Volume 96 — Virginia Reports

<p>1. Appeal and Ebror—Statute of Limitations—Receipt of Petition and Record by Olerk.—The statute oí limitations prescribing the time within which a writ of error or appeal may be awarded or allowed ceases to run when the petition for the writ of error or appeal is presented, and does not begin again to run until the petition and record are delivered to the clerk. But this delivery to the clerk is the actual receipt of the petition and record by him. The omission of the clerk to examine a box containing the papers, or, if he examined it, bis mistake as to its contents, or failure to discover the papers, cannot change the law. Whatever may be the remedy of the party injured against the clerk, the statute of limitations begins to run from the actual receipt of the petition and record by the clerk.</p>

<p>1. Attachments&emdash;Affidavits&emdash;Objections in Appellate Court for First Time.&emdash; Objection to an attachment because not supported by an affidavit, or because the affidavit is defective, is ground for a motion to abate the attachment, but the objection must be made in the court below, and cannot be made for the first time in this court. If, however, the bill upon which the attachment issues contains all necessary averments, is sworn to and filed before the attachment issued, and the affidavit adepts the bill, this is all that is required.</p> <p>2. Joint Property&emdash;Agreement by Owners to Sell&emdash;Sale by one of Owners Contrary to the Agreement&emdash;Belief of other Joint Owner&emdash;Case in Judgment.&emdash;Where complainant and defendant who are joint owners of property, the title to which stands in the name of the defendant, agree for a given consideration to sell the joint property to a designated corporation which is to have an agreed capital and make certain improvements on the property, and defendant, without the knowledge or consent of the complainant, sells the joint property to an entirely different corporation,, on different terms and at a different price, the complainant is not obliged to take an interest in the latter corporation in lieu of the share he was to receive of the former, but may recover of the defendant the same proportion of the consideration received by him of the latter corporation as he was entitled to receive under the original agreement to sell. In the case in judgment, the parties agreed to sell an eight-tenths interest in the joint property . to other parties who were to pay $80,000 into the treasury of a corporation to be formed by them and the joint owners, and each of the joint owners was to have a one-tenth interest in the stock and property of the company. Subsequently the defendant, who was one of the joint owners, without the knowledge or consent of the complainant who was the other joint owner, sold a part of the joint property to , another and different corporation, to be organized on different terms, for $25,000 of the stock of the company and $50,000 of its first mortgage bonds, and then disposed of both stock and bonds.</p> <p>Held : The complainant was entitled to recover of the defendant one-tenth of the value of said stock and bonds.</p> <p>3. Ohanceby Practice—Findings of Commissioner—Evidence—Payment of Debt Seemed by Deed of Trust.—The finding of a commissioner in chancery, to whom a cause has been referred to take an account of liens, that a debt secured by a deed of trust had been paid and satisfied by the grantor, will not be set aside in the absence of evidence to the contrary. Where the commissioner has not returned with his report the evidence on which it is based, and no steps have been taken to have him do so, or to place the evidence before the court, it will be pre" sumed that sufficient evidence was before the commissioner to justify his finding. The mere averment in the answer of a defendant that the debt was paid by the trustee in the deed out of the proceeds of a sale made by him, and a similar statement in the copy of the account of sales of the trustee filed with such answer, are not sufficient to overcome the finding of the commissioner, unless it appears that the record contains all the evidence before the commissioner.</p>

<p>Appeal from a decree of the Circuit Court of Alexandria county pronounced April 22, 1897, in two chancery suits heard together, one under the style of Tyrer v. O’Gorman and others, and the other under the style of McCartney v. The Potomac Electric Co. In the suit of Tyrer v. O’ Gorman and others the appellee was the complainant, and the appellant was one of the defendants.</p>

<p>1. Appeal and Error&emdash;Exceptions in Trial Court&emdash;Failure to Assign, as Error in Petition.&emdash;Although an exception is taken to the ruling of the trial court on the admission of certain evidence, yet, if the petition for a writ of error makes no allusion to it, and no ground of objection is pointed out or suggested, and this court can perceive none, the exception will be treated as not well taken.</p> <p>2. Evidence&emdash;Exception Well Tahen&emdash;Proving Same Facts by Other Witnesses&emdash;Harmless Error.&emdash;Although an exception to the testimony of a witness may be well taken, if the same fact is subsequently proved by other witnesses without objection, the error will be deemed to be harmless.</p> <p>3. Trials&emdash;Depositions&emdash;Appellate Court&emdash;Papers not Made Part of Becord Will not be Considered.&emdash;The deposition of a witness taken in an action at law may be read at the trial where the trial court is satisfied from evidence produced before it that, on account of sickness, the witness however, must be determined from the record. This court will not consider certificates or other papers produced in argument, but omitted from the record. is unable to attend. The correctness of the ruling of the trial court,</p> <p>4. Ejectment&emdash;Fraudulent Deed Part of Chain of Title&emdash;Jury to Deten'mine Whether Fraudulent or not.&emdash;In an action of ejectment where a deed alleged to be voluntary and fraudulent forms a part of the plaintiff’s chain of title, it is the province of the jury to determine, under proper instructions from the court, whether the deed was voluntary and fraudulent or not.</p> <p>5. Voluntary Deed&emdash;Hot per se Fraudulent&emdash;Prima Facie Fraudulent as to Existing Creditors&emdash;Burden of Proof.&emdash;A voluntary deed, founded on a good consideration, is not per se fraudulent as to existing creditors, but is so prima facie, and the burden of proof is on those claiming under it to show its validity. If the grantor retained ample and sufficient property to pay all his just and lawful debts, his bona fides is established, and it cannot be said that the deed was made to hinder, delay or defraud his creditors.</p> <p>6. Ejectment—Heirship of Plaintiff—Act of Limitations—Questions for Jury. Whether a plaintiff in ejectment is the sole heir of one through whom he traces title, and whether the defendant has had adverse possession for a sufficient length of time to bar the plaintiff’s claim of title, are questions for the jury. In the case at bar both questions were submitted to the jury under proper instructions from the court.</p> <p>7. Insolvent Debtors’ Act— What Passes—Schedule—Case at Bar.—Under the insolvent debtors’ act in force in 1838, all property owned by the debtor at the time he took the oath of insolvency, whether mentioned in his schedule or not, and whether fraudulently conveyed or still retained by him, vested in the sheriff. But the evidence in the case at bar does not show that the sheriff ever set up any claim to the land in controversy, or that he ever sold or conveyed one foot of it, and the instruction objected to does not'tell the jury what property vested in the sheriff under the insolvent debtors’ oath, but only what the sheriff conveyed to the party under whom the defendants claim title.</p> <p>8. Instructions Not Made Part oe Record—Presumption.—An instruction not made a part of the record is presumed to have stated the law correctly.</p> <p>9. Trials—Argument of Counsel—Effect of Transgressing Proper Bounds— Case at Bar—Ha/rmless Error.—It is the duty of counsel, in argument, to confine themselves to the case at bar, the evidence properly before the jury, and the law as laid down by the court in its instructions, and an unwarranted departure from this course may make it necessary to set aside the verdict. But in the case at bar the remarks of counsel in the closing argument, as to the result of a former trial of the case, were not, in view of the instructions of the court on the subject, prejudicial to the plaintiffs in error.</p> <p>10. Ejectment—Deeds—Fraud—Bona Fides— Question, f or Jury— Verdicts.— Whether a deed made in 1838, which forms a part of the chain of title of a plaintiff in ejectment, was bona fióle, or made with intent to defraud creditors of the grantor, is peculiarly a question for the jury, whose verdict will not be lightly disturbed.</p>

<p>Appeal from a decree of the Law and Chancery Court of the city of Norfolk, pronounced April 25, 1895, in three chancery suits heard together, in which the appellees, respectively, were the complainants, and in each of which the city of Norfolk, appellant, was the defendant.</p>

<p>Error to a judgment of the Circuit Court of-Chesterfield county rendered March 1, 1897, 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 the city of Danville pronounced June 17, 1896, in the chancery suit of Fuller v. Conrad’s Adm’r and Others, in which the appellants asserted a claim against the estate of C. H. Conrad, deceased.</p>

<p>1. Usury&emdash;Contracts Made for Purchase of Property Carrying Higher than Legal Bate of Interest.-&emdash;Usury can only attach to a loan of money, or to the forbearance of a debt. On a contract to secure the price or value of work and labor done or to be done, or of property sold, the contracting parties may agree on one price if cash be paid, or on a higher price if time be given, and this higher price may be either a lump sum, or a per cent, on the cash price. In neither case is the transaction usurious. It is not a loan of money, nor the forbearance of a debt, but simply the contract price of work and labor, or property sold.</p> <p>2. Usury&emdash;Proof Bequired to Establish&emdash;Case at Bar.&emdash;Usury, when charged, must be proved by a clear and satisfactory preponderance of evidence. In the case at bar the only evidence on the subject is the testimony of the alleged borrower and of the lender, and this is conflicting. This is not sufficient to establish usury.</p> <p>3. Agreement to Pay Higher than Legal Rate oe Interest&emdash;How .Long Bate Continues.&emdash;Where a greater than the legal rate of interest is agreed on by the parties, on a debt to mature in the future, the greater rate continues, in the absence of an agreement to the contrary, after the maturity of the debt, and until it is paid.</p> <p>4. Agreement to Pay a Debt erom Particular Property&emdash;Liens&emdash; Purchasers&emdash;Assignees.&emdash;An agreement by a debtor to pay a debt out of the proceeds of the sale of a particular piece of property does not constitute an assignment of, or lien upon such proceeds, but is only the personal covenant of the debtor. Nor can such an agreement affect a purchaser of the property who was ignorant of it, nor an assignee of the bonds given for the purchase price who had no notice of it.</p>

v. Bank of Big Stone Gap and Others, and the other under the style of Willis v. Big Stone Gap Colliery Co. and Others, in each of which the appellees were defendants.

