Volume 122 — Virginia Reports

<p>1. Appeal and Error—Omission of Bills of Exception from Record— Dismissal.—A motion to dismiss a writ of error was based uopn the fact that the petition, when presented to the judge awarding the writ, was not accompanied by a complete transcript of the record, as by some inadvertencei the bills of exception were omitted. Afterwards and before the motion was presented to the court, the plaintiffs in error applied to one of the judges of the Supreme Court of Appeals under section 3463, of the Code of 1904, for a writ of certiorari, requiring the clerk to transmit such portions of the record as had been theretofore omitted from the transcript. In response to this writ, the record was completed long before the motion was made, and was amply sufficient to present for the consideration of the court all of the errors which were assigned in the petition. The motion to dismiss the writ was therefore overruled.</p> <p>2. Expert and Opinion Evidence—Hypothetical Question—General Objection.—Hypothetical questions propounded to expert alienists as to the testamentary capacity of the testator fairly embodied, in narrative form, the evidence relied upon by the opponents of the will to show the incapacity of the testator.</p> <p>Held: That general objections to the questions not specifying what particular parts of the questions or answers were objected to, if overruled, were of no avail on appeal.</p> <p>3. Expert and Opinion Evidence—Hypothetical Questions.—While it is perfectly well settled that a hypothetical question to an expert witness must embody all of the material facts which the evidence tends to prove affecting the question upon which the expert is asked to express an opinion, it is not necessary that such question should embody all of the immaterial facts. If there be any facts or testimony omitted which the exceptant thinks are material, it is his duty to clearly indicate such defects to the court, and thereupon the court should require the propounder of the question to supply such omissions in the question as are material, so as to enable the expert to answer the question after being fully and definitely informed of all of such material facts.</p> <p>4. Appeal and Error—Question Raised for First Time on Appeal— Hypothetical Questions.—Suggestions as to the insufficiency of the hypothetical questions which are made in the petition for writ of error and brief of counsel should have been made in the trial court, and it is too late to make such suggestions for the first time on appeal.</p> <p>5. New Trials—Motion to Set Aside Verdict as Contrary to the Law and Evidence.—In considering a motion to set aside a verdict as contrary to the law and the evidence, the Supreme Court of Appeals is controlled by the demurrer to the evidence rule, section 3484 of the Code of 1904, and is prohibited from setting aside any verdict merely because of a serious conflict in the evidence. The motion cannot prevail unless the evidence upon which the verdict of the jury is based is clearly insufficient to support it.</p> <p>6. Wills—Costs—Contest—Executor.—Where the executor named in the supposed testamentary paper, in the performance of his duty, offers it for probate, his costs are taxed against the estate.</p> <p>7. Wills—Costs—Contest—Beneficiary Under the Will.—Where in the contest of a will it appeared that the beneficiary was the active litigant, seeking probate of the will, the contest being one between him as a beneficiary on the one hand, and the heirs at law of the decedent on the other, if the heirs at law prevail they may properly be awarded their costs against their adversary.</p>

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

<p>Appeal from a decree of the Corporation Court of the city of Staunton. Decree for complainants. Defendant appeals.</p>

<p>1. Divorce — Desertion — Sufficiency of Evidence.—In a suit for ' divorce from bed and board on the ground of desertion, the divorce should be granted where the unimpeached and uncontroverted evidence Showed that the defendant abandoned his wife without sufficient cause, telling her “that he was going away and did not want to have anything more to do with her, and would not ask her to live with him again;” and, that the only reason assigned by him for deserting his wife was that she had contracted an account in the neighborhood for food and clothing. It also appeared that, although defendant lived in the same county with plaintiff until a short time before the taking of the depositions in the case, he made no effort to communicate with her by word or- letter; that he was personally served with process in the suit, but neither appeared nor answered the bill, nor introduced any evidence in his own behalf.</p>

<p>1. Judgments and Decrees-Conclusiveness of Judgment-Collate- ■ ral Attack-Judgment in Divorce Suit as to Property Rights of Parties.-A decree in a suit for divorce in favor of a husband against his wife for desertion contained the following provision: “The court doth further adjudge, order and decree that the marital rights of each party tó this suit in and to any owned by the other party be and the same are hereby After the death of the husband the divorced wife instituted suit claiming dower in the real estate of her divorced husband, and a distributive share of his personal estate.</p> <p>Held: That, the decree in the divorce suit was intended to the wife’s right to claim dower upon the death of'.the husband, or .an interest in his personal estate; and, that the language used was adequate to that purpose; and, as the was within the jurisdictional power of the circuit court, and the parties were before the court, the decree in the' divorce suit, which, has never been reversed or annulled, must be presumed to be correct, and it cannot be collaterally assailed in the instant suit.</p> <p>2. Divorce-Property Rights of Parties-Section 2263, Code of .1904-“Estate.”-Code of 1904, section 2263, provides that the circuit court may not only grant decrees for divorce but “may make such further decree as it shall deem expedient concern-ing the estate and maintenance of the parties or either of them.” It was argued that the contingent right of dower in the real estate, and the prospective right to a distributive share of the personal estate were not “estates,” as that term is used ' in the statute.</p> <p>Held: That, while the contingent right of dower is not technically * an estate but is a mere lien which may be released or it is still a valuable property right, and the statute intended to confer upon the court the right not only to settle the status of the parties, but the future rights of each in the property of the other. Furthermore, the court has the right to make decreep concerning the estate of either party, and in the instant caso a decree extinguishing the maritai rights of the wife in her husband’s property concerns the estate of the husband as well as the contingent rights of the wife, and it would.seem clear from the very language of section 2263 that the court had this power.</p> <p>3. Divorce. A Vinculo—Property Rights—Common Law.—At common law, a divorce a vineulo could only be granted by the courts for a cause existing at the time of the marriage, and when the divorce was granted for such cause it avoided ab initio the property rights of the parties, so that there was neither dower nor curtesy in property then existing or thereafter acquired, and divorces for supervening causes could only be granted by act of parliament, which then became the law in the case.</p> <p>4. Divorce A Vinculo:—Property Rights—Law in Virginia.—In Virginia, where the divorce a vinculo determines the marriage ab initio, no marital right and consequently no right of dower or curtesy attaches, but where it is avoided for a supervening cause, and the marriage is void only from the date of sentence, it is said that, in the absence of any special provision in the sentence itself, dower and curtesy having attached already to the existing property of the parties are not as to that property impaired by the divorce.</p> <p>•5. Divorce A Mensa Et Thoro—Property Rights—Where Decree Contains no Provision—Common Law—Rule in Virginia.—At common.law a decree a mensa et thoro had no effect on the property rights of the parties, as there was no dissolution of the bond of matrimony, and they still remained husband and wife; and the same is true in Virginia in the absence of any order in the sentence of divorce, unless the separation is made perpetual, and, if, in a divorce a mensa et thoro, the separation is made perpetual, then it operates like a divorce a vinculo in respect of after acquired, property, barring the claim of dower or of curtesy as to such property.</p> <p>6. Divorce A Mensa Et Thoro—Property Rights—Rule in Virginia—Under Section 2263, Code of 190k.—Section 2263 of the Code of 1904 provides that whether the divorce be from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem expedient concerning the estate and maintenance of the parties, so that while the decree for a divorce a mensa et thoro does not affect the property rights of the parties if it is silent on that subject, yet the court may make such order with reference thereto as to it shall seem expedient. And as to existing property, the court has a right under this section to settle the rights of each party in respect to the property of the other, and if need be to extinguish them.</p> <p>7. Divorce—Property Bights—Conclusiveness of Decree.—The discretion given to the court under Code of 1904, section 2263, to settle the rights of each party in respect to the property of the other must not be exercised arbitrarily, but the court must be guided by law and established principles relating to the subject. But whether or not the discretion was properly exercised, or the power given by the statute was properly exerted, are questions that are concluded by the decree in the divorce suit;</p>

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

<p>Error to a judgment of the Circuit Court of Highland county in proceedings on a caveat. Judgment for caveatee. Caveator assigns error/</p>

<p>1. Set-off, Recoupment and Counterclaim—Whether Plea One of Set-off or Recoupment.—There were several contracts between the plaintiffs and the defendants, but where the special plea of defendants alleged facts from which the conclusion necessarily followed that the contract, but of the breach of which arose the set-off claimed by defendants, was a separate and distinct contract from that or those under.which the indebtedness sued for by the plaintiffs arose, the plea was one of set-off under section 3298, Code of 1904, and not of recoupment under section 3299, Code of 1904.</p> <p>2. Set-off, Recoupment and Counterclaim—Whether Plea One of Set-off or Recoupment—Case at Bar.—Plaintiffs brought an action against the defendants, their exclusive agents for the sale of manure spreaders in a certain territory, for the sum of $485.27, for certain spreaders sold and furnished by plaintiffs to defendants. This indebtedness arose under a contract or contracts existing between plaintiffs and defendants prior ■ to the year 1915 and was admitted by defendants, who by a special plea claimed a set-off, aggregating the sum of $1,000, consisting of certain losses of profits by defendants, through a breach by the plaintiffs of a contract with the defendants, entered into on January 20, 1915, giving them the exclusive right to sell the plaintiff’s manure spreaders in the same territory during the year 1915; the plaintiffs undertaking that they would fill all orders for defendants, at certain wholesale prices; and, that defendants should have the exclusive right to sell the manure spreaders of the plaintiffs in the territory so long as they might have on hand unsold spreaders so bought. Under this contract, defendants expended time and money in canvassing the territory, and took orders for twenty-six manure spreaders. Plaintiffs thereupon refused to fill an order by defendants for a carload of spreaders, and contracted with another agent in the territory for the sale of the spreaders. Defendants’ plea set out in totidem verbis the stipulations in writing subject to which all the orders for goods were given, which were given by defendants, prior to the contract of January 20, 1915. These stipulations were parts of the plea and showed on.the face of it that each order prior to the contract of January 20, 1915, stood alone and formed the basis of a-separate and distinct contract with plaintiffs, and ended when all the spreaders obtained by each respective order were sold. Therefore the ensuing allegations in the plea to the effect that the contract between plaintiffs and defendants existing in the summer of 1915, which was then broken by plaintiffs, waa “upon the same basis and conditions as are set out” in said stipulations, alleged facts from which the conclusion necessarily followed that the contract, out of the breach of which arose the set-off claimed was a separate and distinct contract from that or those under which the indebtedness sued for by plaintiffs arose, and the plea was one of set-off under Code of 1904, section 3298, and- not of recoupment under. section 3299 of the Code of 1904.</p> <p>3. Set-off, Recoupment and Counterclaim—Plea, of Set-off—Description of Claim.—A plea of set-off which clearly described, the set-off as consisting of loss of profits and set forth how and from what cause the loss of profits occurred described the set-off claimed by defendants so “as to give the plaintiffs notice of its nature” as required by section 3298, Code of 1904. Although the plea might have gone more into particulars as to several items of loss of profits, such as giving the names of the customers referred to, on loss of sales to whom the loss of profits alleged occurred, this would have added nothing to the description of the nature of the set-off claimed.</p> <p>4. Set-off, Recoupment and Counterclaim—Bill of Particulars.— ■The remedy of the plaintiffs to obtain further particulars of the set-off claimed by the defendants was by motion for a bill of particulars under section 3249 of the Code of 1904, and not by objection.to the plea.</p> <p>5. Contract for Sale of Machinery—Mutuality of Obligations— Plaintiffs assured defendants that if they would expend the necessary time and incur the. necessary expense in making a canvass of certain territory to press the retail sale of plaintiffs’ machinery during the year 1915, that plaintiffs would fill all orders defendants might in 1915 give for machinery at certain wholesale prices, and. defendants should have the exclusive right to sell plaintiffs’ machinery in said territory so long as they had on hand unsold goods. Accordingly, defendants made special efforts to sell plaintiffs’ machinery and expended time and money in canvassing the territory and or-; dered of plaintiffs a carload of the machinery, which plaintiffs refused to furnish.</p> <p>Held: That there was a meeting of the minds of the plaintiffs and defendants upon a contract by which the plaintiffs agreed to sell and deliver to the defendants such machinery as defendants might make retail sale of and order of plaintiffs in the year 1915, and there was a binding obligation on the part of the defendants to take and pay for such machinery, so as to create a mutuality of obligation in the premises.</p> <p>■6. Sale of Goods—Repudiation of Contract by Seller—Duty of Purchaser.—Under the circumstances set forth in the preceding syllabus, the refusal of the plaintiffs to ship the carload of machinery ordered by the defendants relieved the defendants of the need to go through the useless performance of giving any further order.</p> <p>7. Set-off, Recoupment and Counterclaim—Loss of Profit.—The loss of profit by defendants, on the sale of twenty-six manure spreaders, which they made before the breach by the plaintiffs of their contract to furnish defendants with the spreaders when ordered, was such damage as could be set-off under section 3298, Code of 1904.</p> <p>8. Set-off, Recoupment and Counterclaim—Statute—Construction.—Section 3298, Code of 1904, has been liberally construed in furtherance of its obvious policy which is to prevent a multiplicity of suits and as far as may conveniently be done to effectuate in one action complete justice between the parties.</p> <p>9. Set-off, Recoupment and Counterclaim—Unliquidated Damages.—If the amount of the claim of the defendant is so unliquidated that it cannot be ascertained by computation or calculation from definite data supplied by the evidence, and lies in mere opinion, as for instance, damages for not using a farm in a workmanlike manner, for not building a house in a good and sufficient manner; on a warranty for the sale of a horse; for not skillfully amputating a limb; for carelessly upsetting a stage, by which a bone is broken; for not making repairs to a dwelling • house; for unskillfully working raw, materials into a.fabric; and other cases of like character, where the amount to be settled rests in the discretion, judgment or opinion of the jury, such claim cannot be set-off under, the statute, section 298, Code of 1904. But where the damages are to be assessed upon pecuniary demands and are determinable by computation or calculation from data supplied by the evidence, they are so far liquidated that they may be set-off under the statute in question.</p> <p>10. Master and Servant—Breach of Contract of Employment— Damages.—Where a breach of contract of employment occurs before the party thereto claiming damages for its breach has fully performed the contract on his part, he must, as soon as he knows of such breach of contract, minimize his damages by engaging in other employment, if he can obtain it, and not persist in thereafter continuing, in order to aggravate his damages, in a course of conduct which can under the circumstances be of no value to the party who has broken the contract. But this rule has no application to the instant case, where the profits in question were all completely earned by the defendants before they knew or had any intimation of the breach of contract on the part of the plaintiffs.</p>

<p>1. Fires—Railroads—Evidence as to Other Fires.—In an action against a railroad for damages by fire, since the Featherston act, Acts of Assembly, 1908, p. 388, it is not error to admit evidence for the plaintiff that other engines of the railroad company at other times in the past had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the buildings of the plaintiff, for damages for the burning of which the action was brought. Prior to the Featherston act, the ultimate question of fact in issue in railroad fire damage cases was whether the fire was negligently set out by the railroad company. Since the Featherston act the issue in such cases does not include negligence as an essential ingredient. Such ingredient consists only of the existence of the fact of the setting out of the fire by the railroad company by sparks or coals (cinders) dropped or thrown from some one or more of its engines, and that, under such act, is the ultimate fact in issue; and all evidence, whether circumstantial or direct, which tends to prove that issue, is admissible.'</p> <p>2. Fires—Railroads—Evidence as to Other Fires—Weight of Evidence.—Evidence that on other occasions the engines of defendant company had thrown out sparks and cinders and in some cases had set out fires at and near the locality of the fire" about which action was brought, was not conclusive evidence in itself, but admissible to be weighed and considered by the jury in connection with all the other evidence in the case.</p> <p>3. Fires—Railroads—Evidence of Other Firesi—Remarks of Court on the Evidence—Appeal and Error—Harmless Error.—It was not error in the trial court in its ruling as to the admissibility of evidence of sparks and cinders being thrown out and fires started at other times, to remark that: “I think it admissible but not on the ground of showing that the engines were defective, but showing that at that point the railroad company had thrown out fire on other occasions and therefore that it is possible for it to have thrown out fire at this time.” The objection of tho defendant to the ruling was the use of the word “possible” instead of the word “liable,” as the court used in later rulings on the same question, but it was considered that in this connection the word “possible” was more favorable to the defendant than the word “liable.” Moreover, in view of the admittedly correct instruction given by the trial court on this point, it does not affirmatively appear from the record that the jury was misled by this ruling or would or could, in accordance with the evidence, have rendered a different verdict from what they did, and hence the error in such ruling, if there was one; was harmless.</p> <p>4. Fires—Railroads—Instructions.—In an action against a railroad for damages by fire, the following instruction, “The court further instructs the jury that the burden of proof is upon the plaintiff to show by clear and affirmative testimony that the defendant set out the fire, the court telling the jury that it is not sufficient for the plaintiff to show that it was possible for the defendant to have started the fire but it must appear from the evidence that there was no other probable cause for the fire,” is not • contradictory in terms, or calculated to mislead the jury into believing therefrom that it was instructed that the railroad company was liable, unless it appeared from the evidence that there was no other probable cause for the fire, when taken in connection with another instruction, “that before the plaintiff can recover in this case the evidence must be such as to show more than a mere probability that the property was destroyed by sparks of fire or cinders set out by an engine of defendant company.”</p> <p>5. Instructions—Multiplicity of Instructions.-—The practice of diminishing instead of multiplying instructions unnecessarily is rather to be commended than condemned.</p> <p>6. Instructions — Right to Instructions — Instructions Already Given.—The principle that when an instruction prepared by counsel for either party states a correct principle of.law, then the party offering it is entitled to have it given in the language employed in it, is subject to the well-settled qualification that when the jury have been fully and sufficiently instructed on a given point or points in a case, it- is not error to refuse other instructions, though correct, on the same point or points.</p> <p>7. Fires—Railroads—Instructions.—It is not error to refuse an instruction (although the proposition of law enunciated is correct) that the jury cannot “presume from the happening of the fire that it was caused by the defendant company’s engine or engines,” where it did not appear that the jury were asked to apply such a presumption, but, on the contrary, other instructions clearly instructed them as to the law which-negatived any such presumption. Moreover the instant case was not one in which the plaintiff was left by the evidence to rely upon such a presumption. She had other evidence in her behalf on the point. Hence the giving of such an instruction in such a case would have been confusing and misleading to the jury.</p> <p>8. Fires—Railroads—Instructions—Evidence to Support.—Where the evidence showed that the fire could only have arisen from causes for which defendant railroad was responsible and liable in damages under the Featlierston act, it was not error to refuse an instruction that if the jury believed that the fire might have resulted from one of two causes, for one of which defendant was responsible, but not for the other, the plaintiff could not recover, nor could the plaintiff recover if it was just as probable that the fire was caused by the one as by the other cause.</p> <p>9. Fires—Liability of Railroad—Featherston Act.—A railroad is liable under the Featherston act for a fire originating in any of the following ways: (a) From coals, or cinders, dropped from an engine and thrown by the wheels on trash and dry vegetable matter on the right of way of the railroad company, from which the fire burned over the ground and communicated and set fire to plaintiff’s property, (b) From sparks thrown from an engine on trash and vegetable matter on the right of way of defendant railroad, from which the fire burned over the ground and communicated and set fire to plaintiff’s property, (c) From sparks thrown from an engine, beyond defendant railroad’s right of way on to plaintiff’s property.</p>

