Volume 98 — Virginia Reports

<p>Error to a judgment of the Law and Equity Oourt of the city of Richmond, rendered December 30, 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>Appeal from a decree of the Corporation Court of the city of Lynchburg, pronounced June 16, 1898, in a suit in chancery_ wherein the appellee was the complainant, and the appellant and another were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of the city of Danville, pronounced at its Flay term, 1898, in a suit in chancery, wherein the appellees were the complainants, and the appellants were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Henrico county rendered December 13, 1897, 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>

Morien, was the complainant, and the appellant, R. R. Florance, trustee, and others were the.defendants.

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered Eebruary 3, 1898, in a proceeding by motion for a judgment, wherein the plaintiffs in error were the plaintiffs, and the defendants in error were the defendants.</p>

<p>1. Taxes—Liens—Life Tenant and Remainderman—Levies try Richmond City.—Taxes and levies, whether assessed by the State or the city of Richmond, which accrue during the estate of a tenant for life, are liens on the estate of the life tenant only, and not on the estate of the remainderman, and cannot be enforced against the latter.</p>

<p>1. MASTER AND SERVANT-Safe Ap~lianee$-Ordinary Ua're.-It is the duty of the master to use ordinary care—that is, such care as reasonable and prudent men use under like circumstances—in providing reasonably safe and suitable appliances and instrumentalities for the work to be done. He is not bound to use the newest and best appliances, nor is he an insurer of the- safety of the servant. He is liable for the consequences, not of danger, but of negligence.</p> <p>2. MASTE~R AND SErwANT-Defect~ve Maeltinerij-Obtious Defects-KnowZ~ edge of Servant.—A servant cannot recover of the master damages for an injury resulting from the use of defective machinery and appliances where the defect is open and obvious, well known to the servant, and he with such knowledge continues to use such machinery and appliances for a long period of time without notice to the master or objection of any kind.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered July 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>

<p>1. CONTRACT ron SALE OF JA~ns RIVER AND KANAWHA CANAL-Act Autlioriroing Ba~me-S~nbsequcat Tort by Pohaser-JErisdictiom.-Sections 3 and 4 of the act approved February 27, 1879 (Acts 1878-9, page 119), relating to the sale of the property of the James River and Kanawha Canal Company to the Richmond and Alleghany Railroad Company, were intended to cover actions to enforce the contract authorized by said act for the transfer of the property of the former company to the latter, brought by parties to the contract, or persons directly interested in its enforcement, and has no relation to torts thereafter inflicted by the purchaser of the property, or its successors. There ~is nothing in said act to deprive local courts of jurisdiction over suits for such torts committed within their territorial limits.</p> <p>~. t~EIDGE-oo14gattoa to Mai'atai'n-Uase at Bar.-Tlae obligation tC maintain and keep in repair the bridge mentioned in the cleclaratior in this cause arises out of the interference by the James River and Kanawha Canal Company with the highway, and is not a conditioi~ on which the franchises were granted that company, and hence h a continuing obligation on the successors of that company so loni as such interference continues.</p> <p>3. BmDms IN HIGHWAY-Private Beneftt-Obligc&tiom to Maimtwi~i.-Wiiere a bridge in a public highway is rendered necessary by the private use of the highway, and it is built for private benefit, no presumption of acceptance of it by the public, to be maintained at public expense, arises from its free and open use by the public.</p> <p>4. NuGLTGuNcu-Fast R'iding Over Briclge.-Riding over a bridge faster than a walk, though unlawful, is not negligence ver Se. Whether or not the gait or speed was, in the particular case, negligence, and, if so, whether it contributed to the injury received on the bridge, are questions for the jury. -</p> <p>5. NEGLIGENCE-Bta~Ut68 Against Fast R~di~g on, Bri4ge-~tat~tes En,acted for Public Safety.—The statute prohibiting persons from riding over a bridge faster than a walk was enacted for the preservation of bridges, and, on questions of negligence, stands on a different footing from statutes enacted for the public safety.</p> <p>■6. Negligence—Violation of Lams—Effect on Act.—It is not contributory negligence per se for the injured party at the time of the injury to be engaged in a violation of law. Such violation does not put him out of the protection of the law, nor at the mercy of others. But if such violation contributed to his injury, he cannot recover therefor.</p> <p>7. Negligence—Proximate Cause.—Negligence, no matter of what it consists, cannot create a cause of action unless it is the proximate cause of the injury complained of. The two must concur.</p> <p>8. Instructions—Misleading or Confusing.—An instruction should not be given which tends to mislead or confuse the jury, or which is contradictory of an instruction already given.</p>

<p>1. TAxATxoN-Uorporations-~took1wlders.-A corporation is a legal entity wholly distinct from its stockholders, and its capital stock, franchises, and assets may be taxed, and `at the same tinie a tax may be laid upon the shares of stock in the hands of the individual holders thereof. The stockholders are individually distinct from the corporation, though the aggregate of all the shares constitutes the company, and represents its franchise, capital, and property.</p> <p>2. TAx.a~TxoN-~hares i~ No~i-Res'ident IJorporations.-A certificate of stock in. a non-resident corporation. doing business wholly out of this State is no part of the "capital of a business done out of the State," within the meaning of section. 8, chapter 342, Acts 1897-'8, page 386, and the same is ta~ab1e under said act.</p> <p>.3. TAxATIoN-~7~res i~ Donvestic Corporations.-A certificate of stock in a resident corporation doing business wholly in this State constitutes no part of "the capital used by any merchant or inanufacturer" in his business, within the meaning of section 8, chapter 342, Acts 1897-'8, page 386, and the same is taxable under said act.</p>

<p>1. Appeal and Error—Roads—Injunction—Condemnation Proceedings.— Whether or not an act of Assembly authorizing the establishment of public roads, and which allows appeals to this court on questions of law only, is constitutional, does not arise on an appeal from a decree dissolving an injunction to proceedings under the act, as it is not an appeal from any judgment pronounced in condemnation proceedings under the act.</p> <p>2. Eminent Domain—Where Resident—How Exercised—Restraints—“Due Process”—Acts 1897- S, page 97.—The right of eminent domain is incident to sovereignty. It is resident in the Legislature, which may o exercise it either directly or through such agencies as it may select. The only constitutional restraint upon its exercise is that just compensation shall be made. Its exercise within this limitation is itself “due process of law.” The time, manner, and occasion of its exercise, directly or indirectly, within the limitation stated, is within the legislative discretion. The act of Assembly enacting a special road law for Pulaski county (Acts 1897-’8, page 97) does not authorize the taking of private property without “due process of law,” and is not unconstitutional on that ground.</p> <p>3. Eminent Domain—Delegation of Power—Strictly Construed—Case in Judgment—Road Law.—Acts conferring the power to exercise the right of eminent domain are to be construed strictly, and the manner of executing the authority conferred must be carefully observed and followed. In the case in judgment, involving the execution of the special road law for Pulaski county, this has not been done. The supervisors of the county are ex-officio members of the road commission, and no further qualification of them is required, but the road commission which established the road was not constituted as required by the act. A part of the commission from Pulaski District being disqualified, the whole commission, and not merely a part thereof, should have been taken from an adjacent district.</p>

<p>1. Constitutional Law—When and Bow Constitutionality Raised.—Tlie unconstitutionality of a law or an ordinance of a municipal corporation need not he specially pleaded. The question may he raised hy a general demurrer in the trial court, and the error assigned for the first time in this court.</p> <p>2. Appeal and Error—Jurisdiction—Bow Shown—Constitutional Law.— The jurisdiction of this court must affirmatively appear from the record, hut it does so appear when the court can see that the judgment of the lower court necessarily involved the constitutionality of some statute or ordinance, or drew in question some right under the Federal or State Constitution. Any proceeding which necessarily puts their validity in issue, whether it he hy demurrer, plea, instruction, or otherwise; is sufficient to give this court jurisdiction of the case.</p> <p>3. Constitutional Law—Interstate Commerce—Broker—License Tax.—A resident of this State who solicits orders for the sale of goods by sample, solely for non-resident owners, and who forwards such orders and receives a commission for the sales negotiated hy him, is a broker engaged in interstate commerce, and neither the State ■ nor any municipal corporation can impose a license tax on him for such business. Congress alone can regulate such commerce, and the silence of Congress on the subject is equivalent to a declaration that such commerce shall he absolutely free. A license tax on such broker is not a police regulation, hut a revenue measure, and imposes an unlawful burden on interstate commerce.</p>

<p>Error to a judgment of the Hustings Court of the city of Richmond, rendered December 9, 1898, in a condemnation proceeding, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>1. Mabbied Women—Contracts—Separate Estate—Pleading.—A married woman is now, as at common law, incapable of making a contract, unless she owns some separate estate at the time the contract is made, and a declaration which fails to aver such ownership is bad on demurrer.</p>

<p>Appeal from several decrees of the Circuit Court of Culpeper county, pronounced in a suit in chancery, wherein the appellee, Griffin’s administrator, was the complainant, and the appellant and others were the defendants.</p>

