Volume 118 — Virginia Reports

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

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

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

<p>1. Wills—Construction—Property Acquired After Date of Will—Case in Judgment.—Where a husband, devised and bequeathed all of his real and personal estate to his wife, and, after his death, all of such real estate was transferred to her upon the land books and she took possession of it and exercised ownership over it, and the greater part of his personal estate also passed into her actual possession, the will of the wife, though made in the lifetime of her husband, disposing of all her estate, passes that acquired from her husband as well as that personally owned by her, as the will speaks of the time of her death, and there is always a strong presumption in favor of complete testacy.</p> <p>2. Wills—Construction—A gift in a will of two hundred dollars “to each of my grandchildren not named in this my will” is too plain to need interpretation.</p>

<p>1. Deeds—Recital of Lien for Purchase Money—Notice—Failure to Record Deed of Trust.—A deed of conveyance of land duly recorded which recites various deferred payments of purchase money and that they are “all secured by a deed of trust on the land itself, which deed and this are parts of the same transaction” is constructive notice to subsequent purchasers of the land of the lien for the unpaid purchase money although the deed of trust referred to as securing the same be not recorded.</p> <p>2. Judgments—Lien—Only Interest of Debtor Liable—Contemporaneous Mortgage to Secure Purchase Money—Failure to Record.—If land be conveyed to a purchaser and contemporaneously therewith, and as a part of the same transaction, the purchaser reconveys the land to a trustee to secure the purchase money, a judgment against the purchaser is subordinate to the lien of the deed of trust, although the latter be not recorded, as, in such cases, the judgment creditor cannot subject any greater interest in the land than the judgment debtor owns.</p>

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

<p>1. Negligence—Case at Bar.—The evidence in the case at bar does not sustain any charge of negligence alleged in the declaration against the defendant.</p> <p>2. Master and Servant—Injury io Servant—Dangers Known to Servant—Warning—Negligence—Case at Bar.-—No duty rests upon the master to warn his servant of what he already knows is going to happen. _ In the case at bar, an experienced track man, having no duty to perform in connection with poling a car, and nothing to do except to take care of himself, was thrice told of his danger, was familiar with the conditions surrounding him, and was in a position to see, and must have seen, practically everything that was taking place, hence there was no need to ring a bell, sound a whistle, or otherwise to warn him of danger, and it was not negligence to fail to do so.</p> <p>3. Last Clear Chance—When Doctrine Not Applicable.—The doctrine of last clear ehance has no application to the case where, after the peril of another was, or should have been discovered, the time and opportunity available were such that the mental and physical faculties would have had to act with more than human precision and with the quickness of electricity to have avoided its consequences.</p> <p>4. Appeal and Error—Verdict—Without Evidence to Support.—The verdict of a jury cannot be set aside by the appellate court unless it is plainly without evidence to support it, and this is especially true in cases based on charges of negligence, but a verdict will not be allowed to stand which has mere conjecture and speculation to support it.</p> <p>5. Master and Servant—Federal Employers’ Liability Aet—Primary Negligence of Defendant.—Primary negligence on the part of the defendant is essential to sustain an action under the Eederal employers’ liability act, and without it no action will lie.</p>

<p>1. Appeal and Erbob&emdash;Assumpsit&emdash;Refusal to Require Bill of Particw-• lars Under Section 8S48 of Code&emdash;Case at Bar.&emdash;Under the plain provision of section 3248 of the Code, the plaintiff in every action of assumpsit is required to file with his declaration an account distinctly the several items of his claim, unless it is plainly described in the declaration, and the refusal of the trial court, upon request in a proper ease, to require such account to be filed reversible error. In the case at bar, the declaration is little more than a skeleton, and does not state distinctly the several items of the plaintiff’s claim, but omits many particulars as to which the defendant should have been informed, hence it was error for the trial court to refuse the defendant’s request for a bill of particulars'.</p>

<p>1. Divobce—Custody of Minor Children—Access—Case m Judgment.— Upon the facts of this case, there is no sufficient reason for departing from the general rule which entitles the father to the custody of his children (in this case two boys eighteen and thirteen years of age, respectively }, but the mother shall be allowed access to the children, upon such reasonable terms and at such time and place as may be prescribed by the trial court to which the cause is remanded.</p>

<p>1. Partition—Parties■—Case in Judgment—Evidence—Deeds—Construction of Parties.—Under a conveyance to a husband as trustee for the benefit of his wife for life, and at her death to be equally divided among his children and their descendants per stirpes, a child by a former marriage of the husband is entitled to share with the children of the second marriage and may maintain a suit for partition. The language is unambiguous and too plain for interpretation, and when this is the case, parol evidence is not admissible to show the construction placed thereon hy the parties.</p> <p>2. Appeal and Error—Partition—Case in Judgment—Bes Judicata.—-In a suit for partition, the defendants pleaded that the court was without jurisdiction to entertain the bill, that the title claimed by them was adverse, and that the complainant and those under whom she claimed were not tenants in common or coparceners with the defendants. The court directed the complainant to join issue “to the end that the court might determine from the evidence thereunder whether or not this is a proper case for the jurisdiction of a court .of equity in a suit for partition.”</p> <p>Meld: This was not an adjudication in favor of the defendants from which the complainant should have appealed.</p> <p>3. Equity Jurisdiction—Mistake—Beformation—Laches.—A party having a just claim to invoke the jurisdiction of a court upon equitable grounds, must exercise reasonable diligence in the assertion of his demand. If by laches injustice may be done the court declines to interfere. This principle is justly applied as well to bills to reform a contract on the ground of mistake as to other eases.</p> <p>4. Ejectment—Equitable Title—Tenant in Common.■—-A tenant in common of an equitable estate cannot maintain ejectment against his cotenants to recover his share. The plaintiff in ejectment must hold the legal title and cannot recover on an equitable title.</p> <p>5. Partition—Tenants in Common—Adverse Possession—Equity Jurisdiction.—At the defendants claim under one who was a joint owner with, the complainant or those under whom he claims, they cannot defeat the right of the complainant to have his legal rights settled in a suit for partition by merely alleging and proving that they deny the rights of the complainant and hold adversely to him.</p> <p>6. Limitation of Actions—Suit for Partition—Infancy—Code, Section 2917.—Under the provisions of section 2917 of the Code, a party who is an infant at the time the right to have a partition of land accrues, has ten years after attaining his’ majority in which to institute his suit for partition.</p>

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

<p>1. Landlord and Tenant—Lease—Covenant against Assignments— Waiver.—A single covenant against the assignment of a lease once waived cannot ordinarily be thereafter retracted, but if the lessor consents to a single assignment of the lease and puts the same restriction on assignments upon the assignee, the restriction is valid and binding upon the assignee and prohibits assignments by him.</p> <p>2. Landlord and Tenant—Lease—Covenant against Assignment—Effect of Mortgage by Lessee—Deed of Trust to Secure Debts.—A deed of trust to secure a debt is in the nature of a mortgage, and a mortgage is never construed as such an assignment of a leasehold interest as to cause a forfeiture under a covenant in a lease prohibiting an assignment, unless it be that the mortgagee has an absolute right to enter on the property or to sell the estate of the lessee in the. leasehold and actually exercises such authority.</p> <p>3. Landlord and Tenant—Lease—Covenant against Assignment—Deed of Trust by Lessee.-—-In order for a deed of trust on a leasehold estate securing debts to act as an assignment of the lease, it is necessary that there should have been not only a sale under the deed of trust, but the purchaser at such sale should have complied with the terms thereof, thereby entitling him to enter into possession of the leasehold in so far as the authority of the trustee in the deed of trust could license him to do so.</p> <p>4. Damages—Exemplary—Evidence—Instructions.—Where the evidence tends to prove a case of exemplary or punitive damages, and the plaintiff requests it, the jury should be instructed on that phase of the case.</p> <p>5. Damages—Exemplary—When Allowed.—The general rule in awarding damages for a tort is to give compensation for the pecuniary loss sustained—to make amends or reparation for the injury inflicted-—■ but where the wrongful act is done with a bad motive, or with such gross negligence as to amount to positive misconduct, or in a manner so wanton or reckless as to manifest a wilful disregard of the rights of others, the plaintiff is entitled to recover not only the determinable money loss which the evidence shows he has sustained, but such exemplary and punitive damages as are called for by the circumstances of the case.</p>

