Volume 90 — Virginia Reports

M. Anderson was plaintiff, and the Norfolk and Western Railroad Company was defendant. The action was brought to recover damages for the alleged wrongful expulsion of the plaintiff from one of the defendant’s passenger trains. There was a verdict and judgment for the plaintiff for two thousand dollars damages and costs.

Argued at Richmond. Decided at Wytheville. Appeal from decree of circuit court of Pittsylvania county-rendered June 20, 1890, in the chancery suit of N. T. Green, administrator of William Logan, deceased, complainant, against A. S. Pannill, James B. Pannill, John T. Pannill, Ruth EL Gordon, and others, defendants. Opinion states the case.

Argued at Richmond. Decided at Wytheville. Appeal from decree of circuit court of Rappahannock county, rendered 17th November, 1891, in the chancery cause wherein Addie Kinsey, by, &c., was complainant, and Thomas Kinsey was defendant.

Argued at Richmond. Decided at Wytheville. Error to judgment of corporation court of Roanoke City, rendered May 18, 1890, in an action of trespass on the case for damages for the negligent killing of plaintiff’s iutestate, wherein Hogan’s administrator was plaintiff, and Tyler, receiver of the Shenandoah Yalley Railroad Company, was defendant. Opinion states the case.

<p>Argued at Richmond. Decided at "Wytheville.</p> <p>Appeal from decree of the chancery court of the city of Richmond, dismissing a bill of review in a suit in equity, wherein the State Bank of Virginia, appellant here, was plaintiff',- and Paul Gr. Blanchard and others were defendants. Opinion states the case.</p>

<p>Argued at Richmond. Decided at Wytheville.</p> <p>Appeal from decree of the chancery court of the city of Richmond, rendered November 23,1889, in a suit wherein the .city was complainant, and Isaacs, Taylor & Williams and others were defendants. Opinion states the case.</p>

<p>Argued at Richmond. Decided at Wytheville.</p> <p>Appeal from decree from the chancery court of the city of Richmond, rendered May 10, 1892, in a suit in equity wherein William J. Cussen was plaintiff and William G. Taylor and others were defendants. Opinion states the case.</p>

Argued at Richmond. Decided at Wytheville. Error to judgment of corporation court of Danville, rendered 6th October, 1892. This action was debt on a negotiable note for $500 against J. L. Waring, W. L. Waring, Jr., and I. D. Blair, maker and indorsers of the said note, by E. Betts, the owner of the same.

<p>Prohibition — Justices—New Trial. — A writ of prohibition will be granted to restrain a justice from allowing a new trial after more than thirty days after judgment, and to restrain defendant from proceeding after such new trial is allowed.</p>

Argued at Richmond. Decided at Wytheville. Appeal from two decrees of circuit court of Nelson county, rendered at the March- and September terms thereof, in 1890, in two united causes therein pending, styled “A. P; Saunders v. Alexander Smith, etc.,” and “ J. R. Peebles v. B. B. Watts’ heirs, etc.” Opinion states the case. ■ • .

<p>Error to judgment of hustings court of Roanoke City, rendered at September term, 1891, in an action of assumpsit, wherein Eugene Gross was plaintiff and R. H. Woodrum was defendant. Opinion states the case.</p>

M. E. Steagall was complainant in the first, and A. J. Steagall, Jr., was defendant; and in the second, W. F. Barr & al. were the complainants, and said A. J. Stea-gall, Jr., was defendant. Opinion states the case.

<p>1. Municipal Corporations — Delegation of authority. — City Council cannot delegate to a committee its authority to sell the city’s real estate.</p> <p>2. Idem — Pursuance of Authority. — Where council referred petition for purchase of such estate to “the Sewer Committee and the city solicitor with power to act,” such committee cannot bind the city by a contract to sell without the solicitor’s concurrence.</p> <p>3. Specific Performance — Relief conformable to bill. — Where the bill alleges contract with defendant to sell plaintiff real estate in fee, and the proof is of a contract for “the right to erect a building on it.”</p> <p>Held :</p> <p>Specific performance cannot be decreed.</p>

<p>Indictment — Sale of Liquor — Evidence—New Trial. — Indictment for unlawful sale of ardent spirits, charged that the offence was committed in a certain district where, under the local option law, “no license” prevailed. The evidence was that the defendant sold ardent spirits to witness in the county, but did not designate the district. Defendant moved to set aside the verdict of “guilty as charged in the indictment, ” and for a new trial; which motion was overruled.</p> <p>Held :</p> <p>The motion should have been sustained.</p>

<p>Water Companies — Powers—Meters.—The charter of a water company provides that all water rates shall be uniform throughout the city for the same class of service, and designates special charges for hydrants, but also provides that the charge shall not exceed a certain sum per hundred gallons for the amount supplied.</p> <p>Held :</p> <p>The company may use either the hydrant as a means of charge or any other reliable instrument which will measure the quantity used, and charge some of its customers by the gallon, and at the same time charge others by the hydrant, though it cannot lawfully discriminate between water taxes of the same class. /</p>

C. Combs, who had been found guilty at the trial of an indictment for burglary, to imprisonment in the State penitentiary for a term of two years. Opinion states the case.

<p>Note. — Subject of judicial notice as to what liquors are intoxicating as well as the question what liquors are within the statutory restrictions on the sale of “ spirituous,” “vinous,” “fermented,” and other intoxicating liquors is treated in a note to Lanily v. State (Miss.), 2 L. R. A., 645.- — Reporter.</p>

<p>1. Cbiminal Pboceedings — Impannelling Jury. — A person summoned as one of a panel of sixteen free from exception, who at the time of selecting the jury is serving on the grand jury, is not “in attendance,” in the sense of Code, 14019 ; and it is not error to refuse to place him on the panel, or examine him on his voir dire.</p> <p>2. Idem — Objections too late. — -In the appellant court objection cannot be made for the first time that a person served on the jury without being selected by the court or summoned by the sheriff.</p>

<p>Murder — Suspicion not Proof — Case at Bar. — In case at bar, Held, that though the facts certified in the record present strong grounds of suspicion against the prisoner, yet they are not sufficient to establish beyond a reasonable doubt the prisoner’s guilt of the crime for which he stands indicted.</p>

B. Taylor, of murder iu the first degree of one Ira Mullins, and sentencing him to be hanged by the neck until dead- on December 16, 1892. Opinion states the case.

the Roanoke Rolling Mill, the Pocahontas Coal Company, and the Crozer Iron Company were defendants. Prom the decree in favor of the defendants the complainant appealed. Opinion states the case.

