does not bring up the action of the trial court in sustaining the demurrer to that count, nor can that count be looked to in this court in order to sustain the verdict and judgment complained of, as counsel for defendant in error insist.

The second assignment of error seems to have been abandoned, at least it was not pressed in oral argument; and properly so, for it is without merit.

The third error assigned is to the action of the court in refusing to give instructions numbered 4, 5, and 6 asked for by the defendant, and in giving in their place instructions marked "A," "B," and "C."

In the first application of the deceased, which was made a part of the policy, the following question was asked the deceased: "Has the life ever had any of the following complaints? Answer ('Yes' or 'No') opposite each." Then follows a list of diseases about which the deceased was asked, viz. apoplexy, asthma, bronchitis, cancer or other tumor, consumption, disease of the brain, disease of the heart, disease of the kidneys, disease of liver, disease of the urinary organs, dropsy, fistula, fits or convulsions, general debility, habitual cough, hemorrhage, insanity, jaundice, paralysis, pleurisy, pneumonia, rheumatism, scrofula, spinal disease, spitting or raising blood, ulcer or open sores, and varicose veins. As to the disease of kidneys and jaundice the deceased answered, "Yes;" as to all others, "No."

In the application for the other policy which was also made a part of it, he was asked the same question, and gave the same answers, except as to the disease of the liver, which was answered, "Yes." In each application he answered "Yes" when asked if he was "now in sound health." He was also asked in both applications when he was last sick and of what disease. In the former he answered, in 1893, with nepthetic colic; and in the latter, January, 1894, with chills.

In the instructions asked for by the defendant the jury were informed, among other things, that if the deceased had had disease of the urinary organs, or was not in sound health, when insured, the defendant was released, and that they must find in its favor. In the substituted instructions, the court, upon this question, limited the grounds upon which the defendant would be released to the lack of prior health or to diseases not caused by disease of the kidneys. The rejected instructions were clearly erroneous, and this does not seem to be controverted seriously, if at all, by the defendant's counsel; but it is claimed that the court erred, in the substituted instructions, in limiting the defendant's right to be released to bad health or to diseases not caused by disease of the kidneys. If, prior to the time when those answers were made, the deceased had had any dis30 S.E.-25

ease of the urinary organs other than disease of the kidneys, the defendant was released from liability, for each of the answers made was warranted as true by the terms of the policies. What the defendant sought by its question was to learn whether or not he (deceased) had had any disease of his urinary organs, no matter how caused, by which their ordinary operations had been seriously disturbed or their vital powers materially weakened. In ascertaining whether his urinary organs had been diseased or not, it was proper for the jury to consider the object which the defendant had in making the inquiry and the circumstances under which the answer was made. As was said by the supreme court of the United States in the case of Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 Sup. Ct. 119: "It was not contemplated that the insured could recall, with such distinctness as to be able to answer categorically, every instance during his past life, or even during his manhood, of accidental disorder or ailment affecting the liver, which lasted only for a brief period, and was unattended by substantial injury or inconvenience or prolonged suffering. Unless he had an affection of the liver that amounted to disease,-that is, of a character so well defined and marked as to materially derange for a time the functions of that organ,-the answer that he had never had the disease called 'affection of the liver' was a 'fair and true' one; for such an answer involved neither fraud, misrepresentation, evasion, nor concealment, and withheld no information as to his physical condition with which the company ought to have been made acquainted."

If the deceased had in fact had disease of the urinary organs, other than disease of the kidneys, the defendant was released from liability, although that disease was caused by disease of the kidneys, and the court erred in not so instructing the jury.

And if the deceased was not in sound health, when insured, except in so far as his health had been impaired by the diseases which he stated in his applications that he had had, the defendant was released upon that ground also.

As the judgment will have to be reversed for the errors referred to above, it is unnecessary to consider the other assignment of error, viz. that the verdict is contrary to the evidence.

The judgment must be reversed, the verdict set aside, and the cause remanded for a new trial, with leave to the plaintiff to file an amended declaration; the new trial to be had in accordance with the views expressed in this opinion, so far as they are applicable to the case-made.

CARDWELL, J., absent.

CARE-INSTRUCTIONS-CONTRIBUTORY
NEGLIGENCE.

1. While the same degree of care is not required of one approaching a railroad crossing where, by a city ordinance, gates are required to be kept to give warning of approaching trains, yet he must exercise that degree of care which an ordinarily prudent man would exercise under like circumstances before going on the track.

