Volume 116 — Virginia Reports

<p>1. Carriers—Live Stock—Contract Against Injury without Negligence.—A carrier of live stock may lawfully stipulate that it shall not be liable for loss or damage arising from the condition of the animals themselves, or which may result from their nature or propensities, but that such risks shall be assumed by the shipper. Furthermore, a stipulation that the shipper releases the carrier from liability for delay, injuries to or loss of said animals, unless caused by the negligence of the carrier, its age ts or employees, is a valid stipulation.</p> <p>2. Carriers—Live Stock—Evidence of Injury—Burden of Proof.— In an action by a shipper against the carrier of live stock to recover damages for injury to the stock while in transit, the shipper must show some injury to the stock which could not be the result of the inherent nature or defects of the stock, - before the burden is cast upon the carrier to show that it was not in fault.</p> <p>3. Appeal and Error—Verdicts—Evidence to Support—Negligence.— While the verdict of a jury on a question of negligence ought not to be disturbed where the evidence is such that reasonable men might fairly differ as to whether or not there was such negligence, still the existence of negligence cannot be left entirely to conjecture, and a verdict based upon no sure grounds of inference cannot be upheld.</p> <p>4. Appeal and Error—Proper Verdict—Admissibility of Evidence— Instructions.—Where the jury could not have properly found any other verdict than the one found, this court will not notice rulings of the trial court on the admission of evidence, nor review its action in giving and refusing instructions.</p>

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

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

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

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

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

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk.- Judgment for the defendant. Informant assigns error.</p>

<p>1. Appeal and Error—Taxation—Judgment for Taxes—Agreement Not to Appeal.—Sections 702 and 702-a of the Code (1904) refer only to the settlement by the Auditor of doubtful, old and disputed claims of long standing on the books of the office. Such settlements, to be binding, must have the approval of the Attorney General and the judge of the circuit court of ' -the city of Richmond; but those sections have no application to an agreement by the Auditor to accept as final the decision .of the trial court on a motion to correct an erroneous assessment, fixing the amount of taxes due the State. Such an agreement made in good faith by and with the advice and consent of the Attorney General, who represented and conducted the litigation on behalf of the Commonwealth, is valid ’ • and binding on the State.</p> <p>2. Taxation—County Levies—Code, Section 508—Omitted Property.-— Section 508 of the Code with reference to taxes on omitted property applies to taxes due to the counties, cities and towns as well as to taxes due to the Commonwealth. While taxes due to the political subdivisions of the State, are, for convenience, frequently designated levies, yet in numerous instances the words “taxes” and “taxation” are indifferently applied to State, local and municipal assessments. Whiting v. Town of West Point, 89 Va. 471, 473 on this point disapproved.</p> <p>3. Appeal and Error—Counties—-Cities. — Counties and cities may sue and be sued, and have the right of appeal from an adverse decision both at law and in equity.</p> <p>4. Taxation—Assessment of Taxes—Procedure—Taxes Subsequently Accruing.—If a motion to correct an erroneous assessment of taxes for the year 1911 is still pending when the tax of 1912 falls due, it is not error to assess the petitioner with the taxes of 1912. The proceeding is informal, and it would he an idle ceremony to put the litigants, who are all before the court, to the expense and delay of filing a new application.</p>

. Error to a judgment of the Hustings Court of the city of Richmond on a petition by said city to correct an erroneous assessment. Judgment for the petitioner, Commonwealth assigns error.

<p>1. Taxation—Tax Deed—Recitals.—The recitals in a tax deed from the clerk to the purchaser are prima facie correct, under the terms of the statute, and are to be accepted as true in the absence of any evidence to the contrary.</p> <p>2. Taxation—Tax Deed—■Annulment—Limitation.—Under the provisions of section 661 of the Code no suit can be brought to set aside, cancel or annul a tax deed made according to the statute, except for fraud, unless it be brought within two years after Such deed is duly admitted to record in the county or corporation where such real estate is situated. In the case at bar, there is neither averment nor proof of fraud, and the suit was not brought within the two years.</p>

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

<p>1. Mechanic’s Lien—Materials Furnished as Entirety—What Account Must Show.—Where a mechanic’s lien is sought to be docketed for materials furnished as an entirety, the account filed as a basis for the lien must show that the materials furnished were contracted for as an entirety for a specific sum.</p> <p>2. Mechanic’s Lien—Claim-—Time of Filing.—A claim of a mechanic's lien filed more than sixty days after work on a building has terminated and the owner has accepted it, and settled with the general contractor, comes too late. The filing of the claim within the time prescribed by statute is one of the essential requisites in perfecting the lien. If not so filed no lien is acquired.</p> <p>3. Mechanic’s Lien—Failure to Acquire—General Debt—No Lien.— If a material man fails to acquire a mechanic’s lien on the building into which his materials are placed, the amount due him therefor by a sub-contractor is a general unsecured' debt due to the material man, and upon the bankruptcy of the sub- ■ contractor, the amount due him by the general contractor passes to his trustee as assets of the bankrupt. This result is not affected by the fact that in a suit by the material man to enforce a supposed lien on the building, the general contractor pays into court, the amount due by him to the sub-contractor and asks that it be so applied as to protect him.</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. Interpleaded—Final Decree.—The only decree which can be made in favor of the complainant and against the defendants in an interpleader suit is that the bill was properly filed, giving the complainant leave to bring the property in dispute into court, and allowing him costs out of the property, discharging him from further liability, and directing the defendants to inter-plead and settle the conflicting claims among themselves. When such a decree is made, and the property is brought into court and accepted by the court, the decree is final as to the complainant.</p> <p>2. Appeal and Error—Decree Final as to One Party.—A decree may be final as to one party and not as to another, depending upon the circumstances of the case.</p> <p>3. Appeal and Error—Amount in Controversy—Collateral Effect of Judgment•—Former Decisions.—The principle heretofore announced that where the effect of a judgment in a particular case is to draw in question the validity of a claim to an amount of greater value than the jurisdictional sum of the appellate court, although the amount involved in the present action is not as large as the minimum required, a writ of error will lie, if it appears that the judgment conclusively settles the rights of the parties to the larger amount, will not be extended further than the adjudged eases have gone.</p> <p>4. Appeal and Error—Amount in Controversy—Collateral Effect— Case in Judgment.—Where the boundary between two tracts of land is incidental to the ownership of the royalties on slate taken from the land, this court has not jurisdiction of an appeal from a decree determining the ownership of ••such royalties where they amount to less than three hundred dollars.</p> <p>5. Appeal and Error—Showing Jurisdiction.—The jurisdiction of the court must be made affirmatively to appear by the appellant.</p>

<p>Appeal from a decree of the Circuit Court of Madison county. Prom a decree overruling an exception to a commissioner’s report, the complainant appeals.</p>

<p>1. Payment—Check,.—A check is not a payment except by express agreement; and where a debtor pays a creditor by check, which is fraudulently obtained from the creditor and paid on a forged endorsement, the debtor is not discharged and may be again called upon to pay his debt.</p> <p>2. Bills and Notes—Check—Forged Endorsement. — The endorser of a check upon which there is a prior forged endorsement is obliged to make it good to a subsequent innocent holder for value. By the terms of the Negotiable Instruments Act, by his endorsement, he warrants; That the instrument is genuine and in all respects what it purports to be; that he has good title to it; and that all prior parties had capacity to contract.</p>

<p>1. Eminent Domain—Necessity for Public Use—What Constitutes.— Before a company can exercise the power of eminent domain the general public must have a definite and fixed use of the property to be condemned, a use independent of the private person or private corporation, in whom the title of the property, when condemned, will be vested—a public use which cannot be defeated by such private owner, but which public use continues to be guarded and controlled by the general public through laws passed by the legislature. The general public must have the right to a certain definite use of the private property on terms and for charges fixed by law, and the owner of the property must be compelled to permit the general public to enjoy it. The public must have a legal right to the use of the property which cannot be gainsaid, denied or withdrawn by the owner. The charter under consideration falls far short of these requisites.</p> <p>2. Eminent Domain—Public Use—Legislative Declaration.—Because the legislature has assumed to grant the right of eminent domain, and the grant has been accepted, it does not follow that the grantee is a public service corporation. The legislature cannot make a use public by declaring it to be such. The question at law is whether the declared uses are in law public uses, and that is a question which the courts must determine.</p> <p>3. Eminent Domain—Charter Powers and Duties—Course of Action.—The status of a company as a public service corporation with the power of eminent domain, must be determined not by what it actually does, or intends to do, but by what its charter prescribes it must do by way of public duty. The charter of the company, not its acts, must determine its status as a public service corporation.</p> <p>4. Eminent Domain—Water Companies—General Statutes.—The general statutes of the State do not confer the right of eminent domain upon water companies only authorized by their charters to do a private business. They apply to corporations chartered for the public use and benefit. When “water supply companies” were included in the meaning of the term “public service corporations” only such companies were intended as had charters which clearly made them public service corporations.</p>

