Volume 99 — Virginia Reports

'Error to a judgment of the Law and Equity Court of the city of Richmond, rendered July 3, 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. This was an action of trespass on the case, brought to recover damages for a personal injury sustained by the defendant in error, while walking along the streets of the city of Richmond.

<p>Error to a judgment of the Circuit Court of the city of Richmond, rendered July 3, 1899, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Franklin county.</p>

The facts of the case are sufficiently stated in the opinion. The case turned largely on the pleadings. The action was trespass on the case to recover damages for the diversion of water from the plaintiff’s mill, and for the failure of defendant company to keep a dam in repair and supply water to the mill.

<p>Appeal from a decree of the Circuit Court of Buena Vista, pronounced January 7, 1899, in a suit in chancery under the style of Jordan & Co. v. Buena Vista Company & Others, in which both appellant and appellee were defendants.</p>

<p>Error to a judgment of the Corporation Court of the city of Petersburg, rendered March 4, 1899, in a proceeding by motion, after due notice, to have certain debts secured by deed of trust marked satisfied, in which motion the defendant in error was the plaintiff, and the plaintiffs in erorr were the defendants.</p>

<p>1. Personal Injuries—Negligence Must he Charged—Instructions.—In an action to recover damages for a personal injury it is necessary to show that the injury was caused by the negligence of the defendant or his servant. It is error, therefore, to instruct the jury to find for the plaintiff if they believe that the injury was caused by the defendant’s servants. The omission of the element of negligence is fatal, and is not cured by other correct instructions given.</p> <p>2. Instructions—Read as a Whole—Inconsistent and Contradictory.— While instructions must he read as a whole, and defects in one instruction may be cured by a correct statement of the law in another where the court can see that, taking the instructions as a whole, the defect could not have misled the jury, yet if two instructions are inconsistent and contradictory, the verdict will be set aside, as it is impossible to say whether the jury was controlled by the good or bad in arriving at a conclusion.</p> <p>3. Instructions—No Evidence to Support.—It is error to give an instruction which there is no evidence to support, as it tends to mislead the jury.</p> <p>4. Instructions—Errors WMoh Cannot he Assigned—Estoppel.—After verdict, a party cannot avail himself of an erroneous instruction when he has asked for an instruction containing the same error. After inviting the court to commit error, he cannot have the verdict set aside for the error into which the court has been thus misled.</p> <p>5. Pleading—Declaration—Demurrer—Personal Injuries—Circumstances of Collision.—In an action for personal injuries inflicted by the alleged negligence of the servants of a railroad company, a declaration which states that the plaintiff was struck by the defendant’s car while she was on its track, “upon which she just stepped,” is bad on demurrer, as it intimates that the collision which caused the injury was simultaneous with the act of the plaintiff in stepping on. the track.</p>

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

<p>Error to a judgment of the Law and Equity Court of the city of Richmond, rendered October 12, 1899, in an action of assumpsit, wherein the plaintiff in error was the plaintiff, and the defendants in error were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of tlie county oi [Frederick, pronounced March 24, 1900, in the chancery suit of McKee and Others v. Barrick and Others, to which the appellant, E. Holmes Boyd, trustee, was admitted a party defendant on his petition.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county, pronounced May 2, 1899, in a chancery suit therein pending under the style of Irby & Others v. Williams’ Adm’r & Others, in which the appellant filed his petition.</p>

<p>1. Chancery Jurisdiction—Cloud on Title—Complainant in Possession— Injunction.—A bill to remove a cloud upon the title to land or to restrain the recordation of a paper that will cast a cloud thereon, must aver title and possession in the complainant; and, even when such averments are made, the bill will be dismissed, at the hearing, for want of jurisdiction, if the evidence fails to show such possession.</p>

v. The Berryville Land and Improvement Co. S Others, and from decrees pronounced by the Circuit Court of Clarke county in the same case at May term, 1893, August 22, 1893; at the October term, 1893, and at a special term held January 8, 1898.

<p>Error to a judgment of the Hustings Court of the city of Richmond, rendered December 18, 1899, on an appeal from a judgment of the Police Justice of said city by whom the plaintiff in error was fined for doing business in said city without having first obtained a license therefor.</p>

<p>Appeal from a decree of the Circuit Court of the city of Lynchburg, pronounced June 17, 1899, in a suit in chancery, wherein the appellee was the complainant, and the appellant and another were the defendants.</p>

<p>1. Negligence—Ordinary Care—What Constitutes.—Ordinary care does not require one absolutely to refrain from exposing himself to danger. It does require, however, such watchfulness and precaution to avoid coming into contact with danger as a person of ordinary prudence would use under like circumstances for his own protection, in view of the danger to be avoided.</p> <p>2. Streets—Obstruction—Avoidance—Evidence.—Where a person in the lawful use of a highway encounters an obstruction, he may attempt to pass it, if it is consistent with reasonable care to do so, and this is generally a question for the jury, depending upon all of the circumstances of the particular case. It is pertinent, however, in connection with other facts, to enquire whether the danger could have been altogether avoided without serious inconvenience, and it is error to refuse to permit such enquiry to be made.</p> <p>3. Street Railways—Removal of Snow—Obstructing Streets—Ordinary Care.—A street car company, in operating its cars upon a street, has a right to remove snow from its track to another part of the street, but, in doing so, it has no right to bank up the snow so as to make it dangerous to use or cross the street, unless the work of cleaning the track necessarily obstructs passage, and then the company is bound to do all that ordinary care requires in removing the obstruction.</p> <p>4. Street Railways—Extraordinary Snow Storms—Obstructing Streets— Ordinary Care.—Extraordinary care is not required of a street car company to avoid obstructing a street merely because of an extraordinary snow storm. All that is required of such company is ordinary care, but what is ordinary care depends on the facts of the particular case.</p> <p>5. Instructions—Objection After Terdiet.—As a general rule, objections to instructions come too late after verdict.</p> <p>6. Contributory Negligence—All Facts and Circumstances to be Considered.—In determining the fact of contributory negligence on the part of a plaintiff, what others did, and what he thought could be done in the exercise of due care, are facts to be considered. The solution of that question, however, ought not to be made to depend on those two facts alone, but on all the facts and circumstances of the case tending to prove or disprove such contributory negligence.</p>

<p>1. Arbitration—Boundaries—Parol Submission—Parol Award.—Parties may agree by parol to settle by arbitration the dividing line between their lots of land, and an award made in pursuance of a submission for that purpose will bind the parties, although the arbitrators make a parol award, where the submission does not require the award to be in writing.</p> <p>2. Resulting Trust—Payment of Purchase Money—Parol Evidence.— Where one buys land with the money of another, and takes a conveyance to himself, a trust results by operation of law in favor of the party furnishing the money. The trust may be established by parol, but the proof must be clear.</p> <p>3. Resulting Trust—Payment of Part of Purchase Money—Aliquot Part.— In order to establish a resulting trust, arising from the payment of purchase money by another, it is not necessary that the beneficiary should have furnished the whole of the purchase money, nor an exact aliquot part thereof. If the amount paid is certain, a trust will result with respect to an undivided share of the land proportioned to his share of the whole price.</p>

<p>1. Pleading—Declaration—Similar Counts—Demurrer—Harmless Error.— A plaintiff is not injured by sustaining a demurrer to two counts of a declaration where all the evidence that could have been given in under those counts can he given in under remaining counts of the declaration.</p> <p>2. Master and Servant—Personal Injury of Servant—Proximate Cause— Concurring Negligence of Master and Fellow Servant.—Where a servant is injured through the failure of the master to perform any of the duties which the law imposes on him personally, such as providing, inspecting, and keeping in repair reasonably safe and suitable machinery, instrumentalities, and appliances for the use of a servant in his employment, and such failure proximately contributes to the injury, it is no defence for the master that the negligence of a fellow servant also contributed to the injury. But tbe negligence of the master must proximately contribute to the injury. If the injury follows as a direct and immediate consequence of some intervening cause, the law will refer the injury to the last or proximate cause, and will not trace it to that which was remote.</p> <p>3. Instructions—Misleading.—It is not error to refuse instructions. which, if not erroneous, are misleading.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county, pronounced January 21, 1899, in a suit in chancery, wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1, Master and Servant—Personal Injury—Contributory Negligence—Infants—Maturity and Experience.—The evidence in this case shows that the deceased, a boy twelve years and eight months old, was competent for the service he was employed to (render—having both experience and capacity; that the defendant in error was not negligent in employing him on account of his youth, and was otherwise free from fault; and that the deceased came to his death as the result of his own persistent and reckless negligence, or at least was guilty of contributory negligence, with which he was properly chargeable by reason of his maturity and intelligence.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced June 27, 1900, in a suit in chancery, wherein the creditors of the Virginia Banking and Trust Company were the complainants, and the said company and the appellant and another were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Augusta county, rendered May 17, 1900, in an action of trespass on the case, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant. Verdict for $2,000.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced June 27, 1900, in a suit in chancery, wherein the appellant was the complainant, and the appellee was the defendant.</p>

