Volume 88 — Virginia Reports

Argued at Richmond. Decided at Wytheville. Error to judgment of the hustings court of the city of Petersburg, rendered on the 15th of November, 1889, in an action of trespass on the ease, wherein W. R. McKenney, administrator of Elmira V. Marks, deceased, was plaintiff, and the Petersburg Railroad Company was defendant.

The objects of the suit were a divorce a vinculo matrimonii, also the allowance of alimony and attorney’s fee. The grounds alleged were adultery and desertion. The decree was in accordance with the prayer of the bill, and the defendant appealed to this court.

There was a motion for a new trial on the ground that the verdict was contrary to the law' and the evidence, which motion was overruled. To this ruling the prisoner excepted, and the evidence was certified to this court in the bill of exceptions, and the case is here on writ of error and supersedeas.

<p>1. Land — Description—General—Particular.—Particular boundaries govern general description of land; and a false description is rejected and the instrument takes effect if a sufficient description remains to ascertain its application.</p> <p>2. Idem — Mistakes—Correction.—Where by plain intention of the parties, it appears that mistakes have occurred fi’om misplacing points of compass, or leaving out lines, &c., the same will be corrected by the court.</p> <p>3. Idem — Description by quantity. — Quantity is regarded as the least certain mode of describing land, and hence must yield to description by boundaries and distances.</p> <p>4. Idem. — Parol evidence is always admissible to show the proper location of all descriptive calls, and determine if the land in dispute is embraced in the deed, and so give effect to the true intent of the parties.</p>

Argued at Richmond. Decided at Wytheville. Appeal from decree of circuit court of Lunenburg county,' rendered May 24th, 1889, in the chancery cause pending therein under the short style of “ Cheatham, for, &c. v. Love, Administrator, &c.” The decree being adverse to J. J. Parrish, administrator •of W. J. Marshall, deceased, he appealed.

<p>1. Criminal Proceedings — Indictment—Attempt at rape. — Under Code, 1887, § 3888, in indictment for attempt to commit rape, some act towards its commission must be alleged, and at the trial proved; but to aver that accused '• violently and feloniously made an assault ” in the attempt;</p> <p>Held :</p> <p>Sufficient.</p> <p>2. Idem — Argument—Harmless error. — Under the circumstances of this case, it was not an abridgement of the accused’s right to be heard, to limit the argument of counsel to one hour and a half to a side. Jones v. Commonwealth, 87 Va. 63.</p> <p>3. Idem- — Nevi trial — Case at bar. — The evidence in this case, being considered as upon a demurrer to evidence, warrants the verdict.</p>

<p>Error to judgment of hustings court of city of Bristol, rendered October 6th, 1890, whereby one Robert Thompson, the plaintiff in error, was sentenced to confinement for the period of eight years in the penitentiary, in accordance with the verdict of the jury upon the trial of an indictment for robbery of one Mary Abrahams.</p>

Argued at Staunton. Decided at Wytheville.' Appeal from decree of circuit- court of Augusta county, rendered July 3d, 1889, in a chancery cause wherein William A. Stuart, the appellee, was complainant, and George L. Peyton, the appellant, was defendant.

The indictment was for running a train of cars on a Sunday, contrary to the act of March 19th, 1884, now carried into section 3801 of the Code.

M. Eoberson and Letitia D. Eoberson, his wife, for the purpose of compelling them to perform specifically a contract for tbe sale of certain lands in the bill described. Tbe decree was adverse to tbe complainants and they appealed to this court.

<p>Error to judgment- of circuit court of Scott county, rendered June 25th, 1890, in an action of assumpsit, wherein Patrick Caulfield was plaintiff, and William Kenefiek was defendant.</p> <p>When the summons was issued an attachment was sued out by. the plaintiff against the estate or effects of the defendant, situated within the jurisdiction of the court. The summons was returned “ not found.”</p> <p>Upon affidavit that the defendant was justly indebted to the plaintiff in the sum demanded, which was due and payable, and that the defendant was a non-resident of this state, but had estate in the county in which the suit was brought, the attachment issued, but no bond was given, so as to enable the sheriff to take the property into his possession, and the said attachment was levied on twelve head of mules belonging to William Kenefick, the defendant; and there was at the same time an order of publication, which was issued in a newspaper published in the county, which is certified to by the manager of the company by winch the paper was published.</p> <p>The declaration was in the usual form, containing the common counts in assumpsit, and an account of the claim was filed with the declaration.</p> <p>The defendant demurred to the declaration, and the demurrer was overruled; non-assumpsit pleaded by the defendant; a jury impanneled and SAVorn, and, upon ■ the trial, after hearing the eAfidence, the jury rendered a verdict.for the plaintiff for $637.46.</p>

<p>Appeal from decree of circuit court of Scott county, rendered March 28th, 1889, in a suit wherein the appellant, Raney Reynolds, was complainant and the appellee, Joel F. Recessary, was defendant.</p>

Myers was complainant, and John O. Myers, executor of David Myers, deceased, David A. Myers, Lewis W. Myers, Isaac E. Sherry; and Susan, his wife, who was Susan Myers, Martha T. Dent, who was Martha T. Myers, Edmonia 33. Dent, James 33. Dent, and David S. Dent, grandchildren of David Myers, deceased, Robert T. Hatcher, Ada Hatcher, and Laura Hatcher, infant children of Hannie Hatcher, deceased, who was Hannie Myers, and her administrator, were defendants.

, 1888, in an action of covenant wherein William L. Wills was plaintiff, and Henry S. Trout, administrator of I. M. Ferguson, deceased, was defendant. Verdict and judgment were for plaintiff, and defendant brought the ease here on writ of error and supersedeas.

The bill in this cause was filed in February, Í890, by the appellant, R. ~W. Farrier, against the appellee, R.- C. Reynolds, and others, to compel specific performance by the said appellee of a contract made by him for the purchase of the land of the appellant, known as the “ Duncan Farm,” at the price ■of |1,300.

Reynolds, by leave of the court, in the original cause therein pending, wherein Stephen Watts, in his own right, and as executor of Charles B. Reynolds, deceased, was complainant,' and Harvey A. Reynolds was defendant. The hill of review was dismissed, and said Harvey A. Reynolds appealed.

On the 3d day of June, 1890, Columbus Hash and Rowan Hash were jointly indicted in the county court of Grayson county for the murder of Anderson Rutherford, in said county, and, on their arraignment in said county court, the prisoner, Columbus Hash, demanded to be tried in the circuit court of said county; whereupon he was remanded for trial in said court, and the proceedings had in said county court Avere duly certified to said circuit court.

B. Kemp and Vh M. Kelson were plaintiffs, and R. H. Gray was defendant. Verdict and judgment being for the plaintiffs, the defendant brought the ease here on writ of error and supersedeas.

Edwards and others were defendants, and was brought- in December, 1878, to recover 55,000 acres of land, situated in said county. At the'trial the verdict and judgment were for the defendant, and the plaintiffs having excepted to the decision of the court, overruling their motion to set aside the verdict, and to various other rulings against them, brought the case here on a writ of error.

<p>Sale Under Trust Deed—Case at bar.—Where trustee in a deed which does not prescribe terms other than those prescribed by Code 1887, ? 2442, sells the trust property in accordance with the provisions of said section, such sale is valid, though he sells only half thereof, it being sufficient to satisfy the debts secured thereon, and the debtor not requiring the sale of more.</p>

George was plaintiff and the Richmond and Danville Railroad Company was defendant. The jury, by their verdict, gave the plaintiff $8,500 damages. And the defendant brought the case here upon writ of error.

C. Jones was plaintiff, and J. C. Richmond was defendant. Verdict and judgment being against the defendant, he brought the case here on writ of error.