<p>1. Damages—Future Damages.—While it is not error, in instructing the jury in a personal injury case on the measure of damages, to tell them that they may take into consideration such damages as will naturally, reasonably and probably result to the plaintiff in the future as consequences of his injuries, it would be better to state that the future damages, like all other damages allowed, must be ascertained from the evidence before them.</p> <p>2. Carriers—Duty to Passengers.—It is the duty of the carrier of passengers to use the highest degree of care for their safety known to human prudence and foresight, and it is liable for the slightest negligence against which human care and foresight may guard. This degree of care is required and applies not only to the manner in which its train is being run by its engineer, but also to the running gear and equipment of the engine, tender and cars, and to the way in which its road bed is constructed, and its ties and rails are laid and maintained, and if the carrier fails to exercise such care in any of these particulars, and such failure causes a derailment which results in injury to a passenger the carrier is liable therefor.</p> <p>3. Carriers—Duty to Passengers—Instructions.—After the jury has been instructed as to the duty owing by a carrier to a passenger as set forth in the last preceding paragraph it is error to refuse, when requested, to further instruct them “that a railroad company is not an insurer of its passengers, but merely has to use the highest degree of practical care for their safety, and if the jury believe from the evidence that the defendant used such care in this case, they must find for the defendant." If the defendant fully performed the duty devolved upon it, it was entitled to a verdict.</p> <p>4. Carriers—Passengers—Derailment—Negligence—Instructions — In an action by a passenger against a carrier to recover for an injury inflicted by a derailment no specific act of negligence on the part of the carrier need be proved. The jury may find for the plaintiff upon proof of the mere fact of derailment and injury, and an instruction which ignores this, or is ambiguous or misleading on this point, should not be given.</p> <p>5. Carriers—Passengers—Derailment—Negligence—Evidence—Burden of Proof.'—-In an action by a passenger against a carrier to recover for a personal injury inflicted by a derailment of the carrier’s cars, the burden is on the passenger to establish the negligence of the carrier. This burden does not shift, but continues throughout the case. The passenger makes out a prima facie ease, by the aid of a legal presumption, upon proof simply of the derailment and consequent injury to him while a passenger, but when evidence is offered to rebut the presumption and tending to show that it has discharged the duty imposed upon it, it becomes a question for the jury to determine, upon the whole evidence, whether or not the carrier has exercised that high degree of care required of it.</p> <p>6. Carriers—Passengers—Derailment—Accounting for Accident.— In order to rebut the presumption of negligence on the part of a carrier arising from a derailment resulting in injury to a passenger, the carrier is not bound to satisfactorily account for the cause of the accident. Some accidents are inexplicable, and to hold the carrier bound, under all the circumstances, to explain the cause, would, in such cases, impose an impossibility upon the carrier, and render it practically an insurer of the safety of the passenger injured. Washington R. Co. v. Bouknight, 113 Ya. 696, disapproved.</p> <p>7. Carriers—Passengers—Damages—Argument of Counsel.—In an action by a passenger against a carrier to recover damages for a personal injury resulting from the carrier’s negligence, the measure of recovery is compensatory and not punitive, hence counsel should not be permitted to argue before the jury matters which would prejudice them against the officials of the carrier, and tend to cause a verdict which would punish them and not merely compensate the passenger for the injury he has suffered. While much latitude is properly permitted in argument by counsel, the court should always keep them within the issues and the evidence.</p>

<p>1. Navigable Waters—James River.—The legislative declarations with respect to James river and the decisions on the subject make it manifest that James river, above tidewater, is now and has been a navigable stream for too long a period for the fact to now be questioned.</p> <p>2. Navigable Waters — Riparian Owners—Estoppel—Laches.—The State of Virginia has for over a century, by numerous acts, asserted her right to control and dispose of the waters of James river above tide, and, in view of the vast property rights that have been acquired under and by virtue of the State’s long recognized right to control said river above tide and dispose of its waters, it is now too late for the appellant, as riparian owner, to claim rights in said river superior to those so long exercised by the State, whether said claim be asserted under the laws of England under which appellant claims, or otherwise.</p> <p>3. Navigable Waters-—Riparian Owners—Ches. & O. R. Co.—Rights. —More than a century ago the State granted to a canal company the power to take an unlimited amount of water from James river for the purpose of navigation and for power purposes. Under various grants from the state broad powers, rights and privileges were conferred, and large enterprises have grown up, and many important and costly water privileges and rights have been acquired from said canal company and its successors. All of the rights, property and franchises acquired by the Canal Company have by successive acts and conveyances become vested in the Chesapeake and Ohio Railway Company, which company is clearly the grantee of the State of Virginia of the water of James river, for certain purposes. Under various grants from the State broad powers, dinary riparian owner’s rights upon a navigable stream.</p> <p>4. Equity Pleading—Exhibit with Demurrer—Appeal and Etror.— It is an unusual practice to file an exhibit with a demurrer to a bill, and it is not approved. Where the complainant has filed with his bill as an exhibit a selected portion of another record, and it is necessary, in order to show the real facts established by such selected portion and the real value thereof, to file an additional paper from such record, the proper practice is to move the court to require the complainant to file with the bill such additional part as may be necessary from the other record. Practically the same result was accomplished in the trial court by treating the exhibit filed with the demurrer as though it had been filed with the bill, and while this method of procedure is not approved, it would be a vain and useless thing to remand the cause to have the exhibit brought into the cause in a regular way, and as there was no objection made to the mode of procedure in the trial court, it will be considered in this court as a part of the record.</p> <p>5. Navigable Waters — Riparian Owners—Laches—After the long silence and acquiesence of the appellant in the openly asserted rights of others, a court of equity will not lend its aid to the destruction of vast property rights and privileges that have become vested on the faith of the State’s ownership and control of the waters of James river, and its right to dispose of the same in its. discretion.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond in a condemnation proceeding. Judgment for the defendants. Petitioner assigns error.</p>

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

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

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

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

<p>Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in an action of assumpsit. Judg-ment for the defendant. Plaintiffs assign error.</p>

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

<p>1. Wills—Probate—Jurisdiction.—The whole subject of probate of wills rests upon and is regulated by statute law, and the courts, in admitting a will to probate are confined to the simple question, whether the paper admitted to probate is the true last will and testament of the deceased, and cannot be extended further, for the jurisdiction of a court to probate is not to ascertain and enforce rights of property but to establish, preserve and perpetuate an important muniment of title.</p> <p>2. Appeal and Error—Jurisdiction—Limitation of Actions.-—-The jurisdiction of this court rests wholly upon the written law and can be exercised only in obedience to the constitution and laws passed in pursuance thereof. Statutes of limitation are deemed statutes of repose, and this conception of such statutes' applies with peculiar. force to limitations upon the right of appeal. When the legislature has prescribed the method for the exercise of the right of a,ppeal or supervision, such method is exclusive, and neither court nor judge can modify these rules without express statutory authority, and then only to the extent specified.</p> <p>3. Wills—Appeal from Clerk—Limitation—Code (1904) Sections 2639-a and 2934.—The right of appeal from the order of a clerk admitting a will to probate under section 2639-a of the Code (1904) is more in the nature of an appeal than a writ of error. It is assimilated to an appeal in that there is a continuation of the same case upon the same evidence, and the case is simply heard de novo in the higher tribunal. The appeal is not the bringing of a “new suit/,” but a prolongation and continuance of the old one, and hence the time for taking the appeal prescribed by section 2639-a of the Code (1904) is not extended by the provisions of section 2934 of the Code (1904) giving an extension in certain case “if there be occasion to bring a new suit,"</p> <p>4. Statutes—Construction.-—In the construction of statutes, the courts have hut one object, to which all rules of construction are subservient, and that is to ascertain the will of the legislature, the true intent and meaning of the statute, which is to be gathered by giving all the words used their plain meaning, and construing all statutes in pari materia in such manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious and just in their operation.</p>

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

<p>1. Appeal and Error&emdash;Records&emdash;How Brought Up&emdash;Gross-Error.&emdash; Ample provision is made by the statute to have so much of the record as is necessary to fairly present the whole case to the appellate court brought up, and the right of the appellee to assign cross-error is safe-guarded by Rule VIII of the rules adopted by this court. This is the usual and orderly method of procedure and the practice adopted in this case, whereby the record of the trial court was divided and one part of it brought up by an appeal by one party and the other part by an appeal by another party, is disapproved.</p> <p>2. Insane Persons&emdash;Suit to Sell Lands&emdash;How Brought&emdash;Failure to Follow Statute&emdash;Void Proceedings.-&emdash;-A suit for the sale of the lands of persons under disability brought under chapter 117 of the Code must substantially comply with the provisions of the statute otherwise the proceeding will be void. If a suit for the sale of the lands of an insane person be brought section 2616 of the Code, then the requirements of the other sections of chapter 117 of the Code must be complied with, and if such suit can be brought under section 2436-b of the Code (1904) then the procedure must conform to sections 2433, 2434 and 2435 of the Code, neither of which was done in. the case in judgment.</p> <p>3. Insane Persons&emdash;How Sue&emdash;Statutory Proceedings.&emdash;An insane person may sue by next friend when the suit is brought under the general jurisdiction of the court, for example, á suit to set aside a deed for fraud, but this rule has no application to a suit brought under a statute which confers the jurisdiction and at the same time prescribes the mode of procedure as in case of sales of land of insane persons.</p> <p>4. Judgments—Res Judicata—Collateral Attach,-—A judgment on the merits, fairly rendered, hy a court of competent jurisdiction, having cognizance both of the parties and the subject matter, however erroneous it may he, is conclusive on the parties and their privies until reversed or set aside in a direct proceeding for that purpose, and is not amenable to collateral attack.</p>

<p>1. Officers—Residence—Voters.—The meaning of the words “resident ’ or “residence ’ is to be determined from the facts and circumstances taken together in each particular case. For the purpose of voting and holding office a man cannot have more than one legal residence. ■ A legal residence once acquired by birth or habitancy is not lost by temporary absence for pleasure, health or business, or while attending to duties of a public office. Where a man has two places of living, which is his legal residence is to be determined largely, where the right to vote or hold office is involved, by his intention. When he acquires a new legal residence he loses the .old, but to effect this there must be both act and intention.</p> <p>2. Residence—Temporary Absence—Case at. Bar.—If a person leave his original residence with no intention of returning, and adopt anotheb (for a space of time, however brief, if it be done) with intention of remaining there permanently, his first residence is lost. But if, in leaving his original residence, he does so with intent to return, such original residence continues in law notwithstanding the temporary absence of himself and family. In the case at bar, there is nothing in the acts or conduct of the party in going to and residing at his cottage outside the city limits which would justify the jury or the court in not accepting as true his testimony that his going to and residing at the cottage was merely temporary and with intention of returning to his residence in the city.</p>

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

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

<p>1. Constitutional Law&emdash;Invalidity of Statutes.&emdash;Whenever the of an act of the legislature is distinctly and necessary to the decision of a particular case it is the duty of the court to determine the question; but if the case before the court can be determined upon other grounds, the court, out of respect for the legislature, will not question the constitutionality of its action.</p> <p>2. Statutes&emdash;Repeal 6y Implication.&emdash;The law does not favor repeals by implication, and will not hold one act of the legislature repugnant to another unless the repugnance is quite plain, and then only to the extent of such repugnancy.</p> <p>3. Taxation&emdash;Railroads&emdash;Rolling Stoclc&emdash;Acts March 12 and 13, 1912. The act of March 13, 1912, amending section 27 of the law (Acts, 1912, ch. 214), provided for taxing of the rolling stock of a railroad company in the city where its office is located, and for the sole benefit of such, is to and hence prevails over the Act of March 12, 1912, which provides a different mode of taxing and of distributing the tax upon such rolling stock.</p>

