Volume 94 — Virginia Reports

S. Gooch, trustee, was the complainant, and L. L. Powell, trustee and others were the defendants, in which appellants filed their petition.

<p>1. Prohibition — Province of Writ — Case at Bai — Continuance.■—-The writ of prohibition does not lie to correct error, but to restrain an inferior court from acting in a matter of which it has no jurisdiction, or in which it is exceeding its jurisdiction. In the case at bar the Corporation Court of the city of Newport News had jurisdiction of the contested election for mayor of the city, and was not exceeding it, and the continuance of one branch of the case did not operate as a discontinuance of the contest.</p>

<p>Error to judgment of the Circuit Court of Nelson county, rendered October 2, 1894, 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>

October 6, 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. A verdict was rendered for the defendant April 4, 1893, which the plaintiff moved the court to set aside as contrary to the law and the evidence, but the court, not being advised of its judgment, continued this cause till the next term of the court.

The decrees appealed from were pronounced in six chancery suits heard together. Three of these were in the names of Thomas S. Martin, J. L. Moon, and Pitts & Doirier, respectively, against the South Salem Land Company and others, defendants.

After the evidence, which is set out in the opinion of the court, had been introduced, the plaintiff in the court below asked the court to instruct the jury as follows: “ If the jury believe from the evidence that the defendant was in possession of the land in the declaration mentioned, and constructing the building on the east side of Crawford or First street, and that the plaintiff was injured by an iron ball, which was rolled from the hands of the woi-kmen from the roof…

<p>Error to a judgment of the Corporation Court of the city of Norfolk, rendered February 16, 1894, on a motion to try the claim to certain personal property, wherein the plaintiffs in error were the plaintiffs, and the defendants in error were the defendants.</p> <p>The plaintiffs in error, being execution creditors of M. Madden, caused their y?, fa. to be levied on the stock of goods and certain store fixtures in the city of Norfolk. The property levied on was claimed by M. E. Madden and an indemnifying bond required, which was immediately given. Thereupon M. E. Madden gave a suspending bond with condition as required by law, anda delivery bond with condition to-have the property forthcoming on the day of sale. The plaintiffs then filed their petition in the Corporation Court of the city of Norfolk, praying that M. E. Madden be summoned before the court on a day named “and that the claims to the said property may be adjudicated.” The printed record does not disclose any pleadings except the petition above mentioned. The following is a statement of the facts agreed between the parties:</p> <p>Facts agreed by counsel on both sides.</p> <p>1. “That M. Madden conducted the business of haberdasher at No. 210 Main street, in the city of Norfolk, Virginia, for about two years prior to the date of the bill of sale to M. E. Madden.</p> <p>2. “That the sign at his place of business has always been upon his window shades in these words: CM, Madden — The Haberdasher;5 that this sign remained unchanged until after the writ of fieri facias was levied in this cause; and there was no other sign.</p> <p>3. “That M. Madden and Alex. Byrd, have been in the store, selling goods, ever since the day of the bill of sale, but in what capacity petitioners are not informed, and that Alex. Byrd had been employed as clerk by M. Madden about one year prior to the date of the bill of sale.</p> <p>4. “That the license to conduct the business at No. 210 Main street, continued in the name of M. Madden, until after the levy made in this case.</p> <p>5. “That Michael Madden sold and conveyed to Mary E. Madden, the stock of goods in the store No. 210 Main street, on the 13th day of July, 1893, by bill of sale duly recorded, a copy of which is herewith filed, and the petitioner knows of no ground on which it can now be attacked, except such, if there be any, now apparent on the face of the record of this case, and that the said Mary E. Madden took possession of the stock of goods oo the 13th day of July, 1893.</p> <p>6. “That the debt of the petitioner was all contracted prior to the 13th day of July, 1893, as per bill filed herewith.</p> <p>7. “That M. E. ."Madden advertised in the Norfolk Landmark on the 18th day of July, 1893, her purchase of the stock, and that she would carry on the business in her own name and for her own account, and she files herewith a certified copy of that advertisement.”</p> <p>The parties waived a jury, and submitted the matter to the court, which rendered the judgment to which this writ of error was awarded. The judgment was as follows:</p> <p>“Upon the petition of Alfred Benjamin & Co., the plaintiffs in this proceeding, filed in this case on the 2d day of January, 1894, praying that Mary E. Madden might be summoned before this court, and that the claims to the property levied on by the said plaintiffs might be adjudicated, and the said Mary E. Madden having appeared, and the jury waived, and the whole matter of law and fact submitted to the court, was argued by counsel. On consideration whereof, the court is of opinion, upon the pleadings and the statement of agreed facts filed in the case, that the property levied on under the fieri facias, in the proceedings mentioned, was and is the property of the said Mary E. Madden, and not liable to the lien of the said execution, and therefore it is adjudged and ordered that the said property be discharged from the said levy, and that the said Mary E. Madden do recover of the plaintiffs her costs by her about this proceeding expended.</p> <p>“Whereupon the said Alfred Benjamin & Co., the petitioners aforesaid, moved the court to set aside the foregoing order, grant a rehearing of said petition, which motion being overruled, the petitioners excepted.</p>

McVeigh and others, wherein the appellee filed his petition asserting a debt against the estate of the complainant’s testator.

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced July 6, 1894, in the chancery suit of Powell's Ex'or v. Newcomer da others, in which appellee filed a petition asserting a claim for taxes.</p>

<p>1. Instructions—Lack of evidence to support.—An instruction should not be given when there is no evidence to support it. In the case at bar there was no evidence to support one of the instructions given, and the tendency of the instruction was to mislead the jury.</p> <p>2. Instructions—Objection by party asking it—Estoppel.—Where an instruction has been asked for by a party, and is modified by the court so as to conform exactly to another instruction asked for by such party and given by the court, he cannot be heard in the appellate court to object to the modification which thus conforms to what he has asked for and obtained.</p> <p>3. Railroad Companies—Duty to persons at public crossings—Proper care and diligence—Case at bar.—A railroad company is liable for a personal injury inflicted on a passenger at a public crossing, if its agents or servants in charge of a moving train saw him in a position of danger, or by the use of due diligence, might have seen him, and failed to exercise proper care and due diligence to stop the train and prevent it from striking him. But what is proper care and due diligence is to be determined by the facts and circumstances of the particular case. In the case at bar, the decedent who attempted to cross the track in front of a rapidly moving train, by his own negligence and recklessness, directly and proximately, contributed to his own death.</p>

This was a bill filed to enforce a lien for supplies furnished by the appellant to the Carman Lumber Company. The bill charges that the Carman Lumber Company was a manufacturing company engaged in the manufacture of lumber, lathes, &c., and that the apparatus furnished by it was “supplies necessary to the operation” of the defendant’s business.

This is an action of ejectment instituted in the Circuit Court of Wise county by Aaron H. Hash against James Wright. Both the plaintiff and the defendant died pending the action and the suit was properly revived. Before trial, the plaintiff in error, the Virginia & Tennessee Coal & Iron Company, was, on its petition, admitted a party defendant in the action, and became the principal defendant.

<p>Appeal from a decree of the Circuit Court of the city of Norfolk, pronounced September 29, 1893, in a suit in chancery wherein the appellants were the complainants, and the appellees w ere the defendants.</p>

<p>1. Chancery Pleading—Want of Jurisdiction—When and where objection made.—An objection to a bill for want of jurisdiction may be taken for the first time in the appellate court, though there was no demurrer to the bill in the trial court.</p> <p>2. Chancery Jurisdiction—Disputed boundaries—When courts of equity will interpose.—Courts of equity will not interpose to ascertain boundaries, unless, in addition to the confusion of the controverted boundaries, there is suggested some peculiar equity, which has arisen from the conduct, situation, or relation of the parties, but will leave the parties to their remedies at law.</p> <p>3. Chancery Jurisdiction—Bill for discovery—What bill must charge when the demand is legal.—When an attempt is made to enforce a legal demand in a court of equity, and the alleged ground of equity is the need of a discovery, the bill must aver that the discovery is material and necessary. A bill which charges that the defendant has in his possession a deed and plat which will show the true boundaries of land claimed by the complainant, and which prays for the production of the deed, but does not aver that the deed is necessary for the purpose, but admits that the courses and distances are well known to the complainants, is bad on demurrer. The complainant has an adequate remedy at law.</p> <p>4. Injunctions—Trespass—Irreparable injury—Insolvency of defendant.—A court of equity will not enjoin a trespass at the instance of a party averring a good legal title, unless the bill charges that irreparable injury will result if the injunction is denied—setting forth the facts constituting the injury—or that the defendant is insolvent.</p>

After the evidence was in, the plaintiff tendered the following instructions: Instruction “No. 9.” “The court instructs the jury that they must disregard all of the parol evidence of the witnesses in this case as to what occurred before or at the time of the execution by W. G. Yenable, cashier, of the receipt given to W. H. Richardson, on the 4th of March, 1892, and set out in the plaintiff’s declaration, which tends to vary, contradict, add. to, or explain the terms of said…

C. Jones, Trustee, v. The Domestic Sewing Machine Company and others, in which the appellant filed a cross-bill against the parties to the original suit, the appellee and others.

This was a proceeding by notice on an insurance policy on the life of Augustus M. Broach. The beneficiary in the policy, the plaintiff in the'court below, wasDollieE. Pollard, his daughter.

