Volume 125 — Virginia Reports

<p>Appeal from a decree of the Chancery Court of city of Richmond-. Decree for complainants. Defendant appeals.</p> <p>The opinion states the case.</p>

a judgment of the Corporation Court of city of Danville, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error. The opinion states the case.

<p>Error to orders of the Hustings Court of city of Richmond and the Corporation Court of city of Danville on motions to correct erroneous assessments. Orders for the ■cities. Taxpayer assigns error.</p> <p>The opinion states the case.</p>

Decree for complainant. Defendant- appeals. The appellee, a ward of the appellant, was plaintiff in the court below and instituted this suit to compel an accounting by the guardian for all income he may have received from the estate of his ward which came, or should have come, into his hands as guardian from the personal estate of the grandfather and of the grandmother of the ward.

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

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

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

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

<p>Divorce — Desertion—Bes Adjudicata. — A decree denying a divorce for desertion, where the bill prayed for a divorce .a vin-culo, “but if an absolute divorce be not granted that then a divorce from bed and board may be granted” complainant, necessarily decided that there had been no desertion prior to the date on which the suit was instituted, and is a bar to a suit by the complainant for a divorce a vinculo for desertion instituted in less than three years from that date.</p>

<p>Appeal and Errok — Conflicting Evidence — Conclusiveness of Verdict. — Where the issues of fact are submitted to a jury, upon conflicting evidence, their verdict is conclusive, unless the record discloses some harmful error.</p> <p>Sales — Time as Essence of the Contract — Waiver.—In contracts for the delivery of goods time is not generally of the essence of the contract, and when by contract delivery by a certain date is made imperative, the vendee may waive it expressly, either in writing or by parol, and impliedly by inconsistent conduct.</p> <p>Waiver — What Constitutes. — Waiver is where one in possession of any right, whether conferred by law or by contract, and of full knowledge of the material facts, does or borbears the doing of something inconsistently with the existence of the right or of his intention to rely upon it; thereupon he is said to have waived it, and he is precluded from claiming anything by reason of it afterward.</p> <p>Sales — Waiver — Case at Bar — Appeal and Error — Conflicting Evidence. — The instant case was an action by a buyer against the seller upon a contract to deliver one thousand tons of industrial scrap iron in from ninety to one hundred days. The defense set up was that the plaintiff waived the clause of the contract with reference to the time of delivery, and that following such waiver the defendant was proceeding to make deliveries, and was ready to complete his contract when, without notice, the plaintiff refused to accept any further deliveries under the contract. The parol evidence was sharply conflicting, and the written evidence, consisting of a number of letters which passed between the parties, was of doubtful import, confusing and inconsistent.</p> <p>Held: That considering the evidence as upon a demurrer to defendant’s evidence by the plaintiff, it was clear that the Supreme Court of Appeals would not be justified in sustaining the demurrer.</p> <p>Appeal and Error — Instructions—Sufficiency.—Error is harmless where the instructions given by the court fairly presented the IQ issues to the jury, although from inadvertence they contained some verbal inaccuracies, there being no misstatement of the law, their meaning being plain, and the jury could not possibly have been misled.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

From ■a decree denying their claim of liens, the claimants appeal. The accounts directed to be reported herein are as follows : 1. An account showing the amount and character of the work done and materials furnished by H. N.' Francis & Co., Inc., sub-contractor, the prices charged therefor, the payments made, and the amount due, by “Rueger Hotel, Incorporated.” This does not appear to have been filed in this suit. Richmond, Va., January 23, 1914. Messrs.

<p>1. Peivileged Communications — Communications to Attorney — Execution of Will Revoking Prior Will — Case at Bar. — In a testamentary contest between the heirs at law on the one side, claiming that the decedent died intestate, and a devisee claiming that a paper offered for probate is the true last will and testament of the decedent, the heirs at law offered to prove by the attorneys of the decedent that they drew for the decedent a later will than the paper offered for probate, which, in express terms, revoked that paper, one of the attorneys who drew the later will being one of the attesting witnesses thereto. The court only permitted the attorneys to testify that a paper was duly executed as the last will and testament of the decedent, and refused to permit them to testify as to the contents of the paper, upon the ground that these constituted privileged communications by the decedent to his • attorneys, and hence were inadmissible.</p> <p>Held: That the evidence of both the attorneys as to the contents of the second will should have been permitted for the consideration of the jury.</p> <p>2. Privileged Communications — Attorney and Client — Limitation of Rule — Death of Client — Litigation between Parties who Claim under the Client.- — It is generally considered that the rule of privilege does not apply in litigation, after the client’s death, between parties, all of whom claim under the client; and so, where the question before the court is as to the validity or genuineness of an alleged will, the attorney of the testator may, according to the weight of authority, testify to all matters relevant to the issue, although his testimony involves a disclosure of confidential communications between himself and his client, at least when such attorney is one of the subscribing witnesses to the will,- as in such case the testator must be considered as having waived the privilege by requesting the attorney to .sign as a witness. A decedent’s attorney has also been held competent to prove the existence and contents of a lost will; and, in an action involving the construction of a will, the attorney who drew the will may testify as to relevant communications of the testator.</p> <p>3. Wills — Lost will which Revokes a, Former Will. — Where a will which revokes a former will has been lost or destroyed and its contents cannot be sufficiently proved to admit it to probate, it may nevertheless be availed of as a revocation in opposition to the probate of the will which it revokes.</p>

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

Decree for defendants. Complainants appeal. The bill in this cause is as follows: “Humbly complaining show unto your Honor your orators, W. S. Johnson, T. B. Johnson and William H. Deal, who sue for the benefit of themselves, and all other persons similarly situated who may desire to become parties to, and will contribute to the costs of this suit, the facts following : “1: That the said W. S. Johnson, T. B. Johnson and William H. Deal are the owners separately of five…

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

Judgment for defendant. Plaintiffs assign error. This action was instituted by the plaintiffs in error (hereinafter referred to as the assured) for the recovery of the sum of $2,500, the amount of fire insurance provided for in a policy of insurance issued to the plaintiffs by the defendant in error (hereinafter referred to as the insurance company).

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

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

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

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

Judgment for plaintiff. Defendant assigns error. This is a suit instituted by Shulman Company, Inc., in the court below against the Phoenix Insurance Company to recover the sum of $7,500.00 alleged amount of loss suffered by the assured by reason of the alleged destruction by fire of a certain property interest covered by a certain policy of insurance whereby the insurance company insured the interest of the assured in such property against “total destruction” by fire.

Decree for complainant. Defendants appeal. This is á suit for the sale of real estate for partition under section 2564 of the Code as amended (4 Pollard’s Code of Virginia 1916). The bill was filed by the appellees, the first-named appellee an adult, claiming to be the widow, and. the infant appellee, claiming to be the only child and heir at law of one Arthur Reynolds, a deceased brother of the appellants. Arthur Reynolds died intestate.

<p>Error to a judgment of the Circuit Court of Charles City-county. Judgment for defendants. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

Decree for defendants. Plaintiffs appeal. This suit in equity by appellants, who were subscribers to certain shares of the capital stock of the banking, trust and mortgage company (hereinafter called company), against appellees, has for its. object the cancellation of appellants’ stock subscription contracts, and the recovery back of such payments as were made, thereon, upon the ground that such contracts were obtained by a fraudulent misrepresentation.

