Volume 117 — Virginia Reports

<p>1. Judgments—Fifteen Days’ Notice—How Time Computed—Code, Section 3211.—In a proceeding by motion under section 3211 of the Code,' allowing a judgment to be taken “after fifteen days’ notice,” the day of service of the notice is to be counted in computing the fifteen days. Hence a judgment is valid, where the notice was executed June 9 and judgment taken June 24.</p> <p>2. Pledges—Notes As Collateral—Attempt to Sell—Right of Holder to Sue.—In this jurisdiction, an attempt to sell notes pledged as collateral for a loan, is not a prerequisite to the holder’s right to sue on them.</p> <p>3. Bill of Discovery—Responsive Answer—Effect.—An answer responsive to a bill of discovery must be taken as true, unless overcome by other evidence.</p> <p>4. Bills and Notes—Pledge as Collateral—Holder is Owner—Equities.—The holder of negotiable paper as collateral is its owner. One taking negotiable paper before maturity as a collateral security is, for all practical purposes, the owner of it and a bona fide holder for value, may collect it, at least to the extent of the debt for which it was pledged, without regard to the equities between the original parties, whether arising out of the original transaction or from subsequent dealings.</p> <p>5. Bills and Notes—Pledged as Collateral—Payments to Payee. A pledgee of negotiable paper before maturity is not affected by a payment made by the maker to the payee, though made in good faith, without knowledge of the assignment by the payee as collateral security, unless the maker can prove that such payment was made with the knowledge and consent of the pledgee, or was subsequently ratified by him.</p>

<p>1. Intoxicating Liquors •—• Interstate Shipments — Webb-Kenyon Law—To What Cases Applicable.—It not being a violation of the law of the State of North Carolina for a common carrier to receive, transmit and deliver intoxicating liquors to parties in that State for their personal use, such shipments are not prohibited by the act of Congress known as the Webb-Kenyon law, for that statute only applies to shipments or transportation made in violation of the law of the State into which the shipment is made.</p>

<p>1. BROKERS—Real Estate Agent—Commissions.—As a general rule, a real estate broker, to be - entitled to his commission, must show that he has completed his undertaking according to its terms, or that its completion was prevented, without his fault, by his principal at a time or under circumstances when the latter had no right to interfere.</p> <p>2. Brokers—Real Estate Agents—Commissions—Case at Bar— Limited Powers.—Where the authority to a broker to sell land provides that “unless the place is sold or contracted to be sold in writing on or before November 28, 1913, the whole proposition is withdrawn,” the broker does not become entitled to his commission by merely producing a customer who is ready, willing and able to purchase. He is required, within the time fixed by the contract, to sell to his customer, or to secure a contract in writing from the customer binding him to purchase upon the terms upon which he was authorized to sell. The refusal of each of the parties to sign a contract prepared by the other, containing terms different from those given to the broker, did not prevent the broker from obtaining from the customer a contract in accordance with said terms, duly signed, and tendering the same to his principal, and until this was done he was not entitled to his commission.</p>

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

<p>Error to judgment of the Corporation Court of the city of Radford. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1., Life Insurance-—Insurable Interest.—One taking out a policy of insurance on the life of another person for his own benefit, or taking an assignment of a policy- on the life of another (prior to Acts 1902-3-4, p. 256) must have an interest in the continuance of the life of the insured, otherwise the transaction is a mere speculative or wager contract and is void because contrary to public policy.</p> <p>2. Life Insurance—Insurable Interest—What Constitutes—Son-in-Law.—An insurable interest in the life of another is such an interest arising from the relations of the party obtaining the insurance, either as creditor or surety for the assured, or from ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of the life. It is not necessary, however, that the expectation of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child, and a child in the life of his parent, and husband and wife in the life of each other, and so it has been held of brother and sister and grandparent and grandchild, but beyond this the courts have not gone. A son-in-law has no such interest in the life of his father-in-law.</p> <p>3. Life Insurance—Insurable Interest—Good Faith.—Good faith alone is not sufficient to sustain a policy of insurance taken out upon the life of another by one who has no interest in the continuance of such life.</p> <p>4. Executors and Administrators—Failure to Settle Accounts'— Commissions.—An administrator who has made no settlement of his accounts as required by law, and who offers no reasonable or sufficient excuse for his failure to perform this plain and mandatory duty, is not entitled to receive commissions on that part of the funds of the estate received by him which goes to persons who have not waived such settlements.</p>

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

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

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

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

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

<p>1. Evidence—Complete Parol Contract—Negotiations Leading up to Contract.—In an action to recover the price of machinery sold and delivered where the defense was false representations as to the condition and capacity of the machinery, after a consummated and completed oral contract of sale had been established, it was not error to admit evidence of personal interviews and negotiations between the parties or their representatives which led up to and resulted in the sale.</p> <p>2. Warranty—Breach—Case at Bar—Changes in Machinery— Failure to Work.—The seller of machinery who warrants it to be “strictly up-to-date and in first-class working condition,” cannot escape liability for a breach of warranty by showing that the buyer discarded an essential part of the machinery and substituted another device in its stead, where it appears that the machinery could not be made to work satisfactorily with the discarded piece, which was antiquated and inefficient, and that what was substituted was a modern and efficient piece of machinery, and that the substitution was made upon the advice of the seller’s agent, who was sent by him to install the machinery and put it into operation.</p> <p>3. Evidence—Warranty That Machinery Is Modern—Evidence That It Was Second Hand.—Where a purchaser of machinery relies upon a breach of warranty that the machinery is “moddern, up-to-date, and strictly first class in every respect,” it is permissible for him to show that it was second hand when his vendor bought it.</p> <p>4. Evidence—Declarations of Agent in Course of Agency.—Where the seller of machinery denies liability on his warranty of fitness, because the buyer discarded and refused to use an essential part of it, the statement of the seller’s agent and servant sent to install the machinery that the discarded part was of no value and he advised that it be discarded, is admissible in evidence against the seller.</p> <p>5. Instructions—Jury Fully Instructed.—Where the jury have been fairly and fully instructed on every material point involved in a case, it is not error to refuse to give other instructions requested.</p> <p>6. Instructions-—Read as a Whole—Defective Statements in Some.—Instructions in a case are to be read as a whole, and if, when so read, it can be seen that the instructions could not have misled the jury, their verdict will not be disturbed,, even though one or more of the instructions was defective.</p>

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

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

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

<p>1. Boundaries—Inland Lake or Pond—Adjacent Owner—Center of Pond—Boundary “Along” or “With” Pond—Extent.—The owner of land adjoining an artificial lake or pond created by damming an ordinary stream takes to the center of the pond unless excluded from such right by deed or contract. A conveyance of land bounded by such pond extends as far as the title of the grantor extends. It makes no difference that the ordinary terms of boundary, as “along” or “with” the pond are used; the title will nevertheless go to the- center if the grantee owns to that point. The age of the pond is immaterial.</p> <p>2. Adverse Possession—Boating and Fishing on Pond—Exclusive— Hostile.—Pishing and hunting on a pond, renting boats to others to fish and hunt thereon and instructing one’s agent not to permit others to boat or fish on the pond without the principal’s permission, are not such acts of adverse possession as will confer title as against an adjacent owner who used the pond for boating and fishing whenever he desired to do so. The occupancy necessary to create title by adverse possession must be hostile and exclusive.</p> <p>8. Appeal and Error—Appellant Not Injured—Center of Pond as Boundary.—Where the thread of a stream feeding a pond is nearest the side of appellant, he is not injured by a decree declaring the center of the pond to be the true boundary between him and the owner on the other side.</p>

<p>Appeal from a decree of the Circuit Court of Tazewell county. Decree for petitioner who intervened in suit. Complainant appeals.</p>

