Volume 119 — Virginia Reports

<p>1. Homestead&emdash;Setting Apart&emdash;Conclusiveness&emdash;Partition.&emdash;The assignment to a widow, at her instance, by a court of general jurisdiction,! of land of her husband as a homestead is conclusive upon her and those claiming under her that the land so assigned was the property of her husband and not of herself, and her holding of the homestead thereafter was in privity with and in subordination to the title of her husband, and upon her death the land descended to his heirs as coparceners, who are entitled to partition thereof.</p> <p>2. Judgments&emdash;Collateral Attack&emdash;Assignment of Homestead'.-&emdash;The assignment of a homestead is the exercise of the probate jurisdiction of the court. Its judgment imports verity and is not subject to collateral attack.</p>

<p>1. Interstate Shipments—Undercharges—Implied Contracts—-Limitation of Actions.—A contract to carry an interstate shipment of freight at less than the published rate is void, and it is the right and duty of the carrier to collect the published rate. The lesser rate being void, the contract becomes an implied contract on the part of the carrier to carry and of the shipper to pay the published rate. The limitation on such a contract is that applicable to other implied contracts, which, under the statute of this State, is three years.</p> <p>2. Limitation op Actions—Interstate Shipments—-Undercharges—State Statutes.—Congress not having prescribed any time within which an action shall be brought to recover the difference between an undercharge and the published rate on an interstate shipment of freight, the action is governed, as to the limitation, by the statute of the State • in which the action is brought.</p>

<p>1. Executors and Administrators—Distributive Shares—■Payment—Personal Note—Limitation of Actions—Express Trust.—Where an admin- • istrator has made a final settlement of his account, which has been confirmed, showing the payment to all the distributees of their shares of the estate, when in fact he gave his notes to two of them who did not wish the money, upon which notes he paid the interest semi-annually till his death, the relation between him and the distributees is that of debtor and creditor, and the act of limitations begins to run from the maturity of said notes, in the absence of any evidence of an express trust.</p> <p>2. Express Trust—Parol Evidence to Establish.-—-An express trust in either real or personal property may be created by parol, but the evidence to establish it must be clear and convincing.</p> <p>3. .Limitation oe Actions—Express Trusts—Implied Trusts.—The equitable exception, taking a trust out of the operation of the statute of limitations, extends only to actual and express trusts as between the cestui que trust and the trustee properly so called, and does not embrace those trusts which are matters of implication and construction..</p>

<p>1. Telegraph and Telephone Companies—Interstate Messages—Unrepeated—Limit on Recovery.—Congress having permitted telegraph companies to classify their interstate messages into repeated and unpeated messages, and to charge different rates therefor, a regulation of such companies of which a sender of a telegram has notice, limiting the liability of the company on unrepeated interstate messages to the cost of the message is reasonable and will be enforced.</p> <p>2. Telegraph and Telephone Companies—Interstate Commerce—Publication of Contract Forms.-—The act of Congress bringing telegraph companies under the regulation of the Interstate Commerce Commission does not require them to file their contract forms or tariffs with the commission.</p> <p>3. Telegraph and Telephone Companies—Limitation of Liability— Notice Endorsed on Blanks—-Failure to Read—Estoppel.—A party long familiar with the use of .telegrams and who keeps the blanks in his office, cannot defeat the telegraph company of the protection afforded by a stipulation printed on the back of the blank on which his message was written, by declaring his ignorance of such stipulation. To permit him to do so would be to allow him to take advantage of his own wrong. If he failed to read it, especially when his attention was called to it by a notice printed in large black type on the face of the blanks, it was his own fault.</p>

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

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

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

<p>Appeal from a decree of the Circuit Court of the city of Norfolk ou a bill filed by an executor asking the construction of a will and the guidance of the court.</p>

<p>1. Pleading—Plea to Jurisdiction by Corporation—Appearance by Counsel.—A plea to the jurisdiction by a corporation must be by attorney, as it cannot appear in person.</p> <p>2. Contracts—Fraud—Implied Contract.—If two or more persons conspire to cheat a third and together consummate an act by which they defraud such person of a sum of money, the law will imply a joint promise on their part to restore it. But, in the case at bar, no such conspiracy is established.</p> <p>3. Principal and Agent—Knowledge of Agent—Corporations—Fraud of Officers—Presumption.—The general rule that the knowledge of an agent acquired in executing his agency is imputed to the principal and charges him with the liabilities which such knowledge imposes, has no application to an officer of a corporation who, in an independent transaction for his own benefit, seeks to perpetrate a fraud on the corporation as well as upon a third person. In such case it is presumed that the officer did not communicate his knowledge to the corporation, and the latter is not chargeable with constructive notice thereof.</p> <p>4. Limitation op Actions—Bank Account—When Statute Begins to Run.— The statute of limitations on a claim against a bank for the proceeds of a note discounted by it, and which it failed to credit on the customer’s check account, does not begin to run from the date of the discount of the note, but from the close of the account between the bank and the customer.</p> <p>5. Limitation op Actions—Suspension—Concealment—Fraud—Silence.— The concealment of a cause of action which will prevent the running of the statute of limitations must consist of some trick or artifice preventing inquiry, or calculated to hinder a discovery of the cause of action by the use of ordinary diligence. Mere silence is not sufficient. The fraud which will relieve the bar of the statute must be of that character which involves moral turpitude and must have the effect of debarring or deterring the plaintiff from his action.</p>

<p>1. Married Women—Separate Estate—Legal—Equitable.—Estates of married women which are made separate by operation of law are statutory separate estates; those which are made separate by the operation of the instrument or conveyance creating them are equitable separate estates.</p> <p>2. Limitation of Actions—Loan by Wife to Husband—Ability of Wife to Sue—Case in Judgment.—Property acquired by a married woman .under the New Jersey act of 1852, is her property, and her husband has no interest in it or control over it. She acquired both the legal and equitable title to it, and her husband is in no sense her trustee. Her property, so acquired, is protected in her hands as well against, the claims of her husband as against strangers, and if he receives it, a court of equity will compel him to account for it. If after the wife thus received money in New Jersey, she and her husband removed to this State to reside in 1868, and the wife loaned the money to her husband and took his notes therefor, she acquired the legal title to the notes in lieu of the money, and the relation of the parties to the transaction became that of debtor and creditor, and she could at any time have enforced her demand by a suit in equity, or since March, 1900, by an action at law, and the statute of limitations applies as much to her claim as to that of any one else.</p> <p>3. Husband and Wife—Loan to Husband—Trust.—Where a wife, having the legal title to money, loans it to her husband, the relationship of the parties to the transaction is that of creditor and debtor, and not that of cestui que trust and trustee.</p> <p>4. Limitation of Actions—Married Women—Saving Clause.—-The statute of limitations applies as well to married women as to other persons if no saving clause in their favor is contained in the statute.</p> <p>5. Resulting Trust—Loans Subsequent to Purchase of Land.—Where a husband buys land and takes a deed for it, and subsequently borrows money from his wife and uses it for the purpose of retiring some of the notes given for deferred payments on the land, although he in no way obligated himself so to use it, and could have disposed of it in any other way that he chose, no trust in the land results in favor of the wife.</p>

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

<p>Appeal from decree of the Corporation Court of the city of Lynchburg. Decree for the complainant. Defendants appeal.</p>

<p>1. Witnesses—Competency—Holder of Negotiable Note—Incompetency of Party Under Section 3846 of Code.—In an action against the maker of a negotiable note by a holder in due course, who was not a party to the note or the transaction which furnished the consideration therefor, such holder is not incompetent to testify as a witness under section 3346 of the Code, because of the incompetency of one or more of the parties to such note.</p> <p>2. Bills and Notes—Holder in Due Course—-Bight of Recovery—Case at Bar.—The plaintiff, in the case at bar, is a holder in due course of the negotiable note sued on, which is in all respects regular, and there is no sufficient evidence of knowledge brought home to him, of any infirmity in the instrument or defect in the title of the person negotiating the same to affect his right' of recovery thereon. Whatever fraud, if any, was perpetrated on the maker of the note, was perpetrated after it was negotiated to the plaintiff.</p>

<p>1. Mortgages—Growing Trees—Sale by Mortgagor—Liability of Purchaser— Public Records—Notice.—A de.ed of trust conveying land carries with it the timber growing on the land; and where such deed is duly recorded, and in express terms provided that the proceeds of any oak timber cut and removed from the land shall be applied to the payment of the notes secured by the deed of trust, any one who cuts and removes such timber is conclusively charged with notice of the provisions of the deed, and is bound to see to the application of the proceeds of the , timber, and, failing to do so, is liable for the amount.</p> <p>2. Mortgages—Foreclosure—Action Against Purchaser of Growing Trees.— Under the circumstances set forth in the preceding paragraph the trustee was not bound to foreclose the deed of trust before suing to recover the proceeds of the timber cut and removed from the land.</p> <p>3. Estoppel—Silence—Facts Disclosed by Public Records.—A person is not estopped merely by his silence and failure to disclose facts that may be ascertained by an examination of the public records, so long as no act is done to mislead the other party. In such case there is no duty to speak, and he may rely upon notice given by the public records.</p>

