folk, etc., R. Co., 39 W. Va. 196, 19 S. E. 521, citing Hargreaves v. Kimberly, 26 W. Va. 787. In an action by E. against H.'s executor to recover damages for injury to his land by the overflowing and sobbing of his land lying on a stream or which H. had built a dam in 1848, in the county of Louisa, E. having sued H. in his lifetime for damages to his lands from the erection of the dam, and a judgment in that case having been rendered in 1859 in favor of H., in this second suit E. can only recover for damages occasioned by the continuance of the dam subsequently. Ellis v. Harris, 32 Gratt. 684. 2. Motions. See the title MOTIONS. Damages for an injury resulting from a breach of contract, recoverable only in an action "sounding in damages," can in no sense be considered money due upon contract, and hence. a motion under § 3211 of the Code, can not be maintained to recover damages for a breach of contract. Wilson v. Dawson, 96 Va. 687, 32 S. E. 461. D. INSTRUCTIONS. 1. Where Evidence Is Conflicting. Where the evidence is conflicting the court, upon request, should give instructions which correctly propound the law according to the different views which the jury may take of the evidence. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354. 2. Must Be Confined to Evidence. An instruction asked for, if based upon the evidence in the case, and correctly directs the jury how to estimate the damages, should be given. James v. Kibler, 94 Va. 165, 26 S. E. 417. Passenger afflicted with rheumatism was thrown from his seat by a collision of trains, and his thigh bone broken. In action for damages company's counsel asked that the jury be instructed that, though they believed the plaintiff was injured as complained of, yet he can not recover if they believed that he was in such an infirm state as would have prevented a prudent man from taking the risk of travel, and but for which state he would not have received the injury. Held, the instruction was properly refused, because inconsistent with both the evidence and the law. "Obviously there was no connection, and in the nature of things could not have been, between the physicial condition of the plaintiff and the injuries produced by the collision of the train upon which he was traveling when injured. As well might it be contended that a passenger suffering with a bronchial trouble, which renders travel on his part imprudent, and whose leg is broken in a railroad accident, can not recover damages for his injury until he has first formally satisfied the jury that the injury was not caused by the condition of his throat or lungs; yet such, in substance, is the contention in error." Shenandoah Valley R. Co. v. Moose, 83 Va. 827, 3 S. E. 796. In an action to recover for loss of profits in business, where the plea is not guilty, an instruction which assumes that there has been such loss, or which is ambiguous on this point, should not be given. Fishburne v. Engledove, 91 Va. 548, 22 S. E. 354. 3. Repetition of Instructions. In an action to recover damages for personal injuries it is not error to re fuse a correct instruction where another is given in lieu thereof, which correctly propounds the law and covers the point contained in the one refused. Norfolk, etc., R. Co. v. Marpole, 97 Va. 594, 34 S. E. 462. deceased has left a widow and children It is not necessary to make specific proof of pain and mental anguish; these elements of damage are sufficiently shown by the evidence which discloses the nature, character, and extent of the injuries, and from such evidence the jury may infer pain and mental anguish. Norfolk, etc., R. Co. v. Marpole, 97 Va. 594, 34 S. E. 462. A jury may infer mental anguish from serious bodily harm, causing great physical pain and suffering, without other proof on the subject. Southern Bell Telephone, etc., Co. v. Clements, 98 Va. 1, 34 S. E. 951. DAMAGES CLAIMED.