Volume 81 — Virginia Reports

<p>1. Criminal Jurisdiction and Proceedings—Justifiable Homicider— Definition.—Where one in defence of his person, habitation or property, kills another, who manifestly intends and endeavors by violence or surprise to commit a forcible or atrocious felony upon either, such killing is justifiable homicide. And in such case, the justification of the prisoner must depend on the circumstances as they appear to_him.</p> <p>2. Idem—Dvidence—Prisoner's admissions.—If the prosecution uses prisoner’s statements, the whole must be taken together, and one part cannot be selected and another left out.</p> <p>3. Idem—Cropping—Ownership of crop—Larceny.—Where land owner contracts with one to crop his land and to give him part of the crop after paying all advances, and the crop has not been divided, such cropper is not a tenant, but a mere employe, and the ownership of the entire crop is in the land owner, and if cropper forcibly, or against consent of land owner, takes the crop from the possession of the latter, such taking is larceny, robbery, or other offence, according to the circumstances of the case.</p> <p>4. Idem—Case at bar.—A case of justifiable homicide.</p>

Thomas, trustee & als. By the first, only Wm. Thomas, the complainant in the suit, professed to be aggrieved. But by the second, not only he, but A. R. Thomas, Eggborn O’Bannon, Thomas C. Howard and wife, G. S. M. Payne, trustee for Mrs. Howard and her children, under the will of Albert Thomas, deceased, who filed their petition in said cause 22d September, 1882, claiming an interest in the land which had been sold under the first decree, as the land of the said Wm.

<p>Error to judgment of circuit court of city of Richmond, rendered 5th July, 1883, in an action for damages for negligent injury to a certain building, wherein Alfred Moses was plaintiff and the Old Dominion Iron and Nail Works Company was defendant. This case is sequel to the case under the same style reported 75 Va. 95.</p> <p>Opinion states the case.</p>

Hatcher and others were plaintiffs, and Benjamin T. Benn was defendant. The plaintiffs owned a tract of 413f acres of land on Beaver Dam in said county, and in 1851 granted it to John T. Sublett, “reserving to the parties of the first part three-fourths of an acre as a burying-ground for the family and their descendants.” The land reserved had been dedicated for that purpose many years.

<p>Wills—Construction.—Testator says: “All the rest of my estate * * * I give in trust to my grandchildren by my sons J., L. and W., now born or hereafter bom, to be divided equally between them, my sons acting as trustees, each for his own family, * * * * and dividing out to each child, as he or she may come of age or marry, his due share of said estate: provided always, that the right of survivor-ship shall be to the rest of each family of children in case any child of either family shall die under age, unmarried and without children.” * * *</p> <p>Held:</p> <p>1. The title to the property on testator’s death vested in his three sons, in trust for their respective families.</p> <p>2. The property vested beneficially, on testator’s death, in the grandchildren then born, subject to open and let in after-born grandchildren.</p> <p>3. If any of the grandchildren die under 21 years of age, unmarried and without children, his or her share survives to his or her brothers and sisters.</p> <p>4. The devise is not void for remoteness.</p>

14. Linkenhoker’s administrator against J. B. Linkenhoker’s heirs and als. The object of the suit was to have an account of the assets and of the debts due from the decedent’s estate, and to settle the same in full. J. B. Linkenhoker had filed and recorded his deed setting apart a tract of land and other property as his homestead exemption in 1871. After that he had executed his bonds to L. F. Detrick and others, waving his homestead as to the same.

Frazier was defendant. The object of the action was to recover possession of the hospital building within the enclosure of the institute at Lexington.

June, 1883, in the cause of Michael Whitmer, administrator of Peter Whitmer, deceased, against Cynthia Whitmer, widow, and M. H. Spitzer and Rebecca, his wife, and others, the heirs at law of Peter Whitmer, deceased. Opinion states the case.

Hartsook is defendant, requiring plaintiffs by the next term to elect whether they will prosecute this action, or the chancery suit wherein they filed their bill, in said court at April rules, 1884, for the same matter involved in this action. From this judgment the plaintiffs obtained a writ of error and supersedeas from one of the judges of this court. Opinion states the case.

<p>1. Principal and Employes—Negligent injuries—Liability—Exceptions.—As a general rule, one entering the service of another takes upon himself the ordinary risks of the negligent acts of his co-employes, and principal is not liable to his employes for the fault of their co-employes. But principal and his representatives must be free from negligence.</p> <p>2. Idem—Representatives—Neg ligence—Notice.—Employe charged with duties that the law makes it incumbent on principal to perform, is regarded, pro hac vice, as the representative of principal, and his negligence is the negligence of principal, and notice to him is notice to principal.—Railway v. Ross, 112 U. S. 377; Moon v. R. & A. R. R., 78 Va. 745.</p> <p>3. Negligence—Contributory—Onus prohandi.—Plaintiff must be presumed to have been without fault; and if defendant relies on the defence of contributory negligence, he must prove it.</p> <p>4. Idem—Defendant liable.—If defendant’s negligence was the proximate cause of the injury, the plaintiff, being without fault, is entitled to recover, even though by his attempt to escape he contributed to his own injury.</p> <p>5. Idem—Mixed questions—Instructions.—What is negligence is a question of mixed law and fact, involving (1) whether the particular act has been done or omitted, and (2) whether the doing or omitting of the particular act was a breach of duty. Dunn v. R. R. Co., 78 Va. 645. Therefore, it was proper to instruct the jury that “if defendant knew, or by reasonable diligence might have known, on the evening before the collision which caused the injury, that the rock, whose fall caused the collision, was dangerous, then the defendant’s failure .to secure or to remove the rock was negligence.”</p> <p>6. Idem—Idem—Co-employes—Instructions.—Whether plaintiff and defendant are co-employes, or ratlier, whether the negligent employe was the representative of the defendant when the injury was received, is a question of mixed law and fact, to be decided by the jury under suitable instructions from the court, and it is not proper to instruct the jury that the plaintiff and the negligent servant did on that occasion stand in the relation of co-employes, or did not stand in the relation of subordinate and superior.</p> <p>7. Idem—Instructions—New trial.—It is not ground for new trial that instructions are given, when, independent thereof, the verdict could not properly have been otherwise than for the plaintiff, and the defendant, therefore, in any view, was not prejudiced.—Snouffer v. Hansbrough, 79 Va. 166.</p>

Argued at Staunton and decided at Richmond. Appeal from decree of circuit court of Rockingham county, rendered October 24th, 1884, in a chancery cause, wherein Haas and Conrad, trustees, are complainants, and James W. Smith and others are defendants.

