Volume 2 — Virginia Decisions

The plaintiff in error, Edgar Cash, was tried for the murder of one Henry Speaks, and convicted by the jury of voluntary manslaughter, and sentenced for five years to the penitentiary.

<p>Appeal from circuit court, Montgomery county.</p>

<p>Review on Appeal- — Weight of Evidence.</p> <p>On an issue as to the price at which land was sold at commissioners’ sale, the finding-of the lower court will not be disturbed, if sustained by the evidence.</p>

<p>Judgments — Res Judicata.</p> <p>A judgment rendered by a court of competent jurisdiction in a former suit between the same parties, and involving the same subject-matter, is conclusive.</p>

<p>Appeal from circuit court, Nelson county; D. A. Grimsby, Judge.</p> <p>Action by J. T. Dillard against the executors of N. E. Dillard and others. Decree for defendants, and complainant appeals.</p>

Bill by L. D. Beale, administrator of William Beale, against Charles H. Gordon and others. From a decree dismissing the bill as to defendant A. D. Payne,- administrator of John H. Bixey, plaintiff appeals.

<p>Appeal from circuit court, Page county.</p> <p>Action by John Bowles against Stephen M. Allen and George H. Pollock for breach of contract. Prom a decree for defendants, plaintiff appeals.</p>

<p>Criminal Law — Assault with Intent to Kill — Indictment.*</p> <p>An indictment for malicious assault with intent to HU does not involve a charge of more than one offense, because it alleges a felonious assault by defendant, this being an ingredient to the other crime charged.</p> <p>Same— Court May Read Punishment to Jury.</p> <p>The court may read to the jury the law fixing the punishment provided for the crime.</p> <p>Same — Case at Bar.</p> <p>While M. and B. were fighting, and while B. was on top of M., the latter’s son struck B. with an iron weight, and ran, and while running he was shot by defendant, who remarked, that he shot at the son of a b-h to kill him. Held, that a verdict of guilty of assault with intent to kill was justified.</p> <p>Same — Record Naming Same Juror Twice — Effect.</p> <p>The fact that the record inadvertently names a juror twice does not show that defendant was tried by a jury of 13 men.</p>

<p>Action against Railroad Company — Injury to Person on Track — Contributory Negligence.</p> <p>, The deceased passed along defendant’s railroad every morning, and crossed it, going to his work. On the morning in question, between daylight and sunrise, he had been walking for some distance by the side of the track, and towards an express train approaching at a high rate of speed, and tried to cross the track in front of the train, and was killed. Held, that defendant was not liable for his death.</p>

Action by Robert W. Conner and Dou R. Conner, his wife, .against Joseph M. Moore and others, for partition. From a decree for plaintiffs, defendant Joseph M. Moore appeals.

James Gr. Field’s barn was burned by the negligence of some men who were engaged in working the county roads. ' From a judgment holding the county of Albemarle not liable for the damage he sustained he brings error.

A. Dupuy, Judge. Suit by James S. Simmons, trustee, and others, to establish the lien of an unrecorded deed of trust securing the Roanoke Brick & Lime Company certain notes. From a decree against it, it appealed.

<p>Appeal from circuit court, Wythe county.</p> <p>Bill by Samuel C. Copeland against Josephine Copeland for a divorce.</p> <p>Defendant had a decree, and plaintiff appeals.</p>

Action by the Norfolk City Railroad Company and others against D. P. Reid & Bro. Prom the judgment, defendants appeal. A supersedeas was awarded them by the supreme court of appeals, but the bond was conditioned to pay costs and damages only, and not the debt.

Proceedings for the settlement of the estate of William Shepherd, deceased. James Shepherd and Reynolds Chapman qualified as executor of said Shepherd. From a decree in favor of the administrator of said Chapman, administrator of George Shepherd appeals.

Proceedings by Maggie C. Miller, executrix, and Robert W. Miller, executor, of Thomas M. Miller, deceased, against Joseph A. Miller to enforce a land bond. Judgment for complainants, and defendant appeals.

<p>Contract for Sale of Land — Specific Performance — When Decreed.*</p> <p>Specific performance of a contract for the sale of real estate will be decreed when the contract is valid, unobjectionable in character, and capable of being enforced.</p>

<p>Appeal from cirouit court, Augusta county.</p> <p>Bill by Benjamin Jones against Adda K. Depriest for an injunction. Erom a decree for plaintiff, defendant appeals.</p>

R. B. Wright, Judge. Bill by J. M. Rowe to restrain Joel Thomas, oyster inspector, from collecting rents for oyster beds. Decree for plaintiff. Defendant appeals.

Lamb, Chancellor. Action by the Merchants’ and Planters’ Savings Bank against J. Parker Dashiell and another for possession of land, and to enjoin the sale thereof under a trust deed. From a decree for plaintiff, defendant Dashiell appeals.

Bill by George Patch and others against T. J. Morrisett and others to enjoin a sale under a deed of trust. Prom a decree for defendants, plaintiffs appeal.

Application by M. C. Cardoza, sheriff, against C. H. Epps, sergeant, for writ of mandamus to compel defendant to deliver over prisoners delivered to him for safe-keeping.

Williams, Judge. A'. E. Hargrave was found guilty of selling liquor in a magisterial district which had voted against licensing the sale of liquor, and brings error.

