CONSTRUCTION OF STATUTES (continued) 9. Mechanic's liens.-The remedy by lien under Code 1873, chapter 115, sections 2, 3 and 4, is a creature of statute unknown to the common law; and in order to entitle a contractor to its benefit, he must strictly pursue the statute. Shackleford v. Beck, 573. 10. Account of work and material-Definition.—The statute requires that a contractor seeking to secure the benefit of its provisions, shall file in the clerk's office an account (which is an itemized or detailed statement of the transactions to which it relates) of work done and materials furnished; and, therefore, a paper in the following words, VIZ.: To balance of account rendered for work and labor done and material furnished for your house," is not sufficient to create the lien provided by the statute. Idem. 11. Bastards-Legitimation.-Code 1873, chap. 119, 6 and 7, providing that "if a man having had offspring by a woman shall afterwards intermarry with her, such offspring, if recognized by him before or after the marriage, shall be deemed legitimate," and that "the issue of marriages deemed null in law, or dissolved by a court, shall, nevertheless, be legitimate," does not apply to and legitimate the offspring of a cohabitation in this state between a white person and a negro, when the parents subsequently have celebrated between them a ceremony of marriage, outside of this state, in some place where marriage between such persons is lawful. Greenhow v. James' ex'or, 636. CONTRACTS. 1. Improvement of property- Implied contract— Breach- Remedy,— Where one undertakes to improve his own land, he impliedly contracts to use due care and skill, and to answer to the adjacent land. owner for the consequences of his want of such skill and care. Where there is a breach of this implied contract, the party injured may waive the tort and maintain an action as for a breach of assumpsit. mone v. Keiley, 86. Sala 2. Perfected contract.-Under acts approved 6th March, 1882 (Acts '81-'2, pages 246-249), authorizing the directors of the Central Lunatic Asylum to contract for the erection of suitable buildings for the accommodation of the colored insane of this State, no written and signed contract was required; and upon the acceptance by the board of the contractor's bonds, and the spreading upon the minutes of the articles of agreement between the parties, a contract was consummated, for any breach whereof the party aggrieved was entitled to recover damages. And if the bonds taken from the contractor were of the required penalty and conditions, and with sufficient security, it was immaterial whether they were executed by the contractor or by others. Central Lunatic Asylum v. Flanagan, 110. CONTRACTS (continued). 3. Construction-Interest.-Contract of sale, dated August 26th, 1873, says the bonds for the purchase-money are "to bear interest from this date." The trust-deed describes the bonds as "dated September 10th, 1873, with six per cent. interest from August 26th, 1873." The bonds say, "with six per cent. interest from date above," when there is no "date above," except the date of the maturity of the bond. Receiver collected the bonds with interest only from their maturity. HELD: The bonds bear interest from the date of the contract, August 26th, 1873, till paid. Ware v. Starkey, 191. 4, Specific performance-Parol contracts.-B. by parol contract sells W. an acre of woodland for $30, to be paid in three years, in work, and puts him in possession. W. clears the land and builds on it a dwelling, which with his family he continues to occupy, and in work paid B. the purchase-money. HELD: W. is entitled to a conveyance in specific performance of the sale of the land. Bowman v. Wolford, 213. 5. Legislative acts-Repealable.-Act of February 9th, 1882, empowering supervisors of Stafford county to build a bridge across Rappahannock river, and commissioners appointed by the county judge to manage it after its erection, is simply a grant by the State of certain privileges for public purposes, and contains none of the elements of a contract. Supervisors of Stafford County v. Luck, 223. 6. Therefore the act of March 18th, 1884, virtually repealing that act, does not impair the obligation of any contract with those supervisors, or with those commissioners, or assail any vested rights, and is not unconstitutional and void. Idem. 7. Construction-Case at bar.-H. by written contract, sells T. & Bro. certain growing timber, and allows them four years to cut it down. Afterwards, she endorses on the contract these words: "I agree to extend the time for cutting timber as fixed in this contract each year T. & Bro. rent and operate the G. steam mills, said extension to cover a period of five years from the expiration of this within contract, this extension of time being based on said T. & Bro. renting and operating said G. steam mills." Before the expiration of the four years, said mills burned down and were never rebuilt, and had never since then been rented and operated by T. & Bro. HELD: 1. The extension was to begin after the expiration of the four years, and the condition upon which the extension was to begin, never was fulfilled. Hughes v Tinsley & Bro. 259. 8. Nudum pactum-Part for whole.-An unsealed agreement to accept a VOL. LXXX-113 CONTRACTS (continued). smaller sum than the entire debt, does not bind the creditor. Pin nel's case, 5 Coke's R. 117 a. But this technical rule is now in disfavor. Seymour v. Goodrich, 303. 9. Compromise-New elements.-Where a new element enters into the agreement to take a part for the whole, the entire debt is satisfied; e. g. a promise to pay at an earlier day, or at a different place, or in another thing than that stipulated for it in the original agreement, or a promise by a new party to pay. Idem. 10. Idem-Case at bar.-M. S. and others of the firm of A. C. & Co., owed $2,000 to G.; W. agreed to pay, and paid G. $400, on G's promise to release M. and S. from the debt. HELD: The agreement was binding on G., and M. and S. were released. 11. Principal and surety-Change of contract.-Surety is discharged by any change of contract, however immaterial, if made without surety's consent. Christian & Gunn v. Keen, 369. 12. Descriptio persona - Case at bar.-In body of contract, M. is described as 'Secretary of the M. E. Association," but he signs it in his own name without addition, and all the words of promise in the contract are his. HELD: It is the personal undertaking of M. and not the contract of the association. Matthews v. Jenkins, 463. 