Volume 114 — Virginia Reports

<p>Error to a judgment of the Corporation Court of the city of Roanoke in an action of trespass on the case. To a judgment for the plaintiff for a reduced amount, the plaintiff assigns error.</p>

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

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

<p>1. Master and Servant — Vice-Principal—Regulations of Company— Discovering Defects. — The rule of a mining company, which requires a machine operator to examine the condition of his working place, and, if found to be unsafe, to report the same to the mine boss, and cease work at such place until the same is made safe, is intended for the safety of the operator and his machine, and is not meant to charge him with the duty of discovering and reporting defects which may result in injury to others. Such an operator is not a vice-principal. A miner who, for his own protection, is charged with the duty of looking out for defects ánd reporting them, is not a vice-principal of the company for which he is working, but a fellow servant of other employees in the mine.</p> <p>2. Death by Wrongful Act — Elements of Damages — Earnings During Probable Life of Decedent — Beneficiaries.—In computing the damages to be recovered, in an action for a death by wrongful act, the plaintiff may recover the probable earnings of the intestate during what would have been his probable lifetime, and is not limited to such earnings during the probable lifetime of the beneficiary. In Virginia the recovery is for the wrongful death, and not merely because there are dependent relatives, and hence the right of recovery is not affected by the absence of relatives, or by the fact that surviving beneficiaries are rich or poor. Moreover, the recovery of estimated wages may be for the benefit of the mother of an infant, although her husband is still living.</p>

<p>1. Equity — Complete Belief — Injoining Trespass — Cloud on Title — Where the primary object of a suit is to injoin a trespass, involving irreparable injury to the very substance of land, and a court of equity acquires jurisdiction on this ground, it may go on and grant the incidental relief prayed of quieting the title and removing the clouds therefrom, on the principle that where a court of equity acquires jurisdiction on equitable grounds it will go on and grant complete relief.</p> <p>2. Injunction to Restrain Trespass — Complainant’s Title. — A plaintiff in a suit to restrain a trespass need not allege that his title is undisputed or has been adjudicated. He must, however, show a prima facie title. If he relies upon a paper title, he should generally exhibit his title papers, or such of them at least as will make out a prima facie case of title. If he relies upon possession, he should state the facts upon which he bases his claim of possession, so that in eith&r case the court can see from the title papers filed or the facts stated that he has a prima facie title.</p> <p>3. Injunctions — Trespass—Irreparable Injury — Inadequate Bemedy at Law. — In a suit to restrain a trespass upon land by cutting the timber thereon, the complainant must allege in his bill such facts as will show that the injury threatened is irreparable, or that the remedy at law is inadequate; that the timber on the land constitutes its chief value, or that it is essential to the enjoyment of the land, or how its removal would injure the inheritance. •</p> <p>4. Vendor and Purchaser — Purchaser With Notice. — If, before a party becomes a complete purchaser of land, he is put upon inquiry as to the title of another who is in actual possession of a part of the land, and has for years been openly exercising acts of ownership thereon, and, furthermore, has actual knowledge of such transactións, and has recognized and acquiesced in the dividing line claimed by such other, such purchaser is not a purchaser without notice.</p>

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

Appeals from decrees of the Hustings Court of the city of Petersburg. Suit was brought by Eoper and Groner, trustees, against Phillips Line and Others, for the appointment of a receiver. From the ruling of the court on exceptions to a master’s report, two appeals were taken, one by the Jackson Coal and Coke Co. and Others, and the other by Seward & Eoper, creditors and stockholders.

<p>Appeal from a decree of the Circuit Court of Tazewell county. Decree for T. W. Kirkbridge, on a petition filed by him against The Keys Planing Mill Company, in the chancery cause of McClamrock Mantel Co. v. Kirkbridge & Others. The appellant came into the original suit by petition and asked that Kirkbridge be made a party defendant, but the process on this petition was returned as {to Kirkbridge “not found, being a non-resident of the State of Virginia.” Although a non-resident, he acknowledged service of process to the bill in the McClamrock Mantel Company suit.</p>

<p>1. Bankruptcy — Jurisdiction of Federal Courts. — The Federal courts of bankruptcy are not courts of limited but of general jurisdiction in respect to matters in bankruptcy.</p> <p>2. Bankruptcy — Findings of Referee — United States District Courts— Jurisdiction. — Where a referee in bankruptcy decides that an assignment of a debt by a bankrupt constitutes a voidable preference, and the adverse claimants, without questioning the jurisdiction of the referee, except to his finding on the merits, and petition the District Court of the United States to review and reverse his order, that court has jurisdiction to determine the issue thus voluntarily submitted to it for its adjudication, and its decision is final and conclusive upon the parties.</p> <p>3. Appeal and Error — -Objections for First Time — Bankruptcy.—In an action by a trustee in bankruptcy to recover a debt which the referee in bankruptcy has decided belonged to the estate of the bankrupt, and not to the assignee of the debt, objection cannot be made in this court for the first time that the referee was without authority to act in the premises, where it appears that his jurisdiction was not questioned at the time he acted, but was in fact admitted by filing a petition in the district court to have his decision reversed on the merits.</p> <p>4. Bankruptcy — Jurisdiction—Consent.—The principle that consent cannot give jurisdiction of the subject matter of litigation has no appliaetion to cases arising under section 23-b of the Bankruptcy Act of 1898, which plainly implies that jurisdiction of certain classes of controversies may be given by consent.</p>

<p>Appeal from a decree of the Corporation Court of the-city of Bristol in a suit in chancery brought by an executor for the construction of the will of a testatrix as affected by the codicil thereto. From an adverse decree, the-, residuary legatees under the will appeal.</p>

<p>1. Eminent Domain — Municipal Corporations — Condemning Water Power — Code, Section 1038. — A municipal corporation has the right, under section 1038 of the Code, as amended, to condemn for its use land and water power outside of the corporate limits, if the necessity therefor exists, as pointed out in the statute. The fact that “water power” is not in terms named in the “affirmative clause” of the statute, but only in the proviso, does not show that the legislature did not intend to give a city or town the right to condemn a water power, which is a right or interest annexed to land and a parcel thereof. The right or power to condemn the whole, if owned by one person, necessarily includes the right to condemn the several parts thereof when owned by different persons.</p> <p>2. Eminent Domain — “Necessity”—Code, Section 1038. — The word “necessity,” used in section 1038 of the Code, as amended, forbidding a city or town to condemn land for certain public utility purposes, “unless the necessity therefor shall be shown to exist,” means a reasonable, not an absolute, necessity.</p> <p>3. Eminent Domain — Excessive Condemnation. — Although a water power condemned for a town is more than the town needs now or will need for years to come, it is not error to condemn the whole, when it does not appear that less than the whole could have been condemned, and the evidence tends to show that if there is any taking at all the whole must be condemned.</p> <p>4. Eminent Domain — Report of Commissioners — Inadequacy of Damages. — The assessment of damages by the commissioners in condemnation proceedings will not be set aside for inadequacy of amount where the evidence is conflicting and there is nothing to show that the damages allowed, if inadequate at all, are so inadequate as to show prejudice or corruption.</p>

