Volume 93 — Virginia Reports

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 Court.

This was an action of assumpsit instituted in the Circuit Court of the city of Norfolk against the plaintiff in error by “W. B. Cheek, manager of the Roper Storage Warehouse, who sues for himself and also for The Agosta Milling Company, an incorporated company.”

<p>1. Mandamus—Jurisdiction of Court of Appeals—Writ of Error—Matters not Pecuniary.—The Court of Appeals has jurisdiction under Article VI., section 2, of the Constitution, and the laws passed in pursuance thereof, of writs of error in proceedings by mandamus, although the amount involved is less than five hundred dollars. A mandamus, in a proper case, always involves some matter not merely pecuniary. The Constitution does not proprio vigore confer the jurisdiction, but sections 3454 and 3455 of the Code carry into effect the constitutional provision.</p> <p>2. Jailor’s Fees—Heating Jail.—It is the duty of the jailor to provide fuel to warm the jail when necessary, and the cost thereof is to be paid by him. The per diem for board of prisoners is fixed by statute, and covers this expense. The board of State prisoners is paid out of the State treasury, but that of prisoners charged with the violation of the ordinances of any city or town, or taken on a capias for failure to pay a fine imposed for a violation of such ordinances is at the same rate as for State prisoners, and is payable out of the treasury of such city or town.</p>

<p>Appeal from a decree of the Circuit Court of Gloucester county, pronounced November 16, 1893, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

This was an action of debt on three negotiable notes. The notes are substantially. alike, and the following is a copy of one of them, and of the endorsements thereon: $142.43. Richmond, Va., Nov. 20th, 1888.

