Volume 115 — Virginia Reports

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

<p>1. Stockholders—Creditors—Case in Judgment.—The evidence, in the case in judgment, taken as a whole, shows that the appellant was a creditor of the appellee company and not a stockholder thereof.</p>

<p>Error to a judgment of the Corporation Court of th'e City of Danville in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.</p>

<p>Appeal from a decree of the Corporation Court of the city of Alexandria, in which the appellant was proceeded against for a contempt of court. From an adverse decree he appeals.</p>

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

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

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

<p>1. Evidence—Absolute Deed a Mortgage—Presumption.—While a deed absolute on its face may be shown to be a mortgage, the settled doctrine in this tSate is that the presumption is that the deed is what, upon its face, it purports to be, and to overcome this presumption the evidence must be clear, unequivocal and convincing.</p> <p>2. Equity—Laches.—Courts of equity refuse relief to parties who, with conscious knowledge of the situation, have chosen to sleep on their rights until all of the principal actors in the transaction have passed away, and when, from the loss of evidence any conclusion that the court might reach would necessarily be conjectural and founded upon random guess rather than upon any just ground of belief based upon sufficient proof, a just determination of the- controversy between, the parties would be impossible. In such cases the courts leave the complaining parties where their inexcusable negligence has placed them.</p>

<p>Error to a judgment of the Circuit Court of Prince Edward county in an action of ejectment. Plaintiff assigns error to a judgment for a less amount of land than he claimed.</p>

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

<p>1. Appeal and Ebboe—Instructions—Sufficiently Instructed.—Where the instructions given by the court are sufficient to inform the jury as to the law applicable to the facts of the case, it is unnecessary for this court to review the action of the trial court in rejecting other instructions tendered.</p> <p>2. Sales—Sale l>y Sample—Acceptance of Inferior Goods—Warranty— Waiver—Upon an executory sale of goods by sample, with a warranty that the goods shall correspond with the sample, the acceptance of an inferior grade of goods after an opportunity for examination does not, as a matter of law, constitute a waiver of the inferior quality of the goods and a satisfaction of the seller’s obligations, but the retention and use of the goods for a considerable length of time, without complaint, warrants a strong inference that the goods are either what the contract calls for, or that the buyer is satisfied to' accept them instead of such goods, and for this reason it is important to give prompt notice of any defect-which exists.</p> <p>3. Damages—Delivery of Inferior Goods.—Where goods of an inferior grade have been delivered to a buyer, the measure of his damages is the difference between the value of the goods as represented at the time .and place of delivery, and the value at such .time and place of the goods actually delivered.</p> <p>4. Wabbanty—Affirmation of Quality—Sales—Although there is no warranty of the germinating properties of seed offered for sale, yet if the affirmation is made that they are of the crop of the previous year for the purpose of influencing the buyer, as an affirmation of quality, and the affirmation is relied on by the buyer, and the evidence shows that seed of good quality of that year’s crop are good, merchantable seed, then the fact that the seed had practically no germinating qualities strongly tends to prove that they were not of the crop of the previous year, and that there was a breach of the affirmation or warranty that they were of that year’s growth, and the verdict of the jury so finding should not be set aside as contrary to the evidence.</p>

<p>1. Trial—Case for Jury.—An action for deceit is peculiarly one for the consideration of a jury when the conclusions to be drawn from the evidence are not so certain and incontrovertible that fair minded men may not differ with respect thereto.</p> <p>2. Demurrer to Evidence—Conflicting Evidence—Judgment.—Upon a demurrer to the evidence, where the evidence is conflicting and is of such character that the jury might have found a verdict for the demurree, it is the duty of the court to enter judgment in his favor.</p> <p>3. False Representations—Reliance Upon—Inquiry— One to whom a representation has been made as an inducement to enter into a contract has the right to rely upon it as true quoad the maker, and he need make no further inquiry; and if he does so rely upon it, and it turns out to be untrue, the party making the representation is liable for the resulting damages, which may be recovered in an action of deceit.</p> <p>4. False Representations—Reliance Upon—Question for Jury.— Whether the plaintiff in action of deceit (to recover damages for the false representations of the defendant) relied upon the defendant’s representations, or acted in whole or in part on his own knowledge, is a question for the jury.</p> <p>5. Torts—Joint Wrong-Doers—Participation.—Where one party is a participant in and a beneficiary of the wrong of another, which could not have been made effectual without his co-operation, the two are jointly liable to the party injured.</p>

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

<p>1. Statutes—Repeals by Implication.—The repeal of a statute by implication is not favored by the courts. The presumption' is always against the intention to repeal where express terms are not used. To justify the presumption of an intention to repeal "006 statute by another, the two statutes must be irreconcilable. If, by a fair and reasonable construction, they can be reconciled, both must stand.</p> <p>2. Municipal Cobpoeations—Councilmen of Cities—State Officers.— While many, perhaps the great body, of the powers and duties of city councils relate exclusively to the local affairs of their respective cities and to matters in which the city alone is interested, they exercise powers and perform duties in which the public at large, the State, is interested directly. They are for many purposes State agencies or instrumentalities, operating to some extent through the medium of city charters in the preservation of public peace and good government.</p> <p>3. Municipal Cobpoeations—Member of City Council—Vacancy—Code, Section 1015-e—Repeal—Act, February 11, 1906.—A member of a city council is not a municipal officer within the meaning of the act uf February 17, 1906, providing, amongst other things, how vacancies in such offices shall be filled, and hence said act does not repeal section 1015-e of the Code declaring how vacancies in the council shall be filled.</p> <p>4. Statutes—Construction—Statutes in Pari Materia.—Where there is more than one statute bearing on the same subject, all the statutes in pari materia must be considered and harmonized if that can be done by any fair and reasonable construction.</p>

<p>1. Highways—Roads—Location—Case at Bar.—The evidence in the case at bar satisfactorily establishes that the true location of the road in controversy is that claimed by the plaintiff in his bill. The road conforms to the description given in the deed under which the plaintiff claims, is upon the location understood between the plaintiff and his grantors, and this construction of the rights of the parties has been continuously acted upon by the parties, without objection, from the time the plaintiff obtained his deed in 1887 until the defendant undertook to obstruct the plaintiff in his use of the road.</p>

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

<p>Error to a judgment of the Chancery Court of the city of Richmond on a motion to admit a will to ■ probate. Judgment for the executor. One of the defendants assigns error.</p>

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

<p>1. Taxation—Corporations—Capital Stock.—Whatever obscurity or confusion may exist elsewhere as to the meaning of the term “capital stock,” its meaning is put beyond controversy in the case at bar, for it is expressly charged in the declaration that the whole of the capital stock of the company was invested in and represented by the property and works necessary for the supply of water, and a tax upon the capital stock, in the sense in which it is used in the declaration, was undoubtedly a tax upon the property in which it was invested.</p> <p>2. Choses In Action—Open Accounts—Assignments—Action by Beneficial Owner.—A debt due from another, though evidenced by an open account, is a chose in action, and the beneficial owner thereof may maintain an action therefor in his own name under the provisions of section 2860 of the Code.</p> <p>3. Taxation—Exempting Property—Water Rents—Increased, Rate—■ Municipal Corporations.—An agreement by a city to pay to a water company a stipulated sum for water rent, and that if at any time a city tax for any purpose be imposed upon any of the property or works of the qompany necessary for the supply of water, the rental stipulated for shall be increased to an amount equal to said tax, is not an agreement to exempt said works and property of the water company from taxation, but is an arrangement for ascertaining the amount of water rent to be paid by the city, and is such a contract as the city may lawfully enter into.</p> <p>4. Taxation—Penalty for Delay in Payment—Involuntary Payment — The payment of a tax in order to avoid a penalty imposed to accelerate the prompt payment of taxes is not such duress as to render the payment involuntary, and the payment cannot be recovered back.</p>

<p>1. Rescission—False Representations—Material Facts—-Truth.—The false representation of a material fact, constituting an inducement to a contract for the purchase of real estate, on which the purchaser had the right to rely and upon which he did rely, is always ground for a rescission of the contract by a court of equity. The intent of the party making the representation, and his belief in its truth, are alike wholly immaterial. It is sufficient that the statement was material, was relied on by the purchaser, and was in fact untrue.</p> <p>2. Rescission-—False Representations of Price Paid and Rents Received.—False representations by a vendor of the price paid by him for the property, and of the amount of rents being actually received by him for it, when relied upon by the vendee, are sufficient to warrant a rescission of the contract of sale by a court of equity upon application therefor by the vendee.</p> <p>3. Rescission—Placing Parties in Statu Quo.—In a suit to rescind a contract of sale of real estate, if a court of equity finds that a condition exists which renders it impossible to restore the parties substantially to their original positions, and that to rescind the contract would result in an injustice, the rescission will be refused.</p> <p>4. Rescission—Rights of Third Persons—Defendants’ Objections.—A defendant cannot defeat a rescission of a contract of sale of real estate procured by his fraudulent misrepresentations upon the plea that he has received and is in the enjoyment of the fruits of his fraudulent practices which he is unable or unwilling to restore. The court will protect the rights of innocent third persons which have intervened, and if this imposes an additional burden on the plaintiff, the defendant cannot complain of it.</p>