<p>1. TAXATION — Estate of Decedent- — Situs for Taxation. — The situs for taxation of the property of a decedent held by his personal representative during the administration of the estate is at the last domicile of the testator or intestate, and there it is taxable, and not elsewhere. The fact that the executors or administrators resided elsewhere when the assessment was made does not affect the case.</p> <p>2. Taxation — -Estate of Decedent — Executors also Trustees. — In the instant case, the petitioners, the executors of the estate of a ' decedent, contended that while it might be true that the property belonging to the estates of deceased persons should be listed and is taxable at the last residence of the deceased, the property here involved, which is in their hands, is held in trust for the benefit of others, the executors being trustees, and therefore it should be listed and taxed to the trústees where they reside, or it should be listed by and taxed to the trustees at the place of residence of the person for whose benefit the property is held.</p> <p>Held: That the petitioners held the property at the time the assessments in question were made, and still hold it, as executors of the will of the deceased, and the property is in their hands as the undistributed property of his estate. While it is true, as it is true of every fiduciary, that an executor occupies a position of trust, it is also true that an essential part of his duty is to distribute the estate of his testator, that until distributed he holds it as executor, and that the sureties on his bond as executor are responsible for any failure to make proper distribution thereof. Eight times in the will these executors were described as his “personal- representatives” by the testator.</p> <p>3. EXECUTORS AND Administrators — Executor as Trustee. — If an executor is directed to invest funds belonging to the estate which come into his hands as exécutor, no trust is superadded, but that is a part of his duties as executor. If an executor is also appointed as a trustee under a will, he cannot be considered as holding any .part of the assets in his capacity as trustee until he has closed his accounts as executor with reference to this particular fund and has been charged with the fund as trustee.</p> <p>4. Taxation — Situs—Local and State Purposes. — If the proper situs for taxation of intangible property is a certain magisterial district, then it is liable for local as well as State taxation at that situs.</p> <p>5. Taxation — Situs—Intangible Personal Property — Undistributed Estate of Decedent. — The situs for taxation of intangible personal property is at the domicile of the owner, andón case of an undistributed estate held by the personal representatives, the property must be deemed to be the property of the decedent until it has been distributed to those who succeed him in the beneficial ownership.</p> <p>6. Taxation — Excessive assessments — Burden of Proof. — The presumption is in favor of the validity'of tax assessments which are regularly made, and the burden is upon those who seek to show that valuations are excessive to prove that fact.</p> <p>7. Taxation — Uniformity—Absolute Equality not Necessary. — The difficulties of securing absolute equality in assessments are everywhere recognized, but no machinery has yet been devised by which these difficulties may be fully overcome. It cannot be too distinctly borne in mind that any possiblé system of tax legislation must inevitably produce unequal and unjust results in individual cases; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon arbitrary exactions. But no such impracticable principle is recognized in revenue laws. While equality and justice are constantly to be aimed at, impossibilities are not demanded. Tax legislation must be practical. » '</p> <p>8. Taxation — Uniformity—Liberal Construction of Statutes. — If the-courts had either the wisdom to devise or the power to bring about absolute equality in taxation, they should not hesitate to act. Until, however, they attain to that wisdom and are vested with that power, tax statutes must be liberally construed to produce the best attainable results, and the dream of absolute equality must remain unrealized.</p> <p>9. Taxation — Uniformity—Due Process of Law. — It is a systematic, intentional discrimination, by those administering the tax system of a State (whether as directed by statute or contrary to statute), against a person, by an assessment of the property of such person at a higher rate of valuation than that applied to'the same kind of property of other persons whose property is taxed in the sáme jurisdiction, which is condemned and held to be a denial to the person first referred to of th'e due process of law and the equal protection of the law guaranteed to them by the Federal Constitution.</p> <p>10. Taxation — Uniformity—Due Process of Law. — Where there has been no discrimination between persons or classes of persons, but the property of.the like kind of all persons in a given jurisdiction has been undervalued in its assessment for taxation contrary to law, for a correction to be made of such assessment of any individual property owner according to- law, by an assessing .officer, by a board of review, by a commissioner of court, by a court, or by any other legislatively authorized agency, means, or instrumentality, does not fall under the ban of the authorities, although it may be true that such correction may not be made as to ail of the persons whose property has been thus under-assessed. If there ’be not a systematic, intentional discrimination between persons or classes of same kind of property in the making or in the correction of assessments, such action is not a denial of due process of law and the equal protection of the laws.</p> <p>11. Taxation — Duty of Owner of Property — Inequality-.—The ownership of taxable property imposes the duty of paying taxes thereon. This duty inheres as an essential incident to such ownership. For one who is clearly liable to taxation to seek relief therefrom upon the ground that there are others who are equally or partially delinquent is to assign a reason therefor which is manifestly insufficient, for there are also many others who have paid all that they owe, so that to 'relieve any' of their just obligations neither enforces nor promotes that uniformity which is enjoined by law, but just the contrary thereof. To relieve those clearly liable is to increase the inequality and to make still worse that which is already bad.</p> <p>12. Taxation — Omitted Taxes — Code of 190k, Section 508, as Amended by Acts 1916, Ch. U91 — Retrospective Statute. — Code of 1904, section 508, as amended by Acts 1916, p. 827, provides that: “No municipal, county or district tax shall be levied or collected on any assessment of intangible personal property, . money or incomes for taxes alleged to have been omitted from the assessments for the years prior to nineteen hundred and twelve.” In the instant case an assessment had been made in 1914 for the year 1911, before the adoption of the amendment, and the question was whether the limitation thereby provided applies to such a previous assessment.</p> <p>Held: That it did. The legislature was adopting a statute of repose, and intended that after the act became effective no claim for omitted municipal, county, or district taxes should be enforced by levy or by any other means collected for such as were omitted for the years prior to • 1912. The act was clearly intended to be retrospective to the extent indicated.</p> <p>13. Taxation — Penalties and Interest. — It is the duty of every taxpayer to report his property for assessment and to pay the tax thereon by December 1st following, in order to escape the prescribed penalties. The statute (section 603 of the’Code of 1904) imposes the penalty, and the Supreme Court of Appeals has no power to relieve a delinquent taxpayer therefrom. The same principles apply as to the interest which the officers, by mandate of the statute, are required to collect.</p> <p>ON REHEARING.</p> <p>14. Taxation — Proceeding by Taxpayer to Correct Erroneous Assessment — Assessment Against Taxpayer of Omitted Taxes— Failure of Tax Officials to Perform Duty. — On a motion by a taxpayer to correct an erroneous assessment, the taxpayer renders himself liable in that proceeding to pay all taxes with which he is chargeable in that jurisdiction upon a correct assessment of his property, whether or not the officials charged with the duty of enforcing the tax statutes requiring proper returns performed their duty.</p> <p>15. Taxation — Failure of Officials — Taxpayer not Relieved. — Under section 174 of the Constitution of 1902, no dereliction of the examiners of records in failing to report the property, or of the commissioner of the revenue in failing to assess it for taxation, can relieve any taxpayer of his own duty to list and return his taxable property for' taxation; nor can such concur- • ring failures and omissions relieve any of the property from its just proportion of the tax burdens, which are intended to be equal and uniform.</p> <p>16. Taxation — Local Purposes-* — Intangible Property of Decedent.— For the purpose of taxation, a decedent or his executors must be deemed residents of the magisterial district of which the decedent was domiciled at his death within the meaning' of the words “residents in the magisterial district” proposed to be taxed for district purposes, as used in Acts 1915, p. 119.</p> <p>17. Taxation — Penalties and Interest. — As penalties and interest are imposed by statute upon taxpayers who are in default, in order .to insure the prompt payment of taxes which are necessary for the support of the government, the courts have no-authority to relieve them therefrom. The citizen who desires to avoid paying such penalties and interest can pay the tax assessed promptly, and then institute the proceeding provided by statute for exoneration therefrom. If he establishes the invalidity of the tax, or any part thereof, the state or local authorities are required to refund the amounts illegally exacted. If he declines to pay upon the ground of invalidity of the tax assessed, he must take the consequences, if his litigation results unfavorably to him, and one of ’these inevitable consequences is that he must pay penalties and interest upon taxes lawfully due which have not been promptly paid.</p> <p>18. Taxation — Interest—Omitted Taxes. — Taxes which were regularly assessed for the years 1915, 1916 and 1917 upon intangible property are not omitted taxes, and there is no statute requiring interest to be paid therqon, and hence none can be collected. Code of 1904, sec. 636, relates only to interest on taxes on land returned delinquent.</p>

<p>1. PARTIEs-Mis5oinder-D&inurrer-PIec~ in Abc~temen~.-Misjoinder of parties cannot be reached by demurrer, but oniy by a motion to abate the action as to the parties improperly joined.</p> <p>2. JOINDER OF CAUSES OF AcTIow-Ass~inpsit--Waiver of Tort.-It was claimed that a special count in a declaration i~a an action o~ assumpsit set up a tort which was improperly joined as a cause o~ action with the common counts in assumpsit. The special count did allege a fraudulent and tortious transaction, but one in which the defendants were charged with having received money belonging in good conscience to the plaintiff, and for the refunding of which the law implies a promise. The action was specifically designated in the declaration as assumpsit.</p> <p>Held: That that form of action, if the pleintiff desired to waive the tort, was appropriate for the recovery of the money.</p> <p>S. REAL ESTATE BRoKERs-Secret Profl-Dee1ara~Uon.-1n an acti0I~ by a property owner against real estate brokers to recover a secret profit made by the brokers, the failure of the declaration to show whether or not the defendants were acting in the dual capacity of agents for the plaintiff and for the third party with whom the trade was made, was immaterial and did not render the declaration demurrable. According to the allegation of the declaration, the defendants were assuming to use their skill and influence primarily for the benefit of the plaintiff, and they were not mere middlemen, but, on the contrary, were the trusted agents of the plaintiff and owed her the same duty of loyalty and good faith which they would have owed her independent of any relationship with the~third party. It was, therefore, unnecessary for the declaration to allege that the plaintiff did not kuow that the agents were also representing the third party and were to be paid a commission by him.</p> <p>4. REAL ESTATE BROKERS-Seorot Profit-Allegation, of Scienter in Deelarat~ion.-In an action of assump~it against real estate brokers by a client to recover a secret profit made by the brokers, it was objected to the sufficiency of the declaration that it did not allege the scienter; that is, did not allege that the defendants knew of the falsity of their representations, and that it also failed to aver that such representations were false and material.</p> <p>Held: That this position was untenable, because, although the declaration did not in terms contain these allegations, it stated facts which necessarily implied that the representations were material and that the defendants knew they were false.</p> <p>5. Evidence — Admissibility — Compromise * — ■ Objection. — The trial court’s action in refusing to exclude the offer of one defendant to compromise plaintiff’s claim, elicited on the cross-examination of the defendant, is not error, where substantially the same offer and others similar in character had already, and without objection, been testified to by a witness for plaintiff, one such offer having been designedly brought out in his- cross-examination by defendant’s counsel.</p> <p>6. Exceptions, Bill of — Determination of Whether Exceptions were Taken in the Trial Court. — Bills of exceptions upon which assignments of error relating to the admission or exclusion of certain testimony were based expressly certified that there was an objection and exception to the ruling of the court, but each of them concluded as follows: “The court certifies that counsel for defendants says that he made an exception to this ruling at the time, but neither the stenographer nor the court heard said exception.” It was claimed that in this state of the record there was no sufficient evidence before the Supreme Court of Appeals that the defendants duly excepted in the court below.</p> <p>" Held: That this claim could not be sustained. The opportunity and responsibility for determining whether exceptions have been taken are with the trial court, and when that court resolves the doubt in favor of the party complaining of a ruling, the Supreme Court of Appeals cannot do less.</p> <p>7. Appeal and Error — Reversal.—Where questions involved in bills of exceptions were of minor importance and were the occasion of such little controversy in the lower court as that an apparently experienced court reporter and a careful and capable-presiding judge did not discover during the trial that any serious point was being raised in regard to them, they ought not to be made the subject of reversal.</p> <p>8. Beal Estate BROKERS — Middlemen—Secret Profit — Case at Bar* —Plaintiff employed real estate brokers to effectuate an exchange of her city property for farm lands. The broker* called upon the owner of a farm for the purpose of attempting to trade for the plaintiff her city property for the farm, and at that time the brokers listed the farm for sale and secured from the owner of the farm an agreement to trade the farm for $15 per acre net, with the understanding that the brokers would guarantee a sale of the plaintiff’s city property so as to net the owner of the farm $15 per acre. The brokers failed to disclose to the plaintiff that the owner of the farm was receiving $15 per acre net for his farm, but on the contrary stated to the plaintiff that the owner of the farm would not trade his farm for less than $20 per acre.</p> <p>Held: That the relationship of the brokers to the plaintiff was such that they were legally bound to deal openly and in good faith with her. Not being mere middlemen, the defendants could not lawfully have charged the owner of the farm a commission, and although they had plaintiff’s consent to charge a commission, that did not warrant them in secretly arranging with the owner of the farm so as to make their profit on ■ the transaction by a speculation on plaintiff’s property.</p> <p>9. BROKERS — Middlemen—Compensation from Both Parties. — Where an agent stands in the situation of a mere middleman, not having undertaken to act as agent for either party or to exercise for either his skill, knowledge or influence, but merely to bring the parties together to deal for themselves, and he himself stands entirely indifferent between them, ft is held that he may recover from each, although each was ignorant of his relation to the other. Such cases may undoubtedly occur, but “their exceptional character should appear clearly, before they should be exempted from the general principle.” In order to occupy the position of the middleman, the broker must have limited his exertions to such a service. If in addition thereto, a middleman assists either in effecting a trade, he becomes to that extent a partisan agent, and the duty immediately devolves upon him to disclose his agency to the other,</p> <p>10. Real Estate Brokers — Liability—Duty of Disclosure. — The ' broker who, in disregard of his duty, conceals adverse interests or secretly enters into the service of, or himself becomes, the adverse party, forfeits his right to commissions, must account for gains unlawfully acquired, and will be liable in damages for any loss caused to his principal by his perfidious conduct. Failure to disclose information necessary for his principal’s protection will have the same effect.</p> <p>11. Brokers — Secret Profit — Ratification.—In an action by a client to recover a secret profit made by her brokers in an exchange of property between herself and one Basho, the court instructed the jury: “If you believe from the evidence the plaintiff, after executing the deed to Mr. Basho of her property, learned of the facts in reference to the transaction she is now complaining of, and with full knowledge of all said facts then executed, along with said Basho, a deed conveying her said property to the defendant A. D. Smith in accordance with the understanding with Mr. Basho and the defendants, and in the said deed required the said A. D. Smith to assume certain mortgages executed by the said plaintiff, then this was a ratification of the transaction complained of, and you must find for the defendants.” The words “and with full knowledge of all the facts” were added by the court over the objection of the defendants. It was objected that the instruction tended to confuse and mislead the jury because it did not sufficiently specify what facts were referred to by the expression “all said facts.”</p> <p>Held: That the instruction could have had no such tendency. The question was one of fact, depending upon conflicting evidence, and the instruction as modified presented that question fully and fairly to the proper tribunal.</p> <p>12.- Brokers — Actions—Instructions.—In an action against brokers for secret profits, an instruction was properly refused which ignored the plaintiff’s theory and the rule of law applicable to the facts of the case as to the duty of agents to deal openly and in good faith with their clients.</p> <p>13. Verdict — Partnership — Amendment of Verdict by Supreme Court of Appeals. — In an action against three brokers for obtaining a secret profit the verdict was as follows: “We, the jury, in the issue joined, find for the plaintiff and fix the damage at $1,600.00 against E. F. Schmidt & Co., A. D. Smith, and Jno. M. Brandt, defendants.” It appeared from the testimony that E. F, Schmidt &' Company was the firm name under which E. F. Schmidt was doing business. It further appeared that E. F. Schmidt, A. D. Smith and John M. Brandt were jointly and equally interested in the transaction involved in the litigation, and that whether regarded technically as partners or not, they were jointly interested in the profits and jointly liable to the plaintiff. It was objected to the verdict that there was no such partnership as E. F. Schmidt & Company existing between the three defendants and that the result of the verdict in this form was to establish the existence of such .partnership.</p> <p>Held: That the form of the verdict rather negatived the idea that Smith and Brandt were members of the firm. The court entered a judgment against the defendants without specifying them by name, and although the Supreme Court of Appeals was of opinion that this was sufficiently accurate, in order to re- • move any possible doubt, it amended the judgment so as to make it read in terms against E. F. Schmidt, trading as E. F. Schmidt & Co., and against Jno. M. Brandt and A. B. Smith, all three as individuals.</p>