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

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

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

<p>1. Wills—Construction—Case in Judgment—Provision for One Who Subsequently Becomes Insane—Acceptance by Committee.—A testatrix, by a codicil to her will, directed that her daughter should be allowed to take at a specified price to be paid within six months after the probate of her will, a designated tract of land which, by her will, she had devised to certain of her grandchildren. The daughter was thereafter adjudged insane, her husband was appointed committee of her estate, and she was committed to a hospital for the insane. The testatrix lived four years thereafter, and, with full knowledge of the facts, made no change in her will. In the meantime, the land greatly increased in value. Within the time prescribed by the will, the committee of the daughter filed a bill asking to be allowed to accept the land for the daughter upon the terms mentioned in the will, and tendered the purchase price with his bill. The purchase price was advanced by the husband of the daughter, who was her committee, and who bound himself to subject neither the lunatic nor her estate to any charge for interest during her lifetime.</p> <p>Held: Infants and insane persons are the wards of the court, and it is the duty of the court to protect them, when it can be done, in their rights and interests, and hence the relief prayed by the committee should be granted. He should be allowed to accept for the lunatic the provision made for her by the will, and thus carry into effect the provisions of the will.</p> <p>2. Wills—Construction—Intent—Change of Circumstances—No Change of Will.—The wishes of a testatrix must be ascertained from the will. If a testatrix has failed to make any change in. its provisions, notwithstanding a change of circumstances, then the courts must refuse to make any change. Por the court to make change might flagrantly violate the wish and intent of the testatrix, and thus violate the cardinal rule that every competent person has the right to dispose of his property as he may choose.</p>

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

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

<p>Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in a proceeding by way of motion for a judgment for money. Judgment for the plaintiffs. Defendant assigns error.</p>

<p>1. Parent and Child—Custody of Child—Foster Parents—Welfare of Child.—Ordinarily a father is entitled to the custody of his infant child, but the court will exercise its discretion according to the facts, and continue what will be best calculated to promote the child’s welfare; and especially is this true in cases where the father has voluntarily relinquished the custody of his infant child to a suitable female relative in whose" care the child has grown and expanded, and warm ties of affection and love have sprung up between it and its foster parents. In such cases the welfare of the child is the prime consideration in determining the controversy. In the case at oar, the foster parents are people of the highest moral character, not rich, but of sufficient means to maintain a comfortable Christian home. They have been in the highest sense father and mother to her. The child is happy and contented, and all of her environments are suitable and safe, and. her future welfare seems assured. To change the custody to that of the father would be, at best, experimental, and the welfare of the child seems clearly to demand that the change should not be made.</p>

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

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

<p>1. Logs and Logging—Timber Contracts—Fixed Period to Cut and Remove—What Passes—Conditions.—A deed conveying standing timber to be cut and removed within a fixed period does not convey an absolute and unconditional title to the timber, but only conveys title to such as may be cut and removed within the fixed period. The provision for cutting and removing within a fixed period is not a covenant but a condition.</p> <p>2. Logs and Logging—Timber Contracts—Extension of Time—Notice and Payment.—Under a timber contract allowing a purchaser a certain additional time within which to cut and remove timber “upon the payment of fifteen dollars a year for the said additional time,” if the purchaser desires to have the additional time, he must notify his vendor of his intention to claim the extension, and pay or tender the price agreed for the extension on or before the expiration of the first period fixed for the cutting and removal.</p>

<p>1. Municipal Coepoeations—Annexation of Territory—Validity of Statute.—The statutes of this State for the annexation of additional territory to cities and towns of the State are constitutional and valid enactments.</p> <p>2. Municipal Coepoeations—Annexation of Territory—Necessity or Expediency—How Determined—Opposition to Annexation. The necessity for and the expediency of enlarging the territorial limits of cities and towns is determined by the health of. the community, its size, its crowded condition, its past growth, and the need in the reasonably near future for development and expansion. These are matters of fact, and when they so exist as to satisfy the judicial mind of the necessity for or the expediency of annexation, it should be ordered, on the proper application of the city or town, although opposed by the county authorities, the Citizens of the territory proposed. to be annexed, and a considerable number of the citizens of the city or town asking the annexation.</p> <p>3. Municipal Coepoeations — Annexation of Territory—Public Health—Case at Bar.—It is not a sufficient defense to the demands of a city that its corporate limits be extended for sanitary reasons to point to the fact that the health of its citizens is and has been good for some years. A municipality has the right, and it is its duty, to take such precautionary measures as may be reasonably deemed necessary to secure to its population continued good health. In the case at bar, the density of the population, the crowded and congested condition existing therein, as well as the conditions existing in the territory adjacent to the city and proposed to be annexed, imperil the health not only of the city, but of the citizens residing and conducting business adjacent thereto.</p> <p>4. Municipal Corporations—Annexation of Territory—Public \ecessity—Public, Policy—Function of Courts.—The policy of annexation of territory to a city, as a public necessity, was determined by the legislature when it enacted the statute providing for its accomplishment under the conditions specified in the act. The courts are not called upon to express any opinion as to its wisdom as a matter of public policy. They have only to determine whether, upon the facts and circumstances established by the evidence, the city is entitled to any extension at all, and if any, how much, and the terms and conditions upon which such extension shall be granted.</p> <p>5. Municipal Corporations—Annexation of Tm-ritory—Annexation of Part—Case at Bar.—Under the statute of this State, the court is not obliged to annex all the territory sought to be annexed to a city, but may annex such part only as to it seems to be necessary or expedient. In the case at bar, the annexation of that part of the territory sought to be annexed designated in the opinion of the court is both necessary and convenient, and violates none of the established rules of law applicable in such cases, and is entirely within the letter and spirit of said rules.</p> <p>6. Municipal Corporations—Annexation of Territory—Increased Taxation—Swamps.—The fact that lands proposed to be annexed to a municipality will be subject to an additional or municipal tax, or a tax to pay a pre-existing debt of the municipality, or that parts of the territory proposed to be annexed are low and marshy, are not of themselves valid objections to annexation.</p> <p>7. Municipal Corporations—Annexation of Territory—Sufficiency of City Ordinance.—A city ordinance for the annexation of adjacent territory which substantially complies with the statute regulating such annexation, and sets forth the case of the city with as much fullness and detail as is practical under the circumstances, is all that is necessary.</p> <p>8. Municipal Corporations—Annexation of Territory—Change oj Voting Districts—Constitutional Law.—The statute regulating the annexation of territory to a city or town was passed in pursuance of section 126 of the Constitution regulating the apportionment of the State into senatorial and house districts, although it changes the voting district of persons residing in the annexed territory. Such changes must have been within the contemplation and intent of the enactors of the Constitution.</p>

<p>1. Wills—Construction—Heirs.—The word “heirs” as used in the will under consideration is used as synonymous with “children.”</p> <p>2. Judgments—Res Judicata—When Second Suit Not Barred— Case in Judgment.—While it is a matter of public interest that there shall be an end of litigation, that consideration cannot be allowed to deprive a litigant of an opportunity to submit his cause to a competent tribunal for hearing and judgment. Where the issues involved in a second suit were neither within the pleadings nor evidence in the first, and especially, where, as in the case in judgment, the facts and circumstances upon which the issues in the second suit are founded had no existence when the first was brought, but have subsequently arisen, the second suit is not barred by the first.</p> <p>3. Wills—Gift to Children of Living Man—Partition in His Lifetime.—Under a will devising real estate to the children, born and to be born, of a living man, to be managed by him for their benefit during his lifetime, and in the event of his death, to remain undivided until the youngest child shall be 21 years old, there can be no division of the principal of the estate during the lifetime of the father of the children, although the birth of a child to him in the future be a remote possibility.</p> <p>4. Wills—Gift to Children Share and Share Alike—Blended Trust. A will such as is mentioned in the preceding paragraph but which declares that the children are to take “share and share alike” does not create a blended trust in the property, the income from which is to be distributed among the children according to the discretion of the trustee.</p> <p>5. Trusts and Trustees—Accounting—Present Right to Profits.— After-Born Children.—Where the rights of claimants of property in the hands of a trustee are fixed, subject only to open up and let in after-born children, they have a present right to demand an accounting by the trustee for their proportion of the income from the estate.</p>

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

<p>1. Appeal and Error—Grounds Should be Stated in Petition.—A ground of error intended to be relied on for reversal should be mentioned in the petition for the writ.</p> <p>2. • Gas—Negligence.—Although the plaintiff knew in a general way that gas had been escaping in the vicinity and called defendant’s attention to the fact, it was not negligence on his part to strike a match at night near a man-hole in order to locate the valve of a water pipe for the purpose of turning water into his house, when he did not know that gas was leaking into the man-hole, or where it was, and did not smell its odor.</p> <p>3. Negligence—Proximate Results — Foreseeable. — If an act or omission was of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the injury proximately resulting therefrom whether he might have foreseen it or not.</p> <p>4. Gas—Explosion—Negligence. — As illuminating gas is highly dangerous and explosive, persons dealing with it are bound, at all events, to use all-reasonable diligence to prevent an escape which may have such results.</p>

