Volume 130 — Virginia Reports

<p>Appeal from a decree of the Court of Land Registration for the city of Richmond in a proceeding to register title to property under the uniform land registration act. Decree for defendants. Petitioner appeals.</p> <p>The opinion states the case.</p>

<p>1. Sales — Action by Purchaser- — Instructions.—In an action by a purchaser of peanuts against the seller to recover a refund on three hundred and eighty-one bags of the peanuts as wet and unfit for use, it appeared that there was an agreement by which the purchaser was to take four thousand bags of peanuts from the seller. It also appeared that fifty additional bags of peanuts were taken by the purchaser in order to fill out a car, and that he had no opportunity for inspecting them. It was agreed that if these fifty bags of peanuts turned out to be wet, the purchaser would notify the seller and deduction should be made on that account.</p> <p>Held: That an instruction directing a verdict for defendants as to the fifty bags, unless the fifty bags which were found to be wet were shipped by mutual mistake, was erroneous, as not in accord with the agreement of the parties.</p> <p>2. Assumpsit — Parties — Joint Defendants — Amendment.—A joint action of assumpsit was brought against two defendants. The record did not disclose any" joint contract upon which the joint action, could be maintained. Plaintiff had the right to dismiss as to one defendant, under section 6102 of the Code of' 1919. This was not formally done, but there was no objection to the introduction of evidence of a separate contract with the other defendant when it was offered, nor any motion thereafter to strike it out. If such objection or motion had been made, plaintiff could have amended by striking out the name of the defendant not a party to the contract.</p> <p>Held: That defendants not having adopted either one or the other of these courses, but having gone to trial on the merits as if the declaration had been so amended, the Supreme Court of Appeals will so treat it.</p>

Judgment for plaintiff. Defendant assigns error. This is an action by notice of motion, instituted by the defendant in error, a vendor of certain real estate (who will be hereinafter called plaintiff), against the plaintiff in error, the vendee of such real estate (hereinafter called defendant), to recover $1,327.95 damages caused the plaintiff by the defendant’s failure to comply with the contract of sale by paying the unpaid balance of the contract price on the day fixed…

Decree for complainant. Defendants appeal. The appellee, E. M. Terry, instituted this suit in equity in the court below to remove an alleged cloud upon his title to a certain large tract of land known as “Beech Forest.” The Beech Forest tract of land was conveyed to the appellee, Terry, by deed from one Irvin Bain and wife, of date January 7, 1914, “subject to a certain contract of sale made to Joe W. Jirasek, dated June 9, 1913,” and the appellee, as such grantee, agreed…

<p>). Issues to the Jury — Failure to Order as Error — Abiding by Verdict. — In cases of exceptional difficulty and conflict in testimony, it is error for the court to fail to order an issue out of chancery, on its own motion, and as a general proposition when an issue is properly ordered it is the practice, unless good cause appears for the contrary course, for the chancellor to abide by the verdict.</p> <p>2. Issues to the Jury — Sound Legal Discretion. — The object of an issue is to satisfy the conscience of the chancellor in a doubtful ease. An issue is not directed merely because the evidence is contradictory. The propriety of ordering an issue is determined by the application of sound legal discretion to the circumstances of the situation.</p> <p>3. Issues to the Jury — Discretion of Court — Section 3381 of the Code of 1904, Section 6246 of the Code of 1919. — It was not intended by section 3381, Code of 1904 (section 6246, Code of 1919), to change the firmly established rule of law that the chancellor is to properly exercise his discretion on sound legal principles of reason and justice. Any other interpretation of the statute would make the whole matter of directing ah issue one of right and not of discretion on the part of the court.</p> <p>4. Issues Out op Chancery — Sufficiency of Affidavit. — Petitioners in their affidavit stated that they would introduce “a large* number of witnesses who would contradict the witnesses of the complainant, and that there would result a great conflict in the testimony to be offered by the parties to the suit, presenting issues of fact which are necessary to be determined, out of a mass of conflicting testimony, in order to arrive at a correct decision of the casé,” and therefore the court was asked to direct an issue out of chancery.</p> <p>Held: That the court erred in directing an issue upon this aifldavit, and that the case should therefore be considered on the merits, as if no issue had been awarded.</p> <p>5. Disorderly Houses — Proceeding Against Under Acts of Assembly 1916, p. 780 — Sufficiency of Evidence — Decision of Trial Court. — In a proceeding by bill in equity under Acts of 1916, p. 780 (Code 1919, §1521 et seq.), for the purpose of having a certain house and lot and the contents of the house declared a nuisance, enjoined and abated as provided by law, the trial court heard the testimony of the witnesses and balanced the positive testimony of the witnesses for the Commonwealth against the positive and negative testimony of the witnesses for the defendants. Heard the testimony of the defendant and her husband in contradiction of the testimony of witnesses for the Commonwealth. And from its opportunities of hearing and seeing the witnesses, was in a position to appraise the relative value of the evidence submitted. The trial court concluded that the charges of complainant’s bill were established, and with that Conclusion the Supreme Court of Appeals was not disposed to disagree.</p> <p>'6. Appeal' and Error — Respect to Which Findings of Lower Court Entitled. — The decree of a trial court is entitled to great respect, and is generally presumed to be correct. Indeed, when a trial court hears a ease, and reahces a conclusion upon oral testimony, that conclusion is substantially entitled to the same credit as the verdict of a jury.</p> <p>7. Disorderly Houses — Acts of 1916, p. 780 — Constitutionality of Act — Title.—.Act of 1916, p. 780 (Code 1919, § 1521 et seq.), against .houses of ill fame, is not unconstitutional in that the provision of forfeiture contained in the act was not embraced in the title.. The title of the act is, in part, “to abate houses of lewdness,” etc. The provision of forfeiture is punishment inflicted upon persons conducting houses of lewdness, and is cognate to. and an appropriate part of abatement.</p> <p>8. Statutes — Constitutionality—Title and Object. — Section 52 of ' the Constitution of 1902 is to be liberally construed in determining whether an act is broader than its title, and the act is to be .upheld if practicable.. Although a statute refers to many things of diverse natures the title will be sufficient if the subordinate provisions of the statute may be fairly regarded as in furtherance of, and as facilitating the accomplishment of, the general object expressed in the title.</p> <p>9. Disorderly Houses — Acts .of 1916, p. 780 — Constitutionality— Due Process of Law. — Acts of 1916, p. 780 (Code 1919, § 1521 et ,seq.)j providing for the abatement of houses of ill fame is not in conflict, with the due process of law provisions of the Constitution of the United States and of Virginia.</p> <p>10. - Disorderly Houses — Acts of 1916, p. 780 — Constitutionality— Due Process of Law — Case at Bar. — The provisions as to taking, or damaging, private property in the Constitution of Virginia and of the United States have no relation to a forfeiture of property imposed upon an owner who has been convicted of using the same for unlawful and immoral purposes. And in the instant case, the abatement of a house as a nuisance under Acts of 1916, p. 786 (Code 1919, § 1521 et seq.), the owner had due process of law when he was impleaded on a specific charge, the punishment of which, in part, was forfeiture, and was afforded the opportunity to make his defense.</p> <p>11. Disorderly Houses — Abatement—Constitutionality of Acts of 1916, p. 780 — Police Power. — Acts of 1916, p. 180 (Code 1919, § 1521 et seq.), provides that whoever knowingly erects, uses, or maintains a building for the purpose of lewdness, assignation, or prostitution, is guilty of a nuisance, and the building and ground so used, and the furniture and fixtures, are also declared to be a nuisance, and shall be abated as provided. The court is authorized, once the acts forbidden are established, to order the sale of the fixtures, and to decree the effectual closing of the building, or place, against its use for any purpose for one year, unless sooner released.</p> <p>Held: That the act is a valid exercise of the police power.</p>

<p>Appeal from a decree of the Circuit Court of Madison county. Decree for complainants. Appellant and intervener appeals.</p> <p>The opinion states the case.</p>

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

<p>Error to a judgment of the Circuit Court of the city of Norfolk in a contested will case. Judgment for contestants. Proponent assigns error.</p> <p>The opinion states the case.</p>

Decree for complainant. Defendants appeal. This suit in equity was instituted in February, 1920, by the appellee.