<p>1. Master and Servant—Defective Appliances—Proximate Cause— Case at Bar.—A plaintiff cannot recover on account of defective machinery or appliances, unless it affirmatively appears that the defect was the proximate cause of the injury complained of. In the case at bar, a hand torch was provided by the defendant for the use of the plaintiff in emergencies caused by the absence of the electric lights, and it is alleged that the injury was inflicted upon the plaintiff while using this torch, but there is no allegation that the torch was out of order, that it did not give sufficient light, that it was in any way inadequate for the purpose for which it was being used, or that the use of the torch caused the injury, and hence no case is stated against the defendant.</p> <p>2. Pleading—Negligences—Contributory Negligence—When a Question of Law.—Whether or not'a declaration discloses such contributory negligence on the part of the plaintiff as will bar a recovery by him is, on a demurrer to the declaration, a question of law for the court. The demurrer admits the facts alleged to be true, and when the facts are undisputed and decisive of the case, a question of law is raised and the court should decide it.</p> <p>3. Master and Servant—Contributory Negligences—Obvious Bisk.— To attempt to operate a dangerous machine driven by steam in the dark and without sufficient light is such an open and obvious risk that no prudent person would encounter the peril. When an employee is injured under such circumstances he cannot escape the result of his own contributory negligence upon the ground that he was acting under orders of the master when obedience to those orders involves exposure to danger so apparent that no prudent person would incur the risk.</p>

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

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

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

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

<p>1. Master and Servant—Death of Servant—Violating Speed Ordinance—Negligence—Railroads.—An engineman of a railway company cannot recover damages from his employer for injuries suffered while! running his engine within the limits of a city at a higher rate of speed than that fixed by the ordinance, if such negligence proximately contributed to the injury, and it is immaterial that the company knew that the ordinance was regularly violated by its employees. The negligence in such case is negligence as a matter of law, and it would be contrary to public policy to relieve the engineman of the effect of his violation of law upon the ground that the company and its employees were in the habit of violating the particular law.</p> <p>2. Evidence—Contributory Negligence—Pleading.—In an action on the case the defendant may, under the plea of not guilty accompanied by the ground of defense that the plaintiff was guilty of contributory negligence, introduce any evidence which shows that the plaintiff was guilty of contributory negligence per sc. or, being relevant, tends along with other facts and circumstances to show his contributory negligence.</p> <p>3. Instructions—Sufficiently Instructed—Harmless Error.—A party is not prejudiced by the refusal of the court to give a correct instruction where, after reading other instructions to the jury, the court states the law to the jury substantially as requested in the rejected instruction.</p> <p>4. Evidence — Speed Ordinances — Violation—General Reputation.— Where an engineman was killed while violating a speed ordinance, it is generally not permissible for his employer to introduce evidence tending to show that the decedent had the reputation among his fellow-employees as a fast runner, and had previous to the accident in which he was killed and at the same point disregarded the speed ordinance.</p> <p>5. Evidence—Speed Ordinances—Violation—General Reputation.—In an action to recover for the death of an engineman killed while violating a speed ordinance where the uneontradicted evidence shows that at the time lie was killed he was winning liis engine in the city limits at a speed of from twelve toi fifteen miles an ' hour, whereas the maximum limit fixed by the city ordinance . was only four miles an hour, evidence is not admissible which tends to show that he had the reputation of being a fast runner and had previously violated the ordinance.</p>

<p>1. New Trial—More than Two to Same Party.—As there is much diversity of opinion in other jurisdictions as to the proper interpretation of the statute declaring that not more than two new trials shall be granted to the same party in the same cause, this court will not undertake to construe it until a case arises in which it is necessary.</p> <p>2. Ejectment—Identification of Land Sued For—Case at Boa-.—Giving the evidence for the plaintiff in the ease at bar, written and oral, all the weight it is entitled to, it cannot be said that it satisfactorily shows that the land which the plaintiff sues to recover is the same that was in the possession of the defendant.</p> <p>3. Ejectment—Plaintiff's Title—Identity of Land—Defendant's Title.— Until the plaintiff in ejectment has made out a prima facie case for recovery by showing his right to the possession of the land sued for and identifying the same, the defendant is not required to show in what manner or by what title he held or obtained possession, and his failure to do so cannot strengthen the plaintiff’s case.</p> <p>4. Appeal and Error—Erroneous Verdict—Record of Former Trial.— While this court may, for some purposes, look to the record on a former writ of error in the same case, the question of whether or not the verdict of the jury upon the last trial should be set aside because contrary to the evidence can only be determined by a consideration of such evidence as was before the jury.</p> <p>5. Ejectment—Plaintiff’s Title—What to he Proved—Exceptions to Rule.—Generally, the plaintiff in ejectment must recover solely upon the strength of his own title, and not on the weakness! of that of the defendant, and the plaintiff’s title must be a legal title.- The title to be proved by the plaintiff in order to entitle him to recover, as a general rule, must be either a grant from the Commonwealth, with which he connects himself by a regular chain of title, or he must prove such a state of facts as will warrant the jury in presuming a grant, or as will show adversary possession for the statutory period under a claim or color of title. While there are exceptions to the rule as well settled as the rule itself, amongst them, that the defendant without title or authority intruded upon the plaintiff or his ancestor who was in peaceable possession of the land when the defendant entered and took possession, the plaintiff in the case at bar has not brought himself within them.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg in a proceeding by motion for a judgment on a life insurance policy. Judgment for the defendant. Plaintiff assigns error.</p>

The United States appeals from an adverse decision in a controversy between it and other creditors over a fund under the control of the court.

<p>Error to a judgment of the Circuit Court of the city of Norfolk in an action of debt. Judgment for the plaintiffs. Defendants 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. Equity—Rescission—Mutual Misialce—Sale of Land in Gross— Contracts of Hazard.—Where the mistake in the quantity of land sold is so gross as to amount to a fraud upon the purchaser, he should not be required to abide by his contract, if executory, and, if executed, a court of equity has the power to and should relieve him of the consequences of the mistake by rescinding the contract in toto, provided always the parties thereto can be put in statu quo and the rights of innocent third persons have not intervened. It is not necessary that there should have been intentional or wilful fraud and deceit. Thus where a vendor honestly believed and represented a tract of land to contain about two hundred acres, when in fact it contained only ninety-four and one-half acres, the sale will be set aside, although the deed contains a clause that “it is understood this land is sold by the lump and not by the acre.”</p> <p>2. Equity—Contracts of Hazard—Sale of Land in Gross—Presumption.—Contracts of hazard as to the quantity of land in a designated boundary are not discountenanced when they are clearly established and their terms are fair and reasonable, but courts of equity do not regard them with favor. The presumption is against them, and this presumption can only be overcome, if at all, by clear and cogent proof. Where parties contract for the payment of a gross sum for a tract or parcel of land, the presumtion is that the quantity influences the price to be paid, and that the agreement is not one of hazard.</p>

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

<p>Application for a writ of error to a judgment of the Corporation Court of the city of Danville, affirming the judgment of a justice of the peace imposing a fine for doing business without a license.</p>

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

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

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

<p>Error to a judgment of the Circuit Court of Tazewell county on appeal from an order of the board of supervisors of Russell county. Judgment for the defendant. Plaintiff: assigns error.</p>

<p>1. Negligence—Prevision—Licensees—Trespassers.—The owner of premises does not owe to either trespassers or licensees the duty of prevision, or of keeping his premises in a safe condition. While he must not intentionally or wilfully injure them, the active duty of protection to licensees only arises after such owner knows of their danger, or might have known of it and avoided it by the use of ordinary care.</p> <p>2. Infants—Trespassers.—The rule that a land owner does not owe to a trespasser the duty of keeping his land in a safe condition applies as well to infants as to adults.</p>

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

<p>Error to a judgment of tlie Law and Chancery Court of the city of Roanoke in an action of assumpsit. Judgment for the plaintiffs. Defendants assign error.</p>

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

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

<p>1. Appeal and Erbob-Amount in Controversy-Burden of Proof.The burden of showing jurisdiction to hear an appeal is on the plaintiff in error, and such jurisdiction must affirmatively appear from the record. If the jurisdiction is determined by the pecuniary amount involved, and this cannot be ascertained, the appeal will be dismissed.</p> <p>2. Appeal and Eebob-Amount in Controversy-Balance of a Debt&emdash; Payments.-Where a decree fixes upon a defendant a personal liability for whatever balance of a debt remains unpaid after crediting thereon the proceeds of the sale of a tract of land decreed to be sold to pay the debt, the amount of defendant’s liability cannot be ascertained until the land has been sold; and where, as in this case, the liability of the defendant is merely pecuniary, he has no right of appeal until the extent of his pecuniary liability has been fixed, which can only be done after a sale of the land. This is not a case where a fixed pecuniary liability has been reduced by subsequent payments.</p>

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

<p>1. Appeal and Error—Final Judgment.—A writ of error does not lie in an action at law until there has been a final order or judgment in the cause.</p> <p>2. Appeal and Error.—What Is a Final Judgment.—A final order is one that disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order. If it appears upon the face of the judgment that further action in the cause is necessary to give completely the relief contemplated by the court, then the judgment is not final.</p> <p>3. Appeal and Error—Final Judgment—Setting Aside a Verdict in Part.—Where an action is brought upon three notes and there is a general verdict for the defendant, an order made by the trial court setting aside the verdict as to two of the notes and awarding a new trial as to them, but refusing to set it aside as to the other note, and directing that the plaintiff take nothing by his action as to that note, and that the defendant recover his costs, is not a final order or judgment to which a writ of error will lie.</p>

