Volume 124 — Virginia Reports

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

<p>Error to a judgment of the Circuit Court of Amherst county, in an action of ejectment. Judgment for plaintiffs. Defendants assign error.</p>

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

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

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

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

<p>Error to an order of the Corporation Court of city of Lynchburg, on a motion to correct an erroneous assessment. To an order granting the application, the city of Lynchburg assigns error.</p>

<p>Error to an order of the Hustings Court of city of Richmond, in a proceeding to correct an erroneous assessment. The order relieved, the applicant from payment of an ad valorem tax, and the Commonwealth assigned error.</p>

<p>Error to an order of the Circuit Court of Surry county, on a motion to correct an erroneous assessment. Order for plaintiff. Commonwealth assigns error.</p>

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

<p>Error to a judgment of the Circuit Court of Goochland county, in a statutory proceeding to establish a disputed boundary. Judgment for defendant. Plaintiff assigns error.</p>

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

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

<p>1. Negligence—Injury From One of Two Causes—Burden of Proof —.Preponderance of Evidence—Malpractice of Dentist.—In the instant case plaintiff suffered from a fracture of the jaw. His jaw had been treated by two dentists, defendant -and another. It appeared from the evidence that the fracture was caused by the one treatment or the other, but the evidence did not establish that defendant’s treatment more probably caused the fracture than that of the other dentist.</p> <p>Held: That, plaintiff could not recover.</p> <p>2. Negligence—Injury From One of Two Causes—Burden of Proof —Preponderance of Evidence.—Where 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 he is not responsible, the plaintiff must fail if his evidence does not show that the damages are 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 a preponderance of evidence.</p>

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

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

<p>1. Demurrer to the Evidence—Rule as to the Evidence.—On a demurrer to the evidence the demurrant is considered as admitting the truth of all his adversary’s evidence and all just inferences that can be properly drawn therefrom by the jury, and as waiving all of his own evidence which conflicts with that of his adversary, or which has been impeached, and all inferences from his own evidence (although not in conflict with his adversary’s) which do not necessarily" result therefrom.</p> <p>2. Fires—Demurrer to the Evidence—Conflicting Theories of Omgin of Fire—Case at Barr.—In the instant case an action to recover damages to plaintiff’s property from a fire alleged to have been set out from one of defendant company’s engines, the controlling question was whether the fire originated on defendant’s right of way, and was it set out by one of its engines or from a camp fire built by tramps. One of the plaintiffs testified positively -that he saw the fire start from a coal thrown out by a passing engine. There was a demurrer to the evidence.</p> <p>Held: That in the face of this testimony of plaintiffs under the demurrer to the evidence rule, the inference that the fire originated from the camp fire of the tramps must.be rejected.</p> <p>3. Demurrer to the Evidence.—Qualification of the Rule.—The instant case does not fall within the qualification of the demurrer to the evidence rule that “The court, however, is not obliged to accept as true what it knows judicially to be untrue, nor what, in the nature of things, could not have occurred in the manner and under the circumstances mentioned, nor which is not susceptible of proof.”</p>

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

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

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

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

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

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

<p>Appeal from a decree of the Circuit Court of city of Williamsburg and county of James City, involving the settlement of a decedent’s estate. From the decree both the heirs at law and the widow appealed.</p>