<p>1. Contracts — Novation— Change of Securities — Marking “Paid.”— Whether or not a debt has been novated is a question of fact depending upon the intention of the parties. In the absence of satisfactory proof to the contrary, the presumption is that the debt has not been extinguished by taking the new evidence of indebtedness; such new evidence, in the absence of an intention, express or implied, being treated as a conditional payment merely. A mere change of securities of equal dignity is not a novation, unless plainly so intended by the parties; nor is the change of position of parties on the paper. Marking an old note “paid,” when a new note is given, is not, standing alone, a controlling circumstance to show novation, especially when this is the custom of the parties in such transactions.</p> <p>2. Contracts—Novation—Burden of Proof.—Those who rely upon a satisfaction and discharge of the original debt by the creation of a new obiglation must make it clear that the intention of the parties was to extinguish the original debt and create a new one.</p> <p>3. Tender—Conditions.—Tender of payment of a debt conditioned on the surrender of collaterals held for that and other debts, is not a good tender.</p> <p>4. Chancery Practice—Suit Against Endorser—Parties.—The maker of a note is a necessary party to a suit in chancery to subject the lands of the endorser, and, in order to charge the endorser, it is necessary to aver and prove dishonor by the maker, and notice thereof to the endorser.</p> <p>5. Husband and Wiee—Use of Wife’s Property—Presumption.—Where the husband has been permitted to use the separate estate of his wife as his own, the law presumes a gift, and, in a contest with his creditors, the burden is on the wife to show that the original transaction was a loan, and that there was a contemporaneous agreement on the part of the husband to repay it.</p>

<p>Error to a judgment of the Circuit Court of Prince Edward county, rendered 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. Yerdict for $5,000.</p>

<p>1. Suatute of Limitations—Death 6y Wrongful Act—Demurrer.—Where the declaration in an action for death by wrongful act shows on its face that the death occurred more than twelve months before action brought, advantage may he taken of the limitation by demurrer.</p> <p>2. Suatute of Limitations—Death hy Wrongful Act—Second Action After Yoluntary Non-Suit—Code, Secs. 2919, 2934•—Neither the provisions of Code, section 2919, as amended, nor of section 2934, as amended, are applicable to a second action for death by wrongful act, where the first action was brought in due time, but resulted in a voluntary non-suit.</p>

<p>1. Condemnation Proceedings—Effort to Purchase—Condition Precedent. A city council, in Virginia, has no power to institute, and the courts no jurisdiction *to entertain, any proceeding to condemn lands wanted for the purposes of the city, until after the council has made an unsuccessful attempt to purchase them from the owner. This is in the nature of a condition precedent, and compliance therewith must affirmatively appear in the proceedings. Code, sec. 1074.</p> <p>2. Condemnation Proceedings—Effort to Purchase—Preliminary Correspondence.—Before instituting condemnation proceedings, it is the duty of a city council, after it has determined to open or extend a street, to make a hona fide effort to agree with the owner of lands needed for the street for the land wanted. Preliminary correspondence to ascertain the price of the land, before it has been determined to open or extend the street, is not a sufficient compliance with section 1074 of the Code.</p>

<p>1. Insurance—Insurable Interest—Debtor and Creditor—Limit of Recovery. A credtior may insure the life of his debtor, or may acquire, by assignment, a policy on his life after it has been issued to the debtor. The interest of the creditor in the policy, however, will be limited to the amount of the debt' at the time of the death of the assured, together with such premiums as the creditor has paid to preserve the policy, with interest thereon.</p> <p>2. Life Insurance—Assignment by Debtor to Creditor—Terms of Assignment—Limit of Recovery.—It is immaterial whether the assignment of a life policy by a debtor to his creditor is absolute and unconditional, or is collateral for the amount of the debt. In either case, equity will regard the assignment as only a collateral security.</p> <p>3. Evidence—Corporation as Party to Contract—Death of Other Party— Competency of Agent of Corporation.—Bank directors are competent witnesses to testify in behalf of the bank in an action by the bank against a third person, although they were the agents of the bank who negotiated the transaction in suit with the third party, and the latter is dead.</p>

<p>Appeal from a decree of the Circuit Court of Alleghany county, pronounced March 26, 1900, in the chancery cause of Kelley and Others v. Kelley and Others, in which appellant filed his petition.</p>

<p>Error to a judgment of the Law and Equity Court of tlie city of Richmond, rendered March IT, 1900, in an action of assumpsit, wherein the defendant, in error was the plaintiff, and the plaintiff in error was the defendant.</p>

' Appeal from a decree of the Court of Law and Chancery of the city of [Norfolk, pronounced January 23, 1900, in a suit in chancery, wherein the appellant was the complainant, and the appellees-were the defendants.

<p>1. Chancery Practice—Statute of Limitations—Issue—Exceptions.—Tbe defence of the statute of limitations to a claim asserted before a commissioner in chancery may be made by an exception to tbe commissioner’s report. Tbe mere fact that, subsequently, tbe claimant asserts bis claim by a petition filed in' tbe cause, upon which no process issues, does not render it necessary to make tbe issue of tbe bar of tbe statute again.</p> <p>2. Statute oe Limitations—New Promise—Admission in Will—Promise to Account—Several Debts.—A letter asking for an account and promising to pay it, will not be held to apply to old accounts, tbe last items of which are from seven to fifteen years’ standing, and which are subject to sundry payments and set-offs, leaving uncertain and unascertainable balances, when tbe writer owes tbe promisee an account then current, and another of recent date; nor will a clause in a will of tbe debtor admitting a debt be held to apply to such old accounts, but both letter and will will be deemed to be applicable only to tbe current account, and tbe one of recent date.</p> <p>¿5. Statute oe Limitations—New Promise—Uncertain Amount—Extrinsic Evidence.—When there is a promise to pay, not specifying any amount, but which can be made certain as to tbe amount, extrinsic evidence may be received to ascertain tbe amount due. It is sufficient if tbe true amount is capable of being made certain.</p> <p>4. Statute oe Limitations—New Promise—Admission.—A new promise to remove tbe bar of tbe statute of limitations must be determinate and unequivocal; and to imply a promise of payment from a subsequent acknowledgment, such acknowledgment must be an unqualified admission of a subsisting debt which tbe party is liable for and willing to pay.</p>

<p>Error to a judgment of tlie Corporation Court of the city of Danville, rendered on the 19th day of April, 1900, in an action of assumpsit, wherein the plaintiffs in error 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 Richmond, rendered July 13, 1900, in an action of debt, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.</p>

<p>Appeal from a decree of the Circuit Court of the city of Lynchburg, pronounced March 10, 1900, in a suit in chancery, wherein the appellee, Moorman, was the complainant, and the appellant and others were the defendants.</p>

<p>1. Statute oe Limitations—Action by Surety Against Co-Surety for Contribution.—The right of action of a surety who calls upon a co-surety for contribution is based upon the implied promise growing out of the equitable relations which the sureties bear to each other, and not upon the written contract by which they became sureties. The statute of limitations applicable to such a case is three years, and not the limitation which applies to the bond, note, or other writing which the surety has been compelled to pay.</p>