<p>1. Evidence—Self-Serving Declaration—Collateral Matters—Irrelevancy— Brokers.—In an action by one broker against another to recover half the commission received by the defendant for the sale of a tract of land, the fact that the plaintiff did, and the defendant did not, include the commission in his income return for that year and pay tax thereon, is irrelevant to the issue, and should not be admitted.- In so far as it affected the plaintiff it was a self-serving declaration, and in so far as it affected the defendant its only purpose could have been to place him before the jury as a “tax dodger.”</p> <p>2. Evidence—Inconsistent Suits-—Instructions Given in First Suit.-—For the purpose of showing that in another suit against a different defendant, the plaintiff made a claim and assumed a position entirely inconsistent with his claim and position in the present suit, the defendant may give in evidence the instructions requested by, and given on behalf of the plaintiff in the first suit.</p> <p>3. Appeal and Error—Rejection of Evidence—When Harmless.—It is not reversible error to reject proffered evidence where substantially the same result is obtained from other evidence admitted in the case, without objection.</p>

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

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

<p>Error to a judgment of the Court of Law and Chancery of the city of Norfolk, in an attachment proceeding in which other creditors intervened. Judgment for intervenors. Plaintiff assigns error.</p>

<p>1. Bills of Exceptions—Signing More Than Thirty Days After Term— Consent Order in Vacation.—After the expiration of more than thirty days from the adjournment of the term of a court at which a final judgment was entered in an action of law, the judge of the court is without jurisdiction to enter a consent order extending the time for signing a bill of exception.</p> <p>2. Bills of Exception—Time of Signing Jurisdictional.—The duty of the judge with respect to signing bills of exception is jurisdictional, and the time within which it should be exercised is measured by the statute. He has no right to defer signing bills of exception which have been tendered in due time until after the statutory limitation has expired, and thereby to deprive a litigant of the privilege of having his bills of exception made parts of the record. It is his province to settle questions of dispute between counsel with regard to the evidence, and he “cannot require counsel to agree upon a statement of the evidence as a condition precedent, nor plead lack of time or memory as justification of refusal to certify the same.”</p> <p>3. Bills of Exception—Signing—Mandamus.—Mandamus will lie to compel the judge of an inferior court to sign a proper bill of exception which he has refused to sign at the trial, although final judgment has since been entered in the case, as the party has no other legal remedy; but if he refuses to sign a bill certifying the facts or the evidence, because they have faded from his memory so that he cannot do so, the appellate court (while it cannot award a mandamus) will, upon proper proceedings had, grant the party aggrieved a new trial.</p> <p>4. Bills of Exception—Tendered in Time hut Signed Afterwards.—Where a proper bill of exception was tendered to the judge for his signature within the time prescribed by law, but was not signed until the expiration of such time, it will be held to be a part of the record as the exceptor has done everything required of him by law to perfect his bill.</p> <p>5. Principal and Agent—Agent Exceeding Authority—How Proceeded Against.—Where an agent exceeds his authority in making a contract for his principal, he is not personally bound on the contract, unless it contains apt words to charge him, but must be proceeded against either by an action for deceit or by an action for the breach of his warranty of authority.</p>

<p>1. Trusts and Trust Deeds&emdash;Second Trust Deed&emdash;Purchaser for Value.&emdash; The trustee in a second deed of trust can be as truly a purchaser for value and without notice as a trustee in a first deed of trust can be. If he is a purchaser for value without notice, the beneficiary takes subject only to the rights secured by the first mortgage, and is not affected by the liens of judgments not docketed before his deed of trust was duly recorded.</p> <p>2. Trusts and Trustee&emdash;Second Trust Deed&emdash;Quit Claim Deed&emdash;Purchaser for Value.&emdash;A second deed of trust, in the usual form, to secure a debt, which conveys all of the grantor’s right, title and interest in the lands described, with covenants of general warranty, is not a quit claim deed. If from the terms of the deed, the adequacy of the price paid, or other circumstances, it appears that the grantor intended to convey, and the grantee expected to be invested with the fee-simple or other particular estate, the purchaser will be protected.</p> <p>3. Purchaser for Value&emdash;Notice&emdash;Defects in Chain of Title.&emdash;While a purchaser at a judicial sale is bound to look to the papers in the cause which furnish reliable information as to the property sold, the title and boundaries of the land and the like, the purchaser of land lying in a county, the records of which furnish full information as to the title, is not obliged to examine the records of a suit in a distant city, which constitute no part of the chain of title, simply because such records are referred to in one of the deeds constituting a part of the chain of title.</p> <p>4. Judgments&emdash;Docketing&emdash;Partition Suits&emdash;Pendente Lite Purchaser.&emdash;A judgment creditor cannot, by filing his petition and proving his judgment in a partition suit in one county preserve his lien on land in another county as against a purchaser thereof for value and without notice. The judgment must be docketed in the county in which the land lies. If not, such purchaser takes free of the judgment. He is not a pendente lite purchaser.</p>

<p>1. " Statutes—Repeals by Implication.—The repeal of a statute by implication is not favored, and the presumption is always against the intention to repeal where express terms are not used, or the later statute does not amend the former. In order for one statute to repeal another simply on account of their repugnancy, ■ there must be a plain, unavoidable, irreconcilable repugnancy, and even then the former law is repealed by implication only to the extent of the repugnancy. If both acts can, by any reasonable construction, be construed together, both will be sustained.</p> <p>2. Turnpike Companies—Forfeiture of Charlar—Acts of 1906 and 1914— Repeal of Statute.—The act of March 21, 1914 (Acts 1914, p. 267), relating to turnpike companies, does not expressly or by implication repeal the act of March 17, 1906 (Acts 1906, p. 623), on the same subject. The act of 1914 imposes no liability and indicated no mode of procedure for the abandonment of a turnpike road and the forfeiture of the charter and franchise of a turnpike company. These important and vital features, and the rights of the parties thereunder, are controlled by the act of 1906 which does not conflict with any provision of the act of 1914.</p> <p>3. Turnpike Companies—Forfeiture of Charter—-Substantial Work on Road— Evidence.—Under the act of 1906 referred to in the preceding paragraph, the turnpike company had the right to show that, within four months from the filing of the first report of the viewers showing that its road was out of order, it had done substantial work on the road . and that such work was continued until the weather rendered further repairs impossible, and that this condition of the weather continued up to the trial.</p> <p>4. Constitutional Law—Viewers of Turnpikes—Freeholders.—Viewers of turnpike roads are not officers of either the State or of a county, city or town, or other subdivision of the State, but mere appointees of the court to perform a specific service in a prescribed manner, and a statute requiring that such viewers shall be freeholders is not in conflict with section 32 of the Constitution which makes every qualified voter eligible to any office of the State, or of any county, city or town, or other subdivision of the State.</p>

<p>Appeal from a decree of the Hustings Court, Part II, of the city of Richmond. Decree for the defendant. Complainants appeal.</p>

<p>1. Instructions—Conflicting Aspects of Evidence—Ignoring One of Them.— Where the evidence in a case is susceptible of two interpretations, it is error for the trial court, by its instructions, to withdraw one of them from the consideration of the jury.</p> <p>2. General Contractor—Duty to Independent Contractor—To Servants.— A general contractor is under as much legal obligation to refrain from doing an injury to an independent contractor at work for him and at a point designated by him, as if he were his servant.</p> <p>3. Instructions—Erroneous as Offered—Correction.—If an erroneous instruction is tendered and refused, and no modification is asked, the court is under no obligation to give a new and correct one.</p> <p>4. Verdicts—Conflicting Evidence.—Where the evidence in a case is conflicting, the verdict of the jury is, as a rule, conclusive.</p>

<p>1. Negligence—Duty of Care for One’s Self—Ordinary Care.—The fact that the engineer of a train that was pulling a dead engine as a part of his train may have promised the passenger accompanying the dead engine to stop the train in a safe place to enable him to inspect said engine, did not relieve the passenger from the obligation to use ordinary care for his own safety.</p> <p>2. Negligence—Contributory Negligence—Case at Bar.—When the negligence of the plaintiff proximately contributes to his injury there can be no recovery. In the case at bar, the physical facts show that if the plaintiff had looked and listened he would necessarily have known of the approach of the train which inflicted the injury complained of, and his negligence is accentuated by his admission that he did not look and did not hear the approaching train.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, in an action of assumpsit. Judgment for the defendent. Plaintiff assigns error.</p>

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

<p>1. Contracts—Bridges—Profile of Bed Rock—“Plus” and “Minus”— “Approximate”—Meaning of Terms.—The terms “plus” and “minus” and the word “approximate” as used in the profile of the bed rock of a river, furnished prospective bidders to inform them as to existing conditions, and to enable them to form estimates for the purpose of submitting plans, specifications and proposals for a bridge to be built over the river, are intended to cover negligible deviations from entire accuracy, and are about equivalent to the term, “more or less,” as used by surveyors.</p> <p>2. Contracts—Extra Work—Written Order—Case at Bar.—The correspondence between the contractor and the city engineer, in the case at bar, in which the contractor promptly notified the city engineer of the necessity for extra work and asked him for instructions and to fix the compensation to be paid the contractor, and the engineer’s reply directing the work to be done, but refusing to fix the compensation therefor because he did not think the contractor entitled to extra compensation, under his contract, was a sufficient compliance, in due time, with the provisions of the contract, that “no claim shall be made or allowed for any work alleged to be extra work, unless the same shall be done in pursuance of a written order from the said city engineer at or before the first payment after the alleged extra work is executed.”</p>

