Volume 121 — Virginia Reports

<p>Appeal from a decree of the Circuit Court of Prince Edward county. Decree for defendants. Complainants appeal.</p> <p>The opinion states the case.</p>

Judgment for plaintiffs. Defendant assigns error. The instructions given by the trial court were as follows: 1.

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

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

<p>Error to a judgment of the Circuit Court of Northampton county, in an action of assumpsit. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Circuit Court of Mecklenburg county. Decree for complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

<p>Error to an order of the Circuit Court of Mecklenburg county, denying the prayers of plaintiff in error to be permitted to qualify as administratrix, and asking that the marriage settlement made by her be set aside as fraudulent*</p> <p>The opinion states the ease.</p>

<p>Error to a judgment of the Circuit Court of Orange county, in an action of ejectment. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendant assigns error. Statement op the Case and Facts by Sims, J. This is a civil action of J. H. Lewis, a retail merchant, defendant in error (plaintiff in the court below) against the plaintiffs in error (defendants in the court below), a manufacturing and mercantile partnership, composed of two partners, Louis Jandorf and Sydney Greenbaum, for damages for a libel contained in a certain letter written to the said Lewis by one of said partners,…

<p>Error to a judgment of the Circuit Court of the city of Williamsburg and county of James City, in an action- of ejectment. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

f the Circuit Court of Brunswick county, on a motion for judgment under section 8211 of the Code. Judgment for plaintiff. Defendant assigns en ror. The opinion states the case.

<p>Error to a judgment of the Circuit Court of Campbell county', in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>1. Confessions — Voluntary.—A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected.</p> <p>2. Divoece — Adultery—Evidence.—Suit was brought by the plaintiff against the defendant to obtain a divorce on the ground of adultery. The charge of adultery was sought to be proved by a negro woman, a servant of the household, who, in effect, swore to the fact. The servant was plainly under the influence of the plaintiff, and her statements were improbable and inherently unreliable. A confession of the alleged paramour obtained by threats was also introduced. He testified that he protested his innocence at the time, and insisted that he was coerced by threats to sign the paper; that the statements it contained were utterly false, and that on no occasion had he been guilty of improper conduct with the defendant. In addition to the denials of defendant and her alleged partner in guilt, it was proved by several wholly disinterested witnesses that after the institution of the suit the plaintiff had on different occasions been seen by them in the company of the defendant caressing her, and that apparently the relations between them were of the most cordial and affectionate nature.</p> <p>Held: That, it is the settled rule that the evidence to sustain the charge of adultery, which is a criminal offense, must be clear and convincing; and, that the evidence in this case tails far short of that standard.</p>

<p>1. Mechanics’ Liens — Necessity of Indebtedness to General Contractor — Case at Bwr. — Defendant entered into an agreement with a building contractor for the erection of a residence. After the work was less than half done, and after less than half of the total contract price had been paid, the contractor failed financially and surrendered the contract and the work to be done thereunder to the defendant, who proceeded to carry' the same to completion under a provision of the contract that he might do so under such contingency, and that in such case the contractor should not be entitled to any further payment under the contract until the work should be wholly finished, at which time if the unpaid balance of the amount to be paid under the contract should exceed the expense incurred by the owner in finishing the work, such excess should be paid by the owner to the contractor; but if such expense should exceed such unpaid balance the contractor should pay the difference to the owner. Plaintiffs, who were subcontractors, to whom the contractor was indebted at the time of his failure, filed their claim for liens in conformity with section 2477, Code of 1904, and gave notice thereof to defendant and instituted separate suits in equity to enforce the same. These suits were brought before the building was completed, and defendant filed, first, an original answer in each case, exhibiting his contract, denying any indebtedness whatever to the general contractor, and averring that it would cost more than the balance of the contract price to finish the work, and, later, a supplemental answer exhibiting the certificate of the architect showing a balance due from the contractor of $4,-756.49. Upon reference to a commissioner a report was made upon evidence which was extensive and thorough, fully sustaining the position assumed by defendant in his answer.</p> <p>Held,: That as it satisfactorily appears from the evidence that there was no time after notice to the defendant of the claim of the subcontractors when he was indebted in any amount to the general contractor, consequently he was under no liability towards the subcontractors.</p> <p>2. Appeal and Error — Commissioner’s Report. — There is a strong presumption in the appellate court in favor of a decree by which the trial court has confirmed the report of a commissioner upon a question of fact.</p> <p>3. Mechanics’ Liens — Owner’s Liability. — Laborers and material men are favored by the statute, but not to the extent of requiring the owner of property to pay the same bills twice, once to the builder with whom he has contracted, and again to parties with whom he has no contractual relations. The present mechanic’s lien laws deal fairly with both the owner and the subcontractor, requiring the owner, after notice, to withhold from the general contractor enough to pay the subcontractor, provided however, “the same does not exceed the sum in which the owner is indebted to the general contractor at the time the notice is given, or may thereafter become indebted by virtue of his contract with said general contractor.”</p> <p>4. Mechanics’ Liens — Compliance with Terms of Statute. — The statute was designed to protect subcontractors, and creates a liability which would not otherwise exist, but its terms must be met before its benefits can- be enjoyed. In" other words, the owner is under no obligation to protect the interest of the subcontractor, except where the latter has complied with the law and thus placed himself in a position to demand protection from the owner.</p> <p>5. Mechanics’ Liens — Contract Between Owner and General Contractor — Recording Contract. — There is no statute requiring the recordation of a contract between an owner and a general contractor, providing for the completion of a building by the owner upon the failure of the general contractor, and there is no rule of law making the owner a trustee for subcontractors in such cases. Upon the contrary, an owner has the right to make just such a contract as that referred to in the first syllabus without regard to subcontractors. A subcontractor can have no legitimate claim upon the owner, except under and by virtue of the statute. And, while it would not be competent for an owner to defeat the statutory rights of a subcontractor by a stipulation in the general contract against liens, or to assist the general contractor in placing a bona fide asset beyond the reach of his creditors by any subterfuge embodied in the terms of the general contract, -the settled general rule is that a subcontractor is charged with notice and bound by the terms of the general contract, and this rule applies especially to the mode and terms of payment agreed upon between the owner and the general contractor.</p> <p>6. Mechanics’ Liens — Account Between General Contractor and Owner: — Included in the sum found by a commissioner as the balance due from a general contractor to the owner was an item for liquidated damages, which the subcontractors contended was an error in the record.</p> <p>Held: That the question was not material so far as the subcontractors were concerned, where with that item eliminated there was still nothing due from the owner to the general contractor upon which their claims could attach.</p> <p>7. Appeal and Error — Presumption in Favor of Lower Court’s , Finding. — A decree sustained an exception to the deposition of a witness and this was assigned as error. Counsel were not agreed and the record was not clear as to the facts upon which the exception to this deposition should be disposed of, and the presumption, therefore, is that the action of the lower court was right.</p> <p>8. Appeal and Error — Harmless Error — Exclusion of Deposition.— The exclusion by the court below of a deposition of a witness is harmless, there being nothing to indicate that the commissioner did not consider the deposition in making up his report; and, the appellate court having considered it, being of the opinion that it could not in any event have properly changed the result.</p> <p>9. Mechanics’ Liens — Architect’s Certificate. — In mechanic lien proceedings the certificate of the architect, showing that no indebtedness existed from the owner to the general contractor, made in compliance with one of the provisions of the building contract, in the absence of either allegation or proof of bad faith on his part, must be accepted as conclusive.</p>

<p>Appealed from a decree of the Circuit Court of Campbell county. Decree for complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

Decree for complainant. Defendant assigns error. Statement of the Case and Facts by Sims, J. This is a suit in equity by appellee, plaintiff in the court below, against appellant, defendant in the court below (hereinafter referred to as plaintiff and defendant), for an injunction prohibiting the defendant from any longer maintaining a certain dam located across Lazaretto creek a short distance below the lands claimed to be owned by the plaintiff, the latter located, on one…

Judgment for plaintiff. Defendant assigns error. Statement of Facts by Sims, J. The defendant in error, plaintiff in the court below, who will be hereinafter referred to as “plaintiff, was for ten or eleven years in the employment of the plaintiff in error, defendant in the court below, who will be hereinafter referred to as “defendant, as a travelling salesman. The employment during all this time was by the year, from January 1st to December 31st inclusive.

Judgment for plaintiff. Defendant assigns error. Statement of the Case and Facts by Sims, J. The plaintiff in error was the defendant in the court below, hereinafter designated “defendant”; and the defendant in error was plaintiff in the court below, hereinafter designated “plaintiff.” This is a case of injury to an automobile of plaintiff by an express electric train of defendant at a public road crossing.

