Volume 113 — Virginia Reports

<p>1. Carriers op Live Stock—Self-Imposed Injuries—Contract Against Liability—Injuries from Fright.—A carrier of Eve stock may lawfully stipulate with the owner thereof against liability for injury to animals occasioned by their inherent vices or natural propensities to injure themselves or each other, such as lacking, biting, and goring; and if an animal, in course of transportation, takes fright at the noise and smoke of passing trains in the usual conduct of business, and injures himself in consequence thereof, there is no liability upon the carrier, if he has provided all suitable means of transportation, 'and exercised that degree of care which the nature of the property, under the attending circumstances, requires.</p> <p>2. Carriers op Live Stock—Loading by Owner—Negligence—Injuries-from Fright.—'Where a shipper has agreed to load and unload horses, at his own risk, and is furnished with a car of his own selection, containing fourteen stalls for the shipment of ten horses, in one of which there is a radiator which is a permanent fixture and a necessary part of the outfit for the shipment of high-grade horses in cold weather,, and one of the horses is unnecessarily placed by the shipper’s care-taker in that stall, and, in consequence of fright from the usual and ordinary noise of trains, injures himself on the radiator, in the presence of a number of such care-takers, who had previously observed his fright, and consequent kicking and plunging, but made no effort to release him, there can be no recovery of the carrier.</p>

<p>Error to a judgment of the Circuit Court of Louisa county in an action of trespass on the case. Judgment for the plaintiffs against two of the defendants, who assign error.</p>

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

<p>1. Contracts—Construction.—In the absence of any evidence in an agreement that the words thereof are to be otherwise construed, they are to be taken in their ordinary or popular sense.</p> <p>2. Contracts—Construction—“Running Water.”—The phrase “the deepening of channels in running water” in a contract for railroad construction means, in its ordinary or popular sense, the making deeper the bed of a running stream, such as a creek or river, rather than to work in water in the construction of a railroad cut, which collects therein from seepage, wet weather, springs, or otherwise, during the progress of the work in making the cut.</p> <p>3. Contracts—Construction—Parties’ Construction.—In construing a contract, where there is a doubt as to its proper meaning, the court may look to the construction which the parties themselves have placed upon it in its execution, in order to ascertain its meaning; and such construction is entitled to great consideration.</p> <p>4. Contracts—Practical Construction of Parties—Acquiescence in Construction.—A railroad contractor who, throughout the construction of the work, has by his acts and conduct placed the same construction upon the contract as did the railroad company, and has accepted the company’s classification of the material removed, will be deemed to have acquiesced therein, and cannot, after the completion of the work, claim a higher classification, although he may have secretly, during the progress of the work, determined that he was entitled to the higher classification, and would insist upon it after completion. Such uneommunicated determination cannot affect the rights of the company.</p> <p>5. Damages—Replacing Structure—Burden of Proof.—In an action by a contractor against a railroad company to recover the cost of replacing a trestle which gave way, the burden of proof is on the contractor to prove that the trestle gave way because constructed in accordance with defective plans furnished by the railroad company.</p> <p>6. Interest—Tender—Release.—Where a sum of money, with interest from a given date, is decreed against a railroad company in favor of a contractor, but the latter is not allowed to collect the same until he has executed a release called for by his contract, if the railroad company wishes to stop the interest on the sum decreed against it, it should; pay the money into court, and the court will require the release to be-executed before it pays the money over to him. It cannot be relieved from payment of interest upon merely expressing a willingness to pay-if the release is executed, when no tender is made, and tender has not been waived.</p> <p>7. Construction Contract—Engineer’s Certificate—Reasonable Time— Interest.—Although a construction contract provides that the chief' engineer of a railroad company shall give his certificate of the completion of work according to contract, and that the balance due-the-contractor shall be due within twenty days after the date of the certificate, the engineer cannot unreasonably delay the giving of said certificate. In the case at bar, the work was completed September 27, and the certificate was not issued till December 23, and it is held that there was no error in the decree of the court below in allowing interest from October 20.</p>

<p>1. Declaration&emdash;Sufficiency&emdash;Bill of Particulars.&emdash;A declaration in tort which distinctly alleges all the material facts upon which the right of recovery is based, is good on demurrer. Further details, if desired, may be supplied by a bill of particulars.</p> <p>'2. Landlord and Tenant&emdash;Flooding Premises of Lower by Upper Tenant&emdash; Liability of Landlord.&emdash;A landlord who lets rooms in a building to various tenants, retaining no control over any part of the building and not supplying heat, servant’s attendance, or other service to any of his tenants, is not liable for damages to a lower tenant occasioned by the flooding of his premises, as the result of freezing and thawing of water pipes in the exclusive control of an upper tenant, where the pipes were properly located, the plumbiDg well done with suitable material, and a stop cock for turning off the water was provided within easy reach.</p> <p>■ 3. Landlord and Tenant&emdash;Upper and Lower Tenants&emdash;Damage from Freezing Pipes&emdash;Duty to Prevent Freezing&emdash;Case at Bar.&emdash;A provision in a contract of lease that the landlord “will unstop all waste pipes that may become choked by negligence or inattention on the part of those using them, and will repair all water pipes that may burst from freezing because of failure to turn the water off, ” does not render the landlord liable for damages by water to a lower tenant resulting from the freezing and bursting of the pipes of an upper tenant who had exclusive control of the upper floor, and who gave no notice to the landlord that the pipes were out of order. The duty to repair pipes after they got out of order did not impose upon the landlord the duty of preventing them from freezing and getting out of order.</p> <p>4. Instructions&emdash;Fully Instructed&emdash;Abstract Propositions.&emdash;It is not error to refuse to give further instructions on a point upon which the jury has already been sufficiently instructed, nor to refuse instructions upon mere abstract propositions of law.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, refusing a writ of mandamus. Judgment for the respondent. Petitioner assigns error.</p>

<p>1. Appeal and Error—Instructions—Law of the Case.—Instructions not objected to by either party to the controversy become the law-of the case, and objections thereto cannot be made for the first time in the appellate court.</p> <p>2. Banks and Banking—Drafts—Title—Ownership.—If, when a draft is deposited in bank, it is the intention of both the depositor and the bank that it shall be treated as cash, title thereto passes to the bank; but if it was the intention of the parties that it should not be received as cash, but only for collection by the bank, then title does not pass to the bank. Checks or drafts deposited on credit, if intended to be for collection only, do not become the property of the bank,’ even if the depositor has been allowed to check against the deposit before the paper is collected.</p> <p>3. Appeal and Error—Position of Appellant—Demurrer to Evidence.— Where a writ of error is awarded to a judgment of the trial court refusing to set aside the verdict of a jury because contrary to the evidence, and the evidence (not the facts) is certified, the plaintiff in error goes up as upon a demurrer to the evidence.</p> <p>4. Evidence—Admission—Parting urith Interest.—Admissions of the drawer of a draft, after he has parted with his interest therein, are not admissible to affect the title of a subsequent holder; but where the subject of enquiry is whether or not the drawer is still the owner, the admission should be received, but the jury instructed that if he was not the owner then his admissions could not affect the rights of the holder.</p> <p>5. Appeal and Error—-Evidence to Support Verdict—Banks—Collections— Deposits.—A jury having found that a draft was still the property of the drawer, although he had obtained credit for the full amount thereof in bank, and their verdict having been approved by the trial court, this court, hearing the case as on a demurrer to the evidence by the bank, cannot set aside the verdict as Without evidence to support it, where it appears that the drawer was a customer of the bank of long standing, that it was a custom among banks to credit collections for the accommodation of regular depositors, that the draft was not discounted, that the whole amount thereof was placed to the credit of the drawer, that it was deposited as paper and not as cash, that it was treated by the drawer and his attorney as his property in subsequent correspondence with the drawees, and that protest was waived.</p>

<p>1. Equity&emdash;Mistake in Judgments&emdash;Correction.&emdash;Relief from mistakes in judgments, decrees, or other court proceedings may, in an otherwise-proper case, be had, if the mistake is not judicial, but one of fact.</p> <p>2. Equity&emdash;Mistake by Another Court&emdash;Correction.&emdash;There is no valid objection to proceeding by an original bill to obtain relief from a mistake of fact in a court (having jurisdiction of the parties and subject matter) other than that in which the mistake was made, when it cannot be corrected in that cause, since such mistake is not corrected by reviewing the judgment or decree of that court, but by restraining the parties who may take advantage of it from doing so, or by compelling them to execute proper papers for the purpose of correcting it.</p> <p>3. Equity&emdash;Cloud on Title&emdash;Incidental Relief.&emdash;The fact that a bill praying relief from a mistake of fact also prays to have the cloud upon complainant’s title removed does not render the bill demurrable, even though it is not distinctly charged in the bill that the complainants were in possession of the land in controversy when the suit was brought. While the general rule is that the holder of the legal title to land cannot maintain a bill to remove a cloud from his title unless he is in possession, this rule does not, and ought not to, apply where the primary relief is sought upon another and well-established ground of equity jurisdiction, and the removal of the cloud is sought only as an incident to that relief.</p> <p>4. Equity&emdash;Mistake of Fact&emdash;Correction&emdash;Evidence.&emdash;Where a bill is filed to correct a mistake of fact in a judgment or decree, themistake must be clearly and satisfactorily proved. In the case in judgment the evidence is of this character.</p> <p>5. Witnesses&emdash;Survivor of a Transaction&emdash;Agents.&emdash;Where a contract for the sale of real estate has been negotiated between a commissioner of the court on the one side and an agent for the purchaser on the other, such agent is in no sense one of the “original parties” to the contract, and is a competent witness to testify on behalf of the purchaser, notwithstanding the death of the commissioner, if there is no other reason for excluding him. Where such witness' is not a party to the suit, and had no interest in the subject of controversy when he testified, he is clearly competent.</p>

