Volume 97 — Virginia Reports

<p>Appeal from a decree of the Chancery Court of the city of Richmond pronounced November 10, 1897, in a suit in chancery wherein the appellees, Brandt and Dunlop^ trastees, were the complainants, and the appellant and others were the defendants.</p>

<p>1. Ckanceby Pleading—Bill of Review—Neio Case—Errors of Law— Case in Judgment.—A complainant cannot make an entirely new and different case by a bill of review from that made by his original bill. If the ground for thé bill of review be errors of law, they must be such as appear on the face of the decrees, orders, and proceedings in the cause, arising on facts either admitted by the pleadings, or stated as facts in the decrees. In the case in judgment, the complainant in her original bill admitted that one of the defendants, had an insurable interest in the life of her husband, and sought a recovery on the ground that, having a double security for his debt, he had collected both, and thus been twice paid. In the bill of review the insurable interest is denied, and relief sought on other grounds. This cannot be allowed.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond rendered Hovember 5, 1897, in an action of assumpsit wherein the defendant in error was the-plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Taxation—Tugs and Barges—Situs for Taxation—Interstate Oommeree—Case in Judgment.—The fact that tugs and barges are engaged in interstate commerce does not exempt them from taxation; nor does the place of their enrollment or registration fix their situs for taxation, though it is a circumstance to be considered. In the case in judgment, they are owned by a Virginia corporation, are used exclusively in the transportation of coal from a given point in this State to various points in other States, and are not assessed for taxation elsewhere in or out of the State of Virginia. Under these circumstances, they are properly taxable in this State, in the county where they are always loaded.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond rendered ETovember 25, 1898, on an application for a mandamus wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>The Richmond Railway and Electric Company (plaintiff in error) was incorporated by an Act of Assembly approved February 20, 1890, (Acts 1889-90 p. 499). Under its charter it was authorized to acquire existing street railways in the city of Richmond, and to construct and operate its own lines in the city of Richmond and the county of Henrico. Under the power thus conferred it acquired two independent lines in the city of Richmond, and extending into the county of Henrico. These two lines were under no obligation to transfer passengers from one to the other. The charter also' invested the judge of the County Court of Henrico county with authority to consent to the location of the company’s railway on the highway of the county, subject to all the restrictions, limitations and conditions of whatsoever nature that the said judge might impose as to so much of the line as was within the limits of the county. Under an agreement with said judge dated June 24, 1892, the company extended its line in the county from the intersection of Eirst street with the county line to the intersection of ETorth Avenue and Kersting street. Subsequently, under a similar agreement, the line was further extended to the point where ETorth Avenue intersects Brookland Park Boulevard; and by an agreement dated October 14, 1896, it extended its line from the latter point “ along said Boulevard to Brook Road, and also from where said Boulevard intersects Chamberlayne Avenue, along Chamberlayne Avenue, to Walton Avenue. This last mentioned agreement, contains amongst others, the following provisions:</p> <p>“ Seventh.—Said Richmond Railway and Electric Company agrees to transfer passengers on this extension who have paid one fare to and from the said Barton Heights extension at Eirst and Clay streets, to its Olay street cars without charge of any extra fare, and said passengers so transferred shall have all the rights of any passenger on the main line to which he is transferred at that point.</p> <p>“ Eighth.—The fare charged on said extension shall be five cents, and if any reduction shall hereafter be made in said fare, or any special privilege granted to passengers in the city of Richmond on the lines owned and operated by said Richmond Railway and Electric Company, the same reduction and privilege shall be enjoyed by the passengers on this extension.57</p> <p>“ Eleventh.—And as one of the conditions of the franchise herein granted, the said company agrees that the schedule of twenty minutes, penalties for failure to give the same, and the rate of fare and privileges as provided in section six and eight respectively of this contract shall apply to its western Main street extension; and that all passengers on the said west Main street extension shall be transferred to and from its Main street line in the city of Richmond, without charge of any extra fare, and the passengers so transferred have all the rights of any passengers on said Main street line.55</p> <p>The complaint of the petitioner (defendant in error) is that he is not accorded “ all the rights of any passengers on the Main street line to which he is transí erred on reaching the city limits. The ground of complaint is set out in the petition for the mandamus as follows, to wit:</p> <p>“ Tour petitioner further states that he conducts his business in the city of Richmond, and that each morning it is necessary for him to go to the said city to carry on the same, and that it has been his custom to board the cars of the Richmond Railway and Electric Company in front of Ms house, and after travelling on their branch line to First and Olay streets to receive transfers at that point and on Ms further request the conductor by punching the .same permitted him to be transferred to any of their cars travelling in the same direction, but your petitioner states that in February of this year the said company deprived your petitioner of this right after having received a transfer at the comer of First and Clay streets, to receive another or to have Ms transfer ticket punched for any given point on the main line and that after the month of February, having once received a transfer, when he desired to change cars at the regular transfer points, he was compelled to pay an additional fare, a requirement wMch was not required of the passengers travelling on the main line at the point where he received his transfer, and to the same effect has he been debarred of the privilege of receiving a transfer or punched ticket- allowing, him to ride at First and Clay streets on his way home, when he has once before received a transfer.</p> <p>“ Your petitioner further states that suffering under this unreasonable deprivation of Ms rights by the said company he, on the 23d day of July, 1898, entered car Ro.-of the Richmond Railway and Electric Company on BrooHand Park Boulevard and immediately paid the fare required of him, and then requested that a transfer ticket would be punched to him to the Clay street cars at First and Clay streets, this was promptly done by the conductor of that car, but when he arrived at First and Clay streets in the city of Richmond and boarded car Ro. 156 of said company going east, and requested that Ms transfer ticket be punched to 9th and Main streets so that he might ride on the Main street cars going in the same direction, the conductor refused to punch said transfer ticket for that point, claiming that it was against the rules of the company, and your petitioner was then compelled to pay and did pay an additional fare to continue his ride on the Main street line going in the same direction. At the same time that your petitioner entered the car at First and Clay streets with his transfer, a passenger boarded the same car going in the same direction, and, after paying his fare demanded of the conductor a transfer to 9th and Main streets (the point where your petitioner had been denied the right to be transferred and he received it, and was allowed to ride on the Main street car going east without the payment of anything additional.</p> <p>“Your petitioner therefore alleges and charges that the condition of the extension of the franchise by the County Court of Iienrico county to the Richmond Railway and Electric Company was granted on the ground that a citizen of the county of Henrico travelling on the extention should have ‘ on the main line ’ to which he was transferred all the rights of any passengers on that line and your petitioner alleges that this privilege was unjustly denied him on the 23d day of July 1898, and will be unjustly denied him in the future since the said company has signified its intention not to grant such rights. And your petitioner states that under this rule, adopted by the said company, himself and others similarly situated are debarred the privilege, without the payment of an extra fare, of travel by either the Forest Hill Park line, or the Main street line to the wharves, to Manchester, to the New and Old Reservoir, and numerous other places which is now allowed on cars of the defendant company to ‘ passengers on the main line ’ at First and Clay streets to which they are transferred.”</p> <p>The company admits that at one time it had issued several transfers to the Henrico passengers, but avers that it was found to be a losing business, and so the order was withdrawn “ and the equable and just rule established of allowing one transfer and only one transfer to a passenger paying his five cent fare, whether said passenger desired to be transferred to a line to which, by law he was transíerrable or not. It is under this fair system that your respondent is now working, and it is of this Mr. Brown is complaining, though he is given one transfer at First and Clay streets whilst a passenger in Bichmond is given one transfer, and one transfer only at any point of your respondent’s line, that said Bichmond passenger may desire.”</p> <p>The other facts sufficiently appear in the opinion of the court.</p>

15, 1898, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.

<p>Error to a judgment of the Law and Equity Oourt of the city of Richmond rendered February 16, 1898, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p> <p>The evidence sufficiently appears in the opinion of the court. The instructions given by the trial court, on the motion of the plaintiff, and notwithstanding the objection of the defendant, were as follows:</p> <p> Plaintiff’s Instruction No. 1. </p> <p>“ The court instructs the jury that the burden'of proof is upon the defendant to prove that he sought counsel with an honest purpose to be informed as to the law, and that he was in good faith guided by such advice in causing the arrest of the plaintiff, and that whether or not the defendant did, before instituting the criminal proceedings, make a full, correct and honest disclosure to his attorney or attorneys of all the material facts bearing upon the guilt of the plaintiff, of which he had knowledge, and whether, in commencing such proceedings, the defendant was acting in good faith upon the advice of his counsel are questions of fact to be determined by the jury, from all the evidence and circumstances proved in the case. ' And if the jury believe, from the evidence, that the defendant did not make a full, correct and honest disclosure of all such facts to his counsel but that he instituted the criminal prosecution from a fixed determination of his own, rather than from the opinion of counsel, then such advice can avail nothing in this suit.”</p> <p> Plaintiff’s Instruction No. 2. </p> <p>“ If tlie jury believe, from the evidence that the plaintiff, up to the time of his arrest, uniformly bore a good reputation for honesty and integrity, and that the defendant knew his reputation to he such up to the time of his arrest, then that fact is a proper one to be considered by the jury, in connection with all the other evidence in the case, in determining whether or not the defendant had probable cause to believe, and did believe, in good faith, that the plaintiff was guilty of the crime charged against him.”</p> <p> Plaintiff’s Instruction No. 3. </p> <p>“ The .jury are instructed, that if, from the evidence and instructions of the court you find for the plaintiff, then in assessing the amount of the plaintiff’s damages you have a right to take into account, and the plaintiff is entitled to recover compensation for his loss of time, and for his suffering both bodily and mental, including the injury to his reputation and feelings if any, sustained by the wrongful act of the defendant, and if the jury believe the act complained of was committed with actual malice and a design to injure or oppress the plaintiff, the plaintiff may also recover punitive or exemplary damages, that is to say the jury will not be limited to mere compensation for the actual damages sustained by him; they may give him such further damages as they may think right in view of all the circumstances proved at the trial as punishment to the defendant and as a salutary example to others to deter them from offending in like manner.”</p>

Turner was the complainant, and in the other the appellee Maryland Life Insurance Company was the complainant, and in both of which the appellants and others were defendants. The appellant Joseph H. Nelson had made three deeds of trust to secure creditors, two on September Y, 1882, and one on August 20, 1886.