<p>Error to a judgment of the Hustings Court of the city of Roanoke, rendered. December 27, 1892, 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. Specific Performance&emdash;Character of Title Required&emdash;Misdescription of Property.&emdash;Specific performance of a contract for the sale of real estate will not be decreed on the application of the vendor unless his ability to make such title as he contracted to make is unquestionable; but a false description in a deed under which the vendor claims does not cast a cloud upon his title if, after rejecting so much of the description as is false, there remains a sufficient description to ascertain with legal . certainty the subject-matter to which the deed applies.</p> <p>2. Deeds&emdash;Repugnant Descriptions of Property Conveyed.&emdash;A statement in a deed that the lot conveyed is situated on the northeast corner of two streets mentioned, when in fact it is on the southwest corner of said streets, does not affect the deed where it appears that the grantor owned no property on the northeast corner, but did own the lot on the southwest corner ; that possession of the last-mentioned lot had been taken and held for a number of years, and there are other sufficient descriptions of the lot on the southwest corner contained in the deed.</p> <p>3. Specific Performance&emdash;Release of Encumbrances not Recorded.&emdash;Where a vendor, along with his deed to the vendee, tenders formal deeds of release of deeds of trust on the property conveyed, to be recorded by the vendor as soon as the vendee accepts the deed tendered him, this is all that is necessary to entitle the vendor to have specific performance. It is not necessary that such releases should be first actually recorded.</p> <p>4. Specific Performance&emdash;Cloud on Title &emdash;Taxes&emdash;As a vendee of land has the right to apply his purchase money towards the payment of taxes on the land, the fact that the taxes for the current year in which the property is sold have not been paid is not a valid objection to the title.</p> <p>5. Specific Performance&emdash;Change of Circumstances and Delay&emdash;Mere Depreciation in Values.&emdash;Where there has been a change of circumstances or relations, which renders the execution of a contract for the sale of land a hardship on the defendant, and this change grows out of or is accompanied by an unexcused delay on the part of the plaintiff, the change and delay together will constitute a sufficient ground for denying a specific performance when sought by the one thus in default. But the mere depreciation in the value of land, without fault on the part of the vendor, is no reason for refusing him a decree for specifio performance.</p>

<p>1. Estates&emdash;Conditions Precedent and Subsequent.&emdash;If a condition precedent is annexed to a devise of real estate, and its performance is or becomes impossible, the devise fails, although the devisee is without fault; but if the condition be subsequent, and its performance becomes impossible without fault of the devisee, the estate is not defeated or forfeited, . but the devisee holds the property by absolute title as if no condition had been annexed thereto.</p> <p>2. Estates&emdash;Conditions Precedent and Subsequent.&emdash;Whether a condition annexed to an estate is precedent or subsequent depends upon the intent of the person creating the condition. The same words may make the condition either precedent or subsequent. If the language of the particular clause or of the whole instrument shows that the act on which the estate depends must be performed before the estate can vest, the condition is precedent, and unless it be performed, the devisee or grantee can take nothing. But if the act does not necessarily precede the vesting of the estate, but may accompany or follow it, and this can be collected from the whole instrument, the condition is subsequent.</p> <p>3. Wills&emdash;Case in Judgment&emdash;Conditions.&emdash;A testator devised to his wife “the homestead and five acres around the house during her natural life, with the understanding that my son Albert will support and take care of her, and at her death said homestead and land shall return to my son Albert as compensation therefor.” By a subsequent clause of the will the testator expresses the wish that his son Albert will support and provide for his two sisters as long as they remain single. The testator survived his wife, but made no change in his will.</p> <p>Held : Albert takes a fee-simple estate in the homestead and five acres.</p> <p>4. Conditions Pkecedent and Subsequent&emdash;Legacy&emdash;Bemse.&emdash;While there is a difference between a legacy and a devise where there is a condition precedent annexed to an estate, there is no difference where the condition is subsequent; but in the latter case the estate to which the condition is annexed, whether it be land or a money legacy, if the performance of the condition be rendered impossible, becomes by that event absolute in the devisee as well as in the legatee.</p>

This was a bill filed by the appellant to enjoin the defendant from selling certain real estate in the city of Richmond at the costs and charges of the appellant.

<p>1. Pleading&emdash;Assumpsit&emdash;Account Verified by Affidavit&emdash;Plea must be so Verified&emdash;Issue on Plea not Verified&emdash;Waiver&emdash;Estoppel.&emdash;If a plaintiff in assumpsit flies with his declaration an account verified by affidavit which is served upon the defendant along with the writ, the case goes to judgment in the office, and this judgment becomes final with the adjournment of the next succeeding term of the court, unless before such adjournment the defendant files a plea in bar, verified by his affidavit. The provision, however, that defendant’s plea shall be verified by affidavit is in the interest of the plaintiff, who may waive it, or by his conduct be estopped from asserting it. He cannot insist on it after having taken issue on such plea without objection.</p> <p>2. Pleading&emdash;Pleas Required to be Verified by Affidavit&emdash;Demurrer to Unverified Plea&emdash;Objection to Such Plea after Issue Joined.&emdash;A demurrer to a plea required by statute to be verified by affidavit does not bring to the attention of the court the lack of the affidavit. The affidavit is no part of the plea. The plaintiff should object to the reception of the plea when tendered because not so verified. He cannot make the objection after having taken issue, either of law or fact, on it.</p>

<p>Error to a judgment of the Circuit Court of Amelia county-rendered April 10, 1896, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

The plaintiff in error, Charles Jackson, was indicted for a malicious assault on George W. Ratliff. He was tried, found guilty, and sentenced to the penitentiary for one year. Jackson had been employed by the manager of the Clinch Valley Coal and Iron Company to collect water rents of Ratliff. The manager gave Jackson an order on Ratliff for $5 for water rents, and directed him to cut off the water if the order was not paid.

<p>1. Mining Lease&emdash;Agreement of Parties as to Construction of Lease&emdash;How Treated by Courts.&emdash;In a suit to rescind a mining lease where the bill charges, and the answer admits, that the lease was terminable at the will and pleasure of either party, it will be so treated, and the lease held to have been terminated by the institution of the suit.</p> <p>2. Mining Lease&emdash;Terminable at Will&emdash;Bights and Liabilities of Lessor and . Lessee.&emdash;A mining lease for a period of ten years, terminable at the will of either party during that term, which provides that the lessee shall • remove not less than an average of 12,000 tons of ore per year, does not bind the lessee to remove that quantity each year, but only an average of that quantity during the ten years; and if the lease is terminated by the lessor, without fault of the lessee, at an early period of the lease, the lessee is only bound to pay the price agreed for the ore actually mined, and, if he has made advances to the lessor on account of royalties contemplated under the lease, he is entitled to recover of the lessor the amount so advanced less the royalties due by him for ore actually mined.</p>

The object of this suit was to declare the contract between appellant and the Iron Belt Building and Loan Association usurious, and to have… Held: after due advertisement thereof in the ^Evening World, a newspaper published in the city of Roanoke, Virginia, and after mailing a formal notice, in writing, of such meeting to each stockholder of the associatipn, including the defendant in this case,, thirty days prior thereto, a copy of which written notice is hereto appended,…

Appeals from several decrees pronounced by the Circuit Court of Wythe county on the 18th day of September, 1896, in sundry chancery suits wherein the appellants respectively were severally complainants, and the appellee was the defendant. The controversy iu each of these cases was between the complainants respectively and the Ivanhoe Land and Improvement Company.

<p>Appeal from several decrees of the Circuit Court of Wythe county pronounced in several chancery suits heard together, in two of which appellants filed petitions.</p>

<p>1. Acknowledgments&emdash;Officer a Grantee&emdash;Officer’s Ignorance of Fact&emdash;Refusal to Accept Trust&emdash;Notice.&emdash;A grantee in a deed, or a beneficiary under it, is incapable of taking or certifying an acknowledgment of it for recordation. The fact that the trustee in a deed of trust who took the acknowledgment of the grantor did not know at the time that he was a party to the deed, and refused to accept the trust as soon as he discovered that he was a trustee, is wholly immaterial. Recordation upon such acknowledgment is not constructive notice of the deed.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county pronounced September 80,1896, in a suit in chancery wherein The Frick Company (Limited) was the complainant, and the appellants and others were the defendants.</p>

<p>Appeal from two decrees ot the Circuit Court of Wythe county pronounced respectively February 14, 1895, and January 18, 1897, in a suit in chancery under the style of Bank of Wytheville v. Moore and others, wherein the appellant was a complainant, and the appellee was a defendant.</p>

<p>Error to a judgment of the Circuit Court of Lunenburg county rendered May 20, 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>1. Grant oe Whole Estate by Tenant in Common&emdash;OoUrr of Title&emdash; Adverse Possession&emdash;Suit foi' Partition by Co-Tenants&emdash;Statute of Limitations.&emdash;A stranger who takes a conveyance of the whole estate in a tract of land conveyed to him by metes and bounds, and enters into exclusive possession under such conveyance, claiming title to the whole, acquires at least color of title to the whole tract even though his grantor was only a tenant in common with others of the land, and, after the lapse of time necessary to bar an action of ejectment, has the right to rely upon his adversary possession, and is in no sense a co-tenant with the tenants in common of his grantor, and a court of chancery has no jurisdiction of a suit for partition by such tenants in common ; but even if-the court had such jurisdiction, the claim of the co-tenants being barred by the statute of limitations, the suit should be dismissed.</p>

<p>Error to a judgment of the Circuit Court of "Wythe county reudered September 25, 1897, in an action of trespass on the ease in assumpsit wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

September 11, 1897, in an action of debt wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.