Argued at Staunton and decided at Richmond. Appeal from decree of circuit court of Rockingham county, rendered October 22d, 1884, in the chancery cause, styled R. M. Hall et als. v. M. H. Effinger’s Ex’or and als.

<p>Error to judgment of circuit court of Shenandoah county, refusing a writ of error and supersedeas to a judgment of the county court of said county, rendered August 11th, 1884, sentencing the plaintiffs in error, John C. Richards, B. F. Fry and A: B. Fauver, to confinement in the penitentiary for the period of seven years, in accordance with the verdict of the jury at the trial of an indictment against them for arson. The first count of the indictment charged them with feloniously and maliciously burning, in the night time, the dwelling-house of William Windle. The second count charged them with so burning in the night time “a certain other building, then and there of just value, to-wit,” &c. Defendants, after pleading not guilty, moved to quash the indictment; which motion the court overruled. The other points raised, and motions made, the opinion states.</p>

<p>Error to judgment of circuit court of the city of Richmond, in an action of unlawful detainer, wherein John W. Johnston was plaintiff and N. D. Hargrove was defendant.</p> <p>The defendant was the tenant of the late Judge John A. Meredith, from whom he had-a lease of the premises in controversy (situate in said city) for a term of five years, commencing December 1st, 1880, at a stipulated rent, payable in equal monthly instalments on the first day of each month. In 1882 the premises were sold and conveyed in fee-simple to the plaintiff by the executrix and devisee of Meredith, who in the meantime had died, leaving a will which was duty probated. The deed of lease contains a clause of re-entry in the following words: “And the lessor may re-enter for the default of ten days in the payment of an}*- instalment, or for the breach of any covenant herein contained.” And this clause enured to the benefit of the plaintiff as the grantee of the reversion.</p> <p>On April 12th, 1883, the defendant, not having paid the rent for the preceding month, the plaintiff caused to be duty served upon him on that day a written notice, as follows: * * “This is to notify you that unless, within five days, you quit the premises, now unlawfully occupied by you, I will proceed against you for the unlawful detainer thereof. You failed, within ten days from April 1st, 1883, to pay the rent due for the month of March, 1883.” Seven days thereafter the present action was instituted.</p> <p>It appears that after the purchase of the premises, the plaintiff’s son acted as his agent in collecting the rent, and that he regularly collected and receipted for the same, including the rent for the month of February, 1883; that on the day after the written notice was served on defendant the latter, through his agent, tendered to the plaintiff’s «on the rent due for the preceding month, which he decline''; to receive; that there was at all times sufficient property on the premises, subject to distress, from which the rent could be realized, and that no demand for the payment thereof was made by the plaintiff before the action was brought.</p> <p>Upon these facts, among others, a verdict was returned for the defendant; and judgment having been rendered in accordance therewith, the plaintiff applied for and obtained a writ of error.</p>

<p>Error to judgment of circuit court of Roanoke city, rendered December 18th, 1884, in action of assumpsit by A. P. Howison against the Norfolk and Western Railroad Company.</p> <p>During 1882 and up to April, 1883, said company had certain bridges built under contract with the Clark Bridge Company. In November, 1882, Howison furnished said Bridge Company with lumber, which was to be, and was, used in constructing said bridges. Plaintiff furnished defendant March 14th, 1883, with notice and affidavit that, as subcontractor, he would hold defendant responsible to him for the payment of $1,963.02, the amount due to plaintiff from the general contractor for said lumber. At the time the notice was given defendant did not owe, and since then has not owed, the general contractor anything.</p> <p>Defendant demurred to the declaration, but the circuit court overruled the demurrer, and, a jury being waived and the facts agreed, rendered judgment for the plaintiff for the amount claimed. And the defendant having excepted, obtained a writ of error and supersedeas to the judgment.</p>

Marie A. Tams was plaintiff, and Mrs. Virginia B. Donaghe, widow of the late Dr. Briscoe B. Donaghe, and her children, Mary Donaghe Mauzy, widow of the late Anderson S. Mauzy, Charles D. Hutcheson and Florence Lee Donaghe, his wife, Virginia B. Donaghe, an infant, and ¥m. D. Runnels, sergeant of the city of Staunton, and as such administrator of Briscoe B. Donaghe, deceased, and others, were defendants. Heard at Staunton, but decided at Richmond.

<p>Error to judgment of corporation court of the city of Alexandria, rendered April 21, 1885, and sentencing Jesse Butler, the plaintiff in error, to confinement in the penitentiary for the period of three years, upon a verdict of the jury finding him guilty, on an indictment for house-breaking with intent to steal, &c.</p>

April, 1883, in an action of assumpsit,- wherein Beverly Grant was plaintiff and Joseph S. Payne was defendant. To which judgment said Payne obtained a writ of error and supersedeas from one of the judges of this court.

Allen, and of Roland’s Administrator v. Burt’s Executor. The objects of the suits were to settle the partnership accounts of Roland & Shriver, and the accounts of the personal representatives of Jacob M. Shriver, deceased, and to ascertain and satisfy to William Allen’s estate the balance due it for a tract of about 3,000 acres of land, sold in the lifetime of the vendor and vendees, by William Allen to Roland & Shriver, and for other purposes.