The action was trespass on the case for certain alleged grievances committed by the plaintiff in error against the defendant in error, who was a passenger upon the road of the said plaintiff in error, and who by misdirection embarked upon a coach which was cut out of the train without notice.

Spotts and George Gibson, merchants and partners, trading under the firm name and style of Spotts & Gibson, were complainants, and H. E. Kendrick and M. E. Kendrick were defendants. Opinion states the case.

H. Mumpower, the appellant, was defendant. The object of the suit was to enjoin the appellant from damming back the water of a natural stream so as to cut off the appellee’s supply of water. The circuit court perpetuated the injunction awarded, and the defendant appealed. Opinion states the case.

Ellison, John B. Ellison, Henry H. Ellison, and William B. Ellison, partners under the style of John B. Ellison & Sons, and others were plaintiffs, and H. J. Simon and H. E. Jones, as trustee, were defendants. The object of the suit was to annul as fraudulent a trust deed made to secure certain preferred creditors of the grantor, who were not made parties. The circuit court set aside the deed, and the defendant, Simon, appealed. Opinion states the case.

<p>1. Options — Want of mutuality — Specific'performance.-—A court of equity in this State will not decree specific execution of a contract where there is no mutuality both of obligation and remedy, as both parties must, by the contract itself, have a right to compel specific execution. Graybill v. JBrugh, 89 Va., 895.</p> <p>2. Idem — Case at bar.- — Vendor sold to vendee by a title bond (containing no stipulation for a resale) a certain lot of land, agreeing to make vendee a deed thereto free from all incumbrances with general warranty when the last payment of the purchase money was made. When that payment became due vendee made it, and demanded such a deed as he was entitled to under said instrument, which vendor executed and delivered to him, but demanded and received from vendee a sealed obligation to build a house thereon within two years, and in the event of failing to build the house to sell back to vendor, at what he paid with interest, said lot except the ground whereon a warehouse then stood. The house was not built within the period specified, and vendor tendered the amount paid with interest to vendee and demanded conveyance. Vendee refused to accept the money and to make the conveyance. Thereupon vendor filed his bill for specific performance. Circuit court overruled the demurrer to the bill and decreed specific performance.</p> <p>Held :</p> <p>The title bond is a complete contract in itself, and can alone be looked to for the conditions of the sale; and the demurrer should have been sustained for want of mutuality in the contract for resale and the bill dismissed.</p>

B. Echols & als. were complainants and the City of Bristol & als. were defendants. The object of the suit was to enjoin the delivery of the bonds of the city to the South Atlantic and Ohio railroad company. The circuit court dissolved the injunction and decreed that the bonds be delivered to the said railroad company. Erom this decree the complainants appealed. Opinion states the case.

<p>Ceiminal Proceedings — Record—Judgment.—A writ of error will not lie where the record does not show the judgment of the trial court, but merely recites that judgment was entered.</p>

L. Rasnake, to recover damages for an injury by the Norfolk and Western railroad company to a roadway in which the plaintiff claimed an easement. There was a judgment for the plaintiff, and tke defendant brought the case to this court. Opinion states the case.

<p>Judgments — Remedy at Law — Injunction.—An injunction will not be awarded to a judgment by default upon summons directed to sheriff of another county than the one where the action is brought, althought the summons was issued contrary to law, as the judgment, though erroneous, is not void, and the defendant has a complete remedy at law by motion under Code, 13451.</p>

<p>Tender — Presumption of payment. — -In 1862, a borrower executed bond and trust deed securing the loan to be repaid on or before April, 1864. The loan was in Confederate and such other paper and State currency as was then in circulation. In April, 1862, borrower tendered through his wife the money in Confederate notes to pay the bond. The tender was refused. On bill to enjoin sale under the trust deed in 1889,</p> <p>Held :</p> <p>There was a valid tender in 1863, and by lapse of time a presumption of payment had arisen.</p>

<p>Appeal from decree of circuit court of Smyth county, rendered December 15,1891, in the chancery causes wherein J. C. Green and others were complainants, and the appellants, L. A. Moore and Nathaniel Hibbert, were defendants. Opinion states the case.</p>

Moorman and others were plaintiffs and Robert Crockett, trustee, was defendant, and in the cause wherein Catherine A. Sayers and others were, complainants and said Crockett, as executor, and others were defendants, consolidated and heard together. The decree being adverse to the complainants in each case, they appealed. Opinion states the case.

<p>Paetnbes — Powers—General Assignment. — It is settled law that one partner has no implied authority to make a general assignment of the partnership effects for the benefit of creditors, unless his co-partner is absent or incapable of giving his assent or dissent.</p> <p>2. Witnesses — Objection to competency. — Objection to competency of witness, held, not necessarily waived unless made before examination in chief. Warwick v. Warwick, 31 Gratt., 70.</p> <p>3. Idem — Case at bar. — Defendant does not become a competent witness in an action on a note given plaintiff for an antecedent debt, wherein the latter is incompetent, because of the fact that the note was given at the instance and in the presence of plaintiff’s agent, who has testified in the case, the contract having been made with plaintiff and not with agent.</p> <p>4. Consolidation of Causes is a matter of discretion with the court below, and will not be disturbed, unless there was an abuse of discretion.</p>

<p>1. Railroad Company — Negligent hilling — Alter ego. — An engineer, with the knowledge and permission of the conductor, who was the representative of .the company, left his engine to be operated by an inexperienced fireman.. Whilst making a flying switch, by the improper management of the engine by that fireman the brakeman was killed.</p> <p>Held :</p> <p>The company was liable.</p> <p>2. Declaration — Sufficiency.—Where declaration details the facts of such killing, and alleges that at the time thereof the engine was under the management of such fireman, it is sufficient, and notifies the company that it will have to defend for failure to keep a competent engineer.</p>

<p>1. Deeds — Construction.—Two deeds embracing same subject matter, between same parties and relating only to same transaction, the latter executed to correct a mistake and supply an omission in the earlier, should be construed together as one deed.</p> <p>2. Description. — Boundary lines of lands conveyed to a railroad company should stand as'fixed by the deeds, and not be shifted to meet any change of the track found necessary or desirable.</p> <p>3. Advebse Possession. — Bailroad company’s right of way to land conveyed to it under agreement with grantor that he might use any portion of it not needed by the company, he to yield possession whenever it should be needed by the company, is not affected by its being unenclosed, vacant of buildings, or unoccupied at any time.</p>

<p>Error to judgment of circuit court of Tazewell county, rendered January 21, 1892, in an action of debt on a note given for the balance due upon the assignment of a mining lease of coal lands, in which action Joseph Taylor was plaintiff and J. A. Deaton and others were defendants. The judgment being for the plaintiff, the defendants brought the case here on writ of error and supersedeas. Opinion states the case.</p>

Wohl-ford and others were complainants and John Grubb, Mrs. L. M. Trinkle and others were defendants, and in the other the said Mrs. L. M. Trinkle was complainant and said George M. Wohlford and others were defendants. The decree of the circuit court sustained Mrs. L. M. Trinlcle’s claims to the land and dismissed the bill of Wohlford and others. Trom this decree Wohlford and others appealed. Opinion states the case.

