Volume 136 — Virginia Reports

Judgment for defendant. Plaintiff assigns error. This is an action of trespass on the case instituted by the plaintiff in error, McClannan, the tenant of a farm in Princess Anne eounty (who will be hereinafter referred to as plaintiff), against the defendants in error (who were special police officers appointed by the court under section 4797 of the Code, and who will be hereinafter referred to as the defendants, or as the defendant officers), seeking to recover compensatory…

<p>1. Alimony—Contracts for Payment of Alimony—Contract for Payment of a Certain Sum in Lieu of Alimony.—-While the validity of contracts for the payment of alimony, as such, made by the parties during the pendency of a divorce suit has been questioned, yet a contract for the payment of a certain sum of money in lieu of alimony will be sustained.</p> <p>2. Contbacts—Termination of Contract—Death of Party to Contract.—The general rule is that the death of a party does not terminate a contract, if it is not of a personal nature. And the facts and circumstances of each particular case will be taken into consideration in determining whether the 'contract is purely personal in its nature, and therefore terminated by the death of the party.</p> <p>3. Alimony—Decree for Alimony—Decree Approving a Settlement Between the Parties.—A decree of court, approving a contract between parties providing for payments in lieu of alimony and for the settlement of the property rights of the parties, is not a decree for alimony, and the court has no jurisdiction in the divorce suit to enforce compliance with the contract, nor to alter its terms upon subsequent application of one of the parties.</p> <p>4. Alimony—Contract to Pay a Wife a Certain Sum in Lieu of Alimony— Contracts—Impossibility—Death of Wife—Case at Bar.—In the instant case, a suit for a divorce by a wife, the wife prayed for a divorce a mensa, and at the end of three years for a divorce from the bonds of matrimony. Shortly before a decree was entered in the divorce suit the husband and wife entered into an agreement under which the husband was to pay the wife the sum of $25 a month for a period of three years, and upon final adjudication in the divorce suit to pay her the sum of $5,000 in full settlement of all her property rights by reason of the marriage. A decree was entered granting the complainant a divorce from bed and board and the decree contained a clause approving the settlement as to alimony and property rights. Thereafter, while the divorce suit was still on the docket of the court, the wife died. Defendant contended that although the death of the wife would not have the same effect as it would have had in the case of an ordinary decree for alimony, yet the contract became impossible because of her death, as the 35,000 was only to be paid when a final adjudication was had in the divorce case.</p> <p>Held: That the promise to pay the 35,000 was an absolute promise, its payment being postponed until a certain time; that the death of the wife rendered the arrival of that time in the exact terms of the agreement impossible, but that the death of the wife was not to be given the effect of a default on her part. The wife having died, preventing the final adjudication of the divorce case, which the parties had in mind, the right to the payment of the 35,000 became fixed after the lapse of a reasonable time; the defendant having received the entire consideration for the promise of payment.</p>

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

<p>Error to a judgment of the Circuit Court of the city of Newport News, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.</p>

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

Judgment for defendant. Plaintiff assigns error. This is an action instituted by the plaintiff in error, C. O. Petherbridge (hereinafter called plaintiff), against the defendant in error (hereinafter called the defendant county), seeking to recover of the defendant county the amount of the plaintiff’s claim, which was disallowed by the board of supervisors, for the sum of $467.50, for killing, during the period from May 10 to October 11, 1920, inclusive, 187 untagged dogs in…

