Volume 92 — Virginia Reports

This was an action of debt on two bonds executed by the plaintiff in error to the defendant in error for deferred payments of purchase money on a parcel of land. The defendant pleaded payment, and also tendered three special pleas, which, on objection of the plaintiff, the court declined to receive. Thereupon the defendant withdrew his plea of payment, and judgment was entered for the plaintiff for the amount claimed in his declaration.

<p>Error to a judgment of the Circuit Court of Bland county, rendered December 8, 1893, in an action of ejectment, wherein the defendant in error was the plaintiff and the plaintiffs in error were the defendants.</p>

<p>1. Pleading—Act of Limitations—Set-Off Under Sec. 3299 of Code—Replication.—The general rule that the statute of limitations must be specially pleaded has no application to a plea of equitable set-off under sec. 3299 of the Oode. The only replication which is allowed to such plea, under sec. 3300 of the Oode, is a general replication, and under that replication the plea of the statute of limitations may be relied on.</p> <p>2. Pleading—Set-Off—Plea—Notice—Act of Limitations—Replication.—A defendant may make the defence of set-off, other than the equitable set-off under sec. 3299 of the Oode, either by a formal plea, or by a notice of the set-off, accompanied by an account of set-offs. If the defence be by plea, the plaintiff must reply specially; but, if the defence be by notice, there can be no replication, and the act of limitations may be relied on without further pleading.</p> <p>3. Instkuctions—Surprise.—A correct instruction upon a point which the evidence tends to prove can never work a surprise in law.</p>

<p>1. Chancery Practice—Bill for Specific Performance—Allegations—Tender of Deed.—A bill filed by a vendor of real estate against his vendee, to enforce specific execution of the contract for sale, which does not tender a deed of conveyance, and which does not allege the ability and willingness of the vendor to convey a sufficient title, is bad on demurrer. Such bill should allege the facts constituting performance on the part of the vendor, and a sufficient deed of conveyance should be tendered with the bill.</p>

<p>Error to a judgment of the Circuit Court of Pulaski county, rendered March 25, 1894, in a proceeding by motion wherein the plaintiff in error was the plaintiff and the defendants in error were the defendants.</p>

This was an action of trespass on the case to recover damages for a personal injury. The evidence is certified, and not tlie facts, and it is apparent from the bill of exceptions that the evidence is simply that taken down by a stenographer and inserted, without change, in the bill of exceptions. In several instances questions were propounded to the witness, and objection made by the defendant.

<p>1. Assignment—Judgment—Estoppel—Res Judicata.—Where the assignment of a chose in action is absolute in its terms, and judgment has been obtained thereon in the name of the assignor for the benefit of the assignee, which judgment has subsequently been declared void in a suit brought by the assignee to enforce the collection of said judgment out of the lands of the judgment debtor, the assignor .of the debt is bound by the decree against his assignee, and is estopped from setting up said judgment as a lien on the lands of his judgment debtor, even though said assignment was merely a collateral security for a debt, or intended to carry only a partial interest. The assignor and assignee are at least privies in the transaction, and the question of the lien of said judgment is res judicata.</p>

This was an action of trespass on the case, instituted in the Circuit Court of Wythe county, in the name of the Commonwealth of Yirginia, suing at the relation of James A. Walker, against the Southern Express Company, to recover the forfeiture denounced by section 1220 of the Code for excessive charges on a small package of papers sent by the relator, at Wytheville, Ya., to Wm. H. Davis, at Pulaski City, Ya.

<p>1. Separate -Estate Under Acts of 1877 and 1878&emdash;Interest of Husband&emdash; Curtesy&emdash;Judgment Against Husband.&emdash;The husband has no interest, during the lifetime of the wife, in the real estate acquired by her as a separate estate under the Act of April 4, 1877, as amended by the Act of March 14,1878. If the wife dies intestate and the husband is entitled to curtesy, a judgment against the husband during the coverture will attach to his estate by the curtesy, but in subordination to a deed of trust made by husband and wife during the, coverture.</p>

<p>1. OoNT1~Ao~es-Rescission-Misrepresentations-Fac1$-Opinions.-Upon a bill filed by a vendee of real estate for the resoission of a contraot of sale, on the ground of fraudulent misrepresentations of the grantor in the procurement of the contract, the vendee, in order to obtain such rescission, must prove that the misrepresentations were of positive statements of fact made for the purpose of procuring the contract; that they were material; that they were untrue, and that the party to whom they were made relied upon them, and wast induced by them to enter into the contract. An untrue statement, made as a mere matter of opinion; is, as a rule, not sufficient to entitle such vendee to relief where the parties deal upon terms of equality.</p> <p>2. O0NTRACTs-Rescission-Fraud-Discovery.-The effect of fiaud in the procurement of a contract is to render it voidable only, and it is the duty of the defrauded party to elect, on the discovery of the fraud, to rescind it, or else he will be bound by it. The election may be shown by acts or conduct of the party, as well as by his words.</p> <p>3. Chancery Jurisdiction&emdash;Rescission-Defect of Title-Concealment-Covenants of Warranty.-A court of equity will not entertain a bill filed by a vendee of real estate to rescind the contract of sale for defect of title, where it appears that said vendee has accepted a deed for such real estate, with covenant of general warranty; that he is in possession and his possession is undisturbed by any suit begun or threatened; that the vendor is making no effort to collect unpaid instalments of purchase money, and there is no averment of the insolvency of said vendor; unless he can show a defect of title respecting which the vendor was guilty of fraudulent concealment or misrepresentation, and of which the vendee, at the time, had no knowledge or means of discovery; but the court will leave the vendee to his remedy upon the covenants contained in his deed. For cases where a court of equity will interpose, see opinion of the court.</p>

<p>•Appeal from a decree of the Circuit Court of Pulaski county, pronounced April 30, 1894, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

The mechanic’s lien sought to be enforced consisted of an account of the complainant against the defendant company, giving the details of the work and the prices charged, and credits for money paid, to which was annexed the affidavit of the complainant, and a statement in the following words and figures, to-wit: ■“ Virginia: Tazewell County, to-wit: “I, Jacob H. Hiltebeitel, contractor and bricklayer, do hereby declare my intention to claim, and do hereby claim, the benefit…

<p>Appeal from decrees of the Circuit Court of Carroll county, pronounced November 17, 1892, and April 28, 1893, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Wythe county, rendered February 20, 1891, in an action of trespass on the case, wherein the plaintiffs in error were the plaintiffs, and the defendant in error was the defendant.</p>

Argued at Wytheville. Decided at Staunton. Error to a judgment rendered by the judge of the Circuit Court of Pulaski county, in vacation, on the 18th day of October, 1894, refusing to award a mandamus against the defendant in error.

Argued at Wytheville. Decided at Staunton. Appeal from a decree of the Circuit Court of Bland county, pronounced April 13, 1891, in a suit in chancery wherein the appellees were the complainants, and the appellant and others were the defendants.

There were two trials of this case in the Circuit Court of Botetourt county, and on each trial there was a verdict for the plaintiff. The verdict on the first trial was set aside by the Circuit Court, on the motion of the defendant, on the usual terms as to payment of costs. The Circuit Court refused to set aside the verdict on the second trial, and entered up judgment for the plaintiff. To this judgment a writ of error was awarded by this court.

The second-mentioned suit was a suit in chancery instituted in the Circuit Court of Tazewell county by some of the heirs of Thomas Turner, deceased, against the Southwest Virginia Improvement Company and others, for the partition of a tract of one hundred acres of land, whereof it was alleged that said Thomas Turner died seised and possessed.

This was a suit in chancery brought by the County School Board of Albemarle county against the personal representative of A. J. Farish, deceased, who had been treasurer of the county for a number of terms, and against the sureties on his several official bonds, for the settlement of his estate and of his accounts, as treasurer, of the school funds of the county. The several school districts of the county were also made parties defendants.

<p>Appeal from' a decree of the Circuit Court of Frederick county pronounced July 15, 1895,</p>

<p>1. Evidence—Declarations of Assignor after Assignment.—Declarations of an assignor, made after assignment, are not admissible in evidence against his assignee.</p> <p>2. Evidence—Competency of Witness—Competent Upon all Questions.—In an action by an administrator against a distributee of an estate, where other distributees, having an interest adverse to the defendant, have been allowed to testify on behalf of the plaintiff, the defendant is rendered competent, under sec. 3346 of the Code, to testify in his own behalf upon all questions pertinent to the issue.</p> <p>3. Evidence—Advancement—Similar Advancements to Other Children.— Where the issue is whether a bond was delivered by a parent to a child by way of advancement, it is competent for the child to prove similar advancements by the parent to the other children.</p> <p>4. New Trial—Case at Bar.—Under the evidence in this case the court below properly refused to set aside the verdict of the jury as being contrary to the law and the evidence.</p>

This was a proceeding by notice, in the name of the Commonwealth of Yirginia, suing at the relation of M. S. Cahoon, treasurer of Botetourt county, for the use and benefit of said county, against E. J. McCulloch, late treasurer of Botetourt county, and the sureties on his official bond as such treasurer.