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

<p>1. Executors and Administrators—Resort to Court for Direction and Advice.—Although executors have power under the will to sell the property belonging to the estate, the possession of such authority in no way deprives them of the right to go into a couit of equity for aid and guidance in the discharge of their duties,- and to have the property sold under its decree.</p> <p>2. Judicial Sales—Sales by Executor under Order of Court.—A sale made by order of a court of competent jurisdiction, pendente lite, is a judicial sale. Thus, where an executor having authority under a will to sell land, declines to exercise his authority, but applies to the court for instructions and directions, and is ordered to make sale and to report it to the court for confirmation, which he does, the sale is a judicial sale.</p> <p>3. Judicial Sales—Sale of Land by Executors under Direction of Cowrt—Case at Bar.—A testator by his will authorized his executors to sell his farm, estimated by the testator in the will to contain about 775 acres, and invest the proceeds. Under the will the executors were authorized to sell and reinvest all the real estate own*d by the testator at his death. Notwithstanding these provisions, the executors invoked the inrstruction' and direction of the Corporation Court of the city of Staunton in the discharge of their duties by a bill of conformity. The corporation court assumed jurisdiction of the suit and the administration of the estate, making the necessary orders therein as occasion required. The executors conceiving that a sale of the farm would be advantageous, listed the same with a real estate agent to procure a purchaser; and it was described by the agent as containing 800 acres. The agent procured appellants as prospective purchasers and submitted an offer in writing by them to purchase the farm and personal property upon it for $50,000. This was accepted by the resident executor subject to the approval of his co-executor, and the further confirmation of the court. The co-executor signified his approval of this acceptance. The executors then filed their petition in the suit for conformity for the purpose of obtaining the sanction and approval of the court to a sale of the farm. The court passed a decree, directing the executors to sell the farm in pursuance of the prayer of their petition.Accordingly, by deed bearing even date with the petition and decree, a conveyance was made by the executors to appellants, reciting the decree authorizing and directing the sale for the consideration named in the written proposal of the farm in question, described as “containing 800 acres more or less.” The executors then filed their report of the sale and requested ■ the approval by the court of their action, and that the sale be confirmed. The court thereupon entered a decree declaring that the sale had been made in pursuance of the former decree, that the land brought a fair price, that the action of the executors was approved, and, therefore, ratified and confirmed the sale.</p> <p>Held: That the sale was a judicial one, and that the appellants were not entitled to an abatement of the purchase money to the extent of the alleged deficiency in the land.</p> <p>4. Judicial Sales—Caveat Emptor—Case at Bar.—Under the circumstances set forth in syllabus 8, testator’s will was the source of appellant’s title, and that instrument and the petition for the sale apprised the intending purchasers that the farm for which they were negotiating was supposed to contain 775 acres. Still, they stood by and sufFered the court to direct the sale upon that assumption, and afterwards to confirm it, without objection. At a subsequent term, it is true, they sought the aid of the court to relieve themselves from the consequences of an assumed deficiency of acreage in the farm. But the sale was a judicial sale, and the doctrine is well settled in this jurisdiction that the principle of caveat emptor strictly applies ' to judicial sales. Speaking generally, all objections of which the party complaining had previous knowledge come too late after a decree of confirmation.</p>

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

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

<p>1. Eminent Domain—Instructions as to Duties of Commissioners.— In eminent domain proceedings the statute (subsection 6 of section 1105-f, Code of 1904), is sufficiently specific as to what are the duties of the commissioners in the premises, and if the orders of court, appointing commissioners substantially contain instructions as to what all of such duties are as prescribed by statute, as they did in the instant ease, that is sufficient; and the trial court may, and properly should, refuse to give any further instructions defining what such duties are. But as to the manner in which the commissioners should discharge their statutory duties, it would be helpful to the commissioners and greatly tend to the proper discharge of their duties if the courts appointing them would, on their own motion, or upon request of any party to the case, instruct the commissioners as to what character of testimony and argument or statements of counsel are admissible or inadmissible before them; and caution them not to discuss the case in any aspect of it with any one other than among themselves or allow it to be discussed in their presence, except when together assembled for and engaged in the discharge of their duties in public as commissioners as the statute provides.</p> <p>2. Eminent Domain Pkoceedings—Notice to Commissioners of Their Appointment.—The practice of counsel in a case notifying the commissioners of their appointment in condemnation proceedings should be discontinued. The notice of their appointment and of the date fixed for the view, should be communicated to the commissioners (or to the minimum number authorized to act, if only such number is desired to act), by the clerk or other disinterested person, as the order of court may especially direct by consent of all parties to the case, or in the absence of -such consent by a certified copy of the order being delivered to the commissioners by the sheriff of the county or sheriff or sergeant of the city in the court of which the proceedings are had. . •</p> <p>3. Eminent Domain—Entertaining Commissioners—Case at Bar.— In eminent domain proceedings counsel for the land owners arranged with the husband of one of the landowners for the entertainment at dinner of the commissioners and counsel at his house, before viewing the premises or making a report of their findings. This arrangement became known, to at least itwo of the commissioners before the arrival of the senior counsel for the corporation seeking to condemn the land. Upon the arrival of the senior counsel for the corporation, counsel for the land owners informed him that the husband had been directed “to prepare dinner for everybody who was there if it was agreeable to him.” The senior counsel replied that he was very glad that this had'been done. Counsel for the corporation when he consented to the arrangement was unaware of the decision in New River, etc., Railway Company v. Honaker, 119 Va. 641, 89 S. E. 960, Ann. Cas. 1917C, 132.</p> <p>Held: That, there was error in the action of the trial court in overruling an exception on the part of the corporation to the report of the commissioners, on the ground that they had been entertained by the land owners.</p> <p>4. Eminent Domain—Entertaining Commissioners—Case at Bar.— If prior to the possibility of any information of it having reached any of the commissioners, the land owners or their counsel had conferred with the company or its counsel on the subject, and the company, in person or by counsel, had consented to the entertainment being given, a different case would be presented, to which the rule in New River, etc., Railway Company v. Honaker, 119 Va. 641, 89 S. E. 960, Ann. Cas. 1917C, 132, might not apply.</p> <p>5. Eminent Domain — Entertaining Commissioners — Estoppel— Case at Bar.—As counsel for the company had but scant time for reflection and besides did not then know of the recent ruling in New River, etc., Railway Company v. Honaker, 119 Va. 641, 89 S. E. 960, Ann. Cas, 1917C, 132, it would not be just or right to apply any rule of estoppel or waiver in the instant case.</p>

<p>1. Carriers of Passengers —Presumptions and Burden of Proof— Res Ipsa Loquitur.—The doctrine of res ipsa loquitur applies when an accident happens to a passenger who is himself without fault and is caused by a defect in any of those things which the carrier is bound to supply, or is the result of the failure in any respect of the carrier’s means of transportation, or the conduct of its servants in connection therewith. Under such circumstances a presumption of negligence arises against the carrier for injuries thus caused.</p> <p>2. Carriers of -Passengers—Presumptions and B-wrden of Proof— Res Ipsa Loquitur.—If an injury happens to a passenger in consequence of the breaking of the vehicle, a defect Sn the roadway or track, or any of the other appliances owned or controlled by the carrier in making the transit, a prima facie case is made for the recovery of damages, and then the carrier must show the absence of any negligence by itself or its ser'-' vants causing the accident, and that the utmost diligence and observance of duty on its part could not have prevented the injury. In the absence of proof on the part of the carrier to rebut this presumption of negligence, the presumption becomes conclusive.</p> <p>3. Carriers of Passengers—Presumptions and Burden of Proof— Res Ipsa Loquitur.—Where the cause of the injury is plainly outside of the control of the carrier, and has no connection with the machinery and appliances of transportation or the negligence of its servants in operating such instruments of transportation, such accident raises no presumption of negligence on the part of the carrier, and the burden of showing such negligence is upon the party who avers it.</p> <p>4. Carriers of'Passengers—Presumptions. and Burden of Proof— Res Ipsa Loquitwr—Case at Bar.—Plaintiff, an invalid, was injured by a fall while being removed in an Invalid’s chair from defendant carrier’s baggage car by her husband and two friends, assisted by the baggage master. The Invalil’s chair was no part of the equipment of the company. It was entirely under the control of the plaintiff and her friends. Her safety-might well have been safeguarded if they had placed a strap or support in front of her fastened to the arms of the chair. That the accident would not have happened if her husband and his friends had not been negligent in lowering the chair was fairly manifest.</p> <p>Held: That, the doctrine of.res ipsa loquitur had no application.</p> <p>5. Carriers—Carriers of Passengers—Invalids.—A carrier is not required to accept upon its cars, without an attendant, persons who, because of some physical or mental infirmity, are incapable of properly caring for themselves.</p> <p>6. Carriers—Carriers of Passengers—Invalids.—If an unattended person, who is so sick, aged or otherwise infirm as to be unable to assist or care for himself, be accepted as a passenger, the carrier, if he has notice of the passenger’s condition, is bound • to exercise for his safety a degree of care commensurate with the responsibility assumed, and that would be such care as would-be reasonably necessary to protect him from injury in view of his physical or mental condition.</p> <p>7. Carriers—Carriers of Passengers—Negligence of Carrier’s Servant—Question for Jury.—In the instant case the trial court properly referred to the jury the question of whether or not the baggage master was negligent in assisting plaintiff’s husband and friends in lowering her from the baggage car.</p> <p>8. Appeal and Error—Bill of Exceptions—Certificates of Exception.—Assignments of error as to the overruling or sustaining of objections to the reception of testimony, cannot be considered in the appellate court where they are not presented in the record either by bills of exceptions or by certificates of exception provided for by the act approved March 21, 1916 (Acts 1916, p. 708).</p>

<p>1. Master and Servant — Contributory Negligence—Railroad Tracks.—Plaintiff’s- intestate was struck and killed by a moving-car on the yard® of defendant railroad company. Intestate was standing on a track looking intently at the fireman on an engine on another track about eight feet from the track on which he was standing, when he was struck by an empty flatcar, which, without his knowledge, had just previously been ' cut loose .from the engine and shunted into the track on which he was standing, by an operation familiarly known as a flying switch. The fireman and others attempted to warn him of his danger, but he did not seem to understand, and all the witnesses who testified stated that although he was plainly in imminent danger, he was- obviously unconscious of it until it. was too late for him to save himself. He was familiar with the yard and its operation, and knew that it was a common practice to make flying switches.</p> <p>Held: That, if the evidence had ended here, defendant’s demurrer to the evidence would have been sustained, as plaintiff’s intestate was plainly guilty of contributory negligence.</p> <p>2. Master and Servant—Injury to Servant on Railroad Track—Last Clear Chance Doctrine.—But in the instant case the jury might, have found from the evidence, which was conflicting, that the brakeman in control of the car which struck decedent, saw decedent in time to stop the car, that decedent’s attitude plainly-indicated that he was unconscious of his danger and would be struck unless the car was stopped before it reached him, and that the brakeman’s failure to do what a reasonably prudent man would have done under the circumstances was the proximate cause of the accident. Accordingly, the demurrer to the-evidence ought to have been overruled.</p> <p>3. Negligence—Last Clear Chance Doctrine—Lapse of Time.—The doctrine of last clear chance is not based upon any contractual relationship, but has its foundation in humanity and natural justice. The immediate circumstances of the accident in this case transpired in a very short space of time, but this is true in most cases of accidental injury, and lapse of time, provided it is appreciable-, is not usually material. The lapse of time in the instant case was, according to plaintiff’s witnesses, appreciable, and the evidence is not such as to bring it within the influence of the White Case, 117 Va. 342, 84 S. E. 646, and the Shiflett Case, 118 Va. 70, 86 S. E. 860.</p> <p>4. Negligence—Last Clear Chance Doctrine—Duty of Prevision.— In the instant case, there probably was not. any duty of prevision on the part of the defendant, but this fact is immaterial since it affirmatively appears here that the brakeman, as the car entered the switch, actually saw defendant in a position and under circumstances sufficient to charge him with knowledge that “the man on the track paid no heed to his danger and would take no step to secure his own safety.”</p> <p>6. Expert and Opinion Evidence—Yard Brakeman.—Testimony ■as to the distance within which a car could be stopped by one who had had thirteen years’ experience as yard brakeman, and who was furnished full information as to the size and character of the car, the rate of speed at which it was running, the condition of the brakes and the grade of the track, is not without probative value. Such evidence is usual and appropriate for the purpose for which it was introduced.</p> <p>6. Negligence—Last Clea/r Chance Doctrine.—-The last clear chance doctrine presupposes the negligence of the party injured.</p> <p>7. Negligence—Last Clear Chance Doctrine—Knowledge of Danger.—If one struck and killed by a railroad car saw the car in time to get out of the way, there could be no recovery by his administratrix, since the case would then lack the essential element of his unconsciousness of the danger, and his own negligence would bar the recovery. In that event the administratrix could not do more than make out a case of concurring negligence.</p> <p>8. Negligence—Last Clear Chance—Knowledge of Danger—Evidence—Statement of Deceased—Questions for Jury..—Deceased after being struck by a car said that he saw the car coming.</p> <p>Held: That, this statement did not preclude deceased’s administratrix from recovering damages for his death under the last clear chance doctrine. Plaintiff concedes that deceased saw the car after it was practically on him, but several of the witnesses stated that he never looked in the direction of the approaaching car until it was too late for him to escape. In this state of the evidence, the jury would not have necessarily believed that he meant to say that he saw the car in time to get off the track.</p> <p>9. Fellow Servants—Abolition of Rule as to Railroad Company— What is a Railroad Company.—A company chartered by the General Assembly as a railway corporation by a special act, but operated exclusively in connection with another corporation, a cement company, for the private purposes of the latter, both corporations being under one common ownership and control, its engines being propelled by steam, and doing regularly the sort of work which imparts peculiar hazard to the business of railroads, is a railroad company within the provisions of section 162, Constitution of 1902, section 1294-k, Code of 1904, abolishing the fellow-servant doctrine.</p>

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

<p>Error to a judgment of the Hustings Court of the city of Richmond. Judgment for petitioners. Defendant assigns error.</p>

the City of Hopewell, in proceedings by creditors to substitute a trustee in a deed of trust. From the order substituting a trustee, the grantor assigns error.

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

<p>1. Municipal Corporations—Jurisdiction of Corporation Court—. Place of Business of Corporation.—In the certificate of incorporation of the defendant company, the place wherein its principal office was to be located was designated as “Hopewell, Prince George county, Virginia.” Afterwards the community known as Hopewell was severed from the county and incorporated as the city of Hopewell.</p> <p>Held: That, the severing of the territory from the county of Prince George, just as it changed the citizenship of every natural person then domiciled within the area thus severed, so it also changed the location of the principal offices of all corporations which were located within that area. And if defendant corporation’s principal office was located in the territory incorporated as the city of Hopewell, the Corporation Court of that city had jurisdiction of an action against it.</p> <p>2. Abatement and Revival—Presumptions and Burden of Proof.— Upon a plea to the jurisdiction, or in abatement, just as is the 'case with other affirmative pleas, the burden of proof is, as a general rule, on the defendant:</p> <p>3. Service of Process—Corporations.—Section 14 of chapter 1 of the act concerning corporations (Acts 1902-04, chapter 442 [Code 1904, section 1105-a, subdivision 14] as amended by ‘ Acts 1910, chapter 35) requires every corporation of a certain class, where all of its officers and directors are nonresidents of the city or county where its principal office is located, to appoint an attorney in fact residing in such city or county, upon whom all legal process against the corporation may be served, and provides that if the company fails to appoint such attorney in fact, then all legal process against the corporation may be served upon the clerk of the court of such county or city wherein, is located such principal office, having jurisdiction of such action or proceeding.</p> <p>Held: That, under this statute returns of service of process against such corporations upon the clerk should affirmatively show that the principal office of the company sued is within the county or city in- which the action is instituted, for the rule is that where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is authorized and prescribed must be strictly followed, or the service will be invalid and the judgment rendered thereon by default void. However, returns defective in this respect may be amended to show the jurisdictional fact even after judgment and removal on error to the Supreme Court of Appeals.</p>

