is made to defeat this by showing an attempt by an agent to deceive the defendant into paying a sum greater than the loss. Forfeitures and penalties are not favored in the law, and the langauge should not be unnecessarily extended by construction. The provision for a forfeiture of rights under the policy is doubtless a wise one, to prevent deceit on the part of insured persons; but it does not seem to us necessary, where the insured acts in good faith, and is not a party to the deceit.

The case of Crump v. Mining Co., 7 Grat. 352, 56 Am. Dec. 116, cited by plaintiff in error in support of its proposition contained in instructions Nos. 1 and 2 refused, has no sort of application to this case. That was a suit brought to recover a stock subscription and the defense of fraud in the procurement of the subscription was made; and it was held that the principal could not recover where the agent had made fraudulent, though unauthorized, representations and the subscriber had been misled to his injury. This principle cannot be extended to a case in which it is sought to enforce a forfeiture because of false swearing as to proofs of loss under a policy of insurance; and no case can be found in which a forfeiture of an insurance policy for fraud and false swearing as to proof of loss was ever effected, unless the defendant swore recklessly and made statements under oath that were knowingly and willfully false. Moral turpitude is an essential element of this species of fraud, and reckless swearing is a moral wrong. Cooley's Briefs on Ins., supra, and authorities there cited.

In lieu of instructions Nos. 1 and 2, asked by plaintiff in error, the court gave its own instruction No. 4, which is as follows:

"If the sworn statements and representations of the plaintiff as to the quantity of peanuts destroyed by the fire, were made by her on information, and not of her own knowledge, and the defendant company, or its agents acting for it in that respect, understood that they were made merely on Information, there is no fraud, if the plaintiff had reason to believe, and did believe, the information upon which she acted to be true, though it proved to be untrue, and the jury should find for her to the extent of the loss sustained by her."

It seems that the only objection made to this instruction is that the court assumes that there was evidence before the jury to the effect that the plaintiff in error, or its agents acting for it, understood that the proofs of loss furnished and deposition given by defendant in error were merely made on information. This objection to the instruction proceeds upon a total misapprehension as to what the evidence in the case is. As we have seen, the agents of plaintiff in error well understood that defendant in error, from the very nature of the case, was dependent upon information derived

from others in making up proofs of loss and in answering interrogatories propounded to her in the deposition she gave on December 8, 1904. Therefore the instruction No. 4 was not prejudicial to plaintiff in error, but more favorable to it than otherwise, because it makes no difference whether or not the insurer or its agents understood that such statements as were made were in fact made on information derived from others by the insured, it being sufficient if in fact they were so made without being recklessly made, or being willfully false. Boston Marine Ins. Co. v. Scales, supra; Metzger v. Manchester Fire Ins. Co., supra.

The next assignment of error touching the instructions given by the court is that "the court erred to the prejudice of the company in its failure to properly instruct the jury as to the effect of written statements made by the insured of her own knowledge, when the evidence conclusively shows she had no such knowledge."

Conceding that the falsity of the statements with respect to the personal knowledge of defendant in error was put in issue by the pleadings in the case, we do not find that the court was requested to instruct the jury as to the effect of the written statements made by her as of her own knowledge, unless it be instructions Nos. 1 and 2 refused, which, as we have said, were properly refused; and it would unduly extend this opinion to discuss those instructions again.

"A misrepresentation made without a currupt motive or dishonest purpose is called legal fraud. If there be present a corrupt motive or dishonest purpose in making a representation there is moral fraud." Kerr on Fraud and Mistake, 55.

As we have remarked, there is no case to be found, as far as we are advised, holding that circumstances that would otherwise be legal fraud occurring after loss render a policy of insurance void. Legal fraud in making the contract of insurance may serve to defeat or cancel the policy, but nothing occurring after the loss but moral fraud can render the policy void. See the authorities cited above and also Runkle v. Insurance Co., 99 Iowa, 414, 68 N. W. 712.

We are cited to a number of cases which hold that the right to recover under a policy of insurance was defeated by false representations made by the insured concerning the loss, but they were cases in which the representations of the insured were admittedly false, and therefore the law as laid down in those cases can have no application here. In one of these cases, Mullin v. Insurance Co., 58 Vt. 113, 4 Atl. 817, the decision was put on the ground that the insured swore recklessly to an inventory prepared by his wife, an inspection of which would have shown many false entries intended to work a fraud on the insurer. The opinion in that case says: "If he had looked it over and wished to be honest, he would have discover

ed many false statements. On the contrary he recklessly indorsed it without examination, and by so doing made it his own fraud within the meaning of the policy." This case was reviewed in the well-considered case of Boston Marine Ins. Co. v. Scales, supra, where the court said of it: "This is a strong case and goes to the very verge of the law, if it is not, indeed, contrary to the current of authority." It was a case, as the court said, either of "gross fraud or reckless negligence on the part of the husband," and is therefore very unlike the case at bar.