<p>Appeal from a decree of the Law and Equity Court of the city of Richmond pronounced August 12, 1898, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Insurance—Insurable Interest—Building Association.—A Building Association has no insurable interest in the life of a member who is in no wise indebted to it; and the fact that the member becomes surety for the Association does not create an insurable interest.</p> <p>2. Insurance—Insurable Interest—Advancing Premiums.—If a life policy, lawfully effected, be assigned to one whose only interest is the amount of premiums advanced, the assignee can only retain so much of the insurance money collected as will be necessary to reimburse him for the premiums paid, expenses incurred, and interest thereon.</p> <p>3. Insurance—Receipt of Proceeds of Policy—Lack of Inswable Interest— Liability to Representative or Assignee of Assured—Bstoppel.—One who receives and accepts the benefit of a policy of insurance on the life of a third person in whose life he has no insurable interest is liable to the representative of assignee of the assured for the ■sum so received, less premiums and expenses paid, if any, and such liability is not affected by the fact that there was a prior contract, without consideration, to effect such insurance. The prior contract was void as against public policy, and a void contract cannot defeat a lawful right.</p> <p>4. Contracts—Illegality—In Pari Delicto.—One who has failed to carry out an unlawful contract,, and has entered into a different' contract which is in all respects legal, cannot be defeated in an action on the valid contract on the ground that he was in pari delicto with the defendant in the first contract.</p> <p>5. Contracts—Illegality—Public Policy—In Pari Delicto.—If an agreement is not intrinsically immoral or evil, and involves no fraud or deception upon any one, but is condemned by the law simply because contrary to public policy, the maxim in pari delicto is not inflexibly applied, but the court will consider whether public policy will be promoted and lite agreements discouraged by enforcing or avoiding the agreement, and if the policy of the law will be advanced by granting relief, it will be given, otherwise not.</p> <p>6. Insurance—Insurable Interest—Advancing Premiums.—In the absence of an insurable interest, a policy of insurance on the life of another is contrary to public policy, and cannot be enforced by the beneficiary beyond the amount paid by him for. premiulns, expenses, and interest thereon, whether the policy be payable directly to such beneficiary, or to the assured, and be by him assigned to such beneficiary.</p> <p>7. Insurance—Insurable Interest—Assignment of Policy by Surety—Right as Against Principal.—If a policy of life insurance, lawfully effected, be assigned by the assured as collateral for a debt for which he is a mere surety, and upon his death the amount of insurance be applied towards the payment of the debt, the personal representative or subsequent assignee of the assured may recover of the principal debtor, in the absence of an insurable interest in him, the amount received on such policy less premiums and expenses paid by him, although the policy may have been issued at his instance, and the premiums advanced by him.</p> <p>8. Corporations Created by Courts—Preferences.—The confession of a judgment for an antecedent debt by a corporation chartered by a court is an active act on the part of the corporation to give preference to that creditor, and the judgment enures ratably to the benefit of all the existing creditors of such corporation.</p>

<p>1. Principal and Agent—Special Agent—Transgressing Authority.—A special agent who is authorized to dismiss the suit of his principal only on special terms designated in writing transgresses his authority in dismissing the suit on any other terms, without the knowledge of his principal, and the right of the principal to prosecute a new suit for the same debt, and to recover judgment therefor against principal and surety is unaffected by such dismissal.</p> <p>2. Appeal and Error—Erroneous Instructions—Gorreet Verdict—Harmless Error.—This court will not reverse the action of the trial court on account of erroneous instructions given, where it can be seen from the whole record that, even under correct instructions, a different verdict could not have been found by the jury.</p>

<p>1. Injunctions—Dissolution—Answers.—As a general rule, subject to some exceptions, an injunction, properly granted, will not be dissolved until the defendant has answered.</p> <p>2. Appeal and Ebbob—Decree Overruling Demurrer and Giving Leave to Answer.—No appeal lies from a decree overruling a demurrer, giving the defendant leave to answer, and continuing an injunction in force until the further order of the court, where there was no motion to dissolve, and the cause was heard solely upon the demurrer to the bill.</p>

Eiror to a judgment of the Corporation Court of the city of Danville rendered April 18, 1898, in an action of trespass on the case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.

On motion of appellee to dismiss the appeal as improvidently awarded. A decree was pronounced May 31, 1893, adjudicating the principles of the case/ and dismissing appellant’s bill. On August 11, 1893, he -was permitted to file a bill of review based upon alleged after discovered evidence. On August 2, 1897, the bill of review was dismissed, and on February 16, 1898, the petition for this appeal was presented.

<p>Error to a judgment of the Law ,and Equity Court of the city of Bichmond, rendered September 29, 1898, in an action of detinue whei’ein 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 Culpeper county, pronounced June 22, 1898, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Error to a judgment of the Circuit Court of the city of Portsmouth, rendered on the 9th day of May, 1898, in an action of trespass on the case wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Madison county pronounced April 20, 1898, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>Error to a judgment of tile Law and Chancery Court of the city of Horfolk rendered April 8, 1898, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Fraud—Undue Influence—Burden of Proof—Indicia of Fraud—Presumption.—In a suit to set aside a deed on tbe ground of fraud and undue influence, the burden of proof is, as a rule, on tbe plaintiff to prove tbe fraud and undue influence alleged, and such proof must be clear and convincing. But if indicia of fraud are proved, so that tbe fraud may be presumed from tbe circumstances and condition of the parties, or their intimate and confidential relations one to tbe other, as parent and child, or in any other way, tbe burden of proof shifts to tbe defendant, and be is obliged to repel tbe presumption of fraud and undue influence arising from tbe circumstances of the transaction and tbe relation of tbe parties by strong and clear evidence.</p> <p>2. Fraud—Prima Facie Gase—Relationship of Parties—Burden of Proof.—If tbe relationship of the parties and tbe surrounding circumstances cast doubt upon tbe payment of tbe consideration for a conveyance, tbe burden of proving such payment and of showing good faith in tbe transaction is on tbe grantee.</p> <p>3. Fraud—How Established.—Fraud may be established by circumstantial evidence as well as by direct and positive proof, and in most cases circumstantial evidence is the only proof that can be adduced. A transaction, however, may of itself and by itself furnish proof of fraud so conclusive as to outweigh tbe answer of tbe defendant, and even tbe evidence of witnesses.</p> <p>4. Fraud—Indicia—Relationship of Parties—Gase in Judgment—Burden of Proof.—False admission of receipt of consideration, absence of .means in tbe grantee, failure on tbe part of tbe grantee to produce evidence supposed to be within bis reach, unusual mode of payment, and want of clear proof are among tbe indicia of fraud. Mere relationship of tbe parties is not alone a badge of fraud, but it strengthens a presumption arising from other circumstances, and calls for close scrutiny. In tlie case in judgment the evidence raised a presumption of fraud and undue influence against the defendant, and shifted the burden of proof upon him to establish the good faith and honesty of the transactions assailed by clear and strong proof. This he failed to do.</p> <p>5. Appeal and Ebbob—Record—Opimon of Trial Judge.—If the opinion of the trial judge is referred to in the decree deciding the cause as setting forth the reasons for his decision, it becomes a part of the record, and it is proper to copy it as a part of the record certified to the appellate court.</p>

The action was in the names of A. S. Lee and Mary E. Lee, his wife, on a policy of insurance on the life of said A. S. Lee, which policy is payable “ within ninety days after the receipt of satisfactory evidence to the association of the death of the above-named member (A. S. Lee) * * * to Mary E. Lee (wife), of Richmond, county of Henrico, State of Virginia, if then living, otherwise to the heirs, or legal representatives of said member.”

<p>1. Chancery Jurisdiction—Adequate Remedy at Law.—Courts of equity have concurrent jurisdiction with courts of law where the remedy at law is less adequate and complete than in equity.</p> <p>2. Life Insurance — Application — Former Rejection—Concealment— Warranty.—On an application to a second company for insurance as a “ rejected risk ” hased upon and averring the truth of the statements in the application to the first company, failure to disclose the fact that since rejection hy the first company the applicant had heen twice examined and rejected as unsound by the medical examiners of the second company is a breach of the warranty contained in the application that no proposal or application to insure the life of the applicant had ever heen made to any company or agent upon which assured had heen rejected, or upon which a policy had not heen issued and received hy him.</p> <p>3. Fraud—Allegation and Proof.—An averment in an answer that a policy of insurance was procured hy the suppression of material facts, and that the assured and another conspired to thus obtain the policy, is a sufficient charge of fraud to admit evidence to prove the facts.</p>

<p>1. Riparian Rights—Conveyance to High-Water Marie,—Effect of—Flats. A conveyance to “ high-water mark ” as a general rule vests in the grantee the right to the soil between ordinary high and low-water mark, as incident or appurtenant to the adjacent land. A grant may be so limited to “ high-water mark ” as to exclude riparian rights as incident to it, but the intention to’ do so must be clear and manifest upon the face of the deed.</p> <p>2. Riparian Rights—Apportionment—Chancery Jurisdiction.—The apportionment of riparian rights should be made in accordance with the principles estáblished in Croner v. Foster, 94 Va. 650, and a court of chancery is the proper tribunal to make the apportionment.</p>