J. & S. D. May were complainants and J. B. Higginbotham and T. W. Wingo were defendants, and in another cause wherein the Bank of Princeton was complainant and said Higginbotham and Wingo were defendants. Prom the decree in favor of the complainants in both suits, which were heard togethei, the defendant, Higginbotham, appealed. Opinion states the case.

<p>1. Contiiact — Parol evidence — Case at bar. — Plaintiff by writing agreed to furnish defendant with railroad ties at points where needed, but alleged a contemporaneous parol agreement of defendant to haul part of the ties. In action for defendant’s failure to perform the parol agreement : held, such agreement could not be proved as it would violate the rule which forbids the admission of parol evidence to vary a written agreement.</p> <p>2. Idem — Receipt—Release.-—Plaintiff accepted payment and receipted in full of all demands under the contract for such ties as he hauled: held, such receipt was a complete defence to the plaintiff’s action.</p>

S. Draper was plaintiff and the Norfolk and Western Railroad Company was defendant. The object of the action was to recover damages for burning plaintiff’s wood by fire communicated by defendant’s locomotive. From the judgment for the plaintiff the case was brought here by writ of error and supersedeas. Opinion states the case.

From the judgment for the plaiutiff’ the defendant brought the ease here on a writ of error and supersedeas. Opiniou states the ease.

<p>1. Railroads — License—Duty of company.- — "Where the public has been in the habit of crossing the railroad track on foot at a certain place for years without objection from the company,</p> <p>Held :</p> <p>Such acquiescence amounts to a license and imposes on the company the duty of taking reasonable care to avoiding injuring pedestrians.</p> <p>2. Idem — Duty of persons crossing. — Such pedestrians are bound to take ordinary precautions for their own safety, even if there was any negligence on the company’s part.</p> <p>3. Idem — Injury to persons on the track- — Case at bar. — One crossing railroad at a place where the public is licensed to cross, who knowing that he is on one of the main tracks over which trains pass at all hours, fixes his attention upon a train on the other track which he has changed his course to avoid, and takes no precautions in looking out for trains upon the track on which he is walking, is guilty of such negligence as defeats his recovery for injuries from being struck by such train.</p>

The object of the suit was to enforce the forfeiture of Johnson’s title to a lot in the town of Norton because of a violation of a condition of a deed. The judgment being against Johnson, he brought the case here on writ of error and supersedeas. Opinion states the case.

Argued at Wytheville. Decided at Richmond. Appeal from sundry decrees of the circuit court of Tazewell county, the last rendered at the November term, 1892, in a suit for divorce a mensa et toro by Catharine V. Heninger against Samuel T. Heninger.

<p>Note by Reporter. — See Michigan Pipe Co. v. M. F. & M. Ins. Co., 20 L. R. A., 277, as to when an insurance agent is to be treated as the agent of the assured.</p>

Argued at-Staunton. Decided at Richmond. Appeal from decree of circuit court of Shenandoah county, rendered April 6, 1892, in a suit in equity wherein James W. Machir and others were plaintiffs and Noah Funk and others were defendants. The principal object of the suit was the sale of certain real estate situate in the counties of Shenandoah and Warren, which had been devised by Elizabeth Machir, deceased, with a view to a division of the proceeds among those entitled thereto.

Argued at Wytheville. Decided at Richmond. Error to judgment of circuit court of Tazewell county, rendered at the August term, 1892, in an action on a policy of fire insurance, wherein Samuel Morgan was plaintiff and the Virginia Fire and Marine Insurance Company was defendant. The policy was for $1,500 on a stock of goods.

O. Tyler was plaintiff and the Western Union Telegraph Company was defendant. There was a verdict and judgment for the plaintiff, to which judgment the defendant company obtained a writ of error from one of the judges of this court.

<p>1. Employees — Injuries—-Contributory negligence — Disobedience.—Where, contrary to rules, conductor allowed cars to be shifted and run down grade without an engine to control them, and whilst he was between the cars, a brakeman, without objection from the conductor, caused another car to run down the same way, which, by reason of. defective brakes, could not be controlled, and struck the first-named cars with such violence that the conductor was injured,</p> <p>Held :</p> <p>The conductor cannot recover on account of his own negligence and disobedience of the rules.</p> <p>2. Idem — -Presumption.—Railroad companies are entitled to presume that cars delivered to them by connecting companies are in proper condition.</p> <p>3. Idem-^-Failure to inspect. — Conductors who are required by the rules to inspect all cars picked up in transit, cannot recover for injuries received by them by reason of their failure to inspect such cars.</p>

Throckmorton was complainant and Townsend M. Osburn, trustee, and Annie E. Throckmorton were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

<p>1. Criminal Proceedings — Continuances.—For the principles on which continuances are granted in criminal cases see opinion of Lacy, J.</p> <p>2. Idem — Case at bar. — A days before trial a summons was issued and delivered to the sheriff for a witness residing in the same town. The summons was returned “not found.” Defendant made affidavit to his materialty and that he could not safely go to trial without him. Trial court overruled the motion for continuance on the sole ground that the statements of the defendant under oath were not to be credited.</p> <p>Held :</p> <p>Error.</p>

Argued at Staunton. Decided at Richmond. Appeal from decree of circuit court of Frederick county, rendered July 15, 1892, in a chancery suit, wherein J. M. Miller was complainant, and W. C. Chase, the appellant, was defendant. Opinion states the ease.