<p>Criminal Law — Prosecution for Murder — Evidence—Discrediting Witness.</p> <p>It -is proper to refuse to allow a witness for the defense to contradict a witness for the commonwealth who states that another witness for the commonwealth had not told him that he could not tell the same tale he had told before the justice, as this introduces a purely_collateral issue.</p> <p>Appellate Practice — Verdict Contrary to Evidence.*</p> <p>On an assignment of error based on a refusal to set aside the verdict as contrary to law and evidence, the case on appeal stands as upon a demurrer to the evidence, and the judgment will be reversed only if the jury plainly decided against the evidence, or without evidence.</p> <p>Criminal Law — Prosecution for Murdei — Case at Bar.</p> <p>Defendant, while returning from church with deceased and others, in the nighttime, became quarrelsome and profane, and finally got into a fight with deceased, during which he gave deceased a mortal wound. It did not appear whether deceased struck the first blow, but it appeared that he did not have a deadly weapon in his hand. A few minutes before, defendant had remarked that his knife, with which he cut deceased, “had never gone back on him yet”: held, that a verdict of murder in the second degree would not be disturbed.</p>

<p>Error to circuit court, Washington county; Kelly, Judge.</p> <p>Action by Isabella Shugart, administratrix, against the Norfolk & Western Kailroad Company. Judgment for defendant. Plaintiff brings error.</p>

<p>Appeal from circuit court, Washington county; Kelly, Judge.</p>

<p>Fraudulent Conveyances — Change of Possession.*</p> <p>In the absence of a fraudulent intent, it is not fraudulent per se as to creditors, in one who has assumed an indebtedness of a firm in consideration of a sale of specified merchandise, to allow such merchandise to remain in said firm’s possession to be disposed of in the usual course of trade.</p> <p>Deed of Assignment — Knowledge of Trustee of Bill of Sale — Failure to Record.</p> <p>Where one of two trustees in a deed of assignment for the benefit of creditors has actual knowledge of a previous bill of sale conveying a part of the assets called for in his deed, the failure to record said bill does not prejudice the creditors.</p> <p>Same — Same—Same.</p> <p>An assignee for creditors with notice of a prior bill of sale of the property assigned secures no greater rights to the' property than his assignor possessed.</p>

<p>Landlord and Tenant.</p> <p>A tenant cannot dispute his landlord’s title.</p> <p>Injunctions — RestrainlngTrespass and Waste.*</p> <p>One making a fair prima facie showing in support of his title to land may obtain an injunction to restrain the commission of waste or of trespass if the injury would be irreparable.</p> <p>Same — Same—Need Not Show “No Adequate Remedy at Law.”</p> <p>One may obtain an injunction against trespass or waste without showing that he could not obtain adequate compensation in damages in a suit at law.</p>

<p>Appeal from circuit court, Wythe county ; Williams, Judge.</p> <p>Bill by Henry B. Hull and another against M. B. Tate’s executor. Decree for complainants, and defendant appeals.</p>

<p>Appeal from corporation court of city of Bristol; Rhea, Judge.</p> <p>Bill by one Pettyjohn and others against Z. L. Burson and others. Decree for defendants, and complainants appeal.</p>

Action by C. B. Price, trustee, against George W. Miles and others. George W. Miles filed across bill. Prom a judgment in his favor, the other parties appeal.

<p>Appeal from circuit court, Wythe county; Williams, Judge.</p> <p>Bill of review by William Burk and wife against J. P. M. Sanders and others. Decree for complainants. Defendants appeal.</p>

<p>Appeal from circuit court, Giles county; Williams, Judge.</p> <p>Bill by John T. Shumate, executor, against John Williams and others. Defendants had decree, and plaintiff appeals.</p>

Bill by S. L. Porter and others, as heirs, against John W. Robinson and others, for the settlement of the accounts of a partnership of which their decedent was a member. From a decree sustaining a demurrer to the bill for multifariousness, complainants appeal.

<p>Appeal from circuit court, Page county ; B. H. Turner, J udge.</p> <p>J. W. Dadisman appeals from a decree in favor of Lee Long and others.</p>

Bill by one Dunford and others against George Jackson’s executors and others for construction of a will. From the decree rendered, part of the plaintiffs appeal.

<p>Buggery — Sufficiency of Evidence.</p> <p>When defendant, charged with buggerj^, was under 12 years of age, and no complaint was made for 2 years, a conviction will be set aside.</p>

Suit by John B. Ellison & Son and others against H. J. Simon and others to set aside a homestead deed and an assignment for creditors, with preferences, as fraudulent. Decree for complainants. Defendants appeal.

<p>Vendors’ Liens — Priority—Construction of Contract — Case at Bar.</p> <p>Defendant being unable to pay plaintiff a balance due on the purchase of land, the latter agreed to extend the time of payment, provided T. paid a portion of the money due. It was agreed that T. was to be substituted to the lien of plaintiff, for the sum paid and any amount that he might thereafter pay, and that, when the whole was paid, plaintiff would deed to defendant and T. in proportion to the amounts paid by them: held, that T. became a purchaser of the land to the extent of his payments, and that plaintiff’s lien for the balance of the purchase money should be first paid, and after that the sums paid by T.</p>

<p>Appeal from circuit court, Botetourt county ; H. E. Blair, Judge.</p> <p>Action by P. H. Noyes & Co. against W. H. Carter and others. Judgment for defendants, and plaintiffs appeal.</p>

E. Blair, Judge. Action by Martha D. Penn against the Chesapeake & Ohio Railway Company for an injunction, and to set aside judgment. From a judgment dismissing the complaint, plaintiff appeals.

<p>Condemnation of Land — When Title Vests.</p> <p>Where a railroad company condemns land, title thereto vests only upon payment into court, or to the parties.</p> <p>Same — Case at Bar.</p> <p>After judgments had been docketed against a landowner, a railroad company condemned a right of way through the tract, and had damages duly assessed by commissioners, and their report confirmed, but the money was not paid into court. Certain grading having been done, the railroad was abandoned. The land was then sold to satisfy said judgments, the bed of the railroad not having been reserved at the sale. Subsequently the railroad enterprise was revived, and the damages assessed as above, with interest thereon, were paid into court. In a contest over this fund, between the creditors and purchasers at said sale: held, that the latter were entitled to the same.</p>

<p>Appeal from circuit court, Slienandoah county; R. H. Turner, Judge.</p> <p>Action by J. I. Triplett and others against Kate Gf. Moore and others. Plaintiffs had decree, and defendants appeal.</p>

<p>Injury to Brakeman — Negligence of Master — Case at Bar.</p> <p>A rear brakeman was killed by the defective loading of a lumber car in the front of the train, while attempting to cross over it. He had no duties calling him to that part of. the train, the cars in front of the lumber car being supplied with air brakes: held, that no negligence was shown in the position the car occupied in the train, though such cars were generally placed in the rear.</p> <p>Same — Same—Same.</p> <p>Where the evidence showed that a brakeman’s duty did not call him to scale a car loaded with lumber, that the brake on this car was set at the only end required before the train left a station, and that it was to remain set until the next station was reached, a judgment in favor of the railroad company, in an action for the brakeman’s death, caused while attempting unnecessarily to board such car, on account of the negligent manner of loading it, will not be disturbed.</p>