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

<p>1. Libel and Slander&emdash;Insults&emdash;Measure of Damages&emdash;Verdicts.&emdash;In an action, under the statute, for insulting words, there is no rule of law fixing the measure of damages, nor can it oe reached by any process of computation. In such cases, the jury is regarded as the best and safest tribunal to determine not only the character of the alleged insulting words, but also the measure of damages, and its Verdict will not be set aside in this State, unless it is so grossly excessive (or inadequate) as to indicate that the jury, in rendering it, were actuated passion, or corruption, or that they were misled by some mistaken view of the case.</p> <p>2. Libel and Slander&emdash;Damages&emdash;Witnesses&emdash;Impeachment.&emdash;In an action for defamation, where the speaking of the insulting words is admitted, the character of the witnesses who testify only as to the language used and the circumstances its utterance, and not as to the damages sustained, is of no value in' determining the damages sustained.</p> <p>3. Verdicts&emdash;Excessive Damages&emdash;Reduction.&emdash;If the court has no right to set aside -a verdict as excessive&emdash;there being no of damages&emdash;it has no right to put a party upon terms to accept a less amount than that fixed by the verdict.</p> <p>4. Libel and Slander&emdash;Punitive Damages&emdash;Proof of Pecuniary Loss. It is not necessary to prove actual pecuniary loss resulting from the utterance of insulting words in order to warrant s recovery of punitive damages. The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss.</p> <p>5. Libel and Slander&emdash;Publication.&emdash;A slanderous or insulting sent, through a third person, by the defendant to the plaintiff, and delivered to the latter in the presence of her husband is a publication.</p>

<p>1. Waters and Water Courses—Conveyance of Water Rights— Height of Dam—Case at Bar.—Where a party contracts to convey to another all the rights of water power to which he is entitled as riparian owner, and five years thereafter by deed, reciting that the dam had been erected across the stream with a view to the application of the whole water power afforded by said stream, conveys to the grantee in pursuance of said contract, all the rights of water power to which he is entitled in said stream, and there is no limitation either in said contract or deed upon the height of the contemplated dam or upon the manner of its construction, the grantee is not bound for all future time to restrict the height of the dam to what it was at the time the deed was made by a provision at the close of the deed that the “grantor, his heirs and assigns, shall be entitled to receive his proportion of any water which at any time hereafter, passing the dam of the said company, may be caught by the aforesaid dam.”</p> <p>2. Deeds—Construction—Surrounding Circumstances—Contracts.— In construing written instruments regard must be had to the situation of the parties, the subject matter of the agreement, and the object which the parties had in view at the time, and intended to accomplish. Furthermore, the intention of the parties must be gathered from the language used, and in case of doubt as to the meaning of language used in a deed it must be taken most strongly against the grantor.</p> <p>3. Deeds—Contracts—Practical Construction.—If the language of a deed is doubtful, the long continued interpretation placed upon it by the parties thereto will be conclusive.</p>

<p>1. Evidence—Hearsay.—A conversation between the agent of the plaintiff and a third person who is neither a party nor a privy to the contract sued on, in the absence of the defendant, is mere hearsay, and is not admissible in evidence against the defendant. Where such conversation bears upon a material and vital issue in the cause, its admission in evidence constitutes reversible error.</p> <p>2. Evidence—•Verbal Contracts—Understanding of Party.—Where an alleged contract was verbal and not clearly stated, and the vital question at issue between the parties is whether or not their minds met and concurred in all the essential elements of the contract, the defendant has the right to have his stateme?it 'go to the jury as to what was his understanding of the contract relied on by the plaintiff although the plaintiff is claiming that the defendant had ratified the contract.</p> <p>3. Corporations—Declarations of Officers—Evidence.—In an action on a contract by a corporation, where a witness has been permitted to testify to certain declarations of officers and agents of the corporation tending to show a liability on the defendant, other declarations of its officers and agents in the course of their employment, voluntarily made to the witness in the same conversation, tending to show that the corporation has no right to maintain the action are admissible in evidence.</p> <p>4. Brokers—Agent—Bight to Sue.—Where an agent for the sale oí property has an interest in the contract, such .as his commission, he can maintain a suit against the vendee to compel him to comply with his contract of purchase.</p> <p>5. Brokers—Beal Estate Agent—Commissions—Duty of Vendor io Sue.—In an action by a real estate broker to recover his commission, the question whether or not it was the duty of the vendor to have sued the vendee in a foreign jurisdiction to compel performance of the contract is one to be determined by the jury upon all the evidence in the case.</p> <p>6. Brokers—Principal and Agent—Fiduciaries—Disclosures.—A broker or agent who undertakes to procure a purchaser of property placed with him for sale is required to act in good faith in presenting a purchaser to his principal. It is his duty to place his principal in full possession of all facts bearing upon his personal relations to the subject and towards his prospective purchaser. It is not enough for him to say that he thought his principal was informed of all the facts, nor to be able to point out circumstances from which an inference might be drawn that his principal knew or had means of knowledge. Loyalty to his trust is the most important duty which the agent owes to his principal. So careful is the law in guarding this fiduciary relation that it will not allow an agent to act for himself and his principal, nor for two principals on the opposite side in the same transaction. All such transactions are voidable and may be repudiated by the principal, without showing that he was injured, In such cases, the amount of the consideration, the absencé of undue advantage, and other like features are wholly immaterial. Nothing will defeat the principal’s right of relief except his own confirmation, after full knowledge of all the facts.</p>

<p>1. Streets—Obstructions—Removal—Abandonment of Street.—Under the tacts and circumstances of this case the appellee is not entitled to have the obstructions put upon streets by appellants removed, nor to enjoin them from further obstructing the streets. The land on which the streets were laid out was not in an incorporated town, the streets were platted on the land, the plat recorded and the streets were dedicated to public use, but the dedication was never accepted by the public, the streets were never opened or used as such, obstructions were placed upon them indiscriminately by the parties to this litigation, each with the acquiescence of the others, and the land was used for grazing and agricultural purposes. Furthermore, the obstructions sought to be removed are substantially the same now as when appellee acquired title to his land. Under these circumstances, that portion of the streets involved in the litigation in this suit must, as between the parties to this suit, be treated as abandoned by them.</p>

<p>1. Appeal, and Error—Two Trials Below—First Trial—Code, Section 3484.—The phrase “first trial” used in section 3484 of the Code requiring this court, when there have been two trials in the lower court, “to look first to the evidence and proceedings on the first trial” refers to the first trial in which the ruling of the court was made the ground of exception, which is the first trial within the cognizance of this court. This may, in fact, be the second or a subsequent trial.</p> <p>2. Evidence — Statements After Injury■—Hearsay—lies Gestae.—The statement of an injured party to an ambulance surgeon shortly after the injury as to the circumstances of the injury is not admissible as a part of the res gestae, nor as a part of an admission made, to other witnesses at a different time and on another occasion.</p> <p>3. Master and Servant—Injury to Servant—Warning—Cars on Siding—Case at Bar—Demurrer to Evidence.—Upon the evidence in the case at bar, a jury might have found, and hence on a demurrer to the evidence the court must hold, that .the defendant was guilty of negligence in putting the plaintiff’s intestate to work in painting cars on a shifting track without notice of danger or protecting the cars on which he was to work with blue flags; that he had the right to rely upon that protection and was not guilty of contributory negligence; and that the negligence of the defendant was not a risk assumed by the plaintiff’s intestate.</p>

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

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

<p>1. Limitation of Actions—Scire Facias on Judgment Against Decedent—Former Administration—Annulment—Code, Section 3577. Where administration has been granted on the estate of a decedent who left a will appointing an executor, but the grant has been subsequently annulled and set aside, and, the executor declining to qualify, administration with the will annexed is granted to another and a scire facias is then sued out against the latter to revive a judgment recovered against the decedent in his lifetime, the statute of limitations begins to run, under section 3577 of the Code, from the time of the qualification of the administrator with the will annexed. He is in no sense a successor in title to the administrator, but is wholly independent of him, and derives all of his right, title and interest under the will of the decedent. The situation is the same as if the -first administration had never been granted.</p>

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

<p>1. Death&emdash;Negligence&emdash;Evidence&emdash;Conjecture.&emdash;In an action for the death of one caused by the negligence of another, it is incum-bent upon the plaintiff, in the absence of direct evidence, not only to show the existence of such circumstances as would the inference that the injury which caused the death was due to the negligence of the defendant, but must also exclude the idea that it was due to á cause with which the defendant was unconnected, and not leave the question to mere and conjecture.</p> <p>2. Evidence &emdash; Deductions &emdash; Different Theories &emdash; Evidence Supports Either.&emdash;If it appears that the facts and circumstances from which a conclusion is sought to be deduced, although with that theory, are equally consistent with some other theory, they do not support the theory contended for.</p> <p>3. Demurrer to Evidence&emdash;Admissions&emdash;Facts Not Proved.&emdash;While a party demurring to' the evidence is considered as admitting the truth of his adversary’s evidence and all just inferences that can be properly drawn therefrom by a jury, he does not admit any fact not proved by the evidence, nor does he admit any forced or illogical deductions from the testimony.</p> <p>4. New Trial&emdash;After-Discovered Evidence&emdash;Nature of.&emdash;After evidence which is in part merely corroborative, and in part so conflicting with the evidence given on the trial that it could not possibly produce an opposite result on the merits, if a new trial were awarded, does not warrant a new trial by the trial court.</p>

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

<p>1. Tax Deed—Sale—Acknowledgment.—A conveyance of delinquent land by the clerk of a court concluding “witness my hand and seal of the court,” with a seal annexed is good as a deed. The words “of the court” are merely superfluous and may be rejected. Moreover, the failure to recognize the scroll in the body of the instrument at all is cured by its solemn recognition by the grantor at the time of acknowledgment for record inasmuch as the writing is required by statute to be sealed.'</p> <p>2'. Tax Deed—Recitals—Circumstances Relating to Sale.—When land purchased by the Commonwealth for delinquent taxes is sold to another, the “circumstances" required by section 666 of the Code to be set forth in the deed to the purchaser, are the circumstances in relation to the sale by the Commonwealth to the applicant to purchase under that section, an’d are different from those required by section 665 for deeds to land purchased from the treasurer by parties other than the Commonwealth. When a purchaser under section 666 has obtained his deed and had it recorded, the title vested in the grantee is subject to be defeated only by proof of one or more of the causes set forth in section 661, none of which exists in the case at bar.</p>