Hubble was plaintiff and M. A. E. Cole was defendant. The declaration having been demurred to and the demurrer sustained, the plaintiff brought the case here on writ qf error.

<p>Error to judgment of circuit court of Smyth county, rendered December 24th, 1889, in an action for trespass on the case for negligent killing of John S. Gilman, wherein decedent’s administratrix, Elizabeth Gilman, was plaintiff' and the Eorfolk and Western Eailroad Company was defendant. . The verdict and judgment being against tlic defendant company, it brought the case here upon writ of error and superseded*.</p>

<p>1. Guardian and Ward—Expenditure*—Liability.—Under Code, § 2605, the court must order sale, or sanction previous sale, of such of ward’s personalty as may be necessary to pay proper expenditures beyond income; but neither ward personally nor his realty is liable therefor.</p> <p>2. Idem—Rale of realty—Confirmation.—Under Code, § 2609, the chancery court may order sale of ward’s realty when it appears that his proper maintenance and education, or other interests require the proceeds beyond annual income thereof, to be applied for his use; but if, when the court is called upon to confirm such sale, the necessity therefor, which seemed to exist when the sale was ordered, shall have ceased, it i s proper that the court should refuse to confirm the sale.</p>

Buchanan was defendant. This was an action of debt on two bonds for $1,000 each,' executed by the defendant to the plaintiff for the last two deferred payments of purchase-money for a certain tract of land situate in that county. In the written contract between the parties for the land, the tract is described as the Kelley tract and “ containing 140 acres, more or less,” for which the defendant agreed to pay the sum of $6,000.

<p>Appeal from decree of circuit court of Roanoke county, rendered April 6th, 1891, in a suit in chancery wherein Sparrel F. Simmons was complainant and Walter Z. Boon was defendant. The object of the suit was to have removed from the complainant’s title to certain land bought and paid for by, and conveyed to him, and which from the day of his purchase had remained in his possession, a cloud occasioned by a tax-title deed which had been made to the Boon, the defendant below, by the clerk of the county court of said county under an order thereof. The decree was in favor of the complainant, and the defendant appealed.</p>

L. Groseclose, administrator of Marco S. Groseclose, deceased was plaintiff, and the Norfolk & Western Railroad Company was defendant. Verdict and judgment being for plaintiff, defendant brought the case here on writ of error and supersedeas.

On petition ot' Jonas Wilder and others for a writ of mandamus against John A. Kelley, judge of the circuit court of Washington county.

<p>Appeal from decree, of circuit court of Washington county, rendered May 14th, 1889, in a cause wherein Ernest Middleton and others, stockholders of the Bank of Abingdon, were complainants, and the board of supervisors of said county and S. M. Withers, treasurer of said county, were defendants.</p>

<p>Error to judgment of the corporation court of the city of Bristol, rendered -July 14th, 1890, in an action (originating upon a warrant issued by a justice of the peace of said county and carried by appeal to said corporation court), wherein J. W. Pettyjohn was plaintiff, and the Western Union Telegraph Company was defendant. The object of the action was to recover the penalty imposed by Code, § 1292, on telegraph companies for failure to deliver a despatch. The question of the constitutionality of said section was raised.</p>

decree of circuit court of Washington county, rendered May 14th, 1890, in a chancery cause . wherein Edward Purcell, Jr., was complainant, and the Bailey Construction Company was defendant. The defendant filed a demurrer to the bill, for want of jurisdiction in equity, and an answer and a cross-bill, denying any indebtedness on the mechanic’s lien set-up in the bill, and claiming from complainant a balance overpaid him on account of the work done by him as alleged.

<p>1. Death by Wron'«itl A or — Negligence—Case here. — Defendant company was cutting through side of a mountain a horizontal opening to lay railroad track to zinc mines. The cut was eighteen feet deep and twelve feet wide in strata of thin slate, with loose slip clay between, with perpendicular banks and no artificial supports. Deceased was inexperienced and ignorant of the treachery of the clay. Defendant knew the danger, and regarded it a question of “ profit against risk ” to put in supports. Deceased was placed at work in the bottom of the cut, in the afternoon after a rain, which made the place more dangerous; and was killed by a slide of clay from the side of the bank;</p> <p>Held :</p> <p>Defendant was guilty of negligence in working the cut without supports to the banks, and also in doing so in the afternoon after the rain.</p> <p>2. Idem — Excessive damages — New trial. — Whilst under Code, i> 3392, the question of a new trial, where the damages are too small or too largo, is under the control of the court.,.yet the verdict will not be disturbed unless its shows the jury were actuated by passion, prejudice, or undue influence, and in case here;</p> <p>Held :</p> <p>Error to set aside a verdict of S10,000 as excessive. And this court will enter judgment on that verdict, and not notice the proceedings on the second trial.</p>

E. Stone administrator of Samuel Hall Stone, deceased, is plaintiff, and the Horfolk & Western' Railroad Company is defendant.

<p>1. Deeds—Mistake—Reformation—Parol evidence.—Courts of equity may correct mistakes in deeds or other writings upon parol evidence. But the mistake must have been mutual, or, if upon one side only, accompanied by fraud or other inequitable conduct on the other side. And the evidence of the mistake must be clear and satisfactory, leaving- but little, if any, doubt of the mistake.</p> <p>2. Idem—Case at bar.'—The evidence in the record adduced to establish the mistake alleged to have been made in the deed in the bill mentioned;</p> <p>Held :</p> <p>Wholly insufficient to justify its reformation as prayed for.</p> <p>3. Idem—Evidence—Hearsay.—Declarations of defendant’s mother, though she was entitled to dower in the land alleged to have been omitted from the deed by mistake, which were made in his absence, are hearsay and inadmissible.</p>

<p>1. Judicial Sale — Confirmation.—Decree confirming a sale made under decree of court will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give relief, if the sale had been made by the parties in interest.</p> <p>2. Idem — Inadequate price. — If inadequacy of price was ground for setting-aside decree of confirmation, a sale of land at 84,000, which had at two prior sales within the period of two years sold at 81,550 and S2,050, respectively, could not be deemed inadequate.</p> <p>3. Idem — Notice of motion to confirm sale.— Attorney for laud owner died about two weeks before sale was confirmed, and notice of motion to be made on 27th of September, for confirmation, was served on 25tli of same month on owner;</p> <p>Held : '</p> <p>These facts are insufficient to warrant setting aside the decree confirming the sale.</p>

P. Trigg, A. MeBradley and H. Fugate, surviving partners of themselves, and James G. Greenway, deceased, partners doing business in the firm name of Trigg, Fugate & Co., were complainants, and H. B. Olay, Jr., and W. D. Kenner, partners in the firm name of H. B. Olay, Jr., & Co., were defendants. The decree being adverse to the complainants, they appealed.

<p>1. Receiver — Appeal.—Under Code, ? 3454, an appeal lies to a decree appointing a receiver, whereby a change in possession or control of the property is required, though made in vacation.</p> <p>2. Idem — Discretion of court. — At hearing or after a decree, though the bill contains no prayer for a receiver, the court may appoint one if the case requires it.</p> <p>3. Idem — Case at bar. — When, as in the case here, the liens far exceed the value of the property, an order appointing a receiver will not be reversed by the appellate court. Nor is it necessary that the application be supported by affidavit, nor that the court should be satisfied that property waslikelyjto be wasted or injured.</p> <p>4. Idem — Attorneys.—It is no abuse of the court’s discretion to appoint as receivers the attorneys of the respective parties to the suit.</p>

<p>Error from judgment of circuit court of Washington county, rendered October 11th, 1890, in action of debt, wherein S. E. Hurt, receiver, was plaintiff, and the plaintiffs in error, Stuart, Buchanan & Co., were defendants. The judgment being adverse to the defendants, they brought the case here on writ of error and supersedeas.</p>

G. Hudson was complainant, and W. L. Yost, commissioner, and others, were defendants. The complainant’s injunction was dissolved by the first of said decrees, and his bill dismissed with costs by the last; and he appealed.