<p>Error to a judgment of the Circuit Court of Halifax county, rendered November 10, 1893, 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>Error to a judgment of the Circuit Court of the city of Richmond, rendered November 4,1893, in an action of trespass on the case, wherein the plaintiffs in error were the plaintiffs, and the defendants in error were the defendants.</p> <p>The defendants demurred to the declaration of the plaintiffs and the demurrer was sustained, but liberty was granted the plaintiff to amend. They amended their declaration, to which the defendants again demurred, and the demurrer was sustained, to which judgment this writ of error was awarded. The following is a copy of the amended declaration :</p> <p>“ In the Circuit Court of the city of Richmond:</p> <p>“ E. H. Ball, Geo. W. Connell, Wm. A. Connell and John W. Overturf, executors of the last will and testament of D. F. Connell, deceased, plaintiffs, complain of the Chesapeake and Ohio Railway Company, a corporation duly chartered, and the Pullman Palace Car Company, a corporation duly chartered, who have been duly summoned to answer a plea of trespass on the case, for this, that the said defendant, the Chesapeake and Ohio Railway Company, before and at the time of committing the grievances hereinafter mentioned, were the owners and proprietors of the Chesapeake and Ohio Railway, and of certain cars, coaches and locomotives, owned or leased or operated by them for the carriage and conveyance of passengers, upon and along said railway from a certain place, to-wit, Clifton Forge, to divers other places, and among such other places to Waynesboro and Basic City, both in the State of Virginia, upon said railway, for hire and reward paid to them the defendants; and the said defendant, the Pullman Palace Car Company, before and at the time of committing the grievances hereinafter mentioned, were the owners and proprietors of a certain car or coach making a part of the train of, and running upon the tracks of the Chesapeake and Ohio Railway from a certain place, to-wit, Clifton Forge to divers other places, and among such other places, Waynesboro and Basic City, which said car was used and operated by the defendants as a sleeping or lodging car for the lodging of travelers for a specific reward or compensation to be paid the defendants by such travelers as should use the same being first-class passengers on said railway. That heretofore, to-wit, on the 1st day of August, 1891, in the State of Virginia, at the request of the defendants, the said D. F. Connell, became and was a passenger in the said sleeping or lodging coach or car, owned or leased, or operated by the defendants as aforesaid, to be by them safely and securely carried and conveyed thereby in a certain journey along and upon said railway, for a certain reasonable reward or compensation, paid or rendered to the defendants therefor by the said D. F. Connell, as such passenger as aforesaid, and that thereupon it became and was the duty of the said defendants to use due and proper care that the said D. F. Connell should be safely and securely carried and conveyed by, upon, and along said railway as aforesaid, and both his person and his property protected from violence, injury, or loss, while a passenger as aforesaid; but that the said defendants did not use due and proper care in that behalf, and by their negligence, carelessness, and default in failing to keep a proper and necessary watch or guard, and otherwise, at some point on said railway, distant from Basic City, permitted some person, unknown to the plaintiffs, armed with a deadly weapon, to enter the said Pullman or sleeping-car for the purpose of robbery or murder, and through their negligence and carelessness, and their failure to keep a proper watch or guard, the said person was improperly and negligently permitted to remain on the said sleeping car, and at a point on said railway between Waynesboro and Basic City, to go to the berth of the said D. F. Connell, and demand his money, and upon being refused, to shoot him in the abdomen or stomach, with a ball fired then and there, from a gun or pistol, without any attempt being made by the defendants, or its servants or agents to protect the said D. F. Connell, inflicting thereby a deadly wound, hurt, and injury, from the result of and in direct consequence of which said wound and injury inflicted as aforesaid, the said D. F. Connell afterwards, to-wit, on the 4th day of August, ,1891, died. By means of which said premises in pursuance of the provisions of the Code of Virginia, in such cases made and provided, a right of action hath accrued to the said plaintiffs, who have since the death of the said D. F. Connell, duly qualified as the executors of his estate, to demand and recover from the said defendants damages for the wrongs and injuries done and inflicted as aforesaid, to-wit, damages to the amount of ten thousand dollars.</p> <p>“ 2d Count. And for this, also, that the said defendant, the Chesapeake and Ohio Railway Company, before and at the same time of committing the grievances hereinafter mentioned, were the owners and proprietors of the Chesapeake and Ohio Railway, and of certain cars, coaches, and locomotives, owned, or leased, or operated by them, and used and run by them for the carriage and conveyance of passengers, upon and along said railway from a certain place, to-wit, Clifton Forge, to divers other places, and among such other places, to Waynesboro and Basic City, both in the State of Virginia, upon said railway, for hire and reward paid them, the defendants, and the said defendant, the Pullman Palace Car Company, before and at the time of committing the grievances hereinafter mentioned, were the owners and proprietors of a certain car or coach making a part of the train of and running upon the tracks of the Chesapeake and Ohio Railway from a certain place, to-wit, Clifton Forge to divers other places, and among such other places Waynesboro and Basic City, which said car was used and° operated by the defendants as a sleeping or lodging car for the lodging of travelers, for a specific reward or compensation to be paid the defendants by such travelers as should use the same, being first-class passengers on said railway.</p> <p>“That heretofore, to-wit, On the 1st day of August, 1891, in the State of Virginia, at the request of the defendants, the said D. F. Connell became and was a passenger in the said sleeping, or lodging car, or coach, owned, or leased, or operated, by the defendants as aforesaid, to be by them safely and securely carried and conveyed thereby in a certain journey along and upon said railway, for a certain reasonable reward or compensation, paid or rendered to the said defendants therefor by the said D. F. Connell as such passenger as aforesaid, and that thereupon it became and was the duty of the said defendants to use due and proper care that said D. F. Connell should be safely and securely carried and conveyed by, upon and along said railway as aforesaid, and that out of extra precaution, and for the purpose of obtaining-greater security and protection, the said D. F. Connell became a passenger on the sleeping or lqdging car, owned, or leased, or operated, by the defendants, for the use of which said car or coach, and for greater security and protection as-aforesaid, the said D. F. Connell paid the said defendants, or the officer or agent they left in charge of the said sleeping- or lodging car, leased or run as aforesaid by the said defendants, extra compensation and reward, and that thereupon it became and was the duty of said defendants to use due and proper care that the said D. F. Connell should be protected while in said car from violence and injury, and should be-safely and securely carried and conveyed in the said car by, upon and along said railway as aforesaid, and both his person and his property protected from violence, injury or loss while a passenger as aforesaid; but that the defendants did not use due and proper care in that behalf, but after the: said D. F. Connell had retired to the bed or berth in the said car provided for him by the said defendants, and had used due and proper care on his part in securing and protecting himself, the said defendants, wholly neglecting and disregarding their duty, did not use due and proper care in that behalf, and that by their negligence, carelessness, and default in failing to keep a proper and necessary watch or guard, and otherwise, at some point on said railway, distant' from Basic City, permitted some person unknown to the plaintiffs, armed with a deadly weapon, to enter the said Pullman or sleeping car for the purpose of robbery or murder, and through their negligence and carelessness and their failure to keep a proper watch or guard, the said person was improperly and negligently permitted to remain on said sleeping car, and at a point on said railway between Waynesboro and Basic City, to go to the berth of said D. F. Connell and demand his money, and upon being refused, to shoot him in the abdomen or stomach, with a ball fired then and there, from a gun or pistol, without any attempt being made by the defendants, or their servants or agents, to protect the said D. F. Connell, inflicting thereby a deadly wound, hurt, and injury, from the result of and in direct consequence of which said wound and injury, inflicted as aforesaid, the said I). F. Connell, afterwards, to-wit, on the 4th day of August, 1891, died. By means of which said premises, in pursuance of the provisions of the Code of Virginia in such cases made and provided, a right of action hath accrued to the said plaintiffs, who have, since the death of the said D. F. Connell, duly qualified as the executors of his estate, to demand and recover from the said defendants damages for wrongs and injuries done and inflicted as aforesaid, to-wit, damages to the amount of ten thousand dollars.</p> <p>“ 3d Count. [Here regard and read as if here re-written out all that part of second count from the first word down to and including the words “ at a point on said railway between Waynesboro and Basic City.”] To go to the bed or berth where the said D. F. Connell was sleeping. [Here regard and read as if here re-written out all that part of second count from and including the words, “ and demand his money, and upon being refused, to shoot him in the abdomen or stomach,” down to and including the last word of the second count.]</p> <p>“ 4th Count. [Here regard and read as if here re-written out all that part of second count from the first word thereof down” to and including the words, “ did not use due and proper care in that behalf,”] and did not exercise proper care and vigilance in selecting proper agents and servants in the business of running said car, and in attending to the comfort and safety of the passengers thereon, particularly the said D. F. Connell, and in duly and reasonably guarding the said D. F. Connell, while a passenger on said coach or car, against violence, from any person on said coach or car. [Here regard and read as if here re-written out all that part •of second count from and including the words, “ but after the said D. F. Connell had retired,” down to and including the last word of second count.]</p> <p>“ 5th Count. And for this, also, that the said defendants, the Chesapeake and Ohio Railway Company, before and at the time of committing the grievances hereinafter mentioned, were the owners and proprietors of the Chesapeake and Ohio Railway, and of certain cars, coaches, and locomotives owned, and leased, or operated, by them and used and run by them for the carriage and conveyance of passengers, upon and along said railway from a certain place, to-wit, Clifton Forge to divers other places, and among such other places Waynesboro and Basic City, both in the State of Virginia, upon said railway, for hire and reward paid to them, the defendants, and the said defendant, the Pullman Palace Car Company, before and at the time of committing the grievances hereinafter mentioned, were owners and proprietors of a certain car or coach making a part of the train of and running upon the tracks of the Chesapeake and Ohio Railway from a certain place, to-wit, Clifton Forge to divers other places, and among such other places Waynesboro and Basic City, which said car was used and operated by the defendants as a sleeping or lodging car for the lodging of travelers for a specific reward or compensation to be paid the defendants by such travelers as should use the same, being first-class passengers on said railway. That heretofore, to-wit, on the 1st day of August, 1891, in the State of Virginia, at the request of the defendants, the said D. F. Connell being then and there a first-class passenger on the Chesapeake and Ohio Railway, was received by the defendants as a guest or lodger upon and in said sleeping or lodging car, for a certain reasonable reward or compensation, then and there paid.to the said defendants therefor by the said D. F. Connell as such lodger or guest, and that thereupon it became and was the duty of the said defendants so undertaking to provide lodging for travelers to use due and proper care, by reasonable watch and otherwise, to protect the said D. F. Connell while a lodger and an occupant of a sleeping berth in the said car from violence and injury, hut that the defendants did not use due and proper care in that behalf, and that after they had received the said D. F. Connell, as aforesaid, in the said car and had furnished him with lodging, and while so lodged in the place provided by the defendants, as aforesaid, the defendants and their servants so carelessly and negligently conducted and behaved themselves in not keeping proper care and watch so as to reasonably protect him from violence from any person on or in said sleeping or lodging ear, and in being otherwise careless and negligent, that by and through their negligence, carelessness, and default, in that behalf, after the said D. F. Connell had retired to the bed or berth in the said car provided for him by the said defendants, and had used due and proper care on his part in securing and protecting himself, by the negligence, carelessness, and default of the said defendants, the car or coach in which the said D. F. Connell was then riding or being conveyed, was so improperly and negligently guarded and without proper watch, and the lives and safety of the passengers therein, and particularly the said D. F. Connell, were so negligently and carelessly looked after, that at some point on the said railway distant from Basic City, they permitted some person, unknown to the plaintiffs, armed with a deadly weapon, to enter the said Pullman or sleeping car for the purpose of robbery or murder, and through their negligence and carelessness and their failure to keep a proper watch or guard, the said person was improperly and negligently permitted to remain on the said sleeping car, and at a point on the said railway between Basic City and Waynesboro, to go to the berth of the said D. F. Connell and demand his money, and upon being refused, to shoot him in the abdomen or stomach, with a ball fired then and there from a gun or pistol, without any attempt being ¡made by the defendants or their servants to protect the said D. F. Connell, inflicting thereby a deadly wound, hurt and injury, from the result of, and in direct consequence of which said wound, hurt, and injury inflicted as aforesaid, the said D. F. Connell afterwards, to-wit, on the 4th day of August, 1891, died. By means of which said premises and in pursuance of the provisions of the Code of Virginia in such cases made and provided, a right of action hath accrued to the said plaintiffs, who have, since the death of the said D. F. Connell, duly qualified as the executors of his estate, to demand and recover from the said defendants, damages for the wrongs and injuries done and inflicted as aforesaid, to-wit, damages to the amount of ten thousand dollars.</p> <p>And therefore they bring this suit.</p>