<p>Error to circuit court, Eockbridge county ; William McLaughlin, Judge.</p> <p>Mandamus by the Chesapeake & Ohio Eailroad Company against J. W. Shafer and J. F. Thompkins. Judgment for plaintiff, and defendants bring error.</p>

<p>Mutual Insurance — Notice of Assessments.*</p> <p>Where the by-laws of a mutual insurance company provide that failure to pay assessments within 30 days from date of mailing notice of same to his address forfeits the policy, such a failure to pay is fatal, where a notice is sent, but never received by the assured.</p> <p>Same — Same—Limitations in By-Laws.</p> <p>A limitation of six months, in the by-laws of a mutual insurance company, within which an assessment may be questioned, is valid.'</p>

Action by Lightner and others against John A. Lightner and others, for the settlement of the estate of Alexander B. Lightner, deceased, in which defendants John A. Lightner and the widow and children of Charles A. Lightner, deceased, filed cross bills. From a decree confirming a report of a commissioner in chancery denying plaintiff's in the cross bills any relief, they appeal.

Petition filed by J. S. B. Anderson in tbe chancery suit of Thom and others against Dismal Swamp Canal Company and others. Prom a decree in favor of petitioner, W. H. Peters, receiver in said suit, appeals.

<p>Appeal from corporation court of Danville.</p> <p>One Williamson was convicted of a crime, and appeals.</p>

Bill by Sarah A. Hardy’s administrator and others against Sarah A. Hardy’s distributees and others. From the decree, F. O. Robertson and others appeal.

Bill by Virginia M. Allen against J. B. and W. J. Crank to restrain the use of certain land, and to have a contract for the sale of timber construed. From a decree in favor of defendants, plaintiff appeals.

<p>Appeal from circuit court of city of Lynchburg.</p> <p>Suit by Alfred Beckley against -the Eiverside Land Company and others. There was a decree for defendants, and complainant appeals.</p>

<p>Error to circuit court, Princess Anne county.</p> <p>Action by William W. Blackford against George T. Bogers for trespass to land. Judgment for defendant, and plaintiff’ brings error.</p>

Proceeding by George Mason, trustee, and Benjamin Lewis, against the administrator of Albert Walker, deceased, and others, to have a deed to decedent canceled, and the premises therein described conveyed to said Lewis. Prom a decree for plaintiffs, defendants appeal.

Action by Burwell Todd against the city of Petersburg for personal injuries. Judgment for plaintiff, and defendant brings error.

Separate causes between Nettie L. Henley and B. W. Hefferron and others to determine their respective rights as to the title and the possession of certain property. From the judgments rendered appeals were taken.

<p>Divorce — Alimony—Discretion of Court.*</p> <p>The allotment of alimony is within the discretion of the court.</p> <p>Same — Same—Valid Marriage.</p> <p>One who failed to prove a valid marriage, in an action for divorce, cannot complain of a refusal to allow suit money and alimony.</p> <p>Same — Depositions—Waiver of Objections to.</p> <p>Objections to the reading of depositions in an action for divorce, on the ground of insufficient notice, cannot be raised on appeal,, where no objection to the reading was made below, and the decree entered was indorsed by appellant’s counsel.</p> <p>Same — A Mensa et Thoro — Decree.</p> <p>In an action for divorce a mensa et thoro, a decree declaring that there was no valid marriage between the parties is not equivalent to a decree annulling the marriage.</p> <p>Same — Same—Failure to Prove Valid Marriage — Custody of Children.</p> <p>Where no valid marriage was proven, in an action by a woman for divorce a mensa et thoro, she was competent to' consent to a decree giving the custody of their children to defendant, who was shown to be a suitable person, and, having so consented, cannot complain on appeal that the court erred in making said decree. ., •</p>

Suits in chancery by George Hughes’ executor and others against Maggie C. Thompson and others, and by James Doak against George Hughes’ executor and others, were heard together. Erom a decree therein in favor of C. E. Wilson, Hubert E. Hoss, the administrator with the will annexed of George Hughes, appeals.

Bill by J. J. Hurley and others against the Oakley Land & Improvement Company and others, to rescind a contract. From a decree in favor of defendants, plaintiffs appeal.

<p>Lost Deed — -Proof of Contents by Parol Evidence.*</p> <p>To establish title to land, under an alleged lost deed, on parol testimony, proof that it existed, and of its contents, must be clear and conclusive.</p>

Action of unlawful entry and detainer by Mary Jewett against William Chapman. There was a judgment for plaintiff, and defendant brings error.

Proceeding in the county court by Joseph K. Irving and others against George A. Sargeant and Lucy F. Sargeant, his wife, to discontinue a public ferry. An order discontinuing said ferry was affirmed on writ of error to the circuit court, and defendants bring error.

<p>Master and Servant — Railroads—Defective Cars — Notice to Brakeman.</p> <p>A brakeman cannot, as a matter of law, be held to be negligent in failing to discover that the bumpers on cars he is about to couple were rotten, and so defective as to permit the cars to come almost together, so as to prevent a recovery for his death, caused by such defects.</p> <p>Same — Same—Same—Same.</p> <p>Chalk marks, meaning “Out of order,” placed on the cars to inform the road from which they were received that the cars were out of order when received, and «that the defendant company was, therefore, not liable for their repair, are not, as a matter of law, notice to a brakeman that the bumpers are defective, so as to prevent a recover for his death caused thereby in coupling the cars.</p> <p>Same — Same—Duty of Master.</p> <p>A master is required, as affects his liability to his servant, to use ordinary care in supplying and maintaining adequately safe instrumentalities for the performance of the work.</p> <p>Same — Same—Action by Servant — Notice of Defects.</p> <p>Where, in an action by a servant against his master, it is admitted that the master was negligent in supplying defective appliances, the only issue involved being as to the servant’s notice of the defects, error in instructing as to the master’s duty to furnish proper appliances is not prejudicial to the master.</p>