2. An instruction that, though defendant railroad company was guilty in not having a servant to lower gates at a crossing on the approach of trains, as required by a city ordinance, yet it did not relieve plaintiff from exercising "care and caution" to avoid injury from the approaching train, is not defective in that the words "care and caution" are not defined, where the next sentence of the instruction stated that it was the duty of plaintiff, before attempting to cross the track, to look in both directions, and listen for approaching trains, and that, if he stepped on said track without looking and listening, or stood in such close proximity to the track as to be struck by said train, he was guilty of such contributory negligence as precludes recovery.

3. Where there was no evidence that defendant knew plaintiff was on the track before he was run over, and it was shown that he was a young man in possession of all his faculties, it was not error to refuse to charge that defendant was liable if it could have avoided the injury after it discovered, or could have discovered by the use of ordinary care, the peril of plaintiff.

4. Giving an instruction assuming that plaintiff was standing on or near the track when hit by defendant's train is not prejudicial error where the uncontradicted evidence showed that he was either standing on or near the track when struck, or had stooped down to light a match.

5. It appeared that deceased, on the night of the accident, left a restaurant within 10 feet of the track, and went to a point on or near the track, and stood there, talking, when struck by the train; that the night was dark, but the locality was well lighted; that the track was straight, with nothing to obstruct his view; that the train was being backed up at a speed of not more than five miles per hour, and the engine bell was and had been ringing when he was struck and injured. Held, to show such contributory negligence as barred recovery, even though defendant was guilty of negligence in the management of its train and in failure to guard the crossing as required by a city ordinance.

Appeal from corporation court of Danville. Action by J. E. Rangeley, administrator of E. W. Rangeley, deceased, against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Berkeley & Harrison and Peatross & Harris, for appellant. B. B. Munford, for appellee.

BUCHANAN, J. This action was brought to recover damages from the defendant company for running one of its trains over the plaintiff's intestate at a street crossing in the city of Danville, and causing his death.

Upon the trial of the cause a verdict and judgment were rendered in favor of the defendant, and to that judgment this writ of error was awarded.

The

Three grounds of error are assigned. first is to the action of the court in refusing to give instruction No. 5 offered by the plaintiff in error.

That instruction, in effect, informed the jury that a person approaching a railroad crossing where gates are required to be kept and lowered upon the approach of trains has the right, when he sees that the gates are not lowered, to presume that no train is approaching, and that he is under no obligation to use his senses to ascertain whether or not a train is approaching.

While the same degree of care may not be required of a traveler approaching a railroad crossing where gates or other devices are used for the purpose of warning travelers of approaching trains, still the traveler must use his senses. He must exercise that degree of care which an ordinarily prudent man would exercise under like circumstances before going upon the track. Kimball v. Friend's Adm'x, 95 Va. 27 S. E. 901, and authorities cited.

The instruction was plainly erroneous and was properly refused.

The second assignment of error is to the action of the court in giving two instructions asked for by the defendant. The first of these instructions is in these words:

"The court instructs the jury that, though they may believe from the evidence that an ordinance of the city of Danville required the defendant to have a gate at the Craghead street crossing, with a man in charge of the same, and to lower said gate whenever a train attempted to cross said street, and though they may believe from the evidence that the defendant company failed to provide said gate keeper at the crossing in question, or to have said gate lowered on the occasion of the accident, and though they may believe that the defendant company failed to have at the front of the train as it approached said crossing a light, or to signal its approach by bell or otherwise, yet the said failures on the part of the company did not relieve the plaintiff's intestate, Ellis W. Rangeley, from exercising care and caution in attempting to avoid injury from the approaching train; that it was the duty of said Rangeley, before attempting to cross said track, or while standing on or near said track, to look in both directions, and to listen for approaching trains; and that if said Rangeley stepped upon said track without looking and listening, or stood in such close proximity to said track, without looking and listening, as to be struck by said train, then said Rangeley was guilty of such contributory negligence as precludes any recovery, and the jury must therefore find for the defendant."

Two objections are urged to this instruc

tion. One is that the court ought to have defined the "care and caution" which it was the duty of the plaintiff's intestate to exercise in approaching the crossing under the facts hypothetically stated in the instruction. We do not think the jury could have been misled by the language complained of, even if the court had not in the same instruction defined the care and caution which it was the duty of the decedent to exercise. In the next sentence it says: "That it was the duty of said Rangeley, before attempting to cross the said track, or while standing on or near said track, to look in both directions, and listen for approaching trains; and that if said Rangeley stepped upon said track without looking and listening, or stood in such close proximity to said track as to be struck by said train, the said Rangeley was guilty of such contributory negligence as precludes any recovery, and the jury must therefore find for the defendant." This language leaves no doubt of the degree of care and caution which it was his duty to exercise.