<p>1. Building Contract—Sub-Contractor—Case in Judgment.—Under the terms of the contract in suit, the owner of the building being erected had the right, as against the contractor and other sub-contractors, to bind himself personally to a sub-contractor for a portion of the work, and deduct the cost thereof from the contract price agreed to be paid to the contractor.</p> <p>2. Mechanic’s Lien—Sub-Contractor—Dxtra Work.—In a contest between the owner of a building and sub-contractor, extra work not covered or contemplated by the original contract, 'and which has been paid for by the owner, is to be considered a separate and distinct transaction.</p> <p>3. Mechanic’s Lien—Discount, of Contractor’s Notes—Assignment.—As against sub-contractors, it is not error to allow the owner credit for notes discounted by him which were given by the contractor to other sub-contractors for work done or materials furnished, nor. for similar notes held by banks and taken up by the owner, nor for orders drawn on the owner by the general contractor in favor of sub-contractors. Each of such credits represents money paid by the owner for work done or materials furnished for the erection of the building. They are not such assignments or transfers as are prohibited by Act of Assembly, 1895-6, page 379.</p> <p>4. Mechanic’s Lien—Reservation, of Percentage—Sub-Contractor.—The reservation by the owner of a percentage of the cost of construction of a building until its completion, with the right to supply any deficiency and deduct the cost from any money due or to become due under the contract, is for the benefit of the owner alone, and not for sub-contractors who may he thereafter employed.</p> <p>5. Mechanic’s Lien—Sub-Contractors—Personal Liability of Owner— Preferred Claim.—The owner of a building in course of construction is under no obligation to protect the interest of a sub-contractor unless the latter has complied with the provisions of the statute (Code, sec. 2479, as amended, Acts 1893-’4, p. 523), rendering the owner personally liable to the sub-contractor to the extent that such owner is indebted to the general contractor. Where, however, such personal liability has been duly created, it becomes a preferred claim, and is to be paid in full in preference to the claims of other sub-contractors who have not obtained a like advantage, but have subsequently perfected their liens under section 2477 of .the Code.</p>

The facts of this case, so far as necessary to a clear understanding of the opinion of the court, are as follows: On January 1, 1886, J. II. Durham, D. L. Whittaker and D. A. Early entered into a mercantile co-partnership', under the style of D. L. Whittaker & Co. D. L. Whittaker furnished a stock of goods valued at three thousand dollars. Durham and Early wrere to pay Whittaker interest on two-thirds of that amount, and each party was to share equally all profits and losses.

<p>1. Pleading—Set-Off—Sec. 8299 of Code—Replication—Jeofails—Nominal Damages.—By the express terms of section 3300 of the Code, every issue in fact upon a plea of set-off under section 3299 must be upon a general replication that the plea is not true. The statute of jeofails does not apply to the omission to file such replication, and the failure to reply entitles the defendant to nominal damages, but the defendant waives the irregularity by going to trial without it.</p> <p>2. Pleading—Motions—Set-Off Under Code, Sec. 3299—Failure to Reply-Verdict.—In a proceeding by motion to recover a judgment for money, the defendant pleaded non-assumpsit and a special plea of set-off under section 3299 of the Code. Issue was taken on the plea of non-assumpsit, but no replication was filed to the special plea, and no evidence offered thereunder. The jury was sworn to try the issues joined. After the verdict for the plaintiff, the defendant moved to set it aside because no issue had been joined on the special plea.</p> <p>Reid: The motion came too late. The defendant had the right to demand a replication, and, having failed to do so, he is deemed to have consented to a trial on the pleadings as they were.</p> <p>3. Appeal and Error—Failure to Give Nominal Damages.—The failure to give nominal damages, unless it be upon a matter which involves the settlement of a right other than a right to recover damages, is not a ground for reversal.</p> <p>4. Pleading—Motions—Latitude.—In a proceeding by motion, much greater latitude is allowed in pleading than in common law actions.</p>

<p>1. Appeal and Error—Roadways—Final Ord&rs—Oo'de, Seo. 3453.—An order of a county court appointing commissioners to ascertain what would he a just compensation for land proposed to be taken for a public road is not a final order, and no appeal lies from it. Section 3453 of the Code, which gives an appeal of right to any person who thinks himself aggrieved by an order in a controversy concerning a roadway, refers to a final order. Jeter v. Board, 27 Gratt. 920 criticised.</p> <p>2. Appeal and Error—Roadioay—Remanding Cause—Dismissal.—On an appeal from a county court to a circuit court, in a .road ease, an order of the circuit court which, without deciding any question in the cause, remands it to the county court for further proceedings, has the same effect as a dismissal of the appeal.</p>

<p>1. Contracts—Goods to be Manufactured—Surplus—Inability to Perform—negligence.—A defendant who has contracted to furnish certain goods to the plaintiff, “out of his surplus product, and so as not to interfere with existing contracts,” cannot be excused from performance on the ground of inability, where the inability was the result of the defendant’s failure to exercise reasonable diligence and care in putting his machinery in a condition to enable him to perform.</p> <p>2. Damages—Breach of Contract to Deliver Goods.—Under the evidence in this cause, the measure of the plaintiff’s damages for the failure of the defendant to deliver goods according to contract, which the plaintiff has been compelled to purchase of another, is the difference between the contract price and the price which the plaintiff has been compelled to pay.</p> <p>3. Contracts—Failure to Deliver Goods—Refusal to Accept—Damages.— Under a contract to pay for a given quantity of ice per year, whether the whole quantity is accepted or not—the same to be delivered from day to day as the purchaser may require—the vendor is not entitled to recover for the difference between the quantity contracted for and that actually accepted where the failure to accept more was due to the inability of- the vendor to furnish the ice as the parties had agreed.</p>

<p>1. Fraud—Proof Required—Case at Bar—Arbitrary Refusal to Accept Goods.—The law does not presume fraud, but, when charged, it must be clearly and distinctly proved. In the case at bar, the defendant is charged with bad faith in refusing to accept certain rock which it had agreed to accept if, upon test, it proved satisfactory. Circumstances were relied upon to show that the rock was really satisfactory, and that the refusal to accept was purely arbitrary, but they fail to establish bad faith with the clearness and distinctness required by law.</p>

<p>1. Delinquent Lands—Purchase by Commonwealth—Equity of Redemption—Second Sale—Cloud on Title—Suit to Remove.—After the purchase by the Commonwealth of land sold for delinquent taxes, the former owner and those claiming under him have only a right of redemption in the land, which must be exercised in the mode prescribed by law. Until redeemed, there can be no further sale for taxes, nor can the former owner, before redemption, maintain a suit to vacate a second sale for delinquent taxes, or to remove an alleged cloud upon his title by .reason of such sale, as the whole title, legal and equitable, is vested in the Commonwealth by the first sale.</p> <p>2. Delinquent Lands—Purchase by Commonwealth—Redemption—Second Sale.—The right to redeem land purchased by the Commonwealth for delinquent taxes is unaffected by a Second sale of the land for taxes, or by a deed acquired under such second sale, as such second sale and all proceedings thereunder are without authority of law.</p>

<p>1. Statutes—Enrolled Bill—Printed Acts—Conflict.—In case of conflict between the enrolled bill and the published act, the enrolled bill is the best and controlling evidence of the legislative intent.</p> <p>2. Construction oe Statutes—Construction—Interpolating Words.— Courts cannot, by construction, interpolate into statutes words which do not appear there, when such interpolation is not plainly deducible from the context or other portions of the act, and when the omission would not render the act incongruous or unintelligible, nor lead to absurd results.</p> <p>3. Newport News—Charter — Police Justice — Removal — Appeal.—The charter of the city of Newport News, as amended by an act approved January 17, 1900, does not give the chief of police of said city, upon removal, a right of appeal to the Corporation Court of said city. Acts 1899-1900, page 70.</p> <p>4. Chancerv Jurisdiction—Title to Office—Prohibition.—A court of chancery has no jurisdiction to try a question of title to an oflice which has been passed upon by competent authority from whose judgment there is no appeal, and the attempt to exercise such jurisdiction will be restrained by a writ of prohibition.</p>

<p>1. Trusts and Trustees—Discretionary Trust—Imperative Power.—A i trust cannot be said to be discretionary which requires the trus- [ tee to provide and supply all necessary provisions and supplies for the grantor and his minor children, and creates a charge therefor on the corpus of the estate granted. The power con-f ferred is imperative, and, upon the death of one of two trustees, the power survives to the survivor, and if not exercised by him, a court of equity has jurisdiction to carry it into execution.</p> <p>2. Trusts and Trustees—Oare Required of Trustee.—The trustee in a deed of trust containing the above mentioned powers and authority is held to the same degree of prudence and care as a reasonably prudent and careful man would exercise in the conduct of his own affairs under ilke circumstances.</p> <p>3. Trusts and Trustees—Expenditure of Corpus.—Under the terms of the above trust, the trustee had the right to charge the corpus of the trust subject with the necessary support of the grantor and his minor children, and, having in good faith expended more than the full value thereof in a manner fully authorized by the provisions of the deed, there is nothing left for division among the heirs of the grantor, and there can be no decree against the trustee.</p>