<p>Appeal from a decree of the Circuit Court of Culpeper county. Decree for defendants. Complainants appeal.</p> <p>This is a suit in equity instituted by the appellants to set up and establish the equitable ownership in them of a certain tract of fifty acres of land, and an implied or resulting trust in, or an equitable lien upon, another and adjacent tract of 121 acres of land, all located in Culpeper county, Virginia; thie trust or lien asserted being to the extent of about $2,000 of a trust fund at one time belonging to appellants in remainder, which sum was many years ago invested in the purchase of such 121 acre tract.</p> <p>There was a demurrer to the bill by J. G. Hiden, one of the appellees, on several grounds, among which is the ground that the claims and demands of the appellants are barred by the statute of limitations. The decree under review sustained the demurrer to the bill on that ground, and dismissed the bill.</p> <p>The material facts, as they appear from the allegations of the bill, are as follows:</p> <p>By deed dated July 11, 1871, and duly recorded August 12, 1877, Benjamin Crawford, a grandfather of appellants, in consideration of the natural love and affection which the said Benjamin Crawford bore to his daughter, Nannie Cochran (elsewhere in the record called “Nannie S. Cochran”), the wife, of James Cochran (the two last named being the mother and father of appellants, who were their only children), conveyed to the said James Cochran, a certain tract of 200 acres of land, which included the fifty-acre tract above mentioned, upon the following trust as set out in such deed, namely:</p> <p>“To have and to hold the said tract or parcel of land * * * unto him the said James Cochran, in trust, for the joint use of him, the said James Cochran and Nannie, his wife, during their joint lives, free and clear of and from all manner of charge and encumbrance of him the said James Cochran, and for the joint use of the survivor of them and the children of the said Nannie Cochran during the life of said survivor; and at the death of said survivor that the same shall pass in fee simple to the- at law of the said Nannie Cochran — Full power and authority is hereby invested in said trustee by and with the consent of said Nannie Cochran evidenced by her uniting with him by privy examination in the deed conveying the same, to sell and convey the said property, but the proceeds of sale shall be held and invested upon like trust as hereinbefore set forth with continuing power to change the investment upon the same terms; and the said Benjamin Crawford doth hereby declare that this conveyance is not made from any want of confidence in his said son-in-law, James Cochran, but that it is made with his full consent and at his request, in order that a sure and permanent home and support may be provided for his wife and children beyond the contingency of his personal success or failure in business.”</p> <p>By deed dated March 20, 1879, and duly recorded April 12, 1879, James Cochran and his said wife (the latter uniting therein by privy examination per certificate of a notary public), for the consideration of $6,000 purchase money, conveyed away, to R. T. Barton, trustee, 150 acres, of said 200 acres of land, leaving the fifty-acre tract which is first above mentioned. •</p> <p>At or about the time of the deed last mentioned, thé said James Cochran, at the price of about $5,850, purchased from one James Crawford and wife the 121 acre tract of land above mentioned, and used about $2,000 of the purchase money derived from the sale of the 150 acre parcel of land aforesaid, in making the cash payment for such 121 acre tract, leaving about $3,850 unpaid purchase money therefor owing to the said Crawford and wife.</p> <p>James Cochran died on August 17, 1883, before any further purchase money was paid for said 121-acre tract of land, and up to his death no conveyance thereof had been made by Crawford and wife.</p> <p>By deed dated May 28, 1884, and duly recorded July 24, 1884, the said Crawford and wife and the said Nannie Cochran united in a conveyance to one James F. Robertson of both the said. 121 and fifty-acre tracts of land. This deed recites that the said Crawford and wife “did sell” the said 121 acres of land “to the said Nannie S. Cochran, but never made her a deed for the same, and there remains due to the said Crawford and wife on the said land the sum of $3,850.00.” It also appears from the recitals in such deed that the said Nannie Cochran sold to the said James F. Robertson both the said 121-acre and fifty-acre tracts of land, making 171 acres of land, at the price of $40 per acre, aggregating $6,840, subject to a survey thereafter to be made, $2,280 of which purchase mony was paid cash by said Robertson, he giving his three bonds for the residue, bearing interest. It also appears from the recitals in this deed that the fifty-acre parcel of land included in the larger tract of 200 acres above mentioned “was conveyed by said Benjamin Crawford to James Cochran, trustee, by deed of 11th July, 18,71.” By the deed of May 28, 1884, also, a vendor’s lien was “reserved to the said Nannie S. Cochran on the said land to secure the payment of the three bonds of said Robertson before mentioned.” The deed, however, purports to convey .both the said 121 and fifty-acre tracts of land to the said Robertson in fee simple “with general warranty of title.”</p> <p>James F. Robertson took actual possession of said 121 and fifty-acre tracts of land upon the execution of the last named deed to him, and continued in such possession until April, 1890, claiming title to all of such land in fee simple under such deed. He on the last named date conveyed the same land as in fee simple, to his wife, who continued such possession and claim of title until November 10, 1890, when she by deed in which her husband united conveyed the same land as in fee simple to F. A. Dangerfield and R. J. Gray, who continued such possession and claim of title until they conveyed it. The property was conveyed as in fee simple by the said Dangerfield and Gray and by various other mesne conveyances of the same character down to one E. P. Duncan, who, by deed dated October 24, 1911, conveyed the same as in fee simple to the said J. G. Hiden, one of appellees, who has ever since held actual possession thereof under claim of title undér the last named deed and under the various deeds in his chain of title aforesaid. All of the deeds in said chain of title from, said James F. Robertson down to and including the deed to J. G. Hiden, aforesaid, were duly recorded.</p> <p>The bill contains the following express allegation on the subject of adverse possession of said fifty and 121-acre tracts of land, to-wit:</p> <p>“* * that said J. G. Hiden and his predecessors in title, for more than fifteen years, have held uninterrupted possession of said property, claiming to own the same in fee simple under all of said deeds back to and including said exhibit No. 1” (the deed of July 11, 1871, from Benjamin Crawford to James Cochran, trustee, aforesaid), “but without ever in any way putting complainants on notice, or upon inquiry, that the same was being held adversely to complainants.”</p> <p>It appears from the bill that appellant, Benjamin C. Cochran, was bom September 11, 1868, and hence became 21 years of age on September 11, 1889. That appellant, Patsy C. Graves, was born August 17, 1870, and so became twenty-one years of age on August 17, 1891. The latter married some time after she became twenty-one years of age.</p> <p>The said Nannie Cochran, the mother of appellants, died in Bristol, Va., on March 24,. 1902:</p> <p>Appellant, Benjamin C. Cochran, left Culpeper in the year 1887, and after a few years located in Bristol, Va., where he has resided the greater part of his time since he deft Culpeper.</p> <p>Appellant, Patsy C. Graves, and her mother, moved from 'Culpeper to Bristol on or about April 2, 1894, where the former afterwards married and where she has resided ever since.</p> <p>The said Nannie Cochran was an invalid all the time after -she moved to Bristol, and for some years prior to that time. She never had any business experience and understood business transactions very imperfectly.</p> <p>The part of the purchase money for the 121 and fifty-acre tracts of land sold and conveyed to James F. Robertson, as aforesaid, after payment to Crawford and wife of the balanee of purchase money for the 121 acre tract of land, with interest, owing to them, as aforesaid, was never reinvested in accordance with the trust and limitations with which the same was charged by the deed of July 11, 1871.</p> <p>There is filed with the bill, as exhibit No. 4, the following letter from Messrs. Hiden & Bickers, attorneys for the said J. G. Hiden:</p> <p>“EXHIBIT No. 4.</p> <p>“J. G. Hiden</p> <p>“R. A. Bickers</p> <p>“Hiden & Bickers</p> <p>“Attorneys and Counsellors at Law “Culpeper, Virginia.</p> <p>“July 23, 1918.</p> <p>“Mr. Benjamin Cochran,</p> <p>“Druggist,</p> <p>“Bristol, Virginia.</p> <p>“Dear Mr. Cochran:</p> <p>“We are writing you at the request of Mr. J. G. Hiden, the present owner of the ‘Belle Parc Farm,’ near this town, which was formerly owned by your m,other, Nannie S. Cochran.</p> <p>“It appears from the records of Culpeper county that in 1871 Benjamin Crawford conveyed to James Cochran, as trustee, 200 acres of land, a part of the ‘Belle Parc Farm,’ to be held for the use and benefit of James Cochran and Nannie S. Cochran during their natural lives, and then to the survivor and at the death of the survivor to the heirs at law of Nannie S. Cochran, with authority to the trustee to sell ‘upon Nannie S. Cochran signing and acknowledging said deed according to law.’</p> <p>“It further appears that James Cochran, trustee, and Nannie S. Cochran conveyed 150 acres of the above 200 acres to R. T. Barton, trustee, in 1879, leaving fifty 'acres in the name of James Cochran, trustee, for the benefit of Nannie S. Cochran, etc.</p> <p>“It further appears that in 1884 Nannie S. Cochran having bought from James W. Gradford and Cornelia Crawford,'his wife, 204.acres, the balance of the ‘Belle Parc Farm,’ joined in deed from James Crawford and Cornelia Crawford in conveying the 204 acres standing in the name of James Cochran, trustee, to James F. Robertson, in which deed James Cochran, trustee, did not join. Therefore,, the legal title is still outstanding as to the fifty acres standing in the name of James Cochran, trustee.</p> <p>“At this time wishing to remove the above mentioned defect as to the above-mentioned fifty acres, we would ask for the following information:</p> <p>“The time, date and place of the death of James Cochran.</p> <p>“The time, date and place of the death of Nannie S. Cochran, if she is not living.</p> <p>“The names, ages and place of residence of the various heirs at law of Nannie S. Cochran and James Cochran.</p> <p>“If you will furnish us the above information we will draw the necessary papers to remove this technical defect as to the title to the fifty acres of land and forward to the various heirs at law of Nannie S. Cochran to sign; of course, presuming that they have no objection at this time to remedying this defect in the title. Their doing this would save a great deal of expense and time to the present owner, inasmuch as if we cannot get the proper papers signed in the nature of a quit claim deed we would have to take the necessary steps in a chancery court to remove this cloud from the title.</p> <p>“Hoping you will see fit to furnish us with the above information in the enclosed stamped envelope, we beg to remain,</p> <p>“Very truly yours,</p> <p>“HIDEN & BICKERS.”</p> <p>“RAB/M.</p> <p>The bill contains the following express allegations with respect to the positions taken, by appellants:</p> <p>“VIII. That complainants were infants less than three years of age when said deed of July 11, 1871, Exhibit No. 1, was made, and knew nothing about same being made, and knew nothing of the trust thereby created or of the remainder interest therein conveyed to them or for their benefit, and they never learned that they had any right, title, claim or interest in and to said property, or any part thereof, until Benjamin C. Cochran, one of the complainants, received the accompanying letter dated July 23, 1918, from Messrs. Hiden & Bickers, attorneys for J. G. Hiden, said J. G. Hiden being the person now in possession of said property, and one of the defendants to this bill. Said letter is filed herewith as-Exhibit No. 4, and is here referred to for all purposes. Prior to the receipt of said letter, nothing ever occurred to suggest or put them on inquiry in regard to their rights in and to said property. Since the receipt of said letter, they have had the matter investigated, and have ■ ascertained such of the foregoing facts as they did not know. * * *”</p> <p>“IX. Fr-om the facts alleged and the exhibits filed in -the foregoing sections of this bill, the following alternative allegations are proper, and therefore complainants are advised and allege:</p> <p>“A. That by virtue of said deed of July 11, 1871, Exhibit No. 1, complainants acquired the remainder in the property thereby conveyed, and not properly sold and conveyed in accordance with the provisions thereof; and in the proceeds of sale of any part thereof properly sold and conveyed, and in any property in which such proceeds were reinvested; and that their title thereto became absolute at the death of their mother on March 24, 1902; that at the time of the execution of said deed of May 28, 1884, Exhibit No. 3, said Nannie Cochran, being the life tenant, held the title and possession of said property in privity with complainants; that said James F. Robertson took said title and possession from said Nannie Cochran knowing that only the life estate of Nannie Cochran was being vested in him as owner, and that the remainder was vested in complainants, and said James F. Robertson, and his successors in title down to and including said J. G. Hiden continued to take said title and hold said property in privity with complainants, until a few months ago, when said J. G. Hiden refused to recognize the rights of complainants in and to said property; or</p> <p>“B. That said James F. Robertson and his successors in possession of said property down to and including said J. G. Hiden took said property charged with the express trust created by said deed of July 11, 1871, Exhibit No. 1, and referred to in said deeds of March 20, 1879, Exhibit No. 2, and May 28, 1884, Exhibit No. 3, and continued to hold possession of said original fifty acres and the said 121 acres, in which a part of the proceeds of the sale of said 150 acres were invested, charged with said express trust so created by said deed of July 11, 1871, Exhibit No. 1, and the said J. G. Hiden now holds the said fifty acres, and the proportional part of said 121 acres in which said sum of about $2,000 was charged with said trust; or</p> <p>“C. As to said sum of about $2,000.00 which was paid out of said $6,000.00 fund on the purchase price of said 121 acres: By virtue of said express trust so created in said deed of July 11, 1871, Exhibit No. 1, and recited in said deeds as Exhibits Nos. 2 and 3, said 121 acres was and is charged with an equitable lien to secure the payment of said sum of about $2,000.00, with interest thereon from March 24, 1902, the date of the death of Nannie Cochran; or</p> <p>“D. In any event, that said property was so charged with said trust by said deed of July 11, 1871, and complainants’ rights not having been extinguished by any legal or equitable means, they are now entitled to such equitable relief as the nature of their case requires and merits.</p> <p>“X. That said J. G. Hiden has admitted and recognized that said property was and is charged with said trust by giving complainants notice of a motion to substitute a trustee in said deed of July 11, 1871, which motion is now pending on the law side of this court. Said notice was directed to complainants separately, and was served on each of them on December 16, 1918, by the sergeant of the city of Bristol, Virginia. Said notice was in the words and figures following, to-wit:</p> <p>“ ‘To Benjamin Cochran,</p> <p>“ ‘Patsy CL Graves:</p> <p>“ ‘Take notice that I shall on Saturday, December 21, 1918, move the Circuit Court of the county of Culpeper, State of Virginia, to have R. A. Bickers substituted as trustee in a certain deed of trust from Benjamin Crawford to James Cochran, trustee, dated July 11, 1871, and recorded in the clerk’s office of the Circuit Court of Culpeper county, Virginia, in deed book 18, page 446, in the place and stead of the said James Cochran, named as trustee in the said deed, which said trustee is dead. This notice is given you as one of the parties interested or supposed to be interested in the execution of said trust.</p> <p>“ ‘Given under my hand this 14th day of December, 1918.</p> <p>“ ‘J. G. HIDEN’.”</p> <p>It is not alleged in the bill and it does not otherwise appear that the last mentioned notice was acted upon or that any trustee has been substituted in the deed therein referred to; or that appellants were in any way injuriously affected in their rights by such notice or by the letter aforesaid of Hiden & Bickers.</p> <p>In the suit before, us, the appellants on February 18,1919, filed their bill by leave of court. The appellee, J. G. Hiden, appeared on February 25,1919, and filed his demurrer to the bill aforesaid. The decree aforesaid, under review, was entered on November 5, 1919.</p>