<p>1. Tax Sale—Delinquent Lands—Second Sale—Redemption.—After he pinchase by the Commonwealth of lands sold for delinquent taxes, the former owner and those claiming under him, have only a right of redemption in the land which must be exercised in the mode prescribed by law. Until redeemed there can be no further sale for taxes, nor can the owner before redemption maintain a suit to vacate a second sale for delinquent taxes, or to remove an alleged cloud upon his title by reason of such sale, as the whole title, legal and equitable, is vested in the Commonwealth by the first sale.</p> <p>2 Tax Deed—Recitals—Second Sale—Redemption—Title of Purchaser— Case in Judgment.—-By deed recorded January 21, 1910, the clerk conveyed to a purchaser a lot which had been purchased by the Commonwealth at a sale for delinquent taxes. The deed recited the sale of the lot on January 1,1909, as having been delinquent for taxes and sold therefor more than four years prior to January 1, 1909, and purchased by the Commonwealth. The land had been previously sold December 22,1896, as delinquent for the non-payment of the taxes of 1895 The appellant purchased from the former owners all their interest in the land by deed bearing date January 29,1911, and recorded July 10,1911, and brought this suit to have removed as a cloud on his title the above mentioned deed from the clerk to the purchaser from the Commonwealth. A demurrer to the bill was sustained on the ground that the land had never been redeemed by the owner from the sale in 1896, and hence he had no right to maintain the suit. Thereupon the bill was amended by alleging a redemption from the sale of 1896 “since the filing of the original bill.” A demurrer to the bill as amended was also sustained.</p> <p>Held: The ruling on the demurrer was correct. The Commonwealth had parted with all iis title to the purchaser of the land before the original suit was instituted and there was no title left in it to be redeemed by the former owner, whose title had been transferred to such purchaser, whose deed was regular on its face and duly recorded.</p> <p>3. Tax Deeds—Recitals—Facts and Circumstances Required by Acts 1906, ;page 41.—The facts and circumstances required to be set forth in the deed made pursuant to the act of 1906 (Acts 1906, p. 41), are only such as are required by that act, and when once a sale has been made by the Commonwealth under the act, and the deed to the purchaser has been executed and the same has been admitted to record in the county in which the land lies, as was done in this case, the title to the land so conveyed and transferred to the grantee, can be defeated only by proof that the taxes or levies for which said real estate was sold to the Commonwealth were not properly chargeable thereon, or that the taxes and levies chargeable on such real estate have been paid.</p> <p>4. Tax Deeds—Recitals—Land Purchased from the Commonwealth Under Section 666 of Code—Case in Judgment.—There is a distinction between deeds made by the clerk to land sold by the treasurer for delinquent taxes under sections 638 and 639 of the Code and purchased by others than the Commonwealth, and the requirements of section 666 in regard to deeds to lands previously sold under section 638 and bought in by the Commonwealth under section 662, and which, not having been redeemed, are sold and conveyed to a purchaser under section 666. The circumstances referred to in section 666 mean the circumstances in relation to the sale made by the Commonwealth to the applicant to purchase under that section, and section 661 applies to deeds made under the authority of section 666. The deed under consideration complies with the requirements of section 666 and has been duly admitted to record, and as none of the grounds upon which its validity might have been attacked appear in the case, the deed is a valid conveyance of the land to the grantee.</p>

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

<p>1. Executors—Indebtedness to Testator—How Administered—Act of limitations.—Where a debtor becomes the executor of his creditor, it is his duty at once to charge himself as executor with the debt and to administer the proceeds according to law, by the payment of the debts, if any there be, of the testator, and then by distribution amongst those entitled. Such debt is not barred by the lapse of either three or five years from its maturity.</p>

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

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

<p>1. Appeal and Error—Record of Proceedings in Trial Court Conclusive— Failure to Object.—Where the record clearly shows that the case was submitted upon the general issue as well as others, and that the trial court found upon the general issue, as well as others, in favor of the defendant, that fact cannot be called in question by the plaintiff on a writ of error, and if no objection was made to the judgment in the trial court, it is binding and conclusive, and no informality in the record can be taken advantage of in this court.</p>

a judgment of the Law and Equity Court of the city of Richmond in an action of trespass on the case. Judgment for the defendant. Plaintiff assigns error.

<p>Error to á judgment of the Circuit Court of Fauquier county, in an action of trespass on the ease. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, in an action of trespass on the ease. Judgment for the plaintiff. One of the defendants assigns error.</p>

<p>1. Pleading—Demurrer—Silence as to Ruling Ora.—Where the record shows a demurrer filed but no ruling thereon, the demurrer must be regarded as overruled.</p> <p>2. Pleading—Sufficiency in Substance.—The best pleading is that which states facts and not conclusions of law, and if a pleading to the merits shows sufficient substance for the court to see how to give judgment according to law and the very right of the case it is good, though defective in form, under the provisions of sections 3246 and 3272 of the Code.</p> <p>3. Pleading—Declaration—Sufficiency—Wrong Designation.—The character and sufficiency of a declaration are to be tested by the facts alleged, and not by any particular designation of it. The fact that the declaration designated an action as “trespass” when the facts alleged show that it is “case” is immaterial.</p> <p>4. Pleading—Sufficiency—Test.—A declaration is sufficient if it informs the defendant of the nature of the demand made upon him, and states such facts as will enable the court to say that if the facts are proved as alleged they establish a good cause of action.</p> <p>5. Subjacent Support—Extent—Waiver.—The doctrine of subjacent support rests upon the same reasons as that of lateral support, and the grant or reservation of the underlying minerals with the right to remove the same is not a waiver of the .right to such support. The owner of the minerals is entitled to only so much of them as he can get without injury to the superincumbent soil. If he intends to have power to get them in any way which will destroy the surface, the language of the grant or reservation must be so framed as to show clearly that he is to have that power.</p> <p>6. Mines and Minerals—Subjacent Support—Extent—Sinking of a Spring —Surface.—Where the surface of land and an underlying mine belong to different owners, if the mine owner, in mining the minerals, fails to leave sufficient pillars, props or other means of support to prevent the strata overlying the minerals from breaking and falling, and as a result the said strata are broken, and thereby a spring on the surface is , drained and destroyed, the mine owner is liable for resulting damages. The right of subjacent support is not limited to the support of the mere surface.</p> <p>7. Damages—Remoteness—Evidence.—In an action to recover damages for drying a spring on a tract of land, evidence that the tract was close enough to a town to be divided into lots and tracts and sold for homes is not admissible, as the damage resulting therefrom is too remote and speculative.</p> <p>8. Mines and Minerals—-Percolating Waters—Interception.—If, in mining in the usual and ordinary way, subterranean streams or percolations of water which feed a spring on the surface are intercepted, thereby causing the spring to sink or become dry, there is no liability therefor upon the owner and operator of the mine.</p> <p>9. Instructions—Misleading.—It is not error to refuse an instruction which is calculated to confuse and mislead the jury.</p> <p>10. Damages—Destruction of a Spring—Injury to Adjacent Tract.—Where the owner of two contiguous tracts of land sues to recover damages for the destruction of a spring on one of the tracts, he may prove and recover the damages resulting to each tract, as he had the undoubted right to use the water on both.</p> <p>11. Evidence—Irrelevancy.—In an’ action to recover damages for the destruction of a spring on a tract of land, evidence as to the reasons of the plaintiff in purchasing a contiguous tract or the price 'paid is irrelevant and immaterial.</p> <p>12. Evidence—Experts—Support for Hypothesis.—Where the hypothesis assumed in a question put to an expert is not supported by any evidence in the case, the question put to the expert and his answer thereto,if any, should be excluded from the jury.</p> <p>13. Mines and M:nerals—Destruction of Spring—Evidence—Effect on Mining.—In an action to recover damages for destroying a spring by breaking the substrata underlying the spring, in a mining operation, evidence that it ’would be impossible, in that section, to conduct mining in the usual and customary manner without danger of interrupting or stopping the flowing of springs on the surface, is irrelevant and should be excluded.</p> <p>14. Appeal and Error—-Views—Discretion of Trial Court.—Whether or not a view of the premises shall be ordered is a question addressed to the sound discretion of the trial court whose ruling will not be reversed by the appellate court, unless it appears from the record that a view was necessary to a just decision.</p>