<p>Appeal from a decree of the Circuit Court of Henrico county, pronounced Hay 19, 1900, in a suit in chancery wherein the appellees were the complainants and the appellant was the defendant.</p>

<p>1. Chancery Practice—Reference for Account—Reference to Take Evidence.—Where, from the nature of the case and of the relief sought, an account is necessary to enable the court to do justice between the parties, an order of reference will not be entered until its propriety has been made to appear by the evidence; and if such a case be submitted upon the bill without proof, and an answer denying its allegations, it should be dismissed; but where there is nothing in, the pleadings and proofs to make an account proper and necessary, and the court has improvidently granted an order of reference, it is harmless error, for which the cause should not be reversed.</p> <p>2. Chancery Practice—Estimates of Values—General Average of Values. All estimates of values are uncertain, and where the credibility and integrity of the witnesses are unimpeached, and none of them enjoy peculiar opportunities or advantages in forming their estimate, it is not error to take the average estimate of all of them.</p> <p>3. Trusts and Trustees—Trustee-Purchaser—Voidable Sale—Rights of Creditors.—A trustee cannot purchase the trust-subject from the beneficiary, regardless of the question of good or bad faith in the premises. The transaction, however, is not void, but voidable only, but only voidable at the instance of the beneficiary. The privilege of avoidance does not extend to the creditors of the beneficiary, though the relationship of the parties may be considered in determining the question of actual fraud raised by creditors of the beneficiary.</p> <p>4. Chancery Practice—Cancellation—Inadequacy of Price.—Mere inadequacy of price, if so gross as to shock the conscience and furnish satisfactory and decisive evidence of fraud, is sufficient ground for cancelling a conveyance or contract.</p> <p>5. Chancery Practice—Cancellation—Bad Faith and Inadequacy.—Bad faith, undue advantages taken, or .oppression exercised, or undue influence exerted, coupled with inadequacy of price, will induce a court of equity to grant relief, defensive or affirmative.</p>

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced December 9, 1899, in a suit in chancery, wherein the appellants -were the complainants, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Erauiklin county, pronounced October 6,1899, in a snit in chancery under the style ■of Prunty for &c. v. Saunders S Others, wherein the appellant filed his petition and was admitted as a party.</p>

<p>1. Trusts and Trustees—Duty of Trustee in Deed to Secure Debts.—A trustee, in a deed to secure debts, is the agent of the debtor as well as of the creditor, and it is his duty to act justly and impartially with respect to both. He must in all respects conform to the terms of the deed, and where a discretion is vested in him he should exercise it prudently and fairly.</p> <p>2. Trusts and Trustees—Advertisement—“Duly Advertise”—Discretion. No general rule can be laid down as to the length of time property should be advertised for sale. Ordinarily, a direction to “duly advertise” is sufficiently complied with by advertising in accordance with the prevailing custom adopted by prudent men in the management of their own affairs, or by following the rule of courts in relation to sales of like property in the jurisdiction in which the property is situated. Morriss v. Ins. Co., 90 Va. 370, disapproved.</p> <p>3. Chancery Pleading and Practice—Improper Conduct of Complaint-ant—Belief.—As a- general rule, courts of equity will not relieve against conditions brought about by the improper conduct of the party seeking relief.</p>

<p>Error to a judgment of the Circuit Court of Accomac county, rendered October 3, 1899, 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. Delinquent Lands—Application to Purchase—Code, Sec. 666, as Amended.—The act of February 11, 1898, amending section 666 Code (Acts 1897-’8, p. 343) is constitutional. An applicant to purchase, however, under that act must substantially comply with the terms of the act by offering to pay the amount required by law. If the application attempts to specify what the applicant will pay, it must cover everything required by the statute.</p> <p>2. Chancery Practice—Bill to Remove Cloud on Title—Title—Possession. A bill to remove a cloud on the title to land which fails to aver that the complainant has title to the land, and is in possession of it, is bad on demurrer.</p> <p>3. Delinquent Lands—Enjoining Conveyance—Parties.—The clerk of the court of the county or corporation wherein land is situated is the representative of the State to receive the taxes due upon land sold for delinquent taxes and purchased by the State, whether from the owner or an applicant. He, and not the auditor, is the proper party to enjoin from receiving money from, and making a deed to, a proposed purchaser from the Commonwealth, and the statute conferring jurisdiction on the Circuit Court of the city of Richmond of all suits by or against the Commonwealth has no application. The clerk is not only a proper but a necessary party to such a suit.</p> <p>4. Injunctions—Parties—Tenue of Injunction Bills.—The common rule with reference to injunctions is that they will not be granted to restrain a person who is not a party to the suit; but, whether granted in a pending suit or not, the person whose action is sought to be restrained must become a party to the bill or petition upon ■which the application is based. The venue of a bill of injunction is fixed by section 3436 of the Code, as amended by act of March 6, 1900. Acts 1899-1900, p. 996.</p> <p>5. Delinquent Lands—Insufficient Application to Purchase—Injunction— Mandamus.—A bill in equity will lie to enjoin a clerk from receiving the money on an insufficient application to purchase delinquent land, and from making a deed to the purchaser. In sue]® case mandamus may not he an adequate remedy to compel a clerk to receive money tendered by the former owner.</p> <p>6. Chancery Practice—Bill—Amendment.—It is not error to allow a complainant in equity to amend his bill simply to introduce a new fact which does not render the case repugnant "to the case as originally stated.</p> <p>7. Attorney’s Fees.—The amount of the attorney’s fee to be taxed against the opposing party being regulated in certain suits in chancery by the amount in controversy, and this having been fixed by the trial court, this court will not disturb it in the absence of anything in the record to show error.</p>

<p>Appeal from a decree of the Circuit Court of Culpeper county, pronounced June 23, 1899, in a suit in chancery, wherein the appellee was the complainant, and the appellant and another were the defendants.</p>

<p>Error to a judgment of the Circuit Court of Essex county, rendered October 9, 1900, on an application for a writ of mandamus, wherein the plaintiffs in error were the petitioners, and the defendant in error was the defendant.</p>

3, 1900, May 17, 1900, and June 23, 1900, in a suit in chancery, wherein appellees were the complainants, and appellants were the defendants.

<p>1. Evidence—Books—Insanity of Book-Keeper.—If a plaintiff relies on the hooks of his intestate to prove the items of a store account against the defendant, the latter may show that the mental condition of the book-keeper was such during the period the account was running that he was incapable of keeping them correctly.</p> <p>2. Evidence—Rejection—Tender of Similar Evidence.—After a court has rejected, as irrelevant and inadmissible, evidence tendered along a particular line, it is unnecessary to go through the formality of tendering other evidence on the same subject.</p> <p>3. Bill oe Exception—Rejected Evidence—Relevancy—How Shown.— Although a bill of exception does not disclose what the answers of witnesses who were excluded would have been, it is sufficient where the bill shows that the character of such answers was disclosed in the argument on the admissibility of their evidence.</p> <p>4. Bill, oe Exception—Rejected Evidence—Relevancy—Materiality.—The relevancy or materiality of rejected evidence must be shown by a bill of exception in order to enable the appellate court to see that the trial court did actually exclude evidence which the exceptant had the right to introduce, and would have introduced but for the ruling of the trial court.</p> <p>5. Appeal and Error—Instructions—Objection in Appellate Court.—An instruction should not be given when there is no evidence in the cause which tends to support it, but an objection to such an instruction cannot be raised for the first time in this court.</p>