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

Error'to a judgment of'.the Circuit Court of Westmoreland county in an action of trespass.on the case. Judgment for plaintiff. Defendant assigns error. The opinion states the case.

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

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

Decree for complainant. Defendants appeal. This suit was instituted by the appellee against the appellants (who will be hereinafter designated plaintiff and defendants, respectively, in accordance with their positions in the court below), having for its object the obtaining of a permanent injunction restraining the defendants from proceeding with the erection of a certain building alleged to be in violation of certain restrictions or conditions contained in the deed from…

<p>Appeal from a decree of the Circuit Court of the city of Richmond in an action of assumpsit. Judgment for defendant, . Plaintiff appeals.</p> <p>The opinion states the case.</p>

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

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

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

<p>1. Parent and Child — Habeas Corpus — Custody of Child. — In controversies. relating to the custody and control of children, the interest of the child is the primary consideration, and, if it is of the age of discretion, it should be consulted, and due weight given to its decision.</p> <p>2. Habeas Corpus — Father and Child — Custody of Child as Between Father and Grandparents — Case at Bar. — A father residing in Tennessee instituted habeas corpus proceedings in Virginia to recover the custody of his daughter, a girl of thirteen, from her maternal grandparents. It appeared from the medical and other evidence that the daughter’s health was bad while residing at intervals with her parents in Tennessee, and improved on returning to her grandparents in Virginia. The girl was of a very sensitive disposition and testified that she strongly desired to remain with her grandparents, of whom she was fonder than of her parents. The mother of the girl had suffered much from extreme nervousness and bad health, but at the time of the trial appeared to be much improved.</p> <p>Held: That the order of the lower court conferring the custody of the child upon her father should be reversed, and the proceeding remanded with directions to keep the same on the docket for such further orders as might prove to be necessary, and that the child might’ elect at any time whether she would go to her parents or remain with her grandparents.</p>

<p>Appea.1 from a decree of the Circuit Court of Pittsylvania county. Decree for defendants. Complainant appeals.</p> <p>The opinion states the case.</p>

Judgment for plaintiff. Defendant assigns error. This is an action by notice of motion instituted by the defendant in error (who will be hereinafter called plaintiff), against the plaintiff in error and one James H. Fletcher, seeking to recover of these two damages for the alleged breach by them of a contract of purchase of cattle from the plaintiff, such contract being alleged to have been entered into by the two last-mentioned parties, jointly and severally.