<p>Error to judgment of circuit court of Wythe county, rendered at its March term, 1891, in an action of deht wherein Edmund Pendleton was plaintiff, and the Norfolk and Western railroad company was defendant. The judgment was for $800 and costs in favor of the plaintiff, and defendant brought the case here on writ of error and supersedeas. The case is similar to the case of N. & W. R. R. Co. v. Pendleton, 86 Va. 1004.</p>

Cliumbly, administrator of Charles 0. McDonald, deceased, was plaintiff', and the plaintiff in error, the Norfolk and Western railroad company ivas defendant.

<p>1. Criminal Proceedings—Conclusion of argument.—The trial court may, at its discretion, allow counsel employed hy private parties to aid the prosecution, to close the argument before the jury; and its ruling is not subject to review except for abuse of discretion.</p> <p>2. Idem—Remark of counsel—Coda, $3897.—Remark of prosecuting attorney that “ though he had no right to swear any man accused of crime, he had the right to prove his statements; ”</p> <p>Held :</p> <p>NTo violation of Code, § 3897.</p> <p>3. Idem—,Exclusion of impcaching testimony—Harmless error—Case, at bar.—In-case here;</p> <p>Held :</p> <p>That the evidence so clearly established defendant’s guilt, that an erroneous ruling excluding evidence offered to impeach one of commonwealth’s witnesses, was no ground for reversal.</p>

Penn, executor of Thomas (4. Penn, deceased, was complainant, and James A. Penn and others were defendants. The decree being adverse to the complainant he appealed.

Bell, aauis sentenced to confinement in the state penitentiary for a period of three years, in accordanco with the verdict of the jury on trial of an indictment against him for an attempt to commit murder of his wife by poison.

<p>Road Tax — Power to levy. — Act of February 22, 1890, repealed the general law so far as it authorized the board of supervisors of Pulaski county to levy a road tax on property in the town of Pulaski, and after the passage of that act, the board had. no power to levy such tax for the tax year beginning on the first Monday of July, 1889, and ending the first Monday of July, 1890.</p>

<p>1. AYills — Remainders—Vested—Contingent.—AYhere a future time for payment of a legacy is defined by the will, the legacy will he construed as vested, when the time is meant to he annexed to the payment or possession only, but as contingent, when annexed to the gift itself, e. g. Legacy payable to legatee at twenty-one, or any other age, is vested ; a legacy payable to legatee at twenty-one, or when he attains twenty-one, ' is contingent unless the intermediate interest is given to him, in which case the legacy is vested. Major v. Major, 32 Graft. 819.</p> <p>2. Idem — Case at bar. — Testator willed all his property, real and personal, to his wife until their youngest child reached seventeen years, she to board, clothe and educate all the children until that time, when he willed .his wife one third, and tlu1 remainder to the children equally ;</p> <p>Held :</p> <p>Each child took absolutely a vested interest.</p> <p>3. Idem — Vesting—Legacies—Devises—Intention.—The law favors the vesting of estates, and of devises more strongly than of legacies; but the intention gathered from the whole will, prevails over merely technical words or expressions. Devises are always held to be vested, except estates in the devise of which a condition precedent is so clearly expressed that to treat them as vested, would he to decide in express opposition to the intention.</p> <p>4. Jurisdiction — Title to land. — A trust deed to secure a debt, less than 8500, having been executed, on his interest under the will, by one of the legatees who died before the youngest child reached seventeen, the question in court below was whether his interest was a vested interest going to his administrator, or a contingent interest lapsing at his death ;</p> <p>Held :</p> <p>This coui’t has jurisdiction of the appeal as the controversy concerns the title to land. Code, § 3455.</p>

<p>Appeal from a decree of the hustings court of the city of Staunton, rendered June 9th, 1890. The bill was filed by the appellees, Meyer, Reinhardt. & Co., for an injunction and a receiver, and to set aside, on the ground of fraud, a certain deed of trust executed by the defendant, M. IS. Oberdorfer, to William E. Craig, trustee, to secure the payment, of certain debts therein mentioned and classified. R is charged in the bill that, on the 12th of March, 1888, Oberdorfer, who was doing business as a retail clothier in Staunton, visited the store of the complainants, wholesale dealers in Baltimore, to buy goods; that while there he represented to the complainants, for the purpose of obtaining credit with them, that his business was in good shape, that he owed his father, B. Oberdorfer, nothing, and that he was worth $7,000 or $8,000 dollars over and above all his liabilities. It is also charged that these representations were false and fraudulent, and made with intent to defraud the complainants, who, relying on them, sold axid delivered to him goods on credit to the amount of §3,084.</p> <p>The bill then states that on the 24th of April following, he made, a deed of assignment-, whereby he conveyed his entire estate, including all of his goods and stock, to Craig, trustee, to secure sundry creditors, whose debts, as stated in the deed, amounted in the aggregate to over §25,000, which was more than double the value of his estate; that of these debts several, which are specified, are voluntary, and that the deed was made with intent to hinder, delay, and defraud the complainants and others of his creditors. The bill also con'ains the following clause :</p> <p>“Your orators are advised that- inasmuch as they parted with their goods, and the said M. B. Oberdorfer obtained possession of them, by means of fraudulent misrepresentations, they cannot be said, in law, to have parted with their title to the same, and are entitled to recover them, no matter whether in the hands of innocent purchasers or not;”</p> <p>The defendants answered, denying the charge of fraud, or that there was any collusion between the grantor and the trustee or beneficiaries in the deed.</p> <p>The cause was thereupon referred to a commissioner to ascertain and report, among other things, (1) whether the deed was void, in whole or in part, on the ground of fraud at the date of its execution; (2) the amount due each of the secured creditors, and the consideration, if any, therefor; and (3) how much of the assigned goods represented the complainants’ debt.</p> <p>The commissioner, in obedience to this decree, reported, after a mass of evidence had been taken, that the deed was valid in foto, and that the debts assailed as voluntary were bona fide, to which report the complainants excepted. The court, without passing on the report in any other respect, sustained the first exception, which related to the validity of the deed, and from that decree the trustee and certain of the secured creditors obtained an appeal.</p>

<p>1. Courts—Juries—Their prorine.es—Xev trial.—In Virginia questions of law, such as the admissibility of evidence, are for the court. Questions of fact, such as the weight of evidence, are for the jury. When evidence' is parol, any expression of opinion by the court as to weight, effect, or sufficiency of the evidence, or any assumption of a fact as proved, will be an invasion of the province of the jury, for which a verdict will be set aside, and a new trial awarded.</p> <p>2. Instructions—2mc trial—Case at, bar.—Section-master, going on hand-car to load scrap iron, allowed the plaintiff to go along if he would assist. On return hand-car collided with a train, injuring plaintiff, who sued the company. At trial the court instructed the jury as follows: “ The court, being of opinion that it could not be fairly inferred from the testimony that plaintiff was either a passenger or an employee of the company, and that it was fairly inferrable that he was aware of the rules of the company prohibiting persons from riding on the hand-cars,” &e.;</p> <p>Held :</p> <p>Such an invasion of the province of the jury as entitled plaintiff to a new trial.</p>

<p>1. Criminal Proceedings— Grand juries — Murder.—Under Acts 1889-90, p. 91, an indictment for murder may be found by either a regular or a special grand jury.</p> <p>2. Idem — Competency of jurors. — Upon his voir dire juror stated that when the alleged offence whs committed he had heard some talk about it and might have then had some opinion about it, but did not recollect; that he had no opinion now, and was impartial, and could give prisoner a fair trial;</p> <p>Held :</p> <p>Objection properly overruled.</p> <p>3. Idem — T'enire facias — Objection-too Zafe. — Objection, after verdict, to irregularity (not prejudicial to prisoner), in the venire facias ordered in vacation for forty persons to be summoned from list presented by the judge, for the trial of prisoner and others not jointly indicted;</p> <p>Held :</p> <p>Too late, under Acts 1887-’88, p. 18.</p> <p>4. Idem — Evidence certified — Rule under \ 3484. — Where the evidence (and not the facts) is certified, the accused must be considered here on review of refusal by court below to award a new trial, as admitting the truth of all the commonwealth’s evidence and as waiving all his own which conflicts therewith, even where one of the commonwealth’s witnesses admitted at the trial she had made different statements.</p>

.Error to judgment of corporation court of city of Danville, rendered June 12tli, 1891, whereby the plaintiff in error, Margaret Lashley, was sentenced to be hanged, in accordance with the verdict of the jury, at the trial of an indictment of herself, jointly with one James Lyles, for the murder of her husband, George Lashley.