<p>Appeal from a decree of the Circuit Court of Fairfax county, pronounced November 16, 1893, in a suit in chancery brought by the appellant against the appellees to set aside a deed alleged to have been made without consideration, and subject certain land thereby conveyed to the payment .of appellant’s debt.</p>

<p>Appeal from a decree of the Circuit Court of Warwick county, pronounced March 23, 1894, in a suit in chancery, wherein appellant was the complainant, and appellee was the defendant.</p>

<p>Error to a judgment of the Circuit ’Court of the city of Williamsburg and county of James City, rendered November 17, 1893, in an action of ejectment, wherein the defendant in error, Henry B. Warren, was the plaintiff, and the plaintiff in error, Mary E. Warren, was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Mecklenburg county, pronounced June 8, 1892, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced May 8,1894, 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 Gloucester County, pronounced May 16, 1893, in a suit in chancery, wherein the appellant was the complainant, and the appellee and others were defendants.</p>

The plaintiff sued for an injury inflicted on him, as he alleged, by the negligence of the defendant, whereby he sustained the loss of his right hand. There was a verdict and judgment in favor of the plaintiff for $3,500. The evidence sufficiently appears in the opinion of the court. There was but one bill of exceptions filed in the case.

<p>1. Demurrer to Evidence—Motion for New Trial.—Upon a demurrer to the evidence it is not necessary to move for a new trial in the trial court in order to review the judgment in the appellate court. Norfolk & Western R. Co. v. Dunnaway’s Adm’r. Ante, p. 29.</p> <p>2. Demurrer to Evidence—Rule Stated.—By a demurrer to evidence the party demurring is considered as admitting the truth of his adversary’s evidence and all just inferences which may be drawn therefrom by the jury, and as waiving all of his own evidence which conflicts with that of his adversary, and all inferences from his own evidence (although not in conflict with his adversary’s) which do not necessarily result therefrom.</p> <p>3. Insurance—Payment of Premium—Possession of Policy.—The possession of a policy of insurance is sufficient evidence of the payment of the premium thereon, on a demurrer to the evidence by the insurance company. ,</p> <p>4. Insurance Policy—How Construed—Exceptions Therein.—Accident insurance policies are to be construed like other contracts, and words of exception therein are to be construed most favorably to the insured.</p> <p>5. Insurance—Accident Policy—Deafness—Bodily Infirmity.—Deafness will not avoid a policy of insurance “ against injuries received in a consequence of bodily infirmity,” in the absence of evidence that such deafness in any way contributed to the injury.</p> <p>6. Insurance Policy—“ Voluntary Exposure ”—Danger—Contributory Neg ligence.—The words ‘‘ voluntary exposure ” in an accident insurance policy, imply conscious, intentional exposure—something which one is willing to take the risk of. The exposure must be to what reasonable arid ordinary prudence would pronounce dangerous, and the accident complained of must have been in consequence thereof. Whether, in a given case, the conduct of the insured has been such as to preclude a recovery is for the jury, under all the circumstances of the case, to determine, or upon a demurrer to the evidence, for the trial judge. Contributory negligence on the part of the insured will not prevent a recovery.</p>

<p>1. Injunctions—Motion to Dissolve—Continuance.—Motions to dissolve or continue injunctions are within the sound legal discretion of the court. But as courts of equity are always open to grant preliminary injunctions, or to reinstate them when improperly dissolved, applications to continue motions for dissolution are not received with favor, and a continuance will only be granted upon a showing of the greatest necessity.</p>

The Mountain Lake Land Company contracted to sell to the Mountain Lake Lumber Company certain real estate at the price of $600,000, of which $5,000 was paid in cash, and for the residue credits were given. The land was conveyed to the purchaser, and a lien reserved in the deed for the deferred instalments of purchase money. The purchaser being in default, suit was brought to enforce the lien reserved for the deferred instalments of purchase money.

Appeal from a decree of the Circuit Court of Mecklenburg county, pronounced June 4,1894, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant

On a writ of habeas corpus directed to William H. Palmer, sheriff and ex officio jailer of Alexandria county.

This was a suit in chancery instituted by the appellants against D’Orsey Jones, his mother, Mrs. Harriet Jones, and others, the chief object of which was to set aside a gift made by D’Orsey Jones to his mother of his interest in the estate of his brother, Charles B. Jones, deceased.

<p>1. Chancery Practice—Bill to administer trust—To subject real estate in absence of fraud or lien.—In the absence of any charge of fraud, creditors who have no lien on the real estate of their debtor, cannot maintain a bill in equity to subject such real estate. If creditors secured by a deed of trust file a bill to administer the trust, and also to subject real estate on which they have no lien, the court should proceed to administer the trust as if that were the sole object of the bill, and deny the other relief prayed.</p>

Argued at Eichmond. Decided at Wytheville. Error to a judgment of the Circuit Court of the city of' Eichmond, rendered June 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.

Argued at Richmond. Decided at Wytheville. Error to a judgment of the Corporation Court of the city of Danville rendered July 15, 1893, in an action of ejectment wherein the plaintiffs in error were the plaintiffs, and the defendant in error was the defendant. This was an action of ejectment to recover a small strip of land on Main street in the city of Danville.

Argued at Richmond. Decided at Wytheville. Appeal from a decree of the Chancery Court of the city of Richmond, pronounced April 6, 1894, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.