<p>1. Fraudulent Conveyances—Privity of Grantee—Sow Charged.—The privity of a grantee in the fraud of his grantor is sufficiently charged by charging that the deed was made not only without any consideration deemed valuable in law, but with intent to hinder, delay, and defraud the creditors of the grantor. It is not necessary to charge expressly that the grantee had notice of the fraud intended by the grantor.</p> <p>2. Fraud—Sow Charged—Intent to Smdei\ Delay and Defraud.—Generally fraud should be charged by setting forth the particular manner in which the act was done, and the end and design to' be accomplished. If these show that fraud was designed and perpetrated it is not necessary to aver the legal conclusion that they constitute fraud. But the charge that a deed was made with intent to hinder, delay, and defraud creditors is not the mere statement of a legal conclusion, but a charge of a material fact.</p> <p>3. Chancery Pleading—Certainty in Charges of Fact.—General certainty is all that is required in the statement of facts in a bill. A charge in general terms where it is the point on which a case turns, and not merely incidentally involved, will warrant the production of evidence of the particular facts.</p> <p>4. Fraud—Burden of Proof—Indicia of Fraud.—The burden of proving fraud is primarily on him who charges it, but where indicia of fraud are clearly shown the burden is shifted to the other side to show the hona fides of the transaction.</p> <p>5. Fraudulent Conveyances — Fraud of Grantor — Knowledge of Grantee—What Sufficient.—In order to avoid a conveyance on the ground of the fraudulent intent of the grantor, it is not necessary to prove that the grantee had positive knowledge of such fraudulent intent. It is sufficient to prove that the grantee had knowledge</p> <p>of facts and circumstances which would have excited the suspicion of a man of ordinary care and prudence, and put him upon inquiry as to the bona fides of the transaction, which inquiry would necessarily have led to a discovery of the fraud of his grantor.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced April 30, 1898, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

<p>1. Chancery Jurisdiction—Fraud—Adequate Remedy at Law.—Although fraud is an elementary ground of jurisdiction of courts of equity, the jurisdiction does not extend to all possible cases in which the commission of a fraud may be involved. If the right invaded is legal, and the remedy at law is full, adequate and complete, the concurrent jurisdiction in equity does not exist.</p>

<p>1. Marriage and Divorce—Cruelty—Reasonable Apprehension of Bodily Burt.—The specifications of cruelty and reasonable apprehension of bodily hurt charged in the bill state a good case for a divorce from bed and board, and, having been sustained by proof, there is no error in the decree granting such divorce.</p> <p>2. Marriage and Divorce—Custody of Infant.—On decreeing a divorce the mother is the proper custodian of an infant of seven months old.</p> <p>3. Alimony—Fixing Amount—Subsequent Increase or Decrease.—Before fixing the amount of alimony to be paid by a husband for the support of his wife and infant child the court should ascertain the value of his property and the extent of his income, but, although this was not accurately done in the case in judgment, the allowance of six dollars per month will not be disturbed. If necessary to increase or diminish the amount in the future it may be done under the provisions of section 2263 of the Code.</p> <p>4. Alimony—Charge on Land—Injunction Against Alienation or Encumbrance.—Sums decreed to be paid as alimony should be charged upon the lands of the husband, but it is error to enjoin him from disposing of or encumbering his real estate, unless the facts of the particular case show it to be necessary or proper.</p>

<p>Appeal from a decree of the Circuit Court of 'Washington county, pronounced Rebruary 9, 1898, in three chancery suits, heard together, in each of which the appellant, Robert A. Preston, was a defendant.</p>

The Eairmount Land Company being the owner of land near the city of Richmond, which it desired to place upon the market, divided it up into lots and employed one S. P. Clay to do certain grading for it, at an agreed price per yard, to be paid for by the conveyance to Clay of certain designated lote at a stipulated price. The company conveyed the lots to Clay, but retained the deed in its possession.

This suit was instituted by the children of D. B. Tennant, who were legatees under his will, against the executrix of said Tennant, and David Dunlop, charging a devastavit by said executrix, procured by said Dunlop; and praying that Dunlop might be required to account to the estate of said Tennant for the actual value of the interest of said Tennant in the good-will, brands, and labels of the firm of D. B. Tennant & Co. (of which Dunlop was a partner) and of an individual…

<p>1. Attobney and Client—Fees—Scrutiny hy Court of Equity—Burden on Attorney to Show Fairness.—In a contest between an attorney and bis client about the amount charged for fees, where it appears that the client is old and ignorant, and wholly unacquainted with the conduct of business affairs, it is the duty of a court of equity to scrutinize with jealous care the transactions between them, and see that no oppression is exercised, and no advantage taken of the necessities and inexperience of the client. It is incumbent on the attorney to show that the transactions were fair, and the fees charged reasonable and just.</p> <p>2. Peemanent Impbovements—Repairs to Buildings—(brasses—Fences— Ditches.—Repairs to buildings are usually treated as permanent improvements, but the sowing of grass seeds, and the cleaning of land for cultivation, cannot be so classed. Whether the erection of fences, the digging of ditches, and the filling of gullies, are permanent improvements or not depends upon the facts of the particular ease, to be controlled by determining whether the work was done and the money expended for the future benefit of the premises, or the immediate benefit of the occupant.</p> <p>3. Commissioneb’s Repobt—Errors on Face—No Exception Necessary.— Errors apparent on the face of the report of the commissioner in chancery in this cause may be corrected, although no exception was filed to the report.</p>

Court of Wythe county, pronounced January 2, 1899, in the chancery suit of Graham v. Oounsdman and Others, in which both appellant and appellee were defendants. The suit of Graham v. Counselman was a suit in chancery to subject the lands of B. F. Counselman to the satisfaction of the liens thereon. The bill set out the deed of trust to secure the appellee,-as a prior lien on the land, and the trustee and appellee were made parties defendants to the bill.

<p>Error to a judgment of the- Circuit Court of Eansemond county, rendered May 13, 1898, in an action of covenant, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Chancery Pleading—Final Decree.—A decree directing the sale of land to satisfy charges on it is not a final decree.</p> <p>2. Rescission—False Representations.—A false and fraudulent representation, knowingly made by a vendor, as r,o the possession and ownership of a part of a tract of land which the vendee would not have purchased except as a whole, is ground for rescission of the contract by a court of equity.</p> <p>3. Decrees eor Money—What Must State.—A decree for money should state the amount which the defendant is to pay, and the date from which it is to bear interest. It is not sufficient to direct that the plaintiffs recover “ the amounts of their respective notes and judgments, with interest thereon as separately and specifically set out in the bill.”</p> <p>4. Chancery Pleading—Answer as Gross Bill—Replication—Demurrer to Gross Bill—Appeal.—Where the trial court has, upon the prayer of a defendant, treated his answer (to which no replication has been filed) as a cross bill, and, subsequently, has erroneously sustained a demurrer to such cross bill, and treated the paper so filed as eliminated from the record for all purposes, this court, upon an appeal, although reversing the ruling on the demurrer, will not give the defendant-the relief to which he would have been entitled as upon an answer to which there was no replication, but will remand the cause to the trial court, with leave to the complainants to answer the cross bill, and set up their defence, if any they may have.</p>

<p>1. Evidence—Allegata and Probata.—Evidence of damages not laid in the declaration is incompetent.</p> <p>2. Evidence—Report of Commission Merchant—Hearsay.—In- an action against a common carrier to recover for loss on cattle delayed in transit, the testimony of the shipper .as to what his commission merchant reported as the amount of the sales of the cattle is hearsay. The amount of such sales should be shown by a witness who has positive knowledge of the transaction, and the defendant should have an opportunity to cross-examine the witness. °</p> <p>-3. Evidence — Hearsay—newspaper Quotations—Price Lists.—Market quotations published in a newspaper, and price lists furnished by commission merchants, and opinions based solely thereon, are alike hearsay, and cannot be received in evidence as proof of the prices actually paid for an article, in the absence of proof of the authority upon which such quotations and lists were made.</p> <p>4. ComroN Carriers—Injury to Stock—Presumption—Burden of Proof.— If a shipper contract to load and care for live stock at his risk, and the evidence tends to show that the cars were overloaded, and the stock neglected by the shipper, in an action by the shipper for injury to the stock he is not entitled to an instruction that injury to the stock in the custody of a common carrier for shipment raises a presumption of negligence against the carrier, and that the burden is on the carrier to show that the injury arose from a cause for which it is not responsible. Such instruction should be qualified by adding “ except such injury as results, or may have resulted, from the negligence of the shipper, or the inherent vice or propensity of the animal.”</p> <p>5. Instructions—Hvidence to Support.—An instruction should not be given when there is no evidence .which tends to support it.</p> <p>6. Common Carriers—■Limiting Liability—Section 1295 of Code— Damages.—Upon the terms and conditions set forth in section 1295 of the Code, a common carrier may limit its liability for freight to such damages as result from its negligence prior to delivery to its connecting carrier. When such contract has been made, it is for the jury to determine from the evidence, under proper instructions from the court, whether or not the damage or injury complained of occurred while the freight was in its possession or upon its line of road.</p> <p>7. Common Carriers—Claim for Damages—Notice—Waiver.—A stipulation in a hill of lading that a shipper shall, within five days after the arrival of stock, give notice to the freight claim agent of the carrier of any claim for damage to the stock will he deemed to he waived where the hill of lading is blank as to the name and location of such agent, and the location of his office, and the same is unknown to the shipper.</p>