<p>Ejectment* — Railroads—Right of Possession in Condemnation Proceedings.</p> <p>Ejectment will not lie against a railroad company for land upon which, after a report in its favor by commissioners duly appointed, and payment into court of the damages assessed, it has entered for construction of its road, notwithstanding the proceedings were still pending, since it has the right of possession under Code, ü 1081, authorizing it, under such circumstances, to enter for such purpose.</p>

<p>Appeal from circuit court of city of Lynchburg.</p> <p>Suit by Lucy D. Bucker against the Commercial Bank of Lynchburg. From the decree, defendant appeals.</p>

Appeals from circuit court of city of Lynchburg. Suit by the administrator of Samuel Garland, deceased, and others, against the administrator of Burr Garland, deceased, and others, and. a suit by the administrator of Samuel Garland, Sr., deceased, against Mary L. Garland and others. From separate decrees in the two cases, various defendants appeal.

A. Hancock, Judge. Suit by William E. Gaines and another against C. E. Wilson and others to enjoin certain of the defendants from interfering with property purchased by them at trustee’s sale, for cancellation of their deeds, and for other relief. From a decree for defendants, plaintiffs appeal.

<p>Ejectment* — Lost Will — Proof of Contents.</p> <p>Where plaintiffs in ejectment claim title through one of several heirs of the original owner, to whom such owner devised it to the exclusion of the other heirs, and the will has been lost, evidence of a witness who has examined the records of the courts where the will would probably be recorded that such records do not contain any record of the will is admissible to account for the nonproduction of the will or a copy.</p> <p>Same — Same—Same.</p> <p>Where plaintiffs in ejectment deraign title through a son of the original owner, deeds to such son from his brothers, conveying to him any interest which they would have inherited had their father died intestate, and reciting that, under the will of their father, he was entitled to the land, are admissible in evidence in the absence of the will.</p> <p>Adverse Possession — Color of Title.</p> <p>Adverse possession, to be effectual, must be maintained under a claim or color of title.</p> <p>Same — Presumption as to Continuance of.</p> <p>There is no presumption that adverse possession, once proved, continues till the contrary appears; but its continuance for the statute^ period under a claim or color of title must be proved.</p> <p>Instructions — Erroneous—Case at Bar.</p> <p>Requested instructions sufficiently covered by instructions already given are property refused.</p> <p>Same — Ejectment—Title of Plaintiff.</p> <p>Where defendants in ejectment claim title by adverse possession, it is error to refuse an instruction for defendant that plaintiffs can recover only on the strength of their own title.</p> <p>Same — Reversible Error to Give — Case at Bar.</p> <p>It is reversible error to give an instruction which assumes that a mesne grantor of plaintiffs had the legal title from the common grantor and authorizes the jury to find for plaintiffs if they have acquired the title of such mesne grantor, without tracing the title to its original service, unless defendant has shown title by adverse possession.</p>

<p>Carriers* — Snow on Track — Increased Difficulty of Control — Degree of Diligence.</p> <p>Servants of an electric street-railway company are bound to know the difficulty of controlling a car when there is snow on the rails; and where, at such a time, they approach a heavy down grade at such unusual speed as to cause their car to slide down the track, though the brakes are properly set, the company is liable for injuries to a passenger.</p>

Bill by Mary J. Aiken and others against Margaret Donnelley and others for partition. From a decree dismissing the bill, complainants appeal.

Suit by J. W. Anderson & Co. against M. J. Moore and others to set aside, as fraudulent, a trust deed. From a decree for complainant, defendant J. H. Harvey appeals.

<p>Garnishment Proceedings — Judgment against Garnishee — Equitable Relief — Case at Bar.</p> <p>In garnishment, judgment was rendered against the garnishee, who attempted to defend on the ground of liability incurred by indorsements for defendant above the amount due the defendant for salary. Subsequently, the defendant being insolvent, the garnishee was compelled to pay the notes, and also, after the return day of the summons in the garnishment proceedings, voluntarily paid to an assignee of the defendant’s salary a sum nearly equal to the amount of the judgment : held, that the insolvency of the defendant was no ground for equitable relief to the garnishee against the judgment rendered against him as garnishee.</p>

Blair, Judge. Bill by H. J. Franklin against the Salem Building Association and another for the recovery of certain real estate. From a decree ordering specific performance on the part of the plain- tiff of the contract of sale, plaintiff appeals.

<p>Appeal from circuit court, Craig county ; Henry E. Blair, Judge.</p> <p>Bill by John Henry Trout against B. E. Trout’s executor and others. Decree for defendants, and complainant appeals.</p>

<p>Specific Performance — Laches of Complainant.</p> <p>Specific performance of a contract to convey land, brought by one who has been for 30 years in possession of the land under the contract, will not be enforced, where the evidence shows that the consideration for the conveyance has never been paid.</p>

<p>Real-Estate Broker — Commissions—Contract with Purchaser for Additional Commissions — Evidence of.</p> <p>In an action by a real-estate broker for commissions on a purchase of land, he testified that, in addition to a cash commission which had been paid by defendant, there was an agreement made at another time for payment of additional commissions in case plaintiff procured a purchase for less than a certain price, and defendant testified that no contract for additional commissions was made at the time the original contract was made, but did not state that no such contract was made thereafter; and there was evidence that, after the sale had been completed, defendant stated to a third person that he had paid plaintiff a cash commission, and that plaintiff “will receive something more in the future” : held, that the evidence sufficiently established a contract for additional commissions.</p> <p>Same — Same—Same—Assumption of Contract by Third Person. .</p> <p>In an action by a real-estate broker for commissions, it appeared that defendant H. had agreed in writing to give plaintiff a certain cash commission, and had thereafter orally agreed to give additional commissions in case plaintiff procured a reduction of the price asked by the owner, and that such reduction was made by procuring from such owner additional property without additional consideration. It also appeared that defendant H. wrote to defendant W., stating the terms of the written contract, and that he had agreed to give plaintiff a cash commission; and defendant W., without making inquiry as to any agreement for additional commissions, replied that he would take “the deal” from the hands of defendant H., and assume the payment of the commission and the price, and defendant W. obtained the additional property: held, that he was liable for the additional commissions.</p>

<p>Appeal from hustings court of Boanoke; John W. Woods, J udge.</p> <p>Bill by Charles E. Moore against T. F. Barksdale, trustee, and others. Decree dismissed on demurrer, and complainant appeals.</p>

<p>Appeal from hustings court of Boanoke ; John W. Woods, Judge.</p> <p>Bill by the Old Dominion Investment Company against George C. Moomaw and others. Complainant appeals from a decree dissolving an injunction.</p>

Woods, Judge. Bill by Ab Kirschbaum and others, partners as Ab Kirschbaum & Co., against J. W. Coon, for rescission of a contract of sale of real estate and for an accounting. From a judgment dismissing the bill, complainants appeal.