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

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

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

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

<p>1. Partnership—Receiver—Order Appointing.—On a preliminary application for a receiver of partnership assets, the decree appointing a receiver should go no further in passing upon the rights of the parties and in assuming the conduct of the business of the partnership than, in view of the nature of the business, is necessary.</p> <p>2. Partnership—Corporations—Power to Enter Into.—Corporations, unless authorized so to do, have no power to enter into a partnership, either with each other, or with individuals, as the stockholders are entitled, in the absence of notice to the contrary in the charter, to assume that their directors will conduct the corporate business without sharing that duty and responsibility with others. But such power may be conferred by charter, and when conferred the reason underlying the rule against its exercise no longer exists.</p> <p>3. Corporations—Private Corporations—-Charter—Amendments—-Powers—Constitutional Law.—Under the laws of this State a private corporation may be created for the transaction of any lawful business, or to promote or conduct any legitimate object or purpose, and amendments of charters may contain any provision which the charters themselves might have contained. Charters to private corporations, or amendments thereof, which do not authorize anything which is malum, in se, or anything which is prohibited by the Constitution or statutes of this State may be granted by the State Corporation Commission. This does not conflict with section 154 of the Constitution requiring "that “the creation of corporations and the extension and amendment of charters shall be provided for by general laws.”</p> <p>4. Corporations—Private Corporations—Charter—Powers.—The words “creating and defining” as used in section 1105-a, subsection 2, clause h, of the Code (1904) are amply broad to provide for authority in the charter of any private business corporation to do any act not unlawful in itself and not prohibited by the statute.</p> <p>5. Statutes—Construction—Laws of Another State.—The adoption of a statute of another State carries with it the adoption of the construction placed thereon by tbe State in which, the statute originated.</p> <p>6. Corporations—Power to Charter—General Law—State Corporation Commission.—The certificate of incorporation of a private corporation granted by the State Corporation Commission in pursuance of the powers conferred by the “Act Concerning Corporations” is equivalent to a special act of .the legislature.</p> <p>7. Corporations—Amendment of Charter—State Corporation Commission—Constitutional Law.—It is within the jurisdiction of the State Corporation Commission to determine under what clause of the statute and in what form it will grant an amendment of the charter of a private corporation, and when it has acted its action is final, and not subject to review under section 156 of the Constitution, except by the Supreme Court of Appeals, by way of appeal, as therein authorized.</p> <p>8. Estoppel—Corporations—Ultra Vires Contracts.—Where the rights of the public are not involved, a purely private corporation, entering into a contract in excess of its powers and receiving benefits thereunder, is estopped from setting up the defense that it was without power to make it, so far as such estoppel is necessary to do justice between the parties. This is true as well of a contract partly performed as of one fully executed, and it is especially true of a corporation which has sought and obtained an express grant of power in its charter.</p>

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

<p>1. Master and Servant—Unsafe Place—Failure to Notify Servant—Demurrer to Evidence—Testimony of Servant.—In an action by a servant against the master to recover for a personal injury resulting from being put to work at a place known by the master to be unsafe, without notice of the danger, on a demurrer to the evidence by the defendant, the positive testimony of the servant to the effect that he was directed by the machine foreman of the defendant to work at the place where the accident .occurred is sufficient upon that point to sustain the servant’s contention, and the demurrer to the evidence should have been overruled. The other points raised are controlled by Darby Goal Mining Go. v. Shoop, 116 Va. 848, which grew out of the same accident.</p>

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

<p>Appeal from a decree of the Oircu.it Court of Eockingham county. Decree for the defendant. Complainant appeals.</p>

<p>1. Trusts and Trustees—Substitution of a Row Trustee—Discretionary Trusts.—When a trust is discretionary or one of personal confidence, the statute which permits the court to substitute another trustee in the place of one who has died does not apply; otherwise, it does apply, although the trustee be invested with the legal title.</p> <p>2. Judgments—Res Judicata—Recovery of Undivided Share of Land— Remaining Interest.—A judgment in favor of the defendant for seven-thirtieths, undivided, of a tract of land is no bar to an action by the same plaintiff against the same defendant for the remaining twenty-three-thirtieths of the same tract.</p> <p>3. Judgments—Res Judicata.—Where in a former suit between the same parties, or their privies in estate, touching the same land, a deed in defendant’s chain of title was held to be void, that question is res judicata in a subsequent action between them touching the same land.</p> <p>4. Appeal and Error—Judgments—Conflicting Evidence.—Where the testimony for the defendant upon an issue of fact was unreliable and inconclusive, and the trial court, upon conflicting evidence, gave judgment for the plaintiff, this court will not disturb it.</p>

<p>1. Judgments—Merger.—If, on a note promising to pay a debt and also counsel fees and expenses, judgment is taken for the debt only, saying nothing as to counsel fees and expenses, the whole cause of action is merged in the judgment. The note has become fundus officio, and no further action thereon can be maintained to recover such fees and expenses.</p>

<p>Appeal from a decree of the Circuit Court of Floyd county. Decree in favor of one of the defendants. Another of the defendants appeals.</p>

<p>1. Doaticp,—-Husband and Wife—Divorce.—The domicil of the husband is ordinarily that of the wife also, but where the husband abandons his wife and rids himself of those conjugal obligations which the marriage relation imposes upon him, giving to her neither the necessaries nor the comforts suitable to their condition, and relinquishes his marital control and protection, he loses that power and authority over her which alone makes his domicil hers, and she may select her own domicil.</p> <p>2. Divorce—Domicil—Venue—Husband and Wife.-—Where a husband abandons his wife in the State of their domicil, and the wife in good faith changes her domicil to this State, and retains it for more than one year, she may sue for a divorce in the county or city of her domicil, although the husband has never changed his domicil.</p>

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

<p>1. Pleading—Affidavit to Plea of Won Est Factum—Further Affidavit Under Section 8279 of the- Code.—A defendant who has made affidavit to a plea of non est factum under section 3278 of tbe Code is not required to make any further affidavit under section 3279.</p> <p>2. Witnesses—Competency—Death of One or Three Joint Obligors— Oode, Section 33J/7.—In an action on a bond against three joint obligors, one of whom is dead, the surviving obligors and the obligee being parties with whom the contract was personally made, are competent witnesses to testify under the express provisions of section 3347 of the Code.</p> <p>3. Witnesses — Examination — Re-examination. —■ Where witnesses have testified that the signature of a defendant to the bond in suit is his genuine signature, and thereafter the defendant has testified that the alleged signature was not his signature, the witnesses originally examined by the plaintiff may not be re-examined merely to state that, notwithstanding the testimony of defendant, they are still of opinion that his signature to the bond in suit is genuine. Not being offered to prove any new or omitted fact, it is not permissible to introduce them merely to reiterate the testimony already given.</p> <p>4. Evidence—Papers not Introduced—Right of Jury to Inspect—Code, Section 3388.—The plaintiff has no right under section 3388 of the Code to demand that papers shown to a witness for the purpose of identifying the signature of a defendant thereto but which were never introduced in evidence, shall be allowed to go to the jury for their inspection after the conclusion of the evidence and arguments.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, affirming a judgment of the police justice of said city imposing a fine for the violation of a city ordinance.</p>

<p>Error to a judgment of .the Circuit Court of Greensville 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 Chesterfield county. Decree for the defendant. Complainant appeals.</p>

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

<p>1. School Trustees—Penalties—Limitation of Actions—Code, Sections and S889.—The penalty imposed upon a school trustee by section 1472 of the Code, as amended, for having any pecuniary interest, directly or indirectly, in any contract for building a public free schoolhouse, or in furnishing material to a contractor for building such schoolhouse, is incurred and the' offense is complete when the pecuniary interest is acquired, or the material is furnished, regardless of the time when payment is made, and the action to recover such penalty must, under the terms of section 3889, be commenced within one year from that time. The offense is not a continuous one, and the statute, being highly penal, must be strictly construed, and its terms cannot be extended by doubtful implication.</p>

