quences of the extreme peril to which he exposed himself?

being still during the time he was guarding the wood, and from the time the caboose was cut loose, the train did not stop, and It is also worthy of remark, if Wood's that Pickleseimer got on the ground, went statement is to be credited, that if the conhurriedly forward, overtook the train, ductor was at the rear of the train when (moving slowly,) and attempted to climb the alleged conversation occurred, he, as onto the rear car thereof, and in making we must presume, had with him his conthe attempt fell, and received the injuries ductor's lantern; for the night was dark complained of. Pickleseimer does not inti- and rainy, and the experience of all men is mate having had a conversation, or having that conductors, in the conduct of their heard one, as detailed by Wood, as to a ne- trains, have their lanterns with them on gro man having had his brains knocked such occasions, and use them in signaling out, in which a "little lad, standing then the movements of their trains. If, then, on the bridge," said: "If you ride across, the conductor was there with his light, and keep low, or she will get you." This whole was there at the time Pickleseimer atstatement is, upon its face, incredible, and tempted to get on the rear car, he must wholly inconsistent with that of Pickle- have walked over behind the train on the seimer. It is not pretended that Pickle-plank walk between the rails; and_nothseimer's memory was affected by the injuries ing could have been easier than for Picklereceived by him or otherwise. It is there- seimer and Wood to have walked over with fore incredible that the conversation could him, their path lighted by his lamp. But have happened there on the bridge in which doubtless the truth is that the conductor, the mythical "little lad" dipped in and having directed Pickleseimer and Wood took part. It was too tragic-of too much how to cross over the river, had himself importance-to have been forgotten by gone over on the engine of his train to Pickleseimer. Moreover, if this conversa- North Danville, to turn the train over to tion occurred, it must have been just at the the conductor from that point to Richrear end of the train, and the train must mond. In either event, Pickleseimer was have been still, and did not, after cutting not left without light, for it is admitted loose from the caboose, continue moving that there was a lantern on the platform slowly across the bridge, as is fairly infer- of the detached caboose only 15 or 20 feet able from Pickleseimer's statement. It distant; and there must have been several took time, too, to have this conversation, lights near about, as will be seen by what (if it occurred,)-time within which there this witness next proceeds to say, which was ample opportunity to have got on the is this: "As soon as the train passed, I car with ease. But, granting that the con- stepped on the plank, and looked up beversation did occur, it would prove very tween me and the skylight. I didn't see clearly-First, that Pickleseimer, by his him [Pickleseimer] as the train moved off, own statement, having lost the opportu- and I called him three times by his name; nity of getting on the car by staying on the and, the third time I called, the brakeman caboose to guard the wood, had a second called to me and said, 'No, he ain't up; for opportunity to get on the car during the I think I heard him fall;' and I looked time occupied in conversation alleged by over to the side, and hollowed two or three this witness, Wood; for, after relating this times down, and got no answer. As I pretended conversation, Wood says that went around by the abutment with two or Pickleseimer stepped to the right-hand three men, [italics the writer's,] possibly corner and I to the left," etc.; and, second- the same brakeman with lights,-may be ly, it would powerfully tend to prove that there was two or three or four lights,-and the conductor was remonstrating against | there we found Pickleseimer lying in an unPickleseimer's just then declared purpose conscious state. I took him up, and rolled of riding on top, for Wood introduces the him about a little, and asked some one alleged conversation by the inquiry on his present to go for a doctor. One man left part: "Are we going to ride or walk?" us, I supposed for a doctor; but he never and Pickleseimer's reply, "I don't walk;" came back. I asked if we could not get after which the alleged conversation be- something to rub on his face. One man tween Pickleseimer and Wood and the con- said: "There is no use doing anything for ductor, participated in by the "little lad, that man, for he is dead.' I said: 'Never then on the bridge," occurred. If, as was mind, let's do all we can for him.' I had evidently the purpose of Wood's statement my left arm behind his back, and finally to prove, the conductor contemplated an saw him wink his eye, and it was not so act of willful negligence by directing Pick- very long after that before two or three leseimer to get on top of the car and then other men, with myself, got him upon his to cause the train to be put in motion while feet. He walked terribly broken down on the attempt to get on top was being made, one side, and he managed to walk up with why would the conductor be telling them two or three people with lights. At any that a negro man had got his brains rate I was at Pickleseimer's left side, and knocked out by a similar act of impru- possibly one or two walking at his back. dence? And why did the "little lad, then In that way we got across the river, and on the bridge," chime in with the remark: met Mr. Limeberry, the conductor that "If you ride across, keep low, or she will came down with us from Charlotte. I get you." And why, under such circum- asked if we could not get some camphor, stances, would Pickleseimer persist in his and gave him a dollar, and he brought me previously announced purpose to ride on some brandy." A little later (and very top, as evinced by his emphatic declara-little) in his examination in chief this wittion, "I don't walk," except that he had ness, Thomas Wood, was asked: "Questaken the matter in his own hands, and of tion. Are you sure, Mr. Wood, that there his own will recklessly assumed the conse- was no offer made on the part of the con