<p>1. Fiduciaries&emdash;Settled Accounts&emdash;Presumption&emdash;When and How Opened &emdash;Case in Judgment.-&emdash;When fiduciaries have settled their accounts in a chancery suit pending for that purpose, and such settlements have been duly confirmed, from time to time, by decree of court, they are presumed to be correct and cannot be opened, except upon a proper proceeding filed in due time, in which the errors complained of must be specifically pointed out, and the parties affected thereby given an opportunity to be heard. In the case in judgment these principles have been ignored, and in addition thereto, the parties, including the judges who have successively sat in the cause, having the most intimate knowledge of all the transactions, have passed away, and it is now too late to overhaul their settlements, -which have been ratified and confirmed by the court, especially upon the bare assumption of errors that do not appear.</p> <p>2. Counsed Fees&emdash;Allowance&emdash;Case in Judgment.&emdash;Upon the proofs already in the record and upon such additional evidence as may be adduced by the parties, a reasonable fee should be ascertained and allowed to each of the appellants for their services as attorneys in this case. Great injustice has been done them by the allowance of fees heretofore made them.</p> <p>3. Master’s Report&emdash;Notice&emdash;Exception&emdash;Case in Judgment.&emdash;It was error for the master, without authority from the decree of reference, and without notice to the parties to charge a commissioner of the court with a sum of money which he had by a former report charged to an administrator, and a large part of which the administrator had paid. The exception to the master’s report on this ground should have been sustained, and his report recommitted with instructions to reconsider his action in the light of such evidence as might be adduced by either party, after notice to the commissioners.</p> <p>4. Costs&emdash;Case in Judgment.-&emdash;Under the circumstances of the case in judgment, it would be inequitable to impose upon the appellants, who are fiduciaries, any part of the costs of these proceedings which have been incurred through no fault of theirs.</p>

<p>1. Master and Servant—Unfit Servant—Negligence—Proximate Cause.— The mere retention in service of a careless employee does not give rise to a cause of action against the employer for an injury to a third person. This is true even in cases between master and servant where the foundation of the liability is in the employment of incompetent or unfit fellowservants. In all such eases there must be evidence of some intervening negligence which is the proximate cause of the injury. The mere employment or retention of an unfit servant cannot be the proximate cause of an accident. The unfitness must result in some specific act of negligence or incompetency before any liability attaches.</p> <p>2. Bills or Exception—Stenographer’s Notes—Conflict.—In case of conflict between a stenographer’s notes taken at the trial and the statements in a bill of exception, the latter is conclusive.</p> <p>3. Evidence—Admisibility—Objections—Waiver—Motion to Strike.—Where objection is made to a line of evidence when offered, and the objection, after argument, is overruled, the subsequent cross-examination of other witnesses on the same subject, without formally repeating the objection, and the introduction of rebuttal evidence, do not constitute a waiver of the previous objection, and a motion thereafter to exclude the evidence objected to is a timely and proper mode of further saving the point.</p> <p>4. Master and Servant—Injury to Third Person—Negligence of Servant— Reputation of Servant for Carelessness—Street Railways.—In an action by a third person against a street railway company for an injury alleged to have been inflicted through the negligence of a motorman, evidence of the motorman’s reputation for carelessness is not admissible. The question at issue in such case is the motorman’s negligence at the time the injury was inflicted. If he was negligent at that time and his negligence was the proximate cause of the injury, the company is liable; if not, the company is not liable, regardless of his reputation in either case.</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 Circuit Court of Alexandria 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 Brunswick county in an action of assumpsit. Judgment for the plaintiff. Defendant assigns error.</p>

<p>Error to a judgment of the Circuit Court of Buchanan county, on a petition to condemn land for a tram road. Judgment for the petitioner. Defendant assigns error.</p>

<p>1. Public Officees—Increase of Salaries During Term—Constitutional Law.—Section 83 of the Constitution of this State forbidding the increase of the pay of State officers during their term of office, applies only to such officers as are mentioned in Article V of the Constitution as comprising the executive department* of the State government, and does not apply to officers whose positions are created and may be changed or abolished by the General Assembly.</p>

<p>1. Appeal and Error—Instructions as Shown in Bill of Exception—Amendments—Statements in Record.—-Where objection is made to an instruction as modified by the court, and exception is duly taken'to the action of the court in giving it, this court must deal with the instruction as it appears in the bill of exception, disregarding any “verbal amendment” made by the court, especially when made in the absence of the jury; and the fact that the court certifies that no amendment “verbal or otherwise” to the instruction was made or asked, does not deprive the party excepting of the right to complain here of the error in the instruction as it appears in the record.</p> <p>2. Instructions—Excluding Evidence from Consideration of Jury—Argument.—The fact that defendant’s counsel were permitted to argue before the jury that the plaintiff could not recover if he knew a given fact, does not cure the vice of an" instruction which excludes from the consideration of the jury whether or not he ought to have known such fact. If knowledge would bar recovery by the plaintiff, and the evidence is such that the jury might reasonably believe that he ought to have known, and that he was guilty of contributory negligence in not remembering, an instruction which takes away from the jury the consideration of such evidence is erroneous.</p> <p>3. Master and Servant—Duty of Servant to Care for Himself—Known or Discoverable Dangers.—A servant is under as great obligation to care and provide for his own safety from such dangers as are known to him, or are discoverable by ordinary care on his part, as the master is to provide for him, and the negligence of the master does not excuse the servant for the failure to exercise such care, if such failure was the cause of the injury complained of. Negligent ignorance is the equivalent of knowledge.</p> <p>4. Appeal and Error—Petition—Particularity Required—Case at Bar.—A statement in a petition for a writ of error, relating to fourteen alleged errors, that the petitioner “is advised that errors were committed to its prejudice by said rulings of said court” is not a compliance with the rule that a petition for a writ of error, being in the nature of a pleading, must state clearly and distinctly the errors relied on to reverse the judgment.</p>

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

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

<p>1. Contracts—Roads—Change of Location—Compensation.—Under a road construction contract allowing a county to make any minor changes it desires in the location of the road, but providing that the contractor shall be paid at unit prices mentioned in the contract for any excess in total quantities that the changed location may-have over the location shown on the plans, the contractor is entitled to recovér for any such excess in total quantities resulting from any change in the line, however slight. There is no difference in meaning between a “minor change” of location and a “shift of location.”</p> <p>2. Contracts—Roads—Dirt for Fills—Deficiency—Who to Pay For—Shifting Location—Case at Bar.—Under the contract in litigation, the embankments and fills on a roadway, if the original location had been followed, would have exceeded the dirt taken from the pits, but the defendant had the right to make minor changes in the line upon paying for any excess in total quantities that the changed location had over the location shown, on the plans. The defendant made minor changes or shifts in the location for the purpose of supplying the deficiency which would otherwise have to have been supplied from borrow pits. The question of controversy was whether the contractors were bound, under their contract,, to find the additional dirt necessary for this purpose at their own expense.</p> <p>Held: Under the terms of their contract, and the custom shown by the evidence to prevail in such cases, the contractors were not-bound to find the additional dirt at their expense, and, having provided it, the expense thereof should be paid by the defendant.</p> <p>3. Contracts—Case at Bar—Extra Work.—The work sued for in the case at bar was provided for in the contract between the parties and to be paid for thereunder, and was not “extra work.”</p>

<p>1. Torts—Joint and Several—Negligence.—-Where there are several concurrent negligent causes, the effects of which are not separable, though due to independent authors, either of which is sufficient to produce the entire loss, all are jointly and severally liable for the entire loss.</p> <p>2. Appeal and Error—Verdicts—Excessive—Damages.—This court will not set aside, 'as excessive, the verdict of the jury assessing damages to real estate, where it appears that the injuries suffered by the plaintiff at the hands of the defendants were numerous and varied in character, and there is nothing in the record to suggest that the jury were actuated by passion or prejudice, and much to justify their conclusion.</p>

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

<p>1. Automobiles—Acfs 1910, Ch. 326—Instructions.—In view of the act of March 17, 1910 (Acts 1910, ch. 326, sec. 12), declaring'that the driver of an automobile shall keep a careful look ahead for the approach of horseback riders, and, upon their approach, shall slow up and keep his machine under thorough and careful control, it is not error to refuse to instruct the jury that such driver has the right to presume that a horse ridden along a road frequented by automobiles is gentle and not liable to become frightened and unmanageable, and that he has the right to act upon that presumption, until he knows, or by the exercise of ordinary care should know, that such horse is liable to become frightened and unmanageable. The instruction is plainly in conflict with the statute.</p> <p>2. Automobiles—Riding Scary Horses on Highway—Contributory Negligence—Statutory Regulation.—It is not error to refuse to instruct the jury that if they believe from the evidence that the plaintiff’s horse was afraid of automobiles and upon meeting one was likely to become frightened and unmanageable, and that automobiles were frequently passing along the road upon which the plaintiff was riding at the time of the accident, and that the plaintiff knew these facts, then he was guilty of contributory negligence. The statute abóve quoted was passed to meet just such a state of facts as is suggested by the instruction. There may be exceptional cases in which the wild and dangerous character of a horse would make his use, on a road frequented by automobiles, negligence per se, but such is not the average case, nor the case at bar.</p> <p>3. Automobiles—Statutory Regulations—Instructions—Disregarding Statute. In an action to recover damages for a personal injury resulting from the fright of a horse by an automobile while the horse was being ridden on a public road, it-is not error to refuse an instruction which disregards the statutory duty of the driver of the automobile “to slow up and keep his machine under thorough and careful control.” The purpose of the statute was to give the rider of the horse the benefit of every reasonable precaution on the part of the driver of the machine, until the horse has actually passed the machine, or been passed by it.</p> <p>4. Automobiles—Acts 1910, p. 60S.—The act of March 17, 1910 (Acts 1910, ch. 326, p. 503), was passed for the express purpose of regulating the use of automobiles on the public highways. Whether merely declaratory of the common law or not, the statute is an important one, . and its enforcement in letter and spirit is demanded by very high considerations of humanity and public safety.</p> <p>5. Automobiles—Dangerous Instrumentailiiy—Injury by Driver—Diability of Oumer—Parent and Child.-—An automobile is not such a dangerous machine or agency as to make applicable to it the rules requiring extraordinary care in the use and control of instrumentalities which are dangerous per se. The liability of the owner, therefore, for injuries occurring while the car is being used by another, depends ordinarily upon the existence of the relation of master and servant between the owner and driver of the machine. Relationship alone docs not make a father answerable for the acts even of his minor son, and clearly not for a son over twenty-one years of age. The liability in such cases results, if at all, from the fact of agency, which fact must be proved. No presumption of agency arises merely '■ from the domestic relationship.</p>

