Volume 131 — Virginia Reports

<p>1. APPEAL ANI) ERRoR-Re1,ersa-Jiu1g~ent Plainly Wrong or With-~ out Evidence.&emdash;Where a case is submitted to the trial court to be decided without the intervention of a jury, if the evidence is conflicting and the Supreme Court of Appeals is of the opinion that the judgment was plainly wrong or without evidence to support it, the judgment will be reversed.</p> <p>2. APPEAL AND ERRoR-Rev ersa--J~udgment Plainly Wrong or With~ out Evidence&emdash;Judgment Entered by Appellate Court&emdash;Case at Bar.&emdash;In the instant case, an action against defendant corporation for the negligent failure to properly load goods of the plaintiff in a car in which they were shipped, the evidence plainly showed the negligence of defendant as charged. The carrier successfully negatived the presumption of negligence in transportation, and it plainly appeared that the injuries to the contents of the can were due to the negligence of the defendant.</p> <p>Held: That the judgment of the trial court that defendant was not negligent as charged, and consequently not liable, was plainly wrong, and hence should be reversed, and plaintiff having clearly established the amount of her damages, judgment for that amount was entered by the Supreme Court of Appeals.</p>

<p>Error to an order of the Circuit Court of Tazewell county in interpleader proceedings. Order for complainant. Defendant assigns error.</p>

<p>1. Attachment—Jurisdiction—Section 2961 of the Code of 190í— Decree for Amount of Debt in Favor of Party Suing out Attachment.—An attachment was sued out under section 2961 of the Code of 1904, by plaintiff in error, and it was insisted by defendant in error that as the party suing out the attachment had a decree for the amount of his debt upon which he could issue an execution at any time, the trial court had no jurisdiction of the attachment. The affidavit for the attachment stated that the amount of affiant’s debt was as shown by a decree in a certain chancery suit pending in the circuit court. The decree was simply referred to as showing the amount due, and no copy of the decree was filed, and no evidence was offered to show that the plaintiff in error could subject the property in any way save by the attachment:</p> <p>Held: That it could not be presumed from this mere reference that the plaintiff in error had a personal decree against the debtor for the amount of his debt.</p> <p>2. Fraudulent and Voluntary Conveyances—Whether Transaction Sale or Mortgage—Question for Jury.—Where in attachment proceedings a bill of sale of property, taken under the attachment, was attacked as fraudulent, the question whether the transaction was a sale, or whether or not it was fraudulent, where the evidence was conflicting, was for the jury whose verdict cannot be disturbed on appeal, unless plainly wrong, or without evidence to support it.</p> <p>3. Fraudulent and Voluntary Conveyances—Recording Acts— Retention of Possession—Transaction in Another State.—A bill of sale was executed in West Virginia and the property remained in possession of the seller in that State after the execution of the bill of sale. Before the property was removed to Virginia and before an attaching creditor had acquired any right whatever to subject the property to the payment of his debt, it was turned over to the purchaser, and the property was in the possession of the purchaser when brought into Virginia.</p> <p>Held: That the Virginia statute, relative to the recordation of contracts for the sale of personal property (section 2465, Code of 1919), had no application to the transaction.</p> <p>4. Fraudulent and Voluntary Conveyances—Retention of Possession—Purchaser Aftenvards Retaining Possession.—Under a bona fide sale of chattels, fair in itself, though there is no delivery of possession at the time of sale, yet if the purchaser gets possession of the chattels before the rights of any creditor of the vendor attach, the sale is good against such creditor.</p> <p>5. Appeal and Error—Harmless Error—Exclusion of Testimony Afterwards Admitted.—At an earlier stage of the examination of a witness, an agent of plaintiff, the trial court excluded the witness’ testimony as to certain statements made by him, but later the witness was recalled and was allowed to testify fully on the subject.</p> <p>Held: That the defendant could not have been prejudiced by the exclusion of the testimony at the earlier stage of the witness’ examination.</p> <p>6. Declarations and Admissions—A gency—Declarations Before and After the Agency—Witnesses—Competency of Agent.—The declaration of an agent made before the agency began or after its termination, cannot be given' in evidence against his principal. The agent is a competent witness and may be put on the stand and allowed to testify as any other witness, but his declarations are not admissible.</p> <p>7. Declarations and Admissions— Self-Serving Declarations—Res Gestae.—Where the ownership of certain mules was in question, defendant in error was allowed to testify relating to the contents of a certain letter which he claimed to have written to the superintendent of the farm where the mules were sent for pasturage, at the time they were so sent. In this letter he claimed to have written, “These are my mules, take good care of them, and I will pay you the cost.”</p> <p>Held: That, if, as seemed probable, the letter was delivered at the same time that the mules were delivered, the contents of the letter were not merely self-serving but were explanatory of the act of delivery of the mules, and as such were properly receivable.</p> <p>8. Instructions—Assumption of Facts—A.gency—Sale or Mortgage —Case at Bar.—An instruction was to the effect that if plaintiff purchased the mules in controversy in West Virginia, the laws of the State of Virginia relative to the recordation of contracts did not apply so long as the property remained in West Virginia; and that if the jury believed that plaintiff took possession of the mules in West Virginia, and sent them by his agent H. to Virginia, where they remained until levied upon under an attachment by defendant, then the jury should find for the plaintiff, even though the contract of sale was never recorded in Virginia. It was objected that this instruction assumed that H. was the agent of plaintiff, and that the contract in question was a sale out and out of the mules.</p> <p>Held: That the instruction was not amenable to either of these objections, and when read in connection with other instructions given in the case it fairly presented the case to the jury.</p> <p>9. Assignment op Errors—Pointing out Errors Complained Of.— An assignment of error was as follows: “Fifth: Various other errors, in the rulings and judgment of the court, occurring during the trial of the case and which are covered by the various exceptions of the petitioner, taken at the time, all of which clearly appear in the record of this case.”</p> <p>Held: That this amounted to no assignment at all and would not be considered.</p> <p>10. Assignment op Errors—Petition as a Pleading—Pointing Out Error.—A petition for a writ of error is a pleading and must specifically point out the errors complained of. It is always incumbent on the plaintiff in error to point out in what respect the trial court has committed error to his prejudice.</p>