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

<p>1. Ships and Shipping-Loss of Barge-Action by Lessor for Negligence of Lessee.-In the instant ease, an action by lessor of a barge against the lessee for damages to the barge, the foundation of plaintiff’s claim for damages was the negligence of the defendants, and unless plaintiff could.show such negligence she was not entitled to recover any damages.</p> <p>2. Negligence-Pleading and Proof.-Negligence, as a cause of action* must be pleaded and proved.</p> <p>3. Negligence-Pleading and Proof-Loss of Barge-Case at Bar.-In the instant case, an action by lessor of a barge against the lessee for damages to the barge, the notice of the motion claimed 35,000 “damages done to the said barge in the month of February, 1920, due to your negligence in the management and handling of the said barge.”</p> <p>Held: That the negligence of defendant was sufficiently alleged, but that it was also necessary for the plaintiff to prove this negligence to entitle her to recover.</p> <p>4. Ships and Shipping-Negligence-Action by Lessor of Barge Against Lessee-Burden of Proof-Instructions.-In the instant case, an action by lessor of a barge against the lessee for negligent damage to the barge, the burden was on the plaintiff to prove the negligence of defendants, and it was the duty of the court to so instruct the jury, upon request.</p> <p>5. Ships and Shipping-Action by Lessor of Barge Against Lessee-Burden of Proof as to Negligence-Instructions-Case at Bar.-In the instant case the charge preferred by the plaintiff in her notice of motion was. that the defendants had been negligent in the management and handling of a barge, leased defendants by plaintiff, and the burden was upon plaintiff to prove this charge; hence it was error to instruct the jury that “the burden of proof is on the defense to show that they were not. negligent in the use of the barge.”</p> <p>6. Negligence-Burden of Proof-Shifting of Burden of Proof.-Where the plaintiff’s cause of action grows out of the alleged negligence of the defendant, the burden is on the plaintiff throughout the case to prove the negligence of the defendant. It never shifts to the defendant.</p> <p>7. Negligence—Burden of Proof—Shifting of Burden of Proof—Presumption or Inference of Negligence.—-In an action for negligence, it may be that, upon proof of a given state of facts, a presumption or inference of negligence on the part of the defendant may be drawn which will entitle the plaintiff to a verdict, if no further evidence is offered by the defendant, but in such case, in the absence of any evidence for the defendant, the plaintiff has carried the burden of proof imposed upon him. He has not transferred it to the defendant.</p> <p>8. Negligence—-Burden of Proof.—Where the plaintiff’s cause of action grows out of the alleged negligence of the defendant, if, when all the evidence is in, the matter is in equipoise, the plaintiff must fail. The negligence of the defendant must be proved by affirmative and preponderating evidence. There must be more than a probability of negligence. If, upon the whole case, the conduct of the defendant is equally consistent with the existence or nonexistence of negligence on his part, then the plaintiff has failed to make out his case.</p> <p>9. Ships and Shipping—Negligence—Burden of Proof.—In the instant case, an action against the lessee by the lessor of a barge, plaintiff relied upon the negligence of defendants in the management and handling of the barge. The defendants denied the negligence and claimed that the damage was due to the unseaworthiness of the barge, and introduced evidence to sustain the defense.</p> <p>Held: That while the delivery of the barge to the defendants in good condition, and its return to the plaintiff in bad condition, created a presumption of negligence on the part of the defendants yet if the aforesaid defense was sustained by the evidence for the defendants, or if it left it doubtful as to which cause the damage was due, plaintiff was not entitled to recover.</p> <p>10. Bailments—-Action of Bailor Against Bailee for Negligence—-Shifting of Burden of Proof—Presumption of Negligence.—Where a bailor alleges and proves simply the delivery of the property to the bailee and the latter’s failure to return it on demand, a prima facie case is made out against the bailee; the same is true if it is proved that the property was delivered to the bailee in good condition and was returned damaged in such a way as does not usually occur by the exercise of proper care. In either case negligence will be presumed. But if the bailee proves that the property was stolen or destroyed by fire, or accounts for his failure to return or for the injury in any other way which does not on its face involve negligence or call for further explanation, the bailor must prove negligence. In other words, the bailor at all times has the burden of proof (at least unless the property is injured or destroyed while being used by a different person or for a different purpose than that for which it was delivered to the bailee); but proof of certain facts make out a prima facie case rendering the bailee liable in the absence of explanation, and requiring proof on his part to overcome a presumption of negligence.</p>

<p>Appeal from an order of the State Corporation Commission.</p>

<p>1. Trusts and Trustees-Suit for Administration of Trust-Confirmation of a Sale After the Objects of the Suit have been Fully Accomplished-Taxes-Case at Bar.-A grantor conveyed Ms property to trustees to secure the payment of his creditors and provided that after all Ms indebtedness was paid the residue of his property should be conveyéd by the trustees to his wife and cMldren, share and share alike. The widow of the grantor brought her suit in equity asking the court to administer the trust. After all the objects of tMs suit had been fully accomplished by the payment of all the debts of the grantor, the widow filed an amended or supplemental bill setting out a sale of certain land by the widow acting for herself and her cMldren, and asking to have it confirmed, and stating that there was $300 of taxes unpaid on that and other lands formerly owned by the grantor.</p> <p>Held: That as the object of the suit had been fully accomplished, the court had no power to make further sales of land or to confirm the sale made by the widow, and that as nearly all of the taxes accrued after the death of the grantor, they were not his debts and were not secured by the deed of trust.</p> <p>:2. Bill in Equity-Amended or Supplemental Bill After Final Decree.Where the whole object and purpose of an original suit to administer a trust has been fully accomplished, the court has no power to receive an amended and supplemental bill in the cause, setting out a sale by one of the beneficiaries on her own behalf and on behalf of her infant children, and asking that it be confirmed. There can be no such thing as an amended and supplemental bill in an ended cause.</p> <p>-3. Bill in Equity-When Amended Bill Treated as an Original Bill-Sale of Infants’ Lands.-Where a bill tendered as an amended and supplemental bill in a suit for the administration of a trust asks for the confirmation of a sale of land by the beneficiaries of the trust (the widow and infant cMldren of the grantor) was not good as an amended or supplemental bill, it cannot be considered good as an original bill, where it lacked every essential of a bill for the sale of infants’ lands under the statute.</p> <p>4. Partition—Infant Parties—Infants Not Made Defendants.'—Where a bill tendered as an amended and supplemental bill in a suit for the administration of a trust asks the confirmation of a sale of land by the beneficiaries of the trust (the widow and infant children of the grantor) was not good as an amended or supplemental bill, it cannot be considered good as a bill for partition, because the bill was filed by the widow and infant children, and the only defendants were , the trustees and administrator of the grantor. There was no one to act on behalf of the infants by appointment of the court.</p> <p>5. Trusts and Trustees—Suit for Administration of Trust—Confirmation of a Sale After the Objects of the Suit Have Been Fully Accomplished— Decree—Case at Bar.—While in a suit to administer a trust the court should not confirm a sale of the trust property after all the objects of the suit have been fully accomplished, yet it should not set aside the contract of sale for which confirmation was asked, but should have simply refused to allow the amended and supplemental bill, asking confirmation, to be filed, and without prejudice to whatever rights , any of the parties had under the contract, dismissed the bill.</p>

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

<p>Error to a judgment of the Corporation Court of the city of Danville, in an action on' a suspending bond under Code of 1919, section 6338. Judgment for relator. Defendant assigns error.</p>