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

<p>1. Landlord and Tenant—Lease—Construction—Intention of Parties. The language of a lease which is fairly susceptible of two constructions, is to be taken most strongly against the lessor. Furthermore, the intention of the parties must be ascertained by reference to the entire instrument and not to disjointed parts of it.</p> <p>2. Landlord and Tenant—Premises—Collateral and Customary Use— Case in Judgment—Mining Lease—Use of. Surface—Buildings for Employees.—As a general rule, the lessee of real property is entitled to the use of the demised premised for such collateral purposes as are customary in the use of such property, and for any purpose not prohibited by the lease and not amounting to waste or destruction of the subject matter. In the case in judgment, notwithstanding the isolated statement that the lease was “for the purpose of mining coal and manufacturing coke thereon and therefrom, and selling said coke and coal,” looking to°the lease.as a whole and the customary use of such property, it was the intention of the parties that the lessee should have, for the purpose of its operations, all of the property rights and privileges owned by the lessors in the premises, and is not accountable to. them for the rents of houses which it caused to be erected on the leased premises in the neighborhood of its operations, and which it leased to another until it became necessary for it to use them for its own employees.</p>

<p>1. Life Insurance—Suicide—Burden of Proof—Circumstantial Evidence of Death.—Where the defense to an action on a life insurance policy is that the defendant committed suicide, the burden is upon the defendant to show by clear and satisfactory evidence that the insured did actually commit suicide. A mere preponderance of the evidence is not sufficient. The mere fact that the body of an insured is found with a pistol in his hand and a bullet wound in his head is not sufficient to prove suicide. When the evidence of self-destruction is circumstantial, the defendant fails unless the circumstances exclude with reasonable certainty any hypothesis of death by accident.</p> <p>2. Sanity—Presumption.—Every man is presumed to be sane until the contrary is shown, and the burden is upon the party alleging insanity to prove it.</p> <p>3. Sanity'—Insane Relatives—Presumption.—Where no word or act on the part of a person whose sanity is questioned is shown, the fact that he has had insane relatives, standing alone, raises no presumption of insanity. ¿</p> <p>4. Life Insurance—Suicide—Question for Jury.—Where the suicide of the insured is the issue in an action on life insurance policy, and the proof (while tending to show suicide) does not exclude, with reasonable certainty, death from accident, it is proper to leave to the jury to say whether or not it was a case of suicide, as the burden on such issue is on the defendant.</p> <p>5. Life Insurance—Evidence—Cause of Death—Physician’s Certificate—Harmless Error—In an action on. a life insurance policy it is not error to exclude from the jury the sworn statement of the attending physician in a proof of death as to the cause of death of the insured where death resulted from a gun-shot wound, and the physician' knew no more about what caused it than anyone else who saw the dead' body. But, even if such ex-elusion was error, it was harmless in the ease at bar, as the physician was subsequently put upon the stand, and all he knew upon the subject was put completely and effectually before the jury.</p> <p>6. Life Insurance—Fraudulent Answers—Physical Diseases—Insanity—Case at Bur.—Untrue answers to questions propounded on an application for a life insurance policy, in order to be fraudulent, must be wilfully false. In the case at bar, the collocation of the question, “Have any of your uncles or aunts had consumption, or any hereditary disease?” would seem to indicate that the inquiry was directed to physical diseases, and not to diseases of the mind, as insanity.</p> <p>7. Life Insurance—Medical Examiner—Agent of Insurer—-Knowledge. The medical examiner of a life insurance company who writes in the application the answers of the applicant for the policy to the questions propounded to him is the agent of the company, and the company is bound by any information he has at the time he fills out the application for the insured. In the case at bar, the medical examiner of the company was thoroughly familiar with all the facts as to which it is alleged the insured made false answers.</p>

<p>1. Contkacts—Building Contract—Performance—Damages—Case in Judgment—Principal and Surety.—A contractor gave bond with surety to build and complete a building according to certain plans and specifications. After partially fulfilling his contract, he gave up the job, and the owner let the completion of the building to another contractor for the balance agreed to be paid the first contractor. The second contractor gave the same surety for the performance of his contract that was given by the first contractor. The work was completed by the second contractor at a considerable loss, which was made good to him by the surety aforesaid. The surety thereupon sued the first contractor to recover the amount of the loss paid as aforesaid. The first contractor had nothing to do with the making of the contract for the completion of the unfinished building, and, in fact, knew nothing of it.</p> <p>Held: The first contractor is in no way liable for the loss sustained by the second contractor, which was voluntarily paid by the common surety on the two bonds.</p>

<p>1. Deeds—Severance of Surface and Minerals—Deed by One Joint Tenant.—While the general owner of land may grant any or all of the underlying minerals and remain the owner of the surface, or may grant the surface, reserving any or all of the underlying mines, and thus sever the title of the surface and the underlying mineral or minerals, yet such a conveyance, by less than all the joint tenants where land is so held, does not effect a severance of the mineral interest from the surface, but makes the grantee, if he be a stranger, a tenant in common with the joint tenant, who did not unite in the conveyance.</p> <p>2. Joint Tenants—Deeds—Severance of Title.—While a joint tenant has' capacity to transfer his undivided share in the land, he has no right to convey by metes and bounds any part of the land, or to convey the mineral and reserve the surface to the prejudice of his co-owners. A conveyance from one joint tenant of land owned in fee to a stranger cannot effect a severance of his interest in the land from that of the other joint tenants, but makes the grantee a tenant in common with the other joint tenants, and a fortiori, a like conveyance of his mineral interest only cannot operate a severance of his mineral interest from the surface.</p> <p>3. Advehse Possession—Deed by One Tenant in Common—Color of Title.—If a stranger to the title takes a conveyance of the whole estate in a tract of land from .one who is only a tenant in common with others, and enters into the exclusive possession of the land, claiming title to the whole, it is an ouster of the other co-tenants, and the grantee so entering and claiming title may rely upon his adversary possession, if continued for the statutory period.</p> <p>4. Tenants in Common—Possession by One—Presumption—Adverse Possession.—The entry and possession of one tenant in common is ordinarily deemed the entry and possession of all, and this presumption will prevail in favor of all until some notorious act of ouster or adversary possession is brought home to the knowledge of the others. Yet a tenant in common may enter adversely and claim in severalty, and, where he does, the statute of limitations will run in his favor and against his tenants in common.</p> <p>5. Adverse Possession—Land and Minerals—•Deed to Fee—Presumption—Ouster of Co-tenant—Case in Judgment.—When one enters upon land he is presumed to enter under the title which his deed purports on its face to convey, both as to the boundary or extent of the land and the nature of his title. In the case in judgment, the grantee did not enter as a tenant in common, but under a deed conveying the whole land in fee with covenants of a general warranty. There had been no severance of title of the surface and minerals, and his claim of title to the whole land, including the underlying minerals, from the time of entry under his deed, operated as an ouster of the other tenants in common and gave him the right to rely upon his adversary possession, which, if continued for the statutory period, bars; the other tenants both as to the land and the underlying minerals.</p> <p>6. Adverse Possession—Color of Title—Underlying Minerals.—Where there has been no severance of title to the surface of land and the underlying minerals, a conveyance in fee of the land constitutes color of title to the whole tract, minerals as well as surface, and adverse possession of the surface for the statutory period, claiming title to both surface and the underlying minerals, gives title to both, although the minerals be claimed by another under a prior deed, which was ineffectual to constitute a severance.</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. Contbacts—Promise to Become Surety—Indemnity—Statute of Frauds—Case at Bar.—A promise by a surety that he will indemnify another if he will become co-surety with him on the debt of a third person is an original undertaking and not within the statute of frauds. In the case at bar, the promise, which was held to be an original undertaking, was in the following words: “Go ahead and endorse it; you need not be uneasy; Gillespie” (the principal) “is all right. If he did not have a thing, you will never have a dollar to pay as long as I have got a dollar’s worth of property.” Wolverton v. Davis, 85 Va. 64, disapproved.</p> <p>2. Conteacts—Promise to Answer for Debt of Another—Statute of Frauds—Negotiable Instruments Law.—The principle announced above is not affected by section 68 of the negotiable instruments law with reference to the liability of joint payees or endorsees who endorse negotiable paper. The object and purpose of that section is only to give statutory force to a principle already established. That section establishes the prima facie order in which endorsers are to be held liable, but among themselves they are permitted to show that they have agreed otherwise. The clause with respect to joint payees or endorsees was added, not to deprive them of the right to prove by evidence aliunde that they have made an agreement among themselves which varied the liability imposed by law, but out of abundant caution to negative the conclusion that they were to be liable in the order in which they became endorsers, for when there are two or more joint endorsers, it is apparent that the mere affixing of their signatures must have been successive one after the other.</p>