<p>1. Appeal and Error—Objection to Evidence—Bill of Exception.—This court cannot consider objections made to the reception of evidence by the trial court when no bill of exception was taken to the ruling of the trial court.</p> <p>2. Evidence—-Report of Commissioners in Condemnation—Testimony of Commissioners.—In determining whether or not commissioners in condemnation proceedings took into consideration all the damages incident to the construction of a railroad through the lands of a proprietor, the testimony of the commissioners is receivable for the purpose of explaining and making clear their report.</p> <p>3. Railroads—Private Crossings—Convenience of Both Parties—Cost— Reasonable Construction of Statute.—While 'the statute (Code, sec. 129A-b, clause 2) imposes upon a railroad company, whose line of road passes through the lands of any person, the duty to provide proper and suitable wagon ways across its road-bed from one part of said land to the other, and. to keep such ways in good repair, the statute must receive a reasonable construction, so as to malee the remedy commensurate with the right of the land-owner and the mischief intended to be redressed. Regard must also be had to the convenience of both parties, and the cost to be incurred by the party required to construct the crossing. The land-owner has not the arbitrary right to demand an underground crossing.</p> <p>4. Railroads—Private Crossings—Damages at Condemnation—Cost of Crossing.—One who has received without contest the damages allowed for constructing a railroad fill across his land cannot, after the fill has been constructed, compel the railroad company to take out the fill and reconstruct its road-bed so as to provide him an underground wagon way from one part of his farm to another, where it appears that the cost of such reconstruction would amount to three times the assessed value of the entire farm, including buildings, while the injury and inconvenience to the land-owner would be comparatively insignificant.</p> <p>5. Railroads—Private Crossings—Establishment—Report of Commissioners— Weight Given.—The report of the commissioners establishing a private railroad crossing, under section 1294-b of the Code, is to be taken as prima fade correct, and, if nothing irregular appears on its face, great weight should be given to it; but the trial court is the final arbiter of the propriety of directing the crossing to be constructed, and may, for good cause shown, refuse to confirm the report of the commissioners. The report of the commissioners simply make out a prima fade case.</p> <p>6. Appeal and Error—Burden of Showing Error.-—The' burden is on the appellant to show error in the decree or judgment appealed from, and, if he fails to show it, the decree will be affirmed.</p>

<p>1. Equity Jurisdiction—Injunctions—Public Wrongs.—It is not the province of a court of equity to correct abuses merely public. It interferes on the ground of private injury only. A public nuisance will not be enjoined at the instance of one who has only suffered with the general public.</p> <p>2. Public Waters—Rights of Citizens—Public Offenses—Punishment— Injunctions.—All the beds of the bays, rivers, creeks, and the shores of the sea within the jurisdiction of this State, and not conveyed by special grant or compact according to law, are declared by section 1338 of the Code to be the property of the State, and subject to be used as a common by all the people of the State for the purpose of fishing and fowling, and these rights are protected by laws which denounce the offenses and prescribe penalties for their violation, and a court of. equity has no jurisdiction to prevent the violation of such laws by injunction.</p> <p>3. Public Waters—Fowling—Frightening Game from Private Premises— . Damages.—If citizens of this State, in the exercise of their rights of shooting game upon the public waters of this State, not with a malicious motive, but in the enjoyment of a privilege common to them with all other citizens, by the firing of guns, frighten or intercept the files of ducks or other game as they fly over such waters, and prevent their coming within range of an island purchased by another from the State, it is damnum absque injuria.</p> <p>4. Equity—Bill to Repeal a Grant—Complainant’s Interest—Code, Section 2868.—No private citizen can maintain a suit in equity or otherwise to set aside a grant from the State to a third person, unless he can show that he has some right therein, which has been prejudiced by the grant. No such jurisdiction is conferred by section 2368 of the Code.</p>

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

<p>Error to a judgment of the Circuit Court of Norfolk county, on a petition for incorporation as a town. Judgment for the petitioners. Defendants assign error.</p>

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

<p>Error to a judgment of the Circuit Court of the city of Richmond, on a petition filed to have refunded a portion of the tax paid under protest on the recordation of a deed of trust. Judgment for the Commonwealth. Petitioner assigns error.</p>

<p>1. Master and Servant—Safe Place and Appliances—Test of Safety— Usage of Business.—A master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and reasonably safe means according to the usages of the business. His duty is also to use ordinary care to provide a reasonably safe place in which his servant is to work, considering the character of the work in which the servant is engaged, and he is hable for injuries to his servant resulting from his failure to exercise such care. Absolute safety is not attainable, and employers are not insurers. They are hable for neghgence, and the unbending test of neghgence in methods, machinery, and apphancesis the ordinary usage of the business.</p> <p>2. Master and Servant—Negligence—Burden of Proof—Case at Bar.— One who affirms neghgence as the basis of an action for damages must estabhsh it. In the case at bar, the plaintiff was injured by being struck by a switch target while riding on the side of a box car. The target was of standard make, in common use by the defendant and other railroad companies, and was placed at the usual customary distance from the track. The car on which the plaintiff was riding was of the same width of cars in use by the defendant and other railroad companies, and the space between the car and the target was that usually allowed by railroads generally. Upon these facts, it is held that the defendant was not guilty of any negligence which proximately contributed to the injury complained of.</p>

<p>1. Pleading—Amendments—Continuance.—A defendant is not prejudiced by an amendment of the plaintiff’s declaration which does not^make a new and different case, where trial is postponed for two months.</p> <p>'2. Railroads—Site for Yards—Location—Private Capacity.—In selecting a site for its yards, and the location therein of a coal chute and power house, and in the operation of those plants, and also in firing engines on such yard, preparing them for use in the transportation of persons and property, a railroad company acts in its private capacity; such acts being incident to the operation of the road with which the public have no concern.</p> <p>3. Railroads—Nuisance—Negligence—Private Capacity.—It is not necessary to allege or prove negligence where the acts complained of result from a nuisance committed by a railroad company in its private capacity, for, as a rule, it is liable under such circumstances, even though the nuisance is not negligently caused.</p> <p>4. Damages—Discomfort—Evidence—Assessment by Jury.—Where the injury is discomfort and inconvenience, the amount of damages must be left to the jury, in view of all the facts. Absolute certainty in such cases is not attainable, and is not required. The injured party cannot be denied the right to recover because he cannot show the exact amount with certainty, although he is ready to show, to the satisfaction of the jury, that he has suffered large damage. Where, from the nature of the case, the amount of damage cannot be ascertained with certainty, there is no objection to placing before the jury all the facts and circumstances of the case having any tendency to show damages, or their probable amount, so as to entitle them to make the most intelligible and probable estimate which the nature of the case will admit.</p> <p>■ 5. Nuisance—Wrongs Done by Others—Damages.—Where the plaintiff alleges and proves that serious damage has been done him by smoke, gases, and the like, from the operations on the defendant’s premises, the defendant cannot escape responsibility therefor by showing that a modicum of smoke was thrown upon the plaintiff’s premises from a lawful source.</p> <p>6. Nuisance—Permanent Injury—Single Action—Act of Limitations;—• Undoubtedly, repeated actions may, as a general rule, be brought to recover for nuisances as long as the nuisance continues; but where there is a permanent nuisance, the consequences of which, in the normal course of things, will continue indefinitely, there can be but a single action therefor, and the entire damage suffered, both past and future, must be recovered in that action, and the right to recover will be barred unless it is brought within the perscribed number of years from the time the cause of action accrued.</p> <p>7. Nuisance—Permanent Injury—Act of Limitations—Commencement—■ Effect of Increase of Damage.—A railroad and its yards, coal chutes, and the like, are permanent structures, and if their operation create a nuisance it is a nuisance of a permanent nature, for which but a single action lies, against which the act of limitations begins to run from the “ commencement of such operation. It is not necessary that the damage complained of should exist to the same extent all the time. The act of limitation will not be extended simply because the damage is much. larger in later years than it was when the structures were first erected. The time of the running of the statute is still to be computed from the time the single right of action accrued.</p> <p>8. Act of Limitations—When Right of Action Accrued.—In an action to recover damages for an injury inflicted upon plaintiff’s premises by reason of smoke, gases, cinders, and the like thrown thereupon by the defendant, it was for the jury, under the circumstances of the case at bar, to say, upon all the evidence, when the damage began which gave the plaintiff a right of action.</p>

<p>1. Specific Performance&emdash;Reformation&emdash;Mutual Mistake&emdash;Changed Conditions.&emdash;A contract for the sale of real estate will not be specifically enforced, or reformed so as to correct a mutual mistake, where, without fault of either party, the circumstances and conditions of things have been so changed that the court cannot place the respective parties in the position they agreed to occupy by their contract.</p> <p>2. Specific Performance&emdash;Reformation&emdash;Mutual Mistake&emdash;Changed Conditions&emdash;Hardship&emdash;Inability to Perform.&emdash;Where specific performance of a- contract for the sale of real estate is asked, as well as where reformation of an instrument is sought on the ground of mutual mistake, equity will refuse relief where the party against whom the relief is sought has been guilty of no fraud or other inequitable conduct, and there has been such a change in the circumstances and conditions of things, not contemplated by the parties, as would work a loss and hardship to him, and the party seeking relief has been rendered incapable of doing, substantially, all that he promised.</p>

<p>1. Taxation—License—Voluntary Payment—Recovery Back—Case at Bar.—Where an application by a brewing company for a license to- establish a disti'ibuting house for the sale of its products is refused, unless the company will pay a license tax in addition to that already paid by it in another- city in which the brewery is located, and the company thereupon pays the tax in order to obtain the license, which it could not otherwise obtain, and in order to avoid prosecutions to which it would be subjected if it undertook to do business without the license, such payment is voluntary, and not compulsory, and hence cannot be recovered back. The compulsion contemplated by law exists where the party called upon must pay or suffer his property or person to be taken.</p>