The tract of land in controversy was conveyed to John Hulvey, Sr., by Isaac Weanig and wife, by deed bearing date August 4, 1849, recorded December 28, 1849. The same land was conveyed to Mel vina Hulvey (widow of John Hulvey, Sr.,) for life, with remainder in fee to George Custer and John Hulvey (son of John Hulvey, Sr.,) by Jacob Minnick, by deed bearing date June 20, 1874.

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced December 13, 1892.</p>

<p>1. Res Judicata&emdash;flow Established.&emdash;The defence of res judicata, made by answer, is sufficiently supported by the production of the record of the former suit between the same parties, touching the same matter, and showing a final decree therein on the merits.</p> <p>2. Chancery Practice&emdash;Decree on Merits Silent as to Demurrer.&emdash;If the • decree disposing of the main issue of the cause makes no mention of the demurrer, the demurrer will be regarded as overruled</p> <p>3. Divorce&emdash;Adultery&emdash;Mow to Be Charged.&emdash;A bill for divorce a vinculo, on the ground of adultery, which simply charges that the defendant “ has been guilty of adultery on many occasions,” is bad on demurrer. While the name of the person with whom the adultery was committed need not be stated, the bill should state time, place, and circumstances, so as to enable the defendant to disprove the charge.</p> <p>4. Alimony&emdash;Discretion of Court.&emdash;The amount of alimony to be decreed is within the sound discretion of the trial court, to be fixed according to established principles, and upon an equitable view of all the circumstances of the particular case.</p>

Anderson and Benjamin Haden, trustees, were the complainants, and the West Clifton Forge Investment Company was the defendant, in which suit the appellant sought to assert a judgment against the defendant.

<p>1. Chancery Practice—Decree for Account of Debts—Statute of Limitations.—Although a suit in chancery is instituted for the purpose of auditing specific liens against the estate of a decedent, a decree directing an account of all debts outstanding and unpaid against said estate renders the suit one for the benefit of the general creditors of the estate, and the statute of limitations ceases to run against their claims from the date of the entry of the decree.</p> <p>2. Chancery Praotioe—•Stale Demands—Laches.—A court of equity will, as a rule, refuse its aid to enforce stale demands, but where the claim is not barred by the statute of limitations, the amount is certain, the transaction is not obscure, and it is not likely that injustice will be done owing to the loss of evidence or the lapse of time, and the claimant has not been guilty of such laches as should deprive him of his rights, the court will grant relief.</p>

Argued at Staunton. Decided at Richmond. Appeal from a decree of the Circuit Court of Rockingham county, pronounced October 29, 1891. This was a suit in chancery instituted in the Circuit Court of Rockingham county, by H. J. Gray and sundry others, suing on behalf of themselves and others, creditors of the estates of Jacob Dundore and John R. Koogler, against the personal representatives of said Dundore and Koogler, John W. F. Allemong, and numerous other persons.

<p>1. Partnership—Dissolution—Admissions of One Partner—Nevo Liability.— After dissolution of a partnership, one partner cannot, by his sole act, bind his co-partner against his consent, so as to impose a new liability, or to revive one barred by the statute of limitations. Nor can his declarations or admissions be received as the only evidence of the existence of a debt against the partnership. But if there is other evidence of the existence of the debt, or it is admitted by the pleadings, such declarations or admissions, though made after dissolution, may be received in evidence, provided they relate to trans- . actions of the partnership whilst in existence, and do not impose any fresh liability.</p> <p>2. Action on Negotiable Note—Production of Note—Record in Appellate Court.—In an action on a negotiable note, the note is a necessary part of the plaintiff’s evidence, and there can be no judgment for plaintiff without the production of the note. If judgment be rendered for the plaintiff, and a writ of error awarded to that judgment, the record certified to the appellate court can alone be looked to to ascertain what evidence was introduced in the trial court, and if this record fails to disclose the fact that the note was offered in evidence in the trial court, the judgment will be reversed. The appellate court will not presume what the record fails to disclose.</p>

This was a suit in chancery instituted in the Circuit Court of Augusta county by H. M. Bell against Carter Braxton, trustee in a deed of trust made by Chichester & Stewart, and against the grantors in said deed, and the creditors therein secured.

Argued at Staunton. Decided at Richmond. Appeal from a decree of the Circuit Court of Augusta county, pronounced June 23, 1892, in a suit in chancery' wherein the appellee was the complainant, and the appellant and others were the defendants.

Argued at Staunton. Decided at Richmond. Appeal from a decree of the Circuit Court of Rockingham county, pronounced November 2,1891, in three chancery suits heard together, in one of which James Kenney, trustee, was the complainant, and in the other two Jesse Balston’s administrator was the complainant, and in.each of which the appellants were defendants.

Argued at Staunton. Decided at Richmond. Error to a judgment of the Circuit Court of Alleghany county, rendered August 29, 1894, in an action of ejectment wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. This was an action of ejectment instituted in the Circuit Court of Alleghany county by the Rich Patch Iron Company against A. IE. Stull, to recover possession of a tract of 9,000 acres of land.

Argued at Staunton. Decided at Bichmond. Appeal from a decree of the Circuit Court of Alleghany county, pronounced August 28, 1894, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.

<p>Argued at Staunton. Decided at Bichmond.</p> <p>Appeal from a decree of the Circuit Court of Alleghany county, pronounced August 28, 189é, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p> <p>The facts of this case are very similar to those in the next preceding case, but, so far as different, are set forth in the opinion of the court.</p>

<p>1. Bedford High School&emdash;Act of Incorporation Constitutional.■&emdash;The act of Assembly, approved March 3, 1891, entitled “ An act to provide for the establishment of a high school for Bedford county,” establishes one of the class of “higher grades of school ” referred to in sec. 9, Art. YIIL, of the Constitution, and is not in conflict with the provision of sec. 8, Art. VIII., of the Constitution, and is not unconstitutional.</p> <p>2. Covenant Restricting Use of Land&emdash;Case at Bar.&emdash;A deed conveying real estate to an incorporated school contains a covenant “ that said land and buildings shall be used for the purposes of said school, and for no other purpose.” This covenant does not create a base or qualified fee, but it does restrict the use of the land to a particular purpose, which is binding on all those taking title to the property with notice thereof, and imposes a servitude on the land which a court of equity will, in a proper case, enforce.</p>

Argued at Staunton. Decided at Richmond. Error to a judgment of the Circuit Court of Rockbridge county, rendered September 16, 1892, in an action of assumpsit, wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant. This was an action of assumpsit to recover $5,000, paid by the plaintiffs to the defendant on a contract for the purchase of a hotel, which the' defendant contracted to erect according to certain plans and specifications.

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced October 20,1893, in a suit in chancery wherein the executors of L. M. Griffin, deceased, were the complainants, and the appellants and others were the defendants.</p>

. Maury, praying that the court will inquire into and ascertain the genuineness of coupons cut from bonds of the State, and held by him, and will certify their genuineness.

<p>Error to a judgment of the Corporation Court of Lynch-burg, rendered March 31, 1892, in an action of assumpsit, wherein the plaintiffs in error were the plaintiffs, and the defendant in error was the defendant.</p>

This was a bill filed by the complainants against the executors of James L. Shoemaker, the trustees under his will, and Shoemaker College, praying a construction of the will of said Shoemaker, and that the said executors and trustees be enjoined from applying $5,000 of his estate for the erection of a college at Gate City, Va., and that the said trustees be required to patronize complainants’ institution so long as they continue to be colleges for the education of young…

<p> 1. RAILRoADS-Failure to Stop Train-Duty of Passenger-Falling from a Running Train-Contributory Negligence-If a passenger train fails to stop at a station to which a passenger has purchased a ticket, it is the duty of the passenger to retain his seat until lie arrives at the next station at which the train stops; and, if he feels aggrieved, to institute his action against the company for any loss or injury he may have sustained by reason of the failure to stop the train at the proper station. But if he fails to do this, and, in passing from one coach to another in search of the conductor to get him to stop the train, he is thrown from the train and injured, his negligence is the proximate cause of the injury, and lie cannot recover damages of the company therefor. </p> <p>2. EvxDxNox-Declarations-Adrnissious-Res &est~.-Under the evidence in this case the declarations of the conductor of the train, made shortly after the accident happened to the passenger, as to where he was when the accident occurred, are not admissible in evidence to bind the company. They are not competent as admissions, for want of authority to make them, nor as part of the res gest~r, because not sufficiently connected with the accident in point of time and • circumstance; and in no event does their exclusion constitute reversible error, as the declarations are not certified so that the appellate court can judge of their relevancy and value.</p>

Argued at Staunton. Decided at Richmond. Appeal from two decrees of the Circuit Court o'f Albemarle county, pronounced at the October term, 1894, and February term, 1895, respectively, in a suit in chancery wherein the appellee, J. J. Given, in his own right and as executor of P. C. Hilbish, was the complainant, and the appellant and others were the defendants.