<p>Conveyance to Insolvent Husband as Trustee — Consideration by Husband — Subject to His Debts.</p> <p>Property conveyed to an insolvent purchaser as trustee for his wife, the consideration being paid by the husband, becomes subject to the lien of a judgment against him, which is not divested by a return and cancellation of the deed, which is unrecorded.</p> <p>Same — Same—Same—Vendor’s Lien.</p> <p>An insolvent purchaser of property, who had paid a part of the price, and taken a deed to himself as trustee for his wife, in which a vendor’s lien was reserved, not having recorded such deed, surrendered it, and caused another to be made by his vendor to a third person, who paid the remainder of the purchase money, as security for its repayment and for other indebtedness: held that, as against a judgment creditor of the purchaser, the grantee became subrogated to the vendor’s lien to the extent of the payment advanced, but that, as to the remaining indebtedness secured, his lien was subject to that of the judgment.</p> <p>Chancery Practice — Failure to Amend Bill — Case at Bar.</p> <p>In an action by a judgment creditor to subject property to his judgment, on the ground that an unrecorded deed of the property to the debtor had been fraudulently surrendered and canceled, where the evidence showed that the deed was to the debtor as trustee for his wife, and the heirs of the wife, who was dead, were then made parties, and evidence taken as to such provision in the deed, a decree holding the provision fraudulent and void as against the complainant will not be reversed because the bill was not amended to charge the fraudulent character of the deed.</p>

<p>Petition by J. W. Wilcox against W. W. Hunter, treasurer of Norfolk, for a writ of mandamus.</p>

<p>Appeal from circuit court, Shenandoah county ; Thomas W. Harrison, Judge.</p> <p>Bill by one Eoller against one Stonebunger and others. From a decree for plaintiff, defendant Stonebunger appeals.</p>

Suit by Mary W. Woodson against one Hannah, administrator, and others. There was a judgment for complainant, and defendants appeal.

Bill by Thompson Corbin against W. F. Patton, receiver, and another, ,i'or injunction and accounting. From the decree rendered, complainant appeals.

<p>Contract of Employment — Implied Agreement — Case at Bar.</p> <p>Where an employee’s compensation in addition to his regular salary is conditioned on the event only that there are sold specific bonds in excess of a certain amount, there is no implied agreement that his employer will put the bonds on the market.</p>

<p>Error to Prince William county court.</p> <p>One Garner was convicted of arson, and brings error.</p>

<p>Appeal — Decision—Second Appeal.</p> <p>In a suit on a note executed by a trustee of real and personal property, the appellate court reversed so much of the decree as directed payment of the debt from the personal property held in trust, but affirmed that part which ordered a sale of the crop for that purpose, and remanded the cause: held, that the failure to give plaintiff a decree subjecting the rental of the real estate to payment of his debt was an adjudication against such right, which would be adhered to on a second appeal upon a similar record.</p>

Bill by C. C. Drumright and others against E. M. Hite and B. E. Cogbill, sheriff and administrator of the estate of E. W. Davis, deceased, to recover possession of land conveyed by S. S. Davis to a trustee, primarily to pay his debts, and then for the benefit of plaintiffs, his children, and his wife, since deceased, and for an account. From a decree in favor of defendants, plaintiffs appeal.

Suit by Jesse Pruntey and another, on behalf of themselves and other lien creditors, against C. I. Saunders, to subject land to payment of liens. From a decree overruling exceptions to and confirming a commissioner’s report, and directing a sale of the land to satisfy the liens reported, defendant appeals.

<p>Appeal from circuit court, Gloucester county.</p> <p>Bill by Rhoda Ross, administratrix of Joshua E. Ross, deceased, against Charles E. Thomas, executor of George Hughes, deceased, and others. Bill dismissed, and complainant appeals.</p>

Moses Pryor appeals from a judgment of the circuit court affirming a judgment of the county court convicting him of a felony.

<p>Compromise — Long Acquiescence in — Betting Aside — Case at Bar.</p> <p>A compromise of a suit for settlement of a deceased guardian’s account, entered into by advice of counsel, and ratified by decree, after examination and explanation of settlements of the account reported by a commissioner, and of exceptions of both parties thereto, with access to all sources of information, in possession of the guardian’s administrator, could not be set aside, after acquiescence for 11 years, on the ground that it was unequal and unjust, and entered into in ignorance of the facts, and of the extent of the guardian’s liability, in the absence of fraud or mutual mistake.</p>

<p>Appeal from circuit court, Culpeper county.</p> <p>Bill by G-eorge S. Stringfellow against Charles H. Long, W. H. Wise, and others, for injunction. From the decree entered, plaintiff appeals.</p>

Suit by ~W. B. Ferguson and others against Rufus E. Darden and others. From a decree in favor of complainants, defendants appeal. Defendants introduced evidence to show that the money represented by the notes referred to in the opinion was a loan by the wife to her husband, and that the notes were given to her by him at the time the money was paid. The evidence of complainants tended to show that the notes were executed subsequently.