<p>1. Judicial Proceedings—Judge Interested as Counsel—Acts Voidable Only.—There is no statute in Virginia which prohibits a judge from sitting in a case in which he is or has been counsel, or which declares the effect of his acts if he does so sit. Such conduct is forbidden by the rules of the common law which prevail in this State, but the acts of the judge in such case are not void. They are binding on all parties until reversed or annulled in a proper proceeding had for that purpose. .</p> <p>2. Equity Jurisdiction—Cloud on Title—Remedy at Law if Owner not in Possession—Judgment Obtained Through-Fraud or Mistake.—Equity has no jurisdiction to remove a cloud upon the title to land where the party asking relief is out of possession. The remedy by an action of ejectment is complete and adequate. Nor can a court of equity interfere with a judgment at law unless the complainant has an equitable defence which was not available at law, or a good defence at law of which he was prevented from availing himself by fraud or accident, unmixed with negligence in himself or his agents.</p>

On a motion to dismiss the writ of error. After the writ of error had been awarded in this case, the defendant in error appeared and pleaded “ that before the commencement of these appellate proceedings, to wit, on the- day of-, 18—, the alleged plaintiff in error departed this life.” This plea was supported by the affidavit of the defendant in error, and the fact pleaded was admitted by counsel for plaintiff in error, but was sought to be avoided by the admitted fact that…

This was a bill filed by “ Henry S. Kane, who sues for the benefit of J. H. Hicks and such other lien creditors of Jno. A. Mann as shall come in, take part in and share the costs of this suit ” against the said Jno. A. Mann, for the purpose of subjecting the real estate of the defendant to the the payment of liens thereon.

<p>Error to a judgment of the Circuit Court of Buchanan county, rendered September 26, 1893, in an action of ejectment, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Wise County, pronounced December 7, 1892, in a suit in chancery, wherein the appellants were the complainants, and the appellee was the defendant.</p> <p>This was a suit in chancery brought by the appellants against the appellee to enforce the specific execution of a contract for the sale of certain land in Wise county, Virginia. The land was sold at $12 per acre, and the controversy was over the quantity of land contracted to be sold. This involved the construction of the calls in the patent under which complainants claimed. The evidence on this point is sufficiently set forth in the opinion of the court.</p>

<p>Appeal from a decree of the Circuit Court of Wise county, pronounced September 21, 1894, in a suit in chancery, wherein the appellees were the complainants, and the appellants were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Lee county, pronounced March 16, 1893, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants. '</p> <p>This was a suit in chancery instituted by William A. Orr against the administrator and heirs of his brother, R. S. Orr, for the purpose of having declared null and void a deed made April 7, 1883, by David M. Orr, the father of William A. Orr and R. S. Orr, to the said R. S. Orr in his lifetime. The deed bears date April 7, 1883. David M. Orr died May 7, 1883. R. S. Orr died August 14, 1888, and this suit was instituted May 2, 1892. The complainant charged that the grantor was mentally incapacitated to make the deed, or, if not, was mentally and physically weak, and that the grantee exercised undue influence over him. The facts sufficiently appear in the opinion of the court.</p>

The Louisville & Nashville Railroad Company filed its hill against the Fayette Land Company and four others who had purchased of it parcels of the land mentioned in the hill, and against other purchasers by the name and description of “ parties unknown,” seeking to enforce the collection of $120,000, balance of purchase money for a tract of land conveyed to the Fayette Land Company by the complainant, and for which a lien was retained in the deed of conveyance.

Argued at Richmond. Decided at Wytheville. Held: by adverse possession, as herein defined, only a part of the land in the declaration mentioned, then such actual adverse possession of a part does not extend constructively the possession of the defendant to the whole tract, and the jury should find for the plaintiffs such part or parts of such tracts of land as they may believe from…

<p>1. Railroads—Cattle Guards—Sec. 1262 of Code.—In an action against a railroad company to recover the penalty imposed by see. 1262 of the Code for failure to construct cattle guards, the gist of the action is whether or not the points within the plaintiff’s enclosed lands at which he requested the defendant to construct the cattle guards were necessary and proper places for them to be constructed within the meaning of the statute, and not whether that section applies to private crossings.</p> <p>2. Pleading—Demurred—Withdrawal of Pleas in Order to Pass on Demurrer.—After a demurrer has been overruled and the defendant has pleaded, if the court is satisfied that the demurrer should have been sustained, it should allow the defendant to withdraw his plea, set aside its former order on the demurrer, and enter an order sustaining the demurrer.</p> <p>3. Pleading—Action for Penalties—Debt.—Actions to recover specific penalties imposed by statute do not sound in damages, and where a statute imposes a penalty no part of which can accrue to the Commonwealth, but provides no particular mode by which the person aggrieved may recover the penalty, the common law action of debt is the proper action. An action on the case does not lie.</p>

<p>1. Motions—County Treasurer against Deputy and Sureties in County Court —Ten Days’ Notice.—Under the provisions of sections 910 and 912 of the Code a county treasurer may proceed,by motion, upon ten days’ notice, in the County Court, against his deputy and his sureties, for the failure of the deputy to pay over the proceeds of or to account for tax tickets placed in his hands for collection.</p> <p>2. Motions—Proceeding by Treasurer against Deputy—Formal Pleadings Unnecessary.—Upon a proceeding by motion by a treasurer against his deputy and the sureties on his bond, formal pleadings are not required. Any proper defence may be made as well without as with pleas.</p> <p>3. Special Verdicts—What must be Found—Circuit Courts on Error to County Courts should Retain Cause.—In a special verdict all the facts which are necessary to enable the court to determine whether or not the plaintiff is entitled to recover must be found with certainty. A court cannot infer any fact from those found. A verdict which falls short of these requirements, and only responds to certain questions propounded, but does not find all the facts necessary to enable the court to determine from the verdict the rights of the parties, should be set aside. If the case be in a Circuit Court, the Circuit Court should correct the proceedings in the County Court, and retain the case for further proceeding to be had therein, as provided by section 3487 of the Code.</p>

<p>Appeal from a decree of the Circuit Court of Wise county, pronounced April 10, 1895, in a suit in chancery wherein the appellant was the complainant, and the appellee was the defendant. 0</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county pronounced April 8, 1893, in a suit in chancery, wherein the appellees were the complainants, and the appellants and others were the defendants.</p>

<p>1. Equitable Relief—Reformation—Mutual Mistake.—Equity will not relieve against an alleged mutual mistake of fact when it is clear that there can be no true statement of the case established, and that any effort to reform the instrument alleged to have been executed in mutual mistake would in all probability, if not certainly, result in injustice to the estate of one of the parties.</p> <p>2. Equitable Relief—Mutual Mistake—Diligence.—Equity will not extend its aid to one who has been guilty of culpable negligence. It requires that the party who asks relief on the ground of mutual mistake shall have exercised at least the degree of diligence which may be fairly expected of a reasonable person under the circumstances.</p>

<p>1. Contracts—Failure of Plaintiff to Perform—Prospective Profits—Measure - of Damages for Failure to Pay Money.—In an action to recover for the price of bricks manufactured under contract, and also to recover prospective profits on other bricks contracted to be manufactured, but which the plaintiff was unable to manufacture by reason of the failure of the defendant to pay for those already manufactured, the plaintiff can only recover for the bricks already manufactured the contract price thereof, with legal interest from the time payment should have been made. Not having performed his contract, the plaintiff cannot recover prospective profits on the bricks not manufactured. The measure of damages for the breach of a contract to pay money is, with a few exceptions, the principal sum, with legal interest thereon from the time the payment was due.</p>

