Volume 91 — Virginia Reports

This was a motion by the Commonwealth in the Circuit Court of Richmond, on the official bond of Peter B. Crowder, treasurer of Amelia county, bearing date June 23, 1887, against said treasurer, and the sureties on his bond.

<p>1. Chancery Practice—Injunction—Appeal.—An order which refuses to dissolve an injunction and to discharge a receiver, decides, in effect, that the property held by the receiver, is, for the present at least, in proper-hands, and to this extent it adjudicates the principles of the case. From such order an appeal may be taken.</p> <p>2. Chancery Practice — Injunction—Receiver■—Notice—Appeal.—Although notice should be given to the adverse party of an application for an injunction and the appointment of a receiver, except in cases of obvious necessity to prevent a failure of justice, yet, if upon a motion to dissolve the injunction and discharge the receiver, the court sustains its original order, this is equivalent to holding that, upon full notice and argument, the injunction ought to have been granted, and, on appeal, the decree awarding such injunction and appointing a receiver will not be reversed for the want of such notice in the first instance.</p> <p>3. Chancery Practice—Insolvent Debtor—Lien—Receiver—Rents.—A creditor having a lien on real estate of an insolvent debtor has the right, after his debt has become due, to have a receiver appointed to hold the rents of such real estate to supply any deficiencies which may exist after sale is made, and thus obtain a specific lien on such rents to pay such deficiency.</p> <p>4. Chancery Practice—Insolvent Debtor—General Creditors’ Bill—Separate Bills—Specific Lien.—Although a general bill may be pending to administer all of the assets of an insolvent debtor, who has made an assignment of his effects, yet an individual creditor, holding a specific lien on a part of the property of such debtor, may, before the maturity of the general bill to which he is made a party, but not yet served, file his separate bill for the enforcement of his specific lien, and the latter bill may be treated as a petition in the general suit, or, which is more common in Virginia, the two causes may be heard together and the rights of all parties settled and adjudicated.</p> <p>5. Appellate Proceedings—Supersedeas—Receiver.—A supersedeas is only intended to stay further proceedings, and to leave matters in the condition it finds them until the appellate court can hear the case and pass on the questions involved in the appeal. If a receiver is in the possession of property at the time the supersedeas is awarded, he is not thereby removed. Either party may move in the lower court for the appointment of a receiver, pending the appeal; or, if there he a receiver, he may apply to the court appointing him for its guidance and direction.</p>

<p>1. Multifariousness—Multiplicity of Suits.—A court of equity, in order to avoid a multiplicity of suits, and to have before it all persons interested in the subject of dispute, or to be benefited or injured by the decree, will, when necessary to attain the ends of justice, mould its pleadings with regard to substance rather than form, and will introduce new remedies, or modify the application of the old in order to meet the wants of society as they arise.</p> <p>2. Corporate Directors—Suit by Stockholder.—Where corporate directors or agents have committed a breach of trust, either by their fraud, negligence, ultra vires acts, or otherwise, for which they are liable, and the corporation is either unable or unwilling from any cause to institute a suit to redress the wrong, one or more stockholders, suing on behalf of themselves and other stockholders similarly situated, may institute a suit in equity to hold the offending officials liable. Such a suit, however, though brought in the name of a stockholder, is really the suit of the corporation, and enures to its benefit.</p> <p>3. Multifariousness—Misjoinder of Plaintiffs—Stockholders and Creditors.— Where a large number of persons have been fraudulently induced to become subscribers to a company by identical representations, they may unite in one bill, praying the cancellation of their subscriptions and make the offending company, and its officers and agents, through whom the fraudulent representations were made, defendants. But creditors of the company cannot be united in the same suit. Their rights and interests are not only diverse, but wholly antagonistic to those of the stockholders. There is an “irrepressible conflict” between the two classes, and if united in the same bill, it will be multifarious for misjoinder of complaints. Bosher v. Richmond and Harrisonburg Land Company, 89 Va. 455, distinguished.</p> <p>4. Multifariousness—Misjoinder—Corporate Officers.—A bill which charges various acts of maladministration against the officers of a company, some of which are attributable to individual officers, some to different groups of officers, and some to the president and directors as a whole, would seem to present a combination of causes of action so hopelessly diverse as to be incapable of adjustment in one suit.</p> <p>5. Multifariousness—Double Aspect—Stockholders—Rescission—Misjoinder of Causes of Action.—A bill may be framed in a double aspect, but the alternative case stated must be the foundation for precisely the same relief. Stockholders who come into a court of equity and seek to have their contracts of subscription rescinded on the ground that they were fraudulently obtained, cannot in the same bill complain of the malfeasance and misfeasance of the corporate directors in the management of the corporate property, and seek relief which rests upon their relation as stockholders of the defendant company. Such relief must be considered a distinct act of affirmance and ratification of the very transaction which they, in another part of their bill, sought to repudiate.</p>

<p>1. Resulting Trust—Parol Evidence.—A resulting trust may be established by parol evidence, or even by circumstances, but the facts in all such cases must be proved with great clearness and certainty. Loose and equivocal expressions will not be allowed to control the evidence of deeds. The evidence must be full, clear, and explicit.</p> <p>• 2. Resulting Trust—Husband and Wife.—A resulting trust will not be established in favor of a wife against her husband, where her case rests simply on the presumption arising from the receipt and possession of her money and property by him, and in the absence of proof that her estate was used in paying for property conveyed to him.</p> <p>3. Resulting Trust—Husband and Wife—Separate Estate.—Where the wife permits her husband to receive her legal separate estate and use it as his own, with her full knowledge and acquiescence, without complaint on her part, and without exacting any promise of repayment or return, and thus enables him to contract debts on the faith and credit of it, the law does not imply a promise of repayment, but presumes a gift by the wife to the husband.</p> <p>4. Record Title—Purchaser—Resulting Trust.—Where the record title of real estate is in the husband, and there is nothing to show or suggest any right or claim to it in the wife, and the husband executes a deed of trust on the land to secure creditors, the trustee and beneficiaries, in the absence of notice of any claim of the wife, stand as bona fide purchasers, for value, and will be protected against any claim of the wife to have a resulting trust declared in her favor.</p> <p>5. Mistake of Law—Married Women.—A court of equity will not grant relief from a mistake of law. Ignorance of the law is no excuse, and this rule applies to married women with reference to their separate estates.</p>