<p>1. Deeds—Construction—Life Right■—Case at Bar.—A deed recited that it was between the grantor, as party of the first part, and one H., as party of the second part, and M. P. and S. P., “parties of the-third, part, who shall have what is known as a life right in and to the property hereby conveyed.” The granting clause of the deed declared' that the party of the first part conveyed to the party of the second part “and to the parties of the third part for the period of their life,”' a certain parcel of land.</p> <p>Held: That it was the intention of the grantor to convey the property to S. P. and her husband, M. P., for their lives and the life of the-survivor, with remainder in fee to H., their daughter.</p> <p>2. Deeds-—Wills-—Gift to a Class—Failure as to One of the Class—Case at Bar.—Where the gift is to a class and it fails as to one of the class because of death, revocation, or any other cause, the survivors of the class will take. Thus, in the instant case the conveyance to S. P. and her husband was to a class, and upon the death of the husband, S. P. was entitled to the property for her life.</p> <p>3. Deeds op Trust—Recording—To whom Notice—Case at Bar.-—-In the-instant case a remainderman, a daughter of the life tenant, who was-not a resident of the State, gave deeds of trust on property. There was no evidence that the mother, the life tenant, had any knowledge-of the deeds of trust given by the remainderman upon the property.</p> <p>Held: That the record of such deeds was not notice to the life tenant;- and in order to charge her with such knowledge it was necessary to-prove it.</p> <p>4. Adverse Possession—Hostility of Possession—Parent and Child.—As a. general rule an adverse possession cannot be predicated on the possession of the parent as against a child, or on the possession of a child as against its parent. In order that such possession may become adverse, the owner must have had some clear, definite, or unequivocal notice of the adverse claimant’s intention to assert an exclusive ownership in himself. In all such cases the character of the possession is a question for the jury.</p> <p>5. Adverse Possession-—Hostility of Possession—Parent and Child—Case-at Bar."—In the instant case a mother was life tenant for the property in question with remainder to her daughter. The daughter took possession of the property, placed improvements upon it and gave deeds of trust upon it, but there was no evidence in the record of any adverse claim against her mother.</p> <p>Held: That the relation of the parties was such that it must be assumed that the daughter entered upon the property by permission.</p>