<p>1. Statutes—Titles—“Objeet”—“Subject”—Constitutional Law.—The word “object” as used in the constitutional provision that “no law shall embrace more than one object, which shall be expressed in its title” and the word “subject” when used in similar constitutional provisions, have the same purpose in view and mean substantially the same thing, and that purpose is well understood in either case. •</p> <p>2. Statutes—Title of Act—Sufficiency—Constitutional Law.—The title of an act will be sufficient, within the constitutional requirement that the object of a statute shall be expressed in its title, if the things authorized to be done, though of a diverse nature, may be fairly regarded as in furtherance of the object expressed in the title. If the subjects embraced by the statute, but not specified in the title, have congruity or natural connection with the subject stated in the title, or are cognate or germane thereto, the requirement of the constitution as to the title is satisfied. The constitution is to be liberally construed so as to uphold the law, if practicable.</p> <p>3. Evidence—Judicial Notice—Tax on Rolling Stock.—The insistence for years, by the public or a large part thereof, before the legislature, in the courts and in the newspapers that the situs for taxation of the rolling stock of railroads should be changed so as to permit local taxation thereof by the cities and counties through which the road passes is a matter of common knowledge of which the courts will take judicial notice.</p> <p>4. Statutes'—Title of Act—Sufficiency—Notice.—The title of an act “An act in relation to the assessment, for local taxation, of the rolling stock of railroad corporations” gives sufficient notice to all interested of its objeet. The subject plainly expressed is the assessment of the rolling stock, and the object equally well indicated is that local taxes may be levied thereon. The assessment of property for taxation necessarily involves its situs.</p> <p>5. Statutes—Title of Act—Sufficiency—Surplusage.—If it be admitted that the title of the act for “the assessment, for local taxation, of the rolling stock of railroad corporations” (Acts 1914, p. 218) is not broad enough to cover that part of the act authorizing the local authorities to levy the taxes, then that part of the statute may be treated as surplusage, without rendering void other parts of the statute which are fairly included within its title, and the taxes may be levied under other statutes.</p> <p>6. Constitutional Law—Statutes—Sow Doubts Solved.—If there is a fair doubt that the single subject, object and purpose of a statute is sufficiently expressed in its title to conform fully with the constitutional requirement, such doubt should be determined in favor of the validity of the statute.</p> <p>7. Res Judicata—Statute Repealed in Part—Railroads—Rolling Stock.— If a statute relates to the assessment for taxation of the rolling stock of both steam railroads and electric railways, and it is held to have' been repealed by a subsequent statute as to steam railroads, and it is apparent from the record that the court was not considering the act except so far as it affected the rolling stock of steam railroads and that no other question was before it, such decision leaves the statute unaffected as to the rolling stock of electric railways.</p> <p>8. Statutes—Amendment—Construction—Former Statute Repealed.—If an amending act, fairly construed, is a complete statute in itself, and, by the ordinary rules of construction, its meaning can be ascertained, it will be upheld as the latest expression of the legislative will, although the act amended has been repealed.</p> <p>9. Statutes—Amendment—Former Statute Unconstitutional.—An unconstitutional statute may be amended so as to render it constitutional, so far as its future operation is concerned, by an act removing its objectionable provisions, or by supplying others to conform it to the constitutional requirements.</p> <p>10. Taxation—Railroads—Rolling Stock—Situs—Legislative Power.—By the common law the location of the rolling stock of a railroad company was fixed at the principal office of the company, but the legislature has full power to change such location, and the distribution of it among the various cities, towns, counties and districts through which the road passes is not in violation of section 128 of the constitution.</p> <p>11. Taxation—Railroads—Rolling Stock—Acts 19H, page 218—Consti-tution, Sections 64 and 188.—The act apportioning the tax on the rolling stock of railroad companies among the various cities, towns, counties and districts through which the road passes (Acts 1914, p. 218) does not surrender or suspend the right of any city to tax corporations or corporate property, and does not conflict with sections 64 and 183 of the constitution.</p> <p>12. Taxation-—Street Railways — Rolling Stock — Situs — Legislative Power.-—The bona fide situs of the ears of an electric and street railway company which owns tracks and operates its cars at pleasure through adjacent counties, cities and towns cannot be said to be in the city in which its principal office is located, and it is entirely competent for the legislature to apportion the tax on its rolling stock among the counties, cities and towns through which it operates its road.</p> <p>13. Taxation—Power of Legislature—Street Railways-—Rolling Stock— Situs—Contract Between City and Railway.—The right of taxation is a continuing governmental power lodged with the legislature, and no contract between a city and a street railway company can control the legislature in determining questions of general law applicable to the whole State, nor affect the right given by the legislature to other cities and counties, through which the railway company operates lines, to levy taxes on the rolling stock of said company operated on said lines. Such contracts made by a city are subordinate to the will of the legislature and subject to nullification by it at any time.</p> <p>14. Taxation—Situs of Personal Property—Roiling Stock of Railroads— Situs Fixed by Statute—ü. S. Constitution, Amendment XIV.—■ Usually the situs of personal property follows the domicile of its owner, but this rule is subject to legislative change at pleasure, and if the rule applies at all to the rolling stock of a railroad company, still the mode of distribution of such unlocated and transitory personal property is a matter of regulation by the State legislature which in no way involves a violation of the fourteenth amendment of the constitution of the United States.</p>

<p>1. Divobce-—Bes' Judicata—Evidence in Former Suit Admissible—Case in si Judgment.—A husband sued for divorce on the ground of adultery. The wife answered denying the adultery and alleging cruelty and desertion on the part of her husband and asked that her answer be treated as a cross bill, which was allowed. Both bills were dismissed for insufficient evidence to support them, and the decree was affirmed on appeal. Thereupon the wife brought a new suit for divorce on the ground of cruelty and desertion, alleged to have commenced three months before the institution of the husband’s suit. She also alleged that since the decision of the first suit she had sought to effect a reconciliation with her husband, but that he refused to be reconciled. The husband answered this bill denying its allegations, and also, relying upon the defense of res judicata and filed with his bill a complete copy of the record in the first suit. The trial court admitted in evidence and considered all the testimony given in the. first suit, and to this the wife objected.</p> <p>Held: In order to determine -whether the plea of res judicata afforded a defense to the suit by the wife, it was necessary to examine the entire record in the original suit, including the evidence, not only for the purpose of determining the precise matters adjudged therein, but also to enable the court properly to determine whether under all the facts and circumstances of the case, the husband should have accepted the wife’s invitation to return and live with her, and also whether the charges and proof in the original suit did not disclose a situation which rendered association between the husband and the wife wholly impossible.</p> <p>2. Divobce—Dismissal—Decree on Merits.-—The dismissal of a wife’s cross bill to her husband’s bill for divorce, because “the allegations of the cross bill have not been proved so as to entitle the defendant to affirmative relief thereon,” is a decree upon the merits.</p> <p>3. Judgments—Bes Judicata—When Plea Applies.—The plea of res judicata applies, except in special cases, not only to all matters actually adjudicated on tlie former hearing, hut to every point which properly belonged to the subject of litigation, or .which the parties, exercising reasonable diligence, might have brought forward at the time.</p> <p>4. Divorce—Dismissal—Lack of Evidence—Res Judicata.—The dismissal by the same decree, for lack of evidence to support, of a husband’s bill for divorce on the ground of adultery, and of the wife’s cross bill on the ground of desertion three months before the institution of his suit, is a decision on the merits of both suits' and may be relied on under a plea of res judicata in any subsequent suit between them touching the same matter.</p> <p>5. Divorce—Desertion Before and After Suit—Evidence.—-While a husband cannot be said to desert his wife because of separation from her pending a suit by him for divorce, if there was a consummated act of desertion by him before he instituted his suit, she may prove it in a suit by her for divorce for desertion, and her right to relief will not be suspended by reason of the fact that three months thereafter he filed a bill against her falsely charging her with adultery.</p> <p>6. Divorce—Dismissal—Refusal to Keep on Docket-—-Final Decree.—The refusal of the court, after dismissing a wife’s cross bill for divorce, to allow the cross bill to remain on the docket for the purpose of giving the husband an opportunity to resume his marital relations with his wife, or, if he refused, of giving the wife the opportunity of taking further evidence in support of her cross bill, is conclusive of the fact that the decree of dismissal was a final adjudication of the controversy.</p>

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

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

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

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

<p>1. Demurrer to Evidence—What Jury Slight Save Found—Oase at Bar—Insurance.—Upon a demurrer to the evidence by the defendant, the court must accept as established by the plaintiff whatever the jury as reasonable men might have concluded from the evidence, and as, in the case at bar, the jury might have found from the evidence that the family physician of the assured had never told her or her husband that she had an incurable and dangerous disease of the heart, the court must so hold. Questions of this character, whenever there is any discrepancy in the testimony or doubt as to its meaning, should be left to the jury.</p> <p>2. Insurance—Benefit Societies—Favorable Construction of Policy.— Fraternal benefit societies, while usually dealt with more liberally in some respects than ordinary insurance companies, are subject to the same rules of law and construction as other companies in regard to their contracts for life insurance. The beneficiary in each case is entitled to a liberal and favorable interpretation of the contract.</p> <p>3. Insurance—Warranty—Representation—Good Sealth—Latent Disease.—The statement of an assured in an application for reinstatement, whether regarded as a warranty or as to representation, that he is “in good health,” imports no more than an honest statement of the nonexpert opinion of the delinquent member as to the state of his health. The answer called for and accepted in such case, without medical examination, is primarily and essentially a matter of opinion. The phrase, “good health,” as used in its common and ordinary sense by a person speaking of his own condition, undoubtedly implies a state of health unimpaired by any serious malady of which the person himself is conscious. He does not mean that he has no latent disease of which he is wholly unconscious. If by the phrase “good health” an insurance company desires to exclude every disease, though latent and unknown, it must do so by distinct and unmistakable language.</p>

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

<p>1. Contracts—Sale of Land—Approval of Court—XJpset Bid—Disposal of Surplus—Case in Judgment—Judicial Sale.—Where the assent of a court of equity is necessary to a sale of land on account of the infancy of one of the parties, but before such sale is ordered the other parties in interest, all of whom are competent to contract, enter into a contract to sell the land to a purchaser “subject to the sanction of the court,” at an agreed price, which was the best offer they had been able to obtain, and more than they had expressed themselves as willing to take, and have agreed to unite with the officer of the court in making a deed to the purchaser, and the purchaser has in every respect acted fairly, and has signed the contract binding himself to pay the price agreed, and is ready, able and willing to perform his part of the contract, the contract is binding upon them, and if upon an upset bid being filed, the land is sold at an advanced price, the purchaser is entitled to the share of such parties of the advance, less their share of the costs.</p>

<p>Error to a judgment of the Circuit Court of Prince Edward county in a proceeding by motion for a judgment for money. Judgment for the defendant. Plaintiff assigns error.</p>

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

<p>Error to a judgment of the Circuit Court of the city of Norfolk quashing an attachment issued as ancillary to an action at law. Judgment for the plaintiff in the motion to quash. Defendant assigns error.</p>