v.10s.E.no.3-4

ductor or anybody else to light you across | ger jumps from the train to save himself, the bridge? Answer. As soon as we came and is injured; in which case the injured to a halt I saw no more of him. He made person has his action, though it may turn his escape or fled. (Laughter.)" It is only out that if he had remained on the train he necessary to compare, without comment, would not have been injured. Railroad this answer, so clearly intended not only Co. v. McKenzie, 81 Va. 71. to fasten willful negligence upon this conductor, but to blacken his character with infamy, with the statement just previously made by him that on getting Pickleseimer across the river he met Capt. Limeberry, the conductor from Charlotte to Danville, and asked him for camphor, and gave him some money, and he (Limeberry) brought some brandy. There is a vast deal more of even this witness' unbroken statement in chief; and when we come to the point when he is plied with a great number of questions in his continued examination in chief and in his cross-examination, it would take more than the space of even a very long opinion to refer to it all. Reference has been made to it sufficiently to illustrate its remarkable character, and to show that it is in conflict, not only with Pickleseimer, but with itself.

The case in hand belongs to that class of which the case of Railroad Co. v. Morris, 31 Grat. 200, is an example. In fact, the case here is ruled by that case. There the injured party, Morris, was a passenger in a caboose car attached to one of the company's freight trains from Wolf Trap to South Boston,-two stations on the company's road, in Halifax county. Soon after Morris entered the caboose he fell asleep. After the train had left the Wolf station, the conductor waked Morris, and took in his ticket. When the train neared South Boston, the point of Morris' destination, the conductor, finding Morris again asleep, awoke him a second time, and told him he was at South Boston. The train was then traveling at the rate of four miles per hour It passed the freight-house and reception-room at the station without Then, from the plaintiff's own testimony, stopping; and when the locomotive reached he brought the misfortune of which he com- the frog on the west side of the freightplains upon himself, and he cannot recover house and reception-room it stopped, and from the railroad company therefor. He the conductor, finding Morris still in the had before shipped cattle over this com- caboose asleep, again aroused him. The pany's road, and at that time the caboose train stopped about a minute, and Morris was left on the South Danville side of Dan could have gotten off while the train was river, and another caboose attached on the not in motion. The conductor then went North Danville side. He, then, on the oc- to the other end of the car, and, looking casion in question, knew how and what to back, saw that Morris did not get up. He do on arriving at South Danville. But returned, shook him, and told him to get when the train stopped at Danville, instead up; he was at Boston. And Morris said of doing what his previous experience as that the conductor told him to get off. well as judgment taught that he should do, Immediately after waking Morris the last -instead of getting on top of the stock-car, time, the conductor went out at the end of as he first started to do,-he entered into the caboose with his lantern in his hand, treaty with an irresponsible brakeman, and took his stand on the stationary platwho was at the end of his run, and utterly form about two and a half feet from the without authority, to stay and guard platform of the car. The train commenced wood for such person; and then, when it backing, and Morris got up and walked became necessary to abandon his place as out to the end of the car, and jumped off, wood guard, he, in a dark, rainy night, not knowing, as he said, which way the car when the cars were wet and slippery, at- was going; and the caboose car and sevtempts to repair the effects of his negligence eral other cars ran over and seriously and and want of ordinary care by making an permanently injured him. That was a effort to mount upon top of a car, with his much stronger case against the company overcoat on, and a clumsy satchel in his than the present. In delivering the unanright hand, fell, and was very seriously in-imous opinion of this court in that case, jured. He was guilty of an act which no BURKS, J., said: "These facts, in our opinsensible man, in the exercise of ordinary ion, show the defendant to have been guilty care and caution, could be expected to be of culpable negligence; and this negligence guilty of. It was, in fact, a desperately was a proximate cause of the plaintiff's rash act, superinduced by no imminent peril injury. After the conductor discovered traceable to the negligence of the railroad that the plaintiff, when aroused, did not company. No danger or peril was present get off while the train was standing for a except that which he rashly brought upon very short period, but had again fallen himself. It does not appear that any train asleep, and he found it necessary to wake was near and approaching from either di- him again, he should not have put the train rection. If, considering all the circum- in motion until the plaintiff could leave the stances, Pickleseimer had thrown himself car; or, if put in motion, he should have in front of the wheels of the moving train cautioned him not to attempt to get off with the foolhardy idea that the train until the train was stopped. Instead of would stop before hurting him, the reck-pursuing that course, the proof is that he lessness of the act would have differed from told the plaintiff to get off; and the train what he did do only in degree, not in prin- immediately commenced backing, at what ciple. This case therefore does not fall with-speed was not shown. The company was in the class of cases where a passenger is also in fault in not having stationary excused for his rash act by reason of some imminent peril confronting him due to the defendant's negligence,-as, for instance, if a collision seems imminent, and a passen