<p>Error to a judgment of the Corporation Court of the city of Fredericksburg, in an action of detinue. Judgment for plaintiff. Defendant assigns error.</p> <p>Statement of The Case and The Facts by Sims, J.</p> <p>This is an action to recover the possession of certain negotiable notes by the defendant in error (hereinafter designated “plaintiff”) against the plaintiff in error (hereinafter designated “defendant”). The case resulted in a verdict and judgment for the plaintiff in the court below.</p> <p>The question at issue before the trial court was whether the choses in action sued for were the property of the plaintiff’s intestate or of her son, the defendant, and it was material to ascertain whether the latter came into the possession and ownership of them before the death of his mother.</p> <p>Upon that issue, the court below, over the objection of the defendant, permitted the examiner of records of defendant’s circuit and the commissioner of the revenue of defendant’s city, to testify as to certain statements made to them by the defendant, to the effect that the notes in question were not his property on the first of February preceding his mother’s death and did not come into his possession, or become his property, until after the death of his mother, which occurred the latter part of such February.</p> <p>The statements referred to were made by the defendant to said tax officials on the subject of the listing of said choses in action for taxation.</p> <p>The statements aforesaid were not given by the defendant under oath. They were not given before the local board of review; they were not given in a list or in interrogatories in writing of and with respect to bonds, notes and other evidence of debt, signed and sworn to, required by law to be furnished by tax payers to commissioners of the revenue (Acts 1915, p. 98), nor in any answer under oath required by or before the local board of review (Acts 1915, p. 158).</p> <p>The statements aforesaid made by defendant to the examiner of records were made about the month of September of the year in question, under the following circumstances, as testified to by the examiner:</p> <p>“* * * I got some information somewhere that there was a suit pending in which it was claimed that Mr. Peden was the owner of $3,000 deed of trust notes, that came from his mother. I understood that the claim was that they had become his property prior to February, 1915. I asked Mr. Peden with reference to that and he stated that the notes were not his on the first of February; that they did not become his property until his mother’s death, which was sometime the latter part of February. I was surprised at that and asked him again, and told him I wanted to be certain about it; that if they were his mother’s notes, I would report them in my fiduciary report, and if they were his, they would be charged to him; that that would be the only difference, and he repeated his statement that they were not his on the first of February, 1915. * * *”</p> <p>“Was Mr. Peden answering any interrogatory at that time?”</p> <p>“No, sir, Mr. Peden did not give in any written interrogatory last year of intangible personal property to the commissioner of revenue. The law requires the commissioner of revenue to turn over all the interrogatories which he receives to me after a certain time. He turned over the interrogatories to me, and among them I found an income report, but no report of intangible property from Mr. Peden.”</p> <p>By Mr. Butzner:</p> <p>“There was no contest over Mr. Peden’s return before the board of review as to intangibles? * * *”</p> <p>“None at all.”</p> <p>The statements aforesaid made by defendant to the commissioner of revenue were made on October 2nd of the year in question, and as per testimony of the latter were as follows:</p> <p>“Mr. Peden came into my office on this day, October second, and handed me a list of bonds for entry. I looked at them and told him that this sheet handed me by the examiner of records was completed, and I did not know exactly what to do with the bonds, and would have to get authority, direction, as to where they would be placed, if at all, in this record, from the fact that Mr. Peden, as he told me, came into possession of these bonds after the first day of February, 1915. I looked at them and took- no note of them other than the addition of the bonds for the entire amount, which was $3,000. There were two sheets on which these bonds were listed. * * *</p> <p>“I had no authority to take them at all, after the first day of February, and I told him if they came in his possession after the first day of February I had no authority to tax them, but he said he wished them listed for taxation under his name. * * *</p> <p>“My impression is that Mr. Peden said that they were in his mother’s possession, somewhere in the house, if I mistake not in a trunk, and after her death he took possession of them, and wanted to list them for taxation.”</p> <p>The sheets of paper referred to by the last named wit1 ness were not the list required by statute above referred to and were not under oath.</p> <p>The statute on the subject of the lists or interrogatories above referred to (Acts 1915, p. 98) so far as material, is as follows:</p> <p>“Section 8. Classification under schedule C shall be as follows:</p> <p>“First: Bonds, notes and other evidences of debt,” etc.</p> <p>“The commissioner shall require each person * * * residing in his city * * * to make out and deliver to said commissioner a list in detail * * * of all bonds, notes and other evidences of debt owing to such person in excess of one hundred dollars * * * This list shall be signed and sworn to by the taxpayer * * *”</p> <p>At the time the communications in question were made to him, the duty of the examiner of records with respect to the assessment of choses in action for taxation, so far as material, as provided by said statute (Acts 1915, p. 157) were as follows:</p> <p>“* * * * it shall be the duty of said examiner * * * to assist the said local boards of review in the examination of * * * the returns of taxpayers of all such intangible personal property * * .* to examine the returns aforesaid and the records, both State and Federal, with a view to ascertaining and reporting for taxation the values to be extended by said commissioners of the revenue on all intangible personal property * * * liable to taxation under the laws of this State. As soon as such examinations and taxations are made by the examiner of records, he shall make report thereof to said local board of review * * *” It is also provided in this statute that each examiner of records shall receive a commission upon “valuations added as a result of his investigations and examinations of the returns of intangible personal property * * * of taxpayers not returned by them.”</p> <p>At the time of the trial in the court below, “the answers required under oath” consisted of those of the taxpayer in the list or interrogatories required by law as above stated, and such answers as he might give under oath upon being summoned by the local board of review before it when there interrogated. The examiner of records had the statutory power to have the taxpayer brought before the local board of review for examination and there to examine the taxpayer under oath. The statute on this subject (Acts 1915, p. 158) is as follows:</p> <p>“The local board of review shall have authority to suinmon taxpayers, or their agents or any other person having information on the subject before them, and require them to answer under oath all questions. * * * Upon the request of the examiner of records the said local board of review, or its chairman, shall summon any such taxpayer before it to answer on oath such questions as may be propounded by said board or examiner of records.”</p> <p>At the time that this case was tried in the court below the statutory enactment, embodying the policy of this State on the subject of what statements of taxpayers should-be privileged was contained in said Acts of Assembly, 1915, p. 158, and was as follows:</p> <p>• “The answers required under oath of the person, firm, corporation, agents or witnesses, shall not be disclosed unless called for by a court of record, or by said State advisory board, or any local board of review.”</p> <p>Subsequently to the trial of this case in the court below, the said statute embodying the policy of this State on the subject of privileged statements of taxpayers' was changed, and enlarged in its scope (Acts 1916, p. 420), and is as follows:</p> <p>■ “The information procured by local boards of review and examiners of records under this act shall be regarded as confidential, except for the purposes of assessment, and shall not be disclosed except to the State tax board or to some other local board of review or to officers charged with the assessment and collection of taxes,- or to a court of record upon its order.”</p> <p>The latter statute was not in force when the court below admitted the testimony in question.</p>

<p>Error to a judgment of the Hustings Court of the city of Petersburg, in an action at law by motion, in the nature of an action of assumpsit. Judgment for plaintiff. Defendants assign error.</p> <p>Statement of the Case and Facts by Sims, J.</p> <p>■This is an action at law by motion, in the nature of an action of assumpsit, by the defendant in error, plaintiff in the court below (hereinafter designated “plaintiff”), against the plaintiffs in error (hereinafter designated “defendants”), to recover back the $500 cash payment made by the former to the latter upon a contract of purchase of real estate, on two grounds:</p> <p>1. Because at the time fixed for completing the contract the defendants — the vendors — could not convey a marketable title; and</p> <p>2. Because on the day before the time fixed for completing the contract the defendants — the vendors — released the plaintiff — the vendee — from the obligation of the contract in consideration of the mutual agreement of plaintiff and defendants to cancel the contract, and that for the same consideration the defendants promised and agreed to refund the said $500 to the plaintiff.</p> <p>The said contract was in writing and under seal.</p> <p>The material portions of the contract are as follows:</p> <p>“This Agreement of Sale, made and entered into, in duplicate, this 14th day of August, 1915, by and between Walter Sachs and Fannie Sachs, his wife, parties of the first part, and Irvin Owings, of Washington, D. C., * * * party of the second part;</p> <p>“Witnesseth, that for and in consideration of the mutual promises and agreements hereinafter set forth, and especially in consideration of the sum of five hundred dollars ($500.00) cash in hand paid by the party of the second part to the parties of the first part, receipt whereof is hereby acknowledged, the said parties of the first part do hereby agree to sell to the said Irvin Owings, and the said Irvin Owings doth hereby agree to buy of the said Sachs all that certain tract of land,” (here follows description of the land) “and the said terms and conditions of purchase of the said tract of land herein agreed to be sold by the said Sachs and bought by the said Owings are as follows, to-wit:”</p> <p>“(1) Sixteen thousand dollars ($16,000.00) is to be the amount paid by the said party of the second part to the parties of the first part, and of this sum five hundred dollars ($500.00) has already been paid by the party of the second part to the parties of the first part to bind this bargain, and the remainder of the purchase price, or fifteen thousand, five hundred dollars ($15,500.00) ■ is to be paid on August 19, 1915, and upon the payment of the balance of the purchase price, the said parties of the first part agree to deliver to the said party of the second part, a good and sufficient deed for the property hereinabove mentioned, with general warranty and covenants of title; but, in the event the payment of the remaining $15,500.00 is not made on or before August 19, 1915, then the $500.00 already paid on account of this transaction shall become forfeited by the party of the second part to the parties of the first part, and this agreement in all other respects shall be null and void.</p> <p>“Witness the following signatures and seals.</p> <p>(Signed)</p> <p>WALTER SACHS, (Seal)</p> <p>FANNIE SACHS, (Seal)</p> <p>IRVIN OWINGS (Seal) ”</p> <p>There was a trial by jury in the court below. Both the plaintiff and defendant introduced testimony. There was a demurrer to the evidence of the defendants by the plaintiff, and a verdict of the jury in favor of the plaintiff, subject to such demurrer.</p> <p>The demurrer to evidence was sustained by the trial court and judgment was entered by it in favor of the plaintiff against the defendants for said $500.00, together with interest and costs, in accordance with said verdict.</p> <p>There were other proceedings in the case, which however are immaterial in the view we take of it on the merits, and hence no reference thereto need be made by us.</p> <p>On the merits of the case the following were the further material facts before the jury:</p> <p>At the time fixed for completing the contract, to-wit, August 19, 1915, the defendants had a good and perfect title to said land, subject, however, to the following subsisting encumbrance and lien thereon:</p> <p>1. An easement of the Petersburg Telephone Company to maintain its telephone line erected along the margin of said land next to and alongside of the Western Union Telegraph Company’s telegraph line, which is located next to and along one side of such land.</p> <p>2. Unpaid taxes for the year 1912, amounting to $4.84, which amount was presently payable.</p> <p>There were also three alleged judgments, but they appeared of record as barred by the statute of limitations, and (if not barred by the statute of limitations) were for definite amounts, the aggregate of which, together with said delinquent taxes, were less in amount than the balance of unpaid purchase money due and payable on the day fixed for completing the contract, and they were all presently payable.</p> <p>There was also a coupon judgment for taxes, but the effect of an agreement of counsel is to eliminate that from the case. If there had been no such agreement, however, this judgment would have fallen within the description of the three judgments above referred to, except that it was not barred by the statute of limitations.</p> <p>With respect to the telephone line, the following should be noted:</p> <p>1. The testimony for defendants tended to show that at least a portion of it, alongside the said land, had been erected and was obvious to the plaintiff, had he looked about him, when the latter was on the land prior to his purchase. There was sufficient evidence for the jury to have inferred that this easement was visible and notoriously affected the physical condition of the land at the time of the purchase.</p> <p>2. The evidence, as it must be regarded by us, is to the effect that the telephone line was a benefit, rather than an injury, to the market value of the land.</p> <p>8. The telephone line, if considered as marring the appearance or outlook from the land, was no more objectionable than the Western Union Telegraph line alongside of it.</p> <p>With respect to the conveyance of said land, the facts were that a deed from defendant, in proper form, in strict accordance with the provisions of said contract, was duly executed by defendants and tendered to the plaintiff on said date fixed for completing the contract, to-wit, August 19, 1915, that he declined to accept the deed, or to comply with the terms of the contract on his part by paying the $15,-500.00 balance of purchase money; and that plaintiff offered to cancel the contract if the $500.00 was paid back to him and “call the deal off.”</p> <p>The testimony was conflicting on the point as to whether defendants, or either of them, ever agreed to the latter proposition, the testimony for defendants positively denying any such agreement, and the testimony for plaintiff being to the effect that there was such an agreement, which, if it existed however, was oral, not in writing and not under seal.</p>