<p>1. MaitnlEn Wo~rEN-Commom Law Land.s-Eccecutory Uontracts.-Prior to the "Married Women's Act," a married woman was without power to contract to sell her lands, and such contract cannot be enforced by a court of eQuity.</p> <p>2. SusBonATIon-Voluisteers-Papmemt of Vendor's Lienr-Cose in Judgment-The doctrine of subrogation does not depend on the contractual relations of the parties to be affected, but is broad enough to include every lustance in which one party who is not a volunteer pays a debt for which another is primarily liable, and which, in equity and good conscience, should be discharged by the latter. In the case in judgment, the party primarily liable was a married womau, without power to contract, but the payment was of a debt which was a vendor's lien on land conveyed to her, and was made by one who purchased a part of the land from one having no authority to sell, but who paid the purchase price to the holder of the lien. Under these circumstances, he is entitled to be subrogated to the rights of the holder of the lieu, at least to tbe part of the land so purchased.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced January 16, 1899, in a suit in chancery, wherein the appellee was the complainant, and the appellant and her husband were the defendants.</p>

<p>1. STATUTxs-Local-General-Repeal ot One by Another.-The passage of a local statute, expressly applicable to only one county of the State, in no way repeals, supersedes or affects an existing general law in the same words as the local law, except that it is applicable to all the counties of the State.</p> <p>2. Fnwcxs-Uommon Law Rule-Virginia Rule-"No Fence Law."-The rule of the common law which requires the owner of animals to keep them on his own land or within enclosures is not in force in this State, except in those counties where the board of supervisors have adopted the ~`no fence law," as provided by section 2048 of the Code. The owner of animals is under no obligation to restrain them, and is not liable for damage done by them in consequence of straying on the unenclosed lands of another. Without a lawful fence the land owner can maintain no action for uuch damag~s. The common law rule is contrary to the public policy of this State as manifested by - - legislation from the earliest period until the present time.</p> <p>3. CoNSTITUTT0IcAL LAw-Fences.-A fence law which requires a land owner to enclose his land by a lawful fence, as a prerequisite to the right to recover for damages done by trespassing animals, violates no right of fhe land owner granted to him by the Constitution of the State or of the ijnited States.</p> <p>4. FENcE LAW-WilfEl Tres~ass-Damages.-Although the fence law of this State does not reQuire the owner of cattle to restrain them from passing of their own accord upon the unenclosed lands of another, it gives such owner no authority to drive them there, and if he does he is answerable for whatever damage they may do while there.</p>

<p>Appeal from a decree of the Circuit Court of Koanoke city, pronounced in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from, a decree of the Chancery Court of the city of Richmond, pronounced January 9, 1899, in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p> <p>In October, 1894, R. B. Lee applied to the appellants for a line of credit to the amount of $5,000. They required of him a statement of his financial condition, which he promptly furnished in writing, showing that he owned not less than $25,000 worth of personal property, and a like amount of real estate, above all liabilities. During the months of October, November and December, 1894, he purchased of appellants a large number of pianos, upon which he owed at the time of the institution of this suit $5,536.61. In January, 1895, appellants shipped to said Lee, on Ms order, seventeen other pianos of the aggregate value of $3,615. These pianos were shipped at different dates during the month of January—not exceeding three pianos on any one day. The appellants claimed’ that the possession of these pianos was obtained from them by fraud and misrepresentation on the part of said Lee; that the title never passed from them; and that they are now entitled to recover possession.</p> <p>Lee pledged a number of the pianos he had gotten from appellants, including many of those shipped in January, to various persons, among them to George E. Crawford & Co., to Young Jones and to the First National Bank of Richmond, to secure advances of money made by them. On February 8, 1895, Lee made a general deed of assignment, conveying'to Outchins & Brandt, trustees, certain real estate and personal property in trust to secure the payment of his debts, giving preferences and designating the order of payment. Amongst other property the deed conveyed all his stock of pianos, organs, musical instruments and merchandise in his storehouse in Richmond, and also “all pianos, organs and other merchandise owned by him and temporarily stored elsewhere.”</p> <p>This suit was brought to set aside, as fraudulent, the several pledges or bills of sale of pianos made by Lee, and also the general deed of assignment. The appellants claimed the right to recover possession of the pianos shipped in January, on the ground that they had never parted with their title. They also claimed that the deed made in February was fraudulent, and should be set aside, and they should have a lien from the date of filing their bill on the property thereby conveyed. The other facts of the case, and the state of the pleadings, as to the allegations and denials of fraud, are sufficiently set forth in the opinion of the court.</p>

Vashon, was the complainant, and the appellant and others were the defendants. This suit was brought for the purpose of having a construction of a deed from John T. Sublett and wife to Edward W. Morris, trustee, bearing date October 31, 1850, and a sale of the property thereby conveyed, and a division of the proceeds of sale amongst those entitled thereto.

<p>1. Principal and Agent—Brokers—When the Agent of Both Parties.—A broker is primarily the agent of the party by whom he is originally employed, and he becomes the agent of the other party only when the bargain or contract is definitely settled as to its terms between' the principals, in which ease he may act as the agent of both parties in making the memorandum of sale.</p> <p>2. Contracts—Silence as to Time of Performance—Repudiation of Contract—Right to Sue.—If no time be specified in the contract for testing, ordering, or receiving raw material which is to be accepted and ordered, if on testing it prove satisfactory to the purchaser, the law presumes that a reasonable time was meant for that purpose. But if the purchaser cancels the contract before it is incumbent on the seller to deliver the materials, the seller is not required to show that he was ready and offered to deliver it before maintaining an. action for the breach of the contract.</p> <p>3. Instructions—incidence to Support.—In a plain case of a total lack of evidence tending to-support an instruction, it should be refused. But where there is such evidence, of however little weight it may appear to be to the court, or however inadequate in its opinion to make out the case supposed, it is best and safest for the court not to refuse to give the instruction asked for, if it propound the law correctly.</p> <p>4. Contracts—Conditions—Arbitrary Refusal of Performance.—In a contract to purchase raw material if, upon testing, it prove satisfactory to the proposed purchaser, the purchaser has not the arbitrary right to declare it unsatisfactory to him, but must act in good faith in making the test. He cannot fraudulently and in bad faith declare that he is not satisfied, when in fact he is.</p> <p>5. Contract—Matters of Mere Taste, Convenience, or Preference—Refusal to Accept Work Done.—In a contract to do work in a manner satisfactory to the person who is to receive it, if the thing to he done is to gratify taste, serve personal convenience, or satisfy the individual preference of such person, he is the sole judge of whether the work is satisfactory to him, and may arbitrarily decline to accept it.</p>

<p>Appeal from decrees of the Circuit Court of Loudoun county, pronounced April 30, 1898, and October 22. 1898, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p> 1. INSURANC~-Warra~ties--Uofl7iict Beliweem Statements ~n Aip~ication and Pi~oof of Lo88-De'nvurrer to Evicfence.-If a life policy makes the statements of the application on which it is issued warranties, and such application states that the death of the father of the assured was caused by one disease, and the proof of loss made by the baneficiary and offered in evidence by him states that said death was caused by a different disease, on a demurrer to the evidence of the beneficiary, in an action against the insurance company, judgment should be siven for the comDanv. </p> <p>2. INsT.rnANc1~-P'root 7f Loss-1i7viden,ce.---~ ~he preliminary proofs of loss under an insurance policy introduced in evidence generally by the beneficiary are prima facie evidence in favor of the insurance company of the facts therein stated. The company has the right to rely on the truth of such statements, and, in the absence of evidence of mistake or misapprehension of facts, the beneficiary who made such statements is bound by them.</p> <p>3. INs1IRANoE-Warra~~t~ie8-Materiality of Statememts.-Where the auswers to questions propounded in an application for insurance are made warranties by the terms of the contract of insurance, its validity depends upon the literal truth of such answers, and it is a matter of no consequence whether they are material to the risk or not. Being warranties, they are in the nature of conditions precedent, and, like them, must be strictly complied with.</p>