The other ground of objection to the instruction is that it failed to state that, although the decedent was guilty of contributory negligence, still the plaintiff was entitled to recover if the defendant could have avoided the injury after it discovered the peril of the decedent, or might have discovered it by the exercise of ordinary care.

There is no evidence tending to prove that the defendant knew that the deceased was on its track until after he was run over. If it had seen him, a man 19 years of age, possessed of all his faculties, on or near its track, it would have had the right to assume that he would get out of the way of the approaching train (Marks' Adm'r v. Railroad Co., 88 Va. 1, 13 S. E. 299; 3 Elliott, R. R. § 1095), and there is nothing in the evidence tending to show that after it could have discovered that he was not going to do what it had the right to assume that he would do it could have avoided the injury.

The other instruction given for the defendant is in these words:

"The court instructs the jury that, notwithstanding the negligence of the defendant company, the plaintiff's intestate, Ellis W. Rangeley, had no right to stand on said track, or so near thereto as to be in danger from passing trains without keeping a lookout in both directions for their approach; and that if, in consequence of his position, and of his failure to look and listen, he was struck and killed, there can be no recovery in this case."

The objection made to this instruction is that it assumed that the deceased was standing on or near the railroad track, instead of leaving that question to the jury. Conceding that the instruction does this, and that the court ought to have left the jury to determine that question, we do not think that the plaintiff was or could have been preju

diced thereby. Some of the witnesses say that the deceased was standing on or near the track, talking to some one, when struck; others say that when struck he had stooped down to light a match. The uncontradicted evidence shows that he was standing on or near the track, either in an erect or in a stooping position, when struck. There was no evidence whatever that he was moving at that time. It is impossible to conceive how the plaintiff was or could have been prejudiced by the court's assuming as a fact what was proved by the uncontradicted evidence in the case.

The third and last assignment of error is to the action of the court in refusing to set aside the verdict of the jury because contrary to the law and the evidence, and because of erroneous instructions given.

As we have seen, there was no error to the prejudice of the plaintiff in the instructions given.

While the evidence shows clearly that the defendant was guilty of negligence in the management of its train when the plaintiff's intestate was run over, it also shows that the unfortunate man was guilty of such contributory negligence as deprived him of the right of recovery.

The record considered as on a demurrer to the evidence shows that the deceased, on the night of the accident, with his companion, left a restaurant, the porch of which extended to within 8 or 10 feet of the railroad track; that he went to a point on or near the track, and was standing there, talking, when struck by the defendant's train; that the night was dark, but that the locality was well lighted by electric lamps; that the track was straight in the direction from which the train came, with nothing to obstruct the view in that direction after leaving the restaurant porch; that the train was backing about as fast as a man could walk, not over five miles an hour, up grade, using steam; and that the bell was ringing from the time it commenced to back until after the unfortunate man was run over. These facts fully justified the jury in finding that the plaintiff's intestate was guilty of contributory negligence.

We are of opinion that there is no error in the judgment, and that it must be affirmed.

CARDWELL, J., absent.

HUGHES, Sheriff, v. KELLY et al. (Supreme Court of Appeals of Virginia. March 31, 1898.)

ACTION OF DEBT-PLEADING-BILL OF EXCEPTIONS -MOTION TO STRIKE EVIDENCE-INSTRUCTIONS -FRAUDULENT CONVEYANCES-GOOD FAITH.

1. Where plaintiff, in an action of debt on a sealed instrument, replies to a plea of nil debet, he will be put on proof of every allegation in his declaration, and defendant may avail him

self of every defense which may be proved under said plea, including fraud.

2. Where plaintiff does not object to proof beyond the scope of defendants' statement of their defense or ask for an additional specification, he cannot complain on appeal.

3. A bill of exceptions reserved to the denial of a motion to strike out testimony is insufficient, where it does not distinctly set out the testimony.

4. Where only a part of the testimony of a witness is improper, a motion to strike out his entire testimony will be overruled.

5. A rule requiring a bill of exceptions to distinctly point out the error complained of is one necessary for the proper discharge of the court's duties, and cannot be abrogated by stipulation.

6. It is not error to refuse an instruction based on a correct hypothetical statement of facts, where such statement omits other material facts in the case.