This brings us to the consideration of the last assignment of error, which is to the refusal of the court to set aside the verdict of the jury on the ground that it is contrary to the weight of the evidence.

There is nothing better settled in this jurisdiction than that the credibility of witnesses and the weight to be given to their evidence in a particular case are properly to be determined by the jury; and where the evidence, consisting of circumstances and presumptions, is conflicting, the mere fact that the court doubts the correctness of the verdict, or if the jury would have rendered a different verdict, will not be sufficient to justify setting aside the verdict found by the jury. Kimball & Fink v. Friend's Adm'r, 95 Va. 126, 27 S. E. 901. To warrant a new trial in cases where the evidence is conflicting, the evidence must be insufficient to warrant the finding of the jury.

In this case, plaintiff in error sought to maintain three propositions: First, that the room in which the peanuts burned were stored was not large enough to contain 400 bags of peanuts of the size alleged to have been burned; second, that the character of the remains of the fire did not indicate that as many as 400 bags of peanuts had been consumed; and, third, that in fact there were not 400 bags of peanuts in the room at the time of the fire. A large number of witnesses were examined, and it would be needless for us to undertake to set out in detail the statements made bearing upon the several propositions stated. To say the least of the evidence, it was conflicting upon every point, and, therefore, as it seems to us, the case comes clearly within that class referred to in the rule governing new trials, to which we have just adverted, and is peculiarly a case in which the court would not be justified in interfering with the verdict of the jury.

Upon the whole case, we are of opinion that the judgment should be affirmed.

(105 Va. 473)

TRUSTEES OF AMERICAN BANK OF ORANGE v. McCOMB.

(Supreme Court of Appeals of Virginia. June 14, 1906.)

1. BILLS AND NOTES-BONA FIDE PURCHASERS-DUE CAUSE OF BUSINESS-TRUSTEE IN DEED OF TRUST.

Acts 1897-98, pp. 896, 910, c. 866, § 124 [Va. Code 1904, p. 1455, § 2841a], provides in

subsection 52 that a holder in due course is one who takes the instrument when it is complete and regular on its face, before maturity, for value, and without notice of any infirmity; and subsection 53 expressly provides that the holder of an instrument payable on demand, negotiated an unreasonable length of time after maturity, shall not be regarded as a holder in due course. Held that, as only one class is excepted from the class of bona fide holders under subsection 53, a trustee under a deed of trust for creditors is a holder in due course. 2. SAME MATTER APPARENT FROM INSTRU

MENT.

In an action on a note, defendant claimed a material alteration consisting of the insertion of the words "Payable with interest." The note was partly printed and partly written, and the words "Payable with interest" were in the same handwriting as other written portions, and were not interlined, but written on a blank space after the words "Value received." Held, that the note was "complete and regular" on its face, within Acts 1897-98, pp. 896, 910, c. 866, § 124 [Va. Code, 1904, p. 1455, § 2841a], defining a holder in due course.

Error to Circuit Court, Orange County.

Action by the trustees of the American Bank of Orange against Lelia M. McComb. Judgment in favor of defendant, and plaintiffs bring error. Reversed and rendered.

Duke & Duke and Morton & Shackelford, for plaintiffs in error. Grimsley & Miller and Hay & Browning, for defendant in error.

BUCHANAN, J. The principal question involved in this case is whether or not the plaintiffs in error, who were the plaintiffs in the court below, are holders in due course of the negotiable note sued on, of which the following is a copy:

"$123.50 Int.

"$4,020. Orange, Va., Feby. 29th, 1904.

"Six months after date I promise to pay to the order of myself four thousand and twenty dollars. Negotiable and payable at the American Bank of Orange, Orange, Va.

"Homestead and all other exemptions waived by the maker and each endorser. "Value received. Payable with interest.

"Lelia Moore McComb."

The note was indorsed in blank by the maker to the American Bank of Orange. That bank, which was in a failing condition, on the 12th day of March, 1904, executed a deed of trust, by which it conveyed, assigned, and transferred all of its property of every kind, including the note sued on, to the plaintiffs, for the purpose of securing all the creditors of the bank.

The defense relied on was that since the execution of the note it was, without the knowledge or consent of the defendant, the maker, materially altered by the insertion of the words "Payable with interest."