The declaration is this case was in the following words and figures: ££R. M. Burton, plaintiff, complains of J. L. Wilson, W. C. Corson, and S. O. Smith, surviving obligors of themselves and John R. Wilson, of a plea of covenant broken; for this, to-wit: That heretofore, to-wit, on the 14th day of November, 1890, by a certain indenture then and there made, between the plaintiff of the one part, and the ” said defendants and John R. Wilson, since deceased, of the other part,…

The plaintiffs were dissatisfied with the instructions of the court and the amount of their recovery, and the defendant contends that the’ plaintiffs were not entitled to recover at all, as he contended that the lease was for a period of ten years, and not being under seal was void, and hence, each party applied for a writ of error which was awarded.

J. C. James became indebted to the complainants between October 31, 1889, and March 13, 1890, in the sum of $496.86, for goods, wares, and merchandise. The debt was evidenced by an open account, upon which judgment was rendered in favor of the complainants in the spring of 1891. On the 24th day of August, 1888, James took out a policy on his life in the Maryland Life Insurance Company for the sum of $5,000 for the benefit of his wife and only child.

<p>1. Liens— When lobe marked satisfied—Section 3498 of Code.—The object of section 2498 of the Code is to afford a summary remedy for having marked satisfied the liens therein mentioned upon proof that the debt has been actually paid or discharged, and was not intended to enable persons to have such liens marked satisfied because liable to be defeated by presumption of payment, or because barred by the statute of limitations.</p>

<p>1. New Trials — Payment of costs. — Where a new trial has been granted upon condition of paying the costs of the former trial, as provided by section 3542 of the Code, it is sufficient if the costs are paid or tendered at any time before the order granting the new trial has been set aside, and after such tender or payment it is error to rescind the order for the new trial.</p>

<p>1. Pleading — Declaration—Defective counts — Harmless error.- — Where two counts in a declaration in an action for personal injuries state in detail all the circumstances connected with the occurrence, and there has been a verdict for the plaintiff, which was set aside on a demurrer to the evidence, the Court of Appeals will not reverse the judgment of a trial court sustaining a demurrer to another count in the declaration stating the same case in very general terms, although the count may have been good. If there was error, it was harmless.</p> <p>2. Evidence — Dangerous locality — Opinions of witnesses. — In an action for personal injuries, witnesses cannot be allowed to express their opinions as to whether the locality at which the injury was inflicted was dangerous or not.</p> <p>3. Bill of Exceptions — When not considered by Appellate Court — Relevancy of evidence — Answer of witness. — If a bill of exception to the ruling of the trial court allowing or refusing to allow a question to be answered by a witness, fails to give the answer of the witness, or what is expected to be proved by him, the Appellate Court cannot determine the relevancy, admissibility, or value of the answer, and the exception will not be considered.</p> <p>4. Demurrer to Evidence — What is admitted — Case at bar — -Railroad crossing. — By a demurrer to the evidence the party is considered as admitting the truth of his adversary’s evidence, and all just inferences which can be properly drawn therefrom by a 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. Upon the evidence in the case at bar the demurrer to the evidence was properly sustained.</p>

<p>Appeal from a decree of the Circuit Court of Halifax county, pronounced March 28, 1894, in a suit in chancery wherein the appellees were the complainants, and the appellant and others were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Alexandria county, pronounced July 2, 1894, in several chancery suits heard together, in one of which the appellant was the complainant, and The Potomac Electric Co., and others, were the defendants.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered November 27, 1893, in an action of assumpsit wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Original application for a writ of Mandamus against the Auditor of Public Accounts.</p>

<p>Appeal from a decree of the Circuit Court of Orange county-pronounced March 1, 1894, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Corporation Court of the city of Danville, pronounced October 11, 1894, 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 Cathryn Keogh Conrad, widow of Charles H. Conrad, against the Administrator and heirs of Charles H. Conrad, for the purpose of having dower assigned to her in bind, or the commuted value thereof paid in money in the event it could not be assigned in kind; and also for an account of the rents and profits of the real estate of said Conrad since his death. The bill charged that there were deeds of trust on some of the land in which she had united with her husband, and that some payments had been made to her since the death of her husband by his administrator, for the support of herself and six infant children of her husband who had resided with her since his death. The bill prayed for an account of the liens on the real estate, and incidentally for the settlement of other accounts, and for making certain enquiries not necessary to be stated. Commissioners were appointed to assign dower. They made their assignment and reported it to the court. Exceptions were filed to the report of the commissioners, but were overruled. Pending the suit the complainant intermarried with Louis Cullen Fuller. From the decree overruling the exceptions, and confirming said report, this appeal was allowed.</p>

JET. White, was the complainant, and the appellant and others were the defendants. This was a suit instituted in the Chancery Court of the city of Bichmond by W. H. White for the purpose of foreclosing a mortgage for $10,000, executed to him by Jacob S. Brown and John McAllister.

<p>Error to a judgment of the Circuit Court of the city of Petersburg, rendered February 13, 1894, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Judicial Sales—Confirmation—Affidavits—Depositions—Reference to a Commissioner.—Upon a question of the confirmation of a judicial sale it is usual to allow either party to read exporte affidavits. But the trial court may, in its discretion, require depositions to be taken, in whole or in part, or refer the matter to one of its commissioners. In the case at bar no objection was made to the reading of the affidavits, and the record does not disclose any error in permitting them to be read, even if that question could be raised for the first time in the appellate court.</p> <p>2. Judicial Sales—Terms differing from decree—Effect of confirmation.— Though a judicial sale be made on terms differing from those prescribed by the decree of sale, yet the confirmation of the report of sale cures the irregularity, and gives the sale the same validity and effect as if made upon the precise terms of the decree.</p> <p>3. Statute oe Frauds—Judicial sales, not within the Statute.—A party who relies on the statute of frauds must generally do so in his pleadings. A judicial sale, however, made under a decree of a court of chancery is not within the statute of frauds. It is binding on the bidder or purchaser without any written contract or memorandum signed by him or his agent.</p> <p>4. Judicial Sales—Rule against purchaser to compel compliance with.—A purchaser at a judicial sale who fails to complete his purchase or to comply with the terms of sale may be proceeded against by rule and compelled to do so.</p>

<p>1. Insolvent Corporations—Equity jurisdiction at suit of simple contract creditor.—A court of equity has jurisdiction to entertain the suit of a simple contract creditor who has no lien, brought for the purpose of administering the assets of an insolvent and abandoned corporation. Einney v. Bennett, 27 Gratt. 365, approved.</p> <p>2. Multifariousness.—Whether or not a bill is multifarious depends upon its allegations, and not upon its prayer. Where the plaintiffs have a common interest in the subject matter of the suit, the litigation grows out of one and the same transaction, the defendants have a co-extensive interest and liability, and can suffer no possible disadvantage from the frame of the bill, and a multiplicity of suits will be avoided, the bill cannot be said to be multifarious.</p>

0. Nolting, styling himself W. 0. Nolting, Cashier,” was the plaintiff, and the plaintiff in error was the defendant. The declaration contained counts for goods sold and delivered, for work and labor performed, and the usual ‘ ‘money - counts.” There was no special count setting out the real transaction between the parties. There was a demurrer to the declaration, and to each count thereof, but this was overruled, and the defendant pleaded non-assumpsit.

The declaration in this case was in the words and figures following, to-wit: “ J. M. Powell, plaintiff, complains of the Western Union Telegraph Company, a corporation, defendant, of a plea that it render unto the plaintiff the sum of one hundred dollars, which it owes to and unjustly detains from him for this, to-wit: that the plaintiff, who resides in the city of Richmond, at No. 1107 Taylor street, was at Mathews courthouse, in the county of Mathews, Virginia, on…

<p>1. Court of Appeals—Errors of trial court—Motion for new trial.—Unless the record shows that a motion for a new trial was made in the court below, and overruled, and that its ruling was excepted to, the Court of Appeals will not review the judgment, but it is not necessary that a formal bill of exceptions be taken to the ruling of the court. In the case at bar it sufficiently appears that exception was taken to the action of the court in overruling the motion for a new trial, as the record shows that a motion for a new trial was made and overruled; that the defendant excepted to “ sundry rulings and opinions of the court given on said trial and to the judgment entered therein ” ; and that there were but three rulings and opinions given on the trial&emdash;the refusal to grant one instruction, the granting of another, and the overruling of the motion for a new trial. The motion for a new trial is the only one of the three which would have intercepted judgment after the verdict.</p> <p>2. City Ordinance—Renting market stalls at auction—Fees of auctioneer.—A city ordinance which authorizes an officer to rent stalls in the market house at public auction does not authorize him to employ an auctioneer at the expense of the city. He is limited to his salary as compensation for all duties to be performed by him, unless otherwise provided, either expressly or by necessary implication. A renting at public auction simply required it to be made in public to the highest bidder. A regular auctioneer was wholly unnecessary to the validity of the renting.</p>