<p>1. Cloud on Title—Evidence of Complainant’s Title Insufficient— Dismissal of Bill.—The object of the instant suit was to divest certain persons of any legal title that there might be in them to a certain tract of land and vest the same in complainants, who claim to be the equitable owners of the land. There was no sufficient evidence to support the title of complainants asserted in the bill under an alleged deed. The paper filed as the original deed was not the original and was thoroughly discredited. There was no substantial evidence to support the effort to set up a title by adverse possession under the alleged conveyance.</p> <p>Held: That there was no error in dismissing the bill.</p> <p>2. Equity—Jurisdiction—Title and Boundaries—Ejectment.—Except where the relief which is authorized by Code of 1919, section 6248, is sought, and in the absence of some peculiar equity, courts of equity are without jurisdiction to settle disputes regarding the title and boundaries of land. An action of ejectment generally affords a complete and adequate remedy for the assertion of a title or interest in land.</p> <p>3. Cloud on Title—Jurisdiction—Adverse Claims of Title.—A court of equity is without jurisdiction in a suit to remove a cloud upon title to determine the question of title as between several independent, distinct and hostile claims. Such an independent and hostile claim, involving the whole property and denying in toto and ab initio the title of the complainants, cannot be set up and adjudicated in a suit in equity. To permit this would authorize an adverse claimant to implead other claimants of the title in such a way as to substitute an equity suit for an action of ejectment.</p> <p>4. Equity—Sufficiency of Proof to Obtain Relief.—Where any conclusion which the court might reach would necessarily be conjectural and founded upon random guess, rather than based upon any sufficient proof, a court of equity invariably denies relief, because a just determination and settlement of the controversy is impossible. Essential allegations which the parties to such a controversy cannot prove with reasonable certainty, cannot without evidence be assumed by the court.</p>

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

Judgment for complainant. Defendant assigns error. It appears from the record that in a proceeding commenced before the board of supervisors by applicants, one S. L. Redwine and the appellee, W. W. Francisco, which was appealed to the circuit court by the appellant, T. P. Gilmer, a right of way for a road over the land of the appellant was condemned and established as a private road, to be built and kept up by the applicants, upon a location designated in the report of S. T.…

• Error to a judgment of the Circuit Court of Scott county upon a motion to appoint a committee for a convict. Judgment for movant. Convict assigns error.

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

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

<p>1. CARRIERs-Loading and Unloading-Loss F'rom Improper Loading. &emdash;The general rule with respect to loading and unloading goods transported by a common carrier is that these duties attach to the carrier, and it is responsible for loss, or injury, incident thereto. But the shipper, for purposes of his own convenience, may assume these duties. In such case the carrier is absolved from responsibility for injuries received in transportation that are traceable solely to improper loading and packing.</p> <p>2. CARRIERs-Loadiiig a~d Unloading-Loss F'ro~m Imprope'r Loading &emdash;Other Negligence of Carrier.&emdash;When there is evidence tending to show that the goods were not properly packed by the shipper, and they arrive at their destination in a damaged condition, but the carrier neither avers, nor furnishes evidence, that it was free of negligence, there is a presumption that there was sufficient negligence by the carrier in the course of transportation to justify a verdict for the plaintiff.</p> <p>3. CARRIERS-Usaqes and Cu.~toms-Ins~ection of Ca', Loaded by Shippe'r-Case at Bctr.-In the instant case, an action for dam- ages against a carrier for injury to goods shipped, the plaintiff undertook to prove by a foreman of another railroad company the general usage, in the matter of inspection of cars loaded by the shipper, common to the railroads in the City of Rich- anond. The witness testified that all he knew was the practice of the railroad by which he was employed, and he knew nothing about the practice of defendant railroad, and that he never worked for it.</p> <p>Held: That the witness was not qualified to testify as to the practice of defendant railroad in the matter of inspection, and his evidence in that regard had no probative value.</p> <p>4. Carriers- Usages cvizd Cv~toms-InspeeLioii of Cat' Loaded by Shipper-Case at .Bar.-It was clear from the testimony in the instant case that it was not th~ practice of defendant railroad company to make inspections of carloads loaded by shippers, nor was there any reason why they should do so, having in mind mind that the cars are placed for the convenience of the shipper, and he undertakes the task of loading. If he is negligent in that respect, he should be responsible for the consequences of his own acts. Quite a different question would be raised, if the improper loading was manifest to ordinary observation when the car was received. But such was not the situation in the case in judgment.</p> <p>5. Carriers—Car Loaded by Shipper—Duty of Inspection by Carrier—Case at Bar.—In the instant case the car, an,ordinary box car, was packed by the shipper. The door was left open, but the extent of the opening was not given. Whether or not the sealer as he walked by the car could see into the interior was not stated. The sealer could have pushed back the door and inspected the contents, but it was not imcumbent upon him to do this, and there was no evidence to show that as the sealer discharged his task of sealing the car, the insufficiency of the packing was manifest to him, in the exercise of ordinary observation.</p> <p>Held; That the railroad company was not liable for losses from injuries to the contents of the car solely due to the insufficient packing.</p> <p>6. Carriers—Car Loaded by Shipper—Defective Packing—Case at Bar.—The testimony of the witnesses in the instant case plainly showed that the shipper’s agents were guilty of gross negligence in loading the car. The physical facts established the contention that the furniture with which, the ear was loaded was not properly packed when it left the place of loading.</p> <p>Held: That if the railway company subsequently handled the shipment with the care appropriate to a properly loaded car, then the injury to its contents was traceable exclusively to the negligence of plaintiff’s agents in packing and loading.</p> <p>7. Carriers—Car Improperly Loaded by Shipper—Evidence Rebutting Presumption of Carrier’s Negligence—Case at Bar.—In an action by a shipper against a carrier for injury to goods shipped, it appeared that the car in which the goods were shipped was improperly loaded by the shipper’s agents. Witnesses for defendant railroad gave in detail the movement and location of the car from the time of reception to tne date of delivery, showing very clearly that nothing happened en route to cause injury to a properly packed car. The car was delivered at the place of destination in good condition, and while no special inspection was made at that point, it was reasonably apparent that if the car had shown any external signs of injuries received in transit, they would have been manifest to plaintiff’s agents when they set about the task of unloading. But no such signs were perceived by them. Held: That this testimony satisfactorily negatived the presumption of negligence in handling in the course of transportation.</p>

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

Judgment for defendant. Plaintiff appeals. In this case there was an appeal to the circuit court by appellant from a decision of the board of supervisors of Wise county, disallowing a claim of appellant against the county for the amount of $2,425. A jury being waived, the case was submitted to the court upon the following agreed statement of facts: “1.

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

Judgment for plaintiff. Defendants assign error. This is an action of unlawful detainer instituted by the defendant in error, Hartsook, to recover of the plaintiffs in error, Jabbour Brothers* a partnership (composed of several partners whose names need not be here stated), certain storerooms located in the city of Roanoke.

