The court doth direct that the boundary line aforesaid between Cumberland Gap and White Top Mountain shall be marked at intervals of not over five (5) miles by distinct and durable stone monuments.

That the corner between the states of Virginia and Tennessee upon said mountain be also marked by a durable monument of stone.

That the said boundary line from White Top Mountain through Denton's valley and the country in the record called the "Triangle" shall be marked by stone monuments, so designed, located, and arranged as to make dis tinct and unmistakable this line.

That stone monuments be placed at the eastern and western limits of the city of Bristol, in the states of Virginia and Tennessee, and the said boundary line through said cities be distinctly and clearly marked.

That a corner stone as a monument be placed at Cumberland Gap.

That the said boundary line from Station

an order may be made, at any time during the present term, for the restoration of such marks without any change of the line." 148 U. S. 528 [37: 546]. Subsequently, on May 15, 1893, a motion was made on behalf of the state of Virginia to restore the boundary marks between the two states alleged to be indistinct and obliterated, and to allow complainant to take additional testimony, the consideration of which was postponed to October term. 1893, when and on October 16, 1893, the [271 motion was denied. Application is now made on behalf of the state of Virginia to this court to enter a decree in this cause for the remarking of the boundary line as set forth therein, to the granting of which the state of Tennessee consents. But we find ourselves unable to enter the order desired, as our power over the cause ceased with the expiration of October term, 1893, and it should not have been retained on the docket. The application must therefore be denied, but without prejudice to the filing of a new bill or petition, upon which, the parties being properly before the court and agreeing thereto, such a decree may be entered.

Application denied and case stricken from the docket.

ments.

That said special commissioners, as soon as possible after assuming the duties imposed by this decree, do make full report to this court of their action pursuant thereto, and with said report do return a plat and survey of the aforesaid boundary line, monuments, etc.

And the court doth further order and decree that the costs of said survey, plat etc., when allowed by this court, shall be paid equally by the parties to this cause-that is to say, one half thereof by the state of Virginia and the other half thereof by the the state of Tennessee.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a suit to establish the true bound

ary line between the states of Virginia and Tennessee, and proceeded to a decree on April 3, 1893, at October term, 1892, "that the boundary line established between the states of Virginia and Tennessee by the compact of 1803, between the said states, and that is the real, certain, and true boundary between the said states, and that the prayer of the complainant to have the said compact set aside and annulled, and to have a new boundary line run between them on the parallel of 36° 30' north latitude, should be, and the same is bereby, denied, at the close of the complaint." In view of some observations made, on the argument of the case, upon the propriety and necessity, if the line established in 1803 were sustained, of having it rerun and remarked, so as thereafter to be more readily identified and traced, it was stated in the opinion "that on a proper application, based upon a showing that any marks for the identification of that line

COMPANY, Piff. in Err.,

v.

NOTE.-48 to when railroad or other corporations

are liable for punitive or exemplary damages, see note

to Lake Shore & M. S. R. Co. v. Prentice, 37: 98.

As to damages for personal injury from negligence,

see note to Pennsylvania Co. v. Roy, 26: 141.

Declarations of a party, when competent evidence

in his own favor; to prove extent and character of personal injury-dying declarations.

Whenever the bodily or mental feelings of an in

dividual are material to be proved, the usual expressions of such feelings made at the time in

question, are also original evidence. Thus the representations by a sick person of the nature and effects of his sickness under which he is suffering are receivable as original evidence, whether they be made to the medical attendant, or to any other person. Aveson v. Kinnaird, 6 East, 188; Rex v. Blandy, 18 How. St. Tr. 1135-1138; Gardiner's Peerage Case, Le Merchants' Rep. 79; Gray v. Young, Harp. L. 38; Gilchrist v. Bale, 8 Watts, 355, 34 Am. Guttridges, 9 Car. & P. 472; Rex v. Wink, 6 Car. &

Dec. 469; Reg. v. Johnson, 2 Car. & K. 354; Reg. v. son, 9 Car. & P. 420; Reg. v. Lunny, 6 Cox, C. C. 446. P. 397; Reg. v. Osborne, Car. & M. 624; Reg. v. Meg

If the prosecutor is called as a witness, such complaints are a fortiori admissible as tending to conarm his credit. Reg. v. Megson, supra; Reg. v.

The case proceeded to trial before the court and a jury, and resulted in a verdict for the plaintiff in the sum of $7500, and the jury also returned certain special findings which had been submitted to them at the request of the defendant. Judgment was entered upon said verdict and special findings. During the trial several exceptions were taken by the defendant, which were allowed and signed by the judge, and which are brought for review to this court by a writ of error.

Messrs. A. H. Garland, W. E. Cullen and J. K. Toole, for plaintiff in error: Self-serving declarations should not be admitted, though made to a physician for the purpose of qualifying him as a witness.