<p>1. Negligent Injuries—Contributory negligence.—In order to maintain an action for an injury, it must be proved that the injury was caused by the negligence of the defendant, or his agents, and it must not appear from the evidence that want of ordinary care and prudence on the part of the plaintiff directly contributed to the injury. N. & W. R. R. Co. v. Ferguson, 79 Va. 241.</p> <p>2. Idem—Negligence—Onus probandi.—Where negligence is the gravamen of the action, the law does not impute it, but the burden of proving it rests on him who alleges it.</p> <p>3. Contributory Negligence—Case at bar.—On defendant’s railroad is a bridge with sides five feet high. The top is one foot higher than the cab floor, and 131 inches of passing engines, making it unsafe for one to be on outside of engine passing bridge. The bridge is properly built with respect to safety of persons on passing engines, and projects no nearer passing engines than other bridges on that and other roads. S. well knew this bridge, having passed over it on engines daily for months. Whilst the engine, whereof S. was on November 27, 1883, fireman, was running 18 miles an hour, he, without orders and in violation of the rules, opened the ash pan, by means whereof fire fell out and set ablazing some greased woolen ravellings on box of a driving-wheel of engine. The fire could not be extinguished without stopping the train, and it was sufficient to extinguish it at the next stopping place. But without orders, and unnecessarily, S. got down on side of engine and tender, with his right foot on step of engine and left on step of tender, clasping with right hand hand-holder on engine, and holding in his left hand a small hose attached to spigot on tender, swung his body out and forward in a stooping posture, and with left arm resting under side of engine, was attempting to extinguish the blaze, wheu he was struck by the upright side of the bridge and was killed.</p> <p>Held :</p> <p>S., and not the defendant company, was guilty of negligence, but for which injury would not have occurred, and hence is not entitled to recover.</p>

Justice, for selling a ticket of the lottery of the Dismal Swamp Canal Company. The defendant admitted the selling, but contended that it was lawful, and that the fourth section of the act passed 14th February, 1816, authorized the selling of the tickets of the lottery of said company. He also offered two pleas in estoppel to the prosecution.

<p>Error to judgment of circuit court of the city of Richmond, rendered March 13, 1885, in a proceeding pending therein, wherein the Commonwealth of Virginia, proceeding by her attorney-general by information in the nature of a writ of quo ■warranto, was complainant, and the Dismal Swamp Canal Company was defendant. To this judgment said company obtained a writ of error.</p>

v. Heflin, Haughawont and others. The object of the suit ivas to subject the real estate of the defendants to the lien of a judgment of the county court of Augusta county, against three of the defendants.

<p>1. Ejectment—Legal title—Right of possession.—The doctrine in this State is, that in ejectment the plaintiff must show a legal title in himself, and a present right of possession under it at the time of the commencement of the action. Suttle v. R., F. & P. R. R. Co., 76 Va. 284.</p> <p>2. Idem—Decree for conveyance—Fkidence.—A decree requiring the execution of a conveyance to complainant, does not, of itself, vest any legal title in him. And such decree should not be received as evidence of legal title in an action of ejectment. Aldridge v. Giles, 3 H. & M. 136.</p> <p>3. Idem—Case at bar.—A case wherein plaintiff failed to show, in himself, either a legal or an equitable title.</p>

Harris, on an indictment for an alleged violation of a revenue law in keeping a skating rink without having taken out a license therefor.

Lovett, complainant, against Mahlon Thomas, administrator c. t. a. of Jefferson C. Thomas, deceased, and others, defendants. The object of this suit was to construe the will of the testator, and to settle the accounts of his executor and distribute the funds. The decrees of the circuit court were adverse to the complainant, who obtained therefrom an appeal to this court.

M. Gregory and Lillie W., his wife, John C. Goode and Blanche C., his wife, and Judith F. Winfree, which was filed in the chancery causes of Gates v. Gates and als. and Gregory v. Gates. From this decree Gregory and wife obtained an appeal and supersedeas from one of the judges of this court. This case is sequel to the case of Gregory and als. v. Gates and als., 30 Gratt. 83.

Medley, devisee of Granville O. Medley, deceased, was complainant, and Rebecca A. Ballou, Solomon Lea, and others, heirs-at-law of Lorenzo Lea, deceased, were defendants. The decree of the circuit court being against the complainant, Lucy Y. Medley, she obtained an appeal to this court.

D. Tillar was plaintiff, and Mrs. Kate T. Farley and her husband, P. R. Farley, were defendants. The object of the action was to recover possession of a hotel in Hicksford, which, it was alleged, Mrs. Farley had rented, as a sole trader, of the plaintiff, and unlawfully withheld.

Joseph McFaul, upon the indictment pending in that court, and sentencing the said Wesley Honesty to death by hanging. To this judgment the prisoner obtained, from one of the judges of this court, a writ of error and supersedeas; which was argued at Staunton, but decided at Richmond.

<p>Appeal from decree of circuit court of city of Richmond, rendered December 24, 1884, in a suit wherein the Commonwealth of Virginia, at the relation of J. R. Barksdale, treasurer, complainant, and J. C. Drake, M. M. Davis, J. O. Barham, and Abraham Levy, are defendants.</p> <p>The object of the suit is to annul the sale made by J. C. Drake of his interest in the firm of Davis, Drake & Co., to M. M. Davis and J. O. Barham, and the sale made by J. C. Drake of his interest in the firm of Levy, Davis & Drake, to M. M. Davis and Abraham Levy, as fraudulent and void, having been, as it is alleged, made by the vendor with the knowledge of the vendees, and upon combination and collusion of them all, to hinder, delay and defraud the complainant and other creditors of the vendor. The defendants did not answer, butBarham and Levy filed their separate demurrers, and Davis. & Levy filed their joint demurrer to the bill, on the alleged ground that it is multifarious, which were joined in by the complainant, and were sustained by the court below, which also dissolved the injunction which had been awarded in the cause, and dismissed the bill. The court said that the bill united in one suit its complaints against Davis, Drake & Co., and Levy, Davis & Drake, instead of proceeding by separate suits against the said firms. From this decree the complainant obtained an appeal to this court.</p>

<p>Argued at Staunton, but decided at Richmond. Appeal from decree of circuit court of Shenandoah county, entered May 29, 1885, in the consolidated cases of John H. Hepner, complainant, v. Joseph Perry and Wife, &c., defendants; Wm. H. Ruby v. Same; John P. Funkhauser v. Same, and George W. Min-nick v. Same, defendants. The object of the suit was to annul a post-nuptial settlement of real estate made in 1880 on his wife, and subject the property to the payment of his debts. The decision was in favor of the creditors, and Perry and wife obtained an appeal to this court.</p>