<p>Appealed from a decree of the Circuit Court of Bedford county. Decree for complainant. Defendants appeal.</p>

<p>1. Appeal and Error-Order Refusing to Dissolve Injwiictioni~gn~v or Appeal-Icif set of Appeat.-'ihe rigflt 01 appeaL Irom an order refusing to dissolve an injunction seems to be settled in this State, and is placed on the ground that it adjudicates the principles of the case. But the granting of the appeal does not in any way forestall the order to be made at the hearing. It simply operates to put the case on the docket of the Supreme Court of Appeals for such order to be made therein at the hearing as appears to be right and proper.</p> <p>2. APPEAL AND. ERRoR-Order Ref~tring to Dissolije In~jvswtion-Re- mana mand for Further Proof.- case, an appeat irom an order refusing to dissolve an injunction, no testimony was taken in the case, but it was heard on purely ex parte affi- davits. The facts were to be gathered chiefly from the affi- davits of the parties themselves, none of whom had been sworn to tell the whole truth, and on some of the most material points the affidavits were in direct conflict.</p> <p>Held: That, as very serious, if not irreparable, damage might be done to one or the other of the parties if the case was de- cided on the present record, it should be remanded for proof in the usual form, and then heard on its merits.</p> <p>3. Injunctions-Weight to Which Affidavits Entitled.-The practice of receiving affidavits on an application for an injunction, or on a motion to dissolve, is too well established in this State to require the citation of authority, but they are not entitled to the same weight as depositions taken after notice to the opposite party and an opportunity for cross-examination. 4.</p> <p>4. Injunctions-Summary Proceedings.-It is true that, on a pure bill of injunction, very summary proceedings are allowed, and are sometimes necessary, but they must be compatible with the correct decision of the case in question. question.</p>

Decree for defendant. Complainants appeal. This is the sequel to Matney v. Yates, 121 Va. 506, 93 S. E. 694. The case as made by the pleadings as they then stood was dealt with on that appeal. The facts of the case as they were taken to be admitted on demurrer and the questions thus put in issue and decided on that appeal fully appear from the report of the case just cited and need not be repeated here.

<p>Appeal from a decree of the Circuit Court of Washington, county. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from a decree of the Circuit Court of Dickenson county on petition of purchaser at a judicial sale. From a decree dismissing the petition, petitioner appeals.</p>

<p>■ Appeal from a decree of the Circuit Court of Scott county. Decree for defendants. Complainant appeals.</p>

<p>1. Limitation of Actions—Bond Secured by Trust Deed—Maturity of Bond—Debtor Assignee of Life Interest in Fund•—Case at Bar.—A fund in court which belonged to a life tenant and his remainderman was loaned to the assignee of the life tenant’s interest by direction of the court for five years, the assignee giving a five-year bond secured by a deed of trust on real estate.</p> <p>Held: That the act of limitations began to run on both the bond and the deed of trust at the maturity of the bond. The bond became barred in ten years, and the deed of trust in twenty years, from that date. The running' of the statute was neither prevented nor stayed by the fact that the maker of the bond was entitled to the interest on- the fund.</p> <p>2. Remainders—Life Tenant—Commutation of Value of Life Estate —Case at Bar.—Neither in the instant case would the assignee of the life estate be entitled, if sued on the bond, to set' off the present value of the life estate against his obligations under the bond to return the principal in five years. A party who has a life estate in a fund arising from the proceeds of the sale of land is not entitled to have the value of his estate commuted and paid to him in gross, unless the parties in interest agree to it.</p> <p>3. Limitation of Actions—Running of Statute—Existence of Set-off. —The existence, of a set-off does not prevent the statute from running on the principal demand.</p> <p>4. Conversion and Reconversion—Fund in Court—Proceeds of Sale of Land—Subsequent Loan of Fund.—A fund in court was the proceeds of the sale of land of which a wife died seized in fee. For the purpose of ascertaining the rights of the parties thereto the lower court properly held that the money must be treated as real estate, and decreed curtesy therein to the husband and the remainder to decedent’s only daughter. This, however, was as far as the doctrine of conversion was applicable, and where the money was subsequently loaned under direction of court, it was loaned as money.</p>

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

Decree for complainant. Defendant assigns error. W. S. Powers, the father of the appellant and appellee, on May 11, 1898, executed and acknowledged a deed conveying three certain tracts of land therein described to appellant.

<p>Error to a judgment of the Corporation Court of the city of Roanoke in admitting a will to probate.</p>

<p>Appeal from a decree of the Law and Chancery Court of the city of Roanoke. Decree for complainants. Defendant appeals.</p>

<p>1. Infants—Contracts—Fraudulent Representation as to Age—Equitable Estoppel—Rescission by Infant.—An. order to charge an infant with equitable estoppel, he must be guilty of something more than a mere failure to disclose his infancy at the time he enters into the contract. If, however, he fraudulently represents that he is of full ago, or actively conceals his minority, and the other party is thereby induced to execute "the contract, then it is held that the infant will be estopped in equity by his own fraud to avoid the contract, on the ground of infancy, to the prejudice of the other contracting party.</p> <p>2. Infants—Contracts—Fraudulent Representation as to Age—Equitable Estoppel—Rescission by Infant.—It may be stated as a well-supported general proposition that, where one who, though an infant, has arrived at years of discretion, and by direct fraud or deception has entrapped another who was ignorant of the facts into waiving valuable property rights, such an infant will be estopped thereafter from relying upon his infancy to avoid such a contract.</p> <p>3. Infants—Contracts—Equitable Estoppel—Rescission by Infant— Case at Ba/r.—In the instant case, the infant falsely represented himself to have attained his majority, his appearance confirmed it, and he was in fact holding himself out to the community as an adult by his conduct in attending to all his business transactions just as an adult would; and in the transaction in question a conveyance of land in trust to secure a debt of his brother, the false statements of his brother and himself were made to induce the creditor to believe that he was of age and forego the collection of his debt by legal process, jHeld: That the lower court did not err in dismissing the irfant’s bill for an annulment of the deed of trust and of a conveyance by the trustee under it.</p>