<p>1. Divorce — Abandonment and Desertion — Condition in Decree Against Remarriage. — A decree granting a wife a divorce a vinculo on the ground of abandonment arid desertion for more than three years prior to the institution of her suit, contained the following provision: “And it appearing to the court from the record in this cause that the defendant has been several times divorced, and that this is the second divorce for the plaintiff, the court doth adjudge, order, and decree that neither of said parties shall marry again, as provided in section 2265 of the Code of Virginia (edition of 1904).”</p> <p>Held: That this provision was unauthorized, as section 2265, Code of 1904, only applies to a case in which the ground for granting the divorce is adultery, in which case the court may decree that the guilty party shall not marry again. The statute has no application to a case in which the cause for divorce is abandonment and desertion.</p> <p>2. Divorce — Remarriage.—No court can impose a restriction on the marriage of a divorced party without statutory grant of power.</p> <p>3. Divorce — Final Decree — Reinstatement of Cause Without Notice. —A decree for a divorce a vinculo gave leave to either party to move the court to reinstate the suit without notice. Code of 1904, section 3293, gives the court control over proceedings in the clerk’s office during the preceding vacation, Including the power to set aside discontinuances and reinstate causes; and section 3233 provides that a nonresident defendant, who has not been served with process, as in the instant case, may petition for a rehearing of a decree within three years. But no statute authorizes a court to grant to parties an indefinite time within which to move the court to reinstate a suit in which a final decree has been rendered, and which has been stricken from the docket,' without notice.</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>The opinion states the case.</p>

<p>Error to a judgment of the Law and Equity Court of city of Richmond in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

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

<p>Error to a judgment of the Corporation Court of city of Danville in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>1. Sales — Reservation of Title in Seller — Failure to Pay Installments. — A contract for the sale of personal property upon installment payments and reserving title in seller until the property was fully paid for, provided that in the event of default in payment of any of the installments when due, at the election of the seller all the deferred payments should thereby become due and payable, and the seller might proceed to collect the same.</p> <p>Held: That upon default the seller might proceed by notice of motion for judgment to recover the balance due on the.contract.</p> <p>2. Sales — Reservation of Title in Seller — Failure to Pay Installments — Section 2162 of the Code of 1901. — Section 2462 of the Code of 1904, which provides that, where goods and chattels' are sold under an installment contract, and the title is retained by the vendor, or a lien is reserved thereon, and the vendee makes default, the vendor may proceed by petition and obtain relief by having the property sold under the orders of the court, or by having it returned to him, or by receiving in such proceeding such relief as the court may adjudge him to be entitled to, is not exclusive.</p> <p>3. Sales — Reservation of Title in Seller — Failure to Pay Installments — Section 2162 of the Code of 1901. — The statute (sec. 2462 of the Code of 1904) was passed in order to afford a remedy in one proceeding as a substitute for an action of de-tinue for the recovery of property, for a suit in equity for the enforcement of the lien, and a decree for the balance due. It was clearly not intended to take away the common-law remedy of the vendor to bring an action at law for the amount due by the vendee.</p>

<p>Error to a judgment of the Circuit Court of city of Lynchburg in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Henrico county in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiff assigns error.</p> <p>This is an action by the plaintiff in error to recover damages for certain personal injuries. He was plaintiff in the court below and the defendant in error was the defendant there. They will be hereinafter referred to as plaintiff and defendant.</p> <p>The defendant demurred to the evidence in the trial court and the jury returned a verdict in favor of the plaintiff, subject to the ruling of the court upon the demurrer. That court sustained the demurrer and entered judgment dismissing the proceeding, with costs against the plaintiff.</p> <p>The Material Facts.</p> <p>Under the statutory rule applicable in such case, the material facts as shown by the record may be stated as follows:</p> <p>On the night of May 28, 1917, between eight and nine o’clock P. M., the plaintiff’s automobile was run into and struck by a car operated by the defendant company. The automobile was completely demolished and the plaintiff severely injured about the head and body. The accident happened in the county of Henrico, on the Hermitage road, about 300 yards north of the corporate limits of the city of Richmond, at a crossing constructed over the tracks of the defendant’s company for the use of persons crossing at that point. The plaintiff was approaching the crossing which turned sharply to the. right and leads into a road which goes to his home. At that point the Hermitage road is 100 feet wide. It is a county road. The car track runs down the middle of the road. On the Hermitage road there is a tree where one would turn to cross the tracks at this, crossing. The plaintiff turned a little to the left of the road so as to avoid that tree, and then turned and started across the track. He was within several feet of the track when he first heard the car coming. There are trees with long branches on either side of the track which partially obstructed the view of the track in the direction from which the street car was approaching. There was no whistle blown and no bell rung, the bright lights on the plaintiff’s automobile were burning and threw a glare across the track which the motorman says he saw as the plaintiff began to> turn for the crossing. The street car was then 150 to 200-feet from the point of accident. It was at the same instant that the plaintiff first saw the street car and he saw and. realized that it was coming “very rapidly,” though he did not then know at what speed it was coming. It was in fact coming at a rate of speed of about thirty-five miles an. hour, as shown by the evidence on the trial, and it was, as. also shown by such evidence, a physical impossibility for it to have been stopped before reaching the crossing. When the plaintiff first saw the street car he did not think he could stop his automobile in time to prevent stopping on •the car tracks, so he threw on all power that he thought the car would stand without stalling, trying to get out of the way. In this emergency and in order to give the street car as much clearance and get as much clearance for his.automobile as possible, he took a slight diagonal course, and in doing so struck a tree a few feet just below the crossing which blocked the automobile with its rear wheels still on the track at the crossing, and it was in this position when struck by the street car. After plaintiff was stalled on the track he says he holloed several times lustily. The street car at that time was ninety-one feet away. The car came on without slackening its speed — at a “terrific speed,” as testified by the plaintiff. The car struck his automobile a terrific blow, and after striking it carried it, by actual measurement, 137 feet, knocking it against two or three trees as it was carried along. At the point where the accident occurred the Hermitage road slopes down from either direction. The car tracks are laid in the middle of the public road and the rails and ties are some distance above the roadbed, and there is a drain on either side, except at the crossing. The car tracks are so far above the roadbed that one in an automobile can only cross at the crossing. The public highway at this point is on both sides of the car tracks, the track being laid in the county roadbed, as aforesaid. On the right-hand side when going north is a clay roadbed, and, while traveled to some extent in dry weather, is not much used in bad weather. On the night of the acci.dent, there had been a terrific rain, and the clay roadbed on the right-hand side was not in good condition for traveling. The crossing constructed over the railway tracks is rough; that is to say, it is so rough that an automobile would have to go across it slowly or the occupant would be jostled considerably. The. plaintiff had slackened speed of his automobile to six miles per hour and was proceeding across at this rate. But even on demurrer to evidence we must regard the fact to have been that the plaintiff could not have stopped his automobile short of the crossing after he saw the street car approaching; or at least that he acted upon that assumption.</p> <p>There was certain evidence excluded by the trial court which, if admitted, would have shown that the defendant did not own its right of way along the county road aforesaid, but used it by permission of the local authorities under the statute in such case made and provided. The case is considered by us as if such evidence had been admitted.</p> <p>There was no statute or ordinance regulating the speed of the street cars along the public road aforesaid or at crossings thereof; but there was an ordinance or resolution of said local authorities limiting the speed of automobiles on said road to fifteen miles per hour — no mention being made, however, of the speed at crossings.</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>The opinion states the case.</p>