<p>1. Pbesumptions and Burden of Proof—Sufficiency of Evidence to Establish Fact.—A fact cannot be established, whether by direct (testimonial) or circumstantial evidencie unless there is some evidence which has some logical probative value to establish the fact.</p> <p>2. Presumptions and Burden of Proof—Sufficiency of Evidence to Establish Fact—Preponderance of Evidence Rule.—In civil cases the reasoning to establish a fact is not required to measure up to the exclusion of every other hypothesis con- • sistent with the evidence; and it is required only that the fact considered as established be the more probable hypothesis from the evidence with reference to other hypotheses predicated upon the evidence—that is to say, in civil cases, a fact may be established by a preponderance only of the evidence. But the preponderance of the evidence rule does not dispense with the requirement that there must be some evidence which has some logical probative value to establish a fact, before that fact ■can be even considered as a possible hypothesis predicated upon the evidence—a fortiori, before it can be considered as the more probable hypothesis from the evidence.</p> <p>8. Evidence—Preponderance of Evidence—Injwry which may have Resulted from On'e of Two Causes.—When damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible and for . the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is bound to make out his case by the preponderance of the evidence.</p> <p>4. Waters and Watercourses—Malaria—Mosquitoes—Two Causes. ' —In. an action for damages against a railroad company caused by the illness of plaintiff and family from malaria, which plaintiff alleged was occasioned by mosquitoes bred in stagnant water in an old canal bed, which by an act of Assembly it was the duty of defendant railroad to drain, the evidence for the plaintiff did not go beyond proving by a preponderance of it, that the water in the canal -bed was the most favorable place for the production of mosquitoes. It also appeared from the plaintiff’s evidence that the water in other places near by was favorable for the production of a sufficient number of mosquitoes to have caused the malaria complained of. There was no evidence to show that the one breeding place was more probable than the other of the mosquitoes which caused the malaria complained of, except the fact that more mosquitoes were probably bred in the water in the canal bed than in the water in the other places.</p> <p>Held: That, a verdict for plaintiff upon this evidence must be set aside and annulled and a new trial granted.</p> <p>5. Presumptions and Burden of Proof—Circumstantial Evidence— Inference from a Presumption.—The inference that the mosquitoes which caused the malaria complained of were bred in the bed of the old canal was not proved as a fact in the case, and in the very nature of the subject under the circumstances of the instant case could not by any possibility have been so proved. In such case, the rule that “an inference cannot be drawn from a presumption, but must be founded upon some fact legally established,” applies. See Chesapeake and Ohio Railway Company v. ‘ Ware, post, 246, 95 S. E. 183.</p> <p>6. Waters and Watercourses—Drainage—Mandamus.—By an act of Assembly it was the duty of defendant railroad to drain an old canal bed, so as not to leave stagnant water by which the health of the citizens along the line of the canal might be injuriously affected.</p> <p>Held: That, the discharge of the duty in question could be fully enforced, if need be, by the appropriate remedy of mandamus.</p>

<p>1. Fires—Railroads—Allegation of Negligence.—Under the Featherston act (Acts 1908, page S88), it is not necessary in. an action for damages by fire against a railroad for the plaintiff to allege that the fire was negligently set out by the defendant, and such allegations in a declaration may be regarded as surplusage.</p> <p>2. Appeal and Error—Objections to Evidence—Evidence other than that Objected to Sufficient to Sustain Verdict.—Where the evidence in the ease, independent of testimony drawn in question by two assignments of error, was sufficient to sustain the verdict of the jury, it is unnecessary for the appellate court to pass upon the questions raised by these assignments of error.</p> <p>3. Fires—Evidence—Evidence in Possession of Defendant—Presumption.—In an action against a railroad company for damages from fire set out by an engine of the company, there Was no direct evidence that any engine of any train of defendant passed the point where the fire originated shortly before the fire. The evidence for the plaintiff on this point was wholly circumstantial. It consisted in proving that a mail train of the defendant was, by its schedule of trains, due to pass along by such point at such time.</p> <p>Held: That, in view of the fact that definite evidence of the exact time at which the train passed was peculiarly within the possession of- the defendant, being furnished by its record of the movement of its trains, the testimony for plaintiff furnished prima facie evidence of the fact that the train ran on time on the day in question, and hence passed the point of origin of the fire a short time before the fire originated. The defendant having failed to introduce any evidence to rebut the prima facie proof aforesaid, such proof became conclusive of the fact in question.</p> <p>4. Presumptions and Burden of Proof—Circumstantial Evidence-Inference from a Presumption.—AW facts which are proved in a case in the same manner as if they were the very facts in issue—that is, by evidence of logical probative value, either direct (testimonial) or circumstantial, may serve as a basis from which further inference may be drawn. Since all facts in issue may be proved by circumstantial evidence, as well as by direct or testimonial evidence, and every fact proved by circumstantiafevidence is but an inference from such evidence, where a fact is proved in a case as a fact, although by inference from circumstantial evidence, such fact may itself be taken as a basis for a new inference of fact.</p> <p>5. Fires — Circumstantial Evidence —> Inference.—Notwithstanding that there was no direct evidence before the jury that a train had in fact passed the point of origin of the fire at or about the time of the fire in question, where such fact was established by circumstantial evidence, the jury may infer from the fact of the passage of the train at that time, in connection with other facts, that the fire was set out by the train as it passed the point of origin of the fire.</p>

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

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

<p>1. Specific' Performance—Contract of Sale—Sufficiency of Description of Land.—The Chancery Court of the city of Richmond decreed specific performance of a written contract of sale between defendants and complainant, whereby defendants agreed to sell to complainant “that certain property situated in the city of Richmond, Virginia, ‘No. 504 east Marshall street and all improvements thereon,’ ”—which the court ascertained fronted twenty-six feet on east Marshall street, and extended hack at a right angle and between parallel lines 98.70 feet. From this decree defendants appealed. The sole question was, what property was embraced by the description. Defendants admitted the execution of the contract of sale, but claimed that they had in mind and only intended to sell' the portion of the lot fronting on east Marshall street actually covered by the buildings. Complainant, on the'other hand, examined the land books and records to identify the property designated as No. 504 east Marshall street, and these records and other testimony fully identified the property described in the contract of sale and fixed its dimensions as established by the decree under review.</p> <p>Held: That, there was no error in the decree.</p> <p>2. Vendor and Purchaser—Deeds—Description of Property by Number.-—In a city having' a known system of notation, regulated by municipal laws and acted upon by every one, the description of premises in a deed or contract of sale by a number is sufficiently definite.</p> <p>8. Deeds—Vendor and Purchaser—Description of ■Land Conveyed— Parol Evidence.—The object of a description of land sold or conveyed in a deed of conveyance, or in a contract of sale, is not in and of itself to identify the land sold—that it rarely does or can do, without helping evidence—but to furnish the means of identification; when that is done it is sufficient. That is certain which can be made certain, and evidence aliunde is admissible in all eases where there is a doubt as to the true location of the survey, or a question as to the application of a grant to its proper subject-matter.</p>

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

Appeal by a purchaser of land at a judicial sale from a decree of the Circuit Court of Halifax county, setting aside the sale.

<p>Petition for a writ of habeas corpus.</p>

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

<p>1. Appeal and ERROR-^Commissioner’s Report—Exceptions.—Where on the face of the report of a commissioner no error is apparent, and no exception thereto was taken by appellant in the court below, it is too late to raise the objection on appeal. The evidence in the cause cannot be looked to by the appellate court to ascertain whether the commissioner’s conclusions were sustained or not sustained by the evidence. The conclusion of the commissioner and the adjudication of the court below based thereon are final and conclusive upon the appellant and are not open to review in the appellate court.</p> <p>2. Principal and Agent—Commissions:—A contract of agency provided that the compensation of the agent of a manufacturer of fertilizer should be $2.00 per ton on all sales of fertilizer by him, with additional compensation of a bonus of $500.00 when the agent should sell, collect and settle with the manufacturer for as much as 1,000 tons of the fertilizer. The agent was to endorse notes of farmers taken for all sales of fertilizer on time. The manufacturer became entitled to the custody and control of the notes under the provisions of the contract, because the agent, without the consent of the manufacturer, ceased to pay any attention to the business of the agency and accepted other employment in another State.</p> <p>Held: That, the withdrawal of the notes by'the manufacturer and the undertaking of the collection of them by him to the exclusion of the agent, was not a breach of the contract on • the part of the manufacturer.</p> <p>3. Principal and Agent—Commissions.—A contract of agency provided that the compensation of the agent of a manufacturer of fertilizer should be $2.00 per ton on all sales of fertilizer by him, with an additional compensation of a bonus of $500.00 when the agent should sell, collect and settle with the manufacturer for as much as 1,000 tons of the fertilizer. The agent sold more than 1,000 tons of fertilizer but did not collect for 1,000 tons. Further, the agent breached his contract with the manufacturer by accepting employment in another State and giving no further attention to the business of the agency or the collections.</p> <p>Held: That, this breach of contract by the agent abrogated the promise in respect to the bonus.</p>

<p>1. Factors and Commission Merchants&emdash;Del Credere Factors.&emdash; A del credere factor, like any other agent, is to sell according to the instructions of his principal, and to make such contracts as he is authorized to make for his principal; he is from other agents in that he guarantees that those persons to whom he sells shall perform the contracts which he makes with them. The relation of a del credere agent to his principal is that of debtor and creditor, and he is bound absolutely to see that his principal is paid, and he may be sued in indebitatus assumpsit if he does not pay the sale debt when due. Del credere guaranties are held not to be within the statute of frauds, as being promises to answer for the debt, default, or miscarriage of another, but are original agreements of suretyship and may be proved by parol.</p> <p>2. Sales&emdash;Factors and Commission Merchants&emdash;Distinction Between Contract of Sale and Consignment of Goods to a Factor.&emdash;The distinction between a contract of sale and a consignment of goods to a factor is that in the case of a sale the title passes to the buyer, while in the case of a consignment to a factor the possession passes to the factor but the title remains in the consignor. Where goods are delivered by one party to another, to sell for the party delivering them, it creates the relation of agency and the title, remains in the principal, and the factor or agent is liable to pay, not a price, but to account for the proceeds of the goods when sold. If,1 however, it from the whole agreement that it is the intention of the1 parties that the title to the goods is to pass to the party them, for a price to be paid by him, then the is a sale.</p> <p>3. Sales&emdash;Factors and Commission Merchants&emdash;Distinction Contract of Sale and Consignment of Goods to a. Governs.&emdash;Where a contract contains some characteristic of a sale and others characteristic of a consignment to a factor to determine whether it is a sale or a consignment, there must be applied to it the familiar rules of construction, all of which are subordinate to the leading principle, that the intention of the parties must prevail, unless inconsistent with some rule of law.</p> <p>4. Sales—Factors and Commission Merchants—Distinction Between Contract of Sale and Consignment of Goods to a Factor—Case at Bar.'—In the instant case, the contract under consideration amounted merely to a consignment of fertilizers by one party to another to be sold by the latter for the benefit of the former, who has never parted with the title, and there was no element of purchase in the agreement. In such case, the relation is that of principal and factor, and not of seller and buyer. The fundamental difference between the agreement in Arbuckle Bros. v. Gates, 95 Va. 802, 30 S. E. 496, and others of that type, called “special selling factor appointment,” and the agreement in the case at bar, is that in the former the consignees acquired such an interest in the property under the agreement that the title passed, and the consignor was the seller and the consignee the buyer of the property; while, in the .latter case, the title remained in the consignor and only the possession of the fertilizers passed to the consignee.</p>

<p>Appeal from a decree of the Chancery Court of Richmond, in which the city of Richmond was allowed to file its petition. Decree for the petitioner. Defendants appeal.</p>

<p>1. Wills—Construction—Conflict of Laws.—The law of a testator’s domicile applies in construing his will as to personality, but where a farm in Virginia is disposed of by a will, the will as to that farm must be construed with reference to the law of Virginia since the tax situs governs.</p> <p>2. Domicile—Residence.—The words “residence” and “domicile” are not convertible terms, the latter being a word of more extensive signification. To acquire a domicile in a particular place, there must be a residence there, and intention to make that place home.</p> <p>3. Domicile—Evidence—Probate of Will—Full Faith and Credit Clause.—The probate of a will is not evidence in a collateral proceeding of the domicile of the testator, and other tribunals are not precluded from inquiring into the real domicile. The full faith and credit due to the proceedings of a sister State do not require that the courts of a State shall be bound by its adjudication on the question of domicile. In the trial of a collateral issue, it is open to the courts of any State, to determine, upon the evidence produced, the true domicile of the deceased.</p> <p>4. Domicile—Evidence—Declarations.—A testator styled himself as “William C. .Smith, of the city of Baltimore, Maryland.” Such declaration on his part is entitled to little weight as evidence of his domicile in Baltimore, Maryland.</p> <p>5. Wills—Domicile—Case at Bar.—Although a testator died 'in Baltimore, Maryland, and through the necessity of his business was a resident of that city, yet it was held from his purchase of a farm in Virginia, and his relation to it, and from other evidence, that his domicile was in Virginia.</p> <p>6. Wills—Gift of Life Estate with Absolute Power of Disposal.— A testator gave and devised all his estate to his wife for and during her natural life, “to be used and enjoyed by her as she shall think proper as fully as if the same were hers in fee simple,” and then he expressly added that “no interest or estate shall vest in any child or the descendants of any, until the death of my wife.”</p> <p>Held: That, having denied the children in express terms any interest or estate in the property in the lifetime of his wife, this must have been because he intended his wife should have absolute control and dominion during her life; and, there- . fore, the wife took a fee simple.</p> <p>7. Wills—Construction—Technical Words.—A technical word in a will should be given its technical meaning.</p> <p>8. Estates—Fee Simple—Definition.—A fee simple is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or ■ interest in. land. Every restraint upon alienation is inconsistent with the nature of a fee simple.</p> <p>9. Wills—Construction—Intention.—Intention, it is often said, is the polar. star to guide in the construction of wills, and when discovered effect must be given to it unless it violates some rule of law. The intent of the testator must be gathered from the will itself; from the words used, the true meaning of the words. While decided cases give much assistance in the interpretation of wills, it is also fairly true as has been said, that “No will has a twin brother;” therefore, it frequently happens, as in the instant case, that no decided case is exactly in point, the words of the will differing, though slightly, in each case.</p>

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

<p>1. Pleading—Time of Filing—Discretion of Court.—A very large discretion is vested in the trial courts in the matter of the time for filing pleadings and otherwise preparing a case for hearing, and when not controlled by statute, as for example under section 3288 of the Code of 1904, their action will not be set aside unless plainly erroneous.</p> <p>2. Pleading—Time of Filing—Dejense—Application for Continu- ' anee.■—Usually the proper time for a defendant to tender his defense is when the case is called on the docket, if he has not previously done so, and if, as in the instant case, he desires a continuance, he must not only show cause for it, but the court usually requires, as a part of the price for the continuance, that he shall make up the issue, so that there may not be further cause for delay when the case is again called for trial. Of course, if good cause can be shown why the issue cannot or should not then be made up, that too will be continued. But the general rule is to require the issue to be made up before the continuance is granted.</p> <p>3. Pleading — Time of Filing — Continuance — Time Limited by Court.—It is not uncommon, however, for the court to grant the continuance, and, in the order granting it, to prescribe a time within which the defendant shall file his pleadings, and this is not objectionable, as it gives counsel additional time within which to prepare the pleadings, and, at the same time, by requiring the issues to be made up in advance, obviates the danger of a continuance when the case is next called for hearing. And when such time limit has been prescribed, the defendant who has not complied with the order has not “the right to demur or plead as a matter of right,” but must show good cause why he has not complied with the order of the court, and if he fails to do so, it may exclude his pleadings.</p> <p>4. Pleading—Time of Filing—Case at Bar.—In the case at bar, in the order of continuance leave was given to the defendant to demur or plead at any time during the then term of court. The defendant did not demur or plead during that term, though the court continued in session for some days after the order was entered. When the case was called for trial at the term to which it had been continued, the defendant tendered his demurrer and pleas.</p> <p>Held: That there was no error in the action of the court in rejecting defendant’s demurrer and pleas.</p> <p>5. Jurisdiction—Objection to Jurisdiction—Time of Making.—In the instant case, after defendant’s demurrer and pleas had been rejected, he moved the court to dismiss the proceeding because a court of law had no jurisdiction of the subject matter.</p> <p>Held: That the motion was a proper one, and the court rightly entertained it. •</p> <p>6. Jurisdiction—Subject Matter.—By jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court and is to be sought for in the general nature of its powers, or in authority specially conferred. If not fixed by the Constitution, the legislature alone can determine of what subjects the several courts of the State shall have jurisdiction. No consent of parties can confer it, and a judgment outside of the jurisdiction so conferred is simply void.</p> <p>7. Jurisdiction—How Objection to Jurisdiction Made—Time.—Objection for want of jurisdiction of the subject matter may be taken by demurrer, or motion, or in any way by which the subject may be brought to the attention of the court, and if not brought to the<attention of the trial court, it may be taken notice of by the appellate court, ex mero motu, for the first . time.</p> <p>8. Mortgages and Deeds op Trust—Assumption of Mortgage Debt— • Specialty or Simple Contract.—A grantee in a deed assumed the payment of notes which the grantor had given and secured by a deed of trust upon the property conveyed as a part of the consideration for the conveyance. The deed contained an express agreement that the grantee would assume the payment of the said notes, but though the deed was accepted by the grantee it was r.ot signed by him.</p> <p>Held: That as the grantee did not sign the deed in which the payment of the notes was expressly assumed, but simply accepted it, his contract to pay was not a specialty, but a simple contract debt.</p> <p>9. Mortgages and Deeds op Trust—Assumption of Mortgage Debti— Action at Law by Mortgagee a,gainst Party Assuming Debt.— Where a grantee, as a part of the consideration for the purchase of real estate, agreed by parol to pay to the grantor’s debtor a debt secured .by a deed of trust on. the land sold, the creditor cannot sue the grantee on. the promise' to pay the debt because of want of privity between the creditor and the grantee.</p> <p>10. Contracts—Action for Breach—Who may Sue—Common Law. The general rule at common law was that, whether the contract was express or implied, by parol or under seal, or of record, the action must be brought in the name of the party in whom the legal interest was vested, and that this legal interest was vested in the person to whom the promise was made, and consequently that he or his privy was the only person who could sue in a court of law upon such contract.</p> <p>11. Contracts—Action for Breach—Who may Sue—Common Law.— Where the contract is primarily for the benefit of the parties' thereto, the mere fact that a third person would be incidentally • benefited does not give him a right to sue for its breach. Where the right of the creditor is derivative only, his remedy is in equity and not at law.</p> <p>12. Contracts—Action for Breach—Who may Sue—Common Law— Exceptions.—But some exceptions to this general rule were recognized at an early day, and others have been made since. Thus, in contracts not under seal, it has been held, for two centuries or more, that any one for whose benefit the contract was made may sue upon it; that is, if A promises Z, not under seal, but for valuable consideration, to pay B $1,000, B may in his own name maintain an action against A. But where the promise is under the seal of the promisor, the common law" never relaxed its requirement that the action should be brought by the promisee alone, or his personal representative, and not by any one for whose benefit, ever so expressly, the promise was made; a rule which is particularly inflexible where the deed is an indenture or inter partes.</p> <p>38. Mortgages and Deeds op Trust—Assumption of Mortgage Debt—Action at Law by Mortgagee against Party Assuming Debt—Code of 18/f9, Chapter 116, Section 2.—Code of 1849, chapter 116, section 2, provides that: “If a covenant or promise be made for the sole benefit of a person with whom it is not made, or with whom it is made Jointly with others, such person may maintain in his own name any action thereon, which he might maintain in case it had been made with him only, and the consideration had moved from him to the- party making such covenant or promise.” The act applies as well to promises (though not under seal) as to covenants, and in either case, to entitle a third person to sue thereon, the promise or covenant must have been for his sole benefit, and an agreement between- the grantee of- land and the grantor that the grantee should pay off and discharge the mortgage debt on the land, is not for the sole benefit of the mortgagee.</p> <p>14. Mortgages and Deeds op Trust—Assumption of Mortgage Debt.—No agreement between the mortgagor and his grantee that the latter shall assume the mortgage debt, can change the relations of the mortgagor and mortgagee, and require the latter to treat the mortgagor as a mere surety for the debt, without the assent of the mortgagee, but when the assent of the mortgagee has been given, equity, by a quasi subrogation, and in order to avoid a multiplicity of suits, gives to the mortgagee the benefit of all the collateral obligations .for the payment of the debt which the surety (mortgagor) holds for his indemnity.</p> <p>15. Mortgages and Deeds op Trust—Assumption of Mortgage Debt—Action by Mortgagee against Person Assuming Debt— Assumpsit.—Wherever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. In such case, it is said, the law creates the privity and implies the promise necessary to support the action. But in the instant case there was no property or money in the hands of the grantee, as the property had been sold to pay the mortgage debt, and the action was brought to recover the deficiency; therefore, the foregoing rule has no application to the instant case.</p>