Argued at Staunton. Decided at Richmond. Error to a judgment of the Circuit Court of Rockingham county, rendered October 14, 1893, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. This was an action of assumpsit to recover damages for an alleged breach of promise of marriage. The damages laid in the declaration were $5,000. There was a verdict and judgment in favor of the plaintiff for $1,000.

<p>Error to a judgment of the Circuit Court of Southampton county, rendered November 16, 1892, 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>The third count in the declaration was as follows:</p> <p>“ And for this also, to-wit: That on the 24th day of December, in the year 1890, and for a long time before that day, the defendant company was and had been operating a railroad in the said county of Southampton, over which it operates steam locomotives to propel cars and coaches for the purposes of transporting passengers and freight; and that on the said 24th day of December, 1890, said defendant carried said Sinclair Joyner, contrary to the expressed wishes, and requests of his wife, from Branchville, a station on its road in said county, to some point north, and on the same day brought him, the said Sinclair Joyner, back to said Branch-ville station about noon, under the influence of ardent spirits, and, when thus landed at said Branchville station, he, the said Sinclair Joyner, proceeded to walk from said station down the said railroad, and proceeding thus a short distance, to a point on said road about three hundred yards south of said Branchville station, stopped and sat down on said railroad track, and while he was thus sitting on said railroad track the local freight train of said defendant was at said Branchville station, standing still on said railroad track, plainly within sight of said Sinclair Joyner, then and/there' being on said track as aforesaid; the said defendant carelessly and negligently, and with great force and violence, ran its said engine in and upon said Sinclair Joyner’s body, being then and there constantly, from the time the said engine moved off from said Branchville station till it ran in and upon the body of said Sinclair Joyner, clearly, easily, and plainly within seeing distance of the employees and agents of said defendant who were in charge of said engine, then and there giving to said Sinclair Joyner several fatal and mortal wounds, of which he died, and that his death was then and there caused by said wrongful act, neglect, and default of said defendant. Wherefore the said plaintiff, administrator of said Sinclair Joyner,. deceased, says he-is entitled to recover damages to the amount of $10,000.”</p>

Argued at Staunton. . Decided at Richmond. Appeal from a decree of the Circuit Court of Alleghany county, pronounced August 27, .1891, in a suit in chancery wherein the appellees were the complainants, and appellant and another were the defendants.

<p>1. Separate Estates—Damages for Personal Injuries—How Suit Brought. Section 2284 of the Code makes damages for a wrong sustained by a married woman her separate estate, and an action therefor must be maintained in her name alone. - It is error to unite the husband as co-plaintiff in such action. The act of Assembly approved February 27,1894, (Acts 1893-4, page 489,) permitting abatements where there has been a misjoinder of parties plaintiff or defendant does not apply to actions or suits decided before that date.</p>

After the plaintiffs had shown that they held the legal title to the land in controversy, with the immediate right of possession, the defendant proved the notice given to the plaintiffs of his intention to rely on an equitable defence under the statute, and then ££ introduced A. G. Walters, one of the commissioners who sold the land in the suit of A. G. Walters, Guardian, &c. v. N. D. Walters and Others, and offered to prove by him that the whole of the land left by A. J.…

, were the complainants, and the appellant and others were the defendants. The complainants in the court below filed their bill, on behalf of themselves and such other creditors of W'. W. New, deceased, as might come in and contribute to the cost of the suit, for the purpose of subjecting the real and personal estate of W. ~W. New, deceased, to the payment of their debts.

<p>1. Insurance—Liability of Insurer for Acts of Agents and Their Clerics. An insurer is responsible not only for the acts and declarations of its general agents, within the scope of their authority, but also for the acts and declarations of the clerks and employees of such - agents, to whom the latter delegate authority to discharge their functions, within the scope of the agents’ authority, and while engaged about the business of the principal.</p>

The verdict in this case in favor of the defendant was found on the 22d day of July, 1892. On the same day the plaintiff moved the court to set aside the verdict of the jury and grant him a new trial, which motion was docketed and continued to a later day of the term.

<p>1. Second Appeal&emdash;Construction of Former Decree&emdash;Water Privileges.&emdash; Appellee filed its bill against appellant to recover certain water rents under a contract made in 1846, and to ascertain the exact nature, status, and extent of the water rights and privileges pertaining to the property of the appellant. It appearing that appellee owned property above the premises of appellant and had been compelled to largely increase its supply of water since the contract of 1846, which water flowed through the premises of appellant, the trial court gave a decree for the rent due according to the rate fixed by the contract of 1846, and decided that appellee might divert the excess, and use it as its own, free from any claim of appellant. On appeal it was held that appellee could not divert the excess without first giving appellant an opportunity to elect, if he chose, to take the whole flow, upon condition of paying for the same, and the case was remanded to the trial court. Thereupon appellant served upon appellee a written notice of his election to take the whole flow from and after the date of his election. The trial court decided that appellant should pay for the increased flow from the date of the new contract made by appellee for an increased supply.</p> <p> Held: </p> <p>This was error. The appellant was, by the terms of the former decree of this court, only bound to pay for the increased flow from the date of his election.</p>

This was an action to recover damages for breach of covenant.

<p>Appeal from a decree of the Circuit Court of Alexandria, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

This was a suit in chancery instituted in the Chancery Court of the city of Bichmond for the purpose of subjecting the estate of Mary Triplett Haxall, deceased, to the payment of her debts. Mary Triplett Haxall was, at the time of her death', the wife of Philip Haxall, and owned an equitable separate estate in fee in a house and lot in the city of Bichmond, worth about $30,000.

<p>Error to a judgment of the Circuit Court of Gloucester county, rendered November 14, 1892, in an action of ejectment, wherein the plaintiffs in error were the plaintiffs, and the defendant in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, rendered March 25,1893, in an action of debt wherein the defendants in error were the plaintiffs, and the plaintiffs in error were the defendants.</p> <p>This was an action of debt on a plain bond executed by Y. W. Duval and A. J. Duval to C. F. Chelf & Co. The declaration was in the usual form, except that it complained “ of Y. W. Duval and A. J. Duval, his wife,” &c. There was a demurrer to the declaration, which was overruled.</p>

<p>1. Pleading—Demurrer or Replication to Plea—Effect of Section 3264 of Code—Case at Bar.—A plaintiff may demur or reply to defendant’s plea, but he cannot do both. Section 3264 applies to pleas by the defendant, but not to subsequent stages of the pleading. In the case at bar the plaintiff demurred to the defendant’s plea in abatement,’and the demurrer being overruled, he replied to the plea, and on the issue thus made there was verdict and judgment for the plaintiff. Under these circumstances the demurrer must be considered as having been waived or withdrawn in the trial court, and cannot be insisted on in the appellate court.</p> <p>2. Venue—Injury to Stock in Transit—Plea to Jurisdiction of Court.—An action to recover damages for injury to stock being transported by a common carrier may be brought in any county or city where the injury complained of, or any part thereof, was inflicted, and whether such injury was inflicted solely through the negligence of the defendant, or the plaintiff was guilty of contributory negligence, are questions which can only be tried on the merits of the case, and not on a plea to the jurisdiction of the court.</p> <p>3. Common Carrier of Live Stock—Facilities for Watering and Feeding— Contract of Shipper to Feed and Water.—Although the contract of a common carrier of live stock stipulates that the owner shall load, feed, water, and unload his stock at his own risk and expense, yet it is the duty of such carrier to furnish suitable and safe facilities for loading and unloading the stock, and also for watering and feeding them while being carried over its line, and a failure to provide such facilities is negligence, for the results of which the carrier is liable, and against which he cannot contract.</p> <p>4. Foreign Law Imposing Penalty—Special Injury to Individuals for Violation of Foreign Law—Statutes of United States Enforced in State Court.—While it is true that one State will not enforce the penal laws of another State where the action is in the nature of a proceeding in favor of the State whose laws have been violated, yet, if the foreign law imposes a public duty on a defendant, and the plaintiff has suffered special injury by a violation of that duty, he may recover damages therefor of the defendant, in any court having jurisdiction of such matters and over the defendant, even though a penalty be provided for the violation of such duty, payable to the foreign State. Applying this rule, the violation of a statute of the United States which amounts to a civil injury to a plaintiff may be made by him the basis of an action for negligence in a State court.</p> <p>5. Section 4386, Revised Statutes oe United States, Embhaces Houses and Mules.—Section 4386 of the Revised Statutes of the United States, which forbids any railroad company which carries “ cattle, sheep, swine, or other animals” from keeping the same confined in its cars for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, is a humane rather than a sanitary regulation, intended to prevent cruelty and injury to animals shipped long distances, and embraces horses, mules, and all animals which may suffer for want of food, water, or rest during such transportation.</p> <p>6. Section 4386, Revised Statutes oe United States—Other Accidental Cause—Negligence is Not “ An Unavoidable Cause.”—The words “ other accidental causes,” used, in section 4386, Revised Statutes of the United States, mean “other unavoidable accidental causes.” An effect attributable to the negligence of the common carrier is not an . unavoidable cause.</p>