<p>1. Deeds-—Mental Weakness of Grantor—Fraud—Undue Influence. The mental superiority of a grantee over a grantor is not of itself sufficient to avoid a deed where both parties have sufficient capacity to make a contract, but a bill which alleges that a deed was procured by the false and fradulent representations of the grantee, that the grantor lacked sufficient capacity to make a contract, and that the grantee exercised over the grantor an undue advantage and influence to obtain the conveyance, is good on demurrer.</p> <p>2. Appeal ANd Error—Presumption of Correctness of Decree.— There is a presumption in favor of the correctness of the decree of the trial court, and the burden is on the appellant to show that the decree contains reversible error.</p> <p>3. Appeal and Error—Incompetency of Plaintiff to Sue—What Record Must Show.—If a defendant intends to rely, on appeal, on the objection that the complainant is incapable of maintaining a suit in proper person, the objection should be made in the trial court in such manner that it will specifically and affirmatively appear in the record. The question is of . too technical a nature to receive serious consideration when raised for the first time on appeal.</p> <p>4. Fraud and Fraudulent Conveyances—Case in Judgments— Upon the evidence in the case in judgment, it is held that the conveyance sought to be set aside was the result of ignorance and imbecility of the grantors, and of deliberate imposition and fraud on the part of the grantee, and that the alienee of the grantee was chargeable with constructive notice of such fraud.</p> <p>5. Fraud and Fraudulent Conveyances—Purchaser from Fraudulent Grantee—Restitution.—A purchaser from a fraudulent grantee of land, who has notice of the fraud, cannot claim of the original grantor restitution of the consideration paid by him.</p> <p>6. Fraud and Fraudulent Conveyances—Ratification.—Before a ratification of a deed obtained by fraud can be binding it must be made with full knowledge of the rights intended to be waived; and the fact that the person defrauded has waived his rights and has intended to waive them must plainly appear.</p>

<p>1. Equity Jurisdiction—Tenant by Curtesy—Suit Against Remainderman—Partition.—The grantee of a tenant by the curtesy cannot maintain a bill against the remaindermen for a sale of the land against their will where it appears that neither plaintiff nor the defendants are under any disability whatever; there is no obscurity or difficulty as to the title, and the defendants own a vested remainder in fee in the land. The fact that the taxes on the land are onerous and that the life tenant cannot derive a profit without cutting and removing the timber, from the land does not alter the case. Equity has no jurisdiction to take the property of one and transfer it to another when neither is under any disability.</p> <p>2. Tenant by Curtesy—Suit to Sell Land—Code, Section 91,36a— Constitutional Law—Demurrer.—If section 2436a of the Code (1904) is to be construed as conferring a right upon the life tenant by the curtesy, or in dower, to demand and require a sale of the real estate in which he or she is interested, where all of the parties are sui juris, and the estate of the remaindermen is vested, the statute is unconstitutional as an unwarrantable interference with the rights of property, and as denying the equal protection of the laws.</p>

<p>Erroi’ to a judgment of the Circuit Court of Goochland county in an action of ejectment. Judgment for the defendant. Plaintiffs assign error.</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>Error to a judgment of the Circuit Court of Henrico county in an action of trespass on the case. Judgment for the plaintiffs. Defendants assign error.</p>

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

<p>1. Negligence — Last Clear Chance — Principle of Doctrine—Concurring Negligence.—The doctrine of the last clear chance is a qualification of the general rule that contributory negligence bars a recovery, and the principle of the doctrine is that, although the plaintiff has been negligent in exposing himself to peril, and although his negligence may have continued until the accident happened, he may nevertheless recover if the defendant, after knowing of his danger and having reason to suppose that he may not save himself, could have avoided the injury by the exercise of ordinary care, and failed to do so. It is distinguished from “concurring negligence” by the fact that in last clear chance the defendant discovers, or by the exercise of ordinary care should have discovered, the peril of the plaintiff, and has the opportunity of preventing the injury, but fails to do so.</p> <p>2. Pleading—Declaration—Bill of Particulars—Demurrer.—Where a declaration states a case, but the defendant wishes a more specific statement of particulars than is contained in the declaration his remedy is to call for a bill of particulars under section 3249 of the Code, and not by demurrer.</p> <p>3. Instbuctions — Misleading—Relevancy. — Where the negligence charged in the declaration and shown by the evidence was on the part of the conductor in charge of the train, it was not error to refuse to instruct the jury that there could be no recovery unless they believed that the servants in charge of the engine were guilty of negligence. If the words “servants in-charge of the engine” referred to the conductor, they were misleading. If to the engineer and fireman, they were irrelevant to the case alleged in the declaration and supported by the evidence.</p> <p>Negligence—Last Clear Chance—Party Not in Possession of Faculties.—While the doctrine of the last clear chance is frequently applied to cases in which the injured party is not in possession of his faculties, it is also applied to other cases.</p> <p>5. Instructions—Ignm'ing Theory of Case—Last Clear Chance.— Where the plaintiff’s case is rested upon the doctrine of the last clear chance, and his evidence is directed to its proof, an instruction which ignores the doctrine as applicable to the case is properly rejected.</p> <p>6. Negligence—Last Clean* Chance—Lapse of Time.—If defendant’s servant, in the exercise of ordinary care, had sufficient time to observe the plaintiff’s peril, and save him from injury, but failed to do so, it is immaterial how short the space of time was. The lapse of time if appreciable, is usually immaterial in such cases.</p> <p>7. Instructions—Invited Error.—If a party has secured an erroneous instruction without objection from the other party, he cannot complain if the jury did not follow it.</p> <p>8. Railroads—Negligence—'Trespasser—Licensee—Invitee. — Under the facts of the case at bar, the duty of the defendant to avoid injuring the plaintiff was the same, whether he was a trespasser or an invitee.</p> <p>9. Excessive Verdict—Personal Injtvry.—A verdict of $18,000 for a personal injury resulting in the plaintiff losing a leg, suffering great pain and incurring expenses of upwards of $8,000 cannot be said to be excessive.</p>

<p>1. Railroads—Negligence—Last Clear Chance—Case at Bar.—In order that the doctrine of the last clear chance may apply it must appear that, in contemplation of the entire situation, after the danger of the plaintiff became known to the defendant, or ought to have been discovered by him by the exercise of ordinary care, the defendant negligently failed to do something which he had a clear chance to do to avoid the accident. The doctrine has no application where, as in the case at bar, the negligence of the plaintiff’s intestate and that of the defendant, if there was any such, were so closely connected in point of time as not to have afforded the employees of the defendant a plain opportunity to avoid inflicting the injury for which the action is brought.</p>

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

<p>1. Demurrer to Evidence—Conflict as to Contributory Negligence. Where the negligence of the defendant is conceded, and the evidence on the question of the contributory negligence of the plaintiff is in irreconcilable conflict, involving the intelligence, integrity and veracity of opposing witnesses, on a demurrer to the evidence by the defendant, the court should enter judgment for the plaintiff.</p> <p>2. Evidence—Positive and Negative Witnesses—Opportunity for Observation.—The positive testimony of a single credible witness that he saw or heard a particular thing at a particular time ought ordinarily to outweigh that of a number of witnesses, equally credible, who, with the same opportunity, testify that they did not see or hear it, but where a witness who denies a fact in question has as good opportunity to see and hear it as he who affirms it, and his attention, because of special circumstances, was equally drawn to the matter controverted, the general rule that the witness who affirms a fact is to be believed rather than he who denies it, does not hold good. The denial of the one in such case constitutes positive evidence as well as the affirmance of the other, and produces a conflict of testimony to be decided by the jury.</p>

<p>1. Wills—Signature by Initials—Validity—Finality.•—A holograph will to which the testator affixes the initials of his name at the end of the writing is sufficiently signed under the statute of this State, and the position of such initials furnishes sufficient evidence of finality and completion of intent.</p> <p>2. Signature—What Constitutes.—What constitutes a signature must largely depend upon the circumstances of each particular case, though in all cases the intent is a vital factor. Whatever symbol is used, it must appear that it “is intended as a signature.”*</p> <p>3. Witnesses—Husband and Wife—Privileged Communications.— Communications between husband and wife made in the presence of third persons are in no just sense either confidential or privileged.</p> <p>4. Wills—Revocation—Subsequent Will Not Signed.—The fact that a testator, after duly executing a will, subsequently prepared the draft of' a more formal will giving all of his property to the same beneficiary mentioned in the first will, but never signed it, cannot have the effect of revoking the will which was duly executed.</p>

