deed is assailed, the testimony of witnesses who were present at the factum is more to be relied on than the mere opinions of other witnesses who have in the most casual and transient way seen the grantor, and whose conclusions with respect to the subject of inquiry rest upon no substantial basis; and the fact that those present at the factum came without the knowledge or invitation of the grantor, is not a suspicious circumstance when it appears that they came at the suggestion and under the advice of counsel who prepared the deed.</p> <p>4. Deeds — Execution—Beading.-—It is not necessary that a deed should be read by or to the grantor therein at the time of its execution, where it sufficiently appears that he knew its contents.</p> <p>5. Deeds — Validity—Former Will Devising Land to Others. — The fact that a man makes a will dividing both his real and personal property among all of his children, and six years thereafter conveys his land to his three youngest children by a second wife, and does not destroy his will, has no tendency to impeach the validity of the deed, but simply shows a change of purpose.</p> <p>6. Deeds — Wills—Mental Capacity — Old Age. — The law prescribes no limit in point of age beyond which a person cannot dispose of his property. A man eighty-nine years of age is often as capable of making a deed or will as at any other period of his life. The greatness of his age is not proof of mental incapacity.</p> <p>7. Deeds — Wills—Mental Capacity — Unequal Disposition of Property by Parent. — An unequal disposition of property by a father among his children does not indicate mental incapacity. Courts cannot measure the size of people’s capacities, nor examine into the wisdom and prudence of men in disposing of their property. If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will or deed stands as a reason for his actions.</p>

<p>Error to a judgment of the Circuit Court of Tazewell county, and also appeal from a decree of the same court. Judgment and decree for Harman Blankenship, who was a defendant in both the action at law and the suit in chancery. Plaintiffs appeal.</p>

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

<p>1. Easements — Right of Way by Prescription — How Title Acquired. In order to acquire title by prescription to a right of way over lands of another, the use and enjoyment thereof must be with the knowledge and acquiescence of the owner. It must be adverse, continuous and uninterrupted for at least twenty years, and along a definite line of travel. Moreover, the use must be exclusive in the sense that it does not depend for its enjoyment upon similar rights in others. Furthermore, title by prescription will not arise simply from a use by the permis- ' sion of the owner, for use by permission can never ripen into title. In the case at bar, the use was permissive, and in no sense founded on adverse claim.</p> <p>2. Easements —Judicial Determination — Estoppel — License. — An order dismissing a petition for a public road and refusing to establish it, because the owner of the land through which the proposed road would pass testified that he had given permission to the petitioner, and all others interested in the road, to use the same at any and all times, and that he had no intention to revoke that permission, is not an adjudication that the petitioner had a right to use the road without the permission of the owner, and does not estop the owner from revoking the permission previously given at any time he may think fit. The license given by the owner remained a license, and was revocable at the pleasure of the licensor.</p> <p>3. Easements — Part Performance by a Licensee — Equitable Easement — Revocation.-—If the permissive use of a right of way be such that, if it were under seal, it would create an easement, it being classed as a license merely because it is oral, upon a part performance thereof by the licensee by the expenditure of money or otherwise, a court of equity may regard it as an equitable easement, and therefore irrevocable.</p>

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

Judgment for the plaintiff. Defendant assigns error. ■ The trial court refused to give instructions numbered 2, 8, 4 and 15 tendered by the defendant..

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

Suit for partition was brought by James H. Shoemaker against John Shoemaker and others. In this suit Bona Shoemaker filed his petition claiming the share of his father Isaac Shoemaker. The Chapman Drug Company and others filed petitions claiming that the conveyance from Isaac to his son was fraudulent and void, and asking to have it set aside. From a decree in their favor Bona Shoemaker appeals.

<p>1. Wills—Construction—Conditional Limitations.—Under a devise to testator’s three sons, and in the event that either of them shall die withóut issue his share is to fall back to the surviving' ones and they to pay to their four sisters one hundred dollars, the three sons take a fee simple estate, with a conditional limitation over that if one. or more of them shall die, leaving no issue, his or their share, as the case may be, shall go to his surviving brothers or brother; and the estate of the last surviving brother, if he die without issue, will not be defeated and go over to his sisters, but will vest absolutely in him, there being no gift over.</p> <p>2. Deeds—Conveyance of Contingent Interests—Code, Sections 2418, 2488, 2fy39.—Under the provisions of sections 2418, 2438 and 2439 of the Code, the devisees under such a will as is mentioned in the previous paragraph have the right to convey and relinquish all their right, title and interest in the land devised, both present and contingent, and the effect of the language and the warranty in the deeds in the case in judgment was to invest the grantee in each of those deeds with the absolute fee simple title to that portion of the land devised covered by the respective deeds.</p>