<p>1. Appeal and Error-Point Raised for First Time in the Appellate Court-Jurisdiction.-Jurisdiction, as distinguished from venue, must always affirmatively appear, and objection to the jurisdiction of the trial court may be made in the Supreme Court of Appeals for the first time.</p> <p>2. Maxims-“Clean Hands”-In Pari Delicto-Annulment of Marriage-Suit by Guilty Party-Case at Bar.-In the instant case complainant brought suit against defendant for annulment of their marriage on the ground that it was null and void under section 5113 of the Code of 1919, because the marriage was contracted within six months from the date of the decree for divorce from his first wife. It was urged that complainant could not maintain the suit in consequence of the equitable doctrine of “clean hands,” and th'é maxim in pari delicto.</p> <p>Held: That if the jurisdiction to annul the marriage was a purely statutory remedy, plainly given by the statute without condition, there was no appeal to the conscience of th'é court, and it could not impose conditions. Hence the maxim of “clean hands” does not apply.</p> <p>3. Maxims-“Clean Hands”-In Pari Delicto-Annulment of Marriage-Suit by Guilty Party-Case at Bar.-The right to bring a suit for annulment of marriage is expressly given by section 5100 of the Code of 1919, but this is probably merely declaratory of a pre-existing ground of equitable jurisdiction. Conceding, however, this jurisdiction, the equitable doctrine of “clean hands” is subservient to the public policy of the State, and cannot be invoked in contravention thereof.</p> <p>4. Maxims-“Clean Hands"-In Pari Delicto-Annulment of Marriage-Suit by Guilty Party-Case at Bar.-If, as it is, section 5113 of the Code of 1919 isa declaration of public policy on the part of the State, and renders void a second marriage within six months from the date of the decree of divorce, the public interest is such that the remedy afforded by section 5100 of the Code of 1919 cannot be denied by the application of the doctrine of “clean hands.”</p> <p>5. Divorce-Annulment of Marriage-Marriage within Six Months after Prior Decree of Divorce-Section 6113 of the Code of 1919.-The annulment of marriages in contravention of section 5113 of the Code of 1919 is a more effectual way of preventing such violations of the statutes and public policy of the State than an affirmance of them would Be.</p> <p>6. Mabeiage—Common Law Marriage—Validity in Virginia.—Common law marriages are not valid in this State.</p> <p>7. Maxims—“Clean Hands”—In Pari Delicto—Annulment of Marriage—■ Suit by Guilty Party—Case at Bar.—In the instant case complainant brought suit against defendant for annulment of their marriage on the ground that it was null and void under section 5113 of the Code of 1919, because the marriage was contracted within six months from the date of the decree for divorce from his first wife. It was urged that complainant could not maintain the suit in consequence of the equitable doctrine of “clean hands,” and the maxim in pari delicto. All complainant asked was to have judicially declared thfe fact that the marriage was a void marriage, and in this the public was interested. No property rights were affected by a decree declaring the marriage void, but the true status of the parties was ascertained and judicially declared. Under such circumstances the doctrine of “clean hands” does not debar either party from bringing a suit to have a void marriage declared a nullity. It is not a suit for divorce. There was no valid bond of matrimony to be dissolved.</p> <p>8. Mabeiage—Validity—Marriage Valid where Performed.—Undoubtedly, the general rule is that a marriage valid where performed is valid everywhere, but there are exceptions to the rule as well established as the rule itself. These exceptions are generally embraced in two classes: 1st. Marriages deemed contrary to the laws of nature as generally recognized in Christian countries, and include only those which are void for polygamy or incest; 2nd. Marriages forbidden by statute because contrary to the public policy of the State.</p> <p>9. Divoece—Annulment of Marriage—Marriage within Six Months after Prior Decree for Divorce—Statutes—Construction of Section 5113 of the Code of 1919.-—Section 5113 of the Code of 1919 is a new statute, and as the language used in it is different from that of the statutes of other States on the subject, which had been construed by their appellate courts, it may be assumed that the re visors had some knowledge of those statutes and of the construction placed upon them, and intended to propose to the legislature, and that the legislature in enacting it intended to enact something different from the statutes of those States.</p> <p>10. Divoece—Annulment of Marriage—Marriage within Six Months of Prior Decree for Divorce—Statutes—Construction of Section 5113 of the Code of 1919.—Section 5113 of the Code of 1919 declares that “neither party shall be permitted to marry again for six months from the date of such decree..” This is a common provision of such statutes, and it is generally held that it does not affect the validity of a second marriage outside of the State if such marriage was valid in the latter State. But section 5113 did not stop there, but went further and declared “and such bond of matrimony shall not be deemed to be dissolved as to any marriage subsequent to such decree * * until the expiration of such six months.” Therefore, the parties to the first marriage, though absolved from many of the obligations imposed by that marriage, are not absolved from the obligation to refrain from marrying another during the six months. As to this obligation, they continued to be husband and wife for six months from the date of the decree for divorce, and neither could lawfully intermarry with another.</p> <p>11. Divorce—■Annulment of Marriage^—Remarriage within Six Months of Prior Divorce—Section 5113 of the Code of 1919—Constitutionality and Extraterritorial Effect.-—The legislature has the power to enact section 5113 of the Code of 1919 forbidding remarriage within six months of a divorce, and to give it extraterritorial effect.</p> <p>12. Marriage—Conflict of Laws—Going Outside of the State to Avoid the Law of Domicile.—No State will permit its citizens to violate its marriage laws by going out of the State to avoid the law of domicile. But the law of domicile will govern in such case, and when they return, they will be subject to all its penalties as if said marriage had been celebrated within the State whose public law they have set at defiance.</p> <p>13. Marriage—Going Outside of State to Avoid the Law of Domicile—Annulment of Marriage—Marriage within Six Months of Prior Divorce— Section 5113 of the Code of 1919.—Section 5113 of the Code of 1919, forbidding remarriage within six months of a decree for divorce, applies to citizens of Virginia who leave the State and marry in contravention thereof, and immediately return and resume their residence in the State. The restriction is not put upon one party only, but upon both; nor is it limited to the place where the subsequent marriage took place. No matter where the subsequent marriage takes place, “the bond of matrimony (of the first marriage) shall not be deemed to be dissolved as to any marriage subsequent to such decree * * until the expiration of such six months.”</p> <p>14. Marriage-—Remarriage within Six Months of Prior Decree for Divorce— Sections 5087, 5089 and 5113 of the Code of 1919—Remarriage Absolutely Void.—In the instant case complainant had been previously married and divorced. Within six months of this prior decree for divorce he married defendant in Maryland, both being at the time citizens and residents of Virginia and having no intention of changing their citizenship or residence. Shortly after the marriage they returned to Virginia and within a few months complainant brought this suit to annul his marriage to defendant.</p> <p>Held: That complainant was not an unmarried man when he married the defendant, and neither in Maryland nor elsewhere could he take unto himself a second wife within six months of his prior decree of divorce. When he did so, he had a former wife living, and the second marriage was absolutely void. Code of 1919, sections 5078,5089. Both parties, being residents of the State, had actual or imputed knowledge of the consequence of their act.</p> <p>15. Marriage—Divorce—Power of the State—Remarriage within Six Months after Former Decree.—The State is directly interested in determining the status of its own citizens, and to this end can and does establish and enforce its own policies in relation to marriage and divorce, and when it declares that a decree for divorce shall not be effective except after the lapse of a given time and upon designated conditions, it is fully within its rights and powers.</p> <p>16. Marriage—Annulment of Marriage—Object of Section B113 of the Code of 1919—Remarriage within Six Months after Decree of Divorce.—It is a matter of common knowledge that one of the frequent causes of divorce is the desire of one of the parties to marry another, and as this could be done immediately upon a decree of divorce, there was a temptation to secure the divorce by collusion in fraud of the law. In order to remove this temptation, or avoid its effect, and to protect and preserve the existing marriage, section 5113 of the Code was enacted. The object of the section was not merely to impose a penalty on the offending party, but to declare an incapacity on each of the parties to enter into a marriage contract with another, at any place, within six months.</p> <p>17. Marriage—Annulment of Marriage—Remarriage within Six Months of Prior Decree—Validity of Such Marriage in Another State.—In the instant case where complainant and defendant, citizens and residents of Virginia, were married in Maryland within six months after complainant’s divorce from another, the marriage was not valid according to the law of Maryland, because complainant had a wife living from whom he had not been divorced. The time when the divorce decree was to become operative had not yet arrived.</p> <p>18. Divorce—Decree—Provisions of Section BUS of the Code of 1919—Part of Decree—Full Faith and Credit.—Under section 5113 of the Code of 1919 a decree of divorce is not operative at all as to a subsequent marriage until the expiration of six months from the date of the decree. This is a legislative construction of the meaning of a decree for divorce in this State, and this construction is as much a part of the decree as if copied into the decree itself, and is entitled to full faith and credit in every other State of the Union under the provisions of article 4, section 1, of the Constitution of the United States. ■</p> <p>19. Divorce—Decree—Remarriage within Six Months—Section BUS of the Code of 1919.—Under section 5113 of the Code the decree for the divorce, until the expiration of six months, has no greater force than a decree nisi and it is said that a marriage contracted after the entry of a decree nisi and before the final decree of divorce is illegal and void.</p> <p>20. Divoece—Annulment of Marriage—Remarriage within Six Months of Decree of Divorce which Contains no Provision as to Remarriage—■ Section BUS of the Code of 1919—Full Faith and Credit.—Under section 5113 of the Code of 1919 a decree of divorce, although it contains no provision as to remarriage, leaves the first marriage so far undissolved as to prohibit a second marriage within six months of the decree; and the decree being valid, and having this meaning and effect, must be given full faith and credit in all of the other States of the Union. If a judgment is conclusive in the State where it is rendered, it is equally conclusive elsewhere.</p>