<p>1. City Charter—Powers—Bridge—Approaches.-—The grant to a city by its charter of power “to close or extend, widen or narrow, lay out, graduate, curb and pave, and otherwise improve the streets, sidewalks, and public alleys in said city,” and also to “build bridges in and culverts over said streets ” is a sufficient grant of authority to build an approach to an elevated bridge in its streets. The approach is but the grading of the street to adapt it to the use and need of the public.</p> <p>2. City—Public Agent,—Liability for Damages.—A city, acting within its charter powers in improving its streets, is the agent of the State, and is not answerable for consequential damages, where the work is done with care and skill, and does not actually encroach upon private property.</p> <p>3. Streets—Grading—Servitude—“ Taking”—Article V. Const. Section 14-— The building of an approach to an elevated bridge in the streets of a city, leaving a space of about seven and one-half feet on each side, for the convenience of the public or adjacent owners, when there is no actual encroachment on the property of the abutting land owner, does not create any additional servitude on the land, and is not a “ taking ’’ of private property, within the meaning of Article V., section 14, of the Constitution of Virginia, though the use of the property may be thus impaired. The resulting damage, if any, is damnum absque injuria.' And it is immaterial whether the fee in the street is in the city, the State, or the abutting land owner.</p> <p>4. City Charter—Public Improvements—Letting Contracts.—-The provision of a charter which requires all contracts for the erection of public improvements or buildings to be let to the lowest responsible bidder, does not inhibit the city from constructing public buildings or improvements under the direction of its own engineers or officers, but applies only to such buildings or improvements as are let to contract.</p>

<p>1. Construction or Statutes—Omitted Words Supplied—Married Women’s Act, 1878.—Statutes must be interpreted according to their intent and meaning, and not always according to the letter. And, while courts should not depart from the letter except where the duty is plain, yet, if the omission of a word makes the whole act incongruous and unintelligible, and leads to absurd results, and it is manifest that the omission was an inadvertence, and the omitted word can be readily supplied from the context, it is the plain duty of the court to supply the omission. Applying this rule to the act of Assembly, approved March 14, 1878, commonly called the Married Women’s Act, the word “ not” should be inserted in line 16 of section 2, immediately in front of the words “ n conflict.”</p> <p>2. Equitable Separate Estates—Curtesy.—Where a wife has an equitable separate estate, of which she has the power of disposition by will, which power she exercises, the surviving husband is not entitled to curtesy, though all the common-law requisites therefor exist. Chapman v. Price, 83 Va. 392, approved.</p> <p>Lease—Death of Tenant.—Where a tenant dies pending a lease, the lease continues the property of his estate, and the estate of the tenant is liable for the rent contracted to be paid'; and, while the landlord may sue out a distress warrant against the under tenant, if any, yet he is not obliged to do so, and his failure will not release the estate of the tenant.</p>

The Transparent Ice Company of Roanoke city purchased a lot in the city of Roanoke on which to erect its plant. It paid part of the purchase money in cash, and gave a deed of trust on the lot to secure certain deferred payments.

<p>Opinion states the case.</p>

The record certified to this court by the clerk of the Circuit Court of the city of Petersburg contains the following certificates of the clerk of that court: “Beit remembered that heretofore, to-wit: in the clerk’s office of the Circuit Court for the county of Powhatan on the 2nd day of January, 1891, cameWm. M. Flanagan and Robt.

Lynch against Dorsie Lynch and others. The facts of this case appear in the opinion of the court, but the clause of the will referred to in the opinion is not set out in full. It is as foIIoavs: ££ Sixth. I give to my two grandchildren, Wm.

The bill did not waive an answer under oath. The defendant answered under its corporate seal, with the affidavit of its president attached. The other facts fully appear in the opinion of the court.

<p>1. Subrogatio'n—Deed of Trust—Additional Security.—A surety who was not originally bound for the debt, but who comes in during the prosecution of a remedy against the principal for the debt, cannot, by subrogation, obtain a preference over the creditor of the principal whose debt is secured by a lien which attached before the surety became bound. So, where a debt is secured by a deed of trust, and the debtor afterwards gives a negotiable note with accommodation endorsers, as additional security for a part of the debt, and the endorsers pay the note, they cannot be subrogated to the rights of the creditor to his detriment in the collection of the residue of his debt.</p> <p>2. Subrogation—Doctrine.—The doctrine of subrogation is of purely equitable origin and nature, and its operation is always controlled by equitable principles. It is never enforced so as to defeat or interfere with a superior or equal equity of third persons, or with the legal right of third persons growing out of an express contract.</p> <p>3. Change oe Contract—Release of Surety—Extension of Tim.e—Reservation of Rights.—Any change of the contract by the principal, however slight, without the consent of the surety, releases the latter from all further liability. And where extension of time of payment is given to the . principal, without the consent of the surety, in pursuance of a binding legal contract, the surety is at once released from his obligations. But if, in.the contract for extension, all the rights and remedies of the surety are preserved unimpaired, so that he has the same rights and remedies after the contract as before, the surety is not discharged.</p>

<p>1. Bill op Exceptions—Office of—Allegation of Error—Evidence—Several Objections in One Bill.—It is the office of a bill of exceptions to set forth a specific and definite allegation of error, and so much of the evidence as is necessary to a clear apprehension of the propriety or impropriety of the ruling made by the court, and if it fails to do this the exception will prove unavailing. Two or more objections may be saved by the same bill, provided they are distinctly set forth with the necessary circumstantiality, and not confused with one another. But the better practice is to take a separate bill for each objection.</p> <p>2. Bes Judicata—Construction of Records by Court of Appeals.—When this court has construed the legal character and effect of certified copies of entries in certain public records, which involves the construction of the records themselves, such construction is res judicata in this court and all the courts of this State, and an instruction which gives to such entries any other or greater effect is erroneous.</p> <p>3. Evidence—Books of Register of Land Office—Patents—Colonial Records.— Entries in the books of the office of the Begister of Land Office, labelled “Patents,” without signature or seal, are not patents, nor grants, but are admissible in evidence as “colonial records,” tending to prove that proceedings had been taken looking to the execution and issuing of a grant, to be followed, if possible, by evidence tending to show that the g’-ant so contemplated and begun was actually executed, issued, and delivered.</p> <p>4. Ejectment—Patent from, Commonwealth—Previous Grants—Adversary Possession.—In an action of ejectment, a valid patent from the Commonwealth to the plaintiff is prima facie evidence of title in the plaintiff, with the right of immediate actual possession, and can only be defeated by an adversary possession under coloror claim of title for the statutory period, or by showing a previous valid grant by the Commonwealth to the defendant or to a third person, or a state of facts from which such patent may be presumed.</p> <p>5. Ejectment—Boundaries—Expert Testimony.—In an action of ejectment, the question whether the land in controversy is within the boundaries claimed by the plaintiff’s declaration is a question of fact upon which witnesses may state their knowledge, but upon which experts may not express opinions. On such question expert testimony is not admissible.</p>

This was a motion before the Circuit 'Court of the city of Richmond by the Commonwealth against E. C. S. Hunter, treasurer of King George county, and R. H. Stuart and others, sureties on his official bond as such treasurer, to recover a judgment for $3,119.42, with interest. On the trial of this motion the defendants, severally, filed a number of special pleas, all of which were rejected by the Circuit Court.