<p>1. Instructions—Failure to except to.—This court will not consider objections to instructions given by the trial court, when it appears that no exception was taken to the action of the trial court in giving the instructions complained of.</p> <p>2. Measure of Damages—Personal injuries—Excessive verdict.—There is no legal measure of damages for the pain and anguish resulting from a personal injury, and, ordinarily, the court will leave the question of amount to the sound discretion of the jury, and will not set aside a verdict as excessive unless the damages are so^reat as to indicate that the jury was actuated by partiality or prejudice, or acted under some gross error or misconception of the subject.</p> <p>3. Negligence— Obstructing streets.—It is negligence in a city to allow its streets to remain obstructed at night, without taking reasonable and proper precautions to light them so as to enable persons travelling thereon to observe the obstruction by the use of ordinary care.</p> <p>4. New Trials—After-discovered evidence—Case at bar.—A motion for a new trial on the ground of after-discovered evidence should not be granted unless it appears that the evidence was discovered after the trial; that it could not, by the exercise of reasonable diligence, have been discovered before the trial; that it was material, and such as ought on another trial to produce an opposite result on the merits; and that it is not merely cumulative, corroborative, or collateral. In the case at bar, the evidence was discovered during the trial, and might have been discovered before the trial by the exercise of reasonable diligence, and the record fails to disclose that any motion was made to postpone the case till the evidence could be obtained.</p>

<p>Original application for a writ of mandamus.</p>

<p>Appeal from a decree of the Circuit Court -of Fansemond county, pronounced October 13, 1894, in a suit in chancery wherein the appellants were the complainants and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered April 15, 1895, 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>1. Pleading — Duplicity—Several facts constituting one warranty. — An entire and indivisible contract of -warranty or guaranty may warrant or guarantee the existence of several facts, and if a breach of the contract be relied on by way of set-off to an action to recover the purchase price of the article warranted, the several facts which constitute the breach should be pleaded in a single plea.</p> <p>2. Custom— Usage of trade. — A usage in opposition to the common law, however general it may be, has no force in this State on the ground of custom, and there is no customary law in Virginia, which, per se, can vest a right in a party claiming under it; but a usage or custom of trade may be shown.</p> <p>3. Principal and Agent — General agents to sell — Powers to warrant — Usageof trade — Restrictions by principal. — A general agent to sell personal property is presumed to have power to make such warranties with reference to the property as are usual and customary in like sales in that locality. It is competent for the party relying upon such warranty to prove as a usage of trade, what warranties are usually demanded by the buyer and given by the agents of the seller in effecting sales of similar articles in that locality. A restriction upon the power of the agent to make the usual warranties in effecting like sales, of which the buyer has no notice or knowledge, is not binding on him. If there be evidence tending to prove what warranties are usually given by agents in effecting like sales, it is for the jury to determine whether, in the particular case, the agent was clothed with the requisite authority.</p> <p>4. Warranty— What constitutes. — An affirmation of quality by the seller of goods at the time of sale, intended as an assurance of fact and relied on by the buyer, constitutes a warranty. No particular form of words is necessary to constitute a warranty. If the seller assumes to assert a fact, of which the buyer is ignorant, or makes a representation of quality which the buyer relies upon as a warranty and is thereby induced to make the purchase, the seller is bound by it as a warranty, whether he so intended it or not.</p> <p>5. Warranty of Quality — Measure of damages for breach. — In an action to recover the price of fertilizers sold, where the defence is a breach of warranty of the quality of the fertilizer, it is not error to instruct the jury that they are to look to the evidence for proof of the warranty and its breach, and, if established, they must find for the defendant “such damages as have resulted naturally from the breach of the said warranty.” “Naturally” here means legitimately, and the instruction leaves it to the jury to determine from the evidence the amount of such damages!</p> <p>6. Principal and Agent — General agent to sell — Powers of — Warranties.—A general agent to sell is authorized to do whatever is usual in the market to carry out the object of his agency. But it is for the jury to determine upon the evidence what is usual. It iá not necessary for the principal to have notice of the course of business. If such agent, in accordance with the usage of trade of the place of sale, gives a warranty of the quality of the goods sold, which is not in itself unjust to his principal, the latter will be bound by it, although ignorant of such usage.</p> <p>7. Warranty of Quality of Fertilizer — How breach proved. — Upon proof of a warranty that a fertilizer is as good as any other article of a like character and price offered upon the same market', a breach of the warranty may be established by proof that when applied in like quantities to the same crop, during the same season, upon the same land, receiving the same cultivation, results were obtained from the warranted fertilizer inferior to those obtained from other fertilizers offered upon the same market at the same price.</p>

William H. Temple and wife conveyed a tract of land of about ninety-six acres, situate in Brunswick county, to B. Gr.

<p>1. Partition — IAen for owelty — Duration of — Personal decree — Merger.—A lien for owelty of partition partakes of the nature of a vendor’s lien, and constitutes a prior encumbrance on the land on which it is charged, and follows the land into whosesoever hands it may come. The land of greater value, and not its owner, is, however, the sole debtor. It is improper to render a personal decree against the owner of the more valuable piece of land for the difference in values, but the lien is not released by taking such personal decree or other security, nor is it merged in such decree, but subsists until it is clearly shown to have been waived, releaséd, or satisfied.</p> <p>2. Partition — Lien for owelty — Statute of limitations — Presumption of payment — Case at bar. — Prior to the Code of 1887 there was no statutory limit to the enforcement of a vendor’s lien, or a lien for owelty of partition, but the same continued until waived, released, or satisfied, or until sufficient time elapsed to raise the presumption of payment. In the case at bar the decree for partition was made prior to the adoption of the Code of 1887, and the evidence not only repels the presumption of payment, which is a mere presumption of fact, but shows that the lien has been neither waived, released, nor satisfied.</p> <p>3. Laches — Ignorance of rights — Mere delay. — Laches cannot -be imputed to one who is ignorant of his rights. Nor is mere delay always to be considered as laches. The relations of the parties, their degree of kindred, the inability of the debtor to pay, and other circumstances, may be taken into consideration, and where it is clearly shown that the delay has worked no injury and can be satisfactorily accounted for, courts of equity will not allow it to defeat the recovery of a debt shown to be due and unpaid.</p> <p>4. Purchasers — Title papers — Notice—Means of knowledge — Equitable estoppel. It is the duty of a purchaser of real estate to look to the title papers under which he buys. He is charged with notice of all that the records disclose affecting his title, and also of all to which the knowledge there acquired would have led him. Means of knowledge with the duty of using them, are, in equity, equivalent to knowledge itself. In the absence of fraud or deception, where the same means and opportunities of tracing the title to real estate are equally open to both parties, the doctrine of equitable estoppel does not apply.</p>

<p>Appeal from a decree of the Corporation Court of the city of Lynchburg, pronounced December 8, 1894, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Fire Insurance—Policy—Conditions against encumbrances.—If a fire insurance policy contains a provision that the policy shall be void if the property be or become encumbered unless consent thereto be endorsed on the policy by an authorized agent of the insurance company, such encumbrance unknown to the company avoids the policy, although it is not customary to make that enquiry when policies are issued to large corporations.</p> <p>2. Fire Insurance—Policy—Type in which condition printed—Objection for first time in Appellate Court—Case at bar—An objection that the conditions of an insurance policy are not printed in type as large as long primer, as required by the statute, cannot be made for the first time in the Appellate Court. In the case at bar the company was allowed to rely on the. conditions in the policy which rendered it void, and the record fails to disclose that the conditions were not printed in the type prescribed by the statute, and hence the presumption is that the policy conformed to the statutory requirement.</p>

<p>1. Fire Insurance— Warranties —Parties are not held to have entered into warranties unless they clearly so intended, and, if a policy of insurance is so framed as to render it doubtful whether the parties intended that the exact truth of the applicant’s statement shall be a condition precedent to any binding contract, that construction which imposes upon the assured the obligation of a warranty should not be favored.</p> <p>2. Fire Insurance— Warranties—Burden of proof.—In an action upon a fire insurance policy the burden of proof is on the defendant to show a breach of affirmative warranties—mere statements of existing facts—by the plaintiff in his application for the insurance. It is not incumbent on the plaintiff to allege such warranties and aver their performance. They are not conditions precedent to his right of recovery.</p> <p>8. Evidence—Illegal evidence—When harmless error.—Although a question asked a witness, and his answer thereto, are iliegal and improper, yet if the propounder’s case has been completely made out without such question and answer, and the admission of the answer did not and could not affect the result, it is harmless error, and the Appellate Court will not, for this cause, reverse the judgment of the lower court.</p> <p>4. Fire Insurance—Over-valuation of property.—If the insurer of property is only liable for the actual cash value, the amount of the insurance or the value of the property is not material. Furthermore, an overvaluation to avoid a policy must be intentional and fraudulent, and not a fair expression of an honest opinion, and the fact that the property is considerably over-valued does not of itself establish such fraud on the part of the assured as will avoid the policy.</p>

■ Appeal from a decree of the Law and Equity Court of the city of Bichmond, pronounced May 6, 1895, in a suit in chancery wherein the appellee, Ballard, was the complainant, and the appellants and others were the defendants.

<p>Appeal from the Law and Equity Court of the city of Richmond, pronounced May 4, 1895, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p>

Cheatham, w as the complainant, and the appellees and others were the defendants. This suit was instituted by Mary J. Cheatham, the widow of T. M. Cheatham, and also the owner of the share of one of his surviving children, for the purpose of having the will of Ann P. Hatcher construed, to recover the com mated value of her dower interest in a part of the land, and to have partition of the residue of the'land in which she had an interest as grantee of her son.