<p>1. Pleading&emdash;Motion for Judgment&emdash;Procedure Against Persons Jointly Bound on Negotiable Paper.&emdash;Under statute in this state a proceeding by motion for a judgment may be maintained against all, or any one or any intermediate number of those bound on negotiable paper, regardless of whether they are joint makers or endorsers.</p> <p>2. Motion for Judgment&emdash;Notice&emdash;Sufficiency.&emdash;A notice for a judgment which describes a negotiable note as “a promissory note,’' and which is good as far as it goes and does not prejudice the defendant, is sufficient.</p> <p>3. Motion for Judgment&emdash;Notice&emdash;Sufficiency&emdash;TAahility of Endorser.&emdash; The notice for a judgment against an endorser of a negotiable note containing a waiver of notice of presentment and dishonor on its face should allege that fact, but the fact being undisputed, an amendment at the bar would have been proper, and the error of omitting it is harmless.</p> <p>4. Bills and Notes&emdash;Blank Endorsement&emdash;Effect&emdash;Negotiable Instruments Act.&emdash;By the terms of section 63 of the negotiable instruments act a person who endorses in blank a negotiable note, without qualification, though it is still in the hands of the agent of the payee, is deemed to be an endorser.</p> <p>5. ' Pleading&emdash;Inconsistent Positions.&emdash;A party cannot assume successive positions in a suit or series of suits in reference to the same state of facts which are inconsistent with each other and mutually contradictory.</p> <p>6. Bills and Notes&emdash;Attorney’s Fees for Collection&emdash;Penalties.&emdash;A stipulation in a negotiable note for the payment of a reasonable attorney’s fee if suit be brought thereon is valid and may be enforced. It is neither usury nor a mere penalty. Rixey v. Parre Bros., 89 Va. 113, and Fields v. Fields, 105 Va. 714, on this point overruled.</p>

<p>Error to a judgment of the Circuit Court of Campbell county on a motion to correct an erroneous assessment of taxes. Judgment for the petitioner. Defendants assign error.</p>

<p>1. Fire Insurance—Profits—Case at Bar.—The character of a contract of insurance of property or interests in property itself is very different from a contract of insurance of profits to arise from the dealing with such property. The former is an indemnity against loss of existing property interests at the time of loss by fire; the latter is an insurance of expected interest and profits at the time of loss by fire. The former concerns what is in actual existence; the latter what is only potentially in existence. A policy of insurance will not be held to cover profits unless the purpose to do so is expressly stated in the policy. Even if the policy sued on in the case at bar had contained the language “any interest in the lumber,” etc., along with the other language of the policy designating the subject of insurance, it could not be construed to cover expected profits</p> <p>2. Fire Insurance Contracts—Construction—Parol Evidence.—The same , rules of construction which apply to other contracts apply also to insurance contracts. The policy is to be construed according to its terms. There can be no resort to parol evidence except in case of latent ambiguity. In the case at bar, if the utmost effect were given to the evidence in behalf of the plaintiff, it does not show that profits were intended to be covered by the policy. No profits were at any time mentioned, or ever considered, or thought of by the plaintiff or the agent of the defendant prior to the loss by fire.</p> <p>3. Appeal and Error—New Trial Unavailing—Dismissal of Action.—In reversing a judgment for the plaintiff because there was no evidence to support the verdict upon which the judgment was entered, where this court can see that no new tiral could avail the plaintiff anything, it will enter such judgment as the trial court should have entered, dismissing the plaintiff’s action.</p>

<p>1. Specific Performance—Conformity to Contract of Parties.—When a court of equity grants specific performance of a contract for the sale of real estate, it must, substantially at least, conform to the contract made by the parties; and a material departure from such terms to the detriment of the purchaser constitutes reversible error.</p>

<p>1. Wills&emdash;Construction&emdash;Case at Bar&emdash;“Heirs”&emdash;Fee Simple&emdash;Uncertain Beneficiary&emdash;Will of Infant&emdash;Equity Jurisdiction.&emdash;A testatrix, by her will, gave real and personal estate to one of her sons, and further provided that if he “should die without heirs, I want it to go to whoever has been his best friend.” The son died at the age of twenty years, leaving a will giving the property to his uncle and aunt. Suit was brought by the uncle and aunt and the administrator c. t. a. of the mother and son praying a construction of the two wills and that the beneficiaries thereunder be ascertained and their rights thereunder determined, and for other relief. The circuit court dismissed the bill on the ground that the parties had an adequate remedy at law.'</p> <p>Held: The parties were entitled to relief in equity, and it was error to dismiss the bill; the word “heirs” as used in the mother’s will means “children;” the son took a fee simple in the real estate and the absolute estate in the personal property devised and bequeathed by the mother’s will; the gift over, in the mother’s will to her son’s best friend is void for uncertainty; the will of the son is a valid disposition of his personal estate, but .void as to his real estate, and the latter passed to his next of kin according to the statute of descents.</p> <p>2. Wills&emdash;Form&emdash;Intention that a Particular Paper Shall be a Will.&emdash;No particular language or form is necessary to constitute a valid will, and the surrounding circumstances are admissible to explain, in a proper case, the intention of the testator; but one may execute a paper with every formality known to the law, and by it devise all of his property, but unless he intends that very paper to take effect as a will, it is no will.</p>

<p>1. Easements&emdash;Private Road&emdash;How Located&emdash;Change of Location&emdash;Temporary Deviations.&emdash;When a right of way is reserved over a tract of land without any designation of the location, if there be in fact at the time of the reservation a well defined road over the land which is in actual use by the .persons in whose favor the right is reserved, the way in use will be treated as the one which the parties contemplated. If there be no such road in existence at the time of the conveyance, the owner of the servient estate may fix the location, having due regard to the particular terms of the instrument. If, however, the location be not fixed by either of these methods, the owner of the way may adopt his own route, and a subsequent unequivocal acquiescence by the owner of the fee, even for a short time, will become binding upon him. When a way is once located it cannot be changed by either party without the consent of the other; and mere temporary deviations from the way on account of its condition will not affect the right of the party to whom it belongs.</p>

<p>1. Constitutional Law—Attestation of Writs—Statutes.—A summons which concludes ‘.‘Witness, James Rider, clerk of said court at the court house, the 14th day of January, 1896, in the 120th year of the Commonwealth. Jos. C. Cassell, Dep. Clerk” is sufficiently attested by the clerk, within the meaning of the constitutional requirement that writs shall “be attested by the clerks of the several courts.”</p> <p>2. Clbhks—Powers of Deputy—Constitutional Law—Statutes.—Section 817 of the Code empowering deputy clerks to discharge any of the official duties of their principals unless expressly forbidden by law does not contravene section 26 of the Constitution of this State, and is a valid enactment. Neither the Constitution nor the statute expressly forbids a deputy clerk to discharge the official duty imposed upon his principal in the matter of attesting writs that emanate from his office.</p> <p>3. Statutes—Practical Construction—Appeal and Error.—Where the construction of a statute is doubtful, this court would not feel justified in over-ruling the practical construction placed thereon by the administrative officers of the Commonwealth for generations, and impose upon the public the evils that would flow from such ruling.</p>

