Volume 120 — Virginia Reports

<p>1. Municipal Corporations — Streets—Pedestrians—Negligence-Stepping in a Hole. — A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of the particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. He is not bound to keep his eyes constantly fixed on the walk, in search for possible holes or other defects, and one who, in stepping backward to look in an adjacent window, steps into a hole in the walk which has been negligently opened behind him and left exposed, without notice or warning, cannot be said to be guilty of negligence as a matter of law.</p> <p>2. Verdicts — Conflicting Evidence — Negligence—Difference of Opinion of Reasonable Men. — Whether a plaintiff in an action to recover damages for personal injuries has been guilty of contributory negligence is a question for the jury under proper instructions from the court, and their finding will not be disturbed where the evidence is conflicting, or is such that reasonable men might fairly differ as to whether there was such negligence or not. Every reasonable inference should be made in favor of a verdict fairly rendered, under proper instructions from the court, in such a case, and it should not be set aside unless the evidence is plainly insufficient to support it.</p>

<p>1. Evidence — Joint Bond — Principal and Surety — Case in Judgment. — Where father and son execute their joint bonds to á creditor and secure the same by a joint deed of trust on their separate real estate, and the deed provides that the trustee shall sell first the lands conveyed by the father “and if a sufficient amount is derived to pay the debt and costs, -will not make further sale,” while this clause of the deed is a circumstance tending to show that the father was the principal debtor,' it may be shown from other parts of the deed and by extrinsic evidence that as between themselves, each was a principal as to one-half the debt and a surety as to the other half, and such was shown to be the fact in the case in judgment.</p> <p>2. Subrogation- — Principal and Surety — Payment by Surety— Funds of Principal in Hands of Court — Case in Judgment.— As a general rule, before a surety is entitled to be subrogated to the rights of the creditor against the principal debtor, he must have actually paid or satisfied the debt, but, where the rights of the parties are clear, a court of equity, in carrying out the principles underlying and constituting the doctrine of subrogation, will take the shortest road to the right and justice of the case. The doctrine of subrogation has nothing of form or technicality about it. It is the creature of equity, and essential justice is its object. In the case in judgment, the principal’s lands have been sold and the proceeds are under the control of the court, and the court will not do the vain thing of selling the lands of the surety and then granting him subrogation.</p> <p>S. Estoppel — Case in Judgment — Statement in Deed — Misrepresentation. — J. and L., who were father and son, made their joint bonds to a creditor, and secured the same by a joint deed of trust on their separate real estate, which deed provided that the trustee “sell first the lands conveyed by J. and, if a sufficient amount is derived to pay the debt and costs, will not make further sale.” Subsequently, L. conveyed his land in trust to secure other creditors, some of whose debts were contracted after the recordation of the first deed and upon the faith of the above quoted statement therein contained, but who made no inquiry of J. as to the relation of himself and L. concerning the joint debt above mentioned. The creditors in the deed made by L. only claimed that J. was estopped by the deed first mentioned from setting up the claim that he was primarily bound for only one-half of the debt secured by the joint deed.</p> <p>Held: There was no estoppel. The mere fact that one clause of the deed tended to show that J. was the principal as to the whole debt, when other clauses and extrinsic evidence showed that he was principal as to only one-half the debt, did not give the creditors in the deed made by L. only on his land any higher rights than they would have had if the deed had been silent on the subject, that the creditors of L. could stand on no higher ground than their debtor, and that as to creditors who claimed to have extended credit on the faith of the statements in the first deed there could be no estoppel, as no inquiry was made of J. nor any misrepresentation made by him, ■</p>

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

<p>1. Master and Servant — Warning Inexperienced Servant. — It is the duty of the master to adequately warn an inexperienced servant of unknown dangers attendant upon the place and work to which he is assigned; but the master is not an insurer of the servant’s safety, and is liable for the consequences, not of danger, but of negligence.</p> <p>2. Master and Servant — Injury to Servant — Allegation of Negligence — Lack of Instruction — Burden of Proof — Presumption. —In an action to recover for a negligent injury, the burden is on the plaintiff to prove the negligence alleged. In the absence of evidence to the contrary, the master is presumed to have discharged his affirmative duties to his servant in furnishing him a reasonably safe place and appliances in and with which to work, and also in giving him necessary warning and instruction. Where the negligence alleged is the failure of the master to instruct the servant how to adjust his belt, or how to sit or work in the belt so as to “balance” or “control himself” while swinging there, and there is no evidence on the subject, but the servant was fully warned of the dangers of the employment, judgment should be given for the master. He can safely rely upon the presumption in his favor, and leave the burden upon the servant to overcome that presumption. Negligence of the master cannot be inferred from the mere occurrence of the acident by which his servant is injured.</p>

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

<p>1. Carriers—Failure to Deliver Stock—Damages—Agreed, Valuation.—Under a bill of lading fixing a value upon live stock and providing that in no event shall the shipper recover a greater sum, the shipper is entitled to recover any damage less than such valuation which he can prove resulted from delay in delivery, although he realized in the market more than the amount of such valuation. This rule applies as well to negligent failure to deliver, as to delay in delivery.</p> <p>2. Carriers—Failure to Deliver Stock—Notice—Reasonable Time,— Notice to a carrier of a claim for damages for failure to deliver stock is within “a reasonable time” and is sufficient, when given without delay as soon as the negligence of the carrier which occasioned the loss was discovered, although the contract of carriage required notice to be given within five days after the stock were removed from the cars, or within a reasonable time thereafter.</p>

<p>1. Boundaries — Ascertainment—Acts 1912, p. 133 — Scope of Act.— The act of March 4, 1912 (Acts 1912, p. 133) allowing a petition to be filed to ascertain the true boundaries of land, confers upon the court jurisdiction to pass upon the title to the land included in the boundary line or lines fixed by the judgment of the court, and the defense of adverse possession for the statutory period may be set up as a defense to such •petition.</p> <p>2. Boundaries — Location—Acts 1912, p. 133 — Ejectment.—The title of the plaintiff in the case at bar being a fee, and the controversy being with the owners of “coterminous real estate” as to the true location of boundary lines between the plaintiff and the defendants, the plaintiff had the right to proceed under the statute and was not driven to an action of ejectment.</p> <p>3. Boundaries- — Preference of Corners Over Courses. — In ascertaining the boundary lines of land, distance or length of lines called for in deeds and plats, and acreage, must give way to fixed and ascertained corners and reputed boundaries established by ancient but distinct land marks</p> <p>4. Boundaries — Acts 1912, p. 133 — Plaintiff’s Title. — In a proceeding under Acts 1912, p. 133, to fix boundaries and to recover the land lying between the true boundary and the boundary claimed by the defendants, the plaintiff must recover upon the strength of his own title.</p> <p>5. Evidence — Boundaries—Plats.-—-A plat not referred to in or made a part of the chain of title of either plaintiff or defendants, on the trial of a petition under Acts 1912, p. 133, is not admissible as evidence of the extent or location of the metes and bounds covered by the true title, or of that covered by the color of title of the defendants.</p> <p>6. Adverse Possession — Taking Possession- — Harmless Error. — In fixing the duration of adverse possession, a party has the right to tack to his possession the possession of those under whom he claims, but the omission to make any reference to this right in an instruction is harmless where the testimony is to the effect that the only possession claimed was that of tho party himself.</p> <p>7. Instructions — Application to Evidence.- — -Instructions should be read with reference to the evidence in the case in which they are given. Although correct with reference to a case to which they are applicable, they may be erroneous when applied to a different state of facts.</p> <p>8. Adverse Possession — Mistake as to Boundary — Claim to Line on the Ground. — The proposition that adverse possession does not exist where the party occupied and possessed the land in controversy through a misapprehension or mistake as to his boundary, with no intention to claim what did not belong to him, but only intending to claim to the true line, is sound in principle only where in fact there was no intention to hold adversely up to the boundary line ok the ground unless that were the true boundary. It» does not apply where it is shown that a specific intention exists on the part of the possessor to claim title to a definite line on the ground in fact beyond the true title. If a party takes and holds actual possession beyond his true boundary line, and with good faith, though mistaken, claims title to and occupies the land, his possession is adverse to the extent of his actual possession, and such possession, if continued unbroken for the statutory period, will ripen into a perfect title under the statute of limitations.</p> <p>9. Adverse Possession — Mistake as to Boundary — Presumption as to Extent of Claim — Claim with Reference to Line on the Ground.- — -Where the proof is that the location of the line in question was caused in the first instance by a mistake as to the true boundary, the other facts and circumstances in the case must negative by a preponderance of evidence the inference which will otherwise arise that there was no definite and fixed intention on the part of the possessor to occupy, use and claim as his own the land up to a particular and definite line of the ground. That is to say, on the whole proof a case must be presented in which the preponderance of evidence as to the character of the possession, how held, how evidenced on the ground, how regarded by the adjoining land owner, etc., etc., supplies the proof that the definite and positive intention on the part of the possessor to occupy, use and claim as his own the land up to a particular and definite line on the ground, existed, coupled with the requisite possession, for the statutory period, in order to ripen title under the statute. Whether the positive and definite intention to claim as one’s own the land up to a particular and definite line on the ground, existed, is the practical test in such cases.</p> <p>10. Boundaries — Acts 1912, p. 133 — Monuments and Corners Preferred to Lines and Acreage- — Instructions.—In a proceeding under the statute to ascertain the true boundary of land an instruction that “a correspondence in quantity given by a line in question 'with the quantity mentioned in the deed, or in the approximation thereto, may be considered as going to establish such line as the true one,” gives too great prominence to the mere acreage. While it is a circumstance bearing on the establishment of such line, it is of less weight than natural monuments, corners or reputed boundaries and the jury should have been so instructed.</p> <p>11. Instructions — Jury Fully Instructed. — Where a case has been fairly submitted to the jury on proper instructions it is-not error to refuse other instructions tendered.</p>

<p>1. Accident — Proof Required — Circumstantial Evidence — Demwrrer to Evidence. — While the proof of an accident may be circumstantial, the circumstances proved must point directly to the main fact in issue and not be such as to lead merely into a labyrinth of surmises and Conjectures. Even upon a demurrer to evidence the finding cannot be based upon conjecture, guess or random judgment, but must be founded upon facts shown in evidence.</p> <p>2. - Negligence — Bwrden of Proof — One of Two Causes of Accident. —In an action to recover damages for a negligent injury, the burden of showing negligence by a preponderance of the evidence is upon the plaintiff, and if the injury might have resulted from one of two causes for only one Qf which the defendant was responsible there can be no recovery; neither can the plaintiff recover if it is just as probable that the damage was caused by the one as by the other.</p> <p>3. Accident Insurance — Accidental Death — Burden of Proof — Presumption — Case at Bar. — In order to recover on an accident policy, the burden is on the plaintiff to bring himself within the provisions of the contract of insurance by proving an accidental injury to the assured. There is no presumption to aid in this proof, as death is presumed to be the result of natural dissolution rather than of accidental injury. In the case at bar, the accidental death of the assured is not established by the evidence introduced in the cause.</p>

<p>1. Equity Pleading — Demurrer—Bill Sufficient on Some Grounds.— Where a bill sets up a right of way as appurtenant to complainant’s land and as a way of necessity, and also by virtue of a writing executed by the defendant, and the allegations of the bill are sufficient to support the claim to the way both as appurtenant and as a way of necessity, a demurrer on the ground of the insufficiency of the •writing was properly overruled.</p> <p>• 2. Easements — Private Road — When Appurtenant to Land Purchased. — Where an owner sells a part of a tract of land to another, and at the time of the sale there is a private road leading from the land sold through the lands retained to a public road, and such private road is apparent, continuous and reasonably essential to the use of the purchaser at the time of his purchase and has been so ever since, covering a period of twenty-five years, such purchaser and those claiming under him are entitled to the use of such road as appurtenant to their purchase</p> <p>8. Easements — Private Road — Change of Location. — Change^ in the location of a private road made by the owner of the servient estate and acquiesced in by the parties entitled to the use of the road, are equivalent to changes of the route by agreement, and do not in any way prejudice the rights of the latter.</p>

<p>1. Taxation — Non-Residents—Intangibles—Loans Made Outside of State — Establishment of Business- — Acts 1915, p. 163. — A nonresident who has neither domicile, place of business nor an agent in this State, but who, upon applications to him outside of this State, lends money secured by liens on real estate in. this state, and keeps the evidences of debts at his place of residence outside of this State and there receives and collects the principal and interest of such debts, is not conducting a business in this state within the meaning of Acts 1915, p. 163, although he may from time to time come to this state to inspect the lands upon which loans are to be secured, and the bonds, notes, and . other evidences of such loans are not taxable in this State under said act. He has not established a business in this State, and has neither a business, domicile nor agent here, and the evidences of debt are not kept here.</p> <p>2. Taxation — How Tax Laws Construed. — Laws imposing taxes are strictly construed, and whenever there is a doubt as to the meaning or scope of such laws they are construed most strongly against the government and in favor of the citizen. "</p>

<p>1. Pleading — Declaration—Sufficiency.—A declaration in an action ___ of a servant against his master which sets forth sufficient facts to show the relation between the plaintiff and the defendant, the legal duty owing from one to the other, the breach of that duty by the defendant, and the damages resulting therefrom to the plaintiff, is good on demurrer.</p> <p>2. Master and Servant — Vice-Principal—Negligence.—A servant , who is charged with the duty of supplying and maintaining suitable instrumentalities with which other servants are to work, and of performing the non-assignable duties of the master, is a vice-principal, and the master is liable for damages proximately resulting from his negligent performance of the duties devolved upon him.</p> <p>3. Master and Servant — Obedience of Servant. — The promise of the servant to obey the lawful and reasonable orders of his master, within the scope of his contract, is implied by law, and he must obey unless the act be one obviously attended by such danger that a man of common prudence would not undertake it.</p> <p>4. Verdicts — Conflicting Evidence. — The verdict of the jury is conclusive upon a question of fact submitted to them upon conflicting evidence.</p>