<p>Appeal from the State Corporation Commission.</p> <p>The above-entitled cases are separate appeals from a similar order of the State Corporation Commission in each case refusing to approve the schedule of rates hereinafter mentioned so far as they apply to services within the corporate limits of the cities and towns which are the defend- • ants in error before us, on the ground that, such rates being in excess of those agreed upon in the franchises hereinafter mentioned, the commission is without authority or jurisdiction to approve of them.</p> <p>The plaintiff in error, the Virginia-Western Power Company (hereinafter designated as such, or as the company), is a public service corporation, and operates a public utility, as defined by statute, and, in the operation of such utility, the company generates and furnishes electric current to its customers for light, power and heating purposes. It has for some years been furnishing electric current to the public as its customers, within the corporate limits of the defendant in error cities and towns, at rates of charges fixed for the respective franchise periods by the respective franchises giving the authority to do such business in such municipalities, to the extent that such rates of charges are fixed at all by such franchises. None of such franchises fixes any rates of charges for such current for heating purposes. In Clifton Forge the maximum rates of charges to the customers aforesaid therein, other than the municipality, for said current are fixed by the franchise for lighting purposes only. In Buena Vista, Covington and Lexington the rates of charges to said customers, other than the municipalities, for such current are fixed by the franchises for lighting and power purposes only — maximum rates being so fixed in Buena Vista, maximum and minimum rates in Lexington, and specific and minimum rates in Covington. Such rates of charges as are fixed by the franchises purport to be irrevocably fixed thereby for the whole period of the respective franchises and none of such periods have yet expired.</p> <p>None of the defendants in error have any provisions in their charters which are claimed to give any municipal authority on the subject of irrevocably fixing the rates aforesaid during the whole franchise period, except the town of Lexington. That has in its charter the following provision:</p> <p>“* * * but no company shall occupy, with its works or any appurtenances thereof, the streets, sidewalks or álleys of the town without the consent of the mayor and council, duly entered upon its records.”</p> <p>The franchises aforesaid were all granted after the sections of the Constitution of Virginia of 1902 and the statutes presently to be referred to and quoted went into effect.</p> <p>Sections 124 and 125 of said Constitution, so far as material, provide as follows:</p> <p>“Sec. 124. Consent of corporate authorities necessary to use of streets, alleys or public grounds by certain companies or persons. — No * * * electric heating, electric light or power * * * company, nor any corporation, association, person or partnership, engaged in these or like enterprises, shall be permitted to use the streets, alleys or public grounds of a city or town without the previous consent of the corporate authorities of such city or town.</p> <p>“Sec. 125. Sale of corporate property and granting of franchises by cities and towns. — The rights of no city or town in and to its * * * streets, avenues, parks, bridges and other public places, and its gas * * * and electric works shall be sold except by an ordinance or resolution passed by a recorded affirmative vote of three-fourths of all members elected to the council, or to each branch thereof when there are two, and under such other restrictions as may be imposed by law; * * * no franchise * * * shall be granted for a longer period than thirty years. Before granting any such franchise or privilege for a term of years, except for a trunk railway, the municipality shall first, after due advertisement, receive bids therefor publicly, in such manner as may be provided by law, and shall then act as may be required by law. * * * Every such grant shall * * * make adequate provision by way of forfeiture of the grant, or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant. Nothing herein contained shall be construed as preventing the General Assembly from prescribing additional restrictions on the powers of cities and towns in granting franchises * * * or as repealing any additional restrictions now required in relation thereto in any existing municipal charter.” (Italics supplied in the body of the last section quoted.)</p> <p>Section 156 (b) of said Constitution confers upon the State Corporation Commission the power and duty of supervising, regulating and controlling certain corporations, as to which it is provided that “the authority of the commission * * * shall be paramount,” but electric light, and power companies are not among such corporations. As to such last-named companies, however, it is provided in this section of the Constitution that the authority of the State Corporation Commission “to prescribe any other rules, regulations or requirements * * * shall be subject to the superior authority of the General Assembly to legislate thereon by general laws; provided, however, that nothing in this section shall impair the right which has heretofore been, or may hereafter be, conferred by law upon the authorities of any city, town or county to prescribe rules, regulations or rates of charge to be observed by any public service corporation in connection with any service performed by it under a municipal or county franchise granted by such city, town or county, so far as such services may be wholly within the limits of the city, town or county granting the franchise. * * *” (Italics supplied.)</p> <p>Section 156 (c) of the said Constitution, so far as material, provides, in respect to the State Corporation Commission, as follows:</p> <p>“* * * The commission may be vested with such additional powers and charged with such other duties (not m-consistent with this Constitution) as may be prescribed by law, in connection with the visitation, regulation or control of corporations, or with the prescribing and enforcing rates and charges to be observed in the conduct of any business where the State has the right to prescribe the, rates and charges in connection therewith.” (Italics supplied.)</p> <p>Subsequent to the going into effect of the Constitution, the statutes contained in 1 Pollard’s Code of Va., 1904, sections 1033-d, 1033-e and 1033-f were enacted.</p> <p>Section 1033-d is precisely in the same language as section 124 of the Constitution, above quoted.</p> <p>Section 1033-e is precisely in the same language as section 125 of the Constitution-above quoted, except that the words “by the following section” are substituted ■-for the words “by law,” in that part of such section of the Constitution which has reference to the manner in which the bids for the franchise shall be received, and the. following sentence is substituted for the last sentence of such section of the Constitution, namely: “Nothing herein contained shall be construed as repealing any additional restrictions now required in any existing municipal charter, in relation to the powers of cities and.towns in granting franchises.”</p> <p>Section-1033-f provides that the ordinance proposing to make the grant of the franchise, after its terms have been fixed upon, shall be advertised; it also provides for the mam ner of advertising, receiving and acting on the bids for' the franchise; and that “the highest and-best bid” shall be accepted and that the ordinance granting the franchise shall be enacted “as advertised, without substantial variance except as to the insertion of the name of the successful'bidder,” with the power in the municipal authorities, however, “to reject a higher-and accept a lower bid” if of opinion that “some reason affecting the interest of the city or town makes it advisable so to do.” Such .statute also provides that “no amendment that releases the grantee, or his as-signee, from the performance of any duty required by the ordinance granting the franchise, or that authorizes an increase in the charges to be made by such grantee or as-signee, for the use by the public of the benefit of such franchise, shall be granted unless and until notice of such proposed amendment shall be given to the public” by certain advertisement prescribed in the statute. (Italics supplied.)</p> <p>Such statute also contains the following provisions to secure the compliance both of the grantor and the grantee of the franchise with their obligations in the premises', namely: the grantee is required to “execute a bond, with good and sufficient security, in favor of the city or town, in such sum as the city or town shall determine, conditioned upon the construction and putting into operation and maintaining the plant or plants provided for in the franchise, right or privilege granted.” And it is further provided that, “The corporation courts of the cities and the circuit courts of the counties in which the towns may be situated shall have jurisdiction by mandamus * * * to enforce compliance by said cities or towns and by all grantees of franchises, * * * with all the terms and contracts and obligations of either party, as contained in franchises.” .(Italics supplied.)</p> <p>Such was the constitutional and statute law of the State when the franchises in question were granted. And such is the authority upon which is based the action of the municipalities aforesaid on the subject of fixing irrevocably during the whole periods covered by said franchises the ■rates of charges aforesaid.</p> <p>The franchises were granted in accordance with said constitutional and statute law. They contained provisions purporting to fix said rates of charges, as aforesaid, irrevocably during the whole periods covered by the franchises, respectively. The franchises, with such provisions therein, were accepted and acted upon by the grantees thereof, the said plaintiff in error company and its predecessors, for a number of years.</p> <p>Subsequently, the General Assembly (by Acts of 1914, p. 678, et seq.) enacted a statute which purports to confer upon the State Corporation Commission the authority, as it is claimed by the plaintiff in error, to regulate and change such rates of charges as those above mentioned, although purported to be irrevocably fixed by the franchises aforesaid during the respective periods covered by such franchises. The commission is given no jurisdiction, however, over rates charged the municipalities themselves for electric current. Such statute, among other things, provides that every such corporation as the plaintiff in error shall file with the State Corporation Commission schedules showing rates and charges made by it; and, further, among other things, provides, so far as material,- in section 7 thereof, as follows:</p> <p>“7. Commission to fix rates and regulations. — If, upon investigation, the rates * * * charges, schedules * * * of any public utility operating- in this State shall be found to be unjust, unreasonable, insufficient * * *, the State Corporation Commission shall have power to fix and order substituted therefor such rate or rates- * * * charges or schedules as shall be just and reasonable. * * *”</p> <p>■ And section 8 of such statute, so far as material, provides as follows:</p> <p>“* * * the provisions- of the Code of Virginia shall apply to the companies included herein, and whenever the two are inconsistent the law as embraced in the Code shall prevail.”</p> <p>The above-mentioned statutes, sections 1033-d, 1033-e and 1033-f were provisions of Pollard’s Code of Virginia of 1904, as aforesaid, when said act of 1914 was passed, and also when it went into effect.</p> <p>Subsequently, to-wit, on March 18, 1918, the said company filed with the State Corporation Commission a schedule showing the rates of charges proposed to be made by it for furnishing electric current to the public, its customers, in all municipalities and rural sections served by it in Virginia (which municipalities include the cites and towns who are the defendants in error), such rates to be effective April 1, 1918, and superseding all rates theretofore in effect.</p> <p>Such schedule contains uniform rates of charges for electric current for heating, lighting and power in municipalities'. Such- rates for lighting are in excess of the rates therefor allowed by the charters granted by all of the defendants in error. Such rates for power are in excess of the rates allowed by the charters granted by Buena Vista, Covington and Lexington. The other rates named in such schedule are not in conflict with the franchises aforesaid.</p> <p>The issues in the cases before us arose upon separate petitions, filed by the defendants in error in the name of the Commonwealth at their relation on and before April 1, 1918, and before the State Corporation Commission made any investigation or took any action on said schedule, and upon the separate answers of the said company to such petitions. The answers raise no issues of fact except in the Clifton Forge case. In that case the answer alleges that the company is not furnishing electric current to the public throughout the corporate limits under the franchise granted by the city, but that in about one-half of such territory it is furnishing such current in the exercise of another right so to do. That issue of fact was not passed upon by the State Corporation Commission and is not involved before us on appeal.</p>

