proper rate at which a suitable fuse will transmit fire after it is ignited anywhere stated in the declaration. The only evidence of the insufficiency of the fuse and its want of adaptation to the use for which it was intended is that it "failed to fuse and smoke in the ordinary way." As it was in point of fact ignited (otherwise the explosion would not have occurred), its failure to smoke, so far from being proof of defect, is rather to be taken as proof to the contrary, for smoke is the result of imperfect combustion (Ency. Britannica, vol. 22, p. 180); whereas, fire accompanied by the least amount of smoke is evidence of the most complete combustion of the material used in making the fire. covers personal injuries inflicted by reason | be the second. As we have said, the length of the defect in the article warranted. Hav- of the fuse is not determined, nor is the ing made these concessions, we are further of opinion that the right of recovery must be subject to the qualification that the person injured by a breach of the warranty must have used the article purchased in a reasonable, careful, and proper manner, and that the damages sustained must have been such as might have been reasonably anticipated. In blasting coal or stone, a hole is drilled in the object to be blasted, the explosive is introduced, is connected with a fuse, the hole is filled with earth, or some proper material, properly tamped, and the fuse is fired. The fire passing along the fuse communicates with the powder or dynamite, and the explosion takes place. Obviously a suitable fuse must take fire when a lighted match or fire is brought into contact with it, and must continue to burn until it reaches the explosive. It must not burn too rapidly, for the operatives must have time to seek a place of safety. Now, the declaration shows: That the fuse was lighted in the first place in the ordinary way and according to approved methods, and that when so lighted it failed to fuse and smoke in the ordinary way; that, supposing that the fuse had not taken fire, the plaintiff undertook to light it a second time; that it again failed to show any sign of being lighted, as it should have done, and appeared to go out, whereupon the plaintiff, supposing that the fuse had not taken fire, frazzled the end in the ordinary and customary way, and again applied the blaze, and again the fuse failed to respond, whereupon he again frazzled the end of the fuse and applied the blaze the fourth time, and immediately upon the application of the blaze the explosion took place. It does not appear from the declaration of what length the fuse was, or how rapidly a good fuse should have transmitted the fire, after its ignition, to the explosive-that is to say, how soon after the ignition the explosion should have occurred-but it is certain that the fuse took fire at some one of the efforts to fire it antecedent to the last, for when the fourth attempt was made, after having frazzled the fuse the second time, the declaration alleges that the explosion immediately took place. "Immediately" means at once; without interval of time. Webster's Dict. A fuse which would cause an explosion at once would certainly be defective, not because it failed to produce an explosion, but because it produced an explosion immediately; that is to say, without such interval of time as would enable the operative to seek a place of safety. If the explosion was not the result of the final effort to ignite the fuse, then it must have been lighted as the result of one of the previous efforts, perhaps the first, or it may Nothing could have been more imprudent and reckless than the conduct of the plaintiff. To put flame or fire to a fuse connected with dynamite, the object of which was to explode the dynamite, and to remain by it until the explosion occurred, upon the unwarranted assumption that the fuse was defective, instead of seeking a place of safety and there awaiting the result, was to invite and court disaster. We are of opinion that the contributory negligence of the plaintiff was the proximate cause of the accident, and that the demurrer to the declaration was properly sustained. The judgment of the circuit court is affirmed. Affirmed. NORFOLK & W. RY. CO. v. POTTER. (Supreme Court of Appeals of Virginia. Nov. 18, 1909.) 1. APPEAL AND Error (§ 51*)—JURISDICTION— AMOUNT INVOLVED-SET-OFF. Where a claim of set-off amounted to more than $300, defendant was entitled to bring error from a judgment for plaintiff for $156.81. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 237, 267; Dec. Dig. § 51.*] 2. APPEAL AND ERROR (§ 173*) - FILING PLEADINGS SET-OFF OBJECTIONS NOT MADE AT TRIAL. tention to its account of set-offs, theretofore left Where defendant in open court called atwith the clerk with directions to file, and witnesses were examined, and instruction given with respect thereto, and the claim treated by could not object for the first time on a writ of both parties as a part of the record, plaintiff error that the set-off was not in fact in the record, because not marked "Filed" by the clerk. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1108; Dec. Dig. 173.