<p>1. Master and Servant — Simple Tools — Inspection—Repairs.—The master is under no obligation to his servant to inspect, during their use, those common tools and appliances with which everyone is conversant, nor to repair defects arising in the daily use of such appliances.</p> <p>2. Master and Servant — Assumption of Risk — Obvious Dangers.— A servant assumes the risk of open and obvious dangers of which he has knowledge, or where his opportunity for knowledge is so complete as to leave no room for doubt that he either knew or ought to have known all about them.</p>

<p>Error to a judgment of the Circuit Court of Montgomery county on an application to remove an administrator. Judgment for the applicant. Defendant assigns error.</p>

<p>1. Municipal Corporations — Annexation Ordinance — How Construed — Case at Bar. — The annexation ordinance in the case at bar is to be read as a whole, and in the light of the court’s order of annexation and of the statute, and, when so read and interpreted, it is plain that the council of the city is not authorized or empowered to apply the revenues derived from the annexed territory, during the period of the first five years from the date of annexation, to the improvement of other property of the city.</p> <p>2. Appeal and Error — Assignment of Error — Waiver.—An as- ~ signment of error to the improper admission of evidence, and of evidence “of a character so intangible as to be not capable of being rebutted,” but which does not call attention to any particular evidence as improperly admitted, and which has not been argued, either orally or in briefs, must be regarded as waived. •</p> <p>3. Municipal Corporations — Annexation of Territory — Loss' of Revenue to County — Extension Considered as Entirety.— Although the annexation of a part of a county to a city may temporarily embarrass somewhat the county with respect to its revenue, that cannot be made the criterion by which the question of annexation is to be adjudged. The proposed extension must be considered as an entirety, and the rights and interests as well of those within the city as of those without are to be taken into consideration.</p> <p>4. Municipal Corporations — Annexation Ordinance — How Considered — Including Unplatted Land — Reasonableness.—An extension ordinance must be considered as a whole, and is not unreasonable because there is embraced in the land proposed to be taken in unplatted or even marsh lands not needed by the city in the reasonably near future, for development and expansion. There may be, and in the case at bar were, other good and sufficient reasons why such lands should be so embraced.</p> <p>5. Appeal and Error — Extension Order — Fixing New Date For Effectiveness. — Where the date fixed by the trial court for an' extension ordinance to go into effect has passed pending an appeal from the order of extension, this court, on affirming the judgment, will fix a new date for the ordinance to go into effect.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond on an application for a mandamus. Judgment for the petitioners. Defendant assigns error.</p>

Judgment for the plaintiff. Defendant assigns error. Case No. 1. Error to a judgment of the Corporation Court-of Lynch-burg in an action of debt. Judgment for the defendant. Plaintiff assigns error. Case No. 2.

<p>Appeal from the Chancery Court of Richmond. Decree for defendants. Petitioner appeals.</p>

<p>1. Rescission — Fraud.—Evidence.—It is elementary that a party alleging fraud is required to prove the same by clear and convincing testimony, and this is particularly true in cases involving the rescission of a contract.</p> <p>2. Rescission — Compromise Contract. — Compromise agreements are favored and where their rescission is sought on the ground of fraud or duress such fraud or duress must be clearly and convincingly shown.</p> <p>3. Compromise and Settlement — Duress.—A contract of compromise, entered into with full knowledge of all the facts, cannot be set aside on the ground of duress when the other party has not been guilty of any unlawful act. The fact that one ■ of the parties entered into such a contract reluctantly, or wás badly iii need of money at the time, is not sufficient to constitute duress.</p> <p>4. Compromise and Settlement — Fraud.—If a party makes a deliberate settlement of an alleged fraud, with his eyes wide open, such settlement will not be disturbed. Parties may settle "frauds as well as anything else, if they act with knowledge of the facts; and such a settlement is as effectual when made by the parties, as when made by a court.</p>

<p>1. Contracts — Construction.—Where a contract refers to prior contracts, to which one of the parties was a party, for further particulars, it must be construed with reference to such prior contracts.</p> <p>2, Corporations — Promoters—Construction of Contract. — The preamble of a contract recited that the organization of a company for dealing in the purchase and sale of coal lands was effected upon the understanding that appellant “should advance three-fourths of the cost of said property” (referring to said coal lands) “or so much thereof as might be necessary for the purposes of the company,” and that he should have a certain part of all profits to be made upon the said advancements through the organization of said company to take over the coal lands. Three prior contracts of the appellant with other parties in regard to the same enterprise were referred to for further particulars. The preamble also recited that under these prior contracts appellant “would be required to advance only so much” of his agreed input aforesaid “as might be required to pay the cost of the property before a sale of the same by the company was effected.” From the body of the contract it appeared that appellant for a certain sum sold to the appellees part of his interest under the prior contracts in the stock of the corporation. The contract further provided . that in case any further input of cash towards the payment of appellant’s “input of three-fourths of said purchase money is required of and made by him,” appellees’ interest should be reduced. One of the prior contracts contained a provision that, “All expenses incident to the successful carrying out of the purposes of said corporation are to be borne by the said corporation.” Appellant paid into the treasury of the corporation a sum of money to cover the expenses of such corporation due to its payment to the appellant of that amount on accqunt of his salary.</p> <p>Held: That appellant was obligated by his contract to pay into the treasury of the corporation his proportion of “all expenses incident to the successful carrying out of the purposes of the said corporation,” as well as to pay what was strictly purchase money of the company’s property, and that his salary was such an expense.</p> <p>3. Corporations — Promoters—Sale of Part of Promoter’s Interest. —Appellees upon the purchase of an interest in appellant’s contract, knowing of the provisions of the above contract and of a resolution of the board of directors fixing appellant’s . salary, were charged with notice of his rights.</p> <p>4. Corporations — Estoppel of Director. — Under a pooling agreement made at the time of a sale of part of the interest of appellant to appellees, it was agreed that the president’s salary-should be arranged at a stockholder’s meeting.</p> <p>Held: That notwithstanding this agreement, appellees could not object to the salary fixed at a director’s meeting, where one of them who also represented the other took part in the action.</p> <p>5. Estoppel. — Letters written by appellant to appellees, stating the amount of indebtedness against the company, which failed to mention expressly the salary expense, but which urged appellees to come at once and to look into everything for themselves, did not operate to estop appellant from claiming the salary expense.</p> <p>6. Corporations — Promoters—Construction.—The salary expense, having been treated by the corporation in effect as a necessary expense attendant upon the acquisition of the lands of the company, and having been so recognized by the appellees, should be computed as input of appellant in calculating the proportion of common stock to which he is entitled.</p> <p>7. Corporations — Promoters—Necessary Expenses. — Appellant paid into the treasury of the company a certain sum to cover the expenses of the corporation for office rent and stenographer’s hire. This was properly held by the court below to be an input of the appellant into the corporation, which he is entitled to have computed in the calculation of the amount of common stock of such corporation to which he is entitled, there being a resolution of the board of directors that a bill rendered by appellant for such rent and stenographer’s hire be paid.</p> <p>8. Corporations — Promoters Contract to Pay Necessary Expenses. —A payment by appellant at the treasury for necessary expenses should be computed as an input of defendant in calculating the proportion of common stock to which he was entitled, although funds were received by the corporation because of the exercise of an option subsequent to the input and before the obligations became payable.</p>

<p>1. New Trial — Master and Servant. — In an action by a servant against his master for personal injuries, due to the negligence of the master, a verdict for the servant will not be set aside, although there is much in the evidence tending to show that the plaintiff’s injury was due to a mere accident, without fault on the part of the defendant, where there is also evidence sufficient to sustain the finding of the jury to the contrary.</p> <p>2. Instructions — Master and Servant — In an action for personal injuries by a servant against his master, where the instructions deal with familiar principles, and those given by the court fully and fairly submit to the jury the theory of each party, an assignment of error to the action of the court In giving and refusing the instructions to -the jury is without merit.</p> <p>3. Instructions — Master and Servant — Instruction Covered by one Already Given. — In an action by a servant against his master for personal injuries received while working upon a defective trestle, the defendant asks the following instruction, which was refused: “The court instructs the jury that the unbending test of negligence is the general usage and practice of companies using like instrumentalities, and in order ,to establish negligence on the part of the defendant, plaintiff must show by a preponderance of the evidence that the trestle in question was dangerous and not up to the standard established by the ordinary usage of the business.” This was held no error. The evidence upon which the defendant sought to avail itself of the unbending test to be found in the ordinary usage of the business was exceedingly meagre. If the defendant had the right at all under-the evidence to have the jury consider the practice of persons using trestles similar to the one in question here, that right was fully protected by an instruction given for defendant which stated “that ordinary or reasonable care is such care as other reasonably prudent companies or persons use in conducting a like business.”</p> <p>4. Evidence — Irrelevant Evidence — Harmless Error. — In an action by a servant against his master for injuries sustained while working upon a trestle, defendant moved to exclude all evidence in relation to ice which was shown to have formed on the surface of the trestle. There was no mention of this ice in the declaration, but the motion to exclude the evidence in regard to it was not made until after the plaintiff had been fully cross-examined about it, had rested his case, and the defendant had examined the principal witness in its own behalf. Counsel then stated to the court that “in going over the declaration again” he had noticed that the ice was not mentioned, and he therefore moved the court to exclude the evidence in regard to it. The court replied that “it would hardly be proper to exclude that evidence entirely; it may go to the jury in order that the whole surrounding circumstances may be considered; but the jury will be instructed, if requested, that if they believe that the ice on the track was the proximate cause of the injury, there could be no recovery in this case.” This statement by the court seems to have been made in the presence of the jury; and, in addition thereto, when all the evidence was in, the court did give the following written instruction: “The court further instructs the jury if they believe from the evidence the plaintiff slipped on ice and this was the m-oximate cause of the injury they must find for the defendant.”</p> <p>Held: Under these circumstances there was no error in the action of the court in this regard.</p>

<p>1. Streets and Highways — Co ntr act For Pavement — Guaranty.— A contractor entered into a written contract with a city for the paving of certain streets, upon some of which there were no street cars and upon others cars were operated. The contractor guaranteed to keep the work done under his contract in good repair for a period ef ten years. It appeared from the circumstances surrounding the contract that Hie. parties had the subject of the street car tracks upon the streets upon which cars were operated in mind and contracted with reference to their sinking from use and thereby causing damage to the adjoining work guaranteed by. the contractor.</p> <p>Held: That the contractor could not be excused from the performance of his guaranty, by reason of the settlement of the foundation of the street car tracks causing injury to the work guaranteed.</p> <p>2. Streets and Highways — Contract For Pavement — Guaranty— Instructions. — An instruction that the jury before they could find for the the city must believe from the evidence that the defects complained of, in whole or in part, were occasioned by some default of the defendant, and if due to causes over which he had no control, he was not liable therefor, was properly refused, where there was no evidence as to causes over’ which the contractor had no control other than those expressly covered by other instructions. Such an instruction would invite the jury -to indulge in mere conjecture as to such causes.</p>

<p>1, Banks and Banking—Relation Between Bank and Depositor.— The relation between a bank and a depositor is that of debtor and creditor. The deposit creates an ordinary debt, not a privilege or right of a fiduciary character. It is a loan with the superadded obligation that the money is to be paid when demanded by check.</p> <p>2. Banks and Banking—Joint Deposit.—Money of M. was deposited in a bank on savings account to the credit of M. or E.</p> <p>Held: That upon the death of M. the balance of such account belonged to E.</p>

<p>1. Lost Instruments — Deeds—Jurisdiction of Equity. — Where an instrument rises to the dignity and importance of a muniment of title, every principle of public policy demands that the proof of its former existence, its loss and its contents, should be strong and conclusive, before the courts will establish a title by parol testimony to property which the law requires shall pass only by deed or will. That courts of equity have jurisdiction to set up lost deeds or wills, and to establish titles under them, can certainly not be denied, but it is a dangerous jurisdiction and so pregnant with opportunities of fraud and injustice that it will not be lightly exercised, nor except upon the clearest and most stringent proof.</p> <p>2. Lost Instruments — Deeds—Insufficient Evidence to Establish. — ■ A bill was filed by a son against his father and others to establish a lost' deed by the father to the son, alleged to have been executed twenty-nine years before. There was an irreconcilable conflict in the testimony of the father and son. The testimony of the alleged draughtsman of the deed was un- . convincing. The other circumstances surrounding the alleged transaction were improbable.</p> <p>Held: That the evidence was insufficient to show the existence of the deed.</p>

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

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

<p>Appeal from a decree of the Circuit Court of the city of Portsmouth. Decree for the defendant. Complainants, appeal.</p>

<p>1. Reformation of Instruments — Mistake.—A suit in equity was brought to correct an alleged mistake whereby, in the deeds carrying out a certain partition agreement, a tract of land was conveyed to a daughter instead of to her mother. The evidence showed that the three parties concerned in the partition, the mother and her two children, deliberately and understandingly intended to divide the .real estate, the property of their deceased husband and father, in such a way that the mother would receive a conveyance in fee simple for the tract of land in question, and that it was conveyed to her daughter by mistake. This being true, it is unnecessary to speculate in regard to the reasons which may have led the two children to agree upon a partition which apparently gave their mother a higher and more valuable estate than her dower interest would have entitled her to receive. The natural presumption that in such a partition the widow would get no land in fee simple must, of course, yield to affirmative proof to the contrary. In the case at bar there is such proof, it is clear and convincing; and the (leed must be reformed accordingly.</p> <p>2. Reformation of Instruments — Mistake—Laches—Burden of Proof. — In a suit to reform a deed for mistake, where the defendant admits the mistake, the burden of proof of' showing laches, acquiescence or ratification, by which complainant had lost her right to equitable relief, is upon defendant, and in carrying this burden defendant must do more than merely ' prove ambiguous and equivocal conduct and statements on the part of the complainant.</p> <p>3. Reformation of Instruments — Mistake—Estoppel.—In this case it appeared that defendant had given a deed of trust on the tract of land after complainant had declined an offer of recomveyance. It was contended that thereby defendant had been placed in a worse position than she would have otherwise occupied, and that therefore the complainant was estopped from asserting her right to the land. It appeared that the money secured by this deed of trust was borrowed for a third party, and that defendant was secured collaterally, and was besides able to pay off the debt.</p> <p>Held: That complainant was not estopped.</p> <p>4. Reformation of Instruments — Mistake—Laches—Insanity.— Scarcely a year elapsed after complainant learned of the mistake until she became ill and mentally incompetent to protect her interests, and remained so practically all the time until shortly before this suit was brought.</p> <p>Held: To preclude the doctrine of laches.</p> <p>5. Laches. — Whenever the delay fairly justifies the inference of acquiescence in the adverse claim, or whenever it has been of such a character as to induce other persons to alter their circumstances or conduct, so that the element of estoppel is introduced, a court of equity will commonly hold the delay to operate as an absolute bar.</p> <p>6. Mortgages and Deeds of Trust — Insanity.—Where it is shown that the grantor was generally insane during a certain period, and a ■ lucid interval is claimed at a particular time during that period, the burden of proof is on the party alleging such lucid interval to show sanity at that particular time.</p> <p>7. Mortgages and Deeds of Trust — Trustee.—Where a married woman makes a deed of -trust conveying her property in trust for her support, and selects a competent and trustworthy man as trustee, her selection will not be disturbed, although her husband and daughter would prefer a member of the family as trustee who would act without compensation.</p>