<p>1. Railroads—Spur Track—Corporation Commission—Pleading.— A petition was filed before the State Corporation Commission to compel the extension by the defendant railroad of an industrial spur track, which was originally constructed upon its right of way, but the extreme end of which, built on a wooden trestle, had been destroyed by fire and never rebuilt. It appeared from the evidence that the general public would be interested in the spur track, and that the track when constructed would not constitute merely a private switching facility for the sole benefit of the petitioner. The railroad had distinctly declined the offer made by the petitioner to bear the expense, and had refused to build the track upon any terms whatever. The prayer of the petition was that the railroad be required to extend and operate the siding, or that the petitioner be allowed to construct it and the railroad required to operate it.</p> <p>Held: That/ the order of the Commission requiring the work to be done entirely at the expense of the railroad, did not go outside of the issue as made up between the parties, even if it is conceded that the Commission, in proceedings of this character, can be h'eld to strict rules of pleading as to the scope of the orders made by it.</p> <p>2. Railroads.— Spur Track — Corporation Commission — Interstate Commerce.—Under the above state of facts, the railroad interposed the defense that the Commission had no jurisdiction because the shipments proposed by the petitioner were interstate commerce. As, however, it appeared that the spur track facility was used indiscriminately by the company both for interstate and intrastate commerce and the restoration of the track, instead of constituting a burden upon interstate commerce, would be in aid of interstate commerce, and enable the company to do both classes of business more efficiently, the State Corporation Commission had jurisdiction over the complaint. If this defense be valid, then the commission is without jurisdiction to deal with any railway facility located in this State, because practically all railway facilities are used both for interstate and intrastate commerce, just as this industrial, spur track is to be used.</p> <p>3. Railroads—Spur Track—Corporation Commission—Private Benefit.—The petitioner constitutes a part of the public, and is entitled to facilities equal to those of his competitors in business, and the defendant company has no right to discriminate against its business by refusing to maintain the facility so long as it is needed to enable the defendant properly to discharge its public duties. The land was acquired by the railroad for the very purpose of maintaining this industrial spur track, and the evidence plainly indicated that it was necessary at the time it was constructed, and none the less necessary at this time. In refusing to rebuild and maintain this track in its entirety, the company plainly failed to discharge its duties.</p> <p>4. Railroads — Spur Track — Corporation Commission — Interstate Commerce.—The rights of shippers and the duties of the public cannot be determined by the consideration, that the revenues derived by the railroad on shipments of interstate commerce were less than those on shipments of intrastate commerce. To admit such a proposition is to admit that the railroad has the right to discriminate against interstate commerce. Therefore, it was no' defense in the instant case, that the railroad’s freight revenue derived from petitioner’s proposed shipments from a point without the State, would be less than if the shipments were transported over its own line from a point within the State.</p>

<p>1. Appeal .and Error—Record—Certification of Evidence.—Where the evidence and not the facts are certified, the case stands in the Supreme Court of Appeals as on a demurrer to the evidence by the plaintiff in error.</p> <p>2. Fires—Presumptions and Burden of Proof—Instructions.—In an action for damages by fire an instruction that the burden is on the plaintiff to show by a preponderance of evidence how and why the fire occurred and to warrant, a verdict for the plaintiff the final burden rests upon him to prove by a preponderance of evidence that the origin of said fire was due to the negligence of the defendant, is not erroneous and is not calculated to convey to the jury the idea that the plaintiff is required to • prove his case beyond a reasonable doubt. When the instruc- . tion is read as a whole, it did no more than tell the jury that the burden was upon the plaintiff, by a preponderance of the evidence, to establish the fact that the fire in question was set out by the defendant, or to trace the origin of the fire to the defendant’s agency. The object of the instruction was to tell the' jury that they could not guess at the origin of the fire, but that this fact must be. established by evidence, and that, in order to fix a liability on the defendant by finding a verdict in his favor against the defendant, the burden was upon the plaintiff to show, by a preponderance of the evidence, “that the origin of said fire was due.to the negligence of the defendant.”</p> <p>3. Instructions—Language Used in Opinion.—Language used by an appellate court in deciding a case may be entirely proper and correctly state the law, and yet be wholly unsuitable as an instruction to the jury, even ’where the facts of the two cases are similar. The appellate judge frequently uses argumentative language and also freely expresses his opinion upon the facts of the case, neither of which would be appropriate in an instruction to the jury. So that the mere fact that certain language has been used by the judge of the appellate court in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury.</p> <p>4. Fires—Instructions.—In an action for damages the jury were instructed that if they “believe from the evidence that the fire in question originated on the right of way of the defendant by the emission of sparks or coals of fire, yet if they believe from the evidence that said right of way was reasonably clear of combustible materials liable to ignition, then the defendant is not liable,” is erroneous. The instruction should have gone further and said, that if the .right of way was reasonably clear of combustible material, and the defendant’s locomotives were equipped with the best appliances in known practical use, that they were in good order and carefully operated, then and in that event they should find for the defendant.</p> <p>5. Appeal and Error—Reversible Error—Instruction Cured by Instruction.—A defect in one instruction is not cured by a correct statement of the law in another, where the appellate court is unable to say that the jury could not have been misled by the defective instruction.</p> <p>6. Instructions—Two or More Propositions of Law.—Two or more correct propositions of law may be stated in the same instruction, if the jury will not be confused thereby.</p> <p>7. Fires—Instructions—Where Fire Might Have Originated from Two Causes.—In an action for damages by fire the jury were instructed that not “only is the burden of showing negligence by a preponderance of the evidence upon the plaintiff, but if the fire may have been started from one of two causes, for one of which the defendant is responsible, but not for the other, the plaintiff cannot recover; neither can he recover if it was just as probable that the fire was caused by the one as by the other;” that is to say, that if the jury believe that the fire might have been set out by the boys who were smoking cigarettes, as well as by sparks from the engine of the defendant, or if it was just as probable that the fire was caused by the one as by the other, they should find for the defendant.</p> <p>Held: That, an objection to this instruction that it consisted of many incongruous, unrelated and contradictory' propositions bound up together, could not be sustained.</p> <p>8. Instructions—Not Based upon the Evidence.—In an action for damages by fire,-where the defendant offered evidence to support its theory that it was not responsible for the origin- of the fire, and evidence was introduced to the effect that two boys smoking cigarettes were seen going in the direction in which the fire originated at a propitious time for the fire to have been set out through their negligence, the instruction set out in- the preceding headnote is not erroneous as taking a partial view of the evidence and as being based upon a mere scintilla of evidence.</p> <p>9. Fires—Evidence—Instructions.—In an action for damages by fire an instruction was given that unless the jury believe from the evidence “that engine eleven might have caused the fire complained of, they should not consider any evidence relative to fires testified tto have been set out by engine eleven nor the evidence relative to what is known as ‘second fire,’ or the fire west of Woods Camp, unless they believe that the engine that might have caused the fire in question might also have originated that fire.” The evidence showed that but two engines, numbers eleven and twelve, had run on the railroad the day of the fire and the evidence for the defendant clearly showed that engine number eleven could not have set out the fire. But there was some evidence on the part of the plaintiff that number eleven as well as number twelve might have set out the fire.</p> <p>Held: That the instruction was not erroneous as incoherent and as combining two distinct charges with reference to two sever-able questions which were so inextricably blended as to be utterly misleading and confusing to the jury.</p> <p>10. Fires—Evidence.—In an action for damages by fire, if the fire could only have been set out by one of two engines and one of these was eliminated entirely, then the evidence relating to fires set out by the eliminated engine was not proper for the consideration of the jury.</p> <p>11. Fires—Instructions—Proof of Negligence—Inference from a Presumption.—In an action for damages by fire, the court instructed the jury “that in order to warrant a verdict against the defendant, the evidence must show more than a probability of a negligent act. An inference cannot be drawn- from a presumption, but must be founded upon some fact legally established.”</p> <p>Held: That, the instruction was not erroneous, while the statement in the instruction-, that, an inference cannot be drawn from a presumption, but must be founded upon some fact legally established, could not have been very helpful to the jury, yet in view of other instructions given in the case it could -not have led them astray.</p> <p>12. Fires—Instructions—Repetition of Instructions.—There is no error in refusing an instruction where the jury -had already been sufficiently instructed on the subject, and almost in the very language of the instruction requested. ;</p> <p>13. Fires—Evidence—Condition of Right of Way.—In an. action for damages by fire, the exclusion of testimony offered by the plaintiff, that the defendant’s right of way was not clear and free of combustible material at a point a mile from where the fire occurred, was not erroneous, although the officers of defendant testified that the right of way of defendant had been raked and burned shortly before the fire, from which it might naturally be inferred that the entire right of way had been raked and burned shortly before the fire, whereas the testimony of the witness offered showed that it had not been raked and burned throughout its entire length. The evidence offered was immaterial as tending to show what the condition of the track was at the point at which the fire originated.</p> <p>14. '. Fires—Evidence of Other Fires.—In the instant case, at least' one witness for the plaintiff testified that engine number eleven as well as engine number twelve had passed the place where the fire originated shortly before it broke out. It was, therefore, competent for the plaintiff to show the bad condition of engine number eleven soon after the fire, and the exclusion of' evidence that engine number eleven had been seen to set out a fire shortly after the fire in question was erroneous.</p> <p>15. Witnesses — Impeachment — Inconsistent Statements.—It was error to admit evidence of a prior consistent statement of a witness who had testified to a materal fact in the case, where it was not shown whether the contradictory statement of the witness was made before or after the consistent statement, nor was the date fixed when the witness was alleged to have offered to sell his testimony to the plaintiff. The testimony in the instant case does not bring the statement within the rule . which permits evidence of a prior consistent' statement before the time when the supposed bia8 or corruption could have existed, in order to repel the presumption that the present testimony was attributable to such bias or corruption.</p> <p>16. Witnesses—Examination of Witnesses—Leading Question— Appeal and Error—Reversible Error.•—Great latitude is allowed trial courts in the matter of the examination of witnesses and their rulings thereon will not be reversed unless clearly prejudicial to the party excepting. Ordinarily, permitting a leading question to be asked is no ground for reversal.</p> <p>17. Appeal and Error—Harmless Error—Conduct of Counsel.— In cross-examining a witness defendant's counsel said: "I know, Mr. Turner, this situation myself, and there are others who know it, and I want to ask you to see if we coincide.” Held: That, this could not have prejudiced the plaintiff.</p> <p>18. Jury—View by Jury—Discretion of Court.—The question of the propriety of ordering a view lies largely in the discretion of the trial court, which should only grant it when it is reasonably certain that it will be of substantial aid to the jury in reaching a correct verdict, and whose decision will not be reversed unless the record shows that a view was necessary to a just decision.</p> <p>19. Jury—View by Jury—Discretion of Court—In the instant case, there was no controversy as to the location of the road, and the general conditions surrounding it, and there was no necessity for a view in order to assist the jury in understanding the testimony. The testimony in connection with a plat used on the trial would seem to have been clear enough without the necessity for a view. In addition to this, it appears that delay in the trial would have been caused by ordering a view, and that the plaintiff had not made any provision to take the jury to the scene of the fire.</p> <p>Held: That, the trial court did not err in refusing to order a view.</p>

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

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

<p>Error to a judgment of the Circuit Court of Brunswick county, in an action of libel and slander.</p>

<p>1. Appeal and Error—More than One Trial.—Where upon the second trial of a case a verdict in favor of the plaintiff was set aside a-s contrary to the law and the evidence, to which action the plaintiff excepted, and upon the third trial no evidence was introduced and there was a verdict for the defendant, and the plaintiff assigned as error the action of the trial court in setting aside the verdict of the jury on the second • trial, and the entering of judgment for the defendant on the third trial, the established rule is that.the Supreme Court of Appeals will look first to the record of the second trial, and if there was error in setting aside that verdict, no further inquiry will be made and judgment will be entered by that court thereon.</p> <p>2. Appeal and Error—Affirmance or Reversal—Evidence Certified.— Where the evidence is certified, the Supreme Court of Appeals will consider the whole evidence and sustain the verdict, unless it be against the law and the evidence, or without evidence.</p> <p>3. Law op the Case—Statement of the Doctrine.—Where there have been two appeals in a case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on a second appeal. ■</p> <p>4. Law op the Case—Different Facts on Second Trial.—The doctrine of the “law of the case” can only be invoked, even between the same parties, where the facts reappear on the second trial the same as- when originally presented. Nothing is more common than a material difference between the facts presented on a second trial from those shown on the first trial, and the “law of the case” is applicable to the state of facts existing at the time the law is announced. There is nothing in the rule to inhibit a party, on a second trial, from supplying omitted facts or from averring a different state of facts.</p> <p>5. Law op the Case—Different Facts on Second Trial—Case at Bar.—In an action by a railway mail clerk against a carrier for injuries sustained, it appeared that the accident was due to the removal of a device called a catcher and safety bar, fixed across the side doors of a postal car, as required by the regulations and instructions of the United States Post Office Department. On the first trial a judgment for plaintiff was reversed on the ground that the plaintiff knew of the removal of the bar and had acquiesced in its removal. But on the second trial it appeared from the plaintiff’s testimony that he did not either know of the removal of the bar or acquiesce therein.</p> <p>Held: 'That the evidence upon the second trial as to the plaintiff’s contributory negligence was materially different from the evidence upon the first trial with reference to that fact, and therefore the decision in .the first case was not the law of the second case.</p> <p>6. Carriers of Passengers—Who are Passengers—Postal Clerk.—A postal clerk upon a railway mail car is a passenger, and therefore entitled to the very highest degree of care from the carrier.</p> <p>7. Carriers—Postal Clerk—Contributory Negligence—Case at Bar.— If in the case at bar, the plaintiff, a railway mail clerk, went to the door of the poorly lighted car in the performance of his duties, while the train was in motion, knowing that the safety bar had been removed, and was thrown out of the car because he failed to take proper precautions for his own safety, then it is clear that he was guilty of such contributory negligence as bars any recovery. On the other hand, if under such circumstances he went to the door of the car, not knowing that the safety bar upon which he had been accustomed to rely had been removed, and without any contributory negligence on his part, sustained the injury complained of, as appears from his testimony, then he is entitled to recover.</p> <p>8. Appeal and Error—Judgment by Appellate Court.—If the court below erred in setting aside a verdict for the plaintiff, as contrary to the law and the evidence, the Supreme Court of Appeals will enter the judgment thereon which the trial court should have entered.</p>

<p>1. Assumpsit—When Action Lies.—Assumpsit does not lie in any case except when damages are sought for the breach of a contract, express or implied.</p> <p>2. Agency—Revocation of Authority.—If no term of service has been agreed upon, the principal may at any time revoke the authority of his agent, so far as it relates to things to be done and remaining unexecuted, unless the authority is coupled.with an interest or conferred for a valuable consideration to the principal.</p> <p>3. Agency—Revocation of Authority—Power Coupled with an Interest.—To constitute a power coupled with' an interest, a property in the thing which is the subject of the agency or power, ' must be vested in the person to whom the agency, or power, is given, so that he may deal with it in his own name; such that, in the event of the principal’s death, the authority could be exercised in the name of the agent. There must be an interest in the subject of the agency itself, and not a mere interest in the result of the execution of the authority. So an interest arising from commissions or the proceeds of a transaction is not an interest which will prevent revocation.</p> <p>4. Real Estate Beokeks—Commissions on Rented. Property-Sale of Property—Case at Bar.—Defendant, the owner of real property, entered into a verbal contract of indeterminate duration with plaintiff, whereby plaintiff agreed to lease the property for defendant at a three per cent, commission. There was no express stipulation with reference to the collection of rent, yet, in point of fact, plaintiff effected a lease of the premises at $300 per month, which continued for sometime, and received the rent during the entire term, retaining the agreed commissions and paying over the residue to defendant. After the expiration of this lease, no new or different contract was made between plaintiff and defendant, but, with the latter’s approval, a ten years lease of the premises was entered into between plaintiff and another lessee at the same rental, and plaintiff collected two months’ rent from the new tenant from which he deducted commissions as usual and paid the balance to defendant. The defendant then sold the property, thereby terminating plaintiff’s agency. Plaintiff knew of defendant’s intention to sell the property whenever a purchaser could be found, and interposed no objection when defendant informed him that he had given other agents an option to sell the property.</p> <p>Held: That the original contract of employment not being for a fixed time, or the agency coupled with an interest, defendant could revoke the powers of plaintiff at will and without incurring liability in damages therefor.</p>

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

<p>Error to a judgment of the Hustings Court, Part II, of City of Richmond. Judgment for plaintiff. Defendants assign error.</p>