<p>1. Husband and Wipe&emdash;Parent and Child&emdash;Duty of Support&emdash;Alimony.&emdash;A husband and father is bound to support his wife and children, and if, by his misconduct, he renders it impossible for them to remain under his roof, he cannot, by his misconduct, escape the performance of the duty which the law imposes upon him.</p> <p>2. Husband and Wipe&emdash;Divorce&emdash;Condonation.&emdash;Condonation is the remission by one of the married parties of an offence known to have been committed by the other against the marriage, on the condition' of being continually afterwards treated by the other with conjugal kindness. While the condition remains unbroken, there can be no divorce, but a breach of the condition revives the original remedy.</p> <p>3. Husband and Wipe&emdash;Divorce&emdash;Cruelty&emdash;Condonation.&emdash;Cruelty consists of successive acts of ill-treatment, if not of personal injury; so that something of a condonation of earlier ill-treatment must, in such cases, necessarily take place. It is cumulative, admitting of degrees and augmenting by addition. It may be condoned and even forgiven for a time and up to a certain point, without barring the right to bring it all forward when the continuance of it has rendered it no longer condonable.</p> <p>4. Husband and Wipe&emdash;Divorce&emdash;Cruelty&emdash;Condonation.&emdash;-While acts of violence, on the part of a husband, which have been condoned cannot be made the sole foundation for a divorce, they form the subject of investigation and proof in order to determine whether the wife can with safety to her person and health, continue to live with him.</p> <p>5. Husband and Wipe&emdash;Divoi'ce&emdash; Cruelty&emdash;Charge of Adultery.&emdash;A malicious charge of adultery made by one consort against the other, standing absolutely alone, is not sufficient to justify a divorce, but, when presented with other facts enhancing its enormity, is an act of gross cruelty. The evidence in the case in judgment establishes a plain case of cruelty and reasonable apprehension of bodily hurt.</p> <p>6. Husband and Wife—Divorce—Custody of Children.-—The innocent parent on whose prayer a divorce is granted is usually entitled to the custody of the children. A woman compelled by her husband to resort to a divorce ought not to obtain it at the expense of losing the-society of her children ; and as one who has done well or ill in the-marriage relation will be likely to do the same in the parental, alt courts lean to the innocent parent when determining the custody of • the child.</p>

<p>Error to a judgment of the Circuit Court of Tazewell county rendered September 11, 1897, in an action of debt wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>1. Trust and Trustees&emdash;Implied and Resulting Trusts&emdash;Panol Evidence to Establish Trust&emdash;Case in Judgment.&emdash;The evidence in this case shows that the land of the appellant, the title to which was vested in her husband as trustee for her sole and separate use, was conveyed to the appellee, W. G-. Oline, and though no trust was declared in the deed it was understood between the parties that he was to hold it for her benefit. The trust, whether implied or resulting, may be established by parol, and has been so established in this cause. And though the land was exchanged for other lands, the land received in exchange is still in the hands of the appellee, and will be impressed with the same trusts as the original tract. Courts of equity follow property impressed with a trust into whatsoever guilty hand it may go.</p> <p>2. Principal and Agent&emdash;Voidable Acts of Agent&emdash;Ratification by Principal&emdash;Full Disclosures by Agent.-&emdash;Loyalty to his trust is the most important duty which an agent owes to his principal. The dealings of an agent with his principal are closely scrutinized, and the voidable acts of the agent will not be deemed to have been confirmed by the principal except after the fullest disclosure by the agent. Confirmation must be a solemn and deliberate act of the principal, after full disclosure by the agent. If the principal’s right to impeach a transaction be concealed from him, or a free disclosure be not made to him of every circumstance which it is material for him to know, or if confirmation takes place under pressure or constraint, or by the exercise of undue influence, or under the delusion that the original transaction is binding on him, or if it be merely a continuation of the original transaction, the confirmation amounts to nothing.</p> <p>3. Fraud in Procurement op Judgment or Decree&emdash;Case in Judgment.&emdash; If it be alleged and proved that a judgment or decree was procured by fraud, it ceases to protect the wrong-doér, or to obstruct the injured party in the assertion of his rights. In the case in judgment the agreement to dismiss the original suit instituted by the appellant was procured by the fraud of the appellees, and hence the order of dismissal is without effect.</p>

<p>Error to a judgment of the Circuit Court of Montgomery county rendered at its May term, 1896, in a proceeding by mandamus, wherein the defendants in error were the plaintiffs, and the plaintiffs in error and others were the defendants.</p>

<p>1. Specific Performance—Doubtful Title.—A court of equity will not decree the specific performance of a contract for the sale of real estate at the instance of the vendor if there he any reasonable doubt as to his ability to make such title as he contracted to make.</p> <p>2. Grant from Commonwealth—Failure to entes' Land on Boolcs of Commissioner—Forfeiture—Subsequent Grant by Commonwealth.—The failure of the grantee of the Commonwealth to have the lands granted to him entered on the books of the commissioner of the revenue for the purposes of taxation, and to pay taxes thereon, operates as a complete forfeiture of the lands to the Commonwealth, and no judgment or decree, inquest of office, or other matter of record is necessary to consummate and perfect the forfeiture ; and where lands have been thus forfeited, the original grant constitutes no cloud on the title of a subsequent grantee of the Commonwealth.</p> <p>3. Chancery Pleading—Demurrer.—A statement in the answer of a defendant that he reserves “ unto himself all just exceptions to the many deficiencies by a demurrer to a bill ” is not a demurrer to the bill.</p> <p>4. Specific Performance—Bill by Administrators—Parties—Demus's'er— Answer on Merits—Objections for First Time in Appellate Cowrt.—A bill filed by administrators for the purpose of enforcing a contract made by them for the sale of their decedent’s land which fails to allege their authority to sell the land, and to which the heirs of the owner are not made parties, is bad on demurrer. But if the purchaser makes no objection to these defects, and answers, setting up a defence on the merits, he cannot make the objection for the first time in this court, especially when it appears from a deed filed as an escrow with the bill that the heirs authorized the sale, were parties to the contract of sale, and have made a deed to the purchaser with covenants of general warranty to be delivered to him when all the purchase money is paid.</p>

<p>1. Contracts&emdash;Confidential Relations of Parties&emdash;Cessation of such Relations&emdash; Case in Judgment.&emdash;Courts of equity scrutinize closely transactions between persons holding fiduciary and confidential relations to each other, and will not permit a purchase by a trustee from the beneficiary, or by an agent of his principal, to stand, except where there has been entire good faith, a full disclosure of all the facts and circumstances affecting the transaction, and the absence of all undue influence, advantage, or imposition. But a previous confidential relation which has been long since dissolved, is not a ground to avoid a ' contract fairly made between the parties. In the case in judgment the confidential relation between the parties had ceased nearly two years before the making of the contract in controversy, the contract was fairly made, with.full knowledge of the facts, the parties were competent to contract, there was no undue influence exercised, there was an absence of fraud, and the contract was not unconscionable, but such as persons might be reasonably expected to make under the circumstances.</p> <p>2. Contracts&emdash;Capacity&emdash;Unreasonable and Imprudent Contracts.&emdash;A contract fairly and voluntarily entered into between parties having capacity to act cannot be set aside, however unreasonable or imprudent it may seem to others.</p> <p>3. Acknowledgments&emdash;Sufficiency of Certificate&emdash;Deeds by Corporations&emdash; How Executed and Acknowledgment Certified.&emdash;A certificate of acknowledgment to a deed which identifies the subscriber ; specifies the writing subscribed; states the capacity in which the subscriber executed it; and certifies his acknowledgment thereof, contains all that is necessary. In the case in judgment the deed of a corporation was signed by the corporation by its president, with the corporate seal affixed, and the certificate of the notary states that “Thomas L. Rosser, presi- . dent, whose name is signed to the writing hereto annexed, bearing date on the 2d day of December, 1891,” acknowledged the same before him in his county. This was a sufficient execution of the deed by the corporation, and the certificate of acknowledgment is in due form.</p>

<p>1. Delinquent Lands—Application to Purchase—Redemption—Penalty.— The right to the five dollars penalty to the applicant to purchase lands previously purchased by the auditor for delinquent taxes, provided by the act of February 11, 1898, attaches immediately upon the filing of the application to purchase, and before the copies provided for by the act have been issued or served upon any of the persons mentioned therein. ' ' \ ‘ ' v-</p>

<p>1. Principal and Agent&emdash;Acts of Unauthorized Agent&emdash;Affirmance&emdash;Case in Judgment.&emdash;A principal may affirm or repudiate the act of an unauthorized agent upon receiving notice of it. Having once deliberately affirmed it after proper information, he is bound by the contract made for him. In the case in judgment the evidence shows that appellants, with sufficient knowledge of the circumstances attending the transaction, affirmed the act of their unauthorized agents.</p> <p>2. Rescission&emdash;False Representations&emdash;Opinions&emdash;Facts. &emdash; Assurances by agents of a land company that the company will lay out and grade certain streets, and will construct water works, are expressions of opinion and not statements of fact, and the failure of the company to make good the assurances does not constitute a ground for the rescission of a contract induced thereby.</p> <p>3. Covenant against Encumbrances&emdash;Prior Deed of Trust&emdash;Provisions for Release.&emdash;A covenant to convey title free of encumbrance is not broken by the existence of a deed of trust on the land conveyed, where the purchase money has not been paid to the vendor, and the deed of trust provides that the lien thereof shall be released upon receipt of the purchase money for any portion of the land sold.</p> <p>4. Joint Purchaser Agent eor Vendor&emdash;Objection on Appeal for First Time.&emdash;An objection that an agent for the sale of land, who became a joint purchaser with defendants, was also interested on behalf of the vendor cannot be made for the first time on appeal.</p>