<p>1. Damages—Injury to Standing Timber—Time of Assessment—General Rule—Exception.—As a general rule, the damages for negligently injuring standing timber ought to be ascertained as of ■ the date of the fire. But the facts of the particular case may be such as to take it out of the general rule. Where, for instance, there is no market for the injured timber as it stands, or the owners of it are infants and the timber cannot be disposed of promptly, then a different rule should apply.</p> <p>2. Damages—Injury to Standing Timber—Infant Owners—Deterioration of Timber Pending Suit to Sell.—In estimating the damages done to standing timber belonging to infants who are unable to sell it without the aid of a court of equity, there should be taken into consideration such deterioration, if any, resulting from the injury as would naturally and probably take place during the time reasonably necessary to obtain a decree and effect a sale of it, as such loss should be borne by the party inflicting the injury, and not by the infants.</p> <p>3. Damages—Injury to Standing Timber—Time of Assessment— Instructions.—In an action to recover damages for injury by fire to standing timber of infants, it is error to instruct the jury that the measure of damages is the difference between the fair cash value of the timber before the fire and a fair cash value after the fire, taking into consideration the deterioration, if any, arising as a natural and probable result of said fire within a reasonable time for marketing the same, where one of the plaintiffs had been permitted to testify, over the objection of the defendant, that, situated as he was, it would take him three or four years to remove the injured timber and that at the end of two years much of it would be worthless, and in the absence of any evidence as to the time within which a disposition of the timber could probably be made through the aid of a court of equity. The instruction could not have aided the jury in coming to any just conclusion, was inapplicable to the evidence, and could but have misled them.</p> <p>4. DAMAGES — Injury to Standing Timber — Evidence of — Time Required to Market. — In an action to recover damages for injury done by fire to standing timber, it was error to permit the plaintiff to testify as to the time it would take him to remove and market the timber, situated as he was. The question was not what the plaintiff could do, situated as he was, but what would be a reasonable time within which the timber could be marketed.</p> <p>5. Damages — Injury to Standing Timber — Measure of Damages.— In an action to recover damages for injury by fire to standing timber, where the pliantiff is sui juris and the timber has a market value at the time of the fire, the measure of damages is the difference between the market value of the injured timber immediately before the fire, and its market value immediately after the fire.</p> <p>6. Evidence — Origin of Fire — Opinion of Witness. — In an action to recover damages for injury resulting from a fire alleged to have been set out by a railroad engine, a witness cannot be asked, “if there was any other possible way for the fire to begin to burn from where jou saw it,” as it merely calls for the opinion of the witness upon a subject where opinion evidence is clearly inadmissible.</p> <p>7. Evidence — Matters of Common Knowledge — Opinion Evidence.— Opinion evidence is not admissible on matters of common knowledge, but if admitted it is generally mere harmless error.</p> <p>8. Evidence — Relevancy—Direction and Velocity of Wind at a Different Time and Place from that Alleged. — Where it is material to establish the direction and velocity of the wind at a particular hour of a designated day and at a certain place, the testimony of a witness as to the direction of the wind at a later hour of the same day, and of another witness as to the direction and velocity of the wind at another place some twenty or thirty miles distant, is admissible for what it is worth, as tending to show the direction and velocity of the wind at the time and place designated.</p>

<p>1. Landlord and Tenant — Assignment of Lease — Restrictions on Assignments. — In the absence of express prohibition all leases are assignable, and if it is intended to restrict and bar the power of assignment, it must be done by special and precise stipulations. Such restrictions, however, are not favored by the law and are strictly construed.</p> <p>2. Landlord and Tenant — Assignment of Lease — Notice to Terminate — Right of Assignee.- — Where property is leased for certain designated purposes, and the lessee covenants not to use the premises for any other purposes, nor to sublet them or any portion thereof, to be used for any other purpose without the consent of the owner, the manifest intent is that the lessee may sublet, without the consent of the lessor, for the purposes specified. If, in such a lease, the lessee is given the right, under given contingencies, to terminate the lease upon written notice to the lessor, the assignee of the lessee may do the same.</p>