<p>1. Eminent Domain—Act, March 12, 1908—Notice—How Served— Waiver.—Notice of the assessment of damages in eminent domain proceedings under the act of March 12, 1908, is to be served in the manner prescribed 'by that act, and not in accordance with the Code. The service in the case at bar on an agent of the owner in charge of the property affected was sufficient. But even if it were irregular, the admission of the owner of its receipt, without questioning its sufficiency or the manner of service, and only objecting to the amount of damages allowed, amounted to an appearance to the proceeding, and such appearance was a waiver of all questions as to service of the notice and was equivalent to personal service.</p> <p>2. Eminent Domain—Act, 1908—Appeal.—A property owner who takes no appeal from the assessment of damages to his property under the act of March 12, 1908, cannot make the objection that the assessor returned his report sooner than he should have done, as -he is in no way prejudiced thereby.</p> <p>3. Eminent Domain—Finality of Proceeding—Reopening—Damages. Whatever power a city council may have in its legislative capacity to make additional compensation to a land owner if the damages assessed were inadequate, it has no power to reopen assessment proceedings under the act of March 12, 1908, after the same have, by the terms of the act, become final and the right of appeal therefrom has expired.</p> <p>4. Eminent Domain—Damages—Special Assessments—Constitutional Law—-A special assessment statute which gives the land owner an appeal of right from the award of the assessor of damages to the corporation court of the city where the matter is heard de novo is not unconstitutional. Special assessments statutes are not objectionable on the ground that they deprive the land owner of his right to have a jury ascertain what will be a just compensation for the land proposed to be taken (or damaged) for a public highway, unless the constitution in terms requires that such compensation shall he so assessed, and there is no such requirement in the Constitution of this State.</p>

<p>1. Convicts—Service of Process—Due Process.—At common law a person convicted, of a felony was disabled from suing, tout was not exempt from being sued though in confinement, and hence process served upon him to appear and answer a demand in court constitutes due process of law under the fourteenth amendment of the constitution of the United States and the bill of rights of this State.</p> <p>2. Convicts-—Service of Process—Common Law—Virginia Statute.— The common law rule permitting one convicted of felony to be sued does not conform to the spirit of the present day, and as to convicts sentenced to the penitentiary for more than a year, the common law has been repealed, by implication, by the provisions of chapter 202 of the Code. Now all suits respecting the person or estate of such convict must be instituted in the name of his committee. Thus the rigor of the common law has been mitigated as to the convict, and as the committee may be appointed at the instance of any person interested, no injustice is done to other persons and no unnecessary delay is occasioned.</p>

<p>1. Pleading—Assumpsit—Sworn Plea—Object—Waiver.—The purpose of the statute requiring tbe defendant to swear to his plea, where the plaintiff in assumpsit has sworn to his account, is to prevent delay where no real defense exists, but the provision was enacted for the benefit of the plaintiff and may be waived by him, expressly or by implication, or he may, by his conduct, be estopped to take advantage of it.</p> <p>2. Pleading—Office Judgment—Postponement by Consent.—If, upon the request of the plaintiff, the defendant consents to the postponement of a case until a later day of the term, and the court adjourns before that day arrives, the office judgment which would otherwise have become final on that adjournment of the court does not become final, and the defendant may enter his sworn plea to the merits at the next term of the court.</p> <p>3. Jurors—Qualification—Indebtedness to a Party.-—The fact that several jurors are indebted to a bank does not disqualify them to sit in a case to which the bank is a party, if they have formed no opinion of the case, are free from bias or prejudice and are otherwise qualified jurors. It is immaterial that more than one of them are so indebted.</p> <p>4. Corporations — Officers—-Authority—Ostensible Powers—Holding Out.—The authority of an officer of a corporation is the authority which his company holds him out to the public and those dealing with it as possessing. This is his real authority, and no secret limitations of this in the by-laws of the company (or elsewhere are binding on third persons who deal with him as the representative of his company. Whether or not there was a holding out and the extent and measure of it, and whether there was a subsequent ratification, and acceptance of benefits derived from contracts made by such officer, are questions for the jury under proper instructions of the court.</p>

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

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

<p>Error to a judgment of the Circuit Court of Nansemond county on a petition for writ of habeas corpus. To a judgment awarding the custody of an infant upon certain terms and conditions, the petitioner assigns error.</p>

<p>Error to a judgment of the Corporation Court of the city of Danville dismissing an appeal from a judgment of the mayor of said city.</p>

<p>1. Set-Offs-Failure to Deliver Goods-Indebitatus Assumpsit-; Sales-When a vendor fails or refuses to deliver personal property, the measure of damages is usually the difference between the contract price and the market price, at the time and place of delivery, with interest, and the vendee for his own protection has the right, under the circumstances, to buy the goods in the open market, and charge the difference in price to the vendor’s account. In such case the law implies a promise on the part of the vendor to repay the money which the has been compelled to pay for him, and for it indebitatus assumpsit will lie. The liability of the vendor, whether liquidated or not, is so far susceptible of definite proof as to be a valid set-off against a money demand asserted by the vendor against the vendee. The right to maintain assumpsit for a claim is a test in favor of its allowance as a set-off.</p> <p>2. Set-Offs-Statute of-Liberal Construction.-The statute of is to be liberally construed in furtherance of its obvious policy to prevent a multiplicity of suits, and as far as it can be conveniently done to effectuate in one action complete between the parties.</p>

<p>1. Judgments—Collateral Attack—Presumption.—Tbe strongest presumptions are indulged in favor of the correctness of the judgments and decrees of courts of general jurisdictions. They cannot be collaterally assailed in other actions provided the court had jurisdiction of that class of cases.</p> <p>2. Judgments—Parties—Presumption—Suit to Sell'Decedent’s Land— —Personal Representative as Party.—Where a decedent’s lands were sold for the payment of his debts under proceedings in a suit to which his personal representative was not a party, it will be presumed, after the lapse of many years and the loss of the papers in the suit, that there was no personal estate to be subjected.</p> <p>3. Judgments—Decree to Sell Land—Word “Sell” Omitted.—Although a certified copy of a decree for the sale of land does not contain the word “sell,” it is sufficient if the decree when read as a whole, contains authority to sell the land, especially where subsequent decrees show that the sale was made and reported to and confirmed by the court.</p> <p>4. Deeds—Commissioner’s Deed—Recitals—Code, Section 3333-a.—The deed in question, in the case in judgment, contains all the essential recitals to bring it directly within the purview of section 3333-a of the Code (1904) and hence is prima facie evidence that the sale therein referred to was regularly made, and that the other recitals therein are true.</p> <p>5. Advebse Possession—Possession by Co-Tenant—Presumption— Ouster.—The possession of one co-tenant is presumed to be the possession of all until the contrary is shown by such hostile acts on the part of the tenant in possession as would amount to an ouster of the co-tenants. The possession of one tenant in common, though exclusive, does not amount to a disseisin of the co-tenant, nor does the receipt of profits and the payment of taxes amount to an ouster of such co-tenant. A silent possession, unaccompanied by acts amounting to an ouster, or giving notice of an adverse claim cannot be construed into adverse possession.</p>

<p>1. Deeds—Construction.—For the purpose of ascertaining the intention of the parties and of construing a deed in a manner not inconsistent with the words used, the court will place itself as nearly as possible in the place of the parties when the instrument was executed, and will consider its origin and the sources of its derivation, all the attending circumstances, or the existing state of facts, the situation of the parties, and of the property or of the condition or state of things granted at the time, the state of the country, and generally all sources of inquiry naturally suggested by the description, or which may have acted upon the minds of the parties, are open to inquiry within the limits of the rules relating to parol evidence in such cases.</p> <p>2. Deeds—Construction—Settlement -for a Home—Right to Partition— Case in Judgment.—In the case in judgment, land was conveyed to a trustee to hold for two persons during their joint lives, and, “upon the death of either or both, then the property of the one or both so dying, or enjoyed during her life, shall pass and become the property of K., subject only to be defeated by the death of K. prior to the death of the last surviving life tenant.” The deed does not in terms state that the beneficiaries are to have and hold the property as a home, but all the facts in the case gathered from the deed and the evidence show that this was their intention, and the deed expressly provides that the two life tenants shall have the right to occupy, use and manage the property, and further that it is only to be rented in case “they” do not desire to occupy, use and manage it, and to be sold only upon the request of the life tenants in writing. One of the life tenants died, having devised her interest in the land to her daughter, the said K.; and K. instituted this suit praying a sale of the land for the purpose of partition.</p> <p>Held: The deed did not establish a mere co-tenancy, but the rights of the beneficiaries were so interwoven in the trust that there was no separate and severable interest in any of the parties during the lifetime of either of the original life-tenants, and if a court of equity should undertake to separate and sever the interests of the parties during the life time of either of the original life-tenants, the trust created by the deed would be at once destroyed. Where lands are held upon such a trust there can be no involuntary partition.</p> <p>3. Trusts and Trustees—Express Trust—Creation—Revocation.— After an express trust has once been completely created and accepted, without power of revocation expressly reserved, it can only be revoked by the consent of all the parties in interest.</p> <p>4. Trusts and Trustees—Right to Sell or Lease Trust Lands—Statutes.—The statutes of this State providing for the sale of • lands of persons under disability recognize the inviolability of trust estates from lease or sale by providing that there shall be no such lease or sale unless it be clearly shown independently of any admission in the pleading that the interest of the beneficiaries will be promoted, and “the rights of no other person will be violated” by such lease or sale.</p> <p>5. Tenants in Common—Exclusive Possession of One—Rents.—Where one tenant in common has had exclusive possession and enjoyment of the common property, and the parties themselves have agreed upon what they consider a fair rent and have acted upon that agreement, the rent thus agreed upon will be considered as fixed, and the agreement enforceable until circumstances are made to appear which make it proper to resort to other mode of adjustment between the co-tenants.</p>

<p>1. Loos and Logging&emdash;Standing Trees&emdash;Fixed Time for Removal.&emdash;A deed to standing trees with tbe right for a fixed period to cut and remove the same does not convey an absolute and title to the timber, but only conveys title to such as may be cut and removed within the fixed period. The for cutting and removal within a fixed period is not a but a condition.</p> <p>2. Logs and Logging&emdash;Fixed Time to “Cut and Remove”&emdash;Rule of of Contracts.&emdash;Under a contract, to “cut and remove” timber within a fixed period the timber must not only be cut, but also removed within the time prescribed. The time limit fixed is as applicable to the removal as it is to the cutting. The word “remove” is not synonymous with “cut,” but is used in the case at bar in its ordinary sense, and the well settled rule is that no word in a contract is to be treated as meaningless, if any meaning reasonable and consistent with other parts of the contract can be given to it.</p> <p>3. Logs and Logging&emdash;Standing Trees&emdash;Trees Cut But Not Removed. The expenditure of money and labor in cutting timber and it for removal does not satisfy the condition that it is to be cut and removed within a fixed period, and timber cut and prepared for removal but not actually removed within the time prescribed by the contract is the property of the owner of the soil.</p>

