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Opinion.

Section 3293 of the Code provides, that "The court shall have control over all proceedings in the office during the preceding vacation. It may reinstate any cause discontinued during such vacation, set aside any of the said proceedings, or correct any mistake therein, and make such order concerning the same as may be just."

This statute was ample authority for the court's action in overruling the motion to remand, and directing the clerk to make the proper entries in the rule book. In this case it is shown that the clerk was as ready to receive the pleadings of the defendant as he was to file the declaration of the plaintiff, but no plea of any kind was tendered by the defendant. It is not pretended that the defendant was misled by any misprison of the clerk, nor is it suggested that any opportunity to file pleas or make any defense was lost by reason of any action on the part of the clerk. It was the duty of the clerk to enter the rules properly as required by the statute. His failure to do so, however, could not, in this case, be prejudicial to the plaintiff who had done all that was required to entitle him to his office judgment. Digges v. Dunn's Ex'or, 1 Munf. p. 56; Shelton v. Welch, 7 Leigh, 175; Shadrack v. Woolfolk, 32 Gratt. 715.

We are further of opinion that there was no error in the refusal of the circuit court to permit the plaintiff in error io file its petition for a removal of the cause to the United States District Court.

It is conceded that such petitions must be filed on or before the rule day on which under the practice in this State a plea in abatement must be filed. Under our statute, section 3260 of the Code, all pleas of abatement must be filed before there is a conditional judgment at rules. The defendant not having presented his petition for removal of the case to the Federal court within the prescribed time, its right to make such application. was lost. Martin's Admr. v. B. & O. R. Co., 151 U. S. 673, 38 L. Ed. 311, 14 Sup. Ct. 533.

Opinion.

The third assignment of error, that the court erred in refusing to dismiss the case, has been disposed of by what has been already said.

We are further of opinion that there was no error in the action of the court with respect to the testimony of the witness, Thompson Sowers.

The complaint is made that this witness was allowed to testify as to the condition of the horses six weeks after the date of the shipment. The witness stated that he had seen the horse in question immediately before its shipment and had seen it six weeks afterwards. The condition of the horse six weeks after the shipment was connected with the injury received and the witness was permitted to give his opinion of its value at that time. The length of time may have affected the weight of the testimony, but it did not affect its admissibility.

Complaint is also made that this witness was permitted to state what, in his judgment, would be the effect of shipping horses a long distance in such stalls as were furnished in this case. The witness was shown to have had large experience with horses. He knew their habits and was familiar with their requirements. He knew these particular horses, their temperament and characteristics, and he knew the kind of stalls in which they had been put and was familiar with the effect of such confinement upon the class of horses in question. The jury were not necessarily informed upon any of these subjects, and it was only by such testimony that they could be put in possession of the facts essential to the formation of a proper judgment in the premises.

Objection is made to the court's permitting the introduction of evidence as to the expense necessary to develop a horse for the New York market. The plaintiff in error had brought out the price which the defendant in error had paid for the horses, for the purpose of impressing upon the jury that the value of the horses was to be regulated by the price paid for them. The evidence objected to was proper to rebut this inference, by show

Opinion.

ing that in addition to the price paid for the horses he also incurred very heavy expense in training and development in order to obtain the price he expected to receive on the New York market.

Other objections to the admissibility of testimony involve the contention of the plaintiff in error, that the value of the horses was not to be ascertained at the point of destination, but at Hagerstown, the point at which the liability for the horses, on the part of the defendant company, ceased. The shipper contracted to pay a through express charge for the delivery of the horses at Rye, N. Y. Under that contract the defendant company only contracted, on its part, to carry the horses on its own lines as far as Hagerstown, but the horses were not consigned to Hagerstown or destined for that place. Under the express terms of the contract, it was a through shipment to Rye, N. Y., and the charges paid accordingly. Neither party to the contract contemplated that the horses would be sold in Hagerstown, where there was no market for such horses; or that their value would be fixed at that point or any other point through which they merely passed in their rapid transit to the northern destination agreed upon. While the liability of the plaintiff in error, according to the construction of the circuit court, for loss would end at Hagerstown, it was none the less its duty to trans-ship the property by other carriers to the point of destination agreed upon, which was Rye, N. Y.

The general rule is, that in case of injury to goods the place of destination is to be taken as the basis for determining the damages, the measure being the difference between what the goods were worth at the place of destination, as injured, and what they would have been worth if delivered in good order. And the rule referring the measure of damage to the place of destination is also applicable where goods are taken for transportation to a point beyond the initial carrier's line. 6 Cyc. p. 530.

Other minor objections are made to the admissibility of

Opinion.

evidence in this case, but it is not necessary to discuss these in detail. It is sufficient to say that every such objection has been carefully considered and the conclusion reached that the plaintiff in error has not been prejudiced by the rulings complained of.

The 13th assignment of error is to the action of the court in instructing the jury, that if the property when it arrived at Rye, N. Y., was in an injured condition, the burden rested upon the defendant company to show that the property had not been injured upon its own line.

This instruction is in conformity with the ruling of this court in the case of N. & W. Ry. Co. v. Wilkinson, 106 Va. 775, 56 S. E. 808, where it is held that on proof of delay in delivery a prima facie case is made against the initial carrier, and the burden is on it to establish its own freedom from negligence. It is true that in the case cited it was a shipment of lumber; but the statute, section 12941 makes no distinction. between classes of property; on the contrary, it declares in broad terms, that whenever any property is received by a com- . mon carrier, loss or injury to it shall be prima facie evidence of the negligence of such common carrier.

Other assignments of error with respect to the action of the court in giving and refusing instructions have been practically disposed of by what has been said in connection with the questions arising on the admissibility of evidence.

We are of opinion that the case was fairly submitted to the jury, and that their verdict cannot be disturbed upon the ground that it is contrary to the law and the evidence.

The judgment complained of is affirmed.

VOL. CIX-3.

Affirmed.

Syllabus.

Richmond.

CAROLINA, CLINCHFIELD AND OHIO RAILWAY V. BOARD OF SUPERVISORS OF SCOTT COUNTY.

January 14, 1909.

1. APPEAL AND ERROR-Mandamus—Adequate Remedy.-The pendency of a writ of error to the ruling of a circuit court dismissing the appeal of a railroad company from the refusal of the board of supervisors of a county to act upon its petition asking the board's consent to a proposed alteration of a county road, is no bar to the prosecution of a writ of error to the ruling of said circuit court refusing to award to said railroad company a mandamus to compel the board to take action on said petition. The writ of error in the first case is neither an adequate nor a proper remedy.

2. MANDAMUS-Function of Writ-Adequate Remedy.-Mandamus will not lie in favor of a party who has another clear and adequate legal remedy, but the "adequate remedy" which will bar mandamus must be such as reaches the end intended, and actually compels the performance of the duty in question. It must be equally as convenient, beneficial and effective as the proceeding by mandamus. The function of the writ of mandamus is to enforce the performance of duties growing out of public relations. or imposed by statute, or in some respect involving a trust or official duty.

3. RAILROADS -Change of County Road-Consent of Supervisors-Mandamus. Before a railroad or other public service corporation can alter a county road, it must first obtain the consent of the board of supervisors of the county to the proposed alteration, and, upon proper application, it is the duty of the board, in advance of the construction of the proposed railroad, to consent or refuse to consent to the proposed change of route, leaving the matter of construction, grade, etc., to be fixed upon and carried out afterwards. If application is made for such consent, and the board simply refuses to act, the proper remedy is mandamus to compel the board to take action by either giving or refusing its consent

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