<p>1. Equitable Separate Estate—No Particular Words to Create—“ To Her Only Use and Behoof” Sufficient—Trustee Not Necessary.—No particular form of words is necessary to create a separate estate in a married woman. It is sufficient if the instrument, in any way, shows that it was intended for the wife to have the property to her sole and separate use. And though express trustees are usual in equitable separate estates, they are not necessary. If the property be given directly to the wife by apt words to create a separate estate, equity will treat the husband as trustee as to such property. A conveyance of land to two persons “ to their only use and behoof,” one of whom is a married woman, vests in the' married woman a separate estate in her share of the land.</p> <p>2. Equitable Separate Estate—Liability for Debts—Evidence of Intention to Charge.—The equitable separate estate in fee in lands, which a married woman holds free from any restraint on her powers of alienation, is liable for the payment of debts contracted on the faith and credit of it, which liability a court of equity will enforce during the coverture, or after its termination; and, if the rents and profits of such real estate will not pay such debts in a reasonable time, the land itself may be sold for that purpose. The execution of a bond, note, or other writing for the payment of money by such married woman, whether as principal or surety, is sufficient evidence of an intention to charge such separate estate.</p> <p>3. Equitable Separate Estate—Liability for Open Accounts.—Where husband and wife occupy, as a home, the separate equitable estate in fee of the wife, and husband and wife employ laborers to cultivate the land for her benefit, which cultivation is necessary for her support and the enjoyment of the ■ estate, the separate estate is liable for such services, though only evidenced by open account.</p> <p>4. Evidence—Exception to Incompetency of Witness—Cross-Examination.— If, after an exception has been taken to the competency of a witness, the exceptor cross-examines him as to matters not brought out on the examination in chief, against the objection of the party calling him, the exceptor thereby waives his exception to the competency of the witness and makes him his own witness.</p>

<p>1. Bes Judicata—Final Judgment on Merits Conclusive.—To a scire facias to revive a decree, defendants plead nul tiel record, and the act of limitations. On these pleas issue was joined, and there was a final general judgment in favor of the defendants. This ended all right in the plaintiff to enforce said decree against the defendants, either at law or in equity.</p> <p>2. Attachment—Levy—Description of Land.—The levy of an attachment in equity on real estate must contain such general description of the real estate, and describe it with such substantial accuracy, that it may be easily identified, when conveyed, by looking alone to the levy, without the aid of extrinsic evidence.</p>

<p>1. Contracts for Sale of Lands—Reference in Signed Paper to One Not .Signed—Porol Evidence.—In order to satisfy the requirement of the statute of frauds, where the whole contract of parties is embodied in different papers, or written on different pieces of paper, some of which are signed and others not, the signed paper must refer to the unsigned in clear and distinct terms, but the reference need not be to the unsigned eo nomine. Parol evidence is admissible to identify it if the reference to it is sufficiently clear to exclude the idea that any other paper can be referred to.</p> <p>2. Contracts for Sale of Lands—Reference in a Will to an Unsigned Paper—Parol Evidence.—If a will can in any case be read in connection with a previous unsigned paper to take a case out of the statute of frauds, it is not warranted in the case at bar, because the unsigned paper is not clearly referred to in the will, and if parol evidence be admissible to connect the two, when admitted, it is by no means certain that the unsigned paper was in the testator’s mind when he referred, in his will, to the “ understanding” between himself and the appellant.</p> <p>3. Specific Performance—Terms of Contract—Change of Circumstances— Unexcused Delay.—Applications for specific performance of contracts are addressed to the sound discretion of the court, regulated by established principles. The contract must be distinctly proven, and its terms clearly ascertained. It must be reasonable, certain, legal, mutual, based on a valuable consideration, and the party seeking its enforcement must have been ready, prompt, eager, and desirous to perform. If there has been a change of circumstances or relations, which renders the execution of the contract a hardship to the defendant, and especially if there has been a great change in values, and it is accompanied by an unexcused delay on the part of the complainant, the change and delay together will constitute a sufficient ground for denying specific performance when sought by the one in default.</p>

<p>Appeal from a decree of the Circuit Court of Fauquier county, pronounced April 13, 1892, in a suit in chancery instituted by Edwin Hunton, in bis own right and as executor of William Hunton, deceased, against the devisees and legatees of said William Hunton, praying a construction of his will.</p>

<p>1. Wills&emdash;Construction of&emdash;Bequest to A for Life, Remainder to A’s Children.&emdash;A testator, by his will, says: “I give and bequeath to Mary L. Stanley the interest that may accrue on one-fourth part of my money, bonds, and securities that I may die possessed of, during the period of her natural life, and at her death I give and bequeath this one-fourth part of my money, bonds, and securities, from which the said Mary L. Stanley is to derive the accruing interest for her life, to the children of Mary L. Stanley, to be equally divided.”</p> <p> Held : </p> <p>The children living at the death of the testator take remainders in the principal, after the death of’ Mary L. Stanley, in absolute estate, share and share alike, and upon the death of any of them in the lifetime of the life tenant, the share of the deceased child passes to his or her personal representative, for the payment of debts and for distribution.</p>

This was a suit in chancery brought by the complainant to recover her dower in the lands whereof her husband, Thomas W. Chapman, was seised and possessed during the coverture, and, amongst others, in the tract of 560 acres referred to in the opinion of the court.

<p>1. Pleading—Assignor and Assignee—Common Partner in Debtor and Creditor Firms—Action by Assignee.—The assignee of a non-negotiable chose in action may, under section 2860 of the Code, maintain thereon in his own name any action which his assignor might have maintained, but, where the debtor and creditor are firms in which there are one or more common partners, no action at law can be maintained in the name of the assignee of the chose, as none could have been maintained by his assignors.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced November 15, 1892, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

The defendant demurred to the evidence of the plaintiff, and the court sustained the demurrer and rendered judgment in favor of the defendant.

The plaintiff recovered a judgment for $1,000 damages. This action was instituted in the Circuit Court of Henrico county, but was subsequently removed,, by consent, to the Circuit Court of the city of Richmond.

<p>1. Local Assessments—•Notice—Article XIV., Amendments to Constitution of United States—“Due Process of Law.’1—Local assessments for street improvements are an exercise of the taxing power of the State, and Article XIV. of the Amendments to the Constitution of the United States applies to such assessments; and a law which authorizes such assessments without reasonable notice to the person of whom the assessment is exacted, and without affording him an opportunity to appear and contest the legality, justice, and correctness of the assessment before it is finally determined upon, deprives such person of his property without due process of law, and is void. “ Due process of law ” requires that a person shall have reasonable notice, and a reasonable opportunity to be heard before an impartial tribunal, before any binding decree can be made affecting his rights to liberty or property. It is not enough that the owner may by chance have notice, or that he may, as a favor, have a hearing. The law itself must require notice to him, and give him a right to a hearing and an opportunity to be heard. While the Legislature may prescribe the kind of notice and the mode of service, it cannot dispense with all notice.</p> <p>2. Local Assessments—Benefits—Article X., Section 1, Constitution of Virginia— Charter of City of Alexandria.—Statutes authorizing local assessments on abutting lands or lots, to meet the expense of improvements to the street in front of such land or lots, levied according to the benefits to such land or lots, are not in violation of section 1 of Article X. of the Constitution of this State, and are valid-Section 33 of the charter of the city of Alexandria, as amended by an act of the Legislature approved March 1, 1888, is not in conflict with said section of the Constitution.</p> <p>3. Looal Assessments—Be.nefi.ts Conferred—Assessments by Front Foot— City Charter—Ordinance of City of Alexandria.—While the Legislature may grant to municipal corporations the power to levy local assessments for street improvements, yet the statute making the grant must be strictly construed, and the municipality must keep closely within its provisions: If the statute conferring the power to make such assessments limits its 'exercise to the benefits, by the improvements, to the property assessed, or is not broad enough to confer on the municipality the power to select the mode of assessment, then an assessment by frontage is an unwarranted assumption of benefits, and does not meet the requirements of the statute, but is in conflict therewith. Tested by this rule, the ordinance of the City Council of Alexandria, under which the assessment in the case at bar was made, is not authorized by the charter of said city under which the ordinance was passed.</p>

<p>Appeal from a decree of the Circuit Court of Henricocounty, pronounced April 5, 1893, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.</p>

Waddy, in her own right and as administratrix of Thomas C. Waddy, deceased, suing on behalf of herself and of all other creditors of Gabriel Jones, deceased, filed her bill in the Circuit Court of the city of Fredericksburg against the administrators of Gabriel Jones and Philip H. Jones and certain alienees of Gabriel Jones in his lifetime.