<p>1. Mandamus — Appeal and Error — Transcript of Record. — If petitioners, members of a social club, were entitled to appeal from an order of the State Corporation Commission merging their club with another, they were entitled to a transcript of the record in the merger proceedings for the purposes of appeal, and if the person required by law to furnish this record refuses to do so, mandamus is the proper remedy to secure such transcript.</p> <p>2. Mandamus — Transcript of Record in Proceedings Before Corporation Commission — Chairman of Commission as Party Defendant. — Subsection (f) of section 156 of the Constitution of Virginia fixes the person to furnish the record in case of an appeal, and imposes upon the State Corporation Commission the duty to file with such record a written statement of the reasons upon which it based its action from which appeal was taken. And where persons are entitled to appeal from an order of the commission, and a transcript of the record is denied them, the chairman of the commission alone is the proper party to mandamus proceedings to obtain the transcript.</p> <p>3. Corporations — Merger—Social Clubs — -Exclusiveness of Remedy Under Section 3822 of the Code of 1919. — The provision contained in section 3822 of the Code of 1919, in regard to the valuation of the interest of dissatisfied members or stockholders in case of the merger of their corporation with another, only applies in those cases in which the corporations seeking to merge have proceeded in all respects by authority of law. The provision, therefore, is not exclusive of the right of dissatisfied members to contest the validity of an order of merger by the State Corporation Commission claimed to be destructive of their rights and interests, and utterly without warrant of law.</p> <p>4. Appeal and Error — Statutory Origin of Appeals. — As a general proposition, appeals are of statutory origin, although in some instances they are afforded directly by the Constitution.</p> <p>5. Societies and Clubs — MembersMp—Right of Members to Oppose Merger of Club with Another. — Membership in a social club entitles the member to certain social opportunties and enjoyments, and affords him an interest, though not a transmissible interest, in the dub property, and an effort by minority members of a club to oppose a merger of the club with another was an effort on the part of such members to assert a material right, an effort to maintain a status that was agreeable to them, and which had been secured under the law, and to oppose the establishment of a new status which to them was objectionable, and, in their contention, in manifest contravention of law.</p> <p>6. Appeal and Error — Corporation Commission — Right of Minority Members to Appeal from, an Order Merging Social Clubs. — In mandamus proceedings against the chairman of the State Corporation Commission to obtain a transcript of the record of merger proceedings before the Corporation Commission respondent insisted that, as petitioners, minority members of one of the clubs merged by the order of the commission, were not formal parties to the proceedings before the commission, they are not entitled to an appeal, even though they sought to become parties, and their petition of intervention was erroneously rejected by the commission.</p> <p>Held: That, under sections 3734, 3833 and 6336, Code of 1919, and the Constitution of 1902, section 156, subsection (d), petitioners were entitled to appeal.</p> <p>7. Appeal and Error — Corporation Commission — Right of Minority Members to Appeal from an Order Merging Social Clubs. — By . section 3833, title 34, Code of 1904, an appeal is given from an order of the commission, to any party in interest. The test to be applied to determine whether a person is entitled to appeal is, to ascertain whether he is a party (person) in'interest. If he is, then he is as definitely given an apeal as the applicant in the proceedings. In the instant case, petitioners, minority members of a social club, were something more than persons in interest. They sought to become parties in interest at the time the application for merger of their club with another was set down for hearing, and exerted every possible effort to secure that status.</p> <p>8. Appeal and Error — Parties to Appeal — Formal Parties. — A litigant who seeks to become a party, and is entitled to become a party to proceedings in which he is interested, and is erroneously rejected, should not be required to seek relief in a roundabout fashion by a distinct and separate suit, but should be regarded, for the purposes of appeal, as possessing the status of one who is a formal party to the proceedings in which his rights and interests are being litigated.</p> <p>9. Corporation Commission — Intervention—Minority Members of Social Club. — While the statutes contain no direct provision for intervention in any proceedings before the Corporation Commission yet it is to be presumed that such intervention is contemplated in proper cases affecting the interests of persons not formal parties to such proceedings, inasmuch as the commission has made provision for intervention. See page 1451, Code of 1919.</p> <p>10. Corporation Commission — Merger of Social Clubs — Appeal by Minority Stockholders. — In the instant case respondents asserted that in the matter of the merger of the social clubs in question, the Corporation Commission proceeded ministerially, and hence minority members of one of the clubs had no right of appeal from the order of merger. But an appeal may be given either in a ministerial proceeding, or where the action is judicial. It is purely a question of intent, to be derived from the language of the General Assembly; nor is it at all clear that the commission was in all respects acting ministerially in the merger proceedings.</p> <p>11. Appeal and Error — Final Judgments and Decrees — Orders of Corporation Commission — Merger of Social Clubs. — Section 3833, Code of 1919, affording an appeal from “any order or decision of the commission,” does not use the word “final,” and there may be an appeal of right from an interlocutory order. Moreover, in'the instant case, the order rejecting the application of the petitioners, minority members of a social club, to intervene in the pending proceeding to merge their club with another and excluding them entirely from participation therein, was, as to them, a final order.</p> <p>12. Appeal and Error — Corporation Commission — Merger of Social Clubs — Fight of Minority Stockholders. — Petitioners, minority members of a social club, who sought to intervene in proceedings before the Corporation Commission for the merger of their club with another, on the ground of lack of jurisdiction of the commission, were not only persons in interest, but were entitled to be heard upon the basic question which they sought to raise, and to appeal from the order of the commission rejecting their application to become parties to the proceeding. Petitioners’ interest in the merger proceedings was direct and vital, and their contention that these proceedings were without warrant of law was fundamental.</p> <p>13. Statutes — Construction—Intention.—The object of all interpretation and construction of statutes is to ascertain the intention of the lawmakers, and this intention is to be gathered from a view of the whole and every part of the statute taken and compared together, giving to every word and every part of the statute, if possible, its due effect and meaning, and to the words .used their ordinary and popular meaning, unless it plainly appears that they were used in some other sense.</p> <p>14. Statutes — Construction—Special and General Intent. — Given a manifest controlling intent, particular words may by construction be impressed with a meaning that will be in harmony with that intent. But, on the other hand, the section or sections to be construed -may so clearly express a special intent with respect to the subject matter, that that intent must be made effective and the words used will not be bent and disorted from their ordinary meaning and common acceptation. • After all, the intent of the legislature is not to be derived by intuition, or any process of divination, but from, the words used.</p> <p>15. Words and Phrases — “Business.”—The word “business,” as a general proposition, refers to the occupation .of conducting trade, or monetary transactions of any kind, though it is sometimes used in a wider sense.</p> <p>16. Corporations — Merger—Authority.—Express statutory authority is required for the merger of corporations.</p> <p>17- Societies and Clubs — Whether Club Engaged in Business.— Primarily, and as ordinarily understood, a social club "is not a commercial organization since it is not organized for profit, and the fact that a club incidentally rents rooms to its members, runs a restaurant, sells cigars, soft drinks etc., does not make a social club, operated distinctively as such, a business corporation.</p> <p>18. Societies and Clubs — Merger—Eight of Social Clubs to Merge. —Sections 3821, 3822, Code of 1919, providing for merger and consolidation of corporations, do not apply to nonstock corporations, such, for example, as social clubs. There is a plain grant of authority to merge to corporations carrying on the same or similar business. The procedure of consolidation is appropriate to stockholding corporations, thus strengthening the conclusion that the original authority to consolidate was intended for such corporations only. A general view of the stat- ' utes does not indicate in any plain or express fashion, the intent that the merger statutes shall apply further than the apparent intendment of those sections indicates.</p> <p>19. Statutes — Construction—Intent of Legislature — Function of the Courts. — It is the function of courts to ascertain the intent of the General Assembly, and to enforce the law- as it is written. It is not their duty, unless such action is clearly indicated either in the sections under immediate consideration or upon a comprehensive view of the statutes in pun materia, to wrest language from its obvious and apparent meaning, and make it thereby conform to what is conceived to be the spirit of the act.</p>