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

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

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

<p>1. Taxation&emdash;Guwrdian and Ward&emdash;Intangible Personal Property of Ward.&emdash;Intangible personal property, owned by minors who are domiciled in Virginia, is subject to taxation therein under section-168 of the Constitution of 1902 and the statutes in section 491 of the Code of 1904, as amended (4 Code, 1916, section 491), and Acts 1897-8, p. 756, as amended by Acts 1916, p. 828, enacted in pursuance of the Constitution; just as such property of other persons domiciled in the State is subject to taxation, unless it be true that the statute law of the State is such that no situs therein is fixed by law for the taxation of such property of a minor in a case where the minor has a guardian who is a non-resident of the State.</p> <p>2. Taxation&emdash;Guardian and Ward&emdash;Intangible Personal Property of Ward.&emdash;The intangible personal estate of a ward residing in a city in Virginia in the hands or control of his guardian, residing outside of the city, is taxable in the city.</p> <p>3. Taxation&emdash;Guwrdian and Ward&emdash;Intangible Personal Property of Ward.&emdash;Section 492, Code of 1904, does not make the of the guardian the situs for taxation of the intangible personal property of the ward, which is in the possession or under the control of the guardian. The provisions of the statute, both in the caption and body of it, concern merely by whom the property is to be listed and to whom taxed. That this statute does not fix the domicile of the person by whom it requires property to be listed, and to whom it requires it to be taxed, as the situs of such property for taxation, is</p> <p>4. Taxation&emdash;Situs of Intangible Personal Property&emdash;Minors.&emdash;The general rule of law is well settled that, in the absence of some statute fixing a different rule, the situs for taxation of personal property of one domiciled in this State is at the-residence of the owner of it. On principle, this rule applies to such property owned by minors no less than to that owned by persons sui juris.</p> <p>5. Taxation&emdash;Guardian and Ward&emdash;Non-Resident Guardian.&emdash;The statute law of Virginia has not changed the general rule of law by making the domicile of the guardian the situs for taxation of the intangible personal property of his ward, when the ward is domiciled in this State. Nor does the statute divest the ward of his beneficial ownership of such property. Where a ward is domiciled in this State, therefore, his domicile fixes the situs of his. in tangible personal property for taxation therein, although his guardian is a non-resident.</p> <p>6. Taxation—Guardian and Ward—Non-Resident Guardian.—In such case, no statutory designation of the situs for taxation of such property is needed, unless it be the purpose of the legislature to alter the settled policy of the State aforesaid. Such a purpose will not be assumed, but must be made to plainly appear by the language of the statute. In the absence of such a statute, the maxim mobilia sequunter personam is operative and fixes such situs.</p>

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

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

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

<p>Appeal from a decree of the Circuit Court of city of Hopewell, in a suit to enforce a mechanic’s lien. From a decree producing amount of complainant’s claim, complainant appeals.</p>

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

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

<p>1. Damages—Pleading—Exemplary Damages.—Under the common law system of pleading, damages which do not necessarily flow from the act or omission complained of must be specially pleaded, but damages which are the necessary and proximate result of such act or omission are termed general, and are legally imported, and may be recovered, although not specially claimed in the declaration. If the facts averred in the declaration show that the plaintiff is entitled to recover exemplary damages, they need not be claimed eo nomine. If a more specific statement of the elements of damage be desired, it may be demanded under the provisions of section 3249 of the Code of 1904.</p> <p>2. Damages—Exemplary Damages—Pleading—Case at Bar.—In an action of trespass quare clausum fregit for breaking and entering plaintiff’s close and removing his furniture and effects from a building leased by plaintiff from defendants, the declaration was in common form, and covered general and not special damages. Punitive or exemplary damages were not only not claimed eo nomine, but the declaration did not aver such a state of facts as showed that the recovery of such damages was contemplated. It was not even alleged that the trespass was done wilfully, negligently, wrongfully or maliciously, and the defendants had no reason to suppose that they would have to answer for other than actual or compensatory damages.</p> <p>Held: That defendants were liable for compensatory damages only and not for exemplary damages.</p> <p>3. Exemplary Damages — Partnership — Liability of Partner.—A partner who knew nothing of an alleged trespass of a partnership until after suit was brought, and neither authorized nor ratified it, is not liable for punitive or exemplary damages.</p>

<p>1. Appeal and Error—Harmless Error—Instructions.—Notwithstanding that' some of the criticisms by appellants of instructions given by' the trial court at the réquest of the appellee might be justified, it is unnecessary for the Supreme Court of Appeals to consider or discuss these alleged errors, where upon the undisputed facts of the case, the appellants failed to establish the defense set up by them so that upon proper instructions the appellee was entitled to recover in any event.</p> <p>2. Bills, Notes and Checks—Failure of Consideration.—In a proceeding by motion on a note by an assignee after maturity, who took it, therefore, subject to all of the equities between the original parties, defendants pleaded the general issue, and as grounds of defense alleged misrepresentations in. the procurement of the note, and failure of consideration, making the defense authorized by section 28 of the negotiable instruments act. The consideration of the note was shares of stock of a corporation, of which the defendants were stockholders. Defendants alleged that they were misled by false statements of the resources and liabilities of the corporation made by its manager from whom they purchased the stock and to whom the note was- given.</p> <p>Held: That the evidence did not sustain this, defense. It was clear from the evidence that the defendants did not rely upon this statement, discredited it from the beginning, and made such investigation as they desired before the transaction was consummated, and subsequently thereto made a complete investigation into the affairs of the company, the results of which latter investigation they do not disclose. The burden of proof was upon defendants to establish the defense set up, which they failed to do.</p>