<p>1. Evidence—Statements of assignor in absence of assignee.—Statements of the obligee of a title bond, made after assignment thereof, in the absence of the assignee and prejudicial to his interest, are not competent evidence against such assignee, and cannot effect his rights.</p> <p>2. Ohanceky Pleading—Answer responsive to bill is evidence for the defendant.—The answer of a defendant which is responsive to a bill which calls upon the defendant for an answer, and which is also responsive to special interrogatories propounded in the bill, is to be taken as true, unless overcome by the testimony of two witnesses, or one witness and corroborating circumstances, or by documentary evidence alone. The whole of such answer is to be taken as evidence for the defendant. It cannot be separated and a part accepted and the residue rejected.</p> <p>S. Judgments—Lien only on debtor’s interest in land—Not a lien on an equitable estate held in trust for others.—Where statutory enactments do not interfere, a creditor can never get by his judgment more than his debtor really owns, and to this he will be confined by a court of equity. In the case at bar the judgment debtor had no interest in the lands sought to be subjected to which the lien of a judgment against him could attach. His interest was a mere equitable title held in trust for others.</p>

<p>1. Ejectment—Verdict for Part of Land—Requisites of Verdict.—Where the verdict, in an action of ejectment, is for a part only of the land sued for, the boundaries of the part recovered should be designated. The verdict must be certain in itself, or must refer to some certain standard by which to ascertain the land so found, otherwise it will be too uncertain to warrant a judgment upon it.</p> <p>2. Ejectment—Title by “ Court-right” Proceedings—Possession at that Time.—A plaintiff in ejectment who does not rely upon a grant from the Commonwealth, but endeavors to show that he has acquired the Commonwealth's title to the land in controversy by acts done and proceedings had under section 41, chapter 108, of the Code of 1873, as amended by the act of March 6,1880 (Acts 1879-80, ch. 214, p. 205), must bring himself within the terms of the act. The act provides, amongst other things, for a continuous settlement for five years and the payment of taxes within that time by the person having settled the same, and the title of the Commonwealth is to be relinquished to the person in possession of the land, claiming the same under such settlement, after having taken certain “court-right” proceedings therein provided for. If it appears that those under whom the plaintiff claims were not in possession of the land when they instituted the “court-right” proceedings provided for by that section, then the proceedings were without authority of law, and conferred no rights upon the parties claiming under them, and the plaintiff cannot recover.</p>

<p>1 Pleading—Foreign Corporations—Compliance with State Laws—Demurrer.—It is not necessary for a foreign corporation, in order to sustain an action in this State, to set forth in its complaint a compliance with the laws of the State which entitle it to do business in the State. This defence, if available, is a matter to be pleaded and proved by the defendant. It does not arise on demurrer.</p> <p>2. Forfeitures—Who may rely on.—A stockholder in a building fund association who has forfeited his stock for non-payment of dues, under such circumstances that a court of equity would not have relieved against the forfeiture at his suit, cannot insist upon the enforcement of the forfeiture to the prejudice of the company.</p> <p>3. Penalties—Forfeitures—Accelerating Payment of a Debt.—A provision in a contract that, in a specified event, the time for the payment of a certain sum shall be accelerated, but not that the debt shall be increased, does not create a penalty or forfeiture against which a court of equity will relieve. The time of payment of the principal of a debt may be lawfully hastened for failure to pay instalments of interest as they mature.</p> <p>4. Usury—Place of Performance of Contract—Notice of By-laws of a Corporation—A member of a building fund association must be presumed to have contracted with reference to its by-laws. If these provide that the place of performance shall be in another State by the laws of which the contract is made valid, though usurious in this State, and the contract is silent as to the place of performance, it will be deemed valid here. Upon the question of usury, the law of the State where the contract is to be performed controls.</p>

<p>1. Rescission—Diligence—Case at Bar.—Application to rescind a contract on the ground of mistake should be made with due diligence, and what constitutes due diligence must be determined by the facts of the particular case. The diligence must be in proportion to the injury likely to ensue from delay. In the case in judgment, though the complainant negotiated for the purchase of lot 5 in section 16, and there was conveyed to him lot 5 in section 15, and he promptly called attention to the mistake and demanded a return of his money and bonds, yet he was perfectly familiar with the land and its division in lots and sections, and must have known of the mistake at the time. The lots were bought for speculation, and it does not appear that they were of unequal value, or that the location of the lot was the inducing motive to the purchase. The complainant kept the deed and never offered to reconvey the lot until the lots had greatly depreciated in value. These and the other attending facts and circumstances present a case in which the complainant has not been diligent, and is not entitled to relief by the rescission of his contract.</p>

<p>Appeal from a decree of tlie Hustings Court of the city of Radford, pronounced December 19, 1894, in sundry chancery suits heard together in all of which the appellant was a defendant, and in one of which the appellee, Thomas, was the complainant.</p>

<p>1. Cobpobations—Contract with Stockholder—Estoppel.—A corporation may contract with one of its stockholders as with a stranger. There is nothing in the mere relation of stockholder to a corporation which will estop the stockholder from asserting any claim against the corporation which he might, under similar circumstances, assert against an individual.</p> <p>2. Vendos’s Lien—Effect of Dividing Land into Town Lots with Streets and Alleys.—If real estate be conveyed to a purchaser by a deed in which the vendor reserves a lien for the balance of purchase money, the purchaser cannot bind the vendor by any contract prejudicial to his-interest. Although a purchaser subdivides land into blocks and lots,, with convenient streets, lanes, and alleys, and sells off a part of the lots, the whole is still bound to the vendor for the balance of the purchase money, unless some act or declaration on the part of the vendor, tending to deceive or mislead, or some contract, or act of acquiescence, recognition, or affirmance on his part of the dedication, to the prejudice of his rights, can be shown in evidence. Purchasers of a part of the land have the right to insist that the land shall beofféred in the inverse order of alienation, but if, when so offered, it fails to bring sufficient to discharge the vendor’s lien, the court should direct it to be sold as a whole, if thereby a better price can be obtained.</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county, pronounced October 10, 1894, in a suit in chancery, wherein the appellants and others were the complainants, and the appellees were the defendants.</p> <p>This was a suit in equity to enjoin the defendant, A. Miner Wellman, executor of A. W. Miner, from the further prosecution of certain actions at law, then pending in the Circuit Court of Roanoke county, until the further order of said court to be made in said suit in equity. The bill charged fraud in the procurement of certain notes sued on in the actions at law, and denied all liability for their payment. The injunction prayed for was granted on condition that the ■complainants, or some one for them, should enter into bond in the penalty of $4,000, with good security, and with condition according to law; but subsequently, on the motion of the plaintiff in the actions at law, it was ordered that the injunction he dissolved unless the defendants at law should, during the then term of the court, confess judgment for the amounts claimed by the plaintiff in said actions. From that order this appeal was taken.</p>