lights. There were none such, and the only lights used were the two hand-lanterns before mentioned. This defect made it all the more incumbent on the conductor to

the error of the court in this particular. For the reasons aforesaid our conclusion is that the court below erred-First, in misstating the law to the jury; and, second, in refusing to set aside the verdict, and grant a new trial. The judgment must therefore be reversed, the verdict set aside, and the cause remanded for a new trial, to be had in accordance with the views herein laid down. Judgment reversed.

WALKER V. GRAYSON et al.

17, 1889.)

VENDOR AND VENDEE CONSTRUCTION OF CON-
TRACT-CONSENT DECREES-INFANTS.

exercise more than usual care and caution | ages despite his own negligence. We do in letting off passengers." And Judge not see how argument can make plainer BURKS further said: "While, however, the injury sustained by the plaintiff is directly traceable to the culpable negligence of the defendant as a cause, the evidence leaves no room for doubt that another cause, concurring with the first, was the negligence or absence of ordinary prudence and caution on the part of the plaintiff. He had time sufficient, according to the proof, to leave the car while the train was standing; and after he was cautioned the last time, if he had at once followed the conductor, who stepped onto the platform with the lantern in his hand, he might have reached (Supreme Court of Appeals of Virginia. Sept. the platform with equal convenience and safety; or if, tarrying longer, and finding the train in motion, when told to get off, he should either have declined, as he had the right to do, to obey the direction, or, if he chose to take the risk of getting off under the circumstances, he should have gotten off on the stationary platform, which, as shown, was along-side of the train. Such would have been the dictates of common prudence. He did not heed them, but, according to his own statement, he got up, walked to the end of the car, and 'jumped off,' not knowing, nor seeking to know, in which direction the train was moving. This would seem to be something more than the want of ordinary prudence and caution. It appears to be gross negligence, -extreme recklessness." It cannot be necessary to adduce arguments to show the perfect application of these remarks to every feature of the facts in the present case. Grant, then, as we do, that the company in this case was culpably negligent in not having stationary lights, and a better and safer walk, outside of the track, over this bridge, still the fact stands out in proof that Pickleseimer was, by reason of his own want of due care and caution, and by his own reckless act, the author of the misfortune which befell him, and therefore he cannot recover therefor of the railroad company.

would allow him to purchase their deceased father's 1. A person agreed with his sister that, if she land at a judicial sale, for an inadequate price, he would settle on her a portion thereof, and, after the purchase, he put her in possession of such portion. Having agreed after his purchase to hold the land in partnership with certain parties, he sold a part possession, receiving in part payment a certain of it, including the part of which his sister was in other tract, of which he put his sister in possession, agreeing to convey the same to her in consideration of certain money which he owed to her, and her relinquishment of all interest in the former tract. Held, that the sister must be regarded as a purchaser of the latter tract, having brother's partners and to the dower of his widow. an equitable title paramount to the interest of her

2. An attorney cannot be allowed to consent on behalf of infants to a decree when he is also counsel for parties whose interests are adverse to such infants.

3. Depositions cannot be read against infants where it does not appear that their guardian ad litem was served with notice.