<p>Venditioni Exponas—Motions to quash—Case at bar.—Commonwealth got judgment against sheriff of W. county, and his sureties, and had fi. fa. issued and levied. Upon return thereof, it had a venditioni exponas issued. Instead of this writ going to the sheriff, it was taken in charge by the auditor of public accounts. Nothing was done, and no other process issued for over sixteen years, when, in December, 1884, an alias ft. fa. was issued, levied and returned, and thereupon a writ of venditioni exponas was issued. The sureties moved the court below to quash the alias writ of venditioni exponas; which motion was denied. On error—</p> <p>Held :</p> <p>The writ of venditioni, exponas, as well-as the alias ft. fa., was issued without authority of law, and should be quashed.</p>

<p>Error to judgment of hustings court of city of Richmond, rendered 1885, on a petition by George S. Vashon, a taxpayer in said city, to obtain from the said court a writ of ■mandamus to compel S. C. Greenhow, treasurer of said city, to receive of him (Vashon) coupons cut from bonds of the State of Virginia, issued under the act approved March 31, 1871, in payment of the State taxes for which said Vashon was indebted for the year 1884. Greenhow demurred to Vashon’s petition, and then answered, setting forth his reasons for refusing to receive said coupons. The hustings court sus-' tained the demurrer, and there being no dispute about the facts, issued a peremptory mandamus as aforesaid.</p>

<p>Error to judgment of circuit court of city of Richmond, rendered November 8, 1884.</p> <p>The case was heard at Richmond, and decided at Wytheville June, 1885, but was reheard and decided finally at Richmond January 21, 1886.</p>

<p>1. Criminal proceedings—Indictment—Misjoinder.—The joinder of two or more offences in one count is not permitted. But if the whole transaction be only parts of one fact of endeavor, all the parts may-be stated together as one offence—e. g., a man may be indicted for the battery of two or more persons in the same count, etc. And so, an indictment charging in one count the forgery of a check and of the endorsement thereon, is not liable to the objection of duplicity or misjoinder.</p> <p>2. Idem—Evidence—Declarations.—Accused will not be permitted to make evidence in his own favor by proving his self-servient declarations.</p> <p>3. Idem—Admissions—Compulsory.—Where prisoner was charged with forging a check payable to Gibson, and forging Gibson’s name on it, the mayor asked him to write the name “Gibson.” Prisoner reluctantly, but without threat or promise, wrote and mis-spelt it with &p instead of a &, just as it was mis-spelt in the forged writing. This was not compelling him to furnish evidence against himself.</p> <p>4. Idem—Appellate court.—Exception to ruling permitting Commonwealth, after the argument commenced, to introduce a witness, will not avail in appellate court unless the exception shows how prisoner was harmed thereby.</p>

<p>Error to judgment of circuit court of Pittsylvania county, rendered May 4, 1885, affirming a judgment of the county court of said county, rendered October 28, 1884, in an action of unlawful entry and detainer, wherein Isaac Coles, trustee for Mrs. Matoaka Sims, wife of William E. Sims, was plaintiff, and David H. Pannill was defendant.</p> <p>James M. Whittle had conveyed a house and lot at Chatham to Coles, trustee, for the sole use of Mrs. Sims. Her husband, as his wife’s agent, rented the property to Pannill. Before the term had ended, Coles, trustee, at the instance of the grantor, instituted this action. A jury being waived, the county court adjudged against Pannill, who obtained a writ of error and supersedeas from one of the judges of this court.</p>

<p>Appeal from decree of circuit court of city of Richmond, entered June 16, 1884, on petition of William Ferguson, administrator d. b. n. of D. A. W. Frayser, deceased, filed in cause of Ashbell Green and Thomas S. Bocock, Trustees, &c., v. Richmond and Alleghany Railroad Company, intervening to ask payment of a judgment against said company. Petitioner obtained said judgment June 11, 1883, and placed the execution in the hands of the sheriff of said city 29th June, 1883, at which time there was in bank in said city to the credit of said cause, certain funds which represented the earnings and balances due said company. By deed dated 27th April, 1881, the said company’s railroad, &c., had been conveyed to said Green and Bocock, trustees, in trust to secure certain debts. At the suit of the trust creditors an order was entered June 23, 1883, appointing Lawrence Myers and Decatur Axtell, receivers, and directing them to take possession of the mortgaged premises and to carry on the road, but requiring them first to execute certain bonds, which were not executed until June 30,1883. On hearing petition, the circuit court decided that the said order sequestrated the property of the company, including said funds, and that the lien of said execution did not attach thereto. From this decree the said administrator appealed to this court.</p>

<p>Two appeals taken from decrees of circuit court of Lunenburg county, rendered in the same cause, under the style of Cheat-ham v. Cheatham’s Executor and others. The decree from which the first appeal was taken was rendered November 18, 1878. The decrees from which the second appeal was taken were rendered June 18, 1881, and November 11, 1881.</p>

<p>1. Wills—Execution—Presence—Case at bar.—Entering room of testatrix, her friend, S., said to her: “ These gentlemen, F. and R., have come to witness the will.” She bowed her head in assent. The will was read to her by F. in an audible voice; and on being asked if she understood it, she signified her assent as before. She then signed the will in a legible manner, her arm being held to steady it, but the pen not being touched. She was then laid back in a recumbent posture as before, and the witnesses, F. and R., subscribed the will at a table in the little room near the foot of the bed in her presence, both being present together. She was so lying that she was obliged to see them, unless she shut her eyes or turned her head away.</p> <p>Held :</p> <p>Such will was duly executed as required by statute.</p> <p>2. Idem—Presence of testator.—What is such presence? In company with—in the same room with—within the view of the testator, coupled with consciousness on his part of such proximity. Neil v. Neil, 1 Leigh, 11; Nock v. Nock, 10 Gratt. 119; Cheatham v. Hatcher, 30 Gratt. 56.</p>

<p>1. Criminal Proceedings—New Triáis—Buie.—The well-settled rule of this court in granting new trials, when asked for on the sole ground that the verdict is contrary to the evidence, is to grant them very cautiously, and only when the verdict is manifestly wrong, great weight being due to a verdict rendered by a jury and approved by a judge, before whom the witnesses gave their evidence.</p> <p>2. Idem—Case at bar.—A case wherein the verdict of murder in the second degree is held to be warranted by the evidence, and the judgment denying a new trial is held to be right.</p>

J. Overby, sheriff, administrator with the will annexed of Tabitha M. Thompson, deceased, was plaintiff, and A. J. Clark and others were defendants. The bill was brought into equity on the sole ground of discovery and relief (in that forum) concerning a certain bond which the administrator had heard belonged to his testatrix. The decision was adverse to the complainant, and he obtained an appeal to this court.