<p>1. Appeal and Error—Objection Below—Personal Judgment.—Where the only complaint of a defendant is that the judgment rendered against him is a personal judgment, but he took no exception to any of the rulings of the trial court, a writ of error awarded in his favor should be dismissed as having been improvidently awarded.</p> <p>2. Landlord and Tenant—Property of Under-Tenant—Liability for Rent.—The liability of the property of an under-tenant of leased premises for rent contracted to be paid by the tenant does not arise out of contractual relations between him and the lessor, but by virtue of the statute whereby he, upon entering the leased premises as under-tenant, subjects his property carried thereon to liability for rent contracted to be paid by the lessee of the premises, and this liability of his property continues while on the leased premises, and for thirty days after the same is removed therefrom, but it cannot be subjected for a greater amount than one year’s rent, due or to become due, from the lessee to the lessor.</p> <p>3. Landlord and Tenant—Goods of Under-Tenant—Liability for Rent Due or to Become Due.—Section 2791 of the Code plainly makes the goods of the under-tenant liable for the rent, just as though they were the goods of the tenant himself; and by section 2962 it is provided that, if the goods are liable to be distrained, they may be attached. The intention of the legislature was to give as effective a remedy for rent to become due as for rent past due.</p> <p>4. Landlord and Tenant—Bale of Goods by Tenant—Liability for Rent.—Although there is no rent due when a lessee sells his entire stock on the leased premises, nevertheless there is a liability on the contract of the lessee for the rent and the goods are taken by the assignee or under-tenant subject to and liable for one year’s rent reserved to the lessor in the contract.</p> <p>5. Attachment—Affidavit—Sufficiency.—Where it appears upon the face of the record that the affidavit for an attachment was unquestionably filed in the proper court by the proper officer, it will not be vitiated by a mere clerical error of the clerk who wrote it, in not substituting the words “Law and Chancery” for “Corporation” in the printed form used by him.</p> <p>6. Attachment for Rent—No Pending Action.-—The fact that the action at law referred to in the clerk’s certificate to an attachment was never matured for hearing does not render an attachment for rent void, for the attachment is good as a remedy for the collection of rent to become due under a contract, whether there is an action at law to recover it or not, since the right to sue out an attachment for rent is not dependent upon a pending action at law to recover the same.</p> <p>7. Attachment—Order of Sale—Personal Judgment.—An order in an attachment case which recites that it appears to the satisfaction of the court that the defendant is indebted to the plaintiff in a stated sum, and directs a sale of the attached effects, or so much thereof as may be necessary, to pay the sum so stated is not a personal judgment against the defendant, but reaches only the goods attached.</p>

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

<p>1. Taxation—Assessments—Irregularities.—Technical objections to the time and method of assessing property for taxation are ■ unavailing to prevent a proper assessment. A person whose property is liable to assessment for taxes will not be permitted to evade the payment of his proportion of the public burden by any errors, omissions or irregularities that do not prejudice his rights.</p> <p>2. Taxation—Capital of a Miller.—Capital employed in the business of a miller is taxable under schedule C, section 8, of the tax bill of this State.</p> <p>3. Statutes—Construction—Use of Same Word—Tax Bill—“Capital."— It is a rule of construction that when the same word is used in different parts of the same statute the presumption is that it was used in the same sense throughout the statute, unless a contrary intention clearly appears. Applying this rule to the tax bill of this State, the word “capital” as defined in subsection 4 of section 8 was intended to apply also to “capital” as used in the preceding sub-sections 2 and 3.</p> <p>4. Taxation—“Capital"—Corporations—Uniform Taxation.—The word “capital” as defined in sub-section 4, above mentioned, applies as well to corporations as to individuals conducting the same business. Any discrimination between private persons and corporations in this respect would violate the constitutional provision that “all taxes, whether State, local or municipal, shall be uniform upon the same class of subjects.”</p> <p>5. Taxation—“Capital"—What Constitutes—Borrowed Money as Capital.—The tax laws of this State impose a tax on “moneys and credits actively used and employed in carrying on the trade or business.” If so actively used and employed, it can make no difference whether capital or part of it was borrowed or not. It is none the less capital of the user, and employed for his profit and at his risk. While the legislature might have authorized the deduction of borrowed money from the amount of capital to be returned for. taxation, it has not done so, and such money is to be included in the capital returned for taxation. The capital stock of a company must be clearly distinguished from the amount of capital invested in its business.</p>

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

<p>1. Cakbiers—Interstate Commerce—Special Contracts to Expedite Delivery of Interstate Shipments.—A special contract with a particular shipper, whereby a carrier agrees for the published rate to expedite an interstate shipment of freight and deliver the same on a designated day, gives to the particular shipper an ' advantage over other shippers and makes a discrimination in his favor which is prohibited by the interstate commerce act, and hence such a contract is void.</p>

<p>1. Contracts—Sale of Land—Statute of Frauds—Letter Accepting Offer.—A letter written by the owner of land, in reply to a written proposal to purchase, saying, “I accept the offer yoii made me for $1,500 cash,” and signed by such owner, is a sufficient compliance with the statute of frauds.</p> <p>2. Principal and Agent—Transmitting Proposal to Principal—Agent for Both Parties.—An agent to sell land may, with propriety, transmit to his principal for his acceptance or rejection the offer of a proposed purchaser. This is not acting as agent for both parties in the purchase and sale of the land.</p>

<p>1. Evidence—'Writing—Original—Copy.—A paper offered in evidence as a copy appearing in fact to be the original, the objection to the introduction of the copy until the original was accounted for was properly overruled.</p> <p>2. Evidence—Admissibility—Introducing Same Evidence—Waiver.— An objection to the introduction of evidence is deemed to have been waived where the same fact is testified to by the objector himself.</p> <p>3. Witnesses—Cross Examination.—In an action against the makers of notes given for the purchase price of personal property, and secured by a deed of trust on said property, after one of the original parties to the transaction has testified that the property had been advertised for sale under the deed of trust and that he was present with money to buy it, but the property was not offered, it is not error to ask him on cross examination how much money he had for that purpose at that time, where he got it from, and what he did with it.</p> <p>4. Witnesses—Cross Examination—Foundation for Impeachment.—In order to lay the foundation for attacking the credibility of a party witness, it is not error to permit him to be asked, on cross examination, if he had not given the plaintiff, as collateral for the notes in suit, a note signed by his grandfather, which the latter afterwards said was not signed by him, and was a. forgery.</p> <p>5. Evidence—Collateral Fads.—Nor is it error to prove the same facts about the giving of the collateral note and its repudiation by a surety on the notes who was to be relieved of liability if the collateral note was accepted, or by a payee of the notes in suit.</p> <p>6. Evidence—Principal and Surety—Admissions—Case at Bar.—In an action against principal and surety on notes given for a sawmill, where the surety claims that, after his principal had failed to pay, he bought the mill of creditor, who failed to deliver it, and tbe creditor denies such sale and claims that the surety was always interested in the purchase because he had sold timber to the principal, who was to manufacture it by the use of the mill, and that he signed the notes as surety only, it was not error to prove by the admissions of both parties that the surety had sold to his principal standing timber on the former’s land before the principal had bought the sawmill.</p> <p>7. Evidence—Letters—Replies as Evidence of Receipt.—A reply to a letter of a given date is sufficient evidence of its receipt without evidence that it was properly addressed and postage paid thereon.</p> <p>8. Evidence—Improper Reception—Harmless Error.—The improper admission in evidence of copies of letters of such nature that their admission in evidence could not have prejudiced the party objecting thereto nor have influenced the verdict of the jury does not constitute reversible error.</p>

<p>1. Equity Pleading—Bills—Multifariousness—Dismissal Without Objection.—It is the duty of the court, of its own motion, to dismiss a bill that is multifarious, although not objected to on that ground by the parties defendant; hence it is immaterial that only one of two defendants demurs on that account.</p> <p>2. Equity Pleading—Bills—Multifariousness—What Constitutes.—A bill is multifarious when there is improperly joined in one bill distinct and independent matters, thereby confounding them; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill. In the latter case the proceeding would be oppressive, because it would tend to load each defendant with an' unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendants with which he has no connection.</p>

<p>1. Divorce—Desertion—Case in Judgment.—The husband, in' the case in judgment, is not entitled to a divorce from his wife on the ground of desertion. He seems never to have made any provision for a home for her nor to have taken care of her, and when she left him they parted as friends, and she went with his consent. Since their separation he has made no effort to get her to return, and has not answered her letters. It is his duty now to provide a home, however humble, for their habitation, and to invite her to return to her duty and share it with him. The well-being and good order of society demand that husbands and wives shall in good faith endeavor to reconcile their differences, and dwell together in unity and peace rather than to make occasion for resort to the courts for redress.</p>

<p>1. Equity—Jurisdiction—Lost Instrument—Fraudulent Alteration— Proof Required—Case in Judgment.—While courts of equity have jurisdiction to set up lost deeds and wills and to establish titles under them, the proof of the former existence, the loss and the contents of the instrument, should be strong and conclusive before the courts will establish a title by parol testimony to property which the law requires shall pass only by deed or will. The same principle applies to an alleged alteration of a deed which would amount to a forgery. The law never presumes fraud, and it must always be clearly alleged and proved. The testimony in the case in judgment falls far short of the degree of proof which the law requires.</p>

<p>1. Tbusts and Tbustees—Interest in Trust Subject—Insane Persons— Suit by Committee.—The right of maintenance, either entire or partial, in a trust fund constitutes such a proprietary right in the fund as entitles the beneficiary to the protection of the courts with respect to it, and where this right is vested in an insane person, his committee is the proper person to sue for its preservation and protection. Code, section 1697.</p> <p>2. Insane Pebsons—State Hospitals—Trustee for Beneficiaries.—A State hospital for the insane in this State is suable in its private capacity, and where it has seen fit to accept a trust, it stands on the same footing with respect to it as any other trustee. The legislature may prohibit it from accepting the trust, but, when once accepted, the trust subject must be applied to the purpose to which it has been dedicated by the grantor.</p> <p>3. Constitutional Law—Particular Trust—Diversion by Legislature.— Private property donated by a testator to a well-defined valid trust cannot be diverted by the legislature to a distinctly different object. The legislature has no power to seize upon private property thus dedicated and appropriate it to a wholly different purpose, however meritorius such purpose may be, and legislation to that effect is unconstitutional and void. If the trust declared by the will is lawful, the beneficiaries have property rights in the trust subject which cannot be taken away from them by the legislature. If the trust is unlawful, the property belongs to the heirs of the testator, and is equally under the protection of the law.</p> <p>4. Pasties—Suit to Test Validity of Donation by Will—Heirs of Testator.—Where a will has long since been admitted to probate and its validity is not questioned, the heirs of the testator are not necessary parties to a suit to test the valadity of a donation made by the will.</p> <p>5. Costs—Public Officers.—Costs ought not to be awarded against defendants to a suit who are public officers of the State, and hare no personal interest in the litigation, and were represented by and acted under the advice of the Attorney General.</p>