<p>1. Usages and Customs — Admissibility in Evidence — Relevancy— Case at Bar. — One of defendants, partners, placed in a Ford truck three mowing machine blades. These blades protruded from the right-hand rear corner of the truck from eighteen to twenty inches. He then parked the car at- an angle of about forty-five degrees to the curb line, with his front wheels against the curb and the protruding blade ends facing the street. The car was parked, with very little space, between two other cars. Plaintiff riding a bicycle was injured by running into the blades.</p> <p>Held: That the issue between the parties was whether defendant failed to use ordinary care when he parked his car with the open and protruding blades, and that therefore evidence of a custom that prudent farmers transported mower blades in this manner was inadmissible.</p> <p>2. Negligence — Parking Car in Street with Mower Blades Protruding — Case at- Bar. — While defendants in the instant case enjoyed the right to park their car on the street, and for the extent of time allowed by law were entitled to the use of the space so occupied, they had no right to occupy measurably the space between their truck and the next car with a vicious and dangerous implement liable to inflict injuries upon those exercising ordinary care in their use of the streets. Ordinary prudence would suggest that such implements should be wrapped so as to render them harmless.</p> <p>3. Negligence — Parking Car in Street with Mower Blades Protruding — Rider of Bicycle — Casei at Bar. — The rider of a bicycle, when threading his way along a congested street, filled with other speeding vehicles of a far more massive and pretentious character, must often seek safety by pursuing the very course followed by the plaintiff in the instant case, namely, by turning into the curb at the first opening which presents itself. Under such circumstances, he should not be unexpectedly confronted, in his quest for safety, with the sharp and serrated edges of exposed and dangerous implements.</p> <p>4. Negligence — Parking Gar in Street with Moiver Blades Protracting — Anticipation of Injury — Case at Bar. — Where defendant parked his car near another with mower blades protruding from the rear end and plaintiff, a bicycle rider, was injured in attempting to ride between the parked cars to save himself from a collision, while defendant might not have anticipated the concurrence of circumstances which resulted in the injuries suffered by the plaintiff, yet defendant’s act was a negligent one and his liability is not dependent upon his ability to foresee the ensuing circumstances in precise detail.</p> <p>5. Negligence — Proximate and Remote Cause — “Foreseeableness” or Anticipation of Consequences. — The “foreseeableness,” or reasonable anticipation, of the consequences of a wrongful or negligent act, is not the measure of liability of the guilty party, though it may be determinative of the question of his negligence. When once it has been determined that the act is wrongful or negligent, the guilty party is liable for all of the consequences which naturally flow therefrom, whether they were reasonably to have been anticipated or not, and, in determining whether or not the consequences do naturally flow from the wrongful act or neglect, the case should be viewed retrospectively.</p> <p>6. Negligence — Contributory Negligence — Parking Gar in Street with Mow^r Blades Protruding — Injury to Bicycle Rider.— Plaintiff, a bicycle rider, was injured when he turned from the street to the sidewalk between two parked cars, by mower blades protruding from the rear end of one of the cars. Plaintiff, when he turned in between the cars, was seeking to avoid a collision, and the evidence established that he was proceeding at the time in the most careful and judicious manner, and that his unexpected collision with the mower blades was in no wise due to recklessness or failure to exercise ordinary care and prudence.</p> <p>Held: That plaintiff was not guilty of contributory negligence.</p> <p>7. Negligence — Proximate and Remote Cause — Parking Car in Street with Mower Blades Protruding — Intervening Cause. — Plaintiff, a bicycle rider, was injured when he turned from the street to the sidewalk between two parked cars, by mower blades protruding from defendants’ car. Two cars were approaching plaintiff,’ but the one in front stopped. Thereupon the driver of the second car turned to the left, making it necessary for plaintiff to steer to the right, and to enter the space between the parked cars to avoid a collision.</p> <p>Held: That there was no merit in the contention of defendants that their initial negligence was not the proximate cause of plaintiff’s injury, but that injury! was directly traceable to the independent act of the driver of the second car.</p> <p>8. Negligence — Proximate and Remote Cause — Province of Gowrt and Jwry. — It is the province of the court to determine in the first instance whether or not the facts offered in evidence, tending to prove an injury to a plaintiff, are too remote from the defendants’ act of negligence to constitute an element of the plaintiff’s recovery. But where the court finds itself uable to make this ascertainment of remoteness, the question of what is the proximate cause of an injury is ordinarily a question for the jury.</p> <p>9. Negligence — Contributory Negligence — Notice Required by Section 6092 of the Code of 1919. — Code of 1919, section 6092, requires a defendant in actions of tort to give notice in writing if he intends to rely upon the defense of contributory negligence, but provides that defendant upon failure to give such notice shall not be precluded from relying upon contributory negligence disclosed by plaintiff’s testimony.</p> <p>Held: That in the instant case, an action of tort, where defendant failed to give such written notice, the court did not err in modifying an instruction as to the defense of contributory negligence, so as to limit the defense to contributory negligence disclosed by the plaintiff’s testimony.</p> <p>10. New Trials — Excessive Damages — Passion or Prejudice. — The appellate court will not set aside a verdict in a personal injury case on the ground that the damages are excessive, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.</p> <p>11. New Trials — Excessive Damages — Injury to Arm — Case at Bar. —In the instant case, plaintiff, a boy, was severely injured and left with a maimed and distorted hand, and in the judgment of one physician, he was “physically incapacitated for usefulness at least sixty per cent.”</p> <p>Held: That a verdict' for plaintiff for $7,542.85 would not be disturbed as excessive.</p>

<p>Error to a judgment of the Circuit Court of Charlotte county in a proceeding by motion for a judgment for damages. Judgment for defendant. Plaintiif assigns error.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of New Kent county in an action of assumpsit. Judgment for defendant. Plaintiffs assign error.</p> <p>The opinion states the ease.</p>

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

Judgment for defendant. Plaintiffs assign error. These are two separate actions of trespass on the case, seeking to recover damages for injuries occasioned in one and the same accident, which occurred at a road crossing of the railroad of the defendant.

<p>Error to a judgment of the Circuit Court of the city of Richmond 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>Appeal from a decree of the Circuit Court of Arlington county. Decree for defendant. Complainants appeal.</p> <p>The opinion states the case.</p>

<p>Error to a judgment of the Circuit Court of Northampton county in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiff assigns error. Reversed and final judgment for plaintiff.</p> <p>This is an action in the form of a motion for judgment by the plaintiff in error, who will be hereinafter referred to as Scott, against the defendant in error, to recover certain costs for which judgment was entered against Doughty in the Supreme Court of Appeals in an action of ejectment on the two appeals reported as Whealton v. Doughty, 112 Va. 649, 72 S. E. 112, and 116 Va. 566, 82 S. E. 94. These costs aggregate the sum of $406.70. At the time the action in the case in judgment was instituted, Scott was the sole beneficiary of such judgments for costs.</p> <p>In the action of ejectment Willietta Doughty was plaintiff in the trial court and in that court obtained three verdicts and judgments in her favor, the first two- of which were set aside by the Supreme Court of Appeals upon the two appeals aforesaid, but the last and final verdict and judgment given in the trial court in favor of Willietta Doughty was affirmed by the* Supreme Court of Appeals on a third appeal of the case, reported as Scott v. Doughty, 124 Va. 358, 97 S. E. 802. The costs of Willietta Doughty in the trial court, taxable in her favor in all of the trials there, so far as shown by the record, aggregate the sum of $126.94, and she recovered as her costs in the appellate court on the third appeal aforesaid by the order of such court entered on the 16th day of January, 1919, the sum of $22.59. Such costs of Willietta Doughty, aggregating $149.53, were unpaid at the time of the institution of the action in the case in judgment and were then due and owing to her by the said Scott.</p> <p>By the action in the case in judgment, Scott sought also to recover of Willietta Doughty interest on the said $406.70 costs.</p> <p>Willietta Doughty, by special plea filed in the case in judgment, took file position that by reason of the final judgment having been given in her favor she was entitled, under section 3525 of the Code, to recover of Scott all of her aforesaid costs in the trial court, amounting to the sum of $126.94, as aforesaid, also her costs in the appellate court on the last appeal, amounting to $22.59; for which she asked judgment against Scott; and Willetta Doughty, by such special plea, also took the position that, by reason of such final judgment given in her favor, she was relieved, under the provisions of said section 3525 of the Code, from the payment of the $406.70 costs for which the judgments of the appellate court had been rendered against her on the first two appeals.</p> <p>By agreement of the parties, a jury being waived, and all questions being submitted to the court below for decision, such court found the facts to be as above stated, and entered the judgment under review; the order of the court being, so far as material to be set forth here, as follows: '</p> <p>“* * * -th.e court being of opinion that the two judgments * *” (for the $406.70 costs aforesaid), “were in effect annulled and set aside by said judgment of affirmance rendered by said court” (referring to the affirmance on the last appeal aforesaid), “and that accordingly the said Marion Scott, the assignee of said judgments, is not entitled to recover anything by reason thereof against the said Willietta Doughty; and being further of the opinion that the said Willietta Doughty is entitled to recover against the said Marion Scott all the costs set up by her in said plea;</p> <p>“It is considered by the court that said plaintiff, Marion Scott, take nothing by his bill, and that the defendant, Willietta Doughty, recover of the said Marion Scott the sum of $149.53 with interest thereon from the 16th day of January, 1919, and her costs in this proceeding.”</p>