D. Arnett is complainant, and Slater, Myers & Co., and others, are defendants, the object whereof is the settlement of the accounts of the late firm of said A. D. Arnett and his brother, H. C. Arnett, deceased, which did business in the name of H. C. Arnett & Bro., and the estate of the said H. C. Arnett, deceased. In its character it was a general creditors’ suit.

S. Hunter, as committee of Ann R. Garland, a lunatic, was complainant, and the said Ann R. Garland and her sister (and only prospective heir-at-law), Rebecca O. Garland, were defendants.

Beck’s Adm’r, &c., of Stoner v. Beck’s Adm’r, &c., and of Beck’s Widow and als. v. Beck’s Infants. The decree being detrimental to Daniel Stoner and Robert S. Harnsberger, they obtained an appeal to this court.

Upon petition of Thomas P. Fitzpatrick presented January 8, 1886, representing that he had been, in December, 1885, duly elected county judge of Nelson county, for six years from January 1, 1886, but that J. L. S. Kirby, his predecessor, refused to surrender the office, and praying for writ of mandamus.

<p>Error to judgment of corporation court of city of Lynch-burg, rendered in an action, wherein the Richmond & Alleghany R. R. Company was plaintiff and the said city was defendant.</p>

Newton and als. were plaintiffs, and Casimere Bohn was defendant, for damages for breach of contract to build, &c. Verdict was for plaintiff for $500 and judgment accordingly.

Argued at Wytheville and decided at Richmond. Error to judgment of circuit, judge of Wythe county, denying writ of error and supersedeas to judgment of county court of said county, rendered 22d July, 1885, against Gus Lawrence, who had been found guilty by the jury, and his term of imprisonment in the penitentiary fixed at four years, on an indictment for feloniously breaking and entering a certain bar room, the property of E. C. Deuel, not adjoining to or occupied with the…

The facts, upon which the single question in the case arose, are set forth in the bill of exceptions, as follows: “ The Commonwealth, on the trial, proved the burning as charged in the indictment, and next introduced one, Samuel Page, who testified to seeing the prisoner set fire to the property, and to confessions made to the witness by the prisoner immediately after the burning.” And on cross-examination he further testified, “that he (witness) told certain persons, among…

<p>1. Criminal Proceedings—Discontinuance.—A case stands continued without any order; and failure to enter order of continuance, works no discontinuance. Code 1873, ch. 201, sec. 26, and eh. 161, sec. 16.</p> <p>2. Idem—Appeal from justice.—An appeal of right is given by statute to one convicted of petit larceny before a justice without assigning errors. Read’s Case, 24 Gratt. 618.</p> <p>3. Idem—Idem—Trial de novo.—One convicted of petit larceny before a justice moved the county court to review the judgment. An endorsement on warrant showed that the witnesses had been recognized to appear before the county court. After trial and conviction in county court, then defendant objects that there is no endorsement of “ appeal” on the warrant by the justice.</p> <p>Held :</p> <p>The objection comes too late.</p>

<p>Appeal from decrees of circuit court of Roanoke county, rendered October 13th, 1883, and April 7th, 1884, respectively, in a chancery cause in said court, wherein the Norfolk & Western Railroad Company, and the Shenandoah Valley Railroad Company and others were defendants, and John T. Smoot, Josiah Friend, John H. Davis, Charles A. Woolford, and P. P. Wood-ruff, were complainants. The defendants demurred to the bill and also answered it, and moved to dissolve the injunction which had been awarded on the motion of the complainants. But the circuit court overruled the demurrer, and overruled the motion to dissolve the injunction—perpetuated it—until the Norfolk & Western Railroad Company should compensate the plaintiffs, respectively, for any damage to their lots, occasioned by the laying of the tracks in the bill complained of. From this decree the defendant companies obtained an appeal and supersedeas from one of the judges of this court. Argued at Wytheville, but decided at Richmond.</p>

<p>1. Chancery Practice—Decrees by default—Errors—Motion to correct.—The notice under Code 1873, ch. 177, § 5, need not specify the errors for which the court is asked to correct or reverse its judgment by default, or decree in bill taken for confessed.</p> <p>2. Appellate Court—Objections there—Substantial defects—Irregularities.—Objections may be taken here, for first time, which are based on substantial grounds ; such as want of jurisdiction of sub- . jeet or of parties, a good cause of actiqn, a valid verdict, or a proper judgment. But secus when the objections are based on mere irregularities.</p> <p>3. Idem—Appeal—Parties not appealing.—Where parties appealing and parties not appealing, stand upon same ground, and their rights are involved in same question and are equally affected by same judgment or decree, this court will consider the whole case and settle the rights of the parties not appealing, as well as those who bring up the case by appeal. Purcell v. McCleary, 10 Gratt. 246 ; Ashby v. Bell, 80 Va. 811. But secus, when the parties stand upon distinct and unconnected grounds, &c. Walker v. Page, 21 Gratt. 652-3.</p> <p>3. Chancery Practice—Creditor's bill—Separate suit—Demurrer.— Where a creditor’s bill has been filed against the administrator and legatees, a decree for an account has been entered in the cause, and the account has been taken, reported and confirmed; no other creditor (especially one whose debt has been established by the confirmation of that report) can maintain a separate suit for the establishment of his debt. And if the bill shows he had knowledge of the decree for account in the first suit, his suit will be dismissed upon demurrer. Kent v. Cloyd, 30 Gratt. 555.</p> <p>4. Cases Reviewed.—Gunn v. Turner, 21 Gratt. 382, examined and explained.</p>