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

<p>Appeal from a decree of the Circuit Court of Goochland county. Decree for defendants. Complainants appeal.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, in an action of debt. Judgment for plaintiff. Defendants assign error.</p> <p>The opinion states the case.</p>

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

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p> <p>Statement of the Case and Facts by Sims, J.</p> <p>The plaintiff in error was' the defendant in the court below and will be hereinafter referred to as “defendant.” The defendant in error was the plaintiff in the court below and will be hereinafter referred to as “plaintiff.”</p> <p>This case is one of personal injury of the plaintiff occasioned while he was in the act of boarding a street car— either moving or moving the instant after plaintiff caught hold of and placed one foot on its step.</p> <p>There was a verdict and judgment for the plaintiff in the court below. There were certain exceptions then taken by the defendant to the action of the court with respect to instructions and a motion to set aside the verdict as contrary to the law and the evidence.</p> <p>We must therefore ascertain the facts in the case as if it were before us upon demurrer to the evidence by the defendant. So regarding the evidence the material facts are as follows:</p> <p>The Facts.</p> <p>The accident occurred on Venable or Q street, where there are two street railway car tracks. Owing to the narrow width of the street, there is not a great deal of room between a passing car and a horse and vehicle which may be standing on the side of the street. About 8 o’clock of the morning of the accident there was a wagon drawn by one hórse standing on the north side of said street, the horse facing west, its head being on the “near side” of Twenty-sixth street, to a car going west, about the usual distance from the northeast corner of Venable and Twenty-sixth streets, where passengers for west-bound street cars of "defendant were.accustomed to get aboard — the rear of the wagon being somewhat east of such usual place for passengers to board such cars. As the wagon stood it would have been “pretty near” any west-bound passing car.</p> <p>The car of defendant, from which the plaintiff received his injuries, was west-bound — a pay-as-you-enter car — with its entrance at the rear.</p> <p>At the time mentioned the plaintiff was walking on the north side of Venable street from the corner of Twenty-fifth street and Venable towards Twenty-sixth street corner, expecting to board the first car going west. As, walking along the sidewalk, he approached the northeast corner of Twenty-sixth street, he saw a car running at a “pretty good” speed coming west, when it was about Thirtieth street, that is, about four blocks away. Plaintiff thereupon walked out in the street to the rear of the wagon. — looked at the distance the car was from him — concluded that the car would likely fail to stop with its entrance sufficiently east, of the wagon to permit him to board it and as the wagon was pretty close to the car track, he decided that he had better get on the west side of the wagon. He thereupon walked on to the west bound car track past the wagon and horse, to the horse’s head and stood there “out near the track.” The car was then about Twenty-ninth street, about three blocks away. What immediately occurred thereafter was, in the language of the plaintiff, as follows:</p> <p>“When the car got very near half way of the square, I had a lunch in my hand wrapped in newspaper, and I waved to the motorman like that (indicating). He was looking straight at me. I waved him to stop the car, and the car came up very slowly, ran past the wagon, and, as it got to me, it practically stopped. I reached out with my hand and got oiie foot and one hand on the car, and, just as I did, the car gave a very sudden and violent lurch forward. My foot that was on the step slipped back off again, and I was dragged that way. I heard the conductor give one bell, but the car continued to speed up and ran faster, and, after it passed on the west side of Twenty-sixth street on Q, I felt my leg give a snap or pop where it was doubled underneath the car. The conductor then, when I got very near half way of the square, put his hand on me. He said, ‘Brother, do you want to get on this car?’ I said, ‘No, brother, I Want to get off. You have crippled me up; stop the car and let me get off.’ He ran down to within one car length of Twenty-fifth street, Johnson’s box factory, so the middle part of the car was even with the door of Johnson’s box factory. They carried me in diagonally to the box factory and phoned for the ambulance. That, gentlemen, is a true story, so help me God, so far as I know.”</p> <p>Q. Where did you wave to the motorman? °</p> <p>A. Didn’t wave to him until he got half way of the block. I waved with my lunch.</p> <p>Q. How did you wave?</p> <p>A. Just like that, the ordinary way (indicating). .</p> <p>Q. Did the car begin to slow down apparently in response to your wave?</p> <p>A. Yes, sir, started to slow down.</p> <p>Q. Did it continue to slow down until the time you caught hold of the dividing rod ?</p> <p>A. Yes, sir.</p> <p>Q. Did the car come to a stop or was it still running when you stepped onto it?</p> <p>A. It came to a stop as near as I can remember, Mr. Cabell. I will not swear it came to a dead stop, but it came practically to a stop as a car with no ladies to get on generally comes to a stop for a man to get on, and I thought in the next two or three feet it would come to a stop. I think it came to a stop, but, if it was moving at all, it was not any more than a snail could go.</p> <p>Q. Did you get your feet on the step?</p> <p>A. Yes, sir.</p> <p>There is a conflict in the testimony as to the manner in which the plaintiff gave the stop signal. The motorman on the car — a witness for defendant — testified that, from the time that his car was one block away from him until it passed plaintiff, he saw the latter, standing at the horse’s head — thought plaintiff was the driver of the wagon and not a would-be passenger — did not see plaintiff make any stop signal — that as the car drew near the wagon witness slowed it down'because he was in doubt whether it could pass the wagon without colliding with ii^ — that plaintiff stooped and looked to see if the car could pass the wagon as the car came near the wagon, “going very slow,” and at this time plaintiff motioned with one hand, indicating that the car could “come on,” and witness heard the plaintiff say “come on”; that thereupon witness himself also seeing that the car could pass the wagon, fed his current up the usual way, a point at a time, gradually increasing the speed of the car; that two or three points would have caused the car “to snatch or jerk” which it did not do.</p> <p>Plaintiff testified that he did not stoop, or look to see if the car could pass the wagon, and that he made no motion with his hand, or signal, indicating that the car could “come on,” nor say “come on”; that the only signal he made was the stop signal aforesaid.</p> <p>As to the speed of the car when the plaintiff attempted to get aboard of it, the testimony is conflicting.</p> <p>The testimony of the plaintiff is noted above. That of his other witnesses on this point is to the effect that the car had stopped, or practically so, when he took hold of it and placed one foot on its entrance step. The testimony for defendant is that.it was moving at the rate of five or six miles an hour at that time.</p> <p>Summary of the Facts.</p> <p>Regarding the evidence under the rule above referred to, the facts bearing on the questions presented to us for our decision, may be summarized as follows:</p> <p>1. There was in fact no express contract of carriage of plaintiff as a passenger.</p> <p>2. As bearing on whether there was such an implied contract the facts are as follows:</p> <p>The plaintiff at the proper place, gave the proper signal, indicating his desire to become a passenger, and so gave the signal that it was negligence on the part of defendant not to have seen it (through its motorman). The defendant, nevertheless, did not see the signal. However, for another cause, it slowed down its car immediately following the signal in a manner which induced the plaintiff reasonably to conclude that it was going to stop in response to his signal, and he did so conclude, and acted upon that conclusion, in his attempt to board the car.</p> <p>8. The car was decreasing in its motion and had come practically to a stand-still at the moment plaintiff attempted to board it.</p>

<p>Error to a judgment of the Corporation Court of the city of Newport News, in a proceeding by motion for a judgment for money. Verdict for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