G. R. Calvert, for appellant. Mr. Parks, H. C. Allen, J.G. Newman, and E.T. Booton, for appellees.

HINTON, J. This is an appeal from two decrees of the circuit court of Page county, rendered, respectively, on the 26th of September, 1885, and the 22d April, 1886, in the chancery suit of Grayson et al. v. W. H. The case might appropriately end here; Miller's Adm'r et al., which was heard but as it has to go back for a new trial in along with two other cases, the records of the court below it is proper to refer briefly which are not before us. From the record to an erroneous instruction given by the of the first-named cause, however, it aptrial court of its own motion, in lieu of the pears that many years ago Jacob Miller two instructions asked for by the defend- died intestate, leaving as his heirs his only ant company and refused by the court. children, W. H. Miller and Mary E. Walker, The court, in the erroneous instruction the present appellant. At the time of his thus given, after laying down the law upon death, Jacob Miller was considerably inthe subject of contributory negligence, debted; exactly to what extent is not added: "But a plaintiff may, under cer- shown by the record, but as it was stated tain circumstances, be entitled to recover in the argument to be about $8,000, and damages for an injury, although he may, not controverted, we may infer that that by his own negligence, have contributed to sum is not far from the correct amount. produce it." This addendum practically His estate consisted mainly of valuable destroyed the effect of the previous posi- real estate, a part of which, viz., 654% tion of the instruction, which stated the acres, at the least, was situated in the law with substantial accuracy; and was county of Rockingham, and is what is much more calculated to confuse than to known in the record as the "Jacob Miller enlighten the jury upon the law applicable Farm." Shortly after the death of the to the case. What was the nature of the said Miller, a suit in equity, under the exceptional circumstances alluded to in the name and style of Blose's Ex'r v. Milinstruction is not stated by the court, but ler's Adm'r, was instituted, to subject the the jury were left to grope in the dark, with- real estate of the intestate to the payment out light or sign to indicate the road to a of his debts; and on the 17th day of Februright conclusion, and were, in fact, left to ary, 1879, the "Jacob Miller Farm" was sold decide for themselves what circumstances pursuant to a decree of the circuit court of ought to entitle a plaintiff to recover dam-Rockingham county, entered in said cause,

Grayson, Jr., and C. S. Grayson the sum of $319.37, with which the cash payment was made; and that the said Graysous were to be full partners with said Miller in said purchase, and in proof thereof they filed with their bill a paper writing, signed by said Miller. They then aver that with their consent and approval Miller sold to B. F. Coffman about 441 acres of said land for $27.50 per acre, taking from said Coffman a farm in Page county, valued at $5,000, in part payment for said land; and they pray that the purchase money due from said Coffman may be Miller Farm" and the whole of the Coffman farm may be sold; that the purchase money due upon the purchase by W. H. Miller of the "Jacob Miller Farm" be paid; and that the residue of the fund arising from said sales, and all rents and profits, be equally divided among B. F. Grayson, Sr., B. F. Grayson, Jr., C. S. Grayson, and the estate of W. H. Miller. To this bill, F. C. V. Miller, the widow, and Wilber Miller and Baby Miller, the children of W. H. Miller, B. F. Coffman, W. J. Kite, B. Raines, Michael Long, Philip Long, Peter Long, M. L. B. Grayson, and Mary E. Grayson, and Fielding Raines are made defendants. In September, 1884, John C. Walker and his wife, the appellant, Mary E. Walker, filed their petition in this suit, in which, after setting forth such of the foregoing facts as are pertinent to their case, they

