be no way of ascertaining even approximately the value or location of the property, rights, etc., of a mining corporation such as the appellant company, conveyed by it to secure the payment of its indebtedness. It is, however, urged upon us by the learned counsel for appellant, that only $6,000,000 of the bonds secured by the deed in question were to be presently issued, and the remaining $14,000,000 were only to be issued and negotiated for the purchase of property and certain specified purchases of the company at a future time; and, therefore, the tax required on the recordation of the deed should have been computed only upon the $6,000,000 of bonds to be immediately issued. Not only is there no language employed in the statute which could be so construed as to afford a foundation for such a contention, but the deed prescribed the form of the bond to be issued, and it was upon its face to be stated: "This bond is one of a series of bonds amounting in the aggregate of their principal to $20,000,000," etc.; and the conveyance of the property, etc., of the company was expressly in trust "for the equal pro rata benefit and security of all and every the persons, firms and corporations who may be or become holders of the said bonds, issued or to be issued," etc.; so that each and every bond in the series aggregating the $20,000,000 was, within the contemplation of the statute secured by the deed; and, therefore, the tax properly to be assessed and received by the clerk as a condition precedent to the admission of the deed to record was the amount prescribed by the statute upon the aggregate amount of the bonds secured by the deed, to-wit, $20,000,000, making the tax thereon $20,000, as the clerk demanded. and received. If the view of the statute taken by appellant be correct, and the clerk had demanded and received a tax measured by the bonds secured but only presently to be issued, and the remaining $14,000,000 secured by the deed or any part thereof were thereafter issued, how and when would the tax on the deed with respect to the bonds issued subsequent to its recordation be collected, and by whom? Certainly there is no provision in the statute for the assessment or collection of such a tax and no hand appointed to receive it, even if a voluntary payment thereof were offered. On the contrary, the statute imposes imperatively upon the clerk to whom the deed is presented for recordation the duty to assess and collect a tax thereon, and as a condition precedent to the admission of the deed to record, fixed only by the amount of bonds or other obligations secured thereby. We are of opinion that the judgment of the circuit court complained of is right, and it is, therefore, affirmed. Affirmed. DUDLEY v. LEWIS SHOE COMPANY. (Richmond, January 18, 1912.) the material 1. DECLARATION-Demurrer.—Where facts are distinctly alleged, leaving no need for conjecture as to any fact upon which the right of recovery is based, and the declaration, together with the bill of particulars filed therewith, gives full and sufficient notice to the nature and character of the plaintiff's claim, a demurrer to the declaration should be overruled. 2. LANDLORD AND TENANT-Negligence-Damage from Bursting of Water Pipes-Liability of Landlord.-Where the landlord has a building erected under the supervision of a competent architect, and the plumbing work done by an experienced plumber, with the best material the market affords, the water closets and pipes being properly located and equipped; and by reason of the failure of a tenant in exclusive possession and control of an upper floor to cut off the water, a pipe freezes and bursts and the occupant of a lower floor is damaged, the landlord is not liable. 3. INSTRUCTIONS-Evidence.--Instructions which are not supported by the evidence are erroneous, and should not be given. Error to Corporation Court of the city of Danville. Reversed. R. W. Peatross, Harris & Harris, for the plaintiff in error. Julian Meade, for the defendant in error. CARDWELL, J., absent. HARRISON, J.: The defendant in error was a tenant of the plaintiff in error, occupying one of eseveral stores in the "Dudley Block," situated on the corner of Main and Union streets, in Danville. The second and third stories of the building, which cover all the stores in the block, were occupied by numerous tenants as offices, lodge rooms, club rooms, etc., the landlord occupying no part of the building, and retaining no portion thereof for her own use. The building was supplied throughout, for the convenience of the tenants, with water pipes, taking water to the respective apartments. The building was not supplied with heat, and was not attended to or looked after by a janitor or any other person in the employment of the landlord; the respective tenants, having their own servants, and furnishing the heat for their respective apartments. A water closet was situated on the second floor, over the store of the defendant in error, which was in the exclusive occupation and use of Dr. Robertson, one of the tenants on that floor. On the night of December 30, 1909, the pipe in this closet burst, as a result of freezing and thawing, and the water overflowed the closet, ran through the floor and ceiling into the store below of the defendant in error, flooding and greatly damaging its stock of goods. Thereupon this suit was brought by the Lewis Shoe Company to recover damages for the loss sustained. There was a verdict and judgment for the plaintiff, to which judgment this writ of error was awarded. There was no error in the court's refusal to sustain the demurrer to the declaration. The material facts are distinctly alleged, leaving no need for conjecture as to any fact upon which the right of recovery was based. The declaration, together with the bill of particulars filed therewith, gave full and sufficient