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

<p>Appeal from a decree of the Circuit Court of Prince Edward county. Decree for complainants. Defendants appeal.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond. Decree for complainant. Defendant, appeals.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Lunenburg county, in an action of trespass on the case. To a judgment reducing the amount of the verdict found by the jury, plaintiff assigns error.</p> <p>Statement of the Case and Facts by Sims, J.</p> <p>This is an action on the case, at law, by the plaintiffs in error (plaintiffs also in the court below) against the defendant in error (defendant also in the court below), hereinafter referred to as plaintiffs and defendants.</p> <p>The action is for damages to the plaintiffs caused by the cutting and conversion to his own use by defendant of certain trees belonging and conveyed to the plaintiffs by a certain timber deed.</p> <p>The first count of the declaration is on the case (under statute, section 2901 of the Code of Virginia) for trespass qua,re clausum fregit to the real estate on which the trees conveyed by said trustees’ deed were located. The second count was in trover to recover the value of the trees. There were two remaining counts, both on the case, for conversion of the trees and to recover their value. The trial in the court below was not had on the first; but on the other counts of the declaration.</p> <p>The defendant’s only plea was the general issue. There was a trial by jury, and a verdict for the plaintiffs. The jury thereby found the fact to be that the said cutting was done by the defendant or by his employees under his authority, express or implied.</p> <p>To sustain this finding of the jury there was testimony for the plaintiffs consisting of circumstantial evidence of stump measurements of trees cut, the proximity of defendant’s saw mill, it being on the same tract of land from which the trees were cut; the direct testimony that the employee of defendant having charge of the logging of such mill was seen on the land in question hauling logs therefrom; the statement of such employee on cross-examination tending to confirm this, although on re-examination he denied it; and the character of the defendant’s own statement in his testimony on this subject to the effect that he had notified all his employees “to cease forthwith from cutting any timber on the premises in question; that while he did not know positively whether any timber was cut thereon after the 30th day of December, 1914” (the alleged cutting being after that date), “he knew that he notified all of his employees not to do any further cutting on said premises, and that if they did so they did so without authority from him,” leaving room for the inference that he testified merely that he did not expressly authorize the cutting before it was done, but otherwise authorized it, as evidenced by his action in permitting the cutting to continue by his employees after the date mentioned without stating that it was done without his knowledge, or giving any facts showing that, with a reasonable supervision of Jais employees, to the end of seeing that his alleged instructions were obeyed he would not have known, or he could not have been reasonably expected to have known of the cutting complained of.</p> <p>In this conflict and status of the evidence, under the rule applicable to the consideration thereof by this court, we must regard the fact to be that the trees were cut by the defendant, that is to say, by his employees under hig authority, express or implied.</p> <p>On the Amount op the Damages.</p> <p>With respect to the measure of damages the trial court, on motion of the plaintiffs, without objection by the defendant, gave the jury the following instructions:</p> <p>. “The court instructs the jury that if under the foregoing evidence they shall find for the plaintiffs, then in assessing the' damages they shall inquire whether or not the defendant cut and removed the timber from the land in question with or without notice that the plaintiffs were claiming title thereto.</p> <p>“If the jury shall find that the timber was cut with actual notice that the plaintiffs were claiming title thereto, and upon the defendant’s own construction of his rights, then the jury shall assess the damages at the market value of the manufactured timber; .but if the timber was cut without notice of the claims of the plaintiffs, the jury shall assess the damages to the plaintiffs on the basis of the stumpage value.”</p> <p>There was only one other instruction given. That was given on motion of the defendant, without objection by the plaintiffs, to the effect that the plaintiffs must prove their case by a preponderance of evidence as to every essential fact, including the alleged cutting of trees after the date above mentioned.</p> <p>The facts as to the trees being cut by the defendant “with actual notice that the plaintiffs were claiming title thereto and upon the defendant’s own construction of his rights,” are as follows:</p> <p>At the time of the cutting of the trees by defendant proved in the instant case, there was pending in the same court below in which the instant action was afterwards instituted, an action by the same plaintiffs against the same defendant as in the instant case, for damages for wrongful cutting and removal of timber from the same tract of land as that on which the trees were cut which are- involved in the instant case. That said first action resulted in a judgment in April, 1915, in favor of the said plaintiffs against said defendant. That pending such first action, in order to prevent the said defendant from cutting and removing any trees from said premises under his claim of title thereto, until the case could come to trial, in a suit in equity instituted by said plaintiffs for the purpose, an injunction was duly awarded and served on said defendant in December, 1914, prohibiting him from cutting and removing any such trees.</p> <p>The trees in the instant case were cut by the defendant after the service of this injunction upon him and in violation of such injunction.</p> <p>It is true the defendant denied in his testimony that he cut the said trees and testified that “he immediately upon being served with said injunction notified all his employees to cease forthwith from cutting any timber on the premises in question,” etc., as above quoted from his testimony. But the verdict of the jury is conclusive upon us, as above stated, of the fact being that the defendant did do the cutting in question in violation of the injunction. Nevertheless, in view of the instructions given, quoted above, the jury may have found (and as we shall presently see, manifestly did find) the fact to be that the defendant did such cutting “upon the defendant’s own construction of his rights,” that is to say, under a claim of title on his part to the trees cut by him. It is further true that the evidence on the question of whether such claim of title was bona fide is not as explicit as it might be, nor as would be required by the rule that the burden of proof as to this matter is on a trespasser, but for the instruction given as aforesaid.</p> <p>Although the defendant testified as a witness in the case, as aforesaid, he does not say that he cut the trees under his claim of title or show that such claim was bona fide and not induced by gross negligence on his part. But there was other evidence aforesaid from which the jury might have found the fact to be that he did the cutting under such claim of title and that the latter was bona fide; the trial court by the instruction given asked for by the plaintiif, submitted this question to the consideration of the jury in such a way as would make the rule as to burden of proof, above adverted to, operate an injustice upon the defendant if pressed further than it was by the trial court in the instant case, or if pressed further therein by us.</p> <p>The market value of the trees manufactured into lumber was $720.00. Their stumpage value, that is to say, their value as standing timber immediately before they were severed from the land, was $276.00.</p> <p>The verdict of the jury was for $720.00. In view of said quoted instruction, this did not mean a finding by the jury that the trespass of the defendant in the cutting of the trees was a willful trespass, but the contrary, since the trial court instructed them, in effect, to find that very verdict if they believed from the evidence that the trespass was not willful, but under bona fide claim of title.</p> <p>We must therefore regard the fact to be that the trespass of the defendant in question was not willful, but was committed under a bona fide claim of title.</p> <p>It is true the trespass in question was committed also in violation of an injunction. But the violation of the injunction was not relied upon by plaintiffs in the court below as evidencing a willful trespass. Indeed by the instruction, asked for by the plaintiffs and given by the trial court, any distinction of the instant case on the question of the willfulness of the trespass, because of the violation of an injunction, was ignored. The trial in the court below, on the plaintiff’s own choosing, proceeded in disregard of such violation having any bearing on the measure of damages. Hence we are relieved of considering in the instant case whether such feature of the case would or would not have any bearing on the question of whether the trespass was. willful or the contrary; and we must regard the instant case as if it were that of a trespass committed under a bona fide claim of title free from any complication of the violation of an injunction.</p> <p>On the rendition of said verdict the defendant moved the court below to set it aside and grant him a new trial on the following grounds:</p> <p>First. Because the verdict was for an excessive amount.</p> <p>Second. Because the verdict was contrary to the law and the evidence.</p> <p>Thereupon the trial court put the plaintiffs upon terms to accept $276.00, the stumpage value of the said trees cut, or the verdict would be set aside and a new trial granted, which judgment the plaintiff' accepted under protest, the judgment of the court was entered accordingly for such reduced amount, and that action of such court is assigned by the defendant before us as error.</p>

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

<p>Appeal from a decree of the Circuit Court of Tazewell county. Decree for complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

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

<p>Error to a judgment of the Circuit Court of Wise county, in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

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

<p>Error to a- judgment of the Corporation Court of the city of Bristol, in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendant assigns error. STATEMENT OF THE CASE AND FACTS. This is a.personal injury case in which there was a verdict of the jury in favor of the defendant in error — plaintiff in the court below — against the plaintiff in error — defendant in the court below — who will be hereinafter referred to as plaintiff and defendant.

<p>Appeal from a decree of the Circuit Court of the city of Roanoke. Decree for complainants. Appellants appeal.</p> <p>The opinion states the case.</p>

Application under sections 567 and 571 of the Code for the correction and cancellation of tax assessments. Judgment for the Commonwealth. Applicant assigns error. The opinion states the case.

<p>Appeal from a decree of the Corporation Court of the city of Radford. Decree for defendant. Complainants appeal.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Circuit Court of Scott county. Decree for complainant. Defendant appeals.</p> <p>STATEMENT OF THE CASE AND FACTS.</p> <p>This is a suit in equity by the appellee, Eliza Hensley, to enforce against the appellant an express trust, created by parol agreement, in a certain tract of land described in the bill by definite metes and bounds, said to contain about 75 acres.</p> <p>The evidence is conflicting, but the preponderance of proof establishes the following facts:</p> <p>The legal title to said land, along with other land, together aggregating some 400 acres, was at one time vested in one W. H. Hensley, a son of said appellee. By deed dated and duly recorded March 10, 1888, W. H. Hensley conveyed all of snch 400 acres of land to his wife, Martha E. Hensley. Creditors of W. H. Hensley, whose debt was contracted prior to the execution of the last named deed, instituted suit to subject such land to the payment of such debt, alleging that said deed was made by Hensley to his wife “without valuable consideration and wholly voluntary on his part and for the purpose of hindering, delaying and defrauding creditors.” In that suit an account of liens was taken; the whole of the 400 acres of land was held liable to be subjected for the payment of the debt of the piaintiifs in such suit and for the- payment of certain other unpaid purchase money and deed of trust debts of said W. H. Hensley. Accordingly this land was sold in such suit, by a commissioner of court, on the terms of cash enough to pay costs and expenses of suit and sale and the residue on a credit of six and twelve months, with interest, the purchaser to give bond and good security therefor. At this sale the appellant became the purchaser at the price of $1,025.00 in gross and not by the acre.</p> <p>The testimony for said appellee is clear and convincing that the appellant made such purchase under an unequivocal and explicit declaration by him that he did so “for Liz” (said appellee) “and Marth” (said Martha E. Hensley) : that prior to the purchase, appellant agreed that he would convey such land to the two last named parties as soon as they had paid the purchase money in full; and that E. H. Hensley, the husband of said appellee, and said W. H. Hensley on the day of sale, procured appellant to bid in the land for Eliza and Martha Hensley and that the latter had previously authorized them to do so. That W. H. Hensley was the chief actor in the transaction in behalf of his wife and mother. That no part of the purchase money was paid by appellant. That the cash payment of $196.00 or $197.00 was made for Eliza and Martha Hensley by W. H. Hensley and E. H. Hensley, the former furnishing the greater part of it. That they procured the sureties who united with appellant in the bonds for the deferred payments of purchase money. That the residue of the purchase money was paid from the sale of a portion of the 400 acres of land to one Burdine after both of the said purchase money bonds were past due. That the sale to Bur-dine was negotiated and effected by W. H. Hensley, the latter in fact acting for his wife and mother, though this was not disclosed by him to Burdine further than the latter was then informed presumably by W. H. Hensley), that appellant had “bid in the land for the Hensleys.” Bur-dine paid the purchase money due by him to the commissioner of court; the latter conveyed the 350 acres of land (the said 400 acres less the 50 acres hereinafter mentioned) to appellant; and appellant made the deed to Bur-dine of the portion of it aforesaid sold the latter as aforesaid.</p> <p>' It is true appellant, who married a daughter of said appellee and hence was a son-in-law of hers and a brother-in-law of W. H. Hensley, denies the existence of any trust and any declaration of his to the effect aforesaid, but without going into details it is deemed sufficient to say that his action in making the deed to Burdine and otherwise, (his statements and explanations on this subject being not convincing) and other statements of his than his declaration above quoted, are clearly proved and are inconsistent with his position that he bought the land for himself. He insists upon the position that all of his dealings in connection with the matter were with W. H. Hensley alone, and that he never knew the said appellee or the wife of W. H. Hensley in the transaction, and he suggests in his testimony that W. H. Hensley’s purpose was to shield the land from future liabilities to judgment and other debts of the latter, left unsatisfied from the sale of the land in said suit; intimates that for this reason W. H. Hensley did not purchase the land in his own name; and mentions some non-lien indebtedness of W. H. Hensley to himself (the appellant). In the pleadings in the cause, appellant made no such issue. Therein he goes no further than tc deny the existence of any trust and the allegation that the purchase of the land by him was an absolute purchase for his own benefit alone.</p> <p>The facts further appear that the appellee as far back as 1892 was the equitable owner of some 130 acres of said 400 acres of land. By reason of the deed aforesaid from W. H. Hensley to his wife the latter became thereunder the owner of the residue of such land, subject to the payment of existing debts of W. H. Hensley. Prior to the whole 400 acres being subjected by its sale aforesaid, a parol partition was made of this land between said appellee and said wife of said W. H. Hensley, by which the 130 acre parcel owned by said appellee was set apart to her by metes and bounds. These metes and bounds were the same as those set out in a deed appearing in the record dated in 1892 purporting to be from said W. H. Hensley and wife to said appellee conveying to the latter such 130 acre parcel of land, but executed and acknowledged by such wife only (hence inoperative) and was not recorded. Said appellee, however, took possession of such land and has continued to live on it ever since, except that part of this parcel was included in the said" sale to Burdine, leaving remaining thereof to said appellee the land described and claimed in the bill.</p> <p>In the progress of said suit, in which appellant purchased the land aforesaid, it developed that W. H. Hensley and wife had conveyed away'fifty acres of such land by a deed, good against the creditors whose debts were asserted in such suit, so that when the conveyance was made to appellant by the commissioner of court, only 350 acres of said land was conveyed to him.</p> <p>Subsequently to his purchase of the land aforesaid appellant had a transaction of an exchange of land with W. H. Hensley and wife. Appellant conveyed to the wife of W. H. Hensley a certain tract of land owned by him in consideration of $250.00 and, as he contends, the whole 350 acres of land aforesaid, which he claims belonged wholly to such wife. He denies the ownership of said appellee of any part of it and all knowledge of said 130 acres formerly belonging to said appellee, or of said partition between the latter and the wife of W. H. Hensley, or of said appellee’s ownership of the remainder of such 130 acre parcel after deducting' the portion thereof included in the sale to Burdine. But without going further into detail, it is sufficient to say that appellant’s statements on this subject also are not convincing. The deed executed by appellant carrying out such exchange is not in evidence, so no light is thrown thereby on the true consideration for it. The preponderance of evidence, including the fact of said occupancy and possession of said appellee, establishes that such exchange by appellant was for the interest of W. H. Hensley and wife only in the 350 acres of land, and did not include the interest of said appellee therein, consisting of the land in the bill mentioned. The relationship and situation of the parties and of the land is such that it seems clear from the whole record that appellant all along knew of the ownership by said appellee of the land claimed in her bill.</p> <p>The explanation which appellant and his wife in their testimony give of this exchange transaction is that W. H. Hensley complained to appellant that the latter “had not given enough for the land at the sale” and wanted the said exchange made for that reason, and for that reason appellant consented to it. But the preponderance of evidence is against this being a correct explanation of this transaction.</p>

