Volume 95 — Virginia Reports

<p>Error to a judgment of tbe Corporation Court of tbe city of Bristol, rendered December 19, 1896, on a motion made by tbe plaintiff in error to correct an erroneous assessment of taxes on personal property.</p>

The appellees, who were complainants in the court below, had pm-chased lands of Joseph Combs. There were judgments against Combs before he conveyed to the appellees, and their lands had been sold, in proceedings had for that purpose, to pay these judgments. Each of these vendees purchased his own lands, paid the cash payments required, and gave bonds for the deferred payments. The aggregate of these bonds was sufficient to pay the judgments.

H. B. Hull and wife conveyed to Henry Harrison a tract of land in Tazewell county containing, as stated in the deed, 832 30-100 acres, at the price of $10,000. The only covenant in the deed was a covenant of general warranty. Henry Harrison conveyed the same land as containing 832 30-100 acres, by deed, with covenant of general warranty, to J. Howe Sayers. Sayers had the land surveyed, and it was ascertained that there was a deficiency of about 59 acres.

<p>Error to a judgment of the Circuit Court of Pulaski county, rendered March 19, 1896, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county, pronounced July 13, 1894, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Process — Defective Service Cured by Appearance. — Defects of service of process are cured by appearance and consent to a hearing.</p> <p>2. Partition — Averments as to Complainant’s Estate — Parties—Mortgagees — Judgment Creditors — Continuance.—An allegation that the ancestor died, seised and possessed of a tract of land, and that the complainant and the defendants are his only heirs is a sufficient averment of the title of the parties in a suit for partition. Mortgagees and judgment creditors of the ancestor are not affected by partition, and are not necessary parties to the suit for partition. Their rights cannot be affected in any way by the partition. The owners of the equity of redemption may have partition, and it is not error to refuse a continuance of the suit because one of the co-parceners has a claim against the ancestor, especially when there is a suit pending in the same court for the purpose of ascertaining the debts against such ancestor, and having the same paid.</p> <p>3. Suits for Partition — Exceptions to Commissioners’ Report. — An exception to a report of commissioners to divide lands in a suit for partition, on the ground that the division is unequal as to quality and quantity, but which fails to point out the inequality, and which is not supported by proof, should be overruled.</p> <p>4. Partition — Oioelty—Compensation for Inequalities — Case at Bar. — In a suit for partition, if the lands are incapable of exact or fair division, the court may compensate the party receiving the less valuable lands by creating in his favor a charge upon the more valuable lands by way of rent, servitude, or easement. In the case at bar the servitude consisted in the right to take water by means of a pipe or ditch from one tract for the use of the other. This language will be construed to mean that the water is to be taken at a suitable and convenient point, and so as to inflict no unneccessary injury * upon the lot from which it is taken, nor inconvenience to the owner thereof.</p>

<p>1. Chancery Pleading—Real Parties—Buit l)y Assignor for Benefit of Assignee—Effect of Cross-MU.—The assignor of a chose in action, though secured hy a vendor’s lien 'on real estate, cannot sue in equity for the benefit his assignee to enforce the lien. Equity deals only with the real parties in interest. But where, in such a suit, the beneficial owner is made a party by cross-bill of the defendants, and answers the same, the original bill should not be dismissed, but proceed to final decree.</p> <p>2. Fbaud—Repudiation of Contract—Rescission—Promptness.—A party intending to repudiate a contract on the ground of fraud must do so as soon as the fraud is discovered. He has his election then to affirm or rescind the contract, and this election may be shown as well-by acts as by words. When once made it cannot be retracted. The defrauded party will be deemed to have waived his right of repudiation, if, after discovery of the fraud, he treats the contract as still subsisting, or if, in consequence of delay, an innocent third party has acquired an interest in the property, or the rights of the wrong-doer will be so affected that he cannot be placed in his former position. If the fraud complained of be false representations in the sale of real estate, the purchaser should promptly, on discovery of the fraud, notify the vendor of the cause of complaint, and offer to restore the title and possession of the property sold. It is too late to wait until sued for the purchase price, when the fraud was discovered long before that time, and the vendee has remained in possession without demanding a rescission. The vendee should act with promptness in discovering the fraud, and in-repudiating his contract, when discovered.</p>

<p>1. Appellate Pkoceedings — Second Writ of Error in Same Case — Evidence the Same on Both Trials — Law of the Case. — A writ of error was awarded at the instance of a defendant in the trial court, the evidence was certified, and the case heard in this court as on a demurrer to the evidence by the defendant, and the judgment of the trial court was reversed. At the second trial in the court below the evidence taken on the first trial was read to the jury in lieu of examining the witnesses, and the defendant demurred to the evidence.</p> <p>Held: The evidence on the two trials being exactly the same, and the position of the parties in respect thereto the same, the decision on the first writ of error became the law of the case, and judgment was rightly entered for the defendant on its demurrer.</p>

<p>1. Chancery Practice — Decrees to Sell Land — Amounts and Priorities of Liens. — It is error to decree a sale of real estate to pay liens thereon until the amounts and relative priorities of such liens have been first ascertained.</p>

<p>1. Sale oe Land—Gi'owing Trees—Knowledge of Sale to Another.—A purchaser of real estate who has full knowledge at the time of his purchase that his vendor has sold certain trees growing on the land and conveyed them to the purchaser, and who thereafter accepts from his vendor a deed with covenant of general warranty and for quiet enjoyment, and pays the cash payment for the land, and executes his notes for deferred payments, and pays one of the notes and part of another, cannot, after the lapse of five years, claim an abatement for the value of the trees.</p> <p>2. Specieic Pebeobjlance—Ascertaining Amount Due Before Sale—Application of Maxim de Minimis.—In a suit for the specific performance of a contract for the sale of real estate it is error to decree a sale of the land for default in the payment of a sum certain less the value of an over-lap, and direct the commissioner not to sell till the over-lap is released, or the amount and value thereof is first ascertained. A release deed should be filed, or the extent and value of the over-lap ascertained, before the decree for the sale is entered. But as the over-lap in the case in judgment was ascertained to amount to only about two dollars in value, this court, on the principle de mñnirms lex non curat will not reverse the decree.</p> <p>3. Sale by Comsussionee—Bond of Commissioner—Before Whom to he Given.—The bond required by statute to be given by commissioners to sell lands can only be given before the court which requires the bond to be given, or before the Judge thereof, or the clerk of the court in his office. It is error to direct the clerk of any other court to take the bond, but if the decree directing the bond to be taken by some other court is appealed from, this court will correct the error, as the decree is simply interlocutory.</p> <p>4. Subveys—Horizontal Measurements—Local Custom.—The accurate and legal mode of surveying land is by horizontal measurement, and, in the absence of an express agreement to the contrary, it should be so measured. Local custom or usage cannot be relied on where it is in conflict with the written agreement of parties, or with well-settled rules of law. But, in the case in judgment, no such usage or custom has been established in the manner required by law, even if it were admissible.</p> <p>5. Local Custom — Established 6y Evidence of One Witness — A local custom or usage may be proved by one witness where it appears that he has full knowledge and long experience on the subject about which he speaks, and testifies explicitly to the duration and universality of the usage, and is not contradicted.</p>

<p>1. Foreign Judgments—Banhrwptcy Proceedings—ConsideredasaWhole— Collateral Attach.—The record of the proceedings of a District Court of the United States showing that a commission in bankruptcy issued in 1801 was vacated in 1830 must be read as one entire and connected suit, and is admissible in evidence in the courts of this state to show that the adjudication in bankruptcy should be disregarded. The judgment of that court cannot be attacked collaterally.</p> <p>2. Deeds oe Release—Sow far Effectual—Grantor not in Possession.— Under the provisions of section 2439 of the Code a release deed is effectual to convey all the right, title, and interest of the grantor in the premises released, whether he were at the time in the possession of the premises or not.</p> <p>3. Deeds—Recitals—Grantor, a Widow.—The recital in a deed made in 1851 that the grantor therein is a widow will be accepted as true, in the absence of evidence to the contrary, although it appears from a will under which she claims title that she was a married woman in the year 1804.</p> <p>4. Deeds by Commissioner oe Court—Departure from Directions—Subsequent Confirmation by Court.—Although a deed made by commissioners of a court is not in exact accordance with the directions of the court, yet it is immaterial where it appears that they reported their action to the court, and it confirmed the deed. .</p> <p>5. Delinquent Lands—Redemption—Certificate of Auditor as to Payments—Presumption as to Who Redeemed.—The certificate of the Auditor of Public Accounts showing the payment of money for the redemption óf lands returned delinquent for the non-payment of taxes for the years 1796, 1797, and 1798 is admissible in evidence as tending to show redemption of the land from forfeiture; and the fact of the payment and the receipt of the money by the Commonwealth, in the absence of evidence to the contrary, is sufficient evidence of the fact that the payment was made hy or for some one entitled to redeem the land.</p> <p>6. Ejectment — Lands Excepted from Grant — Burden of Proof — Case at Bar. — The burden of proof is on the plaintiff in ejectment to show that the land claimed hy him is not within the reservation of the grant from the Commonwealth, under and through which he traces his title. He must recover upon the strength of his own title. In the case at bar one of the deeds under which the plaintiff claimed excepted all lands which had theretofore been aliened by the grantor, and which were not then in his possession. Hence it was necessary for the plaintiff to show that the land sued for had not already been aliened by such grantor at the time of his conveyance. The evidence of a witness that he was acquainted with the tract, and that he knows that large parts of it had been in the actual possession of said grantor and those claiming under him since the year 1856, and were still in his possession, was not of itself sufficient to justify a finding for the plaintiff.</p>