<p>Error to a judgment of the Law and Equity Court of the city of Kiehinond, rendered Eebruary 22, 1899, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Chancery Pleading and Practice—Order for Account—When Refused.—An order of reference will not be made to enable a complainant to make but his case. He must first make good the charges of his bill, showing that he has the right to demand an account.</p> <p>2. Partnership—Preference Among Creditors.—Partners may convey the partnership property to secure partnership creditors, giving preferences amongst them, when not affected by the bankrupt law.</p> <p>3. Partnership—Solvent and Insolvent Firms—Sale by One Partner— Assumption of Debts.—Partnership creditors have no inherent right to have the partnership assets applied to the payment of the partnership debts in preference to the individual debts of the partners. The right grows out of the right of the partners amongst themselves to have such application made. If the partnership is solvent, one partner, acting in good faith, may sell out to his copartner his interest in the partnership estate for a valuable consideration, or which is its equivalent, upon an agreement to pay the partnership debts and indemnify him against them; but a partner in an insolvent firm, all of whose members are insolvent, cannot transfer his interest in the partnership to his copartner in consideration of the assumption hy the latter of the partnership’s liabilities, so as to enable the latter to make a valid assignment of the partnership effects to pay his separate creditors. Such assumption is without consideration.</p> <p>4. Chancery Pleading and Practice—Answer as a Denial.—The denial of an answer, though an answer under oath be waived, constitutes a traverse of the allegations of the bill, and throws upon the complainant the proof of the charge.</p> <p>5. Fraud—Allegation and Proof—Voluntary Deed.—A charge that a deed was made without any consideration, and with intent to hinder, delay, and defraud tlie creditors of tlie grantor, is not supported by proof of an inadequate consideration. In equity, as at law, the allegata and probata must correspond. A recovery will not be allowed upon a case, although proved, which differs essentially from that stated in the bill. The fraud charged must he distinctly and clearly proved as it is alleged.</p>

<p>1. Wills—Construction—Fee Simple—Diminution by Doubtful Expressions—Case in Judgment.—If an estate is devised by one clause of a will by clear, unambiguous, and explicit words, such estate will not be diminished or destroyed by words in a subsequent clause less clear and decisive. A clearly expressed intention in one portion of the will is not to yield to a doubtful construction in another. In the case in judgment, a fee simple and absolute estate was plainly given in one clause of the will, and was followed by a subsequent clause declaring: “If any of my children should depart this life leaving a child or children, such child or children are to be entitled to the father or mother’s share, which I hereby give them and their heirs under the provisions of this will.”</p> <p> Eeld: </p> <p>The devisee and legatee took a fee simple in the real estate and an absolute estate in the personalty. The contingency provided for was the death of the devisee in the lifetime of the testator.</p>

<p>1. Pleading—Contracts—Consideration—How Defendant’s Promise to be Charged.—Every simple promise or agreement, to be enforceable, must have a consideration to support it, and, when declared on, the promise or undertaking of the defendant must be charged positively and not by way of recital. The absence of such a charge is fatal to the declaration, and is not cured by verdict.</p> <p>2. Pleading—Contract—Consideration—Mutual Promises—How Charged— Section 8246 Code.—If the consideration for the defendant’s contract consist of any agreement on the part of the plaintiff, it must appear from the declaration that such agreement was binding on the plaintiff at the time the defendant’s promise was made, else the defendant’s promise is without consideration, and the declaration consequently bad. Section 3246 of the Code has no application to a case like this.</p> <p>3. Pleading—Defects of Form—Demurrer—Section 3246 Code.—Where there has been a demurrer to any pleading and the same has been overruled, section 3246 of the Code cures no defect, imperfection, or omission therein, except such as could not have been regarded on demurrer.</p>

<p>1. APPEAL AED EEE0R-Jotnt O'ontract--~everai Jvdgments b~i Consent-Cm,e at Bar.-Two defendants, jointly sued on a contract, havini agreed that a verdict might be rendered against either or both liable, and a verdict and judgment having been rendered against one an~ in favor of the other defendant, on a writ of error to the judgmenl against the defendant held liable, this court cannot enquire whicl of said defendants is primarily liable, as the other defendant is nol before the court.</p> <p>2. Oo~uoN CAnnIuRs-Uars Owned by wther-~Unsnitable Cars-Li ability of Carrier for Injury.-A railroad company cannot e~cape responsibility for damages resulting from it~ failure to provide cars reasonably fit for the conveyance of the particular class of goods it undertakes to carry, by alleging that the cars used for the purpoze of its own transit are the property of another, who undertook to provide the necessary materials to insure the fitness of said cars for such transportation. The owners of the cars will be deemed to be the agents and servants of the railroad company, and it will be held to the same liability as if it owned the cars.</p>

<p>1. Mandamus1—WhenWrit Will Lie—Compensation of Officers.—Mandamus is the proper remedy to compel the payment of the salary or other compensation due to an officer of a municipal corporation where the salary or compensation is fixed hy law, and the issue of the warrant therefor and the payment thereof are mere ministerial duties, hut it does not lie if the salary or compensation is in anywise discretionary. The claimant' must have a clear and specific legal right to receive the money claimed, and there must he imposed upon the officer on whom the demand is made the specific legal duty to draw the warrant therefor, or to pay it.</p> <p>2. Jailer’s Fees—State and City Prisoners—Sections 3527 to 3532 of Code.—No provision has been made by statute fixing the fees or compensation of the sergeant of a city, who is the keeper of its jail, for receiving and supporting persons confined in jail for a violation of the ordinances of the city. Sections 3527 to 3532 apply only to State prisoners and fees to he paid out of the State Treasury. But if section 3532 applied to city prisoners also, the jailer’s compensation from the city should he computed without reference to the number of State prisoners confined in jail, and so likewise his compensation from the State should be computed without reference to the number of the city prisoners confined.</p>

The facts of the case sufficiently appear in the opinion of the court, except as to the evidence of H. W. Cole concerning the “ Campbell notes.” On this subject he testified as follows: “ The witness was shown the Campbell notes, 1, 2, and 3, heretofore introduced by the plaintiff, and endorsed by himself ‘ LL W. Cole, president,’ and asked under what circumstances he endorsed said notes, to which question he answered that W. J. Dance came to him and asked him to endorse…

<p>Error to a judgment of the Circuit Court of the city of Lynch-"burg, rendered April 21, 1899, in an action of trespass on tire case, wherein the defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>1. Appeal and Error—Final Decree.—An order sustaining a demurrer to a bill, and giving the plaintiff leave to amend in a specified time, does not settle the principles of the cause, nor is it a final order until the expiration of the time specified.</p>

Errar to a judgment of the Hustings Court of the city of Portsmouth, in an action of unlawful detainer, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.

<p>Error to a judgment of the Law and Equity Court of-the city of Richmond, rendered June 10, 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>

Original application for a writ of habeas corpus. The plaintiff in error was fined by the Corporation Court of the city of Alexandria, for refusal to give information required by the act in controversy, and, failing to pay the fine, was committed to jail.

<p>Error to a judgment of the Hustings Court of the city of Portsmouth, rendered September 11, 1899, in a condemnation proceeding, wherein the plaintiff in error was the plaintiff, and ■the defendant in error was the defendant.</p>

<p>Error to a judgment of tlie Circuit. Court of Buckingham county, rendered October 27, 1898, in an action of debt, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>1. Ciioses in Action—Balance in Banlc.—A balance in bank to the credit of a depositor is, strictly speaking, a ehpse in action. It is often treated, however, as ready money, and whether it is to be treated, as one or the other depends upon the circumstances of the particular case.</p> <p>2. Wills—Gase in Judgment—Glioses in Action—Balance in Banlc—Doiibtfwl Construction—Equality.—A testator bequeathed “all horses, harness, wagons, machinery, and all other personal property used in my butchering business, including all choses in action,” to his four sons. There was due to him by open accounts in his “ butchering business” about $1,000, and he had to his credit in bank, in the name of “ R. Kastelberg’s Sons,” about $4,000, but it was his individual money. There was evidence tending to show that the account was opened in connection with and for the convenience of the business, but there was also evidence showing that the account was resorted to in connection with the general business of the testator; that accounts were paid out of it in nowise connected with his business as butcher, and that it was not at all necessary for the conduct ' of that business.</p> <p>Held: The $4,000 does not pass to the sons as a chose in action used in the “ butchering business” of the testator, but to all of his children, who appear to have been equally the objects of his bounty. The rule that equality is equity is not without force in a case of doubtful construction.</p>

<p>Note by the Reporter.—Judge Riely was not present when this opinion was delivered, but was present at the argument, participated in the conference and concurred in the opinion after it was prepared.</p>

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered ülay 27, 1899, in an action of debt, wherein the defendant in erorr was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Note by the Reportee.—Judge Riely was not present when this opinion was delivered, "but was present at the argument, participated in the conference, and concurred in the opinion after it was prepared.</p>