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

<p>1. Pleading—Time of Filing and Perfecting—Amendments.—A very large discretion is vested in the trial courts as to the time of filing and perfecting pleadings, and the Supreme Court of Appeals will not reverse a case unless the action is clearly erroneous and harmful.</p> <p>2. Amendments—Filing Affidavits—Time of—Case at Bwr.—Acts of 1914, page 641, provides that the court may at any time, in furtherance of justice, upon such terms as may be just, permit any proceeding or pleading to be amended, or material supplemental matter to be set forth in an amended, or supplemental pleading; and that at every stage of the proceeding errors or defects which do not affect the substantial rights of the parties must be disregarded. In the case at bar, plaintiff instituted his action of assumpsit against the defendant as a member of an alleged partnership. Defendant pleaded nonassumpsit, and upon that plea the plaintiff at once took issue, the jury was immediately sworn and the trial proceeded. After all of the evidence had been introduced on behalf of the plaintiff, the greater part of which evidence being for the purpose of proving the alleged partnership, and the plaintiff had announced his case closed, and after the defendant had introduced all of the evidence in his behalf to deny the existence of the alleged partnership, and had announced his case closed, but while both the plaintiff and the defendant, who were the only witnesses in the case, were still in the court room, counsel for plaintiff called the attention of the court to the failure of the. defendant to file with his plea the proper affidavit under section 3280, Code of 1904, denying the partnership. Thereupon, on the motion of counsel for the defendant and over the objection and exception of the plaintiff, the court permitted the counsel for the defendant to prepare and file such an affidavit.</p> <p>Held: .Under these circumstances, where neither the evidence nor the facts were certified to the Supreme Court of Appeals so that that court had no facts showing that plaintiff’s rights had been injuriously affected, the judgment in favor of the defendant should he affirmed.</p> <p>3. Amendments—Filing Affidavits—Time of—Case at Bar—Continuance.—If the plaintiff had indicated to the court that he had been put in a disadvantageous position, or taken by surprise, and had asked the court for a continuance, the court would doubtless have continued the case on his motion. Certainly this should have been done, if it appeared that he had been taken by surprise. Instead of doing this, however, he went on with the trial, contenting himself with a mere exception to the action of the court in allowing the affidavit to be • filed, and took his chances before the jury upon the evidence submitted.</p>

<p>1. Street Railroads—-Crossings—Contributory Negligence—Stepping on Track—Case at Bar-—-Last Clear Chance.—Plaintiff’s intestate was killed by being struck by a car of defendant, an electric interurban railway, which he had intended to board. Defendant’s station was on the west side of the tracks and in order to reach it it was necessary for plaintiff’s intestate to cross over the tracks. When a short distance from the tracks plaintiff’s intestate and his brother, who was accompanying him, heard and saw the car approaching at a distance of 150 to 200 yards from the station. The car was running at a rate of from twenty to twenty-five miles per hour and carried a dim light. Seeing the car approaching, they quickened their speed, and as they approached saw several persons on the station platform signaling the car to stop. The car was scheduled to stop on signal and had uniformly theretofore done so, but on this occasion it neither slackened its speed nor stopped, and in continuing its course struck the intestate, who was attempting to cross the track, inflicting the injury of which he subsequently died. The car was in full view from the time it was first observed at a distance of 150 to 200 yards until the intestate was struck, and the evidence showed that the intestate was looking at the approaching car.</p> <p>Held: That the contributory negligence of plaintiff’s intestate barred a recovery for his death; and that the doctrine of last clear chance was not applicable.</p> <p>2. Street Railroads—Crossings—Contributory Negligence—Stepping on Track—Case at Bar—Last Clear Chance.—The intestate was laboring under no physical disability. The car was ' in full view, and he was “looking at the car approaching.” The motorman had the right to assume that he would not step in front of it. It was his duty to see that the car had slackened its speed or stopped before going on the track in such close proximity to. it. The 'fact that he was a passenger gave ■him no right to step upon the track in. close proximity to the rapidly approaching car.</p> <p>3. Carriers op Passengers—Liability for Injuries—Insurer.—A carrier is not an insurer of the safety of its passengers.</p>

<p>Error to a judgment of the Hustings Court of city of, Portsmouth, on. a motion for judgment for money. Judgment for defendant. Plaintiff assigns error.</p>

<p>Error to a judgment of the Circuit Court of Henrico county, on a motion for judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

<p>1. Landlord and Tenant-Tenancy from Year to Year-Notice to Quit.&emdash;To terminate a tenancy from year to year a notice to quit by the landlord to the tenant must be unconditional. In the instant case, there was no unconditional notice to vacate. The notice proposed a different kind of rent, or a renting for a part of the crop instead of a fixed money rent, and to this proposition the tenant replied, “he would do what was right.” This was not a sufficient notice to terminate the tenancy.</p> <p>2. Landlord and Tenant-Tenancy from Year 'to Yean--Notice to Quit-Waiver.-It appeared from the evidence that in the case at bar the tenant was in the habit of getting drunk, and after the notice to vacate the landlord sent him word “to stop- drink-ing whiskey and go ahead as he had been doing.”</p> <p>Held: That if the notice had been a sufficient notice it was waived by this message.</p> <p>5. Landlord and Tenant-Waiver -of Notice to Quit-Notice to Purchaser-Demurrer to Evidence.-In the case at bar claimed that he was a purchaser for value from the and had no notice of the waiver of notice to quit, bht he knew of the tenancy from year to year and of the character of the notice that was given to terminate it, and, viewing the case as on a demurrer to the evidence, he had notice of the waiver, as a witness testified that he repeated the message of the landlord as to the tenant’s stopping drinking and going ahead to the tenant in the presence of the plaintiff.</p>

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

<p>1. Order of Proof-Discretion of Court.-The order in which proof is introduced is a matter in the discretion of the trial court.</p> <p>2. Agency-Authority-Declaration of Agents.&emdash;While the of an alleged agent are inadmissible to prove agency, if the agency be otherwise prima facie proved, they become in corroboration.</p> <p>8. Agency-Authority.-While, as between principal and agent, the scope of the latter’s authority is that authority which is actually conferred upon him by his principal, which may be limited by secret instructions and restrictions, such instructions and do not affect third parties ignorant thereof; and as between the principal and agent and third persons, the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses, and which the is estopped to deny. The apparent authority, so far as third persons are concerned, is the real authority, and when a third person has ascertained the apparent authority with which the principal has clothed the agent, he is under no obligation to inquire into the agent’s actual authority.</p> <p>4. Agency - Authority - Commercial Travelers or Drummers.There is inherent difficulty in proving the scope of a traveling salesman’s authority where it depends upon parol testimony, especially where the principal is a corporation and a. non-resident. In the case at bar the question at issue was whether an agent of defendant had authority to make a sale, or whether his authority was limited to taking an order subject to acceptance and confirmation by defendant. There was direct testimony tending materially to show that the authority of defendant’s agent carried with it the authority to make sales, and that he was not merely a drummer, or commercial traveler, in the narrow sense of that term, with authority only to take orders subject to acceptance and confirmation by his principal, and therefore, the court properly allowed the question of the agent’s authority to make the sale in question to go to the jury.</p> <p>5. Instructions—Instructions not Certified—Appeal and Error.— Before the Supreme Court of Appeals can hold that the giving of an isolated instruction constituted reversible error, in a case where all the instructions are not certified, it will have to clearly appear that the instruction in itself was vitally wrong, and that other instructions could not have cured the error.</p> <p>6. Instructions—Instructions not Certified—Appeal and Error.— . In the case at bar, the particular instruction complained of was susceptible of application to more than one feature of the evidence. The instruction itself, taken with another which was admittedly given, shows that the jury could not have been misled by it upon the decisive and only really controverted question of the agent’s authority to make sales of flour without confirmation, and the instructions as a whole might have still further remedied the error complained of, if error it was.</p>

<p>Error to a, judgment of the Hustings Court of city of Richmond, on a motion to correct an erroneous assessment. Judgment for defendants. Plaintiff assigns error.</p>

<p>1. Libel and Slander-Hearsay Evidence.-In an action for slander plaintiff testified “that his little girl said to him: ‘Father, what is this they say about me, they say I am a nigger.’ That he said to his little girl: ‘No, darling, you are not, and they will be made to prove it.’ ” It nowhere appeared in the evidence that the defendant made the statement to the little girl that she was a negro, or that he caused it to be made. The fact that such a statement was made to the daughter was therefore inadmissible. Moreover, the father did not claim to know that the statement was in fact made to his daughter by anyone. The testimony of the father as to such statement was purely hearsay and hence also inadmissible. That error in the admis-' sion of such testimony was prejudicial to the defendant is obvious.</p> <p>2. Libel and Slander-Evidence.-In an action for slander, little daughter was allowed to testify that defendant’s little girl called her a nigger doll.</p> <p>Held: That the admission of this testimony was reversible error, because it presented to the jury a statement to the plaintiff’s daughter which .was not made by the defendant, nor caused to be made by him, so far as appears from the record.</p> <p>3. Parent and Child-Torts-Libel and Slander.&emdash;The mere of father and child in the case at bar did not make the father legally responsible for the slanderous words of his minor daughter.</p> <p>4. Libel and Slander-Origin of the Slander&emdash;Mitigation of weight of authority is in favor of the view that if the defendant did not originate the slander, that is a which should be taken 'into consideration by the jury along with all the other evidence in the ease, on the question of the presence or absence of actual malice, as distinguished from malice in law, in the speaking of defamatory words. At ' the same time, a defamatory statement not originated by him who repeats it, but one known by the latter to be false when he repeats it, may be as malicious as if originated by the slanderer. Hence, the isolated fact, if it be a fact, that the</p> <p>defendant did not originate the slander, may or may not mitigate the damages in a particular case.</p> <p>5. Libel and Slander—Instructions—Origin of Slanders—A. request that the court instruct the jury in an action for slander that if they believe from the evidence that the defendant did not originate the alleged slander that that should be considered in mitigation of damages, was properly refused, in the absence of evidence on the part of the defendant as to his bona fide belief in the truth of his statement; and even though such evidence was present the trial court should avoid singling out the circumstance of the non-originating of the 'slander by the defendant; it should refer to that as merely one of the facts or circumstances to be considered by the jury along with all the other facts or circumstances in the case as bearing on the presence or absence of actual malice in the utterance of the ■slander, and should avoid the statement that such evidence might be considered by the jury in mitigation of damages. ■</p> <p>6. Instructions—Weight of Evidence—Libel and Slander.—An instruction that if the jury believe from the evidence that the defendant did not originate the alleged slander that that should be considered in mitigation of damages, is on the subject of the weight of evidence, on which a trial judge must, under our practice, be particularly watchful and guarded in- the matter of giving instructions to the jury, so as not to invade the rightful province of that important component part of the court.</p> <p>7. Libel and Slander—Instructions.—An instruction which -plainly-referred the questions of fact to the jury, both whether the defendant used the words in the declaration mentioned, and whether he . used them in bad faith and with malice, did not assume that the defendant used such words.</p> <p>8. Libel and Slander—Instructions.-—Where there was no defense offered that the words complained of were not used in accordance with their usual construction and common acceptation, but the plaintiff expressly admitted so using them, an instruction is not erroneous because it contained the peremptory command that, if the jury believed that the alleged words were used and that such words from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace, the jury must find for the plaintiff.</p> <p>9. Libel and Slander—Damages—Pleading.—The words alleged in the declaration were proved to have been spoken as alleged. They were actionable per se under the statute in Virginia on the subject. In such case no averment or proof of special damage is necessary. The declaration alleged that the words affected the plaintiff’s business. If so, they were actionable per se at common law also and a general allegation and general proof of damages to the plaintiff’s business was sufficient to sustain a finding by the jury of such damages without averment or proof of special damage to such business.</p>

<p>1. Fraudulent and Voluntary Conveyances—Husband, and Wife.—. As a matter of public policy, conveyances by husband to wife, where the husband is indebted, are presumed to be fraudulent, because of the temptation to commit frauds upon creditors and the ease with which they may be perpetrated, and this must be overcome by evidence.. Where a husband who is indebted conveys his property to his wife, the wife must prove the good faith of the transaction by clear and satisfactory evidence. If the deed be tainted with actual fraud, it is void as to all creditors, whether existing or subsequent. When post nuptial settlements are assailed by creditors, they must be by proof; and the answer of the wife is not evidence, but must be sustained by proper proof.</p> <p>2. Fraudulent and Voluntary Conveyances—Husband and Wife.— Code of 1904, section 2459, provides that conveyances which are not upon consideration deemed valuable in law, or which are upon consideration of marriage, shall be void as to but not as to subsequent creditors. Section 2458 provides that every conveyance given with intent to delay, hinder, or defraud creditors, shall be void. A husband conveyed to his wife all his real estate, reciting the consideration to be the sum of five dollars and other valuable considerations. The husband was engaged in business, and at the time.of the was indebted to others, and at the time of his death his indebtedness had increased. Upon suit by the husband’s' creditors to set aside the deed as fraudulent the wife contended that the conveyance was voluntary and not based upon valuable consideration, and that therefore the conveyance was not void as to subsequent creditors.</p> <p>Held: That the burden of proof was upon the wife and that the false and deceptive recital of a valuable consideration in the deed did not shift the burden of proof to creditors whose debts were contracted after the conveyance.</p> <p>8. Fraudulent and Voluntary Conveyances—Section 2459 of the Code of 1904—Proof of Fraud.—A gift of a chattel being without valuable consideration is always void as to existing creditors of the donor; but as to subsequent creditors actual fraud must be proved. The voluntary character of the transaction may be one element in the proof of fraud, but not sufficient proof, because the statute says it shall not be.</p> <p>4. Fraudulent and Voluntary Conveyances—Section 2459 of the Code of 1904—Proof of Fraud.—In the case at bar a husband who was indebted at the time made a conveyance to his wife, which was in fact voluntary though it falsely purported to be for a valuable consideration. The husband was engaged in a business which was to be prohibited by law within eighteen months. His fixtures and business stand were, therefore, depreciating in value, while his debts, instead of diminishing, materially increased soon after the conveyance, and the evidence submitted did not clearly and satisfactorily prove that the grantor had reserved sufficient property to pay his debts.</p> <p>Held: That this was not merely a voluntary conveyance under section 2459 of the Code of 1904.</p> <p>o. Husband and Wire—Fraudulent and Voluntary Conveyances.— In a suit properly instituted by subsequent creditors, it appeared that a husband, indebted at the time, conveyed the major portion of his property to his wife, by a deed which falsely recited a valuable consideration, the amount of which was not disclosed by the deed, and which was in fact voluntary.</p> <p>Held: That in the absence of satisfactory explanation, such facts are sufficient to sustain a decree that the conveyance was fraudulent and hence void as to subsequent creditors.</p> <p>6. Appeal and Error—Affirmance.—An appellate court will not reverse the decree of a trial court, which is entitled to great weight, unless satisfied that it is wrong. The burden is upon the party complaining to show error and to satisfy the appellate court of such error.</p>

<p>1. New Trial—Motion Before Law Judge not Before Chancellor. In a court which has both common law and chancery jurisdiction, and in which the same judge administers both, it is immaterial before which branch of the court a motion to set aside the verdict upon an issue out of chancery and award a new trial is made.</p> <p>2. Appeal and Error—Issue of Fact—Depositions—Evidence.—In a suit for damages for diminution of water power, where an issue to a jury was awarded to determine the amount of damages to be awarded to the plaintiffs for the injuries sustained, the Supreme Court of Appeals will not treat the evidence adduced on the trial of the issue as though it had been given m the form of depositions.</p> <p>3. Appeal and Error—Reversal—Finding of Jwry.—In a case where there was no certain standard for the admeasurement of the damages to be assessed, and there was serious conflict in the testimony as to the amount of the damages inflicted, an issue of fact was awarded. The sole question submitted to the jury was the amount of damages to be awarded the plaintiffs for the injury sustained and to be sustained, by reason of the acts done and proposed to be done by the defendant. No other question was submitted to them. Their assessment of the damages was approved by the trial court, and where this is the case, and no error is pointed out in the action of the court or the conduct of the case, the finding of the jury will not be disturbed unless it is palpably and obviously erroneous, or is without evidence to support it.</p> <p>4. Damages—Mitigation of Damages.—In a suit for damages for diminution of plaintiffs’ water power by defendant, evidence was properly excluded as to how the injury done by the defendant to the plaintiffs might have been minimized in the past, as no one is under obligation to undertake to minimize a threatened or an intermittent voluntary trespass.</p> <p>5. Damages—Mitigation of Damages—Trespass.—The owner of property is not obliged to so use his own property that another may not injure it. If an injury is merely threatened, no action lies for the threat, and the property owner is under, no obligation to attempt in advance to minimize the results of a wrong which may never be inflicted. If the injury is intermittent and recurrent, entire damages cannot be recovered in a single action, as the injury may never be repeated, and for that reason there is no duty resting upon the party injured to attempt to minimize its consequences. But where the injury is permanent in its character and continuous in its consequences, entire damages may be recovered m a single action, and the duty rests upon the injured party to minimize its consequences if it can be done at moderate expense and by the exercise of ordinary care.</p> <p>6. Trespass—Eminent Domain.—A railroad cdmpany is no less a trespasser when it diminishes the water power of a mill owner because it intended to exercise its right of eminent domain than if it entertained ho such intention.</p> <p>T. Trespass—Eminent Domain—Duty of Landowner—Minimizing Damages.—In such a case every time it diminished the plaintiffs’ supply of water to their detriment it committed a new trespass, and while the nature of its pumping station indicated that it would probably continue to trespass upon the plaintiffs’ property, the latter were under no obligation to presume that it would continue to do so, without compensation, nor to undertake to minimize the results of a wrong that might terminate at any instant. .They had no right to assume that the railroad company would continue to illegally inflict an injury upon them.</p> <p>8. Damages—Trespass—Eminent Domain—Measure of Damages.— In a suit by a- mill owner against á railroad for damages for diminution of his water power, the case stood in all essential particulars, so far as the measure of damages was concerned, as a proceeding to condemn the water for the use of the defendant, and the measure of damages is the difference between the market value of the mill property before and after the injury. The damages should not be based on the evidence of the amount of the horsepower lost, and an estimate of the value of that horse-power at the mill by comparing the horsepower at another place, and under different conditions, and a calculation of what sum put at interest at six per cent, would produce an income equivalent to that loss.</p> <p>9. Exemplary Damages—Argument of Counsel—Going Outside of the Record.—In a case in which exemplary or punitive damages are properly allowable, evidence of the wealth of the defendant may be introduced, and such evidence is a legitimate subject of proper comment, for what would he punishment to a poor defendant would he no punishment at all to one of wealth and affluence. But it is never permissible for counsel to go outside of the record and testify as to matters not given in evidence, nor, in any case, to make use of language calculated to inflame the minds of the jurors and induce a verdict not founded solely on the evidence adduced before them.</p> <p>10. Argument op Counsel—Statements Calculated to Inflame the Minds of Jurors.—The Supreme Court of Appeals has more than once reprobated in no uncertain terms the practice of injecting into arguments of counsel statements calculated to inflame the minds of jurors, and tending to produce verdicts as a result of prejudice rather than a calm consideration of the evidence. Every litigant, natural or artificial, is entitled to a fair and impartial trial, and there should be excluded from the tribunal which is to try the case, whether judge or jury, everything that has no tendency to aid such tribunal in doing impartial justice between the litigants.</p> <p>11. Argument op Counsel—Financial Standing of Defendant.— In an action against a railroad company for diminution of plaintiffs’ water power, there was no evidence before the jury as to the wealth of the defendant, hut counsel for plaintiffs in his address to the jury was allowed to comment over defendant’s objections upon the great wealth of the defendant and its disregard of the law of God and man.</p> <p>Held: Error.</p> <p>12. Waters and Watercourses—Diminution of Water Power—Exemplary Damages.—In the case at bar the defendant railroad company continued the diminution of plaintiffs’ water supply, after a judgment for plaintiffs was affirmed by the Supreme Court of Appeals. The evidence in the case, however, did not show that the railroad company was actuated by malice, wantonness or oppression, or that there was any fraud on its part, or that it was guilty of any gross negligence or recklessness, or that its action in continuing to take the water, after the order of the Supreme Court of Appeals had been certified to the circuit court, until arrangements were made to settle the controversy, evinced any intention on the part of the railroad company to disregard the rights of the plaintiffs, or to defy the law of the land. Unless one or the other of these situations existed, the plaintiffs had no right to recover punitive damages.</p>