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

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

<p>1. Peincipal and Agent — Agent’s Power to Contract —Implied Powers — When a Question for the Jury. — Whether or not a contract made by an agent for his principal, which was not expressly authorized nor subsequently ratified by the principal is binding on the principal, is dependent upon whether or not it was within the apparent scope of the authority of the agent to make such contract, and where the evidence on this subject is conflicting it is a question of fact to be determined by the jury, under proper instructions from the court.</p> <p>2. Evidence — Declarations of Agent —Admissibility. —Relevant declarations of an agent are, as a rule, admissible against his principal, provided they are within the scope of his authority and made in the course of the negotiation to which they refer, or in the discharge of his duty.</p> <p>3. Evidence —Declarations of Agent — Admissibility. — In an action against a corporation on a contract not authorized by the directors,. the declarations of the agent of the corporation who made the contract, that the directors had approved and ratified it, not made when the contract was entered into, nor in the discharge of any duty, but in casual conversations not involving any business of the agency, are not admissible to prove ratification of the contract by the corporation.</p> <p>4. Coepoeations — Knowledge of a Director — Notice to Corporation. — The information of two out of seven directors of a corporation, not communicated to the board of directors or to the other directors, that an agent of the corporation has entered into a contract on its behalf, which was not authorized, is not notice to the corporation of the existence of the contract.</p> <p>5. Peincipal and Agent — Unauthorised Acts of Agent — Notice. —In the absence of facts or circumstances sufficient to put a reasonably prudent man on enquiry, no duty rests upon a principal to make any effort to discover whether another is doing unauthorized acts in his name, and he has the right to assume, until otherwise advised, that his agent will act within the scope of his authority. Notice is not to be imputed to a principal merely because he had reasonable opportunity to acquire knowledge.</p> <p>6. Damages — Measure—Profits.—The general rule in awarding damages is to give compensation for the pecuniary loss — to make amends or reparation for the injury inflicted. The plaintiff is entitled to recover all such damages as are the natural and proximate results of the wrongful act complained of. Ordinarily, a plaintiff will not be entitled to recover profits or expected gains, for they are generally conjectural and too remote. But if it be shown that the loss of profits or gains was the natural and proximate result of the wrongful act, and their extent is satisfactorily proved, they may be recovered.</p> <p>7. Damages- — Measure—Profits—Case at Bar. — In an action by a contractor against a coal company for refusing to permit him to mine and deliver coal to a tipple, according to the contract, the measure of the plaintiff’s damages is the difference between what he was to receive for delivering the coal to the tipple, as provided by the contract and the costs of doing it, and they are the natural and proximate result of the defendant’s refusal to permit the plaintiff to perform his contract. Whether or not, in the case at bar, the plaintiff satisfactorily established what his profit's would have been if he had been permitted to keep and perform his contract was a question for the jury, under proper instructions from the court.</p>

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

<p>1. Boundaries — Location—Fixed Landmarks — Adjoining Owners- — Case at Bar. — As a general rule, where notorious landmarks, such as corner trees or natural objects, are called, for, they are to be regarded as termini, and a straight line is to be run from one terminus to the other, without respect to course or distance, but there may be other calls which show that the line was not intended to be straight, as where a call is to run with a river or public road from one terminus to the other, the stream or road, if it leads to the other terminus, must be followed, though it may diverge from a direct line between the two points. The same rule would apply to a marked line, if there is enough to show that such line, though not a direct line, was intended as a boundary, provided by following the marked line the other terminus can be reached. The same rule is also to be applied where between the termini mentioned there is a call for the line of another person, although it can only be reached by adding another call to the description given. In the case at bar, there was call for a corner at K with Daniel Blankenship, and thence “with a reverse part of one line of the same” to a spruce pine at L. But Blankenship does not corner with the land at K, but at B, and a straight line from K to L does not touch the survey in the name of Blankenship. If, instead of running' direct from K to L, the line is run from K to B, and from B to L, the line from B to L runs with the Blankenship line to the spruce pine called for at L. Under these, and other circumstances set out in the opinion, it is held that the call for running with the Blankenship line must be regarded as a landmark, and cannot be ignored, and hence should prevail over the call for course and distance in a grant which was based upon a survey made by a surveyor who was not upon the ground.</p>

Decree for the defendants. Complainants appeal. This case was decided January 18, 1912, and is reported in 113 Va. 134, 75 S. E. 757. Subsequently a rehearing was granted, and the opinion now reported was rendered upon the rehearing.

<p>1. Boundaries — Description—Calls for Quantity. — While the call for quantity is the least certain element of description and will not control where the muniments or courses and distances are called for, by which the land conveyed can be identified, yet when no known and established boundaries are named as describing the land, and the deed contains no other description sufficiently certain to define the land intended to be conveyed, the quantity of land mentioned may be used for the purpose of ascertaining the granted premises, and in such a case may be a controlling force.</p> <p>2. Instructions — Evidence to Support.- — It is error to give an instruction when there is no sufficient evidence upon which to base it, as it tends to mislead the jury.</p> <p>3. Evidence — Expert Testimony — Surveyors—Opinions—Conclusions.— While surveyors may be examined as experts upon matters with which they are peculiarly acquainted and which cannot be made known to the jury without such testimony, yet they cannot testify as to conclusions of fact or conclusions of law, as such matters are for the determination of the jury or the court, as the case may be.</p> <p>4. Witnesses — Impeachment—Prior Inconsistent Statement. — A witness examined in a case may be interrogated as to prior statements made by him inconsistent with his testimony given in the case.</p> <p>5. Boundaries — Evidence—Private Surveys. — While a private survey may be admitted as evidence of boundary between those who were parties to it, or who claim under them, it is not admissible as independent evidence against strangers.</p>

<p>1. Telegraph Companies — Failure to Deliver Message — Penalty—Extra Territorial Effect of Statute. — Although it has been the habit of a telegraph company which maintains an office in Bristol, Tenn., but none in Bristol, Va., to deliver messages from its Tennessee office to addresses in Bristol, Va., yet if a message be sent from a point in the State of Virginia to an addressee living in Bristol, Va., and be not promptly delivered, the company is not liable for the penalty prescribed by the Virginia statute for failure to deliver a telegram promptly, as this would be giving an extra territorial effect to the Virginia statute, which cannot be done. Nor is the question affected by the habit of the company of delivering messages from its Tennessee office to addressees on the Virginia side of the city, as no extra territorial force can be imparted to the Virginia statute by agreement of the parties.</p>

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

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

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

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

<p>1. Limitation of Actions — Fraud and Mistake — When Statute Begins to Bun — Law—Equity.—In cases of mutual mistake and fraud, courts of law and courts of equity in this State apply different rules with respect to tbe defense of tbe statute of limitations. At law the statute runs from tbe date of settlement and payment, but in equity, if tbe plaintiff is without fault, tbe statute runs only from tbe discovery of tbe fraud or mistake. In tbe latter case, however, the complainant must have acted in good faith and with reasonable caution and diligence.</p>

<p>1. Pibe Insurance — Completed Contract — Undelivered Policy — Enforcement in Equity — Unpaid Premiums. — Where a contract for the insurance of a building has been made with the agent of an insurance company having authority to issue policies, and the premium has been paid, but before the policy is issued the building is consumed by fire, a court of equity has jurisdiction to enforce the payment of the policy at the suit of the assured against the insurance company. The same is true where the premium has not been paid, but by agreement of the parties was not to be paid until the policy was delivered, which had not been done at the time of the fire.</p> <p>2. Pibe Insurance — Authority of Agent — Credit for Premiums. — An agent of an insurance company authorized to effect insurance and to issue and deliver policies and collect the premiums therefor, has power to give time for the payment of premiums.</p> <p>3. Pibe Insurance — Apportionment of Rislc. — Where there is a total loss on a “store building, warehouse and barn,” which constitute but a single structure, there is in substance but a single risk, and there is no apportionment of the risk upon the property insured.</p> <p>4. Arre at, and Eeeob — Error Corrected on Appeal — Amendments.— The trial court having given judgment for the face value of an insurance policy, upon which the premium had not been paid, and there being no other error in its judgment, this court will amend the judgment by deducting therefrom the amount of the premium agreed to be paid, and, as amended, affirm it.</p>

<p>1. Pleading — Failure to File Declaration — Dismissal—One Month— Computation of Time. — In computing the one month within which a declaration must be filed “after the process is returned executed,” under section 3241 of the Code, the day on which the process is returned must be counted, and if one calendar month, including that day, elapses, without the declaration being filed, it is the mandatory duty of the clerk to dismiss the action. The day on which the process is returned executed is included, and the day on which the declaration is filed is excluded from the computation of the 'one month. Hence, if the process is returned executed March 6th, the declaration cannot be filed April 6th, nor thereafter.</p> <p>2. Pleading — Failure to File Declaration — Dismissal—Reinstatement.-—■ A case dismissed by the clerk for failure to file the declaration within the time prescribed by the statute cannot be reinstated in the absence of sufficient legal reasons therefor. Reasons which flow from causes that could have been readily foreseen and guarded against are not sufficient to warrant the court in reinstating the case upon its docket, especially where to do so would dperive the defendant of a defense that he could otherwise make, for example, the statute of limitations.</p>

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

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

<p>1. Contracts — Construction—Intention of Parties — Case in Judgment. In the construction of written instruments, courts seek to ascertain and give effect to the intention of the parties, and in seeking the intent, regard is to be had to the situation of the parties, the subject matter of the agreement, and the object which the parties intended to accomplish. A construction which would be unreasonable and unequal should be avoided, if it can be done consistently with the tenor of the agreement, and that construction should be favored which best accords with the presumed intention of the parties. So construing the agreement in the case in judgment, it was personal between the parties thereto, by which one engaged the services of another to sell his land for a stipulated compensation.</p> <p>2. Contracts — Personal Services — AssignaMUty.—Where the personal services of another are expressly contracted for, or are necessarily involved in the subject matter of the contract, the contract is founded on personal trust and confidence, and is not assignable until the services have been performed.</p>