<p>1. Constitutional Law—Capitation Tax—What May he Levied.—'The constitution limits the amount of capitation tax which may be levied annually by the State to one dollar, and by counties and corporations to fifty cents, for all purposes. The General Assembly has no power to authorize towns and subdivisions of counties and cities to levy a capitation tax. The corporations authorized to levy such tax are cities which have separate governments, and which are not taxed for county purposes.</p> <p>2. Constitutional Law—County School Tax.—Section 8, Article VIII., of the Constitution confers upon each county the right to levy a tax upon property for the public free schools which the General Assembly has no power to take from it.</p> <p>3. Constitutional Law—Act Void in Part.—If a part of an Act of Assembly is unconstitutional, that fact does not authorize the courts to declare the other provisions of the act void, unless they are so connected in subject-matter, depending on each other, operating for the same purpose, or otherwise so connected together in meaning that it cannot be presumed that the General Assembly would have enacted the one without the other.</p> <p>4. Constitutional Law—Act Void in Part—Case m Judgment.—If an Act of Assembly attempts to accomplish two or more objects, and is unconstitutional as to one, it may still be complete in all respects and valid as to the other; but if the purpose of the act is to accomplish a single object only, .and some of its provisions are void, the whole must fail unless the remainder of the act is sufficient to effect the object without the aid of that which is invalid. In the case in judgment the school district was given an increased power of taxation for district purposes in consideration of being exempt from taxation by the county for school purposes. The exemptions being void, the increased power of taxation is void also'.</p>

<p>1. Municipal Cobpobations—Injunctions—Irreparable Injury.—Courts of equity have jurisdiction to restrain the proceedings of municipal corporations which encroach upon private rights, and are productive of irreparable injury.</p> <p>2. Municipal Coepoeations—Police Powers—Nuisance.—In order to secure and promote the public health, safety, and convenience, municipal corporations are endowed with power to prevent and abate nuisances. This power, and its summary exercise, may be constitutionally conferred on municipal corporations, and they, may be authorized to act against that which comes within the legal definition of a nuisance, but such power conferred in general terms, cannot be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not such.</p> <p>3. Municipal Coepoeations—Nuisance—Destruction of Buildings.— When a building is a nuisance only because of the uses to which it is devoted, the building itself cannot be pulled down to stop the nuisance, but only the wrongful use can be stopped. The occupation of a building by disorderly and lewd persons, its filthy and unsightly condition, and the consequent injury to adjacent property, do not justify its destruction as a nuisance.</p>

<p>1. Mobtgage—Loan of Money—Talomg Title to Land—Knowledge of Others’ Rights—Purchase by Joint Owner for Redemption.—A son, having advanced for his father a sum of money to enable him to purchase a tract of land which had been sold under a deed of trust to secure a debt for which the father was primarily liable, and having taken a deed therefor in his own name, with full knowledge of the fact that a third party who had no notice or knowledge of the sale by the trustee owned an undivided one-half interest in the land, and that his father owned the other half and was primarily liable for the debt for which the land was sold, will be deemed to be a mortgagee of the land to the extent of the amount so advanced, for which sum the half interest of the father is first liable. The father will be deemed to be the real purchaser for the purpose of redemption, and the original rights of the third party will be restored, subject, however, to the lien of the son for the amount advanced by him.</p>

<p>Appeal from two decrees of the Circuit Court of the city of Portsmouth, pronounced September 28, 1897, and March 18, 1898, in a suit in chancery, wherein appellants were the complainants, and the appellees were the defendants.</p>

This suit was instituted by Emma Lee Yaughan, as executrix of Isaac ISTewton Yaughan, and in her own right, against the infant children of Isaac ISTewton Yaughan, for the sole purpose of having a construction of the will of said Yaughan.

<p>Appeal from a decree of the Circuit Court of ’Washington county, pronounced August 1, 1896, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p> <p>This suit was instituted in Wise county, but was afterwards removed, by consent, to the Circuit Court of Washington county, the Judge of the Circuit Court of Wise county being so situated as to render it improper for him to act. The charges of fraud against Patrick Hagan, which are set out at great length in the bill, relate to the manner in which he acquired title to the land in controversy, which land he subsequently conveyed to Hyndman, and which Hyndnran conveyed to the appellee, Virginia Coal and Iron Co. The other facts sufficiently appear in the opinion of the court.</p>

C. Wysor, Ex’or, v. M. S. Price and Others,” in which suit appellant filed a petition praying that the land received hy him in exchange with M. S. Price might he declared exempt from the lien of judgments against M. S. Price.

<p>1. Dedication to Public Use—Prior Deed of Trust—Rights of Trust Creditor wnd Purchaser Under Deed.—A purchaser of land, subject to prior deed of trust, cannot dedicate any portion of the land to a public road or street, to the prejudice of the rights of the trust creditor, or a purchaser under the deed of trust.</p> <p>2. Acknowledgments—Deputy Clerk.—Prior to the Act of February 10, 1890, a deputy clerk of a county court could take acknowledgments of deeds to be recorded in the office of his principal. He had power to discharge any of the duties of his principal unless otherwise provided by law, and this duty was not otherwise so provided.</p> <p>3. Dedication to Public Use—Character of Acts and Declarations Necessary.—The acts and declarations of a land owner, indicating an intention to dedicate land for the use and benefit of the public, must be unmistakable in their purpose, and decisive in their character, to have that effect. Such acts and declarations have not been shown in the case in judgment.</p>

<p>Appeal from a decree of the Oircuit Court of Wythe county, pronounced March 10, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of Roanoke county, rendered April 9, 1898, in several chancery suits heard together (see styles of suits 94 Va. 16), in most of which the appellants severally were the complainants, and the South Salem Land Co. was a defendant.</p>

Reese Vandyke died in May, 1889, having first made and published his last will and testament.

<p>1. Fraud—Deed of Trust—Participation of Creditor or Trustee.—Although a deed of trust to secure a creditor be made with intent to defraud other creditors of the grantor, it will not be set aside, in the absence of proof that either the trustee or the creditor secured was a party to the fraud. In the case in judgment such proof was not furnished.</p> <p>2. Fraud — Proof Required—Presumption—Subsequent Misconduct.—He who alleges fraud must, except in a particular class of cases, clearly and distinctly prove it. The law does not, as a rule, presume fraud, but innocence and fair dealing. If the bona fides of a transaction is fixed, the subsequent misconduct of the beneficiary cannot render it fraudulent.</p> <p>3. Chancery Pleading and Practice—Fraiíd—Husband and Wife— Service of Husband About Affairs of Wife.—On a bill filed by creditors of a husband to set aside a transaction between husband and wife on the ground of fraud, and to subject property conveyed, or its proceeds or profits, to the payment of the husband’s debts, the profits arising from the skill and labor of the husband in the conduct of business in the name of the wife cannot be subjected, as no such issue is presented by the pleadings. The bill in such case should show in what the fraud consisted. The fraud must be distinctly charged and clearly proved.</p> <p>4. Chancery Pleading—Amendments—Discretion of 'Trial Court—After-Discovered Facts.—Whether the amendment of a bill in chancery shall be allowed or not lies largely in the discretion of the trial court. If a complainant has knowledge of after-discovered matters before his case is heard, and delays offering an amended bill setting up such matters until after Ms case has been heard and decided on its merits, it is not error to refuse to permit him to amend his hill for the purpose of setting up such matters.</p>

<p>1. Conte act to Pubchase and Divide Chattels—Refusal to Divide— Action at Lena.—If two persons as individuals agree to purchase personal property jointly and divide it between them, and the property is purchased by one of them, who thereafter refuses to divide with the other, the latter may sue the former at law to recover damages for the breach of contract.</p> <p>2. Mabket Value op Goods—Evidence of Value—Presumption After Verdict.—In an action to recover the difference between the contract price and the market value of goods, if witnesses are allowed to testify, without objection, as to the value of the goods, it will be presumed that they meant the market value. It is too late after verdict to raise the objection that the market value has not been shown.</p> <p>3. Excessive Vebdict.—A verdict is not excessive which is not only supported by evidence in the cause, but is for a less sum than that fixed by some of the witnesses.</p> <p>4. Conteacts—Denial of Existence—Tender of Performance—Waiver.—If a party to a contract absolutely repudiates- it by denying its existence, the other party is excused from making any tender of performance on his part.</p> <p>5. Judicial and Goveenhental Sales—Agreements not to Bid.—Where property is to be sold at auction, and especially at a judicial sale or at a sale in the course of governmental administration, a secret combination and agreement amongst persons interested in bidding to refrain from bidding in order to prevent competition and to lower the selling price of the property is illegal. But it is not necessarily corrupt for two or more persons to agree that one of them shall purchase for their joint benefit property sold at a judicial or other public sale. Whether such a combination is lawful or otkerwise, depends upon the intention of the parties, and the effect of the arrangement as ascertained from the evidence in each particular case.</p>

<p>Appeal from two decrees of the Hustings Oourt of tlie city of Roanoke, pronounced, respectively, July 21, 1898, and March 2, 1899, in-a chancery suit, wherein the appellees were the complainants, and the appellants and another were the defendants.</p>

<p>1. Chancery Pi.eading—Cross-Bill—Its Purpose — New Matter — New Parties.—A cross-bill is intended to be in aid of the defence to the original suit, and may be filed either to obtain a discovery in aid of such defence, or relief for all parties touching the matter of that bill. It may be filed against the complainant, or one or more co-defendants, or both, in the original suit. It cannot introduce new and independent matter not set up as a defence in the original suit, unless it be matter which has arisen since its institution; nor can it add new parties, except perhaps where it appears from the pleadings and proof in the original suit that the presence of another party is necessary in order that the defence to the complainant’s demand may be complete, or a controversy between the defendants may be properly adjudicated. In the case in judgment, the cross-bill did not controvert complainant’s debt, but it introduced new and independent matter, existing when the original bill was filed, and added a new party who was a stranger to the objects of the original suit.</p> <p>2. Trusts and Trustees—Offering Lands as a Whole and in Parcels— Apportionment of Funds—Coparceners.—If one coparcener purchases the tract received by another in the partition, and contemporaneously with the deed to him gives a deed of trust thereon and on his original tract received in such partition to secure the purchase price, and also to secure other debts, upon a sale thereafter by the trustee where it appears that the tracts were offered first separately and then as a whole, and the latter offer was accepted, the price obtained should be apportioned between the two tracts in the same proportion, that the prices bore to each other when offered separately, and the value of the tract so purchased should be first applied to the payment of the purchase price thereof. It is error to divide the fund equally merely because the tracts are supposed to have been of equal value in the first instance.</p> <p>3. Appeal axd Ebeob—Amount in Gontrovei'sy.—If an assignment of error affects one person only whose debt is less than, $500, the appeal will be dismissed as to him as improvidently awarded.</p>

<p>Error to a judgment of the Circuit Court of Smyth county, rendered March 31, 1899, affirming the judgment of the County Court of said county, in a proceeding by motion to correct an erroneous assessment of lands, which motion was dismissed.</p>

This was a suit in chancery for the purpose of having partition of two tracts of land in Wise county, in which, the appellee James claimed an interest, which land was in the possession of the Mineral Development Company. The Mineral Development Company claimed to be the owner in fee of both tracts, and denied all interest or estate in J ames.