<p>Appeal from a decree of the Circuit Court of Pulaski county. Decree for complainant. Defendants appeal.</p> <p>This suit involves the question of whether certain conveyances of property, made by the bankrupt within four months prior to the filing of the petition upon which he was adjudged a bankrupt, to bona fide creditors, for a consideration not in excess of the debts of such creditors and of the full value of the property, were made “with the intent and purpose on his” (the bankrupt’s) “part to hinder, delay or defraud his creditors, or any of them,” and were hence null and void under the provisions of subsection e of section 67, (hereinafter referred to as 67-e) of the bankrupt act of 1898, as amended in 1903, 1906, 1910 and 1917. (Comp. St., sec. 9651.)</p> <p>The conveyances in question were made on March 15 and 16, 1915, and thereafter duly and promptly recorded. The grantor thereafter prepared and intended to file a voluntary petition in bankruptcy. This petition was completed and sworn to on April 21, 1915, ready to be filed, but before it was filed creditors of the grantor, on May 15, 1915, filed a petition upon which the bankrupt was, on May 28, 1915, adjudicated an involuntary bankrupt, at which time the appellee was appointed the trustee in bankruptcy of such grantor.</p> <p>One of the conveyances was made to a son of the grantor in payment of a pre-existing debt to him and in accordance with a promise of the grantor made before the grantor became indebted to the creditors in bankruptcy. The other conveyance was made to the wife of the grantor, at the request of another son, in payment of a pre-existing debt to him, and likewise in accordance with a promise of the grantor made- before the grantor became indebted to the. creditors in bankruptcy. The indebtedness to these two sons, which furnished the consideration for the two conveyances aforesaid, as is affirmatively shown by the evidence in the cáse, arose in December, 1911, when the assets of a partnership in a mercantile business, theretofore owned by the father and sons, were sold and the purchaser paid the purchase money in part by conveying certain real estate to the father alone, instead, of to him and the two sons, and the father, without objection on the part of the sons, after-wards sold this real estate and used the money in part to purchase the very real estate which was conveyed by said deeds of March 15 and 16, 1915, upon the promise on the part of the father that he would “protect the interest” of the.sons in such money.</p> <p>The evidence also shows that, when the father bought the real estate which was conveyed to the son, Stephen, by the deed of March 15, 1915,. he intended it for this son at the time he bought it. This property had a tenant in it when it was bought, and, when the tenant moved out in October, 1913, the father put the son, Stephen, in possession of it and the latter moved into it at that time and has since.been in possession of it, claiming it as his own. That as of that time the father ceased to charge himself with interest on his $800.00 of indebtedness to this son, charged the son with this property at $800.00, the valuation of the property, in satisfaction of the debt, and, as he had put a lien on it in favor of the bank for $300.00, the father, at this time, gave this son his note for $300.00 as a set-off against the lien, and the son assumed the payment of this bank debt, and thereafter made payments of the interest and $50.00 on the principal of such debt. The $300.00 note given this son was unpaid at the time of the adjudication in bankruptcy.</p> <p>The evidence in the case shows that at the time the conveyances of March 15 and 16, 1915, were made, the grantor was, as sole owner, engaged in the retail mercantile business, and that his stock of goods would have inventoried at cost prices about $3,800.00. That his-bills receivable, consisting of store accounts on his books, due him by customers, would have aggregated about $1,800.00. And that, not including the real estate conveyed, as aforesaid, he owned four vacant lots, which were subject to a lien, but which were afterwards sold by the trustee in bankruptcy at public auction at a price which-after paying such lien left a balance of $179.62, making a total of $5,779.62; that his total indebtedness, then, outside of that satisfied by the conveyances aforesaid, was about- $4,000.00, leaving a net surplus upon these figures of $1,779.62.</p> <p>The evidence further shows that there was_ at that time none of the debts of the grantor in the hands of any attorney, or collection agency, for collection, so far as the grantor knew. The grantor testifies in substance that he then believed that if his creditors would give him a reasonable time to pay along on his debts he would be able to pay them all in full from his assets left after the conveyances aforesaid had been made.</p> <p>The evidence further shows, however, that unknown to the grantor, an attorney had received for collection one of the debts of the grantor, an open account for $265.00, on March 13, 1915, but this attorney did not write to. the grantor about it until March 16, and the letter, does not appear to have been received by the grantor until after that date. On March 19, the grantor gave the attorney a note covering this debt, payable April 10, 1915, with interest, and on April 16 he made a small payment on it. Immediately following that time, this attorney received a number of other claims against the grantor, and the attorney, without any further communication with him, instituted suits against the grantor as follows: On April 16, 1915, on the claim first above mentioned for $265.00; on April 17, 1915, on other claims for $606.00 and $38.83; and on April 19, 1915, on another claim for $19.60. This attorney testifies in the case to the effect that while he was pressing the debtor for the payment of the claim first mentioned, before suit was brought on it, the debtor stated to the attorney “that he could not pay, that he owed a good many debts, but that he wanted to pay them if he could. I think he stated that he had been giving checks dated ahead and that creditors were pushing him for payment. I know that I was insisting very strongly for my claim, feeling as though he were in failing circumstances from information I had gotten from him and others. * * * My recollection is that he stated that if his creditors would give him some time, he hoped to pull through, but if they pressed him he could not do it. He stated that he owed a large amount and was making an effort to pay off all his creditors. He seemed to be fighting for time * * *.”</p> <p>It further appears from the evidence that the debts of the grantor asserted in the bankrupt proceedings ag- < gregated ...................................$3,764.00 which included the bank debt of............... 300.00 which was a lien on the real estate conveyed to his son, Stephen, as aforesáid. Deducting this, there were left of these debts .......................$3,464.00</p> <p>The trustee had an inventory and appraisement made on June 3, 1915, which showed a total stock of goods valued at $2,121.00, it not appearing whether the inventory was made at or below cost.</p> <p>There were bills receivable on the books of the bankrupt at this timé aggregating $1,400, but which the appraisers “estimated and reported as being uncollectible, or probably • five per cent of same could be collected.”</p> <p>The trustée sold the stock “in'Juñe or July, 1915,” and realized from same and bills receivable $1,559.44.</p> <p>The evidence in the cause further shows that at the time of' said conveyances in March, 1915, the sons' and wife of the grantor did not know that he was insolvent, if he was then insolvent, and did not know that such deeds were made to hinder, delay, or defraud creditors of the grantor, if they were in fact made with such intent on the part of the grantor, nor did they or either of them, have reasonable cause to believe that such conveyances were intended to effect a preference among the creditors of the grantor.</p> <p>In the decree of November 15, 1917, which settled the principles of the cause, and upon which the final decree was based, this is said:</p> <p>“* * * the court doth consider that the conveyance dated March 15, 1915, from McNeal to Stephen F. Surratt, and the conveyance dated March 16, 1915, from McNeal Surratt to Alice M. Surratt, filed as exhibits ‘C’ and ‘D,’ respectively, with the bill, were made within four months of the adjudication of said NcNeal Surratt as a bankrupt when said McNeal Surratt was insolvent to his own knowledge, and were made in consideration of pre-existing indebtedness from said McNeal Surratt to Stephen F. Surratt and M. T. Surratt, filed as exhibits ‘C’ and ‘D,’ respectively (the latter having directed the deed, Exhibit ‘D,’ to be executed to Alice M. Surratt, his mother, instead of to himself), and with the intent to prefer said Stephen F. Surratt and M. T. Surratt as creditors, and are preferences to the extent of the value of the properties thereby conveyed respectively, voidable and recoverable, under the provisions of section 67-e of the Federal- bankruptcy act, though not voidable under the Virginia statutes of fraudulent and voluntary conveyances.” (Italics supplied.)</p> <p>The first decree of February 24, 1919, held that the value of the real estate conveyed to the son, Stephen, by the deed of March 15, 1915, was $700.00; that the value of the property conveyed to the wife by the other deed was $800.00; and provided that the sum of $700.00 with interest from March 15, 1915, be charged as a lien against the former property, less the bank debt of $250 as it then stood, and that .the;sum-of-$800.00 with interest from March 16, 1915, be charged- as a lien against the latter property; and that unless these sums were paid to the trustee in bankruptcy within sixty days from the rising of the court, a special commissioner thereby appointed, was directed to sell such property, etc.-'. ■</p>