<p>1. Municipal Cobpoeations—Street Improvements—Damages—HegUgenee.—A municipal corporation is not liable for consequential damages from improving its streets, where it exercises reasonable care and skill in the performance of the work which it is authorized to do, and no part of the lands of others is actually taken. But, in the absence of such care and skill, it is liable for all damages not necessarily incident to the work, and which are chargeable to the unskillful or improper manner of executing it.</p>

<p>Error to a judgment of tie Circuit Court of Wythe county, rendered February 17, 1896, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>1. Misdemeanoes—Appeals from Justices—When Taken.—Appeals from the decisions of justices of the peace in misdemeanor cases must be taken at the time of the rendition of the judgment appealed from. They cannot he taken afterwards.</p>

The complainant sold to the Augsburg Land & Improvement 'Company three parcels of land, containing in the aggregate 66.45 acres, at the price of $6,645. Of this sum $2,700 was settled by paid-up stock of the company, $1,345 was paid in cash, and two notes for $1,345 each, payable, respectively, at one and two years after date, were given for the residue. Nothing was paid on either of these notes.

The evidence sufficiently appears in the opinion of the court. After all the evidence had been introduced the plaintiff offered eight instructions. The court gave instruction No. 1, and, after •striking out the words “to the best of its skill and judgment” in instruction No. 2, gave it as thus modified. It refused to give No. 4, No. 5, No. 6, No. 7, and No. 8.

This case is the sequel to Bison v. Newberry, 90 Va. 513. In that case the court refused to rescind, or to compel the specific performance of, the contract in suit, but left the parties to their remedies at law.

<p>1. Breach of Covenant — W7io May Sue for — Evidence Extrinsic to Covenant. — One not a party to a deed inter partes, nor a privy to such party, and not named nor definitely pointed out in it as the beneficiary, cannot sue thereon, either at common law or under the Virginia statute (sec. 2415 of the Code). Nor is extrinsic evidence admissible to show that the covenant sued on was made solely for his benefit.</p> <p>2. Demurrer — What it Admits, and What it Does Not Admit. — A demurrer admits only such facts as are well pleaded. It does not admit the pleader’s construction of a written, instrument set forth in the pleadings, nor the purpose ascribed by him to the parties to such instrument, unless justified by its language, nor that a parol understanding which varies and contradicts such instrument is competent, or admissible.</p>

The evidence sufficiently appears in the opinion of the court.

<p>1. Taxes on Real Estate oe Decedent — Lien Paramount to Claim of Creditors — Real Assets — Judgment Against Personal Representative.— The lien of the Commonwealth on land for taxes assessed thereon after the death of the owner is superior and paramount to the right of creditors of the decedent to subject the land to the payment of their debts. Where this lien has been perfected by a sale of the land for delinquent taxes and a purchase thereof by the Commonwealth, she stands as a purchaser for value. If she offers to relinquish her title only upon payment of the taxes justly due, creditors of the decedent cannot complain. While the real estate of a decedent is assets for the payment of his debts, that fact alone does not give a lien on his real estate for the payment of such debts, nor does a judgment against the personal representative of the decedent constitute such lien.</p>

The evidence sufficiently appears in the opinion. After the evidence was concluded the defendant asked four instructions, the first three of which the trial court refused to give, and in lieu thereof gave an instruction of its own.

<p>Appeal from a decree of the Circuit Court of Wythe county pronounced September 18, 1895, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county-pronounced February 22, 1896, in a suit in chancery wherein the appellee was the complainant, and the appellant was the-defendant.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county pronounced December 5, 1896, in a suit in chancery wherein the appellees were the complainants, and the appellant was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Albemarle county rendered May 15, 1896, 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>Appeal from a decree pronounced August 15, 1896, by tbe judge of the Circuit Court of Shenandoah county, in vacation, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants.</p>

This was an action of trespass on the case to recover damages for the destruction of certain property of the plaintiff hy fire alleged to have been caused by the negligence of defendants’ agents and employes.

The evidence tended to show that looking would have been wholly unavailing. If the intestate had left his team and gone to the track and looked, the topography of the country and the curvature of the track were such that he could have seen hut a short distance, and by the time he had returned to his team he would have had no better knowledge of the situation than if he had not gone to look.

<p>1. Statute of Frauds — Memorandum—Resolution of Directors of a Corporation Duly Signed. — A resolution of a board of directors of a corporation duly signed by its president and secretary, wbicb sufficiently sets forth tbe terms of tbe contract, is a compliance with tbe statute of frauds as to contracts for tbe sale of real estate.</p> <p>2. Specific Performance — Sale of Real Estate — Contract Signed Only by Party to be Charged. — Specific performance of a contract for tbe sale of real estate will be decreed against tbe party who signed tbe contract, although tbe other', party did not sign, and there was no mutuality of remedies between tbe parties at tbe time tbe contract was made. Tbe filing of tbe bill by tbe other party for specific performance makes tbe remedy and the obligation of tbe contract mutual.</p> <p>3. Specific Performance — Contract for Sale of Real Estate — Case in Judgment. — Under tbe terms of tbe contract in suit appellant contracted to purchase tbe land in controversy of tbe appellee at tbe price of $2,500, if a suit mentioned in tbe contract “goes in bis favor.” Tbe suit was decided against him in tbe Circuit Court, but that decree, on appeal, was reversed by this court.</p> <p>Held: Tbe appellant must take tbe land and pay tbe price agreed, with interest from tbe date of tbe decree of reversal. This right of tbe appellee could not be taken away nor abridged by notice from tbe appellant that it would not be responsible for costs, wbicb it bad contracted to pay, after tbe decree in tbe Circuit Court. Nor can tbe rights of appellee be affected by tbe depreciation in value of tbe land before tbe final termination of said suit.</p>

<p>Error to a judgment of tlie Circuit Court of Frederick county rendered December 9, 1896, in an action on an insurance policy wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of tire Circuit Court of Botetourt county rendered June 5, 1896, in an action on an insurance policy, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

This is an application for a writ of habeas corpus, to be directed to the sheriff of Norfolk county, by whom it is alleged the petitioner is unlawfully restrained of his liberty. The petitioner, E. E. Cromwell, and E,. L. Shea and J. J. Warren constituted the electoral board for Norfolk county. The electoral board, after the election of its members by the Legislature, was organized by the election of E. E. Cromwell, as chairman, and J. J. Warren, as secretary.

<p>1. Wills — Construction of — Case at Bar — Election.—A testator by his will declares “My daughters are to retain the old homestead so long as they are single and unmarried.” At the time the will was written, and when the testator died, he 'owned a tract of land on which he resided with his family, and his wife owned as her maiden land an adjacent tract on which the family had resided twenty years previous thereto, the dwelling house on which had been destroyed. Neither tract was known by the designation of “the old homestead.” The wife survived her husband twenty years and devised her tract of land, but it was subjected to her debts by her creditors.</p> <p>Held: The testator intended to devise the track owned by him, and not that of his wife. Election, when available, must appear in clear terms on the face of the will,- and cannot be shown by parol.</p>

Coyner, and the other of Cline v. Blakemore and others, in each of which the appellants were defendants..

W. Wise, suing on behalf of himself and others, was the complainant, and J. W. Davies and others were the defendants. This was a suit in chancery instituted by the appellee, T. W. Wise, suing on behalf of himself and other lien creditors of J. Walter Davies, to subject the real estate of the said Davies to the payment of liens thereon.