<p>1. Trusts and Trustees—Substituted Trustee—Compensation.—A substituted trustee whose duties are only such as were imposed upon the original trustee, by the deed creating the trust, is not entitled to any greater compensation for his services than the deed provided for the original trustee, and the court, supervising the settlement of the accounts of said substituted trustee, cannot allow any greater compensation.</p> <p>2. Appeal and Error—Interlocutory Decree—Final Decree—Limitation.— Although the right is given to appeal from certain interlocutory decrees, the party aggrieved is not bound to appeal from them, but may do so at any time within a year after a final decree has been rendered in the cause, provided all the other requisites for. an appeal exist.</p> <p>S. Appeal and Error—Final Decree.—A decree approving and confirming the account of the representative of a trustee and ascertaining the balance due from the decedent’s estate to the trust fund, without giving judgment for the same or making any other disposition of it, or without dismissing the case as to him, is not a final decree.</p> <p>4. Chancery Pleading and Practice—Commissioner’s Report—Exception—Question of Law.—Where the objection to a commissioner’s report raises a question of law only, which is decided by the trial court, it is not necessary to except to subsequent reports of the commissioner, involving the same question, in order to. have the ruling on that question reviewed in this court.</p> <p>5. Appeal and Error—Declining to Appeal—Consideration—Estoppel.— The mere statement of an appellant to an appellee that he did not intend to or would not appeal does not prevent an appeal, unless there was a consideration for the statement, or the appellee has acted on it to his prejudice.</p> <p>6. Appeal and Error—Decree for Less than Sum Due—Receiving Payment—Waiver—Estoppel.—Where a decree is entered for less than the party claims, receiving payment of the sum so decreed is not a waiver of errors, nor does it estop him from appealing from the decree as to sums not allowed.</p> <p>7. Trusts and Trustees—Office Rent—Clerk’s Eire.—Under the facts of this case, a decree allowing the trustee office rent and clerk’s hire will not he disturbed.</p> <p>8. Trusts and Trustees—Balances—Interest—Acquiescence.—Although a trustee was required to deposit balances in his hands in hank, yet after long acquiescence, the settlement of numerous accounts, and their approval, without exception, the concurrence of the commissioner, the trial court and the trustee that he was not chargeable with interest, interest will not he charged against him on such balances.</p>

<p>Note by the Reporter.—Judge Riely was not present when this opinion was delivered, but was present at the argument, participated in the conference, and concurred in the opinion after it was prepared.</p>

<p>Note by the Reporter.—Judge Riely was not present when this opinion was delivered, but was present at the argument, participated in the conference and concurred in the opinion after it was prepared.</p>

<p>Note bt the Reporter.—Judge Rlely was not present when this opinion was delivered, hut was present at the argument, participated in the conference, and concurred in the opinion after it was prepared.</p>

<p>Error to a judgment of the Circuit Court of Bland county, rendered November 25, 1898, in an action of covenant, wherein the plaintiff in erorr was the plaintiff, and the defendant in error was the defendant. .</p>

<p>1. Bonds—Order Requiring Execution—Recitals—Estoppel.—A bond executed pursuant to an order made in a chancery suit requiring its execution, as a condition precedent to the enjoyment of certain rights, does not derive its efficacy from the order. The liability of the obligors is determined by the bond alone, and not by the order. The obligors are estopped to deny the recitals of the bond, even if they were in conflict with record, and a plea of mil tiel record, is inapplicable.</p> <p>2. Pleading—General Issue—Special Pleas.—Where the general issue has been pleaded, special pleas which set up matters of defence which can be proved under the general issue should be rejected.</p> <p>3. Bonds—Non Est Factum—Failure of OUigor to Sign—Injury.—The failure of one of the obligors in a bond to sign it in person, if it can be set up as a defence in any case by the other obligors, cannot be set up where it appears that judgment has been rendered against such obligor, and no one has been injured by his failure to sign and acknowledge the bond in proper person.</p>

W. C. Brown, and the other in the name of the City of Roanoke y. Same. Separate warrants were sued out in this matter, one in the name of the State, for a violation of the .State law, and the other in the name of the city of Boanoke, for a violation of a city ordinance. The trials and judgments were separate, but the two appeals were heard together by consent.

<p>1. Assignoe and Assignee—Diligence—Recourse—O'ase in Judgment.— Due diligence must be used to charge either a guarantor or an assignor. The assignee being entitled to recover of the assignor on the grounds of failure of consideration, it will devolve on him to show (unless otherwise agreed) that he used due diligence to collect the debt of the debtor, but used it in vain. What is due diligence cannot be precisely defined, but immediate suit, followed by execution, is always due diligence, though this is not indispensable. In the case in judgment, the assignee has not only failed to show due diligence or lack of injury to the assignor, but the evidence tends to show that if diligence had been used the debt could have been made out of the principal debtor, and therefore the assignee • cannot recover of his assignor.</p>

<p>1. Subrogation&emdash;Taxes&emdash;Yoluntary Payment l>y Treasurer.&emdash;A county treasurer who voluntarily pays the State and county taxes of a tax-payer in his hands for collection, without any previous request or subsequent promise of indemnity, and with no assignment of the tax lien (if it be capable of assignment) is not entitled to be subrogated to the liens of the State and county for the taxes so paid. The doctrine of subrogation is not enforced in favor of mere volunteers.</p>

<p>1. Res Judicata—Case in Judgment—Demurrer to Plea or Answer.—A decree or judgment concludes not only what is in fact adjudicated, but all questions in issue, whether formally litigated or not. Every point decided, and, by necessary implication, every issue which must have been decided in order to support the judgment or decree is concluded. In the case in judgment, the paries were not the same as in the former suit, the land sought to he subjected was not the same, and the relief sought in this suit could not have been granted in the former suit, in the condition in which it was when the decree sought to be set up as a bar was pronounced.</p> <p>Quaere: Does a demurrer lie to a plea or answer in chancery?</p> <p>2. Chancery Pleading and Practice—Suit to Enforce Judgment— Second Suit for Same Purpose.—While a judgment may not be divided into different causes of action, yet a suit brought to enforce the lien thereof, prosecuted in good faith, though ineffectually, is not a bar to a subsequent suit by the same complainant against the same defendant to enforce satisfaction of the same judgment. Courts of equity, however, by their decrees for costs, will prevent the capricious or oppressive exercise of the right, and protect litigants against unnecessary and vexatious litigation.</p> <p>3. Chancery Pleading and Practice—Exception to Answer—Effect.— An exception to the sufficiency of an answer is tantamount to an averment that the answer, if true, constitutes no defense to the complainant’s demand.</p> <p>4. Chancery Pleading and Practice—Suit to Enforce Judgment— Answer Showing Subsequent Alienations—Sufficiency of Answer.—If a defendant in chancery, whose land is sought to be subjected to the lien of a judgment against Ms vendor, answers that other lands of his vendor, or lands of a subsequent alienee of his vendor, are liable to the complainant’s demand, the answer is not liable to exception for insufficiency, and the defendant should be allowed to show those facts.</p>

<p>Appeal from a decree of the Circuit Court of Giles county, pronounced at its May term, 1899, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Pleading—Malicious Prosecution—Declaration—Finality of Prosecution.—In an action for malicious prosecution it must be charged and proved, amongst other things, that the prosecution alleged in the declaration was conducted to its termination, and that it ended ,in the final acquittal of the plaintiff. An allegation that an offence of which a justice of the peace had jurisdiction was dismissed by him “without the introduction of any testimony” or that the defendant “without the introduction of any testimony” caused the plaintiff to be discharged, and not prosecuted for said offence, is not such an averment of the final termination of the prosecution as will support an action for malicious prosecution. It amounted to no more than a nolle prosequi, which was no bar to a further prosecution for the same offence. It did not establish the innocence of the plaintiff, or show want of probable cause on the part of the defendant.</p>

<p>1. Chancery Practice—Delivery of Title Papers—Adequate Remedy at Law.—A court of equity has jurisdiction to decree the specific delivery of title papers to heirs at law, devisees and other persons properly entitled to the custody and possession of the same, when they are wrongfully detained, or withheld from them. This is an old and well-settled subject of equity jurisdiction, and is not affected by the fact that a statute gives the complainants a complete and adequate remedy by an action of detinue. In the absence of prohibitory or restrictive words in the statute, courts of equity still retain their jurisdiction in such cases.</p> <p>2. Muniments oe Title—Delivery—Oommon-Law Rule—Rule in Virginia. Although, at common law, a grantee of land was entitled to demand and have of his grantor all title deeds and muniments of title, and the same passed with the conveyance of the land without being mentioned in the deed, this common-law rule is not in force in this State, where the public records furnish evidence of title, and where copies therefrom, equally with the originals, are admissible in evidence, and hence the grantee is not entitled, as a matter of law, to demand of his grantor the original muniments of title. In this State the deposit of title deeds creates no lien as against a subsequent dona fide purchaser or encumbrancer.</p> <p>3. Continuance—Discretion.—A motion for a continuance is addressed to the sound judicial discretion of the trial court under all the circumstances of the particular case, and its action will not be reversed unless plainly erroneous.</p>