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

<p>1. Lacees — Mere Delay Without Injury to Any One. — Mere delay is not always to be considered laches; and if the facts and circumstances of the case in judgment do not fully explain the complainant’s delay in asserting her claim to a legacy given to her, it satisfactorily appears that the legacy has never been abandoned or paid, and that no injury will result to any one from subjecting to its payment the land upon which it is charged.</p> <p>2. Equity Pleading — Answer Setting Up - Affirmative Matter■— Effect. — Where an answer is not responsive to the bill, or sets up affirmative allegations of new matter in avoidance of the complainant’s demand, and is replied to, the answer is of no avail as evidence in respect to such allegations, and the respondent is as much bound to 'establish the allegations by independent testimony as the complainant is to sustain his bill.</p> <p>3. Wills — Legacy—Time of Payment. — The requirement that a legacy charged upon land devised shall be paid when or as soon as convenient means that it is payable in a reasonable time, under all the circumstances of the case, and not that it shall never'be paid, or not paid until after the death of the devisees.</p> <p>4. Appeal and Error — Suit to Subject Land to Legacy — -Parties— Objection Not Made in Trial Court. — Where land charged with the payment of a legacy has been conveyed by the devisees to a third person, and a suit is brought to subject the land to the payment of the legacy after the death of the devisees, and their personal representatives are not made parties, and there is no demurrer to the bill nor objection made in the trial court on that ground, and there is no suggestion that the devisees left any personal estate out of which the legacy could be paid even if their personal estate, under the facts of the case in judgment, would be liable for its payment, this court will not reverse the decree of the trial court subjecting the land to the payment of the legacy, on account of the absence of such personal representatives.</p>

Judgment for the plaintiff. Defendant assigns error. The opinion states the case.

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

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

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

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

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

<p>1. Landlord and Tenant — Right of Distress. — Distress for rent will not lie unless the relation of landlord and tenant exists between the parties. The right is not only incident to that relation, but is dependent upon it.</p> <p>2. Landlord and Tenant — Lease—License—Agreement to Pay Royalties — Case at Bar. — An agreement whereby the owner of a limestone quarry agrees to let another take stone from the quarry for a stipulated time, and the other party agrees to furnish all necessary machinery to quarry and remove not less than a stated amount of stone each and every working day, and pay to the owner a royalty of ten cents a yard for the stone, which royalties are to be paid weekly, and in default of such payment all operations are to cease until the royalties are paid, is a license and not a lease. Where the land is still to be considered in the possession of the grantor, and the grantee has acquired no estate in it, in respect of which he may bring an action of ejectment, the instrument of grant will only amount to a license.</p>

<p>1. Taxation — Tax Deeds — Recitals.—Where the Commonwealth has sold to an applicant land previously purchased by it for delinquent taxes, and the clerk has made a deed to the applicant, it was not intended that the deed should be conclusive evidence of compliance with the essential requisites in the assessment of taxes, but it was intended to dispense with all other steps required by the statute preliminary to the sale, and to the execution of the tax deed in pursuance thereof, or to make such steps merely directory.</p> <p>2. Taxation — Tax Deeds — Recitals.—-While section 666 of the Code (1904) does provide that applicants to purchase land sold to the Commonwealth and unredeemed shall pay to the clerk (to whom the application is addressed) ten per cent, of the amount of the proposed purchase price of said land; provided that the deposit . . . shall in no case be less than one dollar, it is provided by section 661 of the Code that when a deed has been recorded the title shall stand vested in the grantee subject to be defeated only by proof that the taxes or levies for which the real estate was sold were not properly chargeable thereon, or that the taxes and levies properly chargeable thereon have been paid; or that notice of the application to purchase has not been duly given, or that the payment or redemption of said real estate was prevented by fraud or concealment on the part of the purchaser.</p> <p>3. Taxation — Tax Deeds — Recitals—Case in Judgment. — The recitals in a tax deed from a clerk that the preliminary deposit of ten per cent, of the purchase price (or a minimum of one dollar) was made when the application was filed, and that within five days after the application matured there was paid to the clerk all taxes, levies, interest, &c. (being the full amount necessary to purchase said real estate from the Commonwealth) , even if treated as only prima facie of the facts recited, is not overcome in the case at bar by the affidavit that the tax receipts (which had been lost) all bore the date when the application matured, nor by the deductions from the recital as to the amount paid when the application matured that less than one dollar must have been paid when the application was filed.</p>

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

<p>1. Wills — Construction—“Or” Construed as “And” — Defeasible Fee.—Upon a devise to a daughter, but if she should die “without a husband or issue” the property is to go to other named devisees, the word “or” should be construed as “and,” thus requiring the absence of both conditions to defeat the estate of the daughter. If she dies leaving both a husDand and issue, or leaving issue and no husband, or a husband and no issue, in any one of these events she. will take a. fee simple estate. If she dies without a husband and without issue, then the property will go over under the will to.the other named devisees.</p>