13. Year's service-Monthly salary.—A contract to continue for the period of a year, with salary payable monthly, does not make it incumbent on the employee to aver and prove that he performed the entire year's service, or was prevented from performing it by the employer, as a condition precedent to the former's recovering anything. It the whole is to be done on one side, before anything is done on the other, then the promises are dependent. But if something is to be done on the one side, before the whole is to be done on the other, then the promises are independent. Idem. 14. Attorney and client.-Fees-Taxed-By contract.-The clerk of the court cannot tax against the losing party in a suit, other than the fees prescribed by statute. But contracts, express or implied, between attorney and client for fees, are not limited as to amount, and may be enforced as other contracts. Yates & Ayres v. Robertson & Berkeley, 475. 15. Idem-License.--A client cannot refuse to pay his attorney his fees, though that attorney be practicing without license. Idem. 16. Idem-Influencing legislation-Bribing-Argument.-Section 6, chap. 5, Criminal Code of 1878, p. 295, aims at the offence of paving money CONTRACTS (continued). or other compensation to secure the passage or defeat of any measure, and was doubtless intended to apply to the use of money in buying votes, &c.; and not to contracts with attorneys for purely professional services, such as drafting petitions, setting forth client's claim, taking testimony, collecting facts, preparing arguments, oral or written, addresses to the legislature or its committee, with the intention to reach its reason by argument. Hence contracts for the latter purpose are valid. Idem. 17. Specific performance-Case at bar.-In 1850 R. N. conveyed to S. lands in trust to secure debt to H. In 1874 a balance remained due, and trustee advertised sale. R. N., then old and feeble, asked his son, R. R. N., to pay the debt, and to take the land as his own, on condition of maintaining R. N. and wife during life. R. R. N. agreed, paid the debt, took possession of the land as his own, R. N. and wife making their home with and being maintained by him for seven years. But in 1881, R. N. conveyed the lands to G. H. N. and T. J. N. on the same conditions, they having full notice of the contract of R. N. with R. R. N. The grantees in the last conveyance instituted suit, setting up the deed of 1881, and praying for a deed to them from the trustee. R. R. N. answered, and the latter filed his cross-bill, setting up his contract, its part performance, and his readiness and ability to perform the same on his part, and praying for cancellation of the deed of 1881, and for a conveyance from trustee to himself. HELD: By virtue of his contract, his payment of said balance, his possession and his part performance, R. R. N. has acquired an equitable title to the lands, which he has a right to have specifically enforced in equity. Neel v. Neel, 584. 18. Specific performance-Requisites.-The first requisite of a contract to entitle one to its specific performance in equity, is certainty and definiteness in its terms. Litterall v. Jackson, 601. 19. Idem Married women-Contracts-Lands.—It is well settled that a court of equity will not decree against a wife performance of her contract to convey her lands; nor against wife or husband performance of his or their contract to convey her lands. Idem. 20. Insurance-Specific performance-Bill.-Equity will enforce performance of a contract of insurance made with an agent having authority to issue policies or to bind the company to issue policies, in favor of one who has paid the premium. But the bil must on its face distinctly state that such contract was made, and show when, where, how and by whom it was made, and that the person making it had authority to bind the company. Haden v. Farmers and Mechanics Fire Association, 683. CONTRACTS (continued). 21. Registry-Verbal sales of land.-The statute in relation to the registry of contracts and deeds does not apply to verbal contracts for the sale and purchase of land. Bowman v. Hicks, 306. CONTRIBUTION (See Principal and Surety). CORPORATIONS. 1. Municipal Corporations-Powers of Taxation.-Every grant of the power of taxation to a municipal, or other subordinate body, must be strictly construed. And municipal officers must show, in the words of the charter, a warrant for whatsoever authority they assume to exercise. City of Lynchburg v. N. & W. R. R. Co., 237. 2. Idem-Idem.-Section 5 of charter of city of Lynchburg, grants authority to impose a license tax upon persons engaged in certain enumerated callings, and "upon any other person or employment, which it may deem proper, whether such person or employment be herein specially enumerated or not," does not empower the city to impose such tax upon a railroad corporation; which is neither a person nor an employment, within the ordinary acceptation of those words. Idem. 3. Eminent domain-Municipal corporations-Condemnation of land.— Report of commissioners to condemn land for municipal purposes will not be quashed on the ground that a commissioner appointed, at the instance of the municipality, was interested, where the record does not show that the municipality was ignorant that he was interested when so appointed. Ignorance of the attorney making motion for the appointment, is not evidence of the municipality's ignorance that the commissioner was interested. But if commissioner was interested and disqualified, and municipality was ignorant, report will not be quashed, if record shows that the damages assessed are not excessive. Roanoke City v. Berkowitz, 616. 4. Idem―Interest in land condemned.-Corporations condeming land under Code 1873, chapter 56, section 11, must take and pay for the feesimple, and not merely an easement, except it be a turnpike company. Idem. 5. Constitution-Condemnation of fee-simple.-This statute requiring the condemnation of the fee-simple is not repugnant to the constitution. And if it was, the municipality cannot be heard to deny the validity of the statute under which it has chosen to proceed. Idem. 6. Municipal corporations-Damages-Ordinance.-Ordinance to which land-owner refused assent, allowing him to build across the drain to be cut through land proposed to be condemned for the purpose, cannot be considered in assessing the damages. Idem. 7. Insurance companies-Charter and by laws-Notice.-Persons dealing |