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

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

<p>1. Telegraph Companies&emdash;Night Letter&emdash;Failure to Deliver Letter” telegrams are sent at a much lower rate than the ordinary message, and the contract for their transmission and delivery contemplates an essentially different handling of the message from that provided by 1294-h, clause C, of the Virginia Code (1904). Instead of delivery as promptly as practicable, after arrival, only a on the morning of the next ensuing business day is and a delivery by mail, instead of by messenger, is It is doubtful if the above statute, which is highly penal, is applicable to “Night Letters.”</p> <p>2. Telegraph Companies&emdash;Interstate Messages&emdash;State Without having assumed jurisdiction and occupied the field of regulation with respect to interstate telegrams, the State statute imposing a penalty for failure to make prompt delivery can no longer be invoked in such cases. The act of Congress has ousted the State of jurisdiction over the subject.</p>

<p>1. Boundaries—Tidewater Lands—Low Water Mark—Extension of Lines.—The bounds of every man’s land lying on the seaboard is extended to ordinary low-water mark, and a drain or gut which goes bare at ordinary low water does not cut off or prevent the extension of such lines, but the same is continued across and beyond such stream down to ordinary low water mark; and if the division line between the uplands of two co-terminous owners is a straight line for some distance before it reaches high water mark, then the law continues such line in the same course to low water mark, and the burden is upon the party asserting it? to prove that the course' of such line has been changed below high-water mark.</p> <p>2. Boundaries—Tidewater Lands—Marshes—"Adjacent.”—In an action to recover marsh land, it is misleading, in an instruction, to speak of a boundary of marsh land which does not touch the plaintiff’s upland but is a part of a body of marsh that does touch his upland as “adjacent” to the upland of the plaintiff.</p> <p>3. Boundaries—Tidewater Lands—Marshes—Instructions.—In an action of ejectment to recover marsh lands adjacent to highlands on the seacoast, an instruction which assumes that the marsh land in controversy is “adjacent” to the upland of the plaintiff, and then tells the jury that as a matter of law the plaintiff is presumed to be the' owner to low water mark and that a description of the land to the high water mark carries the ownership to the ordinary low water mark, unless this ownership is expressly excluded by the terms of the deed conveying the same, but fails to state in what direction the line dividing the uplands of the plaintiff and the defendant runs when it leaves the uplands and is to be continued until it reaches low water mark, is misleading and constitutes reversible error.</p> <p>4. Appeal and Error—Res Judicata.—Rulings of this court, upon a former hearing, become the law of the case.</p> <p>5. Title—Disclaimer.—If title to land is vested in a person by deeds under which he claims, then such title cannot be divested out of him by any parol or verbal disclaimer by him or those under whom he claims, but only by deed or will executed in the manner prescribed by law.</p> <p>6. Evidence—Boundaries—Admissions of Former Owner.—While admissions of a former owner of a tract of land as to the boundaries of the tract are admissible in evidence in determining such boundaries, they are not conclusive.</p> <p>7. Instructions—Omissions—Harmless Error.—The omission from one instruction of a correct statement of the law applicable to the facts of the case is harmless, where the same principle was embodied, in plain and unmistakable language, in other instructions given.</p> <p>8. Boundaries—Location on Land.—As a general rule the construction of all written documents given in evidence belongs to the court exclusively, but the location of a disputed boundary line is a question of fact for the jury.</p> <p>9. Appeal and Error—Errors Not Pointed Out.—Errors suggested in the petition for a writ of error, but not pointed out or pressed in argument, will be considered as waived.</p>

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

Appeals from a decree of the Circuit Court of Giles county. Decree for the complainants. Separate appeals were taken by two of the defendants.

<p>1. Appeal and Error—Final Judgment—Act of Limitations.-—A judgment in an action is final when it is a termination of tbe particular action or suit, although it is not a final determination of the rights of the parties. In the case at bar, if the order complained of is final it is barred by the act of limitations, if it is not final no writ of error lies, so in either event the writ of error must be dismissed as improvidently awarded.</p>

<p>1. Pleading—Demurrer—Declaration Faulty in Part.—Where there are two or more counts in a declaration, or a single count containing several breaches, some well and others ill assigned, or containing a demand of several matters, divisible in their nature, some of which are well and others ill claimed, and there is a demurrer to the whole declaration and to each count thereof, or to the several breaches assigned, the demurrer must be sustained to the faulty counts or breaches, and overruled as to such counts or parts of the declaration as are not amenable to objection.</p> <p>2. Damages—Mental Anguish.—Mental anguish and suffering resulting from mere negligence unaccompanied by injury to the person, cannot be made the basis of an action for damages.</p>

<p>Error to a judgment of the Circuit Court of TazeweJl county on a motion to exonerate the petitioner from the payment of an income tax. Judgment for the petitioner. Commonwealth assigns error.</p>

<p>1. Partition—Sale for Partition—When Not to Be Ordered—Case in Jiidgment.—A court has no authority to decree a sale of land for partition unless and until it is made to appear by an inquiry before a commissioner in chancery, or in some other way, that partition in kind cannot be made in one of the modes prescribed by chapter 114 of the Code. In the case in judgment, there was no evidence before the court upon which to base a decree of sale, and the probative value of the report of the commissioners is discredited by the fact that they never went over the land, and although they were on the lower end of the tract once, their report was based upon information derived from others, and not upon their own judgment formed from personal examination of the premises.</p>

<p>1. Principal and Agent—Undisclosed Principal—Election—Evidence ' of Proof of Debt in Bankruptcy Against Agent.—Before a party can be held to have made an election to hold the agent rather than his undisclosed principal liable, it is necessary that he should have full knowledge of all the facts, and of his rights in the case. The conduct relied upon, to be conclusive, should be such as to show a final and unequivocal election—such as would lead a reasonably prudent man, acting in good faith, to conclude that the party had elected to hold the agent only. To constitute an election, there must be something to indicate an intention, with full knowledge of the facts, to give sole credit to the agent, and abandon all claims against the principal. Merely filing a claim in bankruptcy against the estate of the insolvent agent of an undisclosed principal, while the foundation of the plaintiff’s claim is in litigation between the agent and his principal, is not a conclusive election by the creditor to hold the agent.</p> <p>2. Appeal and Error—Objections Not Made in Trial Court—Case at Bar.—Objection that a contract was a sealed instrument and that therefore parol evidence was not admissible to charge the defendant thereon as an undisclosed principal, cannot be made for the first time in this court. In the case at bar, the defendant did not rely upon that fact in her grounds of defense, nor object to the introduction of the contract in evidence, but on the contrary based an instruction upon the contract, and hence cannot now raise the objection in this court.</p>

<p>Appeal from a 'decree of the Circuit Court of Bedford county. Decree fo;r complainants. Defendants appeal.</p>

<p>1. Homestead—Merchandise After Death of Owner—Shifting.—A stock of merchandise ceases to be shifting upon the death of the owner thereof, and becomes fixed and stable, and it or proceeds of the sale thereof may be subject to the claim of homestead by the infant children of the former owner.</p> <p>2. Homesteads—Removal of Infants from State.—Infants residing with their father in this State become entitled to claim a homestead in his estate immediately upon the death of their father. This estate cannot be divested by any act on the part of the infants, and is not lost by the fact that they are thereafter removed from the State by their mother and guardian who has absolute control over their movements.</p> <p>3. Homesteads—Unpaid for Goods—Death—Confusion of Goods.—The doctrine of confusion of goods is a rule of necessity, and imposes loss, not upon the innocent, but upon one who wilfully mixes his goods with those of another, so that they cannot be distinguished and separated. It has no application to the case of a merchant who, at the time of his death, has on hand some goods not paid for which are placed along with his other stock. The market value of so much of the goods on hand and not paid for at the time of his death is the full measure of the seller’s recovery superior to the claim of homestead of his infant children.</p> <p>4. Homesteads—Money—Infant Claimants—Investment by Court.— When a homestead is claimed by infants in money in the hands of an administrator, their mother having married again, the rights of all parties will be best conserved if the court shall administer the estate by a receiver appointed for the purpose, ' the usufruct from time to time to be paid by him to guardians of the infants, and the corpus held for the benefit of creditors after the termination of the homestead.</p>

<p>1. Appeal and Error—Rulings Not Prejudicial.—Rulings on the pleadings made by the trial court at the instance of the appellant and in his favor, and not objected to by the appellee, will not be noticed on appeal.</p> <p>2. Reformation—Mistake—Burden of Proof—Degree of Evidence— Case in Judgment.—Upon a bill filed to reform a deed so as to correct a mistake, the burden is upon the party alleging the mistake to establish the same by clear and convincing proof. It is not sufficient to show a possibility or even a probability of mistake. It must be shown by the clearest and most satisfactory evidence. The evidence in the case in judgment falls far short of this. The parties sold and bought a boundary of about fifteen hundred acres of land, and the unreformed deed covers more than that number of acres, and now after a lapse of half a century and a great appreciation in the value of the land, the grantees seek a reformation of a boundary line which will add four hundred and fifty acres additional to their tract.</p> <p>3. Power of Attorney—Death—Revocation.—A power of attorney to make a deed is revoked by the death of the maker before the deed is executed. •</p> <p>4. Deeds—What Passes—Ignorance of Ownership—Presumption.—A grantor in a conveyance cannot be supposed to have intended to sell land that he did not know he owned.</p> <p>5. Evidence—Admissions of Former Owner of Land.—Declarations of the owner of land against his interest are admissible in evidence, not only against the declarant, but equally so against persons subsequently deriving .title through or under such declarant.</p> <p>6. Reformation—Mistake—Laches.—After a great lapse of time, the death of witnesses and appreciation in the value of the land, equity will not relieve against a mistake easily discoverable at an early date from recorded deeds under which, the complainant claims. When the party complaining had within his reach the means of ascertaining the true state of facts, and without being induced thereto by the other party, has neglected to avail himself of his opportunities of information for a great length of time, equity will not relieve against mistake. Indolent ignorance and indifference will no more avail to repel the imputation of laches than will voluntary ignorance of one’s rights.</p>

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

<p>1; Eminent Domain—Railroads—Land Needed—Action of Directors Necessary.—'Where the petition of a railroad company to condemn land for the extension of its road avers that defendants’ lands are wanted for petitioner’s purposes, and that since it cannot agree with them for their purchase, it has the right to condemn them, and this is put in issue by defendants’ plea, the petition should be dismissed in the absence of any evidence that the board of directors, acting together, had either authorized the extension, or adopted or fixed its location.</p> <p>2. Railroads—Extension of Line—Location—Action of Directors Necessary.—The determination of a railroad company to extend its line is a matter which should be considered and passed upon by its directors, acting together as a board, especially where the proposed extension is equal in length to the line in operation. The extension ought in the first instance to be determined upon by the board of directors as such, or if determined upon by one of its agents, his action, to be binding upon the corporation, would have to be ratified by the board of directors regularly convened and sitting as such board. A majority of the board cannot undertake to act in their individual names for the board itself. They can bind the corporation only by acting together as a board.</p>