<p>1. Mutual Insurance—Assessment—Evidence.—In an action upon a policy of insurance in a mutual life insurance company, the by-laws of which company provide “ that no question shall be raised as to the right to make, or necessity of, any mortality assessment made under any certificate of membership, except in the life-time of the member, and within six months from the time when same was made,” it is not competent for the plaintiff, after the death of the member, to offer .evidence for the purpose of raising such question.</p> <p>2. Mutual Insurance—Forfeiture — Waiver—Estoppel—Indulgence.—In an action on a policy in a mutual life insurance company, which, according to its terms, has become forfeited, by reason of failure to pay assessments, if the plaintiff relies upon a waiver of such forfeiture, or upon an estoppel to assert it, it is not sufficient, in order to overcome such forfeiture, to show former indulgence to the insured, when it appears that he knew when his assessments fell due that his policy stood forfeited for failure to pay, and that his restoration to membership was granted as a favor to him, upon a proper certificate of unimpaired health; nor is it sufficient to show former indulgence to other members of which plaintiff’s intestate had no knowledge.</p> <p>3. Instructions—Abstract Legal Propositions.—-Instructions which announce mere abstract propositions of law, however correctly, should not be given when there is no evidence in the case upon which such instructions could be predicated.</p> <p>4. Mutual Insurance Policy—Forfeiture—Waiver—Instructions—Harmless Error.—Provisions inserted in an insurance policy, in pursuance of the charter and by-laws of the company, which work a forfeiture of the policy upon certain conditions, are so inserted for the benefit of the company, and, it seems, may be waived by the company; and though an instruction was given, which denies the power of the company to make such waiver, yet, if the verdict of the jury, upon the facts, appears to be plainly right, this court will not reverse the judgment of the lower court, on account of such erroneous instruction, as the plaintiff was not prejudiced thereby.</p>

action of trespass on the case wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.

<p>Appeal from a decree of the Circuit • Court of Eockbridge county, pronounced March 20, 1893, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

This was an action of trespass on the case instituted in the Corporation Court of Buena Yista by George W. Nuckols, administrator of George Yolney Nuckols against the Norfolk and Western Eailroad Company, to recover damages for the death of the plaintiff’s intestate, which was alleged to have been occasioned by the negligence of the defendant.

<p>Appeal from a decree of the Circuit Court of Pulaski county, pronounced August 17, 1894, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants.</p>

Writ of error to a judgment of the Circuit Court of Patrick county, rendered March 24, 1893, in an action of ejectment wherein the plaintiff in error was the plaintiff and the defendants in error were the defendants. This was an action of ejectment instituted in the Circuit Court of Patrick-county by G-.

The policy in suit was issued by the plaintiff in error August 3, 1892, to George E. Sipe, General Eeceiver of the Circuit Court of Eockingham county. The policy was for the period of one year, and covered certain real and personal property known as the Harrisonburg Ice Manufactory.

On the 29th day of April, 1882, the Virginia Manganese Company enteied into a conta act under seal with James B. White, Myron C. Davis and S. M. Donald, by which the company leased and demised to the above-named persons a certain manganese mine and certain quarries, beds, and a tract of land, “to bold and exercise the said mine, quarries, beds and seams of manganese ore * * * unto the said lessees from the first day of May, in the year eighteen hundred and eighty-two, for…

This was a suit in chancery instituted in the Circuit Court of King William county by Thomas F. Waring and Ella F. his wife, who, before her marriage, was Ella F. Bosher, against the administrator, with the will annexed, of William Bosher, deceased, and others.

This was a creditors’ bill filed by Wm. G. Kiger, suing on behalf of himself and all other creditors of James 33. Taylor, deceased, against the personal representative and heirs of said Taylor. Pending the suit, there were- several references to commissioners to take accounts of debts against the estate of said Taylor, and also to make enquiries as to his real estate, and its fee-simple and annual rental value.

<p>Appeal from two decrees of the Circuit Court of Franklin county, pronounced respectively, May 19, 1892, and October 27, 1892, in a chancery suit wherein appellants were the complainants, and the appellee was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Page county, rendered April 21, 1894, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Attachment—Regularity of Proceeding.—The remedy by attachment against the estate of a non-resident is wholly statutory, harsh in its operations towards the debtor and his creditors, and the proceeding must show on its face that the requirements of the statute have been substantially complied with.</p> <p>2. Attachment—Irregularity of Proceedings—Non-Resident.—Objections to the regularity of attachment proceedings may be taken advantage of, not only in the trial court, but in an appellate court, although not raised in the trial court; and the court may, ot its own motion, dismiss an irregular attachment, and ought to do so when there has been no appearance by the non-resident debtor, and no personal service upon him.</p> <p>3. Attachment—Return Day.—An attachment sued out under sections 2964 and 2965* of the Code, in November, 1892, and made returnable to Rules is invalid. Craig v. Williams, 90 Va. 500, and Grinburg v. Singerman, 90 Va. 657, approved.</p>

Petition for an appeal from a decree of the Circuit Court of Brunswick county, in a suit in chancery, wherein the petitioners were the complainants and the Board of Supervisors of Brunswick county and others were the defendants.

<p>1. Trustees—Attorneys Fees—Payment out of Trust Fund.—Trustees, who in good faith engage counsel to aid them in the execution of the trust, are entitled to pay them out of the trust fund, or to be reimbursed out of that fund for all expenses which they have incurred, including reasonable attorneys’ fees. Upon the evidence in this case, the attorneys’ fees were properly paid out of the trust fund.</p> <p>2. Trust Fund—Payment into Court—Interest.—Where a trust fund has been paid into court by a purchaser of the trust property, but, in consequence of resistance to the payment of proper charges on the fund, it has remained idle in the hands of the court, the loss of interest must fell on the trust creditor who has resisted the charge.</p> <p>3. Trust Fund—Loan to Trust Creditor—Payment.—Where a trust fund is loaned to the trust creditor pending litigation over charges on the fund and its distribution, and on final settlement it is ascertained to belong to such creditor, and is not sufficient to pay his debt, the transaction should be treated as a payment on the debt as of the date of the loan, and not as a loan.</p>

The action was brought in the name of “Henry M. Marshall, who sues as well for himself as the other heirs of James Marshall, deceased.” The defendant pleaded “not guilty,” and the act of limitations. The evidence did not disclose the number of the heirs of James Marshall, their degree of relationship, or the extent of their interests. The record fails to disclose the extent of the plaintiff’s interest in the land in controversy.