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

<p>1. Wills—Reversion—Power of Disposition—Deed or Will.—Under a devise of land to several parties for their lives and “to be disposed of by them at their deaths as they may think proper,” .the quoted words are not sufficient to limit the exercise of the power of disposition to a disposition by will. Where a general power of disposition over the reversion is given to the life tenant of real estate, it may be exercised by a deed executed and delivered during his lifetime.</p> <p>2. Judgments—Collateral Attach.—The decree of a court of competent jurisdiction, with all of the parties before it, settling the rights of parties, their estates under a will, and the powers of the parties over such estates, cannot be collaterally assailed.</p> <p>3. Contracts—Rights of Third Persons—Mai-riage Settlement.-—-If, in a marriage settlement by a husband upon his wife, the husband has failed to convey to his wife as large an estate in property as, before marriage, he had contracted to convey to her, or has conveyed the property to a trustee for the benefit of the wife and the children to be bom of the marriage instead of to the wife only, these are not matters of which subsequent purchasers from the wife can complain.</p> <p>4. Estates—Fee-Simple—Gift to Wife and Children—Deeds—Wills.— A gift to a wife and children, without more, vests a joint estate in the wife and children in equal portions. The language “to the mother and her children,” standing alone, does not create a fee simple in the mother. The mother is given a fee-simple only when it appears from the context, or from the whole instrument taken together, that such was the intention of the testator, or of the grantor, if the gift was by deed.</p> <p>5. Judicial Sales—Rights of Purchaser.—A purchaser at a judicial sale takes only the rights or interest of the parties before the court, and persons not before the court are not bound in any way by the proceedings.</p> <p>6. Parties—Representation.—The doctrine of representation applies only to contingent interests, and, further, in order to represent parties not before the court, the party before the court must be one of a class whose interests are identical with the parties to be represented.</p> <p>7. Joint Owners—Purchase of Title by One.—A co-owner of property cannot purchase an outstanding title except for the common benefit. If such owner pays oft an encumbrance on the property and takes a deed to himself, he holds the title for all the co-owners, but is entitled to credit for such payment in any settlement thereafter made with them.</p> <p>8. Tenants in Common—Deed by One—Effect.—A deed from a tenant in common carries to the grantee only an undivided interest in the property, no matter by what description the property is conveyed.</p> <p>9. Vendor and Purchaser—Defective Title—Rights and Liabilities of Vendee.—If a vendor is unable to convey good title to a purchaser who has been put in possession of land, the purchaser should be given the privilege of accepting such title as the vendor can make; but, if he refuses to avail himself of the privilege, a court of equity will decree the surrender of the land to the vendor.</p> <p>10. Appeal and Error—Amount in Controversy—Interlocutory Decree. A decree fixing upon a party liability for rents is interlocutory until the amount of the rent is ascertained. The amount may not be sufficient to give this court jurisdiction.</p> <p>11. Vendor and Purchaser—Defective Title—Surrender of Possession—Rents—Improvements.—Where real estate is sold and the vendor cannot give a good title, but puts the vendee in possession, who makes improvements thereon, if an accounting is taken, the rents and profits up to the time of the decree for the surrender of the property should be set off against the improvements. The vendee is chargeable with reasonable rents and profits, and with any waste committed by him.</p> <p>12. Costs.—Costs in trial courts are in the discretion of those courts and their action will not be reversed, except upon a clear showing of abuse.</p>

<p>1. : Taxation—Mineral Lands—Erroneous Assessment—Correction.— Tbe manner in which erroneous assessments of mineral lands may be corrected is specially provided for by section 437-a of the Code (1904) and amendments thereof, and is entirely different from that of' other lands. The correction of mineral land assessments is placed under the jurisdiction of the State Corporation Commission by said section 437-a and amendments thereof, and is excluded from the operation of sections 567, 568 and 573 of the Code (1904) relating to the assessment of other lands by the express provisions of section 567, and hence the Auditor of Public Accounts has no right to file a petition to rehear an order made correcting an alleged erroneous assessment of mineral lands, and the circuit court has no jurisdiction to enter any order in a proceeding founded on such petition.</p> <p>2. Prohibition—When Writ Lies.—The writ of prohibition does not lie to correct error, but to prevent the exercise of the jurisdiction of the court by the judge to whom it is directed, either where he has no jurisdiction at all or is exceeding his jurisdiction. If the court or judge has jurisdiction to enter any order in the proceeding sought to be prohibited, the writ does not lie.</p>

<p>Error to a judgment of the Circuit Court of Russell' 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 Russell county in several suits heard together.</p>

<p>1. Appeal and IQrbor—Bills of Exception—Rulings on Evidence— What to Be Inserted.—A bill of exception to tbe ruling of tbe court on the admissibility of evidence is not sufficient, although it gives tbe question ashed tbe witness and bis answer thereto, unless it also contains sufficient of tbe evidence which has preceded to give this court a clear apprehension of tbe propriety or impropriety of tbe ruling of tbe trial court.</p> <p>2. Evidence—Order of Introduction—Discretion of Trial Court.—Much latitude of discretion should be allowed tbe trial court in tbe matter of tbe examination of witnesses, and its ruling will not be reversed merely because evidence proper in chief was introduced in rebuttal.</p> <p>3. Sales—Proof of Sale—Burden.—In an action to recover tbe purchase price of personal property sold, tbe burden is on the plaintiff to prove tbe sale, but if tbe defendant denies the sale be has tbe burden of showing that tbe property came into bis possession in some way other than by bargain and sale.</p> <p>4. Sales—Offer and Acceptance—When Title Passes.—If an offer to sell personal property at a stated price is accepted, and nothing remains to be done to complete tbe contract, title' xiasses as soon as tbe offer is accepted.</p> <p>5. Sales—Representations of Soundness—As of What Time Applied.-—• Representations of tbe soundness of personal property sold are to be applied as of tbe time tbe sale is consummated and tbe title x>asses, and not of any subsequent time.</p> <p>6. Sales—-Caveat Emptor—Fraud.—In all sales of personal property tbe doctrine of caveat emptor applies, except when there has been a warranty or deception or some fraud, or a deception upon tbe part of tbe seller, misleading tbe buyer to bis injury, and upon which tbe buyer relied.</p> <p>7. False Representations—Burden of Proof.—A defendant who relies upon false representations of tbe plaintiff as a defense to an action to recover tbe purchase price of property has tbe burden of showing, by a preponderance of affirmative evidence, that tbe representations were made by tbe plaintiff, were false, and that tbe defendant relied upon them and was injured by reason of their falsity.</p> <p>S. Warranties—Breach—Burden of Proof.—The burden is on the defendant who relies upon a breach of warranty of soundness of personal property, to prove the warranty and its breach by a preponderance of affirmative evidence.</p> <p>9. Sales—Breach of Warranty—Rescission—Damages.—Where there has been a breach of warranty of personal property sold, the purchaser may either rescind the contract, if, within a reasonable time, he notifies the seller of his intention so to do and offers to restore the property, in which event the contract is terminated and the parties are restored to their former rights, or he may retain the property and claim as damages against the seller the difference between the value of the property as warranted and its actual value at the time of the sale.</p> <p>10. Warranties—What Constitutes a Warranty.—To constitute a warranty no particular form of expression is required. An apparent intention to warrant is sufficient. It is enough if the words used import an engagement on the part of the seller that the article is what he represents it to be. Any distinct affirmation of quality made by the seller, at the time of the sale, or during the negotiations that led up to the sale, not as an expression of opinion or belief, but as an assurance to the purchaser of the truth of the fact affirmed and an inducement to him to make the purchase, is, if accordingly received and relied on and acted upon by the purchaser, an express warranty.</p> <p>11. Instructions—Correct Verdict.—It is unnecessary to consider the rulings of the trial court on instructions where no other verdict than that rendered could have been properly found upon correct instructions.</p>

<p>Error to a judgment of the Corporation Court of the city of Buena Vista in a proceeding by motion under section 2462 of the Code for the enforcement of the rights of the seller of personal property who had reserved title thereto. Judgment for the defendants. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Amherst county on an appeal from an order of the board of supervisors of said county. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Deeds&emdash;Acknowledgment&emdash;Judicial Act&emdash;Impeachment.&emdash;Taking and certifying tbe acknowledgment of a deed is regarded as a act in this State, and hence the certifying officer’s of the matters involved has the conclusive force and effect of a judgment and imports absolute verity, and cannot be collaterally attacked. It cannot be impeached even directly, save in a court of equity, and not then except for fraud.</p> <p>2. Judgments&emdash;Res Judicata.&emdash;Where one was a party to another in which his title to a tract of land was put in issue and decided against him, the matter as to him is res judicata.</p> <p>3. Ineancy&emdash;Revocation of Deed&emdash;Proof Required.&emdash;Where the grantor in a deed was, at the date of the deed, on the border line of his majority and acted as an adult, making his own bargain and receiving his share of the purchase money, the evidence of his infancy at that time should be clear and satisfactory to justify a court in depriving an innocent purchaser for value and without notice of land of which he and his predecessors ■ in title had been in undisputed possession for thirty-odd years without any intimation of an adverse claim, though the claimant lived in the neighborhood.</p> <p>4. Deeds&emdash;Possession&emdash;Presumption of Grant&emdash;Evidence.&emdash;Where the origin of the possession is "not accounted for, and would be unlawful unless there had been a grant, length of possession is prima fade evidence, but only prima facie, from which a jury might or might not have presumed a conveyance.</p> <p>5. Limitation oe Actions&emdash;Life Estate&emdash;Fee-Simple&emdash;Merger&emdash;When Statute Begins to Run.&emdash;Possession under a claim of title for a period of fifteen years ripens into a perfect title as well against a life tenant as against others, and if such possessor also has title to the remainder in fee, the fee merges the lesser estate, and the statute of limitations against one claiming an interest as a remainderman begins to run from the time of the merger, and not from the death of the life tenant.</p>

• Appeal from a decree of the Corporation Court of tbe city of Staunton, in a suit brought by an executor for the construction of the will of his testatrix.