<p>1. I Constitutional Law—Full Faith and Credit—■Meaning of Plvrase.— The well settled meaning of the full faith and credit clause of the Constitution of the United States (art. IV, see. 1) is that the courts of one State must accord to the judgment of another State the same effect which it has in the State where rendered. If a judgment is conclusive in the State where it was pronounced, it is equally conclusive on the courts of other States of the United States.</p> <p>2. Divokoe—Desertion-—-Effect of Decree of Another State—Waiver— Constitutional Law—Subsequent Desertion.—A decree of a court of competent jurisdiction, upon the wife’s petition for separate maintenance, adjudging that she is living apart from her husband for justifiable cause, is, while it remains in force, a bar to proceedings by the husband for divorce on the ground of her desertion not only in the State in which it is rendered, but in all the other States of the Union, and the benefit of such decree, when relied upon, is not waived by the fact that the wife also defended on the merits a subsequent suit by the husband for divorce on the ground of desertion. Where the alleged desertion rests upon the original separation, the decree is necessarily conclusive until reversed. In the case in judgment, there is no adequate evidence of a subsequent desertion.</p>

<p>1. Pbincipai, and Agent—Disputed Agency—Case in Judgment.—W. applied. to It. & H. for a loan to be secured by deed of trust on real estate. It. & H. agreed to make the loan if the title was satisfactory, and wrote W. advising her to get J. or some other reliable attorney to examine the title for her. She employed J. to examine the title, and he reported two liens on the land and this report was sent to K. & H. by the agent of W. Two days thereafter It. & H. wrote to J. enclosing a check for the amount of the loan payable to W., and also a deed of trust to be executed by her—the check to be delivered when the deed of trust was executed. In the same letter to J. enclosing the check he was asked to have the property insured for the amount of the loan and to certify that the two liens mentioned in his abstract of title had been paid. K. & H. also said in the same letter they had been informed that the property was worth a sum mentioned and he was asked, “Is that your judgment of it?” At first W. refused to endorse the check, but did finally execute a note for the amount and the deed of trust to secure it and endorsed the check. All of these papers were delivered to J., who endorsed the cheek and collected .it, and a few days thereafter died insolvent. Suit was brought to annul the deed of trust securing the loan to It. & H. on the ground that J. was the agent of It. & H. and hence the deed of trust was without consideration.</p> <p>Held: J. was the agent of W. and the loss must fall on her, and the deed of trust is a valid security for the loan made by It. & H.</p>

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

<p>1. Judgments—Interest of Debtor—Contemporaneous Deed of Trust to Secure Purchase Money.—Where a purchaser, contemporaneously with the execution and delivery of the deed to the land sold, executes and delivers to the vendor a deed of trust thereon to secure the purchase money, the two conveyances are to be regarded as parts of one transaction, and the vendee acquires temporary seisin only, and not such a beneficial interest in the land as may be subjected to the lien of a judgment until the deed of trust is satisfied.</p> <p>2. Judgments—Res Judicata—Collateral Attach.—A final decree, however erroneous it may be, is conclusive upon the parties and is not amenable to collateral attack. A final decree involving error in judgment in the determination and application of facts can only be corrected on appeal.</p>

<p>1. Appeal and Error—Petition—Assignment of Errors—Limitation of Actions.—The discussion in a petition for a writ of error may be treated as a substantial compliance with the statute requiring errors to be assigned in the petition, when the motion to dismiss for fail- . ure to comply with the statute is not made until after the right of appeal is barred by limitation.</p> <p>2. Life Insurance—Good Health—Oase at Bar—Question for Jury.—-The evidence in the case at bar, taken as a whole, raises a question proper for submission to a jury as to whether the assured understood and believed from what passed between him and the physician consulted there was anything seriously wrong with his health.</p> <p>3. Life Insurance—Antedating Policy—Contracts.—In the absence of fraud or imposition, there is no essential illegality in antedating life insurance policies, that is, making them, for the purpose of fixing maturity dates for premiums, relate back to and take effect as of a time prior to their delivery, and parties who enter into such contracts are bound by their terms.</p> <p>4. Life Insurance—Policy—Date for Paying Premiums—Parol Evidence.—Parol evidence is admissible in cases based on insurance policies, as in those based on other written contracts, to explain ambiguous terms, and the courts are disposed to be especially liberal in this respect in dealing -with such insurance contracts, but such evidence cannot be received to vary the express terms of a policy. In the absence of fraud or mistake the written or printed policy is the best and only admissible evidence of what the contract between the parties is as to all matters it purports to cover. It is not permissible to show by parol contemporaneous evidence a different date for the payment of premiums from that expressly stated in the policy.</p> <p>5. Life Insurance—“Consulting a Physician”—Case at Bar—Question for Jury.—What constitutes “consulting a physician” within the meaning of an application for life insurance depends upon the character of the interview. In the case at bar the assured was called up over the telephone by the physician at the instance of assured’s wife and asked to come to Ms office, which he did and the physician examined him. Whether or not this constituted “consulting a physician” was a question for the jury, who should have been instructed as to the legal meaning of “consulting a physician.”</p> <p>6. Life Insurance—Application—Good Faith—Code, Section SS/rf-a— Case at Bar.—Good faith and substantial truth are all that can be required of the insured in applications for life insurance, and it was not error under the evidence in the case at bar to instruct the jury that if they believed from the evidence “the defendant company accepted and received the application for reinstatement and executed its receipt therefor, you shall find for the plaintiff, unless you believe that it has been proven by a preponderance of the evidence that the answers in such application were wilfully false or fraudulently made, or that they were material.” The instruction is in accord with section 3344-a of the Code and with section 28, chapter 2, of the general insurance act of March 9, 1906 (Acts 1906, p. 139).</p> <p>7. Evidence—Life Insurance—Private Dealings Between Subagent of Insurance Company and Assured.—Strictly personal and private dealings between a subagent of an insurance company and the assured, relating to the payment of premiums, made without any knowledge of or authority from the insurance company, are not admissible in evidence in an action by the beneficiary against the insurance company.</p>

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

<p>1. Telegraph and Telephone Companies—Licenses—Amount—Graduation.—A license tax for tbe purpose of revenue for tbe privilege of doing intrastate business in a city may be lawfully imposed on a telegraph company, and, in fixing the amount of the license it is allowable to take into consideration the number of poles and feet of eonduit used where the ordinance operates upon all alike. The graduation of license taxes imposed for the purpose of revenue, according to the amount or extent of business, either with or without a fixed minimum, is a common and widely approved practice.</p> <p>2. Licenses—Ad Valorem Tax—Double Taxation.—The assessment of a license tax for revenue on a corporation for the privilege of doing business and an ad valorem tax on the property owned by the company and employed in its business is not double taxation.</p> <p>3. Telegraph and Telephone Companies—License—Confiscatory Mate— Evidence.—In the absence of proof of relevant facts, the courts cannot assume that the ratio of expense to revenue as to intrastate and interstate telegraphic traffic is the same, nor can such assumption be made by telegraph companies the basis for showing that a local tax on intrastate business is confiscatory.</p> <p>4. Evidence—Judicial So tice—“Overhead Charges.”—Courts cannot take judicial notice, as a matter of common knowledge, of what is meant by “overhead charges,” as the items chargeable thereunder vary under different circumstances and with different individuals, and even with different auditors of the same individual, and it must be' a matter of evidence in each case as to what constitutes such charges.</p> <p>5. Constitutional Law—Evidence—Taxation—Licenses.—The party who alleges that a tax law is unconstitutional because the tax is confiscatory, has the burden of proving the same by evidence upon which the court can base an intelligent and reasonable judgment, and not by arbitrary formulas and artificial rules.</p>

<p>1. Instructions—Multiplication.—The giving of a number of unnecessary instructions tends to confuse and mislead the jury, and the practice should be abandoned.</p> <p>2. Master and Servant—Injury to Servant—Boss of Gang—Superior Authority.—The ordinary boss or foreman of a gang of hands with whom he works, who has no power to employ or discharge members of the gang, is a fellow servant of the members of the gang. His superiority in authority does not change his relations to the gang, unless his superiority places him in the position of principal or vice principal.</p> <p>3. Master and Servant—Injury to Servant—Boss of Gang—~Nonassignable Duty—Character of Act.—In the absence of a statutory enactment, the master’s liability for the negligent act of one servant against another is determined solely by the question whether the act of negligent servant was in the performance of a duty imposed by the common law upon the master towards the injured servant, and not whether the negligent servant has been placed by the master in a position of higher grade or in authority and control over the injured servant. If a foreman was not in the performance of a nonassignable duty, he is still a fellow-servant of the injured servant, and such fellow service is a bar to a recovery by the injured servant.</p> <p>4. Master and Servant—Injury to Servant—Safe Place—Change in Conditions.—If a place is reasonably safe in the first instance, but the conditions are such in regard to safety that they are constantly changing, and the place is afterwards rendered unsafe by the negligent manner in which the boss or foreman of a gang directs the work to be done, in doing which an injury is inflicted on another servant, the master is not liable for such injury. The master is not required to keep a constant watch over his servant and warn him of common dangers that may arise in the course of his employment, and where the servant already possesses sufficient knowledge of conditions to enable him to take appropriate precautions for his own safety, the master cannot be deemed culpable on the ground of an omission to give warning. Such dangers are risks incident to the employment.</p> <p>5. Master and Servant—Injury to Servant—Infant Servant—When Capacity Presumed—Burden of Proof.—An infant over the age of fourteen years is presumed to have the capacity to understand and be sensible of danger, and this presumption continues until overthrown by clear proof of the absence of such discretion as is usual with infants of that age, and where the size and appearance of the infant are such as to indicate that he was a full grown man, the burden is upon the plaintiff not only to show that he was incapable of understanding and appreciating the danger, if such defense is relied upon, but also that such incapacity was known or should have been known by the master.</p> <p>O. Master and Servant — Death of Servant — WegUgenoe of Beneficiaries.—When an action for the death of an infant is brought by the parent and for the latter’s benefit, the contributory negligence of the parent may be shown in bar of the action. This rule is founded upon the principle that no man can acquire a right of action by his own negligence.</p> <p>7. Evidence—Experts—Discretion of Trial Court.—The admissibility of expert evidence is largely a matter in the discretion of the trial court, and its ruling allowing a witness to so testify will not be reversed unless it clearly appears that he was not qualified.</p>

' Error to a judgment .of the. Circuit Court of Grayson eounty in-an action of. trespass on the case. Judgment for the plaintiff. Defendant assigns error.