<p>1. Conflict of Jurisdiction — How Determined. — In case of conflict of jurisdiction between two courts having concurrent jurisdiction the general rule is that the court which first acquires cognizance of the controversy, or obtains possession of the property in dispute, is entitled to retain it until the end of the litigation, and should decide all questions which legitimately flow out of the controversy. Until then, all proceedings in the second suit should be stayed.</p> <p>2. Jurisdiction — How Acquired — Conflict of Jurisdiction. — Jurisdiction of a court is acquired by the issue and service of process, and, in case of conflict between courts of concurrent jurisdiction, the date of service of the process determines the priority of the -jurisdiction.</p> <p>3. Conflict of Jurisdiction — Creditor’s Bill — Case at Bar. — Technical creditor’s bills are exceptions to the general rule which pertains to a conflict of jurisdiction between courts of concurrent jurisdiction, but a bill which assails one of several debts secured in a . deed of trust, and seeks to obtain its place in the distribution of the trust fund,.is not such a bill as excepts it from the general rule, and must await the termination of a prior suit brought by the trustee for the purpose of administering the trust fund.</p> <p>4. Trustees — Suit to Administer Trust — Fraudulent Debts — Rights of Unsecured Creditors. — In a suit by trustees, to administer, under the order of the court, a trust fund created by deed of trust to secure creditors, it is entirely competent for the court to pass upon the validity of any debt secured in the deed. Creditors not secured may, in a proper case, be admitted parties, raise all proper issues, and obtain complete relief.</p> <p>5. Fraudulent Conveyances — Lien of Attaching Creditor — Fraudulent and Bona Fide Debts Secured by Same Deed. — A creditor who successfully assails a deed of trust on the ground that it secures a fraudulent debt, along with bona fide debts, is not entitled to be substituted to the position formerly occupied by the fraudulent debt. His lien, if not previously acquired, dates only from the commencment of his suit, and is subordinate to liens previously acquired. The deed of trust is valid as to the bona fide debts secured, and the fraudulent debt is eliminated, and treated as if it had never been inserted in the deed.</p> <p>6. Chanceby Pbactice — Dominion of Complainant — Order of Reference— Second Suit by Another Party — Case at Bar. — A suit by trustees to administer the 'trust is under the dominion of the complainants until there has been an order of reference, and no creditor who is not a party to the suit can become such without the leave of the court, which cannot be obtained without consent, until the next term. Although this may occasion some delay, it cannot justify the institution of another suit by such creditor to accomplish what could be effected in the pending suit. In the case at bar, the delay would have been far preferable to the conflict between the two co-ordinate courts having concurrent jurisdiction.</p>

Appeal front a decree of the Circuit Court of Rockbridge county, pronounced March. 19, 1891, in a suit in chancery wherein The Bnena Yista Company-was the complainant, and McClandish & Clowes, and numerous creditors of the company, were the defendants.

The record in this ease is very incomplete. Of the deeds hereinafter mentioned only one is copied into the record, and the report of the commissioner in chancery, upon which the decree of the court below was based, is not copied in the record. The statement of the case, therefore, is made from the pleadings, and not from the exhibits filed. Lizzie Reed was the owner of a lot in the city of Roanoke, extending through the block from Walker street to Rutherford street.

<p>1. Chanceby Pleading — Petition to Rehear — Requisites of, — A petition to rehear a chancery suit, which does not allege the discovery of new and important testimony not known or accessible to the petitioner before the former hearing, and which points out no error upon the face of the former decree should be dismissed.</p> <p>2. Deed’ ebom Tenant in Common — What Interest Conveyed. — A deed from a tenant in common carries to the grantee only an undivided interest in the property, no matter by what description the property is conveyed.</p> <p>3. Tenants in Common — Proposed Changes hy One Tenant to Injury ef Another — Injunction—Case in Judgment. — A tenant in common has no right to alter or change the common property to the injury of his co-tenants without their consent, and where such injury would be material, continuing, and not adequately reparable in damages, it may be restrained by injunction. In the case in judgment the evidence shows that the appellant and the appellee are tenants in common of the property in question, and that the alterations in the building proposed by the appellee would materially damage the property of the appellant.</p>

<p>1. Suit to Establish Lost Deed — Evidence—Memorandum in Handwriting of Grantee’s Attorney. — In a suit to set up a lost deed made a century ago, a memorandum in the handwriting of the grantee’s attorney, found amongst the papers of the grantee, stating that the lands had been granted to the grantor, and by him and wife conveyed with general warranty to the grantee, is not in itself evidence of the execution of such deed; nor is such memorandum admissible as a declaration against interest in a suit where no relief is sought against the attorney, or his representatives; nor is it admissible as a part of the res gestae, as the transaction to be explained or proved is the execution of the deed, and the memorandum neither accompanies nor explains the fact in issue.</p> <p>2. Evidence — Deed not Properly Authenticated or Recorded — Copy of a Copy. — Where an original deed conveying lands lying wholly in Virginia is admitted to record outside of this State, upon proof and authentication wholly insufficient to have admitted it to record in Virginia, and a copy thereof is subsequently admitted to record in a county in Virginia where a part of the land conveyed lies, and the absence of the original deed is not accounted for, a copy from the copy so admitted to record is not admissible in evidence to prove the recitals in said deed.</p> <p>3. Suit to Establish Lost Deed — To Whom Land Charged for Taxes— Copies from Auditor’s Office — Intermediate Conveyances Unaccompanied by Possession — Gase at Bar. — In a suit to establish a deed alleged to have been made a century ago, and lost, neither the certificate of the auditor showing that the lands were charged to the grantee for a great number of years after the date of the alleged deed, nor any number of intermediate conveyances, however numerous, from those claiming under the alleged grantee, unaccompanied by possession or other circumstance, can serve to establish the execution of such deed. In the case in judgment the evidence of possession in appellants amounts to nothing so far as it affects the rights of other parties to the controversy.</p> <p>4. Suit to Establish Lost Deed — Proof of Former Existence. — Courts of equity, in exercising their jurisdiction to set up a lost instrument which is to constitute a muniment of title, require strong and conclusive proof of its former existence, its loss, and its contents. ■ ,</p>

The evidence sufficiently appears in the opinion of the court. After all the evidence had been introduced, the plaintiff asked for seven instructions to which the defendant objected, hut the court, after making some amendments, overruled said objection, and gave said instructions, and the defendant excepted.

<p>Appeal from a decree of tlie Circuit Court of Washington county pronounced January 9, 1896, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Master and Servant—Contributory Negligence—Use of Appliances Known to be Defective—Case at Bar.—Generally any negligence of the employee amounting to the want of ordinary care will defeat an action against the master, and when a servant wilfully encounters a danger known to him, or performs a service with an instrumentality so obviously dangerous that a man of common prudence would refuse to use it, the master is not liable_for the resulting damage. In the case at bar the injury resulted from the use of unsuitable appliances when suitable appliances lurnished by the master were within easy reach, and the servant occupied a place of danger knowing that unsuitable appliances were being used, without giving information thereof to the foreman, and without remonstrance.</p> <p>2. Master and Servant—Contributory Negligence—Unsuitable Appliances—Improper Adjustments.—A servant who knows that unsuitable appliances are being used to do the master’s work, or that the appliances have not been properly adjusted, and also knows that his foreman is ignorant of the fact, is guilty of inexcusable negligence to proceed with the work without informing his foreman thereof, and cannot recover of the master for personal injuries resulting from the use of such appliances, or their improper adjustment.</p>

<p>Error to a judgment of the Circuit Court of Elizabeth City county rendered September 17, 1895, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Rescission — False Representations — Ignorance of Falsity — Facts— Opinions. — A false representation of a material fact, constituting an inducement to the contract, on which the purchaser has the right to rely, is ground for rescission of the contract, although the party making the representation was ignorant as to whether it was true or false. The misrepresentation, however, must, as a general rule, be the statement of a material fact, made for the purpose of procuring the contract, as distinguished from a mere matter of opinion unless the parties are dealing on unequal terms, and one has means of information not equally open to the other.</p> <p>2. Rescission — Representation that Land is Suitable for Building Purposes. — In the absence of any concealment by the vendor of land, or of any effort to prevent inquiry as to the facts, his statement that the land is available for building sites and purposes is the mere expression of an opinion which does not entitle the purchaser to a rescission of the contract, though he and others may be of opinion that it is not so suitable.</p> <p>3. Agent to Sell Land — Offer to Become Go-Purchaser — Failure to Disclose His Interest in the Land. — If the agent for the sale of land, in order to effect a sale, induces a purchaser to join him in the purchase on terms of equality, and fails to disclose that he owns an interest in the land, this constitutes a fraud upon the purchaser, and avoids the sale at the election of the purchaser.</p> <p>4. Chancery Pleading — Fraudulent Representations not Relied on in Pleadings — Proof Confined to Pleadings. — Fraudulent representations or concealments not relied on in the pleadings cannot be set up in the evidence. The allegations and proof must agree. A recovery will not be allowed upon a case, though proved, which differs essentially from that alleged in the bill.</p> <p>5. Rescission — Fraudulent Representations Charged Must be Common to All of the Complainants. — Where several complainants unite in one bill, by which they seek to have their contracts of purchase of real estate rescinded oh the ground of fraudulent representations, the representations must be common to all the complainants. This is the ground upon which they are allowed to unite in one suit. Misrepresentations to some only of the complainants are not admissible in evidence.</p>

The widow of Churchill Doggett renounced the provision made for her by the will of her husband, and this suit was instituted by his daughter, Elizabeth Webster, for the purpose of having dower assigned to his widow, and partition of the residue of his real estate. In the progress of the suit it became necessary to refer the cause to a commissioner to settle the account of the executrix of the estate of Churchill Doggett, and also to make certain inquiries.