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

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

<p>1. Equity Practice—Allegation of Title to Land—Paper Title—Adverse Possession—Title Papers.—Where one claims land under a paper title he should generally exhibit his title papers or copies thereof, or such of them at least as will make out a prima facie case of title; but where the bill alleges not only a paper title, and exhibits title papers evidencing the same, but alleges adverse possession of the land, and recites facts showing that the acts of ownership done thereon constitute adverse possession for the statutory period necessary to ripen his possession into a complete title, the general rule obtaining where the claim to the land rests upon a paper title does not apply.</p> <p>2. Injunctions—Trespass—Irreparable Injury—Destruction of Subject.— When the bill states facts that show that a threatened trespass, if not prevented, will result in irreparable damage, or is in character or tendency destructive to the inheritance, or that which gives it its chief value, an injunction wall be granted, notwithstanding a dispute or even a pending litigation as to title.</p> <p>3. Equity Jurisdiction—Complete Relief—Administering Legal Remedies.— Where a court of equity has properly acquired jurisdiction on equitable grounds, it will, in order to prevent a multiplicity of suits, go on to do complete justice, though in doing so it has to try title, or settle boundaries, and administer remedies which rightly pertain to courts of law.</p> <p>4. Injunctions—Trespass—Allegation of Title and Possession-—Case in Judgment.—The allegation of a bill to enjoin a trespass that the complainants were the owners of the land in question (stating clearly the derivation of their title), and that they have been for over thirty years in possession of the land, and have used it for the production of timber for keeping up the fences and buildings on the cleared portion of the farm, and that the defendants well knew the location of the boundaries of the land so used by the complainants, is not a conclusion of law, but a statement of facts from which possession in the complainants is necessarily to be inferred.</p> <p>5. Boundaries—Opinion of Surveyor—Statement of Facts—Case in Judgment.—The opinion of a surveyor, unsupported by other evidence, as to the identity of a tract of land, unless he also states some fact or facts by which the court can determine the location of the land, is clearly insufficient to enable the court to locate the same. In the case in judgment, the physical facts contradict the location of the disputed line where the surveyor for the defendants located it. In addition to this, the location of the line as claimed by the complainants was known of and acquiesced in by the defendants four or five years prior to the present controversy, and was not controverted in any way until shortly prior to the institution of the present suit,</p> <p>ti. Boundaries—Natural Objects—Courses.—In locating the boundaries of land, natural land marks take preference over courses and distances.</p> <p>7. Equity Pleading—Prayer for Special and General Relief—Extent of Relief Granted.—Where the complainant prays for special and also for general relief, if the special prayer is such that no relief can be granted under it, the court may, under the prayer for general relief, grant any proper relief consistent with the case made by the bill; hence the complainant can never properly and safely omit the prayer for general relief.</p> <p>S. Equity Jurisdiction—Injunction—Prayer for General Relief—Complete Relief—Case in Judgment—Jury Trial.—Where a bill alleges that the complainants have title to the land in controversy, showing how they derived it; that they have been in possession thereof for over thirty years, using the timber on a part of it to keep up the fences and buildings on the cleared part; that the timber constitutes the chief value of the land in controversy, and that its destruction would result in irreparable injury; that the defendants are probably insolvent, so that a judgment at law against them for damages would be of no avail, and prays for an injunction restraining and enjoining the defendants from cutting and removing the timber therefrom until they establish their title, upon proof of the facts alleged, it is proper for the court not only to perpetuate the preliminary injunction to enjoin the trespass, but also to go on and adjudge the rights of the parties and settle the title between them, and thus afford complete relief in that suit. In such case, Although the defendants assert title to the land, they are not entitled to a trial of the issue by a jury, when it appears that their claim is not bona fide.</p>

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

<p>1. Judgments—Collateral Attack—Void Judgments.—If it appears upon the face of the record that the court was without authority to enter a decree, such decree binds no one, and may be assailed directly or collaterally; but the decree of a court of competent jurisdiction, in a suit between proper parties, is valid and conclusive until reversed on some proper proceeding in the same suit and in the same court, or on appeal, unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit. Such a decree cannot be collaterally attacked, unless it is void. If it is merely erroneous,- it is voidable only, and objection on that account must be made, if at all, in the same suit in which the error was committed, or by appeal from the decree therein, and not by an independent suit.</p> <p>'2. Judgments—Collateral Attack—Death of Defendant—Failure to Make Heirs Parties.—Where a court has acquired jurisdiction of a defendant and the subject matter of a suit, and the defendant dies before the rendition of the judgment or decree, such judgment or decree is not thereby made void so as to permit its impeachment in a collateral proceeding, whether the fact of such death does or does not appear on the face of the record. Under such circumstances, the failure to make the heirs of the deceased defendant parties to suit to subject defendants’ land to the payment of liens is error which can only be taken advantage of in some direct prbceeding to vacate the decree. The decree cannot be collaterally assailed.</p>

<p>1. Demurrer to Evidence-—Judgment to be Entered—Negligence.—Upon a demurrer to the evidence by a defendant, if the evidence is such that the jury might have rightly found that the defendant was guilty of the negligence charged in the plaintiff’s declaration, and that the plaintiff was free from negligence contributing proximately to the causes of his injury, the court must so find.</p> <p>2. Railroads—Grade Crossing—Obstructed View—Noises—Care Required.— Where the view of a grade crossing of a railroad and highway is obstructed, and noises interfere with hearing approaching trains, a higher degree of caution is required of both the traveler and the railroad company than if the obstructions and noises did not exist; the degree of caution of both parties being in proportion to the danger from the obstruction and noise.</p> <p>3. Railroads—Grade Crossing—Open Gates—Care Required.—Open gates at a railroad crossing do not reheve a traveler on a highway of the duty of exercising ordinary care for his own safety, but the raising of the gates is a circumstance which justifies the traveler in starting to cross the railroad, and whether, under the circumstances, the traveler exercised due care for his own safety is a question for the jury-</p> <p>4. Demurrer to Evidence—Contributory Negligence—Finding of Court.— Contributory negligence of the plaintiff is an affirmative defense, and the burden is on the defendant to prove it, and where, upon a demurrer to the evidence by the defendant, the question is whether or not the plaintiff was guilty of contributory negligence, the court must find that he was not, where the facts do not so plainly disclose it that reasonable men should not differ in their judgment upon it.</p> <p>5. Judgments—Interest—Appeal and Error.—If a verdict is found which does not allow interest, judgment should be entered for the sum found with interest from the date of the verdict, under the express terms of section 3390 of the Code, and if the trial court has failed to enter judgment for the interest, its judgment will be amended in this respect on cross error assigned by the plaintiff in this court.</p>

<p>1. Pleading-—Grounds of Defense—Failure to State—Object of Section 8249 of Code—Evidence Admissible.—The object of section 3249 of the Code, in requiring a defendant to state the grounds of his defense when so ordered by the court, is not to punish the defendant for failure to comply with the order, but to protect the plaintiff from prejudice by surprise at the trial-. He is not debarred from all evidence in his defense, but is confined'to evidence upon the point covered by the language of his plea. Hence, if a defendant pleads not guilty to an action of trespass, and fails to state his grounds of defense, when required by the court, he may, nevertheless, introduce any evidence tending to show that he did not commit the trespass in the declaration alleged.</p> <p>2. Stake Decisis—Construction of Opinions.—Opinions of courts, to be correctly understood, should always be read in the light of the facts of the case in which they are rendered.</p>

<p>1. Equity Pleading&emdash;What Constitutes a Final Decree.&emdash;Where the further-action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded not as final, but as interlocutory. To be interlocutory, however, the further action of the court must be in the cause, as distinguished from those measures which are necessary for the execution of the decree that has been pronounced, and which are properly to be regarded as adopted, not in but beyond the cause, and as founded on the decree or mandate of the court,, without respect to the relief to which the party was previously entitled upon the merits of his case.</p> <p>2. Equity Pleading&emdash;Final Decree&emdash;Case in Judgment&emdash;Answer.&emdash;A decree which settles the principles of a cause is clearly appealable,, but not necessarily final. If a decree does not purport to be final,, makes no order for costs, and "shows upon its face that further action “in the cause” is intended, and is necessary to give completely the relief contemplated by the court, both as to the creditors of the-judgment debtor, who are complainants in the cause, and as to the purchasers of the real estate sold therein, it is not a final decree. In the case in judgment, further action “in the cause” was necessary in order to decree money to creditors and to perfect the titles of purchasers, and hence the defendant had the right to file an answer thereto,, under the provisions of section 3275 of the Code.</p>

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

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

<p>1. Injunction to Restrain Trespass—Effect of Judgment for Former Trespass—Estoppel—Account of Damages.—Where an injunction is granted to restrain further trespasses upon land, pending an action to recover damages for previous trespasses, and, after judgment for the plaintiff in the action at law, the bill is amended, in which the record in the action at law, including the judgment, is exhibited, and relied on by the plaintiff as an estoppel, the chancery suit. is a substituted remedy for a second action of trespass, and an account may be taken and a decree rendered therein for the damages sustained by reason of the trespasses committed after the institution of the action at law.</p> <p>2. Pleading—Action of Trespass—Plea of Not Guilty—Liberum Tenementum—Injury to Land—Successive Actions—Estoppel.—In an action of trespass to recover damages for cutting timber on the plaintiff’s land, under the general issue of not guilty, evidence of the title of the parties is plainly admissible, and in a second action between the same parties to recover damages for a subsequent cutting of timber upon the same land, a judgment for the plaintiff in the first action is conclusive of the question of his title so far as it affects his right to recover damages for the second cutting, when it plainly appears from the record of the first action that the only question litigated therein was the title to the land, and where the rights of the parties at the time of the second cutting were identically the same as at the time of the first cutting. And this is true, although no plea of liberum, tenemeniwm was filed in the cause, but only the plea of not guilty.</p> <p>3. Pleading—Action of Trespass—Plea of Not Guilty—Liberum Tenermnium—Extent of Estoppel.—Under the practice in this State, in an action of trespass, everything can be proved under the plea of not guilty that can be proved under the plea of liberum ienementum; and in a second action between the same parties (where the title remains the same) for subsequent trespass upon land, the judgment in the first action is conclusive of the title so far as it affects the right to recover damages for such trespass, but not for other purposes.</p>