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

<p>1. Equity Píeabing — -Mültifariousness—Alternative Relief. — Where the sole object of a bill is to make good the complainant’s title to a tract of land by establishing the validity and binding force of a paper filed with the bill which the complainant prays may be set up as will, but if this cannot be done, that it be adjudged to be a binding contract and specifically enforced, the bill is not multifarious, but simply seeks alternative relief.</p> <p>2. Specific Pekfobmance — Case in Judgment. — The bill, in the case in judgment, states a case for the specific execution of a contract which has been so far performed by the complainants that it would operate a fraud upon their rights to deny to them the relief which they seek, and the statements of the bill are fully sustained by the evidence.</p> <p>3. Witnesses — Competency—Case in Judgment. — A testator made a will Dy which he devised a tract of land to his two daughters, K and D. Afterwards he persuaded the husband of K to raise $1,200 and pay it over to D, promising that if he would do so, he, the testator, would devise to K and her husband the share in his real estate which he had given by his will to D. The husband raised the money and paid it to D, the testator writing the receipt. No change was made by the testator in his will, and the will itself was lost or destroyed and never probated. In a suit by K and her husband against the heirs of the testator to set up the lost paper as a will or else to enforce it as a contract, D is a competent witness to testify on behalf of K and her husband.</p> <p>4. Specific Pekfobmance — Promise to Malee a Will. — While an agreement to dispose of property by will cannot be specifically enforced, either before or after the death of the party, courts of equity can do what is the equivalent of specific performance by compelling those upon whom the legal title has descended to convey and deliver the property in accordance with the terms of the agreement, upon the ground that it is charged with a trust in the hands of the heir at law, devisee, personal representative or purchaser, with notice of the agreement, as the case nay be.</p>

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

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

<p>1. Wills — Probate Before Clerk — Bill to Impeach — Ex Parte Probate in Court. — An order of a clerk of a circuit court admitting a will to probate ex parte, from which no appeal is taken in the manner prescribed by section 2639-a of the Code (1904), is final and ■ conclusive, and cannot be collaterally attacked. No bill to impeach the will lies, under section 2544 of the Code (1904). The latter section applies only to ex parte probates in court, under that section. A clear distinction is drawn in the statutes between an ex parte probate before a clerk, which is provided for by section 2639-a, supra, and a probate before a court which is provided for by section 2544, supra.</p> <p>2. Wills — Probate Before Clerk — Collateral Attack — Appeal—Inconveniences. — A clerk of a circuit court may admit a will to probate or reject it, and, in either event his sentence is a judgment in rem, whose validity can be drawn in question only by appeal in the manner and within the time prescribed by section 2639-a of the Code (1904). On such appeal, the court takes jurisdiction and hears and determines “the matter as though it had been presented to said court in the first instance.” All appropriate remedies provided by law with respect to the probate of wills by courts may then be called into activity, and all rights and reservations which pertain to such case are preserved. Whatever inconveniences may arise from this mode of procedure are proper subjects of consideration for the legislature ; the language of the statute being plain, the courts must give effect to it.</p> <p>3. Wills — Probate—Judgment in Rem — Collateral Attack. — The, sentence of a court of probate having jurisdiction of the subject is a judgment in rem, and, until reversed, binds not only the immediate parties to the proceeding, but all other persons (though infants at the time) and all courts.</p> <p>4. Judgments — Collateral Attack — Presumption.—The judgment of a court of general jurisdiction, acting within the scope of its powers, is presumed to be right, and such judgment is not subject to collateral impeachment unless a want of jurisdiction appears from the face of the proceedings.</p>

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

<p>1. Injunctions- — Interference with Legislative Proceedings Amending the Constitution. — The mode prescribed for amending ^he Constitution of this State is by the joint action of two successive legislatures, and of the people, manifested by an election held for that purpose. Until both legislatures have acted and the people have voted on the subject, the proposed amendment is simply in process of adoption. Courts are not authorized to interfere with the process of legislation. After legislation has been completed and its validity is questioned before any court in a proper proceeding, it is the duty of the court to pass upon its constitutionality wherever the rights of the parties litigant depend upon the solution of that question, but it has no right to interfere while a proposed amendment of the Constitution is simply in process of adoption.</p> <p>2. Elections- — Injunction—Case in Judgment. — Courts of equity will not, with few exceptions, injoin the holding of an election or interfere, by its process of injunction, with the holding of an election. The case in judgment is not within any exception to the general rule. The election sought to be in joined is to be held under the general election laws of the State, with referenc to a political question or matter of public policy, with which the judiciary, and particularly a court of equity, cannot interfere.</p>

<p>1. Limitation of Actions — Receivers—Settled Account — Surcharging. In the absence of fraud or mutual mistake, no suit to surcharge and falsify the account of a receiver, or to hold him or his sureties liable for any balance stated in his account to be in his hands, can be brought, except within ten years after the account has been confirmed, where it appears that he has , settled his account, as required by the provisions of chapter 121 of the Code. The case is within the exception of section 2921 of the Code.</p>

<p>1. Railroads — Yards—Negligence of Company. — The mere fact that an employee is killed by a train in a railroad yard does not excuse a railroad company from liability, if it or its servants were guilty of negligence proximately causing the death, and the employee was not guilty of contributory negligence. In the ease at bar, the evidence shows that the defendant was guilty of culpable negligence, for which no excuse has been, or can be, offered, and does not show contributory negligence on the part of the plaintiff’s intestate.</p> <p>2. Negligence — Contributory Negligence — Burden of Proof — Demurrer to Evidence. — The burden of showing contributory negligence on the part of the plaintiff is upon the defendant, and if, upon a demurrer to the evidence by the defendant, the jury might, with propriety, have found that the plaintiff was without fault, it is the duty of the court to so find.</p>

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

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

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

<p>1. Pleading — Declm-ation—Nuisance—Damages—Inconsistent Elements of Damages. — A declaration which alleges that the defendant has erected a permanent nuisance on its lot adjacent to the residence of the plaintiff, and that in consequence thereof the plaintiff is damaged in the use and possession of her property, and that she is also damaged in the permanent depreciation of the market value of her property, does not allege inconsistent elements of damage, and the declaration is not, for that reason, demurrable.</p> <p>2. Nuisance — Residence—Damages—Enhanced Market Value. — The owner of a residence is entitled to the comfortable enjoyment of his home, and if his comfort, convenience and enjoyment of it is substantially impaired by the erection of a permanent nuisance near it, he is entitled to recover damages therefor, although the nuisance may have enhanced the market value of his property. The owner of a residence cannot be improved out of his home against his will, by the wrongful act of another.</p>

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

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

<p>Error to a judgment of the Circuit Court of Elizabeth City county on a motion to correct an erroneous assessment of taxes. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Appeal from a decree of the Circuit Court of the city of Norfolk. Decree for the defendants. The Commonwealth appeals.</p>

<p>1. Stbeet Railways — Paving Streets — Material to Be Used — “Good Order.” — Under a franchise to a street railway company, whereby it is required at all times to keep that portion of a city street between its rails and within two feet of the outside of said rails “in good order and repair,” the city has the right to require the company to lay the same kind of pavement within the space to be paved by it as the city is laying on the same street outside of the space required to be paved by the company. The duty is a continuing one, and the franchise is accepted on that condition, and where the city has, for sufficient reasons, decided to have its streets paved with a particular kind of material, the railway company, in order to keep its part of the street ‘dn good order” must have it paved with like material. “In good repair” does not necessarily mean in good order. The street may be “in good repair” and yet not “in good order.” To be “in good order” the paving must be of the same kind as that used by the city.</p> <p>2. Appeal and Ebeob — Case Heard Ity Trial Judge — Reversed.—Where a case is heard by the trial court, without the intervention of a jury, this court, on reversing the judgment of the trial court, will enter up judgment for the adverse party, as that is the judgment the trial court ought to have entered.</p>