<p>1. Guardian and Ward&emdash;Settlements&emdash;Sow Viewed&emdash;Dealings between Guardian and Ward.&emdash;Settlements made by a guardian with his ward soon after the latter comes of age, and especially before he is in the possession of his property, are viewed by courts of equity with a watchful and jealous eye. The law, however, does not prohibit the guardian from dealing with his recently emancipated ward, and a release of the guardian or a gift to him may consequently stand, if shown to have been made deliberately, and with a sufficient opportunity for consultation and advice.</p> <p>H. Laches&emdash; Guardian and Ward&emdash; Case in Judgment.&emdash;Thong and unexplained acquiescence in a settlement between guardian and ward is an effectual bar to proceedings to impeach it. In the case in judgment the guardian was the father of his wards; the settlement was made by the wards deliberately and voluntarily, after ample time for advice and consultation ; the wards had been of age several years and had married and removed to homes of their own ; the children had ample notice of the several capacities in which their father was indebted to them ; there was no misrepresentation or concealment on the part of the father, and the settlement was allowed to remain unimpeached and undisturbed for a period of twelve years, and until after the death of the father.</p> <p>Held: Such laches under such circumstances leaves the wards without any standing in a court of chancery, and their bill was properly dismissed.</p>

<p>1. Appeals&emdash;Amount in Controversy.&emdash;Where several parties unite in an appeal, and it appears that there is no joint interest or community of interest among them; that their respective claims each had for its foundation an independent contract which each had the right to enforce without regard to the other, and the interest of no one of them amounts to as much as $500, the appeal will be dismissed as improvidently awarded.</p>

<p>Error to a judgment of the Circuit Court of Montgomery county rendered on a motion made by the plaintiff in error against the defendant in error.</p>

H. Rasnake Son against Floyd Artrip and Alice Artrip, another under the style of M. 1. Browning against Floyd Artrip, and the other under the style of Alice Artrip against Floyd Artrip. The decree being adverse to the appellant, Alice Artrip, she appealed.

The evidence sufficiently appears in the opinion of the court.

, and wife were the complainants, and appellánts and others were the defendants.

■Error to a judgment of the Circuit Court of Roanoke county rendered May 9, 1898, affirming a judgment of the County Court of said county rendered at its April term, 1898, whereby the plaintiff in error was adjudged to be guilty of a felony, and sentenced to imprisonment in the penitentiary for a period of eight years.

<p>1. Specific Performance—When Refused.—An application for specific performance is addressed to the 'sound judicial discretion of the court, governed by established principles. The party seeking performance must show himself to have been ready, prompt, willing, and eager to perform the contract on his part. Default and delay on the part of the party seeking performance, indicating an intention to perform or abandon the contract as may appear to his advantage, accompanied by a change in values without the fault of the other party, and likewise absence of good faith are sufficient reasons for a court of chancery to refuse to enforce performance.</p> <p>2.. Contracts—Time of Performance—Reasonable Time—Conditions Precedent.—A contract to make the cash payment for land on delivery of a deed to the property, but which also provides that the cash payment is to be made as soon as the purchasers to whom the vendee has sold land make theirs to him, is a contract to pay the cash payment in a reasonable time, though such purchasers never pay, and is not a condition precedent to the payment by said vendee.</p>

<p>Error to a judgment of the Circuit Court of Roanoke county rendered October 6, 1897, in a proceeding by motion wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Building Associations&emdash;Contracts&emdash;Where Payable&emdash;By-Lams.&emdash;A-member of a building association must be considered as having contracted with reference to the by-laws of the association. If these require that all remittances for loans, premiums, dues, &c., shall be made to an officer at its office in another State, a bond given by one of its members for a loan made to him will b.e deemed to be payable, at its'said office, although nothing appears on the face of said bond, or the deed of trust securing it, to show where it is payable, and the borrower is'a • resident of and received the money in.this State, and secured the same by a deed of trust on real estate located here.</p> <p>2. Usury&emdash;Conflict of Laws&emdash;Place of Payment Governs.&emdash;If a contract made in this State, but to be performed in another State, is valid according to the laws of the latter State, it will be enforced here, although if to be performed here it would be usurious according to the laws of this State.</p> <p>3. Building Associations&emdash; Loans&emdash;Amount of Credit for Stock&emdash;Case im Judgment.&emdash;The amount of credit to which a borrowing member of a building association is entitled on account of his stock which he has pledged as collateral is to be determined by the terms of his contract as construed and determined by the laws of the State where the contract is to be performed. In the case in judgment, the contract is a New York contract, and according to the laws of that State the borrower is only entitled to be credited with a sum equal to the value, or the amount standing to the credit of his certificates on the books of the association, and that value is ascertained by adding together all monthly instalments paid in, and the dividends declared thereon, and deducting therefrom the losses ascertained by the shareholders to have been sustained by the association,</p>

There were two counts in the declaration, in one of which the county of Franklin complains, and in the other the county of Franklin and the Board of Supervisors of Franklin county complain. There was no demurrer or objection to the declaration, but the parties went to trial on the issue made on the plea of not guilty. Verdict was rendered in favor of the defendants.

<p>Error to a judgment of the Circuit Court of Eranklin county rendered October 22, 1896, in an action of ejectment wherein the county of Eranklin and the Board of Supervisors of Eranklie county, the plaintiffs in error, were the plaintiffs, and the defendant in error was the defendant.</p> <p>This was an action of ejectment to recover possession of an up-stairs room in one of the clerk’s offices of Eranklin county, which had been let to the defendant, to be used as a law office, by the clerk of the County Court of Eranklin county, with the assent of the judge of said court. The proceedings, verdict, and judgment were in all respects similar to those in Franldin County v. Gills Johnson, ante p. 330.</p>

L. Fellers, was the complainant, and the appellant and others were the defendants. ~W. P. Huff was the owner of a lot of land in the city of Roanoke, on which there were three houses. A part of the lot was vacant. He executed a deed of trust on the entire lot to secure to the appellant a debt of $2,000.

v. Reed and others, in which the appellant, New South Building and Loan Association, was defendant,, and the. appellants, Nelson & Myers, were admitted parties complainants.

This suit was brought for the purpose of enforcing the collection of debts due by an insolvent corporation. During the-progress of the suit it became manifest that the corporation-was hopelessly insolvent, and a receiver was appointed to take-charge of and collect the assets of the company. Among the assets to be collected were the unpaid subscriptions to stock. The stock had been subscribed to be paid on call of the company.

It appears from the evidence that T. P. Jose & Sons retired from the “joint account” arrangement with Miller & Hawkins in May, 1891, and that the notes in suit originated in December, 1891, January, 1892, and September, 1892, respectively? and cannot be traced further back than those dates. The residue of the evidence sufficiently appears in the opinion of the court.

<p>Error to a judgment of the Circuit Court of Botetourt county-rendered October 30, 1897, in an action of assumpsit wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.</p>

<p>Error to a judgment of the Circuit Court of Albemarle county rendered July 21, 1898, in a condemnation proceeding wherein the plaintiff in error was the plaintiff, and the defendants in error and others were the defendants.</p>

<p>1. Wills—Case in Judgment.—A. testator by his will declares :</p> <p>“1. All my interest in the estate I bequeath to my beloved wife, M. P. Teese. Also fifty shares of stock of New York and Hudson River Railroad stock now owned by me. Also all moneys on deposit in the National Exchange Bank of Lynchburg, standing to my credit, or in my name. If surviving my wife, I leave this bequest to her sister, Virginia B. Pascoe.</p> <p>“ 2. I give and bequeath to my sister, Margaret Kyle, Harrisville, Butler county, Penn., fifty shares of Pennsylvania Railway stock, standing in my name, to her and her heirs and assigns forever.</p> <p>“3. I give and bequeath to my sister, Rebecca A. Henderson, of West Middlesex, Mercer county, Penn., and to her heirs and assigns forever, fifty shares of Pennsylvania Railroad stock, now standing in my name in that company.</p> <p>“All other property of mine not thus disposed of I bequeath to my wife, and constitute her the sole executor of my last will and testament, and request no security be required of her as said executor.”</p> <p>Held : While it is not clear what estate the testator referred to when he used the language “all my interest in the estate” in the first clause of his will, it is clear that the legatees, Margaret Kyle and Rebecca A. Henderson, took absolutely and presently the stocks bequeathed to them respectively by the seoond and third clauses of the will, and the appellant has no interest therein.</p> <p>2. Wills—How Construed—Diminishing an Estate olea/rly Given by Another . Clause.—The object of courts in construing wills is to arrive at the expressed rather than the presumed intent of testators ; and a clearly expressed intention in one portion of a will is not to yield to a doubtful construction of other portions, but the terms which diminish or destroy an estate clearly given by one portion of a will must be as clear and as decisive as the terms by which it was given.</p>

<p>Appeal from two decrees of the Circuit Court of Shenandoah county pronounced January 21, 1896, and September 11, 1896, in two suits in chancery wherein the appellees were the complainants, and the appellant and others were the defendants.</p>

The original judgment in this cause was recovered in the name of “Mark Bird, use of P. Williams.” Both Bird and Williams had died before this scire facias was sued out, and the scire facias was sued out in the name of Bird’s executor for the use of Williams’ administrators.