<p>Error tó a judgment of the Circuit Court of Russell county in an action of unlawful detainer. Judgment for defendants. Plaintiffs assign error.</p>

Judgment for the taxpayer. The town assigns error. This is a proceeding in which the plaintiff in error moved the court below, under section 2389 of the Code of 1919, for relief from the payment, and to require the return and refunding of an ad valorem tax and penalty thereon, which tax the town of Appalachia, one of the defendants in error, by a levy ordered by its council, imposed for town purposes upon the capital of the plaintiff in error employed in its business as a…

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

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

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

<p>1. Mandamus—Pub lie Duty—Interest of Relator.—When the duty the performance of which is sought to be coerced is a public duty, and the interest relied on by the petitioner in mandamus is the interest which the petitioner has in the enforcement of the laws, then such interest is a sufficient interest to entitle him to maintain mandamus proceedings.</p> <p>2. Elections—Treasurer’s List of Voters Who Have Paid Poll Taxes —What Names List Must Include.—Section Zl, Constitution of 1902, provides as a prerequisite to the right to vote that the voter should have paid “at least six months prior to the election, all State poll taxes assessed ór assessable against him, under this Constitution, during the three years next preceding that in which he offers to vote.” Section 38 of the Constitution and section 109 of the Code of 1919 require county and city treasurers to file a list with the clerk -of court of all persons who have paid not later than six months prior to an election, the State poll taxes “required by this Constitution during the three years next preceding that in which such election is held.”</p> <p>Held: That the persons to appear on the treasurer’s list are the persons who have paid the poll taxes for any or all of the three years, unless it appears that such persons have failed to pay . the assessed taxes for one or more of the years.</p> <p>3. Elections—Treasurer’s lAst of Voters Who Have Paid Poll Taxes —What Names List Must Include.—In other words, the treasurer’s list is not to be confined to those who paid poll taxes for three years, but includes a person who is only assessed or assessable with poll tax for one or two years and who has paid the same, such as minors coming of age and chargeable with only one or two years’ taxes, or persons changing their residences and who have paid the taxes required of them as a prerequisite to voting.</p> <p>4. Words and Phrases—“During.”—“During” has the meaning of “in the time of,” as well as that of “throughout the course or continuance of,” and it is used in section 38 of the Constitution of 1902 in the phrase, “during the three years” in the former sense.</p>

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

<p>1. REAL ESTkTE BROKERs-Actio~z for ConvmAssions-Pa'rol Evidence Explaining Contract of Sale&emdash;Case at Bar.&emdash;In an action by a real estate broker for commissions, plaintiff introduced a contract of sale between defendant and a husband and wife. Plaintiff and other witnesses were allowed to testify in contravention of the contract of sale that the husband and wife were not joint pur chasers, that it was never proposed that the wife should be a purchaser, and that while her name appeared in the contract as a joint purchaser with her husband, it was put there merely to indicate that when the deed was made, the same should be made to the husband and wife jointly.</p> <p>Held: That the reception of this testimony was not error.</p> <p>2. REAL ESTATE BRoKERS-A ct~on for Co'inmissions-Parol Evidence Explaining Contract of Sale&emdash;Case at Bar.&emdash;In the instant case the broker did not offer the contract of sale apparently between defendant and a husband and wife for which he claimed Commissions, as a complete, valid contract, according to its apparent effect, claiming under one feature and repudiating or contradicting another, .but offered it as the sole and exclusive contract of the husband according to its real meaning, purpose and effect; and it was not to the prejudice of the broker’s rights that in another action defendant undertook to hold both the husband and wife under the writing, and induced the broker to employ counsel in aid of that effort, and even to pay a part of counsel’s fee.</p> <p>3 REAL ESTATE B~oTcEEs-Action for Cornmission8-Evidence Si4-ficient to Support Verdict.&emdash;In the instant case, an action bjy a real estate broker for commissions, the evidence satisfied 'the jury that the broker had produced a purchaser ready, willing, and able to buy on terms authorized by the owner, or acceptable to him, and that a valid contract had been entered into between purchaser and defendant.</p> <p>Held: That, as the case was submitted to the jury under instructions that fully and correctly set out the law, a verdict of the jury for plaintiff resolved all issues of fact in his favor; and conceding that credence should be given to the testimony for the plaintiff, the testimony fully sustained the verdict.</p> <p>4. Appeal and Ekkor—Second Appeal—Law of the Case.—On the first appeal, in an action by a real estate broker for commissions, the following statement appeared in the opinion of the court: “In point of fact the farm was never sold, though the evidence shows defendant did all in his power to consummate the sale that plaintiff undertook to negotiate.” On second appeal defendant contended that this was decisive on the merits of the controversy. On the first appeal the judgment in favor of the broker was reversed, on the ground that a peremptory instruction was granted by the court, directing a verdict for the plaintiff, and that, as the evidence presented conflicting theories of the case, defendant was entitled to an instruction submitting his theory to the jury.</p> <p>Held: That-the statement quoted from the opinion on the first appeal was not to be considered as controlling on the second appeal as a determination of fact.</p> <p>5. Appeal and Error—Second Appeal—Law of the Case.—On a second appeal where the judgment on the first trial had been reversed for error in the instructions and the case remanded, defendant claimed that a statement in the opinion of the court on the first appeal was decisive of the case on the merits of the controversy. In view, however, of the fact that the case was remanded to be tried on the merits, it seems in the highest degree unlikely that the court, in a statement not necessary to have been made, should have undertaken to decide the ease against the plaintiff on the very question of fact directed to be submitted to the jury under instructions that would properly present the opposing theories of the litigants.</p>