<p>1. Chancery Pleading and Practice&emdash;Case in Judgment&emdash;Lien on Purchase Price&emdash;Soio Enforced&emdash;Irregular Proceedings&emdash;Correct Results.&emdash; Several joint owners of a tract of land sold and conveyed it to a purchaser, reserving a vendor’s lien for balance of purchase money. Default having been made, they instituted suit for specific performance of the contract. At this stage of the proceedings, two of the vendors assigned and transferred to a trustee all their right and interest in the unpaid purchase money for said land, in trust to secure the payment of a debt, providing further in the deed that “ if said contract is not specifically enforced by the court,” then they “convey their interest in said land to the party of the second part.” The contract was specifically enforced, the land sold in the suit brought for that purpose, and at such sale the original vendors became the purchasers. They paid no cash payment, but gave bonds without security for deferred payments. The court confirmed the sale, reciting that other suits were pending to subject the lands in the hands of the vendors, and that when sales were made in these suits the court would provide for payment of costs of suit and sale out of the funds then received. Accounts of liens had already been taken in these suits, and a sale was subsequently made, and, after providing for said costs, the court decreed the balance of the purchase money arising from the interests of the two vendors aforesaid to the trust creditor aforesaid.</p> <p>Held: The trial court should have ordered the sale of the interests of the said two vendors for the purchase money due by them, and so much oi the proceeds of that sale as was equal to the purchase money due from them should have been appropriated to the payment of the trust creditor, but as what was actually done by the trial court accomplished substantially the same result, without prejudice to other creditors, Its decree will not be reversed.</p>

<p>Error -to a judgment of the Circuit Court of Bland county, rendered May 11, 1898, in an action of ejectment, wlierein tlie defendant in error was the plaintiff, and the plaintiffs in error were the defendants.</p>

<p>1. Homesteads—Sole Deed of Husband Void—Constitutional Lem— ' Sections 3684 and 8647 of Code.—A homestead in real estate which has been set apart by a married man cannot be aliened by his sole deed. Such deed conveys no interest in the real estate, and is simply void. Section 3634 of the Code, which declares that the real estate so set apart shall not be encumbered or conveyed except by the joint deed of the husband and wife, is not in conflict with Article XI. of the Constitution, nor is there any conflict in the intent attributed to the framers of the Constitution by sections 3634 and 3647 of the Code.</p> <p>2. Constitutional Law—Statutes—Homestead Latos.—Every statute is presumed to be constitutional, and will be so declared, unless the contrary is made clearly to appear. The Legislature is omnipotent in making laws, unless restrained by the express or implied provisions of the State or National Constitution. Homestead laws are always liberally construed.</p> <p>3. Homestead—What Constitutes Hstate—Powers of Husband emd Wife.— The homestead estate is a unit, and consists of the whole estate in the land, and not of a life estate with remainder over. This estate the husband has a right, the wife uniting,.to sell and convey, or to consume in any other way recognized by the law.</p>

<p>1. Chancery Pleading and Practice—Final Decree—Subsequent Decrees.—After a final decree has been entered in a cause, no further decree can be regularly entered therein.</p> <p>2. Attorneys to Collect—Authority—Acceptance of Rote—Ratification.— An attorney simply to cilleot a debt has no authority to receive anything but money for it, and if he accepts a note for it, no subsequent dealings of his with reference to the note, without previous authority or subsequent ratification of the client, can be deemed a ratification by the client.</p> <p>3. Estoppel.—It is of the essence of an estoppel that the act relied upon as such should have been injurious and prejudicial to him who relies upon it as an estoppel.</p> <p>4. Appeal and Error—Decree by Default—Section 3451 Oode—Finality.— This court has no jurisdiction of an appeal from a decree by default until relief has been sought under section 3451 of the Code, by motion to the court in which the decree was rendered. When the time allowed by this section has expired, the decree becomes final and irreversible.</p>

<p>Appeal from two decrees of the Circuit Court of Craig county, pronounced May 5, 1897, and May 5, 1898, respectively, in a suit in chancery, wherein the appellee was the complainant, and the appellant was the defendant.</p>

This cause was heard on the bill and exhibits, and on the demurrer, and jileas of the act of limitations of the defendant, “and the joinder of said comjilainant in the issue made by the said plea and demurrer.” Ho proof was offered excejit the exhibits filed with the bill. There ivas no charge that the comjianv was not able to pay its indebtedness.

<p>1. Construction or Statues—In Pari Materia.—Statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together, and effect should be given to them all, although they contain no reference to one another, and were passed at different times.</p> <p>2. Mandamus—When Refused.—The writ of mandamus will not beo awarded where to do so would be fruitless and unavailing. If the respondent cannot perform the act required, or the court is unable to compel its performance, the writ will be denied.</p> <p>3. Elections—City Council—Contest—Hustings Court—Sections 160 and 1080 of Code—Officers.—The Council of the city of Richmond, under the authority of section 1030 of the Code, is the judge of the election, qualification and return of its members, and also has the power to order elections to fill all vacancies in that body. The Hustings Court of said city has no jurisdiction to decide a contest over an election of a member of that body, even though the contestant alleges that he cannot obtain justice before it. Members of the City Council are, in a certain sense, officers, but the city officers referred to in section 160 of the Code are such as correspond to the officers of the respective counties and districts of the State, such as sheriffs, treasurers, clerhs and attorneys for the Commonwealth.</p>

<p>Appeal from a decree of tlie Hustings Court of the city of Roanoke, pronounced December 6, 1899, in a suit in chancery,, wherein the appellee was the complainant, and the appellant was; the defendant.</p>

<p>Appeal from a decree of the Corporation Court of the city of Radford, pronounced June 16, 1899, in a suit in chancery therein pending, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

This suit was brought to enforce the lien of a judgment amounting to less than $500. The judgment was against J. E. McGrath. At the date of the judgment he owned no real estate, but subsequently the legal 'title to the land in controversy was conveyed to him, under such circumstances, as claimed by the appellant, that it vested no beneficial interest or estate in him.

The agreement referred to in the opinion is as follows: This agreement, made this 27th day of August, 1890, between W. A. Trench, for himself as half owner of the certain property hereinafter described, and as the representative of and acting for IT. W. Straley and D. A. Trench, each interested as hereinafter described in the properties specified, of the first part, and Harman Hewberry, J. G. Watts, Jos.

<p>Appeal from, two decrees of the Circuit Court of Roanoke city, pronounced May 15, 1899, and December 20, 1899, in a suit in chancery, wherein the appellee w'as the complainant, and the appellant and others were the defendants.</p>

<p>Error to a judgment of the Circuit Court of King and Queen county, rendered March 1, 1900, on an application for a writ of mandamus, wherein the defendant in error was the petitioner, and the plaintiffs in error were the respondents.</p>

<p>1. Contracts—Time of Essence—Delay—Case at Bar.—Although time be of the essence of a contract, no damages can be allowed to a plaintiff for delay caused by his own fault. A provision in a contract “ that no claim for extra work or delay will be allowed ” unless excessive, in which event the parties shall agree upon the extra compensation, and upon the extension of time necessary, could not have been intended, and cannot be construed, to cover a delay caused by the fault of the plaintiff, although there was no agreement as to the extension necessary-.</p> <p>2. Contracts—Breach—Estimated Profits.—In an action to recover damages for failure to complete a pier in a given time, the estimated gains or profits that the plaintiff might have made on the handling of freight that he was compelled to decline, in consequence of non-completion, are too remote and speculative to be recovered.</p> <p>3. Contracts—Entire—Severable.—Whether a contract is entire or severable must be determined in each case from the language employed, and the subject-matter of the contract. No precise and invariable rule can be laid down. Reservation of a percentage until the whole is completed would seem to indicate an entire contract.</p> <p>4. Contracts—Entire—Severable—Destruction of Work.—As a general rule, in the case of an entire contract, the whole work must be completed and delivered in a state of completion, before there can be a demand of payment, and if any part of it has been destroyed by accident or act of God before that time,' the loss must be borne by the contractor. It is different where one contracts to do a particular part of the work in the construction of a building, and the building is destroyed before completion. In that case he is excused from further performance of the contract, and may recover.</p> <p>5. Contracts—Building—Completion—Acceptance.—If the owner of a building takes possession thereof, and occupies and uses -the same for his purposes, without objection as to the completion of its construction, his acceptance thereof will be implied. Formal acceptance is not necessary.</p> <p>6. Building Contracts—Extra 'Worlc—Agreement.—The provision of a building contract that no claim for extra work shall he allowed unless excessive, in which event the compensation therefor shall he agreed on between the parties, is obligatory on the parties to the contract, and, in the absence of any agreement that there was any extra work, or that any compensation for work claimed to be extra work was agreed upon, there can be no recovery therefor.</p> <p>7. Appeal and Eeboe—Error Must ftp Shown-.—This court will not reverse the judgment of the trial court unless it is satisfied that such judgment is wrong. It is not sufficient to doubt its correctness.</p>