<p>1. Pleading—Estoppel—Depositions—Failure to Object.—If, when a deposition is offered to be filed in an action at law before trial, a party declines to state whether he objects to the filing or not he will be thereafter estopped to object that the deposition was not duly filed.</p> <p>2. Master and Servant—Incompetent Servant—Defective Machinery— Knowledge of Master.—A master’s knowledge of the incompetency of a servant, or of defects in machinery, may be established by showing either actual knowledge, or such frequent acts of incompetency on the part of the servant, or the existence of the defects for such length of time that the law would presume knowledge.</p> <p>S. Appeal and Error—Evidence—General Objection—Special Objection.— A general objection to evidence will not be considered on appeal if the evidence is admissible for any purpose. If a party desires to have the evidence limited to a particular purpose he should ask the court to so instruct the jury, and, if the request be refused, except to the refusal.</p> <p>4. Instructions—Jury Sufficiently Instructed—Refusal of Instructions.— After a jury has been sufficiently and correctly instructed it is not error to refuse other instructions, although they may correctly state the law, as repeated statements of the law, in different forms, simply tend to confuse and mislead the jury.</p> <p>5. Appeal and Error—Conflicting Evidence—Verdict.—Where the jury has been properly instructed on conflicting theories of a case, and the evidence is conflicting, the verdict will not be disturbed, on appeal.</p>

<p>1. Mandamus'—Discretion—Military Board—Court Martial—Pay Roll.— Mandamus will not lie to compel the “Military Board” to-pay a court-martial pay roll, as it is a matter within the discretion of said hoard, under the provisions of section 377 of the Code, and. mandamus does not lie to control the conduct of a functionary who. is invested with any discretion in the premises.</p>

Judgment was rendered for the plaintiffs for $1,747.87, the amount claimed by them. This ease was formerly before this court on the ruling of the trial court on the demurrer to the declaration. 98 Va. 222. This is an action of assumpsit to recover damages for the breach of an alleged contract to carry freight at a stipulated rate.

<p>Appeal from a decree of the Chancery Court of the city of Richmond, pronounced June 15, 1900, in- the chancery suit of Jones, Trustee, v. Domestic Sewing Machine Company and Others, in which the appellant proved its debt.</p>

<p>i: Statute oe Limitations—Unsuccessful Action of Ejectment.—An unsuccessful action of ejectment does not stop the running of the statute of limitations against the plaintiff’s claim.</p> <p>2. Chanceby Pbactice—Laches.—"When, from delay, any conclusion that the court might arrive at must, at hest, be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence and death of parties as to render it difficult, if not impossible, to do justice, a court of equity will not interfere, whatever may have been the original justice of the claim.</p>

<p>1. Chancery Practice—Laches—Prestmption of Payment.—The presumption, arising out of the lapse of time, the conduct of the parties interested, and the circumstances surrounding them, that the debt asserted in this cause, which has been past due over twenty-two years, has long since been paid seems irresistible. Certainly, any other conclusion would, at best, be purely conjectural.</p>

<p>1. Appeal and Error—Quo Warranto—Court of Appeals.—This court has no original jurisdiction in cases of quo warranto, nor has any judge thereof jurisdiction to issue the writ and send the case to the Circuit Court to be proceeded with, as in cases of injunction.</p> <p>2. Quo Waebanto—Process—Parties.—Under our statute, the first notice that a defendant has of a quo warranto proceeding is the writ itself, and he does not become a party to it until the writ is awarded. If a circuit court refuses to award the writ the defendant is no party to the proceeding in that court, and cannot be made a party on a writ of error from this court, and process against him here, if awarded, will be quashed.</p> <p>3. Quo Waebanto—Discretion.—Neither at common law under modern practice, nor under our statute, is the applicant for a writ of quo warranto entitled to it as a matter of absolute right; but whether it shall be awarded or not is subject, in a considerable degree, to the exercise of a wise judicial discretion by the trial court, whose judgment will not be disturbed unless plainly erroneous.</p> <p>4. Quo Waebanto—Proceeding under Code, Cli. 11¡5—Title to Office.—The object of chapter 145 of the Code was to simplify the procedure in quo warranto cases, and to define the cases in which the writ might be used, and not to narrow the writ, or make it less comprehensive in trying the title to an office than it was common law, where title to an office could be tested if the incumbent were not in possession de jure, although he might be a full de facto officer. The provisions of that chapter are not restricted to cases in which the incumbent is a mere intruder or usurper without color or pretence of title.</p> <p>5. Appeal and Ebbob—Petition for Quo Warranto.—A writ of error lies from this court to a judgment of a circuit court refusing to entertain a petition for writ of quo toarranto tendered by a hona fide claimant of an office to test the title thereto.</p> <p>6. Clebks—County and Circuit Courts—Effect of New Census.—Whether there shall be elected at a general election a separate clerk for the circuit court of a county is determined by tbe last general census taken before tbe election. If such census shows a population of less than fifteen thousand inhabitants, the clerk of the county court is ex offleio clerk of the circuit court for a full term of six years, regardless of what may be shown by a census taken during his term. If he die during his term, but after a new census showing more than fifteen thousand inhabitants, his successor holds, as he would have held, the office of clerk of both courts for the residue of his term.</p> <p>7. Constitutional Law—Clerics.—Article VII., section 1, of the Constitution with reference to the election of clerks is not self-executing, and to give it effect legislation was necessary.</p>

After all the evidence had been introduced, the plaintiff in the trial court offered the following instructions, which were given over the objection of the defendant: 1'. “The jury is instructed that it is the duty of the defendant, the city of Danville, to keep its streets, highways, and bridges built and constructed as a part of its highways and streets, in a reasonably safe and secure condition for travellers passing over and along the same, and that if they believe from…

<p>1. Delinquent Lands—Application to Purchase—Duty of Applicant— notice—Code, Secs. 661 and 666.—In order to acquire title to lands purchased by the Commonwealth for delinquent taxes, the proposed purchaser must comply with all the provisions of section 666 of the Code. When he has done this and rightly gotten his deed, he comes within the protection of section 661, and no question can be raised as to the regularity of the proceedings by which the Commonwealth acquired its title, except as therein provided, but he is not entitled to the benefit of section 661 until he has complied with all the provisions of section 666. Among the provisions of section 666, as amended, to be complied with, is the duty to give notice of an intended application to purchase to persons holding liens on the land.</p> <p>2. Deeds—Registry—Indew.—The recordation of a deed, though not indexed, is notice to subsequent purchasers. While the index is the key to the deed books, it is not essential to due registry.</p>

<p>1. Election—Inconsistent Rights or Claims.—Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both.</p> <p>2. Election—Husband and Wife—Bond for Wife’s Benefit—Substitution of Other Securities—Gifts—Burden of Proof.—Where a husband, at the time of marriage, executes his bond to a trustee for the benefit of his intended wife, reserving the right to substitute other property in lieu of the bond, in whole or in part, provided she first consents thereto in writing, and at a fair value to be agreed on between her and him, and to be endorsed as a credit on the bond, the subsequent purchase by him of a small amount of stock, and the transfer thereof to her trustee, will not, in the absence of such an endorsement, and of all evidence whatever of such an intention, be deemed a payment on the bond. The burden of showing such an intention is on the party asserting it.</p>

■Error to a judgment of the Circuit Court of the city of Richmond, rendered March 9, 1900, in a proceeding hy motion for a judgment for money, wherein the defendant in error was the plaintiff, and the plaintiff in error was the defendant.

The facts sufficiently appear in the opinion of the court. The defendant withdrew ¡his plea of the general issue, and the case tf Was tried on the issues made hy five special pleas, all filed under section 3299 of the Code.