<p>1. Personal Representatives—Statute of limitations.—Action on fiduciary’s bond is barred only after ten years from accrual of cause of action—that is, from return day of execution against fiduciary, or from time of right to require payment or delivery from fiduciary. McCormick v. Wright, 79 Va. 524.</p> <p>2. Idem—Accounts—Decrees—Sureties.—Where the settled accounts of administrator show that assets ample to pay all intestate’s debts came into his hands it is not premature to deeree against his sureties without first taking accounts in the suit.</p> <p>3. Idem—Slaves—Refunding bonds—Devastavit.—Administrator committed devastavit by turning over intestate’s slaves and other personal property to the distributees without taking refunding bonds ; and the fact that the slaves, if retained, might have been lost by emancipation, constitutes no defence to him or his sureties.</p>

<p>Appeal from decrees of circuit court of Madison county, entered April, 1883, and December, 1883, respectively, in a cause wherein Noah J. Henkel and Samuel Tusing are plaintiffs, and Abram S. Smith and John Smith are defendants. The decrees being adverse to the defendants, they obtained an appeal to this court.</p>

Appeals from decrees of circuit court of Amherst county, rendered October 17, 1884, and April 17, 1885, in the cause of Tapscott’s Adm’r v. Shelton et als., and in the cause of John B. Robertson et als. v. Watts et als., respectively. The decrees were adverse to John B. Robertson, who obtained appeals therefrom to this court.

<p>Appeal from decree of circuit court of Pittsylvania county, entered December 5, 1883, in a chancery suit wherein A. H. and S. 0. Tardy were complainants, and T. 0. and R. 'H. Creasy were defendants. The decree being adverse to the complainants, they obtained an appeal to this court.</p>

<p>Appeal from decree of circuit court of Elizabeth City county, rendered August 8th, 1883, in a suit by foreign attachment in equity, wherein Daniel J. Foley, Bro. & Co. are plaintiffs, and Shriyer Bros, and “The National Home for Disabled Volunteer Soldiers,” a corporation under an act of congress, are the defendants. The decree was against the complainants, who obtained an appeal to this court.</p>

<p>1. Appellate Court—Two trials—Judgment.—Where at first trial there is a verdict for plaintiff, which is set aside, and plaintiff excepts, and at second trial a jury is waived, and the whole matter of law and fact submitted to the court, and judgment is rendered for the defendant, to which the plaintiff excepts, and the court certifies the evidence, wherein there is no conflict, this court will review the case, and if the evidence sustains the verdict, will enter judgment for plaintiff on that verdict, without considering the subsequent proceedings.</p> <p>2. Negligent Injuries—Master and servant—Case at bar.—Case where the evidence shows that the defendant company was guilty of negligence in not providing and keeping a ladder on a freight car next to the caboose ear in repair, so as to make it safe for the conductor of the train to pass up and down it in the discharge of his duties ; and where the conductor (plaintiff here), by reason of said defective ladder, whilst in the discharge of his duties, fell—no negligence of his own contributing to cause the fall—by which fall he was severely injured and permanently disabled, and was held to be entitled to damages.</p>

Hinton and Ella, his wife; F. M. Wright and John W. Bradbury, surviving partners, &c.; and James F. Epes, administrator of F. G. Williams, deceased, are the plaintiffs, and William E. Hinton, Jr., and Mary R., his wife; Drury A. Hinton, committee of Nannie O. Bland; William R. Bland,, late curator of the estate of Thomas P. Bland, deceased; George O. Bland, executor of Matthew R. Bland, deceased; and William R. Watkins, administrator d. b. n. of said Thomas P. Bland,…

Tebbs was plaintiff and Alexander G. Davis was defendant. The object of the suit was to have partition of a tract of 202 acres, one rood and thirty-five perches of land, situate in said county, near Aldie, and held by defendant under a deed executed by Thomas Triplett, dated December 20, 1852.

<p>Wills—Construction—Language—Surrounding circumstances—Case at bar.—Bitter estrangement existed between C. and her daughter R. from 1826 till the mother’s death, in 1849. OfR., in her will, C. says: “ As to my unnatural daughter, she is not to heir one cent of my property.” But between C. and her sons, P. and E., unbroken affection prevailed. In her will, she calls P. “my kind son.” Of E., she speaks as “my dutiful son,” “my beloved son.” By her will dated 1843, she, after giving some legacies, gives all of her property to her two sons, P. and E. By a eodicil dated December 8, 1848, she qualified the estate in her property given to her sons with these words: “Should either son die without a will or lawful issue, the surviving son must heir all the property given by me to him.” E. died in 1872 without lawful issue and without a will. P., by deed, conveyed the property, in 1874, to H., and after several intermediate alienations, it came to N. V. R. But the daughter, R., contended that under the will E. took a fee simple estate, and that upon his death, without issue and without a will, the estate descended to his heirs, viz: his brother P. and his sister R., in equal parts. And in the action of ejectment by R. against N. V. R. for the real estate—</p> <p>Held :</p> <p>Under the will E. took a defeasible fee simple, coupled with a power of appointment by will, with remainder over to P., and that his defeasible fee simple estate having been defeated, viz: by his death, without issue, living at his death, and he having failed to exercise his power of appointment by will, the remainder to P. is good, and that the title of N. Y. R., who claims under P., is also good.</p>

<p>Appeal from decrees of circuit court of city of Richmond, rendered June 28, 1884, and July 5, 1885, in the two suits in chancery (consolidated and heard together), under the style of Douglas H. Gordon’s Executors and others against the Richmond, Fredericksburg and Potomac Railroad Company and others, and is a sequel to the causes which were heard on appeal by this court in April, 1884. (78 Va. 501).</p>

M. Wortham, -severally, at the suit of the city of Eichmond, and in affirmance of the judgments of the police court. These appeals were heard together by consent.