<p>Appeal from a decree of the Circuit Court of the city: of' Richmond in an ancillary proceeding by the Commissioner of Insurance against a foreign insolvent company. From the decree, the receiver of the company appeals.</p>

<p>1. Malicious Prosecution — Probable Cause — Pleading.—A declaration in an action for malicious prosecution charged that the defendant maliciously and without any reasonable or probable cause instigated and procured the plaintiff to be indicted and tried for grand larceny; and that upon the trial plaintiff was acquitted and the prosecution finally ended.</p> <p>Held: That this declaration was sufficient; and that it is not necessary where the declaration discloses an indictment by a grand jury, in addition to alleging a want of probable cause, to set out the evidence upon which that averment is predicated.</p> <p>2. Pleading — Conclusions of Law. — The allegation in a declaration in an action for malicious prosecution that the prosecution was without probable cause, is not merely the assertion of a conclusion of law. It'is the allegation of an ultimate fact.</p> <p>S. Ultimate Facts. — “Ultimate facts” are defined as: Facts in issue as opposed to probative or evidential facts, the latter being such as serve to establish or disprove the issue.</p> <p>4. Malicious Prosecution — Probable Cause ~ Pleading. — Where, however, plaintiff was convicted of the crime for which he was prosecuted, a different principle applies. In case of conviction the presumption of the existence of probable cause is not merely prima facie, but conclusive, unless the conviction is alleged and proved to have been procured by the defendant through fraud or by means of evidence which he knew to be false.</p>

<p>1. Nuisance — Limitation of Actions. — Where there is a permanent nuisance, the consequences of which, in the normal course of things, will continue indefinitely, there can be but a single, action therefor, and the entire damage suffered, both past and future, must be recovered in that action; and the right of recovery will be barred unless it is brought within the prescribed number of years from the time the cause of action accrued.</p> <p>2. Nuisances — Pollution of Stream — Laches.—Plaintiffs filed their bill for an injunction and damages against the defendants for the pollution of a watercourse by the operation of defendants’ mines. There was a serious conflict in the testimony of the non-expert witnesses as to the real cause of the conditions complained of. Moreover, the property affected was located ten or twelve miles down stream from the mines, and analyses by two experienced chemists of water taken from the stream at that point showed that it was normal, and not injurious to the soil, or trees and other vegetation, or to fish. A third analysis of the water was made by another chemist employed by a person having a common interest with plaintiffs, yet he was not examined as a witness, nor was his 'analysis put in evidence. It also appeared that plaintiffs suffered more than twenty years to elapse after the opening and operation of the mines before they sought redress from the courts for the supposed violation of their rights.</p> <p>Held: That this did not present a case for perpetual injunction and decree for damages.</p>

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

<p>1. Nuisances—Number of Actions—Limitation of Actions.—Repeated actions may, as a general rule, be brought to recover for nuisances as long as the nuisance continues; but where there is a permanent nuisance, the consequences of which, in the normal course of things, will continue indefinitely, there can be but a single action therefor, and the entire damage suffered, both past and future, must be recovered in that action, and the right to recover will be barred unless it is brought within the prescribed number of years from the time the cause of action accrued.</p> <p>2. Waters and Watercourses—Overflowing Lands—Damages.— Defendant company built an enormous dam and reservoir across a natural watercourse. The lake of water formed by this structure interfered with the natural drainage to the plaintiff’s land, and the water from the artificial lake backed upon plaintiff’s farm, causing the injuries complained of. As the dam was a permanent structure and the injuries to the land flowing from it were not of a recurrent and intermittent character, but were permanent in their nature, there can be but one recovery for such injury, which would include all the damage sustained, both past and future, and there can be no recovery for damage to crops put out since the cause of action accrued, as such damages are included in the single judgment for permanent damages. But the damage to a crop which was put out during the construction of the dam and before its injurious effect was known, can be recovered.</p> <p>3. Waters and Watercourses—Measure of Damages to Land From Dam.—Where a dam causes permanent injuries to another’s land, the measure of damages is the difference in the market value of the land with and without the dam, to be computed as of the time immedately before the dam was built and immediately after it was finished and filled with water.</p>

<p>Appeal from a decree of the Circuit Court of the city of Richmond in a proceeding by the Insurance Commissioner against a foreign insolvent company.</p>

<p>Appeal from the Circuit Court of the city of Norfolk. Decree for defendants. Complainant appeals.</p>

<p>1. Street Railways—Collision.—An action was brought by plain- * tiff to recover for injuries sustained in a collision at a crossing between a street car and a taxicab in which he was riding. Under an ordinance the automobile had the right of way at the point where the accident occurred. There was a conflict in the testimony as to the rate of speed at which the street car and the automobile were respectively running. The trial court instructed the jury that even though they believed from the evidence that the driver of the automobile was guilty of negligence, yet if they further believed from the evidence that before the accident occurred, the motorman ran his car into the automobile as the result on his part of some act of negligence charged in the declaration, and that this was the proximate and immediate cause of the accident, then the" defendant was alone responsible for the accident.</p> <p>Held: That the evidence was such as to render proper a submission by the trial court to the jury of these three leading questions of fact: (1) Were both defendants guilty of negligence which concurred as proximate causes of the accident? or (2) Was the defendant railway company guilty of negligence which was the sole proximate cause? or (3) Was the taxi company guilty of negligence which was the sole proximate cause? And that the first and third of these questions were sufficiently presented in other instructions given by the court, and that the second was properly presented, in the instruction quoted above.</p> <p>2. Instructions—Unnecessary Words.—The words in the above instruction “before the accident occurred,” were unnecessary, but there was nothing in them which could have deceived the jury as to what the trial court meant, and therefore they did not render the instruction erroneous.</p> <p>3. Instructions.—The trial court was asked to instruct the jury that they were not required to believe incredible testimony. As this instruction asserted a self-evident proposition, the refusal to give it was no error. Juries do not need, or at least must be presumed not to need, as a matter of instruction and information, to have the court tell them that they are not to believe tho impossible..</p> <p>4. Street Railways — Instructions.—The trial court refused to give on behalf of the street railway company an instruction which in substance told the jury that the taxicab company owed the plaintiff, as a passenger, the highest degree of care, and that the railway company owed him only the duty of exercising ordinary care. This was held no error. So long as the degree of care owing by the railway company to the plaintiff was properly defined, that company had no legal right to complain merely because the instructions "did not define the degree of care owing by its codefendant. Other instructions properly fixed the burden of proof and defined the degre of care so far as the railway company was concerned, and this was the sole test of its liability, regardless of how much care the taxi company owed the plaintiff, or how little care it exercised for him.</p> <p>5. Instructions — Tort-Feasors.—If one joint tort-feasor should obtain an erroneous instruction which improperly fixes the liability on another, the latter has the right to except; but not when the instruction simply tends to benefit the former without unduly incupating the latter.</p> <p>6. INSTRUCTIONS — Refusal Where Covered by Others. — It is not error to refuse instructions prolix in their statements and less helpful to the jury than one given by the court, and in so far as they were proper, covered by other instructions given in the case.</p> <p>1. Street Railways- — Collision—Instructions.—Under a city ordinance a taxieab had the right of way at a crossing over a street car. The trial court instructed the jury that they must give a reasonable application to said ordinance, and that the street ears were not required to stop for vehicles having the right of way, unless in the exercise of ordinary care and prudence a prudent motorman would deem it necessary to stop his car under all the circumstances at the time.</p> <p>Held: A correct interpretation of the ordinance.</p> <p>8. Personal Injuries — Measure of Damages. — In an action for personal injuries, the jury were instructed that they might consider “any loss of time heretofore sustained by the plaintiff from his work as a result of his injuries.” There was evidence that plaintiff was in the hospital for three weeks, and thereafter for six weeks he was only able to spend a part of each day at his place of business. It did not appear that the business in which he was engaged was either profitable or unprofitable, or that it was affected by his absence. The instruction was held not prejudicial error warranting a reversal where the other elements of damage were all properly set out.</p> <p>9. Damages — -Instructions.—When an erroneous charge upon the measure of damages has been given to the jury, even though the error goes only to one element of damage, the courts will not undertake to say how far the error has affected the total result. But this general rule will not be carried so far as to reverse a judgment obtained upon a fair and otherwise regular trial, when the only error therein, tested by every reasonable probability, could not have affected the result in an amount beyond that which would fall within the influence of the maxim, “De minimis lex non curat."</p>

<p>1. Damages — Personal Injuries. — A verdict for $1,000 will not be set aside as excessive where plaintiff received a cut in the face near his eye and an injury to his arm, and where he complained of constant pain from the injury to the eye and of trouble in moving and using his arm more than nine months after the accident.</p>

<p>1. Divorce—Desertion.—Testimony that a wife left of her own accord; that her husband gave her no cause to leave him; “that she just got tired, and decided to leave, and left,” will not warrant a divorce a vinculo matrimonii.</p> <p>2. Divorce—What Constitutes Desertion.—The desertion, to justify a decree for an absolute divorce, must be a willful desertion, and the court to which the evidence is submitted can only determine whether or not such desertion is willful by having all the facts and attendant circumstances fully and frankly presented.</p> <p>3. Divorce—Evidence of Desertion.—The evidence in a suit for divorce for desertion should show all of the circumstances immediately preceding the separation; such as, whether the departure was secret or open, whether it was accompanied by any threat to remain away or by promises to return, and every other pertinent declaration or circumstance to enable the court to determine whether or not the desertion was willful. It should also show the events immediately succeeding the separation, such as the efforts, if any, to ascertain the new place of residence of the consort complained of, as well as the efforts at reconciliation,.if any, of either of the parties. The policy of the law is against divorce by consent, and if the sanctity of . the marriage tie is to be preserved and divorces by consent prevented, . full and satisfactory evidence should be required, so that the court may determine the legal questions involved from the facts presented, and a decree for an absolute divorce for desertion should not be granted unless the evidence proves willful desertion without justification or excuse.</p>

<p>1. Telegraphs and Telephones — Interstate Commerce. — The transmission of intelligence by wire is commerce, either State or interstate.</p> <p>2. Telegraphs and Telephones — Interstate Commerce. — Telegraph and telephone companies are common carriers under the express provisions of the act of Congress to regulate commerce. The transmission of telegraphic messages between points within the State, which, in the course of their transmission, pass without the State into another State, or the District of Columbia, is interstate commerce.</p> <p>3. Telegraphs and Telephones — Statutory Penalty — Negligence Within the Sate. — While formerly it was held that though the message be interstate commerce, under certain conditions, in clear cases of negligence occurring within this State, the statutory penalty (Code, 1904, section 1294-h, clauses 5, 6) might be enforced, since the amendment of the act to regulate commerce of June 18, 1910, Congress having occupied the field of regulation with respect to interstate telegrams, the statute can no longer be invoked in such cases.</p> <p>4. Telegraphs and Telephones — Limitation of Liability. — Common carriers may limit their liability in interstate commerce by regulations contained in their published tariffs filed with and approved by the Interstate Commerce Commission, and such regulations supersede State statutes and policies and furnish the exclusive rules for determining the carriers’ liability. So where telegraph companies undertake to limit their liability by the conditions under which they accept and transmit interstate telegrams, these conditions, until disapproved by the Interstate Commerce Commission, furnish the exclusive rules for determining their liability, subject to the federal statutes and general law, any State statute to the contrary notwithstanding.</p>

<p>1. Telegrams and Telephones — Interstate Commerce. — Where a telegraphic message between two points in the State is transmitted to a point without the State and from there relayed to the point of delivery within the State, this constitutes interstate commerce, although it was possible to have sent the message between the two points without its leaving the State.</p>

<p>1. Taxation — Deeds of Trust. — The tax on deeds of trusts and mortgages should he, under the proper and long recognized construction of the statute providing therefor, computed upon the principal amount of the bond or other obligations secured by such deeds of trust or mortgages.</p>

<p>1. Appeal and Error — Automobiles—Collision.—Administratrix’s decedent was killed, while riding a bicycle, in a collision with an automobile. There was conflict in the testimony as to the speed of the automobile, the precise location of the accident, the conduct of the decedent, and every other material fact in issue. The jury, as judges of the weight of the testimony, had the right to believe that the proximate cause of the accident was the failure of the driver of the automobile to keep a proper lookout; that the machine was going at an excessive rate of speed; that if the driver had been keeping a proper lookout and controlling the machine, he could have avoided the accident, even after the peril of the decedent was discovered; and that, if he had been keeping a proper lookout and had made a proper turn, there would have been no accident. Under these circumstances, and under the mandatory provisions of the statute, requiring the court to consider such cases as upon a demurrer to the evidence, there was no reversible error in the refusal of the court below to set aside the verdict on the ground that it was contrary to the law and the evidence.</p>

<p>1. Descent and Distribution — Infants.—Section 2556, of the Code of 1904, provides that if an infant die without issue, having title to real estate derived from one of his parents, the whole of it shall descend and pass to his kindred on the side of that parent, if any be living at the death of the infant, and if there be no such kindred living, then it shall descend and pass to his kindred on the side of the other parent. Under this statute, on failure of issue of an infant last seized, the inheritance de-' scends to the infant’s kindred on the side of that parent from whom the real estate was derived, when, as in the case át bar, there are such kindred living at the death of the infant. That is to say, in the quest for the ancestor of the infant who shall constitute the root, or stem, or propositus, from whom the inheritance shall descend, we can ascend only to the parent of the infant from whom the real estate was derived, whether such parent may chance to be the first purchaser of the estate or not. The statute does not permit the ascension beyond the parent to the grandparent, or to any other ancestor of the infant, in order to reach the first purchaser as the propositus from whom the inheritance shall descend.</p> <p>2. Descent and Distribution — Kindred.—The word “kindred,” used in the above statute, has the meaning of next of kin.</p>

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

<p>1. Boundaries — Petition to Determine — Parties.—Acts of Assembly of 1912, p. 133, provide, “that any person having an interest in real estate upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court, the true boundary line or lines to such real estate as to one or more of the coterminous landowners. All persons interested in the coterminous real estate shall be made parties to the said petition which shall be matured for hearing as provided for maturing an action of ejectment, except that it shall not be necessary to serve a copy of the petition.” Under this statute where the petitioner has only a life estate, he must either have the remaindermen unite with him as plaintiffs, or have them made defendants.</p> <p>2. Jury — Waiver—Boundaries.—Under section 3166, Pollard’s Code 1904, a trial by jury is waived if neither plaintiff nor defendant demand such trial. But Acts of 1912, p. 133, governing proceedings to determine boundaries specifically provides that a “trial by jury may be waived by consent of parties,” and therefore requires a trial by jury in every case arising under it, unless such trial is waived by the consent of parties both plaintiff and defendant.</p>

Error from a judgment of the Law and Equity Court of the city of Richmond, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.