<p>1. Wills—Impeachment or Establishment—Code, Section 2544—Jurisdic-tion.—In a proceeding under section 2544 of the Code (to impeach or establish a will) the court can only exercise the special powers provided by it—namely, to ascertain, in the manner provided by that section, whether or not the paper or papers in question is or are the last will and testament of the decedent. No other relief can be had in the case.</p> <p>2. Equity—Jurisdiction—Construction of Wills—Administration of Estates.— While a court of equity has no jurisdiction merely t.o construe a will which devises purely legal estates or interests, it clearly has jurisdiction of a bill to construe the will of a decedent as admitted to record, and to determine the rights of the beneficiaries thereunder, to ascertain the indebtedness of the decedent, to settle the accounts of the executor, and to have the estate administered, settled, and distributed according to law, and for such further and other relief as may be proper in the cause.</p> <p>3. Wills—Probate—Construction of Order.—An order of probate of a will which, after reciting that the will was proved by one of the subscribing witnesses thereto, “except that the erasures of lines 2, 3,4, 5, inclusive, in clause 6, on page 1, since the signing and acknowledging of said paper writing by the testator,” states, “it is ordered that the said will be recorded, ” is an order admitting the whole will to probate, including the lines erased.</p> <p>4. Wills—Probate—Cancelled Words—Revocation—Presumption.—Where a paper offered for probate has been proved to have been properly executed as a will, but certain words in it have been cancelled since its execution, the whole paper, including the cancelled words, is to be treated by the probate court as the last will and testament of the deceased, in the absence of some evidence that the cancellation was done by the deceased, or by some person in his presence and by his direction, which would be sufficient to show that fact, or that the instrument was found after the testator’s death among his repositories in the mutilated condition it was in when offered for probate, and under such circumstances that the fact of revocation might to the ■extent of the cancellation be presumed. In the absence of all evidence on the subject, except that the cancellation was after due execution, there is no presumption that the cancellation was made by the hand of the testator. Where it appears that a will was regularly made, the presumption of law is strong in its favor, and the intention to revoke must be plain and without doubt.</p> <p>5. Wills—Probate—Ambiguity of Order—Presumption.—If the language of the order of probate of a paper proved to have been duly executed as a will is ambiguous as to whether the will was admitted to probate including or excluding certain words of the will which had been can-celled (but of which cancellation no explanation has been given), the order should be construed as admitting the entire paper to probate, as that, was what the trial court should have done, and to hold otherwise would be to solve the doubt, not in favor of, but against the presumed correctness of the trial court’s action, which is never done.</p> <p>6. Wills—Probate—Failure to Record Properly.—The failure of a clerk t.o transcribe upon the will book a will as it was admitted to probate cannot affect the rights of the parties under the will.</p> <p>7. Wills—Obliteration of Devisee’s Name—Supplying Defect.—Although the name of a devisee in a will be entirely obliterated, he will, nevertheless, take under the will where the name can be clearly deciphered by the use of a magnifying glass, and he can be otherwise identified by the context, which gives such description of him as cannot be mistaken.</p>

Judgment for the plaintiff. To a judgment reducing the amount of the verdict, over the protest of the plaintiff, the plaintiff assigns error.

<p>Appeal from an order of the Circuit Court of Amelia county in an ex parte proceeding to sell school property. From an order refusing to confirm a sale the purchaser appeals.</p>

<p>1. Navigable Waters—Irregular Shore Lines—Apportionment of Water Front.—Where a large portion of the shore lines of adjacent ripai'ian owners is straight, it is not necessary that this portion of their lines should be taken into consideration in determining their relative proportion of the flats and land under water at points where the shore lines are curved and irregular, nor in the establishment of the division lines between their properties at such points.</p> <p>'2. Navigable Waters—Riparian Owners—Apportionment of Water Front.—■ The owner of land upon a water course is entitled, in the apportionment of the water front, to have his portion thereof laid off as nearly in front of his land as is practicable.</p> <p>-3. Navigable Waters—Riparian Owners—Apportionment of Water Front— Port Warden’s Line.—In the apportionment of the water front and in fixing the boundary line between two adjacent riparian owners, if the shore fine and the port warden’s line are parallel, it makes no difference which one of them is treated as the base line; but where they are not parallel, the proper rule, in waters having no defined stream running in a confined and continuous bed, is to treat the shore line as the base line, and extend the lines of the port warden’s line as nearly as practicable in front of the land of the riparian owner. The port warden’s line establishes the line of navigability, and shows how far into the water course the riparian owner may improve his property; but that line can ordinarily have no effect in the determination of the boundaries of the riparian owners as between themselves. They derive their rights from grants from the Commonwealth and the statutes of the State.</p> <p>-4. Navigable Waters—Riparian Owners—Water Front—How Ascertained.—In ascertaining the shore lines of adjacent riparian owners, with a view to apportioning the water front, it is not proper to take into consideration the shore lines as filled in by one of them, but the front should be ascertained as if the filling in had not been done.</p>

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

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

<p>1. Equity Pleading&emdash;Effect of Exceptions to Answer.&emdash;Exceptions filed to an answer in chancery have the effect of a demurrer to other pleadings, and admit as true all the statements and allegations of the answer which are relevant and properly pleaded.</p> <p>2. Municipal Corporations&emdash;Governmental Powers&emdash;Restrictions&emdash;Implications.&emdash;A municipal corporation, clothed with large governmental powers, vitally affecting the public interests, such as furnishing a sufficient supply of water, not only for the public health, but also for the extinguishment of fire and the prevention of conflagrations, cannot fail to exercise those powers, nor can it be shorn of its powers by implications or presumptions. If, in particular circumstances, it is sought to restrict the exercise of its public powers, the right to do so must be manifested in clear and unmistakable terms.</p> <p>3. Municipal Corporations&emdash;Laying Water Pipes&emdash;Case in Judgment&emdash; Exclusive Privilege.&emdash;A land company adjacent to the city of Norfolk laid off its land into blocks, lots, streets, and alleys, and recorded a map, upon which it reserved to itself the fee in all the streets, and the right to lay gas and water pipes in the streets, and covenanted that it would not at any time thereafter convey or vest in any other person or corporation the right to lay and maintain water pipes in said streets. Thereafter the land owned by the land company was, by act of the legislature, annexed to the city of Norfolk. The annexation act provides that nothing therein contained shall be construed as affecting any easements theretofore granted in the streets of the annexed territory, and that the city shall not acquire any water mains now laid in such territory except by condemnation proceedings. After the annexation the city contracted with the water company to lay mains and furnish fire hydrants in the annexed territory, but the company was unable to fulfill its contract, because it could not supply sufficient water pressure. The land company conveyed to the city all of its reservations and dedicated all of its streets to the public, “save only as to such easements and rights in said streets as the grantor may have conveyed to others.” Under these circumstances</p> <p>the water company claimed the exclusive right to lay and maintain water pipes in the streets of the annexed territory, and that to allow the city to lay water pipes in said streets would result in the taking of its property without due process of law.</p> <p>Held: The terms of the grant and covenant in the deed to the water company, the terms of the annexation act, and the saving clause in the deed from the land company to the city of its reservations, did not convey an exclusive privilege to the water company; and even if the laying of pipes in said streets for fire protection were to eventuate in the city’s becoming a dangerous competitor of the water company, such a consideration could not control or affect the legal rights of the parties.</p> <p>4. Municipal Corporations—Annexation of Territory—Construction of Statute—Presumptions—Exclusive Bights—Governmental Powers.— Statutes annexing territory to a city are to be liberally construed in favor of the public. The presumptions are all against the legislature granting exclusive rights, and against the imposition of limitar tions upon the powers of government.</p>

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

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

The fund in controversy in this cause was claimed by three different claimants in different rights. It was claimed by the beneficiary named in the certificate, by the affianced wife of the assured, and by the heirs and next of kin of the assured. Under these circumstances the Firemen’s Relief Association filed its bill of interpleader, brought the money into court, set out the conflicting claims of the parties, and asked the court to determine the rights of the parties.

<p>1. Evidence—Admissions—Defective Machinery—Master and Servant.— The testimony of the general manager of a railroad company, in relation to an alleged defective brake, that there is the same lever on the car as when the accident occurred, the same chain is upon it, and that the pin is the same, is not an admission that these various parts of the brake were in the same condition at the trial as when the accident occurred, and, on a second trial of the case, it is error to permit the statement of the general manager made at the first trial to be read to the jury as such admission, or to permit the jurors at the former trial to testify what the condition of the brake was at the time of such trial, which was more than a year after the alleged injury complained of. The vital question was the condition of the brake at the time of the injury, and not at the time of trial.</p> <p>2. Master and Servant—Injury to Servant—Defective Machinery—Evidence.—Where an injury to a servant is alleged to have been caused by defective machinery, as a general rule, evidence of the condition of the machinery a reasonable time after the injury (determinable by the character of the appliance) is admissible, in the absence of evidence of a change of condition in the meantime. But when considerable time has elapsed the burden of proof shifts, and such evidence is not admissible, unless it is made to appear that the condition has not changed.</p> <p>3. Appeal and Error—Improper Admission of Evidence—Instructions.— Where the trial court has improperly permitted jurors at a former trial to testify what was the condition at that trial of certain machinery which it is alleged caused the injury complained of, on the theory that the general manager of the defendant railroad company had admitted that its condition was the same as when the accident occurred (when in fact no such admission had been made), the error is not • cured by instructing the jury to disregard the testimony of such jurors if they believe that no such admission had been made. The only remedy for the original error in admitting the testimony based upon the false premise was to have unqualifiedly instructed the jury to disregard it.</p>