E. Y. K. Hopkins, being indebted to Lascelle Jackson, executed a deed of trust on certain horses to E. M. Whitehurst to secure the debt. • When payment was demanded the debtor absconded, and the horses were removed to another part of the county. The trustee demanded possession of the horses of those in possession, for the purpose of making sale thereof, when the plaintiff, Maria Hopkins, for the first time claimed them.

<p>1. Instructions—Evidence to Support—Instruction on Part of Facts.—If there is any evidence tending to prove a material fact in a case, the party in whose favor it is has the right, without regard to the amount of the evidence, to have the court instruct the jury as to the law arising upon the fact or facts which the evidence tends to prove, and leave them to find whether or not the evidence is sufficient to establish the fact it was introduced to prove. But an instruction which singles out certain facts which a part only of the evidence tends to prove, and ignores all the other facts which the remainder of the evidence tends to prove, and which are equally important in leading the jury to a eoi'rect conclusion, is misleading and should not be given.</p> <p>2. Railroads—Negligence—Combustible Matter on Bight of Way.—It is negligence on the part of a railroad company to permit combustible matter to accumulate on its right of way, where it is liable to be easily ignited from its passing engines, and thus communicated to the property of adjacent proprietors; and, if such adjacent proprietor sustain damages from fire thus communicated, the company is liable therefor.</p> <p>3. Instructions—How Interpreted,—Objections in Appellate Court.—Instructions are to be interpreted in the light of the evidence in the case, and it is not to be presumed that the jury considered other evidence not introduced in the cause. If the instruction was applicable to evidence introduced in the trial court without exception, an objection to the instruction solely on the ground that there was no relevant evidence to support it cannot be made for the first time in the appellate court.</p> <p>4. Railroads—Damage by Communicated Fires—Other Fires—Negligence or Defective Machinery.—In an action to recover damages of a railroad company resulting from fires communicated by its engines, where evidence has been received, without objection, of other fires communicated by the engines of said company prior and subsequent to the fire in question, it is not error to instruct the jury that they may consider such evidence for the purpose of determining whether or not there was negligence on the part of the company’s employees, or defects in its engines, and also for the purpose of showing a negligent habit of the officers and agents of such company.</p> <p>5. Negligence—Question of Fact.—Negligence is a question of fact peculiarly within the province of the jury, and, in the case at bar, the verdict of the jury, finding the defendant guilty of negligence, is approved.</p>

<p>1 Sale or Infants’ Lands—Affidavit to Bill.—An affidavit annexed to a bill filed under section 2616 of the Code, “sworn to before me in my county aforesaid,” is sufficient evidence that the bill was sworn to, and as the section does not require that the bill shall show that it was verified by the affidavit of the plaintiff, the facts may be shown by evidence aliunde, though the better practice is for the affidavit to. show the fact.</p> <p>2. Sale of Infants’ Lands—Parties.—Where a father and mother hold lands in trust for their infant children, a bill filed in the names of the father and mother in their own right, and as trustees for such infants against the infants, is sufficient compliance with the statute (sec. 2616 of the Code) as to parties.</p> <p>3. Commissioner’s Report—Hearing on—If a case is referred to a commissioner merely to take evidence and report upon the propriety of a sale of infants’ land, his report is not one which the statute (sec. 3325 of the Code) requires to lie ten days before being acted upon.</p> <p>4. Sale or Infants’ Lands—Construction of Will Under Which They are Held.—The statute for the sale of infants’ lands does not require as a pre-requisite that the will under which the lands are held shall be • construed before a sale is ordered.</p> <p>5. Sale of Infants’ Lands—Answer of Infant—Subsequent Majority or Marriage of Female Infant.—Under the facts of the case at bar, it was not error that the female infant defendant, who had appeared and answered by guardian ad litem and also in proper person, was not proceeded against in proper person after attaining her majority, nor that her husband was not united as a co-defendant after her marriage with him.</p> <p>6. Infants—Right to Show Cause—What Cause May Be Shown.—The right of an infant after he arrives at age to show cause against a decree which affects his interest is limited to causes existing at the time of the rendition of the decree, and does not extend to causes thereafter arising.</p> <p>7. Sale of Infants’ Lands—Answer of Inf ant Over Fourteen Years of Age— Knowledge of Proceedings—Estoppel.—Although the answer of an infant defendant over fourteen years of age to a bill for the sale of lands in which she has an interest wras in fact neither signed nor sworn to by her, yet where the record shows an answer both signed and sworn to by her, and she has full knowledge of all the proceedings in the suit for the sale of the lands, and fully consents to a decree for the sale, and is regularly proceeded against as an infant on the record, and-the sale is not made until eighteen months after she becomes of age, and she makes no objection to a confirmation of the sale, of which she has full knowledge, and about which she is consulted, such infant will thereafter be estopped from setting up against a bona fide purchaser of said land for value the fact that she had not signed and sworn to her answer.</p> <p>8. Sale of Infants’ Lands—Sale Made More than Six Months After Date of Decree, and Confirmed.—Section 3425 of the Code, with reference to judicial sales made after six months from the date of the decree therefor, and which have been confirmed, applies to sales of lands of infants made in suits properly brought for that purpose.</p>

<p>1. Railroads—■Safe Machinery—New Inventions—Latest Improvements.— It is incumbent on a railway company whose cars are propelled by steam or electricity to provide its cars with suitable and safe machinery, and to use ordinary and reasonable care to avail itself of all new inventions and improvements known to it, which will contribute to the safety of its passengers, and prevent accident to others; but it is not required to have in use the latest improvements which human skill and ingenuity have devised'to prevent accidents.</p> <p>2. Instructions—Harmless Error.—Although an erroneous instruction may have been given by the trial court, the appellate court will not reverse the judgment of the .trial court, and set aside the verdict of the jury, if the court can see from the whole record that, even under correct instructions, a different verdict could not have been rightly found, or that the exceptant could not have been prejudiced by the erroneous instruction.</p> <p>3. Street Railways—Street Crossing—Eight of Foot Passenger—Crowding Cars.—The people of a city have the same right to pass along an intersecting street, on foot or in vehicles, as a street-car has to go across; and it is gross negligence in a street railway company to so over-crowd and load down its cars with passengers, beyond any reasonable or proper limit, as not to be able to stop them readily as they approach intersecting streets, if necessity requires it. If, from such crowding and consequent inability to stop, a collision occurs, resulting in injury to a passenger, the company is liable for such injury.</p> <p>4. Damages—Personal Injuries—Excessive Verdict.—There is no legal measure of damages for a personal injury to a human being, and the consequent pain and anguish; and the verdict of a jury will not be set aside on the ground of excessive damages, unless the damage be so great as to indicate that the jury was actuated by partiality or prejudice.</p>

