not established, though the cohabitation had ceased before the pas-
sage of this act. Idem.
4. Bastards in Virginia.—They are persons born out of wedlock, lawful
or unlawful, or not within competent time after termination of cover-
ture, or if born out of wedlock, whose parents do not afterwards in-
termarry and the father acknowledges them, or who are born in wed-
lock when procreation by the husband is impossible. Idem.
5. Lex loci-Lex domicilii.-The law of the place of its celebration
governs as to the forms of ceremony which constitute marriage.
The law of the domicile governs as to the capacity of the parties. But
the rule which requires that "a marriage valid where celebrated, is
valid everywhere else," has no application to a marriage entered into
in a foreign country, in contravention of the public policy and statutes
of the country of the domicile of the parties which pronounce mar-
riage between them not only absolutely void, but criminal.
how v. James' ex'or, 637.
6. Felonious marriage-Indictment - Onus probandi. Jones' case, 538.
1. Married woman's act-When she may sue and be sued at law.-Act
approved April 4th, 1877, amended March 14th, 1878 (Acts 1876–77,
page 333, and Acts 1877-'78, page 347), except that it confers on mar-
ried women the right to sue and the liability to be sued at law on
contracts made by her in relation to and for the disposal of her sep-
arate property, and on contracts made by her as a sole trader, con-
fers no power or liability on her beyond what she had prior to its
passage as to her separate estate, or what she had by the terms of set-
tlement upon her. Salamone v. Keiley, 86.
2. Trustee and feme covert c. q. t.-Improvement of trust subject-Defect
of care and skill-Remedy.-Where a trustee and his feme covert
c. q. t., jointly undertake to improve the lot held by him in trust for
her separate use, and in so doing fail to use due care and skill,
whereby the owner of the adjacent land is damaged, a court of equity
hath jurisdiction to ascertain and allow the claims of the injured party
for compensation, and to subject the trust property to its satisfaction-
either because of the trust, or because of the separate estate involved
in the litigation—each being equally a subject of equity jurisdiction.
Idem.
3. Separate estate-Alienation.-A wife may make her separate estate
liable for the debts of herself, her husband or any other person, un-
less the instrument creating the estate, expressly or impliedly, denies
or limits such power, but the intention so to deny or limit must be
clear. Christian & Gunn v. Keen, 369.
MARRIED WOMEN (continued).
4. Conveyances for advances to husband.-Where real estate is granted to
a trustee for separate use of married woman, free from her husband's
debts, to be disposed of upon her written request, for reinvestment,
the proceeds to be held for her benefit upon like restrictions, and she,
her husband and her trustee unite in deed conveying the preperty to
secure advances of money to be made by another to her husband, she
has the power of alienation, and the grant of special power to dispose
of the property in a particular manner, does not divest her of her
general powers to dispose of it in any other manner. Idem.
5. Settlement to secure home.-But where the settlement is not only to
provide, but to secure a home for the wife and her children, the in-
tention is manifest to withhold the power of alienation. Idem.
6. Husband-Surety.-Where the wife charges her property to secure a
debt of her husband, she becomes the surety of her husband, and is
entitled to all the rights of a surety. Idem.
7. Specific performance-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. Litterall v. Jackson, 601.
8. Wife's land-Joint-sale-Trust. Barnes v. Trafton, 524.
MECHANICS LIENS.
1. Construction of Statutes.-The remedy by lien, under Code 1873, chap-
ter 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.
2.. Idem-Account of work and material - Definition.-The statute re-
quires 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 de-
tailed 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.
3. Idem-Actual notice unavailing.-The contractor, having failed to se-
cure a lien on the house by his omission to fulfill the requirements
of the statute, a purchaser of the house from the owner is not af-
fected with liability for the contractor's claim, by reason even of ac-
tual notice of the account thereof. Idem.
4. Sub-contractor-Owner.-In suit of sub-contractor against owner for
materials furnished general contractor, it is unnecessary to allege
that any part of the price agreed to be paid remained due to latter
from owner when notice was given. Acts 1874-5, p. 437, 25. Roa-
noke Land and Improvement Co. v. Karn & Hickson, 589.
MECHANICS LIENS (continued).
5. Notice. The mechanics' lien law as amended by act of 1874-5, p. 437,
5, does not require sub-contractor to notify owner at the time the
labor is done or the materials are furnished: it is sufficient if the no-
tice be given at any time thereafter, and within twenty days after the
building has been completed, or the work otherwise terminated.
But he is not obliged to wait until other work on the building, with
which he has no concern, is performed, before he gives his notice.
Idem.
6. Notice Affidavit-Liability of owner.-As soon as sub-contractor has
furnished labor or materials, he may give notice to owner, and may
furnish the affidavit at any time within twenty days after completion
of building, or termination of work. And without regard to state of
accounts between owner and general contractor, owner, upon proper
notice and affidavit, is liable, absolutely, to sub-contractor for amount
named in affidavit. Code 1873, chap. 115, 5, amended Acts, 1874-'5,
p. 437. S. V. R. R. Co. v. Miller, 821.
7. Statute construed-Two-fold remedy.-Section 8 secures to sub-con-
tractor benefit of lien given general contractor by section 4, provided
notice is given by former before lien is discharged. This remedy is
additional to that conferred by section 5, which gives to sub-con-
tractor, upon compliance with its requirements, the right to charge
owner personally. Under section 8, regard is had to state of accounts
between owner and general contractor; under section 5, none is had.