<p>"1. Master and Servant—Death of Servant—Explosion of Boiler■—Boiler Act.—When a carrier has discharged the duties imposed upon him by what is known as the boiler act, passed by Congress, by turning . over to an engineer a locomotive engine and boiler and appurtenances in proper condition and. safe to operate, he is not answerable ""‘to the engineer as an insurer of his safety throughout the run, and, in order for his personal representative to maintain an action for ■ his. death caused by the explosion of the boiler, the burden rests upon the plaintiff to show that the defendant has been.guilty of the negligence charged in the declaration.</p> <p>"2. Witnesses—Experts—Qualifications—Opinions of Nonexperts.—The ... .' , ’ opinion, of a witness, who is shown to possess no adequate knowledge of the subject, as to the cause of the explosion of a locomotive boiler is not receivable in evidence. He is not an expert, and such ■ •' opinions are altogether speculative and inadmissible in evidence.</p> <p>■3:. 'Witnesses — Opinions — Evidence. — Opinions of witnesses founded neither upon facts within their knowledge nor established by other evidence in the case are matters of speculation and possess no evidential value. The admission of such opinions in evidence violates the fundamental principle that an inference cannot- be drawn fvom a presumption, and a verdict resting upon such a foundation is not the .fruit of evidence, but of conjecture, and cannot be upheld.</p> <p>4. Witnesses—Experts—Mow Examined.—Before the opinion of an expert, based on facts to which he has not himself testified, can be admitted, he must fully understand the facts already proved, and , his testimony must come in response to a hypothetical' question embodying the evidence.</p> <p>•51- Negligence—Mappening of Accident—Burden of Proof—Case at Bar.— " The -mere happening of the accident, under the eircuiristances of . _ the case at bar, does not per se cast upon the defendant the imputation of negligence, but to warrant a recovery the burden is upon the • • ’ plaintiff to prove that the defendant has been guilty of the negligence alleged in the declaration. ‘ . ’ ‘</p> <p>6. Master and Servant—Death of Servant—Sis Negligence Sole Cause— Comparative Negligence—Federal Employers’ Liability Act.—The question of comparative negligence provided for in the Federal Employers’ Liability Act has no application to a ease where the negligence of the plaintiff’s intestate was the sole cause, not the contributory cause, of his death.</p>

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

<p>Error to a judgment of the Law and Eqnity Court of the city of Richmond. Judgment for the defendant. Plaintiff assigns error.</p>

<p>1. Partition—Code, Section 2562—Equity Jurisdiction—Questions Affecting Legal Title.-—In order to give the court jurisdiction in a partition suit under section 2562 of the Code of a “question affecting the legal title” the question must arise as an incident to a partition and must be such as to require a decision before the partition can be satisfactorily made as between the persons at whose instance, or in whose behalf the partition is being made. An independent hostile claim going to the whole property involved, and denying in loto and ah initio the title of the parties claiming the joint ownership of land, cannot' be set up and adjudicated in a partition suit brought by the latter. The provision of section 2562 giving the court jurisdiction of questions of law affecting the legal title, arising in the suit, as well between tenants in common, joint tenants, and coparceners “as others,” was never intended to make a proceeding under that section a substitute for an action of ejectment.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond on an attachment for rent. Judgment for the plaintiff. Defendant assigns error.</p>

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

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

<p>1. Evidence—Admissibility—General Objection.—Where evidence is offered, a portion of which is objectionable and the other not, and the objection thereto is general, it must be overruled. The objection, to be available, must point out specifically the objectionable features.</p> <p>2. Evidence—Part of Record Only—Objection—Case at Bar.—In the case at bar, in which an attorney was suing for a fee which was conditioned upon the client’s success in a suit which the attorney was conducting for him, it was not error to refuse to allow the defendant to introduce in evidence the bill filed by said attorney for his client, without the residue of the record in the case. There was evidence tending to show that the result of the litigation was beneficial to the client, although he did not get all he claimed in the bill, and it was necessary .to the ends of justice that the whole record should be introduced, in order that the trial court and the jury might see whether or not there had been a substantial benefit to the client as a result of the litigation, although the result fell short of the ease made by the bill and the prayer for relief based upon it.</p> <p>3. Appear and Erbok—Remarks of Trial Court to Jury—Effacing Consequences.—A remark made by the court to the jury, even if improper, will not constitute reversible error, where the appellate court is satisfied that the subsequent action of the court was sufficient to efface any injurious consequences which the original remark may have caused.</p> <p>4. Instructions — Evidence Sufficient to Support Verdict —- Scintilla Rule.—While the scintilla rule has been disapproved, yet whenever there is evidence before the jury which would support a verdict upon a motion to set it aside, the court is obliged to instruct if requested so to do.</p> <p>5. Instructions—Misleading—Case at Bar.—In an action by an attorney against his client to recover counsel fees conditioned upon the successful conduct of certain litigation, it is misleading to instruct the jury that there can be no recovery for the plaintiff if they believe that the said litigation terminated in favor of the adverse party, where the evidence shows that it was in part, at least, favorable to the client.</p> <p>6. Instbuctions—Directing Verdict—When Improper.—It is error to give an instruction directing a verdict for the plaintiff or the defendant, unless every material fact bearing upon such instruction be brought to the attention of the jury.</p> <p>7. Assumpsit-—Special Contract—Common Counts—Contract Fully Performed—Counsel Fees.—Indebitatus assumpsit will lie to recover the value of work done under a special contract, if it be fully executed on the part of the plaintiff, and nothing remains to be done under it but the payment, of a sum of money by the defendant. The existence of this state of facts raises an implied promise to pay the money. Although an attorney, therefore, may have been employed for a stipulated compensation, if he has fully rendered the services agreed upon, he may maintain indebitatus assumpsit for his fee, where nothing remains to be done but payment by the client.</p> <p>8. Appeal and Ekbob—Verdicts—Conflicting Mvidence.—The verdiet of a jury rendered upon conflicting evidence will not be disturbed by the appellate court.</p>

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

<p>1. Gas—Nuisance—Negligence—Cutting Hole in Floor—Proximate Injury—Repairs.—If a gas company enters a building, not by agreement with the owner thereof, but in the exercise of a right given it by law as a public service corporation, and, for the purpose of repairing or improving its works, cuts a hole in the floor, it is the duty of the company to restore the floor to the safe condition it was in before the hole was cut, and this duty continues until such restoration is made, and for an injury proximately resulting from a breach thereof the company is liable.</p> <p>2. Independent Contkactobs—Liability for Negligence.—An independent contractor is liable for an injury proximately resulting from his negligence where the work has not been completed and accepted by the owner.</p> <p>3. Pboximate Cause—Lapse of Time—Causal Relation.—Proximate cause does not necessarily imply closeness or nearness in point of time or physical sequence of events, but rather closeness or nearness in point of causal connection.</p> <p>4. Negligence—Foreseeable Consequences—Proximate Cause.—If the effect of a negligent act was reasonably to have been foreseen, and was, in the usual course of events, likely ,to follow from the cause, the person putting such causes in motion will, in the absence of an intervening cause producing the injury, be responsible for such injury.</p> <p>5. Nuisance—Joint Liability.—The primary author of a nuisance cannot escape liability for its consequence by showing that some other person was also liable therefor.</p>