<p>Error to judgment of circuit court of Loudoun county, rendered April 13, 1893, refusing a writ of error to the judgment of the county court of said county, whereby tbe plaintiff in error, D. W. Benton, was sentenced to confinement in the State penitentiary for the period of two and a half years for a felony. Opinion states the case.</p>

<p>Personal Representatives — Payment—•Limitations—Case at bar. — Balance in administrator’s hands at settlement of his accounts was ordered in 1868 to be apportioned among the creditors, the amount to each being ascertained. In 1887 a creditor filed his bill to establish his claim against the administrator’s sureties. On demurrer the bill was dismissed and never amended, nor the decision reversed. He then filed his petition in a lien suit pending against the administrator, asking that his debt be paid out of the fund.</p> <p>Held :</p> <p>(1) The order, which was in effect a judgment, was barred in ten years.</p> <p>(2) The lapse of time raises the presumption of payment, and the laches are fatal.</p> <p>(3) The question having been decided and the suit dismissed, and no appeal taken, the question is res judicata.</p>

T. Brown was plaintiff and the Danville and Western Bailroad Company was defendant. Verdict and judgment being for plaintiff, defendant brought the case here on error and supersedeas. Opinion states the case.

<p>Constitution — Habeas corpus — Case at bar. — K. was received in the peniten-</p> <p>' tiary October 16, 1885, from the city of Richmond, and again February 14,1891, from New Kent county. He was taken February 5, 1892, before the circuit court of said city and arraigned and identified as the same person who had been twice convicted, and was sentenced to five years additional confinement. These proceedings were under Code, ffl, 4179, 4180, 4182, and 4183. On his petition for a writ of habeas corpus,</p> <p>Held :</p> <p>Those sections are constitutional and valid, and the proceedings under them were regular, and the writ is denied.</p>

<p>1. Error — Facts not certified. — Where neither the evidence nor the facts are certified, this court cannot review a judgment setting aside a verdict and awarding a venire de novo.</p> <p>2. Nonsuit — Not final judgment.- — By suffering a nonsuit, plaintiff ends his present suit without prejudice to his right to bring another; and it is not a final judgment, but the opposite.</p>

T. Beard’s administrator was plaintiff and the Chesapeake and Ohio Bailway Company was defendant. The defendant having demurred to the plaintiff’s declaration, and the court having sustained the demurrer, the plaintiff brought the case here on a writ of error. Opinion states the case.

<p>1. Criminal Proceedings — Recognizance—Scire facias. — Condition of recognizance of one accused of a felony-was for his personal appearance “to answer the charge against him. ” The language of the scire facias on such recognizance was for his personal appearance “to answer as of a felony whereof he stands accused ” : Held, (1) No form of language being prescribed for a recognizance it is sufficient; (2) the variance between the recognizance and the scire facias is immaterial.</p> <p>2. Idem — Appearance and pleading. — When recognizance provides that the accused shall appear, &c., and “not depart without the leave of the court ” ; held, no defence to scire facias that accused appeared and pleaded “not guilty ” when he departed without leave of the court</p>

T. Clark for the murder of J. R Moffett, sentencing him to confinement for the period of five years in the State penitentiary. To this judgment the prisoner obtained a writ of error and supersedeas. Opinion states the case.

v. The Virginia State Insurauce Company,” and in the suit entitled “Morriss, &c. v. James Alfred Jones, Trustee, &c.,” beard together. The said Morriss obtained an injunction to a sale advertised by said trustee, and appealed from the decree dissolving said injunction. Opinion states the case.

<p>Appeal from decree of circuit court of Culpeper county, ren-' dered September 16, 1891, in the chancery cause of Gaskins v. Finks and others. The lower court dismissed the bill and the complainant appealed. Opinion states the case.</p>

<p>1. Ckiminai, Proceedings — Misnomer—Amendment—Where defendants indicted jointly for a midemeanor, have been duly summoned, but failed to appear, the court may, in their absence, amend the indictment against “S. C.,” and make it read “S. S. alias S. C.” Code, $ 3999.</p> <p>2. Idem — Absence—Imprisonment.—Upon such indictment, held, not error to try defendants in their absence, without first awarding a capias for their arrest, nor to enter judgment for their imprisonment in jail (Code, 14012 and 14076); nor to order their arrest and imprisonment for nonpayment of a fine before a fieri facias has been issued. Code, \ 726.</p> <p>3. ■ Constitution — Rights of accused. — Such trial and sentence of such defendants in their absence, held, not violative of the constitutional guaranty that “the accused in all criminal prosecutions hath a right to be confronted with the witnesses against him. ”</p>

Argued at Staunton. Decided at Richmond. Appeal from decree of circuit court of Rockingham county, rendered October 26, 1889, in two chancery causes, heard together, wherein C. Hartman was complainant and John M. Showalter’s administrator was defendant in one, and John M. Showalter’s administrator was complainant, and Peter Hile’s administrator and others were defendants in the other. The decree being adverse to Margaret Heckert and others, they appealed.

, were plaintiffs, and the plaintiff in error, the Norfolk and Western Railroad Company, was defendant. The object of the suit was to recover $48.8 with interest thereon from September 1,1891, until paid, alleged to have been illegally exacted from and paid by the plaintiffs to said company as charges for the detention of freight cars consigned to them, beyond seventy-two hours after • notice of arrival.

Smith, by which judgment the plaintiff in error was sentenced to be hanged by the neck until dead. Opinion states the case.

<p>Railroads — Employees—Contributory negligence. — Brakesman, side-tracking flat car, train having backed into siding, cut car loose, and signalled train to leave it. Car not clearing main track he signalled train to return and push it further. Train returning fast, he put one foot between iron rails loaded on car, and end of car, and other foot outside so as to set brake. Train struck car and rails slipped forward and crushed his foot.</p> <p>Held:</p> <p>Brakeman’s negligent acts caused the accident,- and he is not entitled to recover.</p>

Chapman was plaintiff, and Thomas W. Chapman and others were defendants. The single question involved in the appeal appears from the opinion.