Idem.
8. General contractor's failure-Owner's liability.—Fact of general con-
tractor's failure, and owner's necessity to complete the work, does
not affect owner's liability for amount due sub-contractor for labor or
materials. Idem.
MILITARY COMPANIES.
Members of exempt from jury duty—When.
MISREPRESENTATION.
Insurance-Title-Incumbrance.
Asso., 683.
Haden v. Farmers & Mechanics Fire
1. Correcting mistakes. See Equitable Jurisdiction and Relief, 4, 11, 12.
2. See Practice in Chancery, 11.
3. Statute of limitations – Mistake, &c.—Discovery.—Cases of fraud, trust
and mistake, are not within the statute of limitations. At all events,
in equity, in cases of mistake, as in cases of fraud, the statute does
not begin to run until the discovery of the mistake. Massie v. Heis-
kell, 789.
MULTIFARIOUSNESS.
See Practice in Chancery.
MUNICIPAL CORPORATIONS.
See Corporations, 1, 2, 3, 4, 5, 6.
See Criminal Jnrisdiction and Proceedings, 6.
1. Negligent injuries- Contributory negligence-Compensation.-Com-
pensation cannot be recovered for injuries done by defendant's mere
negligence, where plaintiff by his own ordinary negligence contrib-
uted to cause the injury, so that but for such contribution the injury
would not have happened, except when the direct cause of the in-
jury is the defendant's omission (after becoming aware of plaintiff's
negligence) to use proper care to prevent the consequences of such
negligence. Rudd's adm'r v. N. & W. R. R. Co., 346.
2. Idem Case at bar.-Boy of twelve, sent by parents to mind cows in
field along railway, lay asleep on the track, and was run over by
freight train 375 yards long, and killed. Train was running down
grade without steam. Boy was lying, when struck, 226 yards from a
public crossing, which was 892 yards from a curve from which boy
was visible. Boy had been repeatedly found sitting and lying down
and asleep on the track, and warned. When engineer saw boy on
track, he made, in vain, every effort to stop train, by reversing en-
gine, etc. On demurrer to evidence, court below decided for defen-
dant company.
On appeal :
Plaintiff's evidence is insufficient to warrant the verdict. Idem.
1. Acceptance-Payment.-Payment, not acceptance merely, entitles ac-
ceptor to sue the drawer. Christian & Gunn v. Keen, 369.
2. Theft—Maker's liability--Note payable to bearer has been delivered,
stolen from the owner, and come to bona fide holder for value. Lat-
ter may recover on it against the maker. Secus, where the note has
not been delivered, or if delivered, has been returned to maker, and
stolen from him. Branch v. Commissioners of Sinking Fund, 427.
3. Coupon bond-Theft of— Maker's liability—Case at bar.-Two coupon
bonds issued by the state of Virginia, payable to bearer, are re-
deemed by the state, and other bonds issued in their stead. Later
the bonds were stolen from the state treasury, came into the hands
of B., a bona fide holder for value without notice of the theft, and by
B. were presented to the commissioners of the sinking fund, to be
funded into other bonds of the state. The commissioners refused,
NEGOTIABLE INSTRUMENTS (continued).
on the ground that the bonds had been stolen from the state treas-
ury. B. applied for a mandamus.
4. Discharge.-Payment of note at bank is either a sale or a discharge
thereof. A sale, it cannot be without the bank's consent. And where
the note is paid by a stranger bound for its payment at maturity, the
note is thereby actually discharged, and cannot be re-issued by him
so as to bind the parties thereto, or to keep alive a trust-deed exe-
cuted to secure it, except with the knowledge and consent of those
parties. Citizens Bank v. Lay, 436.
5. Quære. When may suit be brought on a dishonored note?
as it is dishonored, or after business hours on the day of its dishonor,
or on the next day after its dishonor? Idem.
6. Discharge-Estoppel-Case at bar.-C. purchased a lot and owed
thereon $2440, evidenced by his note secured by trust-deed on the lot.
P. bought the lot of C., and, as part of the price, agreed to pay the
note when due. When due, P. paid the note and took it up. It was
not marked "paid,” as P. told the note clerk he wanted to deposit it
elsewhere as collateral. He did so deposit it with the Citizens Bank.
Afterwards P. sold and conveyed the lot to L. The trust-deed had
not been released, but P. told L. the note had been paid. Later, the
bank had the lot advertised for sale to pay the note, and L. obtained
an injunction.
1. The transaction between P. and the bank at which the note was
payable, discharged the note of C.
2. L. was entitled to rely on the statement of P. that the note had
been paid, and was not estopped from denying its existence as a
valid security, though P. might have been so estopped.
3. L. was a purchaser for value without notice, and it was proper to
perpetuate the injunction in his favor. Idem.
1. Criminal proceedings - Negro-Colored Person-Definition. — The
term "negro" is identical in signification with the term "colored per-
son," as defined by section 2, chapter 103, Code 1873; that is, “a per-
son with one-fourth, or more, of negro blood." Patterson's case, 28
Gratt. 940. Jones' case, 538.
2. Idem Felonious marriage—Indictment-Onus probandi.-In order to
sustain an indictment under section 8, chapter 7, Acts 1877-'78, mak-
ing the intermarriage of a negro with a white person, a felony, it is
necessary first to establish that the accused is a person with one-
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