<p>Appeal from decrees of the Circuit Court of Smyth county. Decree for the complainants. One of the defendants appeals.</p>

<p>1. Evidence — Divorce — Depositions — Retaking — When Refused.— Where depositions in a divorce suit were taken before a justice instead of before a commissioner in chancery as required by section 2260 of the Code, it is not error to refuse to permit them to be retaken before such commissioner where it clearly appears that they could not affect the results of the litigation.</p>

<p>Appeal from a decree of tlie Circuit Court cf Tazewell county in a suit in chancery in which T. W. Kirkbride was, on his petition, admitted as a party. From an adverse decree he and his assignee appeal.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City county in a proceeding by motion to remove a committee. Judgment for defendant. Petitioners assign error.</p> <p>Appeal from a decree of the Circuit Court of Elizabeth City county. Decree for defendant. Complainants appeal.</p>

<p>1. Judicial Sales—Upset Bids—Interest of Infants.—A judicial sale regularly and fairly made, after due advertisement, and at which a fair price has been obtained, should not be set aside solely because an advance bid of ten per cent, has been made. The fact that infants are, to some extent, interested in the proceeds of the sale makes no difference. The settled prinsolely because an advance bid of ten per cent, has been made. ment are applicable alike to infants and adults.</p>

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

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

<p>1 Pleading-^-Lien on Personalty&emdash;Petition Under Section 2462 of Code is a Proceeding at Law.&emdash;Before tbe enactment of section 2462 of tbe Code, giving a remedy by petition for enforcing a lien on personal property sold, tbe parties could, aod perhaps must, have gone into equity, and as the statute does not take away that remedy, they may still do so. The remedy given by the statute, however, is a proceeding at law, and when the whole ' matter of law and fact is submitted to and decided by the judge, he does not exercise the powers of a chancellor over a suit in equity, but of a court of law, with all the resulting consequences.</p> <p>2. Fraud and Fraudulent Representations&emdash;Parol Evidence&emdash;Proof Required.&emdash;Misrepresentations or fraud in the procurement of a contract may be shoyrn by parol evidence although the itself may have been reduced to writing, but the proof of the alleged fraud must be convincing. In the case at bar, the evidence is far from sustaining the allegations of fraud and misrepresentation.</p> <p>3. Appeal and Error&emdash;Plain Error of Trial Court.&emdash;The action of the trial court in allowing a credit on a plaintiff’s claim will not be set aside on the ground that the plaintiff conceded the credit as a compromise, unless the evidence is such as to show that the trial court plainly erred in allowing the credit.</p>

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

<p>Appeal from a decree of tbe Circuit Court of Wise county. Decree for tbe complainant in a bill of review. Defendant appeals.</p>

<p>1. Judgments&emdash;Collateral Attack&emdash;Direct Attack try Bill&emdash;Statutory Recoupment&emdash;Relief in Equity&emdash;Code Sections 3299 and 3300.&emdash; Where a sale under a deed of trust to secure purchase money of the property sold has been made under such circumstances and at such a price as to be unconscionable, and judgment has been taken against the debtor for deficiency in the price of the property sold, and a suit in chancery has been brought to enforce the judgment against other property of the debtor, he may by answer and cross-bill in the last mentioned suit assail the validity of the sale under the trust deed. This is not a collateral attack on a domestic judgment, which is not but a direct attack founded upon equitable grounds for relief. Moreover, the right to make such defense is by section 3300 of the Code, which provides that if a defendant fails to avail himself of the defenses given by section 3299, he shall not be precluded from such relief in equity as he would have been entitled to if section 3299 had not been enacted.</p> <p>2. Trusts and Trustees&emdash;Sale&emdash;Inadequacy of Price&emdash;Vacating Sale. Where the price obtained for property at a trustee’s sale is so grossly inadequate as to shock the conscience of the the sale will be set aside. This is especially so where, as in the case in judgment, the trustee is the son-in-law of the creditor who was the only bona fide bidder at the sale. In such circumstances, the burden is upon the creditor-purchaser to repel the presumption of unfairness which attaches to such a sale. .</p> <p>3. Trusts and Trustees&emdash;Agent of Both Parties&emdash;Duty of Trustee.&emdash; A trustee in a deed of trust is the agent of both parties and bound to act impartially between them. He should bring the property to sale under every possible advantage to his cestui que trust. He may adjourn the sale from time to time to meet the exigencies of the situation. If he finds no bidders present except the creditor, or only sham bidders, he should adjourn the sale.</p> <p>4. Trusts and Trustees—Sale at Inadequate Price—Absence of- Ov>ner—Belief in Equity.—A court of equity will grant relief against a sale under 'a trust deed where property is sold at a grossly inadequate price, and the owner has failed to attend the sale through mistake or inadvertence of himself or his agent.</p> <p>5. Trusts and Trustees—Inadequate Price—Creditor as Purchaser— Relief of Debtor—Re-Sale by Creditor.—Where a creditor in a deed of trust has become the purchaser of the property at a sale made by the trustee at a grossly inadequate price and under circumstances which would render it proper to set the sale aside, the debtor will not be denied relief simply because the creditor has sold the property to a bona fide purchaser for value, but a court of equity will ascertain what was the fair market value of the property at the time of the sale and will credit the debt secured by that sum.</p>

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

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

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

<p>1. Appeal and Error—Objections Not Made Below.—The general rule is that objections not shown to have been made in the trial court cannot be considered in the appellate court on a writ of error.</p> <p>2. Pinal Judgment—Objections After Adjournment—Suspending Order.—When final judgment has been entered in a law proceeding and the court adjourned for the term, it is too late for a party to except or object to any ruling of the court prior to that judgment. The record is then closed and nothing can be added to it except by express statutory provision. The only effect of a suspending order, whatever its recitals, is to stay the execution of the final judgment.</p> <p>3. Appeal and Error—Eminent Domain—Damages—Evidence Not Certified.—This court cannot review the action of the trial court in fixing the compensation allowed in a condemnation proceeding, when the evidence upon which the trial court acted is not made a part of the record.</p> <p>4. Trespassers—Erection of Structures—Ownership—Railroads.—The general rule is that where one invades another’s land without legal right and places structures thereon, the structures belong to the land owner. If a railway company claims that its entry upon the land of another was under circumstances which exempt it from the operation of this rule, it would seem clear that the burden would be upon it to show that fact. Prima facie, a trespassing railroad company occupies no higher position than any other class of trespassers.</p>

<p>1. Dismissal Without Prejudice&emdash;Effect.&emdash;The dismissal of a filed in chancery for the recovery of a debt, without to the petitioner to institute such action as he might be advised to bring for the maintenance of his rights, is not a final adjudication of the matter in controversy.</p> <p>2. Dismissal&emdash;Effect&emdash;Fraud.&emdash;The dismissal of a suit brought to a balance alleged to be due on a contract for the of machinery is not an adjudication that the defendants were never bound for such purchase money by reason of fraud in the transaction.</p> <p>3. Subrogation&emdash;Joint Debt&emdash;Lien&emdash;Overpayment by One&emdash;Limitation of Actions.&emdash;Where one of several joint obligors in a debt by a lien pays more than his share of the joint debt, he is, as against his co-debtor, entitled to subrogation to the rights of the creditor in such lien for the repayment of the excess. Though an action at law to secure personal liability be barred by limitation, the right of subrogation to the lien of the creditor still exists.</p> <p>4. Equity&emdash;Laches&emdash;What Constitutes.&emdash;Length of time alone is not a test of staleness of a demand, and mere lapse of time, by some circumstances affording evidence of a that the right has been abandoned is not laches. Generally, if the sum sought to be recovered is certain, the transaction has not become obscure, and there has been no such loss of evidence as will be likely to produce injustice, a court of equity will not refuse relief merely because there has been delay in asserting the claim.</p>

<p>1. Vendor and Purchaser—Purchaser without Notice from One with Notice.—A purchaser for value without notice takes a good title from a purchaser for value with notice.</p> <p>2. Easements—Right of Way—Case in Judgment.—Where a deed conveys land without reservation of any right of way or other easement, the grantee takes all conveyed by the deed unencumbered, unless notice is in some way brought home to him that the land is sold subject to the encumbrance of some easement or privilege in another person or the public. In the case in judgment, a right of way was claimed over the lands of a grantee whose deed made no mention of the right of way and was recorded before the deeds of the claimants. The grantee had no actual notice of the existence of the right of way, and the evidence does not show that he was cognizant of such facts as would have led a reasonable and prudent man to a full investigation so as to charge his conscience with the result of such investigation if it had been made. Under these circumstances, it is held, that the grantee takes the land free of such right of way.</p>

<p>1. Boundaries—Adequate Description—Deeds—Contracts.—A description of land is adequate when it is such that any person of reasonable intelligence, whether a surveyor or not, would have no difficulty in definitely locating all its boundaries.</p> <p>2. Contracts—Mutuality—Options.—When it was intended that a contract should, in its express terms, be binding upon one of the parties alone, it may be specifically enforced against that party, although the remedy cannot be granted to him against the promisee. Option contracts are in reality conditional agreements. Upon the happening of the condition, that is, upon making the request, giving the assent, or declaring the option, they become absolute and in many instances mutual in their obligation. Such contracts are not void for want of mutuality.</p> <p>3. Contracts — Options — Consideration — Withdrawal of Option.— When an option is accepted, it becomes an executory contract for the sale of the property with mutuality of obligation and remedy. The acceptance of the option in the manner and within the time specified is sufficient to bind both parties, and removes any objection to the enforcement of the' agreement based thereon for want of consideration. If the option is not supported by a sufficient consideration, the offer is a mere gratuity which may be withdrawn at any time before its acceptance. But if an option unsupported by a consideration is accepted before it expires or is withdrawn, a binding contract is thus formed. If the offer to sell is supported by a sufficient consideration, it cannot be withdrawn prior to the expiration of the time specified.</p> <p>4. Specific Performance—Contract not Fair, Equal and Just—Loan Accompanied by Option to Buy at Inadequate Price—Usury.— Where a loan is made upon condition that the borrower shall give to the lender an option to purchase his land at a price far below its value, the acceptance of the option is not a fair, equal and just contract, but is usurious, and will not be specifically enforced in equity.</p>