In the case of Travelers Ins. Co. v. Mosley, 75 U. S. 8 Wall. 397 (19: 437) the court had

evidence and it is the province of the jury to determine what degree of credence should be accorded them. Phillips v. Kelly, 29 Ala. 628; Hyatt v. Adams, 16 Mich. 180; Caldwell v. Murphy, 11 N. Y.

416.

Exclamations or expressions of present pain or suffering by an injured person, at and after the injury, are admissible in an action for the injury. Cleveland, C. C. & St. L. R. Co. v. Prewitt, 184 Ind. 557, 54 Am. & Eng. R. Cas. 198.

Evidence is admissible, in an action for personal injury, of complaints made by the plaintiff during her suffering, but some time after the injury. Tobin v. Fairport, 12 N. Y. Supp. 224: Girard v. Kalamazoo, 92 Mich. 610.

That a physician was employed by plaintiff in an action for personal injuries to make an examination of her for the purpose of testifying does not render his testimony as to her complaints of suffering inadmissible. Chicago, St. L. & P. R. Co. v. Spilker, 134 Ind. 380, 32 Am. L. Reg. 763.

Statements by an injured person, indicating present pain and suffering and of such a character as to be admissible if made before suit was brought, are not rendered inadmissible because made while suit is pending. Kansas City, Ft. S. & M. R. Co. v. Stoner, 10 U. S. App. 209, 51 Fed. Rep. 649, 52 Am. & Eng. R. Cas. 462.

Expressions of existing mental or physical anguish, in the presence of his attending physician, called to qualify himself as a witness to the probable extent of the injuries, are admissible on the trial of an action for the injuries, although made during the progress of such trial. Schuler v. Third Ave. R. Co. 1 Misc. 351; Birmingham U. R. Co. v. Hale, 90 Ala. 8.

The rule permitting such evidence was at one time firmly established in the state of New York.

Caldwell v. Murphy, 11 N. Y. 416.

This case was followed in Werely v. Persons, 28 N. Y. 344, 84 Am. Dec. 346, and in other cases. The case of Reed v. New York Cent. R. Co. 45 N. Y. 574, seems to have been an attempt to extend this very convenient rule. The plaintiff in that case sought to prove certain declarations he had made to a third person relative to the state of his health. Allen, J., after reviewing the decisions of the courts of

Dying declarations are inadmissible in evidence, where the witnesses are unable to give either the words or the substance of what the deceased said. State v. Johnson, 118 Mo. 491.

Dying declarations are not rendered inadmissible by the fact that the witness is unable to state the precise words used by the deceased indicating belief that death was impending, nor by the fact that the declarations are sworn to. People v. Chase, 79 Hun, 206; Turner v. State, 89 Tenn. 547.

Evidence of complaints of pain and suffering, made by an injured person, is admissible in an action for damages for injuries. Bloomington v. Osterle, 139 Ill. 120.

Testimony of a physician who treated plaintiff for personal injuries, as to a statement made by the latter a day or two before the trial, purporting to be a description of his symptoms at that time, made for the purpose of medical advice and treatment,-is admissible. Fleming v. Springfield, 154 Mass. 520.

Declarations of the plaintiff in an action for personal injuries of pain and suffering a few hours after the accident, to one not a physician in attendance professionally, are incompetent. Kennedy v. Rochester City & B. R. Co. 130 N. Y. 654, 8 Silv. 591.

A statement made by one a few minutes after he was shot, to one who went to him as soon as possible after hearing the shooting, to the effect that he was going to die, and as to who did the shooting, is admissible as res gestœ as well as a dying declaration. White v. State, 30 Tex. App. 652.

Dying declarations are admissible on a trial for murder, as to the fact of the homicide and the person by whom it was committed, in favor of the defendant as well as against him, if made by the party injured, under a sense of impending death. Mattox v. United States, 146 U. S. 140 (36: 917).

Statements made at a time when the speaker expected to recover are not admissible in evidence on a murder trial as dying declarations. Graves v. People. 18 Colo. 170.

Dying declarations made under sense of impending dissolution, and which state facts, are admissible in evidence without an explicit statement by deceased that he was at peace with the world and his God. State v. Black, 42 La. Ann. 861.

A writing read over seutence by sentence to the declarant assented to as to the accuracy of each sentence, and signed by him after hearing it so read, in the presence of witnesses, as his dying declaration, becomes such. People v. Bemmerly, 87 Cal. 117.