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

<p>1. Master and Servant—Injicry of Servant—Presumption—Proof of Negligence.■—The negligence of the master cannot be inferred from the mere occurrence of an accident by which his servant is injured. That fact alone does not raise even a prima facie presumption that the master has been guilty of negligence or a breach of duty to his servant. Negligence of the master is an affirmative fact to be established by the injured servant; The evidence in such case must show more than a mere probability of negligence, and it is not sufficient that it is consistent equally with the existence or nonexistence of negligence. There must be affirmative and preponderating proof of defendant’s negligence.</p> <p>2. Master and Servant—Injury of Servant—Appliances—Defects—Notice to Master.—In the case at bar, the plaintiff’s intestate was killed by the fall of an elevator in consequence of a broken cable, but it is clear from the evidence that the defendant furnished safe and suitable machinery for the work that was being done, and competent employees to do such work, and that it had the machinery regularly inspected to see that it was in good order. It does not appear that the accident happened because of any defect in the elevator. If, however, it did so appear, there could be no recovery because the plaintiff has wholly failed to show that the defendant knew of such defect, or, in the exercise of ordinary care, ought to have known of its existence.</p> <p>3. Master and Servant—Res Ipsa Loquitur Not Applicable.—In eases between master and servant, the doctrine of res ipsa loquitur does not apply in the absence of proof of any negligence on the part of the master. In such cases the mere occurrence of an accident does not raise even a prima facie presumption that the master has been guilty of negligence, or of a breach of duty to his servant.</p>

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

<p>1. Dead Bodies&emdash;Removal&emdash;Power of Court of Equity.&emdash;A court of equity has the power, notwithstanding the absence of legislation on the subject, to authorize, in its sound judicial discretion, the removal of graves or cemeteries in a proper case after due consideration of all the facts and with due regard to the rights and feelings of all concerned.</p> <p>2. Cemeteries&emdash;Rights of Lot Otoner■&emdash;License&emdash;Discontinuance&emdash;Removal.&emdash;The purchaser of a lot in a cemetery does not acquire absolute right inj or dominion over, such lot. According to the weight of authority such purchaser acquires a mere license or privilege to make interments in the lot exclusively of others as long as the burying ground or cemetery remains’ as such. This license or privilege is subject to the condition that if, in the course of time, it becomes necessary to vacate the ground as a burial place he shall have notice and the opportunity of removing the bodies and monuments to some place of his own selection, or, on his failure so to do, such removal shall be made by others.</p> <p>3. Dead Bodies&emdash;Removal&emdash;Desecration&emdash;Case in Judgment.&emdash;Every of graves is not a desecration. On the contrary, such is often dictated by the highest considerations of duty and respect for the dead. In many instances not only graves but whole cemeteries are removed to another and different locality, and the idea that such removal is a desecration is negatived by our statute (Code 1904, sec. 1406-a) which permits the removal of cemeteries under certain circumstances and conditions. In the case in the removal of the graves, instead of desecrating the sepulchre of complainants’ dead, will rather tend to preserve and beautify their resting place.</p>

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

<p>1. Taxation—License Tax—Hotels—Statutes on Licenses Construed.— The prior law imposing a tax on hotels was repealed by the Byrd law of 1908 (Acts 1908, p. 275). After that date and until the act of 1914 (Acts 1914, p. 419) there was no statute in this State imposing a tax upon the business of conducting a hotel. Sections 94, 95 and 96 of the revenue law of 1902-3-4 (Acts 1902-3-4, pp. 203, 204) imposing a tax on houses of private entertainment were never intended to authorize the imposition of a license tax upon hotels, and they cannot be so extended merely because the section which provided for taxing hotels had been repealed.</p> <p>2. Taxation — License Tax — Illegal Assessm ent — Payment — Recovery Bach—Code, Sections 567, 568—Protest.—The doctrine that a voluntary payment of money under a mistake of law lays no foundation for an action to recover back the money so paid has no application to a suit under sections 567 and 568 of the Code to recover back money paid under an erroneous assessment of a license tax. The statute in plain terms prescribes the conditions upon which the erroneous assessment shall be refunded. Whether the payment of the erroneous assessment be made voluntarily or involuntarily has, under the terms of the statute, nothing to do with the right of the citizen to the relief afforded thereby. A party who has complied with all the requirements of the statute is entitled to have an erroneous assessment of a license tax refunded.</p>

<p>1. Municipal Corporations.—Ministerial Duties—Improving Streets—■ negligent Performance.—A city, in grading and improving its streets and in removing the surplus earth to a place of deposit, exercises a ministerial duty and is liable for an injury resulting from the negligent manner in which that duty is performed. This is not a governmental function.</p> <p>2. Proximate Cause—Wounding—Lockjaw Ensuing.—Where a wound is negligently inflicted upon a person and in.one week thereafter lockjaw ensues from which he dies, and there is no other wound on his body through which the infection could have entered, the negligent act is the proximate cause of the death. The negligent act produced the injury, the injury produced the lockjaw, and the lockjaw produced death. There is no break in the chain of causation from the alleged negligent act to the death. The lockjaw was neither an independent nor superseding cause.</p> <p>3. Instructions—Burdening Jury with Extended Examination of Pleadings.—An instruction which devolves upon the jury the task of evolving from a long declaration containing several counts whether the defendant was guilty of negligence “in manner and form as alleged in the declaration, or some count thereof” should not be given, and it is not error to refuse it.</p> <p>4. Instructions—Directing Verdict on Incomplete Statement of Facts.— It is not error to refuse an instruction which concludes with a direction to find for the plaintiff when it does not contain a complete statement of all facts necessary to a recovery.</p> <p>5. Instructions—Street Crossings—Right of Way—Traffic Ordinance.— Where a traffic ordinance of a city provides that all vehicles and street cars going east and west shall have the right of way over all vehicles and street cars going north and south, an instruction is defective which tells the jury that, at crossings at the intersection of streets, the rights and duties of street car companies and the public are equal.</p>

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

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

<p>Error to a judgment of the Circuit Court of Fairfax county in an action of trespass on the case. J"udgment for the defendant. Plaintiff 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. Defendant assigns error.</p>

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

<p>1. Nuisance—Permanency—Successive Actions.—In all cases of doubt respecting the permanency of the injury inflicted by a nuisance, the courts are inclined to favor the right to bring successive actions.</p> <p>2. Appeal and Error—Verdicts—Conflicting Evidence—Limitation of Actions.—Where an issue of fact raised by a plea of the statute of limitations has been submitted to the jury upon correct instructions, their verdict, upon conflicting evidence, which has been approved by the trial court, cannot be disturbed by this court.</p> <p>3. Nuisance—Special Damages—Loss of Bents—Pleading—Pollution of Streams.—In an action for damages by polluting a stream which runs through the plaintiff’s land, evidence of the rental value of the plaintiff’s premises is inadmissible, in the absence of any allegation in the declaration of loss or diminution of the rental value of the property. The averment of special damage is essential to inform the defendant of the character of the ease he is called upon to answer.</p>

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

<p>1. Evidence—Hearsay—Failure to Strike Out—When Harmless.—A witness testified in chief that, before the happening of the accident complained of, two men looked at the sewer alleged to have caused the accident and talked of being connected with the sewer department. On cross-examination the witness said she did not see these men or hear them talk, but that they were seen and heard by a lady'next door. The defendant moved to strike out this evidence, but the trial court overruled the motion and “stated that it could not strike out evidence that had gone before the jury, but that if she did not see them it was not evidence.” It was subsequently shown by the undisputed evidence that the sewer department did have notice of the sewer ditch before the accident, and that two men connected with the department did in fact go there as the witness had testified.</p> <p>Held: The motion to exclude should have been sustained in direct terms and not indirectly as was done, but in view of the subsequent undisputed evidence, it was not reversible error.</p> <p>2. Evidence—Admissibility—Personal Injury—Condition Long After Injury.—The testimony of a physician who examined the plaintiff for the first time nearly a year after he received a personal injury, describing scars, inflammation and injury to the plaintiff’s leg, is admissible in an action to recover for such injury, if it is shown that the conditions testified to by the physician were caused by the accident complained of, although another physician who examined and treated the plaintiff at the time of and immediately following the accident did not think any such conditions as were found would result from such an accident.</p> <p>3. Damages—Excessive—Yerdict—Personal Injury.—A verdict of $700 for a personal injury cannot be set aside as excessive where it appears that, in consequence of the injury, the plaintiff sustained appreciable pecuniary loss, suffered great pain, and a year thereafter was still suffering and partially disabled.</p> <p>4. Municipai Cobpobations—Sewers-—Defective Ditch—Personal Injury—Liability of Contractor—Case at Bar.—Although, in the case at bar, the contractor, who undertook to dig ditches and lay sewer pipes for tbe city, was under contract to keep in repair for twelve months after its completion the whole of the work and to guarantee it against all defects of any nature, and to replace the same with work satisfactory to the city engineer, he was not required to guard and protect the work for the safety of the public for twelve months after its completion and acceptance by the city, but only during its progress.</p>

<p>1. Process&emdash;Service By Publication&emdash;Acts 1914, Ch. 382, Sec. 25&emdash;Drain-age Districts.&emdash;Notice by publication under sec. 25 of Acts 1914, ch. 332, p. 642, for the establishment of draining districts, is not sufficient service upon the persons sought to be affected thereby, and as to those so served the court is without jurisdiction.</p> <p>2. Process &emdash; Service ■&emdash;■ Insufficiency &emdash; Special Appearance &emdash; Calling Parties.&emdash;A special appearance for the purpose of submitting a motion to dismiss a proceeding because of the insufficiency of the notice thereof is not rendered nugatory by the fact that the court directs the parties so specially appearing to be called in open court, and upon such call, they are found to be present. If a party desires to raise the question as to the sufficiency of the service of process upon him he may do so by entering a special appearance for that purpose provided his pleading does not assume such shape as to admit the jurisdiction of the court.</p>

