two years prior to the indictment, the statutory period for the prosecution of such offenses.

While it is not necessary in a prosecution for the unlawful sale of ardent spirits for the indictment to state the precise time of the sale (sec. 3999 of the Code; Savage's Case, 84 Va. 619; Arrington's Case, 87 Va. 96; Runde's Case, 108 Va. 873), it is necessary where there is a statute of limitations (as in this case) barring the prosecution after a certain time, that such facts should be stated in the indictment as will show that the offense charged was committed within the statutory period; for no indictment, as a general rule, is good unless assuming its allegations to be true it discloses a prima facie case for inflicting the punishment provided by law. If the indictment may be true, as was held in Young's Case, 15 Gratt. (56 Va.) 664, and in Bruce's Case, 26 W. Va. 153, 157, both prosecutions for selling liquor in violation of law, and still the accused may not be guilty of the offense, the indictment is insufficient. See also 1 Bishop's Cr. Proc., secs. 403, 405; Whart. Cr. Pl. & Pr., secs. 137, 318.

While the words, "on the last preceding 191..," following the words "within twelve months" are meaningless, they may be treated as surplusage and rejected if the indictment is thereby made sensible (1 Bishop's New Cr. Proc., sec. 158; Com. v. Randall, 4 Gray 36, 38); for courts of justice are disposed, as said by the court in the case last cited, to treat as surplusage all erroneous and improper averments in complaints and indictments where the residue of the allegations sets out the offense charged in technical language and with substantial certainty and precision. After rejecting the words "on the last preceding 191..," the indictment states that the grand jury attending the Circuit Court of Greene county, at its December term, 1912, "upon their oath present that Marcus Shiflett within twelve months. . . in the said county did unlawfully sell ardent spirits without having a license to do so." These are apt and sufficient words to show that the offense charged was committed within the statutory period. We are of opinion, therefore, that the demurrer was properly overruled.

The remaining assignment of error is that the court erred in imposing an additional punishment of six months' confinement in the county jail, on the ground that the

offense of which the accused was found guilty was a second offense.

By section 27 of an act approved March 15, 1910, known as the Byrd Liquor Law, it is provided, among other things, that a person violating the provisions of that act shall be guilty of a misdemeanor, and unless otherwise provided therein shall be fined not less than fifty dollars nor more than one hundred dollars, and in addition he may in the discretion of the court be imprisoned not more than sixty days and required to give bond, &c., and that for the second and each succeeding offense he shall be fined not less than one hundred dollars, and shall be confined in jail not less. than six nor more than twelve months. The verdict of the jury found the accused guilty of the offense charged in the indictment and fixed his fine at one hundred dollars. The court, exercising the discretion given it under the statute, in entering up judgment for the fine, added sixty days imprisonment in jail in addition to the fine, and also imposed a further punishment of six months in jail upon the accused. This latter punishment of six months in jail was, as the accused insists, clearly without authority. There was no charge in the indictment upon which the accused was prosecuted that the offense charged was a second or subsequent offense.

It is well settled that where an offense is punishable with a higher penalty, because it is a second or subsequent offense of the same kind, such severer punishment cannot be inflicted unless the indictment charges that it is a second. or subsequent offense, because by the rules of criminal pleading the indictment must always contain an averment of every fact essential to the punishment to be inflicted. Welsh's Case, 2 Va. Cases 57; Rand's Case, 9 Gratt. (50 Va.) 738; Wharton's Cr. Pl. & Pr., secs. 934, 935; 1 Pishop's Cr. Law (7th ed.), sec. 961; Bishop on Stat. Cr., sec. 240.

It follows from what has been said that the action of the court in imposing the additional punishment of six months in jail upon the accused, and declaring that he should constitute part of the State convict road force, was erroneous, and to that extent said judgment must be reversed and annulled, and in other respects affirmed.

Reversed in part; affirmed in part.

SUBJECT-INDEX

ABANDONMENT.

See STREETS, 3, 4.

ABATEMENT.

ATTACHMENTS, 4, 6.

ACCOUNT.

See EQUITY, 17, 29; FIDUCIARIES 1.

ACTIONS.