<p>1. Insurance — New policy — Case at bar. — Assured asked company’s agent to-permit removal of insured property. Agent said there were so many endorsements on old policy it would be best to cancel it and take a new one for the return premium at pro rata rates. Company issued a new policy expiring at an earlier day, but it was not delivered to assured. The property was burned after expiration of the new, but before that of of the old policy: Held : The company is liable for the loss.</p> <p>2. Agents — Case here. — Insurance company supplies one with all needful blanks, responds to his acts, approves of his permits to remove insured property, and pays the rent of his office; held, it is bound by his doings as its agent.</p>

<p>1. Deed — Construction—After-born child — Case at bar. — -Conveyance of land to '‘the lawful heirs of J. and B.,” who were then living and had three children, and a fourth child was born to them after date of deed: held, the deed gave a fee in remainder to three children to be opened for the fourth child when born.</p> <p>2. Married Women — Adverse possession — Case at bar. — It appearing that the four children held jointly, adversary possession of the land until 1843, when the fourth child was under the disability of coverture and remained such till after 1881: held, there could be no adversary possession against her in favor of her co-tenants during her coverture.</p> <p>3. Chancery Practice — Answer—Case at bar. — Code, section 3275, allows defendant to file his answer any time before final decree. In the case here, ten days after the rendition, by default, of a decree final in form, the defendants, during the same term, presented their answer to the bill, showing a probable title to the land in question; but the court below refused to allow the answer to be filed solely on the ground that it “ was presented too late.”</p> <p>Held :</p> <p>The ruling was error.</p> <p>4. Cases Compared. — G-erstv. Jones, 32 Gratt., 528, distinguished from the case here.</p>

<p>■ Appeal from decree of circuit court of Mecklenburg county, rendered June 6, 1892, in a suit wherein ■ Thomas F. Hum-phreys was complainant aud the Richmond and Mecklenburg Railroad Company .was defendant. The land of complainant was illegally entered by a railroad company which erected thereon expensive stone and earth works. That company became insolvent, and the defendant • company purchased its franchises and property. The object, of the suit was to compel paymeut for the right of way. An issue out-of chancery was ordered, and at the trial the jury assessed, the plaintiff’s damages at $7,079 with interest from January 1, 1882. The court below approved the verdict, and from its decree the defendant appealed. Opinion states the case.</p>

<p>1. Infants’ Lands — Exchanges—Validity.—Under decree in suit by father in 1884, land of his infant children was exchanged for his own land. The bill was not filed by one authorized so to do, the trustee was not a party, and in other respects also the proceedings were not conformable to Code 1873, p. 932, even had that statute provided for the exchange of such lands : Held : The exchange was not validated by the act of 1888, Sess. Acts 1887-’88, p. 504.</p> <p>2. Trust Deeds — Subjects of. — Debtor may convey for his creditor’s benefit property held by him nominally in trust for others, but equitably his own, and withhold property nominally his own, but equitably belonging to others.</p> <p>3. Idem — Case at bar. — In 1884 B. procured a decree for exchange of his own lot for a lot held by trustee for his wife and children, by proceedings not in accordance with the law. Later, by a trust deed reciting the invalidity of the exchange, he conveyed the former lot for his creditors’ benefit and the latter lot for his wife and children’s benefit. His creditors filed their bill, alleging the exchange to have been valid, and attacking the trust deed as voluntary and fraudulent. The court below overruled the demurrer to the bill and adjudged the trust deed void: Held : Error.</p>

A. Moorman and others being complainants and T. J. Arthur and others being defendants, and iu the second Wm, A. Moorman and others being complainants and the town of Danville and others being defendants. The circuit court dismissed the bills and the complainants appealed. Opinion states the case.

3L Michael was plaintiff and the Roanoke Machine Works was defendant. The defendant company demurred to the plaintiff’s evidence,, and the jury assessed his damages at $10,000, subject to the demurrer, which the court below sustained. The plaintiff brought the case here 011 error. Opinion states the case.

Ormond & Goforth, John Craig & others, in which there were thirteen cases consolidated and heard together. Craig, a resident of South Carolina, was the mortgagee in a mortgage regularly executed and recorded there, but not in accordance with the laws of Virginia. Williams, White & Co., attached property in said county to satisfy their claims against Ormond & Goforth, which property was the subject of the mortgage.

Argued at Wytheville. Decided at Richmond. Error to judgment of circuit court of Wythe county, rendered at its February term, 1897, in an action wherein J. R. McGavock and J. C. McGavoek, administrators of Randall Mc-Gavoek, deceased, were plaintiffs, and the plaintiff in error, the Norfolk and Western Railroad Company, was defendant. Opinion states the case.

F. Rison, acting on behalf of certain purchasers, Ruffin and Hairston, was defendant. The decree being adverse to the defendant, he appealed. Opinion states the case.

Mills and Henry Fairfax, late partners, doing business as Mills & Fairfax, were plaintiffs, and the Norfolk & Western Eailroad Company was defendant. The company demurred to the declaration, the demurrer being not to its form, but to its substance and going to the merits of the case. The circuit court sustained the demurrer, and the plaintiffs brought the case here on a writ of error. Opinion states the case.

<p>1. CORPORATIONS — Subscription—Fraud.—Where one is fraudulently induced by an agent or promoter of a corporation to subscribe to its capital stock, held, he may repudiate the contract at his discretion.</p> <p>2. Idem — Case at bar. — Where such promoter induced defendant, in ignorance of the fact that the former had an option on the land which the corporation was formed to purchase, and in reliance on the former’s supposed disinterested and superior judgment, to subscribe to the capital stock, and the defendant was thereby misled to his injury into ■ making a contract which otherwise he would not have made, held, the defendant is not bound by his subscription.</p> <p>3. Idem — Waiver.—Nor does such defendant waive his right to annul his said subscription by giving to said promoter a proxy to represent him in the first stockholders’ meeting, when the facts as to the promoter’s option on said land was disclosed, as defendant should not be affected by notice to the promoter of what the latter knew from the beginning and did not disclose to him.</p> <p>4. Idem — Laches.—Laches does not begin to run until subscriber is chargable with notice that a fraud has been perpetrated upon him.</p> <p>5. Idem — Notice—What is — Duty to investigate. — Mere suspicions or random statements heard in public, or in stockholders’ meetings, do not necessarily constitute notice. But after a subscriber’s suspicions are reasonably aroused, it is his duty to investigate at once.</p> <p>6. Idem — Burden of proof. — Corporation has the burden of proof in asserting that the subscriber had notice and was guilty of laches.</p>

H. Lam, sheriff of Rockingham county, and as such administrator of Thomas H. Sites, deceased, was plaintiff, and S. E. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. There having been a verdict and judgment for the plaintiff for $1,500, the defendant obtained a writ of error. Opinion states the case.

Argued at Staunton. Decided at Richmond. Error to judgment of the hustings court of the city of Staun-ton, rendered July 10, 1893, in a prosecution against Percy Whalen, whereby the prisoner was sentenced to the penitentiary for a term of five years for larceny from the person. Opinion states the case.

Forbes for unlawful shooting with intent to maim, etc. A writ of error to the said judgment having been refused by the judge of the circuit court of the said county, a writ of error was awarded by one of the judges of this court. Opinion states the case.