<p>1. Descent and Distribution — Theory of the Statute. — The theory of our statute of descent and distribution is that the estate of the ancestor at his death (subject to the rights of the widow, if there be one) passes in coparcenary equally to his children.</p> <p>2. Advancement — Hotchpot — Purchaser From Distributee. — Virginia Code of 1904, section 2561, provides that: “Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and he or any descendant of his shall come into partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate real and personal.” Under this provision where the advancement to such descendant is equal to or exceeds his share in the estate, it bars his right to further participation; and, although the section does not refer to a purchaser from the descendant, yet such purchaser is charged with knowledge of the public statutes of the State, and only buys and can only take the interest of his grantor in the estate. The doctrine of bona fide purchaser has no application. The purchaser only buys the heir’s interest, and when that interest is ascertained he is entitled to that and to nothing more.</p>

<p>Error to a judgment of the Circuit Court of Princess Anne county, in an action of ejectment. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Landlord and Tenant — Tenancy From Year to Year — Holding Over. — A tenant gave his landlady three months’ notice that he would vacate at the expiration of that year of his tenancy. At the expiration of the year he was compelled to hold over for three days because, although he endeavored to obtain them, he was unable to get wagons to move his effects. On the fourth day he vacated the premises, and sent the keys to the landlady’s agents. The landlady then elected to hold the tenant as a tenant from year to year by reason of his having held over as aforesaid. As the tenant’s holding over was not voluntary, a contract of tenancy from year to year could not be implied, as no obligation will be implied in law from an act which is not voluntary. Furthermore, the facts show, not only that the action of the tenant in holding over was not voluntary, but in addition that the landlady had actual notice brought home to her of the express declaration of the tenant that he held over involuntarily, excluding any idea of further contract, before the mind of the landlady assented to the tenant’s remaining over. A meeting of the minds, therefore, was impossible.</p> <p>2. Assumpsit — Equitable Nature of Action Upon Quasi-Contract.— An action of assumpsit upon a quasi-contract — which is the action in the instant case — is equitable in its nature. No recovery will be allowed in such an action which does violence to natural equity.</p> <p>3. Landlord and Tenant — Holding Over — Notice of Intention to Vacate. — Where a notice is given by a tenant of an intention to vacate under the Virginia statute (Code, section 2785) before his lease expires, such notice does not differentiate the case from any holding over by a tenant after the expiration of his term, where the holding over is after the date named in the notice when the premises should have been vacated.</p>

<p>1. Drains and Sewers — Constitutional Law. — The Virginia drainage laws, embodied in sections 2576-2579, Code of 1904, are constitutional.</p> <p>2. Drains and Sewers. — The primary question of the public use and necessity of drainage rights in general has been determined by the legislature, and this will be controlling with the courts, in the absence of something to show a palpable want of foundation for the legislative pronouncement.</p> <p>3. Appeal and Error — Drains and Sewers — Proceeding Under the Code. — In a proceeding under the provisions of section 2576, Code of 1904., to determine the right of drainage through the lands of another, where none of the evidence is certified on writ of error by defendant, it will be presumed that a proper case was made out.</p> <p>4. Drains and Sewers — Appeal and Error. — The statute evidently contemplates that cases in which the right of drainage may be granted shall depend upon the facts of each case, and the facts not being certified, it is very doubtful whether the constitutional question can be considered at all when raised for the first time on appeal. j</p> <p>5. Drains and Sewers — Validity of Proceedings to Establish Drains Over Another’s Land. — In a proceeding under section 2576 of the Code of 1904, to establish a right of drainage over the lands of another, the commissioners reported and the court approved a different location for the drain from that asked for in the original petition of the applicant. There is nothing in the statute to indicate a purpose to confine an applicant to the mode of drainage originally contemplated or proposed by him, if he is willing to accept another which the commissioners and the court deem proper. The new or modified mode then becomes the “mode proposed by the applicant” within the meaning of the law.</p>

<p>1. Vendor and Purchaser — Mistake in Quantity. — In contracts of sale by the acre, a court of equity holds the vendor liable for a deficiency on the ground of mistake.</p> <p>2. Mortgages and Deeds of Trust — Trustee’s Sale — Deficiency in Quantity. — The purchaser at a trustee’s sale can not maintain, against the beneficiary and trustee in an ordinary deed of trust on land to secure debts, a suit for a deficiency in acreage. In such transaction there is no element of guaranty or warranty, either of title or quantity of the land. To such a sale the principle of caveat emptor applies.</p>

decree of the Chancery Court of the city of Eiehmond, in a chancery suit wherein the appellees filed their petition. Decree for petitioners. Eespondents appeal.

<p>Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by the city against a contractor carrying on its business without a city license. Judgment for the defendant. The city assigns error.</p>

<p>1. Master and Servant — Federal Employers’ Liability Act — Assumption of Risk. — In an action by a servant's administratrix against his master, alleging that the servant’s death was caused by the master’s negligence, the declaration, contained two counts, one setting out a cause of action under the laws of this State, and the other a cause of action under the Federal employers’ liability act. The trial court required the plaintiff to elect upon which count she would proceed. As she chose to proceed under the latter, the defense of assumed risk was open to the master.</p> <p>2. Master and Servant — Assumption of Risk — Safe Place to Work. —-A sand shoveler, an experienced workman, was killed by the falling of a clod of mixed clay and sand near the top of the bank beneath which he was working. It was a common thing in the course of work for clods to project from the face of the bank. If the men thought them likely to fall, they pried them down. If not, they let them alone. But they knew there was a certain amount of risk in the latter course, and they themselves were the sole judges of the cases in which they should take the risk.</p> <p>Held: That the accident resulted from a risk which was inherent in the employment and was perfectly well understood by the decedent and assumed by him.</p>

<p>1. Eminent Domain — Burden of Proof. — A city being about to erect a new and modern bridge across a river, instituted proceedings to condemn an old bridge with its approaches as a location for the new bridge.</p> <p>Held: That the burden of proof rested upon the owner of the bridge to show that the title to the approaches was in it.</p> <p>2. Dedication — Proof.—Where a city seeks to show the dedication of an approach to a bridge clear proof of such dedication is required.</p> <p>3. Dedication — Bridge Company — Approaches to Bridge. — A city sought to show a dedication to the public of an approach to a bridge owned by a public service corporation. The approach in question was indispensable to the use of the bridge and the company’s control of it was essential to the discharge of its duty to the public. Therefore, the company could not expressly have dedicated the approach unqualifiedly to the city, because such dedication would have been in derogation of its charter obligation to the community at large and ultra vires and not binding upon the corporation. If this be so with respect to an express dedication, a fortiori must it be true of a dedication sought to be established by implication merely.</p> <p>4. Dedication — Validity.—The lawfulness of a dedication, like the constitutionality of a law, must depend not upon what use probably will be made of the property dedicated, but what use can be made of it by virtue of the dedication. Therefore, where a city has power under its charter to close its streets, a public service bridge company can not dedicate to the public as a street the approaches to its bridge.</p> <p>5. Bridges — Approaches—Alienation.—The approach to a bridge, being an essential and inseparable part of it, can not be dissevered, since that would deprive the public service corporation of the means of performing a non-delegable duty which it owes to the public.</p>

<p>1. Amendments — Statute of Jeofails — Pollard’s Code 190b (section $bb9). — Where a declaration contains a defective statement of a good cause of action, this is the class of error that the statute of jeofails is designed to cure.</p> <p>2. Pleading — Legal Conclusions. — An allegation of duty is only a conclusion of law; and, where the facts alleged show the duty, and are stated with sufficient clearness to prevent surprise and enable the court to proceed upon the merits of the cause, the declaration ought to be sustained.</p> <p>3. Judgment — Arrest of Judgment. — In an action against a city for personal injuries sustained by reason of an alleged defect in a sidewalk, the declaration alleged that it was the duty of the city to keep its streets sound, safe, and suitable for public use and travel, and particularly the sidewalk in question. The allegation of duty was mere surplusage, and under the provisions of sections 3246, 3449 and 3272, Code 1904, directing the court to disregard formal defects in pleading, it was no ground for a motion in arrest of judgment.</p> <p>4. Pleading — Waiver of Defects. — Where defendant pleads the general issue and goes to trial upon the merits, he thereby waives technical defects in the declaration.</p> <p>5. Pleading — Cure of Defects — Streets and Sidewalks — Duty of City. — In an action against a city for personal injuries sustained by reason of an alleged defect in a sidewalk, the declar ration alleged that it was the duty of the city to keep its streets sound, safe, and suitable for public use and travel, and particularly the sidewalk in question. If by possibility the plaintiff in error could have been injured by this surplus-age in the declaration, such injury was made impossible by the manner in which the case was conducted and the instructions of the court, which clearly and accurately defined the duty of the city to be “to exercise reasonable and ordinary care to keep its streets in a reasonably safe condition for use by persons traveling thereon in the usual modes, by night as well as by day, provided such persons are themselves exercising reasonable and ordinary care to avoid injury and danger while using the same.”</p> <p>6. Instructions — Refusal of Instruction Covered by One Given.— It is harmless error, if any, to refuse an instruction where another instruction given substantially embodies the same proposition of law as that contained in. the instruction refused.</p> <p>1. Instructions — Refusal of Instruction Covered by One Given.— Defendant in an action against the city for damages for personal injury caused by an obstruction on a sidewalk, asked the court to instruct the jury that if the plaintiff traveled on the sidewalk at the point in question after dark, knowing of the defect or obstruction in the street complained of, he was bound' to use ordinary care commensurate with the danger of which he had knowledge, taking into consideration the fact of darkness, and was required to exercise more caution in such case than if he was ignorant of the defect or obstruction and it was daylight. And if the jury believe from the evidence that the plaintiff failed to exercise such care and caution as the fact of such knowledge and of the darkness and other circumstances shown by the evidence would reasonably require of an ordinarily prudent man, he was guilty of contributory negligence. The refusal of this instruction was held not to be reversible error, where another instruction given by the court embodied precisely the same proposition of law without emphasizing the darkness, but instructed the jury that the plaintiff was required to exercise such ordinary care and caution in passing or avoiding the obstruction, complained of as knowledge of its existence and the other circumstances of the case shown by the evidence would reasonably require of an ordinarily prudent person. This, in effect, tells the jury that they should consider the darkness as well as all the other facts shown by the evidence. Among these other facts were the rain which was falling and the wind which was blowing at the time of the accident, as well as the street lights and the shadows, if any.</p> <p>8. Instructions — Refusal of Instruction Covered by One Given— Multiplication of Instructions. — It was not error to refuse an instruction where the court had already given the jury eight instructions, covering two pages and a half of the printed record, which instructions sufficiently covered every phase of the case. A multiplication of instructions tends to confuse and not to aid the jury.</p> <p>8. Instructions — Want of Evidence on Which to Base It. — It is not error to refuse an instruction where there is no evidence upon which it could properly be based.</p> <p>10. Streets and Highways — Accidents.—The general rule is that a. traveler has a right to assume that a street is in a reasonably safe condition.</p> <p>11. Streets and Highways — Negligence of City. — In an action against a city for personal injuries sustained by reason of tripping over the exposed root of a tree in a sidewalk, the negligence of the city is plainly manifested where the plaintiff’s evidence shows that the obstruction was not simply a root over which one might stumble, but was a root fully exposed with branches, one root above another, rising about eight inches above the level of the sidewalk, with an opening like a horseshoe, in which a pedestrian’s foot might be caught.</p> <p>12. Appeal and Error — Contributory Negligence. — Where the question of contributory negligence was properly submitted to the jury under well-established principles, a mere doubt as to whether the jury decided the question properly is plainly insufficient to justify a reversal of the judgment.</p>