<p>Error to an order of the Circuit Court of Scott county, confirming an award in arbitration proceedings.</p> <p>The opinion states the case.</p>

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

<p>Appeal from a decree of the Circuit Court of Roanoke county. Decree for the complainant. Defendant appeals."</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county. Decree for complainant. Certain defendants appeal.</p> <p>The opinion states the case.</p>

Decree for complainant. Defendant appeals. STATEMENT OF THE CASE. This is the second appeal in this cause. The case on the former appeal is reported in 117 Va. 676, 86 S. E. 111.

Decree for defendant. Complainants appeal. STATEMENT OF THE CASE AND FACTS. This case involves the sole question of whether the appellee, the widow of John B. Hurt, deceased, under the will of the latter, is entitled to and is the absolute owner of the intangible personal property of the estate of such testator?

<p>Appeal from an order of the State Corporation Commission, refusing to issue a certificate of dissolution of a corporation upon an application by the stockholders.</p> <p>The opinion states the case.</p>

<p>1. Parties to Action — Executors and Administrators. — As the personal property of the decedent is the primary fund for the payment of his debts, his personal representative is a necessary party to a suit by which such fund is affected. He is a proper party to a suit by a judgment creditor to subject his debtor’s lands to the lien of his judgment; but where the pleadings admit that the debtor died without personal assets and no relief is sought against his personal representative and no accounting by him is asked, he is not a necessary party.</p> <p>2. Appeal and Error — Harmless Error — Dismissal, Discontinuance and NonsuiU — A bill was filed by a judgment creditor against the administrator and heirs of the deceased debtor, to subject her land to the lien of the judgment. The bill alleged that the debtor owned no personal property at the time of her death, out of which the judgment could be collected. The administrator and one of the heirs filed separate pleas of the statute of limitations. At the hearing the complainant asked leave to dismiss his suit as to his administrator, which motion the administrator resisted. The court, however, permitted the dismissal.</p> <p>Held: That the administrator was a proper party and the suit should not have been dismissed as to him. But the error in permitting complainant to dismiss as to the personal representative of the debtor was harmless, as the heir was permitted to, and did, make the same defense set up by the administrator.</p> <p>8. Process — When Returnable. — Section 8220 of the Code of 1902 provides that process, whether original, mesne or final, shall be returnable within ninety days after its date, and that process shall be issued before the rule day to which it is returnable, but may be executed on or before that date. All three kinds of process are embraced in the same class and put upon exactly the same footing, and, it having been determined that original and mesne process returnable more than ninety days, after its date is void, final process, or process of execution,, must share the same fate.</p> <p>4. Executions — Returnable After Ninety Days — Void or Voidable.— In a suit to subject the land of a deceased debtor to a judgment lien, one of the heirs filed a plea of the statute of limitations,, setting forth that only one execution had issued on the complainant’s judgment within ten years from its date, and that the execution so issued was returnable more -than ninety days: from its date, and hence was void.</p> <p>Held: That an execution returnable more than ninety days from its date was not merely voidable, so that its invalidity could not be set up in a suit to enforce the judgment, but was void; and that fact might be shown by anybody, anywhere and at any time.</p> <p>5. May — Shall—Statutes—Mandatory or Permissive. — As used in section 3577, Code of 1904, providing that on a judgment execution may issue within a year, may is permissive, whereas shall as used in section 3220 of the Code, providing that process shall be returnable within ninety days after its date, was mandatory,</p> <p>6. Process — Waiver.—The doctrine of waiver has no application to a void process.</p>

<p>Appeal from a decree of tlie Law and Chancery Court of the city of .Roanoke. Decree for complainant. Defendants appeal.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendant assigns error. Statement of the Case and Facts In this action of trespass on the case the defendant in error was plaintiff and the plaintiff in error was defendant in the court below. They will be hereinafter referred to as plaintiff and defendant. The action was brought to recover damages for the alleged wrongful ejection of the plaintiff from a passenger train of the defendant by the conductor of the latter. The Facts.

Judgment for plaintiff. Defendant assigns error. The plaintiff in error, hereinafter called the Foundry Company, was engaged in the manufacture and sale of iron pipe, and employed the defendant in error, who was nineteen years of age at the time of the injury hereinafter mentioned, to “load all kind of pipe” when not engaged in the shop.

Judgment for plaintiffs. Defendants assign error. Statement op the Case and Facts.

<p>Appeal from a decree of the Circuit Court of Buchanan county. Decree for defendant. Complainant’s appeal.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendant assigns error. The instructions given at the instance of the plaintiff were: No. 1.

<p>1. Appeal and Error — Harmless Error — Construction of Contract by Court. — Although it is error for an instruction to submit to the j"ury the construction of a contract when it was the duty of the court to construe it, yet where the error is favorable to the plaintiffs in error and not injurious to them, it is harmless as to them.</p> <p>2. Trees and Timber — Sale of Standing Timber — Reservation of Tan Bark — Measure of Damages. — A contract for the sale of growing timber gave the lumbermen two years from the date thereof within which to manufacture and remove the timber. The contract reserved to the landowners the tan bark on certain trees, which trees were to be felled and peeled by the landowners at such time “during the peeling seasons” as would not be inconvenient to the lumbermen for the manufacture of the trees. It appeared that the tan bark could only be conveniently and profitably taken from the trees during the months of April, May and June. Upon a fair construction of this contract, the landowners were to have at least two tan bark seasons in which to secure the tan bark, and the lumbermen violated the contract by felling the trees in question before the second tan bark season began. As the lumbermen were to have two years in which to perform their contract, so the landowners were also to have a reasonable time in which to secure the tan bark. That reasonable time is not only indicated by the two years fixed for the benefit of the lumbermen, but also by the use of the plural “seasons” in the contract. The landowners were entitled to recover as damages the fair value of the tan bark of which they were deprived.</p> <p>3. Contracts — Construction—Parol Evidence. — The antecedent conversations and agreements between the parties, so far as they are in conflict with a written contract, cannot, of course, be receivedoto vary or contradict it, but if its meaning be doubtful the surrounding circumstances, the condition and avowed purposes of the parties, as well as the subject matter of the contract, may be proved by parol testimony in order to enable the court to determine its meaning.</p> <p>4. Merchantable Timber . — A contract ror the sale of growing timber provided that the timber was to be of sound, merchantable quality. Within the meaning of this contract, sound merchantable logs are logs that have a commercial value for manufacture into lumber and such as were ordinarily used for that purpose in that locality. What is merchantable in one locality may be unmerchantable in another locality, and it is error to instruct the jury that the test of whether a log has a merchantable value is that “when cut into lumber, it produced all or any of the grades of lumber known and recognized as merchantable lumber in the lumber markets.”</p> <p>5. Trees and Timber — Sale of Growing Timber — Damages for Breach of Contract. — Where a landowner sells his timber and receives the purchase price therefor in full, upon condition that the timber is to be severed and removed within a limited time, then all such timber or logs, although paid for, which remain upon the property at the end of the time limited, revert to the owner of the land, and the lumberman cannot recover such timber or dumber, or the value thereof.</p> <p>6. Trees and Timber — Sale of Growing Timber — Damages for Breach of Contract. — Where a landowner sells his timber but does not receive the purchase price therefor in full, and timber covered by the contract is left growing, and logs left in the woods which should have been taken out, nevertheless the landowner cannot recover for the contract value of this timber and these logs because they remained his property and were still in his possession, and if they were utilized or by reasonable diligence could have been utilized by him, any amounts realized, or which could have been thus realized, therefrom should be set off against the damage which the jury might find in favor of the landowner.</p> <p>7. Trees and Timber — Contract of Sale — Lumber Used in Buildings. — A contract for the sale of growing timber provided that the lumbermen should have the right to erect on the premises necessary buildings for the manufacture óf the timber, the buildings to revert to the landowner when the. lumbermen had finished the manufacture and removal of the timber, and the amount of lumber used in the construction of the buildings to be deducted from the amount of timber measured during the current month. The words in the contract “amount of lumber” and “amount of timber” are to”be construed to refer both to quantity and value, and where inferior timber is used in the construction of the buildings, only the actual value thereof should be deducted and not the average value paid by the lumbermen for all the logs. '</p> <p>8. Trees and Timber — Contract of Sale — Lumber Used in Buildings — Building.—Platforms or docks running out on a level with the mill floor upon which the lumber is taken on cars and stacked for the purpose of drying, are not buildings within the meaning of the contract referred to in the preceding syllabus, and hence the logs from which the lumber was made out of which they were constructed should be paid for.</p>