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

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

<p>1. Fire Insurance—“Iron Safe Clause” of Policy—Substantial Compliance—Fraud.—-The “iron safe clause” in fire insurance policies, by which the assured is required to make itemized inventories and to keep' a set of books “clearly and plainly presenting a complete record of business transacted, ” is a reasonable stipulation in the contract, and if a loss by fire occurs, and the insured is unable to show, at least,¡ja substantial compliance therewith, he has no just cause to complain of his inability to recover on his policy. It is not sufficient for the insured to show that no fraud was intended by his failure to keep- and produce such inventories and books, but he must show a substantial compliance with the terms of his contract in order to entitle him to recover.</p> <p>2. Fire Insurance—“Iron Safe Clause”—Inventories—Books—Cross Entries.—Inventories and, books of a shirt manufacturing company which fail to disclose the quality, quantity, or value of goods purchased, manufactured, or sold, but contain gross items, such as “piece goods,” containing thousands of yards, without disclosing where they came from, nor when received, nor the character of the goods, is not such a compliance with the “iron safe clause” as will entitle the assured to recover on a policy of insurance on the stock of goods of the company.</p>

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

<p>Error to a judgment of the Hustings Court, Part II., of the city of Richmond, in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Railroads—Personal Injury—(Trade Crossing—Duty of Traveler.— AH travelers on the public highway are charged with knowledge of the danger of grade crossings of the highway and railroads, and that it is their duty to look and Hsten for approaching trains before attempting to cross, and to exercise ordinary care to make the act of looking and Hstening effective. In the case -at bar it is clear, under the facts and circumstances disclosed by the record, that the plaintiff’s intestate, who was kiHed by a railroad train at a grade crossing, was not in the exercise of ordinary care when he drove upon the railroad crossing.</p>

<p>1. Appeal and Error—Elections—Bond Issues.—In a proceeding to determine the regularity and validity of an election to determine whether or not county bonds shall be issued for permanent road improvements in the magisterial districts of a county, an appeal lies to this court from the final order of a circuit court in such controversy.</p> <p>2. Constitutional Law—County Bonds—Right to Issue—Validity of Act.— The act of March 8, 1906, (Acts 1906, p. 105) “to provide for the issue of county bonds for permanent road improvement in the magisterial districts of the counties of the State;” is a valid and constitutional enactment. The question has been twice before decided by this court, and is no longer an open one.</p> <p>3. Pleading—Departure—Estopel—Elections.—A party cannot assume successive positions in the course of a suit which are inconsistent with each other and mutually contradictory, but will be held to the defenses set up in his pleadings. A defendant who has set up the defense, by answer, that an election was valid, cannot subsequently claim that it was invalid and claim a new election, although the plaintiff had alleged the invalidity of the election in his complaint, but had subsequently abandoned that position.</p>

<p>1. Contracts-—Joint or Several.—Whether a contract is joint or several, or joint and several, depends upon the intention of the parties as ascertained from the contract as a whole construed by the ordinary rules of construction. When several persons engage for the performance of distinct and several duties, mere words of plurality will not make the contract joint.</p> <p>2. Contracts—Joint or Several—Case at Bar.-—Where several coal companies, owning separate and distinct mines in the same field, but having no joint or common interest, enter into contracts with the same sales agent, wholly separate and distinct in form, though identical in terms, for the purpose of controlling and marketing the output upon an equitable basis promotive of the interests of all, and to prevent injurious competition, the contracts are several, and are not converted into a joint contract by a clause declaring that “this agreement is to be construed as though all the parties to said agreements had executed one and the same agreement.”</p>

<p>1. Demurrer to Evidence—Contributory Negligence—Burden of Proof.— Contributory negligence is an affirmative defense, and, in a personal injury action, upon a demurrer to the evidence by the defendant, the burden of proving the contributory. negligence of the plaintiff is upon the demurrant, unless it is disclosed by the demurree’s evidence, or can be fairly inferred from all the circumstances of the case.</p> <p>2. Master and Servant—Disobedience of Orders•—Resulting Injury— Railroads.—In an action against a railroad company to recover for the wrongful death of a brakeman, if it appears that the brakeman disobeyed the orders of the conductor (who had authority .over him) to remain at a switch until his train reached that point, and that his disobedience proximately contributed to the injury resulting in his death, there can be no recovery against the railroad company.</p> <p>3. Demurrer to Evidence—Demurrant’s Evidence—When Considered.— Evidence favorable to the demurrant, but not in conflict with that of the demurree, is not excluded from consideration on a demurrer to the evidence, but is entitled to the same consideration as if no demurrer to the evidence had been interposed.</p> <p>4. Master and Servant—Railroad Yards—Vigilance of Servants.—A railroad yard is a dangerous place, and those engaged upon it are exposed to more than ordinary peril, and should be on the alert and vigilant to guard against injury from the movement of engines and cars, always to be expected, and for an injury resulting from the want of such vigilance there can be no recovery against the railroad company. It is as much the duty of the servant to provide for his own safety from such dangers as are known to him, or are discoverable by ordinary care on his part, as it is the duty of the master to provide for him.</p> <p>5. Master and Servant—Injury to Servant—Disobedience of Specific Order— Presumption of Negligence.—Where an injury results to a servant from his failure to comply with a specific order given by the master or his representative, contributory negligence on the part of the servant should be inferred, as a matter of law, even though such an inference might not be a necessary one if the order were not a factor in the case.</p>

<p>1. Telegraph Companies—Interstate Messages—Failure to Transmit and Deliver—Penalty Imposed by State.—If a telegraphic message from one point in this State to another point in this State be treated as an interstate message, because, according to the regulations of the company, it has to be relayed through the city of Washington, D. C., though it could be sent direct, the penalty imposed by the statute of this State for failure to transmit and deliver the message may be recovered in this State, although the negligence occurred in the city of Washington, since the statute may be fully carried out and obeyed without, in any manner, affecting the conduct of the company with regard to the performance of its duties in other States. It would not unfavorably affect or embarrass it in the course of its employment, and hence, until Congress speaks on the subject, the statute is valid.</p> <p>2. Appeal and Error—Constitutionality of Statute—Former Decisions— Jurisdiction—Dismissal.—Where the only ground of jurisdiction of this court is the constitutionality of a statute, the validity of which has been established by former decisions of this court, the writ of error will be dismissed for want of jurisdiction.</p>

<p>1. Evidence—Varying Written Contract—Reformation—Parol Evidence.— Where land has been conveyed to a trustee “for the sole use and benefit” of another, the trustee will not be permitted to show by parol that he was a joint owner of the land, as that would vary or alter the terms of the deed, which is not permitted. Nor can he have the instrument reformed upon the tender of such evidence. Where there is no fraud or mistake in the preparation of an instrument, and it appears that the party signing understood its language and purport, it cannot be reformed on the faith of a contemporaneous oral promise which was not kept.</p> <p>2. Trustees—Repairs—Improvements■—Lien for Advances.—A trustee has the right to make advances for the necessary repairs or improvements of the trust estate, unless prohibited, expressly or by necessary implication, by the terms of the instrument creating the trust, and for such advances he has a hen upon the trust subject, which he may enforce before being compelled to surrender it. Trustees invested with general powers of control and management are not bound to strict limitations. They are justified in making ordinary repairs and improvements, and are allowed to hold the estate until reimbursed; nor does the right of reimbursement depend upon the knowledge or consent of the cestui que trust.</p> <p>3. Dower—Lien for Purchase Money—Advances by Trustee.—The claim of a trustee holding the legal title to land for money advanced by him to pay the purchase price thereof is superior to the dower of the widow of the beneficial owner. The widow is only entitled to dower in the surplus after reimbursing the trustee the amount advanced by him to pay the purchase money, with interest thereon.</p>

<p>1. Motion fob Judgment—Liberality of Proceeding.—The proceeding by motion for a judgment for money, under section 3211 of the Code, is intended to furnish a simpler, more expeditious, and less expensive remedy for the collection of debts than a regular action, and is viewed with more leniency, and a greater laxity in the pleadings is allowed in that form of procedure. -</p> <p>2. Motion fob Judgment—Plea of Non-Assumpsit—Proof of Set-Offs— Grounds of Defense.—Under the plea of non-assumpsit to a motion, on an open account, under section 3211 of the Code, the defendant may prove set-offs, though no list is filed, where it appears that, at an early stage of the proceeding, the plaintiff was apprised of the nature of the defense. But, if the plaintiff had not been so apprised, his remedy was to demand a statement of the grounds under section 3249 of the Code.</p> <p>3. Payment—Set-Offs—Intention.—Whether a particular item constitutes a payment or a set-off depends largely upon the understanding of the parties. It is not infrequently the case that by agreement what would otherwise be a set-off may be converted into a payment.</p> <p>4. Pleading—Amendments—Case at Bar.—It is in the discretion of the trial court, at any time before verdict is rendered, to allow amendments of the pleadings which will operate in favor of justice. The rights of the opposite party can always be protected by a postponement of the case, or a continuance, as circumstances may require. In the case at bar, liberty to amend should have been granted to the defendant.</p>

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

<p>1. Judicial Sales—Private Sales.—The controlling purpose and prime object in mailing a judicial sale is to realize the best price obtainable-for the property offered, and where a public sale, after due advertisement, has been attempted, and proved ineffectual in obtaining a satisfactory offer, there is no reason why the court may not, through its officers, negotiate a private sale, especially where the property is seriously depreciating in value and yielding no income comparable-to the costs and expenses necessarily incident to its preservation and protection.</p> <p>2. Judicial Sales—Inadequacy of Price—Exception—Burden of Proof.— When the action of the court in confirming the sale of property under its control is complained of because of the inadequacy of the price, the burden is on the complaining party to show that he has been in•jured.</p> <p>3. Judicial Sales—Inadequacy of Price—Fraud.—If the grounds relied on for setting aside a judicial sale go to the very substance of the contract, such as fraud, accident, mistake, or misconduct on the part, of the purchaser or other person connected with the sale, which has-worked injustice to the party complaining, the rule governing in determining whether or not the sale shall be confirmed is very different from the rule controlling where the question is whether the price at which the property sold is entirely inadequate.</p> <p>4. Judicial Sales—Inadequacy of Price—Affidavits.—-The highest bid made at an open judicial sale, fairly conducted, after full notice, in the face of such competition as can be attracted, is a fair and just criterion of the value of the property at that time. After-stated opinions, affidavits of under-value, and the like, are regarded with little favor, and are entitled to little weight in comparison with the fact established by the auction and its results.</p>