<p>1. Partnership—Powers of Partners Before and After Formation.—Prior to the actual existence of a partnership, though one be in contemplation, there is no implied power in one partner to bind the firm. That agency only arises when the partnership is actually in existence, and is then limited to matters necessary to the business of the firm in the ordinary way. Nor can one partner after the partnership is formed pledge the credit of the firm to raise his input of its capital unless specially authorized to do so. This is not among his implied powers.</p> <p>2. Partnership—Inability on Note of One Partner for input—Burden of Proof.—A note made by one partner and endorsed by another, in order to raise money for the input of the maker, is not the debt of the firm unless there was previous authority thus to bind the firm, or there has been a subsequent ratification of the transaction by the firm; and the burden of proof is on the holder to show such authority or ratification. In the case in judgment this has not been shown.</p> <p>3. Partnership—Credit to One Partner—Election—Public Partnership—Dormant Partner.—If credit is extended to one member of a partnership which is public, he alone is liable, even though the money, property, or other contract, is for the use and benefit of the firm, or is applied thereto. This is because the creditor has elected to take the individual security, and he will be held to his election. But if no partnership was known to exist, or if there were dormant partners, the firm will be liable for the acts of the partner done within the scope of his authority—that is, necessary for the conduct of the partnership in the ordinary way ; otherwise, the measure of the liability of the dormant partner is the same as if he had been a known partner—-he is liable for the debts of the firm, not for those of the individual partners.</p> <p>4. Partnership—Avowed Partners—Dormant Partners—Section 2877 of Code.— Section 2877 of the Code does not apply to an avowed partnership of two or more persons doing business under a name which shows that it is in fact a partnership, and discloses full names of at least two of the. partners. If there are other partners whose names are not thus disclosed, they will be liable as general partners, when avowed or discovered. But even if the statute did apply, the trader whose assets are liable for his debts is the firm which thus held itself out as the owner of the assets.</p>

<p>Error to a judgment of the Ciicuit Court of the city of Eiehmond, rendered January 8, 1891, in action of trespass on the case wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

Langhorne, an infant fifteen years of age, who sues by Jennie R. Langhorne, his next friend), was the plaintiff, and the defendants in error were the defendants.

<p>1. Wu~i~s-Construction-"And "for "or "-Heirs-Vested remainder.-A testator by his will devised real estate to his wife for life. By a subsequent clause of his will he devised other real estate to his son, Edward M., and his daughter, Sarah, "to them and their heirs forever, to be equally divided between them." Then follows a clause in the following words: "At the death of my said wife, Maria Updegraff, I direct that the remaining portion of my estate shall be equally divided among the said Edward H. Hatcher, Henry C. Hatcher and Sarah E. Claric, or their heirs, respectively, upon which final division the said Edward H. Hatcher and Sarah E. Clarl~ shall account to the said Henry C. Hatcher for one-third part of the real estate herein devised to them, respectively, the value thereof to be estimated as of the date of which they may come in possession of the same."</p> <p>HELD:</p> <p>The last clause of the will created a vested remainder in Edward M., which took effect immediately upon the death of the testator, but the full enjoyment of which was postponed until the death of the first taker, the wife of the testator. The word "or" should be read "and," and the word "heirs" given the usual and legal signification.</p> <p>2. WILLs-Construction- Words of Survivorshi~ after a Life Estate.-It is established law in Virginia, that after a bequest of an estate for the life of the first taker, words of survivorship in a will are always to be referred to the period of the testator's death, when no special intent appears to the contrary.</p>

This was a suit in chancery to enforce two mechanic’s liens. No question was raised, as to the sufficiency of one of the accounts.

This was a bill filed to enjoin the sale of two tracts of land claimed by the complainant. The facts suificiently appear in the opinion of the court.

<p>1. Guardian and Ward—Removal of Effects of Ward Out of State—Ex Parte Application—Notice.—The ex parte application of a foreign guardian, under sections 2629 and 2630 of the Code, for the removal of the effects of his ward out of the State, is a separate and distinct proceeding from a suit by a creditor to administer the assets of the estate of the ward’s deceased ancestor. The object of the notice required by the section is to enable parties to be affected by such removal to appear and protect their interests, and, if need he, prevent the removal.</p> <p>2. Chancery Practice—Amendment or Alteration of Decree During the Term. Until the court adjourns for the term, no one, unless expressly authorized to do so, can act under a decree or judgment entered at that term, except at his peril. During the term all the proceedings are in the breast of the court, and under its control, and liable to be stricken out, altered or amended during the term, and that without notice to the parties. Parties to the suit are conclusively presumed to have known any modification made at a subsequent day of the term, of a decree entered at a former day.</p> <p>3. Chancery Practice—Petition by Party or Receiver.—A party in interest, or a receiver, may file his petition in a suit in which he is such party, or was appointed receiver, in order to bring to the attention of the court facts affecting his interest, and to ask the court to protect such interest.</p> <p>4. Guardian—Jurisdiction over Foreign Guardian.—Although, as a general rule, a guardian cannot be sued as such out of the jurisdiction in which he qualified, yet if a non-resident guardian invokes the aid of a domestic court, he is bound by the decrees made in the proceedings instituted by him, and if found within the jurisdiction of said court, may be proceeded against therein to enforce such decrees.</p> <p>5. Chancery Practice—Infants—Parties.—Infants are necessary parties in a proceeding in which their interests are to be affected, and it is error to pass upon their rights in a proceeding to which they are not parties.</p> <p>6. Homestead—Guardian of Non-Resident Infants—Transferring Effects Out of State—Receiver.—Where the guardian of non-resident infant children of a deceased father, wrho was a citizen of this State and to whom a homestead in money had been set apart, asks to transfer said money out of the State, it is proper for the court to appoint a receiver to take charge of the funds and invest them, so that the principal money may he forthcoming when the youngest of such children attains the age of twenty-one years.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county, pronounced July 30, 1891, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants.</p>

John Wayman, trustee, and others filed their bill in the Circuit Court of Fauquier ccunty against the heirs of James Colbert and others, for the purpose of having an account of debts of said Colbert, and their relative priorities, an account of the real and personal estate whereof said Colbert died seized and possessed, the fee-simple and annual rental of said real estate, and to subject said real and personal estate to the payment of said debts.

, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. This was an action of assumpsit on an open account. The declaration contained only the common counts; and the amended bill of particulars specified each item of debit and credit in English money, followed by the sign = and its value in current money, thus: £99 1 10 = $481.55.

This was an action of debt on two notes. The defendants pleaded payment, and also tendered two special pleas, which were received by the court over the objection of the plaintiffs; thereupon the plaintiffs replied specially to each of said special pleas, and the defendants demurred to each of said special replications, which demurrer the court sustained, and entered up judgment for.the defendants.

Argued at Bichmond. Decided at Wytheville. Appeal from two decrees of the Circuit Court of Loudoun county, one pronounced May 2, 1891, and the other Jauuary 19, 1892, in a suit in chancery wherein the appellee, Virginia H. Tyler, who sues by H. A. Hall, her next friend, was the complainant, and the appellant, Armistead T. M. Filler and others, were the defendants.

Argued at Bichmond. Decided at Wytheville. Appeal from a decree of the Circuit Court of the city of Alexandria, pronounced February 27, 1892, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.

Argued at Richmond. Decided at Wytheville. Error to a judgment of the Corporation Court of the city of Norfolk, rendered October 31, 1893, in an action of ejectment wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.

<p>1. Assignment not under Seal—Statute of Limitations—Laches—Presumption of Payment.—The claim of the complainant was based on a written assignment of a bond, which assignment, not under seal, was made about July 16, 1875. Suit was instituted on this assignment in 1889.</p> <p>Held :</p> <p>Under the peculiar language of the assignment, and the facts and circumstances of this case, the claim of the complainant is not barred by the statute of limitations, neither has there been such laches on his part, nor was the condition of the parties and their relations to each other such as to raise the presumption of payment.</p>

<p>Appeal from a decree of the Circuit Court of Loudoun county, pronounced January 22, 1892, in a chancery suit wherein the appellee, Thompson’s Administrator was the complainant, and the appellant and others were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Bedford county, pronounced January 5, 1893, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant. This is an action for libel in writing the letter set out in the opinion of the court. The defendant demurred to the declaration, and the demurrer was overruled, and thereupon the defendant pleaded “not guilty” and “justification.” Upon these pleas issue was joined, and there was a verdict and judgment for the defendant.

<p>1. Expulsion op Passengers—Damages—Compensatory—Punitive.—A passenger who is unlawfully expelled from a railroad train by the conductor thereof is entitled to recover damages therefor of the company. If the expulsion, though unlawful, did not proceed from any ill motive, and was not rudely or recklessly done, nor in such manner as to evince malice or a conscious diregard of the rights of others, and was simply the result of a mistake, the passenger cannot recover punitive damages, but only compensation, and, on the evidence certified, his damages should be limited to compensation for the inconvenience, delay and fatigue to which he was put, and a suitable recompense for the injury done to his feelings, in being expelled from the train.</p> <p>2. Damages—Actual or Compensatory—Exemplary or Punitive.—Actual or compensatory damages are the measure of the loss or injury sustained, while exemplary or punitive damages are something in addition to full compensation, and something not given as his due, but for the protection of the public. The law awards the former only where in the unlawful act there is an absence of intentional wrong, fraud, or malice, or the act is not oppressively or recklessly committed; while the latter are given where the wrongful act is done with a bad motive, or with such gross negligence as to amount to positive misconduct, or in a manner so wanton or reckless as to manifest a willful disregard of the rights of others.</p> <p>3. Instructions—No Evidence to Support.—Where there is no evidence to support an instruction asked for, which is a matter to be determined by the court, it should not be given.</p> <p>4. Master and Servant—Damages—Unlawful Act of Servant—Tortious Act— Ratification.—A master is liable to the extent of compensatory damages for the unlawful act of his agent committed in the course of his employment, whether ratified or not. But in an action to recover exemplary damages of the master, for the tortious act of the servant, ratification of the master must be shown.</p>

The following declaration was filed: In the Circuit Court of Roanoke city. Held: and was in possession of a certain tenement, consisting of the bar-room and dining-room of the Exchange Building, corner of Jefferson street and Salem avenue, in the city of Roanoke as tenant thereof, and the said defendants contriving and wrongfully and injuriously intending to harrass, oppress and injure the plaintiff, on the said…

<p>Error to a judgment of the Circuit Court of the city of Roanoke, rendered May 19, 1894, in a proceeding by motion, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

M. Berry, was the complainant, and the appellants were the defendants, and in the other, the appellants were the complainants, and the appellees were the defendants.

<p>1. Chancery Jurisdiction-—Specific Performance—Contract to Build a Railroad.—-A court of equity cannot specifically enforce a contract to build a railroad, or to procure a railroad to be built by others. And where the chief object of a contract is to secure the building of a railroad, and one of the parties stipulates that upon failure to build such a railroad he ' will pay a sum certain in money, or will transfer and deliver certain stock, a court of equity will not entertain a bill to enforce the transfer of the slock.</p> <p>2. Chancery Jurisdiction-—Specific Performance—Penalty—Forfeiture—Liquidated Damages.—Upon the case stated, if the payment of the money, or the transfer of the stock be regarded as a penalty, or as a forfeiture, a court of equity will not enforce it; if as liquidated damages, then a full, adequate, and complete remedy is afforded at law, and equity has not jurisdiction.</p> <p>3. Chancery Jurisdiction—Specific Performance—Penally—Forfeiture—Liquidated Damages.—-In proper cases, where parties have no other adequate remedy, a court of equity will specifically enforce contracts, but it will neither enforce a penalty or a forfeiture, nor permit it to be enforced in a court of law ; nor will it permit a party, by the voluntary payment of the agreed penalty, to defeat the enforcement of the alternative contract.</p> <p>4. Chancery Jurisdiction—Damages—Ancillary Relief.—A court of equity will not entertain a suit merely for the recovery of damages, nor will it undertake to give damages, save as ancillary or auxiliary to some one of its recognized subjects of jurisdiction, and then only such damages are awarded as may be necessary to do full and complete justice by way of compensation.</p> <p>5. Chancery Jurisdiction—Forfeiture—Penalty—liquidated Damages.—In (jases of doubt whether the provisions of a contract constitute a forfeiture, a penalty, or liquidated damages, courts of equity strongly incline to that construction which declares it to be a forfeiture, or a penalty, rather than liquidated damages. For if it be construed as a forfeiture or a penalty, it will entertain jurisdiction to prohibit either the enforcement or the voluntary payment of the penalty or forfeiture, and will compel the performance of the alternative contract, if a proper case be made; but if it be construed as liquidated damages the jurisdiction of the court of equity is at an end.</p>

This was a proceeding by motion under section 3211 of the Code, to recover a judgment against the defendant on two negotiable notes for the sum of $200 each, subject to a credit for $200.15 endorsed on one of the notes.