This was an action of assumpsit upon an open account, and the declaration contained only the common counts. An account was filed- with the declaration, giving the items of the account, dates, and amounts. The heading of the account was as follows: “December 14, 1888. “Mr. Maurice B. Elynn, “Richmond Union Passenger Railway Co. “To Mew York & Seabeach Railway Co.” The evidence sufficiently appears in the opinion of the court.

<p>Error to a judgment of the Circuit Court of Giles county rendered June 2, 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>

The testatrix died in June, 1894, and the bill in this case was filed in July, 1895. The'bill charged, amongst other things, that the executor had not filed any inventory of the estate, and it prayed that he might be required to file such inventory, and to settle his account as executor and trustee. The inventory was filed, and the account was settled by a commissioner of the court. The commissioner allowed the executor a commission of five per cent, on the whole estate.

<p>Error to a judgment of the Hustings Court of the city of Portsmouth rendered October 31, 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>1. Prison Association — Commitment Before Conviction. — Under the provisions of the statute (Acts 1895-6, p. 658), a Hustings Court may commit to the Prison Association of Virginia, before conviction, an infant who has neither parent nor legal guardian to consent to such commitment, although the infant does not consent thereto.</p>

<p>1. Arbitration and Award — Appointment of Tim'd Arbitrator — Notice to Parties — Opportunity to be Heard. — Where two arbitrators, who have power to appoint a third in case of their disagreement, disagree, and make the appointment, it is necessary to inform the parties in interest of the appointment, and give them a reasonable opportunity to produce evidence touching the matters in controversy. In the absence of an agreement to that effect, it is not sufficient for the third arbitrator to derive his knowledge of the evidence from the other arbitrators. The case should be reheard by him.</p> <p>2. Chancery Jurisdiction — Parties Before Court — Legal Defences — Complete Belief. — Every party in interest being before the court on a bill to set aside an award, on grounds which unquestionably give the court jurisdiction, and the award having been set aside, the court may decide the whole controversy, and render a final decree, though all the issues are legal in their nature, capable of being tried by a court of law, and the legal remedies therefore adequate. The jurisdiction having once attached, the court will retain the case, and grant the complete relief prayed for.</p>

<p>1. Railroads — Communicated Fires — Combustible Matter on Right of Way — Sparle Arresters — Demurrer to Evidence — Case at Bar. — Upon a demurrer to the evidence by the defendant, in an action against a railroad company to recover damages for negligently setting fire to and destroying the plaintiff’s mill and contents, judgment should be rendered for the paintiff, notwithstanding the defendant had the best of engines, the most approved spark arresters and other appliances, and the most skilful management, when the evidence tends to show that the defendant permitid combustible matter to accumulate on its right of way; that the defendant’s engines were in the habit of emitting sparks; that an engine and train passed at an opportune time to cause the fire; that the progiess of the fire was from defendant’s right of way to the property burned; that the wind was blowing in that direction; and that the side of the mill next to the railroad was the first to burn.</p>

<p>1. Pleading—Declaration—Sufficiency of.—A declaration is sufficient which sets out the contract sued on, states when and where it was made, and alleges all the circumstances necessary to support the action with sufficient fullness, clearness, and precision to apprise the defendant of the grounds of the plaintiff’s claim, and to enable the defendant to plead to it.</p> <p>2. Evidence—Witnesses—Contract with Corporation—Original Parties— Competency of Agent—Test of Competency.—In a contract of insurance the original parties to the contract are the assured and the insurance company, and, in an action on the policy, the agent of the company who procured the policy is a competent witness on behalf of the company, although the assured be dead at the time of trial. He was competent at common law, and the statute has not imposed any restriction on his competency. The test of competency under the statute is not the fact to which the witness will testify, but the contract or other transaction which is the subject of investigation. Agents are not within the exceptions to competency created by statute of persons generally to be witnesses. There is no disqualification, express or implied, in the statute, of a mere agent in any case.</p> <p>3. Insurance—Payment of Premium—Estoppel—Waiver—Evidence.— Where a policy of insurance has not been delivered, and the blank in the application for the amount of the premium has not been filled, there is no such unequivocal acknowledgment of the receipt of the premium, nor any such acknowledgement of its receipt, as will estop the company from showing by parol evidence that the premium has not been paid, nor the payment waived.</p> <p>4. Evidence—Witness—Incompetency—Bill of Exception—Objection on Other' Grounds, but Excluded for Incompetency.—When a witness is excluded on the ground of incompetency, it is not necessary to state in the bill of exception what is expected to be proved by him. The objection to his competency implies that his evidence would be unfavorable to the party objecting. This is an exception to the general rule. If the witness is excluded on the ground of incompetency, it is immaterial that the objection to questions propounded to him was founded on other grounds.</p>

There was a verdict and judgment for the plaintiff for the sum of $500. To that judgment this writ of error was awarded.

The plaintiff was the owner of a lot abutting on Eighth street, in the city of Richmond, which was damaged by the caving in or cracking of the land in consequence of insufficiently supporting a tunnel constructed under said street by the Richmond & Chesapeake Railroad Company.

<p>1. Sealed Instruments — Actual Seal — Recognition.—An actual seal affixed to a contract for tbe sale of personal property must be recognized in tbe body of tbe contract in order to make it a sealed instrument.</p>

<p>1. Appeal and Ebbob — Final Decree — Decision of Principles — Mandamus. — A decree which declines to grant the relief prayed until the Legislature enacts a further law on the subject is not a final decree, nor does it adjudicate the principles of the cause. From it no appeal lies. If a decision is desired the proper remedy is by mandamus to compel the trial court to hear and determine the cause.</p> <p>2. Pabtition — Public Property. — In the absence of special legislation partition cannot be made between a city and a county of public property either by the courts, or by one of the parties against the protest of the other.</p> <p>3. Constitutional Law — Act Broader than Its Title — Partition or Sale of Property in Alexandria. — The title of an Act of Assembly entitled “An act to authorize the qualified voters of Alexandria county to vote on the question of the removal of the courthouse from Alexandria city to some point within Alexandria county” is not sufficiently broad to authorize provisions in the Act for the partition or sale of the courthouse and jail properties held for the use of the county and city. Those provisions are in conflict with Art. V., Sec. 15 of the Constitution, which provides that “no law shall embrace more than one object which shall be expressed in its title.”</p>

Humphreys & Son were the complainants, and Mary L. Dezendorf and others were the defendants. The decree of the Law and Chancery Court was adverse to Lownsberry and other creditors similarly situated, and also to Mrs. Dezendorf, all of whom were defendants in the court below and they took separate appeals.