<p>1. Streets and Highways—Obstructions—Evidence.—Where there was testimony that defendant’s employees painted a house to which a telephone wire was attached, that immediately before the painting the wires were securely fastened to the porch of the house, and, that they were seen immediately after such painting to be unfastened from the porch and the ends loosely wrapped around a tree, the jury were warranted in concluding that the unfastening was done by defendant’s employees, no other agency being shown in evidence.</p> <p>2. Streets and Highways—Obstructions—Telephone Line.—A telephone wire was originally constructed over a public road by and for the accommodation of the former owner of the land. While the defendant after its purchase of the land at no time itself made use of it, the jury were warranted in concluding that the defendant allowed it to remain there because it was of value to its property in view of its being there ready to use.' In this situation, the duty rested upon the defendant to use due care to keep the wire in a reasonably safe condition for the public to pass under it. Even though the wire was not a fixture, and for that reason, the ownership of it did not pass to defendant, yet since the wire was left to remain over the public road for the benefit of or advantage to the property of defendant, it was its duty to exercise the due care in question, although the wire at the point at which it became a nuisance was not the property of defendant.</p> <p>S. Streets and Highways—Obstructions.—Where the defendant knew that a telephone wire was sagging over a public road, resulting from its own act in unfastening it from a porch, in ample time to have abated the nuisance before an accident occurred, or by the exercise of reasonable care it could have ' so known, it was guilty of negligence in not abating the nuisance.</p> <p>■4. Streets and Highways—Duty of Traveler.—Every one has the right to presume that a public highway is in a reasonably safe condition. A traveler on a public street or road, however, is held to the exercise of ordinary care, and what is ordinary care, of course, differs in different situations.</p> <p>5. Streets and Highways — Contributory Negligence. — Where plaintiff while riding in a buggy was injured when the buggy struck a telephone wire sagging across the road, which she, or the person driving her, could have seen if they had been looking for the wire, or looking up and not on the road, the question of plaintiff’s contributory negligence was for the jury.</p> <p>6. Declarations and Admissions — Self-Serving Declarations.— Statements made by the plaintiff to a doctor as to her suffering from injuries are admissible, although she had employed him for the purpose of making him a witness in the action which she had determined to institute to recover damages for such suffering and injuries. The circumstance only goes to the weight of the evidence. The diagnosis of plaintiff’s condition, made by the doctor under these circumstances, is admissible without an instruction from the court as to the weight to be given thereto by the jury, where no instruction on the subject was asked by defendant.</p> <p>7. Expert and Opinion Evidence — Opinion of Non-Expert. — A statement of a non-expert witness that the plaintiff “seemed to be suffering and nervous,” was admissible. Not all conclusions of fact of a non-expert witness are inadmissible in evidence. If it is clear that the jurors were, or could have been, as fully and as exactly furnished with the data which formed the basis for the conclusion of the witness as the latter was, the conclusion is inadmissible in evidence;" if not, it is admissible.</p> <p>8. Evidence — Streets and Highways — Negligence of Adjoining Landowner. — In an action for injuries occasioned by the sagging of' a telephone wire across a public road, where the landowner allowed the wire installed by a previous owner to remain, testimony that the cost of installing a new ’phone would be less if the wire were allowed to remain was admissible as having a direct bearing upon the question whether the telephone wire was allowed by the landowner to remain across the public road because it was of value to its property.</p> <p>9. Streets and Highways — Negligence of Landowner — Evidence.— In an action for damages occasioned by the sagging of a telephone wire, testimony as to the condition of the wire about two months after the accident was admissible within the discretion of the court, in the absence of evidence of any change in the condition, where the lapse of time did not necessarily involve a change in the condition.</p> <p>J.O. E r enct5 — Prior or Subsequent Existence. — The general principle that a prior or subsequent existence is evidential of a later or earlier one has been repeatedly laid down, but no fixed rule can be prescribed as to the time or the conditions within which a prior or subsequent existence is evidential. The admis-. sibility of such evidence must be left'largely to the discretion of the trial court.</p> <p>11. Streets and Highways — Obstructions—Evidence.—In an action against a landowner for negligently allowing a telephone wire to sag across a public road, evidence that, as against another landowner, the telephone company claimed to own the wires connecting his house with the line, was inadmissible, it not being shown that the same contract existed between the company and the two landowners, but, on the contrary, it appearing that the telephone company did not own the wires in the case at bar.</p> <p>12. New Trial — Excessive Damages. — Plaintiff was confined in bed about five weeks as a result of the accident, and for the first year after the accident was a nervous wreck, some days being able only to work part of the day.</p> <p>Held: That a verdict of $1,000 was not excessive.</p>

<p>1. Executors and Administrators — Care to be Exercised by Executor or Trustee. — Nothing more is in general required of an executor or trustee than that he should act in good faith, and with the same prudence and discretion that a prudent man exercises in his own affairs.</p> <p>2. Executors and Administrators — Advice of Court. — Although under the terms of the will, a surviving executor had the power to sell the property of his testator without an order of court, yet he had the right, notwithstanding such power, to go into a court of equity for advice and instruction upon the proposition, and having taken that course in good faith, he is fully protected by the order of court under which he acted.</p> <p>3. Partnership — Purchasing Partner — Burden of Proof. — A partner, more intimately acquainted with the business of the partnership than his other partners, is required, when he seeks to purchase their interests, to act openly and in good faith. But the burden of proof does not rest on such purchasing partner in a suit brought by the selling partner to set aside the purchase on the ground of fraud.</p> <p>4. Trusts and Trustees — Trustee Dealing With Beneficiary — Seeking Independent Advice. — Where a beneficiary dealing with the trustee has sought and obtained independent advice from a person competent to advise as to the particular transaction, this fact will go far to give assurance of its fairness and to induce a court of equity to uphold it.</p> <p>5. Partnership — Purchasing Partner. — The managing partner in- a concern sought to buy the interest of a deceased partner from his executor. The executor not relying upon the representations of the managing partner invoked the aid and advice of a court of equity. The court upon the report of a commissioner appointed to investigate the proposition to the effect that the price offered was a good price and advantageous to the beneficiary, confirmed the report and directed the sale.</p> <p>Held: That under these circumstances the burden of proof to show fraud and undue influence would be upon the parties attacking the sale.</p>

<p>1. Demurkek — Overruling Demurrer — Special Demurrer. — By section 3272 of the Code, special demurrers are abolished in Virginia, and there is no error' in overruling a demurrer to a declaration, where the assignment of grounds of demurrer pointed out no defect not cured by this section, which provides that on demurrer no defects in the pleadings shall be regarded unless something be omitted essential to the action or defense.</p> <p>2. Pleading — Waiver of Defects — -Amendments.—After the plaintiff had rested and the defendant had introduced one witness, the court allowed the plaintiff to amend the declaration.by setting out the precise dates upon which various contracts and sales had been made, and the point was raised that the declaration as amended misjoined causes of action. The action was trespass on the case in tort and it was claimed that the third count in the declaration was in contract. Even- if the point had merit, inasmuch as defendant had failed to specify this ground in its original demurrer, and had pleaded not guilty, it had been waived.</p> <p>3. Warranty — Case.—Case is the proper remedy for breach of warranty as to the sale of personal property.</p> <p>4. Declaration — Counts—Ex Contractu or Ex Delicto. — The count in a declaration is treated as partaking of the nature of the action. So that if the action is ex delicto, the count will be intended as ex delicto also, unless there be something in its form and structure which plainly forbids such intendment. And it is not unusual for a declaration to contain allegations sufficient to support it, either in tort or in assumpsit.</p> <p>6. Actions — Joiner of Causes. — Wherever the causes of action are of the same nature and the same judgment is to be given in all, they may be joined in one declaration.</p> <p>.6. Actions — Joinder of Causes of Action. — The first two counts in the declaration in an action for damages by the vendee of personal property against the vendor clearly and plainly in tort alleged deceit, guilty knowledge and fraud. The third count alleged a breach of warranty. Each of the three counts, however, alleged the warranty and its breach, and were plainly intended to include the same general cause of action, and though the declaration was inartificially drawn it was so framed that, the defendant could not possibly have been deceived as to thesubjeet of the controversy.</p> <p>Held: That there was no misjoinder.</p> <p>7. Warranty — Election of Remedies. — Where an action is based' upon a breach of warranty, the purchaser may, if he chooses,, waive the tort and sue upon the contract, or waive the contract and sue in tort.</p> <p>'8. Amendment — Amendment During Trial. — In an action for dam-ages for fraud and breach of warranty in the sale of defective roofing, the dates of the several sales were each alleged in the declaration under a videlicet. The defendant knew the precise dates of each sale, and after one of its witnesses had supplied those dates the court permitted each count in the declaration to be amended by the insertion of the precise dates. Such amendments were not material, and if they were, were fully authorized by section 3384 of the Code, and the act of March 27, 1914 (Acts 1914, ch. 331, p. 641).</p> <p>9. Amendments — Lili eral Construction of Statute. — Code of 1904, section 3384, and act of March 27, 1914 (Acts 1914, ch. 331, p. 641), are remedial and must be liberally construed to advance-the remedy and avoid the evils which they seek to cure.</p> <p>10. Amendments — New Cause of Action. — In an action for damages by the vendee of personalty against the vendor involving several different sales, the court during trial allowed the declaration to be amended by the addition of the precise dates of' each sale. It was objected that because the sales were made on different dates, each sale and warranty constituted a different and new cause of action. As, however, from the institution of the action, the cause of the controversy was clearly and distinctly understood by both parties, and the case made-by the amendments was the same case referred to in the declaration, namely, the breach of the vendor’s warranty, it was. held that there was no force in this objection. It would seem clear that it was the duty of the vendee to join all of his causes. of action in one declaration, but if not his duty, it was certainly his right.</p> <p>11. Actions — Joinder of Actions. — A plaintiff may join all his causes of action in one declaration, if in separate suits he can recover on each in the same form of action, although the several causes, of action are distinct rights of action so that a judgment in one will not bar a recovery for the other. This rule is, however,, subj ect to the qualification that the causes of action must be - in the same right.</p> <p>12. Actions — Joinder of Actions. — Even where the torts are distinct and independent, if they are of the same nature and if the - same judgment may be given in each, they may, as a general rule, be joined.</p> <p>13. Breach op Warranty — Remedy.—Either an action on the case sounding in tort or assumpsit will lie for a false warranty.</p> <p>14. Warranty — Scienter.—Whether the declaration be in assumpsit or tort it need not aver a scienter. And if the averment be made it need not be proved.</p> <p>15. Appeal and Error — Instructions.—Where instructions are contradictory and inconsistent, but the erroneous instructions were granted by the court at the instance of the party complaining of the instructions, he can not complain of that as error which could not possibly have injured his cause.</p> <p>16. Trial — Jury—Instructions.—In an action for breach of warranty the jury, while considering their verdict, returned to the court room and asked whether or not they were limited in deciding the case of the typewritten guarantee introduced in evidence. The court replied that they were not; that they “must take into consideration the oral evidence, the letters and written guarantee, and to decide from all the evidence what the contract was and a breach of it, if any, and the damages, if any.” The typewritten guarantee was only a part of the evidence, but a material part, to be interpreted in the light of the circumstances under which it was given, the letters contemporaneously and subsequently written, the construction put upon it by the parties themselves, and the pertinent oral evidence indicating a breach or lack of breach. As the court could not have made any complete reply to the question without fully re-instructing the jury upon all the questions involved in the case, the reply of the court was not harmful.</p> <p>17. Warranty — Implied Warranty. — When one sells an article of personal property, there is an implied guarantee that it shall be reasonably serviceable and fit for the peculiar uses to which the vendor knows it is to be put.</p> <p>18. Warranty — Implied Warranty. — The seller of roofing, knowing that the roofing was intended for buildings required to be watertight, implied guarantees that such roofing is water-tight.</p> <p>10. Warranty — Construction.—Where in the contract of sale of roofing the vendor undertook in case the roof should leak, that he would make repairs, a guaranty is necessarily implied that the roof would not leak.</p> <p>20. Parol Evidence — Warranty.—Testimony which does not seek to vary or contradict a written guaranty, but which accords with it, showing the attending circumstances, the construction placed upon it by the parties and their subsequent conduct with reference thereto is admissible.</p> <p>21. Appeal and Eeeoe — Harmless Error. — Since the act of March 27, 1914 (Acts 1914, ch. 331, p. 641), this court should extenc the doctrine of harmless error to its logical conclusion, namely, that error is harmless which does not injuriously affect the interests of the party complaining, and that such injury is not presumed, but must affirmatively appear from the record; for that act in simple and unambiguous language directs the courts, at every stage of the. proceeding, to disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.</p> <p>22. Appeal and Eeeoe — Harmless Error. — In this court the doctrine of harmless error has been frequently announced and enforced in many cases where there has been a misdirection of the jury, a refusal to grant proper instructions, where evidence has been illegally admitted, and where there have been mistakes and errors in pleading.</p>

<p>1. Streets and Sidewalks — Acceptance of Street by Town — Question for Jury. — A survey and map of an unincorporated town was duly recorded and expressly referred to in the act of incorporation of the town thus answering the statutory requirements of Virginia Code 1904, section 1014. An action was brought by plaintiff for personal injuries caused by a defective board walk. The contention on behalf of the town was that the point at which the accident happened was originally an approach built by a railroad to a pleasure pavilion, and not a public street. The contention of the plaintiff was that the board walk was an extension of one of the original streets of the town, and that it had long been constantly used by the public and accepted and maintained by the town as a street. It .appeared that the town did some repairing to the sidewalk in question. The case was fairly submitted upon this simple issue of fact, which the jury, upon conflicting evidence, resolved in favor of the plaintiff, and their verdict was approved by the trial court.</p> <p>Held: That the verdict should not be disturbed.</p>