7. Where property was conveyed for the benefit of creditors to a trustee, and the trustee sold it to the wife of the debtor, and it was afterwards taken on fi. fa. against the husband, the question whether the transaction was fraudulent depended on the wife's good faith and want of notice, and not on the good faith of the trustee.

8. In an action by the wife for a wrongful taking of the property under said fi. fa., an instruction that unless, at the time of the levy, the property belonged to the husband, the jury should find for plaintiff, was misleading.

9. In an action to recover the value of property taken on fi. fa. against plaintiff's husband, it appeared that the property had formerly belonged to him, and that he had conveyed it to a trustee for the benefit of creditors, and that plaintiff had bought the property at a public trustee's sale. Held, that the fact that the conveyance to the trustee was fraudulent was a proper circumstance for the jury to consider in determining whether plaintiff held the property in her own right or for her husband, even though she had no notice of fraud practiced by him in conveying to the trustee.

Error to law and equity court of city of Richmond.

Action by J. T. Hughes, sheriff, for the benefit of C. A. Sweeney, against John Kelly, and another. There was a judgment for defendants, and plaintiff brings error. Affirmed.

L. O. Wendenburg, for plaintiff in error. Smith, Moncure & Gordon and Ed. Waddill, Jr., for defendants in error.

KEITH, P. John Kelly sued out of the clerk's office of the circuit court of the city of Richmond an execution for $417.58, with interest and costs, upon a judgment obtained by him against James Sweeney. This execution was levied upon certain property, and, a doubt having arisen as to whether or not it was liable for such levy, the sheriff applied for and obtained an indemnifying bond from John Kelly as principal and Michael Kelly as surety, which is in the usual form. The sheriff thereupon proceeded to sell; whereupon an action of debt upon this bond was brought in the law and equity court of the city of Richmond in the name of Hughes, sheriff, for the benefit of C. A. Sweeney, the wife of the judgment debtor, who claims that the property sold belonged to her, and not to James Sweeney.

The defendants appeared, and pleaded nil debet, and upon this plea the plaintiff took issue.

Nil debet is the proper plea, and is the general issue, in an action of debt on simple contract. It would, in this case, have been bad on demurrer; but no objection by demurrer or otherwise having been made, and a verdict and judgment having been rendered upon it, the defect is cured, and could not now be insisted upon, were there a disposition to do so.

Where the plaintiff, in an action of debt on a bond, instead of demurring, replies to a plea of nil debet, he will be put upon proof of every allegation in his declaration; and the defendant may avail himself of any ground of defense which, in general, might be taken advantage of under that plea. 3 Enc. Pl. & Prac. p. 664; Gargan v. School Dist., 4 Colo. 53; Garland v. Davis, 4 How. 146; Bart. Law Prac.

The plaintiff, while not objecting to the plea of nil debet, did ask the court to require the defendants to state the ground of defense upon which they expected to rely under that plea, which was done as follows:

"The ground of defense to this action is that the property in question which was levied on by the sheriff was the property of James Sweeney, the judgment debtor, and was property subject to the lien of the fi. fa., because it was the property of James Sweeney, and not the property of C. A. Sweeney."

The most material allegation in the plaintiff's declaration-the one upon the truth or falsity of which the result of this controversy must depend-is that the property levied upon, at the time of the seizure and sale under the execution, "was the lawful and absolute property of C. A. Sweeney, and not the property of James Sweeney." The plea of nil debet denied this allegation, and put the plaintiff upon proof of it; and the statement of defense clearly pointed out to the plaintiff the ground upon which the defendants relied,-that the property levied upon in truth and fact belonged to James Sweeney. The evidence, from the beginning to the end, shows that the defendants proposed to prove to the jury that the claim of C. A. Sweeney was based upon a fraud practiced upon his creditors by James Sweeney, of which C. A. Sweeney had knowledge and in which she participated. She herself (the actual plaintiff in this case) was the first witness examined, and the cross-examination to which she was subjected was quite sufficient to bring to her knowledge the character of the case which she would be required to meet. The plaintiff should, then, if she felt that the defendants were being allowed a latitude in their introduction of proof not justified by their statement of defense, have asked the court to exclude the evidence, o to require an additional statement or specification from the defendants, and, upon the court's refusal to entertain the motion,

should have brought its action before us upon a proper bill of exceptions. Under the plea of nil debet, where that plea is proper, fraud in the transaction which is the subject of investigation may be proved; and the authorities show that while nil debet is not a correct plea, if tested by a demurrer, in an action upon a sealed instrument, yet, if issue be joined upon it, it puts the plaintiff upon proof of every material averment in his declaration.