<p>1. Negligence—Driver and Passenger■—Railroads—Grade Grossing.— While the negligence of the driver is not to be imputed to the passenger, it is the duty of the passenger to use ordinary care for his own safety. In approaching a grade crossing of a railroad he should look and listen for approaching trains. The track is a signal of danger to him, and his failure to exercise reasonable precaution for his own protection is contributory negligence and bars recovery.</p> <p>2. Railroads—Grade Crossing—Open Gates—Duty of Traveler.—A traveler approaching a grade crossing of a railroad where gates or other devices are in use must use that degree of care which a person of ordinary prudence would use under like circumstances before going upon the track. While the same degree of care is not required as at crossing where no such devices are used, still he must use his senses to ascertain whether or not a train is approaching. He cannot rely entirely on an open gate as a guaranty of safety. An open gate does not “justify” the- traveler in starting across the track without looking or listening for approaching trains, and the statement to this effect in Atlantic Coast Line R. Co. v. Grubbs in 113 Va. 214, was inadvertent.</p> <p>3. Negligence—Contributory Negligence—Inference—Demurrer to Evidence.—The inferences to be drawn from the evidence as to contributory negligence must be certain and incontrovertible, or they cannot be made by the court. If, under all the facts and circumstances of the case, it-is a question about which reasonably fair-minded men may differ, it must be decided by the jury, and if the jury might have found for the plaintiff, on the defendant’s demurrer to the evidence, the court must so find.</p>

<p>1. Railroads—Grade Grossing—Obstructed View—Warning—Reflected Light From Engine.—Light from the headlight of an ¡engine reflected or shown upon the top of telegraph poles placed above a very deep cut would be very uncertain evidence of an approaching train to the driver of an automobile about to cross the track at grade where the track as it approached the. crossing passed through a very deep cut on which there was a sharp curve at no great distance from the crossing. It is not such warning as would charge the chauffeur with contributory negligence.</p> <p>2. Evidence—Photographs—Distance Between Objects.-—Whether two houses are equidistant from the scene of a railroad accident cannot be determined from a photograph when the three objects are not in the same line of vision. If they were in the same line of vision, it might be possible to make an accurate estimate of !he comparative distances of the houses from the scene of the accident, but where they are not, it would be making a conjecture based upon very uncertain conditions to assume, merely from a photograph, that the houses were of equal distance from the scene of the accident. If such fact is relied upon, it should be established by direct evidence.</p> <p>3. Automobiles—Death of Ghauffewr—Lack of License—Proximate Gause.-—-The fact that a chauffeur killed at a grade crossing of a railroad did not have the license required by law, and that the car he was running was not licensed will not bar recovery by his administrator, where the absence of such licenses did not proximately contribute to the happening of the accident resulting in his death.</p> <p>4. Carriers—Negligence—Automobile Grossing Railroad at Grade.— The duty which the chauffeur of an automobile run as a carrier of passengers owes to a railroad company whose track he is about to cross at grade is that of ordinary care. He does not owe to the company the same degree of care as to his passenger.</p>

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

<p>1. Board op Supervisors&emdash;Unlawfully Opening Road&emdash;Damages.&emdash;In the absence of statute, no action lies against a board of supervisors for damages inflicted on a landowner by unlawfully directing the opening a road through his premises.</p> <p>2. Damages&emdash;Abatement&emdash;JJighiqoys-&emdash;Roads&emdash;Case vn Judgment.&emdash;Under the evidence in the ease in judgment, it was error to abate the damages fixed by the master for invasion of complainants’ land and the injury done thereto. The evidence establishes a case of unwarranted invasion of complainants’ property by a highway officer and destruction of their line fence and trees and excavations made in their land, for which the officer is liable to respond in damages.</p> <p>3. Highways&emdash;Prescription&emdash;Extent&emdash;Enlarging Road.&emdash;The extent of a highway by prescription is to be governed by the extent of the user. The public right in such case rests upon user and can only be coextensive therewith. If the present public convenience demands more land it must be acquired by condemnation or other lawful methods. It cannot be taken by force. Highway officers have no right to alter or change the location as acquired by prescription.</p>

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

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

<p>1. Negligence&emdash;Presumptions&emdash;Evidence&emdash;Burden of Proof.&emdash;An cannot be drawn from a presumption, but must be founded upon some fact legally established. When liability depends upon carelessness or fault of a person or his agent, the right of recovery depends upon the same being shown by competent evidence; and it is incumbent upon the plaintiff to furnish evidence to show how and why the accident occurred&emdash;some fact or facts by which it can be ascertained by the jury&emdash;and not be left to conjecture, guess, or random judgment, upon mere supposition.</p> <p>2. Negligence&emdash;When a Question of Pact&emdash;When of Law.&emdash;What ordinary care or diligence in a given case in a question of fact to be determined by the jury in view of the surrounding when there is substantial evidence upon which to submit such an issue, but in the absence of such evidence it is a question of law to be determined by the court.</p> <p>3. Negligence&emdash;Unanticipated Mesults.-&emdash;It is not negligence to fail to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably Jiave been anticipated, and would not have happened but for the occurrence of exceptional circumstances.</p> <p>4. Negligence&emdash;Unusual Dangers&emdash;Warning&emdash;Proximate Cause.&emdash;It is not sufficient to say that a man was not instructed as to unusual dangers without proving what the unusual dangers were in a particular case, and without showing that one or more of these unusual dangers were the real and proximate cause of the accident complained of.</p> <p>5. Mines and Minerals&emdash;Mining Act&emdash;Inexperienced Employee&emdash; Infants&emdash;Master and Servant.&emdash;A bright, intelligent, careful boy of fifteen and a half years of age who has been working for six months as brakeman and was shown to be a good brakeman and thoroughly understood the business, and also understood the work of a which was not more difficult - or dangerous, and that he performed the duties of each as well as an adult could have performed them, cannot be said to be an inexperienced brakeman or flagman within the meaning of the mining act.</p> <p>6. Negligence — Dangerous Machinery — Infants •—■ Employment — Appreciation of Dangers.—There is no rule forbidding the employment of a minor about dangerous machinery. All the law requires is that the minor should be properly instructed as to the danger to which he is exposed. If he is familiar with the machine, and its character and operations are obvious, and he is aware of and fully appreciates the dangers to be apprehended from operating it, the fact that he is a minor does not alter the general rule that the employee takes upon himself the risks which are patent and incident to the employment.</p> <p>7. Master and Servant—Injury to Servant—Negligence.—-The master is not an insurer of the safety of his servants, and can only be held liable in damages for an injury to an employee where the negligence of the master is averred as the basis of the action and is established by the evidence.</p> <p>8. Negligence—Proof Required.—In an action to recover damages for an injury alleged to have been caused by the carelessness or fault of the defendant or his agent, it is incumbent upon the plaintiff, even upon a demurrer to the evidence, to furnish evidence to show how and why the accident occurred, that is, some fact or facts by •which it can be determined by the jury and not left to conjecture, guess, or random judgment, upon mere supposition.</p> <p>9. Negligence—Unexplained Accident.—The evidence and inferences which might have been drawn from it by a jury in the case at bar for which the defendant could not either in law or justice be held are wholly insufficient to have warranted the jury in' finding that the defendant was guilty of negligence, and that such negligence caused the death of the plaintiff’s intestate without fault on his part. The evidence proved nothing more than that the occurrence resulting in the death of the plaintiff’s intestate was an accident which is wholly unaccounted for or explained by the evidence, and for which the defendant could not either in law or justice be held responsible.</p> <p>10. Pleading.—Enlarging Scope—Improper Evidence Received Without Objection.—Improper evidence received without objection cannot be taken to enlarge the scope of the pleadings in a case where such evidence has no bearing upon the facts at issue on the pleadings.</p> <p>11. Mining Act—Special Rules—Ordinary Details of Business.—The provisions of the mining act requiring the operator of every mine to adopt special rules for the government of the mine, covering all work pertaining thereto, in or outside of the same, was not intended to require the adoption of rules in reference to everything done inside and outside of the mine relating to the ordinary details of the business and employment, involving work of a simple character and well understood by those engaged in the mine.</p>

<p>1. Carriers—Rules and Regulations■—Reasonableness—Notice.—-A carrier has the right to make reasonable rules and regulations for the conduct of its affairs, and they are binding upon passengers and the public dealing with the carrier when brought to their notice. Whether or not such rules and regulations are reasonable is a question of law addressed to the court.</p> <p>2. Street Railways—Rules—Payment of Fares.—The rule of a street car company requiring a passenger to deposit his fare (or ticket) in a box is a reasonable regulation, and one with which the passenger is bound to comply when he has notice thereof.</p> <p>3. Street Railways—Conductors—Conservators of Peace—Passengers— Refusal to Deposit Fare—Arrest.—Conductors of street cars are conservators of the peace in this State, and when a passenger on such car, in disregard of a lawful rule of the company of which he has knowledge, refuses either to deposit his fare in the box or leave the ear, the relation of passenger and carrier between him and the company ceases, and he becomes an intruder and trespasser on the ear, and the conductor may either place him under arrest or eject him from the car.</p> <p>4. Damages—Self-Imposed Grievance—Carriers.—It is against the policy of the law and beyond the competency of the courts to award damages to a plaintiff for a grievance which was self-imposed in the first instance, and which continuously thereafter he could have relieved simply by complying with a reasonable rule of a carrier which obviously it was his duty to observe.</p>