<p>3. Mpxicipal Corporatioxs — Drains and sewers — Liability.—Where a person is permitted and aided by a city to alter the course of a sewer over which it has assumed control (it matters not by whom it was originally constructed), and such alteration is so negligently effected as to cause the water and filth to flow into the plaintiff’s cellar;</p> <p>Held :</p> <p>The city is liable for the damages resulting therefrom.</p> <p>2. Idem — Nuisance—Abatement—Liability.—A sewer controlled by a city and so constructed that it causes water and filth to flow into a private person’s cellar, is a nuisance, and if, when notified, it fails to abate it;</p> <p>Held :</p> <p>The. city is liable for the damages resulting therefrom.</p>

<p>Appeal from a decree of the hustings court of the city of Roanoke.</p>

<p>Appeal from two decrees of the hustings court of the city of Staunton, rendered May 14th, 1889, and June 7th, 1890, in the cause wherein I). C. E. Brad}-, executor of William Weaver, deceased, was complainant, and William L. Ayres was defendant. During the progress of the suit William Alpliin, a judgment creditor of Ayres, became a party'to the suit. The final decrees being adverse to the defendant, Ayres, he appealed.</p>

<p>Error to judgment of corporation court of city of Lynchburg, rendered September 5th, 1890, at the trial of the indictment against the defendant in error, W. W. Larkin, a licensed attorney, for 'practicing his profession without a revenue license.</p>

Cromer, as receiver, was complainant-, and Stephen Childress’ executor and the appellant, Joseph Series and others as his sureties, were defendants.

F. Humphreys was complainant, and the appellant, the Richmond and Mecklenburg Railroad Company, was defendant. The object of the suit was to enjoin the prosecution of an action at law by said company against said Humphreys to recover the amount of his subscription to its capital stock, and to annul a certain agreement to give a right of way through his land, and to set off the damages done thereto against the amount- due on said subscription.

<p>Appeal from decree of hustings court of city of Roanoke, rendered May 11th, 1891, in the suit wherein William J. and L. Blair, Jr., were complainants, and R. C. Kramer was defendant. The court below decreed specific performance of the sale of certain lots to the complainants by the defendant, through his alleged agents, and the defendant appealed.</p>

<p>Corporations — Defences—Statute of limitations.- — The maxim “ nvll-um tempus occurrit regi ” is not applicable to a corporation having power to sue and , be sued, though the state be an incorporator thereof; but such corpora-tor is entitled and is amenable to all legal defences which pertain to natural persons.</p>

<p>Error to judgment of circuit court of Rockingham county, rendered October 21st, 1890, in an action of trespass on the case wherein V. H. Lane, sheriff of said county, and as such, administrator of Thomas H. Sites, deceased, was plaintiff, and the plaintiff in error, S. F. Tyler, receiver of the Shenandoah Yalley Railroad Company, was defendant. .</p>

<p>Error to judgment of circuit court of Montgomery county, rendered May 19th, 1888, in an action for money paid as an accommodation endorser, wherein the plaintiff in error, ’William B. Preston, was plaintiff, G. 0. Otey was defendant.</p>

<p>Appeal from decree of circuit court of Amlierst county * rendered December 30th, 1889, in a cause wherein the appellant, Frederick H. Fowler, was complainant, and IS. J". Hess was defendant.</p>

<p>1. Prohibition — Its functions. — This writ lies not to correct errors, but to restrain an inferior court from acting in a matter of which it has no jurisdiction, or from transcending the bounds of its jurisdiction.</p> <p>2. Practice at Law— Code, § 8886. — When, under said section, plaintiff in assumpsit filed with his declaration an affidavit to the justness of his account and the time from which it bears interest, and defendant filed plea of non-assumpsit without affidavit, and his plea is stricken out and his subsequent plea with affidavit is rejected and a final judgment given for plaintiff;</p> <p>Held :</p> <p>Such judgment is not void, as the court had jurisdiction of both subject-matter and parties, and a writ of prohibition will not lie to restrain its enforcement.</p> <p>3. Idem— Quxre. — Whether such judgment is erroneous or not.</p>

<p>Parol Evidence— Release, of covenant. — In the absence of fraud or mistake parol evidence cannot be admitted t.o show that an endorsement made on a sealed agreement in these words: “ All matters and things embraced in the within contract have been folly adjusted and settled, and this contract is, for value received, declared ended and settled,” and signed by the parties, was intended to refer only to money accounts between those parties, and not to include a covenant therein contained on the part of the party paying the consideration for the release, not to engage in a certain business for a certain period.</p>

<p>1. Practice at Common Law — General issue — Special pleas — Matters of defence. Under the pleas of non-assumpsit, and nil debet, any matter of defence whatever is admitted which tends to deny defendant’s liability to the plaintiff’s demands, except the statute of limitations, bankruptcy and tender, which do not contest the owing of the debt, but merely that an action can be maintained for it. And notwithstanding Code, 13264 allows defendant to plead as many matters of defence as he chooses, yet it does not give him the “absolute right” to his special pleas sotting up defences admissible under pleas already received; and the court may strike out such special pleas though already admitted, and issue joined.</p> <p>2. Actions on Insurance Policies— Evidence.</p> <p>Held :</p> <p>.Not error to refuse to allow defendant on cross-examination to ask a witness who had before testified that he had been employed as night watchman, how much he was paid.</p> <p>3. Idem — Other policies. — Defendants not entitled to inquire whether a person obtained “other insurance” for plaintiff without having first proved such person was jilaintiff’s agent.</p> <p>4. Idem — • Warranty — General rule. — The rule is that the court never construes a warranty as promissory and continuing, if any other reasonable construction can be given. And where the question was: “ How long have you been merchandizing, and who sleeps in the store ” ? and the answer was : “ Four years; watchman on premises at night; ”</p> <p>Held :</p> <p>Answer amounted to warranty that a watchman w'as on the premises at time of application; and not that he would be kept there in the future.</p> <p>5. Idem — Net» trial — Case at bar. — Considering the evidence in the record, under the. rule of l 3484;</p> <p>Held :</p> <p>No error in refusal to set aside verdict and award new trial.</p>

<p>Appeal from decree of liustings court, of city of Petersburg, rendered February 2d, 1889, in a suit wherein Mrs. Margaret Bolling, widow of John M. Bolling, deceased, was complainant, and the appellant, Richard AF. Bolling, the heir-at-law of said decedent, was defendant. The object of the suit was to recover dower in lands whereof her husband died intestate.</p>

Parrish, widow of Thomas J. Parrish, deceased. The proceeding was commenced by C. C. Parrish, on -whose motion commissioners were appointed to assign dower, who duly acted, and returned their report to the court.