<p>Error to a judgment of the Circuit Court of Clarke county on a complaint filed by Harriot S. Turner. Judgment for the plaintiff. Defendant assigns error.</p>

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

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

<p>1. Master and Servant—Boss of dang—Vice-Principal—Safe Place.— Ordinarily the foreman or. boss of a gang of hands employed in executing the master’s orders is a mere fellow-servant with the other members of the gang, but if he is discharging a nonassignable duty of the master he is to that extent a vice-principal. One of these non-assignable duties is to exercise ordinary care to provide a reasonably safe place in which the servant is to work. If the place was originally safe, but has become unsafe during the absence of the servant, and he is ignorant of this fact, and cannot discover it by the exercise of ordinary care, it is the duty of the master to inform him of it, and, in his absence, this duty devolves upon the foreman of the gang, as vice-principal.</p> <p>2. Master and Servant—Unsafe Place—Knowledge of Vice-Principal— Demurrer to Evidence.—Since the jury might have found that the vice-principal of the defendant had knowledge of the danger to which the'plaintiff was subjected, and that the proximate cause of the plaintiff’s injury was the negligent failure of the vice-principal to give him warning of such danger, this court, upon a demurrer to the evidence by the defendant, must so find.</p> <p>3. Master and Servant—Bislcs Assumed by Servant.—An employee only assumes the risks ordinarily incident to the service, and those known to him or so obvious as to be readily observed by, one of his age, experience and mental capacity in the exercise of ordinary care.</p> <p>4. Demurrer to Evidence—Negligence—Contributory Negligence.—On a demurrer to the evidence by the defendant, if, as in the ease at bar, the jury might have found that the proximate cause of the plaintiff’s injury was the negligence of the defendant, and that the plaintiff was without fault on his part, the court must ■ so find.</p>

<p>1. Contbacts—Offer and Acceptance—Completed Contract.—An option to purchase land cannot, without the consent of the vendor, be accepted on any other or different terms from those contained in the option. In the case in judgment, the option on one tract of land provided that the proposed purchaser should pay a stated price per acre for the land, and also reimburse the vendor for certain expenses that he would necessarily have to incur pending an option given by the same vendor to the same proposed purchaser on an entirely different and larger tract. These expenses the proposed purchaser refused to pay, and as the vendor had the right to fix his own terms in the option, and the vendee refused to accede to them, there was no completed contract between the parties for the sale and purchase of that tract of land.</p>

<p>1. Divoece—Desertion—Oase in Judgment—Jurisdiction Declined.— Tbe trial court properly refused to entertain a suit for divorce (on the ground of desertion) brought by the husband, where it appeared that the native domicile, as well as the matrimonial domicile, of the parties was the District of Columbia, to which the plaintiff goes daily as a sleeping car conductor; that he proceeded against his wife by order of publication, and gave her no other notice of depositions taken in the city of Washington or elsewhere; that the affidavit for the order of publication was fatally defective, and no order of publication has been produced and filed in the cause, or noticed by the clerk, and there has been no appearance by the wife, by counsel or otherwise; that the defendant is a non-resident of the State; that the parties never cohabited in this State, and the evidence does not establish a liona fide residence of the plaintiff in the county in which the suit was brought.</p>

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

■Error to a judgment of tire Circuit Court of Nelson county in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.

<p>Appeal from a decree of the Circuit Court of Washington county. Decree for the defendants. Complainant appeals.</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>Error to a judgment of the Circuit Court of the city of Clifton Forge in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg on an application to correct an erroneous assessment of real estate. Judgment for the applicant. Commonwealth assigns error.</p>

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

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

<p>1. Mechanic’s Lien—Affidavit of Agent—Sufficiency—Case in Judgment.—At the end of an itemized account for a mechanic’s lien are these words: “After deducting the credits from the debits, leaves the balance, $7,041.93, due to John Diebold & Sons’ Stone Company, Inc., with interest thereon from the 6th day of January, 1911, until paid. (Signed) John Diebold, President and Agent for John Diebold & Sons’ Stone Co., Inc., Affiant.” Immediately following this is the certificate of the notary, which says: “Personally appeared before me, in my city aforesaid, Mr. John Diebold, and made oath that the matters and things stated in the foregoing account are true, and that the said account is correct.”</p> <p>Held: It sufficiently appears that the affiant was acting as the agent of the corporation claiming the mechanic’s lien, and the affidavit - is sufficient to support said lien.</p> <p>2. Equity—Report of Commissioner in Chancery—Weight Given to.— Reports of commissioners in chancery are prima facie correct and objection must be made to them. When this is done, it is the duty of the court, to examine the evidence returned by the commissioner, and upon which his conclusions are based, and review his conclusions. If the evidence consists of depositions which have been taken by the commissioner, or in his presence, and is conflicting, and his conclusions are clearly supported by competent and unimpeached witnesses, his report will not be disturbed, unless it is clear that the weight of the testimony is contrary to his conclusions. But, even in such case, the court will review and weigh the evidence, and, if not satisfied with the findings of the commissioner, will overrule them. The report will only be accepted as conclusive when the testimony, though conflicting, is evenly balanced, and the report is supported by the testimony of competent and unimpeached witnesses.</p>

The corporation which held the stock subscription assigned the same, for value, to James Mann, who instituted this proceeding in his own name. Judgment for the plaintiff. Defendant assigns error.

<p>1. Specific Performance—Contingent Right of Dower—Refusal to Convey—Objection on Other Grounds.—In the absence of any allegation of fraud, a court of equity will not, at the instance of the vendee, decree the specific performance of a husband’s contract to sell his land, in which his wife has a contingent right of dower, which she refuses to release, where the purchaser demands an abatement of the purchase price or an indemnity by reason of such refusal;' and, where specific performance is resisted on other grounds, it is immaterial that this objection is not made in the answer. The same weight will be given to it as if it had been distinctly and formally presented. The wife is not to be wrought upon by her love for her husband and sympathy in his situation to do that which her judgment disapproves as contrary to her interest, nor is he to be tempted to use undue means to procure her consent.</p>

<p>1. Limitation op Actions—Injury to Property—Nuisance—Cesspools.—■ The limitation to an action to recover damages for injury to the plaintiff’s property by reason of cesspools constructed and maintained by the defendant on his land adjacent to that of the plaintiff is five years, and pleas setting up the statute of limitations of one year and three years, respectively, are bad, and, if objected to, should be rejected.</p> <p>2. Pleading—Insufficient Plea—Objection—Forced to Join Issue—Effect.—If a plea is insufficient and no answer to the action, it should be rejected when objected to, and the plaintiff should ' not be put to an issue upon it. A mental reservation of the court to strike it out during the trial, not acted upon, does not cure the error, and the failure to strike it out constitutes good ground for reversal unless, when all the facts are certified, it affirmatively appears that the plaintiff could not have been injured by having been forced to try his case on the improper plea.</p>

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

<p>Error to a judgment of the Circuit Court of York county in an action of ejectment. Judgment for the defendants. Plaintiffs assign error.</p>

<p>1. Contkacts—Enforcement—Illegal Consideration—Parties m Pari Delicto.—Courts will not aid a party to enforce an agreement made in furtherance of objects forbidden by statute, the common law, or the general policy of the law, or to recover damages for its breach, or to recover back money paid under it when the agreement has been executed in whole or in part. If the parties are in pari delicto and one of them has performed the illegal agreement in whole or in part, he cannot recover from the other party that which he has parted with under the contract. The law simply leaves the litigants in the plight in which they have seen fit to place themselves without undertaking to balance benefits or burdens. If either derives a benefit from the transaction, it results from the act of the parties and not of the law. In its essence the doctrine is not founded upon the interest or supposed contractual rights of the parties. All such considerations are subordinated to the common weal, and in the eye of the law the contract confers no rights upon the parties. If property of the plaintiff is in the possession of the defendant and he is forced to rely upon the illegal contract in order to recover it, the law will extend him no aid.</p> <p>2. Contkacts—Illegal Consideration—When Admissible as a Defense.— Although a plaintiff can make out his ease without disclosing the illegal character of the contract in suit, the defendant will be permitted to set up such illegality as a defense whenever the court can see that to permit him to do so will defeat the object of the illegal transaction and promote the interest of society and the policy of the law. This is permitted for the public good and not out of any consideration for the defendant.</p> <p>3. Contkacts—Illegal Consideratim —Mutuality of Interest.—When the evidence shows mutuality of interest on the part of buyer and seller with respect to the illegal use to be made of the property, there can be no recovery by the seller of either the property itself or the purchase price thereof.*</p> <p>4. Appeal and Ekkok—Instructions—Invited Error—Estoppel.—A party who invites error will not be beard to complain of having misled the court. This principle is not affected by the fact that the party had asked for other instructions propounding a different doctrine which were refused and the ruling excepted to. He should have stood by his exception.</p> <p>5. Statutes—Construction—New Remedy—Cumulative Remedy.—A statute prescribing a new remedy for an existing right should never be construed to abolish a pre-existing remedy, in the absence of express words or necessary implications.</p>