<p>1. Contracts — Construction — Special Enumeration Followed by General Words — Ejusdem Generis. — Under the ejusdem generis rule, applicable to the construction of written instruments, if a contract specifically enumerating losses from which a party is to be exempt is followed by words of general classification, the general words will be construed to mean other losses of the same kind as those enumerated.</p> <p>2. Contracts — Construction—Ejusdem Generis Rule. — The ejusdem generis rule is invoked only for the purpose of ascertaining the intent and meaning, of the language under consideration, and should not be applied so as to do violence to the language employed in the instrument.</p> <p>3. Contracts — Construction — Case in Judgment — Application of Ejusdem Generis Rule. — In the case in judgment, the contract provides that the defendant “shall not be held responsible or liable for any loss, damage, detention or delay caused by fire, .strike, civil or military authority, or by insurrection or riot, or by any other cause which is unavoidable or beyond its reasonable control, or, in any event, for consequential damages.”</p> <p>Held: The words “or by any other cause which is unavoidable or beyond its reasonable control” should be restricted to causes of like nature with those enumerated, but the clause “or, in any event, for consequential damages” should not be so restricted, and the defendant should be exempt from “consequential damages” whether of like nature or not.</p> <p>4. Damages — What a/re “Consequential Damages” — Case in Judgment. — Consequential damages arise when certain special facts .are known to the defendant at the time of the contract .which would give notice to him that a breach of the contract would result in an otherwise unexpected loss. If the special circumstances are communicated to the defendant the damages resulting from the breach of such contract might reasonably be presumed to be contemplated by the parties and may be recovered by the plaintiff unless there is an agreement between the parties with reference to the damages. In the case in judgment, the agreement between the parties exempted the defendant from liability for such damages.</p> <p>5. Interest — When Allowed — Actions on Contracts. — In Minor’s Inst., Yol. 4, part 1 (ed. 1878), p. 739, it is said that “when the action is founded upon a promise, express or implied, to pay money at a given day, interest on the principal sum from that day is a legal incident of the debt, and the right to it founded on the presumed intention of the parties. It is further the established doctrine with us, that wherever there is thus a contract, express or implied, to pay interest, the obligation extends to the payment of the interest, as well as of the principal sum, and neither courts nor juries have, or ever had, the arbitrary power to dispense with the performance of either branch of the contract.”</p> <p>On Rehearing.</p> <p>6. Damages — What are “Consequential Damages.” — Consequential damage is such damage, loss, or injury as does not flow directly or immediately from the act of the party, but only from some of the consequences or results of such act. Consequential damage must in fact and effect remain the same, whether in the contemplation of either or both parties or not. It is, however, only when such damages are contemplated by both parties that they are recoverable. This mutual contemplation makes them recoverable, but does not change their character from consequential to direct damages. If the consequences are known, or such as ought to be known, to the seller when the contract is made, he will be liable unless he provides against them in the contract. If they are not such as he knows, or ought to know, will follow a breach, he will not be liable. It would, therefore, be vain and useless to contract against liability “in any event for consequential damages,” unless the term is to be construed to refer to consequences in contemplation when the contract is made. Hence, it must follow from the foregoing postulate that the mere fact that consequential damage might result from delay in deliveries of the articles sold was contemplated by the parties at the date of the contract could not ipso facto convert such damage into direct damage; and any argument based upon that false premise cannot be sound.</p> <p>7. Interest — When Allowed — Actions on Contract. — Section 3390 of the Code of Virginia is as follows: “The jury, in any action founded on contract, may allow interest on the principal due, or any part thereof, and fix the period at which such interest shall commence, and in any action, whether on contract or tort, the jury may allow interest on the sum found by the verdict or any part thereof, and fix the period at which interest shall commence.” The declaration contained the common counts in assumpsit and also a special count upon the contract, and the evidence was such as to have made it possible for the jury to find for the plaintiff, either upon the special contract, or upon the general assumpsit. Under all the circumstances of the case, the statute above quoted applied, and the jury had the right, in their discretion, to fix the date from which the interest should begin to run. Consequently, a peremptory instruction of the lower court to the jury that if they found for the plaintiff they should allow interest from the time the plaintiff’s demand accrued, under the terms of the contract, was in conflict with the statute above quoted, and was such an invasion of the province of the jury as to constitute reversible error.</p> <p>8. Appeal and Error — Remittitur.—Where the lower court erred in peremptorily directing the jury to allow interest to plaintiff from the time the plaintiff’s demand accrued, where under section 3390 of the Code such allowance of interest was discretionary with the jury, the appellate court may affirm the judgment on condition that plaintiff relinquish the interest upon the principal sum found by the jury.</p>

<p>1. Trial — Reopening Case. — In an action for personal injuries occasioned by a collision between a street car and an automobile, defendant street railway company, after the evidence had been concluded and plaintiff had rested and concluded her case, demurred to the evidence, because no proof had been offered as to the ownership of the street car which collided with the automobile. The trial court allowed plaintiff to reopen the evidence and prove the ownership of the street car. In this there was no error. At that stage of the proceedings they were within the control of the trial court, and it was the duty of the judge to permit the plaintiff to prove a fact which had been inadvertently omitted, but about which there was no doubt whatever. Had the court refused to do so, it would have been reversible error. Matters of this sort are within the discretion- of the trial court and will not be reviewed unless such discretion is exercised in an arbitrary or obviously improper manner.</p> <p>2. Imputable Negligence — Passenger in Private Vehicle. — Where a passenger is in a private vehicle by invitation and is exercising no control over the driver, the negligence of such driver cannot be imputed to the passenger. If precluded from recovery it must be because of his own- negligence.</p> <p>3. Automobiles — Imputable Negligence. — The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver.</p> <p>4. Automobiles — Imputable Negligence — Husband and Wife. — The negligence of a husband driving an automobile is not, as a general proposition, imputable to his wife merely because of the marital relation; nor is the negligence of the driver of an automobile imputable to his guest merely because he is riding with him by invitation.</p> <p>5. Imputable Negligence — Bailor and Bailee. — The negligence of a bailee of property, over whom the bailor is exercising no control at the time of the injury, is not imputable to the bailor.</p> <p>6. Imputable Negligence — Master and Servant. — The negligence of the servant is imputed to the master, because the master employs and can discharge the servant and direct his actions.</p> <p>7. Imputable Negligence — Husband and Wife — Contributory Neg- ■ ligenee. — The wife owned an automobile. Her husband at work in another city from his home borrowed it from her. The husband had had possession of the automobile for about a week when his wife visited him, and while riding in the automobile driven by her husband was injured in a collision with a street car. The wife was on the front seat, on the side of the automobile from whieh the street car was approaching, half turned, so that she could not see the approaching street car, talking from time to time with a guest.</p> <p>Held: That the negligence, if any, of her husband, could not be imputed to her, and that she was herself guilty of no negligence.</p> <p>8. Husband and Wipe — Obligation of Wife. — Notwithstanding the advances made by modern women towards political and economic independence of man, it still remains true that the normal woman married to the normal man recognizes the obligation of obedience contained in the marriage vow, and observes the Pauline injunction to remain subject to her husband.</p>

•Error to a judgment of the Circuit Court of Norfolk county, in am action of trespass on the case. Judgment for the plaintiff. Defendant assigns error.

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

<p>1. Executors and Administrators — Execution of Trust — Advice of Court. — Where property is held under a trust by his testator at the time of his death, which vested in him no discretion as to the time or manner of its disposition, an executor is charged with the duty of “executing the trust or so much thereof as remained unexecuted,” under the provisions of section 3419 of the Code, and where a difference of opinion arises between him and the beneficiaries of the trust as to what were the rights of his testator in the matter of compensation, he may seek the aid and advice of a court of equity as to the respective rights of the parties. The subject of the suit was in the nature of a final accounting and settlement upon a trust fund, involving disputed claims, and the executor followed a recognized and approved practice in seeking the aid and advice of a court of equity.</p> <p>2. Executors and Administrators — Trusts—Compensation of Executor or Trustee. — When a testator fixes the compensation for an executor or trustee under his will, and the executor or trustee named therein accepts the appointment, he is entitled to as much and is limited to as little as the testator has fixed. In cases where the language of the testator is susceptible of more than one construction, the question becomes one of interpretation which the courts must settle by ascertaining the probable intention and understanding of the parties. Where no compensation at all is named in the will, the rule is that the allowance shall be reasonable, being usually 5 per cent, on receipts, subject to increase or reduction of this rate under peculiar circumstances.</p> <p>S. Executors and Administrators — Trusts—Compensation of Trustee or Executor. — Testator gave his executor certain bank stock in trust, and also gave him the sum of $500 as compensation for his services. The executor was the testator’s intimate personal friend and legal adviser who drew the will. Notwithstanding this specific bequest of- $500 as compensation for his services, the executor collected 5 per cent, commission on the first $300 and 2 per cent, commission on the remainder of the book valuation of the hank stock. He also collected 5 per cent, on most but not all of the dividends paid to him under the trust.</p> <p>Held: That this interpretation of the 'will by the executor was entitled to no small consideration; and, that what would appear to be the correct interpretation of the will had been put into practical effect by the man whom the testator trusted with its preparation and execution. No further allowance based upon the increased value of the stock at the end of the trust should be allowed.</p> <p>4. Appeal and Error — Costs.—It is unusual for the court of appeals to modify a decree in respect to costs, and allowances in the nature of costs, while affirming it in all other particulars, unless in case of palpable error.</p> <p>5. Executors and Administrators — Costs.—Where upon the death of an executor and trustee his executor being charged under Code 1904, section 3419 with executing the trust, in good faith, brings suit to determine the rights of the beneficiaries and. his own testator, he is entitled to his costs in the lower court and a reasonable allowance as an attorney’s fee. Such a case presents an exception to the practice noted in the preceding syllabus. But as in the case at bar the executor was not the party substantially prevailing upon appeal, he was not entitled to costs in the appellate court.</p>

<p>1. Sales — Parol Evidence. — A contract of sale provided, that the subject of the sale, a steam engine, should be delivered f. o. b. Suffolk. It was the duty of the Court to construe the written contract. Parol evidence was inadmissible to show that the contract required the delivery of the engine in Norfolk.</p> <p>2. F. o. B. — Sales.—Where qualifying words are used in connection with the words “free on board” or “f. o. b.,” then the contract may be construed to have a different meaning, but where referring to shipments by rail, the words “free on board,” or the letters “f. o. b.” a certain place, are used, without any other words in the contract indicating a qualification of their meaning, they mean that the subject of sale is to be placed on board cars for shipment without any expense or act on the part of the buyer, and that'as soon as so placed the title is to pass to the buyer, and the property be wholly at his risk, and such words are not open to construction.</p> <p>3. Parol Evidence — Contract of Sale — F. O. B. — Where a contract of sale is f. o. b. a certain point, evidence is admissible to show that it was understood between the parties that certain more specific directions were to be given. As for example, where the contract of sale only gave the word “Norfolk” as the destination, it might have been proper, if the case had turned upon that point, to permit parol evidence to the effect that the subject of the _ sale was to be shipped by a certain carrier, destined for the plant of the purchaser, within the delivery limits of the carrier at Norfolk. Such evidence would not contradict the written agreement, but would be consistent with it. But the case at bar did not depend upon this question, because the purchaser repudiated the contract before the engine reached Norfolk, and there was no contradiction of the vendor’s statement to the effect that the carrier would have delivered it free of charge at purchaser’s plant.</p> <p>4. Witnesses — Cross-Examination—Reason for Repudiating Contract of Sale. — A buyer testified that owing to delay in delivery he had been obliged to buy another engine in place of the one contracted for with the seller. Upon cross-examination he was asked what price he paid for this engine. This question was proper, both to show the entire transaction, part of which had been introduced in the interest of the buyer, as well as to show the motive which, might have possibly influenced the buyer in repudiating his contract.</p> <p>5. Sales — Delivery.—Where a contract of sale required the engine to be shipped “at once,” and there was no delay which the utmost diligence of the seller could have avoided, the contract was sufficiently complied with. In this case shipment was made within two days, as soon as the railroad furnished a car.</p>

<p>Error to an order of the Circuit Court of Prince William county, on a motion against George G. Tyler, clerk of court. Judgment for movant. Defendant assigns error.</p>

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

<p>1. Crossing—Contributory Negligence—Absence of Sign—Evidence of Abandonment.—A railroad track across a highway is itself a proclamation of danger, and travelers approaching such crossing on the highway must exercise proper precautions for their own safety. Even though the company may be guilty of negligence, the traveler can not recover if his own neglect to take such proper precautions proximately contributed to his injury. In order to constitute such proclamation of danger, however, the cor.ip"’'; not do, or omit to do, anything which is likely to disarm the traveler and reassure him of his safety. The reason of the law fails if the tracks in fact and beyond all question have been abandoned. If the rails were so covered with earth as not only to be invisible on the highway bed, but to convey the impression that the track was not in use by trains; if, in addition to this, the rails themselves were rusty, obscured by vegetation growing close to them; and if there was no crossing signal board, as required by Code of 1904, section- 1249-d, sub-section 49; then these combined circumstances presented a question to be submitted to the jury to determine whether or not a prudent man exercising due care commensurate with the danger to be apprehended, in approaching such a track, would apprehend danger, or would feel assured of his safety because of the absence of the crossing sign, together with such other surrounding conditions.</p> <p>2. Crossings — Abandonment of Road. — Concealed, dirt-covered, small and rusty rails, with undergrowth near the railroad track on a much-traveled dirt highway, are insufficient to justify the assumption that the railroad track had been abandoned; but when the impressions created by these indications of abandonment were confirmed by the absence of the warning sign, which is both customary and required by the statute,</p> <p>it can not be maintained as a conclusion of law that the court erred in submitting the question to the jury.</p> <p>3. Crossings — Sign—Sub-Section 49 of Section 1349-d, Code of 1904- — Defendant railroad company was guilty of negligence in failing to construct and maintain the proper signal board at the crossing where plaintiff was injured, as required by sub-section 49 of section 1249-d, Code of 1904. This provision is mandatory and requires crossing signs to be erected and maintained. The object of the statute is to protect human life, and as the injury to the plaintiff was especially such as the maintenance of the sign board was intended to prevent the pesumption arises that the injury may have been caused by such neglect, unless the plaintiff’s own fault is manifest. Whether this negligence was or was not the cause of the injury must be determined from all the facts and circumstances of the case.</p> <p>4. Negligence — When Question for Jury. — Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw one inference therefrom. If fair-minded men, from the proofs submitted, may honestly differ, as to the negligence charged, the question is not one of law, but one of fact to be determined by the jury under proper instructions from the court.</p> <p>5. Appeal and Error — Harmless Error — Failure to Instruct as to Burden of Proof. — In an action for personal injuries against a railroad company, the court, through inadvertence, failed to read an instruction to the jury, referring to the burden of proof, which the court at the request of the defendant intended to read. The court certified, however, that the case was argued before the jury by the opposing attorneys upon proper assumptions as to the burden of proof as stated in the instruction.</p> <p>Held: That while such an inadvertence might and would probably be reversible error as to many instructions, and in most cases, yet as it is inconceivable that the competent attorneys who argued this case left the jury in any doubt whatever as to the burden of proof, there is no reason to suppose that the railroad company was injured by the inadvertence of the judge.</p>