This was an action of trespass on the case, in the Circuit Court of Russell county, brought by Jack Carter against the Norfolk and Western Railroad Company to recover damages alleged to have been committed by the defendant company on the lands of the plaintiff. The evidence sufficiently appears in the opinion of the court. The following are the instructions referred to and commented on in the opinion of the court: Plaintiff’s instructions second and third: “Secohd.

<p>Error to a judgment of the Circuit Court of Smyth county, rendered April 10, 1893, in an action of trespass on the case, wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Smyth county, rendered March ~9, 1894, in action of c8SIJ4'fl428'it wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

This was an action to recover damages for a breach of covenant. The plaintiffs had contracted to construct a tunnel and do other work for the defendant, and the parties disagreed as to the price to be paid per cubic yard for certain portions of the work.

<p>1. Usury—Negotiable Paper—Bona fide holder for Value—Burden of Proof. Since the passage of the act now embodied in section 2818 of the Code, which declares that usurious contracts shall be deemed to be for an illegal consideration, as to tbe excess beyond the principal sum loaned or forborne, the plea of usury cannot be sustained in an action on negotiable paper brought by a bona fide holder for value, who acquired the same before maturity in due course of trade. The only effect of such plea is to cast the burden of proof on the plaintiff to show that he is such holder; when he has shown this he is entitled to recover.</p>

<p>Error to a judgment of the Circuit Court of Washington county, rendered October 9,1894, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Satisfaction—Collateral Agreement Partly Performed—Compensation. Where a debtor has agreed to do a collateral thing in satisfaction of his bond to his creditor, and dies after having partially performed the agreement, the bond should not be treated as paid, but the debtor should have credit thereon for the money paid, or the value of the services rendered in pursuance of the agreement.</p>

<p>1. Master and Servant—Safe Machinery—Mismatched Couplings not Negligence per se.—-A master is bound to observe all the care which the exigencies of the situation reasonably require in furnishing machinery adequately safe to be used by the servant. But the use of cars of unequal heights and mismatched couplings in the same train is not negligence per se in furnishing safe machinery.</p> <p>2. Negligence—Proximate Cause—Fellow Servant—The proximate cause of the injury in this case was the negligent driving back of the train a second time by the engineer or fireman of the train, who were the fellow-servants of the brakeman injured, and hence the company is not liable.</p> <p>3. Negligence—How Proved—Burden of Proof.—Negligence may be proved by circumstantial evidence as well as by direct testimony, but the burden of proof is on the party, alleging the negligence. The evidence in this case, considered as on a demurrer to the evidence, fails to establish the negligence of the defendant.</p>

<p>1. Usury—Penalty—Above Legal Rate After Maturity.—-A bond payable more than two years after date, without interest till maturity, but with interest at eight per cent per annum, after maturity, is not usurious on its face. The excess above the legal rate is regarded as a penalty, and not as usury. A deed of trust to secure such bond, given after its maturity, and extending the time of payment thereof, is not usurious, but furnishes security for the bond and only legal interest thereon until paid.</p> <p>2. Usury—Quasi Penal Offense—Proof to Establish.—A debt to be usurious must be so in the beginning. It cannot be made so by subsequent events. Where the debtor, by punctual payment of the debt, may relieve himself of the illegal interest stipulated for, it is not usury. Usury is a quasi penal offense, and, to avail as a defense, must be established beyond a reasonable doubt.</p> <p>3. Usury—Bill to Discover—Effect of Answer.—Where the debtor calls on the creditor to answer under oath and discover usury, the answer of the creditor under oath, when responsive to the bill, must be accepted as true, in the absence of other evidence sufficient to overcome such answer.</p>

This was an application to the court by Daniel W. McKinney for a writ of mandamus to compel George T. Peers, clerk of the County Court of Appomattox county, and as such ex officio clerk of the Board of Election Commissioners for said county, to issue to the petitioner a certificate of his election as a Justice of the Peace for Southside Magisterial District in said county, at the election held in said county May 23, 1895. The opinion states the case.

« This was a bill in equity by Dale 0. Stuart against S. P. Pennis to enforce the specific execution of the following contract : “Bought of Mr's. S. P. Pennis all poplar timber between her residence and Mrs. E. C. Carter’s and between the Meade road and Jesse’s Mill road and running with the top of Copper Bidge, and measuring 24 inches in diameter inside of the bark and up, and as much as thirty-two feet of merchantable timber at three dollars per tree, and all other poplar…

This was a suit in chancery instituted in the Circuit Court of Russell county, by Sarah P. Thomas against William A. Stuart and others. The object of the suit was to have dower assigned to the complainant in certain lands of which her husband, T. P. Thomas, -was seised during the coverture; to have certain clouds removed from the title of other lands claimed by her; and to have an account taken of the rents and profits of said lands.

<p>Error to a judgment of the Circuit Court of Smyth county, rendered March 26, 189é, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

This was a suit in chancery instituted in the Circuit Court of Washington county by M. J. Ashworth against the National Mutual Building and Loan Association of New York and Wm.

<p>Appeal from a decree of the Circuit Court of Wythe county, pronounced at September term, 1890, in a suit in chancery wherein the appellants were the complainants, and the appellee was the defendant.</p>