Decree for complainants. Defendants appeal. Held: which meeting shall be called by the giving of notice thereof to each stockholder of record, such notice to be sent by the secretary of this corporation by registered mail not less than ten days in advance of the date of such meeting and shall state the purpose of said meeting.

<p>Appeal from an order of the Circuit Court of Wise county, affirming an award of the Industrial Commission in favor of the claimant. The employer appeals.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond construing a will.</p>

<p>Error to a judgment of the Corporation Court of the city of Hopewell, in a proceeding by the Commonwealth for the removal from office of a commissioner ■of the revenue. From a judgment removing him, the ■officer assigns error.</p> <p>This is a proceeding, under section 2705 of the Code, having for its object the removal of the plaintiff in error, I. M. Warren (who will be hereinafter referred to as “the accused), from the office of commissioner of the revenue of the city of .Hopewell, to which he was elected, being the current term of the office, beginning on January 1, 1922, and which office, after duly qualifying, he held at the time such proceeding was instituted.</p> <p>The proceeding was instituted by order of court issuing a rule against the accused to show cause why he should not be removed from said office “for malfeasance, misfeasance, gross neglect of official duties, and knowingly and wilfully neglecting to perform the duties ■enjoined upon him by the laws of the State and ordinances of the city of Hopewell,” in the particulars mentioned in the three charges set out in the rule, as ■amended, namely:</p> <p>“* * in this to-wit:</p> <p>“1st. That the said I. M. Warren, commissioner of the revenue of the city of Hopewell, during his present “term of office, did issue a license to Mary Charlem, or some one else for her, on the 14th day of February, 1922; signed the treasurer’s name to said license and receipt, collecting the sum of five ($5.00) dollars therefor, without any authority from the said Hugh T. Birchett, treasurer.</p> <p>“2nd. That the said I. M. Warren, as commissioner of the revenue of the city of Hopewell, during his present term of office, did, on the 17th day of April, 1922, issue a license to Jim Kins for a pool room of four (4) tables, which, license amounted to ten dollars and 42 /100 ($10.42) cents, for a place known and numbered as No. 131 Poythress avenue, in the city of Hopewell, which license expired on the 30th day of April, 1922, receiving the amount of money therefor, signing the treasurer’s name to the receipt thereon, without any authority from the said Hugh T. Birchett, treasurer.</p> <p>“3rd. • That the said I. M. Warren, commissioner of the revenue of the city of Hopewell, during his present term of office, has knowingly and wilfully neglected to perform the duties imposed upon him, as such officer by law, by failing to assess persons, firms and corporations with the necessary license as required by law.”</p> <p>There was a trial by jury which resulted in the following verdict: “We, the jury, find the defendant not guilty on any of the charges.”</p> <p>Upon motion of the Commonwealth the trial court set aside the verdict on the grounds that it was contrary to the law and the evidence and without evidence to support it; and the court, as stated in its order, “being further of opinion that there is sufficient evidence before the court to enable it to decide the ease upon its merits,” adjudged the accused to be “guilty of malfeasance, misfeasance, gross neglect of official duties and knowingly and wilfully neglecting to perform the duties enjoined upon him as commissioner of the revenue of the city of Hopewell, as charged in the amended rule,” and ordered that the accused “be forthwith removed from and vacate said office of commissioner of the revenue;” and the accused brings error.</p> <p>Of the evidence it is sufficient to say that it showed, without conflict therein, that the accused during his aforesaid current term of office issued the licenses in the two instances mentioned in the amended rule without any receipt of the city treasurer having been first obtained, as required by law, for the respective amounts of the license taxes required by the city ordinances to be paid to the treasurer by the applicants for such licenses; that the accused, well knowing that it was contrary to law, collected such license taxes from the applicants and signed the treasurer’s name to the receipts therefor, with the intention, how;ever, of handing the money to the treasurer so that he could enter its receipt by him upon his books and account therefor as received by him, and upon the assumption that the-treasurer, who was newly in office, would assent to such method of transacting the business, as the previous treasurer had been accustomed to do in his dealings with the accused during previous years, as far back as 1917 (during which years also the accused was commissioner of the revenue for said city, and the accused and his deputies had been accustomed to transact such business in that manner during such previous years); but that the accused, at and before the time of the said transactions mentioned in the amended rule, well knew such assent of the treasurer would not render such conduct on the part of the accused any the less contrary to law.</p> <p>The evidence further showed that the aforesaid method of transacting such business was not used by the accused with any intention of retaining the money collected by him, but merely from the desire to accommodate applicants for licenses and to despatch the business at times when the treasurer was not at hand; but the evidence showed that the accused negligently failed to pay over to the treasurer some of the money collected by him, which should have been paid, as the law required, directly to the treasurer, and also negligently failed to report the same as chargeablé to the treasurer, as the law required, the loss thereby occasioned to the State and city aggregating, during the years 1917, 1918, 1919, 1920; 1921 and 1922, probably a considerable amount, but only a small percentage of the aggregate of the license taxes assessed by the accused during such years, which was a very large amount.