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

<p>Appeal from a decree of the 'Circuit Court of the city of Dan-ville, pronounced May 25, 1900, in two chancery causes heard together, in one of which the appellants were the complainants, and the appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county, pronounced September 28, 1900, in a suit in chancery, wherein the appellee, E. S. Repass, was the complainant, and the appellant and the other appellees were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Wythe county, pronounced at September term, 1899, in a suit in chancery, wherein the appellee;, A. A. Moyers, was the complainant, and the appellant was admitted as a party defendant.</p>

<p>1. Lessor and Lessee—Rights of Way—Estoppel.—The refusal of one of several joint lessors to sell to the lessee a right of way for a railway over other lands not leased does not estop such lessor from taking advantage of a provision in the lease rendering it void if a right of way for a railway to the leased premises is not obtained by condemnation or otherwise in a given time. The mere existence of a lease does not impose an obligation to grant the right of way, nor estop the lessor from a bona fide effort to protect his property from serious injury.</p> <p>2. Chancery Jurisdiction—Complete Relief—Partition.—When a court of equity acquires jurisdiction of a cause for any purpose, it will retain it and do complete justice between the parties, enforcing, if necessary, legal rights, and applying legal remedies to accomplishing that end. This is especially true in suits for partition.</p> <p>3. Chancery Practice—Cancellation—Failure of Purpose of Contract— Inability to Perform.—Where a contract has failed of its purpose by the default of one of the parties, occasioned by either his inability or unwillingness -to comply with its provisions, a court of equity, having acquired jurisdiction of the parties and the subject matter, will not hesitate, at the instance and for the relief of a party not in default, to cancel the contract, if it stands as a barrier in the way of doing complete justice in the cause.</p>

<p>Appeal from _a decree -of the Circuit Court of Wythe county, pronounced January 8, 1901, in a suit in chancery, wherein the appellant tras the complainant and the appellee was the defendant.</p> <p>This case was heretofore before this court on the ruling of the Circuit Court sustaining a demurrer to complainant’s bill. 97 Va. 341.</p> <p>This suit was brought to enforce the specific performance of an alleged parol agreement for an exchange of real estate. The appellant, who was the complainant in the court below, was the owner of a sash and blind factory and several dwelling-houses at Max Meadows which he proposed to exchange for about four hundred and sixty acres of land owned by the land company. The complainant charged that the terms of the contract were fully agreed between them; that the aggregate price to be paid for the land of the company was about $10,880—that is, about 127 acres of woodland at $16.00 per acre, and about 333 acres of cleared land at $25.50 per acre; that the land company was to take his land at prices agreed on for the different parcels, aggregating $6,600—and he was to pay the difference in cash; that he surrendered possession of a part of his land to the company, and the company gave him immediate possession of the woodland, and agreed to give possession of the cleared land as fast as the tenant gathered his crops; and that such possession was actually given to him of the cleared land as fast as the crops were gathered. lie charged that the contract was entered into on behalf of the company by its president, and its superintendent, and that after the contract was entered into they caused the land to be surveyed for him ’by the company’s surveyor. As acts of part performance he charged that he cleared some of the land, hauled wood, chopped timber, cultivated some of tire land in corn, and grazed some of it. He charged that the company took possession of the houses belonging to the factory, and the out-houses; that they “took all belting off the machinery; boxed up all the bits and tools, took some of the pulleys off of the shafting and used them at the rolling mills, * * * locked up the planing mill and retained the key,” and did other acts of similar nature evincing a' claim of ownership over the property received in exchange.</p> <p>The company denied that any contract had been concluded between the parties, and averred that all that had been said or done was tentative only. It insisted that the proposed exchange was dependent upon each party being able to convey a clear title free of encumbrances, and the approval of the contract by its Board of Directors, and denied its ability to remove the encumbrances on its land, or that a sale of the land would pay the encumbrances thereon. The alleged acts of part performance on the part of the complainant were averred to have 'been trespasses by the complainant, and those charged on the part of the company were averred to have been acts done at the instance and request of the complainant.</p> <p>On these points the evidence was conflicting.</p> <p>The cause was referred to a commissioner to take sundry accounts, amongst others, an account of liens on the company’s property. The report of the commissioner, and the evidence taken in pursuance thereof, developed the fact that there were large liens on the property in litigation, far in excess of its value, and that there were no other assets out of which the liens could be paid. Under these circumstances the trial court refused to decree specific performance.</p>

<p>Appeal from a decree of the Circuit Court of Giles county pronounced October 5, 1899, in a suit in chancery wherein the appellant was the complainant, and the appellees were the defendants.</p>

<p>1. Appeal and Error—Exclusion of Evidence—Answer of Witness.—The refusal of a trial court to permit a witness to answer a question will not he considered in this court when the expected answer is not given, as the court cannot determine its materiality.</p> <p>2. Evidence—Relevancy—Declaration of Officer of Corporation.—The declarations of the cashier of a bank, made after the acceptance of a note by the bank, touching the conditions upon which the note was delivered to the bank, are irrelevant and immaterial, where it appears that he was not present when the negotiations took place.</p> <p>3. Instructions—Fully Instructed—Different Phases of Defence—Case at Bar.—Where there are but two phases of defence, and the jury has been fully informed by one instruction upon both, it is unnecessary to repeat in another instruction anything theretofore stated for the guidance of the jury with respect to either phase of defence. In the case at bar, the plaintiffs in error could not have been prejudiced by the instructions given.</p>

<p>Appeal from a decree of the Circuit Court of Smyth county, pronounced September 11, 1900, in a suit in chancery wherein the appellants were the complainants, and the appellee was the defendant.</p>

Kelley, trustee, was the complainant, and the appellant and the appellees were the defendants. The debt asserted in this case by Bunting was upon a note for $d35, given by Cochran to William S. Stuart for borrowed money, which note, by several successive assignments, had come into the hands of Bunting. The note was subject to a credit of •$120.

This was a suit brought under the statute for sale of infants’ lands, and was duly proceeded in as such. The facts sufficiently appear in the opinion of the court.

<p>Appeal from a decree of the Circuit Court of Giles county, pronounced June 1, 1900, in a suit in chancery, wherein the appellee was the complainant, and the appellants were the defendants.</p>

<p>1. Specific Performance—Lack of Equity—Remedy at Law.—Where the answer to a bill for specific performance denies all the grounds of equity set up in the bill, and the averments of the bill are not supported by proof, the bill should be dismissed, and the plaintiff left to his remedy at law.</p> <p>2. Specific Performance—Irreparable Injury—Averments Necessary.— to entitle a complainant to specific performance of a contract for the sale of personal property possessing no preiium qfectionis, his hill mus t not only allege an irreparable injury, but must set up a state of circumstances which, if true, show that the injury would be irreparable.</p> <p>3. Detinue—Insolvent Defendant—Injunction—Code, Sec. 2907.—The insolvency of a defendant in detinue is no ground for an injunction to prevent the removal or disposition of the subject of litigation. An ample remedy is afforded the plaintiff by section 2907 of the Code.</p> <p>4. Specific Performance—Inability to Perform Decree.—A decree for specific performance will not be granted against a defendant who is unable to perform the decree even though the inability were brought about by the defendant himself, or where the court cannot enforce its judgment.</p>

The opinion fully states the case except as to the claim of Mrs. Oppenheim. She was a member of the firm of Oppenheim, Satterwhite & Co., which was embarrassed to insolvency. She conveyed to her husband, as trustee for their infant children, an undivided two-thirds interest in a house and lot in Bedford City, Va. This deed was assailed by creditors of the firm as in fraud of their rights. The court so held.

One of the chief defences set up by the defendants was that the judgment set forth in the bill was ag'ainst husband and wife, and that they had filed a joint homestead deed, which exempted the property sought to be subjected from liability for the judgment. The real estate sought to be subjected was the property of the wife, and the complainant insisted that a married woman could not claim the homestead during the lifetime of the husband.

<p>1. Chancery Jurisdiction—Gloud on Title—Title and Possession—Possession of Underlying Minerals.—To maintain a suit to remove a cloud upon the title to land the complainant must hold the legal title to the land and be in possession thereof, but the actual possession of the surface of land underlain by undeveloped minerals is a sufficient possession to enable the owner of the surface to invoke the jurisdiction of a court of equity to remove a cloud created by a deed, subordinate to that of the owner, conveying the underlying minerals.</p> <p>2. Ejectment—Possession of Plaintiff—Code, Sec. 2126 as Amended—Effect of Amending.—Neither before nor since the amendment of section 2726 of the Code (Acts 1895-’6, p. 514) could a plaintiff in possession of land maintain an action of ejectment therefor. The object of the action of ejectment is to try the possessory title to corporeal hereditaments, and to recover the possession thereof. The effect of the amendment was simply to permit a plaintiff, in cases where the premises are occupied, in his discretion, to join as defendants with the occupant any person claiming title thereto, or an interest therein adversely to the plaintiff.</p> <p>3. Chancery Jurisdiction—Remedy at Law Subsequently Given.—Where courts of equity have once acquired jurisdiction of a subject matter because there was no remedy at law, or because of the inadequacy of the legal remedy, they do not lose such jurisdiction merely because courts of law have been subsequently authorized to administer the same or similar relief.</p> <p>4. Land—What it Embraces.—Where land is sold, without reservation of any kind, it embraces the underlying minerals.</p>