<p>Railroads — Crossing Accident — Negligence—Case at Bar.</p> <p>Plaintiff’s horse and hearse were injured in a collision with defendant’s train, where the road crossed six or seven tracks, with an intervening space of 30 feet. Cars were standing on nearly all the tracks on each side, leaving barely space to pass. The driver brought his team nearly to a stop, and looked and listened, and then drove quickly across; and the collision occurred on the last track, with a backing train whose engine was 600 feet from the crossing. No one was on the train nearer than the second car from the engine, or at the crossing, to give warning, though the conductor knew that an approaching driver could not see or hear the train: held, on demurrer to the evidence, that plaintiff could recover.</p>

<p>Rescission of Contract — Misrepresentations—Case at Bar.</p> <p>A purchaser cannot rescind his contract though the vendor represented that it had made arrangements with a railroad to build a station near the lots sold, such arrangements having'been made, and the vendor not being responsible for the railroad’s default in not building.</p>

<p>Vendor and Purchasei — Rescission—Representations as'to Future Improvements.</p> <p>A purchaser was not entitled to rescind because of false and fraudulent representations, which related merely to future improvements that would be made on the property embracing the lots purchased, such as grading streets, laying water and gas mains, building houses, running a belt line, etc.</p> <p>Same — Same—Waiver of Right.</p> <p>Where a purchaser thoroughly examined the lots purchased several months after buying them, and held them for speculation, though he might have sold them at an advance, any imperfection in the contract of purchase was waived.</p> <p>Same — Same—Same.</p> <p>Where a purchaser, three 3rears before suit, became acquainted with all the causes for which he asked a rescission, but held the property for speculation, without complaint, until it had greatly depreciated in value, and he was called on to perform, he was not entitled to rescind.</p>

Bill by the Eairview Cemetery Company against W. P. Moomaw and others for the surrender and cancellation of notes and stock, and for an injunction against a disposition of the same. Erom a decree for complainant, certain defendants appeal.

<p>Appeal from circuit court, Henrico county.</p> <p>Petition by John Howard against the First Hational Bank of Charleston, S. C. From a decree dismissing the petition, petitioner appeals.</p>

Action of unlawful detainer by Susan G. Adams and husband against Charles A. West to recover possession of oyster grounds. There was a judgmentin favor of plaintiff Susan G. Adams, and defendant brings error.

<p>Specific Performance — Parol Contracts to Convey Land — Insufficiency of Evidence.</p> <p>A parol contract for the sale of land will not be enforced where the only evidence of the contract consists of testimony of declarations made by the vendor, in none of which is he said to have made any reference to the contract relied on, and it does not appear whether the act proved in part performance was done before or after the alleged making of the contract, nor that a refusal of full execution of the contract, if it exist, would operate as a fraud on the parties, and place them in a situation which does not lie in compensation.</p>

<p>Error to corporation court of Eoanoke.</p> <p>Action by E. W. Ayers’ administrator against the Norfolk & Western Eailroad Company. From a judgment for defendant, plaintiff brings error.</p>

Bill by Thomas J. Brooks and others against James Hubble, James E. Peery, and others. From a decree refusing to disturb a partition set up by defendants, complainants appeal, and from a decree appointing commissioners to make a partition, defendant James E. Peery appeals.

Petition by Josephine B. Williams and W. F. Williams, her husband, against A. D. Eeynolds, D. F. Bailey, Williams & Keebler, and others to set aside deeds to ' Eeynolds and Williams & Keebler, made by Bailey, as special commissioner, conveying certain lots sold by said commissioners to petitioner Josephine B. Williams, under decrees in a certain cause in which the petition was filed. From a decree dismissing the petition, petitioners appeal.

<p>Bills of Exception — Reference to Another Bill — When Not Necessary.*</p> <p>The court may supply an omission in a bill of exceptions from another bill of exceptions which contains all the evidence, and was taken at the close of the trial, though the one makes no reference to the other.</p> <p>Usurious Notes — Renewal of — Case at Bar.</p> <p>The fact that on the renewal of usurious notes the principal appears as the indorser, or that there are additional or different makers or indorsers than said principal, or that notes are surrendered for drafts, will not relieve any of such notes or drafts of the taint of usury, where there is in fact the same principal through all the transactions.</p> <p>Demurrer to Evidence — Jury instructed to Find Subject to.</p> <p>The court may instruct the jury to find a verdict for a sum certain sued for, subject to the opinion of the court on a demurrer to the evidence.</p> <p>Recovery on Usurious Contract — Statute Regulating.</p> <p>In view of Code, § 2821, providing for the recovery of the principal only, where a written usurious contract is sued on, and no plea of usury is made, and also providing how the question of usury may' be litigated, a recovery may be had for the amount due him by a plaintiff suing on a usurious contract, where usury is pleaded.</p>

<p>Appeal from circuit court, Bussell county.</p> <p>Bill in equity by H. C. Slemp against William A. Little, Jr., and others, for the sale of land. Sale decreed. Certain defendants appeal.</p>

Bill by Barbara Solenberger and another against Daniel Herr and others for an injunction. From a decree dismissing the bill, plaintiffs appeal.

<p>Appeal from circuit court, Pulaski county.</p> <p>Bill by E. J. Eupe against W. PI. Showalter and others. From decree for complainant, defendant Showalter appeals.</p>

<p>Appeal from circuit court, Augusta county.</p> <p>Bill by David H. Eauver and others against William M. Taylor and others. Erom a decree in favor of plaintiffs, defendants appeal.</p>

Suit by W. T. Lightner and others against T. R. N. Speck, administrator of Alexander B. Lightner, deceased, and others, to settle the estate. Defendant John A. Lightner filed a cross bill, and from a decree confirming the report of a commissioner in chancery, refusing the relief demanded in said cross bill, the cross complainant appealed to the supreme court, which reversed the decree, and remanded the case for further proceedings.

Bill by Robert W. Tomlin and others against L. E. Williams and another, to compel defendants to transport themselves, their heirs, tenants, etc., over their ferry free of charge. Erom a decree for plaintiffs, defendants appeal.

Separate actions by the Lynchburg Trust & Savings Bank and another against William A. Wren, administrator with the will annexed of Thomas J. Nottingham, deceased, and others, consolidated, in which a certain claim of James D. Tate, executor of the will of M. B. Tate, deceased, against the estate of said Nottingham, deceased, was in controversy. To a report allowing said claim, said administrator excepted, and from a decree establishing it as a debt he appeals.