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

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

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

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

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

<p>1. Partition—Jurisdiction—Sufficiency of Bill.—Where, although the allegations of a bill for partition are meager, yet upon a natural and reasonable interpretation it makes out a case in which the complainant and defendant claim under a common ancestor, the complainant claiming an undivided one-fourth of the land • by inheritance, and the defendant an undivided three-fourths, partly by inheritance and partly by purchase, the complainant and defendant thus being coparceners as to a part and tenants in common as to the residue of the land, and no objection to the form or sufficiency of the bill was interposed, it is a good bill for partition, the parties being clearly within the express terms of the statute (Code of 1904, sec. 2562) authorizing a partition suit in equity.</p> <p>2. Partition—Pleading—Title.—It is not necessary in a bill for partition to make a formal deraignment of title, or any deraignment, further than is necessary to show how the parties became coparceners and entitled to partition.</p> <p>3. Partition—Bill—Sufficiency. — The complainant in a partition suit must aver and prove that he occupies such a relationship to the defendant as entitles him to invoke the equity jurisdiction. If his bill fails to show this, it is bad on demurrer. If it does show this, and the answer denies it, then upon a hearing on bill and answer, either with or without a replication, the bill will be dismissed.</p> <p>4. Partition—Jurisdiction of Equity—Assertion of Hostile Title by Defendant.—A suit for partition can not be made a substitute for an action of ejectment; but a defendant to a bill which states a good case for partition cannot defeat the jurisdiction in equity merely by denying in toto and ab initio the complainant’s title, and asserting in himself a title independent of and hostile to that under which the complainant claims.</p>

<p>Error to a judgment of the Court of Law and Chancery of city of Norfolk, in a proceeding by motion for a judgment for money, “judgment for plaintiff. Defendants assign error.</p>

<p>Appeal from a decree of the Chancery Court of city of Richmond. Decree for defendant. Complainants appeal.</p>

<p>Error to a judgment of the Circuit Court of Prince William county, confirming the report of a commissioner of accounts on the accounts of a county treasurer. From this judgment the treasurer appeals.</p>

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

<p>Appeal from a decree of the Circuit Court of Norfolk county in annexation proceedings. Decree for complainants. Defendants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Northampton county, in which appellant filed his petition. From a decree dismissing his petition, petitioner appeals.</p>

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

<p>1. Contracts—Drunkenness—Case at Bar.—In a. suit for specific performance, it appeared that defendant was an inebriate, and complainant plied him with whiskey pending a contract for the exchange of real estate between them. Defendant contended that in addition to the property of complainant there was a money consideration to be paid him under the contract of exchange, which was executed by him while drunk, and unexplained evidence in the case supported this contention of the defendant. This contention was insisted on by defendant throughout the case, and could not be ignored in considering a supposed ratification by him of the contract of exchange signed by him while drunk.</p> <p>2. Contracts—Drunkenness.—Drunkenness invalidates or renders voidable all contracts and transactions where (1) the drunkenness was brought about by the opposite party; (2) a fraudulent advantage was taken of it; (3) it deprived the party of his reason, and of an agreeing mind. The mere fact that one is drunk when he enters into a contract is no ground for setting it aside, at least in equity, unless under one or the other of the circumstances above stated; but, when a person’s habitual addiction to intoxication renders him extremely subject to imposition, such habits, though not carried to an excess constituting absolute incapacity, lay a ground for strict examination whether any instrument executed by him does not in itself, or in the attendant circumstances, contain evidence that advantage was taken of those habits.</p> <p>3. Contracts—Drunkenness.—When the drunkenness of a party to a contract was brought about by the other party, the act is so flagrant a badge of fraud that it always renders the contract voidable, both at law and in equity; and when a fraudulent advantage is taken of the drunkenness, this, too, is so direct a fraud as always to render the- transaction voidable in all courts.-</p>