<p>1. Easements—Grant by Implication—Way of Necessity—Case in Judgment.—Easements are sometimes implied upon a grant of land, because without them the property could not be used by the grantee, or could not be used for the purpose for which it was granted. Sometimes a right of way arises from necessity; the intention of the grantor being inferred from the uselessness of the land to the grantee without the right of way. In the latter case, the inference will not be drawn if there be already another mode of access to the land, though much less convenient or more expensive to develop. Upon the evidence in the case in judgment, the claimants are not entitled to a right of way either by implication or of necessity as they and those under whom they claim have had for a time “when the mind of man runneth not to the contrary” and still have a mode of access to their land which is all the outlet that was or is needed for the convenient use and enjoyment thereof.</p> <p>2. Easements — Silence of Grant — Notice — Rights of Grantee.— Where no private right of way or easement is reserved in the deed itself, and the purchaser has no notice of any claim by third persons of a right of way over the land, he takes the land free from any claim therefor either from the grantor or those claiming under him.</p>

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

<p>1. Demurrer to Evidence—Conflicting Evidence as to Negligence and Contributory Negligence.—Where reasonably fair-minded men might well differ on the question of the negligence of the plaintiff, on a demurrer to the evidence by the defendant, the court must render judgment for the plaintiff.</p> <p>2. Demurrer to Evidence—Statement of Grounds—Jurisdiction.—■ The provisions of the statute requiring the grounds of a demurrer to the evidence to be stated in writing are mandatory, and the court is without jurisdiction to consider such demurrer unless the grounds are so stated, whether there be one or more grounds of demurrer, and although the grounds of the demurrer be known to and understood by the demurree. The statute is a wise one that should be upheld and enforced as it is written, and it is not permissible to modify it by en-grafting exceptions upon it. Bonos v. Ferries Co., 113 Va. 495 and Newberry v. Watts, 116 Va. 730, so far as in conflict herewith, are not approved.</p>

<p>Error to a judgment of the Circuit Court of the city of Lynchburg in a proceeding by motion on a life insurance policy. 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 trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Damages—Personal Injury—Jury to Fix Compensation—Excessive.—In a personal injury case it is for the’ jury to say what compensation the plaintiff is entitled to, and where the injury was serious and the suffering therefrom protracted, we cannot say that their estimate of $2500 is excessive.</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>Error to a judgment of the Circuit Court of Fairfax county in an action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.</p>

<p>1. Evidence—Parol Trust in Land&emdash;Trusts and Trustees.—An express trust in real estate may be created and established by parol in this State, but the declaration must be unequivocal and explicit, and the evidence clear and convincing.</p> <p>2. Evidence—Parol Trust in Land—Varying Written Instrument.—■ As 'an oral declaration of trust in real estate is lawful and enforceable in this State, and can only be proved by oral evidence, it is not within the operation of the rule forbidding the admission of parol evidence to vary, alter or contradict the terms of a valid written instrument.</p>

<p>1. Rent&emdash;Liability of Cotenant in Exclusive Possession.&emdash;A tenant who takes possession of the premises and uses and enjoys the same to the exclusion of his cotenants should be charged, on settlement with his cotenants, with a reasonable rent for his use and occupancy of the property in the condition in which it was at the time he entered into possession thereof, and is not accountable for any of the profits nor liable for any of the losses by reason of his being a good or bad husbandman, and each year’s rent should bear interest from the time it is due.</p> <p>2. Partition &emdash; Questions Affecting Title &emdash; Indebtedness Between Parties&emdash;Code (1904), Section 2562&emdash;Object&emdash;The provision of section 2562 of the Code that, in a suit for partition, a court of equity “may take cognizance of all questions of law affecting the legal title that may arise,” is applicable only to questions affecting the legal title to the subject of partition, and not to matters of general indebtedness between the parties. The object of the statute was to obviate the delays and difficulties which frequently arose in partition suits where questions of title were involved, but there is no provision for the settlement in such suits of all controversies that may arise between tenants in common, growing out of their general indebtedness to each other, which have no relation to or bearing upon the title to the subject of partition.</p> <p>3. Partition&emdash;Right of Third Persons.=&emdash;An undisputed claim by third persons, not parties to a suit for partition, to a mineral right in a part of the land to be sold for partition may be protected by directing the land to be sold subject to such mineral right.</p>

<p>1. Logs and Logging&emdash;Timber Contraéis&emdash;Failure to Cut and Remove Within Time Limit&emdash;Title&emdash;Forfeiture&emdash;Conditions.&emdash; Under a contract allowing a person to cut and remove standing timber within a time specified, the absolute title to the timber never passes out of the grantor until the grantee cuts and removes the timber within the time specified in the contract. There is no forfeiture of the timber remaining uncut or unremoved after the time limit, for there is nothing to forfeit, and there is no implied condition subsequent, because there is an express condition precedent to the passing of the title in the contract itself.</p> <p>2. Logs and Logging&emdash;Timber Contracts&emdash;Time Limit&emdash;Extension&emdash; How Obtained.&emdash;Under a “timber contract” fixing a time limit within which the timber is to be cut and removed, but providing for an extension of the time upon payment of “the yearly interest on the purchase price,” the term “yearly interest” means the interest for one year, and this must be paid ox-tendered and the extension asked before the expiration of the original period fixed by the contract, else all further rights under the contract are lost.</p> <p>3. Logs and Logging &emdash; Timber Contracts &emdash; Failure to Remove &emdash; Title&emdash;Lumber.&emdash;Under a contract to cut and remove timber from the premises within a specified time, trees cut and removed to a saw-mill on the premises, whether sawed into lumber or not, remain the property of the seller, if not removed from tiie premises within the time specified in the contract.</p> <p>4. Logs and Logging&emdash;Timber Contracts &emdash; Extension&emdash;Waiver.&emdash; While the vendor of standing timber may waive his rights both as to the amount and time of payment to be made by the vendee in order to secure an extension, no such waiver arises by his mere failure to demand the prepayment before the time limit fixed by the contract, as he has no right to make any such' demand. The duty to pay or tender the requisite sum within the time prescribed rests with the vendee.</p> <p>5. Logs and Logging—Damages—Lumber Not Removed Within Time Limit.—Where the purchaser of standing trees has sawed logs into lumber and removed it after the expiration of his right of removal, the measure of the seller’s damages is the value of the lumber at the time of removal. If the contract requires the purchaser to cut and remove from the premises within a designated time, the seller has title to all timber, whether standing or cut, and whether manufactured or not, which was not removed from the premises within the time prescribed by the contract.</p> <p>6. Verdicts—Excessive.—The verdict in the case at bar is supported by the evidence, and the damages assessed cannot be said to be so excessive as to warrant the court in setting it aside.</p>

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

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

<p>1. Malicious Prosecution—Conviction Obtained by Fraud—What Declaration Must Aver.—In an action for malicious prosecution, a declaration which alleges, amongst other things, that the plaintiff was convicted of petit larceny by a justice of the peace, but that the conviction was reversed on appeal, and that the defendants, “by mean's of evidence which they knew to be false” caused the plaintiff to be so convicted, without setting forth what that evidence was, or the defendants’ connection therewith, is bad on demurrer. The allegation is, at most, only a conclusion of law, and not an averment of fact. It was absolutely essential to the plaintiff’s right of action that he should have averred either that the defendants gave the false evidence, or that they procured it to be given, neither of which was done. The declaration should also have averred what the “false evidence” was.</p>

<p>X. Limitation of Actions—Claim Payable at Death of Debtor.— Upon a demand payable by the debtor at his death, the statute of limitations only begins to run from the happening of that event.</p>

<p>1. Statute of Frauds—Parol Contract for Sale of Land—Part Performance—Specific Performance.—Where a person has entered into the possession of land and made improvements upon it under a parol contract for its purchase, a court of equity will decree the specific performance of the contract where the parol agreement is certain and definite in its terms, the acts proved in part performance refer to, result from or were made in pursuance of the agreement proved, and the agreement has been so far executed that a refusal of full execution would operate a fraud on the party and place him in a situation which does not lie in compensation.</p> <p>2. Vendor and Purchaser—Failure to Pay Purchase-Money—Forfeiture.—Where the purchaser of land has failed to meet his deferred payments, and time is not of the essence of the contract, the vendor has no right of his own will and without prior notice to the purchaser to declare the purchaser’s contract forfeited. The vendor’s measure of recovery is the principal sum due, with legal interest thereon.</p>