<p>Appeal from a decree of the Circuit Court of Rocking-ham county. Decreé-for the defendant. Complainant appeals.</p>

<p>1. Brokers — Beal Estate Agents — Contract to Sell at a Fixed Price— Commissions. — Under a special contract between the owner of real estate, and an agent for the sale thereof, on commission, at a price agreed upon, the agent cannot recover his commission without proving that he has actually made a sale at the price stipulated (or, at least, procured a purchaser who was ready and able to pay the price named), unless it appear that his principal has wrongfully prevented the making of a sale at such price, which would have been made but for his interference, or has waived the strict performance of the contract. The agent may have made a hard contract, but, in order to recover, he is bound to show compliance with it.</p> <p>2. Brokers — Commissions—Prevention of Sale. — Where the owner of land has employed a broker to sell it at a fixed price, but the broker is not given the exclusive right to sell, a subsequent sale by the owner to a purchaser not procured by the broker is not a wrongful prevention of a sale by the broker which would otherwise have been made by him.</p>

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

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

<p>1. Infants — Custody—Children’s Home Society. — -The act of Assembly creating the Children’s Home Society of Virginia furnishes no authority for depriving a mother of the care and custody of her children by a former husband merely because she has married the second time into a family lower in the social scale than that in which she was reared, even though her husband has negro blood in his veins, unless he has such an amount of such blood as, under our laws, would prohibit his marriage with a white woman. The mother, the father of the children being dead, however poor and humble she may be, being of good moral character and able alone, or with the assistance of their stepfather (also of good moral character) to properly support and care for her children, and who is supporting and caring for them, cannot be deprived of that privilege by the defendant in error under the provisions of its charter. ■</p>

Judgment for the defendants. Plaintiffs assign error. This is a proceeding by notice and motion under section 3211 of the Code.

Judgment against the defendant for only a part of the premises claimed. Plaintiffs assign error. The lot in controversy was conveyed to Jennie Powell for her life with remainder in fee to her children by her then husband. Subsequently she and her husband conveyed the land, with general warranty as to both of them, to Jane C. Frittz.

<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>

Judgment in favor of all of the defendants but one. Plaintiff assigns error.

<p>1. Champerty — Recovery Refused Under Quantum Meruit. — Champertous contracts are, in this State, unlawful and for that reason void, and compensation for services rendered under them cannot be recovered upon a quantum meruit, any more than upon the contracts themselves. Courts will not permit that to be done by indirection which they refuse to allow to be done directly. An agreement by an attorney to carry on litigation at his own expense is in itself illegal, and there can be no recovery either on the agreement, or for services rendered thereunder.</p>

<p>1. Equity — Bill of Interpleader — Effect of Statutes. — Statutes providing for interpleader proceedings, except where they enlarge the rules governing bills of interpleader ''(and ours does not) do not at all limit or affect the equitable/ jurisdiction by suit. They merely furnish another special,'cumulative and concurrent remedy.</p> <p>2. Equity — When a Bill of Interpleader May Be Filed. — The equitable remedy of interpleader, independent of statute, depends upon and requires the existence of the four following elements, which may be regarded as its essential conditions: (1) The same thing, debt or duty, must be claimed by both or all the parties against whom the relief is demanded; (2) All their adverse titles or claims must be dependent upon or derived from a common source; (3) The person asking the relief (the complainant) must not have nor claim any interest in the subject matter; (4) He must have incurred no independent liability to either of the claimants, that is, he must stand perfectly indifferent between them, in the position merely of a stake-holder.</p> <p>3. Equity — Interpleader—Want of Privity. — Where there is no privity between the claimants, where their titles are independent, not derived from a common source, but each is asserted as wholly paramount to the other, the stake-holder is obliged to defend himself as well as he can against each separate demand. A court of equity will not grant him an interpleader.</p> <p>4. Equity — Interpleader—Want of Privity — Independent Liability to One of Claimants — Case in Judgment. — Where a fund claimed by two parties under independent titles, not derived from a common source has been received by a bank as the debtor or bailee of one of the parties, it cannot maintain a bill of inter-pleader to settle the title thereto. There is both a want of privity between the opposing claimants, and an independent liability on the bank to one of them.</p>