<p>1. Feaudulent Conveyances — Husband and Wife — Presumption.— Transactions between husband and wife must be closely scrutinized to see that they are fair and honest, and not merely contrivances resorted to for the purpose of placing the husband’s property beyond the reach of his creditors, and, in a contest between the creditors of a husband and his wife, the burden of proof is upon her to show by clear and satisfactory evidence the bona fides of the transaction. In all such cases the presumptions are in favor of the creditors and not in favor of the title of the wife.</p> <p>2. Estoppel — Release—Waiver.—A creditor who has taken a deed of trust on a husband’s land to secure the payment of a debt is not estopped from bringing suit to set aside, as voluntary, a conveyance of another tract by the husband to his wife by the fact that he signed a paper, stating that his deed does not have “any reference or claim on the farm” owned by the wife in her own name. This is clearly so where it appears that the creditor refused to sign another paper which was prepared and tendered to him for his signature by which he waived the right to assert any claim against the farm conveyed by the husband to his wife, and that the paper first mentioned was then signed by him.</p> <p>3. Witnesses — Competency—Husband and Wife — Voluntary Conveyance — Cross Bill by Wife. — In a suit by a creditor of the husband to set aside as voluntary a deed made by him to his wife, the husband and wife are not rendered competent to testify by the fact that the wife prays that her answer to the bill may be treated as a cross bill, where the matter set up in the cross bill is equally available in the answer, as such, to the original bill. A cross bill which seeks no discovery, and sets up no defense, which might not as well be made by answer, will not be allowed.</p> <p>4. Equity Pleading — Rehearing—After Discovered Evidence. — A petition to rehear a chancery cause on account of after-discovered evidence is properly refused where the new evidence is merely cumulative and could not on another hearing produce a different result, and no sufficient reason is shown for not having introduced it befóre the hearing.</p>

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

<p>1. Equity Pleading — Errors in Vinal Decree — Sow Corrected. — If, in a suit to ascertain the debts of a decedent and subject his real and personal estate to the payment thereof, a final decree has been entered declaring that the assets of the decedent have been exhausted in the payment of his debts and that there is nothing in the hands of the court or due from the purchasers of land sold in the cause to which the complainants are entitled, the complainants have the right, if the decree is erroneous, and there is really money due from purchasers, either to appeal from the decree, or to have the cause reinstated on the docket and reviewed within the time prescribed by law.</p> <p>2. Equity Pleading — Bill to Impeach a Vinal Decree — Laches—Stale Demands.- — After an unexplained delay of more than twenty-four years from the entry of a final decree in a creditors’ suit declaring that the object of the suit has been accomplished, during which time the purchasers of land sold in the suit have died and the lands have been devised and sold, and creditors have departed this life, a court of equity will not enteratin a bill filed by heirs of the debtor charging that some of the purchasers of land sold in the creditor’s suit had not paid all the purchase price of said land and seeking to subject the land to such payment. The complainants are barred by their laches.</p> <p>3. Equity Pleading — Stale Demands — Allegations of Bill — Laches— Sow Defense Made. — A party who seeks the aid of a court of equity, after long delay in the assertion of a claim, should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and the means, if any, used by the defendant to fraudulently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his billotherwise the chancellor may justly refuse to consider his case, on his own showing, without enquiring whether there is a demurrer, or formal plea of the statute of limitations contained in the answer. Laches is a defense peculiar to courts of equity, founded on the lapse of time and the staleness of the claim where no statute of limitations governs, and courts of equity act upon their own inherent doctrine of discouraging antiquated demands. In the case in judgment the chancellor might, of his own motion, if there had been no demurrer, have refused to consider complainants’ cause, and have dismissed their bill. Certainly there was no error in sustaining a demurrer to the bill.</p>

<p>1. Buis ox Exception — Pleas Stricken Out — Appeal and Error— Record. — A plea that is stricken out by the court is as though it had never been tendered, unless it is made a part of the record by a bill of exception, or by an express order bf the court, and if it is not a part of the record, then the action of the court in striking it out is not a subject of review in the appellate court, as nothing outside of the record can be looked to or considered. An entry on the order book that the defendant excepted to the action of the court in striking out his pleas cannot perform the function of a bill of exception, and does not make the pleas a part of the record. Such entry amounts to nothing more than saving the point.</p>

<p>1. Appeal and Ebeoe — Former Appeal — Res Judicata — Case in Judgment. — All that was decided on the former appeal in this case was that the affairs,of a partnership were in such a state of confusion that no decree could be safely made adjusting the account between the partners and hence that the bill filed by the surviving partner against the representative of the deceased partner praying for a settlement of the partnership accounts should be dismissed. The opinion in no way dealt with debts against the partnership which had been proved and audited in one of the creditor’s suits heard with the partnership suit. One of these partnership debts having been paid by the surviving partner since that time, he is entitled to go against the estate of the deceased partner for one-half of the amount so paid, and is not precluded therefrom by the former order of this court.</p>

<p>1. Boundabies — Location on the (Ground — Question for Jury — Case at Bar.- — -The owner of land sold off a part thereof and put the purchaser in possession. Afterwards X, a surveyor employed by the vendor, surveyed the dividing line between the parties and marked the same by stakes and blazed trees. Prom this survey and references to surveys formerly made by others, X drew a plat of the vendor’s land and gave it to her. The vendor thereafter conveyed to the heir of the purchaser, who had died, the land so sold, and the deed provides that the eastern boundary (the dividing line in dispute) is to be fixed as surveyed by X. In an action by the vendor against one claiming under the vendee, the question at issue was the true location of the lines surveyed by X. Upon this question the evidence was conflicting.</p> <p>Meld: The lines marked on the ground, and not the plat delivered to the vendor, constitute the actual survey, and it was for the jury to say, from the evidence, where such lines were located.</p> <p>2. Botjndabies — Location—Question for Jury- — Construction of Deeds. The construction of a deed is for the court, but the location of a disputed boundary line is a question of fact for the jury, under proper instructions from the court.</p>

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

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

<p>1. Master and Servant — Injury to Servant — Disobedience to Rules— Habitual Disregard of Rules — Contributory Negligence. — A servant will not be absolved from the imputation of contributory negligence for violating a rule of the master made for the protection of himself and others, because that rule is habitually disregarded, unless it appears that it was done with the knowledge of the master, or he had so neglected to enforce it as that his conduct amounted to a suspension of the rule. As the master is bound at his peril to make the rules, the servant should be equally bound, at his peril, to obey them.</p> <p>2. Master and Servant — Injury to Servant — Habitual Disregard of Rules — Burden of Proof — Case at Bar — Contributory Negligence. A servant who seeks to recover from the master for an injury sustained in consequence of his disobedience to a well-known and established rule of the master, but contends that the rule had been so habitually disregarded, with the master’s acquiescence, as to amount to its suspension, has the burden of proof on such contention. The evidence in the case at bar fails to establish that contention. Moreover, the plaintiff, an experienced car inspector, with full knowledge of the rules made for his protection, placed himself in a position of great peril, without the slightest warning or notice to anyone of his presence, when there was no emergency demanding it, and his injury was almost the necessary consequence of his folly. The most ordinary prudence on his part would have avoided the injury suffered by him, and hence he cannot recover.</p>

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

<p>1. Taxation — Tax on Mortgage — Supplemental Mortgage — Same Issue of Bonds — -Additional Tax. — Where .a deed of trust to secure an issue of bonds therein mentioned conveys to the trustee not only all the real and personal property that the grantor then owns, but all that it may thereafter construct or acquire, and contains a covenant to thereafter convey the latter, upon request, and subsequently the grantor, upon request, executes to the same trustees a supplemental deed of trust conveying such after-acquired property, subject to the terms and provisions of the original deed of trust, and also of the supplemental deed of trust, the tax required for recording the supplemental deed is the same as that required for recording the first deed, although the tax required for recording the first deed was paid, and no bonds were authorized to be issued or secured by the supplemental deed, other than, or in addition to, the bonds secured by the first deed. The statute declares that “on deeds of trust or mortgages the tax shall be upon the amount of bonds or other obligations secured thereby” and the supplemental deed of trust comes under this description. The two deeds are not merely parts of the same instrument, but are wholly separate and distinct. The first is complete in itself, and while the second is supplemental to the first and conveys only the legal title to property, the beneficial interest in which passed by the first, it is none the less a mortgage, or conveyance of property upon condition, as security for the payment of a debt or performance of a duty and hence subject to the tax on such instruments. It is immaterial that the great bulls of the property was conveyed by the first deed, as the tax is regulated by the amount of the bonds or other obligations secured thereby.</p> <p>2. Taxation — Record of Mortgage — Privilege-Power of Legislature— Oase at Bar — Additional Mortgage — Double Taxation. — The tax on the recordation of a deed is not a tax upon property, but upon a civil privilege of which anyone may avail himself or not, as he pleases, and the power of the legislature to impose it and fix the amount thereof is 'well nigh unlimited, so long as the classification is reasonable. Tbe constitutional limitation upon tbe power of the legislature to impose such tax is that it shall be uniform upon the subjects of such class. In the case at bar each mortgage upon which the tax is demanded is in itself complete, and the second is not to be treated as merely supplemental to the first; for the second, in conveying the legal title to property as to which the trustee in the first mortgage had only on equitable title, has strengthened and increased the security of the bondholders and accomplished the end for which it was designed, which was the better to secure the holders of the bonds referred to in the first mortgage, and was in addition to the terms and conditions of the first and refunding mortgage, and not in derogation thereof, and it was proper to charge the same tax on the second mortgage as on the first. This is not double taxation.</p> <p>3. Statutes — Construction—Spirit of the Law. — In construing statutes it is the duty of the court to give to the words used their usual and ordinary signification, and having thus ascertained the legislative intent to give effect to it, unless it transcends the legislative power as limited by the Constitution. The letter of the law is not to be wrested from its plain meaning in order to conform to what is conceived to be its spirit.</p>