<p>1. Specific Performance—Agreement to Malee a Will—Death of Intended Testator.—An agreement to dispose of property by will cannot, strictly speaking, be specifically enforced, not in tbe lifetime of a party, because wills are revocable, nor after Ms death, because it is no longer possible for him to make a will; but equity can do what is equivalent to specific performance, by compelling those upon whom the legal title has descended to convey or deliver the property in accordance with the terms of the agreement, on the ground that it is charged with a trust in the hands of an heir, devisee, personal representative, or purchaser with notice.</p> <p>2. Contracts—Uncertainty.—The agreement in this case is not too uncertain and indefinite to be enforced.</p> <p>3. Contracts—Statute of Frauds—Contract Signed by One Party—Performance by Othen-—Personal Services.—Although an agreement to devise and bequeath land and personal property, in consideration of personal services to be rendered, is signed only by the intended testator, yet, if such services have been fully rendered, the agreement is binding on the party who has signed the agreement, and will be enforced against him.</p> <p>4. Master and Servant—Misconduct of Servant—Failure to Discharge— Waiver—Condonation.—If a master retain a servant in his employment until the expiration of his term of service, notwithstanding he may have been guilty of misconduct for which he might have been dismissed, but was not, the master will be deemed to have waived or condoned the misconduct, and will be compelled to pay the price agreed.</p> <p>5. Contracts—Consideration—Illegality—Presumption.—Illegality in the consideration of a contract will not be presumed, but must be proved, or must clearly appear upon the face of the contract.</p> <p>6. Doweb—Contracts Before Marriage to Comey to Another.—If a man, before marriage, enters into a contract to sell his land on certain terms and conditions, which are subsequently complied with, his widow is not entitled to dower in the land, although the husband dies without having made a conveyance. Every claim or encumbrance, existing before the inception of the right of the wife, which would defeat the husband’s seisin, will defeat his widow’s dower in the land.</p>

<p>1. Deeds:—Mistake—XJndue Infhience—Dower—Case in Judgment.—The evidence in this cause does not show that there was any 'mistake in conveying the land in controversy to the husband instead of the father-in-law of appellant, nor is it sufficient to show that the deed subsequently made by the husband to the father-in-law was obtained by fraud and undue influence, but, inasmuch as the husband owned the fee in the land, and appellant did not unite with him in the last-mentioned deed, she is entitled to dower in the lands thereby conveyed.</p>

<p>Appeal from a decree of the Oircuit Court of Washington county, pronounced January 25, 1899, in two suits in chancery, in each of which the appellee was the complainant, and in one of which the appellant and others were defendants.</p>

<p>1. Trusts and Trustees—Deed to Secure Existing Debts—Bond of Later Date.—Although, a bond bears date subsequent to the execution of a deed made to secure the existing debts of the grantor, it will be deemed to be secured by the deed if shown to.have been given solely for debts existing at the time the deed was executed.</p> <p>2. Bonds—Consideration—Decedent’s Estate—Parent and CMld—Voluntary Conveyance Subject to Qrantofs Debts.—A bond given by a father to his son, in lieu of the purchase-price of a tract of land which he had previously given to the son, but not conveyed to him, and which he subsequently sold and conveyed to a third person, constitutes a valid debt against the father’s estate, and cannot be questioned by his children to whom he voluntarily conveyed his land subject to the payment of his debts. The conveyances to his children were not sales to them of his lands, but gifts upon certain terms and conditions.</p> <p>3. Trusts and Trustees—Trustee—Purchaser—Rents and Profits—Purchase-Money and Improvements.—A trustee cannot be a purchaser at his own sale, although the price be fair, or the best to be had, and the motive pure. The fact that he disclaimed the purchase and authorized his co-trustee to sell the land to any one else who would take it at the same price, is immaterial. The sale should be set aside, and, in the» absence of actual fraud, the trustee-purchaser should be charged with all rents, issues and profits derived by him since his purchase, and credited by his purchase-money, with interest thereon, and ’with the value of all permanent and substantial improvements made by him since his purchase.</p> <p>4. Voidable Contracts—Ratification—Waiver—Knowledge of Facts.—■ The burden of proving ratification of, or acquiesence in, a voidable contract is on bim who alleges it. Ratification and acquiescence imply knowledge, and cannot be imputed in tbe absence of all knowledge of tbe facts on which, they are predicated. The law does not hold one to have waived rights, unless, with full knowledge of the facts, he has distinctly done so.</p>

<p>1. Fidttciaiues—Receipts in Full—Subsequent Collections—Presumption.— Under the circumstances of this case, the receipt of a legatee to a personal representative, in full of all interest in the testator’s estate, is presumed to cover his share of the uncollected assets, as well as funds in hand. The presumption, however, is cfhly prima facie.</p> <p>2. Laches.—Reasonable diligence in the institution of a suit is as ess.ential to equitable relief as conscience and good faith. Where, as in this case, there has been long delay .in the institution of the suit, the original transaction has become obscure, parties have died, and evidence has probably been lost, equity will not interfere.</p>

The case, as stated in the petition for a writ of error, is as follows: “About the 1st of December, 1897, Mrs. Birmingham bought a ticket at Buchanan, and took the train about sundown, accompanied by four small children, and some luggage. She transferred at Clifton Forge to the main line of defendant’s road, and continued her trip to West Virginia.

The declaration contained the common counts, and also a special count, on a contract under seal. There was a demurrer to the declaration and to each count thereof, which was overruled. The only plea filed was non-assumpsit, upon which issue was joined. The other facts sufficiently appear in the opinion of the court.

<p>Appeal from a decree of tlie Circuit Court of Botetourt county, pronounced June 7, 1897, in a suit in chancery, wherein the appellant, Kannie B. Bobertson, was the complainant, and the appellees and others were the defendants.</p>

Robertson, was the complainant, and the appellees and others were the defendants. This cause was once before heard in this court (ante page 561). The opinion then delivered, taken in connection with the present opinion, sufficiently states the ease.

<p>1. Railroads—Passengers on Freight Trains—Degree of Care.—When a person becomes a passenger on a freight train, he assumes the risks and inconveniences necessarily and reasonably incident to that mode of travel, but the degree of care required of the railroad company to avoid damage to such passengers, is as great as if he were travelling on a regular passenger train.</p> <p>2. Railroads—Collisions—Presumption of Xegligence.—When an injury is inflicted as a result of a collision of cars which have become detached from the engine drawing them, the presumption is that such collision occurred through the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatever, and that the injury has been inflicted by inevitable casualty, or by some cause which human care and foresight could not have prevented.</p> <p>3. Verdict—Contrary to Evidence.—The verdict of a jury will not be set aside as contrary to the evidence, unless the evidence is plainly insufficient to support it.</p> <p>i. Verdict—Excessive.—A verdict will not be set aside as excessive in the absence of anything to indicate that the jury acted under the impulse of an improper motive, gross error, or misconception of the subject.</p>

Manufacturing Co. and Others v. The Wesleyan Female Institute and Others, in which the appellees filed their petition praying the cancellation of certain negotiable notes made by them, and an injunction to restrain tbe collection or disposition of said notes.

<p>Appeal from a decree of the Circuit Court of Montgomery county, pronounced May 15, 1899, in the chancery suit of New York Enamel & Paint Co. v. Deyerle & Sons, wherein appellant filed its petition.</p>

<p>1. Construction oe Statutes—Ordinary Meaning—"May” and "Must.”— In construing Acts of Assembly, the words used should receive their ordinary meaning, unless it can be seen that the Legislature intended that they should receive a broader or narrower signification. The word “may” should not be construed to mean “must,” unless the clear policy and intention of the Legislature demands it.</p> <p>2. Construction oe Statutes—Revision of Laics—Changes—Presumption.—When there has been a general revision of the laws, the presumption is that the old law was not intended to be changed, unless a contrary intention plainly appears in the new.</p> <p>3. Venue—Suit by Circuit Judge—Section 3214 of Code.—The word “may” in clause seven of section 3214 of the Code is permissive only; and, although a circuit judge may sue in any county or corporation in an adjoining circuit, he is not precluded from suing in the circuit court of any county or corporation in his own circuit in which any of the defendants reside.</p>

<p>1. Settlements'—Discharge of One Debt—Others Outstanding—Case in Judgment.—The evidence in this cause does not justify the conclusion that the agreement of a grantee to pay to his grantor two thousand dollars in excess of a lien on the property held by the grantee, also extinguishes another large debt for money recently theretofore advanced to the grantor by the grantee, for the purpose of conducting business on the premises granted.</p> <p>2. Partnership—Input—Individual Bond—Rights of Partners Inter se— Aet of Limitations.—In a controversy between partners, a partner who is to contribute nothing but his time, labor and skill, and who has no authority to contribute money, cannot hold his copartner liable for money borrowed on his own credit and placed in the business. The mere fact that the partnership received the benefit of the money borrowed and placed in the business, in derogation of an express stipulation to the contrary between himself and his copartner, does not render the partnership liable therefor. If liable^, however, at all, it could only be upon an implied contract growing out of the use of the money, the limitation to which is three years.</p> <p>3. Act of Limitations—Absence from State—Code, Section 2933.—In the absence of any evidence that a defendant ever resided in the State, or that there has been any change of his residence, or that, in departing from the State he intended to obstruct, or did obstruct, the prosecution of any suit against him, the running of the statute of limitations is not stopped by section 2933 of the Code.</p>

<p>Appeal from decrees of the Circuit Court of Rockingham county, pronounced January 11, 1897, and November 1, 1897, in the chancery suit of Oorey’s Admr. v. Moore.</p>