Paul, administrator Avith the Avill annexed of James M. Paul, deceased, Avas complainant, and said decedent’s legatees Avere defendants on a petition to rehear the said cause, filed by Victoria V. Mosby, the appellant.

<p>1. Employer and Employees — Safe appliances. — It is the duty of employer to furnish and maintain reasonably safe and suitable appliances and not ,to expose employees to risks beyond those incident to the employment, and in contemplation at the time of entering therein.</p> <p>2. Idem — Declaration.—Where declaration alleges that it was the duty of defendants to have kept the brakes, etc. “ in sufficient repair ”;</p> <p>Held :</p> <p>It is not demurrable as charging a higher duty than the law imposes. Goodman v. R. R. Co., 81 Va. 580.</p> <p>3. Idem — Instructions—Careful inspection. — In action by brakeman injured by reason of defective brake on car in defendant’s yard, this instruction given on plaintiff’s motion: “If the jury believe that the injury was caused by a defect in the chain on the brake of defendant’s car, without any fault on plaintiff’s part, and that the defect was known to the defendant, or might have been known by a careful inspection of said chain and brake, then they should find for plaintiff; ”</p> <p>Held :</p> <p>Proper.</p> <p>4. Idem — Two instructions of same tenor. — Where instruction consists of two clauses — one of same tenor and effects as an instruction already given, the other not sustained by any evidence;</p> <p>Held :</p> <p>Refusal to give it, no error.</p> <p>5. Hew Trial — Evidence certified — Section 3484- — Where plaintiff’s evidence is all clear and consistent to the point that the injury resulted from “ the , defective brake,” and defendant’s evidence is in conflict therewith, and defendant moves that the verdict be set aside as contrary to the evidence, which is certified, and defendant excepts to the overruling of the motion ;</p> <p>Held:</p> <p>This court is precluded from comparing and weighing the conflicting testimony, and must affirm the ruling.</p>

J. Chappell, administrator of E. J. Ñunnally, deceased, was plaintiff, and the Norfolk and Western Eailroad Company, the plaintiff in error, was defendant.

<p>1. Water-Coubse.— Riparian owners — Adfilum aqux. — Every person through or x>ast whose land a natural water-course runs, has a right inseparably annexed to the soil and xiassing with it, to use it reasonably, and no proprietor above or below has a right to obstruct it; and every riparian owner owns to the middle of a non-navigable stream.</p> <p>2. Diversion of Water-Coilrse — Relief.—Where the boundary between complainant’s and defendant’s tracts was a stream which suxrplied both with water, and latter diverted the water by means of a ditch, depriving former of access to it, and thereby greatly and irreparably injuring 1dm;</p> <p>Held :</p> <p>He is entitled to equitable relief.</p>

. Argued at Wytheville. Decided at Richmond. Error to judgment of circuit court of Pulaski county, rendered October 5th, 1890, in an action of trespass on the case for negligent killing of Isaac Carper, the plaintiff’s intestate, wherein his administrator was plaintiff', and the plaintiff in error, the Norfolk & Western Railroad Company, was defendant.

0. Manson, Jr., administrator of R. W. Harris, Jr., deceased, was plaintiff, and the Norfolk & Western Railroad Company was defendant.

Argued at Wythoville. . Decided at Richmond. Appeal from decree of circuit court of Russell county, rendered January 10th, 1890, in a cause wherein one Sutherland was complainant, and the plaintiffs in error, William J. Grizzle and Polly, his wife, were defendants. The object of the suit was specific performance of a sale of trees at ten per cent, of their value.

<p>1. JLhtACTK-E at Law — Verdict —Continuance Judgment— LTnder Code, $ .‘S3 24, providing that all eases on docket, not determined before term, shall stand continued without order of continuance ;</p> <p>Held :</p> <p>It was in the j)ower of the court at its July term to enter judgmentnunc, pro tune, which it had omitted on the verdict at its April term.</p> <p>2. Idem — Defendants not in possession. — Where lessors are on their own motion. in action of unlawful detainer substituted as defendants, and verdict is for plaintiff;</p> <p>Held :</p> <p>No objection to judgment against them that they were not in possession, possession of the lessees being their own possession.</p>

<p>Appeal from decree of circuit court of city of Alexandria, rendered Rovembor 28th, 1888, upon a verdict of a jury empaneled to try an issue out of chancery directed by a decree of this court, entered February 4th, 1884, in the cause wherein the appellant, John S. Barbour, receiver, was complainant, and A. B. 'Melendy and T. J. Russell were defendants.</p>

<p>Cokpokatiox — Suit to set aside reorganization — Laches.— A trust deed was executed in 1870 by street railway company to secure its bonds. In 1873, becoming insolvent, company suspended. IV., holder of 1,874 of the 2,000 shares and of §49,000 of the §50,000 of bonds, being elected president, expended much money and greatly improved the situation. Trustees having vacated, IV. had others substituted by the court. IV. then became the purchaser. He failing, there was a second sale. In the meantime no objections were made. In 1886, the property having become valuable, G., owning three shares, brought suit for himself and the other stockholders to set aside the reorganization and sale on the ground of some alleged informality in the notice on which the order of substitution was made;</p> <p>Ilni.n:'</p> <p>By laches complainant lost, if he had any, right to relief.</p>

Before the county court she moved to quash the warrant and judgment of the justice and for her release from custody on the ground that the jurisdiction of the justice was limited to that of an examining justice, and that his judgment was coram non judice and void.

It appears that on the day of the shooting, the prisoner became involved in an altercation on the streets of Warren-ton, which resulted in blows, seeing which the mayor of the town, John R. Spilman, commanded the peace. The prisoner not promptly obeying the order, Spilman attempted to arrest him, whereupon he fled, pursued by Spilman and others.

<p>Appeal from three decrees of circuit court of Rockingham county, rendered April 20th, 1888, April 19th, 1889, and October 29th, 1889, respectively, in a cause styled Hall v. Effinger, on proceedings therein had by the appellant, John E. Roller.</p>

<p>1. Practice at Law — Summons — Copy—Variance—Waiver.—Original summons states damages at S15,000.00; copy at SI,500.00. The variance could be taken advantage of only by plea in abatement (g 3259); and, at least, was waived by failure to object before verdict.</p> <p>2. Negligent Injuries — Brakeman—Case at bar. — Defendant’s rules, wherewith, plaintiff, a brakeman, was unacquainted, forbade uncoupling cars except' with a stick, which, in this instance, could not be done. Conductor ordered plaintiff to uncouple cars. Whilst he was pulling coupling-pin with his hand he was thrown between the cars and injured by reason of the engine being suddenly reversed at a signal from a brakeman left by conductor to do the signaling;</p> <p>Held :</p> <p>Plaintiff was not guilty of negligence in not using a stick, as it would have been ineffectual, nor in obeying the conductor; but the brakeman (acting in the place of the conductor) was guilty of negligence in giving the signal to reverse the engine, which was the proximate cause of the injury.</p>

<p>Appeal from decree of circuit court of city of Portsmouth, rendered September 12th, 1890, in the cause wherein the appellant, Thomas M. Hodges, was complainant, and the Seaboard and Eoanoke Eailroad Company was defendant.</p>

<p>Appeal from decree of circuit court of Shenandoah, county, rendered April 12th, 1888, in the cause whereon the appellant, Gilbert S. Meem, was complainant and Henry G. Dulaney, Jr., was defendant.</p>