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

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

<p>1. Bills and Notes&emdash;Gaming Consideration&emdash;Bona Fide Holder&emdash;Negotiable Instruments&emdash;Code, Section 2836.&emdash;The fact that the endorser of a note knew that the proceeds of the note were to be used by the maker in gambling in stocks cannot affect the rights of the hank which discounted the note for the maker in ignorance of the use to be made of the money. It is the of a bank to lend money and it is under no obligation to inquire of the borrower what he wants the money for, nor is it to be affected by any use which the borrower chooses to make of the money. Such a discount by the bank is not within the purview of section 2836 of the Code, relating to gaming</p> <p>2. Bills and Notes&emdash;Gaming Consideration&emdash;Bona Fide Holder&emdash; Transfer to One with Notice&emdash;Negotiable Instruments.&emdash;Such a note as is mentioned in the preceding paragraph being valid in its creation, it is not affected by the circumstances that it subsequently passed into the hands of the endorser, who had notice of the object to which the avails were to he applied. The general rule is that if a person with notice purchase from one without notice, he is entitled to stand in the latter’s shoes, and take shelter under his good faith.</p>

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

<p>1. Pbaxjd—Allegation—Burden of Proof.—The burden is on the plaintiff who alleges bad faith and fraud on the part of the defendant to establish the charges by the clearest and most satisfactory evidence, which has not been done in the case in judgment.</p>

<p>1. Verdicts—Jury Properly Instructed—Negligence of Defendant— . . Preponderance of Evidence.—Where a personal injury case,has been fairly submitted to the jury under proper instructions from the court, their verdict will not be disturbed where it cannot be said, as a matter of law, that the injuries complained of were not more naturally to be attributed to the negligence of the defendant than to any other cause.</p> <p>2. Master and Servant—Safe Place—Proximate Cause—Contributory Negligence—Questions for Jury.—Whether or not a master has discharged his duty of exercising ordinary care to maintain a reasonably safe place in which his servant is to work, and, if-not, whether his negligence is the proximate cause of the in-, jury to his servant, and whether the servant has been guilty of contributory negligence, are questions for the jury whose verdict will not be disturbed unless plainly wrong.</p> <p>3. Master and Servant—Negligence of Master—Assumed Bisk.—Any failure on the part of the master to observe, for the protection of his servant, that reasonable degree of care which the circumstances of the particular case demand is actionable negligence, and is not within the influence of the doctrine of assumed risks.</p> <p>4. Instructions—Bead as a Whole—Case at Bar—Misleading—Partial View.—The instructions, in the case at bar, when read as a whole were not misleading and incomplete as to the duty of the plaintiff to inspect the roof of the mine where he was to work, nor do they ignore the defendant’s theory that it had ' the right to abandon places in its mines which it had completed according to its plan of work, but they fully and fairly submitted these and other questions to the. jury and as favor-; ably to the defendant as it could have reasonably asked.</p> <p>5. Damages—Number and Dependence of Family—Case at Bar.—A verdict of $3,000 for a permanent personal injury -to a young married man twenty-nine years of age will not be set aside-simply because he testified that he had one child, five years of age, which was at his father’s, especially where, in asking that the verdict be set aside, no charge or suggestion was made that the verdict was excessive.</p>

<p>1. Appeal and Error—Two Trials Below.-—Upon a writ of error to a judgment in an action wherein there were two trials in the court' below, this court is required by section 3484 of the Code to look first to the evidence and proceedings on the first trial.</p> <p>2. Evidence—Unreasonable Use of Water—Detention—Flat Rate for Electricity as Increasing Use of Water.—Where the hydro-electric plant of a municipal corporation was adapted to the ordinary capacity of the stream, and its detention of the water of the stream was reasonable, even under a fiat rate system of charges for the electric current, evidence of extravagant consumption of electricity by the patrons of the municipality under the fiat rate system, is inadmissible in an action by a lower riparian owner against the municipality to recover damages for the unreasonable detention of the water of the stream.</p> <p>3. Riparian Owners—Reasonable Use of Flowing Stream.—The reasonableness of the use of a stream depends upon the nature and size of the stream, the business or purposes to which it is made subservient, and on the ever varying circumstances of each particular case. Each case must, therefore, stand upon its own facts, and can be a guide in other cases only as it illustrates the application of general principles.</p> <p>4. Riparian Owners—Use of Stream for Machinery—Normal Condition .of Stream—Drouth—Detention of Water.—The normal, not the abnormal, condition of a stream must control, in the matter of installing suitable machinery, and likewise in determining the reasonableness of the use of flowing water. To apply general principles indiscriminately and inflexibly to seasons of extreme drought would result in disastrous consequences and practically destroy the beneficial use of a stream for mechanical purposes. Hence the prevailing doctrine is that in times of unusual drought it is not an unreasonable use of a stream for the owner of machinery, which the power of the stream in its ordinary stages is adequate to propel, to detain . so much of the water and for such reasonable time as may be necessary to enable him to use such machinery advantageously. The adoption of a different rule would paralyze industries along the entire stream from its source to its mouth.</p>

<p>1. Highways—Commissioner of Roads for Norfolk County—Acts 1912 page 53 is Unconstitutional as a Whole.—Tbe provision of tbe act of March 4, 1914 creating tbe commissioner of roads and bridges for tbe county of Norfolk (Acts 1914, p. 53) requiring members of tbe commission to be freeholders is in violation of section 32 of tbe Constitution, declaring that, as a rule, every person qualified to vote shall be eligible to bold office. Tbe freeholder requirement is not separable from tbe other provisions of tbe act, and hence tbe whole act is unconstitutional.</p>

<p>1. Boundaries—Acts 1912, pp. 133-4—Evidence—Admissibility.—In a proceeding under Acts 1912, pp. 133-4 to ascertain and designate the boundary line of real estate, evidence which would have been admissible in an action of ejectment or unlawful detainer involving the boundary line between said parcels of land, is competent and should be received.</p> <p>2. Boundaries—Location on Ground—Evidence—Admissibility—Old Fence.—On the question as to the location on the ground of the boundary line between two parcels of land, evidence which tends to show that an old fence was on or intended to be on that line, and that the parties or their predecessors in title had recognized it in whole or in part as the line between the two parcels by the manner in which the said parcels had been used, is admissible.</p> <p>3. Boundaries—Corners of Adjacent Tracts—Deeds to Adjacent Lands Admissible.—It is a common practice in actions of ejectment for surveyors to run from established comers of adjacent lands, though owned by others than parties to the litigation, as a means of ascertaining corners or lines in dispute. Whenever deeds or grants conveying adjacent land tend to identify and fix a disputed boundary, the general rule is that they are admissible in evidence.</p> <p>4. Appeal and Error—Case Heard by Trial Court—Rule of Decision When Evidence Is Certified.—Where a case at law is submitted to a court for its decision, without the intervention of a jury, and a party excepts to the decision on the ground that it is contrary to the evidence, and the evidence, and not the facts, is certified, the rule of decision in the appellate court is to give the judgment of the trial court upon the evidence the same effect as if it were the verdict of a jury.</p> <p>5. Boundaries—Proceeding under Acts 1912, p. 133—Right of Court to Order Survey of Its Own Motion.—The provision of the act of March 4, 1912 (Acts 1912, pp. 133-4) authorizing the court to direct surveys to be made on the application of either party, was not intended to prevent the court of its own motion from ordering such survey or surveys as it might deem necessary to give effect to its judgment as to what constituted the boundary between the parties by locating and marking the line on the ground. It is not only the right, but the duty, of the court to have such survey or surveys made whenever deemed proper.</p> <p>6. Boundaries—Report of Surveyor—Objections to.—Objections to a surveyor’s report (in a proceeding under the statute to ascertain boundaries) on the ground that the directions to the surveyor were too indefinite, that the survey was made during the term at which it was ordered without notice, that it involved persons not parties to the proceedings, and that plaintiffs in error. were not permitted to except to the action of the surveyor or to the survey, are without merit, and should be overruled where it appears that the directions to the surveyor told him at what point to begin and to what points he should run in making the survey, and the survey was ordered to be made forthwith and was made the next day; and the surveyor reports that it was made in accordance with the court’s direction, and there was no exception to the report by either party, either on the ground that it was not made in accordance with the court’s direction, or that he did not have notice when the survey was made (if any notice was necessary in making such a survey) and where there is nothing to show that either party was prevented from excepting to the surveyor’s report.</p> <p>7. Boundaries—Offer of Compromise—Refusal to Accept.—Where a defendant in a petition to ascertain a boundary between him and the plaintiff has refused to accept an offer of a compromise line made in said petition, and has denied the right of the plaintiff to the line both in his pleadings and proof, he has no right to claim any benefit from such offer.</p>

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

<p>1. Negligence—Proof of.—Negligence cannot be conclusively established by a state of facts upon which fair-minded men will differ.</p> <p>2. Demurrer to Evidence—Facts Which Jury Might Have Found— Contributory Negligence.—When the consideration of the evidence is taken from the jury by a demurrer to the evidence, if the jury could have found therefrom that the demurree was free from negligence proximately contributing to the causes of injury complained of, the court must so find.</p> <p>8. Demurrer to Evidence—Lack of Contributory Negligence—What Jury Might Have Found—Case at Bar—Railroads—Grade Crossing.—The negligence of the defendant proximately causing the injury complained of being conceded, the evidence was ample to warrant the jury in finding that the plaintiff’s servant in charge of his wagon and team which were destroyed, was without negligence contributing to the cause of the injury, and hence the court must so find. In the case at bar,, plaintiff’s horses were killed and his wagon destroyed by collision with one of defendant’s trains at a grade crossing of a public road. The plaintiff’s driver checked his team to a slow walk forty yards from the crossing and looked and listened for approaching trains but heard none, and then started to the crossing a fast walk or little trot and collided with a passenger train running fifty miles or more an hour. It was admitted that no crossing signal was given by the defendant, and that it was negligent. Upon these and other facts the defendant, on its demurrer to the evidence, was held liable.</p>