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

<p>1. Evidence—Admissions—Admissibility—Lacle of Interest "When Made. Tbe general rule is that the declarations of a party to the suit, or a person who has an interest therein, are admissible in evidence against such party or such person. One of the qualifications of the rule, however, is that the declarations or admissions which are thus receivable in evidence must be those of a party or person having at the time they are made some interest in the matter afterwards in controversy in the suit to which he is a party or in which he has an interest.</p> <p>2. Evidence—Insurance—False Representation of Age—Admission of Assured—When Admissible.—In an action on a life insurance policy, where defense is made on the ground that the insured had falsely and fraudulently misrepresented his age or the condition of his health, his declarations as to his age or his health cannot be received in evidence against the beneficiary in the policy to prove the truth of the representations, but after evidence has been introduced tending to show that his age or health was different from what he represented it to be, such declarations may be received to show that he had knowledge of his age or the condition of his health and falsely and fraudulently misrepresented the same.</p> <p>3. Evidence—Verbal Admissions—Received With Caution—Lapse of Time—Failure to Identify—Rejection—Rot Reversible Error.— Evidence of verbal admissions ought to be received with great caution because of the liability of witnesses to mistake or misunderstand the admissions when made, and to remember inaccurately or to misrepresent it afterwards. This rule applies with peculiar force where such evidence is to affect the rights of third persons. Where the declarations were made in a casual conversation five or six years before the witness testified, and do not appear to have been distinctly remembered or precisely identified, the ruling of the trial court in either admitting or rejecting them ought not to constitute reversible error.</p>

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

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

<p>1. Assignments—Partial Assignment—Deed of Trust—How action Brought.—A deed of trust on a chose in action is an assignment pro tanto of the chose, and an action thereon in the name of the assignor for the benefit of himself and the creditor secured is properly brought.</p> <p>2. Contracts—Consideration—Promise—Landlord and Tenant.—If a lessee contracts to erect buildings on the leased premises, and the lessor covenants that he will at the end of the lease take the buildings so to be erected at a fair valuation, this constitutes a promise by the lessor, supportd by a valuable consideration, to pay the lessee for such buildings.</p> <p>3. Landlord and Tenant—Building 6y Lessee—Lessor to Talce at Valuation—How Value to Be Ascertained in Case at Bar.—If a lessee covenants to erect buildings on the leased premises to cost not less than $2,000 nor more than $3,000, and the. lessor covenants that at the termination of the lease he will take the buildings so to be erected at a fair valuation to be ascertained by considering what it would cost to erect them at the time of such valuation and deducting therefrom a reasonable allowance for the wear and tear thereof, this does not require the appraisers to start with a maximum valuation of $3,000 for the building and deduct therefrom the reasonable wear and tear, but the appraisers are to take the estimated costs at the time of valuation, whatever that may be, and deduct therefrom the reasonable wear and tear, and the balance to an amount not exceeding $3,000 is what the lessor is to pay. That is the utmost extent of his liability, although, at a fair valuation, the building may be worth much more, but the limitation was not designed, nor has it the effect, to prevent the recovery by the lessee of the fair value of the buildings at the time of their surrender to the lessor, provided such value is not in excess of $3,000.</p> <p>4. Landlord and Tenant—Tenant From Year to Year—Covenants of Grantor—Continuation.-—Where property is leased for a fixed and definite term and the lessor agrees to take at valuation, at the end of that term, buildings to be erected on the leased premises by the lessee, and the tenant is permitted to hold over from year to year for six years without any new contract, express or implied, this carries with it a continuation of the lessor’s promise to pay for the buildings at the termination of the relation of landlord and tenant. The law presumes the holding to be upon the terms of the original lease, subject to the same rent and to the covenants of the original lease, so far as applicable to the new condition of things.</p> <p>5. Appeal and Error—Harmless Error—Irrelevant Evidence—Cost.— The fact that the reading of a will in evidence was unnecessary and entailed a useless expense does not constitute reversible error.</p> <p>6. Appeal and Error—Case Heard by Trial Court—Evidence Sufficient to Support Judgment.—Where the whole matter of law and fact is submitted to the trial court, without the intervention of a jury, its judgment will not be set aside where the evidence, considered as on a demurrer to the evidence, is sufficient to support the judgment.</p>

<p>1. Navigable Waters—Bridge—Authority of Legislature.—Where a bridge has been built over a navigable stream under authority of an act of the legislature, the expediency of building the bridge is not thereafter an open question.</p> <p>2. Appeal and Error—Objections for First Time—Case at Bar.—Where it was agreed by counsel in the lower court that a bridge complained of was constructed “under legal authority” and the jury has been instructed, at the instance of the plaintiff, that the legal power of the defendant “to build the bridge in its present location is not an issue before them,” the plaintiff will not be permitted to contend in this court for the first time that the bridge was built without legal authority.</p> <p>3. Instructions—Evidence to Support.—Instructions are properly refused when there is no evidence tending to prove the facts upon which they are based.</p> <p>4. Navigable Waters—Land Between Low Water and Navigability— Ownership—Injury to—Damages.-—-While the fee-simple title of a riparian owner on navigable water ends at low water mark, yet between that point and the line of navigability he has a right known as riparian right, which is valuable, and, when once vested, the owner cannot be deprived of it, except for the public good, and, if taken or injured for the public good, the owner is entitled to due compensation. This riparian right is not a mere easement to pass over the water or a privilege to use the surface, but is property in the soil under the water. Upon it the owner may fasten or build structures, such as wharfs, piers or bulkheads, to the line of navigation. If any of these property rights are depreciated in value by reason of the construction and maintenance of bridges by others, the owner is entitled to recover damages therefor.</p> <p>5. Instructions—Ignoring Evidence—Directing i'erdiet.—An instruction which ignores the evidence in a case and directs a verdict for the plaintiff is properly refused.</p> <p>6. Instructions—Conflict—Bead as a Whole—Damage to Land by Trespass—Uses in Fear Future.—In an action of trespass to recover damages done to the plaintiff by the defendant by erecting a bridge across a navigable stream, the plaintiff asked the court to instruct the jury that, in considering whether or not the bridge damaged the property of the plaintiff, they must consider any and all uses, not only to which the property had been put, but to which it might be put. The court added at the end of said instruction the words “in the reasonably near future,” and as amended gave it, and this is held not to be to the prejudice of the plaintiff. The instruction, as amended and given, is not in conflict with an instruction given at the instance of the defendant, telling the jury that they must consider the value of the property immediately before and immediately after the construction of the bridge, by taking into consideration its uses, surroundings and capabilities, not only for the present, but for the reasonably near future. Instructions must be read as a whole.</p>

<p>1. Appeal and Error—Two Trials Belov;—Look io Evidence on First Trial.—Where there have been two trials of an action, the statute requires this court to look first to the evidence on the first trial, and if the trial court erred in setting aside the verdict on that trial, to set aside all proceedings subsequently to that verdict, and to enter up judgment thereon.</p> <p>2. Appeal and Error—Two Trials Beloto—Refusal of Proper Instruction on First Trial—~No Evidence at Second Trial.—Where there have been two trials in the court below, and the record does not disclose on what ground the court set aside the first verdict, but does show that an instruction was asked for by the defendant, which should have been given, but was refused, which would of itself have been good ground for setting aside that verdict, and no evidence at all was offered on the second trial, and judgment was entered for the defendant, this court, on a writ of error, will affirm the judgment.</p>