<p>1. Insurance—Warranties.—Where the answers to questions propounded in an application for insurance are made warranties by the contract of insurance, it is a matter of no consequence whether they were material to the risk or not. A warranty is a stipulation upon the literal truth or fulfilment of which the validity of a contract depends. It is in the nature of a condition precedent, and must be strictly complied with, whether material or not, In the case at bar, the answers were made warranties by the contract of insurance, and were not true.</p> <p>2. Instructions—Errors which cannot he Assigned.—Although an instruction given by the trial court be erroneous, the error cannot be assigned by a party who has previously, on the same trial, asked for an instruction containing the same error. A party cannot invite the court to commit error by asking for an erroneous instruction, and be permitted thereafter to have the verdict set aside for the error into which the court has been thus misled.</p>

<p>Appeal from a decree of the Hustings Court of the city of Boanoke pronounced February 15,1895, in a suit in chancery, wherein the appellee, Underwood, and others, were the complainants, and the appellants and others were the defendants.</p>

<p>Pleading—Demurrer—Bill of Exceptions.—It is unnecessary to exoept to the opinion of a trial court overruling a demurrer to a declaration.</p> <p>2. Demurrer—Considering the Evidence.—This court cannot look to the evidence in determining whether or not the ruling of the trial court up.on a demurrer to a declaration was erroneous.</p> <p>o ó‘ Instructions—Misleading—Correction by other Instructions.—Although an instruction, standing alone may have been misleading, the verdict of the jury will not on that account be sen aside where it appears that the objection thereto was corrected by other instructions given by the court.</p> <p>4. Master and Servant—“ Mine-Boss ”—Fellow-Servant— Vice-Principal.— A “ mine-boss ” is not a fellow-servant of members of his gang under all circumstances. Though he is such fellow-servant while discharging duties affecting the mere administration of the work to be done, he is not a fellow-servant when discharging the non-assignable duties of the master.</p> <p>5. Master and Servant—Safe Place to Work—Non-Assignable Duty— “Mine-Boss.”—It is the duty of the master to furnish a reasonably safe place in which the servant is to work, and this duty is not assignable. But if- the place was reasonably safe in the first instance, and was rendered unsafe afterwards by the negligent manner in which the “ mine-boss ” directed the work to be done, or the needed precautions to be taken, whereby the servant was injured, thé master is not liable. Nor is the master liable for injuries resulting from risks assumed by the servant, or from failure to keep in a reasonably safe condition the place in which he is to work, when the condition of the place was constantly changing, and the duty of keeping it in safe condition devolved both upon the servant and his “ mine-boss.”</p> <p>6. Master and Servant—Safety of Servant—Negligence.—The servant is under as great obligation to provide for his own safety from such dangers as are known to him or are discernible by ordinary care on his part, as the master is to provide for him, and the negligence of the master does not excuse the servant for the failure to exercise such care, if such failure was the cause of the injury complained of.</p> <p>7. Demurrer to Evidence—How far Evidence of Demurrant Considered.— Upon a demurrer to evidence, the evidence of the demurrant, so far as it is uncontradicted, is entitled to consideration.</p> <p>8. Master and Servant—Safe Place—Risks Assumed by Servant.—A servant who knows the unsafe condition of the place in which he is working is not compelled to continue the work, but if he does continue it, without exercising ordinary prudence and care for his own safety, he must be held to have assumed not only the risks ordinarily incident to the service when he entered upon it, but such as became known to him during the progress of the work, or which were readily discernible to a person of his age and capacity in the exercise of ordinary care.</p>

<p>1. Master and Servant—Injury to Servant—Obvious Dangers—Fellow-Servants.—A master is not liable for _an injury inflicted on an experienced servant in the possession of all of his faculties where it appears that the immediate cause of the injury was his exposure of himself to an open and obvious danger, and the failure of a fellow-servant to give him timely warning, and that his fellow-servants were entirely competent to discharge the duties assigned to them.</p> <p>2. Railroads—Buies.—It is the duty of a railroad company to prescribe proper rules for the conduct of its affairs, but it is impossible to formulate rules to govern its employees in the performance of every simple service they may be called on to discharge. Something must be left to the care and discretion of the employees themselves.</p>

<p>Error to a judgment of the Circuit Court of Page county rendered February 15, 1898, in a proceeding by motion for a judgment wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Mutual Fire Insurance—Case at Bar—Membership—Assessments.—The plaintiff became a member of the defendant company by an original certificate of membership issued to her in pursuance of the constitution of the defendant company, and having paid all assessments made against her, is, under the evidence in the case, entitled to recover for the loss sustained by her under the contract of insurance made with her. As assessments for losses are merely personal debts and not liens on the property, under the terms of the constitution of the defendant company, she is not liable for prior assessments made against her father under a certificate of membership held by him, as she does not claim under or in privity with him, but under a certificate as an original member of the company.</p> <p>2. Insurance—Failure to Pay Assessments—Forfeiture—Waimer.—If a forfeiture of an insurance policy for non-payment of assessments is relied on, the fact that subsequent assessments are made and received by the company, without making any reference to the non-payment of the prior assessment, is evidence tending to show a waiver of the forfeiture, and, for that purpose, should be submitted to the jury under proper instructions. When the right to rely upon a forfeiture has been once waived it is extinguished, and cannot be revived.</p>

<p>1. Chancery Pleading and Practice—Suit by Legatee or Or editor against Personal Representative and Debtor—When Allowed.—Neither a legatee nor a creditor of a decedent can maintain a suit against his personal representative and another who is a debtor to the estate for the purpose of collecting the debt, except under special circumstances, such as the insolvency of the personal representative ; collusion between him and the debtor ; the fact that the debtor was a partner of the decedent; or a trustee holding property for, or an agent of, the decedent. A bill which fails to charge these or other special circumstances which will take the case out of the general rule is bad on demurrer.</p> <p>2. Personal Representatives—Insurance on Decedent’s Life held by Third Pwrty—Excess over Debt—Duty of Representative—Account.—If a third party holding a policy of insurance on the life of a decedent collects and retains more on account of it than he is entitled to under the law, it is the duty of the administrator to require him to account for the excess, and if, through his failure to do so, any loss has resulted to the estate of the decedent, the administrator should be charged with such loss in his administration account.</p> <p>3. Chancery Pleading and Practice.—Dismissal without Prejudice—Personal Representative—Account.—The dismissal of a suit in chancery brought by a legatee of a decedent against his personal representative and debtor of the estate, for the purpose of holding the debtor to account, while a separate suit is pending against the personal representative for the settlement of his account, should be without prejudice to the right of the legatee to have the personal representative charged in the other suit with any sum which it was his duty to collect, but which he had failed to collect of the debtor.</p>

<p>1. Partnership—Bight of Creditors to Subject Social Assets—Case in Judgment.—Partnership creditors have, in strictness, no lien upon the partnership assets for the payment of their debts, but must work out their preference over the creditors of the individual members of the partnership through the equities of such members among themselves. The partners may release this right, and if they do the creditors of the partnership cannot complain. Whether such right has been released is a question to be determined from the facts of the particular case. In the case in judgment the partnership creditors have no lien upon the partnership assets, and no right to subject the same in the hands of the appellee, Southall, to the payment of their debts.</p> <p>2. Partnership—Liability on Endorsement for Individual Debt of One Member.—The endorsement of the partnership name on a negotiable note given for a debt for which the partnership is in no wise liable, does not create any liability on a partner who neither made the endorsement nor in any wise authorized it.</p>

<p>1. Specific Performance—Terms on which Granted—Case in Judgment.— Every application for the specific performance of a contract is addressed to the sound judicial discretion of the court, regulated by established principles. The contract must be distinctly proved, and its material terms clearly ascertained. It must be reasonable, certain, legal, mutual, based upon a valuable consideration, and the party seeking performance must not have been backward in enforcing his rights, but ready, desirous, prompt, and eager. In the case in judgment, the contract is not proved to the satisfaction of the court, there has been long delay in seeking its enforcement, and the claim asserted is barred by the statute of limitations..</p>

<p>Error to a judgment of the Circuit Court of Bockingham county rendered at October term, 1897, upon a motion to set aside a judgment, in which motion the defendants in error were the plaintiffs, and the plaintiff in error was the defendant.</p>

7, in two chancery suits heard together in which the appellants were the complainants, and the appellees were the defendants.