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

<p>t. Divorce—Desertion—Witnesses—Competency of Husband and Wife.—Under the statute of this State, wilful desertion or abandonment for a period of three years is ground for divorce from the bond of matrimony, and in such case the husband or wife may testify.' In the case in judgment such abandonment within the meaning of the statute has been abundantly proved. The husband abandoned his wife for a period of more than three years, with the avowed purpose of not returning to her. During that period he has not cohabited with her, has made no effort to resume marital relations, and has contributed nothing to her support.</p>

<p>1. Insane Persons &emdash; Settlements of Committee &emdash; Finality &emdash; Code (1904), Section 2699.&emdash;The settlements of accounts of committees of insane persons before a commissioner of accounts are final and conclusive under the provisions of section 2699 of the Code, as to all matters therein directly adjudicated, except so far as the same may be surcharged and falsified in a suit brought in proper time.</p> <p>2. Insane Persons &emdash; Settlements of Committee &emdash; Correction &emdash; Equity&emdash;Jurisdiction&emdash;Fraud.&emdash;The settlement by a commissioner of the accounts of the committee of an insane person which has been duly confirmed will not be set aside on a bill which states no ground of fraud, accident or mistake, but merely seeks to correct an error alleged to have been made by the commissioner in his settlement. This is not sufficient to entitle the complainant to reopen the settlement by bill in equity.</p>

<p>í. Affidavit—Agent—President of Corporation.—The affidavit of the president of a corporation, in the absence of any averment therein of his agency, or any other evidence on the subject, is not a sufficient compliance with section 3286 of the Code which requires the affidavit of the defendant or his agent to the plea. The fact that a person is president of a corporation does not per se import agency to make an affidavit for it.</p> <p>2. Office Judgment—Set Aside at One Term—Reinstated at Another—Effect.—If an office judgment is set aside by a plea to the merits at one term of the court, and, at a subsequent term, the plea is stricken out because of the insufficiency of the affidavit supporting it, the office judgment is thereby reinstated and having become final at the term at which the plea was interposed, the trial court was thereafter powerless to amend the pleadings.</p> <p>8. Corporations—Service of Process On—Service of Process on President—When Ten Bays Required.—Service of process on the president of a corporation in the county or city wherein the action is brought and in which he resides may be made at any time before or on the return day of such process. Process on a corporation is only required to be served ten days before the return day when service is on an agent, or in a county or corporation other than that in which the action is brought. Code (1904) section 3227.</p>

<p>Error to a judgment of the Hustings Court, Part II, of the city of Richmond, in a proceeding by motion for a judgment. Judgment for the plaintiff. Defendants assign error.</p>

<p>Appeal from a decree of the Circuit Court of the city of Norfolk. Decree for defendants. Complainants appeal.</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. Carriers — Interstate Shipments — Change of Destination — Terms~How Regulated—What Agreements Void.—A special agreement by a carrier with a particular shipper for the diversion of an interstate car, not made in conformity to its published tariff and conditions as prescribed by the rules of the Interstate Commerce Commission gives to the particular shipper an advantage over other shippers and makes a discrimination in his favor which is prohibited by Act of Congress, and hence is void. The regulations of interstate commerce are not imposed for the benefit of the carrier alone and cannot be waived by him at pleasure. The chief purpose of such regulations is to -put all shippers of the same class on the same plane, and to prevent unfair preferences among them.</p>

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

<p>1. Deeds—Recordation—Chain of Title—Notice.—The record of a deed outside of á purchaser’s chain of title is not constructive notice to him of its contents, although it may contain information relating to the title, but if he sees and reads the deed before making his purchase, he has actual notice of its contents.</p> <p>2. Deeds—Outside of Chain of Title—Recordation—Notice—Case in Judgment.—For a deed and its recitals to operate as constructive notice to a bona fide purchaser of land, it must be a link in the purchaser’s chain of title. A purchaser is not chargeable with constructive notice of all matters of record, but. only of such as the title deeds of the estate refer to, or put him on inquiry for. A prior deed of trust, duly recorded, conveying all of a designated tract of land except ten acres previously sold to A. is not constructive notice to a subsequent purchaser of the ten acres that it had been sold to A., as the deed of trust is no part of the chain of title to the ten acres, and the purchaser thereof does not have to make out his title through it.</p>

<p>Error to a judgment of the Circuit Court of Loudoun county in an action of debt. Judgment for the defendants. Plaintiff assigns error.</p>

<p>1. Husband and Wife—Alienation of Affections—Liability of Parents, Brothers and Sisters—Malice.—Parents may advise their children about their domestic affairs, without incurring liability, if the advice bé given in good faith and prompted by worthy motives, even though such advice results in a separation and estrangement of husband and wife. Bad and improper motives will not be presumed as against parents, but must be clearly proved. The burden in such cases is upon the plaintiff to show that the parent has been prompted by malice; the presumption being that what the parent has said and done has been due to natural affection and to regard for the best interests of the child. When, however, it is made to appear by clear and satisfactory evidence that the parent has been actuated by malice, and has wilfully interfered on that account, and not on account of the welfare of the child, to bring about a separation, an action for damages will lie. The same principles apply in actions against the mother, brothers and sisters as against the father.</p> <p>2. Husband and Wife—Alienation—III Will of Parents.—In an action by a husband against the parents, brothers and sisters of his wife for alienating her affections from him, the mere fact that the defendants manifested ill will towards the plaintiff would not be sufficient to overcome the legal presumption in their favor; but the jury should consider all the facts and circumstances of the case, including the ill will, in determining whether or not the defendants were actuated by malice. In the case at bar, there were sufficient facts and circumstances to justify the court in submitting the question to the jury, and to justify the jury in finding against the defendants.</p> <p>3. Torts—Joint Liability—Degree of Participation.—Although more activity may have been displayed by some of the defendants than others in bringing about the injury complained of, everyone who encourages a wrong or incites the same by words, gestures, looks or signs, or who by any means countenances or approves the same, is in law deemed to be an aider and abetter, and liable as principal.</p> <p>4. Instructions—Refusal to Amend—Fully Instructed.—The judgment of the trial court will not be reversed for its refusal to amend an instruction where it appears that the jury were fully and carefully instructed on the point covered by the proposed amendment and no prejudice could have resulted from its refusal.</p> <p>6. Instructions—Partial View of Case.—An instruction which takes only a partial and incomplete view of the evidence adduced and upon that directs a verdict is properly refused.</p> <p>6. Torts—Joint and Several Liability—Conspiracy.—For a tort by several there may be a judgment against all or any one or any intermediate number of those sued, hence where several are sued for a joint tort by conspiracy it would be error to charge that there could be no recovery against any unless a conspiracy by all were proved. Moreover, difficulties of misjoinder and variance are fully met by sections 3258-a and 3384 of the Code (1904).</p> <p>7. Instructions—Correction of Errors in Instructions Tendered.— Where other correct instructions have been given which are free from ambiguity, there is no duty upon the trial court to modify an incorrect instruction and give it, nor to give a new one in its place.</p>

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

<p>1. Specific Performance&emdash;Parol Trust in Land&emdash;Nature of Agreement&emdash;Statute of Frauds.&emdash;An express trust in real estate can be created in this State by a parol agreement and will be enforced by a court of equity, but, in order to justify such enforcement, the agreement must be certain and definite in its terms, the acts proved. in part performance must refer to, result from, or be made in pursuance of the agreement proved, and the agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation.</p> <p>2. Specific Performance&emdash;Nature of Contract.&emdash;The first requisite of a contract to entitle one to its specific performance in equity is certainty and definiteness in its terms, and all of these terms must have been fully agreed to by the parties and none of them to be determined by future negotiations. The contract sought to be enforced must be made to appear reasonable, clear and definite, both as to terms and subj'ect, and mutual in obligation and remedy.</p> <p>3. Partnership&emdash;Agreement to Form.&emdash;An executory agreement to form a partnership to go into effect at a future day does not constitute a partnership.</p> <p>4. Partnership&emdash;Essentials&emdash;Case in Judgment.&emdash;In every partnership there is a community of interest, though every community of interest does not create a partnership. There must be a j'oint ownership of the partnership funds or a right of control over them, and also an agreement to share the profits or losses arising therefrom. These elements are wholly wanting in the case in j’udgment.</p>