<p>1. Amendments—Substitution of New Party.—An entirely new plaintiff cannot be substituted after it has become manifest that the original plaintiff could not maintain- the action, the proper practice in such a case would have been for the plaintiff to ask to be allowed to suffer a non-suit before the jury retired, under section 3387 of the Code of 1904, and to have renewed the suit in the name of the proper plaintiff.</p> <p>2. Amendments—New Cause of Action—Misjoinder of Parties.— At common law the courts had no power to allow an amendment to an existing pleading, introductive of a new and distinct cause of action.</p> <p>3. Amendments—Substitution of New Party—Sections $259, 3260, of the Code of 1904, and Acts 1914, page 641—Corporation a Separate Entity from, its Stockholders.—Sections 3259, 3260, of the Code of 1904, and Acts 1914, page 641, plainly do not contemplate the substitution of entirely new plaintiffs, but are rather intended to apply to amendments involving amplified and supplemental statements of the original action, and in furtherance of its object. They were never intended to permit the substitution of a new cause of action. The circumstance that in the case at bar the substituted plaintiffs owned the stock of the original plaintiff, a corporation, did not affect the question. The corporation was a separate entity from its stockholders, with power to sue and be sued; and, certainly in a legal forum, they stood in the same relation to each other as any other litigants.</p>

<p>Error to a judgment of the Circuit Court of the city of Norfolk upon an issue of devisavit vel non. Judgment for executrix, the proponent of the will. The contestants assign error.</p>

<p>1. Deeds—Deed Made after Death of Grantee.—A deed made to a grantee after his death is ineffectual to pass title and void.</p> <p>.2. Partition—Jurisdiction—Equitable Estate.—Under the provisions of section 2565 of the Code of 1904, a court of equity has jurisdiction to partition equitable estates in land. So where a decedent was the complete equitable owner of a lot at the time of his death, equity may decree that the lot be sold for partition among his heirs at law, upon a bill filed by some of the heirs against the remaining heirs for partition.</p> <p>8. Appeal and Error—Amendments—Prejudice.—Where in point of fact a case was disposed of on issues raised on the original bill and answer, no notice being taken of the amended bill in the decree, defendants were not prejudiced by the action of the court in permitting the amended bill to be filed, and in not dismissing it on demurrer and answer.</p>

<p>Error to a .judgment of the Circuit Court of Brunswick county, on a motion to correct an erroneous assessment. Judgment for the county. Plaintiffs appeal.</p>

<p>1. Appeal and Error—Conflicting Evidence—Negligence.—Where the evidence is in conflict as to the charges of negligence against defendant, and the verdict and judgment of the court below is for the plaintiff, the Supreme Court of Appeals will assume that the negligence of the defendant was established.</p> <p>2. Appeal and Error—Motion to Set Aside Verdict—Plaintiff’s error to a judgment for plaintiff in an action for negligence, the evidence of plaintiff’s witnesses, so far as at all credible, must be accepted by the appellate court.</p> <p>3. Street Railroads—Crossing—Contributory Negligence.—Where a woman of intelligence and activity, aware of the danger of the situation, and with nothing to distract her attention or hinder her prevision, walked upon a street railway track, not at a regular crossing, but at a point twenty-seven feet beyond the crossing, without taking adequate precautions for her safety, there can be no recovery as a matter of law.</p> <p>4. Street Railroads—Crossing—Look and Listen.—The duty to look and listen is not applied with strictness to travelers crossing street railways, as it is with regard to crossing steam railroads. With respect to the former the general rule is that the failure to look and listen is not negligence per se, but this general rule is not inflexible, and the final test in every case is whether the court can say that the evidence furnishes no reasonable basis upon which to find that an ordinarily prudent person would have attempted to cross the track under the of the particular case.</p> <p>6. Street Railroads—Bight of Public to TJse of Street.—The public has an equal right with the street railway company to ride, drive, and walk upon the street between crossings, subject, however, to the superior right of way of the street cars, due to the fact that such cars must run on the tracks and cannot observe the law of the road.</p>

<p>1. Street Railroads-Contributory Negligence-Case at Ban-.Plaintiff driving a two-horse delivery wagon along a street which intersected a street npon which defendant’s street ran, approached the crossing of defendant’s street driving at a slow rate of speed. When he reached the street upon which the railway was, plaintiff looked east, and discovering no car on the westbound track (the one nearest to him), he then looked west and saw. a car on the eastbound track half a block away, coming toward the crossing. Although he knew that the car was dangerously near and was rapidly, he paid no further attention to it, but to drive across the street upon which the street was, without accelerating his speed, and, without even looking in the direction of the car, drove on the track in front of it. Immediately before the collision, plaintiff hearing the noise of the car turned his head and looked, and the car, he testified, was “right on top” of him.</p> <p>Held: That, if the defendant was guilty of negligence, plaintiff’s own negligence, which continued down to the moment of the collision, if not the proximate cause of the accident, at least efficiently and concurrently contributed thereto.</p> <p>2. Street Railroads-Contributory Negligence-Case at Bar.-It was plainly the duty of the plaintiff, when he discovered the approaching car, to keep a lookout on its movement, and to so regulate his own conduct as to avoid danger of collision. In the circumstances detailed, the dictate of common prudence demanded such precaution; and if plaintiff chose to disregard it, he was the author of his own misfortune and his negligence defeats his right to recover for the consequent injury.</p>

<p>1. Life Insurance—Interest of Beneficiary—Case at Bar.—A policy of life insurance issued on the ten-payment life plan provided that the insured might, upon, the surrender of the policy, with the written approval of the president, or vice-president, of the insurance company, change the beneficiary, and also that after the policy had been in force three years, the insurance company would grant, in conformity with its rules, a cash loan, and that from any sum payable under the policy there should be deducted the indebtedness of the insured or beneficiary to the company “on account of this contract or otherwise.” The insured paid the premiums in advance for the first seven years the policy ran out of his individual funds. But for each of the eighth, ninth and tenth years, he borrowed from the company the amount necessary to pay the premium for the ensuing year and the interest in advance for one year on his indebtedness for such loans. And after the last loan the insured executed to the company a note in which all loans from the company were consolidated. The note provided that it should be a first lien on the policy. After the death of the insured, the amount of the policy, less the amount of the note given for loans on the policy, was paid to the beneficiary.</p> <p>Held: That the beneficiary was not entitled to recover in an action of assumpsit against the executor of the insured, the amount of the note as a debt against the estate which had been paid out of her property.</p> <p>2. Life Insurance—Interest of Beneficiary—Case at Bar.—The beneficiary in a life insurance policy is not entitled to recover from the estate of the insured—which is solvent and more than sufficient to discharge all obligations of the estate, including bequests made in insured’s will—the'amount of a loan obtained by the insured from the insurer on the policy as collateral security and under the provisions contained therein, which amount was used by the insured in the payment of premiums due on the policy and interest on the loan, and which was deducted by the insurance company in a settlement under the policy with the beneficiary.</p> <p>3. Executors and Administrators—Order of Payment of Debts of Decedent.-—Where creditors will hot be prejudiced thereby, every man has the right, by act inter vivos or by will, to appropriate his property to the payment of his debts in any order he may see fit. While, ordinarily, personal estate is the primary fund for the payment of the debts of a decedent, he may change that Order, if he pleases, and the law will generally recognize and enforce it.</p> <p>4. Life Insurance—Beneficiaries—Case at Bar.—In the inslfcant case the policy provided for the payment of $10,000 to the beneficiary, upon proper proof of the death of the insured, but this promise was made expressly “subject to all the requirements, privileges and provisions stated’’ in the policy, one of which provisions was that if any loan should be made to the insured, the amount thereof “shall be deducted" from “any sum payable hereunder.” The designation of the plaintiff as beneficiary in the policy, gave her the right, if there was no change in the beneficiary, to whatever was payable on the policy, according to its terms, and nothing more. Her right to recover on the policy accrued at the death of the insured, and she was then entitled to the policy, or its proceeds. .Her designation as beneficiary constituted a gift from the insured, and was never intended to, and did not, create any liability upon the donor, or his estate. This gift became effectual on the death of the' donor, and consisted of whatever sum was demandable of the company at that time.</p> <p>5. Life Insurance—Indebtedness of Insured to Company—Interest of Beneficiary—Case at Bar.—Under the terms of the policy, the company itself could not have enforced the payment of the note, after the death of the insured, out of any other fund than that pointed out by the policy as the primary fund for the payment thereof. At the death of the insured, ijhe net sum due on the policy was the extent of the liability of the company by reason of the policy, and, under its terms, providing for the deduction of the note, that sum was all the beneficiary was entitled to receive. As she has received that sum, no part of her estate was ever applied to the payment of the note.</p>

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

<p>Error to a judgment of the Circuit Court of Elizabeth City county, on a motion to correct an erroneous assessment of taxes. Judgment for the Commonwealth. Plaintiff assigns error.</p>

<p>1. Fiees—Evidence—Engine Throwing out Sparks.—In an action for damages by plaintiff for the destruction of his property by fire alleged to have been set out by sparks or coals dropped or thrown from one of the locomotive engines or trains of defendant, it was prejudicial error to refuse to allow the plaintiff, on examination in chief as a witness in his own behalf, to answer the following question: “State whether or not ■ engines of the defendant * * * drawing freight trains southward * * * throw sparks and coals as they pass the point at which your property is located.”</p> <p>2. Fiees—Evidence—Engine Throwing out Sparks—Case at Bar— Appeal and Error—Reversible Error.—In the instant case the undisputed fact was, that the train of the defendant, from which plaintiff’s evidence tended to show the fire originated, passed along by a shed between lines of box cars standing on each side of the main line track, which of itself, according to known physical laws, in the resistance given by such lines of box cars to the air displaced by the defendant’s moving train, might have caused ample disturbance of the air to have carried sparks or coals, if thrown out by the engine of such train, the short distance of twenty-five feet from the engine to the debris on the side of the shed, where the fire originated according to the testimony for the plaintiff. Therefore, ■ whether or not such engine in fact threw sparks and coals as it passed said locality was a material fact in the instant case, upon the plaintiff’s theory of the origin of the fire. Hence, the error in excluding the circumstantial evidence referred to in the preceding headnote was plainly harmful error to the plaintiff and therefore reversible error.</p> <p>3. InstetjCtions—Weight of Evidence.—An instruction upon the subject of the weight and effect of the evidence must be carefully drawn so as not to invade the province of the jury under our procedure. Under that procedure they are the sole judges of the credibility of witnesses and of the weight to be given to the evidence in a case.</p> <p>4. Fiees—Instructions—Weight of Evidence.—In an action for damages by fire alleged to have been set out by a railroad, an instruction that the jury could not “presume from the happening of the fire that it was caused by the defendant. * * * In other words, it is incumbent upon the plaintiff to show how the fire occurred and the plaintiff cannot leave to the jury • the determination of the question by conjecture, guess or random judgment or upon mere supposition,” is erroneous. It is in effect an instruction to the jury that they could not, • in the instant case, presume (i. e., could not draw the inference of fact) from the happening of the fire, under the circumstances shown by the evidence for the plaintiff, that it was caused by the defendant. That was precisely such an inference of fact as the jury might have been warranted in drawing in the instant case, in view of the undisputed facts and of the evidence for the plaintiff.</p> <p>5. Fires—Circumstantial Evidence■—Presumption Based Upon Presumption.—The fundamental error in the instruction set out in the preceding headnote is that an ordinary reader or juror would be apt to construe it to mean that a jury cannot draw an inference of fact from circumstantial evidence; that such an inference is a presumption based upon a presumption, which cannot serve'as an intermediate fact from which (along with other circumstantial evidence) the jury may draw another inference of fact. The error of this position is pointed out by the Supreme Court of Appeals in the ease of C. & O. Ry. Co. v. Ware, ante, page 246, 95 S. E. 183.</p>

• Error to a judgment of the Circuit Court of the city of Williamsburg and county of James City, on a motion to correct an erroneous assessment. Judgment for the Commonwealth. Plaintiffs assign error.