<p>1. Practice at Common Law—Construction of statutes.—In an action ex contractu against several defendants, the common law rule was that all should be summoned actually, or constructively by prosecution to outlawry, before judgment could be had against any. Code 1873, ch. 167, sec. 50, changes this for another rule, whereby judgment may be had against one defendant served with process, and a discontinuance as to the others, or at the plaintiff’s election, subsequent service of process and judgment, in the same suit, against the other defendants. Bush v. Campbell, 26 Gratt. 438-9.</p> <p>2. Idem—Judgment—Discontinuance—Merger—Case at bar.—In 1866, S. sues M. and B. on their joint bonds. M. confesses judgment that day. Suit is suffered to abate as to B., who had never been summoned. S. having died, his administrator in 1879 brings a second suit on the bond against both obligors. They plead the former judgment in bar. This plea the court below rejects as to B., but admits as to M., and causes the action to proceed as a separate one against B., and renders judgment against him. Upon error—</p> <p>Held:</p> <p>The bond is merged in the judgment against M., and the second action is barred by the recovery in the first.</p>

Pattie and others, wherein Thomas Smith is plaintiff and William A. Pattie and others are defendants, and the suit of Kercheval v. Kercheval, which was ordered to be heard with the first-named suit. By the decree the commissioner’s report of August 26, 1883, in Smith v. Pattie, was confirmed, and the claims of James S. Pattie against the estate of Otho EL Pattie, deceased, were allowed, though out of date.

<p>1. Practice at Common Law—Judgment by court—Evidence certified—Rule.—Where neither party requires a jury, and the whole mattér of law and fact are heard and determined and judgment given by the court, and the whole evidence is certified by the court in the bill of exceptions, the bill must be regarded as a demurrer to evidence by the plaintiff in error.</p> <p>2. Lands—Adversary possession—limitations.—The period of time necessary to ripen possession, under claim of right, into complete title, is determined by the limitations provided by law when plaintiff’s right of action first accrued.</p> <p>3. Idem—Idem—Bar of limitation.—The possession requisite to bar plaintiff’s right of entry must be actual, exclusive, uninterrupted, visible, notorious, and hostile, and must continue during the whole period of statutory limitation. Its character, however, depends upon the situation of the land and the condition of the country.</p> <p>4. Idem—Idem—Possession under color of deed.—If one merely assumes possession with claim of right, his ouster of plaintiff and his own possession extend no further than what he actually occupies, cultivates, encloses, or otherwise excludes the owner from. But if he enters under color of deed or other writing, he acquires actual possession to the extent of the boundaries contained in the writing.</p> <p>5. Idem—Idem—Privity—Continuity.—When several persons enter upon land in succession, the several possessions cannot be tacked so as to preserve the essential continuity unless there is privity of estate between them, or the several estates are connected. But one cannot sustain his defence of adversary possession if, during the period of limitation, the possession has been abandoned by him or those under whom he claims.</p> <p>6. Idem—Idem—Act-saving remedies —If the statutory period necessary to ripen adversary possession into complete title had not elapsed when tenant abandoned possession, he had acquired no right capable of preservation by the act of March 2d, 1867.</p>

<p>Appeal from decree of corporation court of Danville, rendered July 11th, 1883, in the chancery cause therein pending, wherein-Henry S. Fox, an infant, by his next friend, was complainant, and P. L. Rendleman, the Cottage Building Fund Association, John T. Watson, F. F. Bowen, George W. Morgan and L. C. Berkeley, junior, trustees of said association, and Maurice J. Fox, trustee and guardian of said Henry S. Fox, were defendants.</p> <p>The decree of the court below was favorable to the defendants, and the complainant obtained an appeal to this court.</p>

<p>1. Wills—Construction—Parol evidence—True enquiry.—Wills are explainable by the light of surrounding circumstances. But a party seeking to maintain a devise, must show it by the will itself, and no defects in the language used can be supplied by parol proof. The true enquiry is not what the testator meant to express, but what the words used do express. Burke v. Lee, 76 Va. 386.</p> <p>2. Idem—Latent ambiguity—Parol evidence.-—The only exception to the rule excluding -parol testimony as to the testator’s intentions, is in cases of latent ambiguity ; which is where, for anything appearing on the face of the will, the intention is certain, but there is some collateral matter de hors the will, that causes ambiguity; and extraneous evidence is admissible both to show the existence of the latent ambiguity and to remove it and disclose the testator’s meaning. Hawkins v. Garland, 76 Va. 149.</p> <p>3. Idem-—Meaning—Declarations.—Testator’s declarations that he intended to make, or had made, a particular bequest, are not admissible evidence to show the meaning of his will, except in cases of latent ambiguity. Wooten v. Redd, 12 Gratt. 196.</p> <p>4. Idem—Case at bar.—In his will testator said: “ It is my will that all my estate be equally divided between the children of my deceased son, J., and the children of my daughter, E., taking in consideration what I have already given them.” And he adds: “ As I have given to my daughter, E., §2,000 in land, it is my will that said sum be charged as that much advanced to her children out of my estate. And as I have given to her son, D., §600, and to A. and S., •the children of my son, J., §1,722.50 each, as down payment on land I sold them, it is my will that these sums be taken as advancements and charged as legacies out of my estate. It is my will that no interest be charged upon advancements already made, or upon legacies made in future. It is my will that, as fast as moneys come into my executor’s hands, he pay out legacies to him or her, who is twenty-one years of age, who have received the least, until he or she is equal to the one who has already received, and they be carried along equally until all are equal, and that then the balance of my estate be divided equally between the children of my said daughter on the one hand, and the children of my deceased son, on the other hand:</p> <p>Held :</p> <p>1. The children of the deceased son, J., and of the daughter, E., take the estate bequeathed them by their grandfather, the testator, per capita.</p> <p>2. Parol evidence of declarations of the testator as to his intentions as to the disposition of his property, and as to what dispositions he had made of it, by his will, is inadmissible in this case, as no latent ambiguity is disclosed by proof. ■</p> <p>3. The first of the two provisions of the will vest the legacies in each of the legatees immediately, whilst the second postpones the actual possession and command of the money until the legatee attains maturity.</p>

<p>Appeal from decree of circuit court of Franklin county •entered April 17,1878, in the chancery cause of Isaac Jones, Jr., v. E. B. Turner, Fleming Saunders and als.</p>