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

<p>1. Evidence—Admissibility—Speed of Train—Presumption.—Where the uncontradicted direct evidence of the plaintiff shows the rate of speed at which a train was running at the time t.he injury was inflicted, it is not error to exclude other evidence offered by the plaintiff from which a presumption is fought to be drawn that the train was running at a higher rate.</p> <p>2. Evidence—Tests.—Evidence of tests made subsequent to an accident where the conditions are materially different is not admissible in evidence.</p> <p>3. Appeal and Error—Evidence—Exclusion—Damages.—Tn an action for personal injuries where the verdict was for the defendant, the plaintiff could not have been prejudiced by the exclusion of evidence relating solely to the quantum of damages, and hence such exclusion is not assignable error.</p> <p>4. Instructions—Evidence to Support.—In an action for negligent injuries, it is not error to refuse instructions hypothecated upon the negligence of the defendant, when there is no evidence before the jury of any negligence on the, part of the defendant.</p> <p>5. Instructions—Negligence—Evidence.—In an action for negligent injuries, where there is no evidence of negligence on the part of the defendant, it is not error to instruct the jury that it is not sufficient for the plaintiff simply to allege negligence in his declaration, but that, in order to recover, he must prove negligence on the .part of the defendant by a preponderance of the evidence, and that the jury cannot guess that the defendant was negligent.</p> <p>6. Master and Servant—Railroads—-Federal Employers’ Liability Act— Negligence.—Under the Federal employers’ liability act, if the defendant is guilty of any negligence causing or contributing to the employee’s injury or death, the defendant is liable.</p> <p>7. Appeal and Erro r—Printing Record—Costs—Suing in Forma Pauperis— Action Under Federal Statute.—Under the statute of this State the costs of printing the record in this court must be paid by the appellant, or plaintiff in error before the printing is done; and as to this, there is no provision for suing in forma pauperis. It is immaterial that the action is brought under the Federal employers’ liability act, as the State follows its own ■ inodes of procedure though enforcing a right arising under a Federal statute.</p>

<p>1. Ejectment—Verdict—Appeal and Error—Assumption of Fact.—A general verdict for the plaintiff in ejectment for the premises in the declaration mentioned, where both parties claim by paper title as well as by adverse possession, but the plaintiff fails to show any paper title to three-fifths of the land and the adverse possession thereto is controverted, can only be sustained on the assumption that the plaintiff was in lawful possession of the land, and had been unlawfully ousted of possession by a defendant himself without title, but this court is not at liberty to conclude that the jury’s verdict was rested upon that ground.</p> <p>2. Ejectment—Recovery of Part of Land—Specification—Code, Sec. 2746.— The provision of section 2746 of the Code, that if a plaintiff in ejectment recovers only a part of the premises claimed “the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the declaration” is mandatory, and it is reversible error in a trial court to render judgment on a verdict that fails to comply with its requirements.</p> <p>3. Appeal and Error—Ejectment—Affirmance in Part—Imposing Terms.— Where the defendant in ejectment obtains a writ of error to the judgment of the trial court awarding the entire premises to the plaintiff, the plaintiff cannot ask to have the judgment affirmed in part where the defense goes to the entire action. To grant this prayer would be putting, not the successful, but the unsuccessful litigant on terms.</p>

<p>1. Deeds—Remainders—Vesting—Opening.—Where a husband conveys land to a trustee for the benefit of his wife for life, with remainder to his children begotten by such wife, the children take vested remainders. The fact that other children may be born before the remainderman actually comes into the enjoyment of his estate does not affect the vested character of his interest, but merely subjects it to the possibility of having to open up and let in those subsequently born. Nor in such case does the fact that so long as the mother lives there is always a possibility of the remainderman’s death in advance of hers prevent him from taking that which in law is recognized as a vested remainder.</p> <p>2. Deeds—Construction—Intention.—In deeds as in wills the intention of the maker must prevail unless such intention is unlawful. The intention is to be determined in each case by the language employed in the instrument.</p> <p>3. Deeds—Construction—Technical Words—Exception to General Rule.—As a general rule terms having a fixed and definite technical import must be accorded their technical meaning, but the rule does not apply when in the same instrument qualifying expressions appear which plainly indicate an intention to give such terms a different signification. The exception is as well established as the rule itself, and under its influence the expression “heirs” or “heirs of the body” are frequently held to refer exclusively to children.</p> <p>4. Remainders—Vested or Contingent—Doubt—Construction.—Where the language of the instrument is such as to create a doubt whether a vested or contingent estate was intended, the courts favor a construction which will establish a vested rather than a contingent interest, and will adopt such a construction if they can do so without straining the meaning of words to accomplish that result.</p> <p>6. Deeds—Consideration—Love and Affection.—An expressed consideration 'of natural love and affection for the grantees in a deed should be construed, if the context warrants it, to apply to a definite class of persons for whom the grantor would naturally cherish a real affection rather than to a more or less uncertain, unknown and remote class.</p> <p>6. Deeds—Remainders—“Heirs” as “Children”-—Case in Judgment.—In the case in judgment, a husband, in consideration of one dollar cash in hand paid, and the natural love and affection he bore to his wife and their children, conveyed a tract of land to a trustee for the benefit of his wife for life, and the remainder to the heirs of her body begotten by the said husband. At the time of the conveyance one or more children of the marriage were in being. A judgment creditor sought to subject the interest of one of the children who was in being after the termination of the life estate of his mother. The chief question at issue was, whether the remainder was vested or contingent.</p> <p>Held: The term “heirs of her body” as used in the deed meant “children,” and that they took vested remainders in the land subject to the life estate of their mother.</p>

<p>1. Trusts and Trustees&emdash;Form, of Deed&emdash;Terms of Sale&emdash;Code, Sections £441 and &emdash;A deed substantially in tlie form prescribed for a deed of trust by section 2441 of the Code is a deed of trust, and not a mortgage and the fact that it did hot prescribe any terms of sale is immaterial where the trustee, making a sale thereunder complied, in all respects, with section 2442 of the Code.</p> <p>2. Deeds&emdash;Recitals in Deed From Trustee.&emdash;The recital in a deed from a trustee to a purchaser under a deed of trust that due and legal notice was given of the time, place and terms of sale is to be taken as prima facie correct under section 3333-a of the Code (1904).</p> <p>3. Trusts and Trustees&emdash;Sale by Trustee&emdash;Inadequacy of Price.&emdash;In the absence of all pretense of fraud or unfair dealing, and where the debt secured by a deed of trust was confessedly due and owing, mere inadequacy of the price at which the trustee sold the property is not sufficient to avoid the sale, unless it was so gross as to shock the conscience of the chancellor and raise a presumption of fraud.</p>

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

<p>1. Libel and Slander&emdash;Innuendo.&emdash;An innuendo cannot enlarge the meaning of words. If the words are not actionable in themselves, or as explained by the extrinsic facts alleged, the innuendo cannot attribute to the words a meaning which they will not bear.</p> <p>2. Limitation op Actions&emdash;Commencement of Action&emdash;Failure to Establish&emdash;Amendments.&emdash;An original action is inherently necessary to arrest the running of the statute of limitations, and if that is not sustained there is nothing upon which an alleged cause of action set up in an amended declaration can operate so as to make it relate back.</p> <p>3. Libel and Slander&emdash;Separate Slanders&emdash;Separate Causes of Action.&emdash;No matter on how many separate occasions one may utter slanderous words about another (though all may refer to the same transaction) each slander constitutes a new cause of action, and this is a fortiori true where the subsequent slanderous words are essentially different from those spoken in the first instance, and on another occasion and to another person. In such case if separate actions are brought on the several causes of action, the judgment in one cannot be pleaded in bar of the other.</p> <p>4. Limitation op Actions&emdash;Amendment of Pleadings&emdash;New Cause of Action.&emdash;Though the courts of this jurisdiction are extremely liberal in allowing amendments of pleadings, the amendment will not be permitted to introduce a substantive cause of action different from that declared on in the original declaration, so as to cut off the running of the statute of limitation from the institution of the original action. As to the amendment in such case, the statute runs until its filing.</p>

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

<p>1. Notice of Motion foe Judgment—Where Served—Code, Sections 8211 and 3220.—Notice of a motion for a judgment for money under section 3211 of the Code as amended by Acts 1914, p. 28, may be sent to and served in any county or city of the State, although the only gróund of jurisdiction of the court in which the motion is to be made is that a part of the cause of action arose there. The restrictive provision of section 3220 of the Code applies only to process in technical actions at law, not to notices.</p> <p>2. Statutes—Construction—Unambiguous Language.—The intention of the legislature in the enactment of a statute is to be gathered from the words used in the statute, unless a literal interpretation would lead to a manifest absurdity, and when the words of a statute are plain and unambiguous, the courts cannot speculate as to what the legislature might reasonably have been expected to enact, but must accept and apply the plain meaning of the words which have been employed. Where the meaning of the words used is plain, interpretation is not allowable.</p>

<p>1. Easements&emdash;Pathway&emdash;Subsequent Perchaser&emdash;Rights of Adjacent Occupants&emdash;Licensees&emdash;Invitees.&emdash;Where a railroad company purchases a strip of land for a right of way, over which there is a well defined pathway in constant use, and stipulates that it will erect and maintain suitable and necessary crossings over its road, it takes the land subject to the rights of adjacent owners or occupiers to use such pathway. Such adjacent owners or occupiers do not occupy. the position of licensees or of invitees. Their use of the pathway is a matter of- right, and the railroad company owes them at least the duty to so construct its obstruction of the pathway as to be reasonably safe.</p> <p>2. Negligence&emdash;Case at Bar&emdash;Negligence Per Se.-&emdash;Upon the evidence, in the case at bar, the plaintiff was not guilty of negligence per se in crosing steps placed by the defendant over a wire fence adjacent to its right of way. Whether or not he was guilty of any negligence was a question of fact for the jury under all the circumstances surrounding the plaintiff.</p> <p>3. Easements&emdash;Private Way&emdash;Obstruction.&emdash;When a person, in the lawful use of a private way, meets with an obstruction, he may pass it if it is consistent with reasonable care to do so, which is usually a question for the jury under the circumstances of the case.</p> <p>4. Evidence&emdash;Admissibility&emdash;Admissible for One Purpose.-&emdash;Where a deed given in evidence is properly admissible to show when and how the defendant acquired its right of way and the consequent relation of the defendant to the plaintiff, who was an occupant of adjoining land, it is properly in evidence for the consideration of the jury for all purposes.</p>