</p> <p>The evidence further showed several instances during the year 1922, covered by the third charge in the amended rule, of the failure of the accused to assess certain persons and firms with city license taxes which should have been assessed; but the evidence as to those instances was such that the jury, were warranted in concluding that the accused was either honestly mistaken as to the law applicable in some cases, and in the other cases merely reasonably delayed the assessment of the license tax until he could satisfy himself of the facts, and for those reasons only, and not from any corrupt motive, failed to make such assessments.</p> <p>The following provisions of the Code of 1919 are pertinent:</p> <p>“Section 2705. Removal of officer from office; proceedings therefor.—The circuit courts of counties, and the corporation courts of cities, shall have the power to remove from office all State, county, city, town and district officers elected or appointed; except such officers as are by the Constitution removable only and exclusively by methods other than those provided by this and the following section, for malfeasance, misfeasance, incompetency, gross neglect of official duty, or who shall knowingly or wilfully neglect to perform any duty enjoined upon such officer by any law of this State, * *</p> <p>All proceedings under this section shall be by order of the court on its own motion, or on motion in open court, or upon complaint in writing, * * * the court shall * * cause a rule to be issued, requiring the officer complained of to show cause, if he can, why he should not be removed from office, the rule alleging in general terms the cause or causes of said removal. * * upon return of said rule duly executed, unless good cause shall be shown for a continuance, * * * the case shall be tried on the day named in the rule * * * and if upon such trial it shall appear that the-officer has violated any of the provisions of this section, or failed in the performance of his duty as required herein, he shall be removed from office. * *</p> <p>“Section 2706. * * * Any such officer proceeded against for violating the provisions of the preceding section shall have the right to demand a trial by jury, except in eases where the officer is an appointee, in which case he shall be tried by the court without a jury. The Commonwealth and, the defendant shall both have the right,to apply to the Supreme Court of Appeals for a writ of error and supersedeas upon the record made in the trial court, and the Court of Appeals shall hear and, determine such cases.”</p> <p>“Section 2360. How license applied for and granted; what constitutes a license.—Every person, corporation, company, firm, partnership, or association, desiring to obtain a license to prosecute any business, employment or profession, shall make application therefor in writing to a commissioner of the revenue of the county or city wherein, such business, employment, or profession, is proposed to be conducted, in which shall be stated the residence of the applicant, the nature of the business, employment or profession, the place where it is proposed to be prosecuted, and the amount of tax prescribed by law, accompanied with the certificate of the treasurer of such county or city that the amount of the tax in gold or silver coin, United States treasury notes, or national bank notes has been deposited, with him by the applicant. Upon the receipt of such application, the commissioner, if satisfied of its correctness, shall make and sign the following endorsement thereon: ‘I find the within application in due form, and accompanied with the certificate of the treasurer of the county (or city) that the sum of........................dollars, in gold or silver coin, United States treasury notes, or national bank notes has been deposited with him.’ The application so endorsed shall be filed by the commissioner in his office, and a duplicate thereof delivered to the applicant. Such duplicate shall constitute a license to prosecute the business, employment, or profession therein named, unless it be a business for which a license can be granted only on the certificate of a court, in which case the applicant upon obtaining such certificate shall be entitled to the license.”</p> <p>“Section 2374. When commissioners to return lists of licenses to Auditor and clerks; what list to contain; Auditor to furnish forms.—Every six months, to-wit, the first day of July and the thirty-first of December of each year, the commissioner shall return, on oath, to the Auditor of Public Accounts, and to the clerk of the court of the county or city, a fair classified list of all licenses granted by him within the last preceding six months, embracing all such licenses as were not contained in any preceding report; and if no licenses were issued he shall report the fact, on oath, at the time aforesaid. In each class of licenses the names of the persons licensed shall also be arranged alphabetically, and such list shall specify the date of such license and the period for which said license is granted, for what it was granted, the name of the person, firm or company to whom granted, the amount of tax on the license, to whom paid, and if paid to the deputy of any county or city treasurer, shall state also the name of his principal, and shall also show the date on which his calculations of the tax were made. It shall be the duty of the Auditor of Public Accounts to furnish to each commissioner printed forms and oaths for authenticating such lists or reports as above indicated. Any commissioner failing to make such report at the time specified shall forfeit not less than one hundred nor more than five hundred dollars, and unless a reasonable excuse is given, shall forfeit all compensation to be received from the treasury.</p> <p>“Section 2375. Lists of licenses to be evidence to charge collecting officer.—Any list of licenses signed and sworn to by the commissioner issuing the same, or, if he be dead, by his personal representative, wherein the amount of tax is stated and to whom paid, shall be evidence to charge the collecting officer with the amount of such tax.”</p> <p>There is no law authorizing commissioners of the revenue to collect any license taxes.</p>

Judgment for plaintiff. Defendant assigns error. This is an action by notice of motion, brought by the defendant in error (hereinafter called plaintiff), against the plaintiff in error (hereinafter called defendant), seeking to recover 15,000.00 damages for personal injury to the plaintiff, alleged to have been caused by a certain assault and battery committed upon him by the defendant.