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

<p>1. Fraud — Conveyance from Husband to Wife — Mistake—Trust for Wife. — Where land was bought and paid for by a wife with her own means and for her own benefit, and her husband did not have and was never intended to have any interest therein, but, by mistake of the scrivener and without direction from either husband or wife, the conveyance was made and delivered to the husband, a trust was thereby created by law in favor of the wife, and if at the same time that the deed to the husband is recorded there is also recorded a conveyance of the same property from the husband to his wife, the wife is thereby invested with both the legal and the equitable title to the property, and it is not subject to liability for the debts of the husband.</p>

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

<p>1. Appeal and Error — Equity Pleading — Final Decree. — A decree which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court, is to be regarded as final; and, on the other hand, every decree which leaves anything to be done by the court in the cause is interlocutory as between the parties remaining in court. A decree which fixes the amount of the fee of counsel employed by a trustee, but refers other questions at issue between the parties to a master for report is not final.</p> <p>2. Trusts and Trustees — Right of Trustee to Employ Counsel.— Trustees who in good faith engage the services of counsel to aid them in the execution of their duties, even where not expressly authorized, are entitled to pay them out of the trust fund, or to be reimbursed out of that fund for all expenses which they have properly incurred, including reasonable fees to attorneys. But something more than good -faith is necessary to justify the trustee in the employment of counsel. There must be some reasonable ground,- to justify the trustee, and to render the employment of counsel reasonably necessary to aid the trustee in the discharge of his duties, and the protection of the trust property. The trustee in a deed of trust to secure debts is the agent of both parties, and bound to act impartially between them. If the grantor in such a deed enjoins the trustee from making a sale under the deed, and makes the creditor, who is sui juris, a party defendant along with the trustee, the trustee has no interest in the litigation, and no right to charge the trust fund with the payment of fees of counsel employed by him to defend the suit.</p>

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

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

<p>1. Negligence — Explosives—Blasting—Demurrer to Evidence — Case at Bar. — A contractor who was engaged in work near a railroad track, in the course of his work, caused a large quantity of rock to be blown down on the track entirely obstructing the passage of trains, and it was necessary to break these rocks with dobie blast in order to remove them. While this was being done, the plaintiff, who was assistant trainmaster of the railway company, and as such charged with the duty of giving special attention to the movement of trains, of investigating the detention of trains, and of clearing the track of obstructions, went to the place of obstruction. Being informed that blasts were about to be put off, he and others retired to a place of safety and remained there until four blasts had exploded, when the contractor’s foreman called out “all over, boys, come on back,” and set out with his men to resume work. The plaintiff and others followed the foreman, and the plaintiff, addressing him by name, enquired at what time they could clear the track. About that time the plaintiff directed the foreman’s attention to smoke arising from a nearby rock, and enquired of him what it was that was smoking, but was assured that it was “nothing” and that there was “no danger.” The plaintiff repeated the enquiry and asked if it was perfectly safe, and was assured by the foreman that it was safe and that there was no danger. Thus assured, he continued to follow the foreman, who had passed the danger point, when a delayed blast from which the smoke was issuing went off, and a fragment of rock struck the plaintiff on the head, causing the injury complained of. The plaintiff sued the contractor, and on a demurrer to the evidence by the defendant, it was</p> <p>Held: The foregoing facts and just inferences which a jury would have been warranted in drawing from the evidence make out a clear‘case for the recovery of damages. The defendant owed the plaintiff the duty to exercise ordinary care for his safety, but failed to discharge it. The measure'of duty owing from the defendant to the plaintiff was unquestionably as great as from master to servant; and even in case of a servant, the master would be liable where he assured the servant, who was ignorant of the danger, that a place wap safe, and who went to work therein, acting upon such assurance, and was injured.</p>

<p>1. Reformation of Instruments — Mistake—Fraud—Proof Required — Case in Judgment. — Equity has jurisdiction to reform written instruments in two well-defined classes of cases only, viz: (1) Where there has been an innocent omission or insertion of a material stipulation, contrary to the intention of both parties, and under a mutual mistake; and (2) where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. But to warrant relief on account of mistake, it must be established by the clearest and most satisfactory evidence. It is not enough to show a possibility or even a probability of mistake. In the case in' judgment, the evidence not only fails to establish fraud or mistake by clear and satisfactory proof, but the preponderance of the proof maintains the fairness and integrity of the transaction.</p>