<p>1. Chancery Pleading—Multifariousness—Different Aspects of Same Facts— Different Facts.—A bill is not rendered multifarious by presenting alternative views, or different aspects of the same facts. There must be distinct collocations of distinct and different facts, each presenting different rights, and calling for different relief, to render a bill multifarious.</p> <p>2. Chancery Jurisdiction—Reformation—Mutual Mistake—Notice to Purchaser for Value—Demurrer.—Equity is the proper forum to reform a deed, and a bill which charges mutual mistake in making the deed is not demurrable, even though it fails to charge notice to a purchaser for value. Such notice must be proved, but the defence must be made by plea or answer.</p> <p>3. Purchaser eor Value—Latent Equities.—A purchaser for value without notice is not affected by any latent equity, and it is immaterial of what the equity consists, whether it be a lien, encumbrance, trust, fraud, or any other claim.</p> <p>4. Deeds—Consideration—Marriage—Existing Creditors of Grantor.—A deed made by a man to his intended wife, followed by marriage, is conclusively presumed to be in consideration of the marriage, and is based on a valuable consideration, except as to existing creditors of the grantor. Such deeds made since May 1, 1888, are void as to such creditors, but not otherwise.</p> <p>5. Notice to Purchaser eor Value.—Burden of Proof—Confidential Relations of Grantm' and Grantee—Case in Judgment.—The burden of proving notice to a purchaser for value is on him who alleges it. It will not be implied from the confidential relations existing between the grantor and the grantee. In the case in judgment the evidence fails to establish notice,, actual or constructive.</p> <p>6. Variance between Deed and Prior Contract—Presumption—Burden of Proof.—If there be a variance between a preliminary contract for the sale of land and a subsequent deed of conveyance thereof the presumption is that the deed speaks the final will and intent of the parties, and the burden is on him who denies this effect of the deed to rebut the presumption by the clearest and most satisfactory evidence.</p> <p>7. Chancery Jurisdiction—Construction of Muniments of Title—Adequate Remedy at Law.—When one holds land adversely to another, courts of equity have no independent jurisdiction to merely construe the muniments of title, whether deed or will, of a party out of possession in order to determine who has the better right. The parties have an adequate remedy at law.</p> <p>8. Devise to Three—Limitation Over upon Failwre of Issue—Leed of Pan'tition—Subsequent Failwre of Issue of One Devisee—Case in Judgment.— A testator devised and bequeathed his entire estate, real and personal, to his three grandchildren, tobe equally divided between them, share and share alike, but, on the death of either of them without issue, his or her share should pass to the survivors or survivor, and in case all died without issue, then to collateral kin. Subsequently the grandchildren divided the estate amongst themselves, and, by deeds reciting the provisions of the will and the partition which they had made, and their desire “to vest exclusive title to the several parcels of land in the said parties to whom they had been assigned and allotted respectively,” each conveyed to the other all oh his right, title, and interest in the property allotted to such other. One of the grandchildren, in contemplation of marriage, conveyed the property so received by him to his intended wife and then married her, and shortly thereafter died without issue, or possibility of issue.</p> <p>Held : The title of survivorship of the two surviving grandchildren passed by their deed to their deceased brother, in his life-time, and by his deed is vested in his widow.</p>

<p>1. Building Association—Principal and Agent—Statements of Agent.—A building fund association is not bound by the statement of a local agent as to the amount of the balance due on a loan in his locality, where it appears that his agency was limited to the duty of receiving and receipting for premiums and dues payable to the association by its members in that locality.</p> <p>2. Principal and Agent—Unauthorised Agent—notification.—If a principal adopts the act of an unauthorized agent, or if, with knowledge of the facts, he accepts the benefit of such act, he will be estopped to deny the agent’s authority. But ratification rests upon and implies knowledge of the principal.</p> <p>■ 3. Principal and Agent—Unauthorised Statements by Agent—Enforcement of Lien—Personal Decree.—A principal who holds a lien on real estate which has been purchased by one who has assumed the payment of the lien is not bound by the undisclosed statements of an agent, acting beyond the scope of his agency, made to such purchaser before his purchase, as to the amount of the balance due on the lien, and, in a suit by the purchaser against the principal, to enjoin the enforcement of the lien, a mere prayer in the answer of the principal for a personal decree against the purchaser for any balance that may remain after exhausting the real estate, does not operate, by estoppel or otherwise, to prevent the principal from denying the agency.</p>

The facts sufficiently appear in the opinion of the court. The instructions offered by the prisoner and refused are as follows: “Murder is the deliberate and premeditated killing of a rational creature in being.

<p>Appeal from a decree of the Circuit Court of Roanoke city pronounced March 16,1897, in a suit in chancery, wherein the appellee was the complainant, and the appellants and another were the defendants.</p>

Original application for a writ of mandamus to compel the clerk of the County Court of Hanover county to receive the delinqent taxes on a tract of land with interest and costs thereon, after application had been filed to purchase the same under the provisions of sec. 666 of the Code, as amended by an act of the General Assembly approved February 11, 1898.

Original application for writ of mandamus to compel the clerk of the County Court of Culpeper county to receive certain delinquent taxes without the penalty required by the statute.

R. Hicks, trustee, and M. M. Rogers, were the complainants, and the appellant and another were the defendants, and the other pronounced February 17, 1898, in an ancillary suit in chancery for the appointment of a receiver and the enforcement of liens, wherein the appellee, R. R. Hicks, trustee, was the complainant, and the appellant and others were the defendants.

<p>1. Appear and Error—Exclusion of Evidence by Trial Oowrt—Bill of Exceptions— What must be Shown.—-The action of a trial court in refusing to allow a witness to answer certain questions will not be considered by this court, unless the bill of exception shows what the exceptor expected or proposed to prove by the witness.</p>

This was a suit in chancery instituted by the appellants, W. if. Camp and P. D. Camp, against the appellee, B. M. Bruce, for the purpose of compelling the defendant, Bruce, to convey to the complainant a tract of 2,900 acres of land in fSTansemond county.

<p>Error to a judgment of the Circuit Court of James City county and the city of Williamsburg, rendered June 15, 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>Original application for a mandamus.</p>

rendered September 30, 1897, on a writ of error to a judgment of the County Court of said county on an attachment wherein The Julius Lansburg Furniture and Carpet Company, one of the defendants in error, was the plaintiff, and the plaintiff in error was the defendant.

This was a proceeding by motion on an insurance policy issued in favor of the plaintiff in error on the life of John IP. Dezendorf, for the sum of $15,000. The policy was issued April 11, 1894. During the month of May following the company requested the return of the policy for cancellation, on the ground that it had been obtained by false representations. The policy was not returned.

The bill in this cause set out the facts detailed in the opinion of the court, and charged, amongst other things, that the note of June 2, 1892, which was admitted to be genuine, was transferred to appellant long after its maturity, and hence the appellant took it subject to all the equities between the parties; that complainant had paid the funeral expenses of Ann E. Coleman, amounting to $103, taxes $33, and her doctor’s bill in her last sickness, $50—in all, $186.00, for…

Error to a judgment of the Corporation Court of the city of Buena Yista rendered July 17,1897, in an action of covenant wherein the defendants in error were the plaintiffs, and the plaintiff in error was the defendant;

<p>Error to a judgment of the Corporation Court of the city of Norfolk rendered May 6, 1898, on a seire facias sued out by the Commonwealth against the plaintiff in error and another.</p>

<p>Appeal from a decree of the Circuit Court of Highland county pronounced October 5, 1896, in a suit in chancery wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>1. Statute oe Limitations-&emdash;Attorney in Fact and Principal&emdash;Trust.&emdash;In the absence of fraudulent concealment on the part of an attorney in fact, whose authority is simply to collect and pay over money, the principal’s cause of action against his attorney for failure to make such payment arises at the date of the collection by the attorney, or at least in a reasonable time thereafter. There is no trust relation between the parties, and the mere fact that a part of the money w;as collected several years after the first collection is no evidence of a continuing trust, and does not change the original character of the relation of the parties.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond rendered November 1,1898, on a petition for a mandamus by the defendants in error against the plaintiff in error.</p>

This was an action of covenant instituted by William Wilson, suing by his next friend against the plaintiff in error on two policies of insurance issued to Cealia Wilson, payable to her heirs or assigns, upon satisfactory proof of her death. The policies were assigned by Cealia Wilson to her two children, William Wilson and Alice Wilson. The latter died in the life-time of her mother. The other facts sufficiently appear in the opinion of the court.

<p>Appeal from a decree of the Law and Chancery Court of the city of Norfolk pronounced June 21, 1897, in a suit in chancery wherein appellees were the complainants, and appellants were the defendants.</p>

M. M. Moore borrowed of Israel Allen five thousand dollars May 9, 1882, and a like sum July 20, 1882, which sums he secured by deeds of trust*on portions of his real estate. On July 11,1885, he was largely indebted to his mother on various accounts, and she was his surety for a large sum.

<p>1. Deeds—Admission to Record—Attempt to Recall:—'The admission of a deed to record has the same effect as if the deed were actually spread on the deed book, and a clerk who has once duly admitted a deed to record has no more power to recall his act than he would have to strike from the deed book a deed duly engrossed thereon.</p> <p>2. Deeds—Admission to Record—Direction not to Record—Second Deed on Same Property—Estoppel.—A deed of trust to secure a debt was duly admitted to record by the proper clerk and so endorsed by the clerk, and the creditor secured was notified of that fact by his attorney, but before it was actually engrossed on the deed book the attorney instructed the clerk not to record it till further ordered. Ten days before such further orders were given a second deed of trust on the same property, securing a different creditor, was duly recorded. After the first deed was recorded, the date of the former endorsement was erased, and the date of its actual record was endorsed thereon, and it was forwarded to the creditor secured. A year or more after the first deed, with the endorsements ther'eon, was delivered to the creditor secured thereby, the creditor secured by the second deed assigned his debt to a third party for value received of him. The creditor secured by the first deed took no steps, prior to said assignment, to have the date of the recordation of his deed corrected.</p> <p>Held : The endorsement on the first deed of trust was notice to the ' creditor secured of the date when his deed purported to have been admitted to record, and, having taken no steps to have the record corrected, he is estopped to assert his lien as against the assignees of the debt secured by the second deed, and they take priority over him.</p> <p>3. Estoppel—Knowledge of Truth Generally Essential—Exception to General Rule.—Generally, actual knowledge of the truth as to the material facts represented or concealed is indispensable to the application of the doctrine of equitable estoppel, but such knowledge is not indispensable where the circumstances are such that a knowledge of the truth is necessarily imputed to the party sought to be estopped ; nor where he has neglected to perform some duty whereby another has been misled to his injury, or prejudice. Where one man, by the neglect of some duty, leads another to believe in the existence of certain facts, and, under this belief, to do an act to his prejudice, the former will not, as against the latter, be heard to deny the existence of such facts.</p>

This was an action of debt on an indemnifying bond. The plaintiffs in error sued out an execution against the goods and chattels of George Bowers, and caused the same to be levied on a stock of goods in the city of Staunton. Jennie Bowers, the wife of .George Bowers, claimed the goods and demanded an indemnifying bond, which was given, and the goods were sold to satisfy the execution. Thereupon Jennie Bowers brought this action.