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

<p>Error to a judgment of the Corporation Court of city of Danville in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.</p> <p>This is an action instituted by the plaintiff in error against the Southern Railway Company (the defendant in error) to recover damages for the killing of the plaintiff’s intestate on a much-used street crossing of the railway company in the suburbs, but within the corporate limits of the city of Danville. The accident occurred on a Sunday, about ten o’clock in the forenoon, of a clear, bright day.</p> <p>There was a trial by jury, and after evidence, both for plaintiff and defendant, was in, and after a view by the jury, there was a demurrer to the evidence by the railway company. There was a verdict of the jury in favor of the plaintiff, subject to the demurrer. The demurrer was sustained by the trial court and judgment was entered accordingly in favor of the defendant railway company, and this action of the trial court furnishes the sole assignment of error.</p> <p>Considering the evidence under the statutory rule on the subject, the following must be said to be the material facts of the case: The accident occurred as a northbound passenger train was approaching the station at Danville, running down a heavy grade, moving by its own momentum, “drifting,” as it is technically called, and hence making but little noise, moving at a speed greatly in excess of the speed limit of the city ordinance, which was fifteen miles an hour —the speed being some twenty-five to thirty miles an hour. As the train approached the crossing, which was the place of the accident, no whistle signal for the station or crossing was blown, and there was no ringing of the bell. The crossing was that of Monmouth street, over the railroad at grade and practically at right angles with the railroad. The passenger train aforesaid was running on its scheduled time and was due to pass the crossing at the time of the accident. The plaintiff’s intestate was well acquainted with this crossing and its dangers, was in possession of his faculties of sight and hearing, was sober and was traveling this highway on foot and approached the railway from the west going east. There are four tracks of the railway at this crossing, which in the order in which they are reached by a traveler going east along said highway will, be designated as follows: The south pass track, the southbound main line, the northbound main line and the north-side track. As the plaintiff’s intestate approached the south pass track there was a long freight train going south over the southbound main line moving at a moderate rate of speed up the heavy grade aforesaid. There was a yard engine some considerable distance to the rear going the same way on the same track which was approaching for the purpose of later on pushing the freight train and thus aiding it in ascending the heavy grade it was pulling. The testimony for plaintiff shows that the plaintiff’s intestate first stopped in the highway at a point a little west of the south pass track opposite a tool-house, which was located some seven or eight feet from the southern edge of the highway, and that there was a line of several box cars then standing on the south pass track to the south of and. extending up to within a short distance of the crossing. At that point his view of the railway to the south was obstructed by such tool-house and box cars, as well as by the passing freight train. Other testimony for plaintiff shows that before the freight train had passed over the crossing the plaintiff’s intestate was closer to it — that is, within five feet of it, as one of the witnesses for plaintiff testifies. This is explained by testimony of a witness for defendant who says that the plaintiff’s intestate after first stopping, later moved up nearer to the passing freight train, to-wit: up to the side of it. There is no conflict, therefore, between the testimony for plaintiff and defendant on the subject of the position of the plaintiff’s intestate at the moment just preceding the passing of the rear of the freight train over the crossing; and such testimony, when considered together, fixes that position at that time as immediately on the west side of the southbound main line track, waiting for the freight train to pass.</p> <p>From the crossing, both main-line tracks extended southward in a straight line for 1,211 feet to a curve, where the railway turned into a deep cut and passed out of sight from the crossing.</p> <p>There was no obstruction to prevent the plaintiff’s intestate, standing in the position last named, from seeing the northbound passenger train, which killed him, approaching all the way as it came on towards the crossing from the mouth of the cut and curve aforesaid, 1,211 feet away, except the freight train, which was moving in the opposite direction, as aforesaid. From that position the tool-house and box cars aforesaid did not at all obstruct such view. As the rear of the freight train passed and cleared the crossing it for a time obstructed the view of the plaintiff’s intestate of some portion of the 1,211 feet of the northbound track to the south, but, as the freight train moved away, it, of course, must have opened more and more of that vista to the view of the plaintiff’s intestate, if he had been looking that way.</p> <p>A number of eye-witnesses of the accident, and of the movements of the plaintiff’s intestate just preceding and at the moment of the accident, testify in the case. There is singularly little divergence in their testimony bearing on material points. There is testimony for the plaintiff to the effect that the plaintiff’s intestate began to move in a moderate walk across the southbound track, not immediately, but almost immediately after the rear of the freight train had passed, and the greater number of the plaintiff’s witnesses on this subject say that the intestate looked as he walked, first to the north and then to the south, from which latter direction the passenger train was approaching, and make no mention of his looking before or at the time he started across, except of his looking straight ahead. There is some testimony for the plaintiff, however, to the effect that the plaintiff’s intestate first looked south and then to the north before he moved or at the moment of his first movement, and that then, after he began to move, he looked both ways as he walked. On demurrer we must take the latter to be the fact of the case.</p> <p>The testimony for the plaintiff concurs, however, in the following material facts, namely: (a) that after the plaintiff’s intestate was in the act of walking he was looking first to the north; (b) that when he next looked to the south he was upon the northbound main-line track and that he saw the northbound train, which was thereon and which killed hi-m, the first time, and the moment that he first looked to the south after he began to move from his previous position, as was apparent from his act of turning and leaping in the effort to escape it the moment he saw it; and that when he so looked the passenger-train engine was immediately upon him and struck him almost instantly, throwing him some sixty to seventy feet down the railway over on the north side-track, killing him instantly; and (c) that when the plaintiff’s intestate stepped from the southbound track towards the northbound track looking away from the approaching train, it was in full view of him and was almost upon him, according to all of the testimony for plaintiff, being too close for the passenger train to have been stopped by any possibility so as not to strike the plaintiff’s intestate if he came upon its track.</p> <p>The testimony for the plaintiff shows that when the plaintiff’s intestate looked south, before or at the instant of his starting across the southbound track, he did not wait sufficiently long for the rear of the freight train to recede a sufficient distance to clear his view of the railway track a reasonable distance in that direction before looking in such direction in order to render such looking reasonably effective, for, if he had, the physical facts testified to by plaintiff’s own witnesses demonstrate that the plaintiff would have seen the passenger train approaching before he started to move; and all the testimony for plaintiff agrees in the fact that he did not then discover such train, but first discovered it after he got on the northbound track.</p> <p>The testimony also shows, without conflict, that there was a distance of eight feet two inches between the eastern rail of the southbound and the western rail of the northbound main-line tracks. Allowing for the overhang of the passenger engine, and for the rear of the freight train having passed some little distance from the crossing by the time the plaintiff’s intestate had madé three or four steps and was on the southbound track and about to step from it towards the northbound tracks, there mil st have been a space of some eight feet between such intestate and danger, in which, if he had stopped and looked to the south or had looked to the south as he walked, he could not have avoided seeing the passenger train approaching and that it was almost upon him. He was in no peril and under no apparent necessity or urgent need of haste, so far as the evidence discloses. He did not stop to so look or even to so look as he walked as to make his looking in any degree effective, but stepped on the track almost immediately in front of the approaching train without seeing it until he was about midway between the rails of the track it was on.</p> <p>As shown by the testimony for the plaintiff, the engine of the passenger train going north reached the crossing "almost as soon as the rear of the freight train going south cleared the crossing at its rear. As one of plaintiff’s witnesses says of the plaintiff’s intestate: “If he-had crossed immediately it” (the rear of the freight train) “passed, he would have been hit” (by the passenger-train engine). (This, of course, assumes that this would have occurred if the plaintiff’s intestate had continued moving only as fast as he was at first moving, namely, in a moderate walk.) This witness estimates that the passenger-train engine was “twenty-five yards” (or seventy-five feet) away from the crossing when the plaintiff’s intestate had stepped between the rails of the track it was on. The witness for plaintiff , who puts the passenger-train engine farthest away from the crossing at this time estimates it at ninety feet. None of the witnesses, however, could give exact distance, they merely estimate them and they are not very definite as to the distance the passenger-train engine was away when the plaintiff’s intestate first entered the eight-foot space aforesaid. But all of plaintiff’s witnesses who saw the tragedy say, in substance, that the passenger-train engine was very close to the plaintiff’s intestate when he first entered upon the aforesaid eight-foot space, and it is manifest from such testimony that such engine was then too close for it to have appeared to the plaintiff’s intestate as reasonably possible for him to have safely crossed the track in front of it if he had looked towards it before going on the track.</p>