The plaintiffs' replication in effect confessed that the note had been altered, as averred in the defendant's plea, but denied that they had any knowledge of it at the time they became holders of the note, and averred that they were purchasers for value and without

notice of the alteration, and are holders thereof in due course.

The plaintiffs introduced in evidence the note and the deed of trust. To that evidence the defendant demurred, which demurrer was sustained by the court, and judgment rendered in favor of the defendant. To that judgment this writ of error was awarded.

By section 124 of an act known as the "Negotiable Instruments Law," approved March 3, 1898 (Acts 1897-98, pp. 896, 910, c. 866), which act is found in Va. Code 1904 as section 2841a, it is provided that where an instrument has been materially altered, and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.

The contention of the defendant is that such trustees are not holders in due course under the law merchant, because they did not acquire the paper by indorsement and delivery as is usual and customary in business circles, and that the negotiable instruments law has not changed the rule of the law merchant.

A deed of trust is the most usual method of securing creditors in this state, or, at least, a very usual method of doing so; and it is not at all clear that, under the principles established by our decisions, such a trustee ought not to be held to be a holder in due course. It is settled law in this state that a pre-existing debt is of itself a valuable consideration for a deed of trust executed for its security, and that such deed, if it be duly recorded, and was not executed with a fraudulent intent, known to the trustees or the beneficiaries, will be valid against all prior secret liens and equities. See Wickham v. Lewis Martin & Co., 13 Grat. 427, 436, 437; Davis v. Miller, 14 Grat. 1, 14-17; Evans v. Greenhow, 15 Grat. 153, 156, 157; Shurtz v. Johnson, 28 Grat. 657, 667; Cammack v. Soran, 30 Grat. 292, 294-297; Williams v. Lord, etc., 75 Va. 390, 404; Chapman v. Chapman, 91 Va. 397, 400, 21 S. E. 813, 50 Am. St. Rep. 846.

All the authorities cited by the defendant to sustain her contention that such a trustee it not a holder in due course, are based upon the case of Roberts v. Hall, 37 Conn. 205, 9 Am. Rep. 308. The opinion of the court in that case shows that such deeds of trust do not occupy the same high position in that jurisdiction as they do in this state as a method of securing creditors, and the reasoning of the court by which it reached its conclusion is not at all satisfactory or convincing in the light of our own decisions above cited. But, whether such a trustee was a holder in due course prior to the enactment of the negotiable instruments law, there can be, it seems to us, no room for doubt since it went into effect.

The object of that act, as stated in its title, was "to revise, arrange and consolidate

into one act the laws relating to negotiable instruments (being an act to establish a law uniform with the laws of other states on the subject)." The history of that legislation, as well as the act itself, shows that it was the intention of the Legislature to embody in one act, not merely the statute law of the state with reference to negotiable instruments, but also the rules of the law merchant -to codify generally the law on the subject. All acts and parts of acts in conflict with it are to that extent expressly repealed by subsection 197, and the rules of the law merchant impliedly repealed, except in such cases as are not provided for by the act. Subsection 196.

Subsection 52 declares what constitutes a holder in due course. It defines such a holder to be one who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face; (2) that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; (3) that he took it for value and without notice; and (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Every holder of a negotiable instrument under the conditions named is a holder in due course, unless excluded by some other provision of the act.

Subsection 53 expressly provides that the holder of an instrument payable on demand, negotiated an unreasonable length of time after its issue, shall not be regarded as a holder in due course, and who but for this express provision excluding him would have been a holder in due course under subsection 52.

When the act defines generally who shall be holders in due course, and make an express exception of a certain class, who would otherwise be embraced, the exception negatives the idea that any other class was to be excepted, in accordance with the maxim, "Expressio unius est exclusio alterius." Black on Interpretation of Laws, § 64; Sutherland on Stat. Constr. § 325; Somers' Case, 97 Va. 759, 761, 33 S. E. 381.

Where a statute is intended to embody in a code a particular branch of the law, and has specifically dealt with any point, the law on that point should be ascertained by interpreting the language used, instead of doing as before the statute was passedroaming over a vast number of authorities in order to discover what the law is by extracting it by a minute, critical examination of prior decisions. Lord Bramwell in Bank, etc., v. Vogleano, Appeal Cases, 107, 144.

If such a statute is to be treated as the defendant insists should be done, and have read into it the law, prior to its enactment, the value of codifying the law on the subject of negotiable instruments will be great

ly impaired, if not destroyed, and the very object for which it was enacted will be frustrated.