<p>1. Dismissal, Discontinuance and Nonsuit — Reinstatement of Cause. — In a suit regar ding.lands, a consent decree was entered awarding the complainant a writ of possession for the lands, and retiring the cause f^om, the docket, with leave to either party to reinstate upon reasonable notice to the adverse party. Twenty years or more afterwards notice was issued by the wife of the original complainant, not a party to the suit, addressed to the defendants in the original suit and appellant, not a party to that suit, that she would move the court to reinstate the cause in order that she might obtain from the court an order for a writ of possession of the land. Upon this notice and without other allegations, or evidence, the court entered a decree awarding the writ of possession asked for.</p> <p>Held: Error upon the part of the court. The proceeding under the notice was neither a suit in equity, an action at law, nor based upon any statute. The wife of the original complainant was not a party to the original suit; neither was the appellant. Whatever the effect, if any, of the leave given to either party to reinstate the suit in the original decree, such privilege could only have been exercised within a reasonable time, and by one of the parties to the original suit. The court had no jurisdiction over either the party seeking to reinstate the cause or the appellant, nor over the land apparently involved in the controversy. The decree, therefore, was void.'</p>

<p>1. Vendor and Purchaser — Rescission—Variance Between Executory Contract and Deed.— Where, in accordance with an executory contract of sale, there has been a valid delivery and acceptance of a deed, and an execution and delivery of the purchase money bonds, the vendee is concluded from asserting that an exception in the deed of three acres included in the metes and bounds, previously conveyed by the vendor to another, was a material departure from the' terms of the executory contract entitling her to a rescission.</p> <p>2. Vendor and Purchaser — Construction of Contract. — In a written contract for the sale of land the vendor agreed to convey to the vendee by deed with general warranty of title, a tract of land supposed to consist of 108 acres, more or less, and all the buildings and improvements thereon, which was conveyed to said vendor by his father by a certain deed, which land had for a number of years been occupied by the vendor as a home. A deed conveying 107% acres of the land conveyed to vendor by his father by the deed referred to, which had long been occupied by the vendor as a home place, complies with this contract, although this 107% acres was not all of the tract conveyed to the vendor by his father in the deed referred to, the vendor having twelve years previously conveyed three acres to another party, who had at once built upon and improved the premises. There was evidence that the vendee knew of this sale and from her conduct it appeared that she knew that the three acres in question were not included in her contract with the vendor.</p> <p>3. Vendor and Purchaser — Pa/rol Evidence. — Where, in construing a contract of sale, the knowledge of the vendee of the prior conveyance of three acres of the land in question to another by the vendor, was a material fact for the court to know in determining the probable intention of the parties, the testimony of the husband of the vendee that the vendor had told him that after taking off the three acres from the tract 108 acres would remain, was not objectionable as in violation of the rule against the use of parol evidence to vary the terms of a written contract.</p> <p>4. Vendor and Purchaser — Boundaries—Reference to Prior Deed. — ■ Where a written contract for the sale of land described the subject matter of the sale as the tract which was conveyed to the vendor by his father by a certain deed, the vendee is charged with knowledge of the boundaries of the tract, as described in that deed.</p> <p>5. Vendor and Purchaser — Encumbrances.—Mere knowledge of any encumbrance at the time of the contract, and the mere taking possession with such knowledge, especially where the contract provides for possession in advance of the conveyance, does not necessarily cut off a defense against the specific execution of a contract for the sale of real estate; but where the circumstances and the conduct of the parties show that the existence of an open, visible, physical encumbrance of the property must have been taken into consideration in fixing the price of the property, the purchaser can neither refuse to complete the purchase nor require an abatement of the price. This rule finds its most frequent expression in cases involving public highways, but this is due mainly to the fact that public highways are always open and visible, and the reason of the rule applies to any visible and obvious physical servitude. In such cases a covenant of general warranty is not broken by the continued adverse use of the road or right of way.</p>

<p>Appeal from a decree of the Circuit' Court of Wise county. Decree for complainant. Defendant appeals.</p> <p>The opinion states the case.</p>

Decree for complainant. Defendant appeals. Benjamin B„ Taylor, who was the owner of valuable real and personal‘estate, made a will of which the following is a copy: “I, Benjamin B. Taylor, being now of sound mind & disposing memory, do make the following as my last will and testament. “1st. I desire that Hiram H. Taylor my son have the parcel of land contracted to him as the contract will show. “2nd.

<p>Error to a judgment of the Circuit Court of Wise county, in an action of assumpsit. Judgment for plaintiif. Defendant assigns error.</p> <p>The opinion states the case.</p>

Judgment for defendant. Plaintiff assigns error. In this action of trespass on the case in trover and conversion the plaintiff in error was the plaintiff and the defendant in error was the defendant in the court below, hereinafter referred to as plaintiff and defendant.

<p>Error to a judgment of the Circuit Court of Dickenson county. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendants assign error. Plaintiff's Instructions. No. 1. The court instructs the jury that if they believe from a preponderance of the evidence in the case that the plaintiff has shown legal title in himself to the land in controversy and the present right of possession at the time of the institution of this suit, then they must find for the plaintiff. No. 2.

Decree for complainant. Defendant appeals. The Town of Appalachia, desiring to grade certain of it’s streets and avenues, adopted a resolution June 80, 1914, directing the grading to be done, and designating and directing the street committee of said council, composed of E. L. Crizer, J. M. Cornett, and W. H. Johnson, to proceed by personal inspection of all premises likely to be effected by such grading, and ascertain what damages, if any, would accrue to the owners of such…

<p>Appeal from a decree of the Circuit Court of Russell county. Decree for complainants. Defendant appeals.</p> <p>The opinion states the case.</p>

an action of trespass on the case. Judgment for plaintiff. Defendant assigns error. The following were the instructions for plaintiff referred to in the opinion; 1.

<p>1. Appeal and Error — Successive Trials. — The rule is that where there have been two trials the Supreme. Court of Appeals must look first to the evidence and proceedings on the first trial, but where the evidence upon each of the last two trials was identical and the latter verdict the larger of the two, it follows that if there was no error to the prejudice of the plaintiff on the last trial, there could have been none on the former, even though there was a view of the premises by the jury on the former trial and not on the latter, where the judge of the trial court had the benefit of such light as the view might have shed upon the evidence, and it was clear that the final trial brought the case to the test under the most favorable possible circumstances for the plaintiff, since it gave him the benefit of the rules applicable to a demurrer to the evidence in the lower court as well as in the appellate court.</p> <p>2. Appeal and Error — Demurrer to the Evidence — Motion to Set Aside. — The position of a plaintiff is more favorable upon a demurrer to the evidence by the defendant than upon a motion to Set aside a verdict in his favor. Accordingly, where the plaintiff assigns as error the action of the court below, first, in setting aside a verdict in his favor, and, second, in sustaining defendant’s demurrer to the evidence, the appellate court will consider only the action of the court below upon the demurrer to the evidence.</p> <p>3. Master and Servant — Safe Place to Work. — Plaintiff, an employee of defendant, was injured by having his hand caught and pulled into the cogs and gearing of two wheels which operated a part of the machinery of the defendant’s sawmill. At the time of his injury he was attempting, with a small stick, to put some tar upon the wheels. The place where he was standing was as safe as any other place would have been with the same sort of machinery in operation around it. The construction of the defendant’s plant and the installation of its machinery conformed to that of similar plants in general use in the country. As the machinery and not the place where he worked constituted the danger and caused the injury to plaintiff, an allegation that defendant had not exercised ordinary care to furnish the plaintiff a reasonably safe place in which to work was not sustained by the evidence.</p> <p>4. Master and Servant — Liability of Master — Safe Machinery and Appliances. — Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business.</p> <p>5. Master and Servant — Liability of Master — Duty to Warn Servant. — Plaintiff was injured while attempting, with a small stick, to put tar upon the wheels operating a part of the machinery of defendant’s sawmill. He was a competent and intelligent man, who had worked for the defendant about three years in and around the plant. The dangerous character of the machinery itself was perfectly open and obvious to any man of ordinary intelligence, and there was no duty upon the defendant to warn plaintiff of its dangerous character. Moreover, plaintiff had been assigned to oil the machinery for a few days and there was no evidence that he had been directed to use any tar anywhere, and there was no reason for his master to expect that he would usé it. He voluntarily and gratuitously undertook something which he was not ordered or expected to do, and has no legal cause of complaint.</p>

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

<p>Appeal from a decree of the Corporation Court of the city of Roanoke. Decree for complainants. Defendants appeal.</p> <p>The opinion states the case.</p>

<p>Appeal from a decree of the Circuit Court of Rockbridge county. Decree for defendant. Complainant appeals.</p> <p>The opinion states the case.</p>

Decree for complainants. Defendants appeal. Statement of the Case and Facts. This suit in equity was instituted in the Circuit Court of Albemarle county by Joseph E. Baber, one of the appellees, in November, 1909.