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

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

<p>1. Stbeet Railways — Negligence—Concurrent Negligence of Plaintiff.— Where, as in the case at bar, the evidence shows that a collision between a street car and, a traveler driving along a city street was occasioned by the concurrent negligence of the motorman of the car and the traveler — neither keeping a proper lookout for the other — which continued down to the moment of the impact, there can be no recovery by the traveler against the street car company.</p>

<p>Error to a judgment of the Circuit Court of Isle of Wight county in an action of assumpsit, accompanied by an attachment. Judgment for the defendant in the attachment. Plaintiff assigns error.</p>

<p>1. Eminent Domain — State Institutions — •What May 5e Condemned— Dwelling Souses — Code (1904), Chapter 46-B. — The State Female Normal School at Farmville is a State institution, and under the express terms of section 1105-f, clause 25 of chapter 46-b of the Code (1904), specific power is conferred upon it to condemn buildings, which include dwelling houses, for its purposes. The power thus expressly conferred is not limited by clause 3 of said section, which applies only to ordinary eorpo- ■ rations chartered by the State, and not to those mentioned in ■ clause 25, which are denominated State institutions.</p> <p>2. Eminent Domain — State Institutions — Procedure—Code (1904), Chapter 46-B, Section 1105-f, Clause 25.- — The limitation in clause 25 of section 1105-f, chapter 46-b, of the Code (1904), conferring the power of condemnation upon certain State institutions, declaring that “the proceedings in all such cases shall be according to the provisions of this act so far as they can be applied to the same” has reference to the mode of procedure only, and not to what may be condemned.</p> <p>3. Eminent Domain — Damages—Marlcet Value — necessities of Condenrnor. — In ascertaining the value of property proposed to be taken for a public use, its availability for the use of the condemnor is one of the elements proper to be considered by the commissioners along with all the other uses to which it is adapted, but the object is not to ascertain the value to the condemnor for its purposes, but to ascertain the fair market value of the property, so that just compensation may be made and a full and perfect equivalent given for the property taken, and it is not error to refuse to instruct the commissioners to consider the value of the property to the condemnor for its purposes as such an instruction unduly directs attention to the necessities of the condemnor.</p>

<p>1. New Tbials — Verdict Contrary to Evidence — Discretion of Trial Court. — While greater latitude is allowed the trial court in granting than in refusing a new trial, on the ground that the verdict is contrary to the evidence, still the verdict of a jury is entitled to great respect, and it is error to set it aside when sustained by the evidence, as in the case at bar.</p> <p>2. Appeal and Eeboe — Ttvo Trials Below — Proceedings on First Trials— Verdict Sustained T>y Evidence. — Where there have been two trials in the court below and this court is considering the proceedings on the first trial, it is unnecessary to decide whether the evidence given on the first trial shall be considered by this court as on a demurrer to the evidence or otherwise when, in any view of the evidence, it sustains the verdict. In the case at bar it is also unnecessary to consider the question whether or not there is any conflict in the decisions of this court as to the manner in which the evidence on the first trial is to be considered by this court under the provisions of section 3484 of the Code.</p>

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

<p>Error to á judgment of the Circuit Court of Culpeper county in an action of debt. To a judgment for a small part of the amount claimed, the plaintiff assigns error.</p>

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

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

<p>1. Dowee — Beneficial Interest of Husband in Land — Surplus.—A husband who buys land and pays only a part of the purchase price is beneficially interested only in the surplus of the proceeds of the sale of the land after the prior lien thereon has been paid, and his widow is dowable only in this surplus.</p> <p>2. Trustees — Improvements—Application of Rents, Wtc. — Trustees invested with general powers of control and management of real estate have the right to apply rents and the proceeds of the sale of ties, timber, or bark taken from the land to the payment for improvement put upon the land.</p> <p>3. Payments — Application.—If a debtor making payments does not direct their application, or there is no agreement between the parties in interest as to how they are to be applied, the creditor receiving them may make the application, if neither party makes the application, then a court of equity will apply the credits to the creditor’s most precarious debt.</p> <p>4. Appeal and Ebroe — Record—Statement Annexed to Petition for Appeal. — A statement of costs in the trial court attached to a petition for an appeal to this court is no part ot the record, and hence cannot be considered by this court.</p> <p>5. Appeal and Eeboe — Decree to Sell Land — Failure to Give Day to Redeem — When Harmless. — A decree for the sale of land which fails to give the defendant a day in which to redeem, even where he is entitled to such day, will not be reversed for that reason, where it does not appear that the question was raised in the court below and the record does not show that he was in any way prejudiced thereby, and the fair inference from the record is that he was not, and could not have been, thereby prejudiced or injured.</p>

<p>Appeal from a decree of the Circuit Court of Mecklenburg county.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond. From a decree refusing to set up a lost will and giving the estate to the heir, the legatee appeals.</p>

<p>1. Equity Jurisdiction — Lost Bonds. — Courts of equity have jurisdiction to enforce payment of a lost bond, and although courts of law are given jurisdiction over such bonds by section 3377-a of the Code, it is well settled that courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to courts of law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words.</p> <p>2. Principad and Surety — Penal Bond — Liability of Surety. — Where principal and surety enter into a penal bond with condition for the performance by the principal of the terms of a collateral agreement made by him and therein referred to, there may be a recovery on the bond against the principal and surety, although the covenants contained in the collateral agreement were made by the principal and another jointly, and each was responsible for the default of the other, and it was stipulated in the bond that the surety should not be liable for the default of such other.</p> <p>3. Equity Jurisdiction — Suit on Penal Bond — Code, Section 3494-— The claim that a bond sued on does not constitute a contract, but simply provides for a penalty, is unavailing to oust a court of equity of jurisdiction in view of the statute providing that where the proceeding is upon a penal bond, with condition for the payment of money, the jurisdiction shall be determined as if the undertaking to pay such money had been without a penalty. —Code, section 3494.</p>

<p>1. Depositions — Notice—Service try Mail — Sufficiency.—No particular mode of service of a notice to take depositions is prescribed by statute in this State, but section 3207 of the Code prescribes the method of service of a notice where no particular mode of service is prescribed, and unless this method of service has been waived, a service upon a party or his counsel by sending the notice through the mail is not sufficient, even though received.</p> <p>2. Depositions — Notice—Sufficiency—Waiver.—Where depositions taken in a cause were not filed with the clerk, and it was not made known to the defendants, or their counsel, that they had been taken pursuant to the notice sent by mail until the cause has been called for trial and the jury selected and sworn, it is not too late then to object to the sufficiency of the notice under which they were taken.</p> <p>3. Evidence — Burden of Proof — Case at Bar — Harmless Error. — In an action to recover the price of goods which the defendant refused to acecpt on the ground that they were in a damaged condition when received, it is not error to instruct the jury that the burden is on the plaintiff to show that the goods in question were delivered in an undamaged condition; but, in the case at bar, even if the court erred in its instruction as to the burden of proof, it was harmless error, since the defendant proved that the goods were damaged when received, and the evidence leaves no doubt as to that fact; there being no other testimony in the case except that of the defendant and his witnesses.</p> <p>4. Instructions — Ignoring Issues. — It is not error to refuse an instruction which ignores the defense of a breach of warranty set up in defendant’s special plea in the nature of a plea of set-off, upon which issue was joined.</p>