Where the language of such an act is clear, it must control, whatever may have been the prior statutes and decisions on the subject. Where there is a substantial doubt as to the meaning of the language used, the old law is a valuable source of information. U. S. v. Bowen, 100 U. S. 508, 25 L. Ed. 631; Bank v. Vogleano, supra.

The language of subsection 52 is free from doubt. The plaintiff trustees are clearly embraced within its provisions, if they satisfy the four conditions named. The only one of these conditions which it is claimed they do not satisfy is the first, viz., that the note is not complete and regular upon its face.

An examination of the original note, which was produced before this court, shows that it was partly printed and partly written; that the words "Payable with interest" are in the same handwriting as are the other written portions of the note, except the maker's name; that they were not interlined, but written on a blank space after the words "Value received," at the most appropriate place on the note at which they could be written without interlining them. There was nothing on the face of the note to show that It had been altered, or to awaken suspicion. It must, we think, be regarded as complete and regular on its face. This being so, the plaintiffs were holders in due course, and the trial court erred in not so holding.

Whether or not the court erred in permitting the defendant to file her special plea without making affidavit to it, and in requiring the special replication to it to conclude with a verification, instead of to the country, need not be considered, since a decision of these questions could not affect the result, as the conclusion reached by this court upon the merits is as favorable to the plaintiffs as it could have been if the plea had been sworn to and the replication had concluded to the country.

The judgment of the circuit court must be reversed, and this court will enter such judgment as the circuit court ought to have rendered, for the amount of the note, with interest from the date of its maturity.

(105 Va. 306)

TOWN OF HAMPTON v. JONES et al. (Supreme Court of Appeals of Virginia. June 14, 1906.)

MUNICIPAL CORPORATIONS-OFFICERS-RIGHT TO COMPENSATION.

A county treasurer who under act May 23, 1897 (Acts Ex. Sess. 1887, p. 486, c. 382), was ex officio treasurer of a town, was not entitled to compensation as town treasurer beyond January 1, 1904, to which time his term of office was extended by Const. 1902, schedule, § 11; he then having ceased to be a de jure officer, and not having been a de facto officer, because the duties of the office were performed by another, who had been appointed and qualified as

treasurer of the town, and provision having been made by Acts 1902-04, p. 487, c. 276, for a separate treasurer for the town.

Error to Circuit Court, Elizabeth City County.

Action by the town of Hampton against Jesse S. Jones and others. Judgment for defendants. Plaintiff brings error. Reversed.

S. Gordon Cumming and F. S. Collier, for plaintiff in error. Jones & Woodward, for defendants in error.

KEITH, P. The town of Hampton upon motion recovered against Jesse S. Jones, former treasurer of Elizabeth City county, and as such treasurer of the town of Hampton, and his sureties upon his official bond, the sum of $2,901.44, with interest, subject to a set-off of $1,988.42, of which $299.33 is to be credited as of the 26th day of December, 1903, and the residue, $1,689.09, as of the date of the judgment; and to that judgment the town of Hampton obtained a writ of

error.

The facts are as follows: The town of Hampton is a municipal corporation, created by an act of the General Assembly of Virginia approved May 23, 1897 (Acts Ex. Sess. 1887, p. 486, c. 382). By section 11 of said act the treasurer of Elizabeth City county was constituted ex officio treasurer of said town. In May, 1899, Jesse S. Jones was elected treasurer of Elizabeth City county, and qualified as such on July 1, 1899, on which day his term of office began. He served as such for the full term, and in such capacity acted as treasurer ex officio of the town of Hampton, receiving and disbursing its revenues according to law.

Under section 11 of the schedule of the Constitution which went into effect July 10, 1902, the term of office of Jesse S. Jones, along with other officers enumerated in said section, was extended until January 1, 1904, upon his giving bond in accordance with the provisions of section 17 of the schedule, which he did.

By an act approved May 15, 1903 (Acts 1902-04, p. 487, c. 276), and in force from its passage, the charter of the town of Hampton was amended and re-enacted, so as to provide for the election by the qualified voters of said town, on the second Tuesday in June, 1903, and every two years thereafter, of a town treasurer, who should be an elector of the said town, and who should enter upon the duties of his office on the 1st day of September next succeeding his election; provision being made in the act for his executing a bond.