<p>Error to a judgment of the Circuit Court of Botetourt county, awarding a mandamus.</p> <p>The opinion states the case.</p>

<p>1. Counties — County Officers — Compensation — Discretion of the Board of Supervisors. — A. board of supervisors may not withhold action fixing the amount of, or what is the same thing in effect, place a condition or conditions upon the payment of the salary or compensation allowed by law to an officer whose office or position is not created by the board of supervisors but by law. Such an office or position is not the creature of the board of supervisors but of the law. By the law, therefore, and not by the board of supervisors, except as they may act in accordance with the law, must the salary or compensation of such office or position be fixed. For any failure of such an officer to discharge his duties which are prescribed by law, the remedy of mandamus will lie. To allow boards of supervisors to withhold any action aforesaid, or to place a condition or conditions upon the payment of the salary or compensation aforesaid, would be to allow such boards to nullify the election of the officer to the extent of the emoluments of the office allowed by law thus denied him.</p> <p>2. Clekks op Coukt — Discretion of Board of Supervisors in Fixing Compensation. — The board of supervisors of a county has no discretion to refuse to act in fixing the compensation and other allowances of a county clerk allowed by law at something, within the limits prescribed by statute; nor, if it acts, to impose a condition or conditions upon the payment of such compensation, on the ground that the clerk has not performed, or is not performing his duties as such.</p> <p>S. Counties — County Officers — Discretion of Board of Supervisors— Time of Payment of Salary. — A board of supervisors undoubtedly has a discretion as to fixing the time or times of payment of salaries and allowances of county officers, if exercised for good and sufficient cause — such as the condition of the county treasury in the lack of funds to pay same at a certain time or times in the year, because of some situation against which the board did not and could not reasonably have been expected to provide in the next preceding laying of the county levy, or the like cause, operating impersonally. The board of supervisors of a county has no discretion to fix a different time of payment of the annual salary and other allowances provided for by law of a county clerk from the times of payment of salaries and allowances of other county officers allowed by law, on the ground that the clerk is not discharging or has not discharged his duty as such.</p> <p>4 County Officers — Interest on Back Salary and. Allowances. — An obligation of a county of the State to a clerk for the unpaid amount of allowances made him by order of the board of supervisors, bears no interest.</p> <p>5. Clerks of Court — Extra Compensation for Current General Index. — The extra allowance allowed in section 3184, Code of 1887, as amended by Acts of Assembly, 1891-2, p. 772, to a clerk of court or other suitable person for preparing a general index to the deed books, will books, etc., in the clerk’s office, applies only to some person, not necessarily the clerk, specially appointed by the court to make the general index mentioned in the statute, and does not apply to the current general indexing subsequent to the order of the court making such appointment. In the instant ease it was the duty of the clerk to do the current general indexing and he was not entitled to any extra compensation therefor other than his salary as county clerk. An order of court allowing such extra compensation would be without authority of law, and the board of supervisors would have no authority thereunder to “direct warrant therefor” or otherwise authorize such payment out of the county treasury.</p> <p>6. Clerks of Court — Duty as to Indexing. — An order was entered under section 3184, Code of 1887, as amended by Acts of Assembly, 1891-2, page 772, by which the clerk was appointed to make the general index to the deed books, will books, etc., in the clerk’s office. Prior to such order there was in use in the county a general index system which was not ledgerized. Acting under the order, the clerk began the general indexing and adopted a ledgerized system known as the “Coons’ Index System.” The clerk also subsequent to the order indexed all deeds, wills, etc., according to the “Coons’ Index System” and continued this current indexing until the county failed to provide him with the “Coons’ Index System” and the necessary index books for the work of current general indexing, when he returned to the old general index system, subject to some improvements.</p> <p>Held: That the clerk was, under the circumstances, justified in returning to the old system of general indexing, and that in doing such indexing in accordance therewith he complied, with his duty as prescribed by statute; and that it would not be his duty to general index the accumulated records in some general index system which might thereafter be provided and installed in the clerk’s office.</p> <p>7. Clerks of Court — Records—General Index System,. — Action of the circuit court adopting a general index system was, under the statute formerly existing on the subject, and is now under the statute at present existing on the subject, a condition precedent to the ascertainment of what general index system, if any, other than that previously in use, it is the duty of a county clerk to use at any given time in current general indexing the records of his office.</p> <p>8. Clerks of Court — Fee for Recording Deed to County. — A county clerk is entitled to the fee allowed by section 8505, Code of 1904, for recording a deed to the county, notwithstanding a general allowance to the clerk for road services.</p>

<p>1. Physicians and Surgeons — Prosecution for Practicing Without Having Procured a Certificate. — Accused, at the time of the prosecution, was a non-itinerant optician engaged in the practice of optometry, and had been so employed since the year 1884. He had the following display letters on the front door and windows of his place of business: “Dr. J. Harry Martin, Incorporated, Eyes Exclusively,” and “Dr. J. Harry -Martin, Incorporated, Optometrist.” It did not appear that accused had ever practiced or offered to practice medicine or surgery either in the city of Roanoke or elsewhere.</p> <p>Held: The accused was exempt from prosecution under chapter 84, section 12, Acts 1916, pages 188, 147, as the accused was included in the exemption of section 11, of “any non-itinerant person or manufacturer who mechanically fits or sells lenses, artificial eyes, * * * or is engaged in the mechanical examination of eyes for the purpose of adjusting spectacles, eyeglasses or lenses; * *</p>