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

<p>Error to a judgment of the Circuit Court of Lee county-in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.</p> <p>This is an action at law by notice of motion instituted in ,the court below by the defendant in error against the plaintiff in error to recover $1,500 damages for the loss of fifty-two hogs by death from hog cholera alleged to have resulted from the deprivation of the plaintiff of the use of certain hog-cholera serum as a preventive treatment of the hogs for that disease by reason of the unreasonable delay in the thansportation of such serum.</p> <p>The parties will be hereinafter referred to in accordance ■ with their positions in the court below.</p> <p>There was a trial by jury; a verdict and judgment for the plaintiff.</p> <p>The following are the material facts bearing upon the assignments of error of the defendant:</p> <p>On October 6, 1917, between 2 and 3 o’clock P. M., the Department of Agriculture of the State of Virginia, through its chief clerk, delivered to the defendant at its receiving office in Richmond, Va., a package containing sufficient hog-cholera serum for treatment of one hundred hogs, to be transported “C. O. D.” to the plaintiff, W. P. Allen, at Wheeler, Va., and such chief clerk of the department of agriculture at the time “personally urged upon the receiving clerk” (of the defendant) “the importance of the prompt dispatch of the package on the Norfolk and Western train leaving * * * (Richmond) at 9:35 P. M.” of that day. The package was accepted by defendant and an express receipt (the draft of which was prepared by the Department of Agriculture by using a printed form therefor and filling in the words underscored in the copy given below), was given by defendant therefor, which so far as material, was as follows:</p> <p> “Please Rush </p> <p>“Uniform Express Receipt.</p> <p>“The company will not pay over $50 in case of loss, or 50 cents per pound, actual weight, for any shipment in excess of 100 pounds, unless a greater value is declared and charges for such greater value paid.</p> <p>“Adams Express Company.</p> <p>“Non-negotiable receipt. ' 10/6/1917.</p> <p>“Received from Department of Agriculture, subject to the • classifications and tariffs in effect on the date hereof.</p> <p>.. ..1 Box Hog Cholera Serum..</p> <p>. Value herein declared by shipper to be C. O. D. fifty-six and 75/100 dollars.</p> <p>“Consigned to W. P. Allen.</p> <p>at Wheeler, Va.:.</p> <p>“Which the company agrees to carry upon the terms and conditions printed on the back hereof, to which the shipper agrees, and as evidence thereof accepts and signs this receipt.</p> <p>* ❖ # *!• i}s</p> <p>“Note. * * * If the shipper desires, to release the value to $50 for any shipment of 100 pounds or less, or not exceeding fifty cents per pound actual weight for any shipment in excess of 100 pounds, the value may be released by inserting 'not exceeding $50/ Or ‘not exceeding fifty cents per pound/ in which case the company’s liability is limited to an amount not exceeding the value so declared or released.” “3 P. M.”</p> <p>There are the following material provisions on the back of the receipt:</p> <p>“1. The provisions of this receipt shall inure to the benefit of and be binding upon the consignor, the consignee, and all carriers handling this shipment * * *.</p> <p>“2. In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding fifty dollars for any shipment of 100 pounds or less, and not exceeding fifty cents per pound, actual weight, for any shipment in excess of 100 pounds, unless, a greater value is declared at the time of shipment, the shipper agrees that the company shall not be liable in any event for more than fifty dollars for any shipment of 100 pounds or less, or for more than fifty cents per pound, actual.weight, for any shipment weighing more than 100 pounds, unless a greater value is stated herein. Unless a greater value is declared and stated herein the shipper agrees that the value of the shipment is as last above set out and that the liability of the company shall in no event exceed that value.”</p> <p>The foregoing was all that is material which transpired between the shipper of the serum, or any one else, and the defendant at the time of the contract of shipment.</p> <p>The further material facts shown in evidence in the case are as follows:</p> <p>That hog-cholera serum is used but for one purpose, namely, for treatment of hogs as a preventive of the disease of hog cholera. That at the time of the shipment aforesaid, such serum could not ordinarily be obtained in Virginia elsewhere than from the Department of Agriculture aforesaid. That the chief clerk of that department did not know “of any other person or firm that handles this serum outside of (his) office.” That the plaintiff knew of no other source in Virginia from which it could be obtained. And that according to the laws of the adjoining States of Tennessee and Kentucky it could not be obtained from the Agricultural Department of those States by a citizen of Virginia, and those departments alone handled the serum in those States. That it is recognized to be effective in preventing the cholera in ninety per cent of cases treated. That the plaintiff being apprehensive of cholera among his hogs (which were sixty-nine in number), and “knowing that Richmond was the place to order this serum from,” on October 5, 1917, wired an order to Mr. Koiner, the Commissioner of Agriculture, to send to him at Wheeler, Va., his express office, serum for 100 hogs. This order was received at the office of said department the next day, and the shipment was delivered to the defendant for transportation that afternoon, as aforesaid.</p> <p>Instead of being shipped from Richmond on October 6th by the 9 P. M. train, as urged by the said department, as above stated, the shipment was not started from Richmond by the defendant until October 13th, seven days later; and there is no evidence in the case tending to justify or explain this delay.</p> <p>The jury found, upon ample evidence to support the ver-diet, that the fifty-two hogs were lost by death from hog cholera by reason of said delay in the transportation of the serum aforesaid, and that the value of the hogs so lost was $1,000, that being the amount of the verdict of the jury in favor of the plaintiff.</p>

<p>Appeal from a decree of the Circuit Court of Montgomery county. Decree for defendants. Complainants appeal..</p> <p>This is a suit in equity which was instituted in the court below by the appellants, the vendees, to compel the specific performance by appellees, the vendors, of a certain execu-tory contract of sale of certain real estate.</p> <p>■The real estate consists of a valuable farm, with dwelling-house and other improvements thereon, giving it a considerable rental value.</p> <p>The contract of sale in so far as it is embodied in writing, is an option to purchase said farm, and is contained in one clause of a lease in writing of said farm by appellees, as parties of the first part, to appellants, as parties of the second part, dated October 25, 1914, for a period of one year next ensuing, expiring with October 25, 1915. . •</p> <p>The contract of sale, as set forth in such writing, is as follows:</p> <p>“For and in consideration of this lease the said parties of the first part do agree with the said parties of the second part that they may have the exclusive right to purchase the said property at any time that they may elect to do so until the first of September, 1915, for the stipulated sum of thirty thousand ($30,000.00) dollars, on terms of not less than $5,000 cash, and a sum of not less than $12,000 dollars by April 1, 1917, and the balance not later than three years additional time from April 1, 1917.”</p> <p>The vendee paid the $5,000 cash payment on August 31, 1915, and the contract of sale which the bill seeks to enforce is said clause in writing and certain additional cotempo-raneous parol agreements not embodied in the writing aforesaid, namely: an agreement by the vendors fixing October 26, 1915, for the completion of the contract of sale on their part by delivery of a deed conveying' the farm to vendees, and an agreement by the vendees to execute and deliver as of the same date their bonds evidencing their obligation for the deferred payments of the purchase money and also to execute a deed of trust conveying said farm as security for the payment of such bonds.</p> <p>The vendors (the appellees) admit that the terms just • mentioned were parts of the cotemporaneous parol contract ■of sale which were not reduced to writing, and they claim that there was a further portion of such agreement which was not expressly embodied in said writing, namely, that the vendees were-to pay and said bonds were to provide for the payment of legal interest on said deferred payments of purchase money from said date, October 26, 1915, fixed for the completion of the contract, as aforesaid, and they claim also that such writing should in this suit be construed by a court of equity as if it did contain such an express stipulation. The vendees (the appellants) take issue upon these positions of the appellees, and they constitute the issues in the cause.</p> <p>The further material facts in the case, as clearly established by a preponderance of the evidence, are as follows:</p> <p>At the time said lease was delivered, the vendors did not regard the clause therein on the subject of the option aforesaid as intended to set forth the complete contract between the parties on the latter subject; and the vendors, unquestionably bona fide, believed and understood at that time that an agreement had been reached by them with the ven-dees that the latter would pay interest on the deferred payments from October 26, 1915, as aforesaid, and that said option clause in the lease, although not thus expressly worded, would be construed and acted upon by the vendees as having that meaning; that Mr. Barnett, one of the ven-dees and appellants, at that time so expressly assured the vendors and stated to one of the vendors that that was also bis understanding of the contract of sale; and the vendors were induced to deliver the lease and option in the form it is by such assurance from Mr. .Barnett.</p> <p>Mr. Simpson, the other appellant, in his testimony, claims that the subject of interest was never mentioned between the vendors and vendees in the negotiations which culminated in the lease and option aforesaid; that he did not know of the belief and understanding aforesaid with which the vendors delivered the written agreement, or of the assurance which his co-vendee, Mr. Barnett, gave on that occasion, as aforesaid; and hence he claims that the bare terms of-the lease must govern the aforesaid subject of interest. But the preponderance of the evidence establishes the fact that Mr. Simpson is mistaken in his recollection that the subject of interest was never mentioned in the negotiations aforesaid — the preponderance of the evidence being that it was mentioned and expressly stipulated for by the vendors in the negotiations aforesaid with Mr. Simpson himself.</p> <p>The decree under review granted the prayer of the appellants and vendees for the specific enforcement of said contract of sale and that the vendors (the appellees) be required to convey said farm to the vendees as of October 26, 1915, only upon condition that the vendees shall submit to the payment of interest on the deferred payments aforesaid from October 26, 1915, on the first deferred payment which is now past due, and shall include obligation therefor in the bond evidencing, and in the deed of trust securing, the payment of the second deferred payment not yet due.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke in an action of assumpsit. Judgment for plaintiff. Defendant assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of ■ Montgomery county in an action of ejectment. Judgment for defendants. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