<p>Error to a judgment of the Circuit Court of the city of Lynchburg, rendered November 24, 1892, in an action of debt, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p> <p>This case is the sequel of Offterdinger v. Ford, 86 Va. 917. Ford & Mathews had let to Offterdinger, in 1885, a storehouse in the city of Lynchburg, at the agreed price of $1,100 per annum. The agreement between the parties was for a term of five years, but not being in writing and signed, as required by statute, Offterdinger, after the first year, became a tenant from year to year. The rent had been promptly paid till the year 1887, when the tenant began to fall behind, and ceased to pay promptly by the month as theretofore. Offterdinger conducted a restaurant and bar-room. He paid his license for May, 1887, but thereafter failed to pay, and was indicted for conducting business without license, and was fined in four cases in November, 1887.</p> <p>On-August 24, 1885, after Offterdinger had moved his personal property on the leased premises, he gave a deed of trust thereon to John M. Payne, trustee, to secure J. Phil Shaner a debt of nearly $1,500.</p> <p>On August 17,1887, John M. Payne inserted the following advertisement in the Lynchburg Virginian, a daily newspaper published in the city of Lynchburg :</p> <p> “Hotel and Restaurant for Sale. </p> <p>As trustee, and at the request of Mr. H. J. Offterdinger, •who desires to change his business, I offer for sale the goodwill, stock, and fixtures of the well-known hotel restaurant at 1019 Main street, Lynchburg, Ya. Terms liberal. Possession given immediately. Apply to</p> <p>John M. Payne, Trustee,</p> <p>Flo. 811J Main street.”</p> <p>At that time Offterdinger was not in the city of Lynch-burg. He was not then in arrears for rent, and. no goods were being removed from the leased premises except in regular daily retail sales; but Ford says that both Offterdinger and Payne, the trustee, told him that Offterdinger could not continue in business, and soon thereafter Payne closed the house. Thereupon the attachment was sued out, and an attachment bond given by Ford, with A. H. Burroughs' as surety. The proceedings in the attachment suit sufficiently appear from Offterdinger v. Ford, 86 Va. 917.</p> <p>After that case was decided Offterdinger then instituted the present action of debt on the attachment, bond. .The bond was in the penalty of $2,200,- with the following condition :</p> <p>“ The condition of the above obligation is such that whereas the said J. A. Ford and W. F. Mathews did, on the 22d day of August, 1887, upon complaint on oath of the said J. A. Ford, made in due form of law, before J. W. Breathed, a justice of said city, obtain from the said J. W. Breathed an attachment against the goods and estate of the said H. J. Offterdinger, for the sum of eleven hundred dollars, for rent to become payable by the said H. J. Offterdinger to the said J. A. Ford and W.> F. Mathews within one year from the 22d day of August, 1887, in the manner following, that is to say: The sum of $91.66§ on September 1, 1887; the sum of $91.66§ on October 1, 1887; the sum of $91.66f on Hovember 1, 1887; the sum of $91.66! on December 1, 1887; the sum of $91.661 on January 1, 1888 ; the sum of $91.66! on February 1, 1888; the sum of $91.66! March 1, 1888 ; the sum of $91.66! April 1, 1888; the sum of $91.66f- May 1, 1888; the sum of $91.66! June 1,1888; the sum of $91.66! July 1, 1888; the sum of $91.66| August 1, 1888; which said attachment is directed to the constable of the said city of Lynchburg, and is made returnable to the Corporation Court of the said city :</p> <p>“Now, therefore, if the said J. A. Ford and Yf. F. Mathews shall pay all costs and damages which may be awarded against them, or sustaihed by any person by reason of his suing out the said attachment, then the above obligation to be void, otherwise to remain in full force.”</p> <p>The defendants demurred to the declaration, and to each count thereof; and the demurrer being overruled, they thereupon tendered four pleas, to the reception of each of which the plaintiff objected ; but the court overruled the objection to Pleas if os. 1, 2, and 3, and permitted them to be filed; to which the plaintiff excepted. These pleas were as follows:</p> <p>Plea No. 1.</p> <p>“And the said defendants, by their attorney, come and say that the plaintiff ought not to have or maintain his action aforesaid thereof against them, because they say that the said James A. Ford and W. F. Mathews did, from time to time, and at all times, after the making of the said writing obligatory in the declaration mentioned, and the said condition thereof, well and truly observe, perform, fulfil, and keep all and singular the articles, clauses, payments, conditions, and agreements in the said condition of the said writing obligatory mentioned, in all things therein contained on their part to be observed, performed, fulfilled, and kept, according to the terms and effect, true intent and meaning of the sa"id condition of the said writing obligatory.</p> <p>“And this the said defendants verify. Wherefore they pray judgment if the said plaintiff ought to have or maintain his action aforesaid thereof against them.”</p> <p>Plea No. 2.</p> <p>“And the said defendants, by their attorneys, come and say that the plaintiff ought not to have or maintain his action aforesaid thereof against them, because they say that in the attachment proceeding in the declaration mentioned, instituted by the said James A. Ford and W. F; Mathews against the said plaintiff, such proceedings were had in the Supreme Court of Appeals, to which the same was carried hy the said plaintiff upon a writ of error to the said Corporation Court of Lynchburg, that there was awarded to the said plaintiff, by judgment of the said Supreme Court of Appeals, against the said James A. Ford and W. F. Mathews, the sum of six hundred and twenty-six dollars and ninety-five cents ($626.95), with interest thereon from the -22d .day of September, 1887, for his damages sustained by reason of suing out the identical attachment in the declaration mentioned, together with his costs by him about the prosecution of his writ of error aforesaid in the said last-mentioned court, and his costs by him about his defence in the said Corporation Court of Lynchburg, in that behalf expended, whereof the said James A. Ford and W. F. Mathews were convict, as by the record and proceedings thereof in the said Supreme Court of Appeals, certified according to law to the said Corporation Court of Lynchburg, and the records of said last-mentioned court, still remaining in said last-mentioned court, fully appears; and which said judgment the said James A. Ford and W. F. Mathews have fully satisfied and discharged to the said plaintiff by payment to him of the said sum of $626.95, with interest and costs as aforesaid, as by reference to the records, still remaining in the said Corporation Court of Lynchburg, will fully appear.</p> <p>“ And this the defendants are ready to verify by the said record. "Wherefore the defendants pray judgment whether the plaintiff ought to have or maintain his action aforesaid thereof against them.”</p> <p>Plea No. 3.</p> <p>“And the said defendants, by their attorney, come and say that the plaintiff ought not to have or maintain his action aforesaid against them, because they say that the attachment in the declaration mentioned was not sued out without good cause, and was quashed by reason of a defective return of the officer to whom the same was legally directed, and not for want of sufficient cause, nor by reason of any wrongful or malicious or other illegal act of the said J. A. Ford and W. F. Mathews, the plaintiffs therein, or of either of them.</p> <p>“ And this they are ready to verify. Wherefore they pray judgment if the said plaintiff ought to have or maintain his action aforesaid thereof against them.”</p> <p>After the evidence was all in, the plaintiff asked the court for three instructions, and the defendant asked for four, to the giving which latter the plaintiff objected ; but the court overruled the objection, and gave the instructions asked by the defendants, and refused to give those asked by the plaintiff ; to which action of the court the plaintiff excepted. The following are the instructions :</p> <p>Plaintiff's Instructions, Refused hy the Court.</p> <p>No. 1. “ If the jury, believe from the evidence that, prior to the suing out of the attachment by the defendant, J. A. Ford, which was levied on the plaintiff’s goods, and under sai'd attachment they were sold, there had been no removal of any of the plaintiff’s goods from the leased premises by the plaintiff, or by any other person by his authority, except sales made in the course of business at his bar and in his restaurant, such sales were not a removing in the sense of attachment law, and would not justify the suing out of the attachment on the ground that the plaintiff was removing or had removed his goods, or some of them; and if the jury further believe from the evidence that the only fact on which the said J. A. Ford relied to show that the plaintiff intended to remove his goods from the leased premises was the advertisement made by J. M. Payne, trustee, in the words and figures following:</p> <p> ‘ Hotel and Restaurant for 'Sale. </p> <p>As trustee, and at the request of Mr. H. J. Offterdinger, who desires to change his business, I offer for sale the goodwill, stock, and fixtures of the well-known hotel restaurant at 1019 Main street, Lynchburg, Ya. Terms liberal. Possession given immediately. Apply to</p> <p>John M. Payne, Trustee,</p> <p>Aug. 4, ’87, 3taw-ts. No. 811J Main street.’</p> <p>£I hereby certify that the above is a copy of an advertisement which was inserted in the Daily Virginian August 17, 1887.</p> <p>Jno. H. Faulkner, Assistant Business Manager Daily Ya.</p> <p>ZyneKburg, Va., Nov. 18, 1891.’</p> <p>££ Then such advertisement and proposed sale by the said trustee, under the deed of trust shown • in evidence, and for the purpose thereof, was not sufficient cause for the suing out of said attachment, on the ground that the plaintiff intended to remove his goods from the leased premises, and the jury ought to find for the plaintiff such damages, if any, as the plaintiff may have proved.”</p> <p>No. 2. “If the jury believe from the evidence that the only removal of goods of the plaintiff from the leased premises which were contemplated was such removal, if any, as could be inferred from the advertisement of the sale of such goods by J. M. Payne, trustee, shown in evidence, and in pursuance of the deed of trust of the 24th August, 1885, then such advertisement, and a sale in pursuance thereof, would not be such removal of the goods from the leased premises as is contemplated by the attachment law; and unless the jury believe from the evidence that the plaintiff had removed, and was removing, his goods, otherwise than by sales in the course of his usual business, there was no sufficient cause for the suing out of said attachment and selling said goods thereunder, and the jury ought to find for the plaintiff such damages, if any, as the jury may find from the evidence that the plaintiff has sustained by reason of 'the suing out of said attachment and the selling of said goods thereunder.”</p> <p>No. 3. “ If the jury believe from the evidence that the goods upon the leased premises, which, when seized and sold by the high constable, under the attachment sued out by the defendant, J. A. Ford, were conveyed, after the commencement of the plaintiff’s tenancy, by the plaintiff to J. M. Payne, under the deed of trust of the 24th day of August, 1885, then the said trustee had no right to remove said goods from the premises, except on the terms of paying so much rent (if any) as was due at the time of such removal, and securing to the landlord so much as was to become due, what was so paid and secured not to be more altogether than one year’s rent. And if the jury further believe from the evidence that when the said' attachment was sued out the said trustee offered to the defendant, Ford, to provide, out of the proposed sale under the deed of trust, for the payment of what was so secured to him by the law, and that said Ford refused, and proceeded to sue out and cause to be levied said attachment, then said attachment was sued out without sufficient cause, and the jury ought to find for the plaintiff such damages, if any, as the plaintiff may have suffered by reason of the suing out of the said attachment.”</p> <p>Defendant's Instructions, Given by the Court.</p> <p>Ho. 1. “ The jury are instructed that if they believe from the evidence that the attachment sued out by Ford & Mathews against the plaintiff, in August, 1887, was sued out with sufficient cause, then the jury will find a verdict for the defendants; and the burden of showing the absence of sufficient cause rests upon the plaintiff.”</p> <p>Ho. 2. “ The court instructs the jury that if they believe from the evidence that the plaintiff, EL J. Offterdinger, was removing, was about to remove, or had, within thirty days before the issuance of the said attachment, removed any of his effects from the leased premises (whether wdth a fraudulent purpose or not, or whether any rent was then due or not), then such removal, or contemplated removal, was of itself sufficient cause for the said attachment, and the plaintiff is not entitled to recover anything in this action, unless the jury believe that there was, or would have been, left on the premises property liable to distress sufficient to satisfy a year’s rent.”</p> <p>Ho. 4. “-The court instructs the jury that they cannot in this case consider any element of damage not the legitimate result of the suing out of the attachment, and that, if. they believe from the evidence that James A. Ford purchased, at the constable’s sale under said attachment, a part of the said lease, no damage can be awarded to tbe plaintiff in this action for deprivation of the premises after the expiration of that portion of the.,lease so purchased.”</p> <p>No. 5. “ The jury are instructed that if they believe from the evidence that there was a deed of trust on the property attached, to J. M. Payne, trustee, made by the plaintiff after the property was carried on the leased premises, and such trustee intended to remove any of the said property from the leased premises, by sale or otherwise, not leaving sufficient property on the leased premises to satisfy a year’s rent, and without securing to the landlord a year’s rent, such intention on the part of said trustee was of itself sufficient cause for suing out the said attachment.'’</p> <p>There was a verdict for the defendants, which the plaintiff moved the court to set aside; but the court overruled the motion, and entered judgment for the defendants, and the plaintiff excepted.</p>