<p>1. Appeal and Error-■Reversal-General Buie.-A verdict, abundantly supported by the evidence, will not be disturbed on appeal unless%r error in the rulings of the trial court.</p> <p>2. Instructions-Repetition.-The multiplication of instructions does not tend to enlighten the jury, and is a practice to be avoided.</p> <p>3. Appeal and Error-Instructions-Not Error to Refuse Further Instructions where' a Point is Covered by Instructions Given.-Where the jury has been sufficiently and correctly instructed on any point, it is not error to refuse further instructions on that point, however correct a tendered instruction may be.</p> <p>4. Brokers-Real Estate Brokers-Exclusive Agency-Case at Bar.-In the instant case, an action by a real estate broker for commissions, the broker had expended time and money in procuring a purchaser at the price agreed with the landowner, and the landowner had agreed that the agency to sell should not be withdrawn at any time except upon ninety days notice.</p> <p>Held: That this was something more than a mere agreement to accept an offer made within a given time. It was a contract from which the-landowner could not recede without notice, and escape liability to the-broker.</p> <p>5. Brokers-Real Estate Brokers-Agency Coupled with an Interest-Liability of Landowner upon Unauthorized Revocation-Contract with Broker.-While the right to commissions of a real estate broker upon making a sale, or the profit he will make upon such sale, is not such an interest as to constitute an “agency coupled with an interest,” and hence the agency or power may be revoked, this does not absolve the principal from liability to the broker for a loss sustained by such, revocation after the broker has procured a customer.</p> <p>6. Agency-Revocation-Liability of Principal to Agent.-When an agency is not such as to constitute what in legal parlance is called a power coupled with an interest, and no third party’s rights are involved, the-agency, so long as it remains unexecuted, may be effectually revoked at the will of the principal, but a wrongful revocation will nevertheless render him liable in damages to his agent. In other words, the agency may always be revoked, but the contract of employment will' not necessarily be thereby rescinded.</p> <p>7. Instructions—Instruction not Warranted by the Law of the Case.—It is no error to refuse an instruction which does not adequately embody the principles of law governing the point upon which it is asked.</p> <p>8. Instructions—Partial View of the Evidence.—It is no error to refuse an instruction containing only a partial view of the evidence on the subject.</p> <p>9. Brokers—Beal Estate Brokers—Instructions—Misleading Instruction.— In an action by a broker for commissions, the evidence showed that one M. was not a partner with the broker, but a mere helper in finding a purchaser. The testimony also clearly showed that M. was not interested in the purchase. Defendant asked and was refused an instruction to the effect that if M. and the broker “were working together,” and that M. was to be interested in the purchase with the buyer, this constituted a violation of the broker’s agency and revoked it.</p> <p>Held: That the words “were working together” were misleading in view of the evidence.</p> <p>10. Brokers—Beal Estate Brokers—Action for Commission—Damages Fixed by the Contract—Judgment by Appellate Court.—A broker’s contract of employment definitely fixed his compensation at $2,000 in case of a sale. The jury found a verdict for the broker and fixed his damages at $1,000. The finding was based upon the theory that plaintiff had complied with his contract, and had produced to the defendant a purchaser ready, able, and willing to purchase.</p> <p>Held: That as the contract definitely fixed the measure of the plaintiff’s recovery, and there was nothing speculative or uncertain about, it, the jury had no right to set up their judgment as to what was fair compensation, against the express terms of the contract, and that under Code of 1919, section 6365, the Supreme Court of Appeals would set aside the verdict as to the amount of the damages, and enter final judgment for the plaintiff for $2,000.</p>

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

By the verdict and judgment under review the accused, W. D. Covington, was found guilty of murder in the second degree, and sentenced to confinement in the-, penitentiary for seven years.