Pursuant to the amendment to the charter, Alonzo A. Patrick was elected treasurer of the town of Hampton on the second Tuesday in June, 1903, and was awarded a certificate of election to said officers without contest. Patrick, however, was unable to procure a guaranty company to act as his surety prior

to the 1st of September, 1903; but on the 11th of that month, during the September term of the county court of Elizabeth City county, Patrick presented his certificate of election as town treasurer to the court and asked leave to qualify as such, whereupon Jones appeared by counsel and resisted the motion. On September 16th the court decided that the failure of Patrick to qualify prior to the 1st day of September, 1903, vacated the office of town treasurer of the town of Hampton, that a vacancy existed, and the court thereupon appointed Patrick town treasurer of the town of Hampton. Patrick qualified by taking the oath of office required by law and executing bond with the Fidelity & Deposit Company of Maryland as security, which se curity and form of bond had been duly approved by the council of the town of Hampton. The town forthwith directed Jones, who continued to hold the papers, books, moneys, and other property of the town of Hampton, in his possession, to deliver the same to Patrick, and provided in the same resolution that the receipt of Patrick should release Jones and his bondsmen from all liability for all papers, books, moneys, and other property of the town of Hampton comprehended in the receipt to be given by Patrick. Patrick presented a certified copy of this resolution to Jones, who refused to deliver to said Patrick the whole or any part of the books, papers, moneys, and other property of the town of Hampton in his possession.

It further appears that the town and Patrick, as town treasurer, petitioned the Judges of the Supreme Court of Appeals, at Richmond, for a writ of mandamus to compel and require Jones to forthwith assign, transfer, and deliver the said books, papers, moneys, etc., to Patrick, but that said writ of mandamus was refused by the said court; no reason for such refusal being given.

It further appears that Patrick has received up to and including the 28th day of February, 1905, as compensation for the performance of his duties as treasurer of the town of Hampton, the sum of $1,735.35, of which $299.33 was for commissions on collections before December 26, 1903. From February 28, 1905, to May 30, 1905, Patrick collected for the town $5,071.51, on which his commissions are $255.57. It further appears that Patrick, since the 18th day of September, 1903, has faithfully performed the duties of town treasurer, receiving municipal revenues and applying them under the direction of the town council of Hampton, pursuant to law.

It thus appears that compensation is demanded from the town of Hampton by two treasurers Jesse S. Jones, claiming to be the treasurer de jure, and Patrick, who had actually performed the duties of the office, also receiving commissions upon the revenues collected by him. It is not disputed that Jones, at the date of the judgment, had in his possession moneys of the town amounting to 54 S.E.-2

$2,901.44. He claims, however, that he was entitled to a commission upon all the revenues which had been, in point of fact, collected by Patrick, and this contention the circuit court allowed.

In this ruling we are of opinion that there was error. From the 1st day of January, 1904, the period to which, by force of section 11 of the schedule to the Constitution, his term of office as treasurer of the county of Elizabeth City had been extended, his ex officio authority as treasurer of the town of Hampton, growing out of his incumbency of the office of county treasurer, ceased and determined, and after that day he was not entitled, as officer de jure or de facto, to collect revenues belonging to the town of Hampton-not as an officer de jure, because his term of office had expired; not as officer de facto, because the duties of the office had since the previous September been performed by Patrick, who had been appointed and qualified as treasurer of the town of Hampton.

We are of opinion, therefore, that there is error in the judgment to the extent of $1,689.09, and that the proper judgment to be rendered is that the town of Hampton do recover against Jesse S. Jones and his sureties the sum of $2,901.44, with interest from the 1st day of September, 1903, until paid, to be credited by the sum of $299.33 as of the 26th day of December, 1903.

(105 Va. 527)

SOUTHERN RY. CO. v. HANSBROUGH'S ADM'X. (Supreme Court of Appeals of Virginia. June 14, 1906.)

1. RAILROADS-INJURY TO PERSON ON TRACK -PLEADING-DECLARATIONS-SUFFICIENCY. A declaration, in an action against a railway company for injuries to a traveler in a collision with an engine operated on a street, which alleges that the engine was running at a high rate of speed, carelessly, negligently, and unskillfully, without pointing out in what manner it was so run, and without alleging a violation of any ordinance, or averring any obstruction to the view of persons crossing the track, which made it necessary for the company not to run its engines at a high rate of speed, states no cause of action, because it fails to point out in what manner the company was negligent and to show what duty it owed to the traveler which it neglected to perform. 2. SAME.

A declaration, in an action against a railway company for injuries to a traveler in a collision with an engine operated on a street, which alleges that it was the duty of the company to run its engine at 5 miles an hour, and that it ran the same at 40 miles an hour, without alleging the violation of any ordinance or statute, and which alleges that the bell was not rung without alleging any ordinance or statute requiring the ringing of the bell, and without charging the company with any failure to exercise caution to prevent injury after seeing the traveler, states no cause of action, because it fails to state facts showing any duty on the part of the company. 3. SAME.

A declaration, in an action against a railroad company for injuries to a traveler in a col