<p>' Error to a judgment of the Circuit Court of Rockingham county in an action of debt. Judgment for defendant. Plaintiff assigns error.</p>

<p>Appeal from a, decree of the Circuit Court of Page county construing a will. Decree for heirs and distributees. Administrator appeals.</p>

<p>Error to a judgment of the Circuit Court of Nelson county in proceedings under the general road law to establish a county road. Judgment for the board of supervisors. The landowners assign error.</p>

Judgment for defendant. Plaintiff assigns error. This' is an action of trespass on the case in assumpsit brought by the plaintiff in error bank, as plaintiff in the court below, against the defendant in error Connoley, as defendant in the court below, to recover the sum of $1,000.-00, the amount of a draft belonging to the bank entrusted to and received by Connoley under certain instructions which did not authorize him to cash the draft, but which Connoley, in excess or in…

Judgment for defendant. Plaintiff assigns error.. This is an action of trespass brought by the plaintiff in error, as plaintiff in the court below, against the defendant in error, as defendant in the court below, seeking to recover damages for an assault and battery committed upon the plaintiff by thé defendant as alleged in the declaration.

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

<p>Appeal from a decree of the Circuit Court of Augusta county construing a will. From the decree the named defendant appeals.</p>

<p>Appeal from a. decree of the Circuit Court of Rocking-ham county. Decree for complainant. Defendants appeal.</p>

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

Judgment for defendant. Plaintiff assigns error. This is an action of trespass on the case in assumpsit instituted by Ney, the plaintiff in error, as plaintiff in the court below, against Haun, the defendant in error, as defendant in the court below, to recover alleged damages to a certain victrola and other articles of furniture, which the defendant undertook for hire to carry for the plaintiff from the city of Harrisonburg, Va., to the city of Washington, D. C., by means…

<p>1. Railroads—Government Control—Liability of Companies—Dismissal of Action Against Company.—By the establishment of the Railroad Administration and subsequent orders of the Director General, the carrier companies were completely separated from the control and management of their systems, and no liability arising out of the operation of these systems was imposed upon the owner companies.</p> <p>2. Railroads—Government Control—Liability of Companies—Parties—Action Against Company and Director General—Dismissal of Action Against Company.—Where an action was brought by an administratrix against a railroad company and the Director General of Railroads, for the killing of her decedent by a train, while the system was being operated by the Director General, the court should have entertained the motion of the railroad company to dismiss the action against it, yet under; Code of 1919, section 6365, this does not affect the liability of the Director General.</p> <p>3. Witnesses—Assumption that a Witness has made a Statement which he has not made—Cross-Examination.—It is not fair, even upon cross-examination, for attorneys to assume that a witness has made a statement which he has not made, and such a practice should be firmly restrained by the trial courts.</p> <p>4. Witnesses—Assumption that a Witness has made a Statement which he has not made—Cross-Examination—ELa/rmless Error. —Although counsel by a question should not impute to a witness a statement which he has never made, yet where the witness in answer to such a question denied making such statement, and the court immediately reversed its ruling and sustained the objection to the question, the error so quicHy and completely corrected was not prejudicial.</p> <p>5. Railroads—Last Clear Chance—Licensee Working Near Track.— Plaintiff’s decedent was a licensee engaged in grading work on the railroad. The trainmen had notice to operate trains at that point with caution. Before the occurrence of the casualty the fireman appreciated the danger of decedent and his unconsciousness thereof and notified the engineman of the fact, and according to the testimony of many witnesses, notwithstanding the discovered peril of the deceased, the train was not brought under control, and no warning signal was given until it was too late. The engineman testified that he was within fifty feet of the deceased when he first saw, or could have seen, him and that he did everything that he could do to save him.</p> <p>Held: That the issue of fact under the last clear chance doctrine was for the jury, and their verdict in favor of plaintiff was not contrary to the law and the evidence.</p>

Question certified from the Industrial Commission pursuant to section 61 of the workmen’s compensation act (Acts 1918, p. 637). Claimants held entitled to compensation.

<p>Error to a judgment of the Corporation Court of the city of Buena Vista in an action of detinue. Judgment for defendant. Plaintiff assigns error.</p>

<p>1. Notice of Motion fob Judgment—Return Within Five Days After Service—Assumption that Return is Within the Five Days.— Section 6046 of the Code of 1919 requires that the notice of motion for a judgment for damages shall be returned to the clerk’s office within five days after service. And where the date of service does not appear from the record, but no objection is made on that account, it will be assumed on appeal that the return was within the five days required by the statute.</p> <p>2. Service of Process—Return Day—Section 6055 of the Code of 1919.—Section 6055 of the Code of 1919 declares that unless otherwise provided, “process from any court, whether original, mesne, or final * * * shall be returnable within ninety days after its date,” and it has been held that process which on- its face is not so returnable is void.</p> <p>3. Notice of Motion for Judgment—Action at Law.—A proceeding by motion for a judgment under section 6046 of the Code of 1919 is an action at law.</p> <p>4. Notice of Motion for Judgment—Notice Takes Place of Writ and Declaration.—A notice in a proceeding under section 6046, Code of 1919, takes the place of the writ and declaration. This does not mean, of course, that they are identical; but that the notice serves as a citation of the defendant mentioned therein, and also states the ground of the action. No rules are taken as in a regular action, but the procedure is largely informal.</p> <p>5. Notice of Motion for Judgment—Musi State a Good Cause of Action.—A notice in a proceeding -by notice of a motion for judgment, so far as it serves as a substitute for the declaration, must state, in substance, a good cause of action, else it will be bad on demurrer.</p> <p>6. Notice of Motion for Judgment—Returnable Within Ninety Days After Date.—Although section 6046, Code of 1919, fixes no appearance day for the notice, yet the general rule requiring an act to be done in a reasonable time, where no time is fixed, is applicable, and as section 6055 of the Code of 1919 provides that all process shall be returnable within ninety days from its date, a reasonable time for the return of notice of a motion for judgment will be held by analogy to be within ninety days after its date.</p> <p>7. Notice of Motion foe Judgment—Returnable Within Ninety Days After Date—Case at Bar.—In the instant case, a proceeding by notice of a motion for judgment for damages, the notice was returned to the clerk’s office November 3, 1919, and notified defendant that the judgment would be asked on the first day of the March term, 1920 (March 20, 1920), the day appointed therefor by law. The notice passed over the November term, 1919 (November 20), although there was ample time to mature the case for that term, and notified the. defendant to appear 138 days after it was returned executed to the clerk’s office.</p> <p>Held: That the trial court should have sustained a motion to quash the notice and dismiss the action, and that its failure to do so was error. The objection was not merely formal, but fundamental and substantial, going to the jurisdiction of the court.</p> <p>8. Woeds and Phrases—Reasonable Time.—What is a reasonable time is a very indefinite term, varying as to the act to be done and the circumstances of the particular case.</p>