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

<p>Certified question from the Industrial Commission pursuant to the provisions of section 61 of the workmen's compensation act (Acts 1918 p. 637).</p>

<p>1. Appeal atstd Error — Moot Question — Case at Bar. — Suit was brought by a daughter, as administratrix of the estate of her mother and in her own right, for the settlement of the estate and the partition sale of a lot. At the time the bill was filed there was pending in the same court another suit attacking the validity of a deed under which testatrix claimed title to the lot. Pinal decree was entered in this second suit, dismissing the bill, and ending the attack on the title of testatrix before decree of sale of the lot was rendered. Purchaser at the sale, however, contended that the right of appeal in this second suit constituted a cloud on her title.</p> <p>Held: That, although the right of appeal in the second suit had expired by lapse of time and the parties to that suit had waived their rights in writing, the decision of the lower court adverse to the purchaser on the question of cloud before the disappearance of the cloud was reviewable, and had not become moot in the appellate court.</p> <p>2. Judicial Sales — Cloud on Title — Pending Suit Attacking Title.— Case at Bar — Suit was brought by a daughter, as administratrix of the estate of her mother and in her own right, for the settlement of the estate and the partition sale of a lot. Purchaser claimed that another suit attacking a deed in the claim of title to the property was a cloud on her title.</p> <p>Held: That, as the second suit was referred to in the bill in the present cause, the purchaser was charged with knowledge of the existence and purpose of that suit, and upon confirmation of sale she took title subject thereto. If the right of appeal in the second suit constituted a defect, purchaser was bound to raise the question, if at all, before confirmation of the sale.</p> <p>3. Judicial Sales — Warranty—Caveat Emptor. — The court never undertakes to warrant the title to land sold under its decree, and ' a purchaser at a judicial sale buys at his own risk. This general rule, however, is subject to the qualification that a purchaser at a judicial sale is entitled to relief on the ground of fraud or after-discovered mistake of material facts.</p>

<p>Appeal from a decree of the Circuit Court of the city of Norfolk. Decree for complainant. Defendant appeals.</p> <p>The opinion states the casé.</p>

<p>1. Limitation of Actions — Obligation with Poiver to Confess Judgment at Any Time Annexed. — Annexed to an, obligation to pay a certain sum upon a certain date was a power of attorney to a designated attorney authorizing him to confess judgment at any time after date for the amount of the obligation. The fact that power was given the attorney in fact to confess judgment before the maturity of the contract did not accelerate the running of the act of limitations. The statute of limitations therefore did not begin to run until the date of maturity. Although the defendants or their agent might confess judgment “at any time” prior to that date, the creditor could not compel them to do so.</p> <p>2. Power of Attorney — Construction.—While it is generally held that warrants of attorney must be strictly construed, yet language must be given its obvious meaning, no matter what rule of construction is adopted.</p> <p>3. Courts — Definition.—Wherever we have a plaintiff and a defendant and a cause of action, and a designated functionary to render judgment between them, we have a court. When authorized by statute to enter judgment within the limits prescribed, the functionary or tribunal so constituted becomes a court for the purpose and subject to the limitations and restrictions prescribed by the statute.</p> <p>4. Courts — Clerk as Court — Poiver to Confess Judgment. — A power of attorney authorized confession of judgment “in any court” and “at any time.” As the clerk of court is expressly authorized to take confession by section 6130, Code of 1919, a confession before a clerk under this warrant is valid; and as all the clerk’s proceedings in vacation- are subject to the control of the court at the next term, the obligors were afforded all the protection they could have gotten from a confession in court.</p>

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

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

<p>1. Electric Light Companies — Ordinance Fixing Rates — Amendment. — The municipal authorities and an electric light company can, by agreement, amend an ordinance granting a franchise to the company and fixing rates to be charged for light and power and reduce the maximum rate thereby authorized, and no further additional consideration to the company would be needed to support such an amendment other than the continuing privilege during the term of the ordinance to conduct its business thereunder.</p> <p>2. Electric Light Companies — Ordinance Fixing Rates — Amendment. — If it were proposed to increase the rates which an electric light company was authorized by its charter to charge for service, it would be necessary to pursue the method prescribed by section 3022 of the Code of 1919, but the statute would not preclude a decrease of such rates by mutual agreement.</p> <p>3. Electric Light Companies — Rates—Alteration of Franchise — ■ Case at Bar. — By its franchise, an electric light company was entitled to charge a certain maximum rate for services. The company, through its local manager, applied to the council for permission to make certain changes in its rates, all within the maximum allowed by its franchise, and permission to do so was granted by an ordinance. It was clear that neither the.high officials of the company, nor any other person authorized to act for the company, had the slightest intimation of a proposed rescission of the clause of the franchise fixing the maximum rate or any intention to consent to such rescission.</p> <p>Held: That the clause fixing the maximum rate was not rescinded by the ordinance granting permission to change the rates, within the maximum and the rates so fixed substituted therefor.</p> <p>4. Electric Light Companies — Rates—Burden of Proof to Show Change of Rates — Case at Bar. — Where a municipality claimed that an ordinance granting a franchise to an electric light company and fixing maximum rates to be charged by the company had been rescinded and other rates fixed by a later ordinance, the burden of proof was upon the municipality to show that- the franchise contract has been thus amended.</p> <p>5. Electric Light Companies — Franchise Fixing Rates — Change of Rates — Mutual Consent — Case at Bar. — Like other contracts, a franchise fixing a maximum rate to be charged by an electric light company cannot be amended without the consent of both contracting parties, and the intent of the city council, by ordinance or resolution, to change the rates, cannot operate to amend the contract except by agreement with the company; and in the instant case there was no evidence to show that the minds of the contracting parties ever met upon the alleged amendment to the franchise fixing rates, or concurred therein, and the resolution making such change was never communicated either to the general manager or any other- person authorized to act for the company.</p> <p>6. Electric Light Companies — Rates—Change of Rates — Revocation — Estoppel—Case at Bar. — The franchise of an electric light company fixed the maximum rate which the company could charge for services. Later the company asked permission to change the rates at first fixed by it, and the council, by resolution, granted this request. The acquiescence of the city in this change of rates was not necessary, as the new rates were within the maximum. The city claimed that the company, by its adoption of the new rates under the resolution of the council, had ratified and approved the resolution as an amendment of its franchise fixing the rates it would be permitted to charge.</p> <p>Held: That, as the new rates were within the maximum permitted by its original franchise, the conduct of the company was not inconsistent with its claim to be conducting its business by virtue of its original franchise.</p>