*] 3. CARRIERS (§ 91*)—WITHholding DelIVERY -CONVERSION. Plaintiff shipped certain canned tomatoes, which, on being refused by the consignee, plaintiff directed the carrier to return to him. The tomatoes were returned under an "astray wayback charges, whereupon defendant's agent rebill," not accompanied by any bill indicating fused to deliver the goods to plaintiff until he obtained information as to the amount of such back charges and the same were paid, and, on obtaining such information, the agent notified plaintiff thereof, and tendered the goods to plaintiff on payment of the charges, which plaintiff refused. Held, that the agent's refusal to deliver in the first instance did not constitute a conversion, and hence the carrier was only responsible for loss accruing because of the delay in delivery after the goods were returned. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 339; Dec. Dig. § 91.*] 4. CARRIERS (§ 105*)-DELAY IN DELIVERYDAMAGES. Where redelivery of the goods to the consignor by a carrier after they had been returned to him was delayed, the shipper's measure of damages was the difference between the market value of the goods when redelivery should have been made and their value at the time redelivery was tendered. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 451; Dec. Dig. § 105.*] Appeal from Circuit County. Court, Botetourt Action by T. H. Potter against the Norfolk & Western Railway Company. Judgment for plaintiff, and defendant appeals. Reversed. E. M. Pendleton, M. McCormick, and T. W. Reath, for appellant. Benj. Haden, for appellee. HARRISON, J. This action of assumpsit was instituted by T. H. Potter to recover of the Norfolk & Western Railway Company the value of 150 cases of canned tomatoes, shipped by the plaintiff from Troutville, Va., to Cedar Town, Ga., and also $20 for expenses incurred in four trips with his wagon and horses from his home in Botetourt county to Troutville for the purpose of removing the tomatoes which had been returned by order of the plaintiff from Cedar Town to Troutville. The aggregate claim of the plaintiff was $282.50, and the claim for storage and freight charges asserted by the defendant was $414.64. There was a verdict and judgment in favor of the plaintiff for $156.81, and it is insisted that this court is without jurisdiction, because the amount involved is less than $300. The claim by way of set-off, which is equivalent to an action is for more than $300, and it is not denied that this determines the right of the defendant to this writ of error; but it is contended that the record does not show that the set-off was filed. court all during the trial as part of the record, although not actually marked 'Filed.'" The record shows that the witnesses were examined with respect to the set-offs. The instructions deal with the subject, and are based upon it, and it clearly appears that this claim of the defendant was throughout the trial treated by both parties as part of the record to be considered by the jury and determined by the judgment of the court. In the face of such evidence, it cannot be successfully claimed that the case was not heard upon the set-offs, or that the account of setoffs was no part of the record. Under such circumstances, the plaintiff is estopped, and will not be permitted, to make such an objec tion for the first time in this court. It would be to allow him to take advantage of his own wrong, for, had he made the objection in the court below that the account of set-offs had not been formally filed, the matter would have doubtless received prompt attention and correction. Deatrick's Adm'r v. State Life Ins. Co., 107 Va. 602, 59 S. E. 489. The case shown by the record is that on the 29th and 31st days of May, 1907, the plaintiff delivered to the defendant company at Troutville, Va., 150 cases of tomatoes, to be shipped to Cedar Town, Ga. The cases containing these tomatoes started from Troutville about June 1, 1907, and reached Cedar Town on June 26, 1907. The line of the Norfolk & Western Railway Company extended only from Troutville as far as Bristol, Va., at which point connection was made with the Southern Railway Company, which connected with the Central of Georgia; the latter being the last carrier of the tomatoes to their destination at Cedar Town. Messrs. Hollaway & Smith, the consignees, refused to accept the tomatoes because not in good condition. Considerable correspondence ensued between the plaintiff, Potter, and the consignees, which resulted in a final rejection of the goods by Hollaway & Smith. This correspondence shows that there was no suggestion that the railroad companies were in any way responsible for the condition of the goods. The dispute was entirely as to the marketable condition of the goods when shipped by the plaintiff. As late as August 12, 1907, this controversy was still going on between the parties, on which day the plaintiff wrote Messrs. Hollaway & Smith the following letter. The record does not show that the clerk marked the set-off "Filed," nor does it appear that there was an entry in the order book showing the filing. It does, however, abundantly appear that the account of setoffs was in the record before the trial began, and that the plaintiff had notice of it. The trial judge in bill of exceptions No. 1 certifies as a fact "that the defendant in open court called attention to its account of setoffs, theretofore left with the clerk, with directions to file the same; that the paper was produced by the clerk and was treated by the "Dear Sir: Yours rec'd. I see nothing to be gained by disputing over a matter in which both of us seem to