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

<p>1. Limitation of Actions—Non-Residenee—Burden of Proof.—Plaintiff in attachment proceedings against defendant alleged defendant to be a nonresident, and set up a contract alleging a breach thereof and damages resulting therefrom. Defendant expressly pleaded the statute of limitations. On the trial it appeared that more than three years had elapsed (the statutory period) after the cause of action accrued, and hence, without more, was barred; but plaintiff claimed that defendant was a nonresident during the whole of the period involved.</p> <p>Held: That the burden of proof was upon the plaintiff to prove the fact of such nonresidence.</p> <p>2. Limitation of Actions—Waiver of Plea—Failure to Call Attention of Jury to Plea.—Where the statute of limitations has been expressly pleaded and relied upon, it is one of the issues involved, and it cannot be inferred that defendant withdrew or waived his plea from the fact that no mention of the statute was made, during the trial of the case, no instruction asked on the subject, no mention thereof made in the argument, and the attention of the jury in no way called to the defense, except in ' so far as the same was relied on in the answer.</p>

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

Judgment for the Commonwealth. Defendants assign error. On October 6, 1920, the following order was entered in this case, to-wit: “Commonwealth of Virginia v. Violation of the Prohibition Law.

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

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

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

The accused was indicted for the murder of the deceased, Frank Raymond Barker. The indictment is in the form of an indictment for murder at common law. There was a trial by jury. The verdict of the jury found the accused guilty of murder in the second degree, as charged in the indictment, and fixed his punishment at ten years’ confinement in the penitentiary. The trial court entered judgment and sentenced the accused accordingly.

<p>1. JUDICIAL NoTIcE-Into~~icctting Liq~wr.s-Corn Whisk~y Intoxicating &emdash;Ardent Spirits.&emdash;It is a matter of common knowledge that corn whiskey is intoxicating, and section 1 of the prohibition act declares that “whiskey” shall be embraced in the term “ardent spirits.”</p> <p>2. INTOXICATING LIouoRs-"T?ansportatiov"-" Ulti'rna t~ Destination.”&emdash;An “ultimate destination” at a fixed point is not necessary to constitute “transportation” within the meaning of the prohibition statute.</p> <p>3. INTOXICATING LIQUORS-Trcvnsporta~tion to be D'rz~nk Along the Road&emdash;Baggage&emdash;Burden of Proof&emdash;Less Than a Quart of Liquor&emdash;Case at Bar.&emdash;In the instant case accused invited two friends to accompany him in his automobile to the country. On the trip accused obtained some corn whiskey in a half-gallon jar, from which on the return trip they all drank. It did not appear whether the jar contained more or less than a quart of whiskey.</p> <p>Held: That the transportation was not in the personal baggage of the defendant; that the transportation to be drunk along the road was unlawful, and that there was no burden on the Commonwealth to show that the jar contained more than a quart.</p>

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

In this case the accused was indicted in Augusta county on December 9, 1920, upon the charge of rape committed in that county upon the person of the prosecutrix, who was of the age of about seventeen years. . On the same day there was a trial by jury in said county, the accused being represented by counsel assigned by the court. The jury not having reached an agreement upon a verdict, the case was continued over to the next day, December 10th.

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

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

In this case there was a, trial by jury and a verdict finding the accused guilty of offering ardent spirits for sale, contrary to the statute (sec. 3 of the prohibition act of 1918, Acts 1918, p. 578), and fixing the punishment of the accused in accordance with another section of the same act. Whereupon the accused moved the court to set aside the verdict as contrary to the law and the evidence.