<p>Error to a judgment of the Circuit Court of the city of Roanoke, rendered December 20, 1898, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. -</p>

The object of this suit was to enjoin the appellees from continuing an encroachment upon a street of the appellant, and to compel them to widen the approach to an overhead bridge built by them, and also to widen the bridge to conform to the original width of the street as established by law before such encroachment.

Dillard and others, were the complainants, and the appellant and others were the defendants—one of the objects of the suit being a construction of the will of ETarcissa E. Dillard, deceased.

<p>1. Wills—Acknowledgment of Debt—Clmrches—Legacy—Statute of Limitations—D-rwncorporated Associations—Chancery Jurisdiction.—A testator by a codicil to his will declares “ I herein mention a debt of $600 I owe the Presbyterian church of Charlottesville, Va., and I wish it duly paid, without interest, out of my estate, to that church after my sister’s death.” The codicil is dated November 7, 1884. • The sister died in 1896, and a suit was brought by one member of the'church suing on behalf of himself and four hundred other members in 1898. There was no proof of the existence of such a debt except the statement of the codicil, and no evidence was offered against it.</p> <p> Held: </p> <p>1. Though a church cannot take as legatee under a will, this is not a legacy, but a debt, and the codicil alone is sufficient proof of its existence.</p> <p>2. The right of action did not accrue till the death of the sister, and hence is not barred by the statute of limitations.</p> <p>3. Though churches have no corporate • existence in this State, they are recognized as legal organizations capable of holding property, and may sue to recover what they may lawfully hold.</p> <p>4. The tsuit was properly brought in equity by one member of the congregation suing on behalf of himself and the other members.</p>

<p>Error to a judgment of the Circuit Court of Frederick county, rendered at its June term,' 1899, in an action of debt on an injunction bond, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>1. Appeal and Eeeob—Amount in Controversy—Joint Interest in a Judgment.—Where a judgment for $500 or more is assigned to two parties, to be divided between them, the sum in controversy in a suit to enforce the judgment is the amount of the judgment, though the interest of one of the parties, may be less than $500. Neither of the assignees has a claim founded on an independent contract which he has the right to enforce without regard to the other. In such case this court has jurisdiction of an appeal from a decree affecting the judgment.</p> <p>2. Statute of Limitations—Removal from the State.—The removal of a judgment debtor from the State is of itself an obstruction to a suit to enforce the judgment, and the statute of limitations does not run against the judgment while the debtor remains out of the State. FicMin v. Carrington, 31 Gratt. 219, approved.</p> <p>3. Statute of Limitations—Presumption of Payment—Laches.—The presumption of payment of a debt does not, as a matter of law, arise within the statutory period of limitation, though the lapse of time may be relied on, in connection with other circumstances, as evidence of payment, but the evidence in the case in judgment does not show that the debt has been paid, nor raise a presumption of its payment.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, • pronounced dune 3, 1898, in the chancery suit of Hite v. Hite.</p>

<p>Appeal from a decree of the Oireuit Court of Albemarle county, pronounced May 20, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Railroads—Sparlc, Arresters—Duty of Company.—It is incumbent upon a railroad company to avail itself of the best mechanical contrivances and inventions in known practical use for preventing the burning of private property by the escape of sparks and coals from its engines, and when it has done this it has performed its duty in this respect.</p> <p>2. Instructions—Read as a Whole—Error in Isolated Expressions.— While an instruction of the court to the jury should be clearly expressed, and the law clearly and distinctly stated, a verdict will not be set aside because some of the expressions standing alone might be regarded as erroneous or misleading, if the instruction taken as a whole presents the law fairly and correctly and in a manner not likely to mislead the jury.</p> <p>3. Railroads'—Fires—Adjacent Land Owners—Combustible Materials.— The owners of lands in the vicinity of a railroad are subject only to such risks as are necessarily incident to the proper and legitimate operation of the road by those having charge of it. The accumulation of combustible materials on the lands of the owner, in the orderly conduct of a legitimate business, if legitimate but for the existence of the railroad, is not per se negligence, and does not relieve the railroad company from liability for its own negligence.</p>

17, 1898, in a suit in chancery wherein the appellant was the complainant, and the appellee was the defendant. This was a suit for a divorce from the bond of matrimony. The complainant charged his wife with desertion and with adultery, both of which she positively and indignantly denied.

<p>Error to a judgment of tie Circuit Court of Culpeper county, rendered Marci 24, 1893, in an action of trespass on tie case wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Condemnation Proceedings—Public Roads—Damages—Report of Commissioners.—In a proceeding to condemn a right of way for a public road the report of the commissioners to assess damages to the land owner is to be taken as conclusive on the question of damages until it is shown to the satisfaction of the court to be incorrect.</p> <p>2. Condemnation Proceedings—View by Commissioners—Report of Commissioners—Weight Given to—Case at Bar.—In condemnation proceedings to acquire land for a public use the law lays great stress upon the matter of the view, and great weight is attached to the report of the commissioners to assess damages. In addition to other evidence they have the' evidence of their own senses, and it should he a very clear case of inadequate compensation to justify an interference by the court, on that account, with the finding of the commissioners. In the case at bar the evidence taken before the commissioners was returned with their report, and no oral evidence was introduced before the court. The evidence was conflicting, but was sufficient to justify the finding of the commissioners. It was proper, therefore, for the court to decline to disturb the finding of the commissioners.</p>

<p>1. Eastern State Hospital—Public Corporations—Personal Injury— negligence of Managers and Servants.—The Eastern State Hospital is a public, corporation, governed and controlled by the State, and acts exclusively as an agency of the State for the protection of society and the promotion of the best interests of a class of unfortunate citizens. Although, under the terms of its charter, it may sue and be sued, regard must be had to the objects for which it was established in order to determine its liability. It is not liable in damages for a personal injury inflicted on one of its inmates in consequence of the negligence or misconduct of the persons administering the powers of the corporation, or their agents or employees. Eastern Lunatic Asylum v. Garrett, 27 (5-ratt. 163, distinguished.</p>

<p>1. Taxation—Funds of Ward—Change of Residence of . Guardian and Ward After Qualification of Guardian.—Although a guardian qualify as such in one city of this State, and at that time he and his ward' reside there, and the funds "of the ward are held there, and the guardian settles all of his ew parte accounts before a commissioner of the court of that city, yet if the guardian and ward subsequently remove to another city of this State, and the funds of the ward are invested in the latter city, such funds are properly taxable in the latter city and not in the former.</p>

Hamilton and Others, in which suit a petition was filed by certain creditors of H. A. S. Hamilton, praying to have set aside an alleged assignment from said Hamilton to S. Brown Allen, and for other relief. Upon the hearing, a decree was pronounced in favor of petitioners, and adverse to the appellants.

The facts sufficiently appear in the opinion of the court, but the proceedings by which Thomas acquired title from the State do not.

There was pending in the Circuit'Court of Bath county a chancery suit, under the style of Glendye’s Adm’r v. Glendye’s Heirs. Under proceedings had in that cause certain lands were sold to Lewis Harman and Carter Berkeley, and the sale was reported to and confirmed by the Circuit Court of Bath county. Under the terms of sale one-half of the purchase money was to be paid in cash, and the other half in twelve months.