<p>1. Guardian and Ward&emdash;General Bond.&emdash;-Under an order appointing one guardian of an infant generally, a guardian’s bond with condition to faithfully discharge the duties of his office or trust as guardian is a general guardian’s bond, and not a special bond given for a special purpose. .</p> <p>2. Principal and Surety&emdash;Contract of Surety&emdash;Construction&emdash;Parol Evidence.&emdash;While the contract of a surety is to be strictly construed and not extended beyond its terms by implication, still the surety is bound by his contract, and its terms are no more to be restricted by implication than extended. Nor can its terms be varied by parol evidence of the intention of the parties.</p> <p>3. Guardian and Ward&emdash;Bond&emdash;Liability of Surety&emdash;Condemnation Proceedings.&emdash;The surety in a general guardianship bond is liable for money paid to the guardian in condemnation proceedings. The land was converted into money by the proceedings, and it was the right and duty of the guardian to collect it.</p>

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

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

<p>1. Railroads—Invitee—Licensee.—One who goes upon the premises of a railroad company to meet an incoming passenger and to join him on his journey is an invitee and not a mere licensee.</p> <p>2. Instructions—Conflicting Theories.-—Where the evidence presents conflicting theories of a case, each party is entitled to an instruction presenting his theory.</p> <p>3. Instructions—Case at Bar—Presumptions—Burden of Proof—Question for 'Jury.—There are no circumstances ,in the case at bar to justify the presumption that the plaintiff, did not look or listen before going upon a grade crossing where he was injured by a passing train, or if he did look, that he did not heed what he saw, and that the burden was upon him to show that he did look and listen, and did not see the train, and it was not error to refuse a prayer to that effect. An instruction must not assume facts which are for the jury to find, and should not be given unless there is evidence on which to base it. The question of whether or not the plaintiff did what, under the circumstances disclosed by the evidence, was reasonably to be expected of him, was for the jury to determine, without any expression or intimation from the court as to the weight to be given to the evidence.</p> <p>4. Appeal and Error—Verdicts—Evidence to Support.—When a case has been fairly submitted to the jury upon evidence sufficient to sustain their verdict, their conclusion should not be disturbed unless plainly against the weight of the evidence. .</p>

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

<p>1. Change of Venue&emdash;Statement of Grounds&emdash;Code, Sec. 8316.&emdash;Statutes conferring the right to a change of venue are enacted with the view of according litigants a fair and impartial trial, and being in furtherance of justice should be liberally construed so as not to defeat the right, but the affidavits in support of the motion, especially where opposed by counter affidavits of disinterested persons, should state the facts and circumstances tending to show that a fair and impartial trial cannot be had where the case is pending and not the mere belief or opinion of the affiants. Less than this is not sufficient under section 3316 of the Code, permitting a change of venue for good cause shown.</p> <p>2. Libel and Slandeb&emdash;Privileged Communications&emdash;Violent Language.&emdash; Where there is any legal evidence tending to prove that the language complained of was disproportioned in strength and violence to the occasion, though the occasion was privileged, the questions of malice in the use of the words should not be taken from the jury, and it was not error in the ease at bar to instruct the jury that “strong and violent language or insinuations disproportioned to the occasion may raise an inference of malice and thus lose the privilege that would otherwise attach to it.”</p> <p>3. Insteuctions&emdash;Jury Sufficiently Instructed.&emdash;It is not error to refuse to give an instruction which is substantially the same as one already given.</p> <p>4. Pbincipal and Agent&emdash;Agency&emdash;Admissions of Agent.&emdash;In an action against the principal it is not error to receive the admissions of an alleged agent, tending to establish the agency, when a -prima fade case of connection between the alleged principal and agent has been shown. Although the evidence of the agency may be slight, the burden is cast upon the principal to rebut it.</p> <p>5. Evidence&emdash;Letter of Plaintiff’s Wife&emdash;Res Gestae.-&emdash;Where husband and wife are so intimately associated in the transaction out of which the action arose, that it is impossible to separate them, a letter written by the wife of the plaintiff to the defendant which is not self-serving in its statements but constitutes a part of the res gestae is properly admissible in evidence.</p> <p>6. Appeal and Error—Bills of Exceptions.—Where the bill of exception does not contain any evidence in support of an objection to evidence made in the trial court, the objection will not be considered in this court.</p> <p>7. Libel and Slander—Insulting Words—Damages—Question for Jury.— In an action of libel the jury is regarded as the best and safest tribunal to determine not only the character of the insulting words but also the measure of damages, and their verdict will not be set aside as excessive unless so disproportionate to the injury, and unreasonable under the circumstances of the case, as to shock the moral sense and raise a presumption that the jury acted under the influence of gross error, partiality, passion, prejudice or corruption.</p> <p>8. Libel and Slander—Insulting Words—Damages.—The law presumes that damages result from the utterance of insulting words made actionable by our statute just as it does where the words uttered are actionable per se, and it is not necessary in either case in order to recover to proye actual or pecuniary loss.</p> <p>9. Libel and Slander—Damages—Punishment.—Vindictive, punitive, or exemplary damages are awarded by the jury in their desire to signify their sense of the defendant’s conduct by fining him, to a certain extent, and therefor punish him by awarding “smart money” or damages in excess of the amount which would be adequate eompen sation for the injury inflicted on the plaintiff’s reputation.</p>

<p>1. Master and Servant—Injury of Servant—Incompetent Fellow-Servant— Notice—Remaining in Service—Assumption of Risk—Question for Jury—Case at Bar.—Whether or not the plaintiff in the ease at bar assumed the risk of the negligence of a fellow-servant by remaining in the service after knowledge of his incompetency was a question of fact to be determined by the jury under proper instructions from the court, rather than one of law to be determined by the court. He knew of the incompetency of the fellow-servant and communicated that fact to the master, who immediately promised and undertook to remedy the evil complained of. In the situation in which the parties were placed it was necessary that the risk should be assumed by one or the other. The plaintiff expressly refused to do so, and the defendant equally expressly agreed to assume the responsibility, and very shortly thereafter the plaintiff was injured by the negligence of such fellow-servant.</p> <p>Held: The doctrine of assumption of risk cannot be applied as a matter of law to such a statement of facts.</p> <p>2. Demurrer to Evidence—Different Conclusions from Evidence.—On a demurrer to the evidence, where the evidence is such that the minds of reasonable men might differ as to the conclusion to be drawn therefrom, the court must decide in favor of the demurree.</p>

<p>Original application for a writ of mandamus.</p>

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

Judgments for the defendant. Plaintiffs severally assign error.

<p>1. Highways&emdash;Tazewell County&emdash;Statutes&emdash;Width of Roads.&emdash;The several acts of Assembly, relating to the construction of certain public roads in Tazewell county, referred to in the opinion of the court, did not of themselves establish or locate the turnpike or public roads contemplated thereby, nor did they fix the width of such roads. They directed them to be constructed as State roads, and the act of March 2, 1847, merely controlled the wide discretion of the board of public works when it came to take land for the location and construction of the road.</p> <p>2. Evidence&emdash;Records&emdash;Loss or Destruction&emdash;Presumption.&emdash;The existence of facts will not be presumed merely because records have been lost or destroyed. Such loss or destruction gives rise to no presumption and has the effect merely of changing the mode of proof of such records, admitting secondary evidence in the place of an exemplification o'f the record.</p> <p>3. Highways&emdash;Acceptance&emdash;Dedication.&emdash;Where the record shows that a road was not the result of condemnation proceedings, acts of acceptance do not supply its place so as to give tifie to a right of way. Acceptance is merely one element in obtaining title to a right of way for a public road. Dedication is the accompanying element.</p> <p>4. Highways&emdash;Prescription&emdash;Width and Extent of Use.&emdash;When dedication of a highway is implied from continuous use by the public for the statutory period, and there has been acceptance by competent authority, title to a right of way may be acquired by prescription. But the right cannot extend beyond the use. If the right to the way depends solely upon the use, then the width of the way and the extent of the servitude is measured by the character of the use, for the easement cannot be broader than the use.</p> <p>5. Railroads&emdash;Change of County Road&emdash;Consent&emdash;New Road.&emdash;At the time the county road in controversy was changed by the railroad company, the company was not required to obtain the consent or approval of the county court to such alteration, but could act ex parte. The only limitation upon this right of the railroad company as the law then stood, was the requirement of the statute that it should make an equally convenient road in lieu thereof.</p> <p>6. Evidence—Railroads—Change of County Road—New Road.—Where a railroad company, acting ex parte, has made a new road in the place of a former county road, and it is claimed by the county that the new road is not “an equally convenient road,” the burden is upon the railroad company to show that it is.</p> <p>7. Railroads—Grade Crossing—How Constructed—Width—Grades.—The true meaning of the statute requiring railroads to construct their grade crossings of public highways with easy grade so as to admit of safe and speedy travel over them, is that the company may construct its road across the public highway, but must do so with as little injury to the highway as is practically possible. It must so restore the highway that its use by the public will not be materially, or at least unnecessarily, interferred with, and so as not to render it less safe and convenient for the passage or transportation of persons or property along the same, except so far as diminished safety and convenience are inseparable from its use by the railroad. The approaches on both sides of the crossing should be of the same width as the old public highway, and the grades as easy as can be obtained under the circumstances.</p> <p>8. Judgments—Res Judicata—Estoppel—Acquittal of Crime—Civil Suit.— A judgment of acquittal of a railroad company on a charge of obstructing a highway at a grade crossing by placing its track thereover, is no bar to a suit by the comity against the railroad company to compel it to comply with the statutory requirement as to the character of the road it should build at said crossing. The parties are not the same, the proceedings are of a different nature, and the degree of proof required in the two cases is not the same.</p> <p>9. Equity Jurisdiction—Legal Duty—Contractual Relations.—A railroad company having assumed the duty imposed by statute to build “an • equally convenient road” in lieu of a road occupied by it, a court of equity will compel the performance of that duty, although no contractual relations existed between the parties.</p> <p>10. Highways—Public Rights—Statute of .Limitations—Laches.—Public highways belong to the State, and the statute of limitations does not run against the rights of the public therein, nor does the doctrine of laches apply. As against the government, laches cannot be set up as a defense in equity any more than the bar of the statute can at law. Time does not run against the State, nor bar the rights of the public.</p>