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

<p>i. Master and Servant—Tort of Servant—Damages—Compensation— Punishment.—The master is liable to make compensation for injuries done by his servant, within the scope of his employment, although not previously authorized nor subsequently ratified by the master, but he cannot be held for exemplary or punitive damages merely by reason of wanton, oppressive or malicious intent on the part of his servant. In order to subject the master to punitive damages for the act of his servant, the act must have been previously authorized or subsequently ratified by the master.</p> <p>2. Master and Servant—Tort of Servant—Failure to Discharge—Ratification.—The mere failure of the master to discharge his servant after the commission of a wrongful act by the servant does not constitute a ratification of such act.</p> <p>3. Instructions—Read as a Whole—Different Theories of Case.—Instructions are to be read as a whole, and if, when this is done, it is seen that the defendant’s theory of the case was correctly and strongly presented, it is not error to give an instruction presenting the plaintiff’s theory of the case.</p> <p>4. Carriers—Assault on Passenger—Damages—Limit—Case at Bar.— In an action by a passenger against a railroad company to recover damages for an assault committed by the conductor on a passenger, where the damages are laid in the declaration at $10,000, it is not error to instruct the jury that, in assessing the damages of the plaintiff, they shall “assess his damages at such sum as will compensate him for such physical injuries and mental sufferings, if any, as were occasioned by such assault, not exceeding the sum of $10,000 claimed in the declaration.” The instruction is not amenable to the objection that it gave the jury to understand that there was no limit to the amount they might award except the $10,000 claimed in the declaration.</p> <p>5. Carriers—Railroad Conductor—Conservator of Peace—Object of Section nu-d (7/o) of Code.—Section 1294-d, paragraph 45, of the Code, which constitutes the conductor of a railroad train a peace officer of the State, was never intended to release common carriers from the high and important duty resting upon them to diligently care for and protect their passengers. Its object was to increase their facility for affording the traveling public protection by making their conductors conservators of the peace.</p> <p>6. Cabbiebs—Railroad Conductor—-Functions—Peace Officer—When So Acting—Question for Jury.—The functions of a conductor of a railroad train are primarily as a representative of the railroad company, and his duty to the passenger is the same as that of the company. His duties as conservator of the peace are merely incidental to his office of conductor-. Neither he nor his company can make use of his incidental functions as a conservator of the peace as a pretext to shield themselves from liability for his wrongful and oppressive acts as conductor. Whether or not, in a given case, the conductor was, in fact and in good faith, acting in the capacity of conservator of the peace, and not in his capacity of conductor, is a question for the jury under all the facts and circumstances of the case, and if it is relied on to shield the company from liability the company must show the necessity and good faith of the transaction.</p> <p>T. Cabbiebs—Passenger—Ceasing to Be Passenger—Assault Toy Conductor—Question for Jury.—Whether or not a passenger who fails to pay a small extra sum demanded of him because he had not purchased a ticket has lost his rights as a passenger, and whether the conductor was justified in making a violent and injurious assault upon him, are questions for the jury to determine, upon all the facts and circumstances of the case, under proper instructions from the court.</p>

<p>1. Evidence—Survivor of Transaction—Will as a Matter of Transaction.—A will is the sole act of the testator, and its execution is not such a contract, matter or transaction as comes within the purview of section 3346 of the Code excluding the survivor of a contract or other transaction from testifying. A widow, therefore, is not excluded by said section from testifying as to the execution of the will of her late husband.</p> <p>2. Evidence—Husband and Wife—Privileged Communications—Wills.— Under the provisions of section 3346-a of the Code, neither husband nor wife can, without the consent of the other, be examined in any case as to any communication made by the one to the other while married, nor can such communication be revealed, without such consent, after the marriage relation ceases. The statute is founded on public policy and applies to “any communication” between them, of any nature, whether confidential or not, and it is immaterial by whom or for what purpose the husband or wife may be called as a witness, nor whether for or against each other. Conversations, therefore, between a husband and his wife as to the making of his will cannot be given in evidence by his widow, no matter by whom she is called as a witness.</p> <p>3. Wills—Erasures—Presumption.—An erasure of words in a holograph will is presumed to have been made by the testator, in the absence of proof to the contrary.</p> <p>4. Appeal and Error—Verdicts—Receiving Improper Testimony—When Harmless.—The error of the trial court in improperly receiving evidence is harmless, where the verdict of the jury is supported by other sufficient evidence and was approved by the trial court.</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 Craig county.</p>

<p>1. Criminal Law—Venire—Drawing—Presence of Attorney for Commonwealth.—While juries in civil cases may be drawn in the presence of the. attorney for the Commonwealth, there is no authority for his presence when juries are to be drawn in felony cases. He is one of the parties to the proceeding in which the jury is to sit, and it has always been the policy of our law, as far as human caution could reasonably provide, to see that the officials who select juries, as well as the jurors themselves, should stand impartial and unprejudiced. But whether or not the unauthorized presence of the attorney for the Commonwealth in the case at bar, at the drawing of the jury, was probably prejudicial to the accused, it is not decided.</p> <p>2. Jurors—Selection.-—The rule of the common law is that no one should take part in the selection of jurors who does not stand indifferent between the parties, and there is nothing in our statutes which changes that rule.</p> <p>3. Criminal Law—Venire Facias—Wrong Number of Jurors—Code, Section 4018-—-General Order of Judge for Different Number.— Under the provisions of section 4018 of the Code, the clerk has no power or authority to issue a venire facias iu a felony case directing the sheriff to summon twenty-six persons from a list of thirty names, unless the judge of the court, for good cause shown, has directed it, and a previous general order entered by the judge of the court of his own motion before the offense was committed cannot authorize the clerk to draw or have summoned a different number of jurors from that prescribed by the statute. The statute directs twenty to be drawn and sixteen to be summoned, but provides that “for good cause shown in any felony case, the judge of the court in term time or vacation may direct more than twenty names to be drawn and placed on the list.” The provision cannot be departed from except as provided by the statute.</p> <p>4. Cbiminal Law—Fern-re—Wrong Number of Names—Intentional Selection.—If the clerk, in obedience to an improper general order of the judge, makes out the venire facias in a felony ease for and directs the summoning of a different number of jurors from that prescribed by section 4018 of the Code, this is an intentional irregularity, and not within the curative provisions of said section.</p> <p>5. Cbiminal Law—Venire Facias—Objection—Motion After Verdict.— An objection to the action of the trial court in not directing a venire facias to be issued to complete the panel when .a sufficient number of jurors was not obtained from the persons summoned and in attendance on the court, as required by section 4019 of the Code, comes too late after verdict.</p> <p>6. Cbiminal Law—Jurors—Selection—Statutory Provisions to Be Followed.—The statutes in reference to the selection of jurors in felony cases were enacted, not only for the purpose of securing fit jurors, but to avoid even the suspicion of partiality or corruption in their selection. The fact that it may sometimes be inconvenient to the court or cause delay in the trial of a cause is no sufficient reason why they should not be strictly and rigidly enforced. The legislative intent in these matters should absolutely control the judiciary. The courts have no other duty to perform than to execute the legislative will without any regard to their own views as to the necessity or wisdom of the enactments.</p>

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

<p>1. Appeal and Error—Refusal of Writ—Amended Petition.—Where a petition for a writ of error has been, rejected by this court on the ground that the judgment complained of is plainly right, and the order of rejection so states, no amended or other petition therein can afterwards be entertained. The court is without jurisdiction to entertain any other petition with respect to it. Such is the mandate of section 3466 of the Code.</p>

<p>1. Indictments—Sale of Liquor Without License—Allegation of Time— Surplusage.—An indictment for unlawfully selling liquor without a license sufficiently charges the time of the sale when it charges that it was made “on the........day of............ in the year one thousand, nine hundred and ........ and” within the last two years. The words quoted may be treated as surplusage, and what remains is a sufficient allegation of the time of the sale.</p> <p>2. Cbiminal Law—Plea—Demurrer and Replication Thereto—Effect.— To a plea in abatement filed by a defendant in a criminal prosecution, the attorney for the Commonwealth may demur or reply, but he has no right to do both. If, after his demurrer is overruled, he replies to the plea, the demurrer will be treated as waived or withdrawn, although the prisoner objected to the filing of the replication and excepted to the ruling of the court overruling his objection.</p> <p>3. Gband Juby—Presence of Attorney for Commonwealth.—While it is the policy of the statute of this State (Code, section 3988) to keep the grand jury independent of all outside interference, and free and untrameled in their deliberations, and it is highly reprehensible for any attorney for the Commonwealth to violate in any degree either the terms or the policy of the statute, an indictment will not be quashed because the attorney for the Commonwealth appeared before the grand jury during their deliberation when not sworn as a witness, where it appears from the evidence that he did not advise them to find the indictment, did not know of their finding until the presentment was made, and was not in the room when they had under consideration or deliberation the indictment or the presentment upon which the indictment was .found.</p> <p>4. Intoxicating Liquobs—Indictment for Selling Whiskey—Proof of Sale of “Corn Liquor.”—An indictment for illegally selling without license “whiskey,” brandy, wine, beer, malt liquors, and mixtures thereof” is sufficiently sustained by proof of such, sale of “corn liquor” in the absence of any adverse testimony. It is a matter of common knowledge that the term “corn whiskey” and “com liquor” are used interchangeably, alternately and indifferently, and, upon proof of a sale of “com liquor,” the jury have the right to assume that it is of that class which is alcoholic or spiritous, distilled from corn, and comes within the terms of the statute prohibiting the sale of whiskey.</p> <p>5. Courts—Jurisdiction—Violation of Revenue Laws—Sale of Liquor in Local Option Territory—Dickenson County.—An indictment for unlawfully selling ardent spirits in Dickenson county, without a license so to do, is an offense against the revenue laws of the State of which the circuit court of said county has concurrent jurisdiction with the justices of the peace of said county, although no license for such sale could be granted in said county.</p>

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

<p>1. Criminal Law—Gaming—Gode, Section 8815—A, B, G and E. O. Tables—Lilce Tables—Crap Table.—On a warrant charging that the defendant “did unlawfully keep and exhibit a certain gaming table called crap table, which said device is in nature of A, B, C and E. O. table, which said game was played with dice, against the peace and dignity of the Commonwealth of Virginia,” there can be no conviction where there is no evidence that “crap” is a game of like kind'with an A, B, C, or E. O. table. Section 3S15 of the Code, under which conviction is sought, does not forbid the game of “crap” eo nomine, and if the evidence does not show that it is a game of like kind with those named in the warrant there can be no conviction. If the warrant had followed the statute and enumerated all of the games to which it refers, it is not decided whether the same standard would be applied in determining whether “crap” is within the games prohibited by the statute.</p>