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

<p>1. Contracts — Failure of Consideration — Misrepresentation.—Defendant purchased from plaintiff under a written contract a copyrighted advertising plan and certain goods and supplies to be used in connection therewith, giving his notes in payment therefor. Plaintiff gave his bond to secure a refund to defendant, if defendant’s sales were not increased in the following year to a certain fixed sum. But this agreement for a refund in ease defendant’s sales were not increased to the named sum were based on a representation of defendant as to ' sales -the past year, which was admittedly false.</p> <p>Held: That in an action on the notes there was no merit in the defense and that defendant’s sales did not reach the sum named in the contract.</p> <p>2. Contracts — Failure of Consideration — General Issue. — It was . urged by defendant that, independent of the special written contract, there was a general agreement and undertaking by the plaintiff to increase the defendant’s sales for the year following the purchase of the advertising plan, and that, as no increase in fact resulted, there was a total failure of consideration.</p> <p>Held: That this defense, if sound, could be availed of under the general issue; but that to adopt this contention would be to make a new contract for the parties. There was no evidence of any agreement to increase the defendant’s sales, except as set forth above; and the defendant could not prevent the collection of his notes by setting up the plaintiff’s failure to comply with a stipulation which was induced by his own misrepresentation of a material fact.</p> <p>3. Contracts — Sales of Advertising Scheme — Consideration for Notes. — There was ample consideration for the notes. Although the scheme contemplated giving away the articles of merchandise as premiums or prizes, yet these articles and the services furnished hy the plaintiff in connection with the advertising scheme, represented property and value.</p> <p>4. Sale op Advertising Scheme — Sale to Competitor. — Where there was no provision in the contract against sales to competitors of the defendant, the fact that plaintiff had sold the same scheme to a competitor of defendant was no defense against his action, although the buyer testified that he understood from the seller’s salesman that no similar scheme would be placed with any other merchant near him.</p> <p>5. Appeal and Error — Record.—Although counsel for the defendant suggested in his brief and in the oral argument that the record before the court was inadequately and imperfectly made up and was not just to the defendant, it is obvious that the court must dispose of the ease on the record as it came before it.</p>

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

<p>1. Bills and Notes — Extension of Time of Payment by Holder.— By the common law and the negotiable instruments law, Code of 1904, section 2841, sub-section 120, sub-division 6, a party secondarily liable on a negotiable instrument is released, “By any agreement binding upon the holder to extend the time of payment or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable or unless the right of recourse against such party is expressly reserved.”</p> <p>2. Bills and Notes — Extension of Time of Payment — Burden of Proof. — Where the defense to an action on a negotiable instrument is a release by such an agreement, the burden of proving the existence of the agreement rests upon the defendant.</p> <p>3. Bills and Notes — Extension of Time of Payment by Holder— . What Constitutes Such an Agreement. — The agreement in question contemplated, by the above statute and by the rule at common law which it enacts, need not be express. It may be implied from acts, declarations, facts and circumstances. Its form is immaterial. It may be by parol as well as in writing. It must, however, be a binding contract, enforceable at law or in equity. It must be supported by a valuable consideration. It must be for a definite period, however short. When implied in law it is still a contract in fact and not in law, and hence an actual meeting of the minds of the contracting parties is essential to such an agreement, to bring it within the operation of the statute and common law rule.</p> <p>4. Bills and Notes — Extension of Time of Payment by Holder — ■ Existence of Agreement a Question of Law or Fact. — In every case where the existence of an agreement such as mentioned in the statute is relied on by a person secondarily liable as a discharge of such liability, the question of the existence of such an agreement is a mixed question of law and fact; and when the mutual agreement is to be gathered from the acts of the parties, their situation and the surrounding circumstances, it is for the jury to determine what were the intention and understanding upon which the minds of the parties met. If the facts and circumstances are all ascertained, whether they constitute such an agreement is, of course, a question of law for the court.</p> <p>5. Bills and Notes — Extension of Time of Payment by Holder-— Payment of Interest in Advance. — While payment and acceptance of interest in advance is not in itself an agreement to extend the time of payment of the obligation on which the interest is paid, yet it is evidence tending to prove-the existence of such an agreement, and in the absence of any other evidence bearing upon the negative of the question, such payment and acceptance of interest affords prima facie evidence of the existence of such an agreement. However, when there is other evidence such as the acts, situation of and circumstances which surround the parties, but slight evidence to the contrary will rebut the-prima fade case made by the evidence of payment and acceptance of interest in advance.</p> <p>6. Bills and Notes — Extension of Time of Payment by Holder — ■ Payment of Interest in Advance — Case at Bar. — The instant case was not submitted on the bare facts of payment and acceptance of interest in advance. All the officers of the plaintiff and its assignor bank testified in rebuttal of the prima fade case which such payment and acceptance might otherwise have made out. This and the evidence as to the situation of the parties, their relations to each Other and the surrounding circumstances warranted the jury in finding that there was not -in fact any meeting of the minds of the maker and holders of the note sued on upon any agreement to extend the time of payment or to postpone the right to enforce the note sued on.</p>

<p>1. Contributory Negligence—General Buie.—Wherever the negligence of the plaintiff contributes proximately and efficiently to his injury, there can be no recovery.</p> <p>2. Carriers op Passengers—Contributory Negligence.—Plaintiff accompanied, as care-taker, two new locomotives (dead engines) over the line of the defendant company. His fare as a passenger was paid, and he traveled in one of the engines, both of which were being hauled on their own wheels as parts of a through freight train. Plaintiff inquired of the conductor when and where the train would stop, so as to give him an opportunity to oil his engine. The conductor replied that, there would be frequent stops and plaintiff would have ample time to oil and inspect the engine. The train stopped for a moment on an automatic block signal. Plaintiff, without communicating with the train crew, within a minute after the train stopped, alighted from the cab of his engine and stood on the piston-rod, for the purpose of examining and oiling the engine..</p> <p>Held: That plaintiff was guilty of contributory negligence, which barred his recovery for injuries occasioned by the starting of the train while he stood upon the piston-rod.</p>

<p>1. Fires—Measure of Damages—Cost of Replacing Houses.—Defendant railroad, in an action for the destruction of buildings by fire, requested the court to instruct the jury that the measure of damages for houses destroyed by fire was “the value of such houses at the time and place of destruction-, and that the cost of replacing the houses is not the proper measure of damages in such case and should not be considered by the jury in estimating damages.” The court substituted, for the language after the word “destruction,” “and the cost of replacing the houses is not by itself the proper measure of damages in such case but should be considered by the jury in estimating damages.”</p> <p>Held: That this modification did not constitute prejudicial error, if error at all.</p> <p>2. Fires—Measure of Damages—Personal Property.—In such an action defendant requested the court to instruct the jury that the measure of damages for personal property destroyed was the market value of such property. The court modified the instruction by substituting the words “proven value” for “market value.”</p> <p>Held: No error, it not appearing that there was any market value for the property, and the evidence of the plaintiffs establishing the proven value being practically unchallenged by the evidence on behalf of the defendant.</p> <p>8.- Fires—Damages—Evidence of Adaptability of Property Destroyed for a Particular Use.—In an action for the destruction of property by fire, evidence is admissible as to the location of the property destroyed with reference to its ádaptability for school and other purposes. The measure of damages is the market value of the property at the place where it is located; and if the uses to which it had been devoted and for which it was available, together with its location, tended to increase its market value, there is no rule of law or reason why these elements of value should be excluded from the consideration of the jury.</p> <p>4. Fires — Damages—Evidence of Sentimental Value. — The rights of the defendant were safe-guarded with respect to the evidence of plaintiff attaching a sentimental value to two portraits destroyed by fire, where the court instructed the jury that in estimating damages, they could not take into consideration any sentimental value attached to the property by its owners.</p> <p>5. Fires — Damages—Conflicting Instructions. — The court instructed the jury that in ascertaining the value of the family portraits, wearing apparel, and other articles mentioned in plaintiffs’ bill of particulars, which had a peculiar value to plaintiffs, they must determine from all of the evidence what was the reasonable monetary value of such property taking into consideration the cost thereof, the possibility of replacing the same, the cost of replacing the same, where possible, and the plaintiffs’ relation to such property and fix such proven value as will fairly compensate plaintiffs for the loss thereof.</p> <p>Held: That this instruction was not in conflict with the previous instruction that the jury should not take into consideration any sentimental value attached to the property by its owners.</p> <p>6. Hearsay Evidence — Expert and Opinion Evidence — Memorandum. — In an action for the destruction of property by fire, exception was taken to the introduction of certain plans of the dwelling house by the plaintiff, because made by an expert, from information derived from plaintiff. The plans were not relied on as possessing any probative value, but were merely employed by way of illustration by the opinion witnesses; and besides, the opinions of the experts were shown to have been predicated upon the truth of plaintiff’s testimony.</p> <p>Held,: That there was no force in the exception.</p> <p>7. Witnesses — Memorandum.—Plaintiff, in testifying to the value of the personal property, used an inventory of the articles destroyed. This inventory was prepared in part from information derived from other persons. As the inventory was not introduced or relied on as evidence, but was used as a memorandum by the witness while testifying before the jury, an exception to its use was without merit.</p> <p>8. Appeal and Error — Harmless Error — Introduction of Evidence.— Many years prior to the fire plaintiffs had the complete equitable title to the property destroyed. Defendant excepted to the introduction of a deed to plaintiffs made after the action was brought.</p> <p>Held: That the action of the beneficial owner to recover damages for injury to the property by fire could have been maintained as well without the deed as with it. So that, even if the deed was erroneously admitted, the error was harmless.</p> <p>9. Constitutional Law — Construction of Act by Court. — The constitutionality of a statute cannot be made to depend upon the construction put upon it by the court. If an act be constitutional upon its face, it cannot be made unconstitutional by an erroneous interpretation or an improper application of it by the court.</p> <p>10. Instructions — Not Based on Evidence. — The trial court is warranted in refusing to give an instruction, where there is no evidence upon which to base it.</p> <p>11. Fires — Damages.—In an action for property destroyed by fire, the jury may consider separately damages for the destruction of the buildings from damages to the freehold.</p> <p>12. Fires — Weight and Sufficiency of Evidence. — Where the circumstances justify the jury in finding that the fire was set . out by the defendant’s engine, greater particularity of proof is not required.</p> <p>13. Fires — Constitutional Law. — The Act of the General Assembly (Acts 1908, p. 388), declaring the liability of railroads for damages from fires occasioned by sparks or coals dropped or thrown from an engine or train, is constitutional.</p>

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

<p>1. Bills and Notes — Endorsers—Evidence of Agreement Among Endorsers. — A note was signed by a Farmers Mutual Exchange and appellants. Appellants testified that they signed the note with the understanding that none of them should be liable until it was brought back to them for their endorsement, and that it was to be entirely optional -with them to place their names on it or not, as they might finally prefer. This testimony was objected to by the appellee, a bank, the holder of the note in due course, who under the evidence was warranted in treating appellants as endorsers.</p> <p>Held: The objection was well taken, as a holder of the note in due course could not be affected by such an understanding.</p> <p>2. Bills and Notes — Endorsers—Place of Signature. — The endorsement, as its derivation and meaning, would indicate, is generally made by -writing the transferer’s name on the back of the paper, but it may be written- — although unusual and irregular — on any other portion of it, even on the face and under the maker’s name. The position of the signature of an endorser upon a negotiable note is not in itself conclusive of the purpose of the signature. This is expressly recognized in section 2841-a, sub-section 17, clause 6, Code of 1904, which provides that where a signature is so placed upon an instrument that it is not clear in what capacity the person signing the same intended to sign, he is to be- deemed as endorser. Undoubtedly, the names of endorsers usually appear on the back of the paper, but they may appear elsewhere without offending against the regularity required by the negotiable instruments law.</p> <p>3. Bills and Notes — Regularity.—Appellants were members of a Farmers Mutual Exchange. Anticipating that the approaching crop season would call for money with which to handle the crops of its members, a committee was appointed to solicit endorsers for a loan. A note was prepared and sent out from the office of the Exchange. The body of the note and the signature of the Exchange appeared in type; then followed the names of twenty individual members (appellants), some immediately under the signature of the maker and some in another column to the left. It was contended that the note showed upon its face that it was invalid because it appeared to be signed by the Exchange and appellants as joint makers, payable to the order of themselves and not endorsed by them.</p> <p>Held: That the substance and essence of the transaction as a whole did not, as against the bank, the holder in due course, justify this contention. The appellants manifestly did not at any time mean to become bound otherwise than as endorsers.</p> <p>4. Bills and Notes — Liability of Maker. — Those who execute negotiable paper and set it afloat are chargeable with a much higher degree of diligence and caution than those who purchase such paper in due course of commercial transactions.</p> <p>5. Bills and Notes — Endorsement—Separate Paper. — Where the maker of a note forwarded it to a bank accompanied by a letter, in which it was stated that the maker did assign and deposit the note as collateral security to secure the bank against any loss by overdraft of the maker, the signature of the maker to the letter of assignment was a sufficient endorsement under Code of 1904, section 2841-a, sub-section 31, which provides: “The endorsement must be written on the instrument itself or upon a paper attached thereto.”</p> <p>6. Bills and Notes — Assignment as Collateral — Holder in Hue Course. — The fact that the note was assigned as collateral security did not make the transfer any the less effective. It is settled in Virginia that such a transfer constitutes the transferee a holder in due course.</p> <p>7. Bills and Notes — Assignment as Collateral — Deposit.—Subsequent to the assignment of the note as security for overdrafts, the maker gave the bank written instructions to place the note to its credit.</p> <p>Held: That this in no way invalidated the endorsement previously made by the assignment. The original endorsement completed the title of the bank as a bona fide holder of the note, and it was perfectly competent for the maker and the bank to thereafter agree to change the original purpose for which the transfer was made. .</p> <p>8. Bills and Notes — Negotiation of Demand Note — Reasonable Time. — Code of 1904, section 284i-a, sub-section 53, provides that “when an instrument payable on demand is negotiated an unreasonable length of. time after it is issued, the holder is not deemed a holder in due course.” What is a reasonable time for ány purpose depends always upon the facts of the particular case. In. the case at bar, a note dated August 24, 1911, payable on demand, was not discounted until October 31, 1911. The note was given in anticipation of its use to raise money for the purpose of handling the season’s crops, when and as such use might be necessary.</p> <p>Held: That there was no unreasonable delay in negotiating the note.</p> <p>9. Documentary Evidence — Bills and No-tes — Action Against Endorsers. — The minutes of the meetings of the board of directors of a Farmers Exchange, and copies of correspondence obtained from its files, relating directly or indirectly to the note in question, were admissible in an action against the endorsers, all of whom wer.e either stockholders or directors of the Exchange.</p> <p>10. Confession of Judgment — Warrant of Attorney. — A warrant ■ of attorney contained in a note did not designate the person in whose favor the judgment was to be confessed.</p> <p>Held: A confession of judgment by an attorney under this warrant in favor of a bank, the holder of the note in due course, was valid, it appearing from the record and otherwise that before the judgment was taken the appellants all knew that the bank had the note, was looking to them for payment and had been notified by one of the endorsers to sue on the note.</p>