<p>1. Pleading—Contributory Negligence—Raib-oads—Grade Grossing.— Whether or not a traveler crossing a railroad at grade was guilty of contributory negligence in not looking for approaching trains before attempting to cross is a matter of defense, which, in an action by him for any injury at such crossing, he is not required to negative or anticipate in his pleading or proof. But if the rule were otherwise, the declaration in the case at bar is sufficient, because it alleges that the plaintiff’s intestate was “without any negligence on his part.”</p> <p>2. Railroads—Grade Crossing—Rights and Duties of Travelers on Sigh-way.—At grade crossings of railroads the rights of a traveler on the highway and of the railroad company are “mutual, reciprocal and eo-extensive,” but generally a moving train is accorded the right of way. A traveler approaching such crossing for the purpose of crossing must always exercise care proportioned to the known danger, and this care must be such as one who knows the danger and of the prior right of passage would be expected to exercise. The duty of looking and listening for approaching trains must be discharged in such manner as will make the looking and listening effective. The greater the danger, the greater the measure of duty. The track itself is a proclamation of danger, and the traveler has no right to proceed across the track without such looking and listening for approaching trains, and if he does, and in consequence thereof is injured, there can he no recovery, although the railroad company may also be guilty of negligence proximately contributing to such injury.</p> <p>3. Railroads—Grade Crossing—Drivers of Automobiles—Negligence.— Drivers of automobiles are held to a higher degree of caution in crossing railroads at grade than drivers of wagons and other vehicles drawn by horses. If they cannot otherwise see or hear, they must stop, look and listen even in close proximity to the track, and if they fail to do so, and make chance, not stopping, their guaranty of safety, and are injured by moving trains, they cannot recover. Although it may sometimes afterwards appear that it would have been safer not to have stopped, still if men choose to act upon chance instead of caution in such cases, they violate a general rule of safety established by reason, experience and authority, and are guilty of negligence which will bar recovery.</p> <p>4. Automobiles—Negligence of Driver—Joint Enterprise.—Where two persons are engaged in a joint enterprise or adventure in the use of an automobile, even though the enterprise or adventure be only a pleasure trip, the contributory negligence of either, within the scope of the enterprise, will bar a recovery by the other.</p>

<p>1. Statutes—Civil and Police Justice—Constitutional Lam.—The act of March 20, 1914 (Acts, 1914, p. 229), providing for the election of a civil and police justice in certain cities, and the act of February-11, 1915, amendatory thereof (Acts 1915, p. 69) are valid and constitutional enactments.</p>

<p>1. Wills-&emdash;Construction&emdash;Vesting of Estates.&emdash;All devises and bequests are to be construed as vesting at the testator’s death, unless the intention to postpone the vesting is clearly indicated in the will.</p> <p>2. Wills&emdash;Construction,&emdash;Condition in Restraint of Marriage&emdash;Case in Judgment&emdash;“Except”&emdash;Limitations.&emdash;Under a devise of real estate to a single daughter declaring “she shall have it forever, except she should marry, then at her death I desire that it shall revert to her legal heirs,” the daughter takes a fee simple estate. The provision with reference to the daughter’s marriage is neither a condition precedent nor a limitation, but a condition subsequent, and, being in general restraint of marriage, is void because contrary to public policy. The word “except” is used in the sense of “but if” which constitutes a condition subsequent.</p> <p>3. Wills&emdash;Condition in Restraint of Marriage&emdash;Intent&emdash;Burden of Proof.&emdash;If it be conceded that the prohibition of the law upon in general restraint of marriage is aimed at the testator’s intent to restrict marriage, and not at the restriction itself, an actual restraint or discouragement of marriage carries with it the prima facie presumption that such restraint was intended, and the burden rests upon him who alleges the contrary to prove the real intention.</p>

<p>1. Criminal Law—Intoxicating Liquors—Illegal Sale—Sale After Warrant Issued but Before Service.—The function of a warrant or indictment for the unlawful sale of ardent spirits is merely to apprise the accused of the offense or offenses for which he is to be tried. On the warrant in the case at bar charging the defendant with an unlawful sale on the date of the warrant, the defendant was not prejudiced by proof of an unlawful sale on the date mentioned but after the issuance of the warrant and before its service, for he had full notice beforehand that he would be tried for such sale. The warrant charging the defendant with unlawful selling on the date mentioned was not notice of a single act but of all selling on that day, and sufficiently covers a sale made after the time of issuing the warrant. The defendant, furthermore, was not prejudiced by the fact that the warrant was issued though not served before the sale for which he was tried, for the reason that, under the broad powers given the judge of the trial court by section 4107 of the Code, on appeal from a justice of the peace, either to amend the old warrant or to issue a bench warrant, the court could have issued a warrant in the exact words of the warrant on which the defendant was tried, and no objection could have been made.</p> <p>2. Evidence—Testimony of Detectives—Weight—Policemen.—It was not error for the trial court to refuse to instruct the jury that the testimony of a detective or one acting as such ought to be considered by the jury with moré than ordinary caution under the facts of the case at bar. The testimony referred to by the instruction was that of a policeman who simply resorted to certain means to corroborate the testimony of one who had already proclaimed the offense, and the defendant was known to be an old offender. There is a clear distinction between policemen, who are public officials, and detectives, who are hired for the occasion. It is the duty of policemen to detect crime and bring the offender to justice, and the instruction requested was an unwarranted limitation upon the function of the jury to determine the weight to be given to the testimony of witnesses.</p> <p>3. Evidence—Good Character of Accused—Presumption.—It was not error for the trial court to refuse to instruct the jury in a criminal case that “in the absence of any evidence respecting the character of the defendant, he is presumed in law to be a man of good character, and it is the duty of the jury to give the defendant the benefit of that presumption.” Good character becomes an issue when the defense voluntarily makes it so, and the State is permitted to disprove it only when so put in issue. It would be illogical to say that the defendant may by keeping silent obtain the benefits that come from good character, and yet by that same silence prevent the prosecution from inquiring into it. In the absence of any testimony on the subject of the good character of defendant, his character is not in issue, but is simply a nonexistent quantity in the evidence, and no inferences are to be drawn with reference to his character in one way or another.</p>

<p>1. Bills of Exception—Tendered m Time hut Signed Afterwards.-— Proper bills of exception tendered to the judge within the time prescribed by law are valid though not signed by him till after the expiration of such time, or if he die, though signed by his successor in office after the expiration of such time. If tendered in time but • not signed, the signature may be compelled by mandamus after the expiration of the time prescribed by law for tendering such bills. A party who has done everything required of him by law to perfect his bill of exception, will not be deprived of his rights by the failure of the judge to sign the bill. Anderson v. Commonwealth, 105 Va. 533, overruled on this point.</p> <p>2. Criminal Law—-Murder of First Degree—Mitigation of Punishment.— Prior Offense—Flection.-—Although the punishment for murder of the first degree was mitigated by an act in effect June 19, 1914, so as to allow the jury to fix the punishment either at death or confinement in the penitentiary for life, a prisoner who committed the offense prior to that date hut is tried subsequent thereto is not obliged to accept the mitigation. He is given the right to do so by section 6 of the Code, but is not compellable so to do. Section 6 of the Code is to be read in connection with section 3663 as amended by the act aforesaid in effect June 19, 1914, and when so read the right of election is plain. A refusal of such election constitutes reversible error.</p>

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

<p>1. Criminal Law—Forgery—Evidence—Relevant Occurrences.—On the trial of an indictment against a defendant for uttering as true an option contract for the sale of land, under which the broker was to get a commission of ten per cent, for making the sale, the written assignment from the broker to the defendant of a one-third interest in said commission, the institution of an action in the name of the broker to recover the commission, and the fact that the defendant testified for the broker in said action, are admissible in evidence as relevant occurrences tending to sustain the charge against him of uttering the forged instrument.</p> <p>2. Appeal and Error.—Objections for First Time—Authenticity of Stenographer’s Report.—On objection made to the introduction in evidence in a criminal case to a stenographer’s report of evidence in a civil case relating to the same matters, the trial judge stated, in the absence of the jury, that the report was admitted to be correct, or that there was no controversy about its correctness, and this statement was not challenged at the time.</p> <p>Held,: The authenticity of the report cannot be challenged on a writ of error awarded to the judgment.</p> <p>3. Evidence—Statements by Accused—Code, Section 3901.-—Statements made by a person as a witness upon a legal examination touching a matter in which he is jointly interested with another are not excluded under section 3901 of the Code when he is subsequently indicted for crime.</p> <p>4. Criminal Law—Forgery—Instructions—Failure to State• Offense.— On an indictment for uttering a forged paper, an instruction which tells the jury they must find the accused guilty if they believe the paper was a forgery and that the defendant knew that fact at a designated time, is erroneous, as these circumstances, standing alone, do not show that the defendant either uttered or assisted in uttering the supposed forged instrument.</p>