Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-11-19

promise line OF 1t2.
2 While directing an issue out Of
chancery II q matter Of discretion In
the Court II Is not q mere arbitrary dis
erection, but It must be exercised upon
sound principles OF right and justice. A
mistake In It's exercise 10 ground OF APP
peal. So, also. OF the action OF the
Court In approving or disregarding IL.
Beverly vs.. Walden, 20 Graft. t47. and
many Virginia cases. Where the evil
dence is contradictory and evenly ball
anced, 1t is the practice. without good
cause to the contrary. to abide by the
verdict. Carter VS.. Campbell. Gilmer.
10; Foushee w. Lee. 4 Cali, 20; steptce
We. Floods Administrator, 81 Graft. 3i2.
WILL CONSTRUED.
Taylor vs.. Farmer. etc. Affirmed. Opln-
ion by Buchanan. j.
Third. The balance, / will and be-
queath to my sisters or their heirs, equal
to ALL"
The testator left several surviving sis
tiers. One sister had died before the Will
was written, leaving children.
Held: Each sister living at his death
takes an equal share disposed of by that
clause, and the children or heirs of his
sisters dead at that time take a share
OF equal value, or such share as their
mother would have taken had she been
living.
FELLOW SERVANTS.
The Moore Lime Company VS.. Richard
sons Administrator. Reversed. Opin-
ion by Buchanan, j.
r., working as a day laborer for the
company, received injuries which caused
his death.
The company's business was quarrying
limestone ETC., at Eagle Rock, and it
had there a superintendent In general
control and management R., mentioned
in the cause as foreman" was employed
to head up barrels OF lime, to keep the
time of the hands, superintend their
work, which was TO wheel wood to the
kilns to remove cars to place of load
ing, and to load them. W., one Of the
gang receiving the same pay and doing
the same work as the rest, usually d.
rected them in their work, and 1t was
their duty to obey him. When the ac-
cident occurred r. was absent and w.
In charge. He directed the gang to move
two cars to the platform. After they
had started one car. W., leaving de-
ceased pushing 1t. went with the rest
for the other About the time deceased
got his car to the platform, the other
car which W. and the others had
started, and from which they had re-
moved their hands-it being slight
down grade-overtook decedent. The
bumper struck him and Indicted fatal
injury. Deceased knew they had gone
back for the car, but w. did not warn
him OF its approach, as was frequently.
IL not usually, done under like circum-
stances. Deceased had been with the
company FIVE or six years, and had been
warned not to walk behind the cars
when moving them, though 1t was COM
mon practice. Evidence tended to show
that IL deceased had been pushing the
car on either side of the bumper he would
not have been injured, as the ends OF
the cars were nearly two feet apart
when the bumpers came together.
Held. /: w. was not a vice-princpal
but fellow-servant, and the case Is
controlled in this aspect OF 1t by the
decision of this court In Richmond Loco
motiye-Works vs. Ford, q s. II. r., 57.
where the subject Is fully discussed.
2. One Of the positive duties or a master
is to adopt rules for the safety OF his
employees, where he Is engaged ir COM
pick business, which requires such rules,
and a failure to do so is such negligence
as renders him responsible for injuries
resulting from such failure Wood on
Master and Servant, section 400; Morgan
VS.. Hudson River Ore and Iron Com
pany, 81 n. T.. r., 234. While defendant
may not have adopted such rules and
published them, 1t is not shown that there
was anything in the nature Of the work
which made IL necessary to enact rules,
and its failure to do so was not negli-
gence, unless IL appeared that In the ex-
ercise of reasonable care the master
should have foreseen the necessity for
such rules and it does not so appear.
ESToPPEL
Jordan vs. the Buena Vista Company.
Reversed. Opinion by Buchanan, j.
The company purchased from the execu-
tors of S. +. Jordan lands for cash ana
bonds, and q vendors lien was reserved
for the credit payments. Afterwards, In
a suit by his executors against his heirs,
they were directed to collect the unpaid
purchase money at that time. $1,000, and
pay it over to the general receiver OF
Rockbridge Circuit Court, where the suit
was pending They did not collect, But
delivered to the receiver the notes held
by them. which were due TO various lega-
tees of s. +. Jordan. OF that fund appel
liant and her children were entitled 10
$1,000 and she filed petition that her
individual interest be determined, and
had a decree fixing 1t at $i0,o0e, and d.
recting the receiver, upon the collection
of the notes of the company, to pay her
$4,000 and hold 500 to pay costs.
The company, not being In condition 10
pay, made an arrangement with her 10
retain the money, and executed It's bond
10 her for that sum, in which it is stated
that it's payment Is secured by the oriSi-
nal vendors lien and collateral security
held by the receiver. In December, 1896.
the company filed its bill to wind up its
business. and an account of liens was
directed The commissioner reported that
the $4,000 due appellant was part OF the
original price of the land that she did
not release the vendors lien by taking
the new bond, and that her lien was OF
equal dignity with that held by the re-
ceiyer. Exceptions by the receiver were
sustained by the court and the debts due
him were given priority. Appeal.
Held: I. Independent OF the agreement
10 that effect when the bond TO her was
made, she would still have had vendors
Lien by virtue Of the original contract Oh
sale. A vendors lien exists until 1t Is
clearly shown that 1t has been waived,
released, or satisfied. Jamison vs. hixey,
| % S. z. r.. $l-'2.
The receiver, admitting that as between
| appellant and the company her lien may
| be in full force, insists that she Is estop-
| ped from setting it up as to him and
| those he represents, and that her lien
must be postponed until the purchase
money due him as receiver shall have
| been fully paid.
Held: One Of the requisites to an equi-
table estoppel, or an estoppel based on
a partys conduct, is that he who claims
| the benefit Of the estoppel must show his
| ignorance Of the truth as to the misrep-
| reservations made. and that he was per-
| so,oran< therQ0f Rigal0W on