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

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

<p>1. Prohibation Law-Evidence of Other Cri'ines-Res Gestae-Case at Bar.&emdash;In a prosecution for unlawfully transporting liquor, accused had been arrested for reckless driving and the liquor in question was found on his person. On the trial the officers who arrested him were allowed to testify as to the events which preceded the finding of the liquor in the overcoat pocket of accused, including the fact that they were about to arrest accused for reckless driving.</p> <p>Held: That this evidence was properly admissible as part of the res gestae, and was not within the rule forbidding testimony relating to other crimes.</p> <p>2. PROHIBITION LAW-Ev~dence of Other C'rimes-Cross-Ec~ami'mation in Regard to Other Crimes.&emdash;In a prosecution for violation of the prohibition law by the transportation of liquor, the officers who arrested accused testified that when they found the liquor in question they were about to arrest accused on another charge for reckless driving. To this evidence accused objected. Upon cross-examiriation, attorneys for the accused inquired into the occurrences which preceded the discovery of the liquor, and accused himself also related his recollection of all the circumstances immediately preceding his arrest.</p> <p>Held: That by this course accused waived his original objection to the testimony, so that, eyen if incompetent, it furnished no ground for reversal.</p> <p>3. PRoHIBITION LAw-Baggage-Liquor Carried on Person.-The express permission of section 39 of the prohibition act. (Acts 1918, ch. 388) to a traveler to carry as much as one quart of ardent spirits in his baggage is equivalent to an inhibition against carrying it on the person; and intoxicating liquor carried in a pocket of the traveler’s clothing which he is at the time wearing is being carried on. his person, and not in his baggage.</p> <p>4. PROHIBITION ACT-Transportation Not for Sale-Section 3 of Acts 1918 ch. 388.&emdash;Under section 3 of the prohibition act (Acts 1918, ch. 388), forbidding any person “to manufacture, transport, sell, keep, or store for sale” ardent spirits, it is unlawful to transport liquor except in the baggage of accused whether the liquor is for sale or not.</p> <p>5. Intoxicating Liquors—Transportation of Liquor—Evidence of Other Offenses—Provision as to JoAl Sentence Where Offense is Inadvertent.—Upon a prosecution for the unlawful transportation of liquor, under the questioning of the court a witness was allowed to testify that he had heard prior to the case on trial that accused had operated his car while under the influence of liquor.</p> <p>Held: That this testimony was inadmissible, both because it was hearsay and irrelevant; and notwithstanding that the evidence of the transportation was clear, its admission was not harmless in view of section 5 of the prohibition act, Acts of 1918, p. 579, providing that the trial court shall instruct the jury not to impose a jail sentence where the violation of the law is unintentional or inadvertent, and of accused’s testimony that his violation of the statute was inadvertent.</p> <p>6. Prohibition Act—Provisions as to Jail Sentence Where Offense is. Inadvertent—Inquiry into Other Offenses.—By section 5 of the Prohibition Act (Acts 1918, p. 579) the General Assembly apparently intended to provide that where the defense was made that the violation was unintentional and inadvertent, and such defense was not made as a mere subterfuge by an habitual or deliberate violator of the law, and it did not appear from other legitimate evidence introduced upon the trial that there had been other violations of the statute, then there should be no imprisonment. Such other violations might very well incidentally appear from the evidence, but it was not meant that the court could divert attention from the crime charged and investigate other possible offenses in order to determine whether the extreme or the modified punishment should be inflicted.</p> <p>7. Prohibition Act—Provision as to Jail Sentence Where Offense is Inadvertent—Inquiry, into Other Offenses.—Where in a prosecution for violating the prohibition act by the transportation of liquor, accused, a man of good character, claimed that his act was unintentional and inadvertent it cannot be assumed in determining whether accused was entitled to the benefit of section 5 of the prohibition act (Acts 1918, p. 579) that he must have been violating the law against drinking on a public highway, because the bottle containing the ardent spirits was •partly emptied, and because his intoxication was apparent, when arrested on the highway, where he testified to have taken a “right good drink” before leaving home.</p> <p>8. Prohibition Act—Provision. as to Jail Sentence Where Offense is Inadvertent.—Section 5 of the prohibition act (Acts, 1918, p. 579) imposes upon the trial courts the- responsibility of applying the ameliorative punishment of fine without imprisonment in every case where it appears that the crime is inadvertent, and where punishment by fine is sufficient to vindicate the law.. The exercise of discretion so vested in the trial court will not. be reviewed by the Supreme Court of Appeals except in cases-of clear abuse of that discretion, or where based upon illegal and inadmissible testimony.</p> <p>9. Prohibition Act—Surety to Keep the Peace.—The bond authorized by section 43 of the prohibition act (Acts 1918, p. 608) is intended as a precautionary measure to prevent future violations of the law by a convicted person who is likely to be guilty of such violations. But where a man of good character has. violated one of the provisions of the act, and there is no evidence indicating that he is likely again to do so, it is not proper to require him to execute a bond of $1,500, conditioned that he-will not violate any of the provisions of the act for the term, on one year.</p>

<p>1. Ordinances—•Resolution of Board of Supervisors—Certainty.— An ordinance of a regulatory nature must be clear, certain, and definite, so that the average man may, with due care, after reading the same, understand whether he will incur a penalty for his action or not, and, if not of this character, it is void for uncertainty.</p> <p>2. Streets and Highways—Obstruction—Action by Municipality or County.—Municipalities have the power to maintain such actions at law or in equity as may be appropriate to prevent and abate nuisances obstructive of highways, or rendering them useless.</p> <p>3. Statutes—Ordinances—Certainty—Test.—A statute or ordinance, to be valid, must by its language, fairly construed and with reference to common-law definitions (if the act denounced as a crime was punishable at common law), supply the standard by which the guilt of the accused person is to be determined. If the statute does not thus supply such standard, it is invalid for vagueness and uncertainty, but if it does, it is valid.</p> <p>4. Streets and Highways—Obstruction as Nuisance—Anything Making Highway Dangerous to Traveler.—That • obstructions or encroachments upon a highway per se constitute a public nuisance, even when they do not actually operate as an obstruction to travel, is well settled, and it follows that the same is true of anything which interferes unreasonably or unnecessarily with its use by the public, or which makes the highway more dangerous for travelers thereon'.</p> <p>5. Streets and Highways—Validity of Act Authorizing Special Legislation by Boards of Supervisors.—Code of 1919, section 2013, authorizing boards of supervisors to enact special legislation deemed expedient to protect the highways from encroachment or obstruction, or from any improper or exceptionally injurious use thereof, is authorized by section 65 of the Constitution of 1902, and is valid.</p> <p>6. Streets and Highways—Resolution of Boa/rd of Supervisors—■ Certainty—Heavy Hauling in Wet Weather.—Under the authority of section 2013 of the Coda of 1919, a board of supervisors by resolution forbade the use of the roads when so wet as to be “materially damaged” thereby to certain specified heavy vehicles and all heavily laden wagons or trucks.</p> <p>Held: That there was nothing indefinite about the resolution in so far as it designated the prohibitive vehicles, and the time and circumstance under which the use of such vahicles was prohibited was clearly indicated.</p> <p>7. Streets and Highways—Resolution of Board of Supervisors— Certainty-—Heavy Hauling in Wet Weather.—In order to convict under a resolution of a board of supervisors, pursuant to Code of 1919, section 2013, forbidding the use of the roads to heavy vehicles when so wet as to be “materially damaged” thereby, it must be shown by the evidence that there was an improper and exceptionally injurious use of the highway under , the circumstances indicated.</p> <p>8. Instructions—Reasonable Doubt-—Repetition.—Where in three instructions given the court fully protected every right of the defendant to be acquitted if there was any reasonable doubt of his guilt, it was unnecessary to repeat that doctrine in an instruction which was refused, and the error, if any, was harmless.</p> <p>9. Streets and Highways—Using Heavy Vehicles on Wet Highway —Use by Other Persons.—Accused, charged with the violation of a resolution of a board of supervisors against the use of highways by heavy vehicles when so wet as to be “materially damaged” thereby, requested an instruction to the effect that if the jury believed that other reasonable persons used the roads at the time defendant was charged with using them, with wagon or trucks of similar land and weight, defendant had the right to assume that such use was proper and would not be guilty.</p> <p>Held: That the refusal of this instruction was not erroneous, as defendant’s guilt or innocence did not depend upon what other reasonable persons did. It must determine for itself at its peril whether or not it would use the road when it was wet.</p>

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