<p>Error to a judgment of the Circuit Court of Rockbridge county rendered September 8, 1897, in an action of debt wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>The pleadings and evidence sufficiently appear in the opinion of the court.</p> <p>After all the evidence had been introduced, the defendant offered the following instructions, which were refused:</p> <p>“Fourth. That if the jury believe from the evidence that this lot had been placed by the plaintiff in the hands of Brennaman, as a real estate agent, to sell the same, and that said Brennaman authorized White to sell the same, and paid him one-half of the commission for selling the lot; and if they furthermore believe from the evidence that the sale was in fact thus made, and that Williamson, the plaintiff, is now seeking to enforce the said sale, then they are instructed that the plaintiff has ratified the acts of said White, and is as responsible therefor, as well as for such representations as the jury believe were made by said White, as he would have been if they had been done and made by himself.</p> <p>“ Fifth. That if the jury believe from the evidence that the lot had been placed by plaintiff in the hands of Brennaman as his agent, for sale, and that he spld the same to Thomas S. White, and that White sold it to the defendant without disclosing to defendant he was the owner, but had defendant to execute the note, the foundation of this suit, to plaintiff; and if they further believe that White made representations to the defendant of material facts as inducements to purchase the said lot, and they believe those representations were in fact untrue, and said representations were reasonably relied upon by defendant to his prejudice, then the jury is authorized to allow the defendant such set-off against the plaintiff’s demand as they deem just and proper.”</p> <p>. A verdict and judgment having been rendered in favor of the plaintiff, the defendant applied for and obtained this writ of error.</p>

<p>1. Wills—Case in. Judgment—Vested Remainders.—A devise to a son “during his natural life, and at his death to his children,” creates a vested remainder in each of the children, and is unaffected by a subsequent clause of the will devising the estate over in the event of the death of the son without lineal descendants living at his death, the son having left such descendants.</p> <p>2. Construction on Written Instruments—Technical Words—Words of Definite Signification—Children.—Technical words in a will are presumed to have been used technically, and words of a definite legal signification are to be understood as used in their definite legal sense unless the contrary appears on the face of the instrument, The word “children” has a definite legal signification, and, when not coupled with other words, generally means issue in the first degree.</p>

<p>1. Pause Representations—Opinions—Vacts—Case at Bar—Insurance.— A contract procured by the false representation of an agent is not voidable at the option of the party deceived, where it appears that the representation was the mere expression of an opinion, and did not amount to an engagement or undertaking that the fact was as represented. In the case at bar, the plaintiff in error was induced to take out further insurance in a company on the representation of an agent of the company that the company would pay him the cash surrender value of a policy which he already held in the company. This representation was the expression of an opinion, and not the statement of a fact.</p>

<p>1. Powers of Attorney—Strictly Construed—Sale of Land under a Power to Recover—Requisite of Power to make a Deed.—A power of attorney which simply authorizes the attorney to demand and receive all real and personal property of the principal does not confer authority to sell and convey his real estate. Powers of attorney are construed strictly, and, though the intention of the parties is to be considered in construing the language used, the authority of the attorney is never considered to be greater than that warranted by the language of the instrument, or indispensable to the effective operation of such authority. Authority to .execute a deed must be by deed.</p> <p>2. Chancery Jurisdiction—Sale of Lands out of State—Power to Compel Conveyance of Lands out of State.—Real estate is exclusively subject to the laws and jurisdiction of the courts of the State in which it is located. Courts of equity in one State cannot decree the sale of lands of a person under disability lying in another State. In cases of fraud, trust, or contract, however, courts of equity having jurisdiction over the parties, may administer full Telief, without regard to the nature or situation of the property, and may even compel the conveyance of property which lies beyond its jurisdiction, provided it can enforce its decree by the exercise of its powers over the persons before it. ■ It is no violation of the sovereignty of one State for a court of equity of another State to compel a party before it to do an act which, if done voluntarily anywhere, would not be such violation. <</p> <p>3. Ratification— Confirmation—Waiver.—Ratification and acquiescence imply knowledge, and no man will be held to have waived rights of which he was ignorant, nor to have ratified a deed when ignorant of its existence, and of the circumstances attending its execution.</p> <p>4. Deeds—Tax-Title.—A deed from a clerk of the County Court conveying to a purchaser land sold for taxes conveys only such title as was vested in the party assessed with the taxes on account whereof the sale was made.</p>

<p>Appeal from a decree of the Circuit Court of Rappahannock county pronounced October 2, 1897, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants, heard together with the suit of Rackley and Others v. Harris and Another, in which appellant was one of the defendants.</p>

<p>1. Construction of Statutes—Stare Decisis.—Where a decision has been followed in other cases, has been long acquiesced in, and become a rule of property, it is of binding force, and should not be changed except by legislative enactment. But this rule has no application to a single decision recently made by a nearly evenly divided court.</p> <p>2. Telegraph Companies—Right of Way along Railroads—Condemnation.— Under the provisions of secs. 1287, 1288, and 1289 of the Code, a telegraph company may have condemned for its use a right of way along and, upon the condemned line of a railroad, but not so as to affect the railroad company in the enjoyment o£ its property. Postal Telegraph-Gable Go. v. W. & W. R. Go., 88 Va. 920, disapproved.</p>

Original application for mandamus in two cases argued together. The writ was refused in one case and granted in the other.

<p>Error to a judgment of the Circuit Court of the city of Richmond rendered July 10, 1897, iu an action of assumpsit wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

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

<p>1. Delinquent Lands&emdash;Deed, to Purchaser&emdash;Surrey.&emdash;Under' sec. 666 of the Code, as amended by Acts of 1897-8, p. 343, the applicant to purchase has no right to a deed until the survey and report therein required have been made, unless the Corporation Court has decided that such survey is unnecessary.</p>

The contract upon which this' action was founded, and the letter thereto attached, are in the words and figures following, to-wit: “ This agreement, entered into and concluded this 14th day of April, 1894, by and between Joseph Goldsmith and Henry J. Goldsmith, both of the city of Baltimore, State of Maryland, copartners, trading as J. Goldsmith & Co., in the city of Dan-ville, State of Virginia, parties of the first part, and George Latz, also of the city of Baltimore,…

<p>Error to a judgment of the Hustings Court of the city of Roanoke rendered April 4, 1896, in a proceeding by motion on a contract wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Contracts—Implied Covenants—Case in Judgment—Railroads—Lease.— Although courts are careful in inferring covenants and promises not contained in written contracts, yet what is necessarily implied is as much a part of the instrument as if plainly expressed, and will be enforced as such. If the language of the instrument leaves the meaning of the parties in doubt, the court will take into consideration the occasion which gave rise to it, the obvious design of the parties, and the object to be attained, as well as the language of the instrument itself, and give effect to that construction which will effectuate the real intent and meaning of the parties. In the case in judgment, it is manifest that the intention of the parties was that the railroad leased by the appellee should be maintained and operated by the lessee during the entire term of the lease, and, under the evidence in this cause, the appellant is as much bound by the covenants, expressed or implied, of the lease as if it had been an original party thereto.</p> <p>2. Contracts—Implied Covenants—Adding to Written Contracts.—A necessary inference from a written contract of an obligation to do what the parties actually intended, and what is essential to give effect and validity to it, is not an addition to the contract.</p> <p>3. Injunctions—Railroads—Lease—Inadequate Remedy at Lavo.—An injunction will lie to prevent the lessee of a railroad from ceasing to operate it during the lease when his contract compels him to maintain and operate the road during the whole term of the lease. The remedy at law to recover damages for the breach of the contract is neither complete nor adequate.</p> <p>4. Specific Performance—Raib'oads—Operating Leased Road.—Equity will compel a railroad company to specifically perform its contract to-maintain and operate a leased road, although the lease has some years to run, and the maintenance and operation of the road requires continuous acts involving the exercise of skill and judgment.</p> <p>5. Specific Performance—Hardship.—A court of equity will not refuse the specific performance of a contract on the sole ground of hardship where it appears that the contract, in its inception, was fairly and justly made, and that the hardship is the result of miscalculation, or is caused by subsequent events, or a change of circumstances, and the party seeking performance is wholly without fault.</p> <p>6. Specific Performance—Railroads—Operating Leased Road—Branch Roads.—Where a railroad company may be properly compelled to maintain and operate a leased road, and it is plainly implied in the lease that a branch road of the lessee was to be operated in conjunction with the leased road so as to reach the main line of the lessee, it is not error, in a suit, to compel the company to maintain and operate the leased road, to require it to maintain and operate the branch road also, during the term of the lease.</p> <p>7. Chancery Practice—Specific Performance—Railroads—Continuing Case on Docket.—A suit to compel a railroad company to maintain and operate a railroad which it has leased should be continued on the docket during the term of the lease so as to enable the court to make such additional orders from time to time as circumstances may require.</p>

<p>1. Evidence.—Collateral Facts.—As a general rule, facts which are collateral to the fact in issue, and which shed no light on the issue, are not admissible in evidence.</p> <p>2. Wills.—Issue Fevisavit vel non—Admissions of one of several Legatees.— Upon the trial of an issue devisavit vel non, the admission of one of the legatees or devisees cannot be given in evidence to impeach the will where there are other legatees or devisees interested in sustaining it. The validity of the whole will being in issue, only such evidence can be introduced to impeach it as is competent against all the parties seeking to establish it.</p>