<p>1. Removal oe Causes — Diversity of Citizenship — Aliens.—Where the right of removal of a case from a State court to a Federal court is based on the ground of diversity of citizenship, it is essential that the parties on each side shall be citizens of different States, and the petition for removal, unless the case presents a separable controversy, must be by all on that side. An alien, however, sued with a citizen in a court of the latter’s State, even where the controversy is separable, has no right of removal.</p> <p>2. Residence — Status of Convict in Penitentiary — Citizenship.—The residence of a citizen of this State is not changed by reason of his conviction and confinement in the penitentiary of another State. Residence is a matter of intention and is determined by every man for himself. The penitentiary is not a place of residence, but of confinement as a punishment for crime. Compulsory confinement in the penitentiary cannot change the residence of the convict. Moreover, mere residence does not constitute citizenship.</p> <p>3. Convicts in Fobeign Penitentiary May be Sued. — At common law a person convicted of felony,'though disabled from suing, did not possess immunity from suit. And so, a citizen of Virginia serving a term of penal servitude in the penitentiary of. another State, under a judgment of a Federal court in this State, may be sued in the courts of this State.</p> <p>4. Cobeoeations — Residence—Removal of Cause to Federal Court — What Petition Must Show. — A foreign corporation, for the purpose of suit, may become a resident of each State in which it does business under the laws thereof. And, when sued with another in a State court if it presents a petition for removal of the case to a Federal court, the petition must show that it is not a resident of the State in which the suit is brought, and must state the residence of its co-defendant. A petition which simply avers that the petitioner is an alien corporation, and that its co-defendant is a resident of another State, but does not state his citizenship, is defective on its face.</p> <p>5. Pleading — Plea to Jurisdiction — What it Must Show, and Sow Conclude. — A plea to the jurisdiction of a court in a transitory action which fails to state that the cause of action did not arise within the jurisdiction of the court, or where it did arise, and which fails to give the plaintiff a better writ by showing what court of the State has jurisdiction of the cause, and which omits the prayer of judgment, is bad. As a general rule such plea must show a more proper and sufficient jurisdiction in some other court of the State or country wherein the action is brought.</p> <p>6. Pleading — Plea in Abatement — Duplicity.—A plea in abatement which sets up two or more distinct and sufficient defences, either of which, if true, would necessitate a finding in favor of the defendant tendering the plea, is bad for duplicity.</p> <p>7. Pleading — Declaration—Exception for Want of Jurisdiction — Abatement. — Where a declaration shows on its face proper matter for the jurisdiction of the court, no exception for want of jurisdiction can be taken except by plea in abatement.</p> <p>8. Attachments — Return—What Seed Sot be Stated. — A sheriff has no power to execute an attachment outside of his bailiwick. Hence, if the return is regular on its face, it will be presumed, in the absence of evidence to the contrary, that the attachment was legally executed, and the return need not show that it was executed in his bailiwick.</p> <p>9. Pleading — Declaration—Amendment.—It is not error to allow a declaration to be amended after a demurrer thereto has been sustained, where the declaration stated a good cause of action, though the statement was defective with regard to the matters in which it was amended.</p> <p>10. Pleading — Declaration—What Sufficient. — A declaration which sets out the plaintiff’s cause of action with sufficient fullness and clearness to apprise the defendant of the grounds of the plaintiff’s claim, and to enable the defendant to plead to the action, is sufficient.</p> <p>11. Pleading — Several Pleas Presenting Same Defence. — It is not error to exclude a plea which presents a defence which may be made under a plea already admitted. The multiplication of pleas tends to embarrass and confuse the jury, and is not favored by the courts.</p> <p>12. Pleading — False Representations — Scienter.—In an action at law on a bond, a plea which sets out that the defendant was induced to execute the bond by reason of certain representations of existing facts, presumably within the peculiar knowledge of the plaintiff, and upon which the defendant had a right to rely, and did rely, that these representations were material and were untrue, presents a good defence to the action. It is immaterial whether the plaintiff knew them to he false, or honestly believed them to be true.</p> <p>13. Evidence — When Hypothetical Questions Excluded. — It is not error to refuse to allow hypothetical questions to be put to a witness concerning a matter not calling for expert testimony, and about which men in general are competent to form intelligent and correct opinions. The jury can draw their own conclusions from the evidence unaffected by the opinions of others.</p>

<p>1. Appeal — Amount in Controversy — Several Claims Each Less Than $500. — Where the jurisdiction of this court is fixed by the amount in controversy, and the claim of each of several complainants is less than $500, and the decision of the trial court is adverse to the claim, this court nas no jurisdiction of the appeal and, if awarded, it will be dismissed.</p> <p>2. Mechanic’s Lien — Account—Sufficiency of — Entire Contract — Case at Bar. — The filing of the account as required by statute is the initial and one of the most important steps in the establishment of a mechanic’s lien. Unless the work done or materials furnished are contracted for as an entirety, and it is so set out in the account filed, the account must set out substantially the amount of the work done, and materials furnished, and the prices charged therefor. In the case at bar these requisites have not been complied with. An account which simply charges “for materials furnished and work done” in plastering certain enumerated houses, or in granolithic work at those houses, or for furnishing and hauling sand, and hauling bricks for the construction of those houses, is not sufficient.</p> <p>3. Mechanic’s Lien — Separate Contracts for Several Houses — Account Claiming Aggregate Price on All. — Where a contract has been made which estimates or fixes the price of materials furnished and work done upon each of two or more buildings, on disconnected lots, an account which claims the aggregate price as a lien upon all of the ■ lots is not a substantial compliance with the statute.</p> <p>4. Mechanic’s Lien — Hauling Sand and Brioles — What Account Must Show. — In the absence of an entire contract, an account for furnishing and hauling sand, and hauling bricks, as a basis of a mechanic’s lien, should show the amount of sand furnished and hauled, and the prices charged therefor, and the quantity or number of bricks hauled, and the prices charged therefor.</p>

<p>1. Executions — Sequestration of Profits — Sale—Appeals—Discretion.— Where a trust fund has been created the annual interest or income from which is directed to be paid to an execution debtor, it is not error for a court of equity to sequestrate such interest or income, and direct its payment to the execution creditors instead of directing a sale of the interest of the debtor. This does exact justice to all concerned. Courts of equity have a discretion in such cases which will not be reviewed or reversed except for error appearing on the face of the record.</p>

The evidence sufficiently appears in the opinion of the court. The third instruction given by the trial court was as follows: “The court further instructs the jury that alleged negligence is the foundation of this action, which is the absence of such care as a reasonably prudent man would exercise under the circumstances, and even though you may believe from the evidence that the J. R. & K. Ca.

<p>Appeal from a decree of the Circuit Court of the'city of Newport News pronounced March 11, 1896, in a suit in chancery wherein the appellees were the complainants, and the appellants and others were the defendants.</p> <p>The hill in this cause was filed by the appellees Rix & Bentley against the appellants, Schmelz Brothers, and one Phil. St. George Wilcox, trustee. The bill charged that on the 13th of November, 1893, Rix & Bentley had obtained a loan of $500 from Schmelz Brothers, bankers, in the city of Newport News, and had, as security therefor, given two notes, one for the sum of $300, and the other for the sum of $200, each endorsed by E. W. Johnson and W. Scott Boyenton for the accommodation of the makers; that in order to indemnify their endorser, E. ~W. Johnson, and solely for that purpose, they executed a deed of trust on certain personal property; that each of said notes was dated November 13, 1893, but after they were received by Schmelz Brothers, and before their maturity they were changed in a material respect by Schmelz Brothers, without the knowledge or consent of either the makers or endorsers, and that thereby said notes were rendered null and void; but that even if said notes were not rendered wholly void by the charge aforesaid, Schmelz Brothers had charged them a higher rate of interest than six per cent., and the said notes were founded on a usurious consideration. They further charge that Schmelz Brothers knew nothing about the deed of trust at the time it was given, or for some time thereafter, and that it was intended solely as a security for their endorser, and not for the benefit of Schmelz Brothers. They charge, however, that Schmelz Brothers have directed a sale by the trustee under said deed of trust. The prayer of the bill is that Schmelz Brothers be required to discover the consideration of said notes, and the amount of money really loaned the complainants, and that the said Schmelz Brothers, the trustee; and all others concerned be enjoined and restrained from selling-under the deed of trust aforesaid, and for general relief. Schmelz Brothers, in their answer to the bill, admit that the loan was made at a greater rate of interest than six per cent.; that the two notes above mentioned were renewals of a previous note for $500, endorsed by the same endorsers, and that the discount received by them on the original note was $26, and on the renewals $26, and that the actual amount of principal money now due by Bix & Bentley is $448. They deny that the change in said notes was made without the knowledge or consent of the makers, but aver that it was made in the presence and with the consent of A. E. Rix, the managing member of the firm of Bix & Bentley. They admit that the change was not made with the consent of the endorsers, and that they are therefore released, but they insist that the notes are valid securities as against the makers, and that the deed of trust operates as a security for said notes, at least to the extent of the amount actually loaned. The other evidence sufficiently appears in-the opinion of the court.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered November 22, 1895, in a proceeding by garnishment, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Law and Chancery Court of the city of Forfolk, rendered March 16, 1896, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Appeal from the Law and. Chancery Court of the city of hiorfolk, pronounced February 10, 1896, in a suit in chancery wherein the appellees were the complainants, and the appellants were the defendants.</p> <p>The object of this suit was to compel the defendants to renew for another period of ninety-nine years the lease mentioned in the opinion.</p>

<p>Appeal from a decree of the Circuit Court of Eranklin county, pronounced June 25, 1896, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p> <p>The complainant had recovered a judgment by default against the defendant, and this suit was instituted for the purpose of subjecting the lands of the defendants to the payment of the judgment. The defendants answered, alleging usury in the transaction. The usury was clearly proved, and the defendants were 'relieved from the payment of all of the judgment except the principal sum loaned.</p>

The deed referred to and construed by the court is' in the words and figures following, to-wit: “Whereas, George Bramble, by his deed of the 7th day of January, 1865, did give to Jane O. Lovitt, a life estate in a •certain tract of land hereinafter described, with the remainder to the heirs of her body, which life estate has this day been released to Robert C. Lovitt and Henry O. Lovitt, and whereas •Jane E., the daughter, has accepted in lieu of her interest in said tract…

<p>1. Chancery Jurisdiction — Suit by One or More Taxpayers to Enjoin Municipal Corporation from Levying Illegal Tax, or Incurring an Unauthorized Debt. — Courts of equity have jurisdiction, on tbe application of one or more taxpayers of a municipal corporation, suing for tbe benefit of themselves and all others similarly situated, to enjoin the corporation and its officers from levying and collecting an unauthorized tax, or creating an unauthorized debt. It is immaterial whether the debt was wholly unauthorized, or authorized only upon conditions which have not been complied with, or that the securities for it would be void in the hands of an innocent holder.</p> <p>2. Municipal Corporations — Power to Become Surety, Guarantor or Endorser — Limit of Powers. — The power conferred on a city to acquire suitable works and machinery for the generation of electricity for the use of the city and its inhabitants, and to do all things necessary or proper to carry into effect the powers conferred does not authorize the city to guarantee the bonds of another corporation, in which it has no interest, to enable it to furnish electric lights to the city and its inhabitants. The powers of municipal corporations are limited to those granted in express terms, those necessarily or fairly implied in or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. The right to become surety, guarantor or endorser for another is not within any of these limitations. It is immaterial that the city is protected from loss as such surety, guarantor, or endorser.</p>

Appeals from a decree of the Hustings Court of the city of Roanoke, pronounced June 27, 1896, in three chancery causes heard together, wherein the appellants, respectively, were the complainants, and the appellees, respectively, were the defendants.