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

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

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

<p>1. Larceny—Receiving Stolen Goods—Indictment—Allegation that Accused Knew the Goods to be Stolen.—It was objected to an indictment for receiving stolen goods that it did not allege in direct terms that the goods were in fact stolen, but did so only by the implication arising from the charge that accused received them, “knowing the same to have been-stolen.”</p> <p>Held: That the indictment was sufficient. Accused could not know that the goods he received had been stolen unless there had been a larceny.</p> <p>2. Indictments, Informations and Presentments—Necessity of Use of Word “Feloniously”—Felonies—Statutory Crimes.—It has long been generally held that all common law felonies must be specifically alleged to have been “feloniously” committed, and this rule in Virginia, as in many other States, has been extended to indictments for all crimes which by the laws of the State are punishable by confinement in the penitentiary; the reason for such extension being that all such crimes are by a general statute declared to be felonies.</p> <p>3. Indictments, Informations and Presentments—Necessity of Use of Word “Feloniously”—Felonies—Statutory Crimes—Stare Decisis—Case at Bar.—It was objected to an indictment for receiving stolen goods that the indictment failed to allege that the accused “feloniously” committed the act. The offense charged was statutory, and neither the word “felony”, nor the word “feloniously” was used in its definition. Without saying how strictly the court would adhere to the rule that common law felonies must be specifically alleged to have been “feloniously” committed, the Supreme Court ot Appeals thought that the time had come to abrogate the Virginia rule that statutory offenses punishable by confinement in the penitentiary must be alleged to have been feloniously committed, provided the acts charged in the indictment are sufficient to show that the felony has been committed, and that the accused is charged with its commission.</p> <p>4. Indictments, Informations and Presentments—Omission of the Word “Feloniously"—Harmless Error—Amendment.—An indictment for receiving stolen goods omitted to allege that the accused “feloniously” committed the act. The demurrer to the indictment did not specify the grounds upon which it was based. If it had done so, and had pointed out this objection, the trial court could, and would, have directed an amendment of the indictment pursuant to the provisions of section 4877 of the Code of 1919.</p> <p>Held: That in view of the clear allegations of the indictment accused could not have been prejudiced by the omission of the word “feloniously.”</p> <p>5. Appeal and Error—Formal Defects.—The judicial and legislative policy of this State is to have both civil and criminal cases “tried on their merits and as far as possible to ignore mere formal defects.”</p> <p>■6. Burglary-—Recent Possession of Stolen- Property—Instruction.—In a prosecution for housebreaking an instruction “that while the possession alone of recently stolen property is not prima facie evidence of housebreaking, it is a circumstance that may be considered by the jury, along with any other evidence tending to establish the guilt ' of the accused,” is not error.</p> <p>7. Burglary—Recent Possession of Stolen Goods.—Possession ot the stolen goods along with other inculpatory circumstances will warrant a conviction of housebreaking.</p> <p>8. Burglary—Recent Possession of Stolen Property—Evidence to Support an Instruction as to the Effect of Recent Possession—Case at Bar.—In the instant case the housebreaking and larceny of automobile tires by some one was conclusively established, and the evidence tended to show that the accused had the opportunity to commit burglary, and that he concealed the tires. Accused in his testimony was more or less involved in contradictions and inconsistencies.</p> <p>Held: That the evidence was abundantly sufficient to warrant the giving of an instruction that the possession of the stolen goods was a circumstance to be considered by the jury along with other evidence tending to establish the guilt of the accused.</p> <p>9. Criminal Law—Reasonable Doubt—Evidence Pointing Equally to Different Persons.—Where another person had the same opportunity to commit the offense for which accused was charged, if upon the whole evidence there remains a reasonable doubt as to which of the two committed it, neither of the two can be convicted.</p> <p>10. Criminal Law—Reasonable Doubt—Evidence Pointing Equally to Different Persons—Instructions.—Where upon the evidence the jury might have believed that accused alone committed the offense charged, or that others committed it without accused’s participaron, while it would have been proper to have given an instruction to the effect that where, upon the whole evidence in the case, there remained a reasonable doubt as to whether accused or another committed the offense, neither of the two could be convicted, yet where there were numerous instructions in the case which told the jury that they could not convict accused unless they believed him guilty to the exclusion of a reasonable doubt, the refusal to give the instruction in question did not constitute reversible error.</p> <p>11. At,tot—Burden of Proof—Instructions.—In a prosecution for housebreaking and receiving stolen goods the court did not err in instructing the jury “that, although the burden rests upon the Commonwealth to make out its case 'against the accused to the exclusion of any reasonable doubt, yet, where the accused relies upon or attempts to prove an alibi in his defense, the burden of proving the alibi rests upon him,” in view of other instructions in the case which told the jury that they could not convict accused unless they believed him guilty to the exclusion of a reasonable doubt.</p> <p>12. Laeceny—Recent Possession—Explaining Such Possession.—An instruction that the possession of recently stolen property creates a presumption of guilt of the larceny of the property, and places upon the accused the burden of explaining such possession, embodies a correct principle of law, though it would have been better if the court had given, in lieu thereof, an instruction “that the possession of recently stolen goods usually creates a presumption of guilt of the larceny of the property, and is a circumstance from which the jury may présume guilt, unless it appears from the evidence that the possession was consistent with the innocence of the accused.”</p> <p>13. Laeceny-—Possession of Stolen Goods—Explanation of Possession.—In a prosecution for larceny if the accused had possession of the stolen property, it is necessary for him to explain such possession, unless, the circumstances were such that his silence could be regarded as consistent with his innocence.</p> <p>14. Laeceny—Recent Possession—Instructions—Burden of Proof and Reasonable Doubt.—In a prosecution for larceny, housebreaking and receiving stolen property, an instruction that the possession of recently stolen property creates a presumption of guilt of the larceny of the-property, and places upon the accused the burden of explaining such possession, is not erroneous where any danger that the jury might have believed that the explanation had to do more than raise a. reasonable doubt as to the guilt of accused was removed by other-instructions repeatedly emphasizing the proposition that a reasonable doubt as to any fact essential to conviction entitled accused to an acquittal.</p> <p>15. Laeceny—Possession—Exclusive Possession—Instructions.—In a prosecution for larceny and housebreaking it was objected to an instruction as to the effect of the possession by the accused of the stolen property that it did not say that the possession, to warrant an inference of guilt, had to be “exclusive.”</p> <p>Held: That under the evidence in the instant case this objection was; wholly without merit, and if there had been any force in it, the: objection was entirely overcome by another instruction, that it must be proved that the possession was “personal” and “exclusive.”</p> <p>16. Larceny—Receiving Stolen Goods—Venue—Instructions.—In a prosecution for burglary and receiving stolen goods in the Corporation Court of Hopewell, it was clearly shown that the burglary was committed in Hopewell, and therefore error in refusing any instructions upon the question of venue was, as to that offense, harmless. But the evidence was conflicting as to whether the accused ever had the stolen property in his possession at any time in Hopewell, and failed to show that the other points in the county at which he did have them were within a mile of the corporate limits of Hopewell.</p> <p>Held: That the failure to instruct to the effect that the accused must be acquitted unless the crime was consummated in the city of Hopewell, or within one mile of its corporate limits, was reversible error.</p>