<p>Appeal from a decree of the Circuit Court of Montgomery county pronounced at its May term, 1898, in a suit in chancery wherein the appellee was the complainant, and the appellants were the defendants.</p> <p>The appellee filed his hill in the Circuit Court Of Montgomery county to enjoin the Board of Supervisors and the Treasurer of Montgomery county from collecting a tax which had been assessed by the Board on the capital employed by the appellee in his business, as a merchant. The appellants demurred to and answered the bill. At the hearing, the injunction granted when the bill was filed was perpetuated.</p>

<p>Error to a judgment of the Corporation Court of the city of Lynchburg rendered September 8, 1897, in a proceeding by motion for a judgment wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>This is the second action by the same plaintiff against the same defendant on the same note. The first action was dismissed, and it is claimed by the plaintiff in error that he is released because he endorsed the note for the accommodation of the maker, and that the first action was dismissed without his knowledge or consent, upon an agreement made with the maker of the note, for a valuable consideration, to forbear to sue for a definite time. - The agreement to dismiss was made with one B. E. Hughes, vice-president of the Traders Bank, which bank was the second endorser of the note. It was claimed by the plaintiff in error that Hughes was acting for the maker of the note, but this was denied. This was the chief controversy in the case, and was decided adversely to the plaintiff in error.</p>

<p>1. Statute of Limitations—See. 2934 of Oode—Further Time Allowed.— The word “action” in sec. 2934 of the Code is used in a technical sense, and applies to actions at law only, and not to suits in equity. A party who has first brought a suit in equity which has been dismissed, and then, within one year from such dismissal, instituted his action at law for the same matter, is not entitled.to the benefit of said section. The provision of the section, however, which authorizes a new suit to be brought within one year in consequence of the loss or destruction of papers or records in a former suit which was in due time, includes both actions at law and suits in equity.</p>

<p>Appeal from a decree of the Circuit Court of Henry county pronounced Yovernber 2, 1897, in a suit in chancery wherein the appellee was the complainant, and 1,he appellant and. another were the defendants.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond rendered November 10,1897, 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 deed construed by the court was in the following words and figures: “This deed, made and entered into this the 7th day February, 1883, by and between J. Wesley Jones, of the county of Mecklenburg, and State of Virginia, of the first part, and Thomas N. Jones, of the county of Charlofcte, and State of Virginia (who is hereby appointed trustee for Mary E. Jones and her children), of the second part, witnesseth: That in consideration of the sum of five dollars in hand paid,…

<p>1. Legacies&emdash;What Fund Chargeable&emdash;Intention to Charge Beal Estate.&emdash;As a general rule, the personal estate is not only the primary, but the only fund for the payment of legacies, and the real estate is not chargeable with their payment, in case of deficiency of personal estate, unless made so by the testator. The intention to charge the real estate, however, must be either expressly declared, or clearly deducible from the language and dispositions of the will.</p> <p>2. Wills&emdash;Partnership Beal Estate&emdash;Devised as Beal Estate&emdash;Legacies.&emdash;A testator owning an interest in partnership real and personal property has the right, as respects the objects of his bounty, to distinguish between the two classes of property, and treat the personal estate as personalty, and the real estate as realty, and declare out of which fund pecuniary legacies shall be paid,</p> <p>3. Wills&emdash;Case in Judgment&emdash;Out of what Fund Legacies Payable&emdash;Subrogation.&emdash;A testator bequeaths his personal property “subject to certain legacies hereinafter mentioned ” to his nephews, and devises his real estate to the same nephews for life, with remainder in fee to their heirs, and then gives certain pecuniary legacies “payable from my estate.” The time of payment of the legacies and the division of the real estate was postponed for several years in order to provide, as stated in the will, for the payment of a farm recently purchased. The personal estate was not sufficient to pay the debts and legacies.</p> <p>Held.&emdash;The personal estate alone is liable for the payment of the legacies, and the real estate is not bound to contribute to the legacies the amount diverted to pay debts of the testator.</p> <p>4. Wills&emdash;Legacies&emdash;Intention to Charge Beal Estate.&emdash;An intention to charge the real estate with the payment of legacies is inferred where pecuniary legacies alone are first given and no part of the real estate is specially devised, followed by a residuary clause devising and bequeathing the residue of the real and personal estate; or where a testator devises his real estate, after a direction that debts and legacies be first paid ; or devises the remainder of his estate, real and personal, after the payment of debts and legacies ; or the devise is declared to be made after they are paid.</p> <p>5. Debts of Decedent—Primary Fund far Payment—Liens on Land.—In the absence of a testamentary provision for the payment of debts, the personal property of a decedent is the primary fund for their payment, even though the debts be secured by a lien given by the decedent in his life-time on his real estate.</p> <p><3. Chancery Practice—Rehearing — Acquiescence—Pstoppel.—The mere lapse of ten years will not estop a party to'a pending suit from filing a petition to rehear an interlocutory decree in the suit.</p>

<p>1. Evidence—Examination of Witnesses—Re-Examination—Discretion of Trial Court.—The examination of witnesses lies chiefly in the discretion of the trial court, and, while the practice of recalling witnesses for further examination in chief is not to be encouraged, this court will not reverse the judgment or decree of the trial court for this cause, unless the second examination was palpably improper.</p> <p>2. Pleading—Action on Collaterals—Dismissal—Retraxit—Res Judicata— Discharge of Surety—Case at Bar.—In an action against the maker and accommodation endorser of a negotiable note by one who held the note as collateral for a debt, the plaintiff, having received satisfaction of his debt from his original debtor, dismissed the action at the defendants’ costs, with the knowledge and acquiescence of the endorsers. The collateral notes had, at that time, been transferred by the owner to the defendant in error, who was not a party to the action on the notes, and had no notice or knowledge of the pendency of the action.</p> <p>Held : 1. This was not a retraxit.</p> <p>2. Nor an adjudication of the principles of the case, or the rights of the parties.</p> <p>3. Nor was it such a giving of time to the maker as to release the endorsers of the note.</p> <p>3. Retraxit—Dismissal by Nominal Plaintiff.—A retraxit is an open and voluntary renunciation by the plaintiff in open court of his suit, and the cause thereof. A dismissal by a plaintiff who no longer has any interest in the cause of action is not a retraxit, and cannot prejudice the rights of the real owner of the subject of litigation, who is neither a party to the action nor a privy of the plaintiff.</p> <p>4. Res Judicata.—In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same • in both cases, and must be determined on its merits.</p> <p>5. Appeal and Error.—Objection for First Time—•Alteration of Note.—The objection that a material alteration has been made in a note in suit cannot be made for the first time in the appellate court.</p>

<p>1. Lire Estate with Unlimited Power or Alienation—Fee-Simple.—An estate for life, coupled with the absolute and unlimited power of alienation of the fee, express or implied, comprehends everything, and constitutes a fee-simple estate.</p>

<p>1. Wills—Vesting of Estates.—All devises and bequests are to be construed as vesting at the testator’s death, unless the intention to postpone the vesting is clearly indicated by the will.</p> <p>2. Wills—Oasein Judgment—Vested Remainders.—A testator, by his will, gave to each of his four daughters during their respective lives one sixth part of the residue of his estate, and declared : “At the respective death of my four daughters * * I will and bequeath that what each shall receive under this provision of my will shall pass and belong absolutely to their respective children.”</p> <p>Held : The children took vested remainders in the property given to their respective mothers for life.</p>

This case has been once before in this court, and is reported under the style of Cottrell v. Watkins, 89 Ya. 801. The record in the present case contains only so much of the pleadings and evidence as was introduced after the case was sent back to the Circuit Court of Henrico. The incomplete condition of the record renders it difficult to make an accurate statement of the facts.

<p>Error to a judgment of the Circuit Court of the city of Lynchburg rendered April 14, 1898.</p>

<p>1. Constitutional Law—Act Valid in paid and Void in paid—Contempts— Appeal and Error.—A statute may be constitutional in some of its provisions and unconstitutional in others, but if the parts can be so separated as that each can stand as the will of the legislature the good does not perish with the bad. Under this rule, the act of February-26, 1898 (Acts 1897-’8, p. 548), in so far as it allows an appeal to this court in cases of contempt, is constitutional.</p> <p>2. Contempts—Disclaimer — Lack of Evidence.—In a proceeding for contempt for failure to obey a lawful order of court, in the absence of evidence that the act complained of (which rendered obedience impossible) was done for the purpose of defeating the jurisdiction and authority of the court, and when the facts shown do not naturally bear such'an interpretation, upon disclaimer by the defendant of such a purpose, he should be discharged.</p>

<p>1. Deputy Treasurers&emdash;Penalties&emdash;Sec. 85of Gode&emdash;Interest on Verdict&emdash; Affidavits of Jurors.&emdash;The penalties imposed on deputy treasurers by sec. 854 of the Code for failure to collect or pay over taxes are not to be extended by implication. The party seeking to recover such penalties must bring himself strictly within the terms of the section. It is the duty of the jury to ascertain the amount and date of the default,- and to render verdict for this sum with the penalty added. Judgment should be rendered for the amount of the verdict with interest at six per cent, per annum, as the penalty does not extend beyond the verdict. If there is doubt as to whether the jury imposed the penalty, this doubt cannot be resolved by the affidavits of the jurors, but the verdict will be presumed to be correct.</p> <p>2. New Trials&emdash;Verdict&emdash;Affidavits of Jurors.&emdash;As a general rule, affidavits of jurors as to the manner in which they arrived at their verdict will not be received, though there may be instances in which they will be received in order to prevent a failure of justice.</p>