<p>1. Bills of Review—Entire record—Error of law— On bill of review the court will not only correct errors of law apparent in the decrees in the cause, but will look into all the pleadings and other proceedings, and correct whatever error of law there may be in the record. Hancock v. Hutchinson, 76 Va. 609.</p> <p>2. Idem—Infants—“Any error."—Bill of review may be filed by infant defendants—against whom a decree has been rendered—at any time before or within three years after attaining majority, and may be asked to be taken as a petition for rehearing, and thereby the infant is entitled to show any good cause existing, at date of rendition, against the original decree. Code 1873, ch. 174, sec. 10. Zirkle v. McCue, 26 Gratt. 517.</p> <p>3. Appellate Court—Fraud.—Where it was not charged in the court below that a conveyance is fraudulent, such charge cannot, for the first time, be made in this court.</p> <p>4. Chancery Practice—Petitions—Cross-bill.—Where a petition filed in a cause prays for relief, and is virtually a cross-bill, decrees based on it are of none effect against those who were never summoned to answer it, or who were not properly before the court.</p> <p>5. Trustees—Powers—Ultra vires—Case at bar.—F., by deed dated May 16th, 1862, conveyed realty to L., as trustee, for the sole use of L.’s wife, remainder to her children—the purpose being to provide “support and maintenance” for L.’s family—with authority only, under certain circumstances and formalities, to sell and re-invest in other property to be held on the same trust. At date of the deed L. was engaged in business as agent of F., with certain personal property. P. & Co. presented in 1874, in a pending suit to subject that realty to liens under a prior trust deed, their petition setting up an account against L. “as agent and trustee,” for a balance of 83,072.26 due them by him for goods sold from 1867 to 1872 to him as such “agent and trustee,” for supplies to carry on the store and business of said agency, claiming that the trust property was bound for their debt.</p> <p>Held:</p> <p>The power of the trustee being limited by the instrument creating the trust, it was beyond L.’s power to bind the trust prop-; erty for such debts.</p>

Mary Jane Evans, by, &c., filed in the cause pending in said court between the distributees and the administrator of John T. Evans, senior, deceased, who died intestate in 1874, leaving three daughters (the parties to the suit), and having had one son, who had been absent more than seven years, and was presumably dead.

<p>Error to judgment of circuit court of city of Richmond, rendered May 30, 1884, sustaining.a demurrer to the declaration filed in a certain action of trespass on the case for damages, pending in said court, wherein Henry Kehrer, the plaintiff in error, was plaintiff, and the city of Richmond was defendant.</p>

<p>1. Post-Nuptial Settlement—Husband—Witness. — Though wife be dead, husband is not competent to prove what was the consideration of a post-nuptial settlement on her.</p> <p>2. Idem—Evidence—Recitals.—The consideration of post-nuptial settlement may be proved by parol. Recital in deed that consideration was paid by husband does not necessarily import that it was paid out of his funds, but only that it was paid per his hands.</p> <p>3. Case at Bar.—The evidence here establishes that the settlement was upon consideration moving from wife’s father, though deed recites “it was paid by husband,” and the settlement is upheld.</p>

Davidson, complainant, against Henry E. Smith and others, defendants. As appears from the record, the plaintiff, Davidson, in February, 1879, filed his bill against said Smith, who was his guardian, and six others, the sureties of said Smith as guardian, the object being to surcharge and falsify the ex parte settlements of the guardian, and to hold him and his sureties bound for money which came into his hands as guardian, and which he had not accounted for.

Barksdale, junior and others against J. B. Stovall and others, and Fannie Barksdale, by, &c., against E. Barksdale and others, and Marshall Hairston’s divisees against E. Barksdale, junior, and others. The decrees being adverse to E. Barksdale, junior, and others, they obtained an appeal to this court.

M. Hite was plaintiff, and the Peters-burg Railroad Company was defendant. By noises needlessly and negligently made by the defendant’s employees in blowing off steam from the cylinder cocks, the plaintiff’s horse, which he was driving along a public street where he had a right to drive, was frightened and caused to run off, and injury was thereby inflicted on plaintiff.

Cralle against Louisa W. Cralle. This is sequel to the case of Cralle v. Cralle, decided May 1st, 1884, and reported in 79 Va. 182. That was the suit of the same George A. Cralle against the same Louisa W. Cralle for divorce a vinculo matrimonii, on Cl account of her alleged wilful desertion of him for five years. The suit was brought and the divorce was decreed in 1874,. when she was a non-resident. In 1876, she petitioned for a rehearing of the cause and for alimony.

D. Smith was plaintiff and C. Wright & Son were defendants. With the declaration was filed an account of items, whereof the first was as follows: “September 15, 1881. To amount admitted by O. Wright, trading as C. Wright &. Son, as payable by him to W. D. Smith, as a settlement had between them this day, $998.99.” Smith had been partner in trade with F. H. Wright. Upon dissolution of firm, September 15, 1881, it owed him $998.99.

<p>1. Practice at Law—Demurrer to evidence.—By demurrer to evidence demurrant admits truth of demurree’s evidence and proper conclusions therefrom, and waives his own conflicting with, or tending to make a ease different from, demurree’s. Rudd’s Administrator v. R. & D. R. R. Co., 80 Va. 546.</p> <p>2. Negligent Injuries—Contributory negligence.—Compensation is not recoverable for injuries by defendant’s mere negligence, where plaintiff by his own ordinary negligence contributed, so that, but for such contribution, the injury would not have happened; unless the direct cause is defendant’s omission (after knowing plaintiff’s negligence) to use proper care to prevent its consequence. R. & D. R. R. Co. v. Anderson, 31 Gratt. 812.</p> <p>3. Idem—Case at bar.—Plaintiff’s intestate was discovered on defendant’s railroad track, at a distance of 150 yards, by the engineer of its freight train, which was running at allowable speed of thirty-five miles an hour, and the engineer did all that was possible to be done to stop the train, but was unable to stop it in time to prevent collision with the intestate, who was thereby knocked off the track and killed.</p> <p>Held :</p> <p>The plaintiff, upon his own showing, is not entitled to recover compensation.</p>

<p>Writ of error to judgment of Hustings court of the city of Richmond, rendered 19th June, 1885, against Thomas J. Cluverius, the plaintiff in error, who was indicted, tried, convicted, and sentenced to be hanged for the murder of Fannie Lillian Madison, on the 13th day of March, 1885, within the jurisdiction of the said city.</p>