1. Under the Virginia statute the recovery contemplated is for the wrongful death and not merely because there are dependent relatives; therefore, the right of recovery is not affected by the absence of relatives or by the fact that surviving beneficiaries are wealthy or poor. 28.

2. In the case of a wrongful levy of an attachment the question is not whether the plaintiff was divested of all or part of his property, but whether the wrongful seizure thereof amounted to a conversion of the property. In such a case the owner of the property has several remedies, among which are an action for damages resulting from the wrongful seizure, and the action of trover, in each of which the measure of recovery would be the value of the property converted with interest. The owner is not bound to receive back the property if tendered, either before or after suit, and if he does take it back this does not bar his suit, but goes in mitigation of damages. 34.

3. Purchasers of property, who have acquired by assignment all the rights of their grantors to damages for diversion of water from the property prior to their purchase, have a right to recover damages resulting from the diversion, although the price paid by them for the property was much less than its value before the diversion. It is immaterial to the defendant whether the assignee of such damages is the purchaser of the land, or it was purchased by some other person, or still remains the property of the assignor. 179.

4. A summons in an action of unlawful detainer which alleges that the defendant is in possession and “unlawfully withholds from the said plaintiff and has unlawfully withheld within three years from the issuing of this writ," a certain lot of land, is sufficient. It is unnecessary to repeat the words "from the plaintiff" after the words "unlawfully withheld within three years." as the notice had already declared that the defendant was in possession and unlawfully withheld the possession from the plaintiff. 416.

5. Where the proof shows that the defendant had been in possession for about five years and that she had always refused to give up possession, the jury not only might but should have inferred that she was still in possession. 416.

6. Where the legal title to land has been conveyed by good and sufficient deed from the original landlord, the grantee is entitled to recover, by force of the title that is in him, from a tenant of the grantor who refuses to deliver possession. 416.

See ATTACHMENTS, 1.

ADJOURNMENT.

See JUDGMENTS, 3.

ADMINISTRATORS.

See PERSONAL REPRESENTATIVES.

AFFIDAVITS.

See APPEAL AND ERROR, 13; ATTACHMENTS, 2, 5.

ALIENATION.

See DEEDS, 1.

AMENDMENT.

See APPEAL AND ERROR, 8; ATTACHMENTS, 7; EQUITY, 13; PLEADING AND PRACTICE, 12; STATUTES, 4, 8; STREET RAILWAYS, 5; WARRANTS. 1.

ANSWER.

See EQUITY, 21.

APPEAL AND ERROR.

1. Where a party to a proceeding in bankruptcy elects to take chances in a forum of his own selection with general jurisdiction of the subject and loses, he cannot be heard to complain in the appellate court that the bankruptcy court had no jurisdiction. 15.

2. Where it is held by the trial court that the plaintiff has not sustained the burden of showing itself entitled to the relief sought. before reversing the decree of the lower court the appellate court must be satisfied that there was error in that conclusion. 55.

3. Where both parties in trial proceeded upon the theory that it was a case of common source of title, that question cannot be raised in the appellate court. 99.

4. Ordinarily, permitting a leading question to be asked furnishes no ground for reversal. 99.

5. Where appellees made no objection to a decree, the subject of the assignment was not gone into or reported by the commissioner in the lower court, and no exception was taken to his report on that ground, an assignment of cross-error will not be further considered. 190.

6. Where appellant filed the bill, and the demurrer of the defendants was overruled, the appellant being in no position to assign as error the overruling of the demurrer, it devolves upon the court, of its own motion, to act in the matter in order that a controversy may not be heard and determined in a court of equity with respect to which such courts have no jurisdiction. It is not only within the power of this court, of its own motion, to dismiss a bill under such circumstances, but it is its bounden duty to do so. 201.

7. While this court may reverse a judgment because a leading question, duly excepted to, was propounded to a witness, trial courts are clothed with a large discretion in such matters, which this court will not lightly undertake to control. 204.

8. Where a party, after decree sustaining a demurrer to his bill. by leave of the court files an amended bill, he is considered to have acquiesced in the action of the court upon the demurrer, and will not be permitted to assign such action as error in the appellate court. 251.

9. This court has no jurisdiction to grant leave to a trial court to hear and determine a motion for a new trial on the ground of newly discovered evidence, after the end of the term at which the