V. 1880. chanic of any other sort, but a farmer and mill-owner, and January Term. that in superintending the erection of the dams referred to by him he had merely carried out the plans of his father. Ellis Upon proof of these facts, plaintiff offered to prove by Harris' said witness what had been the effect of all the dams reex'or. ferred to by him upon the lands above them, all of which lands and dams are in Albemarle county, about 30 miles from the dam of the defendant; and further to examine said witness, as an expert, touching the general influence and effects of dams upon the lands in and adjacent to the streams across which they are constructed; to the introduction of which testimony the defendant objected, and the court sustained the objection and refused to allow the witness to be examined as aforesaid; to which ruling of the court the plaintiff excepted. We think the testimony of this witness also was clearly inadmissible, and that it was certainly not admissible upon the ground of its being the testimony of an expert. As to the law upon this subject, reference was properly made, in the argument, to 3 Doug. 157; 26 E. C. L. R. 63, Folkes v. Chadd; also Livingston's case, 14 Gratt. 592. See also 1 Greenleaf on Evidence, §§ 440, 440a, and notes; and notes on the subject of experts. To be satisfied that our conclusions on this branch of the subject are correct, it can only be necessary to read the authorities here referred to. 3. In the third of said bills it is stated, that upon the trial of this case, the plaintiff, to maintain the issue joined on his part, offered himself as a witness to prove what has been the effect of the dam in question upon the stream above the said dam and upon his lands lying immediately along the banks of said stream; but the defendant objected to the plaintiff's testifying, because the defendant's testator, Henry Harris, who erected said dam, was dead, and moved the said court to exclude the said plaintiff as a witness; and the court, sustaining the motion of the defendant, excluded the said plaintiff from testifying as to all matters Term. Ellis connected with said dam, except such as have arisen since 1880. January the qualification of the defendant as executor of said Harris; to which opinion of the court the plaintiff excepted. The question presented by this bill of exceptions is, whether, under the Code of 1873, ch. 172, §§ 21 and 22, Harris' the testimony mentioned in the said bill was properly exIcluded as therein mentioned. This court is of opinion that it was, according to the express terms and true intent and meaning of the statute, aforesaid, which need not be repeated here. That such is the case, we think, is clearly and fully shown by the cases of Mason & als. v. Wood, 27 Gratt. 783; Grigsby & als. v. Simpson's ass'ee, &c., 28 Id. 348, and Morris' ex'or v. Grubb, 30 Id. 286; in each of which cases there was a full court at the time of its decision, and the court was unanimous. The prior case of Field v. Brown & al., 24 Id. 74, if in conflict with the three subsequent cases aforesaid, is overruled by them. Judge Anderson says of that case, in delivering the opinion of the court in Mason & als. v. Wood, supra, that "this opinion may seem to conflict with the decision of this court in Field v. Brown & als., 24 Gratt. 74; but the cases are not analagous. In that case the general competency of the party to testify seemed not to be questioned; but was in fact recognized by the court below, and seems to have been acquiesced in by both parties; and the only point made before this court was as to the admissibility of some of the questions and answers of the party, whose deposition had been given de bene esse. There was no objection made to his general competency, and the question was not raised in this court, nor seems to have been considered by it. In this case it is for the first time pointedly and squarely raised, and has to be met; and the court is of opinion, for the reasons given, that there is no error in the ruling of the circuit court, refusing to admit Leach and Earle, parties in the suit, to testify." See also what is said on this subject by Judge Christian V. ex'or. Ellis 1880. in delivering the opinion of this court in Grigsby & als. January Term. v. Simpson's ass'ee, &c., supra, where the authorities on the subject are reviewed, and, among other things having an important bearing upon this case, it is said: "The Harris' plain purpose of the legislature was, to declare that where the lips of one party to the original contract or transaction, which is the subject of investigation, are closed in death, the adverse party shall not speak at all." V. ex'or. 4. In the fourth of the said bills it is stated that upon the trial of this case the defendant, H. H. Harris, to maintain the issue joined on his part, offered himself as a witness to testify in the case; to which the plaintiff objected, upon the ground that said H. H. Harris was the defendant in the suit and part owner of the said dam, and because the plaintiff, R. S. Ellis, was incompetent to testify, and had been excluded as a witness in the case, as set out in the bill of exceptions No. 3, which is to be taken as a part of this bill. But the court overruled the motion of the plaintiff, and allowed the said H. H. Harris to testify as a witness without restriction; to which opinion of the court the plaintiff excepted. No notice is taken of the said 4th bill of exceptions in the petition for a writ of error in this case; no doubt because little or no reliance was placed upon it by the petitioner. But the case of Martz's ex'or v. Martz's heirs, 25 Gratt. 361, conclusively shows that Harris, the administrator, was not a party to the transaction, in the meaning of § 22 of ch. 172 of the Code, and therefore he was a competent witness in the case under § 21 of the same chapter, not being made incompetent by his being a party to the suit. There is no error in the opinion of the court referred to in the said bill of exceptions; which plainly appears, without the necessity of assigning any other reason for this conclusion than as aforesaid. 5. The only remaining question in this case is, as to the orrectness of the action of the court in regard to the in 1880. January V. structions asked for by the plaintiff and defendant respectively, all of which were refused by the court, and the Term. instructions which were given by the court in lieu of those asked for and refused as aforesaid. Whatever error, if any, Ellis there may have been in the refusal of the court to give the Harris' three instructions asked for by the plaintiff or either of ex'or. them, it was cured and removed by the instructions actually given by the court; in which instructions there was no error at all, so far as the plaintiff was concerned, and none to the prejudice of the defendant. Whether the court erred in refusing to give the instructions asked for by the defendant as aforesaid or any of them, is a question which need not be, and therefore is not, decided, as the defendant cannot be prejudiced by any such error, the decision of the case being in his favor. Upon the whole the court is of opinion that there is no error in the judgment of the court below, which must therefore be affirmed. The cause of action in this case was the recovery of damages claimed to have arisen from the erection of a dam in 1848, more than 24 years before the institution of this suit in 1872. There was a regular enquiry and report as to the existence of any such damages before the order was made for the erection of the said dam, and it was then reported that no such damages existed. In 1856, an action of trespass on the case was brought by the plaintiff against the testator of the defendant to recover the damages claimed to have arisen as aforesaid. In that action issues were joined on pleas of not guilty and the statute of limitations; which issues were tried by a jury on the 7th day of October, 1859, when a verdict was found thereon for the defendant, on which verdict a judgment was on the same day rendered for the defendant. More than thirteen years after the rendition of that judgment this action was brought for the same cause, in |