<p>1. Elections&emdash;Constitutional Law&emdash;Town Elections&emdash;Code (1904), Section-1088 e&emdash;Validity.&emdash;Section 1038e of the Code (1904), with reference-to elections in towns to decide upon bond issues, is a valid and constitutional enactment.</p> <p>2. Elections&emdash;Town Bonds&emdash;Form of Ballot&emdash;Code (1904), Section 1088a.&emdash; In an election under section 1038a of the Code (1904) it is not necessary that the ballots should be so prepared as to afford the voter the opportunity to cast his vote for or against each of the different objects to which the bonds are to be applied. The statute provides that the ballots shall have printed thereon, in separate lines, the words “for bond issue” and the words “against bond issue,” and no greater particularity is required.</p> <p>3. Elections&emdash;Bond Issue of Towns&emdash;Amount of Issue&emdash;Ballots.&emdash;Section 1038e, sub-section 6, declares that the amount of the bond issue upon which the vote is taken shall be stated upon the ballot. This provision is a most essential feature of the whole procedure, is mandatory., and its omission is fatal to the election.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke, on a rule against the mayor to show cause why he should not be removed from office for misfeasance therein.</p>

<p>1. Master and Servant—Youthful Servant—Warning of Dangers.—-It is the duty of the master to take notice of the apparent age of a youthful employee, and, when he is known to be inexperienced, to give him warning of the dangers to which he will be exposed. The mere fact that he is over the age of fourteen years does not reheve the master of this duty, nor shift the burden of proving his non-appreciation of the dangers of the service.</p> <p>2. Master and Servant—Youthful Servant—Personal Injury—Contributory Negligence.—If an injury is inflicted upon a young and inexperienced servant through the negligence of the master, without any greater want of care and caution on the part of the servant than was reasonably to be expected from one of his age, experience, and mental capacity, under all the circumstances, then the servant is entitled to recover.</p> <p>3. Master and Servant—Negligence—Assumed Risks—Youthful Servant.—• The only risks assumed by a servant in entering upon and remaining in the service of the master are the ordinary risks of the service, and risks from causes which are known to him, or which are so open and obvious as to be readily discernible by one of his age, experience, and mental capacity, in the exercise of ordinary care.</p> <p>4. Master and Servant—Injury to Servant—Assumed Risks—Youthful Servant.—A servant who is injured in executing a direct order of the master will not be held to have assumed the risk incident to obeying such an order, unless the danger is so great that a reasonably prudent man would not encounter it; and, in determining the degree "of care to be exacted of a youthful servant, his age, experience, and mental capacity should be taken into consideration.</p> <p>5. Instructions—Jury Fully Instructed.—It is not error to refuse an instruction, although it be correct, when the jury has already been fully instructed on that subject.</p> <p>6. Appeal and Error—Verdict Sustained by Evidence—Instructions.— The verdict of the jury will not be disturbed, on a writ of error, where the case was fairly submitted to the jury on proper instructions, and the evidence was ample to sustain the verdict.</p>

<p>1. Master and Servant&emdash;Defective Machinery&emdash;Knowledge of Master.&emdash;In order to render a master liable for injuries to a servant arising from defects in machinery or appliances, it must be shown that the master knew of the defects, or, in the exercise of due care, ought to have known of them.</p> <p>2. Master and Servant&emdash;Defective Machinery&emdash;Inspection&emdash;Custom Not to Inspect.&emdash;In a personal injury action by a servant against the master, it is not permissible for the master to show a custom not to inspect machinery so long as it worked satisfactorily, or for a month or six weeks, as that would contravene the rule of law which imposes upon him the duty to exercise reasonable care to inspect machinery and appliances.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, in a proceeding by motion on a supersedeas bond. Judgment for the plaintiff. Defendants assign error.</p>

<p>1. Demubrer to Evidence&emdash;Party Homing Burden of Proof&emdash;Compelling Joinder.&emdash;The fact that a party has the burden of proof in a ease renders it more difficult for him to resort to a demurrer to the evidence successfully than it would be otherwise, but is no reason why he may not resort to that mode of procedure, and the other party be compelled to join in the demurrer.</p> <p>2. Demurrer to Evidence&emdash;Statement of Grounds&emdash;Particularity.&emdash;The degree of particularity required in the statement of the grounds of a demurrer to the evidence depends, to some extent, on the nature of the case. It is sufficient if the demurree is fully advised of the con-tention of the demurrant.</p> <p>3. Landlord and Tenant&emdash;Lease&emdash;Construction&emdash;“Subject to be Used.”&emdash; A lease of land used or “subject to be used” for ferry purposes em-braces land liable to be used for ferry purposes, whether it has been so used or not.</p>

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

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

<p>1. Partnership&emdash;Agreements to Buy Land&emdash;When Within Statute of Frauds.&emdash;A partnership for the purchase and sale of real estate for speculation, the profits to be divided between the partners, is valid when verbally made, and the existence of the partnership and the extent of the interests of the partners may bo shown by parol; but an agreement to become interested in and to share the profits from lands already owned by one or more of the partners at the time the partnership is formed is an agreement for the pinchase and sale of an interest in real estate, and within the statute requiring the same to be in writing.</p>

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

<p>1. Eminent Domain—Powers Construed Strictly.—In proceedings to condemn land for a public use, the power conferred must be strictly construed, and the manner of executing it carefully observed and followed.</p> <p>2. Eminent Domain—Powers of Cities—Code (190If), Section' 1105f.—■ The provisions of section 1105f of the Code (1904), as far as they can be applied, govern cities in exercising the right to condemn property for their purposes.</p> <p>3. Eminent Domain—Powers of Commissioners—Apportioning Damages—• Surplusage.—Under the provisions of section 1105f of the Code (1904) commissioners appointed to assess the damages for land to be taken for a public use have no power, where there is a controversy or doubt as to who is entitled to such damages, or in what proportions, to pass upon or determine who is entitled to the same; and if, in their report of the damages assessed, they also attempt to apportion the damages amongst those entitled, the apportionment should be stricken out as surplusage.</p> <p>4. Eminent Domain—Duties of Commissioners—Questions of Title— Apportionment of Damages.—Commissioners are peculiarly fitted for ascertaining a just compensation for land to be condemned, and the incidental damages provided for by statute, but they are rarely well qualified to settle intricate questions of law arising upon the determination of controversies between persons interested in, or claimants to, the land taken, or to the compensation and damages reported; and one of the objects of clause 14 of section HOSf of the Code (1904) was that the commissioners might not be obstructed in the prosecution of their work by controversies in respect to the title to or interest in the land sought to be taken, but to transfer such controversies from the land to the fund paid into court.</p>

<p>Error to a judgment of the Circuit Court of Fairfax 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 Appomattox county. Decree for the complainant. Defendant appeals.</p>

<p>Error to a judgment of the Corporation Court of Newport News.</p>

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

Controversy between creditors. This is a controversy between creditors of the Old Dominion Granite Brick Company, an insolvent corporation. The appellant claims that it has the superior lien on the proceeds of certain personal property by virtue of a fieri facias levied upon it prior to the levy of a distress warrant and attachment sued out by the appellees.

<p>1. Sales—Retention of Title—Destruction of Goods—Buyer’s Loss.—Where goods are delivered to the buyer, but title is retained by the seller until the price is paid, the goods are at the buyer’s risk, and, in case of destruction by fire, the loss falls on him, although he was without fault as to their loss. The transaction is, in legal effect, the same as if the buyer had obtained title from the seller, and had given back a mortgage to secure the purchase price.</p> <p>“2. Pleading—Set-Offs—Burden of Proof.—A defendant who interposes the defense of set-offs stands in the light of a plaintiff in a cross-action, and the burden of proof is on him to establish his set-off.</p> <p>■3. Pleading—Set-Offs—Insurance on Goods—Failure to Collect Face Value of Policy.—In an action by the seller against the buyer of goods to recover the purchase price, the buyer defended on the ground that the goods were destroyed by fire without his fault, that they were insured for their full value, and that he had delivered the policies to the seller, who had, without his knowledge or consent, settled with the insurance company at less than the face value of the policies, and hence he was not bound for the residue represented by the uncollected portion of the policies.</p> <p>Held: The jury was rightly instructed that the defendant was only entitled to credit for the amount actually collected on the policies, “unless it appears from the evidence that the plaintiff ought, in the exercise of reasonable care and diligence, to have collected a larger amount from said policies.” The defense was set-off, which the defendant had the burden of proving.</p>

<p>1. Fraudulent Conveyances—Actual Fraud—Fraud in Law.—To hold a mortgage or deed of trust fraudulent in law, it is not necessary to impute actual or intentional fraud to the grantor, the trustee, or any one concerned. The provisions of the instrument may be of such character as of themselves to furnish evidence sufficient to justify the inference of fraudulent intent.</p> <p>2. Fraudulent Conveyances—Reservation Inconsistent with Grant— Fraud Per Se.—-A deed conveying a stock of goods, though designated as an exhibit, to a trustee, to secure a debt, reserving to the grantor the right to remain in the quiet possession of the goods, and take the profit thereof to his own use until default is made in the payment of the debt secured, reserves to the grantor power over the goods incompatible with the avowed purposes of the trust, and adequate to its defeat, and hence is fraudulent per se.</p>