<p>1. Stock and Stockholders- — Dividends—Increase of Capital — Dividend' Payable in Future. — At a meeting lawfully called, the stockholders of a corporation voted to increase its capital stock $25,000, and provided that the “present stockholders of the corporation shall have a cash dividend declared to them of ten per cent., payable out of the last assessment from the extra $25,000.” The purpose of this ten- per cent, dividend was to equalize the value of the old and new stock.</p> <p>Held: That whether the ten per cent, which the company, by this resolution, obligated itself to pay to the then stockholders was technically a dividend or not, when acted upon it created an obligation, having all the effects of a dividend.</p> <p>2. Stock and Stockholders — Dividends—Authority of Directors and Stockholders to Declare Dividend — Estopped.—Whether the stockholders oí a corporation had the power to declare a dividend or the board of directors alone had such authority, where the stockholders and directors, by common consent, concurred in the management of the corporation, the rights of creditors being in no way involved, it will be assumed that the directors accepted a resolution of the stockholders declaring a dividend to the old stockholders at a meeting called for the purpose of amending the charter so as to increase the corporation's capital stock, and the corporation having acted on the resolution in securing the amendment of its charter is estopped to deny its validity.</p> <p>3. Dividends — To Whom Dividends Belong — Future Dividends. — A dividend belongs to the owner of the stock at the time it is declared, and this whether it is payable at a future time or not.</p> <p>4. Dividends — Transfer of Stock — To Whom Dividends Belong.— As between vendor and vendee, although the rule may be changed by contract between the parties, in the absence of an agreement to the contrary, dividends declared prior to the transfer of ownership belong to the transferer, and the rule is the same although the dividend is not payable until after the transfer, while dividends declared subsequent to the change of ownership belong to the transferee, and it is immaterial that such dividends were earned in whole or in part prior to such transfer.</p> <p>5. Dividends — Transfer of Stock — To Whom Dividends Belong— Burden of Proof. — The burden of proof is upon the vendee upon a transfer of stock to show that dividends previously declared, but not yet paid, are included in the sale. The agreement being silent on this subject, the presumption is that they are not so included, and hence do not pass to the vendee.</p> <p>6. Appeal and Eeeoe — Findings of Court — Section 6363 of the Code of 1919. — In the instant case, although there was some conflict in the evidence upon the question whether the parties to a transfer of stock intended the transfer to carry a dividend already declared but not yet paid, the findings of the court be- • low, without the intervention of a jury supporting the claim of the transferor,, was neither plainly wrong nor without supporting evidence, and therefore under section 6363 of the Code of 1919 cannot be set aside.</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>Deeds — Reservation of Way — Evidence Examined and Held Not to Show Reservation of Way Over Tract Conveyed by Heed— Case at Bcw. — The metes and bounds of a tract of land conveyed to one B. were given in the deed, and the description concluded as follows: “And containing 2.104 acres, as is shown by the map which is hereto attached, and made a part of this deed.” There was nothing in the deed to indicate that the tract was sold subject to a right of way for the benefit of the balance of the grantor’s lands. The map referred to showed, a road eighteen feet wide, north of and entirely outside of the tract eonveyed. In a later deed to another party the right of egress and ingress was given to the grantee, not over the land conveyed in the first deed, but through and over the road as shown in the map referred to in the first deed. Formerly there had been a farm road running along and within the northern boundary of the tract conveyed in the first deed. In a third deed the grantor had expressly reserved a right of way over the land granted by that deed. The calls in the first deed fitted the new location of the road as indicated in the map, but could not reasonably be applied to the old road.</p> <p>Held: Upon the consideration of this and other evidence, that the grantor did not sell the tract to B. subject to the old road, but sold the same according to a relocation of this road, which she was fully empowered to make, and difficulties and obstructions in the new roadway furnish no ground of right, or foundation of claim, against B.</p>

Decree for defendants. Complainant appeals. On September 1, 1919, the appellant bought of the appellees, James B. Keesling and Edith Keesling Cole, a tract of 509 acres of land and considerable personal property, which constituted portions of a larger amount of land and personal property which were devised and bequeathed to James B. Keesling and Edith Keesling Cole by the residuary clause of the will of the father of the former and grandfather of the latter, one Emory S.…

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

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

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

<p>1. Deeds — Cancellation—Fraudulent Representations by Grantee— Case at Bar. — Complainant conveyed thirteen acres of land to a trustee for one C. On the same day the trustee conveyed the thirteen acres to defendant, receiving in exchange a deed from defendant for other property. The instant suit was brought by complainant to have the deeds canceled on the ground that defendant, acting for himself and for C, procured from, complainant the deed for the thirteen acres by false representation, and in pursuance of a fraudulent scheme between defendant and C, whereby the subsequent exchange was to be made. The alleged fraudulent representations were as to the value of a note owned by C and given by him as consideration for the deed for the thirteen acres. The transaction was unusual, and the circumstances by which it was surrounded rendered it suspicious in itself.</p> <p>Held: That, while the evidence was conflicting and the parties 'and their respective witnesses squarely contradicted each other, the circumstantial evidence, independent of the presumption in favor of the finding of the lower court, turned the scale in favor of complainant.</p> <p>2. Agency — Confidential Relationship — Duty of Disclosure — Case at Bar. — In the instant case, defendant was claiming to act as agent for complainant in selling complainant’s land to a third party, and on the day of the sale defendant made an exchange with this third party of property of his for the property sold by complainant to the third party. While there was nothing inherently wrong in making such an exchange, it was hardly consistent with the confidential relationship of agency to withhold from complainant the fact that defendant, and not the third party, was to get the property conveyed by complainant.</p> <p>3. Deeds — Cancellation—Fraud—Burden of Proof. — In a suit for the cancellation of a deed on the ground of fraudulent representations by grantee, the presumption is in favor of innocence and not of guilt. One who charges fraud as a ground of relief must prove it by strong and clear and convincing evidence. This is especially true where the contract in question has been consummated by the delivery of the deed.</p> <p>4. Fraud — Proof of Fraud — Preponderance of Evidence — Circumstantial Evidence — Cancellation of Deed. — It often happens that the question of fraud depends as much upon circumstances as upon the statements of parties directly concerned. The mere fact that the oral testimony relating directly to the execution of a deed is equally balanced in point of the number of witnesses testifying for and against its fair execution does not necessarily mean that an attack upon the deed must fail for want of a preponderance of evidence to establish fraud.</p> <p>5. Fraud — Burden of Proof — Degree of Proof Required to Establish Fraud. — According to the overwhelming weight of authority, fraud need not, like the guilt of the accused in a crim- | inal prosecution, be established beyond a reasonable doubt. A preponderance of evidence, as in any civil case, is sufficient, provided the proof is clear and strong enough to preponderate over the general and reasonable presumption that men are honest and do not ordinarily commit fraud, and reasonably to satisfy the understanding and conscience of the judge and jury. If it does this, it is sufficient both at law and in equity.</p> <p>6. Appeal and Error — Reversal—Presumption of Correctness of Judgment or Decree — Appellate Court Must be Fully Satisfied that Decree is Wrong, — Where the Supreme Court of Appeals is unable, after a thorough examination of all the evidence, to find enough evidence to justify it in holding that the decree of the lower court was wrong, there can be no reversal, and, of course, the same is true where the court is reasonably satisfied that the decree complained of is right. The Supreme Court of Appeals sits as a court of review, the decree comes to it with a presumption of correctness, and it ought not to be reversed unless the court is fully satisfied that it is wrong.</p>