<p>1. Pleading — Action for false imprisonment — Declaration-—-Sufficiency of. — In an action for false imprisonment, the declaration need not charge in express terms that the imprisonment was ‘ against the will of the plaintiff.” It is sufficient if it appears that the imprisonment was against his will, and was without collusion on his part. And an averment that the plaintiff was charged with an offence, and that the prosecution therefor had been abandoned and fully ended, is all that is required on the subject of charge and acquittal.</p> <p>2. False Imprisonment — Municipal corporation — Power to fine — Imprisonment. — Unless the power to imprison be plainly given it does not exist; and, when given, there must be a judicial ascertainment of the guilt of the party accused, by a competent tribunal, before it can be exercised. A power conferred on a municipal corporation to adopt ordinances and to enforce violations thereof by prescribed fines, does not confer the power of imprisonment before trial for a violation of the ordinance, nor after trial for failure to pay the fines.</p> <p>8. Judicial Officers — Liability for act — Case at bar. — Judicial officers are not answerable for mistakes of law, or errors of judgment, in cases where they have jurisdiction of the subject and the parties, and the judgment is one which they are authorized by law to render, but a direction to a policeman to arrest any one who shall in the future violate a city ordinance is not a judicial act. The police commissioners of the city of Norfolk are not judicial officers, and the act complained of is not a judicial act, nor one authorized by law.</p> <p>4. False Imprisonment — -What constitutes malice. — In an action for false imprisonment, an instruction that “ an improper motive may be inferred from a wrongful act based upon no reasonable ground ; that such improper motive constitutes malice in law, and that the act need not be prompted by anger, malevolence, or vindictiveness,” correctly defines malice.</p> <p>5. False Imprisonment — Measure of damages. — In an action for false imprisonment, the plaintiff is entitled to recover compensation for the loss of time, for the suffering, bodily and mental, sustained in consequence of the wrongful act or acts, and for expenses incurred in procuring a discharge from restraint, including a reasonable attorney’s fee. If the act complained of was committed with malice, tbe plaintiff may also recover punitive damages.</p> <p>6. Measure of Damages — Mental or physical pain — Excessive verdict.- — There is no precise measure of damages for mental or physical pain, and, where they are elements of damage to be estimated by a jury, the verdict will not be set aside, unless the damages are so great as to suggest that the jury have been influenced by passion, prejudice, or ill-will.</p>

<p>1. Power of Appointment — Exercised in favor of volunteers. — Where a person, has a general power of appointment, and exercises it in favor of volunteers, the property becomes assets for the payment of the debts of the appointer, and, in the hands of such volunteers, te burdened with the appointer’s debts, if necessary to resort to it for that purpose.</p>

<p>- Error to a judgment of the Court of Law and Chancery .of the city of Norfolk, rendered April 5, 1895, 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 opinion states the case.</p>

Appeals from decrees of the Corporation Court of the city of Norfolk, pronounced -Tune 27, 1892, and February 14. 1894, in two'chancery suits in each of which the appellees were the complainants, and in one of which the Baltimore Steam Packet Company was the defendant, and in the other the New York, Philadelphia & Norfolk Railroad Company was the defendant.

<p>1. Continuance—Surprise.—Where a receiver has been appointed to collect an insurance policy, with directions to institute, in his own name, such proceedings thereon as he may be advised is proper, the insurance company has the right to expect that an independent suit will be instituted thereon in the name of the receiver, and it is error to force the company into a trial on the merits against its will, in the suit in which the receiver was appointed, where the order directing suit by the receiver in his own name remains unrevoked, and it appears that such a proceeding is a surprise to the company, and will probably deprive it of making a bona fide defence on the merits.</p> <p>2. Receiver—Rule to show cause against appointment—Failure to answer—Objection afterwards.—Where a rule is made against an insurance company in a chancery suit to which it is a party to show cause why a receiver shall not be appointed to collect its policy, which is the subject of the suit, and the company appears by counsel and declines to answer the rule, and makes no objection to the appointment of receiver, it will not be thereafter heard to object to the appointment of such receiver.</p> <p>3. Chancery Practice—Right to trial by jury in chancery causes.—-If an insurance company is properly before the court in a chancery suit where its policy is the subject of litigation, any issue or issues raised by the pleadings as to its liability on the policy must be tried according to the rules and principles governing courts of equity in such cases. It is not entitled to a jury trial as matter of right, but only in the event that the case made shows that a jury trial is proper.</p>

<p>Appeal from a decree of the Circuit Court of Norfolk county, pronounced May 13, 1895, in a suit in chancery wherein the appellees were the complainants, and the appellant and others were the defendants.</p>

The bill in this case is in the following words and figures: “To the Honorable J. K. M. Norton, “ Judge of the Corporation Court of the City of Alexandria: “Humbly complaining, your orator, the Cleveland Shipbuilding Company, a corporation incorporated and organized under the laws of the State of Ohio, who sues for itself and all other creditors of the Haskin Wood Vulcanizing Company, of Washington, D. C., respectfully shows unto your Honor: “That the Haskin Wood Vulcanizing…

<p>1. Evidence — Refusal to allow a proper question — Harmless error. — Although a trial court may err in refusing to allow a question to be asked and answered, the judgment will not be reversed for this cause where it appears that, in a subsequent portion of his testimony, the witness did give the information sought, and that no injury resulted to the propounder of the question.</p> <p>2. Evidence — Acts of Assembly. — The refusal of the trial court to allow an Act of Assembly to be introduced in evidence can work no harm where the court is of opinion that the act is a public act, and offers to allow it to be read to the jury as such without such introduction.</p> <p>3. Evidence — City ordinance as to speed of trains — Irrelevancy. — An ordinance of a city regulating the running of trains at street crossings is irrelevant where the alleged injury did not occur at a street crossing, and is properly excluded from the evidence.</p> <p>4 Railroads — Trespassers — Licensees — Place constantly used by the public — Duty of company at such place. — Although there is a recognized distinction between the degree of care which a railroad company owes, under ordinary circumstances, to a trespasser and a licensee, yet where the company knows that its right.of way at a certain point is constantly used as a footway by hundreds of men, women, and children, passing over it daily, and at all hours, its servants are charged with notice that it is so used, and whether the persons so using it are trespassers or licensees, the railroad company cannot, without fault, proceed in a manner which must necessarily be dangerous to such persons. It is the duty of the servants of the company to use reasonable care to discover such persons, whether trespassers or licensees, and seek to avoid injury to them.</p> <p>5. Instructions — Must be given when law correctly stated — Care required of infant.&emdash;An instruction which correctly states the law, and is applicable to the evidence, should be given by the trial court, and for a failure to do so its judgment'will be reversed. In the case at bar, it was error to refuse to instruct the jury, at the request of the plaintiff, as to the degree of care required of an infant ten years of age.</p> <p>■6. Railroads — Trespassers—Contributory negligence. — If a trespasser on a railroad track is injured by an engine of the company at a point where it is the duty of the servants of the company to keep a look out for all persons,, whether trespassers or licensees, he is entitled to recover for injury, although guilty of contributory negligence, if the servants of the company in charge of the engine did not do all they could consistently with their own safety to avoid the injury after his danger was known, or might have been discovered by the exercise of ordinary care in keeping a lookout for persons at that point.</p> <p>7. Exceptions — Particularity required — Reading authorities to the jury. — An exception because the trial court refused to permit counsel to read authorities to the jury, including decisions of the Supreme Court of Appeals of Virginia, will be overruled where the exception fails to show clearly and specifically what cases and what extracts from text-hooks were offered, so that this Court may see what, if any, prejudice resulted therefrom.</p>

<p>1. Evidence — Introduction of — Exception must be specific. — Where evidence is offered, a portion of which is objectionable, and the other not, and the objection is general, it must be overruled. And so of two or more ordinances, one of which is objectionable. The objection must point out specifically the objectionable features.</p> <p>2. Railroads — Speed—City ordinance — Reasonable ordinance. — A city ordinance pi’Ohibiting locomotive steam engines from running through the city at a greater rate of speed than five miles an hour, and requiring a ' bell of not less than thirty pounds weight to be placed on each engine, and rung during the entire time the engine is in motion within the city limits, is not an unreasonable exercise of the police power of the city for the protection of its citizens, and the general public.</p> <p>3. Instructions — Constructipn of written instrument’by the court. — As a general rule the construction of all written documents given in evidence belongs to the court exclusively, and it is not error to instruct a jury as to the proper construction of a city ordinance offered in evidence.</p> <p>4. Instructions — Act of court — Must be construed, as a whole — •Harmless error. Instructions, when given, whether asked for by one or both parties, become the instructions of the court, and should he read as a whole. Defects in one instruction may be cured by a correct statement of the law in another, if when réád together the court can see that the jury could not have been misled by the defective instruction.</p> <p>5. Contributory Negligence — How shown. — Contributory negligence may be made to appear from the evidence of the plaintiff alone, or the defendant alone, or both.</p> <p>6. Instructions — Evidence tending to support instruction. — If there be any evidence tending to prove the facts upon which an instruction is asked, and it correctly states the law applicable to such facts, the instruction should be given.</p> <p>7. Railroads — Negligence—Contributory negligence of plaintiff. — In the case at bar the jury was justified in finding that the injury was inflicted on the plaintiff in consequence of the negligence of the servants of the railroad company in running its trains, and the company is liable for the damages resulting from such injury, unless the plaintiff was guilty of contributory negligence; and it is still liable, notwithstanding such contributory negligence, if the exercise of reasonable care upon its part would have prevented the injury after it discovered, or ought to have discovered, his danger.</p> <p>8. Bailboads — Crossings—Duty of traveller. — It is the duty of a traveller about to cross a railroad track to use his eyes and ears to avoid danger. The track itself is a proclamation of danger. He should look in both directions from which a train could come, and listen, and, if his faculties warn him of the near approach of a train, he should keep off the track. It is not sufficient to look and listen at a great distance from the point of crossing, or under such circumstances that he will he unable to stop if warned of an approaching train. He must exercise-care to make the act of looking and listening effective. The care must he in proportion to the known danger. If he fails to use these necessary precautions and injury ensues, he cannot recover, unless the defendant company, by the exercise of ordinary care and diligence, might have prevented the injury after it discovered, or ought to have discovered, his peril.</p>