be equally positive. In regard to the tomatoes being some swells which my customers had returned, would say I have never had one case returned yet and I had three thousand cases in the same lot from which yours were taken and only 19 cans as yet have been reported swells and only two were shipped since yours and every can has been paid for without quibble except yours. You say you would not ship 'such | ville, the plaintiff was promptly notified of stuff.' What do you mean by 'such stuff'? the fact, and the further fact that the agent You say you bought 'standard goods.' Can at that place had received no information you tell me what are standard goods? You as to the amount of the back charges. It have never said in what particular my goods appears that the plaintiff came to Troutville are not 'standard.' They undoubtedly are on four different occasions with his teams 'standard' weight and are packed in 'stand- prepared to remove the goods, offering to ard' cans, and if the can contains anything pay a reasonable freight charge and to surexcept what the label denotes you may re- render the original bills of lading which had port me to the pure food commission and been issued to him when the tomatoes were have the goods examined at my expense. shipped to Cedar Town, but did not remove them because the agent of the defendant company at Troutville could not, as stated by him, deliver the goods until the back charges were paid, and he had not been informed as to the amount of such charges. "I know the goods are all right except a rery few swells and leaks which I always agree to pay for. I told the broker when I sold the goods that they were a little rusty from being out the cases, as it was impossible for us to get cases last year during the canning season, he asked me if the tomatoes were all right. I said yes, and I stand by that statement. I have proposed to do as fair with you as I know how-that is to pay you for every break and swell, and you positively decline to do this. On November 29, 1907, the plaintiff presented to the agent of the defendant company at Troutville his claim in writing for loss and damage. The claim presented, as well as the claim sued upon and filed as a bill of particulars with the declaration, was for the full original price which his Georgia consignees had agreed to pay the plaintiff, and expenses of four trips with his teams to remove the goods. This claim was based upon the theory that the defendant company, by withholding the delivery of the goods upon their return to Troutville for the reason stated, had appropriated or converted them to its own use, and had thereby become liable for the original agreed price between the plaintiff and his consignees, who had rejected the goods because they did not measure up to the representations that the plaintiff had made of them. On December 31, 1907, the agent of the defendant company at Troutville notified the revenue bill showing the back charges for freight, etc., and requesting him to call and pay these charges and remove his goods. This the plaintiff declined to do, and six months later instituted this action of assumpsit. "Now I am willing for the court of Georgia to pass on it, and if they say my goods are worthless, then I do not want anything for them, or if it is fair and honest for a firm to order goods, examine them without authority from anybody, hold them two months, then report them worthless after new goods are on the market, then I have no conception of fairness. I have ordered the broker to come to your town and look after it, and if you ordered the goods and are worth the money, you may depend upon paying for them, if not I will see by what authority the R. R. Co. let you into my goods without first complying with the written instructions." Subsequently, on August 30, 1907, the plain-plaintiff in writing that he had received the tiff, Potter, requested the defendant company, in writing, at Troutville, to have the 150 cases of tomatoes returned from Cedar Town to Troutville. This request was communicated through the proper channel to the agent of the Central Georgia Railway at Cedar Town, and the goods were reshipped and arrived at Troutville on September 21, 1907. The car containing these goods on their return trip arrived at Troutville on what is called an "astray waybill," which means, as explained in the record, that the goods were consigned to no one, and not accompanied by way or other bill indicating what the back charges were. These back charges included storage of the goods at Cedar Town from June 26 to September 1, 1907, when the goods were by order of the plaintiff reshipped to Troutville, and freight charges due the several carriers engaged in their transportation. The Central of Georgia was the initial carrier in reshipping the tomatoes to Troutville, and it is obvious that it was not the fault of the defendant company that the goods arrived at Troutville on an "astray waybill" and without a revenue bill accompanying the car on its return trip showing the back charges. The declaration alleges that the defendant company had promised to pay the sum sued for, but had disregarded its said promise. The plaintiff himself testifies that neither the defendant company nor any of its agents or officials had ever promised him to pay for these goods, but that, on the contrary, they had disputed his right to charge them to the defendant. The