<p>1. Judicial Sales—Purchaser—Loss of Funds—Commissioner’s Bond— Acts ISSS-’J/, p. BIS.—Under the provisions of the act of February 25, 1884 (Acts 1883-’4, p. 213), a purchaser at a judicial sale who has paid his purchase money to one of the special commissioners who made the sale will be protected, although the money was never accounted for by the commissioner, where it appears that the bond directed by the decree of sale was given; that the required certificate was obtained from the clerk, appended to and published with the advertisement; that the land was sold in pursuance of the advertisement; and that no notice of another person having been appointed to collect the purchase money was ever issued or served upon the purchaser.</p>

<p>Appeal from a decree of the Corporation Court of the city of Boanoke, pronounced February 7, 1900, in sundry chancery suits heard together.</p>

<p>1. Municipal Corporations—Power to Exempt from Taxation.—A municipal corporation has no inherent power to exempt from taxation any property which, by its charter, it is authorized to tax. The power to exempt from taxation, like the power to tax, is an incident of sovereignty, and cannot be exercised by a municipal corporation unless such power has been granted by the State.</p> <p>2. Taxation—Ad Valorem System—Legislative Determination.—Whether a business can or cannot be reached by the ad valorem system is a question primarily for the Legislature, and its determination of that question cannot be held to be erroneous unless it is manifestly so.</p> <p>S. Constitutional Law—Taxation—Licenses—Ad Valorem System.—The Legislature has no power, under the Constitution, to impose a license tax, or to authorize a municipal corporation to do so, upon any business other than those specifically mentioned in section 4, Article X., of the Constitution, except where it cannot be reached by the ad valorem system.</p> <p>4. Municipal Corporations—Ad Valorem Tax—Legislative Determination.—The fact that the Legislature imposes an ad valorem tax on a business is a conclusive determination that the business can be reached by the ad valorem system, and it must be so reached when taxed by municipal corporations.</p>

<p>1. Parent and Child—Support—Contracts—Past Consideration.—A son is under no legal obligation to support his mother, and his contract to pay for her past support, furnished without his request, is without consideration.</p> <p>2. Contracts—Consideration—Moral Obligation—Past Consideration.—A moral obligation, to be sufficient to sustain a promise or contract, must be one which has been once a valuable consideration, but was not binding on account of some rule of law, or has ceased to be binding from some supervenient cause. A past consideration which imposed no legal obligation at the time it was furnished will not support a promise.</p> <p>3. Chancery Practice—Pendente Lite Purchaser—Volunteers—Irregular Proceedings.—A voluntary grantee, pendente Ute, takes in subordination to the rights of the creditors of his grantor adjudicated in the suit, and cannot impeach the proceedings in that suit by an independent suit brought for that purpose, however irregular the latter may be.</p>

<p>Error to a judgment of the Corporation Court of the city of Bristol, rendered January 9, 1901, in an action of ejectment, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.</p>

<p>1. Condemnation Proceedings—Alienation of Land—Compensation— When Title Passes to Land Condemned—Entry Under Code, Sec. 1081.— Title to land condemned in Virginia for public purposes remains in the owner until judgment of the court in the condemnation proceedings is rendered confirming the report of commissioners as to the damages assessed, and the payment of the money to the party entitled, or into court. The entry of the party condemning under the provisions of section 1081 of the Code does not give him title until there is a final judgment fixing the amount of the compensation, and the payment of the same to the parties entitled, or into court.</p> <p>2. Condemnation Proceedings—Alienation of Land—Who Entitled to Compensation.—Until the person entitled to acquire the property of another for a public use has so far progressed in condemnation proceedings as to take immediate possession thereof, no right to compensation for the land proposed to be taken and for damages to the residue of the tract accrues to the owner, and his conveyance of the locus in quo, in the absence of any reservation, carries with it to the grantee the right to such compensation and damages when the report of the commissioners is confirmed and the money is paid to him, or into court.</p>

The defendant in error applied to the County Court of Washington to correct an erroneous assessment of its property for county road and school purposes. The County Court refused to correct the assessment, hut, on appeal, its action was reversed hy the Circuit Court hy the aforesaid judgment, of May 1, 1900.

<p>Appeal from a decree of the Corporation Court of the city of Bristol, pronounced October 8, 1898, in a suit in chancery, wherein appellant, W. IT. Trammell, was the complainant, and the appellee and another were the defendants.</p>

<p>Appeal from a decree of the Hustings Court of the city of Staunton, pronounced March 16, 1901, and amended April 10, 1901, in a suit in chancery, wherein the appellee was the complainant, and the appellant and others were the defendants.</p>

<p>Appeal from a decree of the Circuit Court of Rockingham ■county, pronounced Hovember 1, 1897, in two chancery suits heard together under the style of Mary J. Houck and Others v. John C. Woodson, Administrator, and Others, and Ruffner’s Trustee v. Andrew J. Houck and Others.</p>

<p>Appeal from a decree of the Circuit Court of Augusta county, pronounced December 18, 1899, in three suits in chancery heard together, in. one of which the appellee was the complainant, and appellant was the defendant.</p>

<p>1. Construction or Written Instruments—Intention—How Ascertained.—'In construing a deed or will, the object is to ascertain the intention of the maker as gathered from the language used and the general purpose and scope of the instrument, in the light of surrounding circumstances; and when such intention clearly appears by giving to the words their natural and ordinary meaning, technical rules of construction will not be invoked to defeat it.</p> <p>:2. Deeds1—Gift to Mother and Her OMldren.—A deed conveys property to a trustee for the use, maintenance and support of a mother, and for the use, maintenance and support of her issue; and the grantpr further declares that it is the intention of the deed that the mother shall be supported from said property, or the proceeds thereof, during her life, and that the issue, during the life of the mother, shall be supported and educated from the proceeds of said property, and, at the death of the mother, all of the property and its proceeds shall be divided equally among such issue.</p> <p>Held: The mother and her issue each take an equal interest in the proceeds of the property during the life of the mother, and, at her death, the issue take the property in fee simple.</p>

'Appeal from a decree of the Circuit Court of Augusta county pronounced June 27, 1900, in a suit in chancery under the style of Donaghe’s Ex’or v. Donaghe and others, in which appellants, Kate C. Neilson, in her own right and as executrix in New York of Mary B. Gaunt and N. C. Watts, Sheriff of Augusta county, and as such administrator in Virginia with the will of said Mary B. Gaunt, filed their petition.

<p>1. Husband and Wipe—Separate Estate—Code, Ch. 103—Husband Agent for Wife.—Under the provisions of chapter 103 of the Code, a married woman has the right to engage in trade and carry on business on her own account for her separate use and benefit in the same manner as if unmarried, except that she cannot become a partner of her husband. She may purchase on credit, and, in the absence of a-fraudulent intent, may conduct the business, wholly or in part, through her insolvent husband, as her agent. The profits of such business are her separate estate, and are not liable for her husband’s debts'.</p> <p>2. Fraudulent Conveyances—Husband and Wife—Husband Agent for Wife.—Whether an arrangement by which a wife conducts a profitable business through the agency of her insolvent husband is bom fide, or colorable, merely to cheat the husband’s creditors, is a question of fact to be determined by all the facts and circumstances of the particular case. The fact that the wife has neither experience nor separate estate at the time she purchases goods on credit and begins a business, which is conducted solely and exclusively by her insolvent husband, as' her agent, is a circumstance to be considered in connection with other evidence, in determining the bona fides of the wife, but is not alone sufficient to charge the wife with fraud.</p> <p>3. Separate Estates—Husband Agent for Wife—Rights of Husband’s Creditors.—If a wife, acting in good faith, employs her insolvent husband to conduct her business as her agent, and the amount of his compensation be not fixed, the law will imply, as in case of a stranger, that he is to receive a reasonable compensation. This amount, less' a reasonable support for himself and family, his creditors may subject, but no more. The wife is under no greater legal obligation to his creditors, and they have no greater legal rights against her than if he were not her husband.</p>

appellant was the defendant. The land in controversy in this suit is part of a larger tract which had been conveyed to a trustee in -trust for the sole and separate use of Mrs. Johnson, one of the appellees. The trustee never united in the deed to the appellant, but Mrs. Johnson’s powers over her equitable estate were those of absolute ownership. The other facts sufficiently appear in the opinion of the court.