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

<p>Appeal from a decree of the Circuit Court of Giles county. Decree for plaintiff. Defendant appeals.</p> <p>This is a suit for divorce in which there is an original and an amended bill, neither of which contains any allegation that one of the parties had been domiciled in the State for at least one year preceding the commencement of the suit. '</p> <p>The defendant — the wife — was brought personally before the court by process duly served upon her to answer the original bill. She did not plead in abatement to the jurisdiction of the court, but at term demurred to the original bill and also filed her answer thereto. Subsequently, also at term, on the filing of the amended bill by leave, of court, the defendant did not plead in abatement, but entered an appearance and demurred to and answered the amended bill.</p> <p>The decrees under review are silent as to the demurrer to the original bill, but the demurrer to the amended bill is expressly overruled by one of such decrees.</p> <p>There was evidence introduced in the cause both for plaintiff and defendant, but there is no proof in the record that either the plaintiff' or the defendant had “been domiciled in the State for at least one year preceding the commencement of the suit.”</p> <p>The final decree in the case which is under review granted an absolute divorce to the plaintiff with leave to either party to marry again and awarded costs against the defendant.</p> <p>Further facts in reference to the allegations of the original and amended bills will appear in the opinion of the court.</p>

Decree for defendants. Complainants appeal. The appellants were plaintiffs in the court below, and the object of their bill was to show cause against a certain decree which will be hereinafter more particularly mentioned, which was entered in a certain chancery cause to which they were infant parties defendant at the time of such decree. The appellants are two in number, namely, Reed G. Blizzard and Rawle Payne Blizzard.

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

<p>Error to a judgment of the Circuit Court of Buchanan county on a motion to correct an erroneous assessment. Judgment for plaintiff. Defendants assign error.</p> <p>The opinion states the case.</p>

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

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

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

<p>Error to an order of the Circuit Court of Washington county in habeas corpus proceedings. Judgment for defendant. Plaintiff assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Scott county-in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendants assign error.</p> <p>This action at law was instituted in the court below by the defendant in error, Hagan (hereinafter referred to as plaintiff, or as plaintiff in the court below), by the following notice-of motion for judgment:</p> <p>“To R. W. Cox, L. F. Cox, Mrs. R. W. Cox, Mary Cox, G. B.. Bickley and R. E. Bickley: •</p> <p>“You and each of you are hereby notified that on the 1st day of the next term of the Circuit Court for Scott county (being the September term, 1917), I will move the Circuit Court for Scott county for a judgment against you and each of you for the sum of $2,750, with interest thereon from the 28th day of June, 1917, until paid, the same being due by you to me on account of a certain note executed by all of you as makers, payable to Head & Sloan, bearing date December 28, 1916, and due six months after date, for the sum of $2,500, which said note was indorsed by me and which note not having been paid at maturity by either of you, as you had agreed, demand was made upon me for payment thereof, and payment thereof was accordingly made by me on the 29th day of June, 1917, by the terms of which note it is provided that all homestead exemptions are waived, and in which you and each of you agreed to pay ten per cent attorney’s fees for collection in case payment thereof should not be made at maturity, and by reason of said note and the provisions thereof, and the non-payment thereof by you and the payment thereof by me to the holder thereof, and by reasons of said note having been placed in the hands of attorneys for collection and action hath accrued to me to have and demand of you the said sum of $2,750, above mentioned, which said note is in the following words and figures, to-wit:</p> <p>“Gate City, Va., Dec. 28, 1916.</p> <p>“Due June 28, 1917 — $2,500.</p> <p>“Six months after date we, or either of the makers or indorsers, value received, promise to pay to the order of Head & Sloan twenty-five hundred dollars.</p> <p>“Negotiable and payable at the People’s National Bank of Gate City, Va., with six per cent interest after maturity.</p> <p>“The makers and indorsers of this note hereby waive presentment protest and notice of dishonor, and consent that the time of payment may be extended without notice thereof and hereby waive the benfit of their homestead exemptions as to this obligation; and further agree to pay costs of collection, or ten per cent attorney’s fee in case payment shall not be made at maturity.</p> <p>“R. W. Cox, '</p> <p>L. F. Cox,</p> <p>MRS. R..W. Cox,</p> <p>Mary Cox,</p> <p>G. B. Bickley,</p> <p>R. E. Bickley.</p> <p>“Which said note was endorsed as follows:</p> <p>“C. F. Hagan,</p> <p>Head & Sloan,</p> <p>By D. C. Sloan.</p> <p>“Respectfully,</p> <p>Charles F. Hagan,</p> <p>By Robert L. Pennington, Attorney.”</p> <p>On the calling of said notice of motion for judgment, the defendants, L. F. Cox and Mary Cox, offered two special pleas, designated as plea No. 1 and plea No. 2, which are as follows:</p> <p>“Plea No. 1.; — This day came the defendants, L. F. Cox and Mary Cox, by counsel, and say that the plaintiff ought not further to have and to maintain his action against them at this time because the said note, and the sum demanded in the notice, is the note and the amount due and owing by the Sulphur Springs Lumber Company, a partnership composed of R. W. Cox and G. B. Bickley, and said money was put and placed into the business of the said Sulphur Springs Lumber Company and was used therein, and these defendants further say that the said firm of the Sulphur Springs Lumber Company and the members of said firm, viz: R. W. Cox and G. B. Bickley, have been duly adjudged bankrupts, by the District Court for the Western District of Virginia, and the said proceeding is now pending in said court. These defendants further say that the said note was filed as a part of the indebtedness of said partnership and the members thereof. These defendants are only sureties on said notes, and the plaintiff recognized the truth of this plea by filing the said note, or proof thereof, with the referee in bankruptcy, to whom the aforesaid bankruptcy proceeding was referred.</p> <p>“The foregoing plea was sworn to before me September 5, 1917. D. C.”</p> <p>“Plea No. 2. — This day came the defendants, L. F. Cox and Mary Cox, by counsel, and say that the plaintiff ought not to have and to maintain his action for the ten per centum attorney demanded in said notice because the said sum demanded is unreasonable, unjust, inequitable, unfair and oppressive. And this, defendants are ready to verify.”</p> <p>The plaintiff thereupon objected to the filing of such pleas, and the court sustained the objection, to which action of the court the two defendants, who are the plaintiffs in error, excepted. The record does not disclose whether any specific grounds of objection to the pleas were assigned before the court below or whether such specification was asked for there by the plaintiffs in error.</p> <p>Upon such objection to the pleas being sustained as aforesaid, the plaintiffs in error, did not plead the general issue or interpose a demurrer or any other plea in defense of the action or attempt to do so, at that time or during that term of the court.</p> <p>The other defendants interposed no defense whatever to the action, and the following entry was made by the clerk on the court docket:</p> <p>“C, F. Hagan</p> <p>vs. Notice of motion.</p> <p>“L. F. Cox, et als.</p> <p>“Judgment against Mrs. R. W. Cox and R. E. Bickley (see papers).</p> <p>“(Order entered at September term. 1917.)”</p> <p>And cn a subsequent day of the same term of court, to-wit. on Thursday, September 13. 1917. judgment was en-tere'1 iu favor of C'm nlamtiff against the defendants, Mrs. R. W. Cox and R. E. Bickley, “for the sum of twenty-five-hundred dollars ($2,500), with interest from the 28th day of June, 1917, until paid, and the costs of this suit, together with ten (10) per cent attorney’s fee thereon.”</p> <p>No other order was entered and no. other memorandum was made concerning the case by the clerk or judge at that term of the court.</p> <p>At the January term, 1918, of the court the plaintiff' moved the court to enter a nunc 'pro tunc order giving judgment in his favor against the defendants, who are the plaintiffs in error.</p> <p>The record does not disclose on what ground such motion-was made.</p> <p>When the plaintiff, by counsel, asked the court at its-. January term for such nunc pro tunc order, the plaintiffs-in error offered and asked the court before such order was-entered to be allowed to file two additional pleas, designated plea No. 3 and plea No. 4, which are as follows:</p> <p>“Plea No. 3. — The defendants, L. F. Cox and Mary Cox,, come and say that the plaintiff ought not to have and to maintain his action for the ten per centum attorney’s fee in the notice of motion for judgment demanded, because the said notice shows that said C. F. Hagan is an indorser of the note sued -on, and does not show that he paid nor that he was legally bound to pay said attorney’s fee. And of this they put themselves upon the country, and this they are ready to verify.”</p> <p>“Plea No.’ 4. — The defendants come and say that the said C. F. Hagan ought not to have and to maintain his action for the sum in the notice demanded because the said note was executed by R. W. Cox and G. B. Bickley, and these defendants were only indorsers on the note, as was the plaintiff. The note was executed for the benefit of the Sulphur Springs Lumber Company, composed by R. W. Cox and G. B. Bickley, and the money procured went into the business of said company. The plaintiff knew at the time that these • defendants were only indorsers and jointly liable with him. The plaintiff is only entitled to recover the pro rata amount due by these defendants as indorsers, because each indorser ■ assumes the same liability as every other. And this they are ready to verify.”</p> <p>The plaintiff thereupon objected to the filing, of such pleas,, and the court sustained the objection.</p> <p>The record is the same in its lack of disclosure, with re- - spect to whether any specific grounds of objection were assigned before the court below to these pleas or were called' for there by the plaintiffs in error, as is noted above with regard to the pleas Nos. 1 and 2, aforesaid. The record is also the same upon the point that upon the objection to pleas Nos. 3 and 4 being sustained the plaintiffs in error interposed no further defense to the action. And so far as the record discloses, there was not at any time a trial of the case as if upon any issue joined.</p> <p>The court, thereupon, at the January term, 1918, on saidmotion of the plaintiff, entered the nunc pro tunc order under review as an order which “should have been entered at ’, the September term, 1917,” which order rendered judgment in favor of the plaintiff against the plaintiffs in error for the sum of $2,750 “with interest from the 28th day of June. 1917, until paid, and the costs of this action, the amount claimed in the plaintiff’s notice of motion.”</p>