<p>1. Criminal Proceedings — Witnesses for Commotwealth— The prosecutor is not bound to call every witness present at the transaction which is the subject of the indictment. Hill’s Case, ante p. 633.</p> <p>2. Idem — Trespasser—Force to expel. — In trial of an indictment for murder, after the court had given for the commonwealth, without objection, the instruction following: “ If the jury believe from the evidence that prisoner went to the store of deceased for the purpose of killing him, and was there abusive of him, and that deceased ordered him out and he refused to go, whereupon deceased, in order to compel him to go, used only the necessary force against prisoner, who thereupon fatally shot deceased, the conduct of the prisoner made him a trespasser; and the fact that deceased, thus provoked by prisoner, did use such force, did not justify or excuse prisoner in killing him, as it was prisoner’s duty to leave the store when so ordered by deceased, and he was bound to submit to such force as was necessaiy to make him go ; and if, while such force was being applied, he killed, deceased with a deadly weapon, it was murder,” prisoner moved the court to add the following: “ But if the jury believe from the evidence that when prisoner recovering from the shock of the blow inflicted with the weight, he found deceased drawing a pistol from his pocket to shoot him, he had the right to defend himself in any way to preserve his life, or to prevent great bodily harm ”;</p> <p>Held :</p> <p>Refusal to give the addendum, no error.</p> <p>3. Idem — Evidence certified — Section 3484 — Case at bar. — Upon the certificate of the evidence in the case here, the verdict of guilty of murder in the first degree should not be disturbed.</p>

G. Johnson and Eliza, his wife (jointly interested in the subject-matter of the suit), and others, were defendants. The trial was upon no issue, no plea having been filed. Verdict was for plaintiff, and was set aside by the court below. At the second trial the verdict was also for plaintiff. Defendants moved to set it aside. The motion was overruled.

M. Carpenter and others were plaintiffs, and one Thompson and others were defendants. The judgment being adverse to the latter, they obtained a writ of error and siqyersedeas.

S. Powell and others, citizens and tax-payers of said county, against the board of supervisors thereof and the Atlantic and Danville Railroad Company. The object of the suit was to enjoin said board from issuing any more of the bonds of said county, and the said company from disposing of such of said, bonds as may have been already issued, as a subscription to said company. The court below having dismissed the bill at the hearing of the cause, the plaintiffs appealed.

<p>1. Sales op Goons — Title returned. — Where vendor of goods, by unrecorded bill of sale, delivers possession, but retains title until price is paid, such sale is void as to creditors of and purchasers for value 'without- notice from such vendee. Code, § 2462.</p> <p>2. Idem — Cane at bar. — Where vendor of goods, by unrecorded bill of sale, delivers possession, but retains title to and control over them, and requires proceeds of sales paid daily to him on the price, and fails to keep up the stock according- to his contract, whilst the vendees faithfully perform their part; and at length he sues out an attachment, and seizes upon the goods for an alleged balance;</p> <p>Held :</p> <p>Vendor has no claim to priority over other creditors of the vendees, and no claim against them, as he has violated, and they have kept, their contract.</p>

Raub, a woman of color, was complainant, and Robert Scott was defendant. The decree being in favor of complainant, defendant appealed.

Christian, receiver, .was complainant, and Joseph Porter was defendant. The decree being in favor of complainant, the defendant appealed.

<p>Judicial Sales. — Confirmation—Cane at bar. — Until confirmation, a judicial sale is an incomplete bargain. Whether the court will confirm the sale, must depend, in a great measure, on the circumstances of each case. Either party may object; and purchaser, becomes' a party to the suit, and may have any mistake corrected by the court;</p> <p>Held :</p> <p>Under the circumstances of this case, there is no error in the refusal to confirm.</p>

18th, 1890, affirming a judgment of the mayor of said city, imposing a fine on the plaintiff in error, Benoni Wheat, for violating a city ordinance.

<p>Jueikdktioxai. Mínimum — Appeal—Cane at bar. — The matter in controversy in this case, is the judgment of less than SÓOO in amount, the lien whereof on land is sought to be enforced, and not the title, or boundaries nor the rents and profits of land;</p> <p>.Held :</p> <p>The appeal was improvidently awarded, and -must be dismissed.</p>

<p>1. Dnnns — Uaíieellatiou—Insanity—Case ai bar. — Shortly after his liberation from lunatic asylum “ as restored,” grantor, a childless man, granted his entire property to his wife, to whom he attributed his success, and was much attached. This he did according to his previously declared intentions and repeated subsequent references. Ten years afterwards lie committed suicide. The evidence as to his mental condition conflicted ; hut there was no evidence of any incompetency at the time he executed the deed. Eccentricities were proved; but man}- of the witnesses thought him sane and capable;</p> <p>Held:</p> <p>That, as the evidence does not show any continuous and chronic insanity, but only a temporary derangement-, from which the records of the asylum show- he had recovered, the burden of proof is on the party attacking the deed,to prove insanity at the time the deed was executed, and that has not been done.</p> <p>2. Evidence of non-professional witnesses admissible in such cases..</p>

<p>Application to the original jurisdiction of this court, to award a writ of peremptory mandamus against Hon. F. R. Farrar, judge, temporarily, by executive appointment, of the county court of Prince Edward county, commanding him as judge of the said court, or such judge as may now he the lawful judge of the said court, to set aside and annul a certain order made in the said court August 7th, 1891, whereby it dismissed the complaint of sundry citizens, twenty or more, and duly qualified voters of the county of Prince Edward, Virginia, of a false return, gross fraud and other specified irregularities and illegalities of the general election for county officers, field in the said county on the 28tli day of May, 1891, and requiring the said judge to proceed to hear and determine the contest made hv said complaint as to the election of treasurer, sheriff and commissioner of the revenue, at said election of May 28th, 1891, without a jury, on the testimony taken, and upon any other legal testimony that may he adduced l>y either party, and to “ proceed upon the merits ” of said election and the returns thereof, and to “ decide the same, according to the constitution and laws,'’ and to award certificates of election to such persons as shall he decided to have, been legally elected treasurer, sheriff and commissioner of the revenue, respectively, for said county at said election.</p>

Devore and others were complainants, and the Universal Life Insurance Company was* defendant. The decree being adverse to the defendant company, it appealed.

<p>Error to judgment, of circuit court of Orange county, rendered October 10th, 1890, in an action of trespass on the case in which Daniel A. Moffett was plaintiff’, and the Richmond and Danville Railroad Oompany was defendant. The verdict and judgment being for the plaintiff, the defendant brought the case here on writ of error and supersedeas.</p>

Miller, upon notice, to require William 0. Ohase to give additional security on an appeal bond executed by him, with surety, before the clerk of the circuit court of Frederick county, upon a writ of error and supersedeas awarded by said judge to a judgment of the county court of Frederick county, in an action of unlawful detainer, wherein said John AX. Miller was plaintiff, and the said William 0. Ohase was defendant.

<p>1. Legacies— Land — Intention—Abatement.—Testator may charge legacies on land expressly or by implication, but the intention must be clear. Where land is not so charged, and there is a deficiency of personalty, the legacies must abate to the extent of such deficiency.</p> <p>2. Wills — Construction — Legacies—Charges—Case at bar. — Testator by will had given one of his sons a tract of land. Since making- the will, the house on the land had been destroyed by fire. By codicil he then bequeathed to that son, “ out of any money due and belonging to my estate,” a sum to rebuild the house; ,</p> <p>Held :</p> <p>The legacy was not a charge upon any of testator’s lands.</p> <p>3. Ideji — Residuary clause — Where by the clauses of the will prior to the residuary clause, which provides that the remainder of the estate, real and personal, be equally divided, &e., no general legacies, but only specific devises, are given;</p> <p>•Held :</p> <p>Testator meant the residue after deducting what had been specifically given, and not the residue after the payment of the general legacies.</p>

