Opinion. And at section 1094 it is said: "Passengers on railroad trains are peculiarly under the control of the carrier's agents, and are practically helpless when compelled to defend themselves against their abuse or assaults. It is consequently necessary to hold a railroad company to a strict accountability for any acts of its servants on a train which tend to injure or humiliate the passenger, even though such acts may be malicious and unauthorized. This has been held to be true not only as to conductors, who are in charge of a train, but also as to brakemen." We have held in Norfolk & Western Ry. Co. v. Birchfield, 105 Va. 809, 54 S. E. 879, that, "in case of a threatened assault upon a passenger by a fellow passenger, it is the duty of the company's employers to protect the party threatened from injury, and if they negligently fail to do so, the carrier is liable for the consequences. The conductor has the power, and it is his duty to preserve order on the train; if necessary, stopping the train and calling to his assistance all the train employees and such passengers as are willing to assist him. Until, at least, he has put forth the forces at his disposal, he has no right to abandon the scene of conflict. In order that conductors may be clothed with authority commensurate with their duty, they are in this State made conservators of the peace by Code, 1904, section 1294d, clause 10.” If it be the duty of those in charge of a train to protect passengers from their fellow passengers, how much more is it their duty to exercise self-control and restraint in their own conduct. If mere words will not justify an assault as between those who stand upon a footing of equality and owe no special duty one to the other, how much more true is it as between those in charge of a train and a passenger, who is in a large degree under the control of the carrier's agents, and entitled at their hands to respectful treatment and to protection from all injury. The conduct of a passenger may be exasperating, as it doubtless was in this case. It may render it difficult for the agent of the Opinion. carrier properly to discharge his duty. But this does not exeuse or justify his failure to perform it. Being of opinion that there is no reversible error with respect to the admission or exclusion of testimony, and that the law of the case was properly placed before the jury, it remains to be considered whether or not the verdict is contrary to the evidence. As we have said, the crisis of the case occurred when the brakeman roughly threw the plaintiff into a seat, after removing him from the day coach. We have seen that the insulting language used by the drunken passenger did not justify the assault, while it was proper for the consideration of the jury in mitigation of damages. The attention of the jury was drawn by the instructions to the two conflicting theories with respect to the evidence at the instant of the assault. Did the brakeman have a reasonable ground to expect that the plaintiff was about to make an attack upon him? The evidence shows that the plaintiff was almost helplessly drunk; that the brakeman, a powerful young man, had without difficulty removed him from one car to another, and placed him roughly in a seat. There is evidence of a movement of the hand on the part of the plaintiff, to his side or hip pocket, but it was accompanied by the statement, "I'll see you later," which would not indicate a present purpose to make an assault. The jury, with their minds specifically drawn to the precise point in issue were of opinion that the brakeman had no reasonable ground to anticipate an attack upon him, and rendered a verdict in favor of the plaintiff, which the court refused to set aside, and we are of opinion that its judgment should be affirmed. Affirmed. Opinion. Richmond. OWENS V. OWENS' EXECUTOR. March 11, 1909. Absent, Keith, P. and Cardwell, J. 1. APPEAL AND ERROR-Executors and Administrators—Ex Parte Settlements of Fiduciary Accounts-Ruling on Exceptions.-No appeal lies to this court from an order of an inferior court merely overruling exceptions and confirming a commissioner's report of an ex parte settlement of an executor's account. The remedy is by a bill to surcharge and falsify the ex parte settlement. Until surcharged and falsified it is to be taken as prima facie correct, and an order of this court affirming the order of the inferior court would not make it any more final than it was before the appeal was taken. Appeal form an order of the Chancery Court of the city of Richmond overruling an exception to an ex parte settlement of the accounts of an executor. Exceptor appeals. The opinion states the case. Appeal Dismissed. James Lewis Anderson, for the appellant. Christian, Gordon & Christian, for the appellee. HARRISON, J., delivered the opinion of the court. The will of Otho O. Owens was admitted to probate in the Chancery Court of the city of Richmond on June 12, 1906, and Opinion. on the same day the Virginia Trust Company, the executor named therein, qualified as such. A copy of the will is filed with the record, which shows that, after a number of legacies mentioned, the residue of the estate was given to Mrs. Mozelle Owens, the wife of the testator, for life, with remainder at her death to the Union Theological Seminary. On the 29th of October, 1907, a settlement of the executorial accounts, made by the commissioner of accounts, was filed in the clerk's office of the chancery court. The widow of the testator excepted to this report upon the ground that certain allowances to the executor in the form of commissions were improper. Upon consideration of this exception by the chancery court, as provided by section 2698 of the Code, the same was overruled, and the report confirmed. From this action of the chancery court, this appeal was taken. The first question to be determined is whether or not this court has jurisdiction to entertain an appeal from the order here complained of. Appellant cites as sustaining her right of appeal, the case of Triplett's Exors. v. Jameson, 2 Munf. 242, decided in 1811, and Farneyhough's Ex'or. v. Dickerson, 2 Rob. 607, decided in 1843. The law regulating appeals has, since these cases were decided, undergone such changes as to leave them without weight in determining the question at issue. The statutory law as it now exists contains no provision by which this court can review, by appeal therefrom, the order of the chancery court merely overruling an exception and confirming a commissioner's report of an ex parte settlement of an executor's ac counts. Chapter 121 of the Code, concerning fiduciaries, requires the court, or the judge thereof in vacation, to examine ex parte fiduciary accounts filed in the clerk's office, correct any errors. that may appear, and confirm the report as a whole or in a qualified manner. VOL, CIX-28. Opinion. Section 2699 provides that "the report, to the extent to which it may be confirmed, shall be taken to be correct, except so far as the same may, in a suit, in proper time, be surcharged or falsified." This section negatives the idea of an appeal from the order confirming the ex parte settlement, and clearly points out the remedy to be pursued by a party who thinks himself aggrieved by an ex parte settlement of a fiduciary account. When a bill is filed to surcharge or falsify the accounts, all concerned are made parties and have an opportunity to take evidence and defend their rights, and an appeal can be taken by any one aggrieved from a final decree in the cause adjudicating the matters in issue. The present proceeding is not a suit between parties plaintiff and defendant. The settlement, when confirmed, is merely an ex parte proceeding, to be taken as prima facie correct, but subject to be surcharged and falsified by a bill filed for that purpose, as provided by statute. Such a settlement is mere. matter of evidence until surcharged and falsified, and to the extent that it is surcharged or falsified, the settlement becomes valueless even as evidence, and the liability of the executor is precisely the same as if the settlement had never been made. Leake's Ex'or. v. Leake, 75 Va. 792; Haught v. Parks, 30 W. Va. 246, 4 S. E. 276. Until surcharged and falsified in the manner indicated by statute, the ex parte settlement, although confirmed by the order of the court, is mere matter of evidence, and an order of this court affirming the order of the chancery court would not make the ex parte settlement any more final than it was before the appeal was taken. It could still be questioned by a bill to surcharge and falsify; so that an appeal from such an order would be barren of results. It is further apparent that if the contention of appellant be sound, that she has the right to appeal from the order in question, there could be a succession of appeals from the same order |