<p>1. Estoppel—Recital in deed—Representations.—A grantor in a deed, releasing an existing lien on land in favor of a debt to be secured by a deed of trust thereon, who recites in his deed of release that his mother has become the purchaser of a life estate in the land, and that he has acquired a lien on such life estate by virtue of having paid a part of the purchase money therefor as surety for his mother, is estopped by the recital of his deed from asserting, as against the trust creditor, that he, and not his mother, was the purchaser of said life estate. It is immaterial that the records would show who the purchaser was. Having represented that his mother was the purchaser, and his representations having been acted on by the trust creditor, it must be taken as true.</p> <p>2. Injunctions—Dissolution—Discretion as to retaining case.—Upon the dissolution of an injunction to a sale under a deed of trust, it is within the discretion of the court either to dismiss the bill, or retain it for the purpose of administering the trust. If there are conflicting interests between the parties as to their respective rights and interests they should be decided, and a decree made for the sale of the property and the proper application of the proceeds. But whether the discretion vested in the court has been soundly exercised or not depends upon the facts and circumstances of the particular case.</p>

<p>Appeal from a decree of the Hustings Court of the city of Radford, pronounced November 23, 1892, in a suit in chancery, wherein appellants were the complainants, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Corporation Court of the city of Radford, pronounced December 2, 1895, in a suit in chancery, wherein the appellant, suing on behalf of himself and all other stockholders of the Radford Publishing Company, was the complainant, and the appellees were the defendants.</p>

<p>Error to a judgment of the Hustings Court of the city of Radford, rendered June 25, 1895, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

The bill in this cause was filed by Lewis Harvey, suing on behalf of himself and all other creditors of E. S. Jones and the American Bridge Company who might come into the suit and contribute ratably to the costs thereof.

On March. 20, 1890, E. H. Stewart and wife conveyed to James Ellwood two lots of land in the city of Roanoke, describing them as situated at the Northwest corner of Trout avenue and “ I ” street, and also describing them as lots 91 and 10, section 5 of the West End map, to be found on file in the clerk’s office of the Hustings Court of the city of Roanoke, Va., to which map'reference was made.

This was a bill in chancery filed by the complainant for the purpose of setting aside a deed of trust made by N. Hockman to secure numerous creditors. The deed was admitted to record on the same day that complainant's decree was pronounced, but much earlier in the day. The bill charged that the deed was made to hinder, delay, and defraud the complainant, and further that the decree, at all events, had priority over the deed.

<p>Appeal from a decree of the Corporation Court of the city of Roanoke, pronounced March 11, 1893, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Dower—Insane wife—Wife should he a party to proceedings under section 2626 of Code.—The husband oí- an insane wife cannot, by proceeding on an ex parte petition, deprive his wife of her contingent right of dower in his real estate. The proceeding under section 2625 of the Code must be inter,partes, the wife.must be made aparty thereto, and, after notice, have an opportunity of being heard, or else the proceeding is void.</p>

<p>1. Chancery Jurisdiction—Reformation—Mutual Mistake—Presumption— Burden of Proof.—While courts of equity have jurisdiction to reform written instruments on the ground of mutual mistake, yet the presumption is that the writing speaks the final agreement of the parties, and the burden is on the complainant to overcome this presumption, and to do so the mistake must be plain, and established by the clearest and most satisfactory proof. In the case in judgment this has not been done.</p>

H. Skinker was the complainant, and Mad-dock’s administratrix and others were the defendants. This was a suit in chancery instituted by the appellee, J. H. Skinker, for the purpose of ascertaining the interest of George M. Evans in the partnership of Maddock & Evans, and subjecting the same to the payment of an execution, which complainant held against said Evans.

<p>1. Chancery Practice—Appointment of a Receiver.—The appointment of a receiver is always a matter resting in the sound judicial discretion of the court, to be exercised or refused as may be right and proper under all the circumstances of the case. Upon a bill filed to set aside a deed upon the ground that it was made with intent to hinder, delay, and defraud the complainant and others, creditors of the grantor, and that a fictitious debt was therein secured, and praying the appointment of a receiver, the action of the trial court in appointing a receiver will not be reversed where it appears that the grantor and trustee had notice of the intended application, and did not, by affidavit or otherwise, deny the fraudulent intent of the grantor, or knowledge thereof of the trustee, or the character of the debt charged to be fictitious.</p>

<p>1. Electoral Boards—Record of Proceedings how far Open to Inspection.— So much of the record of the proceedings of Electoral Boards as relates to the.appointment and removal of judges and commissioners of election and registrars, or the ordering of a new registration, is a public record, open to inspection by any citizen and voter of the county in which the record is kept, and he may take therefrom at and within a reasonable time, in the presence of the secretary of the Board, memoranda or notes of the proceedings of the Board as to which no secrecy is enjoined. But so much of said records as relates to the preparation and printing of the official ballots prescribed by law, certification of the same, and their distribution to the judges of election, is not a public record that is open to the inspection of any one, other than the officers of the county to whom the duties of • preparing, printing, certifying, and distributing the ballots are confided by law, and the secretary of the Board cannot be compelled to allow memoranda or notes thereof to be taken, or that portion of the records to be inspected, by any other voter.</p>

<p>Appeal from a decree of the Hustings Court of Roanoke city, pronounced October 19, 1894, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Hustings Court of the city of Roanoke, pronounced February, 24, 1894, in a suit in' chancery, wherein Dennis, Truitt & Co. and others, were the complainants, and Lavinia Trimmer was the defendant.</p>

This was a proceeding by motion in the name of the State Savings Bank against the four makers, and the endorser, of a negotiable note for $550. The makers having failed to appear and make defence, and “ the plaintiff having proved its claim to the satisfaction of the court,” judgment was entered against them, and, at a subsequent term, a judgment in favor of the endorser against the holder. There does not appear to have been any pleadings on the part of the defendants.

<p>Appeal from a decree of the Corporation Court of the city of Roanoke, pronounced November 17, 1894, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>1. Trusts and Trustees—Loss of Funds—Negligence.—A. trustee was directed by the court, in a pending suit, to lend the trust fund and take as security therefor a deed of trust or mortgage on real estate. He loaned the money as directed, but took as security therefor a confession of judgment, upon which execution issued, but, by the direction of the trustee, it was not placed in the hands of the proper officer to be levied, whereby the limitation on the judgment was reduced to ten years.- The investment by the trustee was reported to the court and confirmed, and three years after making the investment the trustee was removed, and the general receiver of the court substituted in his stead. The debt was amply secured, but was lost solely by permitting the judgment to become barred by the statute of limitations, after the substitution of the general receiver.</p> <p>Held :</p> <p>The trustee is not liable for the loss, but the general receiver is. It was the duty of the general receiver to ascertain when the judgment would become barred, and to provide against that contingency, and there is nothing in the facts of this case to exempt him from the performance of that duty.</p>

Argued at Wytheville. Decided at Staunton. Appeal from a decree of the Corporation Court of the city of Roanoke, pronounced April 1, 1893, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants. The above mentioned decree was pronounced in two chancery suits heard together, but which the petition for appeal says were consolidated.