<p>Appeal from a decree of the Circuit Court of Augusta county pronounced June 22, 1901, wherein the Augusta Perpetual Building and Loan Co. was the complainant, and the appellant and others were the defendants.</p>

<p>'1. Chancery Practice—Case in Judgment—Acquiescence.—In this case a fund of $6,000 was set apart in a suit, in 1868, the annual interest on which was to be applied to the support of a lunatic in the insane hospital. The lunatic died in 1900. Various payments were made to appellant for the support of the lunatic, and in 1882 it became a party to the suit in which the fund was set apart, and filed its petition, reciting all former proceedings in the suit, and claiming an account for a large sum which it asked to have paid out of the accumulations of interest which were, or should be, then in hand. The accounts of the receiver were fully and finally settled and confirmed in the cause to which appellant filed no exception, and at no time did it object to the arrangement by which the interest on the $6,000 was set apart as the sole fund for the support of the lunatic, or to the decree made in 1882, declaring that in no event should the principal sum be diminished. All of the annually accruing interest was paid to appellant. After the death of the lunatic, the appellant preferred an account for a large balance which it asked to have paid out of the principal sum invested.</p> <p>Held: The estate of the lunatic consisted of the annually accruing interest on the sum set apart for his maintenance, which has been fully so applied, and, under the facts of this case, the principal sum cannot be applied to that purpose.</p>

<p>Appeal from a decree of the Circuit Court of Frederick county, pronounced December 1, 1899, in a chancery cause therein pending in the name of Massie’s Executrix v. Massie & Others, in which appellant became a party by the purchase of certain lands set forth in said suit.</p>

<p>Error to a judgment of the Circuit Court of Rockingham county, rendered at its April term, 1901, in an aetion of ejectment wherein the defendant in error was the plaintiff and the plaintiff in error was the defendant.</p>

The evidence in this cause sufficiently appears in the opinion of the court. After the evidence was all in, both plaintiff and defendant tendered instructions. The plaintiff tendered eighteen instructions, to all of which the defendant objected, and which the court modified and then gave over the objection of the defendant. To this action of the court in giving the instructions as modified the defendant duly excepted.

<p>1. Chancery Pleading—Demurrer—Failure to Pass On..—A demurrer to a bill of which no disposition seems to have been made will be regarded as overruled.</p> <p>2. Sub-Surface Water—Percolations—Ownership—Right to Intercept.— Sub-surface waters which merely percolate, ooze, or filter through the soil, and which do not flow in any permanent, distinct, or definite channel, belong to the owner of the soil, and pass with it just as the rocks and ores beneath the surface pass. In the absence of malice or negligence, the owner may appropriate them to his own use, and if, in so doing, such waters are diverted from the lands of the adjacent proprietor, it is damnum absque injuria.</p> <p>3. Sub-Surface Waters—Case in Judgment—Interception of Water.—In the case in judgment the appellant, in order to procure water for his own use, dug a ditch on his own land, near the line of the appellee, in consequence of which the water, which had formerly flowed through unknown and indistinct channels into appellee’s spring just across the line, was diverted, and thereafter percolated into the ditch and flowed through the lands of the appellant. Neither malice nor negligence being established, it was held that appellant had not exceeded his rights in digging the ditch.</p> <p>4. Sub-Surface Water—Well-Defined Stream—Use by Upper Proprietor.—Although a spring on the land of one person is supplied by a well-defined stream of water, coming through the land of another, the latter is entitled to a reasonable use of the water on his own land.</p>

The evidence sufficiently appears in the opinion of the court. After the evidence was all in, the plaintiff tendered eighteen instructions, to the giving of which defendant, hy counsel, objected, but tbe court overruled tbe objection of tbe defendant and gave tbe instructions asked for 'by plaintiff.

<p>Error to two judgments of the Circuit Court of Augusta county, rendered May 24, 1898, and Kovember 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>Error to a judgment of the County Court of Washington county, rendered June 9, 1900, sentencing the plaintiff in error to the penitentiary for thirteen years on an indictment for murder.</p>

<p>1. Criminal Law — Felonies—Jurisdiction of County Courts—Removal to Circuit Court.—Under section 4016 of the Code, as amended, (Acts 1893-’4, p. 270) county courts have exclusive original jurisdiction of all felonies committed within their respective counties, and the prisoner has no right to elect to be tried in the Circuit Court. The act of March 3, 1892 (1891-’2, p. 973), required the right of removal, which then existed, to be exercised before a motion for a continuance, and did not confer the right of removal, and if it did the right was taken away by the later act.</p> <p>2. Criminal Law—Verdicts—Wltat Record, Must Show—Case at Bar.—A verdict on an indictment for felony must be rendered by the jury in open court, in the presence of the prisoner, and be received and recorded by the court. These facts must appear from the record, and no presumption that all things were rightly done by the trial court will supply the omission of any one of these facts. They sufficiently appear, however, from a record which shows the presence of the prisoner, and declares that the jury “ retired to their room to consult of their verdict, as follows, to wit: * * * Whereupon the prisoner, by his counsel, moved the court not to proceed to judgment upon the verdict aforesaid ” but to set it aside as contrary ■to the law and the evidence.</p> <p>3. Criminal Law—Record of Proceedings—Inferences—Verdicts—Case at Bar.—While no intendment can supply an omission from the record in a criminal case of that which is material, all proper inferences may and must be drawn from that which does appear. The court has the right to deduce from the record all reasonable and necessary inferences, and if the prisoner has supplied omissions in the record, the court will not disregard them. The record in this case sufficiently shows that the verdict was unanimous, was rendered in open court in the presence of the prisoner, and was otherwise free from any infirmity.</p> <p>. Criminal Law—Jury—Consultation—Constructive Presence.—The jury, while in their room in the court-house consulting of their verdict, are still constructively in the presence of the court, and not in the charge of an officer, or out of court.</p> <p>5. Criminal Law—Trial—Duration—Presence of Prisoner.—The trial of a criminal case begins with the arraignment of the prisoner and ends with the sentence pronounced upon him by the court. After judgment, it is not error to hear the statement of counsel for the prisoner in his absence that he has no bills of exception to offer.</p>

<p>Error to a .judgment rendered ’by tire County Court of Rock-bridge county on a prosecution for malicious assault.</p>

The plaintiff in error and Henry Horton were tried jointly, and the jury found the plaintiff in error guilty of voluntary manslaughter,… Held: the said William T. Horton, in and upon the head and body of him, the said William T. Horton, then and there; feloniously, willfully, and of their malice aforethought, did strike, beat, and wound, giving to 'the said William T. Horton, then and there, with the clubs and rocks aforesaid, in and upon the aforesaid head and body of the…

<p>Error to a judgment of the Circuit Court of Eauquier county, rendered December 18, 1900, affirming a judgment of the • County Court of said county, whereiby the plaintiff in error was sentenced to the penitentiary for four years for an attempt, to poison.</p>

<p>1. Cbiminal Law—Appeal from Justice—Reversal—Former Jeopardy.—A reversal, at the instance of the prisoner, of the judgment of a justice of the peace, for formal defects in the charge of a misdemeanor, is no hair to further prosecution for the same offence.</p> <p>2. Cbiminal Law—Indictment—Record of Finding.—An order of a corporation court, entered of record, “that the indictment presented hy the grand jury against N. C. Watts for misdemeanor be certified to the police justice of this city, to he hy him disposed of according to law,” is a sufficient record of the finding of such an indictment.</p> <p>3. Cbiminal Law—Indictment—Errors not Apparent.—Objections to an indictment for errors which do not appear on -the face of the indictment, can only he taken advantage of hy a motion to guash, or hy plea,—not hy demurrer.</p> <p>4. Cbiminal Law — Jailor — Negligent Escape — Sheriff—Deputy.—The sheriff in Yirginia is ex officio jailer of his county, but may devolve the duties of jailer on a deputy, and will not he criminally liable for a negligent escape permitted by him. If, however, a prisoner is permitted to go at large with the knowledge and approval of the sheriff, and hy his direction and authority, and while so at large the prisoner escapes, the sheriff is himself criminally liable for the escape.</p> <p>5. Cbiminal Law—Misdemeanors—Accessories.—At common law there are no accessories to misdemeanors. All concerned are principals.</p>