<p>Error to a judgment of the Circuit Oonrt of the city of Kichmond, rendered November 15, 1895, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

This was a suit in chancery instituted by the Landmark Publishing Company, The New Pilot Publishing Company, and M. Glen-nan, owner of the Norfolk Virginian, “suing on behalf of themselves and all others similarly situated,” for the purpose of enjoining the city of Norfolk from enforcing the collection of a license tax of $100 a year imposed on daily morning newspapers.

<p>1. Stock Subscbiption — Suit by Receiver — Defence of Illegal Consideration — Maxims “nemo allegans” and “in pari delicto.” — In an action by a receiver of an insolvent corporation against a stockholder, to recover a stock subscription for the benefit of -creditors whose debts were contracted on the faith of his and other subscriptions, where the contract of subscription is lawful on its face, and the creditors have no knowledge of its vice, the stockholder cannot defend on the ground that he was allured into making the subscription by the chance of obtaining one or more lots in a drawing for distribution of lots of unequal value. In determining whether or not such contracts shall be enforced courts consider whether the good of the public, and the policy of the law, will be best subserved, and the making of such contracts be discouraged, by enforcing the contract, or by refusing to do so. In the case at bar the contract should be enforced. For a discussion of the maxims “nemo allegans” and “in pari delicto” see opinion of the court.</p>

<p>Error to a judgment of the Circuit Court of Pittsylvania county, rendered April 28, 1896, in an action of assumpsit wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

Court of the city of Alexandria in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.

<p>1. Unlawful Detainer—Fraudulent Conveyance—Bill in Equity—Election of Remedies.—A judgment against a defendant in an action of unlawful detainer is no bar to his right to institute a suit in chancery against the plaintiff to set aside, on the ground of fraud, the deed under which he claims the land in controversy. The doctrine of election of remedies has no application.</p> <p>2. Trusts and Trustees—Trustee Purchaser at Eis Own Sale.—A trustee cannot purchase the trust subject at his own sale, either for himself or as agent for another. The sale will be set aside although the price obtained was fair, or the best to be had, and the motive of the trustee pure.</p> <p>3. Trusts and Trustees—Trustee Purchaser—Sale Set Aside—Measure of Relief to Trustee.—Where a sale made by a trustee is set aside, at the instance of the grantors in the deed of trust, solely on the ground that the trust subject was purchased by the trustee at his own sale, the trustee is entitled to be reimbursed the amount paid by him, and may hold the legal title to the trust subject as security for the amount. He is entitled to interest, and the value of his permanent improvements, if any, and is to be charged with rents and profits.</p>

<p>1. Appeal and Ebboe — Controversy Ended — Emtrinsic Evidence — Dismissal. — Whenever it appears from the record, or is shown by extrinsic evidence, that there is no controversy existing between the litigants, or, if it once existed, it has been settled or has ceased to exist, the writ of error or appeal will be dismissed. Courts do not sit to decide moot questions.</p>

<p>Appeal from a decree of tlie Chancery Court of the city of Richmond iu a suit iu chancery instituted by the appellees, Rrancis T. Allen and Otway S. Allen, suing on behalf of themselves and other creditors of James Alfred Jones, against the devisees and legatees of said Jones, the appellant, and others, for the purpose of having the estate of said Jones administered under the order of the court.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered May 30, 1896, in an action of assumpsit, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

The deed sought to be set aside was a deed made by Charles W. Liggan and Willis FT. Liggan, partners trading and doing business under the style and firm of the “Rivermont Furniture Company.” The new firm composed of O. FT. Sutton and Mrs. M. L. Liggan, did. business under the style of “Rivermont Furniture Manufacturing Co.” Amongst the debts sought to be secured by the deed of trust was one to B. E. Hughes for the sum of $975.

<p>Error to a judgment of the Circuit Court of Greene county, rendered in an action of ejectment wherein the defendants in •error were the plaintiffs, and the plaintiffs in error were the defendants.</p>

<p>Error to a judgment of the Hustings Court of the city of Portsmouth rendered April 30, 1896, in an action of tresspass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>The evidence in this case sufficiently appears in the opinion of the court. After all the evidence had been introduced sundry instructions were asked by the plaintiff and the defendant. Six instructions were given on the motion of the plaintiff, and four on the motion of the defendant. Instruction Ho. 2 given on the motion of the plaintiff is set out in the opinion of the court. The other instructions given for the plaintiff and the defendant, respectively, are as follows:</p> <p> Plaintiff’s Instruction, No. 1. </p> <p>“The court instructs the jury that if they believe from the evidence that the plaintiff was riding in a vehicle driven by the owner of the vehicle over which she neither assumed nor exercised any control, and over which she had no control, and she is injured in a collision at a railway crossing on the public highway by a railway train and without any negligence on her part if the negligence of the driver in driving upon the crossing contributed to said injury then said contributory negligence cannot as a matter of law be’ imputed to her.”</p> <p> Plaintiff’s Instruction, No. S. </p> <p>“The court instructs the jury that if they should believe from the evidence that the whistle was not at least twice sharply sounded at a distance not less than 300 yards before the highway crossing referred to in the plaintiff’s declaration was reached, and that such failure to so sound the whistle at such distance tended to cause the accident complained of in said declaration, then the defendant, The Atlantic & Danville Eailway Company, is liable for all damages caused by such neglect, and they must find for the plaintiff unless they believe from the evidence that the plaintiff, by her own negligence and recklessness, directly and proximately contributed to the act which caused her injury.”</p> <p> Plaintiff’s Instruction, No. J/.. </p> <p>“The, court instructs the jury that if they shall believe from the evidence that the plaintiff is entitled to recover damages then in estimating the damages sustained by her, they should take into account the bodily injury sustained by the plaintiff, the mental suffering, the pain undergone, the effect on the health of the sufferer according to its degree, and its probable duration, as likely to be temporary or permanent, the expenses incidental to attempts to effect a cure, or to lessen the amount of injury, and the pecuniary loss sustained by the plaintiff through inability to attend to her business, or such of them as they believe exists or existed.”</p> <p> Plaintiff’s Instruction, No. 5. </p> <p>“If the jury believe from the evidence that the view of an approaching train was obstructed by a building belonging to the defendant and cars standing 'on one or more of the tracks of said company, so that a person or persons approaching Portsmouth on the said shell road on the south side of the tracks, could not see a train approaching on the tracks to the east of the shell road, and that ordinary care would have required other precautions than if the view was not so obstructed, and that the defendant did not use such other precautions, then they must conclude that the defendant was guilty of negligence; and if they believe further from the evidence that the plaintiff did not know, on account of said obstructions, that the train was nearing the crossing so as to endanger her passing over the same, but acted as an ordinarily prudent person would act under, the circumstances, they must find for the plaintiff such damages as are proper, not exceeding the amount claimed in the declaration.”</p> <p> Plaintiff’s Instruction, No. 6. </p> <p>“The court instructs the jury that a railroad running and operating trains over a crossing in a public road, which is daily frequented as a drive and a walkway by the inhabitants of the city of Portsmouth, as well as by other persons, for the ordinary purpose of travel and business, must use greater care and diligence to prevent injury to persons and property than is required of them in running and operating their trains is less frequented localities, and that the neglect of such precautions as are proper under the peculiar circumstances and surroundings of the locality constitutes negligence, for which the railroad company is liable in damages unless tbe plaintiff, by tbe exercise of ordinary ■ care on her part, could have prevented tbe accident -wbicb was tbe result of sucb negligence.”</p> <p> Defendant’s Instruction, No. 2. </p> <p>“Tbe court instructs tbe jury that tbe presence of railroad tracks is a proclamation of danger to anyone attempting to cross them, and that it is not only tbe duty of tbe person about to cross railroad tracks to vigilantly use bis eyes and ears and to look in every direction, and to. listen to make sure that tbe crossing is safe, and that this duty is not performed by plaintiff’s looking from a point where tbe view is obstructed, but the duty is a continuous one, and must be performed at any point at wbicb a view may be bad, if there is such a point before reaching tbe track, and if tbe plaintiff fails to perform this duty, and by performing it might have seen tbe danger in time to- avoid it, sucb failure is contributory negligence on tbe plaintiff’s part and she cannot recover, notwithstanding tbe jury may believe from tbe evidence that tbe defendant is also guilty of negligence, unless tbe defendant’s agents might, after perceiving tbe negligence of the plaintiff, have stopped tbe engine in time to avert tbe accident.”</p> <p> Defendant’s Instruction, No. S. </p> <p>“Tbe court instructs tbe jury that it was tbe duty of tbe plaintiff to look and listen before reaching tbe crossing at a point from wbicb she might have seen or beard the approaching engine, and if tbe jury believe from tbe evidence that there was sucb a point, and that by looking from sucb a point she could have seen tbe approaching danger in time to avoid tbe accident, it must be conclusively presumed that she disregarded that rule of law and of common prudence, and did not look, or, if she looked, that she went negligently into an obvious danger.”</p> <p>Defendant’s Instruction, No. A</p> <p>“The court instructs the jury that even though they may believe from the evidence that a view of the track on which the defendant’s engine was approaching the crossing was partially obstructed by cars left standing on the sidetracks, yet that fact did not lessen the caution required of the plaintiff in attempting to cross, but, on the contrary, imposed upon her a higher degree of caution.”</p> <p> Defendant’s Instruction, No. 5. </p> <p>“The court instructs the jury that the rule requiring a traveller on a highway, on approaching a railroad crossing, to have his senses on the alert to discover and avoid danger from an approaching train, is not relaxed in favor of one who is being carried in a vehicle owned and driven by another; it is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it, if practicable, and if the jury believe from the evidence that the plaintiff was seated in a carriage, owned and driven by one Francis Rieger, that the curtains were up so that the plaintiff could see in the direction from which the engine was coining, and that by looking and listening the plaintiff could have discovered the approaching engine in time to avoid it, then they must find for the defendant, even though they may believe that the defendant was negligent, unless the defendant, after discovering the negligence of the plaintiff, could have avoided its consequences.”</p> <p>The defendant objected to all the instructions asked for by the plaintiff, but its objections were overruled, and the defendant excepted. In addition to the objection to plaintiff’s instruction Ho. 3, as offered, the defendant further objected thereto, unless said instruction were modified by the following addition, to-wit: “But the court further instructs the jm-y that in order to find a verdict against the defendant for not having sounded its whistle, if such was the case, at a point not less than 300 yards before reaching the highway crossing, the jury must believe that the failure to sound its whistle at such point was the cause of the accident, but if the jury believe from the evidence that a crossing signal was given at a point nearer the crossing, and that such signal, under the circumstances of the case, was as good a notice of the approaching locomotive as it would have been if it had been given at a point not less than 300 yards from the crossing, then the accident was not traceable to the failure to give the signal at a point not less than 300 yards before reaching the crossing.”</p> <p>But the court overruled this objection also, and refused to modify said instruction by the addition aforesaid, and gave the instruction in the form aske.d by the plaintiff; to which ruling of the court the defendant, by counsel, again excepted.</p>