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

<p>1. Exchange op Real Estate&emdash;Equalization of Liens&emdash;Local Custom&emdash;Evidence&emdash;Parol Evidence to Vary Writing.&emdash;Where two parties have exchanged real estate, each assuming existing liens on the property received by him, and deeds have been executed, delivered and accepted by the respective parties, and admitted to record, and the record discloses no element of fraud or mutual mistake in the negotiations, evidence of a local custom that, upon such an exchange, the liens on the property are to be equalized, is inadmissible. The deeds in such case are the final repository of the agreement of the parties and having expressly defined their rights and liabilities with respect to the liens, parol evidence is inadmissible to alter or vary their terms.</p> <p>■2. Appeal and Error&emdash;Correct Verdict&emdash;Rulings on Instructions.&emdash; Where the jury could not properly have found any other verdict than the one they did find, it is unnecessary for this court to consider the propriety of the rulings of the trial court in giving and refusing instructions.</p>

<p>1. Witnesses&emdash;Contradicting One’s Own Witness&emdash;Proving Different State of Facts.&emdash;A party producing a witness may prove the truth of material facts by any other competent evidence, even though the effect of such evidence is to directly contradict his own witness. A party is not bound by all the statements of a witness called by him, if adverse, even though no other witnesses are called against him. He may, on a material point, be contradicted by the physical facts proved in the case. The party calling a witness may rely upon a part of the testimony of such witness, although in other parts the witness may deny the facts sought to be proved.</p> <p>2. Demurrer to Evidence&emdash;Inferences Favorable to Demurree.&emdash; Where several inferences may be drawn from the evidence differing in degree of probability, on a demurrer to the evidence, the court must adopt those most favorable to the demurree, unless they are strained, forced or contrary to reason.</p> <p>3. Railroads&emdash;Trespassers&emdash;Duty to&emdash;Case at Bar.&emdash;While a railroad company does not owe a trespasser that prudent circumspection which foresees and forestalls danger, a trespasser injured on the track of such company is entitled to recover notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was proximately caused by the omission of the company after having such notice of the trespasser’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. It is not necessary that the company should actually know the danger to which the trespasser is exposed. It is enough if it has sufficient notice .or belief to put a prudent man on the alert, and does not take such precautions as a prudent man would take under similar notice or belief. In the case at bar, a trespasser on an interurban railway was first seen by the motorman four hundred and fifty yards off on a straight track, but believing him to be an inanimate object no further lookout was kept or attention paid to Mm until he was run over and killed.</p>

<p>Error to a judgment of the Corporation Court of the city of Britol in a garnishment proceeding. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Master and Servant—Absence of Rules—Method of Doing Work—Assumption of Risk.—Where the lack of rules and the uniform practice and method of doing work in a mine are within the personal knowledge of a servant who makes no protest on that account, he assumes the risk of any danger incident to such lack of rules and as to such method of work.</p> <p>2. Master and Servant—Assumption of Risk—Absence of Brake on Mining Car.—While brakes on a mining car would be an additional element of safety in using the car, if the lack of such brakes was a general and permanent condition prevailing throughout the mine, and it is a necessary and inevitable inference from the evidence that a servant knew of this condition, he is held to have assumed the risk of any dangers incident thereto.</p> <p>3. Master and Servant—Assumption of Risk—Obvious Dangers.— Where the alleged causes of dangers are so open and obvious and the knowledge or opportunity for knowledge on the part of a servant so complete as to leave no doubt that he knew or ought to have known all about them, the assumption of risk is not a question for the jury, but as a question of law bars recovery.</p> <p>4. Master and Servant—Defective Premises—Negligence—Proximate Cause.—If it be conceded that the defendant’s premises were in a defective condition owing to his negligence, still it is not shown in the case at bar that this negligence was the proximate cause of .the injury complained of.</p> <p>5. Master and Servant—Negligence of Master—Other Probable Cause.—If it is just as probable that an injury was inflicted upon a servant by one cause as by another, for only one of which the master is responsible, there can be no recovery by the servant.</p> <p>6. Master and Servant—Negligence—Improbable Dangers.—The master is not bound to foresee and provide against the unusual and improbable. ' It is the probable and not the imbrobable danger which the master must foresee.</p>

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

<p>Error to a judgment of the Circuit Court of Dickenson county in an interpleader proceeding. Judgment for the plaintiffs. Defendants assign error.</p>

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

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

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

These two cases were heard together in the Court of Appeals. The case of Hopkins and, Another v. City of Richmond was heard on a writ of error to the Hustings Court of the citi7 of Richmond, and the case of Coleman v. Town of Ashland was heard on a writ of error to the Circuit Court of Hanover county. In each, case the judgment of the trial court was affirmed.

<p>1.. Master and Servant—Negligence—Contributory Negligence.— The evidence in the case at bar shows that the plaintiff’s intestate was guilty of contributory negligence per se, which was the immediate and efficient cause of his death, and hence there can be no recovery. In other respects the questions involved are settled by Va. Iron, Coal & Coke Co. V. Asbury’s Admr., ante, p. 683.</p>

<p>1. Alimony&emdash;Judgment&emdash;Future Instalments&emdash;Date of Lien.&emdash;A decree for alimony payable in monthly instalments during the life-time of the beneficiary constitutes a lien in her favor upon all of the husband’s real estate from the date of such decree, not only for the instalments presently due, but for those that shall fall due under such decree in the future; and where a temporary decree for alimony is subsequently made permanent, the lien for the whole amount dates from the date of the temporary decree, and takes priority over subsequent judgments against the husband or liens created by him.</p>

<p>1. Specific Performance&emdash;Necessary Allegation and Proof&emdash;Case in Judgment.&emdash;In order to sustain a suit for specific performance of a contract, the contract must be clear and definite in its terms and established by plain and satisfactory evidence; the acts of part performance must refer to, result from, or be made in pursuance of the agreement proved, and the agreement must have been so far executed that a refusal of full execution will operate a fraud on the other party and place him in a situation which does not lie in compensation. In the case in judgment there was full performance of the contract on the part of the party seeking performance, accompanied by possession taken in pursuance of the terms of the contract, and its specific performance was rightly decreed.</p> <p>2. Specific Performance&emdash;Contract&emdash;Failure to State Price&emdash;When Immaterial.&emdash;In a suit for the specific performance of a contract for the sale of land, the omission of the contract to state the price agreed to be paid becomes immaterial when it indisputably appears that it has been fully paid.</p>

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

<p>1. Equity Jurisdiction—Title and Bounds of Land.—In the absence of some peculiar equity, courts of equity are without jurisdiction to settle disputes regarding the title and boundaries of land.</p> <p>2. Equity Jurisdiction—Jurisdiction of Subject-Matter—How Objection Raised—Consent.—If a controversy belongs exclusively to a court of law, no acquiescence or consent of parties can give a court of equity jurisdiction over it. The court of equity will itself take notice of the lack of jurisdiction and dismiss the cause. Nor is it material that the attention of the court was called to it by the party who invoked the jurisdiction. It is the duty of the court to dismiss the suit whenever it appears in any way that it has not jurisdiction of the subj ect-matter.</p> <p>3. Appeal and Error—Costs.—Although a decree of the-trial court be reversed at the instance of the appellants, if the reversal is not upon any error assigned by them but upon an error which they invited and which was committed over the protest of the appellees, the costs will be decreed in favor of the appellees, as the parties substantially prevailing.</p>

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

<p>Appeal from a decree of the Circuit Court of Buchanan county. Decree for the defendant. Complainants appeal.</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>■ Error to a judgment of the Circuit Court of Tazewell county in an action of assumpsit. Judgment for the plain-, tiffs. Defendant assigns error.</p>

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

In one of these suits appellants were, defendants. In the other they were complainants. From an adverse decree they appealed.