<p>Criminal Law—Habeas Corpus—Dismissal of Indictment—Jeopardy—Delay in Indictment—Delay in Trial—Repeal of Statute giving Jurisdiction.— A prisoner was arrested and committed to jail on November 8, 1893, on a warrant of a justice of the peace, charging him with murder. At the next succeeding term of the County Court he was indicted for the murder, and upon arraignment elected to be tried in the Circuit Court, which met in the same month. At the November term, 1893, of the Circuit Court the case was continued for the Commonwealth. At the riext succeeding term of the Circuit Court in May, 1894, the Circuit Court dismissed the case, of its own motion, in the absence of the prisoner and against his objection, for want of jurisdiction, but without prejudice to the Commonwealth to arrest, indict, and try him for the same offence. He was immediately arrested and confined in jail, upon a new warrant of a justice of the peace, charging him with the same offence. At the next term of the County Court, June, 1894, he was again indicted for the same offence. At the same term of the County Court, upon the calling of the case, he tendered a number of special pleas, which were rejected. He then pleaded “Not guilty,” and the case was continued and he was remanded to jail. Thereupon he sued out a writ of habeas corpus, alleging that he was illegally detained, and prayed to be discharged.</p> <p>Held :</p> <p>1. The order of the Circuit Court dismissing the indictment could not operate as an acquittal. If the Circuit Court had jurisdiction to try the case, the order of dismissal had the same effect as if the indictment had been quashed, or a nolle prosequi entered. It ended that indictment, but did not acquit the prisoner of the offence charged. If the Circuit Court had no jurisdiction it could enter no order which would benefit or prejudice the prisoner, or the Commonwealth.</p> <p>2. The prisoner was not “ twice in jeopardy ” for the same offence. He has never been put upon his trial for said offence, and no jury has ever been charged with his deliverance. In order to show former jeopardy, it must appear that the party was put upon his trial before a court which had jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and that a jury was empaneled and sworn, and was thus charged with his deliverance.</p> <p>3. The prisoner is not entitled to be discharged from imprisonment, under section 4001 of the Code, because he was under indictment during the whole time the case was pending in the Circuit Court, and at no time did two terms of the County Court elapse without indictment while he was held to answer in that court. After the prisoner demanded to be tried in the Circuit Court, and the case was removed to that court, the- County Court had no further jurisdiction over the case till after the indictment was dismissed in that court, and the prisoner had been re-arrested under a new warrant issued for that purpose.</p> <p>4. The prisoner was not entitled to be discharged from prosecution under section 4047 of the Code (as amended February 12, 1894, Acts of Assembly, 1893-4, p. 464). At no time, while the case was pending in either court, did two terms of that court elapse without a trial.</p> <p>5. The act of February 12, 1894, (Acts of Assembly, 1893-4, p. 464) did not operate proprio vigore to discharge the prisoner from further prosecution for the offence, nor did it remand the cause to the County Court for trial; and the case could not be considered as pending in the County Court during the time which elapsed between the passage of that act and the dismissal of the case in the Circuit Court. Whenever a court is deprived of jurisdiction over any class of cases, by the repeal of a statute which gives the jurisdiction, and there is no provision made for the transfer of such cases to some other court which has, or is given jurisdiction, and no reservation made for the trial of pending cases in such court, all such cases fall with the repealed statute.</p>

<p>1. Constitutions oe U. S. and oe Va.—Legislative Power.—The Constitution of the United States is a source and grant of power to the Congress of the United States. It is an enabling, and not a restraining, instrument. Congress can do nothing except what the Constitution, either directly of by reasonable construction, authorizes it to do. The Constitution of Virginia, however, is a restraining instrument, and the Legislature or the State possesses all legislative power not prohibited by the Constitution.</p> <p>2. Constitution of U. S.—Amendment VI.—Jury Trial.—The Constitution' of the United States, Art. III., sec. 3, declaring that “the trial of all crimes, except in cases of impeachment, shall be by jury,” applies to trials held under the authority of the government of the United States, and makes a jury an indispensable requisite of every trial of a person accused of crimes in the courts of that government. Article VI. of the Amendments to the Constitution of the United States also applies to said courts, and is “to be construed and applied in harmony with all the provisions of that instrument.”</p> <p>3. Constitution of Va.—Art. I., sec. 10—Jury Trial.—Art. I., sec. 10, of the Constitution of Virginia, declaring “that a man hath a right to a speedy trial by an impartial jury ” means that he has a legal claim to a trial by a jury; that a jury trial is his privilege. But the presence of a jury is not made a jurisdictional fact, without which a court is not duly organized for the trial of criminals as is the case in all courts of the United States. “Speedy,” as used in the Constitution, is not “immediate,” but “ without undue delay.” Callan v. Wilson, 127 U. S. 540, explained and distinguished.</p> <p>4. Sec. 4106 of Code Constitutional.—Sec. 4106 of the Code, giving to the several police justices and justices of the peace concurrent jurisdiction with the County and Corporation Courts of certain criminal cases, is to be construed in conjunction with sections 4107 and 4108 giving to the person convicted the right of appeal to the County and Corporation Courts, and regulating how said appeal shall he tried. The appeal wholly sets at naught the judgment rendered against him, and sec. 4108 guarantees to him a fair trial by an impartial jury, before whom he stands innocent until his guilt is proven. So construing these sections, sec. 4106 is not in conflict with Art. I., sec. 10, of the Constitution of Yirginia. Miller v. Commonwealth, 88 Va. 618, overruled.</p> <p>5. Sec. 4106 op Code, as Amended, Constitutional.—Sec. 4106 of Code, as amended by the Act of Assembly, approved February 28, 1894, Acts 1893-4, p. 430, is not in conflict with Art. I., sec. 10, of the Constitution of Yirginia.</p>

<p>1. Criminal Law—Speedy Trial—■Failure to Hold Term—■Continuance.—-The statute guarantees a speedy trial to a person indicted for a felony by providing for bis discharge from prosecution if four terms of the County Court in which he is held for trial elapse without a trial, unless the record shows that the case was continued for some one of .the enumerated reasons therein set forth, but the fact that one term has passed without an order in the case is not a denial of a speedy trial. If the record fails to disclose that a term was held on the day appointed for it, none may have been held and the case would stand continued until the next term.</p> <p>2. Criminal Law—Circuit Court Jurisdiction—Power to Remand—Certification of Record by County Court.—-After a Circuit Court has acquired jurisdiction to try a prisoner, upon his election in the County Court, it has no power to remand the case to the County Court for any purpose whatever, not even on the motion of the prisoner himself, and an order so remanding it is a nullity. If the County Court has failed to certify any part of the record, the Circuit Court should have the record certified as the law directs.</p> <p>3. Criminal Law—Trial in Circuit Court— Venire Facias—List Furnished by County Court, or Judge thereof.—Lor the trial of a felony in the Circuit Court, the writ of venire facias is properly issued by the clerk of said court, directed to the officer, requiring him to summon twenty jurors for such trial from a list to be furnished him by the court of such county, or the judge thereof in vacation, and a return of such officer showing these facts is a sufficient return.</p> <p>4. Criminal Law—Evidence—Possession by Accused of Instruments of Death. "Where it is shown that a crime has been committed by the use of certain tools and instruments, it is always pertinent to show, as one element connecting the accused with the crime charged, that he possessed such tools and instruments.</p> <p>5. Criminal Law—Homicide—Antecedent Threats—Previous Attempts on Life of Deceased—Corpus Delicti—Circumstantial Evidence.—On a trial for homicide, antecedent threats and previous attempts to take the life of the deceased are competent evidence both on the question of deliberation and of premeditation. And where it is shown that the deceased .came to his death by drowning, while in company with the accused, it is competent to show that shortly theretofore the accused stated to the friends and relatives of the deceased that deceased had heart disease and was liable to die at any time. The corpus delicti was sufficiently proved in this case to admit circumstantial evidence tending to connect the accused with the crime.</p> <p>6. Criminal Law—Instructions Refused when Jury Already Fairly Instructed. Where instructions given by the trial court clearly and fairly lay down the law applicable to the case, it is not error to refuse other instructions on the same subject tendered by the prisoner.</p> <p>7. Criminal Law—New Trials—After Discovered Evidence—Affidavits—Counter Affidavits.—Applications for new trials are addressed to the sound discretion of the court, and are based on the ground that there has not been a fair trial on the merits. The same rules apply in criminal as in civil cases. Where the application is based on the ground of after discovered evidence, supported by affidavits, counter affidavits may be received to show that the alleged ground for a new trial does not exist. To justify a new trial for after discovered evidence, the evidence must have been discovered since the trial; it must be material in its object, and such as, on another trial, ought to produce an opposite result on the merits; it must not be merely cumulative, corroborative, or collateral; and it must be evidence that could not have been discovered before the trial by the use of reasonable diligence.</p> <p>8. Criminal Law—New Trial— Verdict Contrary to Evidence—Appellate Court. A new trial, on the ground that the verdict is contrary to the evidence, ought to be granted only in case of plain deviation from right and justice. And the appellate court will not set aside a verdict on such ground, except where the jury has plainly decided against the evidence, or without evidence. In the case at bar, the testimony, as a whole, produces a moral certainty that the accused is guilty beyond a reasonable doubt.</p>