<p>Error to a judgment of the Hustings Court of the city of Eoanoke, rendered September 30, 1895, in a proceeding by motion to substitute a new trustee in the place of a former trustee who had resigned, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Louisa county, pronounced March 21, 1894, in a suit in chancery wherein Boswell, Bowman and Shuman, and another, were the complainants, and the appellant and others were the defendants.</p>

<p>Appeal from decrees of the Circuit Court of the city of Norfolk, pronounced February 13, 1895, and May 24, 1895, in a suit in chancery wherein the appellees were the complainants, and the appellants were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Chesterfield county, rendered December 8, 1894, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>This was an action of trespass on the case to recover damages for personal injuries inflicted on the plaintiff’s intestate by the alleged wrongful act of the defendant. The defendant owned and operated a street railway running from the city of Richmond through the city of Manchester to a certain park in Chesterfield county called Forest Hill Park, and in order to increase its business and to induce the public generally to travel on its line they contracted with one Peter Blum, a professional balloonist, to give three balloon ascensions, and the time and place of the ascensions were extensively advertised, and the public invited to attend. A contract had been made with Blum to make nine ascensions, three at the end of each of three street railway lines. Three had been successfully made at the terminus of one line, and two of the three contracted for at Forest Hill Park had likewise been successfully made. Ihe third was to take place on the afternoon of July 15, 1893. The defendant company owned the park, but no admission was charged to the balloon ascension. It expected to make its profit from the increased travel on its line of railway. Quite a large crowd was present on the afternoon of the accident, many of. whom travelled on the defendant company’s cars, some probably by private conveyance, and others on foot. It is probable that the plaintiff’s intestate walked to the park. Blum was the owner of the balloon and had entire charge and control of making the ascension, and of all of the preparations necessary therefor. In order to effect the ascension two poles about forty feet long were placea in an upright position, about fifty feet apart, and securely fastened by guy ropes. A rope was stretched between the tops of these poles, and to this the balloon was fastened, and when the balloon was sufficiently inflated the guy ropes were loosened and the poles permitted to fall to the ground. When all was in readiness for the poles to be thrown to the ground and for the balloon to ascend, warning of the intention to drop the poles was given by Blum and his attendant by crying, “Look out!” One of these poles in falling struck the plaintiff’s intestate on the head, from the effects of which he died the following night. The evidence is conflicting as to whether the plaintiff’s intestate was standing in a dangerous position at the time the warning was given, or ran to that position after the poles were in the act of falling. The other evidence sufficiently appears in the opinion of the court.</p> <p>The jury found for the plaintiff and assessed his damages . at $2,500. A motion was made to set aside the verdict and award a new trial, but the motion was overruled and judgment entered on the verdict in favoi of the plaintiff. To that judgment this writ of error was awarded.</p> <p>After the declaration in the case was filed, but before any appearance by the defendant, the plaintiff filed an amended declaration. The defendant demurred to both the original and amended declarations and to each count thereof, which demurrer was sustained as to the original declaration, and overruled as to the amended declaration. The amended declaration is in the words and figures following:</p> <p>“ In Chesterfield Circuit Court:</p> <p>“ Abner L. Moore, personal representative of George E. Moore, deceased, plaintiff, complains of the. Eichmond and Manchester Bailway Company, a corporation duly chartered and organized under the laws of the State of Virginia, defendant, of a plea of trespass on the case for this — to-wit: That before and at the time of committing the grievances hereinafter complained of, the said defendant maintained, managed, and controlled, and was the owner and proprietor of a certain park, called ‘ Forest Hill Park, ’ in the county of Chesterfield, about — to-wit: Two miles from the city of Manchester, which was kept open for and accessible to the public; and the said defendant owned, maintained, operated, and ran a line of electric street railway cars from the city of Eichmond across James river, through the city of Manchester, and to its said park, at which was the terminus of its said line. And said defendant regularly ran its cars and carried passengers to and from its said park, and in order to induce greater travel on its said railway, so that its said park and railway might be rendered the more profitable to it, the said defendant did, from time to time, have and advertise special attractions and amusements at its said park, so as to induce the public to use its said railway and visit its said park for its profit and advantage, the said defendant thus gaining largely by the increased travel over its railway, while charging no fare for admission to its said park ; and said defendant did, for some time before the 15th day of July, 1893, advertise and publicly make known that on that said day a balloon ascension would take place at its said park, and did thereby invite and induce the public generally, including plaintiff’s intestate, to visit its said park and witness said balloon ascension; that said defendant did make arrangements for said balloon ascension, and did employ and pay one Peter Blum to have a balloon ascension made on the said 15th day of July, 1893, upon the said park and premises of the defendant, for the benefit, profit, and advantage of said defendant as aforesaid ; that in connection with said balloon ascension were used many large and dangerous appliances — to-wit: Bopes, stakes, fire, gas, and poles, which rendered the said park and premises of the defendant . dangerous, especially for children who should accept the said invitation and inducement of defendant during said balloon ascension.</p> <p>“And thereupon it became and was the duty of the defendant to use all' due and proper care and precaution to protect all persons accepting its said invitation, especially children, who the defendant knew, or ought to have known, were likely to be attracted to its said park and premises by its said invitation and inducement, and whose natural instinct and childish impulses would make them especially eager to view said balloon ascension, as defendant knew, or ought to have known, from danger and injury, by erecting barriers or guards at a safe distance from said balloon and dangerous appliances, or otherwise exercising proper care and diligence for the protection of all persons on its premises and park as aforesaid, upon its said inducement, especially of plaintiff’s intestate.</p> <p>“And the plaintiff avers that the said balloon ascension did, on the said 15th day of July, 1893, take place on the said park and premises of the said defendant as aforesaid, and yet the defendant, notwithstanding its said duty and [in] utter disregard thereof, altogether failed and neglected to take due and proper care and precaution for the safety of persons coming upon its ■ premises and visiting its said park, upon its said invitation and inducement to view said balloon ascension, J and entirely neglected to erect barriers or guards at a safe distance from said balloon and dangerous appliances, and > otherwise to exercise proper care and diligence — to-wit: On the said 15th V.day of July, 1893.</p> <p>“ And the said plaintiff further avers that his intestate, George E. Moore, then of the age of eight years and six months, on the said 15th day of July, 1893, visited and was present on the said park and premises of the defendant, on the defendant’s said invitation and inducement, in company with many other children and persons, to view said balloon ascension, and as said balloon ascension was being had, a certain heavy and dangerous pole or stake, being one of the appliances used in connection therewith, was thrown and fell, and by reason of the gross carelessness, neglect, and default of said defendant in failing to use proper care and caution for the protection of persons on its premises, especially children, at its said inducement as aforesaid, from danger and injury, by erecting barriers or guards around or near the place where said balloon ascension was being had, or otherwise using due care and taking proper precaution for their safety, the said pole or stake, in being thrown or in falling, struck the said George E. Moore, without fault on his part, by means whereof he was knocked down, crushed and killed. Whereupon by means of the premises and in virtue of the statute for such cases made and provided, plaintiff says that he has cause of action against the said defendant, and has suffered damage to the amount of $10,000.</p> <p>“And for this also, to-wit: That before and at the time of committing the grievances hereinafter complained of the said defendant maintained, con. trolled, and managed and was the owner and proprietor of a certain park called ‘ Forest Hill Park,’ in the county of Chesterfield about, to-wit: Two miles from the city of Manchester, which was kept and allowed to remain open to the public, and the said defendant owned, maintained, operated, and ran a line of electric street railway and cars from the city of Richmond, across James river, through the city of Manchester and to its said park, at which was the terminus of that end of its said line. And said defendant regularly ran its cars and carried passengers to and from its said park, and in order to induce greater travel on its said railway so that its said park and railway might be rendered the more profitable to it, the said defendant did from time to time have and make known special attractions and amusements at its said park so as to induce the public to use its said railway and visit its said park for its profit and advantage, the said defendant thus gaining largely by the increased travel over its railway, while charging no fee for admission to its said park, and allowing all persons to enter and remain in the same whether they had or might patronize its said railway or not. And said defendant did to-wit: For several days prior to the 15th day of July, 1893, advertise and publicly make known that on said day a balloon ascension would take place at its said park, and did thereby invite and induce the public generally, including complainant’s intestate, to visit its said park, and witness said balloon ascension; that said defendant did make arrangements for said balloon ascension and did employ and pay one Peter Blum to make or have a balloon ascension made on the said 15th day of July, 1893, upon the said park and premises of the defendant for the benefit, profit, and advantage of said defendant as aforesaid: That in connection with said balloon ascension were used many large and dangerous appliances, to-wit: Ropes, stakes, fire, gas, and poles, which rendered the said park and premises of the defendant dangerous, especially foi children, who should be attracted by and accept such" invitation or inducement during said balloon ascension. And thereupon it became and was the duty of the defendant to use all due and proper care and precaution to protect all persons accepting its said invitation and attracted by its said inducement, especially children, who the