<p>1. Assignment foe Benefit of Ceeditoes—Reservations—Inconsistent Stipulations.—A deed of assignment for the benefit of creditors which reserves any benefit to the grantor himself, or which introduces limitations and contingencies such as will give him control of the property or its proceeds, so as to enable him, in effect, to defeat the conveyance, or which reserves to the grantor power to revoke it, or which stipulates for the maintenance of the grantor or his family, or for his employment at a fixed salary, is fraudulent. The deed in the case at bar is not obnoxious to any of these objections.</p> <p>2. Assignment foe the Benefit of Ceeditoes—Fraud per se—Discretion to Trustee to Sell in Course of Trade—Replenishing Stoelo.—A discretionary power vested in a trustee to run and operate the business for a year, if he deem it wise to do so, having in view the interest of the creditors secured, does not render void per se a deed of conveyance of a stock of goods. Nor is such deed rendered void by the further provision empowering the trustee to replenish the stock by cash purchases of such articles as will aid in keeping up1 the business, and disposing of the other stock to better advantage.</p> <p>3. Assignment foe Benefit of Ceeditoes—Employment of Debtor as Salesman.—A conveyance to a trustee of a stock of goods to secure creditors which authorizes the trustee to sell in the usual course of trade for a limited period, and to that end to employ clerks and salesmen, is not invalidated by the fact that the trustee employs the grantor as his chief salesman to dispose of the stock of goods.</p> <p>4. Assignment foe Benefit of Ceeditoes—Release Clamse—What Must he Conveyed.—If a debtor stipulates in his deed of assignment for a release from his debts by the creditors secured he must convey all, or substantially all, of his estate, or all of substantial value. He cannot convey a part only to pay his creditors, and keep back a part for himself.</p> <p>5. Assignment' foe Benefit of Cbeditobs—Release Clmse—Failure of Debtor to Deliver all Property Conveyed.—A deed of assignment for the benefit of creditors whereby the debtor conveys his entire estate, except such articles as are exempt by the poor debtor’s law, and which contains a release clause, is not invalidated by the failure of the debtor to turn over and deliver to the trustee, in pursuance of the terms of the deed, any property of any kind, except that exempt as aforesaid. The title to the property being vested in the trustee, with the right to immediate possession, he can recover it from the debtor or other person who withholds it.</p> <p>6. Acknowledgments — Certificate—Parol Evidence.—The acknowledgment of a deed, to entitle it to recordation, must be before the officers and according to the form prescribed by law; and the certificate thereof, in that form, or to that effect, must be written upon or annexed to the deed. The certificate must contain all the requisites of -such form, and no omission can be supplied by parol evidence. But a substantial compliance is all that is necessary.</p> <p>7. Acknowledgments—Case in Judgment—Certificate—Commissioner in Chancery.—In the case in judgment the certificate of acknowledgment of a deed was as follows; “ State of Virginia, City of Buena Vista, to-wit: I, T. F. Amolé, a Commissioner in Chancery for the city aforesaid, in the Stafe of Virginia, do certify that G. W. Leckie and E. M. Leckie, whose names are signed to the writing hereto annexed, bearing date on the 30th day of August, 1897, have acknowledged the same before me in my city aforesaid. * * * * Given under my hand this 30th day of August, 1897. T. F. Amolé, Commissioner in Chancery.”</p> <p>Held: The certificate is sufficient. As the city of Buena Vista had no Circuit Court at that time, the certificate could only mean that T. F. Amolé was a “ commissioner in chancery for the Corporation Court of the city of Buena Vista ”—an officer duly authorized to take such acknowledgment.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced June 12, 1899, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the ■defendants.</p>

<p>Error to a judgment of the Hustings Court of the city of Staunton, rendered April 7, 1899, in ttvo- motions for judgments heard together, by consent, in which the defendants in error respectively were the plaintiffs, and in each of which the plaintiff in error was the defendant.</p> <p>One of these motions was in the name of Robert Spotswood Berkeley against the plaintiff in error, on a policy for $1,000 on the life of E. B. Berkeley; and the other in the names of Erancis B. Berkeley and Edmund Carter Berkeley on a like policy for $2,000 on the same life. By agreement of the parties the two cases were heard together. The policies were in all respects similar except as to amounts, names of beneficiaries, and amount of premiums. The following is a copy of the policy for $2,000:</p> <p>(Eace of the Policy.)</p> <p>“ ÜSTo. Y. 820. ' Age, 59-54.</p> <p>“ The Rational Life Association,</p> <p>“ Hartford, Connecticut.</p> <p>“Amount $2,000. Premium, $12.50.</p> <p>“ In consideration of the representations, agreements, and warranties made by the insured herein named in his original application made to the Yalley Mutual Life Association of Staunton, Va., and upon which application said association issued its policy Ro. 820, and in further consideration of the acceptance of this policy, with the stipulations and conditions herein contained by said insured during his lifetime, and while in good health, evidenced by the payment of the first bi-monthly premium of $12.50, does hereby issue this policy of insurance to</p> <p>E. B. BERKELEY,</p> <p>“ of Staunton, County of Augusta, State of Yirginia, and conditioned upon this policy being so accepted, and its being continued in force by the further payment at the home office in Hartford, Conn., of bi-monthly premiums as hereinafter provided, the said Association, does hereby promise to pay the sum of two thousand dollars, less any indebtedness due the Association, within ninety days from receipt of satisfactory evidence (as required, upon blanks furnished) of a valid claim conditioned upon the death of the insured from any cause assumed under the terms of this contract to Francis B. Berkeley and Edmund Carter Berkeley (sons), if living, otherwise to the legal heirs or assigns of the insured, this policy being issued by said Association and accepted by the insured upon the express conditions and agreements hereinafter set forth and given on the succeeding pages hereof, and which are assented to as forming part of this contract.</p> <p> </p> <p>“ In witness whereof, the said Association has this 30th day of September, 1895, by its duly authorized officers executed this contract at the city of Hartford, State of Connecticut.</p> <p>“ D. S. FLETCHER, President.</p> <p>“ II. T. Bramah, Secretary.”</p> <p>(Inner Sheet of the Policy.)</p> <p>“ Conditions and Agreements.</p> <p>“ 1. This policy does not go into effect until it is accepted by the insured, subject to all its terms and conditions herein named, and the first bi-monthly premium herein named has actually been paid to said Association at Hartford, Conn., during the lifetime and good health of the said insured, and this policy is accepted by the said insured upon the express stipulation, agreement, and condition that the statements in his original application were true at the time they were made, and that he is now in sound health and free from any disease or habits tending to render him an unfit subject for insurance.</p> <p>“ 2. Entice that a premium is payable to the Association at the home office, Hartford, Conn., on or before 12 o’clock noon on the first week days of the months hereinafter specified is hereby accepted, and any further or other notice is expressly waived. And in the event that the holder of this policy does not receive a notice of the amount of premium which will be due on the days specified herein, an amount equal to the last premium paid shall be paid to the Association on or before the day due, as a condition precedent to the continuance of the policy in force. Eon-payment of premium on the dates fixed terminates the policy. Eotices given to the member while any payment that has fallen due hereon shall be unpaid, are to be understood as notices only to reinstate membership, and shall not be held to extend maturity of such unpaid payments, nor as waiving proof that the member is alive and in good health, proof of which, to the satisfaction of the Association, shall be tendered with all payments for reinstatement, when the policy may be reinstated at the option of the Association.</p> <p>“ 3. This policy is a bi-monthly contract, renewable at the - option of the insured, upon the payment on or before 12 o’clock noon of the first week day of the months of February, April, June, August, October, and December in each year, of such an amount, at current ages, proportioned according to tire table of graduated ratios given hereon—as shall be required for the maintenance of its contracts and the prompt payment of all audited claims and expenses. The expense charge to this policy after the first year shall be limited to three-fifths of one per cent, annually of its face value and the actual expenses incurred in protecting and investing the funds of the Association. This policy shall be charged with any unpaid portion of the gross premium of $1,110 which shall be considered and treated as deferred premium until fully extinguished by crediting it with the amount of all bi-monthly premiums paid, or until this policy becomes a claim, when the unpaid balance thereof shall become due, and, together with any other indebtedness of the parties interested, be deducted from any payment due under this policy. If at any time the proportion of funds credited to this policy shall not equal the reserve calculated for the term written according to the actuaries mortality table with interest at 4 per cent., then this policy may be charged with its share of such deficiency, which, at the option of the executive committee, shall be payable in cash, or be charged as additional interest bearing premium.</p> <p>“ 4. After this policy has been in continuous force for five full years, the Association will annually, in making premium calls, give the insured due credit for his proportionate share of divisible surplus to which this policy may be entitled in reduction of such premium calls. After this policy has been in continuous force for five'full years, and while in force, it may be surrendered for paid-up insurance for such an amount as the surplus then standing to its credit will purchase as a single premium at the Association’s then rate for such insurance. After it has been in continuous force for ten full years, and while in force, it may be surrendered for cash for seventy-five per cent., of the reserve or surplus then standing to its credit.</p> <p>“ 5. Death in consequence of being engaged in mining, blasting, wrecking, sub-marine operations, railroad or steamboat service, as engineer, fireman or brakeman, or in the production, use, custody, or transportation of highly inflammable or explosive substances; the use of alcoholic stimulants to excess; habitual use of opium or narcotics; death at the hands of justice, or by the insured’s own hand, whether sane or insane, or in consequence of a duel, is not a risk assumed under this contract. If during the lifetime of the insured reliable information shall be received by the Association that any of the terms of this contract have been violated, or that any of the warranties or agreements herein contained are untrue, the Association may notify the insured by registered letter of such information, and if the insured shall fail within thirty days from receipt of such notice to disprove the truth of such information, the same shall be deemed admitted, and this policy shall become null and void. No action shall be maintained, nor recovery had, for any claim upon or by virtue of this policy, after the lapse of one year from the death of the insured.</p> <p>“ 6. The insured may travel or reside in any civilized portion of the world at the time free from war or epidemics; but should death result from being or having been engaged in military or naval service in time of war, or from having changed his occupation to one more hazardous than that named in application, without having first obtained the written consent of the president or secretary permitting such increased hazard; then the amount payable in full satisfaction of this contract shall be from sixty to ninety per cent, of the sum otherwise payable, to be determined by the executive committee, according to1 the nature of the hazardous circumstances causing death.</p> <p>“ 7. Agents are not authorized to waive any provision of this contract, and no payment of premium to an agent shall be binding upon the Association unless such agent shall have first been furnished with a receipt therefor signed by the secretary or other executive officer of the association. And no alteration of any of the provisions of this contract shall be binding unless same be first reduced to writing and assented to- and signed by the president or secretary.</p> <p>“ 8. Table of graduated ratios: Batios above 65 will be fixed by the home office in accordance with mortality tables:</p> <p>Age. Eatio. Age. Eatio. Age. Eatio.</p> <p>25 $1 00 36 $1 29 47 $1 82</p> <p>26 1 02 27 1 04 37 1 33 38 '1 37 48 1 88 49 1 84</p> <p>28 1 06 39 1 41 50 2 00</p> <p>29 1 08 40 ■ 1 45 51 2 10</p> <p>Age. Ratio. Age. Ratio. Age. Ratio.</p> <p>30 1 10 41 . 1 50 52 2 20</p> <p>31 1 13 42 1 55 53 2 35</p> <p>32 1 16 43 1 60 54 2 50</p> <p>33 1 20 44 1 65 55 2 YO</p> <p>34 1 22 45 1 Y0 56 2 90</p> <p>35 1 25 46 1 Y6 5Y 3 15</p> <p>58 3 40 61 4 30 64 5 50</p> <p>59 3 Y0 62 4 60 65 6 00</p> <p>.60 4 00 63 5 00</p> <p>(Endorsement of Policy.)</p> <p>“Always give number of policy in writing tbe office.”</p> <p>No. 820.</p> <p>National Life Association of</p> <p>Hartford, Conn., H. S. A. Policy of Insurance on the Life of E. B. Berkeley.</p> <p>Amt., $2,000. Prem., $12.50.</p> <p>Plan—Bi-Monthly Payment.</p> <p>Date—September 30, 1895.</p> <p>Premium Payable •</p> <p>............ Payments of $....................</p> <p>On..........................................</p> <p>......................................... .Agent.</p> <p>(Copyright in ’8Y, ’92, ’93, ’94, and ’95 by D. S. Eletcher.) Form Ba 2.</p> <p>Ed. 8, ’95.</p> <p>The figures “ $1,100 ” on the inner sheet of the policy were written with pen and ink. All of the residue of the inner sheet, except the words “ Conditions and Agreements ” was printed in type smaller than “ long primer.”</p>