The case, then, is as follows: The defendant levied upon certain property which the plaintiff claimed, and she now sues to recover damages for its seizure and sale. The defendant replies: "I owe you nothing, because you never had title to the property upon which the levy was made, and the pretended title by which you claim it is fraudulent and void, and cannot stand in the way of the assertion of my just rights in the premises."

The position of the defendants would seem to be tenable had the plaintiff so presented her case as to require of us a decision upon the point, but this court has time and again held that it will not consider objections presented in bills of exceptions such as the one disclosed in this record.

After all the evidence was in, the plaintiff "moved the court to strike out the following respective portions of testimony, and each respective portion is to be treated as if made under a separate motion, if this be deemed necessary: First, the testimony of C. A. Sweeney bearing upon the life and condition of M. J. Fenton in 1883; secondly, the testimony of C. A. Sweeney as to how she obtained the Byrd street real estate and Church Hill property, which she has owned for 17 years, and the Henrico farm, which sbe owned 15 years; thirdly, the testimony of C. A. Sweeney in reference to the purchase of the equity of redemption in the stable; fourthly, the testimony of C. A. Sweeney in reference to the two notes for $1,133 and $1,166 secured by James Sweeney on the stable prior to his assignment; and, fifthly, the testimony of James Sweeney in reference to each of the above matters."

This would require the court to read the testimony of the witnesses in each of these depositions, covering many pages of the record, and ascertain to what the several objections herein enumerated were intended to apply, and then to consider whether or not they were well taken. This is not the duty of this court. Where our judgment upon the admissibility of testimony is asked, we have repeatedly declared what the proper practice is. Railroad Co. v. Shott, 92 Va. 34, 22 S. E. 811; Railroad Co. v. Ampey, 93 Va. 108, 25 S. E. 226; Kimball v. Carter (Va.) 27 S. E. 823.

The motion further asks that the testimony of Rafter, King, Fagan, Scott, and Donly be excluded. It may be conceded that parts of the testimony of each witness is ir

relevant and improper, but in the form in which the objection was made, if any part of the testimony of either witness was relevant and proper, the testimony of that witness should not have been excluded. Fraud is usually proved by circumstances, and one witness rarely proves all the circumstances relied upon to establish fraud; but one witness may prove one fact, and another fact may be proved by some other witness, and the testimony, taken together, may form a connected chain of circumstances sufficiently strong to sustain the verdict of the jury, and that is the case with the testimony of the witnesses which the plaintiff asks the court to exclude. In that of each one of them may be found a circumstance tending to prove a fraudulent purpose as to James Sweeney, or knowledge of that purpose upon the part of Catherine Sweeney. The exception should have pointed out the irrelevancy or improper questions and answers.

The plaintiff seeks to take his motion out of the operation of the cases to which we have referred and others of similar import by force of an agreement between counsel "that one exception might be made at the closing of the testimony by the plaintiff to the admissibility of all improper, illegal, or irrelevant testimony." This agreement, properly construed, does not undertake to alter the practice which this court has declared to be proper, and if, upon a proper construction, it had disclosed a purpose to do so, we should disregard it. The rule which we have laid down was adopted after mature consideration, is necessary, in our judgment, to the proper discharge of our duties, and cannot be abrogated by any stipulation entered into by counsel.

We are of opinion that there is no error in the ruling of the court as disclosed by the first bill of exceptions.

After the evidence was all in, the plaintiff offered certain instructions, which were refused. The proof showed that James Sweeney, having become embarrassed, conveyed his property, consisting of certain real estate described in the deed, and carriages, horses, harness, tools, provender, and household and kitchen furniture, to W. W. Cosby, trustee, for the benefit of certain creditors. Under this trust Cosby sold the property conveyed to him, and C. A. Sweeney, the wife of the grantor, purchased it. It may be conceded that this conveyance vested an unassailable title in the trustee, there being no evidence to show that Cosby knew of, or participated in, any fraudulent purpose that may have actuated James Sweeney; and it is true that a purchaser from the trustee who had thus acquired a good title would not be affected by the fraud of his remote grantor. If, then, Cosby was innocent, he could convey a good title to Mrs. Sweeney, who knew of the covinous act of her husband; but that is by no means the case which the jury was here called upon to decide, and