-Code of West Virginia, ch. 50, § 10, provides that "a justice shall have jurisdiction of actions for trespass on real estate, or damages to the same, or to rights pertaining thereto, if the damages claimed do not exceed three hundred dollars, and the cause of action arose in his country." It was held, that damages claimed, meant the amount claimed in the summons, and not the damage shown by the testimony. Stewart . Baltimore, etc., R. Co., 33 W. Va. 88, 10 S. E. 27. See also, State v. Lambert, 24 W. Va. 399. And see the title JUSTICES OF THE PEACE. Damages for a Wrong. See the title DAMAGES, ante, p. 162. DAMAGING.-See APPROPRIATE, vol. 1, p. C83. Damnum Absque Injuria. See the titles ACTIONS, vol. 1, p. 131; DAMAGES, ante, p. 102. Dams. See the titles MILLS AND MILLDAMS; NAVIGABLE WATERS; WATERS AND WATERCOURSES. DANGEROUS.-See NEGLIGENT. DANGEROUS EXPOSURE.-See Fisher v. West Virginia, etc., R. Co., 39 W. Va. 366, 19 S. E. 580. DANGEROUS MACHINERY.-Upon the question of the meaning of dangerous machinery, within the rule governing a landowner's duty to a child trespasser, the court, in Ritz v. Wheeling, 45 W. Va. 262, 31 S. E. 997, said: "Whether the distinction between dangerous machinery and other means of injury be clear or not, several courts and text writers have made it. Railroad cars held not such dangerous machines. Barney v. Railroad Co., 126 Mo. 372, 28 S. W. 1096; Catlett v. Railroad Co., 57 Ark. 461, 21 S. W. 1062. Cars are attractive to children, but the law does not require a guard to keep children from standing cars. Railroad Co. v. McLaughlin, 47 Ill. 265. Now, I do not suppose this reservoir of the city would come under the head of dangerous machinery. If so, what structure or establishment might not? At any rate, if that is dangerous machinery, hundreds of necessary things would fall under this head of liability not heretofore regarded as dangerous and attractive to children, and greatly endanger the maintenance of many things necessary, in life and business, and be an enormous burden to guard and watch with never sleeping eyes. Strange to me the idea that such a reservoir can be made to come under this rule. And I say that the reservoir is not dangerous in that sense." See also, the title NEGLIGENCE. Dangerous Weapons. See the title WEAPONS. Darrein Continuance. See generally, the title PLEADING. See also, the title DETINUE AND REPLEVIN. DATE. See the titles ACTIONS, vol. 1, p. 133; BILL OF PARTICULARS, vol. 2, p. 380; COMMITMENTS AND PRELIMINARY EXAMINATION OF ACCUSED, vol. 3, p. 3; DEEDS; EXECUTIONS; INDICTMENTS, INFORMATIONS AND PRESENTMENTS; JUDGMENTS AND DECREES; MARSHALING ASSETS AND SECURITIES; PAROL EVIDENCE; RECORDING ACTS; RELATION. And see DAY. A writ otherwise regular is not absolutely null and void, because its date is blank. Ambler v. Leach, 15 W. Va. 677. See also, the title; PLEADING: SUMMONS AND PROCESS. DAY. See the titles BANKS AND BANKING, vol. 2, p. 259; RELATION; TIME. As a general rule, the law does not regard fractions of a day; but this rule is departed from in many cases where the purposes of justice require it. Courts would be very slow to decide that a man by a fiction of law is to be considered a felon before the conviction has actually taken place. Neale v. Utz, 75 Va. 480. See the title TIME. In Gibson v. Com., 2 Va. Cas. 121, it is said: "On the question, whether the court should have passed sentence after 12 o'clock on Saturday night, some of the judges were inclined to think that the judicial day extended to the dawn of the next morning, but no opinion was given on it, because a majority of the judges were of opinion that it did not sufficiently appear by the record that it was past midnight; that fact being merely alleged by the prisoner, and it not being admitted by the court, nor proved to it by evidence." Day of Date.