<p>1. Chancery Practice&emdash;Valid Decree, Though Erroneous, Cannot be Collaterally Assailed&emdash;Adequate Remedy at Law.&emdash;A final decree of a court of equity having jurisdiction of the parties, and a general jurisdiction over equitable rights, interests, and remedies, is not null and void merely because the complainant had a full, adequate, and complete remedy at law; and, however erroneous such decree may be, it is conclusive until vacated or reversed, and cannot be collaterally assailed. Objections to a decree which merely show that it is erroneous, but fall short of showing that it'is void, cannot be made in a collateral proceeding.</p> <p>2. Removal of Causes&emdash;Consent&emdash;Infants May Consent by Guardian ad, Litem.&emdash;The consent of all parties to the removal of a cause from one court having jurisdiction thereof to another court of like jurisdiction is equivalent to a motion by such parties for such removal, and the guardian ad litem Of infant parties may give such consent for the infants.</p>

<p>Appeal from a decree of the Circuit Court of Northampton county, pronounced April 20, 1893, in a suit in chancery, wherein appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of the city of Richmond, pronounced February 14, 1893, in the chancery causes therein depending under the style of Terrell and Bocock,, Trustees, v. Richmond and Alleghany Railroad Company and Others, and Alexander and Mllyson, Trustees, v. Same.</p>

<p>Appeal from a decree of the Circuit Court of Charlotte county, rendered September 23, 1S93, in the chancery cause wherein tbe appellant was the complainant and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City county; rendered September 13, 1893, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Madison county, pronounced at September term, 1893, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Pittsylvania county, pronounced December 1, 1892, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

This was an action of ejectment instituted in the Corporation Court of the city of Norfolk by Mary C. Lovitt and Hattie C. Lovitt against David B. Nye, the plaintiff in error, to recover a lot in Brambleton Ward, in the city of Norfolk. Pending the action Mary C. Lovitt died intestate, and the action was revived in the names of Mary D. Lovitt and Hattie C. Lovitt (her mother and sister), her heirs at law.

<p>Error to a judgment of the Chancery Court of the city of jRichrnond, rendered November 7, 1895, on motion wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p> <p>The plaintiff in error filed his bill in the Chancery Court of the city of Bichmond, and with his bill brought into court the several testamentary papers referred to in the opinion. The plaintiff was one of the executors named in the testator’s will, and he sets forth fully his views as to the mental capacity of the testator to make the several testamentary papers, and his reasons therefor, and, after enumerating the different persons who might be interested in the questions raised by the bill, he prays as follows :</p> <p>£t To the end, therefore, that justice may be done, your orator prays that all of said persons hereinbefore last named as parties in interest may be made parties defendant to this bill, and required to answer the allegations of this bill, but answers under oath are hereby expressly waived; that a guardian ad litem may be appointed to defend the interests of the infant defendants aforesaid, who are the children of Charles E. Whitlock, deceased, and that such guardian ad litem may be required to answer this bill.</p> <p>“ That all proper steps may be taken, in conformity to law, ,and under the direction of this honorable court, to ascertain and determine the last will and testament of Charles E. Whitlock, deceased, and which of the said testamentary papers constitute his will; and, when so ascertained and determined, that the same may be established and admitted to probate by proper sentence.</p> <p>• ££ That to this end, at the request of any party, a jury may be impanelled at the bar of this honorable court, to try an issue of £ devisavit vel non,’ or any issue deemed proper by the court, for the purpose of ascertaining the true last will and testament of Charles E. Whitlock, deceased.</p> <p>“ That all proper process may issue, orders and decrees entered.</p> <p>“ That the clerk of this court may be required to keep safely in his custody the testamentary papers filed herewith as exhibits with this bill, and not to allow the same to be taken from this office.</p> <p>“ And your orator further prays for such other and further and general relief as the nature of the case may require, or to equity may seem meet.</p> <p>“ And your orator will ever pray, &c.”</p> <p>The Chancery Court being of opinion that said bill should be treated as a motion or petition in writing for the probate of testamentary papers, under sections 2538 to 2542, inclusive, of the Code of Yirginia, so ordered. Guardians ad litem were appointed for the infants, and, neither party demanding a jury, the whole matter was heard and decided by the court, and the judgment entered to which this writ of error was awarded. The other facts are stated in the opinion of the court.</p>

Application to award a writ of mandamus to compel Honorable D. A. Christian, judge of the County Court of Appomattox, to sign two bills of exceptions tendered to him on the trial of a misdemeanor lately pending in said County Oourt.

<p>1. Married Women—Damages for Personal Injuries—Separate Fstale— Action by Next Friend.—Damages for a wrong inflicted upon a married woman, since May 1, 1888, are her separate estate, and an action therefor should be brought in her name. And, although an action be instituted in her name by a next friend, she is still the real plaintiff, and the name of the next friend should be stricken out, and the action allowed to proceed to judgment in her name.</p> <p>2. Evidence—Personal Injuries—Other Accidents from Same Cause.—In an action to recover damages for personal injuries inflicted by an electric railway company, in consequence of the breaking of a trolley-wire, evidence that this trolley-wire had broken frequently recently theretofore is admissible.</p> <p>3. Husband and Wipe—Personal Services of Wife—Loss of Time and Cost of Cure in Case of Personal Injuries.—Notwithstanding the provisions of chapter 103 of the Code, the husband is still entitled to the services of his wife, and is bound for her support; and, in an action to recover damages for personal injuries to her, loss of time is not a proper element, unless it be averred in the declaration, and shown in the proof, that she was a sole trader; nor is the cost of her cure, unless it be likewise averred and proved that she paid such costs out of her separate estate.</p> <p>4. PLEADiNa—Allegations and Proof.—An averment in a count of a declaration that the plaintiff “ was thrown ” from a car is not supported by proof that she jumped from the car, and the jury should be instructed to disregard that count.</p>

This was an action of assumpsit on a policy of insurance against fire on certain buildings used as a glass manufactory, and on sundry articles of personal property contained in said buildings, some of which were used in connection with said manufactory for the purpose of making glass.