<p>Error to an order of the Circuit Court of the city of Richmond, awarding a peremptory mandamus.</p>

<p>1. Taxation — Constitutional Law — Validity of Limitation on Time within which Omitted Taxes May he Assessed. — Code of 1904, section 508, as amended by act of March 22, 1916, chapter 491, section 1, sub-section 2, page 826, providing that, “No municipal, county or district tax shall be levied or collected on any assessment of intangible personal property, money or incomes for taxes alleged to have been omitted from the assessments for the years prior to nineteen hundred and twelve,” is constitutional. This amendment to section 508 was intended as a statute of repose, and while it may result in releasing some just obligations and in permitting some intentional wrongdoers to escape taxation which ought to have been imposed upon them, the purpose of the amendment was a just one and the result, in the main, is for the public good.</p> <p>2. Constitutional Law — Power of Legislature — General Rule as to Validity of Statutes. — The legislature represents the sovereign authority of the people, except so far as restrictions are en- ■ forced by the Constitution in express terms or by strong implication. We look to the Constitution of the State, not for grants of power, but for limitations. When the prohibition is not found in the language of that instrument, or in its frame-work and general arrangement, there is no solid ground to pronounce the enactment void. The infractions must be clear and palpable.</p> <p>S. Ex Post Facto Laws — Definition.—Eo; post facto laws relate to criminal proceedings which inflict punishments or forfeitures and not to civil proceedings which affect- private rights retrospectively.</p> <p>4. Constitutional Law — Retrospective Law. — There are no constitutional inhibitions against the passage of retrospective laws as such. They are not favored by the courts, but to be invalid they must impair the obligation of contracts, destroy vested rights or fall within the definition of ex post facto laws.</p> <p>6. Constitutional Law — Due Process of Law — Vested Bights— Taxation. — The act of March 22, 1916, referred to in the first headnote, is not unconstitutional as depriving the political divisions of the State of property without due process of law. The incipient right to assess omitted property, as conferred by section 508, Code 1904, does not fall within the meaning of a vested property right as recognized by the authorities. The mere existence of a general law which might have been availed of to reduce to a state of property an incomplete right, affords to those who have not perfected their rights thereunder no ground for complaint against a change of the law. There must be something more than a mere expectation based upon anticipation of the continuance of present general laws.</p> <p>6. Constitutional Law — Impairment of Obligation of Contracts— Taxation. — Nor is the act of March 22, 1916, invalid as impairing the obligation of contracts.</p> <p>7. Taxation — Constitutional Law — Local, Special or Private Laws.— The act is not a ‘local, special or private law,” but applies alike to all persons, both natural and artificial, and to all municipalities, counties and districts situated similarly to those involved in this case; and it is riot, therefore, in contravention of section 63 of the Constitution of Virginia against the enactment of local, special and private laws. The fact that it happens to redound to the special benefit of certain persons and against the interests of certain localities does not make it a special or local law within the meaning of the Constitution.</p> <p>8. Taxation — Constitutional Law — Section 6b of the Virginia Constitution. — The act does- not violate section 64 of the Virginia Constitution against the surrender or suspension, by either general or special law, of the right and power of the State or any political sub-division thereof to tax corporations or corporate property. It is manifest upon a reading of section 64 that the prohibition in question was intended to prevent the extension of favors and discriminations in favor of corporations as against individuals.</p> <p>9. Taxation — Constitutional Law — Uniformity.—The act does not violate section 168 of the Constitution.</p> <p>10. Taxation — Constitutional Law — Exemptions.—The act is not an exemption from taxation within the meaning of section 183 of tho Constitution.</p> <p>11. Taxation — Constitutional Law — Section 17U of the Constitution. — Section 174 of the Constitution providing that the failure to assess property for taxation shall not defeat a subsequent assessment for and collection of taxes for any preceding years, cannot properly be construed to mean that the legislature may not validly impose a time limit within which county or district assessments for back taxes must be made. The failure to assess for taxation cannot defeat a subsequent assessment for county, and district taxation, but the subsequent assessment must be made in the manner and within the time prescribed by law.</p> <p>12. Taxation — Retrospective Laws — Omitted Property — Interest.— Statutes will not be given a retrospective effect except in cases where such effect was plainly intended by the legislature. This rule applies peculiarly to the laws relating to assessment of property which has been omitted from taxation, the rule being that such assessments are to be made according to the law in force at the time the assessment should have been made. Consequently, where a statute forbade the charge of interest on taxes omitted through no fault of the taxpayer, was subsequently amended allowing the" addition of interest .in all cases of omitted taxes, the amendment should not be construed to apply retrospectively.</p> <p>18. Taxation — Omitted Property — Interest.—Where the evidence was sufficient to warrant the court in finding that thé failure of the defendant in error to make a proper return was due to an honest belief that its intangible- property was not subject to taxation because it was a foreign corporation, the court was right in holding that no interest should be charged on omitted taxes, under section 508, Code of 1904, providing that where the omission was due to “no fault of the person charged with the tax no interest shall be charged.”</p> <p>14. Presumption and Burden op Proof — Presumption of Knowledge of the Law — Taxation.—In a sense, and as a general rule, it is true that every man is presumed to know the law, and that ignorance of it furnishes no excuse; but when the legislature provided for the remission of interest on taxes omitted from assessment through “no fault” of the taxpayer, it must have meant to recognize a difference between omissions due to wilful and conscious wrongdoing and cases due to honest misapprehension and misconstruction of the tax laws.</p>

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

<p>1. Bill in Equity-Demurrer-Adverse Possession.-A suit was brought to judicially determine the existence of an alley-way through certain town lots, and protect the use of the same by a perpetual injunction. It was contended that the’ bill showed on its face that the land which was sought to be appropriated as an alley-way had been held adversely by the defendants for more than the statutory period of fifteen years. The only allegation in the bill regarding the possession was that the defendants “refuse to open said alley as provided by said deeds and have closed same.” How long the alley had been enclosed, and how long the alleged refusal to open it had continued, was not averred.</p> <p>Held: That the demurrer was properly overruled.</p> <p>2. Streets and Highways-Establishment of Alley by Owner of - Block-Section 2510-a, Code of 1904.-The establishment of an alley by the owner of the block before he sold any lots therein did no violence to any of the provisions of section 2510-a, Code of 1904, prescribing the manner of vacating plats of town lots. This statute was not intended, and cannot be construed, to prohibit the creation of new or additional ways or easements, not shown on the original plat. Its manifest purpose and policy is to prevent the diminution of the public uses and conveniences guaranteed in the original plan of subdivision. The consent, properly evidenced, of the owners of the lots affected, is the only prerequisite to the establishment and opening of an alley such as is involved in this case; and subsequent purchasers must take cum onere. The closing of a street or alley would, of course, be a different proposition, and controlled by different considerations.</p> <p>3. Streets and Highways-Creation of Alley-Deed.-Where a deed duly recorded operates a valid creation and establishment of an alley-way through an entire block, a subsequent purchaser takes subject to it. The deed was in his chain of title, and under familiar rules of law was binding upon him.</p> <p>4. Easement — Abandonment—Burden .of Proof. — The law is perfectly well settled that the burden of proof to show an abandonment of an easement is upon the party claiming such abandonment, and that he must establish the fact by clear and unequivocal evidence.</p>

<p>1. Stock and Stockholders — Preferred Stock — Dividends.-^Both in the charter of a corporation and in the preferred stock certificate issued by it, it was provided that the preferred stock should be entitled to a dividend of six per cent, out of the net earnings of the company, and that the claim to such dividend if not earned in any one year was to accumulate and to constitute a preferred charge over the common stock on the income of succeeding years until it was discharged. The import of this language is perfectly clear and under its authority the directors would not be justified in declaring or paying dividends on preferred stock in any one year if not earned, hut the dividends which would have been paid, if they had been earned, would remain as a claim upon the earnings of each succeeding year in which earnings were made, to be paid in preference to the common stockholders, as well as the dividends accruing in the succeeding years. It was plainly the intention thus to provide, that so long as the corporation conducted its business and was a going concern the dividends should be guaranteed and cumulative.</p> <p>2. Stock and Stockholders — Preferred, Stock — Dividends.—After making the provision in the foregoing syllabus, the certificate provides for the preferential rights of the preferred stockholder, in the event the corporation ceases to do business or goes into liquidation, in the following language: “And the preferred stock is likewise to have a-prior claim, in the event of liquidation or dissolution, to the amount of its face value ■ and of any arrears of dividend due and unpaid to it upon the assets of the company over and above the common stock, but in no case is the preferred stock to be entitled to receive more than its regular 6 per cent, yearly dividend and any arrearages, with interest, that may be due to it on that account, and to the amount of its face value in the event of liquidation or dissolution.” The charter contained practically the same provision.</p> <p>Held: Under these provisions “that the corporation had agreed with its preferred stockholders that so long as the corporation did business it would pay or allow to accumulate as a preferred claim a dividend of six per cent. (6%) annually and that, when the company ceased to do business, the face value of the preferred stock and any of the dividends unpaid and in arrears were to be paid out of the assets of the corporation in preference to the common stockholders.”</p> <p>3. Dividends — Power of Directors to Declare Unearned Dividends— Preferred Stock. — It is fundamental in the law of corporations that the directors have no authority to declare a dividend upon any of its stock, common or preferred, unless the dividends are earned.</p> <p>4. Stock and Stockholders — Preferred Stockholders. — Preferred stockholders are not creditors of the company, nor are the dividends as to which they may be preferred to be regarded as interest upon a loan. The payments made to the preferred stockholders are dividends.</p> <p>5. Stock and Stockholders — Preferred Stock — Dividends—Liquidation of Corporation. — No dividends can be either declared or earned after the corporation ceases to do business. Therefore, the “arrears of dividends due and unpaid,” for which the preferred stockholder is given a preference as well as for the face value of his stock, means such unpaid dividends as had accumulated up to the time the corporation ceased to do business or went into liquidation.</p> <p>6. Stock and Stockholders — Liquidation of Corporation — Agreement Among Stockholders. — A stipulation plainly made between the stockholders, or classes of stockholders, as to how the assets of the corporation shall be distributed among the stockholders in liquidation, after all claims upon the corporation by creditors and others have been satisfied, is permissible and valid and is not forbidden by the principles of our corporation law.</p> <p>Y. Stock and Stockholders — Preferred Stockholders — Interest on Dividends After Liquidation.- — In the charter of a corporation nothing was said about interest on preferred dividends in arrears and unpaid at the time the company goes into liqui-. dation, while in the certificate of stock reference is made to the fact that in no case is the preferred stock to be entitled to receive more than its regular six per cent, yearly dividend and any arrearages, with interest. A preferred stock dividend bears no interest after liquidation. The rights of the stockholders, both preferred and common, should stand as fixed at the time the liquidation commenced. The distribution of the assets of the corporation in return to them of their input of capital is not to be regarded as the repayment of a debt or of money loaned.</p>

<p>1. Burglary — Presumption from Possession of Stolen Goods. — The • possession of stolen goods is, of itself, not even, prima facie evidence of housebreaking or of burglary.</p> <p>2. —Burglary—Possession of Stolen Goods. — Where goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and where, in • addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account, of how he came by the goods, such proof will warrant a conviction. In other words, there should be some evidence of guilty conduct, besides the bare possession of the stolen property, before the presumption of burglary or housebreaking is superadded to that of larceny, but extrinsic mechanical indications may constitute such additional evidence.</p> <p>S. Burglary — Possession of Stolen Goods‘ — Exclusive Possession.— The possession of stolen goods contemplated by the rule above referred to is an exclusive possession on the part of the accused; otherwise such rule is not applicable. A constructive possession, like constructive notice or knowledge, though sufficient to create a civil liability, is not sufficient to hold the prisoner to a criminal charge.</p> <p>4 Burglary — Possession of Stolen Goods — Burden of Proof — Exclusive Possession. — The burden rests upon the Commonwealth to prove that the alleged possession of the stolen goods by the accused was an exclusive possession.</p> <p>6. Burglary — Evidence—Exclusive Possession of Stolen Goods.— The stolen property was found in the kitchen of a house in which accused rented a room. The Commonwealth proved that the accused had access thereto, but did not prove that he was the only person that had such access. It was held that exclusive possession by accused of the stolen property was not shown.</p> <p>6. Burglary — Evidence—Posession of Stolen Goods. — Upon being asked permission by another to wear the stolen property, the accused replied, “All right, I don’t care if you do.” It was held that this reply of the accused was not sufficiently distinct and unequivocal in meaning to prove, with that degree of certainty required in a criminal case, an assertion of property by the accused in the stolen article. It was consistent with a claim of ownership on the part of accused, but was also consistent with a position of indiiference.</p>

<p>1. Larceny — Variance.-—-Upon an indictment for larceny, proof that the accused obtained money by false pretenses will sustain the indictment.</p> <p>2. Larceny by False Pretenses — Charge of Larceny of Money— Proof of Larceny of a Check. — An indictment alleged the larceny of money by false pretenses, whereas the proof showed . the larceny of a check afterwards cashed by defendant.</p> <p>Held: That in every real sense money was paid to the accused, and, therefore, the charge in the indictment was substantially proven.</p>