4. That the court sustained the assessment of the property for local purposes for the year 1911 is complained of. The basis of this claim is clause 2 of the proviso in the amendment of section 508 of the Code, Acts 1916, p. 827, which provides that, "No municipal, county or district tax shall be levied or collected on any assessment of intangible personal property, money or incomes for taxes alleged to have been omitted from the assessments for the years prior to nineteen hundred and twelve." This section was considered in Commonwealth v. United Cigarette Machine Co., 120 Va. 835, 13 Va. App. 669, 92 S. E. 901, as to assessments made after the adoption of the statute, and the validity of the statute is upheld in an opinion by Kelly, J., which needs no elaboration. In this case, however, the assessment had already been made in 1914 for the year 1911, before the adoption of that amendment, and the question here is whether the limitation thereby provided applies to such a previous assessment. We are of opinion that it does apply, and that the claim that the locality acquires a vested right in omitted taxes if assessed before the enactment of 1916 is as invalid and unsound as if the assessment had been made after its adoption. It is noted that the proviso does not in terms prohibit assessments. What it expressly prohibits is the levying or collecting of omitted local taxes for any year prior to 1912. Clause 3 of the same proviso has this language: "but nothing herein shall be construed to postpone the power of the proper officers to use the remedies provided for by law for the collection of omitted taxes assessed prior to December first, nineteen hundred and fifteen, for the period and within the limitation prescribed above." Now the only period prescribed in the act with reference to local taxes is the period prescribed in clause 2, and hence the last quotation from the statute emphasizes the idea that the legislature was adopting a statute of repose, and intended that after the act became effective no claim for omitted municipal, county or district taxes should be enforced by levy or by any other means collected, for such as were omitted for the years prior to 1912. We think, therefore, that the point is well taken; that the act was clearly intended to be retrospective to the extent indicated, and hence that the court erred in refusing to exonerate the petitioners from the omitted local taxes for the year 1911, the collection of which was expressly prohibited by the act referred to. Whitlock v. Hawkins, 105 Va. 242. 5. It is claimed that excessive local rates were applied for the year 1911, but in view of the fact that we have determined that no local taxes for 1911 can be collected, it is unnecessary to notice that point further. It is also claimed that improper rates were applied to the money in the hands of the executors for the years 19121913. Counsel for defendants in error admit this, which appears to be the result of a clerical error. The amount of the county and district levies for 1912, instead of being $109.51 should have been $10.95, and for the year 1913, instead of $197.78, should have been $19.77; and these errors. will be corrected here. 5 } 6. It is urged that no penalties or interest should have been added. No reason is assigned for this claim. It is the duty of every taxpayer to report his property for assessment and to pay the tax thereon by December 1st, following, in order to escape such penalties. Commonwealth v. United Cigarette Machine Co., supra; Harrison, Executor, v. Commonwealth, 16 Va. App. 79, 96 S. E. 165. The statute, section 603 of the Code, imposes the penalty, and this court has no power to relieve a delinquent taxpayer therefrom. The same principles apply as to the interest which the officers, by mandate of the statute, are required to collect. Commonwealth v. United Cigarette Machine Co., 119 Va. 478, 12 Va. App. 481; Union Tanning Co. v. Commonwealth, supra. The order of the trial court will be amended so as to relieve the petitioners from local taxes for the year 1911 and to correct the mistakes as to the taxation of money for the years 1912-1913. As thus amended the order will be affirmed, and the case remanded to the trial court for such further orders, if any, as may be necesssary. Amended and affirmed. 1. SCHMIDT, ET AL., v. WALLINGER. (Wytheville, June 12, 1919.) PLEADING AND PRACTICE.-Declaration-Demurrer-Misjoinder of 2. PRINCIPAL AND AGENT.-Exchange of Real Estate-EvidenceOffer of Settlement. 3. IDEM.-Exchange of Real Estate-Evidence-Values of City and Farm Property-Appeal and Error-Bills of Exception— Doubt as to Exception. 4. IDEM.- Exchange of Real Estate-Instructions -Commissions-Duty of Agent to Principal-Middlemen-Profit on Transaction. 5. IDEM.—Instructions-Evidence-Conflict-Duty of Agent to Prin cipal. 6. VERDICT.-Form-Partnership. Error to Circuit Court of city of Richmond. Affirmed. L. O. Wendenburg, for the plaintiffs in error. KELLY, J., This is an action of assumpsit brought by Amelia C. Wallinger against E. F. Schmidt, A. D. Smith and Jno. M. Brandt, jointly and severally as individuals, and against the same persons as partners under the firm name of E. F. Schmidt and Company. The declaration contains the common counts and a special count to the following effect. That on or about the 11th of December, 1915, the plaintiff owned a house and lot in the city of Richmond and employed the defendants as her agents, upon an agreed commission to trade the same for farm property; that a price and value was fixed on the house and lot by her and her said agents; that thereupon the agents offered to her in trade for her house and lot the farm of one Basho, in Hanover county, containing 640 acres, at the price of $15.00 per acre, being $0,600; that the plaintiff was willing to accept the Basno farm at that price, that at a later date, her agents represented to her that the farm could not be purchased for less than $20 per acre, or $12,800; that the plaintiff, acting and relying entirely upon the representations of the agents, purchased and paid for the farm at the price of $12,800, and received a deed from Basho through the agents, believing under their representations that Basho was actually receiving a consideration of $12,800 for his farm, and that the agents were receiving as compensation for their services the commissions agreed upon; that in fact and in truth, without any knowledge thereof on her part, the agents purchased the farm from Basho at $15.00 per acre, or $9,600, and ,regardless of their obligation to her and in violation of their duties as her agents, sold and traded the farm to her at the price of $20.00 per acre, or $12,800, being an excess of $3,200 more than the purchase price charged and received by Basho; and that as a result the defendants received and obtained from her $3,200 which she was entitled to recover of them. There was a verdict and judgment in favor of the plaintiff for the sum of $1,600, and to that judgment this writ of error was awarded. The first assignment of error calls in question the action of the trial court in overruling a demurrer to the declaration. The grounds of the demurrer were, (1) that there was a misjoinder of parties and of causes of action, and (2) that "the second count fails to allege scienter, or whether the defendants were the agents of the owner of the farm when she was offered the farm in trade and whether or not she knew they were the agents of the owner of the farm, and because the declaration fails to say whether the declarations complained of were false and material." We are given no reason, and we perceive none, for the contention that there was a misjoinder of parties. If the point had been good, it could not have been reached by demurrer, but only by a motion to abate the action as to the parties improperly joined. Burks' Pl. & Pr., p. 76, note; Va. Code, 1904, sec. 3258-a; Lee v. Mutual etc. Ass'n., 97 Va. 160, 162. Riverside Cotton Mills v. Lanier, 102 Va. 148, 159; Carlton v. Boudar, 118 Va. 521, 524, 11 Va. App. 579. It is claimed that the special count set up a tort which is improperly poined as a cause of action with the common counts in assumpsit. The special count does allege a fraudulent and tortious transaction, but one in which the defendants are charged with having received money belonging good conscience to the plaintiff, and for the refunding of which the law implies a promise. The action is specifically designated in the declaration as assumpsit; and that form of action, if the plaintiff desired to waive the tort, was appropriate for the recovery of the money. 1 Bart. Chy. Pr. 125; Burks' Pl. & Pr., 121; B. & O. R. Co. v. Burke; 102 Va.. 643, 647. The failure of the declaration to show whether or not the defendants were acting in the dual capacity of agents for Basho and for plaintiff with the latter's knowledge of that fact is immaterial and does not render the declara |