<p>Appeal from decree of corporation court of city of Roanoke, rendered November 12th, 1888, in a cause wherein the Roanoke Gas Company (the appellant here) was complainant, and the city of Roanoke was defendant. The appellant, a' corporation chartered under the laws of this commonwealth, for a- valuable consideration, acquired from said city the privilege to use its streets for the purpose of laying gas-pipes, and, at its own expense, built its gas-works, laid its pipes and entered into contracts with third parties to furnish them gas for domestic and other purposes, and, among others, laid its pipes in Campbell street of said city. Afterwards the city determined to lower the grade of said Campbell street between Roanoke and Commerce streets, for the distance of fifty feet. Before the gas-pipes were laid in this street the grade thereof had been established, and the pipes were laid under the instructions of the city engineer. By lowering the grade of said street the said pipes were exposed for a distance, of fifty feet, and were, in some instances, removed by the city authorities. This subjected the appellant company to great expense and inconvenience, making it necessary t@ take up and relay a large portion of the pipes. This action of the city authorities, subjecting the appellant to such expense and disturbing its property, was taken without notice to it; but after it was done notice was given that the pipes should be removed or lowered at its expense. Thereupon the appellant presented its bill to the judge of said court, setting forth substantially the facts as above, but more in detail, and praying for an injunction restraining said city from further interference with said pipes, and.that, whenever it became necessary to lower the grade of said streets the city should be required to lower the said pipes at. its own expense, in order that the appellant might enjoy the franchises to which it was entitled under its contract with the city.</p> <p>An injunction was awarded according to the prayer of the bill. The city, by its counsel, appealed, demurred to the bill, and moved to dissolve the injunction. The demurrer was sustained, the injunction dissolved and the bill dismissed at the plaintiff’s costs. On the application of the plaintiff an appeal was allowed by one of the judges of this court, and the decree complained of is here for review.</p>

C. Vaughan was plaintiff, and the Virginia Eire and Marine Insurance Company was defendant, the case being as follows : On the 27th of September, 1888, D. Lassiter and M. L. Beale, under the firm-name of D. Lassiter & Co., commenced business as grocers and liquor merchants at the town of Franklin, in Southampton county.

<p>Error to judgment of circuit court of Gloucester county, rendered August 18tli, 1890, on an application for a writ- of mandamus to compel the plaintiff in error, the county of Gloucester, to contribute to maintaining a causeway in Middlesex county, and leading up to a bridge over a place between the two counties.</p>

<p>Error to judgment of circuit court of Shenandoah county, rendered April 2d, 1891, refusing a writ of error to a judgment of county court of said county, rendered February 15th, 1891, whereby the plaintiff in error, James Anthony, was sentenced to the penitentiary for the term of two years, in accordance with the verdict of the jury at the trial of a joint indictment against him and two others for larceny.</p>

<p>1. Fellow-Seryaxts.—All serving a common master, working under same control, deriving authority and compensation from same source, and engaged in the same general business, although in different grades or departments, are fellow-servants, and take the risk of each other’s negligence.</p> <p>2. Idem.— Case at bar.—Plaintiff’s intestate, engine-man on defendant’s locomotive, was killed, without fault on his part, in collision with another locomotive of defendant. The collision was occasioned wholly by the negligent misconstruction of a right-of-way order by the engine- man in charge of the colliding locomotive;</p> <p>Held :</p> <p>The two engine-men, though on different locomotives, were fellow-servants, and the defendant was not liable.</p>

<p>Argued at Wytheville. Decided at Richmond. Appeal from decree of circuit court of Tazewell county, rendered February 26th, 1889, in vacation, in the consolidated causes of Charles E. Jeffries and others against the Southwest Yirginia Improvement Company and others, and of Albert Jeffries against the said company. The decree being adverse to the complainants, they appealed.</p>

<p>Parol Sale of Laxd — Case at bar. — B. executed a trust deed on Ms land to secure a debt. At the sale H. bought it for B., but took a conveyance in his own name, borrowing the money on his own bond which he secured on the land. Later, under a parol agreement between E. and his three sons, they were to take all the land but fifteen acres, and pay .the debt. Accordingly, H. conveyed the land to one of the sons, and they received possession of and cultivated the land, and paid the debt. In the meantime, E. was employed elsewhere as a day laborer. Subsequently, E. sued his sons for a re-conveyance ;</p> <p>Held :</p> <p>He was not entitled thereto.</p>

affirming the judgment of county court of said county, rendered April 5th, 1891, whereby one Erank Hite, the plaintiff in error, was sentenced to confinement in the penitentiary for the term of ten years, in accordance with the verdict of the jury on a trial of an indictment against him for burglary.

<p>Error to judgment of circuit court of city of Richmond, rendered November 26th, 1889, in an action for the negligent killing of plaintiff’s intestate, wherein the plaintiff in error, John S. Binns’ administrator, was plaintiff, and the Richmond and Danville Railroad Company was defendant.</p>

<p>Criminal Procedings — Xew trial. — In case here, discarding evidence of exceptor, the commonwealth’s evidence being plainly insufficient to warrant the verdict of guilty;</p> <p>Held :</p> <p>Error to refuse a new trial.</p>

<p>Error to judgment of corporation court of city of Lynch-burg, rendered September term, 1891, whereby the plaintiff in error, William Robinson, was sentenced to be hanged in accordance with the verdict of the jury at the trial of an indictment against him for the murder of one Willie Davis.</p>

Petition for a mandamus by O. T. Whiting and others, “ taxpayers of the town of West Point,” to compel the town council to assess for taxation the property of the West Point Terminal Railway and Warehouse Company. On the 10th of June, 1882, an ordinance was passed exempting the property of the company so long as it should keep its principal office in Virginia within the corporate limits of the town.

Beverly, and others, were complainants, and Joel Beverly was defendant. The decree being adverse to the complainants, they appealed. The suit was a family contest of father, mother, and all their numerous children but one, against their son and brother.

This is sequel to Postal Tel. C. Co. v. N. & W. R. R. Co., 87 Va. 349. When the case went back for further proceedings, the county court fixed a day for the commissioners to act in the condemnation proceedings to ascertain the damages to be paid by the plaintiff for the right of way desired. This was done, and the commissioners fixed the damage at $200, and the county court of Prince George county approved the report of the commissioners.

<p>1. Ixjuxctiox—Contempt—Disclaimer.—Where defendant’s employees, without orders, drove across complainant’s railroad after award of injunction to restrain trespass on its road-way, and defendant disclaimed all evil intent;</p> <p>Held :</p> <p>Error to impose a fine for the contempt.</p>

<p>Appeal from two decrees of the chancery court of city of Richmond, rendered July oth, 1889, and October 29th, 1889, respectively, in a cause wherein the appellant, the Rorfblk and Western Railroad Company, was complainant, and the Postal Telegraph Cable Company was defendant.</p>

<p>Injunction—Jurisdiction—Case at bar.—The chancery court of city of Richmond having enjoined an act to be done in the county of Prince George ;</p> <p>Held :</p> <p>Injunction improvidently awarded. Code, § 3436.</p>

Davis and others, Graves, Assignee, v. Davis and others, Davis v. Offield and others, and Fddins and others v. Offield and others. The decrees being adverse to Joseph Smith, administrator of Waller J. Price, deceased, and others, they appealed.

v. Kelley, Judge, &c., wherein a mandamus was atvarded July 16th, 1891, by this court, commanding said circuit judge to enforce the said order, and certain “ contempt proceedings” were had arising out of the action of the said circuit judge in the said first-styled cause.