<p>Error to a judgment of the Circuit Court of Wise county on a motion for a judgment. Judgment for the plaintiff. Defendants assign error.</p>

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

<p>1. Street Railways&emdash;Estimates of Speed.&emdash;Phrases descriptive of speed of a street car such as “going at a considerable rate of speed,” “pretty rapid,” or “running like lightning,” do not convey to the ordinary mind any definite conception of the actual rate, and are of little, if any, value in determining the same.</p> <p>2. Street Railways&emdash;Excessive Speed&emdash;Personal Injury&emdash;Contributory Negligence.&emdash;Where damages are sought to be recovered of a street railway company for a personal injury alleged to have been caused by the excessive rate of speed at which defendant was running its car, and it appears from the evidence for the plaintiff that he was guilty of negligence which contributed to and concurred in the cause or causes of his injury up to the moment of the happening thereof, there can be no recovery.</p> <p>3. Railroads&emdash;Grade Crossing&emdash;Duty of Traveler.&emdash;The duty to look and listen before attempting to cross a railroad track which the law has imposed upon the traveler upon a highway, continues as long as the occasion for the exercise of the duty continues, and if there was any point at which by looking and listening the person injured could have avoided the accident, and he failed to do so, his contributory negligence defeats a recovery for the injury.</p> <p>4. Railroads&emdash;Grade Crossing&emdash;Duty of Traveler.&emdash;The rule stated in the preceding paragraph is not subject to the qualification that the duty to look and listen before crossing the railway track continues only “until a prudent man will appreciate no further danger.” Such a qualification would destroy the rule entirely, as it would leave it to the jury to fix the undetermined and undeterminable point of time when a prudent man would apprehend no further danger.</p> <p>5. Railroads&emdash;Grade Crossing&emdash;Persons Approaching Track.&emdash;An engineer operating a railroad engine who sees a person approaching a grade crossing in plain view has a right to presume that he will not go upon the track, unless there is something to indicate to him that the traveler is oblivious of the danger which confronts him.</p>

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

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

<p>1.. Wills—Debts—Presumption of Payment—Advancements.—The claim of appellants that certain notes given by them to the testator, in his lifetime, for loans made to them, are barred by the common law presumption of payment, and also that the sums represented by such notes should be treated as advancements, is not sustained by the evidence.</p> <p>2. Evidence—Execution of Note—Denial Under Oath—Code, Section 3279—Wills.—Where a bill filed by an executor against a legatee and others alleges that the legatee was indebted to the testator and still is indebted to his estate, in the sum of $300, evidenced by a note executed by the legatee of the testator, with interest from May 20, 1896, no proof of the execution of the note is necessary under section 3279 of the Code, in the absence of any affidavit denying the fact.</p> <p>3. Wills—Case in Judgment—Debts Due by Legatees—Interest— Advancements.—A will declared that “any person who shall take under my will and who shall be indebted to my estate: shall pay any sums owing before participating in any estate, received hereunder.” Two of the legatees were indebted to the testator, evidenced by notes payable in Indiana, carrying eight per cent, interest. The bill alleges that this rate was legal in Indiana, and the answers of the legatees do not deny that fact. The legatees admit that a rate of six per cent, would apply, if any interest at all is to be charged, but insist that the provisions of the will are inconsistent with a charge of any interest, and that the sums received should be treated as advancements. The trial court decided that interest should be charged at eight per cent., but if charged at. only six per cent, their whole interest in the estate would bo consumed.</p> <p>Held: The legatees were properly chargeable with interest, and if it was error to fix the rate at eight per cent., it was harmless. The fact that, in the result, they get nothing under the will cannot change the construction of the language used. The whole question is one of intention of the testator. The contention of the legatees either as to principal and interest of their notes, or as to the interest only, would result in a preference and advantage to them in plain contravention of the general purpose manifested in the will.</p> <p>4. Wills—“Heirs”—Case in Judgment.—A testator bequeathed his estate, consisting entirely of personalty, to the “heirs” of his brothers and sisters. A brother, supposed to be dead, survived him.</p> <p>Held: The word “heirs” may mean children or descendants of a living person, or other kindred not within the technical definition of the word, and, in the case in judgment, was not used in a technical sense, and hence, in the distribution of the estate, the family of the surviving brother should be dealt with as if the said brother had been dead at the time the will was executed.</p>

<p>1. Instructions — Negligence — Ignoring Plaintiff’s Contributory Negligence.—Where the contributory negligence of the plaintiff is relied on as a defense to an action of tort, and the evidence tends to support that view of the case, it is error to instruct the jury to find for the plaintiff if they believe the defendant was negligent, ignoring entirely the contributory negligence of the plaintiff. Such an instruction in effect tells the jury that they are to find for the plaintiff if they believe the defendant was negligent, notwithstanding the plaintiff may be guilty of such contributory negligence as would bar recovery.</p> <p>2. Instructions — Defective Instruction — Contradictory Instructions.—The defect in the instruction mentioned in the previous paragraph is not cured by other instructions given by the court with respect to contributory negligence. That makes a case of contradictory instructions upon ^ a material point which would require the verdict to be set aside, as it cannot be said whether the jury was controlled by the one or the other.</p> <p>3. Apfeal and Error—Reversal for Erroneous Instruction.—Where a case is reversed because of contradictory instructions given by the trial court, this court cannot consider the evidence and dispose of the case on its merits. To do this would involve a radical departure from the uniform and long established practice of this court. When a judgment is reversed because of error in the instructions, this court always withholds, as improper, any expressions of opinion upon the weight of the evidence where it is conflicting, and the case must be remanded for a new trial. The evidence may not be, and often is not, the same at the second trial as it was at the first.</p>

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

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

<p>1. Highways&emdash;Right of Way by Prescription.&emdash;In order to establish a private right of way by prescription over the lands of another, the use and enjoyment thereof by the claimant must be shown to be adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over- which it is claimed, and such use and enjoyment must continue for a period of at least twenty years.</p> <p>2. Highways&emdash;Easement by Prescription&emdash;Adverse Use.&emdash;In order to establish a title by prescription and to authorize the presumption of a grant, the adverse use must be unexplained and uricontradicted, and must not be merely a use in common with others. A use' by the neighborhood generally under an im- , plied license or permission negatives a presumption m favor of any particular individual that his use was adverse and exclusive.</p> <p>3. Witnesses&emdash;Competency.&emdash;A person who • is neither a party to the suit nor interested in the result was competent at com- - mon law, and has not been rendered incompetent by. trie statute of this State.</p> <p>4. Witnesses&emdash;Code, Sec. 3346&emdash;Testimony by Adverse Party.&emdash; Where one party to a controversy has testified fully in his own behalf as to the subject-matter of the controversy, he thereby renders the other party competent under the provisions of section 3346, par. 2, of the Code.</p> <p>5. Easement&emdash;Prescription&emdash;Consent.&emdash;An easement of a right of-way over land will not arise by prescription simply from permission of the owner of the servient estate, no matter how long the permissive use may continue. Where a use by permission has begun, it will, in the absence of some decisive act on the part of the owner of the dominant estate indicating, an adverse and hostile claim, continue to be regarded as permissive, especially when the latter’s use of the easement is in common with its use by others.</p> <p>•6. Appeal and Eeeoe—Burden of Showing Erroi—Easements.—A party who claims an easement of a right of way over the land of another has the burden of proof to establish his claim, and where the claim has been decided adversely to him in the trial court the burden is also upon him to overcome the presumption in favor of the correctness of the decision, and to satisfy the appellate court that error has been committed to his prejudice.</p>

<p>1. Demurrer to Evidence&emdash;Party Having Burden of Proof&emdash;Ejectment.&emdash;A demurrer to the evidence by a party having the burden of proof, although not usually available to such a party, is nevertheless an open and safe proceeding for him if he has established a prima facie case by evidence not in conflict with any other evidence in the case; and this is true even in an action of ejectment where the burden upon the plaintiff is peculiarly onerous.</p> <p>2. Ejectment&emdash;Burden of Proof&emdash;Demurrer to Evidence.&emdash;The burden is-upon the plaintiff in ejectment to establish the identity of the land claimed in his declaration and its location within the boundary covered by his title papers. Where there is a common source, but each claims under a separate survey and the evidence relative thereto, and reasonable men might differ as to whether any of 'the land in controversy was embraced in the survey offered by the defendant, then upon a demurrer to the evidence by the plaintiff, judgment should be entered for the defendant.</p> <p>3. Demurrer to Evidence&emdash;Admissions&emdash;Waiver.&emdash;By demurring to the evidence the party demurring admits the truth of his adversary’s evidence and all just inferences therefrom, and waives all of his own evidence in conflict therewith, and also all inferences from his own evidence (although not in conflict with demurrer’s) not necessarily resulting therefrom.</p> <p>4. Demurrer to Evidence&emdash;Improper Evidence Received&emdash;Effect.&emdash; As a general rule the improper admission of evidence, even where it is doubtful whether its admission was or was not prejudicial, constitutes reversible error; but the general rule is subject to the exception that if in such case .there is a demurrer to the evidence, and an alternative verdict, and after disregarding, upon such demurrer, such illegal evidence, and treating the residue of the evidence as is proper under the rules applicable to demurrers to evidence, there is plainly enough evidence to sustain a judgment for the demurree, the admission of the illegal evidence will not reverse, otherwise it will.</p>