when the said W. H. Miller became the pur- | son, Jr., C. S. Grayson, and E. G. Booten, chaser at the price of $15 per acre, aggregat- trustee, filed their original bill, and in ing $9,811.37,-a sum which it would seem March, 1883, an amended and supplemental from the sales that have already been made bill, in which they aver that W. H. Milof a large part of the property was about ler had bought the "Jacob Miller Farm" two-thirds the value of said property. And at $15 per acre; that said W. H. Miller the record shows, beyond question, that obtained from B. F. Grayson, Sr., B. F. he was only enabled to purchase the property for this sum by representing to various persons, who were present for the purpose of bidding, that he was buying this property for the primary purpose of securing a home for his sister, the appellant, Mrs. M. E. Walker. In pursuance of this real or pretended purpose, W. H. Miller immediately had 100 or more acres of this said farm laid off and surveyed for Mrs. Walker, put her in possession of the same, with all the buildings thereon, and she remained in peaceable and undisturbed possession thereof, and enjoying the profits arising therefrom, for a year or more, and until her re-collected; that the residue of the "Jacob moval to the Coffman farm, in the county of Page, in April, 1880. On the 6th day of March, 1880, B. F. Coffman bought of W. H. Miller 441 acres of the "Jacob Miller Farm," at $27.50 per acre, which included the 100 acres which he (Miller) had set apart for his sister, and of which he had given her possession, and gave him in payment a tract of 157 acres of land in the county of Page, known as the "Coffman Farm," and valued at $5,000, and his bonds for the balance. The record further shows that the mother of Mrs. Walker and W. H. Miller was, at her death, seised of 62 acres of land as her separate estate; that it descended to W. H. Miller and Mary E. Walker jointly; that Miller sold this land to one W. J. Kite, at $25 per acre, Mrs. Walker uniting in the deed; that Miller received the entire purchase money, but never paid any portion of his sister's share, either to her or her hus-pray for such special and general relief as band; that instead of paying it over to his sister he executed, over his signature and seal, on the 20th of March, 1880, a paper writing, in which, after reciting the above, he obligated himself to convey to her lands in the county of Page of the value of her said share; that in April, 1880, W. H. Miller removed his sister from the "Jacob Miller Farm," and placed her in possession of the "Coffman Farm," of which she held open and undisputed possession until this suit was brought; that W. H. Miller never received a deed for any of this real estate during his life-time, and was therefore neyer able to make a deed to Mrs. Walker. In the afternoon of the day on which W. H. Miller died, B. F. Grayson, Sr., called at the house of the dying man, and had an interview with him. There were present in the little 14 by 16 room where the sick man was lying, or at the only door to this room, and within hearing distance, Mrs. Walker, Mrs. Miller, and the said B. F. Gray-sold part of the Miller farm, and in oneson, Sr. In that interview W. H. Miller fourth of the remainder of the Coffman farm said to his wife that he owed B. F. Gray- which would be left after paying the venson, Sr., three hundred and some dollars, dor's lien resting thereon; and that Walker for which Grayson had nothing to show, and wife are not entitled to the relief and he wished her to see it paid; but not asked for in their "petition and bill of one word was said by either Grayson or complaint," but that W. H. Miller's estate W. H. Miller about the existence of any part-is indebted to Mrs. Mary E. Walker in the nership as to the "Jacob Miller Farm," or the "Coffman Farm." This occurred in the month of November, 1881. In March, 1882, the appellees, B. F. Grayson, Sr., B. F. Gray

they may be entitled to. Thereupon such proceedings were had that two decrees were rendered on the 26th day of September, 1885, and 22d day of April, 1886. By the first of these decrees it is, among other things, adjudged and decreed "that B. F. Grayson, Sr., B. F. Grayson, Jr., C. S. Grayson, and W. H. Miller were equal partners in the purchase of the Miller farm, in the county of Rockingham, and by said purchase became joint owners thereof, and equally entitled to all the profits arising from the rental, use, or sales thereof, and that said four named parties are joint owners in the Coffman farm, in Page county, subject to the vendor's lien resting thereon, with like joint interest in all profits or incomes resulting therefrom; that Mrs. F. V. C. Miller is not entitled to dower in said Miller and Coffman farms, as claimed in her petition, but only in W. H. Miller's interest therein, viz., in one-fourth of the un

sum of $775, with interest thereon from the 20th March, 1880. The decree then goes on to direct a sale of the Coffman farm, and the unsold part of the Miller farm, and re

leases John C. Walker and Mary E. Walker | those who value it highest at $100 per acre, from all liability for rent or occupation of and $775 in money. And out of this $775 any of the lands covered by the decree. In the second of these decrees the court overrules the exceptions of Walker and wife to the report of sale, confirms the sale of the Coffman farm, and the sale of the unsold part of the Miller farm, and directs that, after various disbursements and payments therein provided for are made, the proceeds of the various land funds shall be treated as one common fund, and that the balance remaining after the reservation of enough to pay any further unprovided-for costs which might arise in the cause should be divided into four equal parts, and disbursed as follows: One-fourth to B. F. Grayson, Sr.; one-fourth to E. G. Booton, trustee for B. F. Grayson, Jr.; one-fourth to C. S. Grayson; and one-fourth-the part of W. H. Miller's estate-to be distributed in the manner indicated in the decree.