<p>1. Banks and Banking — Deposits—Debtor and Creditor. — Where there is a general deposit of money in a bank, the title to and beneficial ownership of the money is vested in the bank, and the relation between it and the depositor is that of debtor and creditor. So likewise where a check drawn on a particular bank is presented to that bank for general deposit and the bank gives the depositor credit therefor, the relation between the bank and the depositor is that of debtor and creditor, since the giving of credit under such circumstances is practically and legally the same as if the bank had paid the money to the depositor and had received it again on deposit.</p> <p>2. Banks and Banking — Deposits — For Collection — For Credit.— Where a check on one bank is deposited in another for collection, the ownership of the check is not transferred to the receiving bank, but it is the agent of the depositor until collection is made, and not until then does it become the debtor of the depositor. But if the check is deposited in exchange for credit given the depositor, then the transaction is in effect a sale of the check to the bank, and it becomes the beneficial owner of the check and the debtor of the depositor.</p> <p>8. Banks and Banking — Deposit of Checks — Intention of Parties- — • Bailment. — Where a customer deposited in a bank a check on an out of town bank, and the bank credited his account with the amount of the check, and the deposit slip delivered to the customer contained the statement that items on out of town banks are credited subject to payment, and there was neither general custom, course of dealing, nor special agreement from which to gather the intention of the depositor and the bank when the check was deposited, and the sum credited was never drawn against by the depositor and he had no authority to draw against it until collected, unless crediting it as cash (the bank reserving the right to charge it back if not paid), gave him the right to cheek at once against it, the deposit was a mere bailment, and the title to the check did not pass to the bank when the deposit was made.</p> <p>4. Banks and Banking — Deposits—Crediting Checks- — Holder for Value. — Under the American doctrine, the mere giving of credit to a depositor's account of a cheek does not constitute the bank a holder for value, but, in order to have that effect, the credit must be drawn upon. •</p>

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

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

<p>Error to a judgment of the Law and Equity Court of the city of Bichmond in a proceeding by motion under section 3211 of the Code. Judgment for the plaintiff. Defendant assigns error.</p>

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

<p>1. Attachments — Affidavit—Stating Several Grounds Disjunctively.— When separate and distinct grounds of attachment are stated and all are relied on, they must be stated conjunctively. They i cannot be stated in the alternative: An affidavit which states that either one or the other of three separate and distinct : grounds of attachment exist does not state the existence of any one of them, and hence is not a sufficient basis for an attachment.</p> <p>2. Attachments — Abatement—At What Stage Allowed — Code, Section 2981. — -When the affidavit for an attachment is inoperative and void, the court may, under the authority of section 2981 of the ■ Code, abate the attachment issued thereon at any time before a final judgment has been entered disposing' of the property attached, and the court is not precluded from abating the attachment because at a former stage of the proceedings a motion to abate was overruled, if upon further consideration it is satisfied that the writ was issued upon an insufficient affidavit.</p> <p>3. Attachments — Affidavits—Amendments.—The affidavit for an attachment required by statute can be made at any time before another obtains a right. But if, when the affidavit is made, it is fatally defective, it cannot be amended. It is void, and the plaintiff must begin de novo with an affidavit that complies sufficiently with the statute to sustain the attachment.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg in a proceeding by way of motion for a judgment for money. Judgment for the plaintiff. Defendants assign error.</p>

<p>1. Equity — Final Decree — Reopening—Unadministered Assets. — A decree which directed a receiver to invest a fund under the control of the court for the benefit of infants during their minority, and declared that upon the termination of the homestead period during which infants were to enjoy it, the principal was to be applied to certain designated judgments, and removed the case from the docket, does not operate automatically to apply the fund to the payment of said judgments, so as to deprive a court of equity of the power to administer the fund when the judgment creditors cannot be found, and no one is asserting any claim to the fund except the widow and children of the man whose estate produced the fund.</p> <p>2. Equity — Original Bill in Nature of Bill of Review — Base Improvidently Stricken from Docket. — Where a final decree has been imiirovidently entered in a suit removing it from the docket before the rights of the parties with respect to a fund on deposit in bank had been adjusted and the money disposed of, and there is no claimant of the fund other than the widow and children of a decedent, and the facts are such that they are indisputably entitled to it, but no one is authorized to withdraw the fund from the bank, and the time for filing a bill of review has passed, the proper remedy is for the widow and children to file an original bill in the nature of a bill of review to collect the deposit and pay it to the parties entitled according to their respective rights as an unadministered asset of the decedent’s estate.</p>

<p>1. Banks and Banking — Drafts—Deposits—Debtor and Creditor.— The collection of a draft by a bank for a customer in the ordinary course of business and placed to the customer’s credit amounts to a general deposit by the latter, and creates the relation of debtor and creditor between them. In such case, the ' customer or depositor has the right to demand of the bank an equivalent amount of money, but not the specific coins or other currency deposited.</p> <p>2. Banks and Banking — Insolvency—Receiving Deposits — Trustee for Depositor. — When a bank, with knowledge of its insolvency, receives a deposit it perpetrates a fraud on the customer, and is held to be a constructive trustee of the deposit, and the depositor may recover of the receiver the deposit, if it can be identified, or its equivalent, if it cannot be identified, when the customer’s money has been mingled with the bank’s funds, which, to an amount equal to the deposit, has gone into the hands of the receiver.</p> <p>3. Banks and Banking — Insolvency—Knowledge of Cashier — Notice to Banlc — Receiving Deposits. — Where an innocent third person has made a deposit in a bank, and throughout the transaction the cashier of the bank has acted for, and as the sole representative of, the bank, and in the line and within the scope of the powers and duties of his office, with respect to the matter in hand, the knowledge of the cashier of the insolvency of the bank (though brought about by the antecedent misconduct of the cashier) is the bank’s knowledge. In other words, the insolvency of the bank was a condition within the knowledge of its executive officer, and it matters not, so far as the rights of innocent third persons dealing with the bank through him are concerned, how the knowledge of that condition was first acquired.</p>

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

<p>1. Statutes — Construction—Legitimate Intent — How Ascertained. — In construing a statute it is of paramount importance to ascertain the intention of the legislature. That intention may be discovered from different signs. As a primary rule, it is to be collected from the words.. When the words are not explicit, it may be gathered from the occasion and necessity for the statute from a comparison of its several parts and of other acts in pari materia, and sometimes from extraneous circumstances which may throw light upon the subject. '</p> <p>2. Statutes — Amendment — Neto Provision — (Construction—Changes.— When the legislature amends a statute by adding to it a new provision, it must be presumed that the legislature acted with full knowledge of and in reference to the existing law upon the same subject, and the construction placed upon it by the courts, and intended by the added provision to make some change in the existing law.</p> <p>3. Statutes — Amendment—Construction—Effect* Given to Whole.- — In construing an amendment of a statute, courts must gather the legislative intent not from a part, but from all the words used, and are only justified in rejecting any part when it has been found impossible to give effect to all the language used and reach a rational conclusion.</p> <p>4. Police Justices — Jurisdiction—Code, Section 4106 as Amended— Violation of City Ordinances — Claim of Title to Land. — Applying the foregoing rules of construction to the amendment made by the Acts of 1910 to section 4106 of the Code, whereby police justices are given “exclusive original jurisdiction for the trial of all offenses of whatever nature against the ordinances of the respective cities for which they shall be appointed,” police justices have jurisdiction of violations of city ordinances, although they involve the validity of a tona fide claim of title to real estate — a jurisdiction not previously possessed by them or by any court of record. The word “whatever” is comprehensive and was intended to embrace such offenses.</p> <p>5. Police Justices — Jurisdiction—General Language of Statute. — A justice of the peace (and a police justice), who is acting under a statute, can only exercise such jurisdiction as is expressly conferred on him. But jurisdiction of offenses is “expressly conferred” by the use of general language so comprehensive and clear as to manifestly show that it was the intention of' the legislature to confer jurisdiction over all such offenses, regardless of their nature or character. It is not necessary to set out at length every such offense, or every class of such offenses.</p>