<p>1. Judgments&emdash;Validity&emdash;Jurisdiction&emdash;What Constitutes.&emdash;A which passes upon matters entirely outside of the issue raised hy the pleadings is to that extent invalid. Jurisdiction consists in the right to adjudicate concerning the subject in the given case. To constitute it, the court must have cognizance of that class of cases, the parties must be present, and the point decided must be, in substance and effect, within the issue made by the pleadings.</p> <p>2. Estoppel&emdash;Matters Outside of Issue&emdash;Judgments&emdash;Opportunity to he Heard&emdash;Notice.&emdash;While it is the policy of the law to settle disputes between litigants once and for all, when brought courts of competent jurisdiction, it is also the policy of the law to put every litigant on notice, by proper pleadings, of what he is called upon to meet; and when he has this notice, to give him an opportunity to make defense thereto, but the courts have never gone to the extent of holding that a party, or adult, is estopped to assert a right by reason of in a proceeding to which he was never a party or a privy of a party litigant, and in which his rights in and to the matter of litigation were at no time put in issue, and he given an opportunity to be heard in the assertion or defense of his rights.</p> <p>3. Judgments&emdash;Matters Outside of Issue&emdash;Collateral Attach.&emdash;A or decree which is entirely outside of the issue raised in the record is invalid and will be treated as a nullity even in a collateral proceeding. No conclusive effect can be given to a judgment which is absolutely void, whether its invalidity from want of jurisdiction over the parties or over the of the controversy, or from a want of authority in the court to go beyond the pleadings and evidence and render a judgment on a matter not in issue or not submitted to it.</p>

<p>1. Taxation—Merchant's License—Tax on Manufacturers—State Policy.—Except as provided by section 135 of the Code no merchant’s license is required of a manufacturer, whether resident or non-resident, upon articles manufactured by him. The policy of the State, as clearly appears from our tax laws, is to encourage manufactures within its limits, to induce them to come into the State and to establish their plants and thereby contribute to the general prosperity of the State, and hence there is no general provision in the tax laws for a tax on manufacturers other than a tax on their capital.</p> <p>2. Taxation — Non-Resident Packers—Manufacturers—Butchers—License.—Under the tax laws of this State imposing a license tax on merchants, graduated in amount by their actual purchases during the preceding twelve months, a non-resident pork packing company, which does not sell in this State pork or beef slaughtered by it, but only sausage, head cheese, mince meats and other like products produced by it, and articles purchased by it from others, is not liable to the license tax imposed by section 45 of the tax bill as to such articles manufactured by it. As to such articles it is a manufacturer and not a merchant, and the license tax, which includes butchers, is to be graduated by its “actual purchases.”</p> <p>3. Merchants—Definition.—A merchant is one whose business is to buy and sell merchandise, and the term embraces all persons who habitually trade in merchandise.</p>

<p>1. Pleading—Special Plea Under Section 3299 of Code—Rescission.— While a special plea under section 3299 of the Code is not available as a defense to a bond for the purchase-price of real estate, if the defense is such as to require a rescission of the contract and a reinvestment of the vendor with the title to the property, the defenses set up in the special pleas filed in the case in judgment do not involve the rescission of the contract or a reinvestment of the title in the vendors. On the contrary, the vendee never acquired title to the property.</p> <p>2. Contracts—Sale of Land—Ability of Vendor to Perform—Time of [ Performance.—In order to recover for the breach of a contract by a vendee, the vendor must himself be able to keep and perform the contract on his part, but it is not necessary for him to be able to convey such title as he contracts to convey at the time he enters into the contract, but he must be able to do so when he is required by the terms of the contract to perform on his part.</p> <p>3. Contract for Sale of Land—Tender of Price—Reasonable Time to Deliver Deed.—Where a party, having a forty-day privilege to buy land at a stated price, tenders the price and demands a deed immediately, not having given any prior notice of his intention to take the land, the vendor is entitled to a reasonable time within which to deliver the deed.</p> <p>4. Contract for Sale of Land—Right to Demand Recorded Title.— Unless the contract for the sale of land requires a perfect record title, the purchaser, as a rule, is not entitled to demand such title, if the title is in fact good. If he could, a vendor who had 'acquired a perfect title by adversary possession, or under an unrecorded deed, could not enforce the provisions of his contract at law or in equity if the purchaser saw fit to resist on that ground.</p> <p>5. Vendor and Purchaser—Objections to Title—Title of Vendor Good Bui Not Recorded.—If the purchaser of land declines to accept the title of his vendor on grounds which are not valid, he cannot thereafter defeat the recovery of the purchase price by his vendor on the ground that the record did not show that the vendor had a good title, when in fact he did have such title, and when the apparent defect in the title was not actually known to either party, and did not in any way affect their action.</p> <p>6. Vendor and Purchaser—Liens on Land—Satisfaction.—Whether or not debts secured by a deed of trust on land sold by the vendor had been completely satisfied was a question for the jury upon all the evidence in the cause.</p> <p>7. Evidence—Admissibility—Harmless Error—Sufficiency of Advertisement of Land.—A plaintiff having obtained an instruction from the court “that the only question as to the sufficiency of the advertisement was the good faith of the plaintiff in selecting the method in which it was made” is not prejudiced hy the refusal of the court to hear evidence that the same land after-wards brought a less price at a public-sale largely advertised.</p> <p>8. Vendor and Purchaser—Resale—Liability of Purchaser for Deficiency—Case at Bar.-—A purchaser of land at a fixed price agreed that it might be sold at public sale in forty days, and if it did not bring the price agreed he would pay the difference. The purchaser was given the option to take the land at any time before the sale upon payment of the price agreed and interest and the costs of advertising. The purchaser was not prevented from completing his purchase by any act or default on the part of the vendor and the land was sold at auction at the time agreed, and there was a deficiency.</p> <p>Held: The purchaser was bound for the deficiency.</p>

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

<p>Error to a judgment of the Circuit Conrt of Rocking-ham county.</p>

<p>1. Highways—Acquisition by Prescription—Railroads—Crossing.— When a railroad intersects a populous city street, and steps leading down tbe slopes of a cut on both sides of tbe railroad have been in constant, extensive and uninterrupted use by the public for more than twenty years, and such use has been plainly recognized by the railroad company, the public acquires a prescriptive right to use the crossing which cannot be taken away by the company.</p> <p>2. Highways—Root-Way—Code, Section 1294d, Clause 61.—A passway used by footmen only is a highway within the meaning of section 1294d, clause 61, of the Code (1904) giving to cities and towns the right to require railroad companies to station flagmen where any highway or street is crossed within the corporate limits of such city or town.</p> <p>3. Highways—City Street—Regulation and Control.—A passageway over a railroad track in a city which has become one of the highways of the city is subject to the reasonable regulation and control of the council.</p> <p>4. Railroads—Highway Crossing—Changes—Public Benefit.—When the public has acquired the right to use a railroad crossing, the test as to the changes to be made from time to time in the crossing is generally to be found in the varying needs and requirements of the public, and not in the increased traffic and business of the railroad company.</p> <p>5. Municipal Corporations — Railway Crossing — Changes — Public Benefit—Continuing Duty.—The duty of municipal corporations to regulate and control the use of public highways on the one hand, and of railroad companies to respond to such regulation and control on the other hand, are continuing duties and are to be exercised with regard to the convenience and necessities of the community.</p> <p>6. Mandamus—Railroads—Obstructing Highway.-—Mandamus is the proper remedy to compel a railroad company to replace steps forming a part of a public highway which have been removed by the company or its servants.</p>

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

<p>1. Blls of Exception—Signing After Thirty Days—Compliance with Statute—Nunc Pro Tunc Orders.—Bills of exception are of statutory origin, and the provisions of the statute must be strictly complied witb. Under the statute of this State, a bill of exception cannot be signed more than thirty days after the adjournment of the court, except by consent of the parties entered of record, and an error in stating that the defendant, instead of the plaintiff, excepted, cannot be cured by a nunc pro tunc order made after the expiration of the thirty days.</p> <p>2. Appeal and Error—Instructions—Bill of Exception.—This court cannot consider alleged errors in giving and refusing instructions which are not made a part of the record by a proper bill of exception.</p>

<p>Error to a judgment of the Circuit Court of Augusta county in proceeding in the nature of a writ of quo warranto. Judgment for the relator. Defendant assigns error.</p>

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

<p>1. ' Jurors—Disqualification.—A juror is not rendered incompetent to sit in a case by the fact that his brother has a similar suit pending against the same defendant involving a similar state of facts.</p> <p>2. Evidence—Deeds—Recital of Payment of Consideration.—The recital in a deed conveying land that the whole consideration thereof has been paid is only prima facie evidence of the fact of payment, and may be contradicted by parol evidence.</p> <p>3. Statute oe Frauds—Executed Contract for Sale of Land.—Where a contract for the sale of real estate has been executed by a deed of conveyance to the purchaser and all that remains to be done is the payment of the purchase money, the case is not within the statute of frauds.</p> <p>4. Principal and Agent—Credit Extended to Agent—Release oí Principad—Case at Bar.—When an agent contracts with a third person for a known principal and credit is extended to the agent, the principal cannot afterwards be held liable upon the contract, but in the case at bar there was evidence which the jury had the right to believe that the credit was not extended to the agent but to the principal, and their verdict so finding cannot be disturbed.</p>

<p>1. Master and Servant—Sudden Death of Servant—Negligence to be Proved.—Tbe case at bar is one of sudden death from unexplained causes. The evidence does not disclose negligence on the part of the master, and it cannot be inferred in the ab-' sence of proof of facts from which the inference could be fairly drawn. Actionable negligence cannot be left entirely to conjecture, but some fact or facts must be shown by the party alleging negligence and who has the burden of proof on that question, by which the existence of negligence can be determined by the jury.</p>

<p>1. Telegraph and Telephone Companies—Interstate Telegrams—Regulation by Congress—State Statutes Superseded.—The Congress of the United States has occupied the field of regulation with respect to interstate telegrams, and hence the State statutes imposing penalties for failure to make prompt delivery can no longer be invoked in such cases. The act of Congress has ousted the State of jurisdiction over the subject.</p> <p>2. Appeal and Error—Costs—Judgment Against Beneficial Plaintiff— Code, Section 3546.—Where it appears from the record that the recovery in the trial court was for the use of a designated person other than the nominal plaintiff, this court, on reversing the judgment of the trial court, will give judgment for costs against the beneficial, and not the nominal, plaintiff in the ■ court below. Such judgment is within the spirit, if not the letter, of section 3546 of the Code, as well as within the control of the sound reasoning of the court, in well considered cases decided by it.</p>

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

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

<p>1. Criminal Law—Violation of Election Laws—When Immune from Prosecution—Code (1904), Section 145a.—A witness who has testified in a contested election case as to violation of the election laws, including violations of the provisions of section 145a of the Code (1904), and whose evidence was directed specially to violations of said section, is, by clause 9 of that section, immune from prosecution for any offense against said section or against the other election laws committed by him at or in connection with the same election.</p>

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

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