defendant knew, or ought to have known, were likely to be attracted to its said park and premises by its said balloon ascension, so publicly made known as aforesaid, and whose natural instincts and childish impulses would make them eager to closely view said balloon ascension, as defendant knew, or ought to have known, from danger and injury by erecting barriers or guards •. at a safe distance from said balloon and dangerous appliances or otherwise exercising proper care and diligence for the protection of all persons on its premises and park as aforesaid, upon its said inducement, especially of plaintiff’s intestate, whether or not said persons and children so acting upon</p> <p>its said inducement or accepting its said invitation as aforesaid, came to its said park by its said railway and cars or on foot or otherwise. And the said plaintiff avers that the said balloon ascension did, on the said 15 th day of July, 1893’, take place on the said park and premises of the said defendant as aforesaid, and yet the said defendant, notwithstanding its said duty, and in utter disregard thereof, altogether failed and neglected to take due and proper care and precaution for the safety of persons, especially children, at-' tracted to and visiting its said park upon its said invitation and inducement to view said balloon ascension, jand entirely neglected to erect barriers or guards at a safe distance from said balloon and dangerous appliances, or otherwise to exercise proper care and diligence in respect thereof, to-wit: On the said 15th day of July, 1893. And the plaintiff further avers that his intestate, George E. Moore, then of the age of eight years and six months on the said 15th day of July, 1893, resided in Chesterfield county, beyond the city of Manchester, near to and about, to-wit: One mile from defendant’s said park, and on said day, by reason of defendant’s said invitation and inducement, was attracted to, and in company with many others, went to defendant’s said park to view said balloon ascension, and while watching, viewing, and observing the same in such manner as might have been reasonably expected from a child of his age, as said balloon ascension was being had, a certain dangerous and heavy pole or stake being one of the appliances used in connection therewith, which said pole or’stake was owned by and furnished by the defendant, was thrown and fell, and by reason of gross carelessness, neglect, and default of the defendant in failing to use proper care and caution for the safety and protection of persons on its premises, especially children, attractedlthereon as aforesaid, while viewing said balloon ascension, from danger and injury by erecting barriers or guards around or near the place when said balloon ascension was being had, or otherwise using due care and • taking proper precaution for their safety, the said pole or stake, in being thrown or in falling, struck the said George E. Moore, without fault on his part, by means whereof he was knocked down, crushed, and killed.</p> <p>“ Wherefore, by reason of the premises and in virtue of the statute for such cases made and provided, the plaintiff says that he has cause of action against the said defendant, and has suffered damage to the amount of $10,000. And therefore he brings his suit.”</p> <p>After all the evidence had been introduced, the defendant moved the court to give certain instructions to the jury. But the court refused to give some of the instructions asked for, modified others, and instructed the jury as follows:</p> <p> Instruction Ho. 1. </p> <p>The jury are instructed—</p> <p>“1. That if they believe from the evidence that the defendant company employed and caused Peter Blum to make the balloon ascension mentioned in the evidence, on its premises for its benefit, and extended an invitation, express or implied, to the public generally, to attend the same, and that the appliances connected with said balloon ascension were of such a nature as to render its s; id premises dangerous to those who might assemble there to view said balloon ascension, then the legal obligation rested on the defendant company to take reasonable precaution to prevent injury to all persons who might come upon its premises, in consequence of such invitation, to view said balloon ascension. And if the jury shall believe from the evidence that the plaintiff’s intestate came upon the defendant’s premises to view said balloon acension, in pursuance of said invitation, and while viewing said balloon ascension in such manner and with, such care as might have been reasonably expected from a child of his age, under the circumstances, was so injured as to cause his death, in consequence of the neglect of the defendant to exercise such proper care as was reasonably necessary for his protection from danger incident to said balloon ascension on its premises, then they should find for the plaintiff.1 ’</p> <p> Instruction Ho. %. </p> <p>“If the jury should find for the plaintiff, in ascertaining his damages they may consider the loss of the services of the deceased to his father until he would have become twenty-one years of age; compensation for the loss of his care, attention, and society to his father. And they may add such further sum as they deem fair and just by way of solace and comfort to his father for the sorrow¿ suffering, and mental anguish occasioned to him by his death. Rut the entire damages must not exceed $10,000.”</p> <p>Instruction Wo. 3. ' ,</p> <p>‘ ‘That if, looking to the age of plaintiff’s intestate and the circumstances in which he was, he exercised such care as might have been reasonably expected from a child of his age, under the circumstances, and was killed in consequence of the neglect of the defendant, then the defendant is liable, although the child may have contributed to the injury.”</p> <p> Instruction Wo. 1¡.. </p> <p>‘ ‘That even though the jury should believe from' the evidence that there was lack of care on the part of the parents of the plaintiff’s intestate, or either of them, in permitting him to go and view said balloon ascension unattended,* such lack of care cannot affect plaintiff’s right to recover in this case. ’ ’</p> <p> Instruction Wo. 5. </p> <p>“The court instructs the jury that the law does not require a man, in the performance of a lawful act on his land, to use more than ordinary care in respect to other persons thereon, although such persons may have been invited or induced by the owner of said land to enter thereon to observe and enjoy attractions on said land.</p> <p>“If the jury believe from the evidence that the defendant company invited persons to Forest Hill Park to see a balloon ascension, on the 15th day of July, 1898, and that the defendant company, in making said balloon ascension, did use such reasonable care as an ordinarily prudent man would have used under similar circumstances, for the protection of such persons as might assemble there to see said balloon ascension,.in pursuance of said invitation, then the jury must find for the defendant company.</p> <p>“Ordinary care is such care as an ordinarily prudent per- . son would exercise under similar circumstances.”</p> <p>Instruction No. 6.</p> <p>“The court instructs the jury that the law does not require | a man on his own premises, in the performance of an act in l itself free from hazard or danger, to use extraordinary fore- | sight, care, and prudence in the performance of such act, but [ such care, prudence, and foresight need only be commensu^ ! rate with the hazard and danger incident to the act. If the jury shall believe from the evidence that the use of poles in said balloon ascension was not extraordinarily dangerous or hazardous, and that the defendant company, in throwing down said poles, used ordinary care and prudence to prevent injury to the persons there assembled — children as well as adults — then the jury must find for the defendant company.”</p> <p> Instruction No. 7. </p> <p>“The court instructs the jury that if they believe from the evidence that the boy, whose death is the subject of this suit, came upon the premises of the defendant on the 15th day of July, 1893, without an invitation, either express or implied, from said defendant company, then the said George E. Moore, the plaintiff’s intestate, was a mere licensee, and the said defendant company was liable to him, if injured upon their premises, for wanton injuries only, and they must find for the defendant company, unless they further believe the said boy was wantonly injured whilst on the premises of the defendant.”</p> <p> Instruction No. 8. </p> <p>“The court instructs the jury that the mere fact that a person is under twenty-one years of age, does not thereby entirely excuse or relieve him from responsibility for. injuries that may be occasioned by his own negligence, and that while children between the ages of seven and fourteen years are generally presumed to be less capable of exercising the care and prudence of adults, yet the jury must determine, under all of the circumstances of the case, such as his age, intelligence, and opportunity of notice and warning, whether the plaintiff’s intestate exercised that degree of care or prudence which a boy of his age and intelligence would ordinarily have shown under the same existing circumstances. And if the jury believe from the evidence that the plaintiff’s intestate was of sufficient age and intelligence to exercise ordinary care and prudence in case of danger, and that he was notified and warned of impending danger in this instance, and that after being so warned and notified, he failed to exercise such ordinary care and prudence as a boy of his age and intelligence ought to have exercised, and that by his own carelessness and negligence, or recklessness unnecessarily exposed himself to danger, or placed himself in a position w hereby he was struck and killed, then they must find for the defendant company.”</p> <p> Instruction No. 9. </p> <p>“The court instructs the jury that the burden of proving negligence is on the plaintiff in this case, and the jury must be satisfied that the defendant was guilty of negligence before they can find for the plaintiff. But the jury may find for the plaintiff if they believe from a preponderance of the whole evidence in the case, that the negligence of the defendant company has been established and that no contributory negligence of the plaintiff has been proved.”</p> <p>To which ruling and opinion of the court in refusing to give some of the said instructions, in modifying others, and in giving the last-mentioned instructions, as aforesaid, the defendant, by its counsel, excepted and tendered its bill of exceptions, and prayed that the same might be signed, sealed, and made part of the record, and the same was done accordingly.</p>

<p>Appeal from several decrees of the Corporation Court of tlie city of Norfolk, and of the Court of Law and Chancery of said city to which the cause was removed, in a suit in chancery wherein the appellee was the complainant and the appellants were the defendants.</p>

<p>1. Appeals and Writs of Error — Questions not debatable — Sec. 1292 of Code.— A writ of error is properly dismissed, as improvidently awarded, where the jurisdiction of the court is dependent upon a question which was no longer debatable at the time the writ was awarded. Applying this test to the case at bar, the constitutionality of sec. 1292 was not a debatable question at the time the writ of error was awarded, and it should be dismissed.</p>

Appeals from a decree of the Corporation Court of the city of Danville, pronounced June 4, 1895, in the chancery cause of Cheelc's Ex'ors v. Cheek's Devisees, instituted for the purpose of having the will of IT illiam E. Cheek construed by the court and the estate administered under the direction of the court, in which suit appellants were defendants.