<p>1. Eminent Domain — Damages—Cost of Removal of Personal Property. — Under the Constitution of 1902, which requires compensation to be made for property taken or damaged for a public use, and under the statute passed in pursuance thereof requiring the commissioners to ascertain what will be a just compensation for the land or “other property” proposed to be condemned, it is proper to instruct the commissioners to consider the expense of moving a stock of lumber stored by a tenant upon the land taken and also the expense of removing a fence upon said land. The words “other property” embrace personal property.</p> <p>2. New Trial — After-Discovered Evidence. — Evidence discovered before judgment is entered in a condemnation proceeding is not such after-discovered evidence as will entitle a party to a new trial, or a reassessment of damages.</p> <p>3. Eminent Domain — Damages-^Inadequacy—Winding of Commissioners — Weight.—The finding of capable and upright commissioners in condemnation proceedings, who have viewed the land and heard all of the testimony of the witnesses, will not be set aside on the ground of the inadequacy of the damages allowed except in a very clear case. It must appear that they proceeded upon erroneous principles, or were influenced by passion or prejudice.</p>

<p>1. Res Judicata — Former Adjudication — Husband and Wife — Settlement. — An insolvent husband settled property upon his wife- in consideration of her relinquishment of her contingent right of dower in valuable real estate which he conveyed to a trustee to secure his creditors, his wife uniting. The two deeds were executed and acknowledged at the same time, and the deed of settlement recited the agreement between the husband and wife as a part of the consideration thereof. A creditor’s suit was brought to administer the trust declared for the benefit of the creditors, and in the course of its progress was referred to a master to inquire and report what were the rights of the wife under the deed of settlement in lieu of her dower, which reference included the rights of the wife under the settlement to a debt of $4,000 — claimed by her of her husband. The master found, amongst other things, the $4,000 as a debt due to the wife. No exception was filed to this finding, and it was confirmed by the court.</p> <p>Held: As to creditors who were parties to the suit, participated in the litigation and accepted their due share of the dividends therein declared, the findings of the master as to the $4,000 is res judicata and cannot be called in question in another suit.</p> <p>2. Husband and Wife — Post Nuptial Settlement — Dower—Consideration. — When a wife relinquishes her contingent right of dower in her husband’s lands and he makes a settlement upon her reciting that it is in consideration of said relinquishment and also upon other considerations set forth in the deed, both deeds being executed and acknowledged at the same time, they must be regarded as parts of oue transaction and construed together, and the relinquishment will be looked upon as the consideration which produced the settlement.</p> <p>3. Husband and Wife — Post Nuptial Settlement — Valuable Consideration — Excessive—Burden of Proof. — In a suit by a creditor of the husband to set aside a post nuptial settlement made upon his wife, which is shown to have been founded upon a valuable consideration, the burden is upon the complainant to show that the settlement was excessive — so excessive as to raise a presumption of fraud.</p> <p>4. Equity — Order of Reference — When Refused. — An order of reference is not to be made to enable a plaintiff to make out his case. It should not be made for the purpose of furnishing evidence in support of the allegation of the bill, nor until he has the right to demand it.</p> <p>o. Ejraudulent Conveyances — Attach—Estoppel—Husband and Wife. A court of equity will not entertain a bill by a creditor to set aside a settlement on the wife as excessive where it appears that such creditor, with knowledge or means of knowledge, of the facts and circumstances attending the transaction, went into a suit to sell the lands of the husband free from the wife’s contingent right of dower and received his just share of the proceeds. His conduct has made it impossible to place the wife in statu quo, and he will be held to his election.</p>

<p>1. Habeas Cobpus — Sufficiency of Writ — Mow Tested. — The accepted mode of determining the sufficiency of a writ of habeas corpus is a motion to quash the writ, rather than a demurrer.</p> <p>2. Constitutional Law — Applicable to Limited Territory or Class.— The fact that a law applies only to certain territorial districts does not render it unconstitutional, provided it applies to all districts and all persons who are similarly situated, and to all parts of the State where like conditions exist. Laws may be made to apply to a class only, and that class may be, in point of fact, a small one, provided the classification be reasonable and not arbitrary, and the law be made to apply to all of the persons belonging to the class without distinction. The number of inhabitants of a county is a basis for a valid classification. The needs of a thickly settled community, especially where that community lies adjacent to a large city, are quite different from those existing in a sparsely settled neighborhood.</p> <p>3. Constitutional Law — Presumption of Validity — Poiver of Legislature. — Every presumption is made in favor of the constitutionality of an act of the legislature. A reasonable doubt as to its constitutionality must be solved in favor of the validity of the law. Courts have nothing to do with the wisdom of legislation, as the legislature has plenary power, except so far as restrained by the Constitution of the State, or of the United States, and it is only where the statute is plainly repugnant to the Constitution that the courts can declare it null and void.</p> <p>4. Constitutional Law — Statutes—Repeals by Implication. — Repeals by implication are not abolished by the Constitution. While such repeals are not favored, yet if there be an irreconcilable conflict between legislative acts, the most recent will prevail.</p> <p>5. Constitutional Law — Courts—■Trial Justices — Justice of Peace.— The act of 1912, providing for the appointment of trial justices in certain counties and conferring upon them jurisdiction similar to that exercised by police justices in cities, is not in contravention of section 87 of the Constitution declaring that “the judiciary department shall consist of a Supreme Court of Appeals, circuit courts, city courts, or such other courts as are hereinafter authorized.” Every provision of the Constitution must be looked to, and section 108 of the Constitution declaring that “The General Assembly shall provide for the appointment or election, and for the jurisdiction, of such justices of the peace as the public interest may require” is sufficiently broad to comprehend the act providing for the appointment of trial justices.</p> <p>•6. Officers — Title to Office — Habeas Corpus. — The proceeding by habeas corpus is a proper method, under the practice in this State, to test the title to office, where the statute under which the proceedings are inaugurated is claimed to be unconstitutional.</p> <p>7. Courts — Jurisdiction.—The question of jurisdiction of the case is involved in every case presented to a court, whether expressly raised or not.</p>

<p>T. Railroads — Injury to Traveler — Contributory Negligence. — When those in charge of a railroad train see a traveler in dangerous proximity to the track, and in a situation where he is unable to save himself from being carried upon the track in front of the approaching train, and that unless the train is stopped he will most probably be Carried upon the track, or so near thereto as to be injured or killed, it is their duty to stop the train when it may be safely done, and for an injury to the traveler resulting from their failure so to do the company is liable.</p> <p>:2. Negligence — Rescuer—Contributory Negligence — Question for Jury. Whether or not a rescuer was guilty of contributory negligence in attempting to save another from injury, or death, is a question for the determination of the jury. Sentiments of humanity applaud the act, the law commends it, and, if not extremely rash and reckless, awards the rescuer redress for injuries received, without weighing with technical precision the rules of contributory negligence or assumption of risk. When confronted with a sudden emergency of this kind, the person in position to render aid is not afforded either time or opportunity to measure the chances of success.</p> <p>'3. Evidence — Experts—Locomotive Engineer — Qualifications.—A locomotive engineer with nine years’ experience, familiar with the use of air brakes, the scene of the accident under investigation, the curvature of the grade and other details of the situation, and informed by the testimony of the engineer of the train inflicting the injury of the details of the make-up of the train and its condition, and of the rate of speed at which the train was moving, is sufficiently informed and qualified to speak as an expert as to the space within which the train could have been stopped.</p> <p>-4. Railroads — Injury to Rescuer — Contributory Negligence — Last Clear Chance. — Although a rescuer may not have exercised reasonable prudence in going to the aid of a human being in imminent danger of being struck by an approaching railroad train, yet after he has once placed himself in a position of danger from which he cannot extricate himself, it is then the duty of those operating the train to avoid injuring him if it can be done by the exercise of ordinary care.</p> <p>5. Instructions — Ignoring Essential Facts — Directing Verdict. — An instruction which undertakes to state all the circumstances necessary to be considered by the jury in arriving at a verdict, and which omits an essential fact of the case, or even an instruction which gives prominence to some fact, especially an instruction which directs the jury to find for the plaintiff or the defendant, should not be given.</p>

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

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

<p>1. Land — What Constitutes — Loose Roclos — Dump From a Railroad Cut — Personalty.—Earth, rock, etc., removed from a railroad cut and placed upon the land of another with his consent, with the intention of the railroad company that it shall remain there permanently and become the property of the owner of the land, is a part of the land upon which it is so placed, and passes with a deed from the owner thereof to the grantee if no reservation is made. The unexpressed intention of the owner to treat it as personalty, or his attempt to sell it as such, of which his grantee had no notice, cannot affect the title of the grantee of the land upon which such materials were placed.</p>