<p>Appeal from two decrees of the Circuit Court of Rockingham county, pronounced November 1, 1897, and April 13, 1898, respectively, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

The plaintiffs in error sued out a writ of fieri facias 'against the Hobbie Piano Company which was levied on certain personal property found in its possession. This property was claimed by various persons.

<p>Error to a judgment of the Circuit Court of Page county, rendered May 7, 1898, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. False Repbesentations—Matter of Fact.—The representation by the vendor of a patent right that he has been offered a given sum for it is the statement of a material fact, as the chief element of its value is the readiness with which it may be sold.</p> <p>2. False Repbesentations—Set-Offs—See. 8299 of Code—Rescission.— In an action on notes given for a patent right, if the defendant claims that he has been damaged by fraud or misrepresentation in the procurement of the notes, he may file a special plea under section 3299 of the Code, and" have set off against the plaintiff’s demand the amount of damages sustained by him in consequence of such fraud and misrepresentation. This does not require a rescission of the contract in suit and a reinvestment of the vendor with the title.</p> <p>3. Pleading—Plea Under Sec. 3299 of Code—Scienter.—A plea under Sec. 3299 is sufficient which avers that the statements of facts were falsely and fraudulently made for the purpose of procuring the contract; that they were material; that they were untrue; and that the defendant to whom they were made relied upon them, and was by them induced to enter into the contract.</p> <p>4. Contbacts—Fraud in Procurement—Ratification.—The renewal of notes after knowledge of fraud in the procurement of the original notes will not be deemed a ratification of the original transaction where it satisfactorily appears that the maker did not thereby intend to waive his defence or ratify the transaction, in consequence of an understanding with the holder that, in a certain contingency, he would surrender them.</p>

<p>1. Marriage—How Proved—Reputation, Declarations, and Conduct— Presumption.—Marriage may be proved in civil cases, other than actions for seduction, by reputation, declarations, and the conduct of the parties. But, to raise the presumption of marriage, the reputation must be founded on general, not divided or singular, opinion; and, where the declarations of the parties are relied on, the circumstances under which they are made must determine their value.</p> <p>2. Marriage—Proof—Conduct of Parties—Presumption.—In the interest of morality and decency the law presumes marriage between a man and woman when they live together ostensibly as man and wife, demeaning themselves towards each other as such, and are received into society and treated by their friends and relatives as having and being entitled to that status. But cohabitation and repute do not constitute marriage. They are only evidence tending to raise a presumption of marriage, and, like other presumptions of fact, may be overcome by countervailing evidence.</p> <p>3. Marriage—Declarations and Repute Contemporaneous With Conduct.— The declarations of parties and ■ other attendant circumstances of cohabitation, all which are admissible as parts of the res gestae to prove marriage, must, together with the repute originating therefrom, be contemperaneous with the intercourse, and not subsequent.</p> <p>4. Marriage—Matrimonial Cohabitation—Presumption.—The presumption of marriage from cohabitation apparently matrimonial is very strong, especially where legitimacy is involved; and this presumption can only be overcome by cogent and satisfactory proof. But to raise this presumption the cohabitation must appear to be a matrimonial cohabitation. Mere cohabitation is not sufficient. It must be attended with such conduct asj would justify the repute of the marriage.</p> <p>5. Mabuiagk—Particular Timo and Place—Presumption as to Other Time and Place.—If. a party undertakes to establish, a marriage between a man and woman at one time and place, he cannot rely upon other facts and circumstances to raise a presumption of marriage at some other time and place.</p>

31, 1899, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.

<p>1. Wills — Disappearance—Revocation—Presumption—Burden of Proof.— Where it appears that a person has made a will which cannot he found after his death, the prima facie presumption is that he destroyed it, ammo revocando, and the burden of showing some other cause for its disappearance is on those who seek to establish it.</p> <p>2. Appeal and Error—Objection to Evidence for First Time.—The question of the admissibility of the declarations of a testator as to the existence or the revocation of his will cannot be raised for the first time in this court.</p> <p>3. Wills—Disappearance—Declarations of Testator.—The declarations of a testator after he has made his will, as to its continued existence or destruction, where it cannot be found after his death, if admissible at all, are deemed of great 'weight when voluntarily made to disinterested persons.</p> <p>4. Wills—Oapaeity—Evidence — Physicians.—Physicians, and especially family physicians, occupy a high grade on. the question of testamentary capacity.</p> <p>5. Wills—Destruction—Capacity of Testator—Evidence—Lost Papers.— In a suit to set up a will which has been destroyed, it is not sufficient to show that it may have been in existence after the testator lost capacity to revoke it, but it must appear that it was in existence after that date. Courts of equity do not set up lost papers except where it is clearly shown that it should be done.</p>

<p>Error to a judgment of the Circuit Court of Buckingham county, rendered October 29, 1897, in an action of debt wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Error to, two judgments of the Circuit Court of Augusta county, rendered May 24, 1898, and November 14, 1898, respectively, 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. Judicial Sales—Misappropriation of Funds—Who to Bean- Loss— Priorities Among Creditors.—As- between debtor, creditor, and purchaser in a judicial proceeding to subject land to the payment of liens thereon, the loss resulting from the defalcation of a receiver of the court must fall on the creditor; and, as between different classes of creditors, it must be borne in the inverse order of their respective priorities.</p> <p>2. Judicial Sales—Misappropriation of Funds—Priorities Among Creditors—Who to Bear Loss.—If, in a suit to subject a debtor’s lands to the payment of the liens thereon, the proceeds of the sale of a part of the land be lost in consequence of the defalcation of the receiver of the court, the proceeds of the residue of the lands will be appropriated to the senior creditors in preference to the junior, in the absence of fault on the part of the senior creditors, although the lost fund was sufficient to pay the senior creditors, and the junior creditors were the purchasers of the residue of the land, and it was the purpose of the court to credit their purchase on their debt if the money realized from the other lands was sufficient to pay the senior creditors. No part of the fund could be appropriated to the payment of the junior creditors until the senior creditors had been paid in full.</p>

The testator, in his life-time, had conveyed certain real estate in the city of Richmond to different parties, reserving perpetual ground rents amounting to $8,100; but providing that the-grantees after a specified time might redeem the land from the ground rents by paying different sums, aggregating $135,000.

<p>1. Process—Return—What Sufficient.—A return on a writ or process is the short official statement of the officer endorsed thereon of what he has done in obedience to the mandate of the writ, or why he has done nothing. He may hare been prevented from obeying the mandate of the writ by an injunction, or by a supersedeas, or by the order of the plaintiff or his attorney. A return of any of these facts endorsed on the writ is a sufficient return.</p> <p>.2. Fieri Facias—Control of Beneficial Plaintiff—Sheriff Bis Agent.— In executing a writ of fieri facias the sheriff is the agent of the beneficial plaintiff,' and he and his attorney have the right to control the execution of the writ, and to say whether the sheriff shall levy it, or return it without doing so.</p> <p>3. Process—Return—Presumption as to Bate.—In the absence of a date, or other evidence showing when the return of an officer on a writ was made, it is presumed to have been made at a time when he had the right to make it, and in due time, as the prima facie presumption is that the officer has done his duty.</p> <p>4. Fieri Facjas—Retip-n After Return Bap.—The validity of the return of an officer on a writ of fieri facias is not affected by the fact that the writ is not returned to the office till after the return day thereof. The record is incomplete till the writ is returned, but when returned, the return becomes competent evidence of the facts therein stated, and the parties are entitled to the benefit of their legal effect.</p> <p>5. Fieri Facias—Return—Conclusiveness—Return Bap—Enforcing Return by Officer.—A return upon an execution which the officer has the right to make is conclusive between the parties, and they are interested to have the officer make his return and file the writ with the proper custodian. But neither of the parties can be deprived of the -benefit of the return by the failure of the officer to make it at the return day of the writ. The officer may be thereafter compelled to make Ms return by process of contempt, or by proceeding to enforce the forfeitures and penalties prescribed by law.</p> <p>■6. Judgments—Abatement of Interest—Creditor Within Enemy’s Lines.— After judgment for principal and interest of a debt, courts are without power to abate the interest on the debt for any time on the ground that the creditor was within the lines of the enemy.</p>

<p>Error to a judgment of tlie Circuit Court of Nansemond county, rendered November 9, 1898, in an- action of 'trespass on the case wherein the plaintiff in error was the plaintiff, and the defendants in error, who were doing business under the name of B. G. Dennis Lumber Company, were the defendants</p>