<p>1. Contracts — Limitations—Interest in land — Statute of frauds. — One who expends his money in aiding the owner of a lot in erecting a house thereon, hut takes no evidence of the amount advanced, and can show no contract for the purchase of any interest in the lot, becomes a simple contract creditor of the owner, and his claim for repayment is barred after the lapse of the statutory period within which an action may be maintained on such contracts, although he may have labored under the impression that he was to have an interest in the house and lot at the death of the owner. If there was a contract for an interest in the house and lot the statute of frauds would preclude any action thereon unless it was in writing.</p>

<p>1. Municipal Corporations— Use of streets by railroads — Liability for results of defective tunnel. — A city is not liable for damages resulting from the defective construction of a tunnel under one of its streets by a railroad company, when the railroad company is authorized to construct its road from said city, and the city permits the company to enter and use its streets for its roadway, in pursuance of authority vested in the city by its charter. The right of the city to allow the use of its streets by the railroad company includes the right to permit the company to run under the streets as well as upon them. But permission to enter and use the streets confers no right on the railroad company to take or invade the property of any citizen without just compensation, nor does it sanction any tort the company may commit. Nor does the taking of a bond from the company to indemnify the city against loss by reason of the failure of the company to carry out its contract with the city render the city liable for the torts of the company. The company alone is liable for its torts. It is in no sense the agent of the city.</p>

<p>Appeal from a decree of the Circuit Court of Page county, pronounced November 5, 1896, in a suit in chancery wherein the appellees were the complainants, and the appellant and others were the defendants.</p>

Old, executor of Lenore M. Van Wyck, was the complainant, and the appellants and others were the defendants. The only clauses of the will bearing on the subject of controversy are the fourteenth and fifteenth. They are as follows: “Fourteenth.

<p>1. Appellate Proceedings — Error to the county court — Bill of exceptions.— Where a case is taken from a county court to a circuit court on a writ of error, it is unnecessary to take any bill of exceptions to the action of the circuit court. As that court hears the case on the record, if there be error in its rulings, the record will disclose it.</p> <p>2. Unlawful Detainer — Declarations in the judgment as to title. — The only matter in issue in an action of unlawful detainer being the right of possession, the declaration by the county court in its judgment that the defendant had the fee-simple title to the land cannot prejudice the rights of the parties in any proceeding involving the title.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered April 30, 1895, in an action of assumpsit wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Greene county, pronounced June 22, 1895, in the chancery suit of Sims’ Ex'or v. Sims do others, in which the appellee was admitted a party on his petition.</p>

The contention of the defendants in error was that the recognizance was void because it t:no where, not even in the caption, mentioned the offence with which Fulks was charged and which he was bound to answer.”

<p>Error to judgments of the Circuit Court of the city of Eichmond, rendered December 3, 1894, in two actions of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendants in error were, severally, defendants.</p>

The deed assailed in this case not only conveyed and as- t> signed the property specifically enumerated, but also contained a general clause by which the grantors conveyed “all other personal property and effects of every description belonging to said firm.” The other facts appear in the opinion of the court.

This was a suit in chancery instituted by Hornish and others, judgment creditors of B. D. Downey, for the purpose of subjecting to the payment of their judgments a lot in the city of Roanoke.

Marchant was the complainant, and the appellees, and the appellant W. W. Woodward, trustee, were the defendants. John JR. Marchant had a second deed of trust on a tract of 383^ acres of land. The first deed was on a tract of land described as containing six hundred acres, more or less, and embraced the land conveyed in the second deed of trust. The first deed was given to secure money belonging to an infant, which was loaned under an order of the court.

<p>Motion by appellee to dismiss an appeal from a decree of the Hustings Court of the city of Roanoke.</p>

<p>Appeal from two decrees of the Circuit Court of Madison county, one pronounced December 13, 1894, and the other at the September term, 1895, in a suit in chancery wüerein the appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Contracts—Sale by agent—Confirmation by principal.—If an agent, having full authority to sell an article at a particular price, offers the article at that price, and the offer is accepted unconditionally, this completes the contract of sale, and it is unnecessary for the principal to confirm the sale, or for the agent to communicate such confirmation to the purchaser.</p> <p>2. Contracts in Writing—Sale by agent—Authority to sell and notification of sale by telegram.—An agent authorized by telegram to sellan article at a given price offered the article at that price, and the offer was accepted unconditionally, and the agent in the presence of the purchaser, prepared a telegram, which he sent to the principal informing him of the sale at the price fixed, adding “ subject your confirmation.” It was not the understanding of the parties that the words quoted should qualify the purchaser’s rights.</p> <p>Held: This did not constitute a contract in writing so as to exclude evidence of conversations between the agent and the purchaser antecedent to and contemporaneous with the sending of the telegram.</p>

The declaration in this case is in the following words and figures, to-wit: “State of-Virginia, City of Richmond, to-wit: “In the Law and Equity Court for the city of Richmond. “Robert L. Ford, an infant under the age of twenty-one years, who sues by his next friend, Monroe Ford, complains of the Richmond Locomotive and Machine Works, a corporation duly chartered under the laws of the State of Virginia, who has been duly summoned to answer a plea of trespass on the case —…

<p>1. Mandamus—Inability to enforce obedience—Case at bar—Receivers of court.— A mandamus will not be awarded when the court is powerless to make it effectual. In the case at bar the defendant would be financially unable to build the railroad if required. Its railroad is in the hands of another company, which is in the hands of receivers of a Circuit Court of the United States, who are amenable only to the court of their appointment, and no traffic arrangements could be compelled with another independent road, and the writ would be wholly unavailing, if awarded.</p>

The object of this suit was to establish the lines between the coterminous owners of certain lands lying under water between the shore and the Portwarden’s lines on Elizabeth river and Tarrant’s or Edmund’s creek, and in the meantime to enjoin the defendants from erecting structures on said land claimed by the complainants.

The evidence given on the first trial, in October, 1893, was set out in the plaintiffs’ bill of exceptions taken at January term, 1894, when the verdict of the jury was set aside. The defendants’ bill of exceptions tendered at the same term related to the admission or exclusion of evidence, and to the rulings of the court on the instructions offered at the first trial. The other facts appear in the opinion of the court.

This action was instituted on four notes of the town of West Point. The notes are similar to each other in form, and the following is a copy of one of them: “West Point, Ya., Sept. 28, 1887. “$1,000.00 On Aug. 1, 1888, the town of West Point, promise to pay to the Richmond and West Point Land, Navigation, and Improvement Co., or order, without offset, one thousand dollars. Payable at the treasurer’s office in the town of West Point, value received.

<p>1. Statute of Limitations—Bonds—Presumption of payment—Partial payments.—Prior to July 1, 1850, there was no positive limitation as to the time within which an action must have been brought on a bond. And, although after that time a limit of twenty years was prescribed, an order for an account of debts in the case at bar, which was a suit to settle the estate of a deceased obligor, stopped the running of the statute. The presumption of payment after the lapse of twenty years is repelled by a payment within that time.</p> <p>2. Equitable Relief—Stale demands—Laches.—Courts of equity will not lend their aid to enforce stale demands, but demands are considered stale only where gross laches is shown with unexplained acquiescence in the operation of an adverse right. Laches is the omission of some duty, ■ but mere delay, unaccompanied by circumstances tending to show an abandonment of the right, is not laches. Each case, however, must depend upon its own peculiar circumstances. Generally, if the sum sought to be recovered is certain, the transaction has not become obscure, and there has been no such loss of evidence as will be likely to produce injustice, a court of equity will not refuse relief merely because there has been delay in asserting the claim.</p> <p>3. Demurrer—Deed to “ Payette Mauzy ”—Acknowledged before “P. Mauzy.” On a demurrer to a petition which alleges that a deed to ‘ ‘ Fayette ' Mauzy,” trustee, was acknowledged before “F. Mauzy,” clerk, it will not be assumed that the two names represent one and the same person. This is a matter of proof.</p>

<p>1. Negotiable Paper — Note payable “on call” — When payable — Presentment to charge endorser — Reasonable time. — A note or bond payable on demand or on call is payable at once, and interest and the statute of limitations commence to run from its date.' But in order to charge the endorser of a negotiable note so payable it must b§ presented for payment within a reasonable time. What is‘reasonable time must be determined by the facts of the particular case. No fixed rule can be laid down on the subject.</p> <p>2. Principal and Surety — Indulgence to principal. — In order that a surety may be discharged for indulgence given to the principal, it must be shown, amongst other things, that there was an agreement or promise, upon a valid consideration, to indulge the principal for some definite time, or at least for a time not altogether indefinite. A partial payment by the principal without agreement to extend as to the balance is not sufficient to discharge the surety, though the principal expected that, in consequence of the payment he.would not be immediately pressed for the balance, and in fact he was not so pressed.</p> <p>3. Negotiable Paper — Balance to credit of maker not sufficient to pay note— Duty o] banker. — If, when a note of which a bank is the holder becomes due and payable, the bank has not sufficient funds to the credit of the maker to satisfy the note, it is not required to appropriate the deposit to the payment of the note, neither is it required to appropriate subsequent deposits in such case to its payment. The authorities are in conflict as to the duty of the banker where there is sufficient on deposit to meet the note.</p> <p>4. Bankers and Brokers — Pledge to secure a particular debt — Liability for other claims. — Where securities are pledged to a banker or broker for the payment of a particular loan or debt, he has no lien upon such securities for a general balance, or for the payment of other claims, in the absence of an agreement between the parties to that effect.</p>