In the case of Hagenlocher v. Coney Island & B. R. Co. 99 N. Y. 136, there seems to have been a return to the rule; but in the case of Rocke v. Brooklyn City & N. R. Co. 105 N. Y. 294, 59 Am. Rep. 506, it was again set aside. In this case Peckham, J., says:

"But evidence of simple declarations of a party made some time after the injury, and to a physician for the purpose of being attended professionally, and simply making the statement that he is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration, and of a most dangerous tendency, while the former necessity for its admission has wholly ceased."

The rule admitting self serving declarations of a party, made to a physician or other person, in evidence, has about the same history in Michigan that it has had in New York. It seems to have been quite firmly established by the cases of Hyatt v. Adams, 16 Mich. 181; Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; and Mayo v. Wright, 63 Mich. 32, but it was totally repudiated in Jones v. Portland, 16 L. R. A. 437, 88 Mich. 598, where the authorities in support of it, both American and English, are quite fully reviewed.

Mr. Frank H. Woody, for defendant in

error:

The representation by a sick person of the nature, symptoms, and effects of the malady under which he is laboring at the time, are received as original evidence. If made to a medical attendant, they are of greater weight as evidence; but if made to any other person, they are not on account rejected.

Travelers Ins. Co. v. Mosley, 75 U. S. 8 Wall. 397 (19: 437); Bacon v. Charlton, 7 Cush. 581; Hatch v. Fuller, 131 Mass. 574; State v. How ard, 32 Vt. 380; Sanders v. Reister, 1 Dak. 151; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; Toule v. Blake, 48 N. H. 92; Taylor v. Grand Trunk R. Co. 48 N. H. 304, 2 Am. Rep. 229; Rogers v. Crain, 30 Tex. 284; Gray v. McLaughlin, 26 Iowa, 279; Central Railroad v. Smith, 76 Ga. 209, 2 Am. St. Rep. 31; Fay v. Harlan, 128 Mass. 244, 35 Am. Rep. 372; Quaife v. Chicago & N. W. R. Co. 48 Wis. 513, 33 Am. Rep. 821.

When such declarations are evidence, they may be proved by any witness who heard them; they are of greater weight if made to, and proved by a medical attendant.

Howe v. Plainfield, 41 N. H 135; Perkins v. Concord Railroad, 44 N. H. 223.

Mr. Justice Shiras delivered the opinion of the court:

273] *The first assignment avers error in permitting the medical witnesses, who testified in behalf of the plaintiff, to be asked whether the examinations made by them "were made in a

superficial or in a careful and thorough manner."

It is urged that this question was objectionable, both as leading and as taking from the jury the determination of the inquiry whether the medical examination was thorough or otherwise.

It cannot be safely said that, in no case, can a court of errors take notice of an exception to the conduct of the trial court in permitting leading questions. But such conduct must appear to be a plain case of the abuse of discretion.

"We are not aware of any case in which a new trial has ever been granted for the reason that leading questions, though objected to, have been allowed to be put to a witness." Green v. Gould, 3 Allen, 466.

"The allowance of a leading question is within the discretion of the court, and is not ground for reversal." Farmers Mut. F. Ins. Co. v. Groff, 87 Pa. 124.

"Circuit courts must be allowed the exercise of a large discretion on the subject of leading questions." Parmelee v. Austin, 20 Ill. 35.

The second ground, that this question called for the opinion of the witnesses as to the manner in which the physical examinations were made, and thus supplanted the judgment of the jury in that particular, does not seem to us to be well founded. The obvious purpose of the question was to disclose whether the judg ment of the physicians as to the plaintiff's condition was based on a superficial or on a thorough examination, and we think it was competent for the witnesses, who were experts, to characterize the manner of the examination.

The refusal of the court to suppress the deposition of Dr. W. P. Mills because it did not disclose that the witness was cautioned and sworn before testifying, as required by the statute, is assigned for error. But it appears that the defendant company was represented by counsel and took part in the examination, and this must be regarded as a waiver of any irreg ularity in the taking of the deposition. [274 Mechanics Bank of Alexandria v. Soton, 26 U. S. 1 Pet. 307 [7: 156]; Shutte v. Thompson, 82· U. S. 15 Wail. 159 [21: 125]. Moreover, although a motion was made to suppress the deposition before the trial, yet when it was offered at the trial no objection was made or exception taken, and thus the objection was waived. Ray v. Smith, 84 U. S. 17 Wall. 417 [21: 669].

The third assignment is strenuously pressed on our attention in the brief of the plaintiff in error. It arises out of the refusal of the court. below to suppress certain portions of the depositions of Drs. Mills and De Witt because of incompetency and as merely hearsay.

This objection is founded upon the witnesses having been permitted to testify to statements made by the defendant, at various. times, to the physicians in respect to his feelings, aches, and pains, and it is contended that such statements were made too long after the occurrence of the injury to be part of the res gesta, but were merely narrations of past incidents; and it is further urged that, whatever reason there may have formerly been, when a party could not himself testify to his