<p>1. Bills and Notes—Ownership—Presumption—Burden of Proof.—The possession of a note, regular upon its face, is prima facie evidence of ownership, and that it has been taken in good faith for value, but this presumption may be rebutted, and, when rebutted, the burden is upon the holder to show that he is the owner in good faith for value.</p> <p>'2. Evidence—Written Instruments—Conditional Delivery.—While parol evidence is not admissible to vary, alter, or contradict the terms of a valid written instrument, it is admissible to show that the conditions upon which it was to become operative have never occurred, and that this fact was known to the holder when he took it.</p> <p>•3. Bills and Notes—Endorsements—Conditional Delivery—Instructions.— Where the evidence tends to show that the defendant, who was sued as the endorser of a note, was not hable on his endorsement because he had delivered it to the plaintiff upon condition that he would not be bound thereby until a third person had also signed as joint endorser, it is error to instruct the jury to disregard such evidence.</p>

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

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

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

<p>1. Criminal Contempt&emdash;Rules of Evidence&emdash;Proof Beyond Reasonable Doubt.&emdash;In a proceeding to punish for a criminal, or quasi criminal contempt, the rules of evidence applicable in criminal cases prevail, and a mere preponderance of evidence is not sufficient to convict, but the offense charged must be proved beyond a reasonable doubt. Before a party can be summarily punished for a contempt, he must be brought clearly within the terms of the statute.</p> <p>2. Contempt&emdash;Disobedience of Decree&emdash;Persons Not Parties&emdash;Ignorance of Decree.&emdash;A person cannot be punished for contempt for disobedience or resistance of a decree appointing a receiver, when he was not a party to the suit, had no knowledge of its existence or of the appoint-ment of the receiver, and where the decree appointing the receiver contained no direction, mandate, or prohibition to or against him.</p> <p>3. Contempt&emdash;Imprisonment for Debt.&emdash;Imprisonment for debt passed away in this State with the abolition of the capias ad satisfaciendum in 1849, and, in a proceeding for contempt, where the contempt is not established, it is error to seek to enforce the return of money improperly paid by an order directing the imprisonment of the defendant if the money be not paid.</p>

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

<p>1. Resulting Trust—Parol Evidence.—-While a resulting trust may be-established by parol evidence, it must be clear and explicit, and such as to leave no doubt of the character of the transaction. Where the-trust does not arise on the face of the deed, but is raised upon payment of the purchase money, which creates a trust which is to over-ride the deed, the proof must be very clear, and mere parol evidence ought to-be received with great caution.</p> <p>2. Resulting Trusts—Payment of Purchase Money—Time of Payment— ■ Case in Judgment.—A resulting trust must arise at the time of the execution of the conveyance. -Payment in advance of the purchase money, before or at the time of the purchase, is indispensable. A subsequent payment will not, by relation, attach a trust to the original purchase, for the trust arises out of the circumstance that the moneys-of the real, and not the nominal, purchaser formed at the time the consideration of that purchase, and became converted into land. The evidence in the case in judgment does not measure up to the requirements of either this or the preceding paragraph.</p> <p>3. Corporations—Private Dealings of Officer—Notice—Case in Judgment.— Where an officer of a corporation is acting for himself in a transaction with the corporation, he is regarded as a stranger to the corporation, dealing as if he had no relation to it; and any uncommunicated knowledge which he may have in respect to the transaction will not be imputed to the corporation by reason of his possession of it. In the . transactions involved in the case,in judgment, the officer was not acting: in the regular course of his business as such officer.</p>

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

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

<p>1. Corporations—Stock Subscriptions—Payment in Property—Valuation.— The provisions of the constitution and the statute passed in pursuance thereof, relating to the liability of stockholders for their subscriptions, changed the former rule, and persons organizing a corporation can now subscribe to its capital stock and pay therefor in anything which the board of directors may determine to accept, and at any price which may be agreed upon, and the stock may be paid for at any price at which it may be offered by the company, and no one can complain, provided the requirements of the constitution and statute are complied with.</p> <p>2. Corporations—Stock Subscriptions—Statutes—Derogation of Common Law.—The statute permitting stock subscriptions to be paid in property at any valuation agreed upon between the subscriber and the company is in derogation of the common law, and must be strictly construed.</p> <p>3. Corporations—Stock Subscriptions—Payment in Properly—Over-Valuation.—In the absence of any charge or proof of fraud in obtaining-the charter, or in the organization of the corporation, or the issuance of the stock, incorporators, who are the directors of a corporation, may place any value they please on property transferred to the com- - pany, and have stock of the company issued to them therefor, and, if the statement of the financial plan of the company is filed with the State Corporation Commission in the form prescribed by it, and is permitted by the Commission, there is no personal liability on the subscriber, notwithstanding the over-valuation of the property given-, for the stock. Such is the policy of the State, and the courts are powerless to redress wrongs and impositions' which may grow out of such transactions.</p> <p>4. Corporations—Indebtedness—Liability of Stockholders.—Persons contracting with corporations chartered m this State must look to the-records of the State Corporation Commission for information regarding, the assets of the corporation. If the company is duly organized, they have no remedy against stockholders holding fully paid certificates of stock, in the absence of fraud in the organization of the com-pany or the issuing of its stocks.</p>

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

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

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

<p>Error to a judgment of the Circuit Court of Princess Anne-county in a proceeding by mandamus. Judgment for the plaintiffs. Defendant assigns error.</p>

<p>Appeal from a decree of the Corporation Court of the city of Fredericksburg. Decree for the complainant. Defendants appeal.</p>

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

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

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

<p>1. Pleading—Particulars cf Complaint—Demurrer.—If the defendant desires a more particular statement of the grounds of complaint, his remedy is not by a demurrer, but by a motion for a bill of particulars.</p> <p>2. Carriers—Personal Injury to Passenger—Declaration—Derailment— Specific Acts of Negligence—Waiver.—Where the relation of carrier and passenger exists, and there is a derailment resulting in an injury to the passenger, a presumption of negligence on the part of the carrier arises. Hence all that is necessary for the declaration to allege in such a case is the relation of passenger and carrier, the derailment, and the injury to the plaintiff by reason thereof. An allegation of specific acts of negligence in the same count with the allegations of imputed negligence is not a waiver of the right to rely upon the latter, and may be treated as surplusage. The plaintiff, in such case, is not bound to prove the whole of what he has alleged. So, likewise, some counts of the declaration may charge affirmative negligence, while others may rely upon the legal presumption of negligence. The former is not a waiver of the latter.</p> <p>3. Pleading—Inconsistent Counts—Demurrer—Striking Out Counts.—-Where a demurrer to a declaration as a whole was interposed on the ground of inconsistency between the grounds of action stated in the different counts, and all of the counts but one were stricken out, on the motion of the plaintiff, after the evidence was introduced, the defendant could not have been hurt by overruling his demurrer to the declaration.</p> <p>4. Witnesses—Order of Examination—Discretion of Trial Court.—The examination of witnesses lies chiefly in the discretion of the trial court, and its exercise is rarely, if ever, to be controlled by an appellate court. Much latitude of discretion should be allowed the trial court in the matter of recalling witnesses, and the order of their examination, and its action will not be reversed except for palpable error. Its action will not be reversed for improperly receiving in chief evidence which was clearly admissible in rebuttal.</p> <p>5. Carriers—Personal Injury—Nature of Injury—Province of Jury.—In a personal injury action to recover damages for an injury inflicted on a passenger by the derailment of a street-car, it is not incumbent on the plaintiff to show how he fell or what he struck. Evidence having been introduced of great violence to plaintiff’s person, and of the character thereof, it was for the jury to say, upon all the evidence in the case, whether or not it could have inflicted upon him an injury of the nature of that shown by his evidence.</p> <p>A. Carriers—Personal Injury—Derailment of Car—Presumption—Burden of Proof.—Where an injury is inflicted on a passenger as a result of the derailment of a car, the presumption is that it occurred by the negligence of the railway company, and the burden is on the company to prove that there has been no negligence whatever on its part, and that the damage has been caused by inevitable casualty, or by some cause which human care and foresight could not prevent. In the absence of a satisfactory explanation by the defendant of the cause of the accident, going to show that the defendant was free from fault, the plaintiff is entitled to a verdict. The physical facts themselves create a presumption of negligence.</p> <p>7. Instructions—Jury Fully Instructed.—Where a case has been fully and fairly submitted to the jury upon every phase of it presented by the evidence, it is not error to refuse to give other instructions asked.</p> <p>8. ^Damages—Excessive—Personal Injury.—A verdict of 17,500 for a personal injury, such as is complained of in the case at bar, cannot be set aside as excessive, in the absence of any evidence that the jury, in ascertaining the damages, acted under the impulse of any improper motive, gross error, or misconception of the subject.</p>

<p>1. Wills&emdash;Construction&emdash;■Primary Sense&emdash;Nieces and Nephews.&emdash;Words in a will or other written instrument which have a definite primary-meaning must be understood to be used in that sense, unless the intention to use them in some other sense manifestly appears. Hence, in the absence of evidence to the contrary, the words “nieces” and “nephews” must be confined to the children of a brother or sister, and will not embrace great-nieces and great-nephews.</p> <p>2. Wills&emdash;Construction&emdash;Case in Judgment&emdash;Nieces and Nephews.&emdash;A testator gave “to any niece or nephew of mine whom I have omitted or neglected in making the above provisions (excepting the children of Dr. Howell White, for whom I have provided as hereinbefore • set out) the sum of three thousand dollars.” Dr. HoweE White was the testator’s nephew, and, as his chEdren were the grandnieces and grand-nephews of the testator, it was claimed that the class to whom the legacies of three thousand doEars was given was thereby enlarged by imphcation so as to embrace grand-nieces and grand-nephews, but the contrary is held.</p> <p>3. Wills&emdash;Public Library&emdash;Site&emdash;Subsequent Gift by Another.&emdash;A devise to a pubEc Ebrary (a corporation) of a lot as a site for a buEding, if it wiE erect or cause to be erected thereon a suitable buEding for a pubEc Ebrary, is vaEd, and wiE be upheld where the lot is necessary to meet the growing needs and demands of the citizens in the community for another Ebrary buEding, and the devisee is ready, able, and wiEing to erect a suitable building thereon for a pubEc Ebrary, although, after testator’s death, and before his executor could carry out the provisions of his wiE, another citizen had given a site, and a pubEc Ebrary buEding had been erected thereon by the devisee.</p>