declaration proceeds alone upon the theory that the defendant company had appropriated and converted the tomatoes to its own use by reason of its refusal after they were returned to Troutville to deliver them to the plaintiff on the four occasions mentioned, and had thereby become liable to the plaintiff for their value. There were averments by way of recital that there was an unreasonable delay in the shipment of the tomatoes from Troutville to Cedar Town and on the trip from the latter place back to Troutville, but there is not one word of proof facie evidence of its recitals, though the facts such unreasonable delay. Nor is there any | 2. TAXATION (§ 788*)-TAX DEEDS-RECITALS proof that there was any damage done to -CONCLUSIVENESS. these goods physically or otherwise, either in going from Troutville to Cedar Town or in returning from the latter place to the former. There is no averment of damage, except in a vague and indefinite way, and that damage is only alleged to have been occasioned by delay in shipment, and is entirely without proof to sustain it. The bill of particulars follows the theory of the declaration, and contains no reference to or item of damage or loss. Under the pleading and evidence in this case, there being no proof of any such appropriation of the tomatoes as would charge the defendant with the original sale price of the goods, the only damage for which it could be held responsible was the loss, if any, accruing to the plaintiff because of the delay in turning over to him the goods after their return to Troutville. This loss must be measured by the difference between the market value of the goods at the time the possession thereof should have been surrendered to the plaintiff and the time the defendant did surrender such possession, or was ready and offered to surrender such possession. siring to purchase delinquent land to file an [Ed. Note. For other cases, see Taxation, An objection to the admission in evidence of a tax deed on the ground that it does not ized to make the same, and that proceedings appear to have been made by the parties authortherein set out are not pursuant to law, and that the same is otherwise illegal, does not require preliminary proof that the deed is what it purports to be, but leaves to the court to ascertain its legal effect. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 216, 217; Dec. Dig. § 84.*] Error to Circuit Court of City of Roanoke. Ejectment by J. Preston Carson and an There was other against Roscoe J. Wright. judgment for plaintiffs, and defendant brings error. what Under the pleading and evidence in this case there were but two questions to be submitted to the jury: First, whether or not the defendant was responsible for the delay in delivering the goods to the plaintiff after their return to Troutville, and, if so, damage, if any, that delay caused the plaintiff; and, second, the amount the defendant was entitled to recover by reason of its account of set-offs. It It is unnecessary to review in detail the numerous instructions given in this case. is sufficient to say that they do not properly submit the case to the jury. They are, in the main, not justified by the pleading, not based upon evidence, and relate to subjects wholly foreign to the questions at issue. For these reasons, the judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for a new trial not in conflict with the views expressed in this opinion. Reversed. WRIGHT V. CARSON et al.† (Supreme Court of Appeals of Virginia. 18, 1909.) a Reversed and rendered. Hart & Hart, for plaintiff in error. R. E. Scott and M. H. Altizer, for defendants in error. KEITH, P. This is an action of ejectment brought by Carson and Warwick against Wright to recover a lot of land situated in the city of Roanoke. The plaintiffs, to maintain the issue upon their part, introduced a deed from the Janette Land Company to them of August, 1890. The defendant admitted that the land company traced its title back to the commonwealth of Virginia, and was on the 25th of August, 1890, in possession of and owned said land in fee, and that on that day, by its deed, it conveyed the lot to the plaintiffs, that at the date of the institution of the action of ejectment the defendant was and still is in possession of the land claimNov. ing adversely to the plaintiffs, and this was all of the evidence offered by the plaintiffs. 1. TAXATION (§ 789*)-TAX DEEDS-RECITALS -CONCLUSIVENESS. A tax deed which recites the facts essential to a valid deed is, in the absence of proof controverting any of the recitals, sufficient to establish title in the grantee whether Code 1904, § 661, relating to the title vesting in the grantee in a tax deed, makes the deed conclusive or only prima facie evidence of the truth of its recitals [Ed. Note.-For other cases. see Taxation, Cent. Dig. § 1557; Dec. Dig. § 789.