<p>1. Criminal Law — Indictment and Information — Constitutionality of Statute — Appeal and Error — Point Raised for .the First Time on Appeal. — Every indictment is based upon the existence of a valid law annexing a penalty to the offense charged. If that law is unconstitutional, it is void. It is no law at all, and there is no penalty to inflict. So soon, therefore, as this fact is brought to the attention of the court in any way, whether by demurrer, plea, motion or otherwise, the case is at once dismissed, as there is no offense to be punished. It need not be specially pleaded. This rule applies to the appellate court as well as the trial court, although the point is made in the appellate court for the first time.</p> <p>2. Constitutional Law — Construction—Expressio Unius — Exclusio Alterius. — The maxim, expressio unius est exclusio alterius, though often of importance and value, is not of universal application, even in the interpretation of State Constitutions. They are the fundamental, permanent law of the land, providing for the future as well as the present, and should carry out the principles of government as gathered from the instrument when read as a whole. The application of arbitrary rules of construction will be resorted to with hesitation, especially when it would bring about results contrary to the declared public policy of the State, and hamper the legislature in amply providing for the health, morals, safety and welfare of the people. Only those things expressed in such positive affirmative terms as plainly imply the negative of what is not mentioned, in view of the known policy of the State, will be considered as prohibiting the powers of the legislature. The principle of the maxim should be applied with great caution to those provsions of the Constitution which relate to the legislative department, and the exclusion should not be made unless it appears to be a plainly necessary result of the language used.</p> <p>3. Constitutional Law- — Construction—Constitution not a Grant of Power, but a Restriction upon the Power of the Legislature.— In determining whether an act of the legislature is forbidden by the State Constitution, it must be borne in mind that the Constitution is not a grant of power, but a restriction upon an otherwise practically unlimited power; that the Constitution is to be looked to, not to ascertain whether a power has been conferred, but whether it has been taken away; that the legislature is practically omnipotent in the matter of legislation, except in so far as it is restrained by the Constitution, expressly or by plain, or (as some of the cases express it) by necessary, implication.</p> <p>4. Constitutional Law — Construction—Presumption in Favor of Act. — The mere enactment of a law is a legislative declaration of the necessary constitutional power, which is entitled to great respect from a co-ordinate department of the government; every act is presumed to be constitutional until the contrary is made plainly to appear, and all doubts on the subject are to be solved in favor of its validity.</p> <p>5. Intoxicating Liquors- — Constitutional Law — Power of Legislature as to Regulations in Regard to Intoxicating Liquors.— In this State, from the earliest date to the adoption of the present Constitution, the legislature has exercised uncontrolled power over the manufacture and sale of intoxicating liquors, and since local option and dispensary laws have come into vogue, has exercised undisputed authority and control over these subjects also, and it would require very plain language in a constitutional provision to indicate that it was the purpose of the constitutional convention to take away from the legislature a power exercised by the legislatures of the other States of the Union, and one that has been' within the province of the legislature of this State from the earliest date.</p> <p>6. Constitutional Law — Classification of Constitutional Provisions — Mandatory, Prohibitive and Permissive or Declaratory.— The constitutional provisions relating- to the legislative department have been classified as mandatory and prohibitive. The oaths of the legislators bind them to the performance of the one, and the courts restrain them from the performance of the other, if they should overstep the limits set. As to all other powers they are free to act as their judgments dictate. In the main this classification is correct, but Constitutions sometimes contain other provisions relating to or affecting the legislative department, which may be classified as either permissive or declaratory.</p> <p>7. Constitutional Law — Classification of Constitutional Provisions — Mandatory, Prohibitive and Permissive or Declaratory.— When the Constitution has fully dealt with a subject and covered the entire ground, the legislature would be powerless to make any change in it, unless specially authorized to do so, and it may be desirable to confer such authority. In such case the authority is conferred by a permissive grant in the Constitution. In other cases the constitutional provision is only declaratory of the existing law, and there may or may not be annexed to it a prohibitory provision.</p> <p>8. Constitutional Law — Construction — Presumption as to the Meaning of Words and Phrases. — The presumption is that the same meaning attaches to a given word or phrase which is repeated in a Constitution, unless the contrary is made to appear, and hence the whole instrument should be examined to ascertain what that meaning is.</p> <p>9. Intoxicating Liquors — Constitutional Law — Construction of Section 62, Constitution of 1902. — By section 62, of the Constitution of 1902, it is provided that: “The General Assembly shall have full power to enact local option or dispensary laws, or any other laws, controlling, regulating or prohibiting the manufacture or sale of intoxicating liquors.” This section does not authorize the enactment of a single law the legislature might not have enacted if the section had not been adopted. It is simply declaratory of the existing law, but thereby inviting attention to the subject. Complete authority over the whole subject of intoxicating liquors has not been taken away from the legislature by an express provision, nor by necessary implication, and the maxim expressio unius est exclusio alterius does not apply.</p> <p>10. Constitutional Law — Construction—Expediency—Mapp Act.— The Supreme Court of Appeals is of opinion that the purpose of the act is a wise one, but even if it were of a different opinion, it could make no difference in the result so long as it is within the legislative power, for judicial opinions of expediency cannot be substituted for the will 'of the legislature when constitutionally expressed.</p> <p>11. Constitutional Law — Mapp Act — Section 62, Constitution of 1902. — The provisions of the act of Assembly approved March 10, 1916 (Acts 1916, page 215), commonly known as the prohibition act, so far as called in question in this case, are not forbidden by section 62 of the Constitution of this State.</p> <p>12. Intoxicating Liquors — Indictment and Information — Charging More than One Offense in a Single Count. — Section 7, Acts 1916, page 215, prescribing a form of indictment under the prohibítion act, which shall be sufficient, in effect declares that more than one offense arising under the statute may be charged in a single count. The power of the legislature to change rules of procedure is unquestionable, except as restrained by the Constitution, and there is no good reason why it may not provide that what has heretofore required several counts in an indictment may now be accomplished by a single count, provided the prisoner is not unlawfully prejudiced thereby. If the prisoner is not prejudiced, it is a matter of mere procedure and clearly within the province of the legislature. The prisoner is not so prejudiced if he is fully put upon notice of the cause and nature of the offense with which he is charged, and is afforded ample opportunity to make his defense.</p> <p>13. Intoxicating Liquors — Indictment and Information — Charging Mor& than. One Offense in a Single Count. — In the absence of statutory regulation, while any number of misdemeanors of the same nature and punishable in the same manner may be charged in the same indictment, there must be a separate count for each offense, and a defendant cannot be convicted of more offenses than there are counts, and it follows that the defendant cannot lawfully be charged with more than one offense in a single count.</p> <p>14 Indictment and Information — Requisites and Sufficiency. — In all cases, civil as well as criminal, a person hailed into court has the right to demand that he be told in plain, intelligible language what is the cause of the complaint against him; and this right, in so far as it relates to crimes, is guaranteed by both the federal and State Constitutions.</p> <p>15. Indictment and Information — Requisites and Sufficiency — Cause and Nature of Accusation — Prohibition Act — Sufficiency of Statutory Form. — An indictment following the statutory form, as set out in section 7 of the prohibition act, Acts 1916, page 215, undertaking to charge the defendant with all of the first offenses under sections 3, 4 and 5 of the act, does not fully inform the defendant “with clearness and certainty” of the “cause and nature of his accusation.”</p> <p>16. Indictment and Information — Requisites and Sufficiency — Legal Conclusions. — Ordinarily, the acts done should be charged, in order to give the defendant the necessary information. It is the function of an indictment to charge facts and not legal conclusions.</p> <p>17. Indictment and Information — Criminal Law — Constitutional Law — Cause and Nature of Accusation — Waiver of Right. — . While the Constitution guarantees to every man the right to demand “the cause and nature of his accusation,” it does not prescribe the manner in which this demand shall be complied with. It does not require that it shall be by indictment, or in any other prescribed manner. It may be by presentment or information, or in any other manner the legislature may provide. Furthermore, the right guaranteed by the Constitution is the right to demand “the cause and nature of his accusation.” If he does not choose to demand it, he is under no obligation to do so. It is a right that he may waive if he chooses, and which he will be held to have waived unless he asserts it.</p> <p>IS. Bill of Particulars — Right* to Demand — Civil and Criminal Cases. — The right to call for, and the duty to furnish, a bill of particulars in civil cases is of frequent application, and is regulated by section 3249 of the Code. The statute confers the right “in any action or motion,” and declares how it may be enforced. Apparently, this statute was not intended to apply to a criminal prosecution, but the right is inherent in the trial court in the orderly administration of justice, to prevent wrong and injustice to persons who are presumed to be innocent, and to assure to them their constitutional rights. The indictment, of course, must charge the offense, and if it fails to give the information necessary to enable the defendant to concert his defense, such information may be supplied by a bill of particulars ; but if the offense is not charged in the indictment, the defect cannot be supplied by a bill of particulars.</p> <p>19. Indictment and Information — More Offenses than there a/re Counts in the Indictment — Election.—Except in the single case of an indictment under the prohibition law, the law of this State is that there cannot be more offenses than there are counts in the indictment, and, if the Commonwealth offers evidence of more than one, the proper practice is for the defendant to ask the court to compel the Commonwealth to elect for which one it will prosecute.</p> <p>20. Appeal and Error — Criminal Law — Constitutional Law. — A denial of a constitutional right is, of itself, reversible error.</p> <p>21. Indictment and Information — More than One Offense Charged in Indictment — Compelling Prisoner to go to Trial on All.— If more than one offense has been charged in the indictment, the prisoner will not be compelled to go to trial on all, where it is made to appear that they are so separated by time and circumstance that it would confuse and disconcert him in preparation for the trial, or the jury in consideration of the case.</p> <p>22. Indictment and Information — More than One Offense Charged in a Count — Remedy.—Each count, in theory at least, is for a separate and distinct offense, while, in fact, it may be but one offense so charged as to meet the different phases of the evideuce as it may appear on the trial. It would seem, therefore, that the objection to the charge of more than one offense in the same indictment cannot, as a rule, be raised by demurrer. Neither can it be raised by motion in arrest of judgment, for the fact of difference in the offenses charged would not appear of record. The proper method seems to be by motion to quash, though the Commonwealth might be required to elect on which one it would proceed.</p> <p>23. Indictment and Information — Charging Two or more Offenses in the Same Indictment. — There is no reason on principle why even two felonies of the same nature and punishable in the same manner may not be charged in different counts of the same indictment.</p> <p>24. Indictment and Information — Election Between Counts. — Inasmuch as Acts 1916, chapter 146, section 7, permits more than one offense to be charged in a single count, the defendant has not the absolute right to demand of the attorney for the Commonwealth that he should elect for which of the several offenses he would prosecute. He might desire to prosecute for more than one. It is a matter resting in the sound discretion of the trial court whether or not an election should be compelled.</p> <p>25. Criminal Law — Election Between Counts. — While the Commonwealth must be permitted to charge an offense in various ways to meet the evidence as it may be adduced on the trial, if, by reason of charging several distinct offenses widely separated by time, place and circumstances, the defendant will- be seriously embarrassed in making his defense, whether the offense be felony or misdemeanor, an election should be compelled.</p> <p>26. Constitutional Law — Construction—Statute Adopted from Another State — Constitutionality.—While the interpretation by the highest court of a State from which a statute is taken will be followed, the legislature cannot, by enacting a statute which has been held constitutional and valid by the highest court of another State, deprive the courts of this State of the right to determine for themselves the constitutionality of such statute.</p> <p>27. Intoxicating Liquors — Evidence—Admissibility.—On the trial of the violation of the prohibition act, two witnesses testified that they had bought liquor from the defendants, and that they also bought liquor from one T. The defendants offered T. as a witness, and proved by him that the prosecuting witnesses had not bought any liquor from him. The defendants then offered to prove by T. that the prosecuting witnesses broke open his house, broke into his trunk and took out a gallon of whiskey.</p> <p>Held: That the latter evidence was irrelevant.</p> <p>28. Intoxicating Liquors — Prohibition Law — Possession qs Prima Facie Evidence. — Section 55 of the prohibition act, Acts 1916, page 215, declaring that possession of certain quantities of liquor should be prima facie evidence that the one in possession had the same for sale, makes no distinction as to the time of the acquisition of the liquor, whether before or after November 1, 1916.</p> <p>29. Constitutional Law — Power of Legislature — Rules of Evidence. — Section 55 of the prohibition act, Acts 1916, page 215, declaring- that the possession of certain quantities of liquor shall be prima facie evidence of a purpose of sale, merely establishes a rule of evidence; and that such rules may be established by the legislature is well settled.</p> <p>80. Intoxicating Liquors — Instructions—Instructions Read in Light of the Evidence, — In a prosecution under the prohibition act the jury were instructed, amongst other things, that if they believed that the defendants kept or stored ardent spirits'for sale or to give away they would be as guilty as if they had actually sold or given away ardent spirits. Although under' different circumstances this instruction would be misleading, if not erroneous, as the act allows gifts in one’s own home, but as instructions must-be read in the light of the evidence offered on the trial, and in the instant case the evidence was of a sale and not of a gift, and at a restaurant and not in a home, the instruction could not have misled the jury.</p> <p>81. Instructions — Refusal of Instruction Covered- by One Given — ■ Intoxicating Liquors. — Where in a prosecution under the prohibition act the court instructed the jury as follows: “The court instructs the jury that if they believe from the evidence that the defendants purchased the liquor prior to November 1, 1916, and had it for their own use and not to sell and did not sell the same, they should find them not guilty,” it is not error to refuse, at the request of defendants, the following instruction: “The court instructs the jury that if they .believe from the evidence that the defendants had the liquor in their possession prior to November 1, 1916, at which time the present liquor law came into effect, then such possession creates no presumption against them.” If the second instruction be conceded to be a correct statement of the law, defendants could not have been injured by its refusal, as the first instruction, given at their instance, stated the law as favorably to them as they were entitled to.</p> <p>82. Instructions — Refusal of Instruction Covered by One Given — > Intoxicating Liquors. — In a prosecution under the prohibition act, defendants requested the court to instruct the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima facie evidence of guilt, still, if the evidence shows that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, then the prima facie evidence is overcome and the Commonwealth must prove by clear, distinct and reliable evidence that the defendants had the liquor for the illegal purpose mentioned in the indictment.</p> <p>Held: If there was any error in refusing this instruction, it was harmless, as the court had already given, at the instance of the defendants, the following instruction which sufficiently protected their rights: “The court instructs the jury that notwithstanding the fact that possession of more than one gallon of liquor constitutes prima facie evidence of guilt, still if you believe from the evidence that the liquor was purchased before November 1, 1916, and stored away by the defendants for their own use, you should find them not guilty.”</p> <p>SS. Intoxicating Liquors — Prohibition Act — Possession of More than One Gallon of Liquor. — The prohibition act does not make it unlawful for a person to keep in his home for his personal use an amount of distilled liquor in excess of one gallon, if the possession was lawfully acquired. The act simply declares what the presumption shall be from such possession, and by the terms of the act the presumption is merely prima fade and may he rebutted.</p>