<p>Upon petition for a writ of prohibition restraining the Hon. J. W. G-. Blaokstone, Judge of the Circuit Court of the city of Newport News, and Charles Delaney, from proceeding further in the matter of the application of the said Delaney for an ordinary license.</p>

<p>1. Separate Estate—Death of Wife Intestate—Effect as to Personal Estate.—A bequest of personal property to a married woman, “ to be her separate estate, free from the debts.and control of her present or any future husband,” without more, vests the property in her absolutely, and, upon her death intestate, it passes to her husband as her sole distributee, subject to the payment of her debts and funeral expenses.</p>

<p>Appeal from a decree of the Circuit Court of Highland county, pronounced October 4, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Error to a judgment rendered by the Circuit Court of Nelson county September 5, 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>

<p>Appeal from a decree pronounced by tbe Circuit Court of Smytb'connty August 29, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Eockingham county, pronounced July 1, 1899, in two chancery causes heard together under the style, respectively, of Shinner & Co. v. James Kavanaugh, and James Kavanaugh & Others v. Joseph Kavanaugh’s Admr. & Others.</p>

<p>1. Receivees—Settlement of Accounts—Death of Receiver—Personal Representative.—A court cannot settle the account of its receiver who has died and has no personal representative, nor can this court review such settlement, if made in the absence of such representative. The receiver’s estate is not represented in either court.</p> <p>2. Receivees—Compensation—Case in Jitdgmerit.—Courts should be diligent to see that property placed in the possession and under the control of their receivers is economically administered, and while special allowances to receivers are proper in some cases and under peculiar circumstances, the case in judgment is not one in which any extra compensation should have been allowed.</p> <p>3. Mining and Maniteactubing Companies—Liens of Laborers and Mechanics—Sow Perfected.—In order to perfect the lien given to laborers and mechanics for mining and manufacturing companies by section 2485 of the Code, it is necessary that the memorandum required by section 2486 should he filed in the proper clerk’s office within ninety days after such supplies are furnished or services rendered; but it is not necessary that this fact should appear from the memorandum, or from any paper filed therewith. It may he shown by evidence aliunde.</p>

<p>Appeal from a decree pronounced by the Circuit Court of Augusta county June 1, 1899, in a suit in chancery, wherein the appellee, Jacob Bunkle’s administrator, was the complainant, and the appellant and others were the defendants.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced May 5, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

Appeals from decrees pronounced by the Circuit Court of Rockingham county April 23, 1900, in two several chancery suits, wherein the appellants, respectively, were the complainants, and the appellees were the defendants.

<p>1. Evidence—Expert Testimony—When Admissible—Loading Car-Wheels.. Expert testimony is not admissible as to matters within the common knowledge of men of ordinary intelligence and information. The fact of danger or safety in loading car-wheels in a particular-mode is such a matter.</p> <p>2. Evidence—Comparative Methods of Doing Work—Loading Oar-Wheels.. The mode adopted by one railroad company of loading car-wheels-cannot be given in evidence to charge another company with negligence for not loading in the same manner, though the general practice of railroads in doing like work and the comparative safety of different methods may be shown by competent evidence. The-facts in this case do not warrant a departure from this rule.</p> <p>3. Master and Servant—Safe Machinery.—A mastei is not bound to furnish safe and sound machinery for the use of the servant. It is. his duty to use ordinary care and diligence to provide reasonably safe and suitable machinery and appliances for the servant.</p> <p>4. Master and Servant—Fellow-Servants—Case at Bar.—The question. of fellow service is not determined by gradation in employment. The mere fact that one servant is superior in authority to another, with power to employ and discharge that other, does not have the-effect of changing his relation of fellow-servant, unless his superiority places him in the category of vice-principal. In the case at. bar, the -supposed vice-principal was aiding the plaintiff in doing-the work, which was the proximate cause of his injury, and was his fellow-servant.</p> <p>5. Contributory Negligence.—There can be no recovery by a plaintiff whose contributory negligence was -the proximate cause of his-injury.</p> <p>£. Master and Servant—Risks Assumed.—A servant, when he enters the service of the master, assumes all the ordinary risks of such ■service, and also, as a general rule, all risks from causes which are known to him, or should he readily discernible hy a person of his age and capacity, in the exercise of ordinary care.</p>

<p>Error to a judgment of the Circuit Court of Alleghany county, rendered September 1, 1899, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>Appeal from two decrees of the Circuit Court of Alleghany county, pronounced March 28, 1898, and March 30, 1899, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

<p>1. Deeds op Trust—Subsequent Alienations by Grantor—Release of Part by Trust Creditor—Notice.—Ordinarily, when the equities of the various owners of land subject to a deed of trust are unequal, so that their respective parcels are liable in the inverse order of alienation, if the deed of trust creditor, having notice of this situation, releases a parcel which is primarily liable, he thereby discharges or releases those parcels which are subsequently liable in the order of their several liabilities, from an amount of the deed of trust debt equal to the value of the parcel released.</p> <p>2. Deeds—Recordation—Effect on Prior Purchaser—Notice.—The registry of a deed by a subsequent purchaser is no notice to parties who have acquired their rights before the time when the .deed is registered.</p> <p>3. Deed op Trust—Subsequent Alienation by Grantor—Notice.—To affect a prior mortgagee with notice of a subsequent deed made by the mortgagor, actual notice to the mortgagee must be shown, and the proof must be such as affects his conscience. It is not sufficient if it merely puts him upon inquiry. It must be so strong and clear as to fix upon him the imputation of mala fides.</p>

<p>1. Building Associations—Fixed Period for Maturity of Stoolc.—Under the laws of New York, wbicb govern this ease, a mutual building association does not possess tbe power to issue a certificate specifying a fixed period of maturity of its stock. Such a clause in the certificate must be construed as an estimated period of maturity, and the stockholder is only entitled to receive what his stock has actually earned.</p> <p>2. Building Associations—Shareholder—Fixed Period of Maturity— Borrower.—A shareholder in a mutual building association is bound by its articles and by-laws, and, having united in a business venture for the common benefit, cannot rely upon a contract with the association that the stock is to mature in a given time, -to the prejudice of the other stockholders. The fact that he is a borrowing member does not alter this relation, and he can only have credit at the time fixed for the maturity of his stock for what the stock has then earned. Neither the company, nor any of its agents, has power to guarantee that the stock will mature at a fixed period.</p> <p>3. Fraud—Misrepresentations—Opinions—Maturity of Stoolc.—A misrepresentation, the falsity of which will afford ground for an action for damages, or a bill for the rescission of a contract, must be of an existing fact, and not the mere expression of an opinion. The time within which stock will reach its par value, based on past transactions, -is the mere expression of an opinion.</p> <p>4. Fraud—Rescission—Election.—The right to rescind a contract on the ground of fraud must be promptly exercised on discovery of the fraud, or else will be deemed to have been waived. The election to rescind or affirm may be by words or acts, but once exercised, it is final and cannot thereafter be retracted.</p> <p>5. Building Associations—Monthly Instalments—Uncertainty as to Maturity.—Contracts with building associations to make monthly payments on stock till the stock attains its par value are not void for uncertainty. Such companies have no power to make anything hut indefinite contracts as to date of maturity of their stock.</p>

<p>Appeal from a decree pronounced by tbe Circuit Court of Kussell county in a suit in chancery, wherein the appellants were the complainants, and the appellees were the defendants.</p>

<p>1. Taxes—Liens—Suit to Collect—Method of Enforcing Collection—Jurisdiction in Equity—Petition.—Taxes can only be assessed, levied and collected in the mode pointed out by statute. When the State or a county has assessed and levied a tax, they are severally clothed with power to take the personalty by distress, and the realty by sale, for taxes in the most summary manner. And, although it be expressly declared that the tax shall be a lien on the property assessed, neither the State nor the county can maintain an independent suit in chancery to enforce such lien. If, however,- a suit in chancery for a sale of land be already pending, the State or county may, in accordance with a general practice in this State, come into such suit for the purpose of collecting a tax from the proceeds of such sale. This power courts of equity may exercise in order to clear the title it proposes to sell. A person is sometimes allowed to become a party by petition when he could not maintain an independent suit for the same cause of action. Commonwealth v. Ashlin, 95 Va. 145, distinguished.</p>

There were no formal pleadings in this case. The notice by which this proceeding was set on foot was in the words and figures following—to wit: “ To the Baltimore and Ohio Railroad Company, Lessee of the Winchester and Strasburg Railroad Company, and to the Southern Railway Company: “ Whereas, complaint was made to me of the failure of the Ro. 14 train of the Baltimore and Ohio Railroad Company (lessee, as aforesaid) and of the Ro. 36 train of the Southern Railway Company to…

<p>Appeal from a decree pronounced by tlie Circuit Court of Frederick county, at its March term, 1900, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were hipe defendants.</p>

This was an action of assumpsit brought by the plaintiff in error to recover the sum of $1,510.93, paid by the former in excess of the guaranteed rate of freight on certain shipments of coal from Appalachia, in this State, to Worthington, Ontario', over the defendant’s road and connecting lines. The case was tried by the court upon an agreed state of facts, and a judgment rendered in favor of the defendant.