it is not improbable that W. H. Miller paid B. F. Coffman the $600 which Coffman, in his answer, says Miller paid him at the time he purchased the Coffman farm. That Mrs. Mary E. Walker thus acquired the equitable title to the Coffman farm seems to us to be unquestionable; and that she gave a valuable consideration for it in the beginning of these transactions, by surrendering her rights in the enhanced price which the "Jacob Miller Farm" would have brought if sold under ordinary circumstances, we regard as equally beyond doubt. Whether the consideration given in the first instance was full and adequate is a matter of no importance. W. H. Miller certainly thought so; and in the exchange by which Mrs. Walker acquired the Coffman farm she must have surrendered as much as Miller could possibly have lost by the first transaction. Under these circumstances, Mrs. Walker must be regarded in a court of equity as the purchaser and owner of the Coffman farm; nor can her title be in any wise affected by the alleged contract of partnership between W. H. Miller and the Graysons; for if we assume, for the sake of the argument, that contract to be proved, it was not entered into until nine days after the sale, as we have seen, and could not affect Mrs. Walker, whose rights had been previously acquired, and who never knew of their pretensions until the claim was preferred, after the death of her brother, the said W. H. Miller.

Now, each of these decrees is erroneous in two fundamental particulars. They are so -First, in declaring and decreeing that the Coffman farm was partnership property; and, second, that Mrs. Miller was entitled to dower in her husband's one-fourth thereof,-neither of which propositions is true. By the death of W. H. Miller the lips of J. C. Walker and his wife, Mary E. Walker, became sealed, and each of them was thereafter inhibited by the express words of the statute from testifying as to what was the agreement and understanding between Mary E. Walker and her brother, W. H. Miller. But the acts and declarations of that brother, taken in connection with the Now, from what has been said it would conduct of Walker and his wife, are fairly seem that the circuit court erred in holding susceptible of but one construction, and that Mrs. Walker was not entitled to the that is that there was an agreement that, Coffman farm, and in decreeing that Mrs. if they would permit the "Jacob Miller F. V. C. Miller was entitled to dower in part Farm," or, as it is sometimes called, "The of said farm, and that said farm should be Miller Farm," to be bought by him at a sold. It is argued, however, that the decree greatly depreciated price, he would settle of September 26, 1885, was a consent decree, upon her at least 100 acres of that farm, in- and that we are precluded by this fact from cluding the mansion-house, as a home. looking into the merits; but in this they are When this agreement was made between mistaken. As a general rule, a decree or these parties, the real or pretended agree-order made by consent of counsel is not the ment of partnership between Miller and the subject of appeal, (2 Daniell, Ch. Pr., 4th Graysons had no existence; for that agree- Amer. Ed., 973; Burton v. Brown's Ex'rs, 22 ment, if ever made, was not entered into Grat. 13; Thompson v. Maxwell, 95 U. S. until February 26, 1879,-nine days after the 391; Water-Works Co. v. Barret, 103 U. S. sale was made. To this agreement between 516;) but this was in no sense a consent dethe brother and sister various parties, who cree. Here the parties were not all sui juris, had come to the sale, may be said, in a cer- but some of them were infants, for whom tain sense, to have been parties; for, in or- no one was authorized to consent. It was der to enable W. H. Miller to effectuate and admitted, however, by one of the counsel carry out this purpose, they, at his instance (Mr. Parks) at the bar, that he was counand request, deliberately refrained from sel for the Graysons, Mrs. F. V. C. Miller, bidding. It is equally clear that for some and her infant children, in the circuit court, reason not fully disclosed by the record and as such counsel consented for the chilthere was a subsequent agreement between dren; but, of course, no such thing as this W. H. Miller and Mrs. Mary E. Walker, by can be countenanced. The interests of these which he agreed, in consideration of the infants are adverse to the Graysons and $775 which he owed her for her interest in their mother, and, under such circumthe land descended from her mother, and her stances, for the court to allow counsel to relinquishing her right to the said 100 acres consent for infants would be in the highest of the Miller farm, to convey to her the Coff- degree improper, and often destructive of man farm. And this was doubtless re- their interests. garded by W. H. Miller as a good exchange, for by it he received in exchange for a farm only estimated by its former owner, B. F. Coffman, to be worth $5,000, the 100 acres of the Miller farm, including the mansion, which is estimated by those witnesses who value it at the least at $50 an acre, and by

The court also erred in allowing the deposition of Peter Long to be read against these infants, it not appearing that their guardian ad litem had been served with notice. Strayer v. Long, 83 Va. 715, 3 S. E. Rep. 372.

Our conclusion therefore is that both of