<p>1. Adverse Possession—Lien of Judgments against Former Owner— Case at Bar.—In a creditor’s suit the commissioner to whom the cause was referred reported numerous judgments as alive and subsisting- liens on the real estate of the judgment debtor. He also reported numerous parcels of real estate liable to the lien of said judgments, and a lot which had been conveyed to the judgment debtor and which had never been conveyed to anyone by him, in the possession of a railway company, which claimed the same by the most notorious acts of adverse possession, exercised by itself and those under whom it claimed. The claim of the railway company to title by adverse possession was decisively supported by all the essential elements of such a title. Its predecessors entered into possession, before the recovery of the judgments referred to, under a color and claim distinctly adverse to, and in no wise in privity with, the title of the judgment debtor, and this possession, in most emphatic manner, had continued exclusively, uninterruptedly, visibly, notoriously, and in hostility to all other titles, for more than twenty-three years before the instant suit was brought, and for nearly thirty years before the judgment creditors asserted any claim of lien upon the property, or attempted by amended pleadings to make the railway company- a party. During these decades, the adverse occupants had expended many thousands of dollars in permanent improvements on the premises.</p> <p>Held:' That any title to the property claimed by the railway company which could be acquired by virtue of the lien of the judgments asserted in the instant suit would be a title held under the judgment debtor; that the right of action to assert such title would be in terms barred by section 2915 of the Code of 1904; and that the effect of this section cannot be avoided by resorting to a chancery suit.</p> <p>2. Adverse Possession—Title Conferred by—Privity with Former Owner.—The adverse occupant who has held for the statutory period does not stand in the position of a grantee from the former true owner, but his occupancy has, by authority of the State speaking through the statute, extinguished all other titles, and has vested in him an absolute and exclusive right to the possession. His title is not in any sense in privity with that of the former owner, and cannot be questioned either by such former owner or by any one claiming through him.</p> <p>3. Adverse Possession—Title Conferred by.—A true adverse possession for the statutory period confers upon the occupant a new, independent, unincumbered, indefeasible title, a weapon of defense and offense, good alike at law and in equity in all proceedings which call in question its validity or endanger its security. In short, such a title, though not derived from the former owner, is as good as it would be possible to acquire by deed from a former owner of a perfect title,- Or ,by a grant from the Commonwealth.</p> <p>4. Adverse Possession—Section 2915, Coda of 190//.—Purpose of the Act.—The ruling purpose and policy of this statute, which must be looked to in determining its true meaning and effect, is to give stability to land titles.</p> <p>5. Adverse Possession—Judgment Liens—Section 2915, Code of 19 04..—In the case at bar the appellants contended that th-e instant case was one to enforce the lien of a judgment, not an action to recover land, and, therefore, section 2915 of the Code of 1904 did not apply; and that under sections 3567 and 3571, Code of 1904, their lien was valid and enforceable. It is true that under section 3571 of the Code the lien of a judgment may be indefinitely continued against the' land of the judgment debtor in his possession, or of others holding titles derived from and in privity with him. But obviously the same rule . cannot be applied to strangers who have acquired a perfect legal title not in privity with but adversely to the title of the judgment debtor. In other words, the life of a judgment may be indefinitely prolonged as to any property upon which it can operate, but' whenever the ‘right of the judgment debtor to make an -entry on or bring an action to recover any land held adversely is tolled by section 2915, the right of his judgment creditor to subject such land to the satisfaction of his . judgment also ceases. The lien is a vested right, but not more so than the title to which the lien attaches, and when the statute destroys the latter it necessarily destroys the former.</p> <p>6. Judicial Sales—Title.—A judicial sale of lands to satisfy liens is not a source of'title, but merely a transmission of the title sold, and if at the time of the sale such title would not enable the holder thereof to make an entry or maintain an action, the purchaser cannot acquire' any right of entry or action.</p> <p>7. Adverse Possession—Judgment lAens—Section 2915, Code of 1904—Theoretically and technically, a suit to enforce a lien is not a suit to recover land, but a practical and rational application of section 2915 of the Code, in the light of its object and purpose, neither requires nor permits a holding that a lien' (which is a mere right to sell a title for debt) stops th© statute from running in favor of an adverse occupant and . enables the lienor, by a judicial sale, to infuse life into a title ■which the statute has annihilated.</p> <p>8. Judgment Liens—Parties—Adverse Possession.—Assuming, but not deciding, that one who has secured title to property through adverse possession is a proper party in a creditor’s suit to enforce the lien of judgments against a former owner of the property, and that the question of title between a judgment debtor and an adverse claimant can be tried in a suit to enforce the judgment lien, then the statute of limitations (section 2915, Code of 1904) must he held to protect the adverse claimant if he shows sufficient facts as to. the character and duration of his possession. If a legal right would be barred in a suit to enforce it in a court of law, it or an analogous equitable right will he likewise barred in a suit to enforce it in the equitable forum.</p> <p>9. Vendor and Purchaser—Parol Contract for Purchase of Land— Judgment Liens Against the Vendor.—Where the registry acts do not apply to a parol contract for the sale of land, and where the vendee has paid all the purchase money and has been put •into possession so that he has a valid equitable title to the land, it is not subject to the Hen of a judgment subsequently recovered against the vendor.</p> <p>10. Vendor and Purchaser—Parol Contract for Purchase of Land— Judgment Liens Against the Vendor.—In 1876 the trustees of a school district purchased a house and lot from one Sorer upon the following terms: The trustees to pay Borer $2,500 for the lot and Borer to take “the school house and lot on the hill” at $500 in part payment, and the residue in equal payments in one and two years. The trustees then canvassed the town for private subscriptions, and obtained good solvent subscribers to the amount of $1,220. The board then accepted Borer’s proposition and issued its bonds for $800, which, together with the house and lot on the hill and the private subscriptions, made up the price agreed. The school trustees took possession of .the property thus purchased and a few years thereafter expended $2,000 in adapting it to school purposes. They appear also to have delivered possession of the house and lot on the hill to Borer. No deed was made by Borer to the trustees nor by the trustees to Borer, but the bonds given by the trustees for the deferred payments were paid, and from the record it sufficiently appeared that all the purchase money was paid before the complainants in the instant suit recovered their judgments against Rorer.</p> <p>Held: That under the doctrine of Floyd v. Harding, 28 Gratt. (69 Va.) 401, the complainants could not subject the lot sold by Rorer to the school trustees to satisfy their judgments.</p> <p>11. Recording Acts—Contracts in Writing—Case at Bar.—The bonds referred to in the preceding headnote did not on .their . face refer to the contract in pursuance of which they- were given, nor to the minutes of the school board, but each of them stated that it was for payment on the house and lot bought of Rorer for school purposes, and each bore an endorsement as follows: “For value received I assign the within bond to John B. Harding with permission to indulge until notified in writing to collect. (Signed) F. Rorer.”</p> <p>Held: That the assignment of the bonds to John B. Harding by F. Rorer, signed by the latter, did not constitute a contract in writing between Rorer and the school board within the meaning of the recording acts.</p> <p>12. Recording Acts—Contracts in Writing—Case at Bar—Burden of Proof to Show Parol Contract.—Assuming that the burden of proof in the instant ease was upon the trustees to show that the contract was by parol, where, however, the rights of parties are made apparent on the public records, and they have allowed upwards of thirty years to elapse before they have made any investigation of the records to ascertain their rights, and the beneficiaries of the property axe represented by trustees who are public officers receiving but little, if any, compensation for their services, and where, after the lapse of many years, all of the parties representing the public interest have died, and the loss of other evidence may have been sustained as incident to the change in office of the trustees, it is not to be expected that those representing the public interest will be able to establish the rights of their beneficiaries by that clear and satisfactory evidence which might be expected and demanded of a private individual looking after his own interest.</p> <p>18. Documentary Evidence—Record of School Board.—The records of a school board are books of original entry and are admissible in evidence to show the acts of the board with reference to the purchase of property by it.</p> <p>14. Schools—Pu/rchase of Real Estate—Contracts—Acts 187US, page 190.—The act of 1874-5, page 190, providing that contracts for the purchase of real estate by public officers must be in writing, and the evidence of title must be submitted to the county court or judge for confirmation and approval, and that no contract should be valid until the title to such real estate was approved, was not enacted for the benefit of vendors of land, but to prevent the loss of public funds by investment in property the title to which was defective. It is true that it declares that the contract shall not be valid unless and until the title to the land “be thus approved,” but this does not necessarily mean that the contract shall be void. The statute, like the statute of frauds, does not go to the existence of the contract, hut makes written evidence necessary to evidence it. Moreover, like the statute of frauds, the right to demand compliance with the statute is a matter personal to the parties to the contract and their privies, and cannot be insisted upon by third persons.</p> <p>15. Schools—Purchase of Real Estate—Contracts—Acts 1871-5, page 190—£ase at Bar.—In the instant case it was insisted that as the contract was not in writing and as the evidence of title was not submitted to the judge, as required by the act, the school board was not bound by it, and hence there was a lack of mutuality of right and obligation, and that, where this is lacking when the contract is entered into, no subsequent act or omission of the parties can supply its place.</p> <p>Held: That as parol contracts for the sale of land were valid in 1876, by parity of reasoning to cases arising under the statute of frauds, the fact that the contract was not in writing and the title to the land was not approved by the court or judge, furnishes no valid reason why the contract might not be enforced, in a proper case, against Borer, who labored under no disability to contract.</p> <p>16. Vendor and Purchaser—Judgment Lien—Extent of Lien of Judgment Against Vendor.—Where a valid contract for the sale of land has been entered into, and the recording acts do • not interfere, a judgment against the vendor after the contract and before deed to the purchaser; and before the entire purchase money has been paid, is a lien on the land only to the extent of the purchase money then unpaid. Overruling Fulkerson v. Taylor, 102 Va. 314, 46 S. E. 309, so far as it declares that “in order for a purchaser under a contract which is not required to be recorded, to be protected as to subsequent judgments against his vendor, he must, before the date of such judgment, have become invested with a perfect equitable title.”</p> <p>17. Lien of Judgment—Rights of Judgment Creditor.—Both before and since the revision of 1887, it has been held that where the recording acts do not interfere the judgment creditor can acquire no better right to the estate than the debtor himself has at the date of the recovery of the judgment.</p> <p>18. Recording Acts—Subsequent Deeds by Grantor—Notice to Purchaser.—After a purchaser of land has put his deed to record he is not required to watch the records to ascertain whether thereafter other deeds by his grantor or judgments against him are docketed or recorded, and the same is true of deeds of trust conveying the land. The registry of a deed by a subsequent purchaser is no notice to parties who have acquired their rights before the time when the deed is registered.</p> <p>19. Receivers—Appointment—Discretion of Court.—The appointment of a receiver is not a matter of right, but of discretion, to be governed by the circumstances of the case, one of which circumstances is the probability of the plaintiffs being ultimately entitled to a decree. It is, moreover, a. power always to be exercised with caution, and never except in a strong case. The general rule is to refuse an interlocutory application for a receiver, unless the plaintiff presents at least a prima facie case, and the court is satisfied that there is imminent danger of loss.</p> <p>20. Receivers—Creditors’ Suits—Case at Bar.—In a suit to enforce the lien of judgments upon several parcels of real estate, the trial court refused to appoint a receiver of the property reported as liable for complainants’ judgments, or to hold the parties in possession thereof liable for the use and occupation thereof. Two of the defendants were in- good faith and upon- reasonable grounds contesting the liability of the property owned by them to complainants’ judgments, and the owners of the other property joined with the complainants in seeking to hold the property of these defendants liable, because if these properties were held liable they would probably produce sufficient to pay off and discharge the judgments, thereby relieving the property of such owners from any liability for the judgments.</p> <p>Held: That there was no error in the ruling refusing to appoint a receiver. The rights of the parties had not been determined at the time the receiver, was asked for, nor had it been ascertained and adjudicated what property should be subjected to the discharge of such judgments. In such circumstances, the appointment of a receiver whereby -the parties would have been divested of the possession of their property was not proper.</p> <p>21. Creditors’ Suits—Costs.—In a creditor’s suit to subject to the lien of judgments certain parcels of real estate, a bank, by its counsel, offered proof of a judgment against the judgment debtor, to which counsel for certain other judgment creditors objected, because the bank had refused to contribute anything to the cost of the suit. The master reported the judgment, however, and the other judgment creditors excepted to the master’s report on the same ground, and the trial court overruled the exception.</p> <p>Held: That there Was no error in the ruling.</p> <p>22. Creditors’ Suits—Costs.—The bank offered the proof by counsel of its own selection and could not be required to contribute to 'the compensation of counsel of appellants. The only other costs to which it could be required to contribute were the legal and taxable costs of the suit. If no property was disclosed in the suit, it was subject to a decree against it for its due pro-) portion of such costs, hut as the record discloses abundant property out of which the costs could be made, the question becomes one of no practical importance.</p>

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

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

<p>1. Statutes—Constitutional Lai»—Title—Liberal Construction of Section 52, Constitution of 1902.—Section 52, Constitution of 1902, which provides that no law shall embrace more than one object, which shall be expressed in its title, is to be liberally construed in determining whether an act is broader than its title; the act is to be upheld if practicable; and the title of an act is sufficient if the provisions of the act may be fairly regarded as in furtherance of the object expressed in its title.</p> <p>2. Statutes—Constitutional Law—Title—Liberal Construction of Section 52, Constitution of 1902.—All that is required by 52 of the Constitution is that the subjects embraced in the statute, but not specified in the title, be congruous and have natural connection with or be germane to the subject in the title, as instrumentalities for .the accomplish-ment of the general purposes of the act.</p> <p>3. Statutes — Constitutional Law — Title—Prohibition Act.—The prohibition act (Acts 1916, chapter 146, page 215) is not, in that it violates section 52, Constitution of 1902, in so far as it prohibits, by section 40, the acceptance and receipt of ardent spirits. The regulation of the and receipt of ardent spirits by transportation is not only in furtherance of the “enforcement!” of the act mentioned in its title, but may be said to be essential thereto.</p> <p>4. Intoxicating Liquors—Prohibition Act—Section hO of the Act— Indictment.—Under section 40 of the prohibition act (Acts 1916, chapter 146, page 215), which creates the offense for which the accused in the instant case was indicted, if the ardent spirits, the delivery of which was received and by him, were brought or transported by the express company, it is immaterial whether such bringing or was from without or from one point to another within the State. Whether one or the other, if the ardent spirits were transported by the express company (as in the instant case) and the other essential ingredients of the offense existed, the receipt and acceptance of the delivery of the ardent spirits constituted the offense created by the statute. That is to say, whether the ardent spirits were “brought into this State from any point without the' State or * * * transported from one point to another within the State,” was not of the essence, not an essential ingredient of the offense. Consequently, it was not necessary that any allegation with respect thereto be contained in the indictment.</p> <p>5. Intoxicating Liquors—Prohibition Act—Receipt Oftener than Once a Month.—An indictment under the prohibition act alleging the receipt and acceptance by the accused of delivery of one quart of distilled liquor on November 29th and another quart of same on December 23, 1916 (in effect two quarts of such liquor within the one calendar month beginning with November 29, 1916), charged an offense created by section 40 of the prohibition act, and an allegation in the indictment that the receipt and acceptance was “within a period of thirty days” may be treated as surplusage.</p> <p>6. Intoxicating Liquors—Prohibition Act—Section 40—Receipt and Delivery of More than a Quart a Month—Meaning of the Word “Month.”—The prohibition act (Acts 1916, page 215), section 40, provides that no person shall receive or accept delivery from any express company of any ardent spirits brought into the State from any point without the State, or ardent spirits transported from one point to another point within the State, except that a person may receive one quart of distilled liquor not oftener than once a month. Section 3 of the Code of 1904 provides that, “Unless otherwise expressed the word ‘month’ shall be construed to mean a calendar month.” Giving this meaning to the word “month” in the words “not oftener than once a month,” it must be read as “not oftener than once a (calendar) month.” So a receipt and acceptance of liquor in excess of one quart! in the aggregate, between November 29th and December 23, 1916, inclusive, would have been a receipt and acceptance of such excess quantity of liquor oftener than once a -calendar month.</p> <p>7. Prohibition Act—Indictment and Informations—Negativing Exceptions.—An indictment under section 40 of the prohibition act( (Acts 1916, page 215) need not negative and exclude by its allegations the possibility that the accused came within any other exceptions of the statute allowing a person to receive ardent spirits—such as the allowing one to receive the same without limit as to quantity in the home of a neighbor, by section 61—and if personally brought from without the State in a limited quantity not in excess of one quart within a period of thirty days, allowed by section 39 of the act.</p> <p>8. Indictment and Information—Negativing Exceptions—Separate Sections of the Statute.—Where exceptions are created by other sections of an act than that under which an offense i® charged in an indictment, the indictment need not negative and exclude by its allegations the possibility of the act of the accused charged thereby coming within any of such exceptions.</p> <p>9. Presumptions and Burden of Proof—Instructions—Presumption of Innocence.—On a trial under the prohibition act, the following instruction was asked.for and refused: “The court instructs the jury that! the accused is presumed to be innocent.”</p> <p>Held: No error, as it in effect announced a conclusion of the court, that notwithstanding the evidence in the case the accused was still presumed tío be innocent. The correct rule on the subject is that the accused is presumed to be innocent until his guilt is established by the evidence.</p> <p>10. Prohibition Act—Instructions—Contents of Package Received by Accused.—In a prosecution under section 40 of the prohibition act, where the record of the express office and the affidavits of accused excluded every rational hypothesis of the innocence of the accused consistent with the evidence in the case, it is not] error to refuse an instruction that the burden is upon the Commonwealth to prove beyond all reasonable doubt that the substance contained in the package delivered to the defendant was distilled spirits.</p> <p>11. Prohibition Act—Prosecution Under Section 10—Corpus Delicti.—The corpus delicti in a prosecution for violation of section 40 of the prohibition act (Acts 1916, page 215), was the fact that some one person received delivery of whiskey in excess of one quart in quantity within a period of one calendar month as charged in the indictment; and the express record alone, showing the receipts by the accused of two quarts of liquor within the calendar month, was prima facie evidence of thatl fact, and in the absence of rebutting evidence such ■prima fade evidence became conclusive.</p> <p>12. Corpus Delicti—Circumstantial Evidence.—Direct evidence is not essential to prove the corpus delicti'in any case. It may be proved as any other fact may be proved which is essential to establish the guilt of the accused, namely, by circumstantial evidence which produces “the full assurance of moral certainty” on the subject.</p> <p>13. Prohibition Act—Evidence—Express Records—Corpus Delicti. —There is no merit in a contention that, in a prosecution under section 40 of the prohibition act (Acts 1916, page 215), the record of the express company and affidavits of the accused were not admissible in evidence until the corpus delicti was otherwise proved.</p> <p>14. Corpus Delicti—Admissions of Accused.—Independent of statute, the admissions of the accused “are competent evidence tending Ho prove the corpus delicti.”</p> <p>15. Prohibition Act—Evidence—Affidavits of Accused.—By the prohibition act (Acts 1916, page 215), the affidavits of the accused filed with the express company are made prima, facie evidence, and they are evidence, independent of statute, as to all facts which they tend to prove which are material in th® case, including the corpus delicti, although in the absence of corroborative evidence they would be insufficient to establish it. The express records however are such corroborative evidence. 16. Prohibition Act—Constitutional Law—Admission of Records.— In a prosecution under the prohibition act the admission of the records of the express company made by strangers to him, does not violate the constitutional right of the accused to ba confronted with his accusers and witnesses.</p> <p>17. Constitutional Law—Documentary Evidence—Admissibility in. Criminal Cases.-—The constitutional right of a defendant in a criminal prosecution to be confronted with his accusers and witnesses does not exclude proper documentary evidence. Documentary evidence is admissible in • criminal as in civil cases, under the same rules which define and limit its admissibility.</p> <p>18. Prohibition Act—Documentary Evidence—Records of Express Company.—In a prosecution under section 40 of the prohibition act (Acts 1916, page 215), the express records, independent of statute, are admissible in evidence, when properly authenticated, as a part of the res gestae; and, further, under the rules of evidence provided by the aet in question, the record is expressly made admissible in evidence.</p> <p>19. Prohibition Act—Affidavit of Accused Admissible as a Confession.—Affidavits of accused, wfien receipting for liquor from an express company, were admissible in evidence under the • rules applicable to the admissibility of documentary evidence, as confessions of the accused.</p> <p>20. Prohibition Act—Section ¿0—Punishment.—Section 40 of the prohibition act creates the receipt and acceptance of delivery by transportation of ardent spirits in a quantity in excess of one quart within a period of one month a statutory offense, in- addition to and different from the offenses created by the concluding sentence of such section, and the offense is punishable under section 5 of the act, and not under section 40.</p>

<p>Error to a judgment of the Circuit Court of Alleghany county, affirming a judgment of the mayor of the town of Covington imposing a fine for the violation of a city ordinance.</p>

<p>1. Indictment and Information—Alleging Constituents of Offense—Malice.—All the constituents of the offense, whether of common law or statutory origin, for which an accused person is tried, must be set out in the indictment. This general principle necessarily applies where malice is an essential ingredient of the offense.</p> <p>2. Indictment and Information—Alleging Constituents of Offense—Malice—Case' at Bax.—Defendants were indicted upon the charge of having “unlawfully and feloniously” cut and wounded another. The indictments contained no charge of “malicious” cutting. After the prisoners had been arraigned and had each entered a plea of not guilty, the clerk read the indictments to the jury, and, in charging them as to the punishment for the alleged offense, read to them, over the objection of counsel, section-3671 of the Code of 1904. This section provides that if any person maliciously cuts or wounds another, with intent to maim, disfigure, disable, or kill, he shall be punished by confinement in the penitentiary not less than one nor more than ten years. But if the act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, in the discretion of the jury, be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars. The court also refused an instruction requested by counsel for defendants that under the indictment defendants could not be found guilty of maliciously cutting or stabbing.</p> <p>Held: That the court erred in permitting the clerk to read to the jury section 3671 without explaining to them that they were not to regard -that portion of it which related to the punishment for maliciously doing the acts therein described; and, further, that it was error, in these circumstances, to refuse the instruction requested.</p> <p>3. Appeal and Error—Criminal Law—Harmless Error.—Where both prisoners were convicted by the jury under instructions which permitted them to find the prisoners guilty of a higher offense, and one carrying a higher maximum and minimum punishment, than that with which they were charged, the error cannot be said to be harmless, where the jury did not impose the minimum penalty prescribed by the statute for the offense with which they were charged.</p>