Erroi to a judgment of the County Court of Gloucester county, rendered on the 10th day of March, 1894, sustaining the defendant’s demurrer to an indictment for failure to make a true and accurate return of sales of oysters made hy him.

<p>Error to a judgment of the Circuit Court of Fauquier county rendered December 14, 1894, affirming the judgment of the County Court of said county rendered October 4, 1894, whereby the plaintiff in error was sentenced to confinement in the penitentiary for three years and six months.</p> <p>The offence for which the plaintiff in error was indicted was committed March 17, 1891, and he has been four times tried and convicted. The offence was committed in Loudoun county, and the plaintiff in error was indicted in the County Court of that county August 8, 1892. At September term, 1892, he was tried and convicted by said County Court, and sentenced to the penitentiary for two years and six months. The judgment on this trial was reversed by the Circuit Court of Loudoun county, but the record does not disclose on what ground. He was again tried by the County Court of Loudoun county at its November term, 1892, and found guilty “as charged,” and his term of imprisonment in the penitentiary fixed at two years. The judgment was set aside by this court because improper evidence was admitted against him on the trial. Benton's case, 89 Ya. 570. He was again tried in said County Court at its March term, 1893, found guilty of “grand larceny,” and sentenced to the penitentiary for two years and six months. The verdict and judgment was set aside by this court solely on the ground that the trial was had at the March term, 1893, of the said County Court, when it should have been at the February term, 1893, of said County Court, when the defendant was ready and anxious for a trial. But the order of reversal ordered a new trial to be had. Benton v. Ootmrbonwealtli, 90 Ya. 328.</p> <p>After the case was remanded it was removed to the County Court of Fauquier county, where the new trial was had on October 4, 1894, and the plaintiff in error was again tried, found guilty “as charged,” and sentenced to the penitentiary for three years and six months. The Circuit Court of Fauquier county by its judgment rendered on the 14th day of December, 1894, reversed the judgment of the County Court of Fauquier county of October 4, 1894, and ordered a new trial, but afterwards, during the same term of the court, on December 20, 1894, annulled its order of December 14, 1894, and entered up judgment affirming the judgment of the County Court rendered October 4, 1894. The present writ of error is prosecuted to review the proceedings had on this last trial.</p>

<p>Error to a judgment of the Circuit Court of Carroll county, rendered on the 28th day of April, 1892, whereby the plaintiff in error was sentenced to be hanged.</p>

<p>1. Criminal Practice—Granel Jury—C harge—Indictment.—Failure to charge the grand jury, as provided by section 3982 of the Code, does not vitiate an indictment found by them. The provision is directory only, as are also the provisions of sections 3984 and 3991 of the Code.</p> <p>2. Criminal Practice— Charge to Jury—Effect on Verdict.—The charge to the jury should be given by the clerk under the direction of the court, but if it appears that they were fully informed of their duties, and no injury resulted to the accused, the verdict will not be set aside merely because a part of the charge was given by the clerk, part by the court, and part by the attorney for the Commonwealth.</p> <p>3. Criminal Law.— Circumstantial Evidence.—In order to warrant a conviction of crime on circumstantial evidence, every essential fact or circumstance upon which conviction depends must be proved by competent evidence beyond a reasonable doubt.</p> <p>4. Criminal Law—Possession of Stolen Goods—Presumption.—The exclusive possession of goods shortly after they have been stolen raises a presumption of fact that the possessor is the thief, unless, when called on for the purpose, he can account for such possession consistently with his innocence.</p> <p>5. Criminal Practice—Correction of Verdicts—Eorm—Substance.—Trial courts should see that verdicts are put in proper form before juries are discharged, but if any change is made in the substance of the verdict, the jury should be sent back to their room, where they can, untrammelled by the presence and influence of others, find such verdict as they think proper.</p>

<p>1. Criminal Practice—Idem sonans—“Bolen” for “Bolden.”—Whether or not two or more names are idem sonans may be determined by the court upon a mere comparison in cases free from doubt; in doubtful cases, or those dependent upon particular circumstances, the question may be submitted to a jury. “Bolen” is idem sonans with “Bolden.”</p> <p>2. Criminal Practice—Indictment—Proof.—Proof that the purchaser of a watch paid §30 for it, and that it was represented, when purchased, as a gold watch, is sufficient to sustain a charge in an indictment that a gold watch was stolen.</p> <p>3. Criminal Practice—Indictment—Larceny—Embezzlement.—On an indictment for larceny, proof of embezzlement is sufficient to sustain the charge. Section 3716 of the Code.</p> <p>4. Criminal Practice—Appellate Court—Conflicting Evidence—Verdict.— Where the evidence in a criminal case is conflicting, the appellate court cannot disturb the verdict of the jury as being contrary to the evidence.</p>

Petition for a writ of error to an order of the Circuit Court of Henrico county fixing another day for the execution of the judgment of death of the petitioner.