<p>1. Corporations—Amendment of Charter—Constitutional Law—Power of State.—The reservation by the State of the power to alter or amend .charters of incorporation, whether written in the Constitution, in general laws, or in the charter itself, qualifies the grant, and the subsequent exercise of that power cannot be regarded as an act impairing the obligation of contracts.</p> <p>2. Corporations—Amendment of Charter—Acceptance—Effect.—Under the provisions of the present Constitution every corporation chartered before the Constitution was proclaimed which accepts or effects an amendment or extension of its charter holds its charter and franchise, and all amendments thereof, under the provisions and subject to all the requirements, terms, and conditions of the Constitution, and the laws passed in pursuance thereof, so far as the same may be applicable thereto.</p> <p>1. Corporations—Amendments of Charter—Power Reserved by State—■ Extent.—Although the power reserved to the State is to alter, amend, or repeal the charter of a corporation, it is not limited to changes or alterations solely between the State and the corporation, but authorizes amendments and alterations, within certain limitations, directly affecting the stockholders in their relations to the State, to the corporation, and to each other, and it is not necessary that the stockholders shall be mentioned in terms in the instrument reserving the power to the State to alter or amend.</p> <p>5. Corporations—Acceptance of Charter Amendments—Effect—Subject to-the Constitution.—If, by asking and accepting an amendment of its charter, a corporation is brought under the provisions of the Constitution, the wish or declaration, in the application for the amendment, that the charter is not to be amended in any other respect, is unavailing. No matter what the agreement between the stockholders or the desire of the corporation may be, the amendment cannot be obtained upon terms inconsistent with the Constitution and the laws under-which the amendment is asked and accepted.</p> <p>3. Corporations—Consolidation—Consent of Stockholders—Amendments of Charter.—Although corporations engaged in the same or similar business might not have been able to consolidate prior to the present Constitution, except upon the unanimous vote of the stockholders of each, such consolidations are now authorized by general statute by a majority vote of the stockholders, given under the conditions mentioned in the statute, and this statute is applicable to corporations created by the laws of this State before the present Constitution was proclaimed, but which have been brought under the provisions of the Constitution by accepting amendments of their charters.</p> <p>'6. Corporations—Consolidation—Rights of Minority Stockholders.—Upon the consolidation of two or more corporations, a dissenting stockholder, while he cannot prevent the consolidation, may refuse to surrender his stock for stock in the new corporation, and may refuse to take anything for it less than its actual cash value at the date of the consolidation, and a summary remedy is given him for ascertaining and recovering it, but he is not bound to pursue it.</p> <p>'.7. Corporations—Consolidation—Remedies of Minority—Equity.—A bill filed by a dissenting stockholder to ascertain the value of his stock in a corporation which has consolidated with another without his consent will not be dismissed on the ground that he has an adequate and complete remedy at law, as investigations may have to be made and accounts taken, which can be much better done in a court of equity than in a court of law.</p> <p>'8 Corporations—Consolidation—State Corporation Commission—Jurisdiction.—Where the State Corporation Commission has approved the consolidation of two corporations which have complied with the statutory requirements on the subject, and has issued the certificate required by law, the trial courts of the State are without jurisdiction to inquire into or revise its action.</p> <p>1'. Constitutional Law—Commerce—Monopolies—Consolidation of Corporations.—The consolidation, under the provisions of sub-section 40 of section 1105e of the Code of 1904, of two corporations engaged in the same or- a similar business, under the circumstances set out in the case in judgment, was not in violation of the commerce clause of the Constitution of the United States, nor of the Sherman Anti-Trust Act.</p>

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

<p>1. Homicide—Killing with Deadly Weapon—Malice Presumed—Burden of Disproving.—On a trial for murder, where the evidence shows that the killing was done with a deadly weapon, the law presumes that it was done with malice, and it is for the defendant to satisfy the minds of the jury that it was not done with malice.</p> <p>2. Criminal Law—Presumption of Innocence—Proof of Guilt Beyond a Reasonable Doubt—Continuous Burden on State.—A person charged with the commission of a crime is presumed to be innocent, and that presumption follows him throughout every stage of the prosecution. Moreover, the plea of not guilty denies every essential allegation of the indictment, and lays upon the prosecution the burden of proving the guilt of the defendant beyond a reasonable doubt. There is no shifting of this burden of proof. It remains upon the State throughout the trial. The evidence may shift from one side to the other, and the State may establish such a state of facts as must result in a con-, viction, unless the presumption they raise be met by evidence; but when the evidence is all in, if, upon a consideration of it as a whole, the jury entertain a reasonable doubt as to the guilt of the accused, they must find him not guilty, as the State has not sustained the burden of establishing his guilt beyond a reasonable doubt. The accused is not required to prove his innocence. The rule that the burden of proof is upon the Commonwealth is not affected by the modification that, in cases of homicide, where the defense of self-defense is interposed, it is incumbent upon the defendant to set it up by affirmative proof, unless the fact appears from the Commonwealth’s own evidence.</p>

<p>1. Criminal Law—Indictment—Surplusage—How Removed.—An indictment which fully and sufficiently charges a crime under one statute is not rendered bad by also making a charge under an entirely different statute. The latter may be treated as surplusage. The objection, however, cannot be reached by demurrer, but may be made either by a motion to strike the surplus statement or averment from the indictment, or by a motion to exclude testimony offered in support of the averment, or by an instruction to the jury to disregard the averment and all evidence in support of it.</p> <p>2. Bills of Exception—How Authenticated—How Evidence Incorporated.-— It is of the utmost importance, in the administration of justice, that the record upon which the courts are to act should be ascertained with certainty, and so attested as to leave no doubt of its authenticity. Bills of exception in a completed form are required to be authenticated by the signature of the presiding judge, and the record should show such authentication. The signature of the judge to a skeleton bill— a bill not containing the evidence, but referring to unidentified papers as containing it—leaves the bill incomplete, and is not such authentication as the law requires. The stenographer’s report of the evidence and other papers intended to be made parts of a bill of exception by reference must be so articulated as to form but one paper, or in some way ear-marked or identified by the judge who signs the bill, and the record must show it. A bill of exception is a record, and, like any other record, cannot be established by parol testimony, but must carry on its face the evidence of its own integrity and completeness.</p> <p>3. Witnesses—Experts—Opinions.—Upon the trial of the cashier of a bank for having made a false report of the condition of the bank to the State Corporation Commission, the following question propounded to an expert accountant (who had examined the books of the bank) and his answers thereto, should have been excluded: “Taking all of your information up to the present time, including your investigation into these books, have you been able to reach a conclusion that Mr. Thornton made a true statement as to the condition of this bank?” Ans. “No, sir; it was not a true statement.” The question and answer take away from the jury the very issue they were to try, and submit it to the witness, and, upon that evidence alone, if admissible, the prisoner might have been found guilty. While the witness was an expert accountant, his answer is not confined to information derived from the books.</p>

<p>1. Common Law—Principles of.—-The principles of the common law are elastic, and one of its peculiar merits is that it adapts itself to the rights of parties under changed circumstances; but it is sometimes, difficult to ascertain what these principles are, owing to the fact that the cases and text writers are not in harmony on the subject.</p> <p>2. Criminal Conspiracy—Definition.—A conspiracy, to be criminal, must be a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means.</p> <p>3. Conspiracy—Combination to Raise Insurance Rates—Restraint of Trade.— Conceding that a combination to fix, regulate, and control the business of fire insurance in a particular locality is an agreement in restraint of trade, agreements merely in restraint of trade are not, in the absence of statute, illegal in the sense that they are either indictable or actionable. Persons engaged in the insurance business may, in the absence of statutory regulation, agree upon the terms, conditions, and rates-upon which they are willing to insure, and induce others engaged in the same business to unite with them in maintaining such terms, conditions, and rates; provided they use no unlawful means in accomplishing their objects. Insurance is not an article of merchandise or manufacture, nor one of the “necessaries of life,” or of prime necessity, within the letter or spirit of the laws against engrossing.</p> <p>4. Conspiracy—Criminal Offense—How Charged.—-Where the object of an alleged conspiracy is not criminal or illegal, and the illegality lies. in the means by which that object is to be effected, the means must be set forth in the indictment, warrant, or other charge, and must be such as to constitute an offense at common law, or by statute. It is not sufficient to charge that the parties “fraudulently” or “unlawfully” conspired to “eoerce,” “intimidate,” and the like; but the facts must be averred which go to show the fraud, coercion, or intimidation.</p> <p>5. Conspiracy—Raising Insurance Rates—Motive—Public Policy.—As persons and corporations have the right to fix the rate at which they will insure property, they may raise their rates at pleasure, and any number of them may agree, in the absence of statutory regulation, among themselves, to maintain the increased rate, and it is wholly immaterial what motive may have induced them to do so. The act itself being lawful, it is not rendered unlawful by the motive which induced it. If public, policy requires that combinations to raise and maintain insurance rates should be limited or suppressed, it is a subject to be dealt with by the legislature, and not by the courts.</p>

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

<p>1. Intoxicating Liquors—-Byrd Liquor Law—■Local Option Territory—• No License Territory.—A town which, at the last election held on the subject, voted in favor of license to sell ardent spirits, is not “local option territory,” nor is it “no license territory,” within the meaning of the “Byrd Liquor Law” (Acts 1910, ch. 190), if the circuit court for the county had the right, under certain conditions, to grant license to sell ardent spirits therein. The fact that no license to sell ardent spirits in fact exists, and that- previous licenses have been revoked because the place is “not suitable, convenient, and appropriate, and that proper and satisfactory police protection is not afforded, ” does not render the town “no license territory,” within the meaning of the statute. “ No license territory ” is such territory as, under the prohibition of some act of the legislature, no license can be granted for the sale of ardent spirits in that territory.</p>

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

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