<p>'1. “Act oe God ”—What is Comprehended—“ Illness."—All misfortunes and accidents arising from inevitable necessity, which human prudence could not foresee or prevent, including “ illness,” are comprehended under the expression “ Act of God.”</p> <p>.2. Contracts—Impossibility of Performance—“Act of God."—If the performance of any contract is rendered impossible by the act of God alone, such fact furnishes a valid excuse for its non-performance, and such provision inheres in every contract.</p> <p>.3. Marriage—Breach of Promise—Conditions Implied in Contract— Change of Health.—A contract to marry is coupled with the implied condition that both parties remain in the enjoyment of life and health, and if the condition of the parties has so changed that the marriage state would endanger the life or health of either, a .breach of the contract is excusable.</p>

<p>Appeal from a decree of the Circuit Court of Madison county, pronounced November 12, 1897, in a suit in chancery, wherein the appellant and another were the complainants, and the appellee was the defendant.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered June 7, 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. The object of the motion was to recover the difference between sixty per cent, of a debt which it is alleged the defendant in error agreed to pay, and the amount of a dividend of forty per cent, on said debt, paid in the chancery suit mentioned in the opinion of the court.</p>

<p>Appeal from three decrees of the Circuit Court of Essex county, pronounced, respectively, September 5, 1896; September 2, 1897, and IVIarch 7, 1898, in a suit in chancery, wherein the appellee was the complainant, and the appellant and another were the defendants.</p>

<p>1. Contributory Negligence—Known Dangers.—It is the duty of one who is exposed to a known danger, although he may not know the full extent of it, to use ordinary car-e to protect himself from any injury whatever, and he is guilty of contributory negligence if he is the author of any part of the injury resulting from his failure to exercise such care, or if, by the exercise of such care, he could have avoided the consequences of negligence ascribed to another.</p> <p>2. Instructions—Evidence to Support.—It is error to give an instruction when there are no facts in the case to which it can be applied.</p> <p>3. Contributory Negligence — Brakeman—Overhead Wires—Avoiding Known Danger.—Although it may be negligence in an electric company to permit its wires over a railroad track to hang so low as to interfere with brakemen standing on tops of the cars of the railroad company, yet if a brakeman, well knowing the position of such wires, and without such urgent and imperative necessity as to justify unusual risks, attempts to pass from the top of one car to another while passing under such wire, he is guilty of such contributory negligence as will preclude a recovery from the electric company.</p>

<p>Error to judgments of tlie Circuit Court of tire city of Kichmond, rendered September 16, 1898, in action of assumpsit, with, foreign attachments, wherein the plaintiffs in error, respectively, were the plaintiffs, and the defendants in error were the defendants.</p>

<p>Error to a judgment of the Circuit Court of the city of Williamsburg and the county of James City, rendered November 15, 1898, 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 Norfolk city, pronounced December 16, 1898, in a suit in chancery brought by the appellee against the appellant and another, for the purpose of having declared void certain local assessments for street improvements made by the council of said city, and to enjoin the city from collecting the same.</p>

<p>1. Pleading—General Issue—Special Pleas.—Special pleas which set up no defence except such as may be made under the general issue are bad, and should be rejected.</p> <p>2. Joint Stock Companies1—Subscription of Minimum, Capital.—Where the minimum capital of a joint stock company has been in good faith subscribed, the subsequent inability of the company to collect calls on some of the subscribers constitutes no defence to an action brought by the company against another subscriber on his contract of subscription.</p> <p>3. Joint Stock Companies—Minimum Capital—Payment of Assessments.—It is essential to the organization of a joint stock company that the minimum capital should have been subscribed in good faith; or, if not subscribed in good faith, subscribed under conditions which estop the subscriber from denying his subscription, but it is not necessary that there should have been actual payment of an assessment.</p> <p>4. Stock Subscriptions—Fraud, in Procurement—Action by Company.— A subscription to stock of a joint stock company procured by fraudulent representations is voidable at the election of the subscriber on discovery of the fraud, and such fraud is a good defence to an action by the company on the subscription unless the contract has been subsequently ratified by the subscriber.</p> <p>5. Stockholders—Notice of Charter and By-Laws.—A stockholder is bound at his peril to take notice of the charter and by-laws of the company of which he is a member. If he pays any instalment on his stock, or participates in any meetings of the stockholders ■ after the charter is obtained, he is estopped to deny knowledge of its terms and provisions, however much it may vary from his contract of subscription.</p> <p>6. Instructions—Evidence to Support.—Instructions which correctly propound the law should be given when there is evidence which tends to support them.</p> <p>7. Contracts—False Representations—Independent Inquiry—Means of Knowledge—Opportunity to Investigate.—Although the guilty party to a contract obtained by false representations cannot rely upon the fact that the party defrauded might have learned the truth by proper inquiry, yet if the party defrauded institutes inquiry for himself, and ascertains the truth, or if the means of knowledge are pointed out to him and an opportunity is given to make the necessary investigation, and he thereby acquires some information concerning the actual facts, he cannot rely upon the falsity of such representations.</p> <p>8. Contracts — Fraud in Procurement—Disaffirmance—Promptness.—A contract obtained by fraud is not void, but voidable only, and to be relieved of its consequences, the party defrauded must promptly disaffirm it on learning of the fraud. If he continues to act as if the contract were still subsisting, after knowledge of the fraud, he will be deemed to have waived objection on that account.</p> <p>9. Contracts—Fraud—Disaffirmance—Delay—Injury to Guilty Party.— The duty to promptly disaffirm a fraudulent transaction is not dependent upon proof of injury, by the delay, to the other party.</p> <p>10. Contracts — Fraud—Acquiescence—Promise to Fxpurgate Fraud.— Acts of acquiescence or disaffirmance of a contract obtained by fraud do not take away from the innocent party the right to dis-affirm, if they were induced by a reasonable expectation on his part that the fraud of which he complained would be expurgated, or an arrangement satisfactory to him made by the other party.</p>

of Henry county, rendered Hovember 14, 1898, on an indictment against plaintiff in error for attempt to commit rape. 'There was a demurrer to the indictment, which was overruled, and thereupon the prisoner pleaded not guilty. Ho objection was made to the form of the indictment in this court.

<p>1. Statutes—Repeal by Implication.—The repeal of a statute by implication is not favored, and the presumption is always against the intention to repeal where express terms are not used, or the later statute does not amend the former. Usually the two statutes must be irreconcilable to justify the presumption of an intention to repeal one by the other, and even then the later statute repeals the former only to the extent that the two are repugnant. But where the later statute embraces the whole subject of the former, and is plainly substituted for all former statutes on the subject, the former will be deemed to be repealed.</p> <p>2. Oysters:—Dredging—Omission to Fix Penalty to a Forbidden Act.— Dredging on private oyster grounds is not a criminal offence, and has not been since March 3, 1898. While such dredging is prohibited, no punishment is prescribed for doing it, nor is it declared to be a criminal offence.</p>

<p>Error to a judgment of the Circuit Court of Pulaski county, rendered at its March term, 1899, on a writ of error to a judgment of the County Court of said county, whereby the plaintiff in error was adjudged to be guilty of murder of the second degree and sentenced to confinement in the penitentiary for seven years.</p>

<p>Error to a judgment of the Circuit Court of Augusta county, rendered April 5, 1899, affirming the judgment of the County Court of said county, hy -which the plaintiff in error was sentenced to the penitentiary for five years, for felonious seduction.</p>

<p>1. Contempt—Conflicting Engagements of an Attorney—Case at Bar.—The failure of an attorney in a cause to attend court at the time of trial previously fixed with his consent is not a contempt of court where it appears that he subsequently accepted a retainer, and entered upon the trial of another cause with every reasonable expectation of being able to complete it before the time fixed for the hearing of the first cause, and, finding this impossible, notified the court of the facts, and disclosed a courteous and respectful consideration for the court.</p> <p>Error to a judgment of the County Court of Henrico- county, rendered December 12, 1898, in a proceeding for contempt—the Circuit Court of said county having refused a writ of error to said judgment.</p>

<p>1. Criminal Law—Evidence Necessary to Convict—Reasonable Doubt— Suspicion.—To warrant the conviction of a person .accused of crime every fact necessary to establish his guilt must be proved beyond a reasonable doubt; and especially so where the evidence is wholly circumstantial. The accused is entitled to an acquittal unless his guilt is proved to the actual exclusion of every reasonable hypothesis of his innocence. In the case at bar the evidence establishes only a suspicion of guilt, which is not sufficient.</p>

<p>1. Criminal Law—Burglary—Case at Bar—Evidence Insufficient.—The evidence m the case at bar is insufficient to convict the plaintiff in error of burglary. The footprints found are not shown to have been » hers. A two-dollar bill found in her possession the next day, and about which she made conflicting statements, is not identified as the same note stolen when the house was entered, and other articles found in her possession, belonging to inmates in the house in which she had been a servant, are not shown to have been in the house when entered. Although she knew where the owner of the house kept his money, and also the tools with which the house was broken, all of the employees about the house had the same knowledge.</p>

The evidence sufficiently appears in the opinion of the court. On the trial, the prisoner asked for two instructions, which were refused by the court, and, in lieu thereof three others were given. The instructions asked for by the prisoner and those given by the court were as follows: Instructions asked for by the prisoner: “ 1.

v. Stuart’s Ex’or and Others, in which the appellee asserted certain judgments against appellant. Held: among other things, that there was due from each of the original stockholders of said Greenbrier White Sulphur Springs Co. on account of his subscription to the stock of said company the following amounts, viz: Prom William A. Stuart..............$18,937.08 Prom George L. Peyton............... 18,937.08 Prom J. 1ST.…