<p>1. Mandamus—TT7«;)i. it Will Issue.—The writ of mandamus only issues where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and there is no other specific and adequate legal remedy.</p> <p>2. Powers oe Board oe Supervisors.—The powers and duties of the Board of Supervisors of a county are fixed by statute, and it has no-other powers than those conferred expressly or by necessary implication.</p> <p>3. Mandamus—County Lories—Failure to Collect—Adequate Remedy.— Mandamus is not the appropriate remedy to compel a county treasurer to collect tickets for county levies placed,in his hands for collection. The Board of Supervisors have a complete and adequate remedy under the provisions of Chapters 36 and 37 of the Code, and Acts amendatory thereof, by which they can charge him with that portion of the levies which he has failed to collect, and in such case a mandamus will not be issued.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg, rendered September 21, 1896, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Culpeper county, rendered March 19, 1896, 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>

The decree of May 4, 1896, amongst other things, directed ■an issue to be tried to ascertain whether compensation for services rendered the appellee by the appellant in the purchase of the “Bolling Hall” tract of land was included in a note for $5,000, executed by the appellee to the appellant. This issue had not been tried when the appeal was taken. The other facts appear in the opinion of the court.

<p>1. Appeal a:xd Error — Entire Record Brought Up By Appeal. — An appeal to this court, when allowed, brings before the court for review the entire record of the cause, and, under Rule IX, errors to- the prejudice of' tbe appellee may be corrected without requiring him to take a formal cross-appeal. An appellant cannot appeal from only so much of a decree as is prejudicial to him, and leave the residue in force.</p> <p>2. Public Roads — Mere Use By the Public — Dedication—Acceptance—Aequiescence. — The mere use of a road by the public for any length of time will not constitute it a public road. Where there has been dedication to the public úse, there must also be acceptance by the County Court on its records before it can be a public road. Mere permission, by the owner of land, to the public to pass over a road, without more, is deemed to be a license, revocable at the pleasure of the owner; and the declaration of the County Court that the road is a public road does not of itself constitute it a public road, unless the owner of the soil permits it to be used as such by the public, with knowledge of the claim, and without objection.</p> <p>3. Public Roads — Acts of Assembly, 1¡. Anne, and October SI, 1751.— Neither the act passed in the fourth year of the reign of Queen Anne, nor the act approved October 31, 1751, was intended to establish as public highways all roads in use at the dates of their passage. They do not establish roads, but refer to roads already established and those directed to be established according to the provisions of those acts, and provide how they are to. be opened and kept in order.</p> <p>4. Public Roads — Loss of Records — Presumption as to Dedication or Acceptance. — A dedication of a road to the public use, or the acceptance on the part of the proper authorities, cannot be presumed merely because records have been lost or destroyed. The effect of such loss or destruction is simply to change the mode of proof of the contents of the records, and to admit secondary evidence in the place of an exemplification of the record.</p> <p>B. Private Ways — Evidence of Right to. — In order to establish a private right oí way over the lands of another the use and enjoyment thereof by the claimant must be shown to have been adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it is claimed.</p>

Error .to a judgment of the Circuit Court of King William, county, rendered April 9, 1896, in an action of covenant wherein: the plaintiffs in error were the plaintiffs, and the defendant in. error was the defendant.

<p>1. Building Fund Association—Act of 1852 Repealed.—Tbe Act of 1852 authorizing tbe voluntary incorporation of Building Fund Associations upon tbe terms prescribed thereby was an act of a general nature, and was repealed by sec. 4202 of tbe Code.</p> <p>2. Cobbobations Chabtebed by Coubts—Power to Charge Usurious Interest.—A corporation created by a Circuit or Corporation Court, under tbe provisions of sec. 1145 of tbe Code, cannot charge more than tbe legal rate of interest for tbe loan or forbearance of money. Tbe legislature alone can grant this power.</p> <p>3. Building Fund Associations—Usury.—A member of a building association owning twenty shares of its stock, borrowed of tbe association $1,000, which be secured by a transfer of bis stock, and by executing a bond in tbe penalty of $2,000, with condition to pay $17 per month until bis stock became worth $100 per share, but not to exceed eighty-four months. Of tbe $17 tbe sum of $5 was set apart on tbe books of tbe Association for monthly interest, $2 for expenses, and $10 for tbe loan fund.</p> <p>Held: Tbe transaction is usurious.</p> <p>4. Building Fund Associations—Relation of Members—Partnership— Redemption of Stoclc.—Tbe relation of Members of a Building and Loan Association, incorporated under sec. 1145 of tbe Code, is not that of a partnership, and tbe redemption of stock of members by such an association is a mere loan of money. Silver v. Barnes, 6 Bingham (N. C.), 180, disapproved.</p> <p>5. Retboactive Laws—Building Fund Associations—Act of March 1, 1894.—Courts will not construe Acts of Assembly so as to give to them a retroactive effect, unless there is something on tbe face of tbe enactment putting it beyond doubt that such was tbe intention of tbe legislature. Tbe Act of March 1, 1894, with reference to Building and Loan Associations, does not affect transactions of such associations which took place prior to the passage of that Act.</p> <p>6. Building Fund Associations — Usurious Contracts — Measure of Relief. — In ascertaining the amount to be decreed against a borrowing member of a Building Fund Association whose contract of borrowing has been declared usurious, but who has made no payments within twelve months before suit, a balance should be struck at the date of his last payment, and no charge thereafter made for interest, dues, or fines. He should be credited by his interest payments and the withdrawal value of his stock, and a decree should be pronounced for the balance due, with interest from the date of the decree.</p> <p>7. Usueious Contbacts — Voluntary Payments — Eoio Applied. — Where payments have been made upon a usurious contract and the borrower himself applies the payment to the interest, or the lender so applies it with the assent of the borrower, the appropriation so made will not be disturbed, unless within one year thereafter a suit he instituted by the borrower for its recovery, or a suit be brought by the lender within that period, in which case the borrower may set it off against the demand for which he is sued. Munford v. McVeigh, 92 Va. 446, approved.</p>

