The times. [volume] (Richmond, Va.) 1890-1903, 1897-04-02

1t cancelled. There Is nothing In the
deed under which the company claims
in conflict with It; so that with respect
to the vein it is simply a question or
the construction of the two deeds.
The deed under which the company
claims was conveyance OF the residue
OF the tract-of the p Ia acres OF the
original tract OF 10i Ia made In SI0 by
the same grantors after selling 10 acres
OF the said tract to the party under whom
the Ellis heirs claim. This residue was
not surveyed and plated till 1856. and 1t
does not appear that the survey was
made a part OF the subsequent convey
ances OF the property. or that the prop
erty claimed TO DO covered by IL was
conveyed by the metes and bounds given
I'm that survey and plat. "A private sur
vey and map. never recorded. not referred
10 or made part OF the deed under which
the party relying on II claims. cannot be
considered color OF title" Sulphur Mines
Company VS.. Thompson's Heirs. Is 5. h..
r.. 23S. So that survey does not con-
stit;te a cloud upon the title OF the Ellis
heirs. which they or the compliments
can have removed by cancellation OF II.
a mere verbal claim or oral assertion
OF ownership does not constitute such a
cloud upon title as Courts OF Equity will
remove; they must be instruments or
proceedings IN writing which appear upon
the records and thereby cast doubt upon
the validity OF the record title.
The bill though filed under pretence OF
removing a cloud. is in reality a suit TO
try the title between complainants' ven
doris and the Sulphur NJ. Co.. and TO es-
tablsh the boundary between them.
A Court Of Equity has no jurisdiction
TO settle the title or boundaries of lands
between adverse claimants unless the
plaintiff has an equity against the de-
PENDANT claiming adversely TO him; and
an equity against other persons Will not
give such jurisdiction. Rand. "a; LANCE
VS.. Jones, Leigh 1872; Darlington. etc.
VS.. Otis, Graft. 235; Steed vs.. Baker.
etc, 10 ID, $50; Collins VS.. Sutton, trus-
tee. % S. f.. r., 4l5.
The record shows no privity between
tho complainants and the sulphur NJ Co..
and fails TO disclose any equity I'm their
favor against It. The bill should have
been dismissed as to It, and with such
dismissal the cross bill would fall; for tho
company not being properly party 10
the original bill. could not be made de-
PENDANT to the cross bill. Derbyshire
VS.. Jones, 26 S. f.. r., 4l6.
CONTRADICTORY NEGLIGENCE.
Blankenship VS.. Chesapeake and Ohio
Railway Company Reversed. Opinion
by Judge Buchanan.
A youth ten years old was run over by
an engine and tender, and brought action
by his next friend. for damages. The
verdict and judgment were for defend
ant. and writ of error awarded. The
case is discussed almost entirely upon the
instructions, denied and given. The ma
terial points decided are:
/. The court refused TO permit plain
tiff to introduce in evidence certain acts
of the Legislature, holding, however that
being public acts they could be READ py
plaintiffs counsel to the jury. II they 50
desired, as part OF their evidence. ms
assignment without merit, as no preJu-
| dice could possibly have resulted 10 the
plaintiff from the courts action.
2 Inasmuch as the accident did not
occur al a street corner city ordinance
regulating the running Of locomotives az
| street crossings was not relevant, ana
was properly excluded.
z There is a recognized distinction IN
the degree of care railroad company
| owes under ordinary circumstances 10
| trespasser and 10 one who Is upon us
| tracks by it's license. Where the COM
many knows that its right OF way at q
| certain point is continually used by nun
drods of men, women and children passing
over IL daily and at all hours, its servants
are charged with notice that II IS 50 used
! and whether trespassers or licensees, inc
| company cannot without fault proceed
| i'm a manner which must necessarily De
| dangerous TO such persons. cd Sherman
and Redf on Negl., section 4s4; Seaboaro
| Railroad VS.. Joyner. % Va. 354363 Tucker
VS.. y. & w. railroad. 90 Va. $40; \. & w
railroad VS. Dunnaway SO Va, a ). Il. r.
GgS)
4. instruction No. 10 asked for by plain.
tiff. to the effect that in contributory neg
| ligence the law does not require th'
same degree of care and caution, from
| child as from a person OF mature years
but only such care and caution as per
| son Of its age and discretion could natur
| ally and ordinarily use,' correctly states
| the lsw, and should have been given
And the judgment must be reversed unless
| the court gives a correct instruction II
lieu Of IT, 4 Minor, sections lOs4-5. ane
| cases cited. which the court did not do II
| this case.
:. The co 1T refused to permit plain
TINS counsel "to read certain authorities
to the jury, among them decisions OF tn
| Supreme Court Of Appeals Of Virginia.
| This assignment OF error must be over
ruled because the bill Of exceptions fails
to state specifically what cases and eX-
| tracts were offered, and this court, there
| fore cannot tell what, If any, prejudice
resulted to the plaintiff.
| SUMMARY.
Judge James Keith-Shields and other
VS.. Mahoney and others. Circuit Cour
| OF Norfolk city. Reversed.
| Judge John w. Rieiy-Sulphur Nine
Company of Virginia VS.. Boswell, Bow
man u Shunan and ais. Circuit Ccur
OF Louisa county. Reversed.
Judge John A. Observation-Disclosures
| by &c. VS.. c. and o. Railway Co., Cir
cult Court city Of Richmond. Reversed
| Judge George NJ. Observation-Disclosures
| &, Manchester Railway Co. VS.. Moore
| administrator. Circuit Court Of Ches
| terrified county. Affirmed.
Camp VS.. Bruce. Circuit Court Of Nan
semond county. Appeal and superseded
bond $3.50.
| Carter VS.. Carter. Circuit Court o
Grayson county. Appeal and superse
| deas-bond $500.