Bill by John Booton against Edwin Booton and another, as executors of the will of John Booton, ¡Sr., deceased, for a construction of said will, and a determination of the respective rights of the parties claiming thereunder. From decrees overruling plaintiff’s exceptions to the report of the commissioner therein, he appeals.

<p>Contracts — Specific Performance — Burden of Proof of Contract — Evidence of.*</p> <p>In a suit for specific performance of an agreement, the burden is upon the complainant to prove the same by clear and distinct evidence ; and where the evidence is not only unsatisfactory and insufficient, but the agreement is one the defendant was unlikely to make, the bill should be dismissed.</p>

Action by J. T. Hughes, sheriff, for the benefit of C. A. Sweeney, against John Kelly, and another. There was a judgment for defendants, and plaintiff brings error.

Ejectment by Max Grief against the Norfolk & Western . Eailroad Company. Erom a judgment for defendant and a refusal to grant a new trial, plaintiff brings error.

Action by the Merchants’ Bank of Danville against one Belt and others to set aside a conveyance as being in fraud of creditors. From a decree in favor of defendants, plaintiff appeals.

<p>Continuances — Party Obtaining Estopped to Deny Jurisdiction of Court.*</p> <p>A party who obtains a continuance cannot afterwards say that he was not' regularly brought into court on account of a noncompliance with Code, ? 3318, requiring the clerk of a circuit court where a suit is begun to transmit to the clerk of the circuit court to which the cause is removed, not only the original papers in the cause, but copies of all rules and orders made therein, and a statement of the costs incurred by each party.</p> <p>Creditors’ Bill — Parties.</p> <p>In a creditors’ suit, the trustees in all deeds of trust on the property-sought to be sold, and all the creditors named therein, are necessary parties.</p> <p>Same — Decree for Sale of Land — Priority of Liens.</p> <p>A decree for the sale of land in a creditors’ suit is erroneous where the priorities of the liens against the land have not been established.</p> <p>Same — Commissioner’s Report — Failure to Indicate Priority of Liens— Objection in Supreme Court.</p> <p>Where, in a creditors’ suit, the commissioner’s report does not indicate the order of priority of liens of different rank on the land sought to be subjected, objection thereto may be first taken in the supreme court.</p> <p>Same — Proof of Lien before Commissionei — Effect.</p> <p>Where, in a creditors’ suit, a party who held a lien against the property sought to be sold proved his lien before the commissioner, he became a substantial party to the cause.</p>

<p>Wills — Construction—Case at Bar.</p> <p>Where testator gave his property to his wife for life, with direction that, in her discretion, she should make suitable advancements to their children as they became of age, or married, and provision that on her death the property then in her possession should be equally divided among said children, account be taken of advancements, and that, if any one of said children died before his mother, leaving issue, such issue should take his share, advancements to such a child dying before the mother intercept to that extent any right of his issue.</p> <p>Same — Payment of Taxes by Executoi — Entitled to Credit foi — Case at Bar.</p> <p>The executor of one who gives his property to his wife for life, with power to make advancements to their children, the property in her possession at her death to be equally divided among them, is entitled to credit for payment of taxes on the life estate, and debts contracted by her, they having been paid by him with the acquiescence of the children.</p> <p>Same — Same—Same—Same.</p> <p>Where testator gave his property to his wife for life, with power to make advancements to their children, the property in her possession at her death to be equally divided among them, payments by the executor, one of the children, of taxes on the life estate, and debts contracted by the life tenants in the management of the estate, not having been objected to by any of the others for years, will be presumed to have been the result of a family agreement.</p>

<p>Appeal from the law and chancery court of city of Norfolk.</p> <p>Assumpsit by Peed & Son against the City National Bank of Norfolk. Prom a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Action for Assault — Instructions—Vindictive Damages.</p> <p>An instruction, in an action for assault, that, if defendant assaulted plaintiff willfully, the jury might give vindictive damages, is not objectionable, as assuming that an assault was made.</p> <p>Same — Verdict.</p> <p>The court will not disturb a verdict as excessive, unless it has been influenced by passion, partiality, or prejudice.</p>

<p>Appeal from corporation court of city of Lynchburg.</p> <p>Bill by Flood’s administrator against E. S. Hutter. Decree for defendant, and plaintiff appeals.</p>

<p>Appeal from circuit court, Amherst county.</p> <p>Suit between Robert G. Scott and Dameron’s administrator and others’. From the decree, Scott appeals.</p>

<p>Appellate Practice — Proceedings In Error — Two Trials.</p> <p>Where there have been two trials, and the verdict on the first trial for plaintiff was set aside as not sustained by the evidence, and on the second trial verdict was rendered for plaintiff, on proceedings in error under Code, $ 3484, as amended by Act March 3, 1892 (Acts 1891-92, p. 962), the appellate court must look first to the proceedings on the first trial; and, if the court erred in setting aside that verdict, it must annul all proceedings subsequent thereto, and enter judgment thereon.</p> <p>Same — Same—Same.</p> <p>Under Code, § 3484, as amended by Act March 3, 1892 (Acts 1891-92, p. 962), the court, on proceedings in error from a judgment rendered on a second trial, in determining whether the lower court erred in setting aside the first verdict, must look to the evidence as the trial court ought to have looked to it, and not as on a demurrer to the evidence.</p> <p>Action for Nuisance by Trustee — Damages.</p> <p>In an action to recover for an alleged nuisance, where plaintiff sues in her own right as trustee of the property, and not as an occupant, she cannot recover damages resulting to her as an occupant by reason of offensive odors, or other causes which do not affect the value of the property.</p> <p>Same — Same—Proof of Sickness.</p> <p>Where plaintiff sues, as trustee of property, to recover for nuisance, she can show sickness and suffering in her family caused thereby for the purpose only of proving the unhealthy condition of the premises.</p> <p>Evidence Tending to Prejudice Admitted for One Purpose — Instruction as to.</p> <p>Where evidence tending to prejudice the jury is properly- admitted for one purpose, it is the duty of the court to instruct the jury that it is to be considered by them for that purpose only.</p> <p>Action for Nuisance — Defective Sewer — Instruction—Case at Bar.</p> <p>A complaint for nuisance alleged that the private sewer of defendant had an insufficient fall, whereby the sewerage was collected and thrown upon plaintiff’s property, to his great injury. The only evidence showed that the fall was sufficient: held, that an instruction that, if the sewer was so badly constructed as to affect plaintiff’s property, he was entitled to recover, was improperly given.</p> <p>Same — Declaration Alleged Continuous Nuisance — Recovery for Occasional.</p> <p>A declaration alleged that defendant’s sewer was out of repair from the year 1886 until the time of bringing suit, and that the nuisance was a continuous one. Evidence showed that after 1892 no damage was caused thereby, and that the damage caused thereafter was produced by separate causes, which were remedied on each occasion: held, that plaintiff could recover for the occasional nuisances, though the declaration alleged a continuing nuisance, if the nuisances were caused in the manner alleged in the declaration.</p> <p>Sewers — Duty of Owner to Repair — Liability.</p> <p>Where a sewer connecting with a city main sewer was built at the expense of the landowner, and under the city ordinance it was his duty to repair the same at his expense on consent of the city, he is liable for a nuisance created by its want of repair, in the absence of evidence to show that the city had refused to allow him to repair.</p> <p>Continuous Nuisance — Recovery on Original Cause of Action — Statute of Limitations.</p> <p>Where a nuisance is a continuing one, the party complaining thereof cannot recover on the original cause of action after the expiration of the statutory period, but may for its continuance for any time within such period.</p>