notice of the nature and character of the plaintiff's claim, pointing out the particular pipe which burst and its location. In the case of Kecoughtan Lodge v. Steiner & Kaufman, 106 Va. 589, 1 Va. App. 107, where the building was under the superintendence and control of a janitor, who was the employee and agent of the landlord, quoting from Farnham on Waters and Water Rights, it is said: "If the injury is caused by leakage from pipes in other portions of the building than that occupied by the injured tenant, the question of the landlord's liability will depend upon his connection. with the injury. He is liable for all injuries resulting from his own negligence, and an exemption clause in the lease will not include such injury." We find a full and very helpful discussion of the duties. and liabilities of landlord and tenant in the case of McCarthy v. New York County Savings Bank, 74 Maine 315, 43 Am. Rep. 591. In that case the room occupied by the tenant was furnished with a water basin, the apertures of which were not sufficient to carry off all the water that was delivered by the faucet when left open. The tenant left the faucet open and the water overflowed and injured the goods of another tenant occupying rooms on a lower story. It was held that the landlord was not liable, the court saying: "There is nothing to indicate that his (the tenant's) control of the faucet, which he negligently left open overnight, thereby causing the damage alleged, was not as exclusive of any rightful exercise of authority by the landlord in regard to its use as was his possession of any part of the leased premises. The bowl supplied with water was in the room when Fiske began his tenancy under the defendants. He used it and paid the rent. He was tenant of the bank as to the bowl and its appurtenances, as of the other parts of the room, and with such rights of possession and control as pertained to the tenancy. These fixtures were leased to him, and as lessee he was the actual occupant of them." Again, it is said: "That water was introduced into the building by the bank, that they caused the pipes to be laid and maintained and paid the water rates, are not facts which tend to show their direct and present control of faucets within the rooms of their tenants. They may enter, if necessary, to change or repair the pipes, but while the room with its fixtures is in the possession of a tenant, it is he who sustains to third persons the liability of an occupant, as the landlord sustains that of owner." And further it is said: "The liability of the landlord does not follow from the fact that the building does not contain the latest and most improved system of water pipes. He does not insure against the negligence of his tenants, nor is he bound to construct his building so as to reduce the possibilities of damage from such negligence to an absolute minimum." In Shearman & Redfield on Negligence, Vol. 2, sec. 723, it is said: "If the landlord provides pipes and other plumbing of good quality and surrenders possession, the tenant only is responsible for the mode in which these things are used, and for any overflow caused either by neglect to turn off the water, or by such misuse of the works as deprives them of power to stop the flow of water." In the case at bar the uncontradicted evidence shows, in addition to what has been already stated, that the building in question was planned and erected under the supervision of a competent architect; that the plumbing work was done by an experienced plumber, and the material used the best the market afforded; that the water closets were properly located, and that each of them, including the one used and occupied by Dr. Robertson, was provided with a stopcock on the supply pipe which ran up to each tank and was within easy reach of anyone who desired to turn off the water and thereby prevent its escape in the event of freezing; that Dr. Robertson was the sole occupant and had the exclusive use and control, in connection with the offices rented by him, of the water closet in which the pipe froze and burst; that the key hung in his office, where the landlord could and did get at it when repairs were to be made; that whenever the water closet became stopped up, or in any way out of order, he notified the agents of the landlord and they always repaired it or put it in order; that four days prior to the bursting of the pipe which did the damage complained of, when it was very cold, he tried to turn the stopcock and stop the flow of water in his tank, but it was frozen and would not turn, and that it remained frozen for four days; that he did not tell the tenant below of the frozen pipe above him and did not notify the agents of the landlord that the pipe was out order, because it had frozen before and always melted, and he thought it would do so again. The plaintiff asked for two instructions, which were given over the protest of the defendant, as follows: "I. The court instructs the jury that if they believe from the evidence that it was the duty of the defendant to look after and keep in repair the water pipes in the water closet used by Dr. J. M. Robertson in connection with the office let to him by the defendant, and that plaintiff had no right or control over said pipes; then the court instructs the jury that it was the duty of defendant to use ordinary and reasonable care in inspecting and caring for said pipes so as to prevent them from freezing, bursting and overflowing the premises of plaintiff, situated under them." "II. The court instructs the jury that if they believe from the evidence in this cause that under the rental contract or agreement between defendant and Dr. Julian Robertson it was the duty of defendant, Lucy E. Dudley, to look after, care for and keep in order the water pipes in the closet rented to and occupied by Dr. Julian Robertson |