<p>Petition for a writ of error to a judgment of the Circuit Court of Pulaski county.</p>

<p>1. Chancery Pleading and Practice—Injunction—Irreparable Injury— Trespass—Disputed Boundaries.—At the instance of a complainant in possession of land, with a clear title, or a prima facie title, a court of equity will enjoin a trespasser threatening irreparable injury, or often repeated trespasses. But even when there is a prima facie title, if it is developed by the pleadings and proof that the real' controversy is a disputed boundary of land, the bill, as a rule, should be dismissed for want of jurisdiction, though, in urgent cases, the court may protect the property until the right can be determined at law.</p> <p>2. Irreparable Injury.—An injury is said to be irreparable when it is grievous, or at least material, and not adequately reparable in damages. ' ,</p> <p>3. Injunctions—Trespass—Acts of Oumership.—A court of equity will not enjoin a solvent defendant from committing .acts, not amounting to waste, which are no more than acts of ownership by a rival claimant.</p>

The plaintiff in error was indicted for breaking and entering, in the nighttime, “a certain storehouse, the property of P. F. Spitzer and Gr. W. Hess, partners doing business under the firm name of Spitzer & Hess,” with intent to commit larceny. The evidence of P. F. Spitzer, a witness for the Commonwealth, is: “ I am engaged in the stationery business, in the firm of Spitzer & Hess, on south Main street, in the town of Harrison-burg, Ya.

<p>1. Criminal Law—Indictment—Evidence Before Brand Jury.—The sufficiency of the proof upon which a grand jury finds an indictment cannot be inquired into on a motion to quash the indictment.</p> <p>2. Criminal Law—Discharge from Prosecution—Injunction Against Prosecution—Time Not Counted.—A prisoner is not entitled to he discharged from prosecution on the ground that four regular terms of a county court elapsed after the indictment was found without a trial, where the trial was prevented by an injunction from a Federal court obtained at the instance of the prisoner. While such an injunction is not among the exceptions enumerated in the statute providing for such discharge, it- is within its spirit and reason. The object of the statute is to insure speedy trials, and, in enumerating certain exceptions, it was not intended to exclude others of like nature.</p> <p>3. Criminal Law—Embezzlement—Evidence—Value of Bonds Embezzled— Presumption of Innocence.—In the prosecution of a prisoner for embezzlement by substituting .worthless for good securities, the worthless character of the securities substituted must be shown by witnesses who are present and testify as to facts within their personal knowledge. The difficulty or even impossibility of procuring such witness cannot justify the introduction of improper evidence. The prisoner is entitled to be confronted by his accusers, and cannot be convicted on hearsay evidence or mere inferences deduced by witnesses. The presumption of innocence attaches to the proof of every circumstance necessary to establish his guilt.</p> <p>4. Criminal Law—Evidence—Bias of Witness.—A prisoner may. always show that any witness introduced against him is influenced by prejudice. It is the province of the jury to pass upon the weight and value of evidence, and, in doing so, they are authorized to consider the temper, feeling or bias of a witness in making up their judgment as to the weight to be attached to his evidence.</p> <p>5. Cbihinal Law—Embezzlement.—In a prosecution for embezzling the funds of a corporation, it is error to instruct the jury that they must find the prisoner guilty if they believe that he embezzled the funds with intent to wrong and defraud the corporation, and thereby render it unable to meet its obligations, as it is as much a crime to embezzle the funds of a solvent as of an insolvent corporation. But it is not error to the prejudice of the prisoner.</p> <p>6. Cbiminal Law—Embezzlement—Conversion Under Claim of Ownership. The conversion of property under a bona fide claim of ownership is not embezzlement. To constitute embezzlement there must be a fraudulent intent to deprive the owner of his property.</p>

<p>Error to a judgment of the County Court of Mathews county, rendered November 18, 1898, on a prosecution of the plaintiff in error for unlawful fishing-—the plaintiff in error Laving been convicted and adjudged to pay a fine of $25, and the Circuit Court of said county having refused a writ of error.</p>

Error- to a judgment of the County Court of Madison county, rendered September 4, 1899, on a prosecution for murder, wherein the plaintiff in error was found guilty of murder of the first degree, and sentenced to 'be hanged.

<p>1. Criminal Law—Oath •of Jurors—Record.—A record which shows that the jury “were sworn the truth of and upon the premises to speak” sufficiently shows that the jury were sworn in due form.</p> <p>2. Appeal and Error—Criminal Law—Joinder in Demurrer.—An objection for failure to join in a demurrer to an indictment cannot be made for the first time in this court.</p> <p>3. Criminal Law;—Oral Instructions.—It is common practice to instruct a jury orally as to the law 'of the case, and, unless objected to at the time for good reason, it is not error to do so.</p> <p>4. Criminal Law—Indictment—Signature of Foreman of Grand Jury.— It is not necessary that the record should show that an indictment was signed by the foreman of the grand jury.</p> <p>5. Criminal Law—Unsigned Yerdict—Record.—It is not necessary that a yerdict which was received in open court and recorded by the clerk should be signed by the foreman of the jury.</p> <p>6. Criminal Law—Evidence of Clia/raeter—Instructions.—In a criminal prosecution it is not error to refuse to instruct the jury “that the character of the accused, good or bad, when proved, may always be received and weighed by them in favor of or against him, as the case may be,” and, in lieu thereof, to instruct “that the character of a prisoner, when proven, whether good or bad, is a fact to be considered by the jury, but its weight as affecting the guilt or innocence of the prisoner is a matter for the determination of the jury in connection with other facts proven in the case.”</p> <p>7. Criminal Law—Rape—Difficulties of Proof—Instruction—Argument.— In a prosecution for rape it is entirely proper for the prisoner’s counsel to argue before the jury “that accusations of this sort are easily made, hard to be proved, and still harder to be defended by one ever so innocent,” but this language is not proper as an independent instruction, and it is not error to refuse to give it as such.</p>

<p>Error to a judgment of the County Court of Washington county, rendered June 28, 1899, in a prosecution in the name of the Commonwealth of Yirginia against the plaintiff in error.</p>

<p>Error to a judgment of the Circuit Court of Rockbridge county, rendered Eebruary 26, 1900, affirming tbe judgment of tbe County Court of said county, rendered November 17, 1899, whereby plaintiff in error was sentenced to tbe penitentiary for a term of four years.</p>

<p>1. Appeal and Error—Exclusion or Rejection of Evidence—Bill of Exception—Particularity Required.—In order that this court may pass upon the action of the trial court in excluding or rejecting evidence, its materiality must be shown. If the witness is permitted to answer and the answer is excluded, the bill of exception should give it; if not so permitted, the bill should show what it was expected or proposed to prove by the witness. Otherwise, this court cannot say. that any injury has been done to the party complaining.</p> <p>2. Homicide—Dangerous Charade^' of Deceased.—In the absence of evidence even tending to show a killing in self-defence, the accused cannot introduce evidence of the dangerous character of the deceased.</p> <p>3. Homicide—Self-Defence—Necessity.—A prisoner cannot justify a killing on the plea of necessity, unless he were without fault in bringing that necessity upon himself. Bash’s Case, 88 Ya. 172, overruled.</p> <p>4. Instructions—Evidence to Support—Intent—Presumption.—In the case at bar, there was evidence tending to support the instruction given, it correctly propounded the law, and it was therefore properly given. In the absence of evidence to the contrary, a man is presumed to have intended to do what he did.</p> <p>5. Homicide—Self-Defence—Necessity—Retreating to the Wall.—Where death ensues on a sudden provocation or sudden quarrel, in order to reduce the offence to killing in self-defence, the accused must prove that, before the mortal blow was given, he declined further combat and retreated as far as be could with safety, and that be killed tbe deceased through the necessity of preserving bis own life, or that there was reasonable ground to believe that the killing was necessary to preserve his own life, or save himself from great bodily harm.</p>

This case has once 'before been heard, in this court, ante p. 840. The facts of the case sufficiently appear in the opinion of the court. The instructions offered by the prisoner and refused, and referred to in the opinions as “ Instructions 1, 2, 2| and 3i were as follows: “ 1.

<p>1. Sale of Liquors—What Constitutes Sale by the Callón.—To constitute a sale by the gallon there must be a sale and. delivery to thé buyer of an entire gallon. Setting aside a gallon in a jug and marking it for the purchaser, who has paid for it, and subsequently delivering it in smaller quantities to the purchaser, or on his order, is an evasion of the law.</p> <p>2. Sale of Liquors—Indictment for Sale to Two Jointly—Proof of Separate Sales—Absence of Plea—Objection to Evidence.—Where one is indicted for selling liquor without license to two persons jointly, and also for selling to the same persons jointly in quantities of less than one gallon, and the evidence shows a separate sale to each of them, this court will not disturb a verdict of conviction when no plea was interposed, and no objection made to the introduction of the evidence.</p>