<p>1. Partnership — Fraud—Confidential Relations — Good Faith — Failure to Disclose Facts. — Where several parties buy land together for the purpose of reselling it at a profit, and the title is conveyed to one of them as trustee, and the share of each in the profits is fixed, the contract between them is in the nature of a partnership agreement, and imposes upon each, in transactions among themselves, the utmost good faith, and a full and frank disclosure of all within his possession or knowledge that affects the value of the interest of the others. A failure on the part of some of the parties to disclose to another, who is ignorant of the facts, valuable offers for the property or a part of it, or other known facts affecting its value, and the purchase, directly or indirectly, of his share for an inadequate price, or permitting him, under such circumstances, to sell to another at a grossly inadequate price, and subsequently acquiring his share or interest, is a fraud upon the rights of the vendor, and the property so acquired by them will be impressed with a trust in favor of the vendor, and he will be awarded his share of the profits made by a subsequent sale of the property.</p> <p>2. Purchasers — Notice—Reacquisition of Property.- — Generally a purchaser with notice from a purchaser without notice acquires good title, but this rule is subject to the exception that if the purchaser with notice sells to a purchaser without notice and afterwards reacquires the property, he does not acquire any better title than he had in the first instance.</p> <p>3. Partnership — Accounting—Interest—Trusts and Trustees.— Where partners, who are made to account to another partner for profits made by them out of the partnership property, obtain credit for expenditures made by them they should be allowed interest only on money actually paid by them from the time of payment, or upon any contract made by them for the payment of money bearing interest from the time such interest began to run.</p>

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

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

<p>1. Licenses — Loans on Wages — Assignments to Secure Made Prior to Passage of Act. — The act of March 12, 1906, (Acts 1906, p. 242) prohibiting persons from engaging in the business of making loans on wages or salaries, without taking out a special license therefor, was not intended to prohibit the collection of lawful loans made prior to its passage. The act is not retrospective, and one who had ceased to engage in the prohibited business before the passage of the act, may, since its passage, lawfully take assignments of wages for prior bona fide loans without being amenable to the penalties prescribed by the act.</p> <p>Error to a judgment of the Corporation Court of the city of Roanoke.</p>

<p>Error to a judgment of the Circuit Court of Tazewell county.</p> <p>The following is a copy of the indictment:</p> <p>“Virginia:</p> <p>“Tazewell County, to-wit:</p> <p>“In the Circuit Court of said County.</p> <p>“The jurors of the grand jury, in and for the county aforesaid, impaneled and sworn at the term hereof commencing on the 22nd day of August, 1910, and now attending said court, upon their oath present that H. F. Ferrimer on the - day of June, 1910, in the said county, did unlawfully ship by express ardent spirits, without then and there having a license so to do, against the peace and dignity of the Commonwealth of Virginia.</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that H. J. Ferrimer, on the-day of June, 1910, in the said county, did unlawfully ship by express ardent spirits, in a quantity of not more than four and one-half gallons, to Vincent Volscent, upon the order of such Vincent Volscent, without then and there having a license so to do, against the peace and dignity of the Commonwealth of Virginia.</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that H. J. Ferrimer, on the-day of June, 1910, in the said county, did unlawfully sell and ship ardent spirits by express, in a quantity of not more than four and one-half gallons, to Vincent Volscent, upon the order of such Vincent Volscent, without then and there having a license so to do, against the peace and dignity of the Commonwealth of Virginia.</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that H. J. Ferrimer, on the-day of June, 1910, in the said county, at one time, upon the order of Vincent Volscent, unlawfully did sell in the town of Pocahontas, in said county, to said Vincent Volscent, a quantity of ardent spirits not exceeding four and one-half gallons; that said ardent spirits was so unlawfully sold by the said H. J. Ferrimer not to be delivered to the said Vincent Volscent at the said place of purchase; that said ardent spirits were so unlawfully sold by the said H. J. Ferrimer not to be delivered to the said Vincent Volscent within the said town of Pocahontas; that said ardent spirits was so unlawfully sold by the said H. J. Ferrimer not to be delivered to the said Vincent Volscent within one mile outside of the corporate limits of the said town of Pocahontas; and that said H. J. Ferrimer did then and there unlawfully ship said ardent spirits by express to said Vincent Volscent, upon the order of said Vincent Volscent, without then and there having a license so to do, against the peace and dignity of the Commonwealth of Virginia.”</p>

Upon a writ of habeas corpus, and a petition to be discharged from prosecution. Held: upon indictments found against him in said court, charging the offense or offenses alleged in the said indictment No. 10; no one of which indictments has been tried, although your petitioner has repeatedly and earnestly insisted upon a trial.