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

<p>Appeal from a decree of the Corporation Court of city of Roanoke. Decree for defendants. Complainant appeals.</p> <p>The opinion states .the case.</p>

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

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

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

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

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

<p>1. Constitutional Law — Municipal Corporations — Segregation Ordinance.—The segregation ordinance of the city of Clifton Forge is not materially different from -the segregation ordinance of the city of Richmond, which was upheld as a valid enactment by the Supreme Court of Appeals in Hopkins V. City of Richmond, 117 Va. 692. Since that case was decided, however, the Supreme Court of the United States has decided that an ordinance of the city of Louisville substantially the same as that of the city of Clifton Forge is in conflict with the fourteenth amendment of the Constitution of the United States, and is therefore null and void. Consequently, the segregation ordinance of Clifton Forge is also null and void.</p>

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

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

<p>Error to a judgment of the Circuit Court of Amherst county.</p> <p>797</p>

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

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

<p>Error to a judgment of the Corporation Court of city of Norfolk.</p>

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

<p>Error to a judgment of the Corporation Court of city of Hopewell.</p>

<p>1. Prohibition Act—Possession of Liquor—Presumption—Rebuttal. —The prohibition act does not interdict the possession in a home for private use of distilled liquor, wine, beer, or other malt liquor, the possession of which was lawfully acquired'; but merely declares that the possession of more than the specified quantity shall be prima facie evidence of a “purpose of sale.” This presumption is simply a rule of evidence, and likq other presumptions may be rebutted.</p> <p>2. Prohibition Act—Possession of Liquor—Rebuttal Evidence— Case at Bar.—In the instant case no evidence was adduced to prove that accused had ever sold or unlawfully disposed of any of the liquor found on his premises, or that he made it or had it in possession for any unlawful purposes. The Commonwealth proved possession of liquor in excess of the quantity mentioned in section 65 of the prohibition act, and rested its case wholly upon the statutory provision that such possession constituted prima facie evidence of a “purpose of sale.” In rebuttal the accused adduced evidence to the effect that the wine found on the premises was made by his wife for his sick mother, that the other liquid found was either slop water or vinegar.</p> <p>Held: That the evidence, if true, repelled the prima facie presumption of guilt arising from the unexplained' possession of the wine and vinegar.</p> <p>3. Prohibition Act — Presumption from Possession of Liquor — Burden of Proof.—When the Commonwealth has proved the possession of more than the specified quantity of ardent spirits, etc., and there is no rebuttal evidence of that fact, and none that it was lawfully acquired and was in the possession of the accused in his home for private use and not for sale, the prima facie presumption prescribed by the prohibition act, that it was kept for the purpose of sale, would generally be sufficient to warrant a conviction. But the Commonwealth’s own evidence of possession might be such as to repeal the presumption that the possession was for an unlawful purpose, as, in negligence cases, it sometimes happens that plaintiff’s evidence develops such a case of contributory negligence as would bar a recovery.</p> <p>4. Prohibition Act — Presumption from Possession of Liquor — Burden of Proof—Reasonable Doubt—Instructions.—In the instant case, the evidence on behalf of the accused tends to show the lawful acquisition and. possession of the beverages in question; and the jury was confronted by a prima facie presumption that the decoction was in the possession of the accused for the purpose of sale, on the one hand, and by the presumption of innocence fortified by rebuttal evidence on the other. In such case, the burden of proof to establish the guilt of the accused beyond' a reasonable doubt rested on the Commonwealth and constituted a continuing burden which inheres in every stage of the prosecution. It follows that an instruction which relieved the Commonwealth of that burden and cast it upon the accused was erroneous. And this error is not cured by another instruction that if the jury had a reasonable doubt as to whether the beverages were made or kept for sale, they should find the defendant not guilty.</p> <p>5. Prohibition Act—Witnesses—Impeachment.—In a prosecution for violation of the prohibition act a witness testified as to a statement of accused' that he had given away some of the beverages found on his premises. Accused denied having made such statement, and the purpose of the testimony was to impeach his credibility. The materiality of the evidence was not made to appear, but however that may be, the statement was not shown' to have been made by the accused “when examined as a witness in his own behalf,” and, therefore, was not admissible. Code of 1904, sec. 3901.</p>