Jurgens in his lifetime, and revived after his death in the name of his executor, the appellee, against the appellant, -the executrix of Herman CBoschen.

This was an action of assumpsit in the Hustings Court of the city of Portsmouth. on an open account for $1,500, claimed by the plaintiff for the use and occupation of a storehouse in the city of Portsmouth.

<p>Error to a judgment of the Corporation Court of the city of Buena Yista, rendered December 12, 1893, for a fine of $13.75 and costs.</p>

<p>Error to judgment of the Circuit Court of Botetourt county, rendered January 23, 1895, affirming the judgment of the County Court of said county, rendered November 16, 1894.</p> <p>The plaintiff in error was tried in the County Court of Botetourt on an indictment for murder, was found guilty of voluntary manslaughter, and sentenced to the penitentiary for five years. A writ of error was awarded by the Oircuit Court, and on the hearing the judgment of the County Court was affirmed. To the judgment of the Circuit Court this writ of error was awarded.</p> <p>On the trial in the County Court the following instructions were given, at the instance of the attorney for the Commonwealth, and against the objection of the prisoner :</p> <p>“ 1. The court instructs the jury : Every unlawful homicide is presumed by law to be murder in the second degree. lithe Commonwealth would elevate the offence to murder in the first degree, she must prove the characteristics of that offence; and if the prisoner would reduce the offence, the burden of proof is on him.</p> <p>“ 2. If the jury believe from the evidence that, previous to the time of the killing, there was a grudge on the part of the prisoner towards the deceased; that the prisoner had previously declared that this grudge must be settled ; and that he killed the deceased because of this aforesaid grudge, then such killing was wilful, deliberate, and premeditated, and is murder in the first degree.</p> <p>“ 3. If the jury believe from the evidence that the killing aforesaid was malicious, but not wilful, deliberate, and premeditated, then such killing was murder in the second degree.</p> <p>“4. If the jury believe from the evidence that the prisoner killed the deceased in execution of a malicious purpose to do the deceased a serious personal hurt by wounding him, the offence is murder.</p> <p>“ 5. "Where death ensues on a sudden provocation, or upon a sudden quarrel, without prepense malice, the killing is manslaughter, and, in order to reduce the killing to self-defence,, the prisoner must prove two things : First, that before the mortal shot was fired, he had declined any further combat, and had retreated as far as he could with safety; and, second, that he killed his adversary through mere necessity.</p> <p>“ 6. Murder is the unlawful killing of any person with malice aforethought.</p> <p>“ 7. On a charge of murder, malice is presumed from the fact of killing. When the killing is proved, and is unaccompanied with circumstances of palliation, the burden of disproving malice is thrown upon the accused.</p> <p>“ 8. When the killing is wilful, deliberate, and premeditated,, the law infers malice from this fact.</p> <p>“ 9. A mortal wound given with a deadly weapon in the previous possession of the slayer, without any, or upon very slight, provocation, is prima facie wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.</p> <p>“ 10. On a trial for murder the necessity relied on to justify the killing must not arise out of the prisoner’s own misconduct.”</p>

The first count of the .indictment charged the plaintiff in error with the larceny of £ The second and third counts of the indictment are as follows : “ And the jurors aforesaid, upon their oath aforesaid, do further present that the said Joshua H. Stover has been three times before convicted and sentenced for like offences in the United States, to-wit, petit larceny, to-wit: That on the 26th day of April, 1882, and before the commission of the offence hereinbefore charged,…

This was an indictment for larceny. The indictment contained two counts. The first count charged the plaintiff in error, Carter Strouther, with the larceny of a horse in the city of Winchester, Ya.

<p>1. Records—Amendments During the Term and After.—During the term of a court at which a judicial act is done the record remains in the breast of the court, and may be altered or amended; but after the adjournment of the term amendments can only be made in cases in which there is something in the record by which they can be safely made. Amendments cannot be made after the term, upon the individual recollection of the judge, or upon proofs aliunde.</p> <p>2. Appellate Court—Objection Not Made in Trial Court— Jurors.—An objection that jurors summoned in a criminal case were not free from exception cannot be made in the appellate court, where it does not appear that the objection was made in the trial court, or that the accused was injured thereby. Acts 1893-’4, chapter 43.</p> <p>3. Criminal Procedure—Joint Indictment—Separate Trial—Presumption When Record Silent.—Persons jointly indicted cannot be tried jointly-without the concurrent election of themselves and the attorney for the Commonwealth. Either has the right to demand a separate trial. But even if it were otherwise and the record is silent on the subject of election, the appellate court will not presume that any right has been denied the accused.</p> <p>4. Appellate Court—Record of Trial Court—Failure to Disclose Error.— The Court of Appeals can only consider a case, on writ of error or appeal, on the record as made in the trial court. If this fails to disclose the errors complained of, they cannot be considered.</p> <p>5. Criminal Law—Right to Have Counsel—Silence of Record—Presumption. Every person accused of crime has a right to have counsel to aid him in his defence, but no one is compelled to employ counsel. If the record fails to show whether the accused had counsel or not, or even if it shows that he did not have counsel, it is not ground for reversal, unless it further appears that the right to have counsel was denied. It is not to be presumed that the right was denied.</p> <p>6. Criminal Law—Custody of the Jury—What Record Must Show.—In a prosecution for a felony, where the punishment may be death or confinement in the penitentiary for more than ten years, the jury must be kept in the custody of the sheriff or other proper officer when not in the presence of the court, and that they were so ’kept must affirmatively appear from the record, or the verdict and judgment will be set aside.</p>

<p>Error to a judgment of the Hustings Court of the city of Eichmond, rendered April 22,1895, upon an information filed against the defendant in error for violation of the revenue laws of the State.</p> <p>The jury found the defendant not guilty, and judgment was entered accordingly.</p>

<p>1. Court of Appeals&emdash;Transfer of Cases&emdash;Section S09S of Code.&emdash;Under the provisions of section 3093 of the Code, the Court of Appeals has the right, when sitting at one of its places of session, to transfer to such place of session any case pending at one of its other places of session.</p> <p>2. Revocation of Liquor License&emdash;Notice.&emdash;In a proceeding under section 560 of the Code, to revoke a license to sell liquor, the notice is sufficient if it states the charges in general terms: provided they are stated with sufficient certainty to enable the person whose license is sought to be revoked to understand the ground upon which the revocation will be asked. The proceeding is a summary one, and such strict and technical rules as are applied to indictments and other forms of accusation in criminal prosecutions will not be required. A notice is sufficient which states the charge as “ selling, and causing to be sold, to minors, whiskey, wine, and beer.”</p> <p>3. Revocation of Liquor License&emdash;Evidence&emdash;Indictments for Selling to Minors&emdash;Sale to Minors Prior to Date of Existing License&emdash;Supervision of Bar-Tenders.&emdash;In a proceeding under section 560 of the Code, to revoke a license to sell whiskey, on the charge that defendant had been guilty of selling liquor to minors, it is competent to offer in evidence a number of indictments found in the same court against the same defendant for selling liquor to minors, and also to receive the evidence of a minor that, within twelve months prior to the time when the license sought to be revoked took effect, the said minor had purchased intoxicating liquors of the defendant. The whole matter being heard and determined by the court, it is not confined to the strict rules of evidence which obtain upon the trial of an issue before a jury, but great latitude is allowed the court, in order that it may be satisfied whether or not it has entrusted the sale of liquor to an unfit person, or whether the privilege granted has been abused. In the case at bar it appeared that liquor had been sold to minors in a number of instances, and, if the defendant had not sold it, he had not exercised due oversight and vigilance to see that it was not sold by his bar-tender, and his license was properly revoked.</p>

The following is a copy of the indictment upon which the plaintiff in error was tried and convicted : “ Commonwealth of Yirginia, City of Staunton—to-wit: “In the Court of Hustings for the city of Staunton, the jurors of the Commonwealth of Yirginia in and for the body of the city of Staunton, and now attending the said court, upon their oaths present, that on the twenty-ninth day of March, in the year one thousand, eight hundred and ninety-five, at the said city, and within…