-In Straughan v. Hallwood, 30 W. Va. 274, 4 S. E. 400, it is said: The counsel for the appellant, the plaintiff below, in his argument, seems to regard it as perfectly clear that the ninety days named in this contract must, as a legal proposition, run from March 1, 1886. He says: This contract having declared the ninety days should run from the date of the signing and sealing thereof, and having made that date the first of March, the ninety days must run from that time, no matter when the contract actually took effect,' to sustain which proposition he refers only to 2 Pars. Cont. (6th Ed.), § 664. I have examined this authority, and it is not to my mind so clear that it sustained the proposition laid down by appellant's counsel. He says that if the contract refers to the day of the date, or the date, and expresses any date, this day, and not the actual making, is taken.' Parsons refers in a note to Styles v. Wardle, 4 Barn. & C. 908, and Co. Litt. 46b, as sustaining the proposition he lays down; and also to Armit v. Breame, 2 Ld. Raym. 1082. These authorities sustain the proposition laid down by Parsons, but they go no further than he has gone; and there is a great difference between the phrases the day of the date, or the date, and the phrase used in this agreement of compromise, 'the date of the signing and sealing of this agreement.' I am not now prepared to say that this does not mean 'the day of the actual signing and sealing of this agreement,' though the agreement does conclude." See generally, the title PAYMENT. Days of Grace. See the title BILLS, NOTES AND CHECKS, vol. 2, p. 401. Dead Bodies. See the titles CEMETERIES, vol. 2, p. 731; CORONERS, vol. 3, p. 508. Deaf and Dumb Persons. See the titles CONTRACTS, vol. 3, p. 333; DEEDS. DEALINGS.—Virginia Code, 1849, ch. 149, § 5, provides that an action by one partner against his copartner for a settlement of partnership accounts, may be brought until the expiration of five years, from a cessation of the dealings in which they are interested together, but not after. It was held that these words, cessation of the dealings, did not refer to the cessation of the active operations of the partnership, but embraced also any act done after its dissolution in winding it up. Foster v. Rison, 17 Gratt. 321. In Smith v. Zumbro, 41 W. Va. 635, 24 S. E. 657, the court said: "Now, when we come to inquire what is. meant by a 'cessation of the dealings,' we find the question has been passed upon in this state in the case of Sandy v. Randall, 20 W. Va. 247, in which Snyder, J., delivering the opinion of the court, says: "The courts of Virginia, in construing a statute identical with this, have decided that the word dealings embraces any act done after the dissolution of the partnership, in winding it up,-such as the collection or payment of debts due to or by the firm. Foster v. Rison, 17 Gratt. 321. This we regard as the correct interpretation, and the necessary conclusion from it is that, in order to subject the suit to the bar of the statute, it must not only appear that there has been a dissolution of the partnership more than five years before the institution of the suit, but that there were no valid claims of debit or credit, against or in favor of the firm, paid or received or Gutstanding, within that time.'" See also, Sandy v. Randall, 20 W. Va. 247. And see the titles LIMITATION OF ACTIONS; PARTNERSHIP. 4 Va-15 As to evidence of death, see the titles DEEDS; PRESUMPTIONS AND BURDEN OF PROOF. As to action for wrongful death, see the title DEATH BY WRONGFUL ACT. DEATH BY WRONGFUL ACT. I. Right to Recover, 228. A. At Common Law, 228. B. Statutory Right, 228. 1. In General, 228. 2. Character and Construction of Statutes, 229. 3. Nature of the Right, 229. 4. Object of Statutes, 229. 5. Conflict of Laws-Law Governing the Right to Sue, 229. II. Beneficiaries, 230. A. Form of Action, 231. C. Abatement and Revival, 232. 1. Upon Death of Plaintiff, 232. 2. Upon Death of Defendant, 233. D. Grounds of the Action, 233. 1. In General, 233. 2. Recovery Based on Breach of Duty, General or Special, a. Wrongful Act, Neglect or Default in General, 234. Whether b. Recovery Based on Breach of Master's Duty to Servant, 234. (1) In General, 234. (2) Onus Probandi, 237. d. Recovery Based on Breach of Duty to Persons Other than (1) Trespassers, 238. (2) Licensees, 241. (3) Travelers at Crossings, 242. (a) At Public Highways, 242. (b) At Intersecting Streets, 243. E. Declaration, 245. 1. Parties, 245. 2. Sufficiency, 245. 3. Allegations, 246. a. In General, 246. b. Averment of Incorporation, 246. c. Averring for Whose Benefit Suit Prosecuted, 246. 4. Surplusage, 248. |