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

<p>Error to a judgment of the Circuit Court of Russell county in an action of ejectment. Judgment for defendants. Plaintiffs assign error.</p> <p>The opinion states the case.</p>

<p>1. Assumpsit&emdash;Verification of Plea&emdash;Code of 190k, Section S2S6.&emdash; Plaintiff brought his action of assumpsit against the defendant to recover damages for failure to deliver according to contract certain coal which he had purchased. The case was regularly matured at the rules, and, at the next succeeding term, the defendant appeared and pleaded non-assumpsit, and issue was joined thereon and the case was continued. The plea was not sworn to, but as this was not an action on a contract for the payment of money, but a contract to do a collateral thing, if it was necessary that the plea should have been sworn to, the plaintiff waived the provision of the statute which was enacted for his benefit, as he had the right to do. Code of 1904, section 3286.</p> <p>2. Pleading&emdash;Motion to Dismiss&emdash;Motion made by Person not a Party to the Suit&emdash;Case at Bar.&emdash;Plaintiff brought his action of assumpsit against the defendant to recover damages for failure to deliver according to contract certain coal which he had purchased of the Domestic Coal Company. The declaration averred that the Domestic Coal Company had, in due form, changed its name to that of the Carter Red Ash Collieries Company (defendant), and that the latter company had taken over the contracts of the Domestic Coal Company, with all liabilities on account of the same. It also averred that the defendant was a corporation. There was no demurrer to the declaration. Defendant appeared and pleaded non-assumpsit. At the next term of the court, after issue had been thus joined, an administrator of the estate of one E. R. Carter, who was not a party to the action, moved that the plea of the general issue filed by the defendant be withdrawn, which motion was resisted by the plaintiff, and the court allowed such plea to be withdrawn, to which ruling of the court the plaintiff excepted. The administrator then tendered his motion in writing supported by affidavit, to dismiss the case upon the grounds that the Carter Red Ash Collieries Company was not a corporation; that the name of Domestic Coal Company has never been changed; and that Carter Red Ash Collieries Company is not the new or changed name of Domestic Coal Company, to the filing of which motion the plaintiff objected which objection was overruled.</p> <p>Held: That the court erred in dismissing the case on this motion by a person not a party to the action.</p> <p>8.Pleading — Defense by Demurrer or Plea — Motion to Dismiss.— In actions at law where no question is raised as to the validity of the process and the due execution thereof, and the court has jurisdiction of the subject-matter and the parties, defense can only be made by demurrer or plea. A motion cannot be made to dismiss a case because there is no liability on the defendant to the plaintiff.</p> <p>4. Pleading — General Issue — Motion to Dismiss. — A defens.e which goes to the foundation of the plaintiff’s right of recovery, and denies facts which the plaintiff is obliged to prove in order to maintain his action, amounts to the general issue and hence should be so pleaded and cannot be set up by motion to dismiss the case.</p> <p>5. Pleading — Parties to Action — Plea or Motion by Person not a Party. — One who is not a party to the suit cannot tender a plea of the general issue or any other plea in the cause, nor can he, indirectly by motion to dismiss, accomplish any such result. Not being before the court he cannot be either re-required or allowed to plead.</p> <p>6. assumpsit — Pleading—General Issue — Motion. — Matter which amounts to the general issue in assumpsit must be so pleaded and cannot be set up by motion.</p> <p>7. Assumpsit — General Issue — Scope of Plea. — The general issue of non-assumpsit on an unsealed contract is one of the broadest general issues known to our system of pleading, and it is said that anything may be shown under it except tender, bankruptcy, and the act of limitation, and that these defenses are excepted because they do not contest liability, but only that no action can be maintained therefor.</p> <p>8. Corporations — Pleading—Denial of Incorporation — Verification of Plea. — If a defendant sued as a corporation desires to contest the fact of its incorporation and to throw upon the plaintiff the necessity of proving it, it is necessary, under section 3280, Code of 1904, that with the plea which puts the matter in issue, there should be an affidavit denying such incorporation.</p> <p>9. Corporations — Affidavit Denying Incorporation — Assumpsit — Plea in Writing. — If an affidavit accompanies a plea of non-as-sumpsit denying incorporation, it is not necessary that the plea should be in writing.</p> <p>10. Pleading — Withdrawal of Plea — Motion by Person not a Party to the Suit. — In the instant case the trial court erred in allowing the plea of non-assumpsit filed by the defendant to be withdrawn on the motion of the administrator, who was not a party to the action. The defendant alone, in person or by its attorney, could withdraw its plea.</p>

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

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

<p>Appeal from a decree of the Circuit Court of Wise county. Decree for complainant. Defendants appeal.</p> <p>The opinion states the case. ,</p>

<p>Error to a judgment of the Circuit Court of Campbell county.</p> <p>The opinion states the case.</p>

<p>1. Venue — State Must Prove Venue. — In a prosecution for larceny the Commonwealth is as much bound to prove the venue as to prove the larceny itself.</p> <p>2. Venue — Proof—Circumstantial Evidence — Presumption. — The ■ evidence to prove venue may be either direct or circumstantial. If the evidence raises a violent presumption that the offense was committed in the county mentioned in the indictment, it will be sufficient.</p> <p>3. Venue — Sufficiency of Proof — Case at Bar. — An indictment charged accused with grand larceny in the city of Petersburg. It appeared from the evidence that the owner of.the property stolen called in the “local police officers,” who proceeded to make an investigation and arrest, which resulted in the indictment and trial of the accused in Petersburg. The “local police officers” were unquestionably Petersburg officers, therefore there was small room to doubt that the owner of the property telephoned to them, and that they responded to her call, because her residence was in the city and therefore within their jurisdiction.</p> <p>Held: That this circumstance, together with other evidence in the case, was sufficient to establish the venue in Petersburg.</p> <p>4. Venue — Proof of — Inquiry Before Verdict. — It seldom happens that there is any real merit in an exception based upon a failure to prove venue, unless the question has been developed and made the subject of serious inquiry before verdict. Criminals are supposed to be, and usually are, indicted where they have committed the crime. The necessity of proving the locality is known to practically every tyro in the criminal practice.</p> <p>5. Venue — Proof of — Inquiry Before Verdict — Presumption in Far-vor of Ruling of Lower Court — Case at Bar. — The record in the instant case showed that the court, counsel, jurors, and witnesses must necessarily have been -familiar with the location of the home of the owner of the stolen property in the city where the venue was laid. No question was raised or hinted at as to the local jurisdiction of the court, until after the ver-diet was rendered. A motion was then made for a new trial on the ground that the venue had not been proved, and this motion was promptly overruled by the trial court.</p> <p>Held: That the usual presumption favoring the correctness of a judgment of a trial court applied to the action of. the court in overruling the motion. Moreover, the facts and circumstances appearing in the evidence raised a presumption that the house in question was within the local jurisdiction of the court.</p> <p>6. Laeceny — Grand Larceny — Combination of Successive Larcenies. —The general rule is that the taking of property at different times, though from the same place and the same owner, will constitute separate offenses; and no aggregation of successive petit larcenies, not constituting parts of a continuous transaction, but each complete and distinct in itself, can be combined in one prosecution, so as to make a case of grand larceny.</p> <p>7. Larceny — Grand Larceny — Combination of Successive Larcenies. —A series of larcenous acts, regardless of the amount and value of the separate parcels or articles taken, and regardless of the time occupied in the performance, may and will constitute, in contemplation of law, a single larceny, provided the several acts are done pursuant to a single impulse and in execution of a general fraudulent scheme.</p> <p>8. Larceny — Grand Larceny — Series of Larcenies — Instructions— Evidence to Support. — On an indictment for grand larceny, the trial court after instructing the jury, at the request of the accused, that if they believed that the stolen articles were taken at substantially different times, the burden was upon the Commonwealth to prove that the defendant took goods of the value of $50 or more at one time, added “unless they believe that the accused, in pursuance of a single impulse, stole the articles mentioned in the indictment so as to form a continuous action; then in that case the accused may be found guilty of grand larceny.” It was claimed by accused that there was no evidence upon which to base this addition to the instruction. The proof plainly tended to show that the articles were stolen, that they disappeared during a brief absence from home of the owner.</p> <p>Held: That this was enough to warrant the inference that accused took the articles under a single impulse, and that, whether she removed them in parcels or as a whole, she was simply carrying out a general purpose to steal them all. Moreover, except for accused’s own testimony, contradicted by the owne^ of the property, in which she claimed that some of the goods were given, or lent, or sold to her, there was no proof that she - did in fact carry them off at substantially different times.</p> <p>9. Larceny — Possession of the Stolen Property — Burden of Proof.— The mysterious disappearance of articles alleged to have been stolen was evidence that they had been taken with criminal intent. Their possession by the accused indicated that she had • stolen them all, and the burden of showing how she got them was thereby shifted to her.</p> <p>10. Instructions — Two Theories in a Single Instruction. — It was objected by accused in the instant case that the instruction referred to in the eighth syllabus was contradictory, unintelligible and misleading, in that it presented two theories in a single instruction.</p> <p>Held: That there was no merit in such objection. A far more common and meritorious proposition, and one the disregard of which has frequently resulted in reversals, is that the failure to notice in the instructions on one side a theory relied upon and embodied in the instructions for the other, results in apparent contradiction, tending to confuse and mislead the jury.</p> <p>' 11. Larceny — Grand Larceny — Instructions—Value of Property.— Where the jury in the first branch of a charge were told that accused could not be convicted of grand larceny unless she had taken goods of the value of $50 or. more at one time, an amendment, following as a part of the same sentence, merely explaining to the jury the circumstances under which they might regard the taking of the goods in parcels at different times as equivalent in law to taking them at one time, is not open to the objection that it omitted any reference to the value of the property.</p>

<p>Error to a judgment of the Corporation Court of city of Roanoke.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Dickenson county.</p> <p>The opinion states the case.</p>