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

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

<p>1. Witnesses — Impeachment—Section 6216, Code of 1919. — In a prosecution for larceny, one of the principal witnesses against the accused was an accomplice, who, among other things, testified as to defendant’s purpose in going from Washington to Virginia when the larceny took place. Witness’s attention was called to statements made by him in a prior affidavit relating to the same matter which were in conflict with his present testimony, and he seems to have been asked to explain the conflict, without introducing .the affidavit in evidence.</p> <p>Held: That, under the provision of section 6216 of the Code of 1919, the defendant was not obliged to show the affidavit to the witness at this stage of his examination, and, as witness admitted making the affidavit, was under no obligation to show it to him or offer it in evidence.</p> <p>2T Witnesses — Impeachment-—Section 6216, Code of 1919. — Section 6216 of the Code of 1919, after providing how a witness shall be examined with reference to a prior writing relative to the subject matter, declares that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best. This, of course, means legitimate use. It does not per se ren- ■ der admissible in evidence a writing which independently of the statute would be inadmissible.</p> <p>S. Hearsay Evidence — Criminal Law — Previous Affidavit of Witness. — In a prosecution for larceny, one of the principal witnesses against the accused was an accomplice, who, among other things, testified as to defendant’s purpose in going from Washington to Virginia when the larceny took place. Witness’s attention was then called to statements made by him in a prior affidavit relating to the same matter which were in conflict with his present testimony, and he seems to have been asked to explain the conflict, without introducing the affidavit in evidence. On re-examination of the witness, the Commonwealth, over the objection of the defendant, was permitted to offer in evidence and read to the jury the whole of the prior affidavit.</p> <p>Held: That the affidavit was not substantive evidence in the case, but the baldest hearsay, was inadmissible in evidence, and extremely prejudicial to the defendant.</p> <p>4. Evidence — Irrelevant Evidence — Evidence as to Other Crimes.— In a prosecution for the larceny of three cases of shoes, an accomplice testified that he and defendant, a junk dealer, went from Washington to Virginia at the time of the larceny of the shoes to get some brass. On his re-examination he was asked how he got the brass referred to, and replied, “from the railroad.”</p> <p>Held: That while this evidence was irrelevant and immaterial to the issue, and on another trial should be excluded, it was not reversible error, as it was harmless.</p> <p>5. Accomplices and Accessories — Who is a Principal — Instruction. —In a prosecution for the larceny of three cases of shoes, the jury were instructed that if they believed that the cases of shoes were removed from a freight car of the railroad “as - alleged in the indictment,” that defendant aided and abetted in removing the shoes either by his own personal presence or by urging or inciting others to remove them, and that defendant transported the shoes in a conveyance under his control and shared in the fruits of the larceny with knowledge thereof, defendant would be guilty as a principal of the offense alleged in the indictment.</p> <p>Held: That the words “aided and abetted” are legal terms and instead of them the instruction should have stated the acts done by the defendant, or others in which he participated, and that the instruction was open to criticism in other respects.</p> <p>6. Accomplices and Accessories — Who is a Principal — Instruction— Indictment as Principal, Conviction as Accessory. — An indictment charged the defendant as principal in the offense of breaking and entering a car, and not merely as accessory. Under this indictment, the defendant could not have been convicted if the evidence simply showed that he received stolen goods knowing them to have been stolen, and the instruction of the court should have pointed out plainly to the jury what acts or conduct on the part of the defendant were necessary to constitute him a principal.</p>

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

<p>1. Drugs — Cocaine—Evidence Insufficient to Support Conviction.— • Officers searching accused’s house for ardent spirits found concealed in a blanket hanging in the dining room a match box containing fifty papers of cocaine, put up in packages, “in the usual way that cocaine sellers fix it.” Accused testified that he knew nothing of the cocaine, but that his wife confessed to him later that it belonged to her, and accused’s testimony was fully confirmed by his wife who also said that she had placed it in the blanket because she did not want her husband to find out that she had resumed the use of it.</p> <p>Held/ That the evidence was insufficient to sustain a conviction of unlawful possession of the cocaine with intent to sell.</p> <p>2. DRUGS — Prosecution for Possession of Cocaine with Intent to Sell — Evidence of Financial Standing of Accused. — In a prosecution for possession of cocaine with intent to sell, it appeared that although accused had not recently been at work, he owned several houses and appeared to have a considerable sum of money. The inference sought to be drawn from these facts by the Commonwealth was that his property had been acquired by traffic in cocaine.</p> <p>Held: That this inference was wholly unwarranted, even if the facts stood unexplained, but as a matter of fact accused testified that for more than ten years and until a few years prior to the trial he had been a peddler of fish and vegetables, and no evidence was offered to contradict his statements in this regard.</p> <p>'3. Drugs — Possession—Constructive Possession — Code of 1919, Section 1697. — Under section 1697, Code of 1919, which makes possession of cocaine, with certain exceptions, prima facie evidence of an intent to sell, etc., constructive possession by accused is not sufficient evidence of the intent to sell.</p> <p>•4. Criminal Law — Evidence—Presumption From Possession of Property or Instruments of Crime — Constructive Possession. — To raise a presumption of guilt from the possession of the fruits of or the instruments of crime by the prisoner, it is necessary that they be found in his exclusive possession. A constructive possession, like constructive notice or knowledge, though sufficient to create a civil liability, is not sufficient to hold the prisoner to a criminal charge. He can only be required to account for the possession of things which he actually and knowingly possessed, as, for example, where they are found upon his person, or in his private apartment, or in a place of which he kept the key. If they are found upon premises owned or occupied as well by others as himself, or in a place to which others had equal facility and right of access, there seems no good reason why he, rather than they, should be charged upon this evidence alone.</p> <p>5. Criminal Law — New Trial — Verdict Contrary to the Evidence. —A conviction cannot be sustained which depends upon a mere guess, or at least upon the arbitrary adoption of an interpretation of the evidence which incriminates the accused, when the evidence is equally consistent with his innocence.</p> <p>6. Drugs — Possession of Cocaine — Evidence.—In a prosecution for possession of cocaine with intent to sell, there was no error in admitting the evidence of one of the officers who made the arrest, that the cocaine was “put up in packages in the usual way in which cocaine sellers fixed it.”</p> <p>7. Drugs — Possession of Cocaine — Evidence.—In a prosecution for possession of cocaine with intent to sell, after accused had testified that he knew nothing about the cocaine in question, but had learned about it since his 'arrest, and after his wife had testified that it belonged to her and that she attempted to conceal it from her husband, one of the officers who arrested accused was allowed to testify in rebuttal that he had never heard until at the trial of any such story or claim in regard to the* wife’s use of cocaine.</p> <p>Held: That, while this testimony of the officer, perhaps, had very little weight or importance, it should have been excluded.</p> <p>8. Appeal and Error — Judgment by Appellate Court — Neio Trial— Criminal Cases. — Section 6251 of the Code of 1919, with reference to the order to be entered by a trial court upon setting aside a verdict, and section 6365, in reference to the order of reversal to be entered in the Supreme Court of Appeals, do not apply to criminal cases. As to such cases the practice remains unchanged and is controlled by section 4937 of the Code of 1919, which is identical with section' 4058 of the Code of 1904.</p>

<p>1. Burglary — Entering Without Breaking — Sufficiency of Evidence. —Case at Bar. — In a prosecution for burglary the evidence though conflicting, warranted the jury in finding that a saddle found near defendant’s residence was the property of the prosecuting witness; that this saddle had been seen by a witness in defendant’s possession; that the saddle was stolen property; that defendant’s possession was recent; that defendant failed to give a reasonable account of how his possession was acquired; but gave a false account; that the saddle waq obtained by entry of the barn of prosecuting witness in the night time, as charged in the indictment; and that defendant was guilty of the larceny of the saddle.</p> <p>Held: Sufficient to sustain a verdict of guilty.</p> <p>2. Appeal and Error — Conflicting Evidence. — Where the jury find a verdict of guilty upon conflicting evidence, an appellate court is not at liberty to disregard their verdict.</p> <p>3. Burglary — Possession of Stolen Goods. — The law in Virginia is well settled that the possession of stolen goods is of itself not even prima facie evidence of housebreaking or of burglary. But when goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and when, in addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account, of how he came by the goods, such proof will warrant a conviction.</p> <p>4. Burglary — Instructions—P'ossé.sion of Stolen Property. — In a. prosecution for burglary by entering without breaking, the court instructed the jury that if the property owned by the prosecuting witness was stolen and recently thereafter found in the exclusive possession of the prisoner, then such possession of itself affords sufficient ground for a presumption of fact that he was the thief, and makes it incumbent on him to account for such possession consistently with his innocence. Defendant objected to this instruction on the ground that it leaves out the phrase “unexplained possession,” and that it “is purely an instruction on the offense of larceny,” and therefore inapplicable.</p> <p>Held: No error, though the instruction might well have been differently framed.</p> <p>5. Burglary — Larceny Involved in Charge of Burgla/ry. — In a charge of entering a barn in the night time and stealing property therefrom, larceny is necessarily involved.</p> <p>6. Larceny — Possession of Stolen Property. — The recent and exclusive possession of stolen property will warrant a conviction of larceny, unless the defendant affords a reasonable account of his possession. This burden of explanation is imposed upon a prisoner found in the possession of stolen property, when such possession is proven to be recent and exclusive. If this explanation is not forthcoming, conviction of larceny is justified.</p> <p>7. Larceny — Burglary—Recent Possession. — An instruction in a prosecution for burglary that stolen property found in the exclusive possession of a person two months after being stolen is recent possession, is erroneous, but does not prejudice the prisoner when his possession of the stolen property was undoubtedly recent.</p>

>In this case the accused was indicted for the murder of his wife. There was a trial by jury, which resulted in a verdict finding the accused guilty of voluntary manslaughter and fixing his punishment at five years in the penitentiary. This verdict the trial court refused to set aside and judgement was entered by such court accordingly.