<p>Contract to Build Railroad — Liability to Subcontractor — Extras.</p> <p>A railroad company which has let a contract for the construction and equipment of its road is not liable to a subcontractor for extra work done by him in constructing it under his contract with the principal contractor.</p>

Suit by one Dingus and others against George Banner and others. There was a decree ordering that no decree as to the rights of plaintiffs should be made pending the rendition of a decree in another suit, and appointing a receiver, and in so far as the decree appoints a receiver defendants appeal.

<p>Foreign Building and Loan Association — Virginia Stockholder — Charge of Premiums for Loan.*</p> <p>A Virginia stockholder in a building and loan association, organized under the laws of New York, who has made a loan from it, is chargeable with premiums for the loan, which the statutes of New York expressly authorize and declare shall not be deemed a violation of any statute against usury.</p>

Bill by John H. Wright, assignee, against M. P. Vaughan and others, to enforce a mechanic’s lien. From'a decree for defendants, complainant appeals.

<p>Error to Dickenson county court. One Mullins was convicted, of a crime, and brings error.</p>

<p>Appellate Practice- — Court Equally Divided.</p> <p>Where the appellate court is equally divided the ruling of the lower court is affirmed.</p> <p>Same — Decrees—“Without Prejudice.”</p> <p>In this case it appeared to the court that the decree dismissing the bill should have been without prejudice to the right of the appellant to bring his action at law on the contract, and the decree was amended in that respect.</p>

Bill by Francis W. Meade and another against one Campbell, as trustee, and others, to enjoin the sale of certain real estate under a trust deed. From a decree in favor of defendants, complainants appealed.

Bill by Joseph G. Kent against D. C. Kent, as administrator, to compel an accounting and distribution of the estate of Gordon C. Kent, deceased. From a decree in favor of defendant, complainant appealed.

<p>Sale of Undivided Interest — Sacrifice—Burden of Proof.</p> <p>Persons who have mortgaged their undivided five-sixths interest in land, if entitled to have partition before the sale under the mortgage, on the ground that a sale subject to the other one-sixth interest would result in sacrifice of the property, have the burden of proving that such would be the result of a sale without partition, as it is not the universal result. „</p>

<p>Boundaries — Jurisdiction of Chancery Court.</p> <p>The chancery court has no jurisdiction to settle a boundary.</p> <p>Same — Same—Objection to on Appeal.</p> <p>Objection that the chancery court has no jurisdiction to settle a boundary may be made for the first time on appeal.</p>

<p>Attorney and Client — Compensation—Contingent Fees — Expenses.</p> <p>A stockholder engaged attorneys to recover a debt due his company, and for their services they were to retain a percentage for all fees and disbursements, and hold the stockholder harmless from liability. The claim was established, but declared subordinate to a mortgage. The stockholders, to secure a bidder at a sale of the mortgaged premises, gave a bonus. A receiver was appointed for the company, and was allowed commission and attorney’s fees, of all of which such stockholder had full knowledge: held, that as the bonus, receiver’s counsel fees, and commissions were necessary charges incurred in the creation of the fund, they should be deducted from the entire fund collected, and not borne entirely by the attorneys.</p>

Bill by W. H. Aye against J. W. Repass, J. A. Bourne, and others, for an accounting, in which defendant Bourne filed a cross hill against complainant and his co-defendants. From a judgment for Bourne, said co-defendants appeal.

Case by one Duncan against the city of Lynchburg. From a judgment for defendant on sustaining a demurrer to the declaration, plaintiff appeals.

<p>Appellate Practice — Demurrer to Evidence — Judgment by Appellate Court.*</p> <p>On a demurrer to evidence, where there is no objection to the verdict, the supreme court has no power to grant a new trial. It must either affirm the judgment, or reverse it and give judgment for the opposite party.</p> <p>Same — Excluding Evidence — Bill of Exceptions.</p> <p>An objection to a ruling excluding evidence on the ground that the ofller came too late cannot be considered, in the absence of a bill of exceptions.</p> <p>Writ of. Error — Change of Law — Effect.</p> <p>Writs of error must be disposed of in accordance with the law at the time of the rendition of the judgment complained of.</p>

Bill by Margaret J. Browning against her husband for divorce and for an accounting. Complainant died during the pendency of the suit, and from the decree her executor appeals.

<p>Appeal and Error — -Unsatisfactory Record — Commissioner’s Report— Decree — Substantial Justice.</p> <p>Where a record on appeal is unsatisfactory, and the evidence not clearly stated, a decree which was based on the report of a commissioner who had the witnesses before him and knew the particular items to which their evidence was directed, and which appears to-do substantial justice, will be affirmed, though the conclusions reached are not absolutely accurate.</p>