<p>1917. 1. Indictment and Information-Insufficiency of Indictment.- When the indictment may be true, and yet the defendant is not necessarily guilty of the offense charged, it is</p> <p>insufficient. 2. Intoxicating Liquors-Prohibition Act-Indictment-Time of Offense.-At the January term, 1917, of the Circuit Court of Clarke county, an indictment was found against defendant charging that he “did within one year last past preceding the finding of the indictment unlawfully give away ardent spirits.” The charge in the indictment that the defendant did unlaw-fully give away ardent spirits within one year next to the finding of the indictment, embraces a period of time ante-rior to November 1, 1916, after which date the prohibition by its terms went into effect. Previous to that time it was not necessarily unlawful t.o give away ardent spirits. There-fore, in such case, time was of the essence of the offense j and it was essential for the indictment to charge that the gift of ardent spirits imputed to the defendant occurred after the act became operative, and not before that time, although within one year prior to the finding of the</p>

<p>Error to a judgment of the Hustings Court of the city of Petersburg.</p>

<p>1. Intoxicating Liquors—Prohibition Act—Indictment—Transportation—“For Use in This State”—“For Sale.”—Accused was indicted under section 39 of the prohibition act (Acts 1916, page 215) for personally and at one time bringing into the State, and also for personally and at one time transporting from one point to another within the State ardent spirits of the quantity of one quart allowed by that section of the act. There were two counts in the indictment, neither of which contained any allegation- to the effect that the liquor in question was “for use in this State.”</p> <p>Held: That the indictment was not insufficient because of the lack of this allegation, as under section 39, neither as to the offense of the bringing of the liquor into this State, nor as to the transportation of it within the State, is it an essential ingredient of the offense that the liquor must be “for use in this State;” nor was the indictment insufficient because it lacked an allegation- that the liquor in question was brought into this State, or transported from one point to another within this State, “for sale,” the statute not providing that the liquor in question must be brought into the State “for sale,” or transported from one point to another within the State “for sale,” in order to create either of the offenses.</p> <p>2. Statutes—Title—Prohibition Act.—Section 39 of the prohibition act is not unconstitutional as violative of section 52 of the Constitution of Virginia, because the body of the act in regard to “transportation” of ardent spirits is broader than its title, in that the title is confined in its reference to “transportation” to “transportation for sale.”</p> <p>3. Statutes—Title—Prohibition Act.—The regulation of the into this State and of transporting from one point to within the State of ardent spirits is certainly germane and in furtherance of the “enforcement” of the statute in respect to its regulation of the use and its prohibition of the keeping of ardent spirits for sale. While this is not so true of the prohibition of the sale of ardent spirits, falling under the ban of the statute, it is essentially true of that also. Without regulation of the transportation of ardent spirits, the illicit sale thereof cannot be efficiently prevented. Hence, such regulation may be said to be not only germane and in furtherance of the enforcement of the statute, but that it is essential to its enforcement.</p> <p>4. Reasonable Doubt-—Reasonable D-oubt as to which of Two Persons Committed the Offense.—When two persons had the same opportunity to commit the offense, and if upon the whole evidence in the case there remains a reasonable doubt as to which of the two committed it, neither of the two can be convictled.</p> <p>5. Instructions—Reasonable Doubt.—Where it appeared from the record that there was evidence in the case which tended to show that the accused did not bring the liquor in question into this State or transport it from one point to another within tjie State; but that another person, not indicted and absent from the State at the time of the trial, brought the liquor into the State, it was error to refuse an instruction- that if there was a reasonable doubt as to which of the two committed it, “neither of the two can be convicted,” the instruction being the same in effect as if it had concluded, “the accused cannot be convicted,” in lieu of the language, "neither of the two can be convicted.”</p>

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

<p>1. Criminal Law—Minors—Holding for Grand Jury.—Section 2, chapter 350, Acts 1914, page 696, provides that: “No court or justice, unless the offense is aggravated, or the ends of justice demand otherwise, shall sentence or commit a child under eighteen years of age charged with or proven to have been guilty of any crime to a jail, work-house or police station, or send such a child on to the grand jury, nor sentence such! child to the penitentiary,” etc. As chapter 350 of Acts 1914 invests justices of the peace as well as courts of record with jurisdiction of cases arising under that act, the judgment of á justice of the peace in sending the accused, a minor sixteen or seventeen years of age, on to the grand jury was equivalent to the judicial ascertainment of the fact that the grave offense wherewith he was charged was aggravated, or that the ends of justice demanded its investigation by the grand jury. Therefore, while that judgment remained in force, the circuit court was under obligation to respect it, and it afforded sufficient ground for putting the accused upon trial.</p> <p>2. Homicide—Indictment and Information—Description of Bullets.— An indictment for murder alleged that the killing was done with a loaded shot-gun and that the shot-gun was loaded with gunpowder and leaden “shots or bullets.” ' It was contended that the missiles used in loading the shot-gun with which the homicide was committed should have been described conjunctively.</p> <p>Held: That there was no force in this contention, as the statute provides, that “all allegations unnecessary to be proved may be omitted in any indictment or other accusation” (Code 1904, section 3998); and omissions from indictments “of any particular kind of force and arms; * * * or the omission or insertion of any other words of mere form or surplusage,” will not vitiate an indictment. (Code 1904, section 3999.) In this indictment, the words “shots” and “bullets” were not used disjunctively or alternatively, but synonymously or interchangeably; and, hence, they introduce no element of uncertainty in the allegation even if the words were regarded as material. All averment that the killing was done with a loaded shot-gun would have been quite sufficient, without specifying the kind of missiles employed.</p> <p>8. Jury and Jury Trial—Venire Facias—Variance.—A writ of venire facias directed the officer to summon sixteen persons for the trial of “James and Wesley Green,” and the return so described the defendants, while the indictment designated them as “James Green and Wesley Green.” After the defendants had elected to be tried separately, a second, or supplemental, writ of venire facias directed the sheriff to summon two other persons for the trial of “James Green,” and for these alleged variances there was a motion to quash both writs.</p> <p>Held: That these writs in all essential particulars complied with the statute, and the supposed discrepancy in the description of the defendants in the indictment and writs is immaterial, and could in no way have prejudiced their rights.</p> <p>4. Witnesses!—Impeachment—Argument of Counsel.—Rebecca Harris, the mother of accused, was introduced as a witness by the Commonwealth to prove the homicide; but her testimony on cross-examination strongly tended to sustain the theory of the accused that he shot the deceased in defense of his mother. The Commonwealth was not altogether dependent upon the testimony of this witness to prove that the homicide was committed by the accused. Nevertheless, the attorney for the Commonwealth, in arguing his right to introduce evidence to contradict certain statements made by Rebecca Harris, asserted that “the Commonwealth would not be bound by the evidence of Rebecca Harris * * * if she told a pack of lies;” and also referred to her as “a person I consider a criminal, and probably ought to have been indicted.” These remarks were excepted to by the prisoner but the exception was not sustained by the court, nor was the jury admonished that they were improper, and should not influence them in arriving at their verdict.</p> <p>Held: That the statements made by the prosecuting officer in the circumstances mentioned constituted reversible error.</p> <p>5. Witnesses—Impeachment of Witness—Statements of Counsel.— It is difficult, at best, to disabuse the mind of the jury of derogatory statements of counsel made in respect to the character of a witness, even where the .court instructs them on the . subject, but the ill consequences are immeasurably increased when the objectionable language goes unrebuked. Section 3851 of the Code of 1904 declares that a party introducing a witness shall not be allowed to impeach his credit by general evidence of bad character; but, if in the opinion of the court, the witness proves adverse, he may contradict him by other evidence showing that at other times he had made statements inconsistent with his present testimony. Yet this contradicting evidence must be introduced by leave of court and after the-witness has been fully put on guard with respect to it. If, therefore, a witness so introduced cannot be impeached by general evidence of his bad character, a fortiori he should not be discredited before the jury by opinions of the prosecuting attorney with respect to his character.</p> <p>6. Criminal Law—Instructions—Not Based on the Evidence.—Instructions which propound correct general propositions of criminal law, but are not applicable under the evidence adduced in the case, are calculated to confuse and mislead the jury, and ought not to be given.</p> <p>7. Homicide—Instructions—Not Based -on the Evidence.—In a trial for murder where the defense of accused was justifiiable homicide in defense of his mother, and the evidence, both for the Commonwealth and the accused, showed the existence of great provocation, namely, that when the fatal shot was fired the deceased was violently choking the mother of the accused, instructions that to sustain provocation as a defense to murder in. the first degree, it must be shown that the prisoner, at the time of the fatal shooting,, was deprived of the powder of self-control by the provocation which he received, and that a mortal wound given with a deadly weapon in the previous possession of the slayer, without any, or upon very slight provocation, is -prima facie willful, deliberate, and premedi-1 tated killing, were calculated to confuse and mislead the jury, and ought , not to have been, given.</p> <p>8. Homicide—Instructions—Threats—True or False.—In a trial for murder where the defense of accused was justifiable homicide in defense of his mother, it was error to refuse the following instruction: “The court instructs the jury that if they believe that threats were communicated, which he believed, it is immaterial whether the threats were true or false, so far as their influence upon the action of the prisoner is concerned-”</p> <p>9. Homicide—Justifiable Homicide.—In a trial for murder where the defense of accused was justifiable homicide in defense of his mother, it was error tq refuse the following instruction, which was applicable under defendant’s theory of the case: “The court instructs the jury that justifiable homicide is the killing of a human being in the necessary, or apparently necessary, .defense of one’s self or family from great bodily harm, apparently attempted to be committed by force, or in defense . of home, property or person, against one who apparently endeavors by violence or surprise to commit a felony on either.”</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond.</p>

<p>1. Change of Venue—Jury from Another Qounty—Impartial Jury Secured.—The trial court must be allowed a wide discretion in deciding motions for change of venue or for a jury from another county; and, moreover, where the motion is based on the ground that an impartial jury cannot be obtained in the county, the fact that an impartial jury has subsequently been secured therein is conclusive proof that the motion was without foundation.</p> <p>2. Appeal and Error—Evidence—Exceptions ' and Objections.— Although evidence might, upon objection, have been properly excluded as hearsay evidence, where no objection was offered to its introduction, it must, on appeal, be regarded as á part of the evidence before the jury.</p> <p>3. Dying Declarations^—Inadmissible Except in Cases of Homicide.—Upon the trial of a husband for an assault on his wife, the dying declarations of his wife are' inadmissible against him, where it appeared that her death was not tne result of the assault upon her, but was caused by her taking poison with suicidal intent..</p> <p>4. Evidence—Admission of Improper Evidence—Effect of the Court Striking Out Evidence and Instructing the Jury to Disregard it—Appeal and Error—Harmless Error.—Where improper . evidence has been admitted, in either a civil or a criminal case, the error is rendered harmless by the subsequent action of the trial court in striking out the evidence and specifically instructing the jury to disregard it, unless from the circumstances of the particular case there be reason to apprehend that such improper evidence has prejudiced the minds of the •jury, in which latter event the error is reversible.</p> <p>5. Evidence—Admission of Improper Evidence—Effect of the Court Striking Out Evidence and Instructing the Jury to Disregard it.—In the instant case, where the dying declarations of a wife were admitted in evidence against her husband, upon his trial for assault on the wife, although her death was caused by her taking poison, a review of the evidence satisfied the Supreme Court of Appeals that the jury obeyed the instructions of the trial court to disregard the dying declaration. It is not necessary to believe that the jury entirely effaced from their minds the fact that improper evidence had been introduced; and in the instant case there was abundant evidence upon which the verdict might have been found, if the declaration had not been introduced.</p> <p>6. Bes Gestae—Assault and Battery.—A witness testified that when he arrived at defendant’s house, defendant’s small boy ran out of the house crying, turned immediately and ran back inside and exclaimed, “Don’t Father! Don’t. Father!” and came right out again, saying “Father is beating mother.”</p> <p>Held: That this testimony as to the spontaneous and simultaneous outcry of the little boy was clearly admissible as part of the res gestae.</p> <p>7. Evidence—Addhission of Improper Evidence—Effect of the Court Striking Out Evidence and Instructing the Jury to Disregard it.—The jury are presumed to follow the direction of the court to disregard wrongly admitted evidence, at whatever stage of the case that direction may be given.</p>

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

<p>1. Licenses—Civil Engineer—Engineer Employed by Railroad— Case at Bar.-—Acts 1915, page 252, chapter 148, section 89, provides that any person or firm who shall for compensation engage in the business of civil, mining, mechanical of electrical engineering shall pay a license tax of fifteen dollars per year for the privilege of conducting such business, and that any person or firm violating the provisions of this section shall be fined, etc. Under this act the accused was indicted and convicted. The accused was engaged in the practice of his profession as a civil engineer, but not in the general practice of it, in the sense that he was open to employment by the public or any part thereof. He was in the exclusive employment of another, a railroad company.</p> <p>Held: That section 89 of chapter 148, Acts 1915, does not impose a license tax upon the mere practice of one’s profession as a civil engineer—the mere acting as a civil engineer—-when such an one is not engaged in his own- business as such engineer.</p> <p>2. ’ Licenses—Civil Engineer—-Engineer Employed by Railroad— Case at Bar.—The legislature might have provided that a civil engineer should pay a license tax if he practiced his profession at all, or acted at all as a civil engineer, as it did, in effect, in respect to lawyers and dentists practicing their professions; but it did not. By section 89 aforesaid, a different, provision is made, and one who practices his profession as a civil engineer—one who acts as a civil engineer, i. e., does that hind of work—is -not merely for that reason required to pay a license tax. There is something more specified as to such action before the license tax is imposed, namely, the action must be such that it constitutes a “business of civil * * * engineering,” otherwise it is not subject to any. license tax.</p> <p>8. Licenses—Civil Engineer—Engineer Employed by Railroad— Case at Bar.—The business of civil engineering, which is taxed by the statute (Acts 1915, page 252, chapter 148, section 89), must be a person’s oivn business in which he is engaged, in order to subject him to the tax. This feature of this section of the statute is not peculiar to it, however. It inheres in the meaning with which the word “business” is used in other sections of the same statute; for example, in section 45, providing that “every person, firm * * * engaged in the business of a merchant shall pay a license tax,” and similar provisions in other sections as to other businesses. No one would contend that a salesman employed by a merchant having no other interest or connection with the business, was engaged in the business of a merchant, within the meaning of the statute.</p> <p>4. Licenses—When is a Person Engaged in His Own Business.!— The mere fact that one is employed by another does not furnish a valid test of whether the former is or is not engaged in his own business. All professional men and those engaged in any ' kind of work for others, whether skilled or unskilled, are employed by others even when the former are engaged in their own business. When one is employed by another, the true test of whether the former is engaged in his own business, or the business of the latter, is the character of the employment. Is the former an independent contractor and as .such in the employment of another and doing work for such other; or is the former a mere servant or ordinary employee of another? In the case first stated, the person employed is engaged in a business of his own, although doing work for another. In the second case, the person employed is engaged in the business of his employer, and not in a business of his own.</p>

<p>1. Intoxicating Liquors—Indictment and Information—Keeping for Sale.—The accused was convicted of a violation of the prohibition law, Acts 1916, chapter 146, page 215. The indictment was in the form authorized by section 7 of the act, which prescribes a form that shall be sufficient for any first offense under sections 3, 4 and 5 of the act. The Commonwealth sought and obtained a conviction under section 17 of the act, which makes it unlawful to keep ardent spirits in any quantity “in a place reputed to be a house of prostitution.”</p> <p>Held: That this it could not do under the blanket indictment allowed by section 7.</p> <p>2. Intoxicating Liquors—"Keep.”—The word “keep,” as used in section 3 of the prohibition act, means keep for sale. So, in the instant case, in order to convict under that section it was necessary for the Commonwealth to show that the keeping was for sale, but this the Commonwealth did not do nor attempt to do.</p> <p>3. Intoxicating Liquors—Presumptions and Burden of Proof—Possession of Liquor.—Under section 65 of the prohibition act, the possession of more than one gallon of distilled liquor in one’s home is made prima facie evidence of a possession for .the purpose of sale, but the evidence is only prima facie and may be rebutted.</p> <p>4. Intoxicating Liquors—Presumptions and Burden of Proof—Possession of Liquor—Case at Bar.—In the case at bar, according to the evidence for the Commonwealth, slightly more than one gallon of whiskey was found in the home of the defendant, but the defendant offered evidence to show that it was not all his, and that what did belong to him had been acquired by him for his personal use before November 1, 1916. If the jury believed this, they could not convict him of any offense charged in either section 3, 4 or 5, but the jury was deprived • of the opportunity of considering this aspect of the case by. the ruling of the trial court in the admission of evidence and by its instruction to the jury. The trial court, oyer the objection of the defendant, admitted evidence that the defendant’s home was reputed to be a house of prostitution, and instructed the jury thati “it is enough to convict if you believe from the evidence that the whiskey in evidence was the defendant’s and that it was a house resorted to for the purpose of prostitution.”</p> <p>Held: That the defendant might have been prejudiced by this evidence and instruction, and for that reason the judgment of conviction was reversed and a new trial awarded.</p>

<p>1. Intoxicating Liquors—Indictment and Information—Constitutional Law.—An indictment for offenses under the prohibition act (Acts 1916, page 215) was in substance as follows, that the accused, “within one year next prior to the finding of this indictment, and subsequent to the first day of November, 1916, in said city of Norfolk, did unlawfully manufacture, sell, offer, keep, store and expose for sale, give away, dispense, solicit, advertise and receive orders for ardent spirits, against the peace and dignity of the Commonwealth of Virginia.” The indictment was demurred to on the grounds that it was violative of section 8, Article 1, of the Constitution of Virginia, and section 1, Article 14, of the Constitution of the United States, because, with respect to the former, it does not sufficiently inform the defendant of the cause and nature of the accusation against her; and with regard to the latter (in addition to the first ground) that a conviction under it would deprive her of her liberty and property without due process of law.</p> <p>Held: That the indictment was not invalid for these reasons.</p> <p>2. Indictment and Information—Bill of Particulars.—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 bill of particulars. A bill of particulars may supply the fault of generality or uncertainty, but not the omission of an essential averment of the indictment.</p> <p>8. Appeal and Error—Criminal Law—Verdict .Contrary to the Evidence—Evidence not Before Appellate Court.—Where neither the evidence introduced on the trial nor the facts proved are before the Supreme Court of Appeals, either by bill of exceptions or other certification, an objection that the verdict is contrary to the evidence cannot be considered by that court.</p>