<p>1. Boundaries—Acts 1912, p. 138—Procedure—Action at Lato— Harmless Error.—The remedy given by the act of 1912 (Acts 1912, p. 133) for ascertaining and determining “the boundary lines of real estate” is a summary proceeding at law, and not in equity, provided by the legislature for settling and determining, without a great deal of technical formality, the true boundary lines, between coterminous owners or claimants, and the trial is to be by a jury, unless it is waived, and upon issue or issues joined between the parties as in other actions at law. If, however, it was error in the case at bar to compel the defendants to file pleas instead of an answer, they were not prejudiced thereby, since they were allowed to show under their pleas all that it would have been proper to have permitted under the answer tendered.</p> <p>2. Pleading — Rejecting Plea — Other Sufficient Pleas — Harmless Error.—It is not error to reject a plea where every defense which could have been made under it was permitted under pleas which Had been filed and upon which issues were joined; or, if error, it was harmless.</p> <p>3. Boundaries—Adjacent Lines.—Whenever deeds or grants conveying adjacent land tend to identify and fix a disputed boundary, the general rule is they are admissible in evidence.</p> <p>4. Appeal and Error—Verdicts—Conflicting Evidence.—The verdict of the jury rendered upon conflicting evidence, which has been approved by the trial court, will not be disturbed by this court as contrary to the evidence where the case was fairly submitted to the jury upon the weight, credibility and sufficiency of the evidence.</p>

<p>1. Highways—Public R.oad—Report of Viewers as Evidence—Trial in Circuit Court.—On the trial of á road case in a circuit court, it is not error to permit the report of the viewers to be read to the jury as evidence of what would be a just compensation to the land owner for the land taken and for damages to the residue of the tract. The statute providing for the appointment of viewers is of very ancient origin and experience has taught that it is an indispensable agency in supplying the necessary primary information to the tribunal which . is ultimately to decide the controversy. The rights of the land owner are fully protected by other provisions of the statute allowing exceptions to the report of the viewers, appointment of commissioners, an appeal of right to the circuit court where the cause is heard de novo, and a further right of appeal under the general law.</p> <p>2. Highways—Public Roads—Report of Viewers—Weight Given.— Great weight is to be given to the report of the viewers as to the propriety or impropriety of opening and establishing a public highway, and as to the amount of damage to be allowed to proprietors whose lands are taken, and, unless the record shows clearly that the damage is greater than that recommended by the viewers, the court, as a rule, does not interfere with the report.</p> <p>3. Highways—Public Roads—Payment of Costs by Applicants—■ Evidence.—The land owner is not prejudiced by permitting the applicants for a public road to prove that, in case the road is •established, they will grade and construct it at their own expense. Such method of payment is permitted by the statute where the road will be a mere private convenience.</p> <p>4. Highways—Public Roads—Appeal From Supervisors—Evidence. On appeal of right-by a land owner in a road case, from the judgment of the board of supervisors to the circuit court, it it not error to allow the judgment of the board, of supervisors to be read to the jury, although the case is heard de novo in the circuit court. The judgment is a part of the record of the case, and the land owner cannot be deemed to be prejudiced thereby.</p> <p>5. Highways—Public Roads—Costs of Construction—Payment by Applicants.—Where the applicants for a public road are willing and able to pay the costs of its construction, the board of supervisors (where, as in the case at bar, they have the power) may permit them, in a proper case, to relieve the county of that expense.</p> <p>6. Instructions—Sufficiently Instructed—Multiplication of Instructions.—Where the jury has already been sufficiently instructed, it is not error to refuse additional instructions on the same point. The practice of diminishing instead of multiplying instructions unnecessarily is rather to be commended than condemned.</p>

<p>1. Criminal Law—Indictment—Caption Applicable to Each Count. The caption of an indictment is to be read in connection with the indictment as a whole and with each count thereof, and the venue, swearing of the grand jury, and the court in which the indictment is found may be supplied from the caption.</p> <p>2. Criminal Law—Evidence—Conspirators—Joint Trial—Admissions of One.—Declarations of one conspirator made after the completion of the offense, in the absence of the other conspirators, are admissible only against the declarant, and are not competent evidence against a former associate on their joint trial.</p> <p>3. Criminal Law—Evidence—Testimony of Committing Justice.— A committing justice is a competent witness to testify as to what took place before him at the time of the commitment.</p> <p>4. Criminal Law—Evidence—Burden of Proof—Unlawful Entry in Dwelling at Night.—Proof of the unlawful entry into a dwelling house in the night-time does not throw upon the accused the burden of proving to the satisfaction of the jury that his entry was for a lawful purpose. The burden is upon the Commonwealth to prove beyond a reasonable doubt every fact essential to the establishment of the guilt of the accused.</p> <p>5. Instructions—Fully Instructed.—It is not error to refuse instructions which are substantially covered by instructions already given.</p>

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

<p>1. Evidence—Carbon Copy of Writing Duplicate Original.—A carbon copy of a paper made by the same impression of type as the original and at the same time may be regarded as a duplicate original and may be introduced in evidence without notice to the opposite party to produce the original. This is especially true where it is shown that the original has been lost,</p> <p>2. Evidence—Indictment—Letter of Defendant’s Attorney—Intoxicating Liquors.—A letter to a defendant from his attorney advising him as to the law governing the delivery of liquor in dry territory is not admissible on the trial of the defendant, for a violation of the laws of the State in respect to an improper delivery.</p> <p>3. Evidence—Admissibility—General Objection.—A general objection to admission of evidence should be overruled if the evidence is admissible for any purpose.</p> <p>4. Evidence—Admissibility—Other Similar Acts—Guilty Knowledge—Impeachment.—A defendant in a prosecution for a violation of the liquor laws having testified that he had no reason to believe that the order upon which he delivered the liquor was not the genuine order of the consignee, it was competent for the Commonwealth to show that he had delivered other liquors, at other times, to other parties, upon orders in the same handwriting as that for which he was indicted, in order to show guilty knowledge on his part, and to contradict him.</p> <p>5. Statute—Constitutionality.—A statute %vill not be declared to be unconstitutional unless it is plainly and palpably so. To doubt upon the subject is to affirm the constitutionality of the statute,</p> <p>6. Intoxicating Liquors — Interstate Commerce—Webb-Kenyon Act—Constitutional Law.—What is known as the Webb-Kenyon Act of Congress is a valid and constitutional enactment by Congress of power conferred upon it by the Federal Constitution. By this act the shipment of liquors of all kinds from one State into another in violation of the laws of the latter is pro- ' hibited.</p>

<p>1. Evidence &emdash; Dying Declarations &emdash; When Admissible &emdash; Weight.&emdash; Dying declarations are admissible in evidence, as an exception to the hearsay rule, where the death of the declarant is the subject of inquiry, and the declarant is under a sense of impending death and without any hope or expectation of recovery. When admitted,' the weight or credit to which they are entitled is a question for the jury.</p> <p>2. Evidence&emdash;Dying Declarations&emdash;Opinion Rule Not Applicable.&emdash; The opinion rule has no application to dying declarations. The declarant being dead, it is no longer possible to obtain from him, by questions, any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but are indispensable. A statement by a dying declarant that the shot inflicting a mortal wound upon him was not fired accidentally, but that the accused “done it a-purpose” is admissible on the trial of the assailant for homicide.</p> <p>3. Evidence &emdash; Dying Declarations &emdash; Resentment &emdash; Admissibility &emdash; Weight.&emdash;The exhibition of resentment towards the accused on the part of the declarant does not of itself render the latter’s dying declaration inadmissible in evidence, but goes to the weight and value of the same as evidence.</p> <p>4. Appeal and Error&emdash;Verdicts&emdash;Conflicting Evidenee.&emdash;The verdict of the jury founded on conflicting evidence and approved by the trial court cannot be disturbed on a writ of error from this court.</p>

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