<p>1. Appeal and Ebbob — Amount in Controversy. — The amount in controversy in this cause as to the appellee is tbe difference between the amount claimed by the appellee on the date of the decree appealed ■ from, and the amount for which a decree was rendered in favor of the appellee.</p> <p>2. Usuby — By What Law Determined. — Whether a contract is ’usurious or not is to be determined by the law of the place with reference to which the contract is to be performed. Although money is loaned in Virginia, and a bond therefor is executed in Virginia, and it is secured by a deed of trust on real estate situated in Virginia, yet if the bond is in good faith payable in New York, it will be deemed to be a New York contract and governed by the laws of that State as to its validity, interpretation, and effect. Where the principal of a bond is payable to a corporation “at its office in the city of New York,” and the premiums and dues thereon are payable “at its office,” the latter expression will be deemed to be applicable to its New York office, though it may have other offices in this State and elsewhere.</p> <p>3. Usuby — Hoto Far Contracts Scrutinized — Proof of Usury — Contracts Solvable in Another State — Evading Usury Laws. — While it is still the rule in this State, notwithstanding the mitigation of the penalties for usury, that the ingenuity of man cannot devise a scheme by which a usurious transaction can be shielded from the scrutiny of the courts, yet proof of the usury must be clear and satisfactory. A New York corporation doing business in Virginia and elsewhere, and entering into contracts within its chartered powers which are valid according to the laws of New York, though usurious according to the laws of Virginia, cannot be held to be seeking to evade the usury laws of Virginia simply because it requires its contracts to be performed in the State of New York. This cannot be said to be a mere device to evade the usury laws of Virginia.</p>

<p>Appeal from two decrees of the Circuit Court of the city of Roanoke, pronounced May 19, 1896, and October 9, 1897, in .a suit in chancery wherein the appellant was the complainant, .and the appellees were the defendants.</p>

<p>1. Taxation—Bank Stock—Deducting Liabilities.—A debtor who owns national bank stock is not entitled, under Acts 1889-’90, p. 197, to bave bis indebtedness deducted from tbe value of sucb stock before it is assessed for taxation. Bank stock is not an evidence of debt witbin tbe meaning of tbe Act. Nor is tbe Act in conflict with sec. 5219 of tbe Revised Statutes of tbe United States.</p>

<p>Error to a judgment of the Corporation Court of the city of Boanoke, rendered November 8, 1897, in a proceeding by mandamus wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

the plaintiff in error was the petitioner, and the defendants in error were the respondents. The object of the petition was to recover the possession of the petitioner’s infant son. The Circuit Court awarded the writ, but on the hearing, refused the prayer of the petition for the possession of the infant.

This was a hill filed by the appellants and others against John H. Nelson, trustee, and others, for the purpose of compelling said Nelson to account for the gross proceeds of the sale of certain horses sold by him under a deed of trust upon which appellant held a prior deed of trust.

the defendant in error was the defendant. This was an action to recover damages for the death of the ■plaintiff’s intestate alleged to have been occasioned by the negligence of defendant’s servants.

Appeal fro-m a decree of the Circuit Court of Brunswick county pronounced December 17, 1895, in a suit in chancery wherein the appellants were the complainants, and the appellees were the defendants.

In 1863 John M. Banghan conveyed an undivided half interest in a lot of seventeen acres of land to Alexander Alvis (who owned the other half) in trust for the benefit of the wife and children of said Baughan, with power and direction to the trustee to sell and reinvest on the written request of the wife, and reserving to the wife “the right to dispose of all of the said property, both real and personal, by instrument of writing in the nature of a last will and testament.”…

<p>Error to a judgment of the Corporation Court of the city of Alexandria, rendered October 29, 1896, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Demurrer to Evidence — Existence of Partnership Between Plaintiffs — Conflicting Evidence. — Upon a demurrer to the evidence by the defendant in an action brought by two parties suing as partners, where the evidence as to whether they were partners or not is conflicting, the evidence of the defendant will be rejected, and the parties held to be partners in accordance with evidence of the plaintiffs.</p> <p>2. Damages — Verdict in Excess of Amount Claimed in Declaration — Interest. — Greater damages cannot be awarded than are claimed in the declaration, hut this restriction is confined to the principal of the recovery, and does not affect the interest that may be allowed thereon.</p> <p>3. Insurance — Proof of Loss — Objections to — When to be Made — Specific Objections — Waiver of Others. — When there is any valid objection to a proof of loss, it should be communicated to the insured within a reasonable time, or the objection will be deemed to have been waived. And where specific objections have been made and the assured has expended time and expense in removing them, the insurer will he deemed to have waived all other objections, and will not be allowed to assert them on the trial.</p> <p>4. Insurance — Proof of Loss — Requisites of — Waiver.—A substantial compliance with the requirements of the policy is all that is required in a proof of loss. When such proof has been furnished, aild the demands of the company, as far as practicable, have been complied with, and the company has failed to state other objecjections, or to answer enquiries as to its intention to pay the amount of the loss, its. conduct will be deemed to be a waiver of any right to require further proof.</p> <p>5. Insurance — Encumbrance on Property — Disclosure to Agent — Estoppel. — Where a deed of trust on personal property insured is mentioned to the agent of an insurance company who solicits the insurance, at the time of the application, and he advises the assured that the amount is too small to be noted, and, by his advice, the assured fills in his answer “No” to the question “Is the property mortgaged?” in the written application, and there is no express limitation in the application on the powers of the agent, and the assured is ignorant 'of any such limitations, the company is; estopped to set up the encumbrance as a defence to an action on. the policy.</p> <p>6. Insueanoe — Encumbrance—Forfeiture—Proof of Loss — Waiver.—The; forfeiture imposed by an insurance policy on account of an encumbrance on the property insured will be deemed to have been, waived where it appears that the existence of the encumbrance; was well lrnown to the insurance company when it received the; proof of loss, and it made no allusion to the lien, and did not claim. that there was any ground of forfeiture of the policy, but objected, to the proof of loss on other grounds which required some trouble; and expense to remove.</p>

The application on which the policy in suit was based contained, among others, the following questions and answers: “19. Occupant. Will you agree to keep a reliable person in the building at all times ? State name of such person at present, “Answer. W. B. Goode. Sleeps in building.” “20. Encumbrance. Is the property, building, or stock encumbered by mortgage, judgments, suits, or otherwise? “Answer.

The evidence sufficiently appears in the opinion of the court.

The deed assailed in this case conveyed, amongst other things, two stocks of goods.

Pace’s administrator and others were the complainants, and Sallie A. Pace and others were the defendants, in which suit appellant proved his debt.

v. Boudar, trustee, and, others, in which appellants filed their petition, to which petition the appellees, Gates & Brown, and Boudar, trustee, were made defendants. The principal suit was brought for the purpose of having administered under the direction of the court the trust created by a deed from Gates & Brown to Boudar, trustee.

v. Boudar, trustee, and others, in which appellants filed their petition, to which petition the appellees, Gates & Brown,, and Boudar, trustee, were made defendants. The principal suit was brought for the purpose of having administered, under the direction of the court the trust created by a deed from Gates & Brown to Bondar, trustee.

<p>Error to a judgment of the County Court of Patrick county, rendered December 4, 1891, upon an indictment against the plaintiff in error for murder.</p> <p>The indictment contained a number of counts, in some of which the plaintiff alone was charged with the murder, and in others it was charged that the murder was committed jointly by the plaintiff in error and Albert King and Edgar King The plaintiff in error elected to be tried separately. There was a demurrer to the indictment and to each count thereof, and the ground of the demurrer was that the indictment should have been either joint or separate in every count thereof, and was defective because some of the counts charged the plaintiff in error alone, and others charged him together with Albert King and Edgar King. The demurrer was overruled.</p> <p>A motion was made to quash the writ of venire facias which was also overruled by the trial court. The writ of venire facias was issued by the County Court of Patrick county and directed to the sheriff of that county, and commanded him to summon sixteen persons of Eloyd county to be taken from a list to be furnished by the judge of Patrick County Court, &c. The list was furnished by the judge of the County Court of Patrick county, and the return of the sheriff was “I summoned the above named persons from the list furnished me by the judge of the County Court of Patrick county.” The ground of the motion to quash the writ was “Eirst, because the writ does not show that Ployd county is one of the counties of this Commonwealth; and, secondly, because the return of the sheriff does not show that the persons summoned were either citizens of the county of Ployd or State of Virginia.” The other facts sufficiently appear in the opinion of the court.</p>