<p>■ 1. Vendor and Vendee—Rescission.—Where vendor has been in no default at any time, and vendee has re-sold part of the land purchased by him, so that the parties cannot be put in statu quo ;</p> <p>' Held:</p> <p>There can be no rescission of the contract.</p> <p>2. Idem—Case at bar.—Where vendee has re-sold at a profit a large part of the land purchased by him, and asks for a rescission only as to such part as he has been unable to make a profit on;</p> <p>Held :</p> <p>He cannot have the relief prayed for.</p>

<p>Error to judgment of circuit court of Clarke county, rendered March 10th, 1891, in an action on an insurance policy wherein Everhart’s administrator was plaintiff, and the plaintiff in error, the Commercial Union Assurance Company (limited) of London,.was defendant.</p>

<p>Error to judgment of circuit court of Charlotte county, rendered March- 28th, 1890, in an action of trespass on the case, wherein the defendant in error, Scott, was plaintiff, and the Virginia Midland Eailroad Company was defendant.</p>

Simpson, who was Lucy T. Dugger, and Benjamin E. Dugger and others, and the other rendered the same day on the cross-hill filed in said suit by the appellant, P. H. Boisseau.

The action was brought by the administrator of Andrew Helson, deceased, against the Chesapeake and Ohio Railway Company to recover damages for the alleged negligent killing of the plaintiff’s intestate.

<p>Appeal from decree of hustings court of city of Portsmouth, rendered April 25th, 1890, in a suit wherein the appellant, the firm of Burruss, Son & Co., was plaintiff, and the firm of Trant & Bro. was defendant.</p>

<p>Error to judgment of circuit court of Bichmond city, rendered [November 10th, 1890, in an action of trespass, wherein the plaintiff in error, Legh B. Page; was complainant., and Preston Belvin and others and W. E. Cutshaw and others were defendants.</p>

<p>1. Land Owners—Lateral support—Removal—Damages—It is an ancient principle of the common law that every land-owner has a right to lateral support for his soil as against the adjoining soil of his neighbor; and such right exists as well against the public as against an individual ; and as against either, he is entitled to damages for an injury caused as the direct result of the removal of such lateral support.</p> <p>2. Idem—Case at bar.—In changing the grade of a street, a city excavated to the depth of sixty feet, causing plaintiff’s abutting land to cave in to such an extent as to destroy fhe walls of brick buildings thereon twenty feet from the street line. The fallen earth was used in a neighboring pit;</p> <p>Held:</p> <p>A taking of plaintiff’s property and the resulting damages were direct and not consequential.</p> <p>3. Streets— Dedication—Acceptance.—Where in action against city for damages caused by changing the grade of a street, the declaration was drawn upon the idea that the street was established when the alleged wrong was committed, that is decisive so far as this case is concerned, of the question whether or not, when the street was dedicated, it was accepted by the city within a reasonable time.</p> <p>4. Appellate Practice— Case at bar—At the first trial of this action there was a verdict for the plaintiff for 81,000 damages. On defendant’s motion, this was set aside, and plaintiff excepted. Afterwards a jury being waived, the court gave judgment for defendant. To this also plaintiff excepted, and the evidence (not the facts) is certified;</p> <p>Held :</p> <p>This court discovering error in the setting aside of the verdict, sets aside all the proceedings subsequent thereto, and enters judgment thereon. 'Acts 1889-’90, p. 90. Mears v. Dexter, 86 Va. 828.</p>

<p>Error to judgment of corporation court of city of Danville, rendered October 5th, 1889, in an*action wherein the plaintiffs in error, L. 0. Berkeley, Jr., and James P. Harrison, partners as Berkeley & Harrison, suing for the use of John W. Carter & Oo. and others, Yvere plaintiffs and A. C. Tinsley and Mrs. Eliza B. Buntin were defendants.</p>

<p>1. TJ,stray—Trust-deed — Injunction—Relief.—A trust-deed was executed to secure a debt, usurious under Code 1873, chap. 137, which, by section 9 thereof, exempts borrower from paying any interest, and directs all payments to be deducted from the principal. Injunction was awarded to prevent sale under the deed.</p> <p>Held :</p> <p>By Code 1887, 4204, the mode of procedure is changed to conform to section 2822, which dispenses with a jury to try the issue of “ usury or no usury,” but the measure of relief remains the same.</p> <p>2. Idem—Gw at bar.—In such case the circuit court properly conformed the proceedings to the Code of 1887, but relieved the borrower of only the usurious excess;</p> <p>Held :</p> <p>He was entitled to relief from all interest.</p>

<p>1. Agent —Undisclosed principal. — Where one contracts as agent without naming a principal, the contract enures to the latter’s benefit, provided he ratifies the same.</p> <p>2. Idem — Parol evidence. — Parol evidence is admissible to show who is the principal.</p> <p>3. Principal and Agent. — In such case agent as well as principal is bound.</p> <p>4. Earnest Money — Forfeiture.—Payment down of earnest money cannot change a contract of purchase into an option. Such payment operates only as part payment of the purchase-money.</p> <p>5. Specific Performance — Case at bar. — Defendant, a non-resident, employed an agent to negotiate for Mm the purchase of certain lots. Agent purchased them in Ms own name, but the defendant, on terms acquiesced in by Mm, including payment of §500 cash to he forfeited in case of default. Defendant afterwards refused to complete purchase;</p> <p>Held :</p> <p>In suit for specific performance, aided by attachment in equity, that defendant was bound.</p>

<p>Error to judgment of circuit court of Charlotte county, rendered October 4th, 1890, affirming judgment of county court of said county in accordance with the verdict of the jury at the trial of an indictment against the plaintiff in error, William M. Berkeley, for an assault on one R. C. Price, whereby he was found guilty and fined thirty-five dollars.</p>

L. Slaughter, was plaintiff, and Charles Denmead and James H.-Denmead, partner's, under firm name of Den-mead Brothers, were defendants. The object was the recovery of damages for an alleged breach of contract.

<p>1. Insurance — Conditions—Vacancy.—Sixteen tenement houses (eight double houses, separated by lanes), each valued at 8187.50, were covered by a policy providing that if the premises became and remained vacant for ten days, without company’s assent, then, in every such case, the policy to be void. Several of the houses remained vacant beyond the limited period, and were so at the date of fire;</p> <p>Held :</p> <p>The assured could not recover for the loss of those that so remained vacant. '</p> <p>2. Idem — Waiver.—The fact that at time of issuing the policy the premises were vacant, did not waive the condition as to avoidance thereof.</p>

Petition of the Combined. Saw and Planer Company and others, relators, for a writ of mandamus to compel Henry W. Flournoy, Secretary of the Commonwealth of Virginia, to receive the certified charter of incorporation of company, to be lodged in his office as such secretary.

, 1890, in an action of ejectment, wherein. J. M. Wood was plaintiff, and the plaintiffs in error, Jacob Wright and Betty Parker, were defendants.

<p>Error to judgment of circuit court of city of Danville, rendered May lOth, 1891, in an action of ejectment, wherein the heirs of Mary Arnett, deceased, were plaintiffs and the plaintiff in error, Paul Marshall, was defendant.</p>

H. Claiborne and others, appellants here. The case is this: On the 21st of January, 1854, Richard G. Haden, by deed, duly recorded, conveyed to William J. Watkins and Richard H. Watkins two lots of land, situate ,in‘the town of Danville, and certain negro slaves, in trust for the benefit of his daughter, Mrs. Martha J. Claiborne, and her husband, William 0.

<p>1. Agents — Commissions—Case at bar. — Receiver of insolvent bank employed agent to sell real estate upon commissions of ten per cent. It was not agreed whether commissions should be paid out of cash payment or out of entire price when paid. Agent sold for S85,000, whereof §10,000 was paid and default made as to residue;</p> <p>Held :</p> <p>Agent was entitled to ten per cent, only on such sum as had been or should be paid.</p> <p>2. Idem — Decree of court — Estoppel.—Receiver reported sale to court stating agreement, as to commissions, and procured a decree for payment thereof, “ whenever whole price should be fully paid.” Agent, who was no party to the suit, drew an order on receiver for a sum out of any funds payable to him as commissions under the court’s decree;</p> <p>Held :</p> <p>The order did not estop agent from denying correctness of the decree.</p>