<p>1. Chancery Jurisdiction—Injunction—Nuisance—Irreparable injury—Public works.—Courts of equity have jurisdiction to restrain by injunction the commission or continuance of a nuisance which is likely to produce irreparable injury ; and the injury is irreparable if it is a grievous one, or a material one and not adequately reparable in damages. It is no answer to say that the owner of property may ward off the evil effects,, and consequences of a nuisance at his own expense. A court of equity will enjoin its continuance, especially if it be a matter likely to affect health. The public nature of the work which creates the nuisance does not prevent a court of equity from enjoining the contractor from doing it in such manner as to create a nuisance, especially when it appears that it might be safely done in another manner at a small additional expense to the contractor. Obstructing a stream so as to cause it to flood the cellar of another is a nuisance.</p>

<p>1. Fobthcoming Bonds—How payable—Lien of—Effect of bond payable to sheriff.—A forthcoming .bond taken under section 3617 of the Code and made payable to the sheriff, instead of to the execution creditor, as required by that section, does not have the force of a judgment against the obligors therein, under section 3619 of the Code. The lien given by section 3619 being statutory, the steps which lead up to it must be substantially in accordance with the provisions of the statute which create it. The bond is inoperative as a statutory bond and creates no lien, though it may be a good common law bond and the sheriff may sue upon it. In the absence of a statute to that effect, a bond payable to one person cannot operate as a lien in favor of another.</p>

The deed assailed in this suit was executed and delivered in November, 1891, and the suit to set it aside was instituted May 12, 1893. The complainant’s debt was contracted prior to the execution of this deed, and he had recovered Judgment thereon in November, 1892.

One of the deeds sought to be set aside was made in 1883, and the other two in 1887. The complainant’s judgments were recovered in 1880. The other facts appear in the opinion of the court.

<p>Appeal from a decree of the Circuit Court of Smyth county, pronounced April 8, 1896, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Parol Evidence—Admissibility to prove custom or usage as to price of services in absence of contract.—In the absence of any express agreement as to the amount or time of payment for work contracted to be done, parol evidence is admissible to show a certain usage of the business, and of the locality, known to the parties, or so general and well settled as to raise the presumption that the parties dealt with reference to the usage, and with a tacit understanding that their rights and responsibilities should be determined thereby.'</p> <p>2. Custom or Usage—Averment in pleadings.—In an action to recover for services performed what they are reasonably worth, it is unnecessary to aver in the pleadings a local custom or usage by which the value of the services are fixed, as the plaintiff is entitled to recover what is usual and customary for like services.</p> <p>3. Custom or Usage—Question for jury.—Whether a custom or usage exists is a question of fact to be determined by the jury under proper instructions from the court, whenever there is any evidence tending to prove it, although the evidence be conflicting or there be a diversity of - opinion as to its extent or character.</p> <p>4. Sale of Wife’s Land—Who to pay charges for selling.—A. real estate agent who sells the wife’s land for the husband and wife is not entitled to recover compensation therefor of the husband, in the absence of an agreement on his part to pay the same.</p> <p>5. Instructions—Statute of limitations.—Where the statute of limitations has been pleaded by a defendant, an instruction which tells the jury when the statute begins to run, what evidence they may consider, and' on whom is the burden of proof, but fails to tell them that the plaintiff cannot recover if his cause of action did not accrue within the statutory period prior to the institution of the suit, is erroneous because- misleading.</p> <p>6. Instructions—Ignoring all evidence on one side of case.—Instructions are properly refused which entirely ignore all the evidence on one side of the case which tends to prove that view of the case.</p> <p>7. Custom ok Usage — Knowledge of — Notoriety and generality of. — Where recovery is sought of a defendant in consequence of a custom or usage to pay a fixed rate for certain services, it is not necessary to prove that the defendant knew of, and acquiesced in the custom or usage. If the evidence shows an established custom or usage on the subject, certain, uniform, general, and notorious, at the place where the parties lived and did business, there would arise at least a prima fade presumption that the defendant knew of it, and intended to he bound by it.</p> <p>8. Instructions — Evidence to support. —When there is evidence tending to prove a particular view of the case, and an instruction is asked which correctly propounds the law on that view of the evidence, it should be given.</p> <p>9. Pleading — Verdict responsive to issues. — In an action of assumpsit where the pleas are non-assumpsit and the statute of limitations, a general verdict for the plaintiff fixing the amount of his damages is responsive to all the issues made by the pleadings.</p>

<p>Error to a judgment of the Hustings Court of the city of Roanoke, rendered March 15, 1895, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Statute of Limitations—What causes survive—Damages resulting from suing out an injunction.—An action against a defendant for maliciously and without probable cause suing out an injunction against a-plaintiff whereby the operation of bis mill was suspended, is barred after one year from the dissolution of the injunction. In case of death the cause of action would not survive. The damages allowed to be recovered by or against a personal representative by sec. 2655 of the Code are direct damages to property and not those which are merely consequent upon a wrongful act to the person only.</p>

After the original bill in this cause was filed, one of the complainants made a general assignment to the appellant, and the bill of review was filed by the original complainants and the appellant. The opinion states the case.

<p>1. Judgments — Lien of — Deed to vendee not recorded — Leed of trust by vendee.— Judgments recovered against the vendor of land and docketed before his deed of conveyance to the purchaser is admitted to record have priority over the notes given by such purchaser for deferred payments on the land, though such notes be secured by a deed of trust made contemporaneously with the deed of conveyance to him, and duly recorded before the recovery of such judgments. In such case the doctrine of subrogation has no application.</p> <p>2. Chancery Practice — Exception to commissioner’s report — When error to overrule. — An exception to a report of liens on property which brings to the attention of the court that the commissioner has failed to report facts appearing of record in the clerk’s office of said court, and which are essential to an adjudication of the rights of the exceptor, should not be overruled, but the report should be recommitted to the commissioner to make enquiry and report as to the alleged facts set out in the exception.</p>

<p>1. Tax Titles — Purchasers from auditor — Notice under Acts 1895- 96, page 219. — The title acquired, in the manner required hy law, by a purchaser of real estate which has been previously purchased in the name of the auditor for delinquent taxes can be defeated only by proof that the taxes or levies for which said real estate was sold were not properly chargeable thereon, or that such taxes and levies have heen paid. Whether the notice required by Acts 1895-’96, ch. 179, p. 219, to be served on the former owner or his personal representative, has been properly served or not is immaterial.</p> <p>2. Taxes — Lien superior to vendor’s lien — Sec. 661 of Code. — Taxes on real estate, though assessed against a vendee subsequent to his purchase, have priority over the vendor’s lien for purchase-money. The provision of Sec. 661 of the Code that “the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made ” refers to the character of the title which shall be vested in the grantee, whether it be a fee simple, or otherwise. The purchaser does not take it subject to the liens resting thereon at the time the taxes were assessed.</p>

<p>appeal from a decree of the Circuit Court of Washington county, pronounced May 22, 1896, in a suit in chancery wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

These appeals involve the same question and hence the statement is made in only one.

<p>1. Chancery Pleading—Suit by assignor for benefit of assignee.—The assignor of a chose in action, secured by a vendor’s lien reserved on real estate, cannot sue in equity for the benefit of his assignee to enforce the lien. The assignment carries no interest in the land. The complainant in equity must be the party owning the beneficial interest.</p>

<p>Error to a judgment of the Circuit Court of Washington county, rendered April 28, 1897, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>1. Appeals—Correct decree—Wrong reasons assigned,.—If the decree of the trial court is right, this court will affirm it, though it does not approve the reasons assigned by the trial court.</p> <p>2. Specific Performance—Parol contract for sale of land—Statute of frauds— Evidence.—Notwithstanding the statute of frauds, courts of equity, in order to defeat a fraud, will compel the specific execution of a parol contract for the sale of lands if the contract is established by clear and convincing proof. In the case at bar the evidence is not of that clear and convincing character necessary -to entitle appellants to the relief sought.</p>

<p>Error to a judgment of the Hustings Court of the city of Bichmond, rendered December 12, 1895, on an indictment for a misdemeanor.</p>

<p>1. Criminal Law — Housebreaking—Indictment—Time when offence committed.— An indictment for breaking and entering a “mill-house” with intent . to commit larceny therein, must charge the time at which the alleged breaking and entering took place, for if done between February 12, 1894, and January 9, 1896, the offence was not a felony, while if done before the first date, or after the latter, the offence is a felony. Time is of the essence of the offence.</p>

The indictment was as follows: “State of Virginia — County of Page, to-wit: “In the County Court of Page county. Held: then and there feloniously, wilfully and of his malice aforethought, did discharge and shoot off, at, against and upon the said Willis D. Kibler, and that the said Albin N. Kibler, with the shot aforesaid, out of the gun by the said Albin N. Kibler discharged and shot off as aforesaid, then and there feloniously, wilfully and of his…

<p>1. CriminalLaw—Indictment for felony—Conviction of a misdemeanor.—Upon an indictment for a felony in a county or corporation court the accused may be acquitted of the felony but found guilty of a misdemeanor.</p>