<p>1. Libel — Malice—Privileged communications. — Mere publication of defamatory words is prima facie evidence of malice, but the occasion may rebut the presumption. Chaffin v. Lynch, 83 Va., 106.</p> <p>2. Idem — Justification.—To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide without malice. Ibid.</p> <p>3. Idem — Court—Jury.—Whether the occasion be privileged is a question for the court. Whether the occasion has been used bona fide without malice is a question of fact for the jury. Ibid.</p> <p>4. Idem — Defamation—Privileged—Case at bar. — A letter written by one believing he has an interest in the subject matter, stating that the addressee cannot afford to go through life with a breach of trust staining his character, that his books swarm with false entries which he refuses to correct, and that if he fails to properly account and make restitution, the writer will publish the facts in a manner most unpleasant to him: held, a privileged communication, and the writer not liable in an action for defamation in writing the letter.</p> <p>5. Idem — ■Action for defamation — Burden of proof — Case at bar. — In such action for insults in a letter written on a privileged occasion, the burden is on the plaintiff to. prove that the letter was written maliciously, by showdng that the defendant availed himself of the occasion, not for the purpose of protecting his interests, but to gratify some ill will independent of such occasion and to defame the addressee.</p> <p>6. Appellate Practice — Inferences—Verdict.—Where record shows no conflict in the evidence (or question as to the credibility of witnesses), this court has the same opportunity to draw correct conclusions from the facts as the trial court and the jury possessed.</p>

<p>Appeal from decree of circuit court of Fairfax county, rendered at its June term, 1891, in a cause wherein B. ~W. Moore, administrator of John B. Succop, deceased, and all other creditors of Jonathan Magarity and Frances Ann Magarity who should come in, &c., were complainants, and said Magarity and wife were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.</p>

Roller and others, complainants, against George W. Breeden and others, defendants, and of John E. Roller and others, complainants, against William Breeden’s administrator and others, defendants. Ginter came into these causes by petition. The decree being adverse to the complainants, they appealed. Opinion states the case.

<p>Error to judgment of corporation court of Norfolk, rendered April 19, 1893, in a mandamus proceeding, wherein Robert Callahan was petitioner and W. A. Young, clerk of said court, was defendant. The court refused the writ, and dismissed the petition, by the judgment complained of. Opinion states the case.</p>

The single question in the case arose upon the construction of the will of John Lewis, deceased, which was executed in 1805, and admitted to probate in 1816, the year of the testator’s death.

<p>Appeal from decree of circuit court of Fauquier county, rendered January 11, 1890, in the creditor’s suit, wherein Kobert A. Banks for, &c., was complainant, and J. J. Halsey and William J. Wharton, surviving executors of William Wharton, deceased, and others were defendants. By the decree Commissioner G. D. Gray was required and ordered to pay to J. S. Wharton, trustee, or his attorneys, the sum of $500, reported by said commissioner to be in his hands, in his report of November 4, 1882, and T. S. Alcocke, executor of S. A. Daniel, deceased, to pay de bonis testatoris to said Wharton, trustee, or his attorneys, the costs of this suit accruing since November 4, 1882. Among the debts reported by the commissioner against the estate of William Wharton, deceased, was one in favor of the estate of S. A. Daniel, deceased, amounting to $537, as of the date of the decree. Exceptions to said debt being sustained by the decree, his executor appealed. Opinion states the case.'</p>

The object of the suit was to annul her will. The verdict of the jury being in favor of the will, the complainants moved to set it aside and to be allowed a new trial of the issue of devastavit vel non; but the court denied the motion and rendered its decree accordingly and the complainants appealed. Opinion states the case.

Dillon, was complainant, and 'William Morton, Wm. T. Cunningham, Samuel N. Cunningham, and T. Henry Olenu were defendants. The decree being adverse to the defendant, Wm. Morton, he appealed. Opinion states the case.

A. McCullough, Same against James E. Barry, Same against M. L. T. Davis & Co., and Same against A. A. McCullough & Co., all of which cases are precisely alike, the same questions being involved in each of them. The judgments being adverse to the commonwealth, it brought them here upon writs of error. Opinion states the case.

Hafner, deceased, was plaintiff, and the Chesapeake and Ohio Railroad Company was defendant. The verdict was for $10,000 damages in favor of the plaintiff. The defendant having filed bills of exception to several rulings of the ¿rial court, brought the case here on error. Opinion states the case.

Argued at Staunton. Decided at Richmond. Error to judgment of the circuit court of Augusta county, rendered at May term, 1892, upon suggestions tiled in circuit court of Rockingham county by Edward S. Yancey and wife against John E. Massey and others, John E. King and wife against same, and Joseph N. Massey and wife against same, asserting a liability on the Virginia Laud and Loan Company, the Sherwood Land Company, W. L. Fleming, A. C. Braxton, trustee, and H. C. Braxton,…

<p>Criminal Proceedings — Presence of accused. — It is the well established practice in this State that a prisoner accused of felony must be arraigned and plead and appear in person in all the subsequent proceedings, and the fact of such attendance must appear upon the record. Bond’s Case, 83 Va., 581.</p>

Smythe was complainant and Mattie K. Smythe, James O’Keefe, Mary S. O’Keefe, and Claude Allison, an infant, were defendants. The complainant regarding the decree of the circuit court as adverse, appealed. Opinion states the case.

<p>Application for a writ of mandamus.</p>

Argued at Wytheville. Decided at Richmond. Appeal' from decree of the corporation court of the city of Roanoke, rendered March 21,1891, in a suit in equity wherein Grinberg & Morris were plaintiffs and Singerman & Rothman were defendants. Opinion states the case.

<p>Appeal from decree of circuit court of King William county, rendered May 22, 1891, in the chancery suit pending thereiu under the short style of Saunders & Son against Lipscomb and others. The decree being favorable to the defendants, C. A. Lipscomb and J. S. Moore, creditors of H. B. Lipscomb, the complainants, Saunders & Son, appealed. Opinion states the case.</p>

Argued at Wytheville. Decided at Richmond. Appeal from decree of circuit court of Bland county, rendered October 5, 1891, in a chancery suit wherein John R. Compton was complainant, and the administrator and heirs of Gordon C. Thorn, deceased, were defendants. The circuit, court having decreed against the complainant, he appealed. Opinion states the case.

A. Thomas, surviving partner of himself and Mrs. Ellen S. Stringfellow, late partners in the name, of W. A. Thomas & Co., was plaintiff, and the Virginia Fire and Marine Insurance Company was defendant, and in same against .Georgia Home Insurance Company, and in same against Western Assurance Company, and in two actions wherein same was plaintiff and the Morotock Insurance Company was defendant.