<p>Error to a judgment of the Circuit Court of Rockingham ■county, rendered October 27, 1894, on a motion to recover money wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

Wilson, suing on behalf of herself and others, creditors of Geo. A. Wilson, deceased, was the complainant, and the appellant and others were the -defendants. The facts sufficiently appear in the opinion of the court, but as “ the practice adopted in the institution of this suit ” is criticised in the opinion of Judge Harrison, the bill is given in full.

<p>Error to a judgment of the Circuit Court of Rockingham county, rendered April 18, 1895, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

The object of this suit was to have declared void a deed made by Elizabeth Fackler to her son, the appellant, in so far as said deed undertook to convey to him anything greater than an estate for the life of said Elizabeth in a tract of nineteen acres of land mentioned in the bill. It is not distinctly stated in the record, but the arguments of counsel seem to concede the fact that Elizabeth Fackler survived her husband, and then made the deed which is assailed.

<p>Appeal from a decree of the Circuit Court of Bath county, pronounced April 27, 1896, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Vendor’s Lien Reserved in Deed—Extent of—Matter of Contract— Case at Bar.—The extent of the lien reserved on the face of a deed does not depend upon the extent of the vendor’s interest in the land conveyed, but upon the contract of the parties as gathered from the deed itself, in reserving the lien. In the case at bar, the grantors, owning several parcels of the same tract of land, united in a deed by which they conveyed the land to the grantee as one tract. The vendors warrant generally the title to the whole tract. Only one sum is named as the consideration, and the vendor’s lien was retained upon the land conveyed, to secure the bonds of the vendee for deferred payments of purchase money. The lien thus reserved is on the entire tract for the whole of the purchase money, and not on the several parcels for the amounts due the respective vendors thereof.</p>

This was a proceeding by motion by an assignee against a remote assignor of a note which was conceded to be not negotiable, because it did not appear on its face to be payable at a bank in this State. The following is a copy of the note: “$1234.00. Harrisonburg, Va., March 8, 1892.

This was a suit in chancery instituted for the purpose of having partition of a tract of two hundred and ninety-two acres of land which had been the equitable separate estate in fee of Mary E. Kiracofe, and which she had devised to her children. The defendants were the devisees under the will (other than the complainant who was one of such devisees) and the surviving husband of the testatrix.

<p>1. Chancery Pleading—Petition to Rehear—Bill of Review.—The bill of complainants cannot, under the facts of this case, be considered as a petition to rehear the decree complained of in the original suit, nor as a bill of review. Not as a petition to rehear because the decree is final, nor as a bill of review, because the error is not apparent on the face of the record, and the bill falls far short of the requisites of a bill of review upon the ground of after discovered evidence. The bill is not sworn to, nor was leave obtained to file it, nor does it make the necessary parties, nor is there a suggestion in the bill of any after discovered evidence. For the character of the evidence necessary to support a bill of review see the opinion of the court.</p> <p>2. Res Judicata—Extent of Application of the Plea of.—The plea of res judicata applies, except in special cases, not only to all matters actually adjudicated on the former hearing, but to every point, which properly belonged to the subject of litigation, or which the parties, exercising reasonable diligence, might have brought forward at the time.</p>

This was an action of covenant on an insurance policy. The following are copies of the policy and of the declaration thereon: “ Certificate of membership—Fourth Class. “No. 13645. $1000. “ Endowment Rank of the Order of Knights of Pythias. “ This certifies that Brother William H. Weller received the Endowment Rank of the order of Knights of Pythias in Section No. 520, on November 9, 1881, and is a' member in good standing in said Rank.

<p>1. County Property—For what Purpose to be Used—Powers of County Courts Over—Lease for a Law-Office.—County courts had no authority, either under the Code of 1819 (1 Rev. Code, ch. 71, sec. 16), or the Code of 1849 (ch. 50, sec. 1), to authorize or permit the use of lands acquired for a court-house, jail, and other public buildings, for any other purpose than those mentioned in the Codes. The power of acquisition was for a special purpose, and the use was confined to the purpose for which authority to acquire was given, and subject to the restrictions imposed; and it is immaterial whether the land was acquired by gift, or purchase, if held under the general law. The uses to which the court was required to put the land exhausted the purposes for which it could be used. It had no authority to authorize the erection of a law office on the land upon payment of a ground rent.</p> <p>2. County Property—Uses of—Authority of Board of Supervisors Over.— The Act of Assembly placing the corporate property of counties under the control and management of the board of supervisors of the counties (Acts 1878-’9, ch. 58, sec. 7) did not change the uses to which the public property might be put, but is to be construed in connection with the prior law designating such uses, and the designation of these uses is not discretionary, but mandatory.</p> <p>3. County and Municipal Officers—Powers to Contract—Ultra Vires Contracts—Estoppel.—The agents, officers, or governing body of a municipal corporation or a county, cannot bind the corporation or county by a contract which is beyond the scope of its powers. Such contracts are ultra vires and void, and, in actions thereon, the want of power to execute is a complete defence, and the county or corporation is not estopped from setting it up.</p> <p>4. Adversary Possession—Vendor and Vendee.—A defence based on adversary possession for a sufficient length of time to bar the plaintiff’s claim cannot be made where the plaintiff and the defendant occupy the relation of vendor and vendee, with the legal title outstanding in the vendor, and especially where the suit is based upon that relation.</p>

Smith and others were the complainants, and Treadwell Smith’s Executor and others were the defendants, in which suit appellant filed his petitions.

, were the complainants, and the appellees, were the defendants. The complainants filed their bill in the Circuit Court of Albemarle county against John S. Martin & Co. (composed of John S. Martin and Jacob L. Moon), and the trustees and creditors secured in the deeds hereinafter mentioned. The bill charges that the firm of John S. Martin & Co. made a general assignment of all of its assets on March 20, 1893, for the benefit of its creditors, without preference.

In April, 1890, complainants filed their bill against the defendants setting out a contract which had been made in 1856 between William T. Early and J. Augustus Michie of the one part, and John Cochran of the other part, by which Cochran had contracted to make and keep open a ditch eight feet wide and two feet deep through certain lands of Cochran to the boundary line of Early and Michie so as to completely drain the lands of the latter.

This was an action by a youth sixteen or seventeen years of age, suing by his next friend, to recover damages for a personal injury to him while stealing a ride on one of the fast freight trains of the plaintiff in error. The defendant in error claims that he was kicked off the train by the front brakeman, while the train was in motion, and, in consequence, fell on the track and was run over and had his right arm and leg crushed so badly as to necessitate amputation.