<p>Appeal from a decree of the Circuit Court of Culpeper county. Decree for the complainants. The guardian ad litem of the infant defendants appeals.</p>

<p>Error to a judgment of the Corporation Court of the city of Roanoke, affirming the judgment of the police justice of the city imposing a fine upon the plaintiff in error.</p>

<p>Error to a judgment of the Circuit Court of Bedford county iu a condemnation proceeding. Judgment for the plaintiff. Defendant assigns error.</p>

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

<p>1. Appeal and Error — Limitation of Time — Bill of Review. — Under the provisions of section 3414 of the Code, if the decree appealed from is a decree refusing a bill of review to a final decree rendered more than six months prior thereto, the party aggrieved has six months from the date of the decree refusing such bill of review within which to perfect his appeal, but if the bill of review is refused within six months after the final decree, the time for perfecting an appeal.from the final decree is the same as if no bill of review had been refused. The right of appeal from a final decree within one year is not diminished or impaired by the refusal of a bill of review thereto within six months.</p>

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

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

<p>1. Criminal Law — Warrants—Statement of Offense. — The same exactness and precision is not required in the statement of a criminal offense in a warrant from a justice of the peace as in the more formal proceedings by information or indictment.</p> <p>2. Criminal Law — Objections After Verdict — Informality of Warrant. On an appeal from a justice of the peace to a corporation court, the court has ample power, under section 4107 of the Code, to correct any formal objections there may be to the warrant, and .the accused cannot be permitted to go to trial upon such a warrant, and, after verdict and judgment, for the first iluie object to informalities in the warrant.</p> <p>3. Criminal Law- — Verdict—Judgment at Subsequent Term. — Where no judgment is entered on a verdict in a criminal case at the term at which the verdict is rendered, judgment may be entered at a subsequent term, and such judgment is not strictly u nunc pro tunc judgment. The prosecution is still pending until judgment is rendered.</p> <p>4. Appeal and Error —• Leading Questions —■ Discretion of Trial Court.- — -While this court will not go so far as to say that it will not reverse because a leading question has been improperly propounded to a witness which was duly excepted to, yet trial courts are clothed with a large discretion in such matters which this court will not lightly undertake to control, and, in the case in judgment, there does not appear to be such prejudicial error to the accused as to warrant a reversal.</p> <p>5. Criminal Law- — Jurisdiction of Cities and Towns. — Under the express provisions of section 1032 of the Code (1904) the jurisdiction of the corporate authorities of each town and city, in criminal matters, extends one mile beyond the corporate limits of such town or city.</p>

<p>Petitions for writs of error to judgments of the Circuit Court of Wythe county.</p>

<p>1. Statutes — Repeals by Implications — Banlcs and Banicing — Case at Bar. — The repeal of statutes by implication is not favored by the courts, and a later statute will not be presumed to repeal a former statute on the same subject unless, from the repugnancy of their provisions, that inference be necessary and unavoidable. If the two statutes are not absolutely irreconcilable, and no purpose of repeal is clearly expressed or indicated, it is the duty of the court to give effect to both, if possible. Applying this rule to the case at bar, the act of February 4, 1894, relating to deposits in insolvent banks, etc., is not repealed either by the act of January 4, 1904 (Code 1904, sec. 1171), or the act approved March 17, 1910, amending section 1171 of Code of 1904.</p> <p>2. Cbiminai Law — Sufficiency of Indictment — Insolvent Private Bankers — Receiving Deposits — Act February 12, 1894-- — Under the act of Assembly of February 12, 1894, making it a criminal offense for any private banker, or the employee of any private banker, to take and receive money from a depositor with actual knowledge that the said banker is at the time insolvent, an indictment is not sufficient which charges that the accused, being the cashier of a designated private bank, did with actual knowledge that the said bank was insolvent, receive the money of a depositor, without alleging who the owner or owners of the bank were, or that the accused was a private banker, or that he was the employee of a private banker. In order to bring the accused within the terms of the act, he must have been either a private banker himself, or the employee of a private banker at the time he received the deposit; and to charge him as a private banker it is necessary to charge that he was insolvent at the time he took and received the deposit, and to charge him as the employee of a private banker or bankers, it must be charged that said banker or bankers, or the owners of the private bank, were then insolvent. The allegation that the private bank designated was insolvent, without stating who its owner or owners were, is not a sufficient charge that the accused himself was insolvent if he was prosecuted as a private banker, nor that his principals were insolvent if he was being prosecuted as an employee.</p> <p>3. Cbiminal Law — Indictment—Sufficiency—Private Bankers — Insolvency. — Under the above mentioned act of assembly', an indictment is not sufficient which charges that the accused and another were partners and carried on a private banking business under the style of the “Bank of Upperville,” and in one count charges that the accused took and received money from X, a depositor, with actual knowledge that the firm doing business as the Bank of Upperville was insolvent, and in another count charges that the accused, permitted X, a depositor, to deposit to his credit a named sum, with actual knowledge that the firm trading as the “Bank of Upperville” was insolvent. Neither count charges, the accused, at the time the felonious act was alleged to have been committed, with actual knowledge that he and his partner, or either of them was insolvent. The insolvency of the partnership as such is not sufficient, if either the accused himself or his copartner was solvent.</p> <p>4. Celminal Law — Indictment—Statutory Offense — Bow Charged.— Generally an indictment upon a statute must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it. The indictment should follow the terms of the statute, or use terms which show conclusively, or beyond a reasonable doubt, that the accused is guilty of the offense described in the statute. If all that is charged in the indictment may be true and yet the accused be not guilty of the offense for which he is prosecuted, the indictment is insufficient.</p>

<p>Error to a judgment of the Circuit Court of Spotsylvania county imposing a fine upon the plaintiff in error for violating the road law of said county.</p>

<p>1. Criminai Law — Indictment—Public Nuisance — Duplicity—Videlicet. A warrant which charges that the defendant did unlawfully maintain and conduct a public nuisance, to wit: a gambling house, where divers persons meet for unlawful gambling, and did have in his possession one faro bank outfit, and unlawfully did keep and exhibit a gaming table, commonly called a faro bank, does charge a common law nuisance, and while some of the phrases or terms are descriptive in part, at least of a violation of section 3615 of the Code, yet when looked at as a whole the indictment was intended only to charge the offense of a common law nuisance. On such a charge some facts must be alleged which show that it is an offense of that character. That must be taken to be the object of the enumeration of particulars in the warrant, which was introduced by the videlicet for the purpose of calling attention to a more particular specification of what had preceded, rather than to charge a separate offense.</p> <p>2. Criminai. Law — Public Nuisance — Indictment.—There is no statute in this State defining a public nuisance or declaring its constituents, or prescribing the form of an indictment therefor. The offense remains as defined at common law, and the indictment for its commission may be framed substantially as at common law, omitting many averments rendered unnecessary by statute.</p>

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

<p>1. Intoxicating Liquobs — Unlawful Sale — Time of Sale — Statement in Indictment. — While it is not.necessary in a prosecution for the unlawful sale of ardent spirits for the indictment to state the precise time of the sale, it is necessary that such facts should he stated in the indictment as will show that the offense charged was committed within the period of limitation fixed by the statute; for no indictment, as a general rule, is good unless, assuming its allegations to be true, it disclose a prima facie case for inflicting the punishment provided by law. If the allegations of the indictment may be true and still the accused may not be guilty of the offense charged, the indictment is insufficient.</p> <p>2. Intoxicating Liquobs — Unlawful Sale — Indictment—Time of Sale.— An indictment found in December, 1912, which charges that the accused “within twelve months on last preceding 191 , in the said county did unlawfully sell ardent spirits,” sufficiently charges the unlawful sale within two years prior to the indictment. The words in italics are meaningless in the connection in which they are used, hut they may he omitted as surplusage, and the words remaining are apt and sufficient to show that the offense was committed within the statutory period.</p> <p>3. Indictments — Second Offense — Added Punishment. — Where an offense is punishable with a higher penalty because it is a second or subsequent offense of the same hind, such severer punishment cannot be inflicted unless the indictment charges that it is a seconder subsequent offense, because, by the rules of criminal pleading, the indictment must always contain an averment of every fact essential to the punishment to be inflicted.</p>

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

<p>Error to a judgment of tlie Circuit Court of York county.</p>