Error from judgment of circuit court of city of Lynchburg, rendered at its November term, 1893, in an action of trespass on the case for personal injuries wherein Archie B. Phelps was plaintiff and the Norfolk and Western Eailroad Company was defendant. The judgment being adverse to the company it brought the case here on error. Opinion states the case.

<p>Error to judgment of corporation court of the city of Norfolk, pronounced June 1, 1893, sentencing the plaintiff in error, Madison Brown, to be hanged for the murder of John Dollard, in that city, on the 7th day of April, 1893. Opinion states the case.</p>

Petition of John Bassitt in the original jurisdiction, of the court for a writ of habeas corpus. Opinion states the case.

S. Butler and others were complainants and L. A. Butler and others were defendants. The decree being adverse to the complainants, they appealed. Opiniou states the case.

C. Ward was plaintiff and the Norfolk and Western Railroad Company, the plaintiff in error, was defendant. Opinion states the case.

<p>Argued at Richmond. Decided at Wytheville.</p> <p>Error to judgment of circuit court of Clarke county, rendered December 6, 1892, in an action by the Berryville Land and Improvement Company against W. T. Lewis, to recover four assessments on the stock of said company which said Lewis had purchased from Samuel McCormick, the original subscriber therefor. Judgment being against Lewis, he brought the case here on error and supersedeas. Opinion states the case.</p>

Argued at Richmond. Decided at Wytheville. Error to judgment of circuit court of the city of Richmond, rendered November 25, 1891, in an action of trespass on the case in assumpsit, wherein Richard Gibson was plaintiff, and William H. Beveridge and Giles B. Jackson were defendants. Opinion states the case.

<p>Argued at Richmond. Decided at Wytheville.</p> <p>Error to judgment of circuit court of the city of Norfolk, rendered June 11, 1890, in a proceeding for a mandamus, wherein A. A. McCullough, plaintiff in error here, was petitioner, and W. W. Huuter, treasurer of the said city, was defendant. Opinion states the case.</p>

W. McKinney, Annie 0. McKinney, and R. 0. McKinney were defendants. The judgment being for the plaintiff', the defendants brought the case here on error. Opinion states the case.

<p>Error to judgment of circuit court of Lee county, refusing a writ of error and supersedeas to a judgment of the county court of said county, rendered April 20, 1893, whereby the plaintiff in error, Houston Myers, was sentenced to the penitentiary for five years for the murder in the second degree of John Lawson. Opinion states the case.</p>

Argued at Richmond. Decided at Wythe ville. Appeal from order of the judge of the hustings court of Danville, made April 8, 1892, in the suit of W. N. Ruffin against the Commercial Bank and others, and from decree of said court in said suit, rendered at its June term, 1892, dismissing the bill of the complainaut, who appealed to this court. Opinion states the case.

<p>Appellate Couej' — Decision—Conclusiveness.—Whatever is contained in the record on an appeal is supposed to have been passed upon, and whatever is passed upon here, and whatever might have been passed upon, in consideration of the record, is concluded and settled, and cannot be reopened by the lower court. Campbell v. Campbell, 22 Gratt., 640.</p>

Argued at Richmond. Decided at Wytheville. Error to .judgment of circuit court of Rockingham county, rendered October 28, 1892, in an action of debt, wherein the Milburu Wagon Company was plaintiff, and Emma S. Nise-warner was defendant. Opinion states the case.

Argued at Richmond. Decided at Wytheville. Error to judgment of circuit court of Madison county, rendered September 20, 1891, in an action of debt on a protested inland bill of exchange, wherein William R. Tyree was plaintiff, and Robert P. Lake was defendant. Judgment having gone against the latter, he obtained a writ of error and supersedeas from one of the judges of this court. Opinion states the case.

<p>Note. — See Knell v. Codman, 14 L. E. S., 806, and annotations as to agreements to pay money or give property after death of promissor.— Reporter.</p>

Argued at Richmond. Decided at Wytheville. Appeal from decree of circuit court of Clarke county, rendered May 18, 1893, in a suit for partition, wherein John W. McCormick and others were complainants, and John Stevens and wife and others were defendants. Opinion states the case.

<p>■ Note. — As to validity of acknowledgment of a deed of trust before one who is the trustee, see Rothschild v. Rougher, 16 L. R. A., p. 719, and annotations thereon. — Reporter.</p>

Argued at Richmond. Decided at Wytheville. Error to judgment of circuit court of Greene county, rendered at its June term, 1891, in an action of ejectment, wherein James Dowell was plaintiff and Stinton Shiflet and wife were defendants. The judgment being adverse to them, they brought the case here on error. Opinion states the case.

<p>1. Slander — Repetition—Evidence.—Under plea of not guilty in action for defamation, the defendant cannot introduce witnesses to prove that they heard the same slander.</p> <p>2. Idem— Verdict — Costs.—In such action the trial court had no power to enter judgment for five dollars only, where the verdict was for that sum and costs, but if the verdict was irregular, it should have been set aside and a new tidal awarded.</p> <p>3. Idem — Inadequate damages — Casé at bar. — A verdict for five dollars and costs will be set aside as inadequate in action of slander of a girl of unblemished reputation by false imputations upon her chastity for the purpose of injuring an opposing candidate for office.</p>

Argued at Eichmond. Decided at Wytheville. Error to judgment of corporation court of Danville, in an action of trespass On the case wherein Thomas B. Yeamans was plaintiif and the Eichmond and Danville Eailroad Company was defendant. The verdict and judgment being for the plaintiff, the defendant brought the-case here on writ of error and supersedeas. Opinion states the facts.

R. Sayers was plaintiff and Robert Sayers and N. P. Oglesby were defendants. The judgment being adverse to the plaintiff, he brought the case here upon a writ of error. Opinion states the case.

<p>1. Okiminal Proceedings — Witnesses—Competency.—At trial of one of two jointly indicted but electing to be separately tried, the other accused and his wife are competent to testify against the one on trial. Code, ? 3900.</p> <p>2. Appellate Practice — Demurrer to evidence. — This court will consider an assignment of error in the court below overruling motion for a new trial in the light of a demurrer to evidence, when not the facts but the evidence is certified.</p>

<p>1. Judicial Sales — Purchasers—Account of liens. — Purchasers under decree should not be required to take or pay for the property where it had been thrice sold without an account of liens and the title is uncertain.</p> <p>2. Idem — Bents and profits. — Where the bill fails to allege, and it is not proved, that the rents and profits will not within five years discharge the liens : held, error to decree sale.</p> <p>3. Idem — Previous sale. — Purchasers at such sale should not be compelled to complete their purchase where the land has been previously sold in another suit, and neither the sale nor the decree therefor has been set aside.</p> <p>4. Idem — Sale commissioner. — Owner of half of the judgment, to satisfy which the suit is brought to sell land, held incompetent to act as commissioner to sell.</p>

L. Abshire was plaintiff and Salina A. Tench and others were defendants, the object of which proceeding was the establishment of a road, under chapter 43 of the Code. Opinion states the case.