William Ashby is a child seven years old. While his father and mother were both in jail on criminal charges, of which they were subsequently acquitted, William was arrested, tried, and convicted by a justice of the peace for the larceny of an axe. He was sentenced to the Prison Association of Virginia for an indefinite period, which, according to law, may be until he is twenty-one years of age, but cannot be longer.

Argued at Staunton. Decided at Richmond. Error to a judgment of the Circuit Court of Albemarle county, rendered May 19, 1896, in an action of detinue, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant. This was an action of detinue in the Circuit Court of Albemarle county, brought by M. Kaufman against the Charlottesville Woolen Mills, to recover eleven shares of stock of the defendant company, of the value of fifty dollars each.

Argued at Staunton. Decided at Richmond. Error to a judgment of the Hustings Court of the city of Staunton, rendered November 9, 1894, in a proceeding by motion under section 8211 of the Code, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. This was a proceeding by notice of a motion for a judgment before the Hustings Court of the city of Staunton, to recover the amount of an open account.

Argued at Staunton. Decided at Richmond. Appeal from decrees of the Circuit Court of Frederick county, pronounced in the chancery causes of Barton’s Ex’ors. v. Barton’s Heirs and Williams’s Admr. v. Barton’s Ex’ors. heard together, in which the claims of the appellees were proved.

Argued at Staunton. Decided at Richmond. Appeal from a decree of the Circuit Court of Shenandoah county, pronounced September 7, 1894, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.

<p>1. Chancery Practice—Continuance—Rehearing—Verbal Agreements of Counsel—Case at Bar.—Refusal to continue a chancery suit, in a proper case for a continuance, is good ground for a motion to rehear an interlocutory decree, but the decree should, as a general rule, show that a motion for a continuance was made and overruled. If, however, the decree fails to show that the motion was made, but it is averred in the petition for rehearing and not denied, this is sufficient. The granting of a rehearing to an interlocutory decree is a matter within the sound discretion of the Court, and courts are more liberal in granting rehearings than in reviewing final decrees, especially if a case has not been heard on its merits. Verbal agreements of counsel, especially if disputed, will as a rule be disregarded, but if such agreement results in surprise to one of the parties, and is likely to work injustice to him, the court may grant him relief on equitable terms. In the case at bar, the petition for rehearing presents a case in which the petitioner has a defence to the claim asserted against him, which, if presented at the proper time, would have been a complete answer to the claim, but which was not presented at the proper time because petitioner’s counsel honestly believed that an agreement existed between him and the opposing counsel that the cause was to await the hearing of another cause in the same court, involving the same question, in which depositions had been taken, and that the depositions should be read in both causes, and therefore had not taken proof in petitioner’s cause. Under these circumstances the rehearing should have been granted.</p>

Argued at Staunton. Decided at Richmond. Error to a judgment of the Circuit Court of Frederick county, rendered January 8, 1896, 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 a reward of $500 offered by the City Council of Winchester to secure the apprehension and conviction of incendiaries.

Argued at Staunton. Decided at Richmond. Appeal from several decrees of the Circuit Court of Shenandoah county, pronounced in a suit in chancery wherein appellees were the complainants, and the appellant and others were the defendants. The general receiver of the court had collected funds in numerous chancery suits for which he and his sureties were liable, and it was sought in this suit to recover of his representative, and his sureties as receiver, the balances due by him.

•Appeal from a decree of the Circuit Court of Shenandoah county, pronounced September 10, 1895, in a suit in chancery wherein the appellee, Isaac Foltz, was the complainant, and the appellants and others were the defendants.

Argued at Staunton. Decided at Richmond. Appeal from a decree of the Hustings Court of the city of Staunton, pronounced September 21, 1895, in a suit in chancery wherein the appellee was the complainant, and the appellant and another were the defendants.

<p>Argued at Richmond. Decided at Wytheyiile.</p> <p>Error to a judgment of the Circuit Court of Appomattox county, rendered December 10,1894, affirming the judgment of the County Court of said county, rendered November 9, 1893, whereby the plaintiff in error was adjudged to pay a fine of $50 for running a freight train on Sunday.</p>

<p>1. Ckihinal Peoceduee—Indictment—Venue.—An indictment which charges that an offence was committed “ within the jurisdiction of the Court,” but does not state where the offence was committed is bad on demurrer. Jurisdiction is matter of law. The place where an offence is committed is a matter of fact. It is necessary to aver and prove the place where the offence is alleged to have been committed.</p>

<p>Petition for a writ of error to a judgment of the Corporation Court of the city of Norfolk, rendered July 30, 1896, whereby the petitioner was sentenced to be hanged.</p>

<p>Error to a judgment of the Circuit Court of Greene county, rendered at June term, 1893, affirming the judgment of the County Court of said county rendered January 14, 1893, upon an indictment for retailing liquor without license.</p>

The notice of the intended application for the mandamus was served on the defendant Hudgins, but the case was not heard at the term appointed, to-wit, October term, 1891, and at the September term, 1892, an order was entered directing “that Alexander James, the present oyster inspector, be made a party defendant,” it appearing that Hudgins was no longer oyster inspector.

<p>1. Equitable Defences at Law—Sec. 8299 of Code.—A plea by way of special set-off under Section 8299 of the Code cannot be relied on which sets up equitable grounds of defence which require a rescission of the contract in suit, and a re-investment of the vendor with the interest alleged to have been sold. This defence can only be made in a court of equity.</p> <p>2. Construction of Statutes—Effect of Re-enactment after having been Construed.—Where a statute has been construed by the courts and afterwards re-enacted by the Legislature, the construction given to it by the courts is presumed to have been sanctioned by the Legislature, and thenceforth becomes obligatory upon the courts.</p>

Argued at Wytheville. Decided at Staunton. Error to a judgment of the Circuit Court of Wythe county, rendered September 26,1898, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. This was an action of trespass on the case brought by Samuel Martin’s administrator against the Bertha Zinc Company to recover damages for the death of the plaintiff’s intestate occasioned by an explosion of dynamite.

Argued at Wytheville. Decided at Staunton. Appeal from a decree of the Circuit Court of Wythe county, pronounced November 17, 1894, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants. This was a suit for the specific performance of a contract of sale of a tract' of 262 acres of land in Wythe county.

The opinion states the evidence. The first three instructions asked by the plaintiff in error and given by the trial court were as follows: “ The court instructs the jury that in order to convict the defendant, Mills, the prosecution must prove to the satisfaction of the jury beyond a reasonable doubt— “First. That the prosecutrix, Berta Puryear, was, previous to the alleged seduction, of chaste character. “Second.

<p>Appeal from a decree of the Circuit Court of Washington county, pronounced October 12, 1894, in a suit in chancery wherein the appellees were the complainants, and the appellants were the defendants.</p>