<p>1. Deeds—Doubtful Instruments—Intention.—Whether a written instrument is a deed of conveyance or a contract for the purchase and sale of land is to be determined by the intention of the parties as gathered from the instrument itself. Though a deed may in one part use the formal and apt words of a conveyance, yet if, from other parts of the instrument taken and compared together, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail, for the intent, and not the words, is the essence of every agreement. The whole question is one of intention, to be gathered from the instrument itself.</p> <p>2. Statute oe Frauds—Signing—Authentication-—Intention.—A memorandum may be signed, within the meaning of the statute of frauds, by writing the name anywhere in the instrument, whether at the top, in the middle or at the bottom thereof, but wherever the name be placed, it must appear to have been done with the intention of authenticating the instrument and not for some other purpose, for a signing consists of both the act of writing a person’s name and the intention in doing this, to execute and authenticate the instrument signed.</p> <p>3. Statute of Frauds—Writing the Instrument—Signature—Authentication—Identification.—The mere writing by a proposed purchaser of ■ an agreement for the sale and purchase of real estate, containing the names of the parties at the beginning, but not otherwise signed by the purchaser, is not a signing .by such purchaser within the meaning of the statute of frauds. The writing of the name in that connection is merely for the purpose of identification, and not for authentication.</p>

<p>Error to a judgment of the Circuit Court of Dickenson county in an action of covenant. Judgment for the defendant. Plaintiffs assign error.</p>

<p>1. Rules and Rule Days&emdash;Record&emdash;Impeachment by Testimony of Clerk.&emdash; The testimony of a clerk that rules in an action at law were not entered • on the days shown by his official record is not admissible to impeach the record made by him. The record imports such absolute verity that, in the absence of any allegation of fraud, no person against whom it is pronounced will be permitted to aver or prove anything against it.</p> <p>2. Pleading&emdash;Declaration&emdash;Failure to File&emdash;Dismissal&emdash;Re-Instatement.&emdash;If the failure to file a declaration within the time prescribed by law is due simply to the negligence of counsel and especially if it will deprive the defendant of a defense that he would otherwise have, the court will not set aside an order of dismissal for failure to file it. The refusal to set it aside is not for the lack of power, but because it is deemed unwise. The dismissal is in the nature of a non-suit, which the court will set aside for good cause, but will not disturb when occasioned by mere negligence.</p>

<p>1. Corporations—Paramount Lien on Stock—Creation by Charter—Limitation of Actions.—A paramount lien in favor of the company upon all shares of stock registered in the name of each member and upon all dividends thereon for all debts, liabilities, and engagements of the stockholder to the company may be created by the charter of the company, and when created it is unaffected by the statute of limitations.</p> <p>2. Equity—Complainant Must Do Equity—Conditional Relief.—A court of equity may always require him who seeks equity to do equity, and in a case in which the rules and principles of equity demand it, it may condition the grant of relief sought from it by a complainant with the enforcement, of the claim or equity held by the defendant which, by reason of the statute of limitations or a former judgment, the latter could not enforce affirmatively or in any other way.</p> <p>3. Equitable Lien—Limitation of Actions—Pledges.—There is a marked distinction between an action at law to recover judgment for a legal demand and a proceeding in equity to enforce an equitable lien for the same demand. The remedy at law may be barred by the statute of limitations, but the statute does not extinguish the debt, and a lien therefor may be enforced in equity although the demand be barred. So also a pledge may be enforced, though the debt be barred.</p> <p>4. Damages—Liquidated.—Damages which do not lie in mere opinion, but can be readily ascertained by calculation or computation are liquidated and may be set off against a liquidated demand.</p>

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

<p>1. Master and Servant—Case at Bar—Violation of Bides by Servant— Proximate Cause—Last Clear Chance—Railroads.—The evidence in the case at bar shows that the plaintiff’s injury was caused by his own violation of well known rules of the railroad company, by whom he was employed, as a conductor; that the grounds of negligence alleged were not the proximate cause of his injury, and that the doctrine of the last clear chance has no application to the case.</p> <p>2. Negligence—Self-Imposed Emergency.—The doctrine of “error in ex-tremis” presupposes that the party who invokes it is himself free from fault in creating the emergency. It does not apply to a self-imposed emergency.</p> <p>3. Master and Servant—Violation of Rules by Servant—Damages.—A servant injured in consequence of the violation of a rule of the master cannot recover damages from the master for an injury which the observance of the rule would have prevented. As the master is bound, at his peril, to make the rules, the servant should be equally bound, at his peril, to obey them. In such case, the servant must bear the consequences of the disaster brought upon him by his own voluntary act.</p>

<p>Error to two judgments of the Circuit Court of Wise county in actions of trespass on the case. Judgment for the plaintiff in each case. Defendant assigns error.</p>

<p>Appeal from order of the Circuit Court of Washington county. Order in favor of plaintiff. Defendant appeals.</p>

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

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

<p>1. Criminal Law—Presentment—Conclusion.—A presentment for a misdemeanor need not conclude "against the peace and dignity of the Commonwealth.” The constitutional requirement of such a conclusion applies only to indictments.</p> <p>2. Criminal Law—Confrontation by Witnesses—Documentary Evidence— Certificate of State Chemist—Constitutional Law.—The statute making the certificate of the State chemist as to the amount of alcohol contained in a beverage, when signed and sworn to by him, evidence in all prosecutions under the revenue laws of this State does not violate the constitutional provision that in all prosecutions a man hath the right to be confronted with the accusers and witnesses. The constitutional provision was not intended to exclude proper documentary evidence, and the certificate is admissible under the documentary evidence rule as an exception to the hearsay rule.</p> <p>3. Criminal Law—Guilty Knowledge—When Unnecessary—Statutes.— When a statute makes an act indictable irrespective of guilty knowledge, then ignorance of the fact is no defense to the indictment, but a matter to be urged in mitigation of the punishment.</p> <p>4. Criminal Law—Jury Trial—Fixing Punishment—Constitutional Law.— The constitutional guaranty of a trial by jury is aimed at the trial of the question of the guilt or innocence of the accused, and not at the ascertainment of the punishment. The punishment may be fixed by the court, when allowed by the statute, subject only to the inhibition that it be not cruel or unusual.</p> <p>5. Criminal Law—Excessive Punishment—Addition of Jail Sentence by Court.—The jail sentence of thirty days; in the case at bar, imposed by the court, under authority of the statute, in addition to the fine fixed by the jury, was not excessive nor a cruel and unusual punishment.</p>

<p>lL Criminal Law&emdash;Misdemeanors&emdash;Jurisdiction of Corporation Courts&emdash; Consent of Accused.&emdash;Under section 4106 of the Code, police justices 1 in cities have exclusive original jurisdiction of misdemeanors and no consent or waiver on the part of the accused can confer jurisdiction on the corporation courts.</p> <p>2. Criminal Law-&emdash;Conviction Under City Ordinance&emdash;Appeal&emdash;Amendment of Warrant&emdash;Consent of Accused.&emdash;Where a prisoner convicted by a police justice of the violation of a city ordinance against houses of ill fame appeals to the corporation court, neither the attorney for the Commonwealth nor the police justice can, pending the appeal, change the warrant so as to charge an offense under section 3790 of the Code. There having been no conviction of any offense under the statute, the provisions of section 4107 of the Code as to amendments and changes of the warrant has no application, and until such conviction, the corporation court has no jurisdiction, with or without the consent of the accused, to hear and determine a charge of misdemeanor under section 3790.</p>