Sutton was complainant and Mrs. Martha G. Grant was defendant. The decree being adverse to her, she appealed. Opinion states the case.

Argued at Richmond. Decided at Staunton. Error to judgment of circuit court of the city of Richmond, rendered December 2, 1891, in an action of debt wherein A. L. Johnson, defendant in error here, was plaintiff, and the Richmond City and Seven Pines Railway Company was defendant. Opinion states the case.

<p>Argued at Wytheville. Decided at Staunton.</p> <p>Error to judgment of circuit court of Franklin county, rendered October 26, 1892, in a proceeding by motion wherein George M. Bright was plaintiff, and the Western Union Telegraph Company was defendant. The judgment being adverse to the defendant company, it obtained a writ of error from one of the judges of this court. Opinion states the case.</p>

Argued at Richmond. Decided at Staunton. Error to judgment of county court of Caroline county, pronounced December 15, 1893, in a prosecution against James Myers, plaintiff in error here, for a felony, a writ of error having been refused by the judge of the circuit court of said county. Opinion states the case.

Argued at Staunton. Decided at Richmond. Error to judgment of corporation court of the city of Char-lottesville, rendered September 30, 1893, on a motion of the Charlottesville Perpetual Building and Loan Company for the correction of certain alleged erroneous assessments of taxes, and for the refunding of certain taxes alleged to have been illegally exacted of the plaintiff on its capital stock.

W. Weisiger and others were plaintiffs and the Richmond Ice Machine Company and others were defendants. Opinion states the case.

<p>1. Ejectment — Evidence—Exceptions.—In such action plaintiff must establish in himself a legal title to the possession of the premises, and defendant may confine his evidence to disproving plaintiff’s pretensions, except that where defendant entered under plaintiff as tenant, &c., he cannot set up title in a third person.</p> <p>2. Idem — Case at bar. — The evidence here: held, as showing not only no title in plaintiff to the premises in controversy, but also that a survey of the boundaries of said premises made many years previous by the county surveyor, as the property of a third party, plaintiff was present and acquiesced.</p>

K. Antrim and wife against D. F. Kagey and others. The decree being adverse to the defendants, Witz, Beidler & Co. and others, they appealed. Opinion states the case.

The jury found a verdict of guilty^ and fixed the term of his imprisonment in the penitentiary at five years. Opinion states the case.

<p>Appeal from decree of the judge of circuit court of Montgomery county, rendered in vacation June 29, 1891, in a chancery cause wherein Mrs. Sallie A. Ronald and her husband, Charles A. Ronald, were complainants and the Bank of Princeton and another were defendants. The decree being adverse to the complainants they appealed. Opinion states the case.</p>

Smith, was complainant, and Louis Housman, Jr., and others were defendants. The decree being adverse to the complainant, as such executor, he appealed. Opinion states the case.

<p>Error to judgment of county court of Henry county, pronounced November 22, 1892, in a prosecution against the plaintiff in error for seduction; a writ of error. having been refused by the judge of the circuit court of that county. Opinion states the case.</p>

M. E. Kendrick, by her next friend, was complainant, and W. H. Aston, administrator de bonis non of A. W. Aston, deceased, was defendant. The decree being adverse to the defendant, he appealed. Opinion states the facts.

<p>1. Equitable Jurisdiction — Specific performance — Damages.—Equity may enforce specific performance of a contract to do on plaintiff’s property definite work, wherein he had a material interest, and there cannot be adequate compensation in damages ; and may also, as ancillary, award damages for a breach of the contract.</p> <p>2. Idem — Ouster.—Where the court has once acquired jurisdiction upon equitable grounds, no subsequent act of the defendants can oust that jurisdiction.</p> <p>3. Idem — Complete adjudication. — When a court of equity has once acquired jurisdiction, it may go on to a complete adjudication, even to the extent of establishing legal rights and granting legal remedies, which would otherwise be beyond the scope of its authority. Walters v. Farmers Dank, 76 Va., 12.</p> <p>4. Non-Residents — Judgments in personam. — Where non-resident defendants who have been proceeded against by publication under attachment, appear and defend on the merits, judgments and decrees in personam may be entered against them.</p>

E. Marshall was plaintiff and the Norfolk and Western railroad was defendant. The jury found for plaintiff and assessed his damages at $7,500, and judgment was entered accordingly; and the defendant brought the case here by writ of error. Opinion states the case.

<p>Appeal from decree of chancery court of city of Richmond, rendered December 13,1890, in a certain cause wherein Henry Bates and others were complainants and John P. George, M. B. Brown, and others were defendants. The decree being adverse to the defendants, they appealed. This cause is a sequel to the cause of Bates als. v. Brown £ als., 80 Va., 126. Opinion states the case.</p>

Lewis, whereby he was sentenced to pay three fines of $100 each and to be imprisoned in the county jail for the period of thirty days. Opinion states the case.

Slater, directed to his wife, Anne E. B. Slater, alleging that she had abandoned him and taken with her their three infant children, the eldest not being seven years of age, and was unlawfully and without his consent detaining them, and refused to deliver them up to him. The circuit court, by its judgment, ordered the. children to be surrendered to their father, and from said judgment their mother brought the case here upon writ of error. Opinion states the-case.

Chappell, deceased, were complainants, and Elizabeth Me. Trent and Edward T. Trent were defendants. The purpose of the suit was to annul the alleged will of the decedent. At the trial of the issue of devisavit vel non the jury brought in a verdict sustaining the will, and the complainants, (defendants in said issue) moved for a new trial, which being denied and a decree entered in accordance with the verdict, the said complainants appealed. Opinion states the case.

<p>Constitution — Construction—Laboring mora. — Clause 2, section 1, article XI, of the constitution of Virginia declares that the homestead exemption of a debtor shall not extend to any execution, order, or other process issued on any demand for services rendered by a laboring person or a mechanic: held, a mail carrier is a laboring person in the sense of the constitution.</p>