*] The defendant to maintain the issue on his part offered the following evidence: An application signed by one A. S. Crawford for the purchase of the land in the declaration mentioned, under the provisions of section 666 of the Code of 1904, and certain papers thereto attached, marked "Exhibits Nos. 1 to 17," inclusive, a deed purporting to be from one S. S. Brooke, clerk of the corporation court of the city of Roanoke, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes taxes due thereon for the year 1891 and purchased by the commonwealth of Virginia, that it was charged on the commissioner's books to Carson and others at the time of the sale, and at the time of the notice was so charged and owned by J. Preston Carson and Otway Warwick, as shown by the deed books and will books in the office of the clerk of the corporation court, and described as lot No. 4, section No. 5, Janette Land Company. purporting to convey the land in the declara- | tice of this application was served upon Cartion mentioned to the said Crawford, dated son and Warwick; the notice stating that the June 27, 1903, and recorded in Deed Book | land in question was sold for delinquent 147, p. 129, and marked "Exhibit No. 18," a deed purporting to be from A. S. Crawford conveying the land in question to Hunt Hanna, and a deed from Hunt Hanna purporting to convey the land to the defendant Wright, that on the 25th of August, 1902, and continuing through the 23d day of June, 1903, when the deed from Brooke to Crawford was made, Brooke was clerk of the corporation court for the city of Roanoke, having been duly elected and qualified as such; the act of the General Assembly of Virginia passed February 12, 1892, by which the limits of the city of Roanoke were extended so as to embrace within the limits of the city of Roanoke the land in the declaration mentioned, proof that the grantee in the deed of June 27, 1903, took possession of said land, claiming under the said deed, and that he and those claiming under him have ever since been in possession thereof which was all of the evidence introduced on the part of the defendant. To the introduction of all of these papers the plaintiffs, by counsel, objected, on the ground that they do not "appear to have been made by the parties authorized to make the same, and that the proceedings therein set out are not pursuant to law and are not authorized by law, and that the same are otherwise illegal and irrelevant." There follows this stipulation of counsel: "We consent that the foregoing and the exhibits therein referred to is all the evidence to be introduced in this case," signed by counsel for the plaintiffs and counsel for the defendants. The case was submitted to the court without a jury, and at the May term, 1908, a judgment was entered for the plaintiffs. The court certifies that "the evidence and all the evidence produced by the parties to sustain the issue on their parts, respectively, is contained in the certificate filed with the papers in this cause and marked 'Certificate of Evidence,' which is hereby referred to and made a part of the record herein." It seems that prior to February 12, 1892, the land in question was a part of Big Lick magisterial district, in the county of Roanoke; that the taxes for 1891 were not paid, and the land was returned and reported delinquent for that year, but all the acts which establish the delinquency, the sale of the land, and its purchase by the commonwealth were returned to the county court of Roanoke county and were filed in the clerk's office of that court. In 1892 the charter of the city of Roanoke was amended, and the land in question was brought within the limits of the city. On the 25th of August, 1902, A. S. Crawford, under whom the defendant claims, filed his application to purchase this Carson and Warwick did not appear in obedience to the summons to show cause, and on the 27th of June, 1903, a deed was made by S. S. Brooke, who it is agreed was at that date clerk of the corporation court of the city of Roanoke, conveying to A. S. Crawford the land in question. This deed recites with accurate detail every step that was taken and which the law required to be taken in order to entitle a purchaser under section 666 of the Code to a deed for lands which had theretofore been returned delinquent for the payment of taxes and purchased by the state. No step seems to have been omitted, but all was done which the law. required to be done to vest the title to land sold for taxes and purchased by the commonwealth by virtue of section 666 of the Code. Section 661 provides that when the purchaser of any real estate sold as aforesaid, or sold in pursuance of section 666, his heirs or assigns, has obtained a deed therefor, and the same has been duly admitted to record in the county or corporation in which such real estate lies, the right or title to such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes or levies on account whereof the sale was made, at the commencement of the year for which said taxes or levies were assessed; or in any person claiming under such party, subject to be defeated only by proof that the taxes or levies for which said real estate was sold were not properly chargeable thereon; or that the taxes and levies properly chargeable on such real estate have been paid; or that the notice of the tax sale, where made to a person other than the commonwealth, or notice of the application to purchase, in case the sale was made under section 666 has not been duly given; or that the payment or redemption of said real estate was prevented by fraud or concealment on the part of the purchaser. Not one of the four conditions named appear in this case. We shall not stop to inquire whether the statute intended to make the deed conclusive proof or prima facie proof of its recitals. It may be that it was designed as conclusive proof as to all of its recitals other than the four specified exceptions, and |